Biodiversity Beyond National Jurisdiction (BBNJ) agreement - implementing Part IV: consultation analysis - summary report

4. Policy proposal

4.1 Scottish Statutory Instrument

Following consideration of all Scottish-relevant responses, whilst also having regard of all other UK responses, this section outlines the approaches that the Scottish Government will be taking forward in the SSI.

4.1.1 In line with the consultation responses, the Scottish Government will follow the approach set out in Option one which would extend the list of licensable marine activities in ABNJ in MSA to include all those categories which are currently licensable only in UK waters, and exempt new activities whose impact would not meet the EIA and the De Minimis Thresholds, or which are not within UK control or jurisdiction.

4.1.2 The Scottish Government will ensure, as far as possible, that implementation of the marine licensing approach will be consistent with the UK Government.

4.1.3 Though some respondents who provided comments regarding the approach for self-determination were referring to the activities regulated by the MMO, the Scottish Government Marine Directorate will keep this under review and implement a similar process where technology allows.

4.1.4 The Scottish Government intends to ensure cable laying and maintenance remains exempt. This is consistent with the majority of consultation responses and maintains current freedoms to lay and maintain cables.

4.1.5 Most respondents agreed that cable removal should be exempt. The Scottish Government intends to introduce an exemption for cable removal activities in ABNJ.

Concerns were raised about the potential environmental impacts of cable removal, however responses also included compelling evidence that the risk to the environment of cable removal is generally low and short-term. There was also suggestion that exempting cable removal will make it the default position and that cases should be reviewed on a cost-benefit basis. However, economic factors could not be used to determine if cable removal activity would require an EIA, as the EIA Threshold is based on whether an activity may cause substantial pollution of or significant and harmful changes to the marine environment’. Given the weight of the responses from the consultation in favour of exempting cable removals, the Scottish Government intends to remain consistent with the joint UK Government and Scottish Government consultation proposal. However, this is subject to review depending on the UK Government’s future position.

4.1.6 Some respondents suggested that additional activities be added to the list of licensable activities. However, of those which were suggested, in respect of aggregate or mineral dredging deep sea mining activity would remain exempt from marine licensing where covered by the Deep Sea Mining Act 1981 and Oil and gas activity and carbon capture storage activities in ABNJ would not fall under the Scottish marine licensing regimes. Exemptions for the deposit of equipment to control, contain or recover oil and deposits of treatment substances are exempted activities in order to respond to incidents and those exemptions are proposed to be extended to cover activity within ABNJ.

4.1.7 The Scottish Government shares the view of the UK Government that measures in the Space Industry Act 2018 (SIA) and Outer Space Act 1986 (OSA) are sufficient to ensure compliance with the BBNJ Part IV requirements, therefore there is no requirement to alter licensing requirements for deposit of substances or objects from space flight activities and that a case-by-case EIA exemption (deferring to other ‘persons’ responsible for EIA) could be applied. No specific changes are required to be made by the Scottish Government on existing legislation for this.

4.1.8 The majority of responses agreed with the proposed approach to Marine Scientific Research, whereby a specific exemption for those undertaking government research will be required. The Scottish Government intends not to currently take forward an exemption for research undertaken by Scottish Government vessels, as little activity is considered to take place in ABNJ, and will keep this aspect under review for consideration of future exemptions.

4.1.9 Some responses suggested additional activities should be considered as licensable marine activities in ABNJ. However, licensable marine activities, as provided in section 21 of the Marine (Scotland) Act 2010, are not sector based or specific to any one particular activity, instead being broad descriptions designed to capture a wide range of activity. The suggested activities (see 3.2.4) would fall within already existing categories of licensable marine activities (2.2.3), and therefore no specific additions are required.

4.1.10 Whilst the consultation did not specifically reference aquaculture, some respondents sought clarification on this activity as the consultation document stated intention to extend all existing exemptions in to ABNJ. The Scottish Government does not consider that it would be appropriate for aquaculture to be exempt in ABNJ. However, a separate SSI covering aquaculture related exemptions in respect of the placement of fish farms is currently being introduced and will limit the range of the exemption to the Scottish marine area. It would therefore be a licensable marine activity to place a fish farm in ABNJ once that SSI is in force. The SSI being introduced for marine licensing BBNJ purposes will however limit the existing exemption for removal activity in respect of fish farming to the Scottish marine area.

4.1.11 Whilst also not included in the consultation or in any particular responses, it has been raised during drop-in sessions that deep sea mining may be double regulated when new licensing requirements, specifically on Scottish companies/persons removing objects/substances from the sea bed in ABNJ, are brought in. It is not considered that any new specific exemption is required as the Deep Sea Mining Act 1981 exempts activity from the need for a marine licence.

