A Brexit Blueprint for

Sustainable Seas

November 2016

A Brexit blueprint for sustainable seas

© Copyright ABPmer November 2016 1

A Brexit blueprint for sustainable seas

Introduction

Much of the early debate on the implications of Brexit for the marine environment has been negative

and focused on the potential risks. This has been based on a perception that the UK government will

seek to water down protection of the marine environment upon leaving the EU, although this has

been strenuously denied by Defra1.

While there will undoubtedly be challenges associated with Brexit, there will also be opportunities to

address some of the failings of the current legal and policy framework. However, while various bodies

including the Environment Agency1, the UK Environmental Law Association (UKELA),

2 and the

Chartered Institute of Ecology and Environmental Management (CIEEM)3 have indicated that there

could be opportunities associated with Brexit, there has been little, if any, exploration of what those

might be. In this White Paper I therefore focus on the potential opportunities that Brexit may provide

for better management of the marine environment in seeking to achieve the UK’s vision of ‘clean,

healthy, safe, productive and biologically diverse oceans and seas’4.

This paper has been written to stimulate debate about Brexit opportunities. The views expressed are

solely those of the author.

Evolution of the Policy Framework

The UK legal and policy framework for the

marine environment is highly complex

having evolved piecemeal over many

decades. It includes international

legislation such as the UN Convention of

the Law of the Sea (UNCLOS), Conventions

of the International Maritime Organisation

(IMO), the Oslo and Paris (OSPAR)

Convention and commitments stemming

from World Summit on Sustainable

Development (WSDD) meetings. There is

also a wide body of legislation stemming

from Europe including the Water

1 http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environmental-audit-

committee/the-future-of-the-natural-environment-after-the-eu-referendum/oral/42022.pdf 2 https://www.ukela.org/UKELAPosition

3 http://www.cieem.net/news/344/cieem-publishes-position-statement-on-brexit

4 https://www.gov.uk/government/news/uk-marine-policy-statement-published

Image courtesy Andrew Pearson

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Framework Directive (WFD), Marine Strategy Framework Directive (MSFD), Wild Birds and Habitats

Directives, Bathing Water Directive and Common Fisheries Policy (CFP). At a national level relevant

legislation includes the Marine and Coastal Access Act (MCAA) 2009 and devolved administration acts,

various national fisheries legislation and a large number of byelaws.

In recognition of the piecemeal nature of much of the EU legislation, framework directives such as

WFD and MSFD have been introduced in recent years to provide for more integrated management of

Europe’s seas. These directives establish systems of planning and management for the achievement

of environmental quality objectives looking to manage the totality of human activity pressure on

marine environmental receptors.

Statutory systems of marine spatial

planning (MSP) have also been introduced

across the UK to seek to support

sustainable development in our seas.

While few plans have yet been adopted in

UK waters, current planning processes are

seeking to achieve full coverage of UK

waters by 20215. Alongside but separate

to these marine planning processes, there

has also been a significant drive to

establish networks of marine protected

areas (MPAs) to meet international

commitments6.

Notwithstanding the development of the legal and policy framework, progress in achieving the vision

of clean, healthy, safe, productive and biologically diverse oceans and seas is mixed. Significant

progress has been made in achieving reductions in marine pollution from point source discharges

over the past four decades but diffuse pollution still adversely affects some transitional and coastal

waters7. Limited progress has been made in recovering fish stocks

8 and there are many examples of

continuing decline in marine biodiversity9 as well as a legacy of historic damage

10.

In recent years, the concept of natural capital has gained increasing traction. The Natural Capital

Committee’s (NCC) third report11

sets out recommendations to achieve the UK government’s

environmental vision, expressed in the 2011 White Paper ‘The Natural Choice’12

to be ‘the first

5 https://www.gov.uk/government/collections/marine-planning-in-england

6 https://www.gov.uk/government/publications/2010-to-2015-government-policy-marine-environment/2010-to-2015-

government-policy-marine-environment 7 http://webarchive.nationalarchives.gov.uk/20141203181034/http://chartingprogress.defra.gov.uk/

8 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/69632/pb13860-marine-strategy-

part1-20121220.pdf 9 http://www.eea.europa.eu/soer

10 Callum Roberts, 2010. The Unnatural History of the Sea. Island Press. ISBN: 9781597261616

11 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/516725/ncc-state-natural-capital-

third-report.pdf 12

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228842/8082.pdf

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generation to leave the natural environment in a better state than it inherited’. In particular, the NCC’s

Report called for a 25 year plan to enhance natural capital and proposed that the government should

invest in natural capital projects, including projects in the marine environment. The Government’s

response to the NCC Report13

accepted the need for a 25 year plan, but indicated that it did not

intend to pursue a programme of natural capital investments. The production of this 25 year plan is

being led by Defra.

