The conservation of British cetaceans: A review of the threats and protection afforded to whales, dolphins, and porpoises in UK waters, part 2

Journal of International Wildlife Law and Policy

Volumn 13, Issue 2, 2010, Pages 99-175

  Parsons, E C M ^a   Clark, J ^b   Simmonds, M P ^b  

^a GEORGE MASON UNIVERSITY   (United States)

^b WHALE AND DOLPHIN CONSERVATION   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

CETACEAN; ENDANGERED SPECIES; SPECIES CONSERVATION;

UNITED KINGDOM;

CETACEA; PHOCOENIDAE;

EID: 77952923943     PISSN: 13880292     EISSN: 15481476     Source Type: Journal    
DOI: 10.1080/13880292.2010.482489     Document Type: Article

References (296)

1. E.C.M. Parsons et al., The Conservation of British Cetaceans: A Review of the Threats and Protection Afforded to Whales, Dolphins, and Porpoises in UK Waters, Part 1. JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY 13.1 (2010).
2. United Nations Convention on the Law of the Sea, Dec. 10, 1982, art. 8, 21 I.L.M. 1261 [hereinafter UNCLOS].
3. Id. at arts. 2, 3 and 17-19.
4. Id. at arts. 56, 58.
5. Id. at art. 87.
6. See The Renewable Energy Zone (Designation of Area) Order 2004, 2004 No. 2668 (Eng.), available at http://www.legislation.hmso.gov.uk/si/si2004/20042668.htm
7. G. Rose, International Law and the Status of Cetaceans, in THE CONSERVATION OF WHALES AND DOLPHINS: SCIENCE AND PRACTICE 23 (M.P. Simmonds & J.D Hutchinson eds., 1996).
8. UNCLOS, supra note 4, at arts. 61, 119.
9. Id. at arts. 64, 65, 120.
10. Id. at arts. 65, 120.
11. Which was implemented on 29 December 1993.
12. Convention on Biological Diversity, June 5, 1992, art. 6(a), 31 I.L.M. 818 [hereinafter CBD].
13. Signatories are requested to integrate "the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies." Id. at art. 6(b).
14. Id. at art. 7(a).
15. Key habitats included habitats "containing high diversity" and "large numbers of endemic or threatened species," but also habitats that were "required by migratory species" and of "scientific importance." Id. at annex I(1).
16. Priority species included ones which were: "threatened" or of "social, scientific or cultural importance" or "importance for research into the conservation and sustainable use of biological diversity, such as indicator species" under which categories most cetacean species could be placed-as a top predator in the marine environment cetaceans are certainly considered to be a major indicator species for the health of the marine environment. Id. at annex I(2). For example, see R.S. Wells et al., Bottlenose Dolphins as Marine Ecosystem Sentinels: Developing a Health Monitoring System, 1 ECOHEALTH 246 (2004).
17. CBD, supra note 14, art. 7(b).
18. Id. at art. 7(c).
19. The declaration calls for parties to "[r]ehabilitate and restore degraded ecosystems." Id. at art. 8(f).
20. Id. at art. 8(i).
21. Id. at art. 14(a).
22. QinetiQ, Environmental Impact assessment in support of the Procurement of Sonar 2087, Version 1.0. QinetiQ, Dorchester (2002).
23. Her Majesty's Stationary Office [HMSO], Safer Ships, Cleaner Seas (report of Lord Donaldson's Inquiry into the Prevention of Pollution from Merchant Shipping 1994).
24. CBD, supra note 14, at pmbl.
25. E.g., UK Dep't of Trade and Industry [DTI], Strategic Environmental Assessment to the East of the Scottish mainland, Orkney and Shetland (SEA5) (2004), available at http://www.offshore-sea.org.uk/site/scripts/downloads.php?categoryID=41 [hereinafter DTI (2004)].
26. DTI, Strategic Environmental Assessment Area North and West of Orkney and Shetland (Sept. 2003), available at http://www.offshore-sea.org.uk/consultations/SEA_4/SEA4_assessment.pdf [hereinafter DTI (Sept. 2003)].
27. DTI, Strategic Environmental Assessment of Parts of the Central and Southern North Sea SEA, at 3 (Aug. 2002), available at http://www.offshoresea.org.uk/consultations/SEA_3/SEA3_Assessment_Document_Rev1_W.pdf
28. E.g., DTI (2004), supra note 27.
29. DTI (Sept. 2003), supra note 27.
30. DTI, Strategic Environmental Assessment of the Mature Areas of the Offshore North Sea SEA 2 (Sept. 2001), available at http://www.offshore-sea.org.uk/consultations/SEA_2/SEA2_Assessment_Document.pdf
31. For example, fin whale, sei whale, and blue whale.
32. DTI, SEA 5, Post Public Consultation Report, January 2005, Strategic Environmental Assessment, Oil and Gas Licensing (Jan. 2005), available at http://www.offshore-sea.org.uk/consultations/SEA_5/SEA_5_Post_Consultation_Report.pdf
33. For a detailed critique of the seismic survey guidelines see E.C.M Parsons et al., A critique of the UK's JNCC Seismic Survey Guidelines for minimizing acoustic disturbance to marine mammals: Best practice? 58 MARINE POLLUT. BULL., 643-651 (2009).
34. DTI (2002), supra note 27, at 156.
35. Parsons et al. (2009) supra note 34.
36. Robert D. McCauley et al., High Intensity Anthropogenic Sound Damages Fish Ears, 113 J. OF ACOUS- TICAL SOC'Y OF AM. 638, 638-642 (2003), available at http://www.awionline.org/ht/a/GetDocument_Action/i/10166.
37. C. McKenzie et al., Concentrations and Patterns of Organic Contaminants in Atlantic White-Sided Dolphins (Lagenorhynchus acutus) From Irish and Scottish Coastal Waters, 98 ENVTL. POLLUTION 15, 15-27 (1997).
38. European Union Council Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora art. 12(1)(b) 1992 O.J. (L 206/7)-deliberate disturbance of cetaceans is prohibited. R.v. The Secretary of State for Trade and Industry ex parte Greenpeace (1999) ruled that an oil company conducting an activity in the knowledge that disturbance would result, is not disturbing cetaceans.
