Baroness Chapman of Darlington
Main Page: Baroness Chapman of Darlington (Labour - Life peer)Biodiversity Beyond National Jurisdiction Bill
Baroness Chapman of Darlington Excerpts
The Minister of State, Foreign, Commonwealth and Development Office (Baroness Chapman of Darlington) (Lab)
My Lords, this set of amendments relates to the operation and enforcement of the BBNJ agreement. This Bill establishes the core domestic legal framework required for the UK to be able to ratify and implement the treaty, while recognising that more detailed compliance and enforcement arrangements will be developed and set out over time—including through future international decisions taken by the BBNJ Conference of the Parties.
I turn to Amendment 1 in the name of the noble Lord, Lord Teverson, which would require UK persons conducting research and development or commercialisation involving marine genetic resources from areas beyond national jurisdiction outside of the UK to abide by the notification and other requirements of the Bill where they have arranged to carry out these activities outside the UK to evade such obligations. We think that this amendment is not necessary because we do not consider that seeking to regulate persons outside of the UK in this way is required to meet our treaty obligations; it may be a nice thing to be able to do, but we do not think that we can do it within the obligations of the treaty.
If the collection and utilisation activity does not fall under UK jurisdiction, the obligations set out in the Bill do not apply. We do not consider that the Bill should be extended to such activity, which would be beyond the treaty agreement. Where other countries have ratified the BBNJ agreement, they will, like the UK, have domestic obligations in this area; we encourage others to ratify where possible. Ultimately, the BBNJ Bill is about ensuring that the UK can fully meet its obligations under the BBNJ agreement in relation to activity that falls under UK jurisdiction.
I turn to Amendment 2 in the name of the noble Lord, Lord Callanan, which would require the Secretary of State to publish a report on any threat that would arise from foreign state actors accessing samples of marine genetic resources from UK repositories. The report would have to be published within six months of the Act being passed and be laid before Parliament. The purposes of the BBNJ Bill are to enable the UK to comply with its obligations under the BBNJ agreement and, therefore, to allow the UK to ratify it. The requirements under this amendment would go beyond the intent of the Bill. Clause 7(1) of the Bill provides that access to repositories of marine genetic resources
“may be made subject to conditions consistent with paragraphs (a) to (d) of Article 14(4) of the”
BBNJ agreement. That article covers factors that may affect access, including preservation of materials, reasonable costs and other reasonable conditions, in line with the objectives of the agreement. Further details on reasonable conditions will be provided in guidance for repositories, including, if necessary, in relation to dealing with potential threats.
Amendment 3 in the name of the noble Baroness, Lady Miller of Chilthorne Domer, would require
“the Secretary of State to create and publish a Strategy outlining the UK’s compliance with Part 5 of the BBNJ Agreement, relating to Capacity-Building and the Transfer of Marine Technology”.
This amendment is not necessary in this Bill because domestic legislation is not required for the UK to meet its obligations under Part V of the BBNJ agreement on capacity-building and the transfer of marine technology; those will be implemented through existing mechanisms, such as academic placements and working-level dialogues. I can confirm to the noble Baroness that a committee on capacity-building and the transfer of marine technology is established under the BBNJ agreement and will be constituted under the direction of the Conference of the Parties; the committee’s role will include monitoring and reviewing these activities.
Amendment 4, tabled by the noble Lord, Lord Fuller, and spoken to by the noble Lord, Lord Callanan, would require the UK Government to have regard to economic and infrastructural consequences of regulations made to implement area-based management tool decisions of the BBNJ Conference of the Parties. It highlights specifically the impacts of such regulations on submarine communication cables and shipping lanes. I can assure the noble Lord, Lord Fuller, that consideration of such consequences and impacts would be required before a decision is made by the Conference of the Parties on an area-based management tool.
Article 19 in Part IV of the BBNJ agreement provides detail on what elements must be included in an area-based management tool proposal. This includes identifying human activities in the area, which would include details on shipping lanes, submarine cables and other infrastructure in the proposal area. Article 21 of the BBNJ agreement also ensures that consultation on the proposal is inclusive, transparent and open to all relevant stakeholders, states and other bodies. Through that consultation process—as well as through our role in the International Maritime Organization, which regulates shipping globally—the UK can directly express views on any economic and infrastructural consequences of the proposed area-based management tool. As a state party, the UK would also have the opportunity to express views on such impacts when the final proposal is being considered by the Conference of the Parties, including whether or not we could support it.
Furthermore, the BBNJ agreement provides that parties to the agreement should strengthen and enhance co-operation with relevant legal instruments, frameworks and bodies. The International Maritime Organization is already well aware of the BBNJ agreement and is increasingly devoting resources to considering how it will engage with the process of the agreement, including through active involvement at the current BBNJ preparatory commission meetings.
