Inshore Fisheries and Conservation Authorities: Fisheries regulator or environmental backstop? The complexities of section 153 Marine & Coastal Access Act 2009

Abstract

Since the introduction of the Marine and Coastal Access Act 2009 (‘MCAA'), fishing within England's inshore marine area has been managed by Inshore Fisheries and Conservation Authorities (IFCAs). The powers and duties of IFCAs are contained in section 153 of MCAA and include a conservation remit; requiring IFCAs to have regard to the sustainability of fisheries activities and to conservation of the inshore marine environment. The inclusion of conservation in the name of these bodies and references to sustainability in their duties leads to questions as to the scope of IFCAs’ remit in relation to conservation. An examination of the parameters of section 153 suggests that the conservation that IFCAs can concern themselves with must relate to the management of fisheries activities, although the precise extent of this duty is not always clear. At the same time, examples from recent IFCA experiences, suggest that some stakeholders are interpreting the conservation duty much wider and viewing IFCAs as a broad conservation authority for the inshore marine area, thereby placing increased pressure on the organisations. The tension this mismatch creates must be carefully navigated by IFCAs if they are to remain within the bounds of the powers given to them by MCAA.

Introduction

Since the introduction of the Marine and Coastal Access Act 2009 (‘MCAA’), fishing within England's inshore marine area ¹ has been managed by Inshore Fisheries and Conservation Authorities (‘IFCAs’). ² The ten IFCAs are statutory bodies established to manage the exploitation of fisheries resources with their district. MCAA also gave these bodies a conservation remit, requiring them to have regard to the sustainability of fisheries and the inshore marine environment and including explicit conservation elements within the statutory duties. At the same time the categories of people involved in inshore fisheries management were broadened to include recreational fishing interests, conservation interests and other interests related to fishing and the marine environment.

As IFCAs have matured in the intervening fourteen years, they are under continued pressure to take on an ever-widening remit in the name of conservation. However, as statutory bodies, they must continue to stay aware of (and within) the extent of their statutory powers in order to avoid legal challenge. This paper will examine the extent of the statutory powers of IFCAs in part 2, before considering the current demands being made of IFCAs by marine stakeholders and other regulatory bodies in relation to conservation issues within their districts in part 3 and how these demands align (or otherwise) with the extent of the statutory powers. Part 4 will consider how the gap between the positions identified in parts 2 and 3 may have arisen, arguing that IFCAs appear to often be viewed by stakeholders and the general public as a general conservation authority for the inshore marine area, which is not fully supported by their statutory remit.

Legal basis

Taking the place of Sea Fisheries Committees, IFCAs are part of a new regulatory model introduced by MCAA and designed to address the recognised need for integrated fisheries and environmental management. ³ IFCAs were created to meet an identified need for the adoption of an ecosystem approach in order to provide more sustainable inshore fisheries. ⁴ Additionally, the IFCA model was designed to involve a broader range of people in fisheries management than their predecessor Sea Fisheries Committees, in order to take account of the wide range of interests in fisheries and the marine environment. ⁵ There are currently ten IFCAs covering the length of the English coastline (including the Scilly Isles).

The government's stated vision for IFCAs was to ‘lead, champion and manage a sustainable marine environment and inshore fisheries, by successfully securing the right balance between social, environmental and economic benefits to ensure healthy seas, sustainable fisheries and a viable industry’. ⁶ It is clear from this vision that there is potential for cross-over between the role of the IFCAs in relation to the marine environment, and that of other regulatory bodies, including the Marine Management Organisation (‘MMO’), ⁷ the Environment Agency, ⁸ Natural England ⁹ and the Maritime and Coastguard Agency. ¹⁰ MCAA demarcates the remit of IFCAs in this sea of regulators through section 153, which imposes on each of the 10 IFCAs a duty to ‘manage the exploitation of sea fisheries resources’ in their districts ¹¹ and in doing so, to follow the four requirements of section 153(2), which are shown in Box 1.

Box 1:

Extract of Marine and Coastal Access Act 2009, section 153

153 Management of inshore fisheries

The authority for an IFC district must manage the exploitation of sea fisheries resources in that district.

In performing its duty under subsection (1), the authority for an IFC district must—

• seek to ensure that the exploitation of sea fisheries resources is carried out in a sustainable way,

• seek to balance the social and economic benefits of exploiting the sea fisheries resources of the district with the need to protect the marine environment from, or promote its recovery from, the effects of such exploitation,

• take any other steps which in the authority's opinion are necessary or expedient for the purpose of making a contribution to the achievement of sustainable development, and

• seek to balance the different needs of persons engaged in the exploitation of sea fisheries resources in the district.

The inclusion of conservation in the name of IFCAs and references to ‘sustainability’ and ‘[protection] of the marine environment’ in the duty of IFCAs leads to questions as to the extent of IFCAs’ remit in relation to conservation and also how this remit might fit with the duties of other bodies responsible for regulation of elements of the marine environment. ¹² While IFCAs are bodies set up to manage inshore fisheries, clearly the marine environment is a complex ecosystem and many different non-fisheries activities within that environment will have an impact on fisheries resources. This has led some stakeholders to seek IFCA input and involvement in areas that do not directly relate to fisheries, some of which will be discussed in part three below. Acting outside of their statutory remit will leave IFCAs open to legal challenge and so it is important to understand the extent of that remit and what kind of activities might fall outside it.

The primary duty of IFCAs

As noted above, the primary duty of IFCAs is found in section 153(1) MCAA: to manage the exploitation of sea fisheries resources ¹³ in their respective districts. ¹⁴ Section 153(12) provides some guidance as to how the phrase ‘exploitation of sea fisheries resources’ should be interpreted:

Any reference in this Chapter to the ‘exploitation’ of sea fisheries resources is a reference to any activity relating to the exploitation of such resources, whether carried out for commercial purposes or otherwise, including—

• fishing for, taking, retaining on board, trans-shipping, landing, transporting or storing such resources,

• selling, displaying, exposing or offering for sale or possessing such resources, and

• introducing such resources to the sea or cultivating such resources.

While this is a non-exhaustive list, the activities included within it are all activities that are aimed at the exploitation of sea fisheries resources in question. Thus, to be capable of being managed by an IFCA, it appears that an activity must be something more focused than simply any activity that incidentally involves sea fisheries resources in some way.

