Scapa Flow Historic Marine Protected Area - designation proposal: final business and regulatory impact assessment – 18 July 2025

Section 1: Background, aims and options

Background to policy issue

Historic Scotland’s strategy for the protection, management and promotion of marine heritage 2012-15 (‘the Marine Strategy’) established an objective of delivering a well-managed group of Historic MPAs, designated under the Marine (Scotland) Act 2010.

As part of work to deliver this objective, Historic Scotland committed to considering a small number of currently undesignated sites for protection on the basis of ‘national importance’. This work has been continued by Historic Environment Scotland (HES), since its establishment on 1 October 2015, as the lead public body for the historic environment, and advisor to Scottish Government on Historic MPAs. This BRIA assesses the impact of the proposed designation of the Scapa Flow MPA, Orkney.

Scapa Flow is one of Scotland’s most iconic marine historic sites, having played a very important role as a naval base during the two world wars of the 20th century. Scapa Flow was the scene of many important events in the naval history of the Atlantic, including the internment and scuttling of the German High Seas Fleet at the end of the First World War. The wrecks of the High Seas Fleet were the subject of a major programme of industrial-scale salvage between the First and Second World Wars, and which continued until around 1979. During the 1980s, these wrecks became increasingly popular dive tourism attractions. There was also growing recognition of the importance the UK’s underwater heritage. Following concern during the 1990s regarding recovery of artefacts from the wrecks of Scapa Flow without recording or conservation, Historic Scotland began to investigate options for statutory protection of the wrecks. In May 2001, acting directly on behalf of ‘the Scottish Ministers’, Historic Scotland took the decision to designate seven wrecks of the German High Seas Fleet, scuttled in Scapa Flow in June 1919, as nationally important scheduled monuments under the Ancient Monuments and Archaeological Areas Act 1979 (‘the 1979 Act’)^[2] (this process is called ‘scheduling’.)

In 2012, Historic Scotland indicated its intention to review and replace protection for these wrecks with Historic MPA status (as had already happened with other historic wrecks in Scotland, previously designated under the Protection of Wrecks Act 1973) and to consider protection for any other marine historic assets connected with the wartime history of Scapa Flow. This work by Historic Scotland, and now HES, forms part of a programme of work to help protect and, where appropriate, enhance our most important marine heritage assets in such a way that they can be valued, understood, and enjoyed.

Purpose/aim of action and desired effect

The Marine (Scotland) Act 2010 includes powers to conserve Scotland’s outstanding marine natural and cultural heritage through a single system of Marine Protected Areas (MPAs), with Historic MPAs used to protect ‘marine historic assets’ of national importance.

By delivering its objective and aligning marine heritage protection within the Scottish Government’s overall approach to the management of the marine environment, HES will be helping to support the Scottish Government’s vision for a ‘clean, healthy, safe, productive and biologically diverse marine and coastal environment that meets the long term needs of people and nature’, including the development of a network of MPAs in the seas around Scotland. In so doing, HES is also contributing to the Scottish Government’s National Performance Framework’s Environment National Outcome:

• We value, and enjoy, protect and enhance our built and natural environment. and protect it and enhance it for future generations.

The step proposed is in line with the UK Marine Policy Statement^[3] and the Historic Environment Policy for Scotland^[4]. It also helps to deliver international obligations under the European Convention on the Protection of the Archaeological Heritage – more commonly known as the ‘Valetta Convention’ – which requires that the historic environment, on land and under water, is protected.