Brexit is occurring against this backdrop of ongoing change in the legal and policy framework

governing the management of our seas. Brexit will undoubtedly result in further changes to this

framework irrespective of whether the UK decides to remain within or to leave the Single Market.

If the UK negotiates membership of the

European Economic Area (EEA) and thus

remains part of the Single Market (Inside

Single Market option), such membership is

likely to require that the UK continues to

comply with the great majority of

environmental legislation as set out in Annex

XX to the EEA Agreement14

. Two important

exceptions to this would be the Bathing

Waters Directive and Birds and Habitats

Directives. Nor would the Common

Fisheries Policy (CFP) continue to apply.

Under circumstances where there was no special bilateral agreement with the EU and no preferential

access to the Single Market (Outside Single Market option), EU environmental laws would no longer

apply. However, UK companies wishing to export into the EU would continue to need to comply with

requirements of that market (including environmental requirements)15

.

Strengths and Weakness of Current Framework

Our marine environment is a complex (eco)system and there is a complex legal and policy framework

in place for its management. As with all complex systems there are many different perspectives on

what the problems might be and thus different perspectives on what actions might need to be taken

to improve the system. To make progress, the marine stakeholder community needs to work together

to explore different perspectives and build consensus around where change could be beneficial.

13 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/462472/ncc-natural-capital-gov-

response-2015.pdf 14

http://www.efta.int/media/documents/legal-texts/eea/the-eea-

agreement/Annexes%20to%20the%20Agreement/annex20.pdf 15

http://www.abpmer.co.uk/media/1491/white-paper-brexit-implications-for-marine-environment.pdf

Image courtesy Andrew Pearson

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Strengths

A key strength of EU environmental directives is that they seek to achieve high levels of environmental

protection with a long-term vision disconnected from national governmental cycles. This aspiration

has been underpinned by the work of the European Commission to ensure that Member States

properly implement directives, strongly supported by case law from the European Court of Justice.

Where relevant, EU environmental directives also require Member States to co-operate, for example,

in the development of programmes of measures under MSFD and the development of marine plans in

line with the MSP Directive. This can be important when seeking to address issues that occur at

regional seas scale.

The framework directives – WFD and MSFD – are integrative instruments that help marine managers

to focus on achieving holistic environmental outcomes for the marine environment rather than being

sectorally driven or directed towards specific receptors. In this way these directives contribute

towards an ecosystem approach to management.

The directives include many peer reviewed and evidence-based environmental standards that are used

by decision makers to ensure high levels of environmental protection. These standards have been

developed over many years by scientists working in collaboration across Europe. They thus have a

high level of credibility and acceptance amongst stakeholders.

More broadly, stakeholders are familiar with the existing legal and policy framework and the

interpretation of the legislation is supported by a large body of case law. This familiarity can help

developers to plan future development projects and successfully navigate through consenting

processes.

Weaknesses

To me, the ultimate weakness is that

we are still failing to achieve our

marine environmental objectives with

continued biodiversity decline. From

my office window I look down

Southampton Water to the Solent

which used to support the largest

natural fishery for native oyster in

Europe. However, since 2006 stocks

have crashed as a result of

mismanagement of the fishery and

extinction of the population is now a

distinct possibility16

. In the same

16 Kamphausen, K.L., 2012. The reproductive processes of a wild population of the European flat oyster Ostrea edulis in

the Solent, UK, PhD Thesis.

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period, populations of sea bass have also plummeted as a result of overfishing17

although the

unsustainability of commercial fishing practices has been highlighted for many years18

.

While environmental impact assessment (EIA) and Habitats Regulations Assessment (HRA) are good

processes for limiting the impacts of marine development projects, the focus tends to be on

mitigating impacts down to an acceptable level with no obligation on developers to contribute

positively to the enhancement of the marine environment. Thus with every development there tends

to be a residual impact that is not offset, for example impacts that in EIA terms are assessed as

‘minor’ do not generally require mitigation and impacts on Natura 2000 sites that do not constitute

adverse effects on site integrity do not require compensatory measures. Thus, these two directives -

the EIA and Wild Birds and Habitats Directives - can be good at stopping the ‘bad’ but are bad at

facilitating ‘good’.

