Phil Taylor

In legal terms, as the national watchdog put it, ministers have failed to achieve “Good Environmental Status” for the health of the seabed, despite a deadline of 2020 established by the Marine Strategy Regulations, replicated within the National Marine Plan, Biodiversity Strategy and elsewhere, and at the core of the post-Brexit 2020 Fisheries Act.

Perhaps more importantly, ESS concludes that this is not simply because marine recovery is difficult or takes time. It finds that Scottish ministers have failed to effectively implement the things they said they would.

The consequence is straightforwardly that every new decision that ignores these legal duties risks being unlawful.

In its report, ESS identifies three core failures.

First, the Scottish ministers have failed to develop an effective enough “Programme of Measures” demonstrating how Scotland will protect its seabed and help it recover, instead setting out relatively vague plans and delegating responsibility for meaningful policy change elsewhere.

Second, Scotland is failing to properly monitor the condition of its seas, with ESS concluding that monitoring has actually declined over the last decade.

Third, ESS found that governance has failed, pointing to repeated delays in implementing measures, fragmented responsibility across government and inconsistent application of marine environmental duties. Instead of taking responsibility for addressing these failings, different parts of government have tried to pass the responsibility of delivery to another, while failing to meet their duties under environmental law.

In practice, this means the Scottish government is now at risk of legal challenge from ESS, as well as others. It needs to urgently improve fisheries management, protect areas against further damage, funding restoration and gathering data on seabed habitats.

It also means that ministers must roll out vessel tracking across Scotland’s fishing fleet, allowing regulators to understand where fishing is taking place and improve compliance with fisheries rules, while ensuring that Fisheries Management Plans are be one of the principal mechanisms for restoring seabed health, not simply managing catches.

An upcoming consultation on protections for inshore MPAs and Priority Marine Features (key species and habitats) will give ministers the opportunity to act towards improving seabed health, yet it has been delayed repeatedly, most recently with government announcing its commitment to act by the end of 2025 would need to be postponed until after the election.

ESS itself requires a response to their report in the next six months, by December 2026, but some of these policy commitments, such as the Fisheries Management Plans, will be shaped by decisions in the coming weeks and months.

If ministers do not step up with precise policy measures that implement the protections Scotland’s seas need, it is now crystal clear that those decisions will be unlawful.

We stand ready to challenge that.