Highly Protected Marine Areas (HPMAs): consultation analysis - final report

5 Policy framework – management of activities (Q2–Q7)

Summary of key points:

• Six questions sought views on the proposals set out in the draft policy framework for managing a range of different activities in HPMAs, and proposals for new legal powers in relation to HPMAs. Respondents repeatedly said that they found these questions difficult to understand.
• The consultation asked respondents for their views on the effectiveness of proposed approaches to managing 16 specific activities within HPMAs. Levels of support were highest in relation to the proposed approach to managing ‘shipping and ferries’ and lowest in relation to the approach to managing ‘recreational fishing of any kind’. Levels of opposition were highest in relation to the proposed approach to managing ‘commercial fishing of any kind’ and lowest in relation to the approach to managing ‘carbon capture, utilisation and storage’.
• There was limited support for additional powers to be granted in relation to HPMAs. Respondents were least supportive of powers to prohibit activities from the point of designation – 1 in 5 respondents supported this. Support was highest for powers to suspend restrictions in the event of a force majeure – 2 in 5 respondents supported this. Environmental organisations were the most likely to support the granting of additional powers, while fishing groups or organisations, and business / private sector organisations were most likely to oppose this.

5.1 In addition to setting out the aims and purpose of the proposed HPMAs, the draft policy framework described the proposed HPMA process and how site selection and designation could be put into practice; the proposed management of different activities within HPMAs; proposals for monitoring and compliance; and proposals for new legal powers in relation to HPMAs. Questions 2 to 7 in the consultation paper sought views on these issues.

Question 2: What is your view of the effectiveness of the proposed approaches to manage the activities listed below, as set out in section 6 of the draft Policy Framework, in order to achieve the aims and purpose of HPMAs? [Strongly support / Support / Neutral / Oppose / Strongly oppose]

Please explain your answer in the text box below and if you think we have missed any activities, please suggest them here.

Question 3: What is your view of the proposed additional powers set out in section 8.3.2 of the draft Policy Framework: “Allow for activities to be prohibited from the point of designation to afford high levels of protection”? [Strongly support / Support / Neutral / Oppose / Strongly oppose] Please explain your answer in the text box.

Question 4: What is your view of the proposed additional powers set out in section 8.3.3 of the draft Policy Framework: “Establish processes to permit certain limited activities within a HPMA on a case-by-case basis for specified reasons”? [Strongly support / Support / Neutral / Oppose / Strongly oppose] Please explain your answer in the text box.

Question 5: What is your view of the proposed additional powers set out in section 8.3.4 of the draft Policy Framework: “Activities which are not permitted in a HPMA but are justified in specified cases of emergency or force majeure”? [Strongly support / Support / Neutral / Oppose / Strongly oppose] Please explain your answer in the text box.

Question 6: What is your view of the proposed additional powers set out in section 8.3.5 of the draft Policy Framework: “Measures for activities allowed and carefully managed in HPMAs”? [Strongly support / Support / Neutral / Oppose / Strongly oppose] Please explain your answer in the text box.

Question 7: Do you have any further comments on the draft Policy Framework, which have not been covered by your answers to the previous questions? Please add your response in the text box.

Effectiveness of proposed approaches to manage activities (Q2)

5.2 Section 6 of the draft policy framework discussed the proposed approach to managing a range of different activities within HPMAs across the following sectors:

• Commercial fishing (of any kind)
• Recreational fishing (of any kind)
• All other recreational activities
• Aquaculture (finfish, shellfish, seaweed)
• Oil and gas
• Renewable energy
• Carbon capture, utilisation and storage
• Subsea cables
• Aggregate extraction
• Ports and harbours
• Shipping and ferries
• Military and defence
• Hydrogen production
• Space ports.

5.3 For each sector, the policy framework set out (i) proposed restrictions on activities within HPMAs, and (ii) proposals for excluding some areas from the site selection process because of ongoing activities. It noted issues to be addressed in the site selection process and issues to be addressed via legal powers.

5.4 Question 2 asked for views on the effectiveness of the proposed approach for each sector. This question contained 16 closed sub-questions, each focusing on one of the items in the list above. Of the 2,458 respondents who submitted substantive responses, 1,530 (62%) answered one or more of these closed questions.

5.5 Tables 5.1 (part 1) and 5.1 (part 2) on the following pages, and Tables A1.4 to A1.19 in Annex 1, show the following main points based on the substantive responses:

• Across each of the 16 activities, the proposed approaches to management were supported by between 22% and 32% of respondents. Approaches to management were opposed by between 39% and 69% of respondents across the 16 activities. The proportion of respondents selecting ‘neutral’ in relation to any activity was highly variable, ranging between 6% (for ‘commercial fishing of any kind’) and 35% (for ‘military and defence’).
• Levels of support were highest in relation to the management of ‘shipping and ferries’ (32%) and lowest in relation to the management of ‘recreational fishing of any kind’ (22%). Levels of opposition were highest in relation to the management of ‘commercial fishing of any kind’ (69%) and lowest in relation to the management of ‘carbon capture, utilisation and storage’ (39%).
• In every case, respondents who expressed opposition to the suggested approaches were more likely to say they were ‘strongly opposed’ rather than simply ‘opposed’. For example, whilst 69% overall said they were opposed in relation to the approaches to managing commercial fishing, 56% said they were strongly opposed.
• In 14 of the 16 cases, the proportion supporting the proposed approach to managing specific activities was very similar for both organisations and individuals (within 4%). The exceptions to this were in relation to ‘aggregate extraction’ (37% of organisations supported this approach, compared with 27% of individuals) and ‘renewable energy’ (26% of organisations supported this compared with 32% of individuals).
• In all (16) cases, individuals were equally likely or more likely than organisations to choose ‘oppose’. In three cases the difference was 10% or more, namely, ‘aggregate extraction’ (46% vs 32%), ‘shipping and ferries’ (46% vs 34%) and ‘all other recreational activities’ (57% vs 47%).