The Oxford English Dictionary definition of ‘exploitation’ is consistent with a focus on activities aimed at the resources in question, being ‘[t]he action of extracting or harvesting natural resources from a place’ and ‘the action of deriving value from a natural resource by harvesting.’ ¹⁵ However, the examples in section 153(12) arguably go further than this. For example, ‘introducing [sea fisheries] resources to the sea,’ contained in section 153(12)(c), does not fall within the remit of harvesting or extracting natural resources. Additionally, many fishing methods involve some element of bycatch leading to fishers ‘taking’ and (at least for some time) ‘retaining on board’ fish that they are not able to land and so cannot derive value from. It appears to be settled IFCA practice to regulate bycatch where it derives from fishing activities, such as a requirement for escape gaps in lobster and crab pots to allow undersized shellfish to escape the pots and not be harvested or extracted. ¹⁶

If the term ‘exploitation’ in the primary duty of IFCAs is therefore to be interpreted as wider than the dictionary definition of the term, the question then becomes, how wide? The limit of the duty in section 153(1) needs to be determined. In legal advice taken by Devon and Severn IFCA (‘D&S IFCA’), counsel suggested that the duty to ‘manage the exploitation of sea fisheries resources’ should be interpreted narrowly as a requirement to manage activities ‘directed at, or targeted at, [sea fisheries] resources.’ ¹⁷ This appears to accord with existing IFCA practice. A review of the extant byelaws for IFCAs ¹⁸ revealed a number of byelaws that would be capable of applying to non-fishing activities. For example, D&S IFCA's Byelaw 11 (Deposit of Refuse) prohibits the ‘deposit or discharge [of] any solid or liquid substance detrimental to seafish or sea fishing…’; ¹⁹ in a similarly wide vein, Kent & Essex IFCA's Cockle Fishery Flexible Permit Byelaw provides that ‘no person shall harvest or disturb cockles other than in accordance with’ a relevant permit. ²⁰ However, despite all IFCAs having at least one byelaw that is worded widely enough to be capable of applying to some non-fishing activities, the publicly available enforcement information does not include any examples of action taken in respect of any of their byelaws in connection with any non-fishing activity.

The suggestion that IFCAs can only regulate activities ‘directed or targeted at sea fisheries resources’ also appears to align with the government's intentions for IFCAs. While the Department for Environment Food and Rural Affairs (‘Defra’) confirmed in the debate on the Marine Bill, which became MCAA, that the exploitation of sea fisheries resources ‘is more than merely managing fish,’ ²¹ the duty was clearly intended to be delimited in some way to fisheries. In an unequivocal indication of the government's vision for the place of IFCAs within the regulatory framework of the marine environment, it was confirmed during debate on byelaw powers that the MMO would be expected to ‘regulate threats to nature conservation from non-fishery-related activity’, while ‘IFCAs will be regulating threats from fishing activity within their district.’ ²²

The clarity of this statement is muddied somewhat by the explanatory notes to MCAA. In a section giving guidance on section 153 MCAA, the notes state:

IFC authorities will be able to apply precautionary measures and use an ecosystem-based approach in order to fulfil their main duty. Precautionary measures in this context means that the absence of adequate scientific information should not be used as a reason for postponing or failing to take management measures to conserve target species, associated or dependent species and non-target species and their environment. The ecosystem-based approach in this context means that the capacity of the aquatic ecosystems to produce food, revenues, employment and, more generally, other essential services and livelihood, is maintained indefinitely for the benefit of present and future generations. ²³

The references to conserving the environment of target and non-target species and to the use of the ecosystem approach to ensure that aquatic ecosystems are maintained perhaps indicates a wider scope for management focus than simply activities directed or targeted at sea fisheries resources. Indeed, this explanatory note appears to expand the focus of the IFCA's duty from simply ‘threats from fishing activity’ to include threats to the marine environment and threats to fishing activity. While the explanatory notes to MCAA (just like for any Act) have not been endorsed by Parliament, they do provide an indication of how the department in charge of IFCAs (Defra) views the management duty of IFCAs.

The balancing factors

The primary duty in section 153 to manage the exploitation of sea fisheries resources is supplemented by section 153(2) MCAA, which sets out the factors that an IFCA should consider when implementing its primary duty. ²⁴ In determining the extent of the IFCAs’ powers in the marine environment, it is appropriate to consider the impact of these balancing factors and how they sit with the primary duty. For example, could it be argued that section 153(2)(c) (which requires IFCAs to ‘take any other steps which… are necessary or expedient for the purpose of making a contribution to sustainable development’) is broad enough to enable IFCAs to involve themselves in any activities in the marine environment provided their motivation is to contribute to sustainable development?

The drafting of section 153(2) states that the matters set out at subsections (a) to (d) are elements that an IFCA must consider ‘in performing its duty under [section 153(1)]’. Thus section 153(2) and the balancing factors are expressly linked to the primary duty in section 153(1) to manage the exploitation of sea fisheries resources, making it unlikely that Parliament intended section 153(2) to widen the remit of section 153(1). In addition, the rules of statutory interpretation require an Act to be read as a whole and thus provisions within an Act to be interpreted within the context of that Act. ²⁵ Interpreting section 153 as a whole section, it is unlikely that a court would interpret Parliament as intending the balancing factors set out in subsection (2) to widen the primary duty clearly set out in subsection (1). Furthermore, interpreting section 153 in the context of MCAA as a whole, Parliament clearly intended IFCAs to be responsible solely for fisheries management, while the MMO was given much wider conservation powers as the overall marine regulator.

This is not to say that the balancing factors within section 153(2) must be interpreted narrowly. While the extent of IFCAs’ duties in the marine environment have not been tested in court, general principles on the interpretation of the statutory powers of public bodies suggest that not only would courts be ‘very slow to interfere’ with statutory bodies ‘fulfilling the intentions of Parliament in a specialist sphere’, ²⁶ but also that whatever may fairly be regarded as incidental to or consequential upon authorised activities will be within the vires of that body. ²⁷ This means that IFCAs can undertake actions that are reasonably incidental or ancillary to their statutory powers. ²⁸ However, such actions can only be undertaken to achieve the body's primary statutory purpose and cannot be used in an attempt to extend the primary statutory purpose or powers granted to the body. ²⁹ The primary statutory purpose of IFCAs is to manage the exploitation of fisheries resources within their district. Thus, only actions that are reasonably incidental or ancillary to this purpose will be intra vires.

This conclusion aligns with the government's vision for IFCAs brought out during the Parliamentary debate on the Marine and Coastal Access Bill. In response to an attempt to impose a broad conservation duty on IFCAs, Lord Hunt of Kings Heath (on behalf of the government) opposed the attempt in the following terms:

In terms of a duty to further conservation, I know there are those who think that such a duty should be added to help to drive the transformation of sea fisheries committees into inshore fisheries and conservation authorities. The Government do not agree… Our problem is that placing an explicit duty on IFCAs to further the conservation of the marine environment outside marine conservation zones would fundamentally alter and unbalance their primary duty to manage the exploitation of sea fisheries resources in a sustainable way. ³⁰

In line with the general principles of statutory interpretation, this comment suggests that conservation and sustainability work of IFCAs should be exclusively related to the exploitation of sea fisheries resources rather than related simply to any activities in the marine environment.

A sea of regulators

Part of the reasoning behind restricting IFCA duties and powers to the exploitation of sea fisheries resources is likely to be the large number of other regulators in the marine space and the need to limit overlap between these regulators in order to provide clarity and efficient use of limited public funds. MCAA established the MMO as the primary statutory body to manage England's marine environment (including both territorial waters and the Exclusive Economic Zone). This role includes various functions related to fishing, as well as functions related to other uses of the marine environment. As regards the fisheries function, one requirement is that the MMO must appoint members to an IFCA ³¹ who are ‘acquainted with the needs and opinions of the fishing community of the district’, as well as those with ‘knowledge of, or expertise in, marine environmental matters’. ³² These appointees, along with members of the relevant local councils which have an adjacent coastline to the IFCA area and an appointee of the MMO, Environment Agency (‘EA’) and of Natural England (‘NE’), ³³ make up each IFCA. The standard inclusion of the MMO, EA and NE reflects the need for IFCAs to take decisions, including those related to Bylaw and enforcement powers, based on evidence and appropriate expert advice. ³⁴ Of course, the EA, NE and other bodies, such as planning authorities and the Marine and Coastguard Agency (‘MCA’) have their own imperatives outside of the IFCAs’ fisheries-related scope, and these are outlined below in order to illustrate the potential cross-over with IFCA functions.

