Facilitating marine nature restoration through legislation: consultation

Part 2 – Marine Conservation Orders

Overview

In this part of the consultation we set out proposals for amendments relating to an existing mechanism in Part 5 of the Marine (Scotland) Act 2010, Marine Conservation Orders (MCOs).

The proposed amendments cover three elements:

• to extend the existing MCO provisions so they can be used to protect habitats or species which are undergoing or have undergone marine nature restoration
• to extend the use of MCOs to allow for the protection of standalone European marine sites: Special Areas of Conservation (SACs) and Special Protection Areas (SPAs) which are not adjacent to or do not overlap with existing marine protected areas (MPAs).
• to adjust the requirement to consult on the draft Order/wording of an MCO to a requirement to consult on the draft proposal.

We cover each of these elements and associated questions in turn. For these proposals a Strategic Environmental Assessment (SEA) has been undertaken, details of which are set out in a separate Environmental Report. Questions relating to the SEA have been included at the end of the consultation paper.

Introduction

Marine Conservation Orders (MCO) are a statutory mechanism under the Marine (Scotland) Act 2010. The existing MCO provisions are set out in sections 85-94, and 97-98 of the 2010 Act, and in general terms are used to restrict activity that may damage a marine protected area (MPA).

Scottish Ministers can make a Marine Conservation Order to:

• protect any type of MPA (as designated under section 67-73 of the Marine (Scotland) 2010 Act) for the purpose of furthering a stated purpose or conservation objective; and
• to protect any overlapping or adjoining European Marine Site, comprising either Special Areas of Conservation (SAC) or Special Protection Areas (SPA) under the Conservation (Natural Habitats, &c.) Regulations 1994.

Marine Conservation Orders are a protection mechanism that is tailored to the context and requirement of each individual case and location they are applied to. An MCO can be applied to the whole or parts of these designated protected areas, and can place specific restrictions on a range of activities to protect the natural or cultural heritage features. An MCO is not the same as a MPA or European marine site designation. MCOs are currently a mechanism to protect these sites from activities where that is deemed necessary to further the conservation objective of a MPA or protect an European marine site. It is possible to revoke or amend an MCO, which provides a level of flexibility to adapt to new circumstances and evidence.

The existing provisions set out the procedure for Marine Conservation Orders. MCOs cannot be made without consulting anyone likely to be interested in or affected by the proposed Order, such as local users of the sea in the area where the MCO is proposed. These groups and individuals have a say in what activity is restricted in the waters which they may rely on for their livelihoods. There is also a duty on Scottish Ministers to assess the impact or potential impact of restricting activities, in relation to economic interests, social interests and the environment.

Scottish Ministers can also apply urgent orders, where they consider there is a critical need to protect an area, for instance where delay in making an order could result in harm to the features, the marine historic asset, or the stated purpose of the area. This allows for an accelerated process, without the need to publicise in advance that the order is to be made. An urgent order can only remain in force for 12 months, but may be extended for a further 12 months if deemed necessary where Ministers intend to make a permanent MCO.

The existing provisions allow Scottish Ministers to issue permits authorising activities which have previously been prohibited by a MCO. They also set out offences and fines in relation to contravening a MCO (a fine not exceeding £50,000 for an offence on summary conviction, or a fine for convictions on indictment).

We are proposing to extend the existing MCO provisions within the 2010 Act so that MCOs could be applied for two additional purposes:

1. to protect habitats and species which are undergoing or have undergone marine restoration; and

2. to protect standalone European marine sites.

This would provide a mechanism to apply appropriate protection if required. We recognise that there are increasing spatial demands on our marine environment, so any MCOs proposed in future would need to be applied in a proportionate way. Further consideration is set out below.

Protecting marine nature restoration projects

There is growing interest from local communities and various groups in marine nature restoration projects. We are aware that there is increasing concern within the sector, particularly around how restoration projects can be protected from other activities that might damage the restoration work being undertaken.

In order to meet our 2030 and 2045 domestic and international biodiversity commitments to become Nature Positive we will need to provide longer term security and protection for habitats and species undergoing restoration. This will be a key enabler to grow and expand the restoration sector.

Currently initiators of some marine restoration projects have chosen to prepare cases for their projects to be designated as a Demonstration and Research MPA in the hope that Scottish Ministers will safeguard habitats and species they are trying to restore. Demonstration and Research MPAs can be designated by Scottish Ministers for the purposes of demonstration of suitable methods of marine management or exploitation, and research into such matters. Whilst some of these projects may meet the selection guidelines and merit Demonstration and Research MPA status, this will not be suitable for all projects.