Table 5.1 (part 1): Q2 – What is your view of the effectiveness of the proposed approaches to manage the activities listed below, as set out in section 6 of the draft Policy Framework, in order to achieve the aims and purpose of HPMAs?

Activity	Support No.	Support %	Neutral No.		Neutral %	Oppose No.	Oppose %	Total No.	Total %
1. Commercial fishing (of any kind)
Organisations	42	24%	17		10%	116	66%	175	100%
Individuals	325	25%	75		6%	925	70%	1,325	100%
Total	367	24%	92		6%	1,041	69%	1,500	100%
2. Recreational fishing (of any kind)
Organisations	35	21%	28		17%	105	63%	168	100%
Individuals	293	22%	129		10%	901	68%	1,323	100%
Total	328	22%	157		11%	1,006	67%	1,491	100%
3. All other recreational activities
Organisations	42	25%	46		28%	78	47%	166	100%
Individuals	310	24%	251		19%	749	57%	1,310	100%
Total	352	24%	297		20%	827	56%	1,476	100%
4. Finfish aquaculture
Organisations	47	27%	27		16%	97	57%	171	100%
Individuals	367	28%	193		15%	747	57%	1,307	100%
Total	414	28%	220		15%	844	57%	1,478	100%
5. Shellfish aquaculture
Organisations	42	25%	26		15%	102	60%	170	100%
Individuals	335	26%	131		10%	842	64%	1,308	100%
Total	377	26%	157		11%	944	64%	1,478	100%
6. Seaweed harvesting
Organisations	44	27%	31		19%	91	55%	166	100%
Individuals	348	27%	179		14%	778	60%	1,305	100%
Total	392	27%	210		14%	869	59%	1,471	100%
7. Oil and gas sector
Organisations	50	31%	57		35%	55	34%	162	100%
Individuals	366	28%	372		29%	559	43%	1,297	100%
Total	416	29%	429		29%	614	42%	1,459	100%
8. Renewable energy
Organisations	43	26%	44	27%		79	48%	166	100%
Individuals	413	32%	249	19%		634	49%	1,296	100%
Total	456	31%	293	20%		713	49%	1,462	100%

Percentages may not total 100% due to rounding.

The table combines those who selected ‘strongly support’ OR ‘support’ into a single category (Support). It also combines those who selected ‘strongly oppose’ OR ‘oppose’ into a single category (Oppose). See Tables A1.4 to A1.19 in Annex 1 for a full breakdown of the responses using the 5 original response categories.

Table 5.1 (part 2): Q2 – What is your view of the effectiveness of the proposed approaches to manage the activities listed below, as set out in section 6 of the draft Policy Framework, in order to achieve the aims and purpose of HPMAs?

Activity	Support No.	Support %	Neutral No.	Neutral %	Oppose No.	Oppose %	Total No.	Total %
9. Carbon capture, utilisation and storage
Organisations	47	29%	58	36%	57	35%	162	100%
Individuals	367	29%	414	32%	503	39%	1,284	100%
Total	414	29%	472	33%	560	39%	1,446	100%
10. Subsea cables
Organisations	41	25%	52	32%	69	43%	162	100%
Individuals	333	26%	357	28%	593	46%	1,283	100%
Total	374	26%	409	28%	662	46%	1,445	100%
11. Aggregate extraction
Organisations	60	37%	50	31%	52	32%	162	100%
Individuals	351	27%	342	27%	591	46%	1,284	100%
Total	411	28%	392	27%	643	44%	1,446	100%
12. Ports and harbours
Organisations	45	27%	40	24%	80	48%	165	100%
Individuals	386	30%	264	21%	637	49%	1,287	100%
Total	431	30%	304	21%	717	49%	1,452	100%
13. Shipping and ferries
Organisations	49	30%	60	36%	57	34%	166	100%
Individuals	420	33%	278	22%	589	46%	1,287	100%
Total	469	32%	338	23%	646	44%	1,453	100%
14. Military and defence
Organisations	40	25%	68	43%	50	32%	158	100%
Individuals	319	25%	432	34%	532	41%	1,283	100%
Total	359	25%	500	35%	582	40%	1,441	100%
15. Hydrogen production
Organisations	42	26%	51	32%	67	42%	160	100%
Individuals	334	26%	399	31%	536	42%	1,269	100%
Total	376	26%	450	31%	603	42%	1,429	100%
16. Space ports
Organisations	43	27%	54	34%	63	39%	160	100%
Individuals	291	23%	418	33%	558	44%	1,267	100%
Total	334	23%	472	33%	621	44%	1,427	100%

Percentages may not total 100% due to rounding.

The table combines those who selected ‘strongly support’ OR ‘support’ into a single category (Support). It also combines those who selected ‘strongly oppose’ OR ‘oppose’ into a single category (Oppose). See Tables A1.3 to A1.18 in Annex 1 for a full breakdown of the responses using the 5 original response categories.