Marine management organisation

With respect to MMO functions that intersect directly with IFCA responsibilities, beyond fisheries, the marine licensing regime is perhaps the most significant. Part 4 of MCAA governs the licensing procedure and requires that interventions classed as licensable marine activities are conducted in accordance with a licence. ³⁵ Broadly the regime is concerned with the placing on or removal of materials from the sea bed, creating a prohibition on such activities unless acting in accordance with the licence conditions. In determining an application for a marine licence, and any conditions attached to it, the MMO ‘…must have regard to the need to protect the environment ³⁶ …human health’ ³⁷ and ‘the need to prevent interference with legitimate uses of the sea’, ³⁸ as well as other matters considered relevant by it. Interested parties may make representations, to which the MMO is bound to have regard, ³⁹ and in doing so it may consult with bodies with specific expertise in both general and specific matters relating to the application ⁴⁰ (which can include the relevant IFCA for an application site, where applicable) and should provide the applicant with an opportunity to make representations in respect of any observations made. ⁴¹

Environment agency

Created by the Environment Act 1995 (the ‘1995 Act’), the EA's principal aim is ‘…to protect or enhance the environment taken as a whole [so] as to make the contribution to achieving the objective of achieving sustainable development…’. ⁴² It has territorial responsibility within England for the majority of its functions. The holistic focus of a single environmental regulator consolidated a host of – although not all – responsibilities, previously the focus of several regulators, within one organisation. So far as is relevant to this article, broadly, Part 1A of the 1995 Act applies regulatory functions upon the EA in respect of pollution control, the management of water resources and water quality, as well as environmental duties in respect of sites of special scientific interest. ⁴³ The geographical application of its duties, which include conservation and enhancement of the natural environment, extends to coastal waters by virtue of s.6 of the 1995 Act.

In addition to its general functions applicable to coastal waters, the EA has obligations in respect of certain fisheries, which overlap with the territorial scope of the IFCAs. The Salmon and Freshwater Fisheries Act 1975 imposes duties for the management of anadromous and catadromous species, ⁴⁴ and grants powers to make Bylaws to facilitate the management objectives. Aside from these specific fisheries, the EA has other general powers and duties relating to responsibility for inshore fisheries management.

At the time of writing, the EA is the subject of sustained scrutiny concerning its effectiveness in securing water quality, both inland and coastal. ⁴⁵ The EA's, oft-repeated, claim that water quality in British rivers is better than that subsequent to the Industrial Revolution, has been interrogated and a conclusion drawn that progress is mixed. ⁴⁶ The Environment Audit Committee, in its 2022 Report on Water Quality in Rivers, ⁴⁷ was more robust, noting that it ‘is clear that rivers in England are a mess’; ⁴⁸ and that was in part, although not wholly, due to complacency from regulators in respect of sewage and agricultural pollution, which naturally has downstream effects in estuarine and coastal waters. ⁴⁹

Natural England

NE, established by virtue of the Natural Environment and Communities Act 2006 (‘NERC’), ⁵⁰ is the principal regulator tasked, broadly, with the protection and enhancement of the natural environment. Its general purpose is set out in s.2(1) NERC, ‘to ensure that the natural environment is conserved, enhanced or managed for the benefit of future generations thereby contributing to sustainable development’. ⁵¹ An amendment made by MCAA applies the exercise of NE's functions to the territorial sea adjacent to England where relevant, ⁵² meaning that NE's powers and duties occur in the same space as those of the IFCAs. In addition, to its advisory/consultative role with the IFCAs, NE has a role in the designation and management of foreshore and coastal SSSIs as well as sites designated pursuant to the Conservation of Habitats and Species Regulations 2017 (as amended). ⁵³

Maritime and coastguard agency

The Maritime and Coastguard Agency (‘MCA’) is an executive agency of the Department of Transport, tasked with maritime safety and the implementation of international maritime law. It has broad responsibilities for protecting the safety of life at sea, including by reference to navigational safety and the prevention of marine pollution. In a fisheries context, both aspects are germane. In respect of vessels which are less than 15 m, which would include the inshore fleet, ⁵⁴ the MCA manages a code of practice for the safety of fishing vessels and conducts inspection and registration in that regard. Further in the context of safety, the MCA prescribes certain requirements in respect of gear marking, for both beam trawls and passive gear. ⁵⁵ Essentially, the requirements impose obligations on the fisher to mark the gear with port letter and number details and to indicate the presence of such gear with a marker buoy and is supplemented by detail from the MMO. ⁵⁶ Pollution control functions are undertaken in conjunction with the MMO, with the latter advising in respect fisheries activity in the area of a pollution incident. ⁵⁷

Summary

The drafting of s.153 duty does pose some potential for misunderstanding of its scope. It is arguably unclear to the extent that its parameters are not tightly defined. In such circumstances the presence of other regulatory obligations as additional layers within the IFCAs’ operational area contributes to potential confusion. The main and guiding principle, though, would appear to be that any activity which the IFCA undertakes or is required to undertake must be directed or targeted at the exploitation and maintenance of sea fisheries resources. A close and narrow interpretation of the caveat would appear key to ensuring that IFCA is not overstretched by requests to become involved in issues which are beyond its statutory purpose, particularly given the focus upon sustainable use of resources which is a common theme to the majority of the regulators.

What is happening in practice?

While the statutory duty of IFCAs is limited to managing the exploitation of sea fisheries resources and actions that are reasonably incidental or ancillary to that exploitation, the boundaries of this duty are being constantly tested. Using D&S IFCA as a case study, four examples are explored in this section to show the wide range of activities IFCAs are being asked or expected to regulate and the difficulties faced in interpreting section 153 to determine whether action by an IFCA would be appropriate.

Vivier boats

Vivier boats are larger potting vessels (although still within the size limitations for most inshore areas) and so called because they are constructed with a saltwater tank within the hull, in which catches of crabs and lobsters may be stored and retained alive, potentially for several days. ⁵⁸ The vivier tank gives such equipped vessels greater fishing time in comparison to the smaller, more traditional vessels, especially non-vivier (day) vessels. However, this distinction between the two types of potting vessels may not have had any sizeable impact on inshore fishing were it not for a confluence of factors in the wider industry.

