MANOS LIBRES

As stated above in section 5.1, s123 (4) of the MCAA requires that MCZs are to be designated in such a way as to create a network of protected conservation sites with regard to any obligations under EU or international law.181 Consequently, it is not unreasonable to use them as part of the assessment of the UK’s performance in how it designates and manages individual MPAs within its waters.

The key points from the review of the designation process to date show that;

180 _{Western Channel Marine Conservation Zone Factsheet.} 181

Although the Act does not specify that a precautionary approach must be applied when selecting or designating sites as MCZs, the designation process for the first tranche of MCZs can be said to be characterised as a precautionary measure, because it was based on the best available evidence at that time. The designation process for the second tranche moved away from a precautionary approach after Defra required a higher degree of confidence in the scientific evidence considered for their designation.

The MCAA mandates the creation of a network of conservation sites consisting of MCZs, (EMS, SSSIs and Ramsar sites. The text of the Act does not make any reference to the network being ecologically coherent. However, the Explanatory Notes make it clear that s123 (3) requires that the network must achieve three conditions that are based on the key elements of the definition of an ecologically

coherent network developed under OSPAR.182 The three conditions are that together, i) the sites contribute to the conservation or improvement of the marine environment in the UK marine area, ii) the features which are protected by the sites comprised in the network represent the range of features present in the UK marine area, and iii) the designation of sites comprised in the network reflects the fact that the conservation of a feature may require the designation of more than one site.183 As the programme of MCZ designation is still under way a conclusion cannot be made on whether the third condition has been met.

182 _{MCAA Explanatory Notes, para 349.} 183

Although neither the MCAA nor its Explanatory Notes explicitly refer to the use of the best available scientific evidence, it is implicit in the sections of the Act dealing with the selection of sites for designation.

A key concern about the designation of MCZs is that considering that the MCAA has now been in force for eight years the progress in designating MCZs in English

inshore waters and offshore waters in the Defra marine area has been very slow. Of the 127 sites originally recommended by the four regional projects only 50 have so far been formally designated.

The MCZs designated in the first two tranches appear to be biased towards the conservation of features with less emphasis on vulnerable marine species. This conclusion is endorsed by the EAC of the House of Commons, which to date, has held two inquiries into MPAs in UK waters. The first inquiry reported in 2014,184 and the second in 2017.185 In its first report the EAC noted that the MCZ selections up to that date had been ‘criticised from all sides, for lacking environmental protection ambition and for gaps in the biodiversity covered, but also for the potential harm they could cause to business and leisure activities’.186

The Committee felt that it was difficult to assess whether such gaps and uncertainties will be a consistent feature of the programme, or if difficulty in gathering evidence of a standard that meets the Government’s requirements has skewed the initial selections.187

The Committee was critical of the slow pace of MCZ designation based on the evidence it heard during the first inquiry. This was based on the fact that only 27 sites had

184 _{Environmental Audit Committee, Marine Protected Areas, First Report of Session HC 221 (2014/15).} 185

Environmental Audit Committee, Marine Protected Areas Revisited, Tenth Report of Session HC 597 (2016/17).

186 _{Environmental Audit Committee, Marine Protected Areas, Summary 3 (n 178).} 187

been designated in 2013. The Committee noted that there was a prospect of a further 37 being designated by the end of 2015.188 It considered the rate of

progress to be, ‘disappointing and suggestive of a lack of Government commitment to the programme’.189

The evidence, namely that it has taken eight years since the MCAA came into force to designate fifty sites, rather than the one hundred and twenty seven originally proposed, cannot be regarded as anything other than very disappointing.

During the second inquiry held by the EAC, it was noted that the UK Government received extensive scientific evidence from the SNCBs in respect of the

identification of suitable sites for MCZs but then continued to fail in following its own scientific advice, as outlined in the ENG document to inform the delivery of an ecologically coherent network, as required under MCAA. 190 In effect, the UK

Government failed to adhere to its own network design principles to ‘create an MPA network that promotes the resilience of marine ecosystems’. This was in part because the Government decided to take a tranched approach to designation and designate the less controversial MCZs. The EAC concluded that that means the Government will need to take some tough decisions with Tranche 3. The EAC argued that those sites should include both sand and mud habitats for mobile species and the continuing delays and absence of reference areas meant that an ecological network was not complete.191 Of course, it should not be overlooked that MCZs are to form part of a network of conservation sites which includes sites

designated under Ramsar, EMS and marine SSSIs. The Wildlife Trusts raised this

188

ibid, Conclusion 2.

189

ibid (n 178).

190 _{JNCC and NE Marine Conservation Zone Project Ecological Network Guidance third para 19.} 191

in their evidence to the EAC, stating that they understand that a new gap analysis in the MPA network has been produced. They felt it to be frustrating that this analysis was not publicly available, thereby achieving a transparent and open process.192 The EAC considered it vital that the third and final tranche of MCZs fills ecological gaps in the network. The Trusts found that the peer-reviewed ENG document, produced to guide the stakeholder projects, provided the best set of criteria and that gap analysis should be based on this document.193

In the course of its second inquiry the EAC heard evidence that gaps existed in the protection of highly mobile species in the network of MCZs.194 This third tranche of possible sites in England was to be put out for consultation in 2017 for possible designation in 2018 but this timetable appears to be slipping.195 As part of the consultation for this tranche third parties have been asked to propose sites for conservation of highly mobile species, which includes marine animals such as whales and dolphins, birds, fish, sharks and rays. Evidence on this omission was submitted to the EAC’s second inquiry by number of witnesses.196

The Royal Society for the Protection of Birds (RSPB) contrasted the situation in English waters with that of Scotland which, under its own related act, has designated a number of sites for ‘mobile’ species, and they expected Northern Ireland would confirm designations for seabirds in during 2016. The failure to designate sites in English waters was thought to undermine the effectiveness of the MCAA. The RSPB

192

Written evidence to the EAC second inquiry submitted by the Wildlife Trusts (MPA0029).

193 _{Marine Protected Areas RevisitedPublished written evidence (MPA 00029) (n 179).} 194

Environmental Audit Committee 'Marine Protected Areas Revisited' para 8 (n179).

195

‘Marine Management Organisation Website.’ Marine conservation zone designations in England. https://www.gov.uk/government/collections/marine-conservation-zone-designations-in-england accessed 2 July 2015.

196

Environmental Audit Committee 'Marine Protected Areas Revisited', Published written evidence (MPA0015), (MPA0024), (MPA0029), et al (n 179).

commented that the designation of MCZs to protect the essential aspects of seabird’s ecological requirements is a core principle of the MCAA but quoted no authority supporting that view.197

The Government had begun consultation on the third tranche in 2016, but the timetable set by the Government was said to have limited the ability of interested parties to respond with the quality of evidence required.198 The Committee

concluded that the Government should not use the excuse of a lack of ‘perfect data’ as an excuse for delaying the designation of sites. Instead it should adopt a

precautionary approach to the designation of the third tranche of sites by using the ‘best available data’.199

The EAC is surely correct in its view because the collection of data in the marine environment is often a slow process and valuable features and species can be harmed if the process is too slow. An approach more in keeping with Lord Hunt’s view of the MCAA being ground-breaking legislation designed to conserve rare and threatened habitats and species would be to designate sites on the basis of ‘best available data, and to then de-designate the site later if

subsequent research proves the site does not justify its status.