Scotland’s Marine Protected Areas (MPAs) have been in the news recently following a Greenpeace investigation claiming the Government allows these areas to be exploited by some of the largest trawlers operating in our seas.
The Scottish Government respond to these accusations by claiming their ability to establish protections is limited by the EU Common Fisheries Policy in offshore MPAs (those outside 12 nautical miles from the coast) and must go through an EU process that has been disrupted by the complicated implications of Brexit.
It is our view that Ministers are cherry picking which rules they follow. We set out details in this blog showing how Ministers have already broken the laws designed to protect these sites, following neither the EU or domestic rules when it has come to deregulating activities in a protected area.
Our seas have been in decline for some time, notably with stock sizes and catches of key fish stocks such as cod falling very rapidly in the late 1990s. Around the 2000s measures were taken to try to recover them. One measure was to designate areas to protect areas where they spawn. Trawling was banned in an area informally known as “the Windsock” (due to its shape) because of the large number of female cod found in the area. It’s a relatively shallow area of sea where the sandy, gravelly seabed provides ideal spawning grounds for fish such as cod, haddock and others. Similar measures also seemed to work other areas in the North Sea for some time but were later repealed.
Acknowledging that the declines were happening across the entire marine ecosystem and not just the fish stocks, Westminster and Scottish Parliament subsequently passed legislation requiring that Ministers “protect, and where appropriate recover” the health of the sea and designate a network of marine protected areas.
The Scottish Government designated 30 Marine Protected Areas back in 2014 using powers included in the Marine (Scotland) Act, amongst these was the West Shetland Shelf Marine Protected Area (MPA) covering an area of sea around the same size as the Cairngorms National Park. This MPA covered the same area as the ‘Windsock’. Because trawling was already banned here, the West Shetland Shelf MPA was seen as an ‘easy win’.
Scottish Marine Protected Areas in red, restrictions on bottom trawling in green
Designation itself does not mean restriction (there are nuances around this you could debate but we’ll leave that for another time); it just means that Ministers must ensure that the “structures and functions, quality and the composition” of “offshore subtidal sands and gravel” habitat in the MPA are “healthy and not deteriorating, and their extent is stable or increasing”.
However, Ministers have an obligation to follow the scientific advice given to them, and JNCC’s advice stated that if the windsock trawl closure were to be revoked “specific management actions would need to be considered to ensure the offshore subtidal sands and gravels achieve their conservation objectives”. Because the Windsock ban would end in 2018-19, Marine Scotland took this advice and started considering what alternative protection would be needed during meetings held in 2015.
These proposals were refined further and presented to EU Fisheries Management groups in 2016. A consultation was held in late September and a workshop in October 2016. The proposed management of the site looked like the map below, with trawling banned in the area in blue. As can be seen, some concessions were made, but overall a large area of protection was provided.
Given Marine Scotland were attempting to deliver this management within the EU Common Fisheries Policy, the June 2016 Brexit vote clearly will have had significant ramifications for the discussions. That said, negotiations continued after the vote, and notably the following timeline was set out in April 2017 nearly a year afterward.
This timeline would have seen the MPAs protected by 2018. However, it was not met. This meant that, when 2019 and the ‘sunset clause’ repealing the Windsock came and went, the Government had no replacement protection in place.
When asked in 2019 what action it had taken to progress conservation within the West Shetland Shelf MPA, the Minister answered with the following.
This clearly sets out that Ministers will not act until the relationship with the EU is resolved. Whilst the constitutional politics of Brexit/EU relations are clearly very important, we can find no law that suggests they supersede the legal obligations requiring Scottish Ministers to protect the site and the fact that workshops and negotiations were ongoing in 2017 appears to support that position.
Moreover, there are several options available to Scottish Ministers which do not require the EU. For example, Article 13 of the Common Fisheries Policy states that “On the basis of evidence of a serious threat to the conservation of marine biological resources or to the marine ecosystem relating to fishing activities in waters falling under the sovereignty or jurisdiction of a Member State that require immediate action, that Member State may adopt emergency measures to alleviate the threat”.