Firstly, since 2016 the UK's shellfish potting fleet has expanded considerably, driven by increased market demand worldwide, including exports to China. ⁵⁹ In addition, there has also been a significant expansion in the number of vivier vessels exploiting the shellfishery in EU waters since 2016, particularly a crab fishery in the German Bight. ⁶⁰ The number of UK registered vessels in this fishery has increased from three to eleven. ⁶¹ Not only are these vessels equipped with vivier tanks, but, with a much greater beam, deeper draught and the ballast effect of the vivier tank all adding to stability, they are specifically designed to operate offshore and hence in rougher weather. ⁶² The greater capacity and efficiency of modern offshore vivier boats compared to traditional inshore day boats is illustrated by the fact that an offshore vivier boat can haul 1700–2000 pots per day and achieve twenty tonnes of shellfish per landing compared to 500–700 pots hauled per day and around one tonne of shellfish per landing of older, traditional boats. ⁶³ Those under 15.24 m in overall length are also permitted to operate in D&S IFCA's Inshore waters, should they choose to do so. ⁶⁴

These two factors, combined with the UK's exit from the EU, have created a potential displacement problem of these modern vivier boats from EU waters into UK waters. The Trade and Co-operation Agreement (‘TCA’) between the UK and the EU stipulates the species and amounts of fish that EU and UK registered fishing vessels may catch in each other's waters. ⁶⁵ Crab is a non-quota species (‘NQS’) and the permitted catch tonnage for NQS is set by reference to the years 2012–2016. ⁶⁶ Since these years predate the expansion of the UK potting vivier fleet, it seems inevitable that the UK allocated NQS tonnage from EU waters will be inadequate to meet current fleet catch capacity, which is likely to lead to these boats seeking other grounds to exploit, including the English inshore grounds within IFCA districts. ⁶⁷ To date, the EU and the UK have agreed not to apply the tonnage restriction for NQS but there is clear potential for this restriction to be activated. ⁶⁸

Shell fishers’ organisations in South Devon have raised their concern that if the NQS restrictions in the TCA are activated there will be a significant displacement of these modern and more efficient vivier boats from EU waters into UK waters, both offshore and including the inshore waters of D&SIFCA. ⁶⁹ This potential displacement has raised a myriad of concerns around the capacity of these modern vivier vessels, stock sustainability and the impact upon the current composition of the inshore shellfish industry, with worries that, if the displacement occurs, it may swamp the current, more traditional inshore fleet.

The obvious concern relates to the sustainability of the shellfish stock and that of crab in particular, since crab landings in D&S IFCA's District have been falling since 2014. ⁷⁰ While vivier boats, with their much greater operational capacity, could exert additional pressure on shellfish stocks, concern has also been expressed as to their operational methodology. Local inshore shell fishers will make an assessment as to the condition of crab, in particular whether it has recently moulted and is ‘soft shelled’. While there is a prohibition on retaining soft shelled crab, there is currently no objective mechanism for measuring this. ⁷¹ If a crab is in poor condition or soft shelled it will be returned to the sea, on the basis that it can be caught again in the future and it is in the long-term interest of local inshore fishers to do so. Such assessments are based upon many years of experience. This current self-regulation is likely to lead to a more sustainable fishery. Conversely, it is argued, nomadic vivier boats, provided a minimum landing size is achieved, tend to place such shellfish in the holding tank. This may lead to a higher mortality rate or rejection by wholesale buyers for human consumption, although the shellfish may still be sold profitably for use as whelk bait. Thus, it is alleged vivier boats have the capacity to engage in a less sustainable fishing methodology.

Added to this concern is a fear of a breakdown in the very successful self-regulatory nature of shellfish potting in South Devon. The inshore potters have a self-regulatory framework, each respecting each other's ‘patches’ of seabed area. ⁷² In this way gear conflict between potters is avoided. Nomadic vivier boats, coming into the IFCA's District may be unaware of this collective co-management fisheries tool or unwilling to voluntarily abide by it. The enhanced potting capability of such modern vivier boats ⁷³ then gives rise to gear and displacement risks to the existing inshore fleet with older vessels. For the existing fleet, each pot is connected to the next pot by a seabed rope, meaning that the pots are laid and hauled as one continuous string. Modern vivier boats can lay considerably longer strings. If a longer string is laid across a shorter string from a smaller capacity existing inshore boat, the smaller boat's gear can be dragged off and lost. This potential for gear conflict has been recognised by D&SIFCA. ⁷⁴

In addition, such conflict would also create a spatial displacement issue for the current inshore fleet, which would have difficulty relocating due to this self-regulatory mechanism. The Government's current Marine Spatial Prioritisation programme is seeking to understand the co-existence and use of sea space. ⁷⁵ Fishing vessels are currently conceived as being able to go elsewhere easily, so their displacement is regarded as ‘soft constraint’ in a marine spatial context, as opposed to the ‘hard constraint’ of cables, mariculture and marine structures. ⁷⁶ However, given this potential spatial squeeze upon traditional inshore potting vessels, with inshore fishers leaving the shellfish industry due to displacement, competition and loss of business opportunities, perhaps the time has come to regard such potential displacement as a hard constraint upon displacement and afford it a corresponding weight in the decision-making process by regulators.

Finally, undoubtedly underlying these operational concerns is the socio-economic concern that the vivier boats are operationally (and therefore economically) more efficient, making the current inshore boats financially unviable. In the case of the smaller inshore day boats this could be particularly the case, radically altering the socio-economic model within the local coastal communities (and also the socio-cultural model). ⁷⁷ These socio-economic impacts would be driven by the fact that there would be fewer boats operating in the fishery, thereby reducing demand for employment as crew and associated supply and support services, such as maintenance services. Moreover, given that these modern offshore vivier boats are nomadic in nature, what demand for crew and support services exists may not be drawn on a regular basis from the local coastal economy in the way that it is presently. This concern appears not to be a theoretical one, with reports made to D&SIFCA that existing inshore potters in Cornwall are struggling to remain financially viable as a result of competition in the inshore area due to increased effort from more efficient vivier boats. ⁷⁸

This issue is clear cut in the sense that it relates wholly to the exploitation of sea fisheries resources and so is squarely within the remit of section 153. However, it provides an opportunity to investigate the limits on the considerations that IFCAs can give weight to under section 153 when regulating such activities (in other words how section 153(2) can be interpreted). If the extra effort exerted upon current inshore shellfish stocks were to prove damaging to stock levels, then section 153 would quite clearly empower an IFCA to regulate such effort by introducing limits on catch effort. This could be achieved by a variety of restrictions such as limits on quantum of landings or pot capacity or days at sea in the District. However, if stock levels were to hold, notwithstanding any extra fishing effort exerted by displacement of offshore vivier vessels into inshore waters, the question then arises to what extent, if at all, an IFCA could limit this extra effort to avoid adverse socio-economic impacts on the local coastal community.

Any constraints placed upon modern, offshore vivier boats would be directed or targeted at sea fishery resources but whether such socio-economic considerations would amount to material considerations that an IFCA can take into consideration would the focal issue. A narrow interpretation of section 153 would suggest that an IFCA cannot introduce measures to mitigate the effects of competition between more modern and efficient vivier boats and the traditional, less efficient, potting vessels, especially the ‘day’ boats. While section 153(2) contains an explicit reference to social and economic factors, this is only in the context of balancing these against sustainability. ⁷⁹ Thus, while an IFCA can be cognisant of the overall state of the shellfish stock and introduce regulatory measures to preserve this, it cannot discriminate in terms of regulatory measures against a more efficient ‘production’ method in the form of a modern more seaworthy vivier offshore design simply on the grounds of their increased efficiency over older existing vessels, especially day boats. Accordingly, it would not be lawful under section 153 to apply regulatory measures to vivier boats alone to protect the socio-economic viability of existing inshore potting vessels utilising waters within an IFCA's District. However, a closer examination of section 153 suggests that this interpretation may be too narrow.