39. E.g., DTI (2004), supra note 27 (showing map coverage of seismic survey in SEA areas).
40. INT'L WHALING COMM'N, REPORT OF THE IWC HABITAT DEGRADATION WORKSHOP, 12-15 NOVEMBER 2004, SIENA, ITALY 9 (2005).
41. INT'L WHALING COMM'N,ANNEX K,REPORT OF THE STANDING WORKING GROUP ON ENVIRONMENTAL CONCERNS 44 (2005).
42. Int'l Union for the Conservation of Nature [IUCN], Undersea Noise Pollution, CGR3, RES053-REV1, 3d IUCN Congress, 17-25 November 2004, Bangkok, Thailand (2004).
43. European Parliament resolution on the environmental effects of high-intensity active naval sonars, PARL. EUR. Doc B6-0089 (2004).
44. ENVIRONMENTAL IMPACT ASSESSMENT IN SUPPORT OF THE PROCUREMENT OF SONAR 2087. VERSION 1.0. (QuinetiQ, Dorchester 2002) [hereinafter SONAR 2087 EIA].
45. Id. at 9
46. For example, SONAR 2087 in the United Kingdom.
47. Such a result is unlikely to be seen yet either, as these systems are in the process of being tested and are not in widespread use. Moreover, there is no monitoring of any impacts on cetaceans apart from a very small (one kilometre in the case of the U.S. system) radius around vessels, a tiny fraction of area that is esonified by these systems, or even cause auditory damage. The Royal Navy's environmental impact assessment for the SONAR 2087 sonar system predicts that permanent cetacean auditory damage could occur up to seven kilometres from the source with behavioural impacts occurring at, presumably, a greater range. Thus, arguably the UK system should have a cetacean exclusion range of, at the very least, seven kilometres. SONAR 2087 EIA, supra note 48.
48. CITES Res. 2.9, 11th Meeting, (April 10-20, 2000).
49. Tenth Meeting of the Conference of Parties, June 1997, Proposals for Amendments of Appendices I and II, Harare, Zimb. Eleventh Meeting of the Conference of Parties, April 2000, Proposals Resulting from the Periodic Review by the Plants Committee, Nairobi, Kenya. Twelfth Meeting of the Conference of Parties, November 2002, Proposals for Amendments of Appendices I and II, Santiago, Chile.
50. 1997 J.O. (L 61) 40.
51. Convention on the Conservation of Migratory Species of Wild Animals art. 4(4), June 23, 1979, 19 I.L.M. 11, 1651 U.N.T.S. 28395.
52. Agreement on the Conservation of Cetaceans of the Black Seas, Mediterranean Sea, and Contiguous Atlantic Area, November 24, 1996.
53. E.g., COP Res. 6.2; COP Rec. 7.2.
54. The term "small cetaceans" refers to all odontocete cetaceans (toothed whales, dolphins, and porpoises), except the sperm whale.
55. The Ministerial Declaration of the Third International Conference on the Protection of the North Sea, The Hague, Netherlands, March 7-8, 1990, Memorandum of Understanding on Small Cetaceans in the North Sea [hereinafter Hague MOU].
56. The Convention on the Conservation of European Wildlife and Natural Habitats art. 2.1, September 19, 1979, Europ. T.S. No. 104 [hereinafter The Bern Convention].
57. Id. at art. 2.2.
58. Id. at Annex 1, art. 1.
59. Id. at Annex 1, art. 2.
60. Id. at Annex 1, art 2(b).
61. Id. at Annex 1, art 2(c).
62. It is interesting to note that the agreement states that these studies "should exclude the killing of animals and include the release in good health of animals captured for research." Id. at Annex 1, art. 2.
63. Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas Annex 1, art. 4, March 17,1992,1772 U.N.T.S. 217 [hereinafter ASCOBANS].
64. The Wildlife and Countryside Act and ASCOBANS refer to the "taking" of cetaceans. Wildlife and Countryside Act, 1991, ch. 69, sched. 7, United Kingdom, available at http://www.jncc.gov.uk/page-3614.
65. ASCOBANS, supra note 476, at Annex 1, art. 4. This implies the deliberate capture of animals rather than the definition of "take" used by the U.S. Marine Mammal Protection Act which can mean the disturbance, injury or death of an animal.
66. ASCOBANS, supra note 67, at Annex 1, art. 4.
67. Id. at Annex 1, art 5.
68. P. S. Hammond et al., Distribution and Abundance of the Harbour Porpoise and Other Small Cetaceans in the North Sea and Adjacent Waters, delivered to the European Commission, LIFE 92-2/UK/27, (1995).
69. Whilst these large scale surveys are welcome, it is important to realise that they only provide a broad- scale snapshot of some areas. This results in some population density data and population estimates but may contribute little to local conservation management, and may even be misleading if population structure is unknown. For example, an estimate of a certain species covers a vast area of sea but does not reveal that they exist in discrete "biological populations," which require particular conservation measures.
70. Parsons et al., Cetacean Conservation in Northwest Scotland: Perceived Threats to Cetaceans, 13 EUR. RES. ON CETACEANS, 128-133 (1999).
71. W. F. PERRIN, DOLPHINS, PORPOISES, AND WHALES: AN ACTION PLAN FOR THE CONSERVATION OF BIOLOGICAL DIVERSITY: 1988-1992 (1989).
72. RANDALL R. REEVES ET AL., DOLPHINS, PORPOISES, AND WHALES: 1994-1998 ACTION PLAN FOR THE CONSERVATION OF CETACEANS (1994).
73. RANDALL R. REEVES ET AL., DOLPHINS, WHALES, AND PORPOISES: 2001-2010 CONSERVATION ACTION PLAN FOR THE WORLD'S CETACEANS (2003).
74. PERRIN, supra note 74.
75. REEVES & LEATHERWOOD, supra note 74, at 31-32.
76. IUCN Res. 53, Third IUCN Congress, (November 17-25 2004), available at http://www.awionline.org/ht/a/GetDocumentAction/i/10132
77. Mark Gardiner, The Exploitation of Sea-Mammals in Medieval England: Bones and Their Social Context, 154 THE ARCHAEOLOGICAL J. 173 (1997).
78. The "whaling" of any cetacean is prohibited, whether a toothed (odontocete) or baleen (mysticete) cetacean. Id.
79. Whaling Industry (Regulations) Act 1934, 1934, ch. 49, United Kingdom, available at http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1934/cukpga_19340049_en_1 (amended by the Fishing Limits Act 1981).
