Raptor Persecutions & Prosecutions Take 2: How investigatory powers legislation read with human rights requirements might explain recent COPFS decision-making

This post is by Dr Phil Glover.

As an academic opposed to wildlife crime and with no ‘huntin/shootin/fishin’ interests (or indeed abilities) to declare, I have penned this article as a follow up response to my colleague Professor Peter Duff’s recent contribution to this blog relating to the correctness of recent Crown Office and Procurator Fiscal Service (COPFS) decisions not to prosecute in some recent wildlife crime cases. His piece stimulated robust debate on the emotive issue of wildlife crime and the admissibility of evidence pertaining to it, an issue that I wholeheartedly agree is crying out for greater legal (and legislative) certainty in Scotland and the UK. A number of the comments posted on the Raptor Persecution Scotland blog following Professor Duff’s article reflect complex research issues currently vexing me and on which I am seeking comments. As the academic responsible for Professor Duff’s references to the Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A) and the Data Protection Act 1998 (DPA) I feel it is necessary to expand upon them in light of some of the comments they have received.

The comments reflected questions I believe the COPFS would have to address in their decision-making. Some of them were partially (but in my view incompletely) addressed in a very helpful COPFS letter (PDF) of 30 May 2017 to Graeme Dey MSP (in his capacity as Convener of the Scottish Parliament’s Environment, Climate Change and Land Reform Committee). This article provides my arguably fuller answers and a suggestion or two as to how the current impasse or inconsistency in achieving successful prosecutions might be achieved.

Assuming no disingenuousness as to their purposes on the part of the Royal Society for the Protection of Birds (RSPB), it appears settled that its conduct in the controversial cases involved covertly placing and subsequently monitoring video-recording (data capturing) equipment adjacent to vulnerable wildlife sites for the (laudable) purpose (sole or otherwise) of processing the recorded film so as to provide Police Scotland and the COPFS with evidence identifying persons committing crimes against wildlife. On my admittedly skim reading of the cases referred to it appears that it is the RSPB, rather than Police Scotland, who undertakes the covert investigatory conduct. If not, disregard much of the analysis that now flows.

What are the legal implications of the RSPB’s conduct?

The legal implications of the RSPB’s conduct depend on the interpretation of two distinct legislative regimes that arguably apply.

The older, clearer, obviously applicable regime is that within the DPA. My PhD thesis concluded, inter alia, that virtually all forms of covert surveillance as commonly understood can be deconstructed to be reconceptualised as covert investigative data acquisition. Data acquisition and subsequent processing includes video recording of camera images and their subsequent use-  (Peck v United Kingdom, (2003) 36 EHRR 41 at [59] ) An excellent synopsis of the applicability of the DPA 1998 as regards the acquisition and processing of video recorded personal data in Scots law can be found in the recent case of Anthony & Deborah Woolley v Nahid Akbar or Akram [2017] SC Edin 7 (at paragraphs 72-74). For present purposes however, evidence suggests the RSPB are self-declared registered data controllers and data processors within the meaning of section 1 of the DPA insofar as they manage members’ personal data (defined in Section 1 of the DPA as … data which relate to a living individual who can be identified—(a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller. Their role as controllers mandates them (DPA, s4(4)) to comply with all the data protection principles (DPA, Schedules 1-4 according to context).

Initial inspection suggests that the first principle has the most relevance:

(1) Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless

(a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

In the context of the present analysis, the relevant Schedule 2 conditions are:

  • that the subject of the personal data has consented to the processing (not realistic in investigative covert information acquisition) OR
  • the data processing is necessary for the administration of justice OR
  • for the exercise of any functions of the Crown, a Minister of the Crown or a government department, OR
  • for the exercise of any other functions of a public nature exercised in the public interest by any person.

Schedule 3(6) additionally provides that sensitive personal data may be processed where such processing is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), and 3(7) replicates the permissions in Schedule 2 regarding administration of justice etc.

On this reading, the registered data controller (here the RSPB) can lawfully obtain and process personal data tending to identify a living wildlife offender for these purposes under the DPA and its principles. Added weight to this assertion can be given by the fact that section 29 of the DPA provides, inter alia, that personal data processed for (a) the prevention or detection of crime or (b) the apprehension or prosecution of offenders are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3).

If it is lawful, necessary and proportionate to the legitimate aim pursued (prevention of wildlife crime)  it is also ECHR compliant. Within the DPA regime therefore, all looks rosy for evidence of wildlife crime obtained and processed by the RSPB using covert investigative technical measures.

My view however, is that a second, more modern legal regime applies, namely that within the RIP(S)A. (HOLD THAT ‘PUBLIC AUTHORITY’ ARGUMENT, I WILL DEAL WITH IT!) The RSPB’s conduct directly equates to ‘directed surveillance’ as defined in RIP(S)A 2000, s1(2), namely covert, non-intrusive surveillance undertaken for the purposes of a specific operation or a specific investigation in such a manner as is likely to result in the obtaining of private information about a person. The same section (at s1(8)(a)) additionally provides that ‘surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place’. Meanwhile, ‘Private information in relation to a person, includes any information relating to the person’s private or family life’ (s1(9).

The term ‘equates to’ is not chosen lightly. This is because the RIP(S)A further provides that conduct amounting to directed surveillance shall be ‘lawful for all purposes if authorised’ (s5(1)) and that such an authorisation can only be issued by a ‘designated person’ (s6) within a ‘relevant public authority’ (s8). Inspection of s8 reveals that ‘relevant public authority’ does not include the RSPB. The RIP(S)A definitions for conduct amounting to covert directed (and intrusive) surveillance clearly state that such definitions apply only for the purposes of that Act (s1). Covert investigative conduct outside the RIP(S)A is not ‘surveillance’ within the meaning of the Act.

One initial view therefore might be that the RSPB’s covert investigative conduct as a ‘non-public authority’ takes place outside any statutory regime and therefore outside any European Convention on Human Rights (ECHR) safeguards. This view would mean that all the purportedly ECHR-compliant provisions of the RIP(S)A 2000 vis a vis ‘directed surveillance’ do not apply and are non-enforceable against the RSPB, meaning that their acquisition of private information about persons via covert video recording (in these cases the images enabling the identification of the alleged offenders) did not require to be authorised and would ultimately be admissible under the Scots law of evidence as no more than ‘irregularly’ obtained. This cannot in my view be correct, and I infer from their reference to ‘not authorised’ in their letter that the COPFS agree with me. Here’s why.

Strict adherence to this view creates the anomaly, indeed absurdity, that if it were Police Scotland covertly placing the video data-capturing equipment in identical circumstances to the RSPB for the same purpose (prevention of crime), an authorisation under s6 of the RIP(S)A, issuable only after strict considerations of the investigation or operation’s necessity and proportionality would be required, with the very real risk that if not issued, the evidence would be rendered unlawfully obtained and therefore inadmissible. Police Scotland have not been immune to severe censure for failure to adhere to RIP(S)A’s authorisation matrix (David Moran & Others v Police Scotland, IPT/15/602/CH, IPT/15/603 CH, IPT/15/613/CH, IPT/16/263/CH, IPT/16/264/CH, IPT/16/387/CH) It seems unthinkable therefore, that even before reading the Human Rights Act 1998 alongside the RIP(S)A, evidence obtained via covert investigative activity outside the RIP(S)A mechanism and safeguards would be considered lawfully acquired. If it were, Police Scotland would simply be able to ‘contract out’ of their ECHR-compliance obligations regarding covert surveillance by allowing non-State actors such as the RSPB to undertake it for them when it suited.

European Human Rights Expectations

Unsurprisingly, the European Court of Human Rights (ECtHR) has made decisions that acknowledge this potential circumvention. Simon McKay, author of Covert Policing Law and Practice (OUP, 2011) outlines in Chapter 10 (Private Surveillance) the decisions in MM v The Netherlands (2004) 39 EHRR 19 and Van Vondel v The Netherlands (Application No 38258/03, 25 January 2008) holding that investigating authorities cannot evade their ECHR responsibilities by the use of evidence obtained by non-State or ‘private’ agents. Crucially, in MM the police and the public prosecutor ‘made a crucial contribution’ to the eventual criminal proceedings, thus engaging the responsibility of the State. It is highly likely that the COPFS, as Scotland’s public prosecutor, would be held as being similarly engaged and therefore responsible for flaws in the human rights compliance of surveillance undertaken outside the RIP(S)A. It is this consideration of the implicit failure of the RSPB to adhere to the RIP(S)A, by seeking authorisation from Police Scotland to undertake ‘directed surveillance’ on an agency basis, that may have influenced the COPFS decision not to prosecute in the recent cases referred to. In my view the COPFS would be correct to consider this, as it seems unacceptable that public authorities are bound by the RIP(S)A compliance safeguards whilst bodies such as the RSPB remain currently exempt.

In the absence of a rapid amendment to the RIP(S)A, a simple solution to this problem, if no one has already thought of it, would be for the RSPB to engage Police Scotland in the practical implementation of covert investigative conduct, with Police Scotland taking all the relevant requisite steps under the RIP(S)A to ensure ECHR compliance and thus the lawfulness of the conduct. This might involve no more than the secondment of a Police Scotland operative to ‘supervise’ the RSPB investigation teams, but with the necessary RIP(S)A authorisations in place.

When considering the notion of amending legislation, a question arises as to whether the RSPB could or should be added to the ‘relevant public authority’ taxonomy in the RIP(S)A, s8(3) so as to enable them to authorise their conduct in ECHR-compliant terms. Regrettably, due to my favourite bugbear (legislative drafting), this could be problematic: section 8(4) provides that the Scottish Ministers may by order amend section 8(3) by adding or removing a ‘public authority’, but there is no provision for adding entities such as the RSPB that fall outside the ‘public authority’ definition.

At this point it can be noted that nailing down a set definition for ‘public authority’ appears beyond the UK and Scottish legislatures and is purpose-dependent.

The RSPB does not constitute a public authority for the purposes of the Freedom of Information (Scotland) Act 2002, Schedule 1, but can be designated as such under that Act (s4 and s5(2)). This point is worth expanding upon: s4 empowers the Scottish Ministers to amend Schedule 1 by adding or removing particular ‘bodies’, with s5(2) further empowering them to ‘designate as a Scottish public authority for the purposes of this Act any person mentioned in subsection (2) who (a) is neither for the time being listed in schedule 1 nor capable of being added to that schedule by order under section 4(1); and (b) is neither a public body nor the holder of any public office’. Subsection 2 provides that such persons include, inter alia, those who ‘appear to the Scottish Ministers to exercise functions of a public nature’. It seems strange that legislative drafting has enabled this here, but not in the RIP(S)A.

A further argument for applying the RIP(S)A – Domestic Human Rights Expectations

The arguably overarching Human Rights Act 1998 mandates: that courts and tribunals must take into account, inter alia, any judgment, decision, declaration or advisory opinion of the European Court of Human Rights (s2); that so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights (s3) and that “public authority” includes—(a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature (s6(3)(b)).

The first point therefore is that the RIP(S)A must be read and given effect in a way that is compatible with the Article 6 right to a fair trial and the presumption of innocence and the Article 8 right to respect for private and family life, home and correspondence. One possible outcome of this is that the RIP(S)A cannot be read in such a way as to render directed surveillance by bodies not designated as relevant public authorities and that a section 4 declaration of incompatibility might be required. Another is that section 8 could be ‘read down’ to include all bodies exercising functions of a public nature.

Examples abound of jurisprudence and associated academic commentary on what constitutes ‘functions of a public nature’. To my knowledge, and subject to the caveat that airing a hasty academic legal opinion can leave gaps in analysis, covert investigative information acquisition equating to covert directed surveillance under the RIP(S)A conducted by a registered charity has not yet been the subject of domestic or European legal challenge. Given the Strasbourg jurisprudence already mentioned however, I am of the view that such conduct would be construed as ‘of a public nature’ and would render the RSPB a ‘public authority’ for RIP(S)A purposes. Put another way, I believe that the RIP(S)A would be ‘read down’ to incorporate conduct amounting to covert directed surveillance on the part of any body undertaking conduct amounting to covert investigative information acquisition that assists the State (in this case the COPFS) in bringing a prosecution. This would undoubtedly require the RSPB and similar bodies to seek an authorisation under the RIP(S)A by involving Police Scotland as outlined previously.

Conclusions

What we are left with then, is that the COPFS, when weighing up whether or not to lead evidence comprising recorded video data acquired covertly for investigative purposes by an organisation not currently recognised in law as a public authority, have to consider the effect of two distinct regimes. The first, ‘older’ regime is that within the DPA, in which the RSPB as a lawful registered data controller, processes data acquired covertly for a purpose exempted under s29 from a requirement to be fair and lawful and which will therefore be processed lawfully in the course of prospective legal proceedings and appears admissible. The second, ‘newer’ regime is that framed by an inadequately drafted RIP(S)A read, as it must now be read, with the relevant provisions of the Human Rights Act 1998. On this reading, the RSPB cannot currently lawfully undertake conduct amounting to lawful directed surveillance.

Having revisited the limited available published information surrounding the Colin Marshall case (heard in 2006), I am of the view that the Sheriff erred in admitting evidence of what may have started out as a nest surveillance, but what ended up as being directed surveillance of Marshall over 3 nights in 2003. There is no indication that the RIP(S)A was even considered. The second case, that of Mutch, similarly involves no recorded discussion of the RIP(S)A or the Sheriff’s view on its applicability. It is my respectful view that the Sheriff’s decision here was courageous and taken for public policy reasons, but that it either ignored or circumvented the applicable law (the RIP(S)A) albeit for laudable reasons. It is a disingenuous and ultimately untenable position to assert that an ‘RSPB investigation team’ (their description, not mine) monitors nests as part of a survey and captures/processes video evidence of criminality as a ‘by-product’ of that survey. It is my belief that the COPFS feel the same and are therefore unfortunately bound to discount video recorded evidence if it has been obtained by investigation teams not listed as public authorities in RIP(S)A s8. Consequently, in my view, the answer lies in ‘contracting’ directed surveillance of vulnerable sites back to Police Scotland, seconding Police Scotland personnel to supervise RSPB investigation teams, or in the longer term amending the RIP(S)A after suitable public consultation.

It is understandable that champions for wildlife protection will feel frustrated at inconsistencies in the bringing of criminal proceedings and that courts represent the best and most transparent arbiter on matters of admissibility. However it is not the role or function of Scottish courts to decide whether or not to prosecute. That thankfully wholly independent decision is for COPFS. Having weighed the evidence that has been obtained outside the requirements for lawful, authorised, directed surveillance conduct and therefore outside the guaranteed ECHR compliance, the COPFS are probably right to err on the side of caution and avoid risking widespread public censure for abuse of process. Bodies such as the RSPB, in the short-term absence of them being added to the RIP(S)A mechanisms, should engage with Police Scotland to ensure lawful RIP(S)A and Human Rights Act 1998 compliance. In the mid- to longer term, those in government entrusted with wildlife protection should be lobbying vigorously to have the RIP(S)A amended to incorporate the RSPB, in the same manner as SEPA. Wildlife crime is too serious not be prosecuted, but the overarching requirement under ECHR Article 6 that proceedings be fair mandates that evidence acquisition must be lawful, on a legal basis, necessary and proportionate.

The law of evidence, video footage, and wildlife conservation: did COPFS make the correct decisions?

This post is by Professor Peter Duff.

Non-lawyers might be bewildered by the recent decisions of the Crown Office and Procurator Fiscal Service (COPFS) not to proceed with prosecution in a series of cases where the RSPB has video footage of employees of large estates setting traps for or killing protected birds of prey (as reported by BBC News here).

COPFS has stated that this is because such video footage is not admissible in evidence at a criminal trial. While this might seem to the layperson like a legal technicality, it can be argued that under the law COPFS has little choice in the matter. After all, no purpose is served in bringing prosecutions which are destined to fail because the courts will not admit the crucial evidence. A common reaction might be that ‘the law is an ass’ but there are important principles at stake which justify the position that the law currently takes towards such evidence.

As COPFS explains in a recent letter (PDF) to the Environment, Climate Change and Land Reform Committee of the Scottish Parliament, the admissibility of evidence at criminal trials is governed generally by a substantial body of case law. COPFS states that its review of this body of law reveals that where covert cameras are placed, without the necessary authority (for example, a warrant granted by a Sheriff), for the purposes of detecting crime, the subsequent evidence has been obtained ‘irregularly’. As a general principle, this renders such evidence inadmissible in criminal proceedings according to the leading Scottish case of Lawrie v Muir 1950 JC 19, which has been cited with approval by courts all around the world. However, the judges in this case qualified this rule to some extent by stating that an irregularity in obtaining evidence can be excused depending on the nature of the irregularity and the general circumstances of the case.

The yardstick for a criminal court in determining whether an irregularity can be excused, thus allowing the evidence to be admitted at trial, is a balancing act between the ‘public interest’ in convicting those accused of crime and the need to protect the civil liberties – or, in modern terms, the human rights – of the ordinary citizen. If the latter are not given considerable weight, the fear is that we might well end up living in a police state under a ‘Gestapo’ type regime. Thus, for example, if the police irregularly seize the incriminating evidence in a very serious case, because it is at immediate risk of destruction by the perpetrator of the crime, a court might well deem that such an irregularity can be excused. On the other hand, if the police simply break down a suspect’s door in the middle of the night in a minor case to collect incriminating material because they cannot be bothered to obtain a search warrant, then the court is almost certainly not going to excuse the irregularity.

In the cases in question, we have the RSPB installing video cameras on private estates, apparently without the permission of the landowner, which is a breach of the privacy of the landowner and his or her employees who work on the estate. It seems that the RSPB claim that these cameras are placed solely for research purposes with no thought of detecting crime. It is not surprising that COPFS seems to find this explanation unconvincing because while one purpose may well be to gather research evidence – for example, as to the causes of the high attrition rate among birds of prey – it seems unlikely that the RSPB has not considered the possibility of gathering evidence of estates and their employees engaging in ‘wildlife crime’. As a non-ornithologist, I have always assumed that the long-established surveillance cameras at the Boat of Garten ospreys’ nest served at least two functions: to deter the collectors of rare birds’ eggs from stealing them in contravention of the law; and in order to find out more about the breeding habits of ospreys. (Incidentally, ‘birds or prey (raptor) persecution’ is one of six ‘Wildlife Crime Priorities’ listed by Police Scotland.)

Thus, COPFS is faced with the situation where the RSPB has covertly placed surveillance cameras on private land, probably at least partly with the aim of detecting individual instances of criminal behaviour and deterring other potential criminals from engaging in such behaviour in future. Thus, any evidence of a crime recorded by such cameras has been irregularly obtained and would require to be excused by a court before the recording could be admitted as evidence at a criminal trial. As I observed above, the actions by the RSPB are a breach of the right to privacy of both the estate owners and their employees (whilst not quite analogous, imagine if your neighbour installed a secret camera to record everything that went on in your garden). A court would have to determine that the public interest in preventing wildlife crime of the type in question is sufficient to outweigh the unauthorised and deliberate invasion of privacy by the RSPB before it would admit the recorded evidence. In the judgement of COPFS, the criminal courts would not do this and it seems to me that this is a perfectly reasonable view to take. In my view also, for what it is worth, I agree that the courts would not excuse such an irregularity in obtaining the video evidence and prosecutions would be fruitless. (On a more technical note, such video evidence might well also be rendered inadmissible under the Data Protection Act 1998 and the Regulation of Investigatory Powers (Scotland) Act 2000.)

Hen Harrier
Photo credit: Gail Hampshire. Licensed under the Creative Commons Attribution 2.0 Generic license

Shell decommissioning of the Brent Platform – haven’t we been here before?

In February 2017 Shell lodged plans to the Department for Business, Energy and Industrial Strategy (DBEIS) to undertake the decommissioning of offshore petroleum installations in the Brent Field, located in the North Sea, north east of the Shetland Islands. The Brent field is an iconic field, having commenced production in 1976, producing a sweet light crude oil that has been used as a benchmark crude, serving as a reference price against which other crudes are measured. However, given the decline of production from the Brent field, the Brent benchmark crude now comprises a mix of crudes from the Brent, Forties, Oseberg and Ekofisk Fields in the North Sea.

The Brent field is a giant field with installations to match: the topside of the 4 platforms being removed range between 16,000 and 31,000 tonnes. Three of the Brent installations (Bravo, Charlie and Delta) comprise concrete legs, known as ‘Gravity Based Structures’ (GBSs) (also known as Condeep Structures), which vary between 290,000 and 340,000 tonnes. In its detailed decommissioning plan that has been lodged with DBEIS, Shell recommends that the three GBSs remain in place, since they cannot be refloated or dismantled in one piece. This is seen as the best option based on technical, safety and cost grounds. Shell proposes to remove the top of the installations and seal the GBSs with concrete caps, and fit navigation aids. The decision to leave the GBSs in place has not been taken lightly. In its Decommissioning Plan, Shell outlines the reasons for leaving these structures in place. In particular, Shell stresses that these supports are made from very thick concrete with steel bars and solid ballast, and were anchored down during installation by flooding the legs with water. The GBSs were not intended to be removed once they had been placed on the seabed, and at the time these platforms were designed and installed, there was no requirement to remove such structures. These GBSs have been extensively used in the North Sea (both in the UK and Norwegian Sectors) as they provide the best stability in the rough North Sea, and have the added advantage of enabling oil to be stored in them if required.

It is Shell’s recommendation to leave the Brent GBSs in place that have united environmental groups to oppose the plan. This is not the first time that Shell, or the decommissioning of Brent Field installations, has come to the international attention. In 1995, after three years of evaluation of options, Shell was authorised by the UK Government and the OSPAR Convention (the Convention for the Protection of the Marine Environment of the North-East Atlantic) to dispose of the Brent Spar, an oil storage and tanker-loading buoy from the Brent Field, on the North Feni ridge, in over 7,000 feet of water. What followed was international outrage, with Greenpeace playing a lead role. At the heart of the opposition was the contention by Greenpeace that over 5,500 tons of oil remained in the Brent Spar, a figure countered by Shell who said only 50-100 tonnes remained. After a series of protests and boycotts in Germany and Northern Europe, Shell withdrew their plan to scuttle the Brent Spar in deepwater, with the Spar instead dismantled by Det Norsk Veritas in a Norwegian fjord. Soon after the withdrawal of the plan to scuttle the Brent Spar, the UK Energy Minister called the Greenpeace campaign ‘completely misleading’, leading to a public apology by Greenpeace for its mistake in the estimation of the amount of oil remaining in the Spar.

In the latest controversy to affect the Brent Field, environmental groups claim that the proposed decommissioning plan may be in breach of international law. The two main international law instruments related to the decommissioning and disposal of disused installations is the United Nations Convention of the Law of the Sea (UNCLOS) and the OSPAR Convention. Under UNCLOS, there are a number of general duties to protect the marine environment, particularly Articles 191 and 192. The primary law relating to the OSPAR convention is the decision of the OSPAR Commission after the Brent Spar incident, known as OSPAR Decision 98/3 on the Disposal of Disused Offshore Installations. Under this decision, the dumping or leaving in place (wholly or partly) of disused offshore petroleum installations is prohibited within the OSPAR maritime area (which covers the Brent Field). There are, however, exceptions to this prohibition, including:

  • steel installations weighing more than ten thousand tonnes in air;
  • gravity based concrete installations;
  • floating concrete installations;
  • any concrete anchor-base which results, or is likely to result, in interference with other legitimate uses of the sea.

Given the weight and nature of the structures, it is well within the OSPAR convention exceptions to leave the structures in place, in line with the ability to remove the GBSs, and whether it is safe to do so.

Indeed, it is important to realize that there are instances where the removal of a structure may well pose a greater threat than leaving it in place. Such a threat can be to the environment itself (such as the debate surrounding the rigs to reef program) and safety to those undertaking the removal of the installation. Indeed, in the 2000s the MCP-01 concrete platform, located in the North Sea, was decommissioned. The MCP-01 was also a GBS, containing 386,000 tonnes of ballast. After a consideration of all possibilities for removal, the decision was made to leave the subsea GBS structure in place, with as much of the equipment and materials as practicable removed from the concrete substructure and reused/recycled. The primary reason for this decision was the risk to workers, particularly those involved in demolition, marine operations and offshore diving operations.

Whatever decision the UK government makes regarding the decommissioning plan for the Brent Field, it is essential that considerations beyond environmental groups’ interest be considered. Such a decision on whether to leave the GBSs in place need to also consider the safety of those undertaking the removal and recycling, and whether more environmental harm will be caused by removing a 300,000 tonne structure that has been in place for over 40 years. Whatever happens, the ensuing debate regarding this issue is sure to be interesting.

Blog by Professor Tina Hunter

 

The Health and Safety Implications of Offshore Wind Energy Development: More to it than Meets the Eye

This blog post is by Eddy Wifa a third year doctoral researcher at the University of Aberdeen. His research focusses on the health and safety implications of offshore wind energy development and the significant role both private and public regulation could play in ensuring an appropriate balance between offshore wind energy maximisation and the safety of the workers and other users of the marine space.

This post is about a fundamental problem for offshore wind energy. A critical evaluation of offshore wind energy development through its life cycle reveals that there are significant health and safety risks to both workers and other users of the marine space, as shall be explained below. Therefore the offshore wind energy industry can be categorised as a high-risk industry with the potential for a major hazard. It is my intention that this blog post raises the much-needed awareness of some of the health and safety risks and challenges of the offshore wind energy industry so that necessary regulatory interventions may be considered. This is because although wind energy is considered green and good for the environment, it does not necessarily mean it will be good for the health and safety of workers. Therefore we must resist the temptation of denying that these risks exist, else the situation might just go from bad to worse.

Some examples of hazards  encountered  during the development of an offshore wind farm include:

  • falls from heights,
  • mechanical hazards such as contact with moving parts,
  • blade failures,
  • ice throws,
  • ship collision or men overboard which may occur during marine operations and transportation,
  • electrical hazards, and
  • fire or explosion of turbine or vessel.

Others might include issues relating to manual handling, ergonomics, risk from working with dangerous substances, working in confined spaces, and exposure to noise and vibrations.

While these risks are not exactly new, the fact that they occur in a remote and unpredictable offshore environment makes it more challenging, especially during emergency evacuations.

The UK offshore wind energy industry is developing at an enviable pace with more than 1465 installed turbines, but, unfortunately, we have been experiencing significant increase in accidents in the UK and globally. For instance, the Caithness Wind farm Information Forum (CWIF) reports that there were 1951 wind energy accidents with 165 fatalities since 1970. It is important to add that most of these accidents occurred within the last 8 years when the wind energy industry began to expand. To demonstrate the increase in wind energy accidents, the CWIF states that “as more turbines are built, more accidents occur. Numbers of recorded accidents reflect this, with an average of 21 accidents per year from 1996-2000 inclusive; 57 accidents per year from 2001-2005 inclusive; 118 accidents per year from 2006-10 inclusive, and 164 accidents per year from 2011-15 inclusive”. Despite this increase, CWIF states that these figures represents only ten percent of accidents which implies that they are far from comprehensive. For example, CWIF only has a record of 142 UK accidents, meanwhile the RenewableUK in 2011 reported that  “around 1,500 accidents and other incidents had taken place on wind farms between 2007 and 2011” and this included “four deaths and a further 300 injuries to workers”. This in itself demonstrates a fundamental problem with the availaibility and incomprehensibility of safety data that should assist the industry in drawing lessons. Although efforts have been made to resolve this through the industry’s G+ Annual Health and Safety incident data report, this only started in 2013 and is restricted to member data.

During the early years of my research, my biggest challenge was convincing my audience that offshore wind energy operations are hazardous and could be considered a high-risk industry. I realised that there was an erroneous assumption that since wind is a renewable energy source and as such it is seen as environmental friendly and safe, such a level of safety would apply to its development. I would strongly submit that although wind as a renewable energy source is considered a more environmentally sustainable option when compared to fossil fuels, such considerations have little or no connection with the health and safety implications of designing, constructing, operating, maintaining and even decommissioning of such high-risk installations, particularly in an unpredictable, hazardous offshore environment. It is important to emphasise this because this is the foundational cause of the health and safety challenges of the increase in offshore wind-related accidents. The benignity of the industry does mask the problems and people should be made aware of this. The fundamental reason for this benignty is the absence of volatile oil and gas in offshore wind energy. While this may appear as a valid argument, people quite easily forget that there are several offshore energy related accidents that have nothing to do with oil and gas explosions and spill. An example would be the Alexander Kielland accident where 123 men died after an accommodation platform collapsed owing to structural failures. Furthermore, a detailed functional comparative analysis between offshore wind energy and offshore oil and gas clearly reveals they are both nothing short of two offshore energy industries that share  similarities and synergies.

One reason for the increase in offshore wind related accidents is analysed by Peter Finn, the EHS Manager for GE Energy. He suggests that as larger turbines are installed further offshore, more challenges will arise especially regarding onsite accommodation, the need for better emergency response and the logistics of spare parts delivery. He adds that “this will result in more turbines, more technicians, more transfers and thus an increased risk of incidents”. Another salient cause of these accidents is that the industry currently suffers from a significant gap in the availability of skilled workers. It therefore implies that with inexperienced workers being involved in the processes of constructing and operating offshore wind farms, the likelihood of accidents will increase. This issue is identified in the area of vessel transfer and transportation in general. Steven Clinch, the Chief Inspector of Marine Accident, in a detailed report into the twin accident involving offshore wind transportation vessels stated that owing to the skills gap, the crews that man offshore wind farm transportation vessels are recruited from the fishing or leisure industry, without recognising that skills required for both industries differ. He adds (PDF):

the skills gap is likely to grow as the renewable energy industry moves even further offshore in the future. As such, there is a clear potential for rise in the number and severity of accidents unless action is taken to ensure that vessels’ crews have the necessary competencies needed to operate their crafts safely.

Some industry stakeholders have expressed concerns over the increase in offshore wind energy related accidents. The Environmental Health and Safety Manager for Statoil opines that ‘the number of serious incidents and accidents in the offshore wind industry are too high when compared with offshore oil and gas’. For this reason, she adds that there are significant lessons to be drawn from the oil and gas industry. Despite the prevailing challenges in the offshore wind energy industry, the situation appears to be worsened by the safety culture and attitude of some companies regarding safety. In the words of Andrew Linington, a spokesman for Nautilus:

Operators who apply high safety standards are losing out to companies that cut corners… The situation is frighteningly similar to the boom in North Sea oil in the 1970s. Back then people were warning of poorly enforced standards, but it wasn’t until 167 men died in the Piper Alpha disaster that anything was done to clean up the industry.

I have continuously advocated for the development of offshore wind energy, and this blog post should not be taken to mean otherwise. I understand and appreciate the significant benefits of this energy resource both economically, socially and regarding energy security. I also understand its role is combating climate change and meeting set renewable energy targets. Be that as it may, it is important for stakeholders and the general public to be aware of its health and safety implications as this will guide policy makers and regulators in making an informed decision in solving the challenge of increases in accidents that have been worsened by skills gaps and sparse safety data and information. To resolve these challenges, we must start by acknowledging them.  Unfortunately, some industry stakeholders think the problems are exaggerated. Despite this, I am confident that regulation can play a significant role in this regard and although there is existing regulation regarding offshore wind safety, the ultimate question is whether we have the right type of regulation. That is a question that deserves further study and as such it forms the overall focus of my PhD thesis.

 

Reflections on “Land Reform: Legal, Historical and Policy Perspectives”

This blog post is by Malcolm Combe (Lecturer) and Kieran Buxton (Year 4 LLB (Hons) Candidate, University of Aberdeen). A version first appeared in Issue 177 of the Scottish Planning & Environmental Law journal (October 2016) at page 104.

On 26 August 2016, the University of Aberdeen hosted a conference about one of the hottest potatoes in Scottish politics at the moment: land law reform. The conference, and a related lecture on land reform and the environment the previous evening, brought together stakeholders with a variety of perspectives, experiences and interests, including the Scottish Government and representative groups Scottish Land & Estates, NFU Scotland and Community Land Scotland.

As has been explored on this blog previously, there has been an extensive commitment by the Scottish Government to land reform. The conference allowed speakers and delegates the opportunity to reflect on and critique the developments made under recent legislative reform (most notably in the Land Reform (Scotland) Act 2016, but also via other legislation like the Community Empowerment (Scotland) Act 2015). In addition, delegates heard of continuing implementation of the most recent measures and perspectives on the route the continuing land reform process should take. A comparative panel also brought together analysis of Australian, English, North American and Norwegian perspectives on land reform to provide alternative viewpoints on how different jurisdictions deal with the control, distribution and development of land.

A key objective for the day was to catalyse further collaboration, discussion and research to refine the ongoing development of land reform in Scotland. Historical perspectives, most notably delivered by Professor Ewan Cameron of the University of Edinburgh and the advocate Robert Sutherland, considered why it was that the so-called Scottish land question still resonates today, and allowed delegates the opportunity to reflect on why how far legislative reform has taken Scotland since the Leases Act 1449, a statute that seems a strong contender for the crown of the first land reform statute in Scots law. A blogged version of Sutherland’s presentation is available here.

Fast forwarding to the present day, Fiona Taylor of the Scottish Government set out the government’s position on the implementation of Parts 1-5 of the Land Reform (Scotland) Act 2016 over, approximately, the next six to twelve months. Moving through the 2016 Act sequentially, Part 1, when enacted, will introduce the Land Rights and Responsibilities Statement (“LRRS”). According to section 1(2) of the 2016 Act, the LRRS will be a statement of principles for land rights and responsibilities in Scotland, which there will be a consultation process for before being laid before Parliament. This important and symbolic statement is viewed by the Scottish Government as something of a “scene-setter” for the future of land reform. The further Parts of the Act build on the principle of future land reform that is at the centre of the LRRS’s purpose. Under Part 2, the Scottish Land Commission is established, as a non-departmental body, with the intention of being operational by April 2017. There was some debate about where this Commission might be based, with one suggestion being that it should be located in what might be classed as a more peripheral location in Scotland, but Taylor noted in discussions after her presentation that it would be accommodated within existing Scottish Government estate for cost mitigation purposes and it has now been confirmed that it will be based in Inverness.

One recent headline-grabbing issue in Scotland, and the UK as a whole, relates to transparency of landownership and other assets. Part 3 of the 2016 Act takes some steps in this regard, providing the Scottish Government with the power to require and record information of persons with controlling interests in entities that own or rent land in a Register. An analogy can be drawn with the relatively recent introduction of the new “Persons with Significant Control” Register in the context of company law. (Another analogy might be drawn with letting agent regulation.) These developments are reflective of increased public concern – especially following the “Panama Papers” scandal – as to who holds power in important social and economic assets. Certain points of detail are still outstanding as regards Part 3, which were noted by Taylor as including:

  • whether this Register is to constitute a new standalone one under the auspices of the Registers of Scotland (as the relevant Minister, Dr Aileen McLeod, suggested in Parliament it might, at cols 63 and 64 of the Stage 2 Official Report) or whether it will become incorporated into the Land Register;
  • the specifics of the information required by those with controlling interests;
  • an appeal process as to the information held; and
  • any exemptions (perhaps relating to privacy, a point analysed in this post by Anna Berlee and Dr. Jill Robbie).

A consultation was launched on 11 September 2016 in relation to the content of the Part 3 Regulations. It closes on 5 December 2016.

Part 4 of the 2016 Act obliges the Scottish Ministers to issue guidelines on engaging communities in the context of decisions taken in relation to land. It is in the early stages of implementation. The ultimate objective of this Part was noted as improving the collaboration of multiple, cross-spectrum stakeholders in maximising the effective use of land in Scotland. Further external workshops for external stakeholders will be arranged for the coming months as part of wider engagement in the drafting of the guidance. The final topic considered by Taylor was Part 5 of the Act, the community right to buy land to further sustainable development. This is unlikely to be brought into force until late 2017 at the earliest. This is due to the government recognising the introduction of other community rights to buy, such as the right to buy abandoned, neglected or environmentally mismanaged land, by the Community Empowerment (Scotland) Act 2015, will take time to settle in with the communities for whom their use is intended.

Another measure in the 2016 Act is the re-introduction of sporting rates under Part 6, which ends a tax exemption enjoyed by this land use since the mid-1990s. Katy Dickson, of Scottish Land & Estates (SLE), took the opportunity to critique the reintroduction on policy grounds, opining that the policy drivers for reform – tax-raising and fairness – had not been made out. Dickson also noted the practical difficulties in implementing the legislative provisions, particularly in the context of valuation. With the large land area of Scotland afforded to sporting activities, taken together with the provisions of the 2016 Act relating to deer management (in Part 8), the new legislation could have a real impact on Scotland’s environment.

As regards the continuation of the land reform debate, a panel with representatives from Community Land Scotland (CLS), SLE and NFU Scotland (formerly known by the longer moniker The National Farmers’ Union of Scotland)) offered views as to how the ongoing debate should progress. For CLS, it was noted there have been two significant, positive changes to the narrative of the debate during recent years that have changed the debate’s nature. Firstly, following on from the Final Report of the Land Reform Review Group report, the recognition that land is a finite and crucial resource to be used in the public interest for the common good, and a gradual shift from the prior view that land was a private matter where the public interest was of relative unimportance. The other change has been the progressive acknowledgment of wider human rights considerations (such as those found in the International Covenant on Economic, Social and Cultural Rights) beyond the landowner’s right to peaceful enjoyment of property under Article 1, Protocol 1 of the European Convention on Human Rights, in light of the broad social, economic and indeed environmental importance of efficient and fair land use. In this connection, looking ahead, CLS has unanswered questions on how to actively discourage concentration of landownership into the hands of few, with direct methods such as Compulsory Sale Orders or indirect measures such as tax reform being possible ways of addressing these.

Comparatively, the perspectives shared by SLE offered the view that there is nothing inherently wrong with large landowners if they are responsible. A concern was raised about the potential for the LRRS to be framed so as to focus mostly on the Landowners whilst neglecting the responsibilities of other stakeholders (e.g. access takers). While some might note such a framing of responsibilities would properly reflect the rights a landowner enjoys (and it can also be noted that access takers are already beholden to rules about responsible access, fortified by the Scottish Outdoor Access Code), SLE’s concern about a potential responsibilities imbalance was echoed by NFUS, who highlighted the existing, extensive legislative frameworks that already constrain landowners. Second was the divisive nature of the debate (the term “land reform” itself was noted as being something that immediately divides parties by reference to their respective interests) and method of achieving existing objectives. Looking at one flagship, existing objective, a flaw identified with the one million acres in community ownership objective is that the attainment of this might require some kind of compulsion, which could jeopardise collaboration between different stakeholders (such as the protocol for voluntary transfer agreed by SLE and CLS) and continues the polarising landowner/community narrative. In this regard, NFU Scotland expressed concern that the redistributive aspects of land reform could pose a threat to activities that already contribute to the rural economy. Separately, NFU Scotland welcomed the creation of the Scottish Land Commission, and particularly satisfaction with the creation of the Tenant Farming Commissioner office, viewing this role as one that can improve relations and collaboration between landowners and tenants.

Further panels at the conference focused on the landlord and tenant relationship and the law of succession. Whilst these may not be directly related to planning and environment law (the focus of the original article in SPEL), the tangential impact of reform in these areas (particularly in terms of how they impact on the crofting or agricultural holdings sector) could, in fact, have a real impact on the way land is distributed and/or used in Scotland.

Of interest to planners was a presentation by Bob Reid, which looked at the multifarious factors that have contributed to the housing issues the UK is facing at the moment. These are too multifarious to consider in any detail in this short note, but the rise in reliance on private sector development was highlighted as a crucial factor.

For those interested in the environment, the lecture on 25 August by Calum Macleod, Jayne Glass and Malcolm Combe sought to consider how much of a driver environmental considerations were for land reform, and the impact the various community and tenant rights of acquisition could have on sustainable land use in Scotland, in part building on a recent Environmental Law Review article by one of the authors of this post (open access version here). To oversimplify that, if current landowners are not looking after the environment, someone having a right to acquire from them might play a role in either: encouraging a landowner to look after the environment to try to stave off a land reform event; ultimately improving the environment after a forced sale, as the environment is something that features in the equation for any reallocation of ownership to someone else. Wider policy issues were also considered by Rob McMorran, of Scotland’s Rural College, to provide the context for some important Scottish Government commissioned research into matters like the scale of landownership and the drivers for land use decisions made by private, NGO and community landowners.

These proceedings at Aberdeen provided an opportunity to bring together individuals and organisations that will play a role in the next stage of Scotland’s land reform journey. Whilst land reform will invariably involve a degree of unsettlement of existing positions, it is hoped that the collaborative spirit of this event and this short write-up of it can be channelled into any future developments, with the objective of achieving better solutions for as many stakeholders as possible in relation to the implementation of existing reform and contributing to reform that is yet to occur.

A collection of tweets from the event is available here. Some personal reflections of Malcolm Combe on the event are available here. The authors would like to thank all involved with SPEL and The Knowledge Exchange for agreeing to the publication on this blog of this amended version of the article first hosted by them.

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Proceedings at the University of Aberdeen on 26 August 2016