Both Parliamentary debates during the passage of the Marine & Coastal Access Bill and the accompanying Explanatory Notes to MCAA provide some assistance in determining this problem. Under s. 153(2)(d), in fulfilling its primary duty to manage the exploitation of sea fisheries resources, an IFCA must ‘seek to balance the different needs of persons engaged [in such exploitation]’. In speaking to the clause in the Bill in the House of Lords for the Government, Lord Hunt of King's Heath stated that IFCAs ‘will have to make balanced judgments, not just on issues to do with fishing and exploitation of the sea but as regards different elements—if I may put it that way—of the fishing community’. ⁸⁰ In normal, grammatical English the phrase ‘different elements’ would not be an euphemism for ‘different sectors’, ⁸¹ suggesting that this balance is not restricted to being drawn between differing sectors only of the fishing industry. ⁸² Further support for the interpretation that an IFCA can have regard to the differing needs of fishers within the same sector (i.e., a shellfishery) can be derived from the Explanatory Notes to the 2009 Act. In relation to section 153 these state that, inter alia, a key element of an IFCA's duty is ‘to balance the needs of all persons exploiting the district's fisheries.’ ⁸³ Nothing in this language suggests such balancing is restricted to between different sectors of the industry but rather that the term ‘all persons’ can convincingly support considerations of a balance on socio-economic grounds being achieved between fisheries engaged in the same sector of fishing. That being the case, it would be intra vires for an IFCA to consider the socio-economic impacts upon a local coastal community of the displacement of modern, offshore vivier boats into inshore coastal waters, as well as any impact upon sustainability of shellfish stocks.

Fishing gear marking

Another illustration of the complexities and challenges faced by IFCAs in ensuring that their decision-making process conforms to the parameters set by section 153 is the issue of the marking of fishing gear such as fishing nets (both static and drifting) and shellfish pots. Such gear has the potential to impact both the safety of public navigation and the integrity of the marine environment. Whilst the marking of fishing gear is not an activity that directly involves the exploitation of fishing resources, it is sufficiently related to such activities to bring it within section 153. As with the above example then, an IFCA's ability to regulate it is not in question, but rather the purposes of such regulation that would be permitted under section 153.

Inadequate marking of fishing gear can cause significant problems for fishing vessels (and vessels of all types). Horizontal visibility from vessels, especially recreational craft, can be quite limited. Unless nets and pot lines are marked with a bright marker buoy of a suitable size, preferably with a vertical pole and flag as well, craft can come upon them without seeing them. ⁸⁴ The problem is exacerbated by the practice, especially by recreational fishers, of using redundant plastic containers and even bottles, often of clear or translucent plastic, as marker buoys, to avoid the cost of purchasing purpose-made marine buoys. ⁸⁵ Such improvised markers are not designed to withstand the rigours of marine use; the handles where a rope is attached often break away and if a cheap, buoyant rope is also used then entanglement becomes more likely. Additionally, these discarded plastic items then add to marine litter and eventually microplastic pollution, an issue of increasing environmental concern. ⁸⁶

The Royal National Lifeboat Institution (RNLI) does not record in its data the specific cause of lifeboat launches to assist vessels immobilised by entanglement, let alone the specific type of fishing gear involved. However, there is abundant anecdotal evidence that entanglement with ropes for shellfish pots and fishing nets comprise a significant element of such entanglements. This led to discussions between the Association of IFCAs (AIFCA), the MCA and other representatives of marine users and in turn requests that IFCAs require, in the interest of safety of public navigation, the utilisation by fishers of prominent marker buoys and poles under IFCA Bylaws. ⁸⁷ In turn the AIFCA referred the matter to its Law Group for consideration. ⁸⁸

Given that the primary duty of IFCAs, as set out above, is to regulate only activities targeted or directed at the exploitation of sea fisheries resources, the Law Group considered that it was impermissible for an IFCA, by regulation, to secure the provision of safety of public navigation as a sole objective in itself. ⁸⁹ On the face of it, section 153 includes no express reference to the safety of navigation. The maxim of statutory interpretation ‘expressio unius est exclusion alterius’ (to express one thing is to exclude another) indicates that it would be ultra vires under section 153 for an IFCA to take into consideration matters of navigational safety generally, since such matters are unrelated to the duty of managing exploitation of sea fisheries resources or the other matters expressed in section 153, such as environmental protection and sustainable development. ⁹⁰

The courts have been alive to the misuse of a power by a public body to achieve a purpose beyond that which a public body is empowered by legislation to pursue. ⁹¹ However, the ability of IFCAs to consider safety of navigation may be more nuanced than a simple immateriality in all circumstances. It is clear that matters which are incidental to or consequential upon the authorised exploitation of sea fisheries resources will be intra vires an IFCA and material considerations in its decision making. ⁹² Moreover, the latitude afforded by the courts to a specialised statutory body, such as an IFCA, makes successful challenge to such regulation less likely. ⁹³ Such a nexus between navigational safety and exploitation of sea fisheries resources arguably arises in relation to the navigational safety of IFCA vessels and other fishing vessels. Productive fishing grounds are invariably exploited by multiple fishing vessels and inadequately marked fishing gear represents a serious navigational hazard to other fishers. Additionally, IFCA vessels must patrol such known areas and inspect fishing gear for compliance, putting them likewise at risk.

On this basis, the Law Group concluded that an IFCA can require that fishing gear, used for the exploitation of sea fisheries resources, be marked by a floating marker. The IFCA would need, through the Bylaw making process, to provide justification that such a requirement is required for effective regulation but as long as such a justification could be provided then the requirement would be intra vires, since it would constitute management of the exploitation of sea fisheries resources within the meaning of section 153(1). This power would also extend to requiring, for regulatory purposes, that the floating marker is labelled with such information that the IFCA reasonably requires in order to facilitate such management. This could be, for example, the relevant fishing vessel's registration (port, letters and numbers) of the vessel named on the Permit or the Permit number. ⁹⁴

Furthermore, it is arguable that such vires would also extend to requiring that such markers are of a particular nature. Under section 153(2), in managing the exploitation of sea fisheries resources, an IFCA must ‘ … seek to balance the social and economic benefits of exploiting the sea fisheries resources of the district with the need to protect the marine environment from, or promote its recovery from, the effects of such exploitation …’ ⁹⁵ and ‘ … take any other steps which in the authority's opinion are necessary or expedient for the purpose of making a contribution to the achievement of sustainable development …’. ⁹⁶ Either of these provisions would empower an IFCA to prohibit the use of products not designed and manufactured for the purpose of marking submerged objects in a marine context, since such a prohibition would be seeking to balance exploitation of sea fisheries resources with protection of the marine environment ⁹⁷ and to achieve sustainable development, the latter being commonly understood as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’. ⁹⁸

This power would also enable an IFCA to specify the dimensions and characteristics of floating gear for regulatory purposes, provided it could advance a reasonable and proportionate basis for doing so. ⁹⁹ Such a basis may conceivably be the need for a certain size of marker in order to be able to display certain information outlined above, or a certain colour, shape and/or degree of reflectivity in order to be adequately visible to IFCA officers conducting inspections and thus readily locatable. Such requirements, provided they were proportionate in nature and directed at facilitating regulatory compliance with fisheries management, would have sufficient nexus to the duties of an IFCA under section 153 as to be intra vires.