80. It should be noted that there are other international bodies that are recognized by some countries as a competent authority, but not others. For example, ACCOBAMS and NAMMCO (the North Atlantic Marine Mammal Commission). The latter is somewhat controversial as an international organization since membership is 'by invitation' rather than freely open to all North Atlantic nations, and thus does not represent all North Atlantic maritime nations. ACCOBAMS Res. 2.16, Second Meeting of the ACCOBAMS Contracting Parties (November 9-12 2004), available at http://www.accobams.org/index.php?option=com content&view=article&id=76:second-meeting-of-the-accobams-contracting-parties&catid=51:meetings-of-the-parties&Itemid=6
81. Norway and Iceland currently conduct commercial whaling. Japan conductsso-called scientific whaling, which is effectively a commercial hunt under another name. Bequia (St. Vincent and the Grenadines), the Russian Federation, Greenland (a protectorate of Denmark), and the U.S. currently conduct aboriginal subsistence whaling.
82. Nations such as Japan and Peru originally tabled reservations to the moratorium when it was agreed, but these were subsequently withdrawn.
83. In 1993, when Norway restarted whaling, 157 minke whales were taken. This quota of whales has steadily increased: in 2004 the quota was 670 minke whales, and the proposed quota for 2005 is 796 animals.
84. In 2003, 37 whales were taken, with 25 in 2004 and 39 in 2005. In 2006, 60 more minke whales were taken under commercial whaling, and 39 in 2007. The whaling briefly stopped in 2007, primarily due to lack of demand for whale meat that had already been harvested, but resumed in 2008, taking a total of 82 minke whales. In 2009, Icelandic whalers caught 79 more minke whales but also 125 "endangered" fin whales.
85. Japan and Iceland (between 2003 and 2005) both conducted a whaling program that is allowed by a loophole in the Convention that allows a lethal take of whales for scientific purposes. This "scientific whaling" is highly controversial and has been heavily criticized by many scientists belonging to the IWC Scientific Committee. For example, P.J. Clapham et al., Whaling as science, 53 BIOSCIENCE 210, 210-212 (2003) states, "Many [IWC Scientific Committee] members have contended that Japan's scientific whaling program is so poor that it would not survive review by any independent funding agency."
86. Iceland's admittance to IWC passed by one vote. However, Iceland itself was allowed to vote on its admittance, despite not actually being a current party to the IWC, i.e., Iceland effectively voted itself into the IWC, despite not actually being a member.
87. The legal ramifications of a nation becoming signatory of a treaty but being exempted from a central tenet/component of the treaty (i.e., the moratorium) have caused concern. Moreover, the concept of a nation agreeing to a central tenet/component of a treaty (i.e., the moratorium in this case) and then, after waiting some time, rejoining the treaty with a reservation to the central tenet raises many questions about undermining the effectiveness of international treaties, and the legality of Iceland's actions.
88. Parsons et al., supra note 73, at 128-133.
89. See K. MacLeod et al., Seasonal Distribution of Minke Whales (Balaenoptera acutorostrata) in Relation to Physiography and Prey Off the Isle of Mull, Scotland, 277 MARINE ECOLOGY PROGRESS SERIES 263, 263-274 (2004) (providing information on minke whale behaviour and ecology during the summer season).
90. N. J. Scott & E. C. M. Parsons, A Survey of Public Opinions in Southwest Scotland on Cetacean Conservation Issues, 15 AQUATIC CONSERVATION 299, 299-312 (2005).
91. OSPAR Comm'n, Biological Diversity and Ecosystems Strategy, http://www.ospar.org/content/content.asp?menu=00180302000000_000000_000000 (last visited September 30, 2009).
92. Common Fisheries Policy.
93. North East Atlantic Fisheries Commission.
94. OSPAR Agreement on the Meaning of Certain Concepts in Annex V to the 1992 OSPAR Convention on the Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area (1998-15.2) July 22-23, 1998, http://www.ospar.org/v measures/browse.asp?menu=00750302090125_000002_000000 (last visited September 8, 2009).
95. OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic, 2004 Initial OSPAR List of Threatened and/or Declining Species and Habitats (2004-2006), available at http://www.ma.ieo.es/deeper/DOCS/Lista%20de%20especies%20OSPAR%2001.pdf (last visited September 30, 2009).
96. OSPAR Comn'n, OSPAR Recommendation 2003/3 on a Network of Marine Protected Areas, available at http://www.ospar.org/content/content.asp?menu=00700302210000_000000_000000 (last visited September 30, 2009).
97. "Ecological quality" is an expression of the structure and function of the ecological system taking into account natural physiographic, geographic, and climatic factors as well as biological, physical, and chemical conditions including those from human activities.
98. Council Directive 92/43/EEC on the Conservation of Natural Habitats of Wild Fauna and Flora, May 21,1992, O.J. L 206, 22.7.1992 [hereinafter Habitats Directive].
99. The Habitats Directive was transposed into UK law via The Conservation (Natural Habitats, etc.) Regulations 1994 (CNHRS).
100. Habitats Directive, supra note 101, art. 12.
101. Id. at para 1.
102. R. v. Sec'y of State for Trade and Industry ex parte Greenpeace Ltd., 2 CMLR 94 (2000).
103. Wildlife and Countryside Act, 1981, c. 69, § 27(5) (UK).
104. See, e.g., INT'L WHALING COMM'N, CHAIR'S REPORT OF THE 57TH ANNUAL MEETING, JUNE 20-24, 2005, ULSAN, REPUBLIC OF KOREA (2005), available at http://www.iwcoffice.org/ documents/meetings/ulsan/CRREP57.pdf
105. Habitats Directive, supra note 101, art. 15.
106. J. H. SHRIMPTON & E.C.M. PARSONS, CETACEAN CONSERVATION IN WEST SCOTLAND 85 (2000).
107. Juliet H. Shrimpton, The impacts of fish-farming on the harbour porpoise (Phocoena phocoena) (2001) (contract report to the Hebridean Whale and Dolphin Trust).
108. J. Gordon & S.P. Northridge, Potential impacts of acoustic deterrent devices on Scottish marine wildlife (2003) (contract report to Scottish Natural Heritage).