5.6 In addition, 2,018 respondents who submitted Scottish Environment LINK campaign responses said that they supported the prohibition of all activities that remove or damage natural marine resources, or that dump materials and pollutants in the sea, within HPMAs and adjacent waters. They also said they supported access for recreation and cultural heritage within HPMAs as long as activities are well regulated and low impact.

5.7 The paragraphs below present a high-level summary of the comments received in relation to the proposed management approaches. A more detailed analysis of the comments is provided at Annex 6.

5.8 It should be noted that respondents – individuals especially, but also some organisational respondents – were critical of this question:

• Some said they found the question difficult to understand. Respondents said they found the phrasing of the question complicated and / or they were unsure what they were expressing support for or opposition to. Some chose not to answer the question; others provided an answer while expressing uncertainty about whether they had understood the question and were responding in the way they intended.
• Some said it was not possible to comment properly without knowing where HPMA sites would be located.
• Some said it was a ‘leading question’ which assumed agreement with HPMAs.

5.9 In addition, some respondents did not answer the question because they were opposed to the introduction of HPMAs and therefore did not wish to comment on the proposed approach to managing individual activities under such an arrangement.

5.10 Among the remaining respondents, some offered general comments while others commented in relation to one or more of the 16 activities as presented in the following sections. Note that individuals were more likely to comment at a general level, and those that commented on individual activities were more likely to comment on fishing-related activities than other activities. Overall, the activities that attracted most comment were those relating to fishing (both commercial and recreational) and aquaculture. Some activities (including those relating to military and defence activities, carbon capture, utilisation and storage, aggregate extraction, hydrogen production, and space ports) received very few comments.

Views on the general approach

5.11 In addition to commenting in relation to the 16 activities, respondents also often commented at a more general level.

5.12 Those who offered broad endorsement of the proposed management measures (largely environmental organisations and some individuals who provided a substantive response) thought it was necessary to restrict and / or carefully manage human activities to protect the marine environment. However, some also noted the importance of taking account of socio-economic impacts and engaging with communities and stakeholder groups in developing restrictions. Others said the effectiveness of any measures put in place would depend on adequate monitoring and enforcement.

5.13 Those who were broadly opposed to the proposed management measures (a range of organisations and most individuals who provided a substantive response) said management measures were unnecessary, disproportionate, or not based on evidence. These respondents also pointed to the likely socio-economic impacts on communities, the lack of detail in the proposals, and the fact that many of the listed activities were already well regulated. In general, respondents in this group argued that low-impact non-damaging activities should be allowed to continue in HPMAs.

Fishing and aquaculture

5.14 The draft policy framework proposed that fishing (both commercial and recreational) and aquaculture (both finfish and shellfish) would not be permitted in HPMAs. It also proposed that seaweed harvesting below MLWS would not be permitted,^[12] but it did not discuss specific management arrangements in relation to seaweed cultivation – another form of aquaculture. These topics received most comments at Question 2. Across all five of these activities, organisations and individuals repeatedly said that a distinction needs to be made between low-impact and high-impact forms of fishing and aquaculture.

5.15 Respondents considered low-impact forms of fishing to include line fishing, creel fishing, hand-diving, fishing with static gear, recreational and ‘subsistence’ fishing. High-impact forms of fishing were considered to be bottom trawling and dredging. In general, as discussed in paragraph 5.13 above, respondents who made this distinction thought that low-impact forms of fishing should be permitted in HPMAs. Some, but not all, environmental organisations agreed with this view. However, other environmental organisations thought that all forms of fishing should be prohibited in HPMAs, but that low-impact forms of fishing should be permitted in HPMA ‘buffer zones’ – that is, areas immediately outside the boundaries of HPMAs where high-impact forms of fishing would still be prohibited.

5.16 Low-impact forms of aquaculture were considered to be shellfish aquaculture and seaweed cultivation. Respondents thought these forms of aquaculture should be permitted in HPMAs because they help improve biodiversity and support improvements to the marine environment. Regarding seaweed harvesting, specifically, respondents often said that a distinction should be made between seaweed harvesting and seaweed cultivation, and that different management approaches may be needed for these two activities. However, the general view was that sustainable seaweed harvesting (linked to seaweed cultivation) should also be permitted in HPMAs. Some environmental organisations agreed with these views.

5.17 Views on finfish aquaculture were polarised. Some respondents considered finfish aquaculture to have serious adverse effects on the marine environment. This group (which included environmental organisations, some organisations in the ‘other organisation types’ category and some individuals) thought finfish aquaculture should not take place in HPMAs. However, other respondents disagreed, saying that claims of negative impacts on the marine environment were ‘unfounded and exaggerated’. This latter group highlighted the importance of finfish aquaculture to both national and local economies in Scotland. Irrespective of whether they agreed or disagreed with the proposed management approaches to finfish aquaculture, respondents thought the proposal to relocate finfish farms from areas selected as HPMAs was likely to be problematic. For example, some said the concept of relocation was based on unrealistic assumptions that did not address the legal, practical and financial realities. These respondents also questioned the powers of the Scottish Government to guarantee relocation of an existing finfish farm to an alternative site of equal value elsewhere.

Other recreational activities

5.18 The draft policy framework proposed that recreational activities (e.g. use of motorised and non-motorised vessels, personal watercrafts, windsurfing, swimming, and diving) be allowed within HPMAs at carefully managed levels, that any restrictions be based on scientific advice and that guidance and permit systems be used, where appropriate, in the management of activities.