Ministers can also add conditions to fishing licenses as they have already done in the North West Sule no trawl zone which is adjacent to the West Shetland Shelf MPA.
They did none of these things. Instead of acting to protect the site, the Minister stated in Parliament that “Marine Scotland facilitated discussions between a number of fisheries associations, who have reached a voluntary agreement which will restrict trawling to certain zones within the area”.
When we asked to see agenda, minutes or any other documents associated with these meetings, Marine Scotland declared that there were none. In short, this was a meeting held in secret. Interestingly, this fails not only Government legal duties under the Marine Scotland and Marine & Coastal Access Act which stipulate a process for agreeing management of MPAs, but also obligations under the Aarhus Convention to ensure public participation in environmental policy, and also the very Common Fisheries Policy requirement for cooperation which was used as the excuse for why the site remains unprotected in the first instance.
Importantly, the “voluntary agreement” was also much weaker than that presented in public consultations and above. The “voluntary” measures allow trawling through most of the site and across most of the MPA’s protected habitat.
Sadly those involved in “volunteering” the management also have a poor track record when it comes to sticking with their “voluntary measures” – in the North Sea a similar process was undertaken in the Central Fladen MPA, but after only a year was found to have been breached 379 times by 63 vessels.
Regardless of whether “voluntary” measures are appropriate, they did not stop the West Shetland Shelf MPA from being damaged. When asked about the condition of the site after the repeal of the Windsock closure, the Minister answered the following,
This is in itself bad – no one wants to hear of yet more damage to our seas, least of all our protected areas. But perhaps more importantly, it also shows that the Minister, and Marine Scotland underneath, have failed to comply with their legal duty to “exercise [their] functions in the manner which the authority considers best furthers the conservation objectives stated for the [MPA]; …[or] which the authority considers least hinders the achievement of those objectives”.
Remarkably this is not the only breach. Section 126 sets out that Scottish Ministers must “[notify JNCC] if there is or may be a significant risk of [an act they have allowed] hindering the achievement of the conservation objectives stated for the [MPA]”, wait until they get a response and halt activities if JNCC says so.
However, when we asked JNCC to confirm whether or not they received any notification we received the following
So in short
- Scottish Ministers have designated a network of Marine Protected Areas and continue to add to it.
- Some of these areas have no restrictions in place to stop damaging fisheries activity.
- One of the few sites to have any protection lost it in 2019 which meant bottom trawling would begin within it for the first time in 18 years.
- The scientific advice was that management measures would be needed to protect the habitat in that area and ensure the conservation objectives were not hindered.
- Scottish Ministers did not act in accordance with this advice and allowed fishing companies to begin bottom-trawling in the area.
- By omitting to act to further conservation objectives Scottish Ministers, on the advice of officials in Marine Scotland, breached their legal duty under s.125 of the Marine and Coastal Access Act.
- By omitting to notify JNCC of the hindrance of conservation objectives, Scottish Ministers, and Marine Scotland, breached their legal duty under s.126 of the Marine and Coastal Access Act.
It’s a sad fact that the network of MPAs designated by Scottish Ministers has involved a suite of paper parks for six years. The latest addition of a Deep Sea marine reserve – the West of Scotland MPA – only adds to that. Without practical management these MPAs will do nothing to change the fate of our seas. What we have set out here is that the Government are not only failing to progress marine protection, they are allowing protection to be removed. This is happening even when it breaches the legal duties to which they are bound.
After climate change, Scottish Government’s Marine Atlas 2010 identifies fishing to be the biggest widespread impact on our marine environment. We need strong leadership to find a way forward for the long-term health of our waters and the communities that rely on them. Sadly what we have seen here from Scottish Ministers is the facilitation of boom-and-bust fishing and a failure to even comply with the basic rule of law.