109. Habitats Directive, supra note 101, art. 16.
110. Id. at Annex III (Stage 1).
111. Id. at art. 4.
112. Id. at art. 6.
113. Favourable conservation status is when population dynamics data on the species concerned indicate it is maintaining itself on a long-term basis as a viable component of its natural habitats, the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis.
114. Habitats Directive, supra note 101, art. 6(4).
115. B. Wilson et al., Considering the temporal when managing the spatial: A population range expansion impacts protected areas-based management for bottlenose dolphins. 7 ANIMAL CONSERVATION 1, (2004).
116. R.v. The Trade Secretary of State for Trade and Industry ex parte Greenpeace Ltd. (1999)
117. J.B. REID ET AL., ATLAS OF CETACEAN DISTRIBUTION IN NORTH-WEST EUROPEAN WATERS (2003).
118. K. Grellier & B. Wilson, Bottlenose dolphins using the Sound of Barra, Scotland. 29 AQUATIC MAMMALS 378 (2003).
119. C.J. Wood, Movement of bottlenose dolphins around the south-west coast of Britain. 246 J. OF ZOOLOGY 155, (1998).
120. For example, the majority of survey routes outlined by Hammond et al., supra note 471, would miss the habitat of estuarine or coast-hugging bottlenose dolphin groups. The JNCC cetacean distribution atlas (see REID ET AL., supra note 119) does not even record bottlenose dolphins in the majority of west Scottish waters, despite a local abundance. See SHRIMPTON & PARSONS, supra note 109, for bottlenose dolphin distribution maps of this area.
121. Moray Firth cSAC Management Group, The Moray Firth Candidate Special Area of Conservation Management Scheme, Revision 1, 16 (2003), available at http://www.morayfirth-partnership.org/ext/SAC(MSD)/MorayFirthcSAC_MS_Rev1_pdf
122. Habitats Directive, supra note 101, art. 6, 2.
123. Favourable conservation status as a goal of the Habitats Directive is outlined in id. at art. 2.2.
124. L. Bates, A critical evaluation of the management measures for protected areas, for coastal cetaceans in the UK (2003) (unpublished masters thesis, Bangor University) (on file with Whale and Dolphin Conservation Society, Brookfield House, 38 St. Paul Street, Chippenham, Wiltshire SN15 1LJ, UK).
125. The Moray Firth Partnership notes that 25% of management aims have been completed. See MORAY FIRTH P'SHIP, MORAY FIRTH CANDIDATE SPECIAL AREA OF CONSERVATION (CSAC), ANNUAL PROGRESS REPORT, (2002). Bates notes, "The 2003 Moray Firth review delayed due to a lack of staff, and there are no plans to employ more staff in this sector." Bates, supra note 126, at 88.
126. Cardigan Bay SAC Relevant Authorities Group, Cardigan Bay Candidate Special Area for Con- servation, Action Plan Review 1 (2003), available at http://www.cardiganbaysac.org.uk/pdf%20files/RAGactionplanrevision2003.pdf
127. T. Bristow, Changes in coastal site usage by bottlenose dolphins (Tursiops truncatus) in Cardigan Bay, Wales, 30 AQUATIC MAMMALS 398, 398-404 (2004).
128. T. Bristow et al., Shore-base monitoring of bottlenose dolphins (Tursiops truncatus) by trained volunteers in Cardigan Bay, Wales, 27 AQUATIC MAMMALS 115, 115-120 (2001).
129. Id. at. 403.
130. Bates, supra note 126, at 89.
131. B. Wilson et al., Estimating size and assessing trends in a coastal bottlenose dolphin population, 9 ECOLOGICAL APPLICATIONS 288, 288-300 (1999).
132. The Countryside Commission for Wales: http://www.ccw.gov.uk/default.aspx
133. J.H. SHRIMPTON & E.C.M. PARSONS, CETACEAN CONSERVATION IN WEST SCOTLAND 85 (2000).
134. P.S. Hammond & P.M. Thompson, Minimum estimate of the number of bottlenose dolphins (Tursiops truncatus) in the Moray Firth, 56 BIOLOGICAL CONSERVATION 79, 79-87 (1991).
135. B. Wilson et al., Habitat use by bottlenose dolphins: Seasonal distribution and stratified movement patterns in the Moray Firth, Scotland, 34 J. OF APPLIED ECOLOGY 1365, 1365-1374 (1997).
136. P.M. Thompson et al.,Combining power analysis and population viability analysis to compare traditional and precautionary approaches to the conservation of coastal cetaceans, 14 CONSERVATION BIOLOGY 1253, 1253-1263 (2000).
137. S. Mendes et al., The influence of the tidal cycle and a tidal intrusion front on the spatio-temporal distribution of coastal bottlenose dolphin, 239 MARINE ECOLOGY PROGRESS SERIES 221, 221-229 (2002).
138. G.D. Hastie et al., Bottlenose dolphins increase breathing synchrony in response to boat traffic, 19 MARINE MAMMAL SCIENCE 74, 74-84 (2003).
139. G.D. Hastie et al., Distribution of small cetaceans within a candidate Special Area of Conservation; implications for management, 5 J. OF CETACEAN RES. & MGMT. 261, 261-266 (2003).
140. G.D. Hastie et al., Functional mechanisms underlying cetacean distribution patterns: Hotspots for bottlenose dolphins are linked to foraging, 144 MARINE BIOLOGY 397, 397-403 (2004).
141. T. Bristow & E.I.S. Rees, Site fidelity and behaviour of bottlenose dolphins (Tursiops truncatus) in Cardigan Bay, Wales, 27 AQUATIC MAMMALS 1, 1-10 (2001).
142. P.R. Gregory & A.A. Rowden, Behaviour patterns of bottlenose dolphins (Tursiops truncatus) relative to tidal state, time of day, and boat traffic, in Cardigan Bay, West Wales, 27 AQUATIC MAMMALS 105, 105-113 (2001).
143. K. Hughes, The status of the harbour porpoise (Phocoena phocoena) in UK waters (1998) (unpublished MSc Thesis, University of Greenwich, London).
144. This is evidenced by a coastal area in the north of Jura, in the SAC area, called "Beigh Gleann nam Muc," meaning the "Bay of the porpoises."