The policy response to development impacts has

been to progressively tighten down requirements

to minimise impacts. However, there is little

requiring offsetting measures, other than in

relation to significant impacts within Natura 2000

sites where the principle of implementing

compensatory measures is well established. I think

the lack of any obligation to fully offset impacts

is a key weakness in the way in which we currently

manage the marine environment and needs to be

addressed if we are to make further progress

towards achieving our marine environmental

objectives.

While the reformed CFP is taking steps to increase the sustainability of fisheries, it is likely that

measures will continue to be subject to political pressure such that any progress in improving fish

stocks will be slow. Furthermore, measures to address impacts to seabed habitats from bottom towed

fishing gears are likely to be given low priority outside of MPAs.

While the importance of maintaining and enhancing natural capital is widely recognised, it

currently has little weight in marine decision-making because the specific requirements of

environmental directives take precedence in decision-making processes. For example, in its first

report19

the NCC called for greater consideration of the ecosystem approach in decision-making

under the Wild Birds and Habitats Directives but this has not progressed because current (prescriptive)

interpretations of those directives do not allow this. As above, I see the limited weight attached to the

consideration of natural capital in decision making as a significant weakness in the framework because

it does not provide a sufficient mechanism to ensure that impacts are offset.

17 https://www.gov.uk/government/news/new-sea-bass-stock-protection-measures

18 http://www.ukbass.com/eu-fishing-quotas-defy-scientific-advice/

19 https://www.gov.uk/government/publications/natural-capital-committees-first-state-of-natural-capital-report

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While the thrust of marine policy is to contribute to the achievement of sustainable development

(SD)20,

there is no test applied to human uses of the sea to determine whether they are sufficiently

contributing to SD. The sea is a public resource and it should therefore be incumbent on those

making use of it demonstrate that there is a public benefit associated with that use.

Current marine licensing processes focus

on the acceptability of environmental

impacts driven by considerations in the

EIA and Natura directives. Consideration

of economic and social factors in such

decision-making is limited to a small

number of specific circumstances21

. While

many marine activities contribute

significant public benefit either through

providing income and employment

benefits, wider social benefits or

environmental benefits, this is not

transparent in current decision making

processes so there is little understanding

of how individual activities and

developments contribute to human welfare.

Introduction of a public benefit test for human use activities in the marine environment could help to

support deeper levels of sustainability through consideration of economic and social impacts

alongside environmental impacts. This might most easily be applied to development projects but

could also be considered in relation to other activities such as commercial fishing.

Notwithstanding the emergence of marine planning, multiple planning regimes exist for different

aspects of marine management. For example, separate planning systems exist for the achievement of

environmental objectives (WFD and MSFD), MPAs (Marine Conservation Zone (MCZ) and Natura

processes), oil and gas and offshore renewables planning. Planning for fisheries is also conducted

separately. The existence of these multiple processes which are co-ordinated by different public

institutions leads to very weak integration of planning and management and undermines

implementation of an ecosystem approach to management. While this is not an issue wholly caused

by EU legislation, the separate assessment and reporting obligations of the WFD and MSFD contribute

to the silo effect. Post-Brexit there could be more scope for integrating some of this planning,

assessment and reporting to better contribute to an ecosystem approach to management.

Boyes & Elliott (2014)22

note that there are over 20 pieces of EU legislation alone that have direct

repercussions for marine environmental policy and management. Their paper presents a

20 https://www.gov.uk/government/publications/uk-marine-policy-statement

21 http://www.gov.scot/Resource/0046/00467340.pdf

22 Boyes, S.J. & Elliott, M., 2014. Marine legislation – The ultimate ‘horrendogram’: International law, European directives

& national implementation. Volume 86, Issues 1–2, Pages 39–47.

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‘horrendogram’ representing the relationships between national, UK, EU and international legislation

relevant to the marine environment and notes the complexity and amount of legislation.

The multiplicity of different requirements makes it difficult for users to navigate their way through the

different requirements. Often, different legislation seeks to achieve similar outcomes in different ways

requiring developers to tick each box of each requirement separately. For example, there are multiple

frameworks for managing different types of MPAs with different provisions applying to national MCZ,

Natura 2000 sites and Site of Special Scientific Interests (SSSIs). Brexit provides an opportunity to

introduce a single consistent framework for managing MPAs. Such rationalisation and simplification

would help to promote understanding of requirements and ensure there is one consistent set of

standards to be met.

Doing Things Differently

Over the past decade, one of the main policy

responses to our failure to halt biodiversity

decline has been to progressively tighten down

the management frameworks for protected sites

with ever increasing levels of prescription to try to

stop negative impacts. This is manifest in the very

prescriptive new conservation advice packages for

designated sites. However, while this might

marginally reduce ‘bad’ impacts the approach

does nothing to contribute to ‘good’ in terms of

restoring or enhancing biodiversity. It leads to

sterile debates about the significance of impacts

against arbitrary criteria laid down in conservation

advice packages, increasing bureaucracy and

consultants’ and lawyers’ fees while detracting

from doing things that make a real difference.