Long List of Options

A number of potential options were considered by HES as part of the long list analysis and extensive engagement exercise they undertook prior to the Scottish Government’s 2019 consultation. They are presented here for completeness, but, based on feedback, were narrowed down to only two being considered as viable options and therefore more fully assessed as part of this BRIA and the public consultation. Brief consideration was also given to World Heritage Site status, although no-one has ever proposed this and the processes involved and large costs even to get to the nomination stage, rule it out as a realistic option at the current time:

(i) Do nothing (Option 1)

This is the baseline scenario. The existing status of the seven wrecks of the German High Seas Fleet as scheduled monuments under the 1979 Act would remain. The two scheduled monuments comprise respectively, the remains of seven vessels - four light cruisers (SM9308), and three battleships (SM9298) of the German High Seas Fleet, scuttled in Scapa Flow on 21 June 1919 - together with an area of sea bed around each wreck in which associated debris is scattered. The sum total extent of the scheduled areas around the seven wrecks amounts to 1.32 km^².

Under this option, statutory designation would not be extended for other marine historic assets of national importance identified in the area. The Orkney and Pentland Firth Waters Marine Plan may afford some level of consideration for assets in relation to development management, however this leaves some activities largely unregulated (e.g. recovery of artefacts from the wrecks unless removal falls within the regulatory scope of marine licensing and works licensing).

Scheduling of the German High Seas Fleet wrecks in 2001 was widely welcomed at the time, and generally appears to be supported by stakeholders (86% of 450 respondents to online survey were supportive of the ‘look but don’t touch approach’ of scheduling). However, at consultation on the MPA proposal, a response was received from the agent of the owner of four scheduled wrecks (König, Kronprinz Wilhelm, Markgraf, Karlsruhe) who advised that, in 1981, with the permission of the Ministry of Defence, the owner acquired these wrecks for the purposes of salvage from the Receivers of Scapa Flow Salvage Ltd. This owner also claims ownership of the site of the Bayern turrets. We are advised that no salvage activities were undertaken on the wrecks before Historic Scotland’s scheduling decision in May 2001. The owner’s agent expressed concern that the scheduling decision had not taken due account of this owner’s interests and had adversely impacted the value of these wrecks by restricting opportunities for salvage, and the generation of a return through the sale of the wrecks for this purpose. He also expressed the view that the scheduled status of the wrecks might have implications as regards the potential liabilities of an owner in respect of injury or damage to persons on or in the vicinity of the wrecks or in the event of damage to other craft or to the environment. These views and concerns were also made via the Scottish Government’s 2019 consultation and during further engagement with the owner’s agent in 2024.

Since 2001, surveys have revealed much wider surviving evidence, including many assets which are probably of equivalent importance to what is already protected, but which are currently vulnerable, particularly to unregulated recovery of artefacts. The ‘do nothing option’ means that these assets will lack appropriate recognition, and remain vulnerable to damage and loss for example through vulnerability to unregulated salvage activities or recovery of artefacts without recording, conservation or reporting.

Scheduling recognises nationally important monuments, usually on land, within terrestrial bodies of water and the foreshore but although permitted through legislation, in Scotland this has not generally extended under water in marine contexts. In the marine environment, ‘Historic Marine Protected Areas’ are normally the preferred designation for assets offshore, in order to align with wider approaches to marine management including the marine planning system (HES designation policy and selection guidance^[5].) Since Historic MPAs were introduced, all other previously scheduled historic wrecks under water in Scotland have been transferred to the Historic MPA designation. The use of scheduling in Scapa Flow is therefore an anomaly.

(ii) Rely on locally available mechanisms

This option was considered because a small number of respondents to the online survey indicated that statutory protection was not working and that it might be preferable to rely on local management approaches. Under this option, the two scheduled monument designations for wrecks of the German High Seas Fleet (SM9298; SM9308) would be removed. This would have the effect of de-regulating recovery of artefacts from the German High Seas Fleet wrecks, and removing offences of unauthorised works/damage. It would be likely to make it easier to salvage the remaining wrecks although there would continue to be an obligation to report recovered artefacts to the UK Receiver of Wreck and some consideration of marine heritage through existing marine spatial planning arrangements, harbour authority permits, and marine licensing.