5.19 Organisational respondents broadly agreed that non-damaging recreational activities should be allowed in HPMAs, and endorsed the use of guidance and permits for managing such activities where appropriate. However, some environmental organisations suggested various caveats to their support for this approach – for example, calling for the use of motorised vessels to be prohibited or restricted, and stressing the importance of monitoring and enforcement. Some respondents from the recreation, tourism and culture sectors emphasised the low-impact, sustainable nature of local marine tourism and the principles of ‘responsible tourism’ and called for an evidence-based approach to any restrictions on activities. Respondents of all types stressed the importance of recreational activities to local communities and economies.

5.20 Individuals expressed similar views to organisations. However, some said they were opposed to any restrictions on low-impact activities, while others thought the use of motorised vessels should be managed. Those with an interest in recreational boating expressed concerns about the implications of possible HPMA restrictions for their activities – including in relation to anchoring and moorings.

Commercial / industrial activities

5.21 The draft policy framework proposed that a range of non-fishing activities which could be described as ‘commercial’ and / or ‘industrial’ (the oil and gas sector, renewable energy, carbon capture, utilisation and storage, subsea cables, aggregate extraction and hydrogen production) should be largely excluded from consideration in designating HPMAs. That is, an area where these activities were ongoing or were already in the planning process, would be deemed ‘out of scope’ when choosing sites to designate as HPMAs. Specific exceptions to this (different for each activity) were described in the policy framework.

5.22 The comments expressed in relation to these activities were generally made by organisations involved in these sectors (i.e. energy providers, local authorities or regulatory bodies) who were broadly in favour of the approaches outlined, as well as by environmental and community organisations, and a range of individuals, who were broadly opposed.

5.23 The comments from energy providers, and other organisations with similar interests were often very detailed in nature and in many cases related to licensing and regulatory issues and ‘future-proofing’. The comments from environmental organisations, community organisations and individuals were at a more general level and focused more on the benefits to communities of employment in the (broadly defined) renewable energy sector, the contribution this makes to the achievement of climate change targets, and an unwillingness to see large areas excluded from consideration as potential HPMAs.

Shipping and ferries, and ports and harbours

5.24 The draft policy framework proposed that (i) existing ports and harbours and associated areas and infrastructure be excluded from the HPMA site identification process, and that (ii) the development of new ports, harbours, ferry piers and marinas would be prohibited in areas designated as HPMAs. With regard to shipping and ferries, it proposed that transit across HPMAs would continue to be allowed.

5.25 Those providing substantive comments on the proposed management arrangements for ports and harbours broadly endorsed the exclusion of existing facilities from HPMA site designation and noted the importance of such facilities for coastal communities and businesses. Shipping, ports and harbour organisations made a number of suggestions as to how the exclusions might be defined. Respondents – including community groups; recreation, tourism and culture organisations; public sector bodies; and individuals – were, however, concerned about the proposed ban on the future development of new ports, harbours, ferry piers and marinas. It was suggested that this could contravene the Islands (Scotland) Act 2018 by treating island communities substantially different to mainland communities. There were calls for a flexible approach to allow the development of small-scale appropriate facilities that would be of benefit to coastal communities and businesses, particularly in more remote areas.

5.26 Respondents were broadly content with the proposals relating to shipping and ferries although a few respondents from a number of different sectors suggested more nuanced approaches incorporating limited restrictions of various types (e.g. seasonal restrictions, restrictions related to the environmental-friendliness of the vessel).

Other activities – military and defence and space ports

5.27 The draft policy framework proposed the exclusion of some areas hosting military infrastructure and activities from the HPMA site selection process, and the continuation of MoD defence activities in line with relevant environmental guidelines within future designated areas. It also proposed banning (i) new space port infrastructure and the deposition of debris or other materials from space launches, and (ii) the issuing of new licences for space launches in HPMAs. Areas covered by existing space port licences would be considered for exclusion as HPMAs on a case-by-case basis.

5.28 Comment on both these issues were limited. However, some respondents, including environmental organisations and individuals, expressed concern about the potential for environmental damage and the incompatibility of such activities with the conservation aims of HPMAs. A specific issue was raised in relation to the impact of military sonar on cetaceans (whales and dolphins). Other types of organisational respondents and other individuals tended to highlight the possible socio-economic impact of restrictions on activities that were important to local coastal economies – the growing space port industry was particularly noted in this respect.

Missing activities

Question 2 asked respondents if they thought any activities were missing from the list. Suggestions were limited but included deep sea mining and extraction of minerals, release of pollutants / sewage into the sea or nearby water courses, cruise ship operations / tourism, salvage operations, and research activities.

Prohibiting activities from the point of designation (Q3)

5.29 Section 8.3.2 of the policy framework set out proposals for new legal powers to be introduced, within the existing framework of the Marine (Scotland) Act 2010, to allow for a range of activities to be prohibited from the point of HPMA designation. Question 3 asked for views on this proposed new power.

5.30 Table 5.2 below and Table A1.20 in Annex 1 show the following main points based on the substantive responses:

• Overall, around a fifth (19%) of respondents said they supported the proposal (13% said they supported it strongly), while more than three-quarters (78%) opposed it (69% said they opposed it strongly). Just 3% of respondents selected ‘neutral’.
• Organisations (24%) were more likely to express support for the proposal than individuals (18%); conversely organisations were less likely to express opposition (70%) than individuals (79%).
• Levels of support were highest among environmental organisations (93%). Levels of opposition were highest among fishing organisations (100%), fish selling and processing (100%) organisations, aquaculture organisations (95%), and community groups (83%). Around two-thirds of organisations in the recreation, tourism and culture sector (64%) and in the ‘other organisation types’ category (69%) were also opposed.

