MARINET : Marine Reserves : HPMRs and the Marine Act

Highly Protected Marine Reserves, also known as highly protected marine conservation zones, are not included in the Marine and Coastal Access Act 2009.

Highly Protected Marine Reserves (HPMRs) are areas of the sea where all human activity that is likely to be damaging to the marine life and the marine ecosystem within the area's boundaries is forbidden. HPMRs are almost universally recommended by marine scientists and experts as the most important conservation tool amongst those available for marine management, and their effectiveness in restoring marine biodiversity is incontrovertibly documented. Indeed, HPMRs are one of the central features of the ecosystem-based approach to marine management (see MARINET article on the ecosystem approach www.marinet.org.uk/eatmm/definition.pdf) and have been recommended as an important marine management instrument for the rebuilding of commercial fish stocks, most notably in the case of the UK by the Royal Commission on Environmental Pollution in their 25th report, 2004 (www.rcep.org.uk/reports/index.htm#25_marine).

In the case of the Marine and Coastal Access Act, the UK Government has repeatedly claimed that it recognises and believes in the importance of Highly Protected Marine Reserves, but has consistently refused, both during the drafting of the legislation and during its passage through Parliament, to include HPMRs in the text of the Act. The UK Government has claimed that to create highly protected areas would create a "two-tier system" that differentiates between reserves where a full range of human activities may and may not be permitted i.e. creating "strong" and "weak" reserves, and that this distinction is undesirable. At the same time the UK Government has claimed that highly protected areas can and will be created by means of the conservation objectives which govern each protected area so that where necessary all human activity will be forbidden and, consequently, highly protected areas do not require to be recorded per se in the text of the legislation.

However the reality is that if HPMRs are not mentioned in the legislation, they do not possess any legal standing in law. This is a commonly accepted legal axiom which states that if a matter or subject in not mentioned in the legislation, then it does not exist in that legislation.

Accordingly MARINET has consistently tried to introduce, with the support of parliamentarians, an amendment to the legislation which would have stated that HPMRs are part of the conservation powers in the Marine and Coastal Access Act.

MARINET's first attempt was whilst the legislation was in the House of Lords in the early summer of 2009, and the Liberal Democrat peers proposed at Committee Stage that the legislation be amended as follows (amendment in bold):

Section 113.

Section 114.

Whilst the move to amend the legislation to include highly protected Marine Conservation Zones (marine reserves) received the support of Liberal Democrat and Crossbench peers, the Conservative peers accepted the Government's argument that because the Government believed in HPMRs and because the Government believed it already has the powers to create HPMRs via the conservation objectives for MCZs and did not want to create a "two-tier system", there was no need for an amendment which placed highly protected marine reserves on the face of the legislation. Thus lacking the support of the Conservative peers, the Liberal Democrats withdrew the amendment without a vote. The matter was not debated again by the peers, and the opportunity for amendment of the legislation now passed to its passage through the House of Commons later in the summer of 2009.

In the space between consideration of the legislation by the House of Lords and the House of Commons, MARINET met with the retailer, The Co-operative Society, who have an ethical policy relating to the sustainability of commercial fisheries and who expressed to MARINET their desire to see HPMRs contained in the legislation.

MARINET explained that HPMRs had lacked majority support amongst the political parties in the House of Lords, and that therefore rather than try to introduce the same amendments in the House of Commons asking for the creation of highly protected MCZs, it might be more politic to use a different form of words and to ask for MCZs to be designated so that they could protect "the marine ecosystem as a whole" i.e. the purpose of a HPMR, without actually using the phrase "highly protected" which had already been rejected in the House of Lords by the two main political parties (Labour and Conservative).