145. Letter from Hebridean Marine Nat'l Park P'ship, to Margot Wallström, EU Comm'r for the Env't (Nov. 3,2004).
146. A.R. Whaley & K.P. Robinson, The southern outer Moray Firth in NE Scotland as a potential safe area candidate for the harbour porpoise (Phocoena phocoena L.), 18 EUR. RES. ON CETACEANS, available at http://www.marineconnection.org/docs/whaley_robinson_2004.pdf
147. For example, 0.45 schools of bottlenose dolphins per 100 kilometre of survey versus 1.69 schools of harbour porpoises. G.D. Hastie et al., supra note 140, at 261-266.
148. Council Regulation 812/2004, Laying Down Measures Concerning Incidental Catches of Cetaceans in Fisheries and Amending Regulation (EC) No 88/98, 2004 O.J. (L 185) (EC) [hereinafter Measures].
149. Id. at art. 2.
150. Id. at art. 4.1.
151. Id. at art. 2.4.
152. Id. at art. 4.2.
153. P. Berggren et al., Potential Limits to Anthropogenic Mortality of Harbour Porpoises in the Baltic Region, 103 BIOLOGICAL CONSERVATION 313 (2002).
154. Council Regulation 345/92, Amending, for the 11th Time, Regulation (EEC) No. 3094/86 Laying Down Certain Technical Measures for the Conservation of Fishery Resources, 1992 O.J. (L 42) (EEC).
155. Council Regulation 894/97, Laying Down Certain Technical Measures for the Conservation of Fishery Resources, 1997 O.J. (L 132) (EC).
156. Council Regulation 1239/98, Amending Regulation (EC) No 894/97 Laying Down Certain Technical Measures for the Conservation of Fishery Resources, 1998 O.J. (L 171) (EC).
157. R. Caddell, By-Catch Mitigation and the Protection of Cetaceans: Recent Developments in EC Law, 8 J. INT'L WILDLIFE L. & POL'Y 241 (2005).
158. Defined as those prepared and/or adopted by an authority at a national, regional, or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and; those which are required by legislative, regulatory, or administrative provisions. Council Directive 2001/42, The Strategic Environmental Assessment Directive, art. 2, 2001 O.J. (L 197) (EC).
159. Id. at art. 3.
160. Id. at art. 6.
161. Id. at art. 8.
162. Id. at art. 10.
163. Note added in proof: this review was completed before the UK had passed its new Marine Acts: The Marine and Coastal Access Bill received Royal Assent on 12 November 2009 and its text can be found here: http://www.opsi.gov.uk/acts/acts2009/pdf/ukpga_20090023_en_pdf. The Act covers England and Wales and has implications for the conservation of cetaceans including the development of marine conservation zones. How useful the Act will prove to be in the context of cetacean conservation remains to be seen. At the time of writing, similar legislation for Scotland is progressing through the Scottish parliament.
164. The Bern Convention, supra note 60, at apps. II, III.
165. Notably, id. §§ 9-12.
166. "Take" here means "capture" rather than the legal definition of "take" as outlined in the U.S. Marine Mammal Protection Act.
167. The Bern Convention, supra note 60, § 10, part 3(c).
168. M.P. SIMMONDS, CHASING DOLPHINS! (2000).WDCS Report.
169. Note added in proof: The Marine and Coastal Access Act 2009 allows the creation of Marine Conservation Zones and these should form a network. (This new development is not included in this review.)
170. Wildlife and Countryside Act, 1981, ch. 69, § 36(1) (Eng.).
171. Skomer Island and Lundy Island.
172. DEP'T OF ENV'T, TRANSP., & REGIONS (DETR), SITES OF SPECIAL SCIENTIFIC INTEREST: BETTER PROTECTION AND MANAGEMENT, A CONSULTATION DOCUMENT FOR ENGLAND AND WALES (1998).
173. The Countryside and Rights of Way Act, 2004, sched. 12(5) (Eng.).
174. Although, a case was brought before the courts in Scotland under the Habitats Directive regulations in 2004 (see Section 2.2.2.1).
175. To date, no non-police "wildlife inspectors" have been designated by the Secretary of State with respect to the marine environment. Wildlife and Countryside Act, supra note 175, at ch. 69, § 36, sched. 12(8).
176. SIMMONDS, supra note 173.
177. The Countryside and Rights of Way Act, supra note 178, at sched. 12(8).
178. Nature Conservation (Scotland) Act, 2004, sched. 6(8)(5).
179. Id. at sched. 6(8)(6).
180. The Oxford English dictionary defines "disturbance'"as 1. interrupt the sleep, relaxation or privacy of. 2. interfere with the normal arrangement or functioning of. 3. make anxious. This could be interpreted as actions that cause a change in the normal behaviour of cetaceans and/or interrupts resting behaviour would be causing disturbance. Activities that increase "stress" could theoretically also be disturbing using this definition. "Harassment" is defined as 1. torment by subjecting them to constant interference or bullying. 2. make repeated small-scale attacks on (an enemy) in order to wear down resistance. As a definition, "harassment" would be more difficult to utilize in a legal/prosecutorial setting. OXFORD ENGLISH DICTIONARY (2d ed. 2009).
181. Wildlife and Countryside Act, supra note 175, at ch. 69, § 10(3)(c).
182. Nature Conservation (Scotland) Act, 2004, supra note 183, at sched. 6(9)(b).
183. SNH is a "Quasi-Autonomous Governmental Organization (QUANGO) and is the competent authority for nature conservation in Scotland." Id. § 52.
184. Id. § 51
185. Id. § 51(2)(a)-(c).
186. Id. § 51(5).
187. Id. § 51(6)(a) & (b).
188. C. Kelly et al., Management of marine wildlife disturbance, 47 OCEAN & COASTAL MGMT. 1, 1-19 (2004).
189. Harassing/disturbing vehicles included motorboats, powerboats, and jetskis.
190. Id. at 10.
191. The coastguard is not the appropriate authority as wildlife law enforcement is carried out by police wildlife liaison officers.
192. The RSPCA is a non-governmental organization and does not have the authority to enforce and prosecute wildlife crime cases. It is interesting to note that although the RSPCA was perceived to be a main authority to report disturbance/harassment cases to, author C. Kelly noted that the RSPCA had no records of anyone every reporting an incident of marine wildlife harassment to them.
193. Kelly et al., supra note 193, at 10.
194. See, e.g., V.M. Janik & P.M. Thompson, Diving Responses of Bottlenose Dolphins to Boat Traffic in the Moray Firth, N.E. Scotland. 12 MARINE MAMMAL SCI. 597, 597-602 (1996).