4.1.12 Some comments sought clarity on the regulation and enforcement of marine licensing regimes. Regulation of activities, including potential conditions requiring monitoring on any licences granted, will follow the same established process as for licensable activities in the Scottish marine area. The relevant common enforcement powers which a marine enforcement officer has for the purposes of enforcing Part 4 (marine licensing) of the Marine (Scotland) Act 2010 may be exercised in the Scottish marine area and in any other part of Scotland. Marine enforcement officers can therefore exercise the relevant powers in Part 7 in that area in respect of new licensable activities in ABNJ (deposits, scuttling, construction works, removals, dredging and incineration activities) whose connection to Scotland is that they are carried on or controlled by a Scottish person.

4.2 Split in licensing responsibilities

4.2.1 The joint UK and Scottish consultation proposed amendments to the division of responsibilities between UK and Scottish marine licensing regimes, as outlined in page 25-27 of the consultation document and sought views on the Scottish aspect of the proposals. This included amendments to be made to Article 35 of the Marine Licensing (Exempted Activities) (Scottish Inshore Region) Order 2011 No. 204 which currently exempts, from Scottish controls, activity in the high seas that are currently regulated by the Marine Management Organisation under section 66(1) of MCAA and which currently include activities undertaken by a British vessel, aircraft or marine structure even when controlled by a Scottish actor. The proposed changes place all activity where the loading location (of a vessel, vehicle etc.) is in Scotland or the Scottish marine area under the Scottish marine licensing regime. Activity where loading occurs from the UK/UK marine area (excluding Scotland and Scottish marine area) will be licensed by the Marine Management Organisation (including activity carried on or controlled by Scottish persons) and, other than in relation to activities involving loading, Scottish Ministers will license “Scottish person” activities beyond national jurisdiction, while the MMO will license “non-Scottish UK person” activities beyond national jurisdiction. This arrangement is a better reflection of the devolved position and will be achieved by exemptions in the respective UK SI and Scottish SSI, although little such activity occurs in practice.

4.2.2 Consultees raised concerns in respect of the use of ‘Scottish vessel’ or ‘Scottish marine structure’ as a qualifying connection to Scotland for BBNJ purposes. The Scottish Government therefore intends not to use such a connector,

4.2.3 The Scottish Government intends to implement the extension of controls on activities under Scottish control or jurisdiction for BBNJ purposes to include controls on individuals or entities carrying on or exercising control over the activity where the individual or entity is either established in Scotland or ordinarily resident there. Though one respondent opposed this qualifying connection, this is the approach the UK Government intends to take and the Scottish Government intends to mirror this to ensure alignment.

4.3 Alignment with UK Government

4.3.1 The subject matters in 4.1 will be mirroring the approach taken by UK Government, and vice versa. To avoid double regulation of the newly added BBNJ activities whereby licensing of new activities in ABNJ occurs under the two marine licensing regimes, new exemptions will be introduced.

4.3.2 Most responses which focused on the overarching general approach to the marine licensing regime were only relevant to the UK, however, the Scottish Government intends to align its processes, such as the application process, self-determination and the criteria to meet the De Minimis Threshold. Discussions with UK Government are ongoing to ensure that guidance, advice and processes will align closely and avoid confusion for applicants, and avoid any competitive disadvantage between Parties.

4.4 Legal considerations

4.4.1 Scottish Ministers have met the requirements outlined in section 32(5) of the MSA, and the relevant persons and stakeholders have been consulted on for the amendments proposed (as set out in 4.2) to the Marine Licensing (Exempted Activities) (Scottish Inshore Region) Order 2011.

4.4.2 Scottish Ministers have had regard to the matters in section 32(4) of the MSA when introducing the proposed SSI. Regard has been had to the need to protect the environment in developing approaches taken to exempt new activities in ABNJ where impacts would be below the EIA thresholds set by Article 30 of the BBNJ Agreement, and to exempting cable laying, maintenance and removal activities in ABNJ. This is supported by evidence provided in consultation responses. Scottish Ministers have also had regard for protecting the environment when introducing changes to Article 35 of the Marine Licensing (Exempted Activities) (Scottish Inshore Region) Order 2011. Scottish Ministers do not intend to exempt aquaculture in ABNJ as raised during consultation, which also favours environmental protection. Arrangements are underway on a separate SSI introducing changes to aquaculture consenting, which will achieve the policy aim stated above. Protection of human health from activity in ABNJ is not considered to be significantly relevant for the introduction of the SSI and the SSI proposal would allow activity captured by new licence controls to be assessed on a case-by-case basis. Users of the sea who were consulted on did not raise any significant issues.