In recent weeks, there has been increasing debate surrounding the Scottish Government’s proposals to introduce Highly Protected Marine Areas, covering at least 10% of Scotland’s seas. This blog sets out some questions and answers about the Scottish Government’s plans for HPMAs and reaction to the proposals.
What are Highly Protected Marine Areas and how are they different from existing Marine Protected Areas?
The Scottish Government has already designated a network of Marine Protected Areas (MPAs), covering around 37% of Scotland’s seas in both inshore and offshore waters. This network was established using powers in two Acts, the Marine (Scotland) 2010 and the Marine and Coastal Access Act 2009 (an Act of the UK Parliament). The network also contains other protected areas such as European sites and Special Sites of Scientific Interest which are designated under different legislation. A map of the current MPA network is shown below.
Under the Marine (Scotland) Act 2010, Scottish Ministers have powers to designate MPAs in inshore Scottish waters (within 12 nautical miles). Scottish Ministers can also designate MPAs in offshore waters beyond 12 nautical miles using powers in the Marine and Coastal Access Act 2009, but they require agreement with the UK Secretary of State.
MPAs can be designated under these Acts to conserve specific features such as flora or fauna, marine habitats and features of geological interest. Under the Marine (Scotland) Act 2010, MPAs can also be designated for research and demonstration purposes or to conserve historic marine assets (e.g. shipwrecks).
In these MPAs, marine activities such as fishing, aquaculture and energy infrastructure are allowed, with the relevant consents and licenses, as long as they do not adversely affect the protected features or undermine the stated conservation objectives. Scottish Ministers can also introduce management measures to restrict certain activities in MPAs in inshore waters through Marine Conservation Orders which are subject to a separate consultation process and approval by the Scottish Parliament.
With Highly Protected Marine Areas (HPMAs), the Scottish Government intends to take a different approach. Rather than protecting specific features, designated areas protect all biodiversity within the site from harm. This aims to allow the marine environment to return to a more natural state with the aim of restoring and recovering marine ecosystems and their services. Unlike existing MPAs, all extractive, destructive and depositional activities would be automatically prohibited within HPMAs upon designation, unless exemptions are specified.
The Scottish Government’s policy framework for HPMAs, published in December 2022, points out that there is no internationally agreed definition of what constitutes “high” levels of protection for marine areas. However, in developing its proposals for HPMAs, the Scottish Government has set out policies that are closely aligned with the UK Government’s policy aims and objectives for HPMAs as well as considering protected area categories established by the International Union for the Conservation of Nature (IUCN) and the EU Biodiversity Strategy for 2030.
Draft site selection guidelines have been prepared by the Joint Nature Conservation Committee (JNCC) and NatureScot to support the Scottish Government’s proposals.
Where are we in the designation process?
The Scottish Government concluded a statutory public consultation on the proposed Policy Framework and Site Selection Guidelines which ran from 12 December 2022 to 17 April 2023.
The First Minister has stated in the Scottish Parliament on 20 April 2023 that no sites or set site criteria have been decided at this stage and sought to provide reassurance by stating that the government “will not steamroll through or impose on any community a policy that it is vehemently opposed to”. He also stated that responses to the consultation would be analysed “very carefully”.
The Cabinet Secretary for Net Zero and Just Transition has also made a commitment that “site selection will be a participatory process, with meaningful community engagement at every stage”.
A timeline for the site designation process is set out in the diagram below.
Why is the Scottish Government proposing to introduce HPMAs?
The commitment to introduce HPMAs covering “at least 10%” of Scotland’s seas by 2026 was first made in the Bute House Agreement between the Scottish Government and the Scottish Green Party in September 2021.
This commitment has been restated in the Scottish Government’s draft Biodiversity Strategy, and the Blue Economy Vision delivery plan ‘Delivering Scotland’s Blue Economy approach’.
The new First Minister’s vision for Scotland ‘Equality, opportunity, community: New leadership – A fresh start’ does not specifically mention HPMAs but makes a broad commitment to “enhancing protection for our most precious marine areas.”
The Scottish Government’s policy framework for HPMAs states:
“HPMAs in Scottish waters will allow for the protection and recovery of marine ecosystems, contributing to halting biodiversity loss and aiding our efforts to mitigate and adapt to the effects of climate change.”
The Scottish Government also outlines that HPMAs will contribute towards meeting wider domestic and international obligations such as achieving ‘Good Environmental Status’ under the UK Marine Strategy Regulations, objectives under the OSPAR North-East Atlantic Strategy 2030, and the UN Convention on Biological Diversity post-2020 global biodiversity framework which aims to put nature on a path to recovery by 2030. Additionally, the Scottish Government has a commitment to align with EU law where appropriate.
The Scottish Government’s commitment to designate HPMAs by 2026 aims to exceed the EU Biodiversity Strategy for 2030 which sets a target of protecting 30% of the EU’s land and sea by 2030, of which 10% should be under “strict protection”.