Such a nuanced approach in decision-making and the minuting of such decisions clearly requires a degree of legal knowledge, a skill set most IFCA members are unlikely to possess and this is a matter which will be considered below, when addressing the implications of stretching the remit of IFCAs.

Development of Hinkley point C power station

The ongoing development of a new nuclear facility at Hinckley provides an opportunity to consider an IFCA's role in relation to activities that do not involve the exploitation of sea fisheries resources but that are still likely to materially impact the marine ecosystem and therefore the sea fisheries resources that are part of that ecosystem. Indeed, D&S IFCA involvement has recently been requested in two key areas relating to this large-scale infrastructure project. The first involves an application by the developer (EDF) to the EA to vary its Water Discharge Activity permit for the development. EDF plans to cool the new nuclear reactors using water from the Severn Estuary and on this basis the permit originally issued by the EA was made subject to a condition that EDF install and maintain an acoustic fish deterrent (‘AFD’) for the coolant intake pipes. The purpose of the AFD being to deter fish from swimming near the intake pipes, thus reducing the number of fish that will be sucked through the coolant system and killed. ¹⁰⁰ EDF applied to vary the permit to remove this condition. The application was supported by CEFAS evidence, which suggested that removing the requirement for an AFD would have a ‘negligible effect’ on fish populations in the Severn estuary.’ ¹⁰¹ However, this was contested by a number of stakeholders, who argued that removal could lead to an additional 37 tonnes (in equivalent adult values) of fish from the Severn Estuary's fish assemblage being captured by the coolant system each year. ¹⁰² In response to a number of requests, D&S IFCA responded to a public consultation on this application conducted by the Environment Agency in July 2019 and made representations at the public inquiry on the application held by the Planning Inspectorate in June 2021 following call in by the Secretary of State. ¹⁰³

While the operation of a nuclear power station is clearly not a fishing activity, the IFCA's involvement in this matter is arguably within the statutory powers of D&S IFCA as it relates to the exploitation of sea fisheries resources (section 153(1)) (namely the fish that would be sucked up from the Severn Estuary, through the coolant system and returned dead or significantly injured to the Estuary). In addition, it can be framed as (i) a step which in the authority's opinion is necessary or expedient for the purpose of making a contribution to the achievement of sustainable development (section 153(2)(c)); and (ii) an action carried out in order to try and ensure that the exploitation of sea fisheries resources is carried out in a sustainable way (section 153(2)(a)) and that there is balance between the different needs of persons engaged in the exploitation of sea fisheries resources in the district (section 153(2)(d)).

In a separate matter relating to the Hinckley Point C Development, North Somerset Council requested the involvement of D&S IFCA in opposing a marine licence variation application made by EDF to the MMO. The purpose of the application was a request to vary the marine licence for the project to allow the deposition of dredged materials at a site within the Severn Estuary close to Clevedon and Portishead. D&S IFCA presented evidence to the MMO in relation to the possible consequences for the marine ecosystem in these areas if the deposit of dredged materials were to be allowed. These included detrimental effects on the fish assemblage in the Severn Estuary due to increased sediment loads as well as detrimental impact on sabellaria reefs within the area. ¹⁰⁴

This latter involvement falls less clearly within D&S IFCA's statutory powers and provides a useful example of the difficulties for IFCAs in determining the outer limits of their powers under section 153 MCAA. The proposed deposit of dredged materials within the Severn Estuary does not appear to involve any direct exploitation of fisheries resources. It does however have the potential to impact upon such exploitation indirectly. The Severn Estuary is a key nursery area for many species ¹⁰⁵ and so any negative impacts on the fish assemblage in the estuary could potentially have significant effects on the abilities of fishers to exploit those species of fish within the IFCA's district (and without). It is submitted that the type of involvement by an IFCA in activities like this is the determining factor in the question of whether involvement is intra or ultra vires.

In the present example, action by D&S IFCA to directly regulate the activities of dredging and the deposition of dredged materials would clearly be outside of the statutory powers of an IFCA. However, it is arguable that involvement as a specialist regulator through the giving of evidence and the making of representations to the public body empowered to regulate the activities in question could be a step under section 153(2)(c) that is ‘necessary or expedient for the purpose of making a contribution to the achievement of sustainable development.’ In the present example, D&S IFCA provided its specialist knowledge to the MMO with regard to the possible impacts of the proposed activity on fisheries resources and the marine environment that such resources are dependent upon. The representations of D&S IFCA were then considered by the MMO, along with representations from other specialist bodies and EDF, in coming to its own decision. If this analysis bears weight, it suggests that the range of activities that an IFCA can get involved in will vary depending upon whether that IFCA is seeking to directly regulate the activity or merely to contribute evidence drawn from its specialist position as a fisheries regulator to another statutory body.

Agricultural runoff

The final example is perhaps the most obvious, however, it provides a useful illustration of the extent to which IFCAs are being called on to act outside of the remit of their statutory powers. In one D&S IFCA meeting, the problem of agricultural runoff upstream and its impact on fish stocks down stream and in estuaries was raised, together with a request for the IFCA to get involved in managing the problem. ¹⁰⁶ Agricultural runoff has an undeniable impact on water quality in rivers and estuaries ¹⁰⁷ and that water quality has an equally undeniable effect on the flora and fauna that live in such rivers and estuaries, including fish stocks. ¹⁰⁸ However, regulating agricultural activities on land is clearly not within the scope of the power given to IFCAs in section 153 MCAA to manage the exploitation of sea fisheries resources. Such agricultural activities are neither directed nor targeted at sea fisheries resources and as such, any ‘catchment to coast’ management measures that an IFCA sought to place on any such activities would be ultra vires.

Drivers for the expansion of the IFCA remit

If IFCAs are being pushed into broadening their remit and potentially acting outside of the powers given to them under section 153 MCAA, then before considering what the appropriate solution might be for this state of affairs, it is important to attempt to understand what is driving the push for expansion. This section considers four possible factors that may be contributing to the situation.

Accessibility of regulators

The inshore marine environment is subject to a complex regulatory framework. Kelly et al. note that management of the coast and marine environment is typically ‘fragmented… with responsibilities dispersed across a number of bodies.’ ¹⁰⁹ In England, MCAA was intended to simplify and strengthen regulation of the marine environment, driving it towards an ecosystem approach to such regulation. However, only a short while after it came into force and the MMO and IFCAs came into being, it was suggested that there were ‘still too many agencies and government bodies involved in managing the marine environment.’ ¹¹⁰ In addition, while the sheer number of legislative instruments applicable to the inshore marine environment may have changed a little from Boyes and Elliott's ‘horrendogram’ ¹¹¹ following the exit of the UK from the European Union, the range of different pieces of legislation to consider is still overwhelmingly large.