However, The Co-operative Society believed that the term "highly protected" needed to be in the legislation and that the section to amend was the one dealing with the creation of a network of MCZs. Thus the amendment (in bold) would read:

Section 123 — Creation of network of conservation sites

The Co-operative Society advised that it was prepared to put its resources behind the tabling of this amendment and that it had the necessary contacts amongst Members of Parliament. It also advised that it was working in conjunction with the Marine Conservation Society on the adoption of highly protected sites, and believed that Greenpeace shared the same objective. Therefore the advice from The Co-operative Society to MARINET was that The Co-operative Society would be prepared to assemble an alliance of these four parties (The Co-operative Society, Marine Conservation Society, Greenpeace and MARINET) which would result in a joint letter signed by all these four parties being sent to all members of the UK Government's Cabinet calling for this amendment to the legislation, and that the amendment would be tabled at the House of Commons Report Stage in October 2009.

On this basis, MARINET agreed to support The Co-operative Society in this endeavour and MARINET undertook to ask the Marine Conservation Society and Greenpeace to support this amendment to Section 123 (as specified above) along with the joint letter to the UK Government Cabinet. As a consequence, the Marine Conservation Society and Greenpeace were approached and they both agreed to the Section 123 amendment and the joint letter to the UK Government Cabinet was sent.

At this juncture, the Wildlife and Countryside LINK to which the Marine Conservation Society and Greenpeace belong (the LINK is an organisation which brings together environmental organisations in the UK, with the aim of maximising the efficiency and effectiveness of the environmental voluntary sector through collaboration, see www.wcl.org.uk) informed MARINET that the amendment to Section 123 (as specified above) had always been a LINK amendment, that the LINK would be tabling it in its name, and that it would not be a voting amendment i.e. it would not be pushed to the vote in the House of Commons by the MP who tabled it and that, therefore, it was merely a device to try to secure a concession from the Government. MARINET was advised by LINK that the concession being sought was a statement by the Minister during the Report Stage debate that the Government believed in highly protected sites, although the legislation would not be amended to this effect, and that this statement by the Minister would be recorded in Hansard.

MARINET took legal advice on the worth of such a statement by the Minister during the Report Stage debate, and whether such a statement would have legal force if the legislation had not been amended to this effect. The advice received, from two different legal sources, was that such a statement would have no legal force and was, therefore, essentially worthless.

MARINET consulted with The Co-operative Society and were advised that The Co-operative Society and the Wildlife and Countryside LINK (i.e. including the Marine Conservation Society and Greenpeace) were now of a like mind on this matter, and that the amendment to Section 123 as proposed would no longer be a voting amendment. The Section 123 amendment would be tabled by Angela Smith, Labour MP for Sheffield Hillsborough.

Accordingly, MARINET advised The Co-operative Society and the Wildlife and Countryside LINK that MARINET was no longer a party to the proposed amendment to Section 123, and would consider its own independent options.

At this juncture MARINET approached Katy Clark, Labour MP for North Ayrshire and Arran, with whom MARINET had developed a working relationship when the Bill was in its early stages of development. Katy Clark had assisted a voluntary environmental group in her constituency, the Community of Arran Seabed Trust (C.O.A.S.T.), in establishing a highly protected marine area in Lamlash Bay, Arran, see www.arrancoast.co.uk

Katy Clark MP agreed to support MARINET in an amendment to Section 117 concerned with the reasons and grounds for the designation of MCZs. The amendment (in bold) read:

Section 117: Grounds for designation of MCZs

Apart from the difference in wording [the term "highly protected" was not to be used; however protection of the marine ecosystem as a whole is a working definition of the term "highly protected" and encapsulates the essence of the ecosystem-based approach to marine management], the amendment to Section 117 differed importantly from the amendment to Section 123 in that it simply placed a power and not a duty upon the Secretary of State to create HPMRs.

Thus this amendment negated the argument, advanced by opponents of HPMRs in earlier stages of Parliamen's consideration, that an amendment to create HPMRs obliged the Government to create HPMRs and forced them into a "two-tier" system. Under the Section 117 amendment, the Government would simply have a power to create HPMRs which could be used by the Government at its complete discretion, and without obligation. At the same time, HPMRs would be in the text of the legislation and thus have legal standing if ever required.