195. H. Arnold, The Dolphin Space Programme-The Development of an Accreditation Scheme for Dolphin Watching Boats in the Moray Firth (1997) (a report for Scottish Wildlife Trust and Scottish Natural Heritage, Inverness).
196. G.D. Hastie et al., Bottlenose Dolphins Increase Breathing Synchrony in Response to Boat Traffic. 19 MARINE MAMMAL SCI. 74, 74-84 (2003).
197. See Arnold, supra note 205.
198. M. Simmonds et al., The Management of Whale (and Dolphin) Watching in the UK (2004) (paper presented to the Sci. Comm. at the 56th Meeting of the Int'l Whaling Comm'n June 29, 2004-July 10 2004).
199. E.C.M. Parsons & A. Woods-Ballard, Acceptance of Voluntary Whale-Watching Codes of Conduct in West Scotland: The Effectiveness of Governmental Versus Industry-Led Guidelines, 6 CURRENT ISSUES IN TOURISM 172, 172-182 (2003).
200. Kelly et al., supra note 193, at 10.
201. B. Garrod & D.A. Fennel, An Analysis of Whale-Watching Codes of Conduct, 3 ANNALS OF TOURISM RES. 334, 334-352 (2003).
202. See, e.g., C. Scarpaci et al., Compliance with Regulations by "Swim-with-Dolphins" Operations in Port Phillip Bay, Victoria, Australia, 31 ENVT'L MGMT. 342, 342-347 (2003).
203. Case C-6/04, Opinion of Advocate Gen. Kokott delivered on June 9, 2005, Comm'n of the Eur. Comms.
204. v. U.K. and N. Ir., Failure of a Member State to fulfill obligations-Directive 92/43/EEC-Conservation of natural habitats-Wild fauna and flora, 2005 E.C.J. CELEX LEXIS 553.
205. Habitats Directive, supra note 101, art. 12, 1.
206. Commission Regulation 1843/2007, The Conservation (Natural Habitats, etc.) (Amendment) 12.
207. Commission Regulation 1754/2001, The Offshore Petroleum Activities (Conservation of Habitats) Regulations § 3.
208. The scientific advisory body to the UK government for UK wildlife issues.
209. Joint Nature Conservation Comm'n, Seismic Survey, http://www.jncc.gov.uk/page-1534#1785#1785 (last visited November 13, 2009).
210. DEPT. TRADE & IND., STRATEGIC ENVIRONMENTAL ASSESSMENT OF PARTS OF THE CENTRAL AND SOUTHERN NORTH SEA SEA 156 (2002), available at http://www.offshore-sea.org.uk/consultations/ SEA 3/SEA3 Assessment Document Rev1 W.pdf.
211. E.C.M. Parsons et al., A critique of the UK's JNCC seismic survey guidelines for minimising acoustic disturbance to marine mammals: Best practise? 58 MARINE POLLUT. BULL., 643-651.
212. UK Biodiversity Group, Maritime species and habitats, in 5 TRANCHE 2 ACTION PLANS 1, 23 (1999), available at http://www.ukbap.org.uk/UKPlans.aspx?ID=337 [hereinafter Baleen whale action plan].
213. UK Biodiversity Group, Maritime species and habitats, in 5 TRANCHE 2 ACTION PLANS 1, 31 (1999), available at http://www.ukbap.org.uk/UKPlans.aspx?ID=337 [hereinafter Toothed whale action plan].
214. UK Biodiversity Group, Maritime species and habitats, in 5 TRANCHE 2 ACTION PLANS 1, 27 (1999), available at http://www.ukbap.org.uk/UKPlans.aspx?ID=337 [hereinafter Small dolphin action plan].
215. UK Biodiversity Group, Maritime species and habitats, in 5 TRANCHE 2 ACTION PLANS 1, 21 (1999), available at http://www.ukbap.org.uk/UKPlans.aspx?ID=337 [hereinafter Harbour porpoise action plan].
216. For baleen whales, "long-term" is stated as being "over the next 20 years," a period which, since the inception of these action plans, is nearly half over.
217. N.J.C. Tregenza et al., Harbour porpoise Phocoena phocoena L. Bycatch in Set Gill Mets in the Celtic Sea, 54 ICES J. OF MARINE SCI. 896, 896-904 (1997).
218. N.J.C. Tregenza et al., Common dolphin Delphinus delphis L., bycatch in bottom set gill nets in the Celtic Sea, 47 REP. OF INT'L WHALING COMM'N 835, 835-839 (1997).
219. Harbour porpoise action plan, supra note 228 (noting the need to "[c]ontinue to introduce agreed codes of conduct to reduce disturbance from acoustic sources and physical pressures").
220. See, e.g., Small dolphin action plan, supra note 227
221. Toothed whale action plan, supra note 226.
222. Specifically the Countryside Council for Wales (CCW), English Nature (EN), Scottish Natural Heritage (SNH), the Department for Environment, Transport and Regions (DETR-now the Department for Food, Environment and Rural Affairs: DEFRA), Department for Culture, Media and Sport (DCMS), and the Environment and Heritage Service (EHS-an agency within the Department of the Environment for Northern Ireland [DoE NI]).
223. For example, Scottish Natural Heritage had given grant aid to fund the production and active distribution of several codes of conduct prior to the 2001 deadline.
224. CCW, DETR, EHS, EN, JNCC, SNH and the Natural Environment Research Council (NERC).
225. E.C.M. Parsons & A. Woods-Ballard, Acceptance of Voluntary Whalewatching Codes of Conduct in West Scotland: The Effectiveness of Governmental Versus Industry-Led Guidelines, 6 CURRENT ISSUES IN TOURISM 172, 172-182 (2003).
226. DETR (now DEFRA), DoE(NI), National Assembly of Wales (NAW), and the Scottish Executive (SE).
227. See, e.g., Small dolphin action plan, supra note 227 ("Commission acoustic and video research on behavioural aspects of cetacean by catch to better understand ways to mitigate conflicts from particular fisheries.").
228. See, e.g., Toothed whale action plan, supra note 226 (recommending future research and monitoring to: "Support research into population structure and habitat use to identify waters which may be particularly suitable for toothed whales and which may qualify for further protection. (ACTION: CCW, EHS, DETR, JNCC, SE.").
