This chapter discusses the development of risk-based approaches to regulating fisheries in marine protected areas. England has adopted a matrix that divides European Marine Sites into red, amber, green and blue based on the risk degree of gear/(sub)feature interactions. Applying the logic of risk-based regulation has meant that the enclosure of fisheries has been partial, and this is a welcome step towards a proportionate response, but it runs the risks of not being sufficiently precautionary to comply with the interpretation of article 6(3) of the Habitats Directive under retained case law. Besides, risk-based regulation is not without its critics and even in this case certain shortcomings are apparent. In reviewing the English revised approach, the chapter pays attention also to the actors involved and the knowledges accepted as evidence in developing and implementing the approach and in doing so it also taps into debates of commoning, asking whether the revised approach has facilitated collective problem-solving and epistemic inclusivity.

This chapter focuses on the process of designation of MCZs in English waters at the basis of MCZs designation. The designation of MCZs is a very interesting case to study attempts at democratising conservation regulation as it has contemplated extensive participation. Departing from the technocratic and purely science-based approach to site selection typical of domestic and European nature conservation law, socio-economic considerations and participatory techniques have been key elements of the designation process of MCZs in England from the start. However, a critical reading of the participatory approach reveals certain weaknesses, mainly to do with the choice of an aggregative rather than a deliberative model of democracy. Advocating for a relational ontology and epistemology, the chapter ends with a call for bringing forth new, ‘thicker’ models of participation that are more attentive to multiple forms of communication and identities and more conducive to commoning practices.

This chapter provides a critical reading of the current efforts to conserve marine biodiversity in a changing climate. The relationship between conservation and climate change is a complicated one due to the multiple entanglements between human and more-than human elements. This chapter discusses the extent to which the existing legal framework, presented in Chapter 2, promotes adaptative governance to conserve biodiversity in a changing climate and whether management practice follows suit. The doctrinal reading of the law is complemented by empirical insights gained through interviews with SNCBs and environmental NGOs as well as documentary analysis of key policies on implementation measures. It is argued that if the law provides for adaptive governance, its implementation in practice, that is adaptive management, is more problematic.

This chapter brings together the main threads of the book, reflecting on the role of English marine protected areas and the extent to which they are sites for commoning or uncommoning and the extent to which they support the conservation of common-pool resources. It also offers broader critical observations on the way English marine protected areas law and regulation construct the relationship between nature and society.

This initial chapter introduces marine protected areas as the preferred tool of marine conservation law and the four main themes around which the monograph is organised, namely space, rationality, democracy and adaptation. The methodology used for the study is also introduced and the structure of the book explained and summarised.

The chapter starts by highlighting the role of international legal and policy drivers on domestic conservation law. In a post-Brexit world, the role of international law is bound to become even more significant, hence the fact that the UK is a party to many multilateral environmental agreements setting out conservation obligations is significant. The chapter then moves to the legal regime for the protection of marine biodiversity in England, starting with an introduction into the regulatory bodies and then focusing on the two main legal instruments for the designation and management of marine protected areas: the Habitats Regulations 2017, as amended and the Marine and Coastal Access Act 2009, offering a comparison between the two in terms of designation and management provisions. Finally, a note on key implementation challenges is offered. The legal map presented is framed using the conceptual categories of new commons and enclosures defined in Chapter 1.

This chapter discusses environmental democracy from an institutional perspective focusing on the role Inshore Fisheries Conservation Authorities and environmental NGOs have in marine conservation regulation. Environmental NGOs are the ‘usual suspects’ when discussing environmental democracy. They are the voice of the more-than human, operating as a proxy, and they are defending the environmental rights of present and future generations through a variety of strategies, more or less confrontational. Thus, NGOs are an obvious subject in discussions of environmental democracy. For radical scholars, Inshore Fisheries Conservation Authorities may seem less interesting. After all, their transformative potential is tamed by the statutory obligations governing their behaviour, they are local arms of the state. However, the chapter reveals that their set up and operation display important democratic aspects. Although both organisations contribute to the democratisation of regulation, they also experience some challenges and constraints, which the chapter discusses.

This chapter introduces the multiple roles of marine protected areas using the language of the commons. After introducing how international biodiversity law uses commons' language, it attempts to discuss two main characterisations of marine protected areas: marine protected areas as regulatory tools for common-pool resources and marine protected area as institutional sites for supporting or hindering commoning practices. The discussion draws on three principal strands of social science literature: political ecology to show how rational and scientific interventions are always political, geographical literature to discuss the meaning of territory and uncover the more-than-human elements in the analysis of conservation intervention and most crucially, the literature on commons, which spans from the more traditional Ostromian analysis of common-pool resources to the more recent and politicised literature on commoning. Investigating the relationships between marine protected areas and commons is an essential preliminary step to enable a critical discussion of how English law and regulation conceptualises marine protected areas and contributes to the formation of marine protected areas as spaces of opening and/or closing.

This chapter explores impact assessments (IAs) used for designating Marine Conservation Zones. It starts with an introduction to IAs, leading to a theoretical discussion of cost-benefit analysis as a tool for rationalising regulation. It follows with a critical review of IAs produced by the regional stakeholder groups using umbrella questions derived from the theoretical analysis and then it asks if and how the formal IAs produced by the government for the designation of the three tranches of Marine Conservation Zones constitute an improvement compared to the regional stakeholder groups’ IAs before offering concluding remarks. Throughout the chapter, connections with the concept of commoning are made arguing that IAs for MCZs, by employing economic language in decision-making and focusing on industry costs over benefits, favour the voices of a few over collective ones, highlight interests at the expenses of values and undermine the potential for ethical consideration to play a role in assessment, thereby failing to encourage a shared ethics of care and responsibility towards the marine environment, hence not favouring commoning practices.

This chapter discusses regulatory uncertainty and change by focusing on a major legal and political disruptive force, that is Brexit. The chapter investigates how Brexit is affecting the conservation of marine biodiversity as well as the legitimacy and accountability of marine conservation regulation, thereby potentially impacting on the commoning of conservation law. The chapter, after a note to remind the reader of the multiple entanglements between EU and UK law, introduces key challenges to environmental law due to the changing governance architecture, considering specifically the role of environmental principles as well as that of institutions for ensuring the accountability for environmental standards. A section on the changes brought about by Brexit amendments to the Habitats Regulations follows and precedes the chapter conclusions.