Looking forward to potentially new primary legislation for the protection of marine mammals in the UK

The UK has more than twenty known species of marine mammals (whales, dolphins, porpoise, walrus and seals) in its waters. Some populations of these species are considered to be ‘resident’, which means they are present around the UK year-round, while some are ‘transient’, spending time in UK waters only at particular times of year.

Because of their importance ecologically and culturally, marine mammals in UK waters enjoy some legal protection through a system of nature conservation laws. Although these laws protect different species, ecosystems and biodiversity in varying ways, the reality is that this legislation is not dedicated to the specific protection of marine mammals, a position which ought to change if we are to give these species the protection they deserve.

The House of Commons Environment, Food and Rural Affairs Committee report on ‘Protecting Marine Mammals in the UK and Abroad’ (“the EFRA Report”), published on 28 June 2023 identified that the legal framework to protect marine mammals is incoherent and not sufficient to effectively preserve these species and that UK measures contain concerning loopholes. The EFRA Report went on to recommend that:

• Seals should become nationally protected species as soon as possible.
• Defra should take urgent steps to close the loophole that allows the transit of cetacean products through UK ports.
• That the Government should bring forward primary legislation specifically on marine mammal protection.
• The Government ought to introduce mandatory bycatch monitoring, phased in over several years.

This article provides a brief introduction to the threats to marine mammals in UK waters together with a summary of the current legal framework as it applies to disturbance, bycatch, captivity and protected areas. In doing so, key gaps in that legal framework will be flagged.

Marine mammals in the UK

Marine mammals in UK waters comprise cetaceans (whales, dolphins and porpoise) and pinnipeds (seals, walrus). Some of the most commonly occurring marine mammals in the UK include the harbour porpoise, bottlenose dolphin, white-beaked dolphin, Risso’s dolphin, common dolphin, orca, minke whale, grey seal and common seal. Other notable marine mammals which are increasingly seen in UK waters include humpback whales, fin whales, sperm whales, pilot whales and the walrus. These species range in size, behaviour and susceptibility to the numerous threats that they face.

 

Threats to marine mammals

 Marine mammals, both in the UK and internationally, face a number of threats, including:

• Bycatch/Entanglement – Where marine mammals are incidentally caught in fishing equipment. Bycatch is commonly held to be the most significant single threat to marine mammals across the world.
• Noise – There are many sources of underwater noise including from shipping, offshore development and military operations. Impacts on marine mammals can range from masking communications through to disturbance of normal behaviours and physical impacts. Hearing is the primary sense for most marine mammals, making ocean noise one of the most significant threats to many species.
• Vessel strikes – This is an increasing concern as marine traffic increases in both volume and speed.
• Climate change – Impacts to marine mammals can be through changes in prey availability and ice cover, which can affect migratory patterns which are based on feeding and breeding.
• Pollution – Chemical pollutants such as polychlorinated biphenyls (“PCBs”) and per- and poly- fluoroalkyl substances (“PFAs”) have been found in marine mammals in levels exceeding known toxicity thresholds. This is thought to impact upon breeding success. In addition, plastic pollution and marine litter, including discarded fishing gear, can also harm or kill marine mammals through ingestion and/or entanglement.
• Loss of prey - Including through changes in species distribution and overfishing.

An added complexity is that many of these threats are occurring at the same time and thus amplifying the impact on species and populations.

The legal framework for disturbance of marine mammals in the UK

The legal framework for dealing with disturbance of marine mammals in the UK is set out in the following legal regimes:

1. The EU Habitats Directive, as implemented in the UK via secondary legislation.
2. The Wildlife and Countryside Act 1981 (“the WCA”).

The Habitats Directive – European Protected Species 

Article 12 of the Habitats Directive establishes a system of strict protection for the animal species listed in Annex IV(a), which includes all cetacean species together with one pinniped – the Mediterranean monk seal (a species not currently present in the UK).

The Habitats Directive is currently implemented in the marine waters of England and Wales through the following pieces of secondary legislation:

• The Conservation of Habitats and Species Regulations 2017, which transpose the Habitats Directive up to 12nm offshore (“the Habitats Regulations”).
• The Conservation of Offshore Marine Habitats and Species Regulations 2017 which transpose the Habitats Directive beyond 12nm and within the whole of the UK offshore marine area (“the Offshore Regulations”). The Offshore Regulations apply in Scottish waters more than 12nm from land also.

Scotland and Northern Ireland have their own habitats regulations. These are not identical to the Habitats Regulations and Offshore Regulations, though they are broadly similar. These pieces of secondary legislation are as follows:

• Conservation (Natural Habitats, &c.) Regulations 1994 (“the Scottish Regulations”).
• Conservation (Natural Habitats, etc) Regulations (Northern Ireland) 1995.