229. See, e.g., Baleen whale action plan and Toothed whale action plan, supra notes 225-226 (recommending futureresearchandmonitoringto:"Supportappropriateresearchintoidentifyingmarinelivingresources utilised by [toothed and baleen] whales and the environmental changes related to fishing. (ACTION: DANI, JNCC, MAFF, SE). Grouped plans for toothed and baleen whales.").
230. See, e.g., Toothed whale action plan, supra note 226 (recommending future research and monitoring to "[s]upport long-term monitoring of population abundance and distribution via dedicated surveys and platforms of opportunity (ACTION: CCW, DETR, EHS, JNCC, MAFF, SNH)".
231. Baleen whale action plan, supra note 225 (recommending future research and monitoring to "[s]upport long-term monitoring of population abundance and distribution to assess recovery from whaling. Consideration is needed of previously unused data on cetacean distributions such as Hydrographic Office surveys (ACTION: DETR, EHS, JNCC, MAFF)".
232. Harbour porpoise action plan, supra note 228 (recommending future research and monitoring to "[e]stablish long-term research on population and conservation needs of all small cetaceans in UK waters, co-ordinated through ASCOBANS (ACTION: DoE, DOE(NI), JNCC)."
233. However, other government bodies are noted actors in addition to DEFRA in the cetacean BAPs for this action (e.g., CCW, DoE(NI), EN, JNCC, SNH, SOAEFD, DANI (Department of Agriculture of Northern Ireland-now called the Department of Agriculture and Rural Development) and the Welsh Office Agriculture Department (WOAD). Hence, they should be either required to add additional funding to such research, or should these bodies be removed from the action point if totally superfluous.
234. These schemes are run by the Institute of Zoology (for England and Wales) and the Scottish Agricultural College (for Scotland). These programmes have provided extremely valuable information on cetacean contaminant levels and disease exposure in stranded animals as well as determining cause of death.
235. Such as JNCC, DEFRA, NERC, DoE(NI), NAW, SE, and other devolved conservation bodies.
236. One of the long-term aims of the Harbour porpoise action plan, supra note 228.
237. P.F. OLESIUK ET AL., EFFECTS OF SOUNDS GENERATED BY AN ACOUSTIC DETERRENT DEVICE ON THE ABUNDANCE AND DISTRIBUTION OF HARBOR PORPOISE (PHOCOENA PHOCOENA) IN RETREAT PASSAGE, BRITISH COLUMBIA (1996).
238. M. P. Simmonds & S. Dolman, A note on the vulnerability of cetaceans to acoustic disturbance (1999) (paper presented to the Sci. Comm. at the 51st Meeting of the Int'l Whaling Comm'n).
239. J. H. SHRIMPTON & E.C.M. PARSONS, CETACEAN CONSERVATION IN WEST SCOTLAND 85 (2000).
240. Juliet H. Shrimpton, The Impacts of fish-farming on the harbour porpoise (Phocoena phocoena) (2001) (contract report for the henridean whale and dolphin Trust).
241. Gordon & S.P. Northridge, Potential impacts of acoustic deterrent devices on Scottish marine wildlife (2003) (contract report to Scottish Natural Heritage).
242. E.C.M. Parsons et al., The possible impacts of military activity on cetaceans in West Scotland, 14 EUR. RES. ON CETACEANS, 185-190 (2000).
243. For toothed whales DTI and JNCC are the specified actors, but DETR (now DEFRA) and the devolved nature conservation agencies are noted as actioning bodies for baleen whales (CCW, EN, and SNH) but DoE(NI) is excluded.
244. For dolphins DETR (DEFRA), DTI and DoE(NI) (but not any other devolved bodies or the JNCC) are the proscribed actors, but for toothed whales it is DETR, JNCC and the Natural Environment Research Council (NERC), but not the DTI or devolved bodies. Whereas for baleen whales, it is JNCC and NERC again, but also EHS and the CCW (but not SNH, EN or DoE(NI).
245. The Grouped Plans for Small Dolphins, Baleen Whales, and Harbour Porpoise all have similar actions. The Grouped Plan for Toothed Whales, however, does not have an action related to the reduction of pollution.
246. Specific wording from the Small dolphin action plan, supra note 227.
247. If the government were to truly be precautionary with respect to cetacean conservation, and considering that one of the main sources contaminant uptake in cetaceans would be ingesting contaminated prey (see, e.g., E.C.M. Parsons, Trace Metal Pollution in Hong Kong: Implications for the Health of Hong Kong's Indo-Pacific Hump-Backed Dolphins (Sousa chinensis), 214 SCI. TOTAL ENV'T 175 (1998)), it could, for example, ensure that organohalogen levels in likely cetacean prey species are at the same level (or lower) as food contamination guidelines set by the World Health Organisation for humans.
248. V. Grillo et al., A Review of Sewage Pollution in Scotland and its Potential Impacts on Harbour Porpoise Populations (July 2001) (presented to the Int'l Whaling Comm'n Sci. Comm., 53d Meeting of the Int'l Whaling Comm'n, Paper SC/53/E13).
249. See R. Payne, Long Range Communication in Large Whales, Ocean Noise and Synergistic Impacts, in ANNEX K: REPORT OF THE STANDING WORKING GROUP ON ENVIRONMENTAL CONCERNS, INTERNATIONAL WHALING COMMISSION app. 2, 22-23 (2004) (discussing concerns over synergistic effects of anthropogenic stressors and pollution).
250. 2002 Local Biodiversity Action Plan Reporting, available at http://www.ukbap.org.uk/LBAPTracking. aspx (last visited December 18, 2009).
251. UK BIODIVERSITY P'SHIP, HIGHLIGHTS FROM THE 2002 REPORTING ROUND, available at http://www.ukbap. org.uk/Library/2002ReportPamphlet.pdf
252. Regions that are noted by the government to have produced harbour porpoises LBAPs include Ar- gyll and Bute/Swansea/Durham/Cornwall/Pembrokeshire/Southwest region (Avon/Devon/Somerset/ Gloucestershire/Dorset/Wiltshire, etc.)/Ceredigion/Cheshire/Denbighshire/Essex/Suffolk/Norfolk/Northeast Scotland/Anglesey. Small dolphin action plan, supra note 227.
