Marine Licensing (Miscellaneous Amendment) (Scotland) Order 2026: island communities impact assessment

Introduction

The SSI implements changes to Scottish marine licensing regime resulting from 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) Bill, 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. Legislative amendments were included on the face of the UK’s BBNJ Bill, in Part 4. 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 make significant and harmful changes to the marine environment in ABNJ, and which can be defined as having a Scottish nexus. The legislation simply ensures such activities will require an EIA and a marine licence.

This would add an additional step for an organisation undertaking a significant project in the high seas. The type of project and organisation that will be caught under the amended regulations and require a licence will in general be large conglomerates serviced by international organisations. Where the lead body has a Scottish nexus, the regulations will apply.

Given the scope of the SSI, it is considered there will be no differing impacts across islands or between island and the mainland