Culling seals to protect farmed salmon: what should we be allowed to know?

8 December 2012 by

sealGlobal Alliance Against Industrial Aquaculture v. Scottish Ministers, 26 November 2012    read decision

An interesting and robust decision from the Scottish Information Commissioner. An NGO (just look at the tin) asked the Scottish Ministers for information about seal culling licensed by them. The Scottish Ministers did not provide all the information sought; they said which companies had received the licences, and the total number of seals killed, but did not say who killed how many seals where – thus, doubtless, stymieing any focussed debate and engagement by the NGO on the justification for the killings. The industry’s position appears to be that such shootings only took place against occasional rogue seals.

It was common ground that the withheld information was environmental information within the Regulations – effectively the same north and south of the border. The Ministers relied on two exceptions – that provision of the information might affect public safety (reg.12(5)(a) in Scotland or reg.13(5)(a) in England) or the protection of the environment to which the information relates (ibid.(5)(g)). Their case was that production of the information would lead to direct action being taken (not by GAAIA) but by others against the sites involved or individuals involved in their operation. The material relied upon by the Ministers in respect of direct action was (a) an aborted mass slaughter of Orkney seals in 1978 (yes, 1978) – nothing to do with salmon farming  (b) the confrontation of a Costa Rican ship in Guatemalan waters concerning shark finning and (c) a Canadian seal cull and (d) recent direct action against whaling. Example (a) was a tad ironic – this cull was in the end cancelled for public safety reasons – the public safety in question being that of the protesters who had put themselves in the line of fire between cullers and seals.

The IC took a pretty firm line in response to this. No, the Ministers accepted, the release of information about certain past salmon farm culls had not led to any direct action. And all GAAIA was after was more information about the past, in part to be able to inform customers whether or not seals had been killed in the farming of this product (this is perhaps closer to the nub of the case, which the cynic might infer was all about reputation management of the fish farmers as doubtless conveyed to Ministers). The IC said that the Ministers needed to demonstrate that disclosure would or would be likely to prejudice substantially public safety – not simply a remote or hypothetical possibility of such harm. The examples of direct action provided by Ministers were “tenuous and bore little relation to the issues or situations under consideration…”

Indeed, the IC was “disappointed that the Ministers continue to rely on general arguments to explain why they considered the information to be exempt under regulation 10(5)(a), without providing evidence to support their conclusions in the specific circumstances of this case.”

The harm to the environment exception was even more tenuously supported by Ministers. Protestors might damage fish farm cages, thus causing fish to escape and thus potentially impact on wild populations. Seals might also damage those cages, if companies were not allowed to shoot them because of protests. Not much credence was given to this by the IC.

Standing back from the decision, and the rather flimsy material advanced by Scottish Ministers, it demonstrates just how difficult these cases must be to decide in practice. They are meant to be morally neutral – it is not supposed to matter why someone wants the information. If the information sought falls within the rules, then it is for the public authority to justify refusal of disclosure, and to do so on objective grounds. But this process gives rise to the sort of decision here – how robustly should one look at the possibility of the actions of third parties? And to what degree should Ministers weigh all this up? Are they to take account of law enforcement or the ability of salmon farmers to look after themselves – in return for an open debate on whether, and in what circumstances, seals should be killed. Let us assume that the data show that three salmon farmers, close to each other and in habitats of similar seal attractiveness, killed nil, 20 and 500 seals respectively over a given year. Why should not the last two have some explaining to do, not simply to Ministers but to the public and its market generally?

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: