1981 was a momentous year for marine nature conservation in the UK. The enactment of the Wildlife and Countryside Act meant that, for the first time, it was possible to protect marine habitats through the designation of Marine Nature Reserves (MNRs). What should have marked the beginning of a success story for marine protection, however, led to years of frustration and eventually fizzled out. Now, over 25 years later, Parliament is again debating possible legislation for marine protected areas. I am one of the few people who have been involved in marine conservation law and policy over that entire period, and it is perhaps for that reason that I do not share the enthusiasm with which others have greeted the Bill. I am all too well aware that there are many vested interests that do not recognise the extent of the harm we are causing to marine biodiversity, and do not appreciate the importance of marine habitat protection.
The Marine and Coastal access Bill (the Bill) has completed its passage through the House of Lords and is now working its way through the Commons. As presently drafted, Part 5 on Nature Conservation includes provision for the designation of Marine Conservation Zones (MCZs). The question is whether the MCZ designation will prove more successful than the MNR, which it is to replace. There is a widely held view that the MNR legislation has not been effective – despite the fact that there are two MNRs (Lundy and Skomer) in Great Britain and one (Strangford Lough) in Northern Ireland. Attempts to designate MNRs at other sites, including Menai Strait in Wales and Loch Sween in Scotland, failed because of irreconcilable public objections.
To summarise the position, the general view is that the MNR designation failed because weak legislation was made even weaker by a lack of commitment to nature conservation on the part of Government. Many public sectors are involved in marine management, including fisheries, transport, telecommunications and energy, and it has been said that every Government department had a potential interest in whether or not a particular site was made an MNR. Similarly, a wide range of private interests, not least recreational and sporting groups, were likely to be affected by designation. Government’s approach to reconciling potential conflicts of interest was to require its nature-conservation bodies (first the Nature Conservancy Council, and then the equivalent bodies for England, Wales and Scotland) to seek consensus on their proposals for MNRs between all stakeholders, and not make a formal proposal for designation until objections had been resolved. This approach was followed, despite the fact that the 1981 Act contained provisions for holding a public inquiry into designation, where such objections could be aired formally. Yet, while the management powers for an MNR, once designated, were heavily constrained under the legislation, the Act made no reference to any factors other than scientific interest as grounds for designation. So, if this legislation failed, is it likely that the proposed MCZ will fare any better? Well, yes and no.
The reason I say ‘no’, is that there is now reference to socio-economic factors as part of the designation process. According to the Bill as currently drafted, MCZs may be designated for the purpose of conserving marine flora or fauna, marine habitats, and features of geological or geomorphological interest. This is broadly consistent with the purpose of the MNR, the main difference being that MCZ designation must be accompanied by a statement of the conservation objectives for the site. The inclusion of the following clause, however, would seem to strengthen the hand of stakeholders opposing designation:
‘In considering whether it is desirable to designate an area as an MCZ, the appropriate authority may have regard to any economic or social consequence of doing so’. (The appropriate authority is the Secretary of State or the equivalent in devolved administrations). This wording remains unchanged from the Bill as originally put before the House of Lords and was also included in the Draft Marine Bill issued in April 2008. The explanatory notes to the draft Bill state that this provision ‘will be especially relevant where there is a choice to be made between alternative sites of similar conservation value’.
Government thinking on this issue was set out in the consultation document on the marine Bill issued in March 2006, where it is stated that ‘in many cases there will be a choice between a number of areas identified as potential sites, particularly for the protection of representative species and habitats’. Socio-economic impacts are included in the list of approaches that could then be used to distinguish between sites, in order to select ‘the best sites’.
The Government seems to be saying that, where there is only one suitable site, there will be no need to consider other factors, such as socio-economic impacts. This is why the Bill refers merely to the possibility of having regard to social or economic factors. As worded, however, this is not clear. I think it would be difficult for Government not to take these factors into account, especially given that the Bill goes into considerable detail on the procedures that may be used to allow representations about designation orders to be heard.
I have no issue with the notion that, where there are a number of sites of equivalent nature-conservation interest (although I doubt our ability to assess this equivalence), it is sensible to use criteria to assist in the site selection process. I do not think it is necessary to designate all suitable sites, because the MCZ is not the only type of marine protected area available. The MCZ designation is going to be additional to the suite of marine Special Areas of Conservation (SACs) designated under the EU Habitats Directive. These are designated on scientific criteria alone, and the European Court of Justice has emphatically stated that socio-economic considerations are not to be taken into account in their selection.
My concern is more to do with the way in which Government intends to obtain and use information on socio-economic factors. Under the OSPAR Convention for the protection of the marine environment of the northeast Atlantic, the UK is committed to identifying and designating a network of well-managed Marine Protected Areas (MPAs) for the protection of special, threatened and representative species and habitats. The MCZ designation is designed to enable Government to meet these obligations. If there really is a commitment to create an ecologically meaningful network, as opposed to a series of individual designated sites that may or may not relate well one to another, it will be essential to consider the selection of sites with the network in mind. Social and economic factors may well be an important consideration in designing such a network, including decisions on how many sites there should be, how large they should be and where they should be located, but it is the socio-economic impact of a site relative to another that is of interest, not its absolute impact.
Natural England has already embarked on Finding Sanctuary, a four-year project to design a network of sites in southwest England, and is working in partnership with a range of stakeholders. In Wales, where the Welsh Assembly Government (WAG) has decided that it intends to use the MCZ measures to create a network of Highly Protected Marine Conservation Zones, the plan is to seek socio-economic information from stakeholders as part of the process of site selection. It is likely that the Wales Maritime and Coastal Partnership (WCMP) will be asked to assist in providing stakeholder input to WAG on the site selection process.
So what is wrong with involving stakeholders through a partnership to ensure that socio-economic factors are taken into account in the site-selection process? Surely it is appropriate to seek information about socio-economic impacts from the people who are most likely to benefit from or suffer from a designation? If it were simply a matter of obtaining and collating information, I would agree, but I think there is a real danger that stakeholders will get the impression that they have power to influence the selection or otherwise of a particular site.
The designation of a site as an MCZ is bound to lead to some sort of control over human activities in the site area. Not surprisingly, this may be viewed as a removal of existing rights and a constraint on activities. If there is a possibility that a site may be spared designation because another site would have a lesser negative socio-economic impact, there will be every reason for stakeholders to maximise the expected impact at the first site. This will be especially likely in the case of the highly protected MCZs proposed in Wales, because the implication here is that these areas may become closed areas where socio-economic activities are more or less prohibited.
Whether this would, in fact, be necessary is not the point in issue. The perception is that it might be, and this gives every incentive for stakeholders – even those broadly in support of marine nature conservation – to try to avoid the designation of areas where they have socio-economic interests. Exactly the same thing happened with MNRs, where stakeholders who had lived happily with a voluntary reserve were vehemently opposed to proposals to make the designation statutory, even though it would have had little if any effect on the way they used the area.
At a recent partnership meeting of the WCMP, several people expressed concern at the scale of the task of engaging with stakeholders on the issue of marine protected areas, even if the purpose is only to ensure that the decision-makers are fully informed. There may even be an expectation of deeper involvement in the process, as appears to be happening with the partnership approach adopted by the Finding Sanctuary project.
In conclusion, then, I fear that, despite Government’s commitment to marine protected areas, the process of designation may be just as fraught with difficulty as was the MNR process. However, there is some reason for remaining optimistic that we may actually achieve more than a handful of designations.
The reason for my optimism is the Government’s commitment to create a network of MPAs under international obligations. I have little doubt that, assuming the Bill manages to obtain Royal Assent before the General Election is called, a network of MCZs will be in place to meet OSPAR commitments, not long after the due date of 2010. Whether it will be the most effective network in ecological terms is another matter, however, and – even more worrying, perhaps – there must be real concerns as to whether the designation process will serve to bring conservationists and users together or will drive a wedge further between them. No doubt time will tell…