Furthermore, the approach does nothing to address the legacy of historic damage inflicted on our

marine environment over the centuries.

Albert Einstein said the definition of insanity is doing something over and over again and expecting a

different result. Brexit provides an opportunity to think about doing things differently because the

UK will have greater choice and flexibility over some of the prescription where EU environmental

directives are no longer binding.

Is it possible to design a system that provides a better balance of stopping the ‘bad’ while

promoting the ‘good’? Can we keep the strengths of the existing regime while introducing changes

that can deliver greater environmental economic and social benefit? Or are the two mutually

incompatible?

Image courtesy Andrew Pearson

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I would like to think that we can keep the best of

what we have got while introducing significant

changes to the framework. In particular, in order to

reverse the trend in declining biodiversity, I think

that ‘maintenance and enhancement of natural

capital’ needs to be a fundamental objective of

marine environmental policy with all other

environmental legislation supporting this objective.

This could be enshrined as a duty in law on

decision-makers to ensure that natural capital is

maintained and enhanced. We also need to better

manage our seas as a public resource in the public

interest. This could be achieved by placing a legal

duty on decision-makers to determine public

benefit.

Towards a New Framework

Based on my perceptions of key weaknesses in the existing framework, I propose below four

significant changes which are intended to halt biodiversity decline and support the achievement of

sustainable development in our marine waters. These measures comprise:

Introducing a legal duty on decision-makers to maintain and enhance natural capital;

Introducing a legal duty on decision-makers to determine public benefit when taking

decisions i.e. ensuring that there is transparency concerning how projects and activities

contribute to human welfare;

Improving the integration of existing planning regimes; and

Rationalising and simplifying existing legislation.

Legal Duty to Maintain and Enhance Natural Capital

To support the vision of being ‘the first generation to leave the natural environment in a better state

than it inherited’, maintenance and enhancement of natural capital should be made a fundamental

objective of marine environmental policy. This could be achieved by placing a legal duty on all

decision-makers with marine responsibilities such that when they are taking decisions, they ensure

that natural capital is maintained and enhanced. Delivery of this duty might take a number of forms

including:

Binding requirement on new development projects to offset all environmental impacts

through specific measures23

;

23 In 2014, Defra consulted on proposals to introduce a system of biodiversity offsetting in England which included

some intertidal habitats but the policy was not pursued at that time.

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Developer contributions to a marine restoration fund as a condition of a marine licence;

A pollution tax for aquatic discharges to the marine environment or entering the marine

environment; and

Environmental charge for marine users (fishing, shipping, recreation and tourism) based on

impacts of use.

The level of the charges could be set using valuation methods. The cost of collecting such charges

would be small, as the relevant charges could be incorporated within existing charging mechanisms,

for example, a pollution tax could be levied as part of existing environmental permit charges.

Funds generated through charges

could be used to invest in natural

capital at a strategic scale. Such an

approach could introduce more

flexibility into the offsetting of impacts,

for example, by moving away from the

strict ‘like-for-like’ principle adopted

under the Wild Birds and Habitats

Directive. Safeguards would need to

be in place to ensure that this did not

create a ‘licence to trash’ and

irreplaceable marine features would

require strict protection.

Such restoration funds have been of strategic importance elsewhere in restoring natural capital. For

example, the NOAA Habitat Restoration Project24

received $167 m to invest in marine natural capital

projects as part of the American Recovery and Reinvestment Act 2009 - the United States’ response to

the economic crash of 2008. This programme is restoring more than 15,000 acres of habitat amongst

a raft of other restoration measures. Such a large scale programme in the UK would have real

potential to halt the decline in marine biodiversity and enhance natural capital.

The fund could be administered by a body such as the MMO at a regional scale, using the marine

planning process to work closely with marine stakeholders to determine and implement regional

priority projects.

Legal Duty to Determine Public Benefit

To support sustainable development of the marine environment a legal duty could be placed on all

decision-makers with marine responsibilities such that when they are taking decisions, they ensure

that they consider information on the public benefit that will accrue from that decision and are able to

https://consult.defra.gov.uk/biodiversity/biodiversity_offsetting/supporting_documents/20130903Biodiversity%20offs

etting%20green%20paper.pdf 24

http://www.habitat.noaa.gov/restoration/programs/recoveryact.html

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demonstrate that public benefit is being achieved. This would ensure that decision-making

contributed to human wellbeing. The public benefit might relate to economic, social and/or

environmental factors depending on the nature of the decision.