What activities will be restricted?
The Scottish Government recently consulted on its initial policy framework for HPMAs. The policy framework sets out examples of activities which it is proposed will not be allowed within HPMAs. These include:
- commercial or non-commercial (including recreational) fishing. This includes fishing with mobile and static gears, demersal and pelagic gears, hand gathering and diving
- activities associated with renewable energy production
- any form of aquaculture (finfish, shellfish, seaweed or other).
It also includes the following activities that it states are reserved to the UK Parliament and would require agreement with the UK Government:
- activities associated with oil and gas exploration and production
- use of explosives
- use of acoustic deterrent devices (ADDs)
- seismic surveys
- salvage operations
The policy framework also explains that HPMAs will “broadly align with the three most strictly protected categories set out by the IUCN”.
Permitted and prohibited activities set out in Table 1 of the IUCN’s Guidelines for applying the IUCN protected area management categories to marine protected areas.
Where will they be located?
The Scottish Government has not yet selected any sites for designation. However, the HPMA policy framework sets out some criteria that will be used to assess the suitability of sites.
For example, it is intended that HPMAs cover a range of geographic regions. The policy framework states:
“One of the main aims of HPMAs is to protect a balanced representation of Scotland’s ecology from the coast to the deep sea, including both inshore and offshore environments.”
It also explains that HPMA sites could fully or partially overlap with existing MPAs or occur fully outside of them.
The policy framework also rules out any location with existing activities or infrastructure that would be incompatible with HPMAs and “would be not be practical or reasonable to remove or relocate” such as:
- areas earmarked for offshore renewable development
- existing oil and gas and renewables
- ports and harbours
- areas where defence activities are carried out
- areas where seafloor cables are located.
The Scottish Government has published draft guidelines for site selection prepared by statutory nature conservation advisors, NatureScot and the Joint Nature Conservation Committee (JNCC). This includes details of a five-stage selection process which is summarised in a diagram on page 10 of the guidelines.
The draft guidelines propose that site selection should be based on “the conservation of marine ecosystems as the priority”, and lists seven “functions and resources of significance to Scotland’s seas”.
It also sets out the following proposed principles for site selection:
- Use of a robust evidence base
- HPMA scale and the use of functional ecosystem units
- Ensuring added value
- Delivering ecosystem recovery
The draft guidelines also set out some expected aims that HPMAs sites will be expected to contribute to and explain that site selection will “take account of socio-economic factors affecting the resilience and viability of marine industries, coastal communities and other stakeholders.”
How will they be designated and who gets a say?
The Scottish Government’s view is that existing legislation does not provide the necessary powers to designate HPMAs and provide the proposed level of protection.
The Bute House Agreement indicates that the intention is to deliver these provisions in the forthcoming Natural Environment Bill which was also included in the Scottish Government’s 2021-22 Programme for Government.
For HPMAs located in offshore waters, most powers to restrict marine activities are reserved to the UK Parliament and would likely require the UK Government to introduce legislation providing powers to Scottish Ministers to designate HPMAs in offshore waters or by granting powers for the Scottish Government to act in a reserved area such as a section 30 order under the Scotland Act 1998.
On 12 December 2022, the Scottish Government published a stakeholder engagement plan which outlines three main phases of stakeholder engagement.
The draft site selection guidelines set out that a range of stakeholders will be involved in building the evidence base for HPMA site selection including industry, conservation organisations, recreational bodies, academia, environmental interest groups and individuals. It also states that this will “include the use of expert opinion and knowledge exchange (e.g. between scientists and sea users). The evidence base will be shared publicly and be open to scrutiny.”
The draft site selection process also allows for third-party proposals for sites for HPMAs. The Scottish Government has provided a template for third-party proposal submissions which will be receive initial appraisal by NatureScot and/or the JNCC before being incorporated into the formal assessment process.
What is the environmental case for HPMAs?
The Scottish Government’s policy framework for HPMAs highlights the wider context of the twin climate and nature crises, the need to reverse species decline and increase resilience in the marine environment to ensure the long-term benefits of marine resources.
The policy framework cites a number of sources of evidence to support the case for HPMAs.
The 2019 Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) Global Assessment of Biodiversity provides the global evidence base. The Scottish Government highlight the five direct drivers of global biodiversity loss identified by the IPBES Assessment.
At a UK Level, the policy framework outlines the Scottish Government’s domestic commitment to achieving or maintaining ‘Good Environmental Status’ (GES) under the UK Marine Strategy Regulations 2010 (a commitment derived from the EU Marine Strategy Framework Directive).
The framework states:
“[t]he most recent assessment, published in 2019, found that several elements were not achieving GES, including seabirds, marine mammals, and seabed habitats. The introduction of HPMAs should improve this situation and contribute to achieving GES for these elements.”