We propose that MCOs could be used, if considered necessary by Scottish Ministers based on advice from NatureScot, to protect habitats or species which are undergoing or having undergone restoration. An MCO could not be used pre-emptively or take effect before restoration activity is being undertaken. However, we propose that management measures under an MCO could be put in place at the time when physical restoration activity takes place.

This proposal ties in with that set out in Part 1 to establish a registration process for marine nature restoration projects. Having projects register would give Scottish Ministers better oversight of what is taking place where, and where the habitats or species being restored might merit protection. For projects that have not registered but have applied for a marine licence instead, an MCO could be applied using information about the location and/or spatial extent of the habitat or species provided as part of their marine licencing application process.

We do not think it would be appropriate to link the ability to apply MCOs to the entirety of a registered ‘restoration project’ as covered under Part 1. This is because a registered project could cover a larger area than where protection is necessary and could encompass restoration activities being undertaken for multiple habitats or species using a variety of methods. An MCO would instead need to be applied in relation to specific habitats or species being restored within the project, on an evidenced basis.

The ability to implement MCOs would ensure Scottish Ministers could protect habitats or species undergoing or having undergone restoration. However, this would not be necessary if there is no risk of damage from human activities. This might be because the target habitats or species are located in an area that doesn’t overlap with potentially damaging activities, or because other activities can be carried out in a manner which does not cause damage. Marine restoration is currently localised and small, and the requirement for any MCOs to protect habitats or species in future would always be considered on a case-by-case basis, taking into account advice from statutory nature conservation bodies and developed in consultation with all community and wider interests. This will be critical where local communities and projects may not wish for activities to be restricted to protect the natural assets being restored.

We propose to extend the existing MCO provisions in the Marine Scotland Act 2010 (as described in the introduction to Part 2) so that they could be applied, if considered necessary, to habitats or species that are undergoing or have undergone marine restoration. This would include the existing ability to revoke or amend an MCO. In this case, an MCO could be revoked if restoration of a target species or habitat was not successful, to ensure that restrictions did not remain in place unnecessarily. The ability to amend an MCO would allow for updates to the Order if, for example, a new activity had the potential to damage the habitat or species being restored, or if advances in technology meant a restricted activity could be carried out in a way that was not damaging.

In addition to the existing provisions in relation to MCOs, we could introduce a requirement for Scottish Ministers to review MCOs in place for restoration on a regular basis, for example 5 or 10 years.

Question 23

Do you support the extension of existing Marine Conservation Order provisions under the Marine (Scotland) Act 2010 to be applicable to habitats and species undergoing restoration or which have been restored?

Yes

No

Unsure

Other – Please explain

If you selected ‘Other’ then please use this space to expand on your answer.

Question 24

Do you think there should be a requirement on Scottish Ministers to review any Marine Conservation Orders implemented for habitats or species undergoing restoration or which have been restored?

Yes

No

Unsure

Other – Please explain

If you selected ‘Other’ then please use this space to expand on your answer.

Question 25

Do you think that any of the existing Marine Conservation Order provisions outlined in this section should not be extended to be applicable to habitats or species undergoing restoration or which have been restored?

Yes

No

Unsure

Other – Please explain

If you selected ‘Other’ then please use this space to expand on your answer.

Question 26

Do you have any other views you would like to share in relation to the proposal to extend the existing Marine Conservation Order provisions to habitats and species undergoing restoration or which have been restored?

Please provide examples and any information which you think would be useful to support your views.

Standalone European marine sites

‘European marine sites’ is a collective term for protected areas designated under the Conservation (Natural Habitats, &c.) Regulations 1994. The term refers to marine Special Areas of Conservation (SACs) and marine Special Protection Areas (SPAs), which are designated to protect certain species and habitats, and wild birds respectively. Nature conservation MPAs, Demonstration and Research MPAs and Historic MPAs are designated under the Marine (Scotland) Act 2010. European marine sites and MPAs all contribute to Scotland’s MPA network.

Section 85 of the Marine (Scotland) 2010 Act sets out that Ministers can make a Marine Conservation Order (MCO) for the purpose of protecting a European marine site which overlaps with or adjoins a MPA. This means that MCOs cannot currently be used to protect standalone European marine sites. We use the term ‘standalone European marine sites’ to refer to sites which do not overlap or adjoin designated marine protected areas. As a result, there is a mismatch between the powers available to Scottish Ministers to protect European marine sites which overlap or adjoin a MPA, and those standalone sites. This is an anomaly in the legislation rather than an intentional disparity. MCO powers to protect standalone European marine sites in England and Wales have existed since 2010.

Therefore we are proposing to fix this to enable Scottish Ministers to apply an MCO to standalone European marine sites, if this were necessary in future to further the conservation objectives of European marine sites.

