Defra e-mail clarifying whether highly protected marine conservation zones can be established in UK seas out to 200 nautical miles

We publish here advice dated 20th July 2009 supplied to us by the UK Government (Defra) which clarifies whether highly protected marine conservation zones (i.e. prohibition of fishing) can be established in UK seas out to 200 nautical miles under the UK Marine and Coastal Access legislation and EU Council Regulation 2371/2007.
It is interesting to note that the UK Government has never sought to implement Council Regulation 2371/2007 with respect to the establishment of conservation areas which prohibit fishing for the purpose of rebuilding fish stocks or to protect marine biodiversity.

Dear Stephen,

Thank you for your email on the 2nd July regarding Marine Conservation Zones.

You asked: “Firstly, we are aware that MCZs will be established within the 12 nautical mile limit. Defra’s Draft guidance on selection and designation of Marine Conservation Zones (Note 1) makes this clear. However will MCZs, as distinct from EU Habitats Directive sites, be designated beyond 12 nm and out to 200 nm?”

Yes, sites can also be designated between 12nm and 200nm in order to contribute to the creation of the network of sites. These are separate from the designation of sites under the EU Habitats Directive.

You asked: “Secondly, we are aware that a MCZ designated within 12 nm may be “highly protected” in terms of its conservation objectives. This means that such a MCZ can exclude all commercial and recreational fishing. Whilst such a conservation objective in the case of a “highly protected” MCZ will apply to UK citizens and fishermen, will it also apply to foreign fishing vessels and fishermen? In other words, what is the jurisdiction of MCZ conservation objectives within 12 nm and will these conservation objectives apply to all persons regardless of nationality and registration, particularly with regard to fishing?”

Regarding fishing, the UK only has complete control from 0-6nm, as from 6-12nm any State with historic fishing rights in this area is able to fish, and between 12-200 nm the Common Fisheries Policy is the legislative tool.

However, the Marine and Coastal Access Bill does give the Inshore Fisheries and Conservation Authorities powers to introduce fisheries byelaws from 0-6nm. Only UK vessels can fish in this zone and is therefore not open to foreign fishing vessels. Any fisheries byelaws used to restrict fishing will therefore apply to all vessels in this area. Any restrictions to Member States with historical fishing rights in the 6-12nm zone would need to be negotiated with affected member States through the Common Fisheries Policy.

Activities other than fishing can be restricted by the introduction of MMO byelaws up to 12nm, or through the refusal of development licences or inclusion of conditions in licences. MMO byelaws are designed to account for unregulated activities, which will mostly be of a recreational nature. MMO byelaws introduced within 12nm would apply to all persons, regardless of nationality.

You asked: “Thirdly, if a MCZ is designated beyond 12 nm and has “highly protected” conservation objectives (i.e. excludes fishing), will these conservation objectives apply to all persons of whatever nationality and registration, or will the conservation objectives only apply to UK citizens?”

From 12-200nm, fishing activity can be restricted through the Common Fisheries Policy by negotiating with the affected Member States, so that the domestic legislation under the Sea Fish (Conservation) Act 1967 can be extended to foreign vessels. In this way we can bind all Member States into the actions that need to be taken. We cannot guarantee their agreement, but designation of MCZs will help us to make the case for such measures, not least because other Member States may also need to seek protection for marine protected areas which they designate to comply with the EU’s Marine Strategy Framework Directive. Where we do secure such agreement, and also restrict other potentially damaging activities, MCZs in this area could be considered to be highly protected.

You asked: “Fourthly, it is our understanding that “highly protected” conservation areas can be established for the protection of fish stocks under Council Regulation (EC) No. 2371/2002, and that such designation can be made in UK seas between 12 nm and 200nm. Has any such designation ever been made under this EC Regulation and, if so, where are the facts pertaining to such designations recorded? We assume that a designation made under Regulation 2371/2002 would apply to all persons regardless of nationality and registration — is this correct?”

There is a number of Articles under EC2371/2002 (Article 4, 8 and 10) which work in different ways to govern the marine environment. None specifically allows for Member States to use them for the prevention of fishing without pre-notification to the Commission. I am not aware of an example of UK use of the provision under Article 8 of regulation 2371/2002. Obviously there is a facility to close areas by various means through EU legislation by agreement and adoption through Council. Restrictions would apply to all Member States.

Defra continues to work to reform the Common Fisheries Policy and wishes to see it give much greater weight to the need to protect the marine environment, but in the interim negotiations with affected Member States and the Commission are needed for any fishing restrictions.

Yours sincerely
Simon Crabbe
20-7-09
Marine Bill Nature Conservation, Licensing & Enforcement
Defra, Area 2C
Nobel House
17 Smith Square
London SW1P 3JR
Phone: 020-7238 4328