On Amendments 5 and 5A from the noble Lord, Lord Fuller, which concern shipping insurance, I can confirm that the BBNJ Bill is concerned with implementing the UK’s obligations under the BBNJ agreement—I will repeat this point frequently throughout our considerations—and is not a vehicle for regulating shipping insurance or insurance markets more generally. In any event, UK ships are already required to carry appropriate insurance under existing domestic and international maritime frameworks. The issue that the amendment seeks to address is better dealt with through established merchant shipping legislation. For those reasons, we do not think that this amendment is necessary for this Bill.
I turn to Amendments 11 and 20 from the noble Lord, Lord Teverson. Amendment 11 proposes a new clause requiring the Secretary of State to conduct, within six months—and to be repeated every Parliament, as well as reported to Parliament—a review on the use of flags of convenience, their impact on biodiversity and the UK’s enforcement against such ships. Amendment 20 is a consequential amendment that defines “flag of convenience”. Again, these amendments are not strictly necessary for the UK to meet its obligations under the BBNJ agreement, but I can see why the noble Lord has tabled them.
The nationality of ships and the duties of flag states are covered, as I am sure the noble Lord knows, by Part VII of UNCLOS. This has a broader application than the BBNJ agreement; the BBNJ Bill is, therefore, not a suitable vehicle for addressing these issues. The UK’s recent International Maritime Organization audit, where it was rated as “excellent”, shows the importance to the UK of meeting its flag state obligations and responsibilities. However, this Bill is about meeting the UK’s obligations under the BBNJ agreement, and these amendments are not required for that specific purpose.
Finally, Amendment 17 from the noble Lord, Lord Callanan, would require the Secretary of State to lay a report before Parliament every two years on the effect and enforcement of the Act in relation to several areas: access to marine genetic resource samples and digital sequence information data; enforcement actions taken; the impact on business, scientific research and the fishing industry; and any regulatory changes made under the Act. As my ministerial colleague said when this same amendment was considered in the other place, the various reporting requirements included in this amendment are disproportionate to the value that they would provide. There is also a risk that they could duplicate existing processes, misalign with the international reporting cycle and increase the burden on entities providing the information for the reports. However, I can confirm that the Government already intend to conduct a post-implementation review within five years of the Act being passed, in order to assess its effectiveness.
The Bill provides for powers to make regulations on enforcement. When any such regulations are made in future, they will be subject to parliamentary scrutiny and consideration at that point. When they are introduced, regulations to establish an enforcement regime under Part 2 will be subject to the draft affirmative procedure, ensuring full parliamentary scrutiny without the need for additional statutory reporting. Subsection 2(d) of the proposed new clause would require the Secretary of State to report on the impact of the Act
“on business, scientific research, and the fishing industry”.
The impact assessment published by the Government indicates that the likely effect of the Bill on business will be minimal; no significant impact on the fishing industry is expected. Fishing is exempt from the notification and other requirements in Part 2 on marine genetic resources.
In relation to Part 3, for activities such as fishing, we expect that measures relating to area-based management tools will be implemented by existing means. It is therefore unlikely that we will need to create new regulations under Clause 11 for this purpose.
Part 4 does not make express provision in relation to fishing activities. It provides for the legislative changes necessary to implement the provisions in Part IV of the BBNJ agreement regarding environmental impact assessments only as they apply to activities within the remit of a domestic marine licensing regime. Engagement with scientific stakeholders suggests that the notification and other requirements in Part 2 of the Bill are unlikely to impose a significant burden. The BBNJ agreement will benefit the scientific community by encouraging information sharing and by supporting scientific and technological development.
For these reasons, we do not think that these amendments are necessary.
Lord Teverson (LD)
My Lords, I thank the Minister for responding. I understand why the Minister and the Government do not want this fairly simple Bill to become a Christmas tree of legislation; most of the amendments are probing amendments and not things on which we are ever going to vote, so I think we all agree on that. However, I am somewhat disappointed that the Government’s view is to make the Bill incredibly narrow in just getting it to the point of ratification, whereas, at Second Reading, there was a general feeling that there be ambition here. I do not sense the ambition. Even if the Government and the Minister do not want to put anything in the Bill—I would probably agree with that—do they think that offshoring is going to be an issue? Have they even thought about it?
Baroness Chapman of Darlington (Lab)
We are cognisant of what the noble Lord is alerting the Committee to; we just do not think that this is the right Bill to consider those things. Additionally, it is difficult to think about how we would legislate here in the UK for activities that happen under another jurisdiction. The noble Lord knows what this Bill is about, but it is important to raise these things; the only way to get a debate is to table an amendment, and the noble Lord has used that tool effectively. It is good to raise this issue and remind us that this agreement is limited: it does not do everything that we might wish to do around the protection of the oceans. We should be open about that; the way in which the noble Lord has tabled and spoken to his amendment achieves that.