Local management certainly has a key role to play, in particular through the role of Orkney Islands Council, including planning and development, Orkney Museums, and Orkney Marine Services as Statutory Harbour Authority, and through its ownership of three of the wrecks of the German High Seas Fleet. However, discussions with the Local Authority during the options appraisal process indicated that the locally available mechanisms (such as the existing dive permit) are likely to be most effective when used in tandem with national level heritage designations. Removal of the existing statutory protection and reliance on these mechanisms alone would be seen as a retrograde step, placing an excessively heavy responsibility on the local authority, and would reduce the level of protection available to nationally important assets, therefore placing them at risk.

(iii) Extend scheduling to other nationally important assets in Scapa Flow

This option would see an increase in the number of scheduled monuments protecting the wrecks, from two (at present), to up to eight. The increase would extend statutory protection on the same basis as applies for the seven scheduled German wrecks, to nationally important assets that currently lack statutory protection. Respondents to HES’ online survey indicated that stakeholders wanted to see a greater focus on beneficial management of the wrecks. Under this option, a (non-statutory) management plan could be prepared with stakeholders, backed up with a Section 17/management agreement. This could be a useful mechanism to articulate beneficial management of the wrecks of the German High Seas Fleet, with the section 17 agreement providing consent for agreed routine ongoing works.

Although use of scheduling is reasonably well understood locally and proven in Scapa Flow, it isn’t designed with the marine environment in mind and its use in Scapa Flow is already an anomaly compared with management of historic wrecks elsewhere in Scotland. Extending use of scheduling more widely would go against current policy and practice.

(iv) Designate the site as a Historic MPA (Option 2 – the preferred option)

This is the preferred option as described in this document. It involves designation under sections 67 and 73 of the 2010 Act, of an area of seabed amounting to 10.69 km^². Located within the area are the remains of around 80 recorded sites of wrecked vessels, salvage sites, blockships, boom defence structures and debris. By comparison with the existing scheduling designation, this represents an increase in designated area of 9.32 km^².

HES’ review of the information has concluded that the marine historic assets located in this area meet the criterion of national importance required to merit designation. The options appraisal has considered that this option is the most desirable and practicable in the case of Scapa Flow.

Designation would take forward the policy decisions approved by the Scottish Parliament under the Marine (Scotland) Act 2010 and contribute to the objective of establishing a network of MPAs in the seas around Scotland to protect Scotland’s outstanding marine natural and cultural heritage. This form of designation is aligned with the marine planning/licensing system.

Under this option, the designation would be supported by duties on public authorities to take account of preservation objectives and by general offences under section 96 of the Marine (Scotland) Act 2010. A non-statutory management plan and/or supplementary guidance could be developed to support management of the area . Although not considered necessary at the current time, Marine Conservation Orders provide an available tool that could be used to restrict/regulate particular activities that hinder preservation objectives. Additional enforcement powers are available through Marine Enforcement Officers from The Scottish Government’s Marine Directorate.

The Historic MPA is intended to replace use of scheduling for statutory protection of the seven wrecks of the German High Seas Fleet. HES considers that the level of protection afforded to these wrecks through scheduling and designation as a Historic MPA is effectively the same, extending to the remains of the vessels, the contents, and the debris surrounding the wrecks. HES’ consultation invited views on two options: a) removal of scheduled monument status once the Historic MPA comes into force; or b) retaining scheduled monument status for these wrecks for a period of up to 1 year after the Historic MPA comes into force. The map below illustrates how the scheduling boundaries would be overlapped by the Historic MPA boundary.

Through the HES consultation procedure, discussions with stakeholders on Orkney indicated that there was some support for scheduled monument status for these wrecks to remain in place, in addition to the Historic MPA for the transition period.

Sectors/Groups affected

The following sectors have been identified as present (or possibly present in the future) within the proposed Scapa Flow Historic MPA, and/or potentially interacting with the marine historic assets in some way:

• Aquaculture
• Coastal defence and flood protection
• Mineral extraction
• Commercial fisheries
• Energy generation and energy/communications transmission
• Oil and gas
• Marine traffic
• Recreational boating
• The diving industry
• Salvage industry
• Public sector