We have explored whether standalone European marine sites should instead be designated as MPAs under the Marine (Scotland) Act 2010, however this would not be a suitable solution as it would mean “double-badging” designation types. The selection criteria and guidelines for MPAs and European marine sites differ, and there are different lists of features which these designation types are designed to protect.

• For European marine sites these are:
  • habitats listed in Annex I of the EU Habitats Directive,
  • habitats of species listed in Annex II of the Directive; or
  • for birds listed in Annex I of the EU Birds Directive.
• For MPAs there is a list of MPA “search features” which was developed by NatureScot and the Joint Nature Conservation Committee (JNCC).

While there is some overlap, the designation types are designed to complement each other in forming a coherent network of MPAs. The intention is not for these to duplicate each other, as an European marine site might not meet the selection guidelines for MPAs.

The process and purpose of making an MCO for a standalone European marine site would be exactly the same as it is for such sites that overlap or adjoin MPAs. The purpose of applying the MCO for European marine sites is proposed to be ‘the protection of the natural feature by reason of which the site is considered to be of significance in relation to the Habitats Directive and the Wild Birds Directive’. This means MCO powers for European marine sites can be used to protect flora/fauna/habitat protected by the European marine site. This also includes a requirement to consult before any MCO is introduced.

The primary purposes of the proposed MCO amendment is to fix the current disparity in the legislation and ensure Scottish Ministers have equal powers to protect different types of protected areas across our marine environment, if required. We do not currently have specific European marine sites in mind where an MCO would be needed.

Marine licensable activities that are not directly connected with the management of a European marine site are already subject to the assessment processes set out under the 1994 Habitats Regulations, if they are likely to have a significant effect on a site. Management measures for MPAs (including nature conservation MPAs, SACs and SPAs) have to date primarily focused on implementing necessary fisheries management measures. This is because fishing activity is not covered by the marine licensing process. The proposed extension to the existing MCO provisions would not impact on this ongoing work because the current proposed fisheries measures will be taken forwards under existing powers to restrict fishing activity via other legislation (or via existing MCO provisions under the 2010 Act for European marine sites that overlap or adjoin an MPA). We are not proposing any changes or additions to those proposed measures, or to the wider proposals for fisheries management relating to inshore MPAs and PMFs. The proposals also do not mean further protected area designations are being considered.

MCOs provide a single, more comprehensive and flexible mechanism than is currently available for standalone European marine sites, which would also allow for protection from activities by other marine users, if this was ever considered necessary in future. We propose that existing provisions in the Marine Scotland (Act) 2010 applying to MCOs would also be applicable to standalone European marine sites.

Question 27

Do you agree that MCO powers should be extended as outlined to be applicable to standalone European marine sites?

Yes

No

Unsure

Other – Please explain

If you selected ‘Other’ then please use this space to expand on your answer.

Question 28

Do you think that any of the existing MCO provisions within the Marine (Scotland) Act 2010 should not be extended to be applicable to standalone European marine sites?

Yes

No

Unsure

Other – Please explain

If you selected ‘Other’ then please use this space to expand on your answer.

Removing duplication in consultation requirements for MCOs

There is currently an obligation for Scottish Ministers to consult on a draft MCO under section 87 of the Marine (Scotland) Act 2010. If a draft MCO is subsequently changed after representations have been made, there may be a need to re-consult before the order can be made and take effect. This is the case even if the changes are minor corrections rather than actioning issues raised by representations. This need to re-consult on the draft order even in the case of minor changes can result in delays and lead to an inefficient process which can delay the protection of the marine environment.

We propose to change the requirement to consult on the ‘draft order’, as it is now, to a requirement to consult on the ‘draft proposal’. This would bring the provisions more in line with those for the designation of MPAs under the Marine (Scotland) Act 2010, which carry a requirement to publish notice of the proposal to make a designation order, and consult persons considered likely to be interested in or affected by the making of the order.

An obligation to consult on draft orders is rare in legislation. Consultation is usually carried out on draft proposals with orders being drafted following consultation outcome. This provides greater flexibility and there is therefore a lower risk that a further consultation round has to be carried out, resulting in time consuming processes for both stakeholders and government.

Question 29

Do you agree with our proposal to change the requirement to consult on the ‘draft order’ to a requirement to consult on the ‘draft proposal’?

Yes

No

Unsure

Other – Please explain

If you selected ‘Other’ then please use this space to expand on your answer.

Impact assessments

In Scotland, public bodies including the Scottish Government are required to assess, consult on, and monitor the likely impacts their plans, programmes and strategies will have on the environment, businesses, island communities and equalities. This helps to better protect the environment, aims to ensure that any development is sustainable and equitable, and increases opportunities for public participation in decision-making.