Lord Teverson (LD)
As this is Committee, I very much welcome the amendment around the Chinese. It is not just the Chinese, as the noble Lord will know, since a lot of east Asian states have a real issue over this. On the deep-sea fisheries, all the Norwegian, UK and EU agreements are purely within EEZs, which this treaty does not cover. The sad thing is that, as far as I am aware, the UK has only one deep-sea fishing vessel. It operates out of Hull into the Barents Sea. That one vessel shows where we are these days in terms of our fishing ability as a nation.
Baroness Chapman of Darlington (Lab)
My Lords, I thank the noble Lord, Lord Teverson, for his insight. The Committee benefits hugely from his knowledge and experience on this.
This group of amendments relates to environmental protection and the sustainable management of activities in areas beyond national jurisdiction. Let me start by restating that the BBNJ agreement represents a significant step forward in the conservation of the global ocean, enabling stronger protection for the two-thirds of the ocean that lies beyond national jurisdiction. I accept everything that noble Lords said about what more could be done and what they would like the Government to consider. That is not what we are doing today, but that does not mean that the arguments being presented are wrong or even that the Government disagree with them.
The Government’s intention is to make sure that we get this legislation done as quickly as possible in order for us to be able to participate in the Conference of the Parties. We do not yet have a date for that, but it could happen very soon. Some of the issues being raised can be thrashed out in that context, and we think that that is the way to make more progress internationally. That does not mean that the things being raised, particularly on plastics, transshipments and all the rest of it, are not important. It is good that we raise them at every opportunity, but the Bill will play an important role in supporting delivery of the Kunming-Montreal Global Biodiversity Framework, including the global target to effectively conserve and manage at least 30% of the ocean by 2030.
The Bill provides the domestic legal framework needed to implement fully the agreement in the UK. It includes provisions to support the designation and management of area-based management tools, including marine protected areas, establish robust environmental impact assessment requirements, and ensure the fair and equitable sharing of benefits arising from the collection and use of marine genetic resources. Taken together, these measures will strengthen environmental protection, promote the sustainable use of marine biodiversity and reinforce the UK’s leadership in the stewardship of the global ocean. I thought the points made by the right reverend Prelate the Bishop of Norwich about thought leadership were important. I do not know whether I will be able to assure him today about that, but I very much welcome what he had to say.
I also thank the noble Baronesses, Lady Miller and Lady Jones, for Amendment 6, which would require the Secretary of State to publish—and, subsequently, to review and revise—a statement regarding the impact of plastic pollution on marine biodiversity in areas beyond national jurisdiction. We think that a separate plastic pollution statement would duplicate provisions already embedded in the BBNJ agreement, providing limited additional value while increasing legal complexity.
The impacts of plastic pollution are already considered under existing UK processes. For example, under Section 69(1) of the Marine and Coastal Access Act 2009,
“the … licensing authority must have regard to … the need to protect the environment”
when considering marine licence applications. Preventing plastic pollution is an example of such an environmental consideration. In addition, under the IMO, the International Convention for the Prevention of Pollution from Ships is the main international convention covering the prevention of pollution of the marine environment by ships. However, a separate process is under way to agree a global plastic pollution treaty.
Plastic pollution is a transboundary issue, and prevention at source is key. A treaty that addresses the full life cycle of plastics is what we need to address this issue. The UK fully supports the plastic pollution treaty having robust monitoring and assessment procedures, as well as collaboration between future parties to this instrument, to monitor and assess plastic pollution in areas beyond national jurisdiction. Ultimately, the BBNJ agreement focuses on conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction; it is, therefore, not the best place to address plastic pollution across the life cycle.
I turn to Amendment 7 in the name of the noble Lord, Lord Callanan, which would require the Secretary of State to publish and lay before Parliament, within six months of the BBNJ Act being passed, a report on the potential impact of the introduction of marine protected areas in parts of the Indian Ocean that are beyond national jurisdiction on marine biodiversity in the area around the Chagos Archipelago. The purposes of the BBNJ Bill are to enable the UK to comply fully with the legal obligations under the BBNJ agreement that require domestic implementation and, therefore, to allow us to ratify the agreement—noble Lords are going to get really fed up with me repeating that. The requirements under this clause go beyond the intent of the Bill. However, the UK and Mauritius attach great importance to the need to protect marine biodiversity across the Chagos Archipelago. Both have committed to protecting one of the world’s most important marine environments.