Under both the Habitats Regulations and the Offshore Regulations, it is a criminal offence to deliberately capture, injure, kill or disturb any Annex IV(a) species, as well as to damage or destroy a breeding site or resting place of such an animal. Both statutory instruments go on to provide a definition of ‘disturbance’ as disturbance which is likely to impair the ability of the species to survive, breed or reproduce, or to rear or nurture their young, or in the case of animals of migratory species, to migrate, or to affect significantly, the local distribution or abundance of the species to which they belong. Notably, this definition of disturbance does not refer to individual animals but applies at a species level.[1]

The Wildlife and Countryside Act 1981 – Nationally Protected Species

Nationally protected species are listed in Schedule 5 of the WCA and include all cetaceans, together with one pinniped – the walrus. Neither the grey nor the common seal are currently listed in Schedule 5, though the EFRA Report recommends their inclusion as soon as possible.

Licences can be issued by government agencies to permit activities that would otherwise be offences under the Habitats Regulations, the Offshore Regulations, the Scottish Regulations and the WCA.

 

	Whale	Dolphin	Porpoise	Pinniped
Habitats Regulations	Offences- Deliberately capture, injure or kill- Deliberately disturb- Damage or destroy a breeding site or resting place (regulation 43)For the purposes of these regulations, disturbance of animals includes any disturbance which is likely (a) to impair their ability – (i) to survive, to breed or reproduce, or to rear or nurture their young. (ii) in the case of animals of hibernating or migratory species, to hibernate or migrate. or (b) to affect significantly the local distribution or abundance of the species to which they belong.			The regulation 43 offences are not applicable to grey and common seals.
Offshore Regulations	Offences- Deliberately capture, injure or kill- Deliberately disturb- Damage or destroy a breeding site or resting place (regulation 45)For the purposes of these regulations, disturbance of animals includes any disturbance which is likely (a) to impair their ability – (i) to survive, to breed or reproduce, or to rear or nurture their young. (ii) in the case of animals of hibernating or migratory species, to hibernate or migrate. or (b) to affect significantly the local distribution or abundance of the species to which they belong.			The regulation 45 offences are not applicable to grey and common seals.
Scottish Regulations	Offences- Deliberately or recklessly capture or kill Deliberately or recklessly i. Harass a wild animal or group of wild animals; ii. Disturb an animal while it is occupying a structure or place which it uses for shelter or protection; iii. Disturb such an animal while it is rearing or otherwise caring for its young; iv. Obstruct access to a breeding site or resting place of such an animal, or otherwise deny the animal use of the breeding site or resting place; v. Disturb such an animal in a manner that is, or in circumstances which are, likely to significantly affect the local distribution or abundance of the species to which it belongs; vi. Disturb such an animal in a manner that is, or in circumstances which are, likely to impair its ability to survive, breed or reproduce, or rear or otherwise care for its young; or vii. Disturb such an animal while it is migrating or hibernating - Damage or destroy a breeding site or resting place of such an animal(regulation 39(1))- Deliberately or recklessly disturb any cetacean (regulation 39(2))			The regulation 39 offences are not applicable to grey and common seals.
WCA (England and Wales)	Offences- Intentionally or recklessly disturb (s. 9(4A))		N/A	All of the offences in s. 9 apply to the walrus (being the only pinniped species listed in Schedule 5 at present). Offences include intentionally killing, injuring or taking (s. 9(1)), intentionally or recklessly damaging or destroying any structure or place which a walrus uses for shelter or protection, disturbing a walrus while it is occupying a structure or place it uses for shelter or protection, or obstructing access to any structure or place a walrus uses for shelter or protection (s. 9(4)).
WCA (Scotland)	All cetaceans were removed from Schedule 5 by the Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2007/80.However, the WCA still includes the offence in section 9(4A) of intentionally or recklessly, disturbing or harassing any cetacean. It appears that section 9(4A) which was added in 2004, was not updated to reflect the removal of all cetaceans from Schedule 5 in 2007.			All of the offences in s. 9 apply to the walrus (being the only pinniped species listed in Schedule 5 at present). Offences include intentionally or recklessly killing, injuring or taking (s. 9(1)), intentionally or recklessly damaging or destroying or obstructing access to, any structure or place which a walrus uses for shelter or protection, or disturbing a walrus while it is occupying a structure or place which it uses for that purpose (s. 9(4)).

 

Neither the statutory instruments implementing the Habitats Directive, nor the WCA, are dedicated to the protection of marine mammals.  These instruments are primarily used for the regulation of terrestrial species.  The application of the law to marine species is more problematic, particularly given the difficulty of applying these regimes to highly mobile marine species about which little is known and for which disturbance is difficult to assess and ‘prove’ given that it may be caused by a myriad of different sources.