Table 5.2: Q3 – What is your view of the proposed additional powers set out in section 8.3.2 of the draft Policy Framework: ‘Allow for activities to be prohibited from the point of designation to afford high levels of protection’?

Respondent type	Support No.	Support %	Neutral No.	Neutral %	Oppose No.	Oppose %	Total No.	Total %
Fishing organisations / groups	0	0%	0	0%	28	100%	28	100%
Community organisations and groups	5	14%	1	3%	30	83%	36	100%
Environmental organisations	27	93%	1	3%	1	3%	29	100%
Recreation, tourism and culture organisations	6	27%	2	9%	14	64%	22	100%
Aquaculture organisations / groups	0	0%	1	5%	21	95%	22	100%
Public sector bodies including regulators and local authorities	2	15%	1	8%	10	77%	13	100%
Fish selling and processing organisations / groups	0	0%	0	0%	6	100%	6	100%
Other organisation types	7	17%	6	14%	29	69%	42	100%
Total organisations	47	24%	12	6%	139	70%	198	100%
Total individuals	250	18%	41	3%	1,107	79%	1,398	100%
Total, all respondents	297	19%	53	3%	1,246	78%	1,596	100%

Percentages may not total 100% due to rounding.

The table combines those who selected ‘strongly support’ OR ‘support’ into a single category (Support). It also combines those who selected ‘strongly oppose’ OR ‘oppose’ into a single category (Oppose). See Table A1.20 in Annex 1 for a full breakdown of the responses using the 5 original response categories.

5.31 A range of respondents explicitly said they found this question difficult to answer. This was for two main reasons:

• They were unclear how Question 3 differed from the two preceding questions.
• The question itself was complex. It asked three sub-questions: (1) Should there be new powers? (2) Should the new powers allow activities to be prohibited? and (3) Should this prohibition be from the point of designation? The question also included an assumption that these additional powers would ‘afford high levels of protection’.

5.32 Respondents’ comments at Question 3 were therefore, to a large extent, simply a restatement of (i) their views on whether or not they supported the designation of HPMAs, (ii) the reasons for these views, and (iii) the extent to which they did or did not agree with the list of (16) proposed prohibited activities within HPMAs. These points are discussed in Chapter 4 and in relation to Question 2 above.

5.33 Respondents who supported the designation of HPMAs confirmed their support for the proposed new powers, subject to there being no conflict or overlap with existing legislation. These respondents expected the activities covered by the new powers to be prohibited at the point of designation. One public sector body went on to ask for further additional powers in relation to (i) relocating existing human activities and (ii) revoking existing permits.

5.34 Respondents who did not support the designation of HPMAs questioned the requirement for new powers, and made the following main points:

• Many of the activities listed are already strongly regulated, with licence systems in place. Scottish Ministers already have powers to regulate / assess environmental impact under the Marine (Scotland) Act 2010, and additional powers – particularly ‘blanket’ powers of the kind suggested – are not required.
• No new powers should be granted until (i) sites have been selected, (ii) consultation with affected communities has been completed, and (iii) compensation arrangements are in place.
• The new powers are likely to be incompatible with UK and / or international law relating to fishing and marine issues, as well as other existing law in Scotland (relating, for example, to community assets and community empowerment) and to face legal challenge.

5.35 In addition, respondents (both organisations and individuals) who worked in areas where production and investment cycles are planned many years ahead (for example those working in aquaculture, the renewable energy sector, and energy providers more generally), noted that any new powers would have to be introduced in an appropriate timescale which allowed adequate ‘lead-in’ time for any proposed change.

Activities permitted on a case-by-case basis (Q4)

5.36 Section 8.3.3 of the policy framework set out proposals for additional powers to be introduced to establish processes by which public authorities can permit certain limited activities within a HPMA on a case-by-case basis for specified reasons. Such reasons related to lifeline services to remote and island communities, public safety, habitat or species restoration projects furthering the objectives of a HPMA, scientific monitoring, compliance with international law and legal obligations, or any other over-riding reason identified by Scottish Ministers.

5.37 Question 4 asked for views on this proposed new power. Table 5.3 below and Table A1.21 in Annex 1 show the following main points based on the substantive responses:

• Overall, around a third (31%) of respondents said they supported the proposal (14% said they supported it strongly), while just over a half (56%) opposed it (44% said they opposed it strongly). Around one in eight respondents (13%) selected ‘neutral’.
• Organisations were more likely to express support for the proposal (41%) than individuals (30%); conversely organisations were less likely to express opposition (41%) than individuals (58%).
• Among organisations, levels of support were highest among environmental organisations (70%) and public sector bodies (69%). Levels of opposition were highest among fishing organisations (72%), aquaculture organisations (50%), and community groups (49%).

Table 5.3: Q4 – What is your view of the proposed additional powers set out in section 8.3.3 of the draft Policy Framework: ‘Establish processes to permit certain limited activities within a HPMA on a case-by-case basis for specified reasons’?