253. The JNCC notes that the Cornwall, Teignbridge, Ceredigion, and Durham have produced LBAPs for dolphins. In addition, Cornwall, Swansea, Durham, and Argyll and Bute have produced LBAPs for toothed and baleen whales.
254. As lead partners for UK cetacean BAPs and statutory advisors on cetacean matters in the UK.
255. K. Hisock et al., Biodiversity Action Plans in the Coastal Environment, in 5(14) MARINE ENVIRONMENTAL MANAGEMENT REVIEW OF 1997 AND FUTURE TRENDS 101-107 (1998).
256. Argyll & Bute Local Biodiversity P'ship, Cetaceans (All Species), in LOCAL BIODIVERSITY ACTION PLAN 4.25-4.26 (M. Curran-Colthart ed., 2001).
257. Argyll and Bute Local Biodiversity P'ship, Bottlenose Dolphins, in LOCAL BIODIVERSITY ACTION PLAN 4.29-4.30 (M. Curran-Colthart ed., 2001).
258. Argyll and Bute Local Biodiversity P'ship, Harbour Porpoise, in LOCAL BIODIVERSITY ACTION PLAN 4.31-4.32 (M. Curran-Colthart ed., 2001).
259. Argyll and Bute Local Biodiversity P'ship, Minke whale, in LOCAL BIODIVERSITY ACTION PLAN 4.33-4.446 (M. Curran-Colthart ed., 2001).
260. Argyll and Bute Local Biodiversity P'ship, Minke whale, supra note 273, at 4.33-4.446.
261. Argyll and Bute Local Biodiversity P'ship, Bottlenose Dolphins, supra note 273, at 4.29-4.30.
262. Primarily the Hebridean Whale and Dolphin Trust, the NADAIR Trust and the Seawatch Foundation.
263. Most funding (50 to 75 per cent of most projects) comes from the Heritage Lottery Fund, with some funding from Argyll and the Islands Enterprise and Scottish Natural Heritage, grants from other NGOs (e.g., WWF-Scotland) and, self-funding by the NGOs themselves. See generally Hebridean Whale and Dolphin Trust, Home, http://www.hwdt.org (last visited November 20, 2009).
264. UK Biodiversity Group, Maritime species and habitats, in 5 TRANCHE 2 ACTION PLANS 1, 37 (1999), available at http://www.ukbap.org.uk/UKPlans.aspx?ID=337 [hereinafter Marine turtle action plan].
265. ENGLISH NATURE (AGENCY) ET AL., ADOPTING AN ECOSYSTEM APPROACH FOR THE IMPROVED STEWARDSHIP OF THE MARITIME ENVIRONMENT: SOME OVERARCHING ISSUES 7 (2003).
266. ERICH HOYT, MARINE PROTECTED AREAS FOR WHALES, DOLPHINS, AND PORPOISES: A WORLD HANDBOOK FOR CETACEAN HABITAT CONSERVATION (2005).
267. Randall S. Wells et al., Bottlenose Dolphins as Marine Ecosystem Sentinels: Developing a Health Monitoring System, 1 ECOHEALTH 246, 246-254 (2004).
268. S.K. Hooker & L.R. Gerber, Marine Reserves as a Tool for Ecosystem-Based Management: The Potential Importance of Megafauna, 54 BIOSCIENCE 27, 27-39 (2004).
269. DEP'T FOR ENV'T,FOOD,&RURAL AFF.(DEFRA),REVIEW OF MARINE NATURE CONSERVATION:WORKING GROUP REPORT TO GOVERNMENT Exec. Summary, 5 (2004), available at http://www.defra.gov.uk/environment/ quality/biodiversity/marine/documents/rmnc-report-0704.pdf
270. Id. 7.
271. It is envisaged that high level conservation objectives would be further refined by operational objectives. The operational objectives would be integrated with the Ecological Quality Objectives (EcoQos) being developed under OSPAR (see Section 1.2.1).
272. Id. 20.
273. Id. 15.
274. Id. 16.
275. DEFRA, IRISH SEA PILOT: MARINE NATURE CONSERVATION AND SUSTAINABLE DEVELOPMENT Exec. Summary (2004).
276. DEFRA, supra note 284, 5.20.
277. Id. 18.
278. Id. 19.
279. Defra, Cetaceans, in CHARTING PROGRESS: AN INTEGRATED ASSESSMENT OF THE STATE OF UK SEAS, 44, 3.127 (2005).
280. Id. at tbl. 6.1.
281. DEFRA, supra note 284, at Key Rec. 12-13.
282. Id. at Key Rec. 11.
283. Marine Spatial Planning-Question Time (Working Paper) (Wildlife and Countryside Link 2005), available at http://library.coastweb.info/632/
284. DEFRA, REVIEW OF MARINE NATURE CONSERVATION (2004).
285. DEFRA, supra note 284, at Key Rec. 7.
286. DEFRA, supra note 284, 32.
287. Id. at Key Rec. 8.
288. E.g., OSPAR's commitment to establish an ecologically coherent network of well-managed MPAs for the OSPAR maritime area by 2010; WSSD's commitment to establish representative networks of MPAs by 2012.
289. DEFRA, supra note 284, 7.31, Key Rec. 9.1.
290. Id. 7.30.
291. DEFRA, supra note 292, 11.
292. Although, as noted before, there are significant flaws and weaknesses in the guidelines for seismic survey mitigation, which must urgently be addressed, see E.C.M. Parsons, et al., supra note 34.
293. Through the Wildlife and Countryside Link and a coalition of leading environmental and heritage NGO's including WDCS, MCS, WWF, RSPB, and The Wildlife Trusts.
294. Id. at 68-69.
295. Id. at 69. Note added at proof stage: on November 12 2009, the UK Marine and Coastal Access Act was passed which, will result in the establishment of a Marine Management Organisation which is intended to be the primary marine planning authority on behalf of the UK Government and its regulator of most activities, including sea fisheries, in those parts of the UK marine area where its functions are exercisable. Exceptions to its licensing powers include "nationally significant" infrastructure projects such as renewable energy projects able to generate over 100 mega watts and the largest port developments.
296. LABOUR PARTY, THE LABOUR PARTY MANIFESTO 2005, BRITAIN FORWARD NOT BACK 101 (2005), available at http://newsimg.bbc.co.uk/1/shared/bsp/hi/pdfs/LAB uk manifesto.pdf