The legal framework for bycatch of marine mammals in the UK

As stated above, bycatch comprises the primary anthropogenic risk for marine mammals. The legal framework for bycatch of marine mammals is primarily set out in UK fisheries law, including:

1. The Fisheries Act 2020.
2. Retained EU law – Regulation 2019/1241 on the conservation of fisheries resources and the protection of marine ecosystems through technical measures (as amended).
3. Fisheries licences and the requirement to report bycatch.

In addition, the Habitats Regulations require the systematic monitoring of the incidental capture and killing of all cetaceans as well as putting in place arrangements for future research and ensuring that conservation measures are taken so that any incidental capture does not have a significant negative impact on that species.

Given the importance of bycatch, it is helpful to consider each regime in turn.

The Fisheries Act 2020

The fisheries objectives, set out in the Fisheries Act, contain provisions applicable to the bycatch of marine mammals. Notably, the ‘Ecosystem Objective’ is that ‘incidental catches of sensitive species are minimised and, where possible, eliminated.’ All cetaceans, together with the grey and common seal and the walrus are ‘sensitive species’ for the purposes of the Fisheries Act (being species listed in Annex IV(a) and Annex II of the Habitats Directive). At present, mechanisms to minimise, and where possible, eliminate incidental catches of such sensitive species are set out in policy initiatives only – through the Joint Fisheries Statement (required under the Fisheries Act, and published in November 2022), and through the Bycatch Mitigation Initiative. There is, however, currently no legal mandate on specific measures to minimise or eliminate bycatch, or specific targets for minimisation that can be enforced, resulting in a lack of accountability which would ensure that bycatch is not happening at unsustainable levels.

Retained EU law

The objectives of Regulation 2019/1241 (as amended) mirror the wording in the Fisheries Act. Article 4 of Regulation 2019/1241 states that ‘Technical measures shall aim to ensure that… incidental catches of marine mammals… do not exceed levels provided for in legislation applicable in any part of the United Kingdom and international agreements that are binding on the United Kingdom.’ Such levels are not easily identifiable, and again, there is currently no mechanism to enforce this.

Fisheries licences and the requirement to report bycatch

From November 2021 there has been a mandatory requirement under fishing vessel licence conditions to report any bycatch of marine mammals to the Marine Management Organisation ("the MMO") within 48 hours of the end of the fishing trip. Marine mammal NGOs have reported that they have made requests to the MMO for information on bycatch numbers, and the responses indicate that bycatch is not being adequately reported.

Keeping marine mammals in captivity in the UK

There are no legal prohibitions on the keeping of cetaceans and pinnipeds in captivity in the UK. At present, there are no captive cetacean species in the UK. There are facilities with captive pinniped species.

Protected areas for marine mammals in the UK

The UK has over 200 marine protected areas, though less than 10 of these have marine mammals as their designated interest feature. The main legislation for the designation of protected areas for marine mammals is the Habitats Directive and the system of Special Areas of Conservation for Annex II species. Two cetacean species (bottlenose dolphin and harbour porpoise), and two UK pinniped species (grey and common seals) are Annex II species. Marine Conservation Zones, designated under the Marine and Coastal Access Act 2009, are not currently designated for the protection of marine mammals.

The need to do more

As we have seen, there are a number of regimes which protect marine mammals. However, as pointed out above, the current approach is far from comprehensive and arguably insufficient in terms of effectively protecting these species. Further, it has been identified that UK measures contain concerning loopholes. In practice it can also be very difficult to determine what protection is afforded to marine species, and how such protection can be enforced.

Next steps

The Government is expected to issue its response to the EFRA Report in September 2023. In the meantime, the EFRA Report has recommended some of the most ambitious objectives and timelines for marine mammals ever published. This report is a key step in the journey to ensure the strongest legal protections for marine mammals in the UK.

At Freeths we have been closely following the marine mammal inquiry and continue to be actively involved in discussions about the concept of a UK ‘marine mammal protection act’.

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If you have any questions or queries, please contact Helen Mitcheson who is an associate in Freeths Environmental Law Team. 

Prior to qualifying as a solicitor, Helen worked as an environmental consultant working with offshore developers and as a marine mammal scientist. Helen is also a deputy director at Cet Law, a not-for-profit organisation which specialises in furthering law and policy to protect marine mammals.

[1] See the case of Morge v Hampshire County Council [2011] on the interpretation of article 12(1)(b) of the Habitats Directive.  Paragraph 19 of this judgment states that ‘the prohibition encompassed in article 12(1)(b), in contrast to that in 12(1)(a), relates to the protection of “species”, not the protection of “specimens of those species”.