Set against this background of complexity, it is arguable that IFCAs are experiencing pressure to expand their remit as described above in large part because they are the body that is most accessible and accountable within the marine environment. IFCAs are statutory committees or joint committees of their funding coastal Local Authorities, operating under the provisions of the Local Government Act 1972 and associated secondary legislation. ¹¹² Consequently, IFCAs have to comply with requirements and protocols for participatory decision making, with IFCA documentation and meetings and their minutes accessible to the public. This public accessibility contrasts sharply with that of other regulators present in the marine space, such as NE, the EA and the MMO. This dichotomy is heightened by each IFC Authority including democratically elected local councillors from the funding local authorities and people from within its district who have been appointed to the Authority by the MMO for their knowledge and expertise in relation to fishing communities and/or marine environmental matters. ¹¹³

The nature of IFCA decision-making is thus open to and actively seeks the participation of stakeholders and the public. As noted above, meetings must be open to the public and the membership of each IFCA includes local councillors, who are also accessible to the public. In addition, many IFCAs routinely undertake considerably enhanced consultation processes, going beyond what is required under MCAA, ¹¹⁴ in order to encourage the participation of stakeholders in the decision-making process. This process is then recorded in full and made available to the public to enable stakeholders to understand the process and how the outcomes in question have been reached. ¹¹⁵

The result of the IFCA structure and funding model (and of increased opportunities for stakeholder participation) is that IFCAs are more closely tied into local political decision-making than other statutory bodies operating in the marine environment. They are also more accessible to the general public, either directly or via their local council, who can bring matters to IFCA meetings. Conversely, the MMO, the body with a wider remit in the marine environment, NE and the EA are less accessible to the general public and elected councillors. Meetings are not public and knowledge of who to contact about specific issues relating to the marine environment is limited. Nor is there any accessibility or participatory decision making through the local political process.

As the accessible regulator in the marine environment, IFCAs therefore appear to have become in many people's minds the ‘go-to’ regulator for issues relating to the marine environment. Even where those issues don’t relate to the exploitation of sea fisheries resources, the interconnected nature of the marine ecosystem means that sea fisheries resources are likely to be impacted in some way and so this appears to be sufficient for many to justify a requirement for the IFCA to act. This is arguably the public and stakeholders seeking to hold IFCAs responsible for the conservation of the inshore marine area, something which the government, in drafting MCAA, was keen to avoid.

Trust in marine regulators

In addition to being the most accessible marine regulator for the public, Ford and Stewart's study on trust within UK fisheries management shows that IFCAs appear to be the most trusted of the fisheries regulators. ¹¹⁶ While the sample of fishers was small and so the study should only be considered preliminary, the findings showed low levels of trust in all governing and scientific bodies. However, IFCAs, while still scoring low, did manage to score higher than Defra and the MMO, with the suggestion that their ‘participatory strategy’ and the improved efficacy brought by their local management could be behind the higher score. ¹¹⁷ Indeed, perhaps reflecting the increased accessibility of IFCAs, the authors used positive participant comments about the responsiveness of IFCAs and the ‘good local relationships’ they have to support this suggestion. ¹¹⁸

Considering trust in the context of fisheries management, Gray et al. suggest that participation in fisheries management is the key variable that correlates with higher levels of trust, ¹¹⁹ while Cvitanovic et al. identified transparency as a crucial factor in building trust, both through making management processes available to stakeholders and through enabling stakeholders to understand such processes. ¹²⁰ The participatory nature of IFCA decision making and their public accessibility is likely to be contributing to the increased levels of trust experienced in relation to IFCAs in comparison to the more opaque (and much less participatory) nature of the decision-making of NE, the EA, the MMO and Defra, for example.

In addition, familiarity has also been shown to increase levels of trust. ¹²¹ In the context of natural resources management, Mase et al. reported a clear link between familiarity with the source of information on natural resources and its status, and the trust in such information, ¹²² while Schmidt et al. reported greater familiarity with local institutions lead to greater trust in those institutions in the context of sustainable natural resources management within the Arctic. ¹²³ Similarly, Gray et al. suggested that the recreational anglers in their study ‘may discern between levels of government and have higher levels of trust for local government.’ ¹²⁴ It may therefore be the case that stakeholders in fisheries management have higher levels of trust in IFCAs as opposed to the MMO and Defra partly because the IFCAs are the most local level of management for fisheries and stakeholders therefore have greater familiarity with IFCAs and their work.

While participation can breed trust, it really should be viewed as a circular process, with trust also ‘[serving] as a vital lubricant to collaborative processes.’ ¹²⁵ In the context of fisheries management, Glenn et al. suggest that trust is a vital precursor to stakeholders’ participation and collaboration. ¹²⁶ The higher levels of trust in IFCAs compared to other fisheries management bodies could also therefore be a factor in the increased pressure being experienced by IFCAs through their members, stakeholders and the public to expand their remit and deal with an increasing range of environmental issues in the inshore marine environment.

Ford and Stewart's study discussed above focuses on fisheries management and policy and this limitation has two facets. Firstly, the bodies considered did not include those with other roles in the regulation of inshore fisheries, such as the Environment Agency and Natural England. In addition, the sample drew on fishers only and not on the wider range of interests in the inshore marine area. Nonetheless, on the basis that neither the EA nor NE benefit from the participatory structures described above that promote transparency, stakeholder participation and, ultimately, trust, such as public meetings and the involvement of democratically accountable members, it is foreseeable that the trust in such bodies will be lower than that in IFCAs.

A general conservation duty?

It is also possible that IFCAs have become the ‘go-to’ regulator for marine environmental issues in coastal waters partly because, despite the sea of different regulators with responsibility for elements of or activities within inshore marine areas, there is lacking a regulator with a general conservation duty within these areas. ¹²⁷ Such a general duty seeks to achieve a specific outcome, which is often formulated as a principle (such as to minimise the risk of harm to the marine environment), by giving the regulator wide discretionary powers to achieve that outcome. ¹²⁸ As set out above, IFCAs’ duty in the inshore marine area is constrained by a connection to the exploitation of sea fisheries resources and so IFCAs clearly do not possess such a general duty.

The MMO, as the primary regulator of marine environments, has a general objective is to exercise its functions in a way that seeks to make a contribution to sustainable development. ¹²⁹ In support of this objective, the MMO is also given a very wide power to ‘take any action which it considers necessary or expedient for the purpose of furthering any social, economic or environmental purposes.’ ¹³⁰ However, its nature conservation duties are limited to certain specific situations. These include a duty to ‘have regard to marine flora and fauna’ and to ‘endeavour to achieve a reasonable balance between [the regard for marine flora and fauna] and any other considerations to which [it] is required to have regard’ when carrying out any functions under the Sea Fisheries Acts. ¹³¹ All of this purposefully stops short of a general duty of conservation of the marine environment on the basis that that ‘would be to favour one element of its overall sustainable development duty over the others…’. ¹³²

As noted in part 2.3 above, the EA and NE also have duties that bring them into the management framework of the marine environment. The remit of NE extends to encompass English territorial waters and with powers to designate SSSIs and make byelaws for their protection, ¹³³ the body therefore holds an important conservation role in respect of certain areas of IFCA districts. Similarly, the remit of the EA includes a duty to promote ‘the conservation and enhancement of the natural beauty and amenity of… coastal waters… and the conservation of flora and fauna which are dependent on an aquatic environment…’ ¹³⁴ as well as a duty to maintain, improve and develop migratory fisheries (such as salmon and sea trout). ¹³⁵ The area in which the Environment Agency must carry out these duties extends out to six nautical miles from coastal baselines, just like IFCA districts. ¹³⁶

With at least four environmental regulators of the inshore marine environment being given specific statutory powers and duties in relation to specific elements of its management, there is the potential for uncertainties and gaps to develop as to which regulator is responsible for the regulation of an activity taking place in such area or has any powers to act in respect of any such activity. Arguments for an overarching general duty of conservation have included the ability of such a duty to fill gaps that exist or develop in legislation where no relevant specific duty exists. ¹³⁷ As discussed in part 3 above, there are numerous gaps in the management and regulation of the inshore marine environment. While the government was clear that the MMO should not be burdened with a general duty of conservation, it appears that IFCAs are increasingly being looked at by the coastal communities to fill the gaps left by this decision. ¹³⁸

An ecosystem approach

The inshore marine area is a complex ecosystem ¹³⁹ and the pressure experienced by IFCAs to expand their remit may partly be explained as a consequence of stakeholders embracing an understanding of the interdependency of different forms of marine life and the environment which they are found.