Respondent type	Support No.	Support %	Neutral No.	Neutral %	Oppose No.	Oppose %	Total No.	Total %
Fishing organisations / groups	4	16%	3	12%	18	72%	25	100%
Community organisations and groups	12	34%	6	17%	17	49%	35	100%
Environmental organisations	21	70%	8	27%	1	3%	30	100%
Recreation, tourism and culture organisations	10	45%	3	14%	9	41%	22	100%
Aquaculture organisations / groups	5	23%	6	27%	11	50%	22	100%
Public sector bodies including regulators and local authorities	9	69%	1	8%	3	23%	13	100%
Fish selling and processing organisations / groups	1	17%	3	50%	2	33%	6	100%
Other organisation types	18	42%	5	12%	20	47%	43	100%
Total organisations	80	41%	35	18%	81	41%	196	100%
Total individuals	407	30%	169	12%	791	58%	13,67	100%
Total, all respondents	487	31%	204	13%	872	56%	1,563	100%

Percentages may not total 100% due to rounding.

The table combines those who selected ‘strongly support’ OR ‘support’ into a single category (Support). It also combines those who selected ‘strongly oppose’ OR ‘oppose’ into a single category (Oppose). See Table A1.21 in Annex 1 for a full breakdown of the responses using the 5 original response categories.

5.38 The comments at Question 4 were of three distinct types, as follows:

• Respondents said their comments had been provided earlier (at Question 1 and / or Question 2).
• Respondents commented in relation to (i) their overall views about HPMAs and / or (ii) their views about which specific activities should and should not be prohibited within an HPMA.
• Respondents commented on whether or not a case-by-case approach to the permission of certain limited activities was supported.

5.39 The first two types of comment above are considered elsewhere in this report. (See Chapter 4 and the discussion of Question 2 above.)

5.40 As far as the proposed case-by-case approach was concerned, a small number of respondents said simply that they either supported this kind of approach – because they saw it as a practical necessity under the circumstances, or did not support this kind of approach – because it was bureaucratic or a waste of money, and / or because HPMAs should be designed to allow a certain amount of activity without the need for special permission.

5.41 However, most respondents who commented went on to ask for further clarification, or to raise further questions about how the process of case-by-case assessment would work. The main issues raised by respondents included the following:

• The proposal as set out in section 8.3.3 was ‘vague’, and ‘lacked clarity’. In particular, respondents asked what is meant by ‘specified reasons’ and ‘no reasonable alternative’?
• Who / which organisation(s) will have the power to decide what is permissible on a case-by case basis? Moreover, how could communities have confidence that the case-by-case assessment process would not prioritise ‘large scale’ commercial interests over local interests?
• How will consistency, transparency, and scrutiny in decision-making be achieved?
• How will the impacts of any special permissions be monitored and evaluated?
• Where will the resources to carry out this case-by-case assessment come from? Respondents thought this was likely to be a labour-intensive process, and they were not clear whether there would be adequate resources allocated to it. Some respondents – particularly community groups and individuals – also emphasised that there should be no additional costs arising from any permitting process.

5.42 Respondents emphasised the importance of maintaining lifeline services but did not specifically comment on whether they should be assessed on a case-by-case basis under HPMA powers.

Activities permitted in cases of emergency or force majeure (Q5)

5.43 Section 8.3.4 of the policy framework set out proposals to allow some activities otherwise prohibited in a HPMA in cases of emergency and force majeure. This would cover circumstances related to, for example, the prevention of injury, loss of life or damage to property; search and rescue activity, firefighting, anchoring of vessels in storms, and any other activities required for the purpose of securing the safety of a vessel, aircraft or marine structure; the emergency removal of obstructions or dangers to navigation; and responses to environmental incidents such as chemical or oil spills.

5.44 Question 5 asked for views on the proposed new powers to cover the use of prohibited activities in such situations. Table 5.4 below and Table A1.22 in Annex 1 show the following main points based on the substantive responses:

• Overall, 4 in 10 respondents (40%) said they supported the proposal (20% said they supported it strongly), while around a third (37%) opposed it (32% said they opposed it strongly). A quarter of respondents (24%) selected ‘neutral’.
• Organisations were more likely to express support for the proposal (56%) than individuals (37%); conversely organisations were less likely to express opposition (16%) than individuals (40%).
• Among organisations, high levels of support were expressed by environmental organisations (89%) and public sector bodies (85%). All other organisational groups expressed mixed views on this question.

Table 5.4: Q5 – What is your view of the proposed additional powers set out in section 8.3.4 of the draft Policy Framework: ‘Activities which are not permitted in a HPMA but are justified in specified cases of emergency or force majeure’?

Respondent type	Support No.	Support %	Neutral No.	Neutral %	Oppose No.	Oppose %	Total No.	Total %
Fishing organisations / groups	6	23%	11	42%	9	35%	26	100%
Community organisations and groups	15	47%	14	44%	3	9%	32	100%
Environmental organisations	25	89%	3	11%	0	0%	28	100%
Recreation, tourism and culture organisations	12	57%	5	24%	4	19%	21	100%
Aquaculture organisations / groups	9	45%	9	45%	2	10%	20	100%
Public sector bodies including regulators and local authorities	11	85%	1	8%	1	8%	13	100%
Fish selling and processing organisations / groups	3	50%	1	17%	2	33%	6	100%
Other organisation types	24	56%	9	21%	10	23%	43	100%
Total organisations	105	56%	53	28%	31	16%	189	100%
Total individuals	494	37%	303	23%	523	40%	1,320	100%
Total, all respondents	599	40%	356	24%	554	37%	1,509	100%

Percentages may not total 100% due to rounding.