In this section we are asking questions to gather evidence and lived experience to inform our impact assessments.

The proposals set out in this consultation are mostly for changes to primary legislation, and will be consulted on again before they are implemented. This means that it is hard to assess the detailed impacts of these policies, as they will be further developed at a later stage. At that point there will be further assessments of the impact(s) of the proposals.

Businesses

A Business and Regulatory Impact Assessment (BRIA) is used to analyse the costs and benefits to businesses and the third sector of any proposed legislation or regulation.

The proposals set out in this consultation concern enabling powers and are therefore unlikely to impact directly on the costs and burdens placed on businesses, the public sector, voluntary and community organisations at this stage. We want to get an early idea of how these proposals might impact businesses at the point of implementation, so any views you can share on this will be helpful.

Your comments will help to inform a BRIA which examines the impact that the proposed changes may have on businesses. Any secondary legislation which flows from the primary enabling powers, as sought, will be subject to a full BRIA and consultation at that time.

Question 30

Do you think that any of the proposals will have an impact directly or indirectly on the costs and burdens placed on businesses, the public sector voluntary and community organisations?

Yes

No

Unsure

Other – Please explain

If you selected ‘Other’ then please use this space to expand on your answer.

Island communities

Scotland’s islands face particular challenges around distance, geography, connectivity and demography. It is therefore important that this is considered when developing policy and legislative proposals. Section 7 of the Islands (Scotland) Act 2018 states that a relevant authority – which includes Scottish Ministers – must have regard to island communities when carrying out its functions.

Question 31

Do you think that any of the proposals will have an impact that is significantly different for island communities than for mainland communities?

Yes

No

Unsure

Other – Please explain

If you selected ‘Other’ then please use this space to expand on your answer.

Equalities

An Equality Impact Assessment (EQIA) is a tool to help anticipate the needs of diverse groups when making decisions about projects, policy or service delivery, and helps us to meet our duties under the Equality Act 2010.

We think that the legislative proposals set out in this consultation will not impact on the protected characteristics as set out under the Act. We nevertheless want to provide an opportunity to raise any concerns you may have about these proposals in relation to the protected characteristics:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

Question 32

Do you agree with our assessment that the proposals set out in this consultation will not impact on people with protected characteristics as set out under the Equality Act 2010?

Yes

No

Unsure

Other – Please explain

If you selected ‘Other’ then please use this space to expand on your answer.

Environment

The Environmental Assessment (Scotland) Act 2005 (“the 2005 Act”) requires that certain public plans, programmes and strategies be assessed for their potential effects on the environment. Strategic Environmental Assessment (SEA) is the process used to fulfil this requirement and includes consultation with the public and the Consultation Authorities, which results in an Environmental Report.

A screening and scoping exercise was undertaken by Scottish Government’s Marine Directorate in accordance with the requirements of the 2005 Act. The outcome from the Screening and Scoping Report concluded a SEA was needed for the proposals related to Marine Conservation Orders. This is because there is potential for significant environmental effects to occur as a direct result of the proposals. While MCOs are subject to further assessment and consultation before they can be applied to restrict activity, this is done at a localised scale. The SEA was needed to consider what impacts of the proposal may be at a plan/national level. No SEA has been conducted for the registration process for restoration projects, as the likely environmental impact of that element of the proposals will only come once secondary legislation is developed to implement it.

An Environmental Report has been prepared in relation to the proposed changes to Marine Conservation Order (MCO).

Read the full SEA Environmental Report

The main conclusions from the report were that the proposals:

• are likely to have beneficial impacts on the environment overall
• may in some cases produce some negative impact due to displacement of other activities, however this impact is likely to be limited as the natural assets they will be applied to are generally small in scale.
• will have a greater positive than negative impact on the environment, in other words, the likely beneficial impact was deemed to outweigh the (limited) potential for any negative impact.

Question 33

Do you agree that the Strategic Environmental Report is an accurate representation of the potential impacts, positive and negative, on the environment from the proposed MCO changes?

Yes

No

Unsure

Other – Please explain

If you selected ‘Other’ then please use this space to expand on your answer.

Question 34

Do you agree with the findings of the Strategic Environmental Report that overall, the likely beneficial effects of the proposals outweigh the potential negative impacts?

Yes

No

Unsure

Other – Please explain

If you selected ‘Other’ then please use this space to expand on your answer.

Further comments

Question 35

Do you have any further comments you wish to add?

Please provide any further comments.

Thank you for providing your views

Should you wish to provide further information you can contact us via email at marinerestoration@gov.scot or write to:

Marine Nature Restoration policy team

Area 1B North

Scottish Government

Victoria Quay

Edinburgh

EH6 6QQ