The intention of the test would not be to conduct a full cost benefit analysis of a proposal but rather

to prompt wider consideration of economic and social factors as part of decision-making in contrast

to the current situation where marine licensing decisions are primarily taken on the basis of

minimising environmental impact. Such a test could help developments and activities to gain greater

social acceptance. Indeed it should encourage those engaged in activities or promoting

developments to consider how they might increase levels of public benefit and thus make a greater

contribution to sustainable development. This direction of travel has been evident in the

development of offshore wind farms with a focus on understanding employment benefits and the

community funds that developers contribute to.

Integration of Planning Regimes

The MCAA and equivalent devolved acts have provided for statutory systems of marine planning

across UK waters with the intention of supporting an integrated approach to planning and

management. In practice such integration has been frustrated because responsibilities for planning

and management of our seas remain fragmented25

.

Brexit could provide an opportunity to better

integrate the various planning initiatives. In

particular, planning to achieve environmental

objectives under WFD and MSFD could be

better integrated within marine planning under

a scenario where the UK left the Single Market

and was thus no longer subject to the specific

requirements of WFD and MSFD. In such

circumstances, responsibility for environmental

planning could be transferred to the MMO so

that it was better integrated with marine

planning. Alignment of the respective planning

cycles could further support such integration.

Regional seas co-operation could continue

through the auspices of OSPAR.

Further integration of planning processes could also be sought, for example by transferring

responsibility to MMO for any residual MPA planning and for sectoral planning for offshore

renewables and oil and gas. This would further support implementation of an ecosystem approach to

management.

25 http://www.abpmer.co.uk/buzz/marine-planning-in-the-uk-making-a-difference/

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Rationalising and Simplifying Legislation

Under a Brexit scenario where the UK was no longer part of the Single Market, the majority of

EU environmental directives would no longer be binding on the UK. While the UK Government has

signalled its intention to carry across most of the requirements into the Great Repeal Bill26

, at a

subsequent date it would be possible to review and rationalise them into a single consistent set of

standards. This single set of standards might particularly encompass:

WFD environmental standards;

MSFD indicators and targets;

Bathing water standards;

Urban Wastewater Treatment Directive (UWWTD)

standards;

Nitrates Directive standards; and

Shellfish Hygiene Regulation standards.

This would help to minimise conflicts between different

requirements and help stakeholders to understand the

standards that need to be met.

How Might Different Brexit Models Affect Our Ability to Deliver the Framework?

Many elements of the suggested framework could be implemented irrespective of the model pursued

for Brexit (whether the UK ends up inside or outside the Single Market). This particularly relates to

natural capital and public benefit duties. Should the UK remain inside the Single Market there would

be limits to the extent of rationalisation that could be achieved. Nor would it be straightforward to

establish a single set of environmental standards because the specific provisions of most EU

environmental directives would remain. It might also be difficult to integrate environmental quality

planning (WFD and MSFD requirements) within wider marine planning as the particular obligations of

these two directives would be likely to remain in force.

Conclusions

While Brexit may pose some threats to existing arrangements for marine management, it also

provides opportunities. The Brexit debate should be widened from the early focus on threats to

consider how the opportunity for change might be used to improve on current management

arrangements.

26 http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environmental-audit-

committee/the-future-of-the-natural-environment-after-the-eu-referendum/oral/42022.pdf

Image courtesy Andrew Pearson

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In particular, there are some significant weaknesses in the existing legal and policy framework for the

marine environment which might be more easily addressed once the UK leaves the EU.

To halt biodiversity decline, I argue that we need stronger policies supporting maintenance and

enhancement of natural capital rather than continuing with a somewhat myopic focus on managing

negative impacts. Placing the ‘maintenance and enhancement of natural capital’ at the heart of a new

marine legal and policy framework could be an important step forward and provide the impetus and

resources to restore marine natural capital.

To support sustainable development of our seas, I suggest there needs to be a greater focus on

delivering public benefit by those that make use of this public resource. This could be achieved by

placing a duty on decision-makers to determine public benefit.

Further integration of marine planning regimes could support better implementation of an ecosystem

approach to management. Rationalisation and simplification of existing legislation and establishment

of a single consistent set of environmental standards would reduce inconsistencies and promote

understanding of environmental requirements.

Prepared by Stephen Hull, Technical Director, ABPmer

E: shull@abpmer.co.uk T: +44 (0) 023 8071 1849