The table combines those who selected ‘strongly support’ OR ‘support’ into a single category (Support). It also combines those who selected ‘strongly oppose’ OR ‘oppose’ into a single category (Oppose). See Table A1.22 in Annex 1 for a full breakdown of the responses using the 5 original response categories.

5.45 In general, comments at Question 5 were limited to:

• A restatement of respondents’ views on the designation of HPMAs (see Chapter 4), and
• Affirmation that in emergency situations affecting public safety (‘force majeure’) it made sense to allow otherwise prohibited activities to take place in HPMAs – indeed, some respondents asked why this question had been included in the consultation, as the answer was ‘so obvious’.

5.46 In other cases, respondents asked for transparency in relation to the decision-making processes which would be followed in any emergency scenario, and wished to be reassured that any decisions made in an emergency situation would not be in conflict with international maritime law. However, no respondent offered any reasons why a ‘force majeure’ should not prompt the suspension of rules in relation to HPMAs.

Activities allowed and carefully managed in HPMAs (Q6)

5.47 Section 8.3.5 of the policy framework proposed that some activities would be allowed to take place in HPMAs under careful management and at non-damaging levels. Identified activities included SCUBA diving; snorkelling; swimming; the use of motorised vessels or personal watercrafts (e.g. motorboats, jet skis); the use of non-motorised vessels or crafts (e.g. sailboats, kayaking, canoeing, paddleboarding, surf, kitesurfing, windsurfing, etc.); wildlife watching; anchoring and mooring at specified designated locations; and scientific research using non-damaging methods for the purpose of monitoring the ecological condition of the HPMA.

5.48 The framework suggested the introduction of provisions that would allow such activities to be managed in a range of ways such as by using guidance and codes of conduct (with the issuing potentially delegated to other bodies), permitting systems (with the issuing potentially delegated to other bodies), and designation orders (under the Marine (Scotland) Act and the UK Marine and Coastal Access Act 2009).

5.49 Question 6 asked for views on the proposed additional powers. Table 5.5 below and Table A1.23 in Annex 1 show the following main points based on the substantive responses:

• Overall, around a quarter (27%) of respondents said they supported the proposal (10% said they supported it strongly), while around half (55%) opposed it (45% said they opposed it strongly). One in six respondents (17%) selected ‘neutral’.
• Organisations were more likely to express support for the proposal (36%) than individuals (26%); conversely organisations were less likely to express opposition (39%) than individuals (58%).
• Among organisations, levels of support were highest among environmental organisations (80%) and public sector bodies (62%). Levels of opposition were highest amongst fish selling and processing organisations (80%), aquaculture organisations (71%), and fishing organisations (64%). Community organisations, organisations in the recreation, tourism and culture sector, and organisations in the ‘other organisation types’ category expressed mixed views on this question.

Table 5.5: Q6 – What is your view of the proposed additional powers set out in section 8.3.4 of the draft Policy Framework: ‘Measures for activities allowed and carefully managed in HPMAs’?

Respondent type	Support No.	Support %	Neutral No.	Neutral %	Oppose No.	Oppose %	Total No.	Total %
Fishing organisations / groups	1	4%	8	32%	16	64%	25	100%
Community organisations and groups	7	21%	14	41%	13	38%	34	100%
Environmental organisations	24	80%	5	17%	1	3%	30	100%
Recreation, tourism and culture organisations	8	38%	7	33%	6	29%	21	100%
Aquaculture organisations / groups	5	24%	1	5%	15	71%	21	100%
Public sector bodies including regulators and local authorities	8	62%	1	8%	4	31%	13	100%
Fish selling and processing organisations / groups	0	0%	1	20%	4	80%	5	100%
Other organisation types	16	39%	10	24%	15	37%	41	100%
Total organisations	69	36%	47	25%	74	39%	190	100%
Total individuals	345	26%	218	16%	769	58%	1,332	100%
Total, all respondents	414	27%	265	17%	843	55%	1,522	100%

Percentages do not total 100% due to rounding.

The table combines those who selected ‘strongly support’ OR ‘support’ into a single category (Support). It also combines those who selected ‘strongly oppose’ OR ‘oppose’ into a single category (Oppose). See Table A1.23 in Annex 1 for a full breakdown of the responses using the 5 original response categories.

5.50 Comments at Question 6 focused on three main areas as follows:

• Issues of principle in relation to permitting some activities to take place in HPMAs
• Composition of the list of (potentially) permitted activities
• Views and questions about the approach to implementation of a system to permit some activities to take place in HPMAs.

5.51 Each of these is discussed further below.

5.52 In general, respondents who supported the designation of HPMAs thought that an arrangement of the kind described in section 8.3.5 was a reasonable idea, as long as it was carefully managed, that ‘non-damaging’ was clearly defined and agreed, and that the system was not too resource intensive or bureaucratic.

5.53 By contrast, respondents who did not support the designation of HPMAs answered in three distinct ways as follows:

• One group of respondents said that since no change to current arrangements was required (i.e. since they did not think it was necessary to designate HPMAs), the proposal was not relevant.
• A second group said that a system such as that proposed would make an insignificant difference to the overall impact of HPMAs.
• A third group said they did not disagree outright with the proposal – rather they had questions about (i) the definition and assessment of ‘non-damaging’ activities, (ii) the composition of the list of (potentially) permitted activities, and (iii) the practical arrangements for any such scheme.