An ecosystem approach to marine management was formally introduced in the UK in the Marine Policy Statement. ¹⁴⁰ The meaning of the term ‘ecosystem approach’ (and what such an approach entails) is not universally settled, ¹⁴¹ although many proponents of such an approach formulate its principles with reference to the Convention on Biological Diversity ¹⁴² and associated literature, ¹⁴³ which focuses on integrated management of living resources ‘that promotes conservation and sustainable use in an equitable way.’ ¹⁴⁴ In a Parliamentary note published at a similar time to the UK Marine Policy Statement, ‘the ecosystem approach’ was described as ‘[seeking] to maintain the integrity and functioning of ecosystems as a whole to avoid rapid undesirable ecological change.’ ¹⁴⁵ More recently, and in relation to fisheries management specifically, the ecosystem approach has been applied through the inclusion of an ‘ecosystem objective’ for fisheries management in the Fisheries Act 2020. ¹⁴⁶ However, this ecosystem approach does not seem to bear the same interpretation as that evidenced in stakeholders expectations, which appear not to appreciate the narrower, contextual limitation to fisheries’ imperatives.

The ‘ecosystem objective’ within the Fisheries Act focuses not on the impact that the ecosystem and influences on it can have on fish stocks, but rather on the impact that fishing activity can have on the ecosystem such activity takes place within. ¹⁴⁷ This narrower interpretation of ecosystem theory is traditional within fisheries management. ¹⁴⁸ For example, the latest iteration of the Common Fisheries Policy (‘CFP’) refers to the CFP ‘[implementing] the ecosystem-based approach to fisheries management so as to ensure that negative impacts of fishing activities on the marine ecosystem are minimised, and… that aquaculture and fisheries activities avoid the degradation of the marine environment.’ ¹⁴⁹ Considering fisheries management globally, Morishita suggests that the ecosystem approach as used within fisheries management tends to fall into one or more of four categories, the most popular of these being those that focus on fishing activity and fish resources (such as bycatch mitigation) and multi-species management (focusing on the prey-predator relationship). ¹⁵⁰ Both of these categories, like the CFP example, concentrate on the impacts of fishing on the ecosystem.

The example discussed at 3.3 above relating to the proposed deposit of dredged materials is a prime example of ecosystem thinking by stakeholders. While the deposit of dredged materials prima facie has no relation to fishing or fish stocks, it is clear that activity that has the potential to disturb the marine environment also has the potential to impact fish stocks and thus fishing activity. Similarly, farming activities up stream (as discussed at 3.4 above) also have no direct link to fishing or fish stocks, but the nature of the ecosystem means that such activities do end up having considerable impact on fish stocks, particularly within estuaries. However, IFCAs are constrained by the powers granted to them in section 153 of MCAA to employ a narrower approach to ecosystem theory and focus on the impact of the fishing sector and fishing activity on the inshore marine ecosystem by only managing actions directed or targeted at fisheries resources. This is not necessarily a criticism of section 153; all fisheries managers need to focus on managing fisheries and such management needs to be limited and bound by parameters to enable it to function well. Yet, the parameters set by section 153 are not being considered by stakeholders, who seem to be interpreting the ecosystem approach in a much more holistic, and therefore much wider, sense.

Conclusion

This examination of section 153 has revealed many complexities, some rather predictable, given the fragmented maritime regulatory regime, others perhaps less so. As noted in part 4 above, the nature of the IFCA model is likely to be a significant driver in the push being experienced by IFCAs to expand their remit. Inherent characteristics of the IFCA model include the relative ease of access to an IFCA through elected representatives and MMO appointees rooted in stakeholder groupings and transparent and participatory decision-making compared to other marine regulators, such as the MMO, the MCA, the Environment Agency and Natural England. Such accessibility and transparency also brings greater accountability. In this context it is informative to consider the conclusions of the recent Independent Review of Protected Site Management on Dartmoor, which was expressly critical of NE's lack of engagement with stakeholders in its decision-making process. In particular noting that the relationship with stakeholders had broken down, that NE had become increasingly inward-looking and target driven rather than reaching out to build effective partnerships, and this would take a large amount of effort to rebuild trust. ¹⁵¹

This contrasts strongly with the increased accessibility and trust enjoyed by IFCAs and the local management they practise as key components of a successful co-management model. ¹⁵² Given that co-management is ‘at the core of fishery governance discussions’ ¹⁵³ on the basis of its contribution to sustainable fishing and conservation, ¹⁵⁴ this suggests that the IFCA model, despite some of the issues identified above, is still an eminently suitable starting point for sustainable inshore fisheries management. Indeed, perhaps it is time to look at restructuring the MMO, NE and the EA to a more participatory model of decision-making along the lines of IFCAs and the locally administered Town & Country Planning system?

At the same time, the wider regulatory framework that IFCAs sit within may also be contributing to the pressure IFCAs are currently under. A plethora of marine regulators and the lack of a marine regulator with a general duty and power of marine conservation may have led to gaps in the regulatory framework for the marine space and this, together with the lack of a general conservation duty within this framework and differing interpretations of an ecosystem approach to fisheries and marine management are driving stakeholders to attempt to utilise IFCAs to fill this perceived or actual regulatory lacuna. Nevertheless, while no one body has a general duty of conservation in the marine environment, the duties given to IFCAs in section 153, including a new conservation duty in relation to managing fisheries, are suggested as having resulted in greater success in marine conservation for IFCAs in England than for central management in Wales (for which MCAA imposed no similar duties on the Welsh Ministers). ¹⁵⁵

What is clear in the above examination is that section 153 is nuanced and that its interpretation is difficult for IFCA officers, let alone lay persons, which will include many Authority members, both elected representatives and MMO appointees. Additionally, most, if not all, IFCAs lack in-house legal expertise. Only Devon & Severn IFCA and Southern IFCA, to the authors’ knowledge, currently have MMO appointees with a legal background and both IFCAs have found this advantageous in terms of additional skill sets. This is perhaps a matter that the MMO could usefully consider in future appointments when balancing an IFCA's available skill sets, since this examination has identified significant drivers putting pressure on IFCAs to expand the remit of section 153, which puts IFCAs at enhanced risk of legal challenge. ¹⁵⁶

While the IFCA model and the powers and duties given and imposed by section 153 have demonstrated great promise for enabling sustainable fisheries management at an ecosystem level, the nature of that model and the wider regulatory framework that IFCAs sit within, as discussed in part 4 above, both mean that IFCAs are likely to be subject to continual pressure to deal with all manner of marine issues and those who are working for or members of an IFCA need to understand what they are empowered to do under section 153 and what would fall outside of those powers.