The policy framework also points to evidence from the Scottish Marine Assessment 2020 (SMA2020) which “showed that a number of marine species were in decline.”
The SMA2020 was legally required to be completed ahead of statutory reviews of the National Marine Plan. It’s key finding was of a “mixed picture” of the state of Scotland’s seas, with some species and habitats improving (e.g. marine mammals and commercial fish species) and others in decline (e.g. seabirds and reef habitats). It also highlighted that “Pressures associated with bottom-contacting and pelagic fishing continue to be the most geographically widespread, direct pressures across the majority of Scottish Marine Regions and Offshore Marine Regions.”
Are HPMAs being introduced elsewhere in the UK?
The UK Government intends to designate the first three HPMAs in English waters before 6 July 2023. The UK Government states that HPMAs will “help the government to achieve its key environmental goals and targets, such as in the Environmental Improvement Plan, 25 Year Environment Plan, 30by30 commitment, net zero, sustainable fisheries and marine nature recovery.”
The UK Government ran a consultation from 6 July to 28 September 2022 on five candidate sites. Following its analysis of the consultation, the UK Government intends to designate three sites as pilot HPMAs. The sites are:
- North East of Farnes Deep, off the northeast coast of Northumberland.
- Allonby Bay, northwest coast of Cumbria.
- Dolphin Head, in the English Channel.
The UK Government is taking a different approach to the Scottish Government by adopting a “pilot phase” that will “inform the future of HPMA policy” in England. The UK Government has also opted to use existing powers under the Marine and Coastal Access Act 2009 to designate HPMAs as Marine Conservation Zones (the term for Nature Conservation MPA in other parts of the UK), rather than the Scottish Government’s approach of proposing to introduce new powers to designate HPMAs.
This raises the question as to whether the use of existing powers in England or Scotland can achieve HPMA objectives as defined by international standards. Under existing marine legislation, designation alone provides only broad protections against “intentionally or recklessly” harming features that are specified in the designation order or hindering the MPA’s stated conservation objectives.
Further restrictions on marine activities can be introduced by making byelaws (in England) or Marine Conservation Orders (in Scotland) which are subject to separate consultation and approval processes, although such measures should be linked to the specific features and conservation objectives of the MPA designation. The UK Government states its intention that “extractive, destructive and depositional activities will be prohibited within each site” such as:
- commercial and recreational fishing
It further states that “non-damaging levels of other activities to the extent permitted by international law are allowed”. It remains to be seen precisely how the UK Government will utilise these powers to achieve its desired level of protection in the three pilot sites.
The Scottish Government view is clear in its policy framework that it “does not have the necessary legal powers to designate and protect HPMAs.”
How have stakeholders reacted to HPMAs?
There is a high-level of public support for marine conservation, with a 2022 survey conducted by the Scottish Government finding that 85% of those surveyed supported the creation of Marine Protected Areas (the survey did not cover Highly Protected Marine Areas).
Ahead of the SNP leadership contest, Scottish Environment Link, the umbrella body for over 40 environmental organisations, urged candidates not to scrap plans for HPMAs stating that “[f]ailing to implement HPMAs would be a massive backwards step. If we are to reverse the alarming decline of nature at sea, we must boost ocean recovery and support coastal communities long into the future”.
Scottish Environment Link also highlight the potential benefits of HPMAs stating that HPMAs are “a simple measure, proven worldwide to support ocean recovery, doubling sealife within their boundaries, overspilling into surrounding waters to benefit local fishers.”
However, there is growing concern around the potential impact that HPMAs may have on marine industries. Fishing industry representatives and island communities have been particularly vocal in opposing the Scottish Government’s proposed approach to HPMAs.
The resilience of Scotland’s fishing industry has been impacted by a wide range of pressures in recent years such as:
- The impact of post-EU exit changes in customs requirements on seafood supply chains and export costs.
- The impact of the COVID-19 pandemic on supply chains and markets for seafood.
- The impact of the Russian invasion of Ukraine on energy and fuel costs.
- Workforce pressures in both the catching and processing sectors.
- Failure to reach agreement on access to waters with neighbouring coastal states at international fisheries negotiations.
The Scottish Fishermen’s Federation (SFF) has conveyed that it is “highly supportive of meaningful conservation” but believes that the Scottish Government’s approach will have a “have a catastrophic impact on the industry” and advocates a pilot approach.
The SFF highlights the potential for HPMAs to contribute to a “spatial squeeze”
Recent statements by Comhairle nan Eilean Siar, the Shetland Islands Council and Orkney Islands Council have all expressed opposition to the proposals, raising concern that the HPMA proposals would have a detrimental impact on island communities and industries.
Damon Davies, Researcher,
Title image: Flame Shell (Limaria hians) in Loch Carron by Goatchurch. licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.