Marine Licensing (Miscellaneous Amendment) (Scotland) Order 2026: Fairer Scotland Duty (FSD) assessment not required declaration

The Marine Licensing (Miscellaneous Amendment) (Scotland) Order 2026

Directorate: Marine Directorate

Division: Operational Delivery

Team: Licensing and Operations Team (MD-LOT)

Policy lead responsible for taking the decision: Michael Bland

Rationale for decision

The SSI implements Scottish marine licensing changes required as a result of new legislation for the application of Environmental Impact Assessment (EIA) in areas beyond national jurisdiction (ABNJ). The changes are contained in Part 4 on the face of the UK Government’s Biodiversity Beyond National Jurisdiction (BBNJ) Act, which received royal assent on 12 February 2026.

Whilst it falls to the UK to implement much of the BBNJ Agreement, the Scottish Parliament has legislated (in the Marine (Scotland) Act 2010, s.21(1)) to render certain activities (depositing, scuttling or incineration) that take place anywhere in the sea (including in the high seas and the area beyond national jurisdiction) as licensable marine activities, provided that there is a nexus with Scotland.

The observation and implementation of international obligations is devolved to Scottish Ministers (The Scotland Act 1998 - schedule 5, part I, paragraph 7(2)(a)). Moreover, the marine environment (which is the main focus of the BBNJ Agreement) is also a devolved matter. Provided that the matters being implemented are “in or as regards Scotland”, they fall within Scottish Ministers’ legislative competence.

One of the BBNJ Agreement areas, Environmental Impact Assessment, requires changes to Scottish EIA regulations. These changes included within the UK’s BBNJ Bill, in Part 4. In order to enact these EIA changes, Scottish Ministers must extend marine licensing powers to control relevant activity, in accordance with the devolved position.

Powers for the Scottish Ministers to amend the list of licensable marine activity are extended to capture “BBNJ activity” and powers to provide for consequential provisions have also been included in the UK’s BBNJ Bill.

The SSI will create administrative changes for certain projects that could be significantly polluting or harmful in ABNJ, and which can be defined as having a Scottish nexus. The legislation simply ensures such activities will require an EIA and a licence.

This would simply add an additional step for the organisation in undertaking a significant project in the high seas. Where the lead body has a Scottish nexus, the regulations will apply. Given the type of project and organisation that will be caught under the amended regulations, and that will require a licence, will in general be large in scale and involve established organisations with specialist skills, and the location of the projects, it is not expected extending licencing to ABNJ will have any relevance to socio-economic inequalities.

Furthermore, following the Fairer Scotland Duty Guidance, it is not considered that the amendments constitute a strategic decision and therefore a Fairer Scotland Duty Assessment is not required

Sign off

I confirm that the decision not to carry out a Fairer Scotland assessment has been authorised by:

Name and job title of Deputy Director (or equivalent): Elisabeth Campbell

Date authorisation given: 29 January 2026