On this basis the Conservative and Liberal Democrat front benches, who had been ambivalent about supporting the inclusion HPMRs ever since the House of Lords Committee Stage decision not to go for this option, decided that they would support the amendment. Thus, along with a number of Labour backbench MPs, the amendment to Section 117 of the Report Stage of the legislation was debated and put to the vote in the House of Commons on 26th October 2009 (see, Hansard record). The Government maintained its opposition to the amendment, but had to exercise its Whip in order to defeat the amendment by 158 votes to 246.

The Minister who had conducted the Government's case on 26th October, Huw Irranca Davies, Labour MP for Ogmore, wrote to MARINET on 11th November 2009 to explain the Government's position in this matter. We reproduce this letter of 11th November below:

MARINET observes that the Minister's reply is noteworthy on the following counts:

In respect of the first point, MARINET simply restates what it has said to the Minister and the Government all along : if you believe in HPMRs, then give them a clear legal identity and include them in the text on the legislation. Failure to do this means a failure to give highly protected areas a clear legal identity, and will compromise their deployment and use.

Accordingly, MARINET believe that the UK Government, and all those who have failed to support HPMRs being incorporated into the text of the legislation, have made a serious error of judgement and denied our seas a route to recovery which is acknowledged to the best route by nearly all marine scientists and experts.

With respect to the second point, MARINET believes, as did the Royal Commission on Environmental Pollution in their 25th report, that highly protected areas are the essential marine management tool required to rebuild our commercial fisheries. The UK Government says that all commercial fisheries beyond territorial limits (effectively 6 nautical miles when applied to fishing) are under the jurisdiction of the European Union and its Common Fisheries Policy (CFP), and therefore the Government cannot use MCZs or highly protected areas for this purpose. Whilst the CFP does apply to all UK seas from 6 to 200 nautical miles, it does not apply to UK seas within 6 nautical miles, so the UK Government can use highly protected reserves in order to rebuild British commercial fish stocks in inshore waters up to 6 nm if the Government has the will to do so. Also, if the Government had created HPMRs in the text of the legislation it could now have gone to the EU and argued that the Common Fisheries Policy needs reform by means of HPMRs, as the Royal Commission had argued and recommended in 2004, thus enabling the UK Government to demonstrate both its case and its determination to the EU by the fact that it had taken such powers in the Marine and Coastal Access legislation — but, of course, the UK Government did not take such powers.

So, the UK Government has done nothing in the legislation to deliver HPMRs. Indeed now that the Marine and Coastal Access Act exists, the measures involving HPMRs are conspicuous only by their absence. By failing to legally create HPMRs, the Government appears to have no will to fundamentally reform the management of fish stocks in UK seas, or to rebuild these fish stocks so that they will be there for future generations.

The UK Government says it believes in the ecosystem-based approach to marine management but when put to the test, as in the Marine and Coastal Access Act, it has done little to seriously implement this ecosystem approach.

This is a huge missed opportunity. Therefore the campaign for Highly Protected Marine Reserves must continue. Let us hope that all those who say that they believe in highly protected areas will shortly do as they say, and prove that their actions measure equally with their words.

The future wealth and biodiversity of our seas is now at stake. This missed opportunity must be regained soon. The consequences of failing to do so are too woeful to contemplate. Yet that is what has happened elsewhere, witness the fate of the Great Banks (see here) and Georges Bank (see here) fishery off the Atlantic coast of North America.

It is time to learn the lessons, and to change. The hour, the day and the era of the ecosystem-based approach to marine management has arrived. Let us recognise this, and say "all our seas are protected now" ; and thus if anyone wants to exploit them for commercial gain, whatever that gain maybe, it must be proved that that such exploitation is sustainable. If not, it simply does not happen.

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