5.54 Some respondents who supported the designation of HPMAs endorsed the list of activities presented. More commonly, however, respondents (both those who supported the designation of HPMAs and those who opposed them) queried why the list was so restricted. In particular, fishing and aquaculture organisations, community groups, recreation, tourism and culture organisations, as well as many individuals thought the list should be expanded to include all low-impact activities of any kind – including fishing activities, marine tourism and recreational activities such as anchoring and mooring.

5.55 It was common for respondents from fishing and aquaculture organisations to highlight that the list of (potentially) permitted activities was ‘biased’ towards (encouraging or permitting) activities relating to tourism. These respondents emphasised that tourism was highly seasonal and of far less economic importance to their area than fishing. By contrast, public bodies, recreation, tourism and culture organisations, community groups and many individuals from coastal communities emphasised the economic importance of tourism to their area, and highlighted their concerns that a permit system might dissuade tourists from visiting.

5.56 As far as the implementation of any such scheme was concerned, respondents from a wide range organisational groups as well as individuals made the following main points:

• It would be important to limit the bureaucracy that any such scheme might entail. In order to be successful, the scheme needed to be easy to understand and manage.
• A locally managed permit system would be preferable. Community groups and individuals in particular – but also respondents from a wide range of organisational groups – emphasised that local communities should be involved in developing and managing any scheme, and that this would be the best way to facilitate / encourage compliance. It was suggested that a locally developed accreditation scheme – co-designed with local people involved in low-impact activities – could be particularly helpful. Some respondents argued that local residents should be exempt from any fees relating to individual permits; however, they also noted that it was unlikely that local communities would receive much by way of revenue from any such scheme.
• It was not clear how any scheme would be enforced.

Other comments (Q7)

5.57 A final question in this section invited any further comments on the draft policy framework.

5.58 Comments at Question 7 covered three main aspects of the policy framework as follows:

• High-level, strategic or overarching considerations that underpin the policy framework as a whole
• Areas which are missing from, or appear to be under-developed in, the policy framework
• Specific issues relating to the implementation of HPMAs.

5.59 Each of these are discussed in further detail below.

5.60 In relation to strategic, or overarching considerations, the following main points were made:

• The policy framework has not delivered on its stated aim to involve those who will be affected by the designation of HPMAs in the development of the policy approach.
• Policy in relation to HPMAs should align with wider Scottish Government policies, plans and strategies, especially with those that aim to support the long-term viability of remote and rural populations, and those that address issues related to environmental protection and sustainability. As previously discussed in Chapter 4, respondents who opposed the designation of HPMAs said it was not clear that this was currently the case; indeed, some respondents said they thought there was a profound contradiction between the Scottish Government’s policies in relation to remote and rural populations (including the depopulation of the Scottish islands) and the designation of HPMAs.
• Before moving to designate HPMAs, other spatial measures to manage human activities in the marine environment should first be explored. (See Chapter 8, where alternatives to HPMAs are discussed in full.)
• HPMAs should not be pursued in isolation – rather they should be accompanied by a comprehensive spatial plan which covers all industries / activities in the marine environment. The current approach, according to respondents, involves several competing spatial management processes. Scottish Environment LINK campaign respondents echoed these views, stating that ‘HPMAs must not simply be oases in a marine desert. Activities that damage marine species and habitats must also be better managed throughout Scotland’s seas, to prevent further degradation, for HPMAs to provide their full potential benefit to both people and ocean’.
• The policy framework needs to explain how the designation of HPMAs will contribute to / deliver a ‘just transition’.

5.61 The following main areas were identified as being either missing from, or under-developed, in the current draft policy framework:

• There is no (or very limited) discussion in the policy framework of the potential for adverse environmental consequences following designation of HPMAs.
• There is limited or inadequate discussion in the policy framework of:
  • The payment of compensation to those adversely affected by the designation of HPMAs
  • The formal methodologies which will be used to monitor and evaluate HPMAs, and how HPMA status might be rescinded if it proves unsuccessful
  • The potential adverse impact on food security.
• The reasons why the enforcement powers and penalties for MPAs have – according to respondents – been ineffective, and the case for why the enforcement powers and penalties discussed in relation to the designation of HPMAs will be different / effective are not addressed.

5.62 Respondents also made a range of more specific points in relation to the implementation of HPMAs as follows:

• The timescales for designation of HPMAs are too short, rushed and premature.
• The HPMA approach is ‘discriminatory’, and disadvantages small fishing organisations and coastal communities who rely on fishing for their livelihoods.
• It is not clear what the legal basis is for the removal of current extant licences (e.g. for aquaculture).
• It is not clear how the designation of HPMAs can proceed if the UK does not transfer the relevant powers.

5.63 Finally, another issue raised by a number of respondents was that of defining HPMA boundaries with reference to the MLWS (mean low water springs). There were two views on this. Some respondents (environmental organisations in particular) thought that boundaries should be set using the MHWS (mean high water springs) to avoid confusion about the inclusion of nearshore areas, particularly in places with big tidal ranges, and provide maximum environmental protection. However, others (individuals and community groups) agreed with the proposed approach as extending the boundary beyond that would have a greater impact on on-shore activities such as collecting shellfish or seaweed for personal use. Alongside this, there was also a call for the term ‘low tide mark’ to be used as this would be clearer to those unfamiliar with marine terminology.