Ashfords Solicitors - The Marine Bill

Background

The Bill proposes five linked themes:

The restructuring of inshore fisheries regulation;
a new system that builds on the existing raft of marine conservation measures most notably this includes provision to create offshore marine nature reserves, similar to that already in existence around Lundy Island;
a more efficient marine licensing system;
the creation of a new government quango called The Marine Management Organisation ("MMO"); and,
a new system of marine planning that introduces marine spatial planning for the coastal to the marine environment.

Consolidation and the fishing industry

Legislation regulating the marine environment (especially fisheries) is outdated and not fit for purpose, this is highlighted by the Bill's proposed repeal of seven fisheries acts dating from as early as 1717 (The White Herring Fisheries Act) to 1912 (The Seal Fisheries (North Pacific) Act). Further, the majority of sea fisheries legislation that is relied on today dates back to 1966 and 1968. The sea fishing industry has changed phenomenally since the inception of this legislation, for example in 1950 the approximate tonnage of fish from around the world amounted to 18 million tonnes, in 1969 this increased to approximately 56 million tonnes and then, further, in 2000 it reached a peak of 95 million tonnes. Of course the efficiency of the world capture fishing fleet has led to this dramatic increase in landed tonnage, however, this does not necessarily mean that the number of vessels fishing has increased. In short, the number of vessels in the world fishing fleet has declined, however, those vessels that are fishing are larger and more efficient. The fisheries legislation has not been overhauled to deal with this modernisation.

The Bill addresses the problem of outdated legislation by overhauling the regulation of several orders and regulating orders to manage shell fisheries, there will also be general modernisation of the regulation of fisheries. The current enforcement powers to tackle illegal, unreported and unregulated fishing will be updated and strengthened. There will also be a system of administrative penalties for minor offences in the commercial sector. Vessel licence charging powers will be changed to allow for an easier and more flexible recovery of costs and licences. There will also be the introduction of provisions relating to migratory and freshwater fish. These regulations will affect the licences to fish, the limitations of these licences and enforcement of breaches of the regulations.

Marine conservation

Fisheries will be further affected by the introduction of marine conservation zones. These are essentially offshore marine nature reserves similar to that around the Isle of Lundy on the North Devon coast. Hillary Benn, when launching the Bill, stated that "Our seas are already showing the effects of climate change and with increasing use of the sea by many competing interests, we must make sure that the marine environment can cope with changing conditions. We have a duty to look after our seas for future generations." It remains to be seen how these areas will be designated, but it is thought that between 15% and 20% of the coastal seas will be protected as marine conservation zones. The World Wildlife Fund UK have stated that the current protection in the UK seas is only 0.001%. The age of being able to extract resources from the sea without taking into account protecting that natural resource are nearly over.

It could be argued that a reduction in the areas where the fleet is allowed to fish will bring about a reduction in fisheries revenue. On the other hand, the designation of marine nature reserves where fishing is not allowed could enhance and encourage sea fish nurseries that will help bolster dwindling stocks of certain species. However, as many people have commented it is not possible to control where the fish swim, it is possible to protect and encourage nursery areas that will increase the population of those stocks.

The protection offered by marine conservation zones will be varied depending on the location. This is a good sign. It would be disastrous to place blanket designations without regard to the socio-economic and conservation interests in an area. Generally positive reports by fishermen on the introduction of such zones around Lundy Island show that careful management of the coastal environment can benefit the majority of stakeholders. The designations will force fishermen to change the way they fish, however, changes in fishing practice do not necessarily mean a reduction in revenue. An example of this can be found in an area of Sicily where there was a decision to ban trawling for mullet, in its place a thriving gill net fishing community has developed. As we have seen terrestrial agricultural practices diversify over the last few years, so too will we see fisheries practices diversify.

Coastal access

The Marine Bill also introduces what has become known as the "right to ring". This is a coastal path that will covers the two and a half thousand mile coastline of England. The model for this stems from Scotland's unbroken corridor of accessible land surrounding the coast. There has been a degree of back-down from the government relating to this coastal path in that they are admitting that there are problems relating public access of privately owned land. While in theory a national coastal path is a fantastic idea (as stated by David Miliband at the launch of the Marine Bill White Paper referring to the nations island heritage) it leaves the government's conservation body, Natural England, with a substantial job. Hopefully, the budget of £5 million annually for the first ten years to negotiate with local land owners regarding the siting and rights of access to private land will provide a true "right to ring".

Natural England have been tasked with this job because of their role as the conservation authority for the coastal environment. There is no doubt that public access to sensitive coastal areas may have a detrimental effect to those protected species and habitats, however, it is imperative that there is a right to access and increased awareness of those areas rather than a move to isolate them from the public.

Planning issues

The most far-reaching proposals in the Marine Bill are those for coastal spatial planning. This is going to have, it is hoped, a positive impact on the marine sector. In the past there has been confusion amongst planners as to how to deal with the coastal environment. Most of those planners are trained as terrestrial planners. However, the skills required to deal with planning issues on land are different to those required in the coastal and marine zones. As the nation seeks to develop more of its coastline and site structures offshore, these coastal planners require new skills and support. The introduction of the MMO and new legislation in relation to spatial planning and licensing in the coastal environment will hopefully address this transition from terrestrial to marine planning.

However, the introduction of marine spatial planning may have a detrimental effect on economic development in the marine environment, but, it is hoped that the legislation will provide business, developers, port and relevant authorities with a tool to plan ahead with regard to a development. The streamlining of consents and the instigation of the MMO should hopefully provide developers with a "one stop shop" rather than having to go through the myriad of consents from local authorities, conservation authorities and other regulatory authorities that are tasked with licensing and protecting the coastal and marine environment. In short, this should benefit developers who are planning to build on the coastal zone and/or those businesses that are already located in the coastal zone and wish to change and diversify. On the other hand, it may be that while the new planning process is more streamlined, it could be stricter. This remains to be seen once the make up and the role of the Marine Management Organisation evolves over the coming months.

Consultation

The Marine Act is some way off and once (or if) it is enacted it is possible to see its implementation taking many years and, at worst, being piecemeal and disjointed.

You have until 26 June 2008 to review and comment on the Draft Bill, a copy of which can be viewed/downloaded at http://www.defra.gov.uk/marine/legislation/index.htm.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

18th April 2008

The Marine Bill - A Tide Of Change

Introduction