Explanatory note

This Order amends the Marine (Scotland) Act 2010 (“the 2010 Act”), the Marine Licensing (Register of Licensing Information) (Scotland) Regulations 2011 (“the 2011 Regulations”) and the Marine Licensing (Exempted Activities) (Scottish Inshore Region) Order 2011 (“the 2011 Order”).

This Order implements in Scotland the Environmental Impact Assessment requirements of Part IV of the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction, opened for signature at New York on 20 September 2023.

Article 2 amends Part 4 of the 2010 Act (marine licensing), and in particular section 21 (licensable marine activities) to add new licensable marine activities carried out in the area beyond national jurisdiction by Scottish persons (the “new activities”). Article 2 also adds definitions of “controlling” and “Scottish person” to section 21(2), amends subsection (3C) so that the defined terms it contains apply to the whole of section 21, amends the existing definitions of “dredging” and “incineration” to include the new activities where relevant, and amends sections 27 (determination of applications) and 29 (grant or refusal of licence) to include the new activities where relevant.

Article 3 amends the 2011 Regulations, which prescribe the particulars of the matters required by section 54 of the 2010 Act to be contained in the register of information maintained by the Scottish Ministers. These amendments are consequential upon the amendments made by article 2 and they ensure that the existing provisions of the 2011 Regulations apply to the new activities where relevant.

Article 4 amends the 2011 Order, which specifies licensable marine activities in respect of which a marine licence under Part 4 of the 2010 Act is not required, whether subject to conditions or otherwise. Paragraph (2) amends the meaning of “deposit”, “dredging activity”, “removal activity” and “works activity” set out in article 5 of the 2011 Order to ensure that the new activities are included in the definitions where relevant. Paragraphs (3) and (5) to (8) amend certain existing exemptions to make them unavailable where the activity falls within item 16 (deposit of explosives in an area beyond national jurisdiction). Paragraph (4) substitutes article 13 to make this exemption unavailable outside the Scottish marine area. Paragraph (9) substitutes article 35 to exempt activities outside the Scottish marine area and exempt certain activities in an area beyond national jurisdiction where they also fall within certain marine licensable activities in section 66 of the Marine and Coastal Access Act 2009. Paragraph (10) creates two new exemptions from the need for a marine licence by inserting articles 36 and 37 into the 2011 Order. The insertion of article 36 creates an exemption for the laying, maintaining or removing of submarine cables. The insertion of article 37 creates an exemption where, under the Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017, a screening opinion has been adopted by the Scottish Ministers that BBNJ works are not an EIA project or a notice has been given stating that the proposed works do not require an environmental impact assessment.

A Business Regulatory Impact Assessment has been prepared and placed in the Scottish Parliament Information Centre. Copies can be obtained from the Scottish Government, Marine Directorate - Licensing Operations Team, Area 1A North, Victoria Quay, Edinburgh EH6 6QQ.