The development of future marine protected areas under the BBNJ agreement is a matter for the BBNJ Conference of the Parties. This process has several steps—including initial proposal review, consultation and scientific review—before a proposal goes to the Conference of the Parties for a decision. These proposals will be developed by parties in collaboration and consultation with relevant states and stakeholders, as appropriate. They will be formulated based on the best available science and, where available, on relevant traditional knowledge of indigenous peoples and local communities. Once established, these MPAs will be monitored and periodically reviewed by the BBNJ’s scientific and technical body.
As a party to the Conference of the Parties, the UK will be part of the decision-making process and will be able to agree on measures including marine protected areas. We expect that the first area-based management tools will not be established until the second Conference of the Parties meeting at the very earliest, due to the need first to establish the BBNJ’s scientific and technical body, which will review proposals, and to allow for other important aspects of the process, such as consultation, to take place. For the reasons above, we think that this amendment is not necessary.
Amendments 8 and 9, tabled by the noble Lord, Lord Teverson, and Amendment 10, tabled by the noble Baroness, Lady Miller, are similar in intent. These amendments would require the licensing authority to have due regard to protecting the deep-sea seabed and sustainable fishing and to preventing plastic pollution when determining an application for a marine licence. These amendments are not necessary, because Section 69(1) of the Marine and Coastal Access Act 2009 already requires the licensing authority to have regard to the need to “protect the environment” and
“to prevent interference with legitimate uses of the sea”.
Protecting the deep-sea seabed and preventing plastic pollution are examples of environmental considerations to which licensing authorities would have due regard when considering marine licence applications. Sustainable fishing would be considered a legitimate use of the sea and would therefore be given due regard by licensing authorities when considering an application.
Amendment 15, tabled by the noble Lord, Lord Teverson, would require the Government to develop and regularly update a published strategy setting out how they will conserve and sustainably use marine biodiversity in areas beyond national jurisdiction in relation to fishing activities. Amendment 7A, from the noble Lord, Lord Callanan, would require the Secretary of State to publish, within six months of Royal Assent, a report on the impacts of Chinese industrial fishing on marine biodiversity beyond national jurisdiction and the potential role of marine protected areas in addressing those impacts.
The requirements of these amendments go beyond the intent of the Bill. They are already covered elsewhere, or can be implemented via other appropriate means, and are therefore not necessary. The Fisheries Act 2020 governs UK fishing activities and provides the legal framework for licensing and regulating fishing and fishing-related activities. Preventing, deterring and eliminating illegal, unregulated and unreported fishing is addressed under the UK’s IUU control regulations. These regulations establish a framework for the monitoring, inspection and enforcement of fisheries, and ensure that seafood entering the UK is not linked to IUU fishing.
Furthermore, the UK is a party to the UN Fish Stocks Agreement. Parties to this agreement are required to ensure that the
“conservation and sustainable use of straddling fish stocks and highly migratory fish stocks”,
including in areas beyond national jurisdiction. Parties are required to collaborate to achieve these objectives, including via regional fisheries bodies, and must ensure that fisheries do not seriously threaten wider ecosystems and biodiversity.
The BBNJ agreement creates a stronger ocean governance framework that supports and encourages co-operation with other relevant legal instruments, frameworks and bodies. It provides that parties
“shall endeavour to promote … the objectives of this Agreement when participating in decision-making”
under such organisations. These include regional fisheries management organisations and the Agreement on Port State Measures, which directly target unsustainable fishing practices—including illegal, unreported and unregulated fishing. We are working across departments to ensure a consistent UK position on interactions between the BBNJ agreement and relevant instruments, frameworks and bodies to which the UK is a member.
Amendment 18, from the noble Lord, Lord Callanan, would require the Secretary of State to publish a report, within six months of the BBNJ Act being passed, on the potential impact of the introduction of marine protected areas under the BBNJ agreement on the UK fishing fleet. To require a report to be published six months after the BBNJ Act is passed is disproportionate. As I mentioned previously, we expect that the first area-based management tools will not be published until the second Conference of the Parties meeting at the very earliest.
Timings for the Conference of the Parties meetings are still to be decided but may be every one to two years. The first Conference of the Parties meeting must take place by 16 January 2027. Once it has ratified the BBNJ agreement, the UK, as well as relevant stakeholders, such as the fishing industry and regional fisheries management organisations, will have the opportunity to consider any impacts of a potential BBNJ marine protected area on fishing activities before any decision is made by the Conference of the Parties. Any impacts on the UK fishing fleet would be better raised through the process, rather than after a marine protected area has been established. The UK can also express views on such impacts when the final proposal is being considered by the Conference of the Parties, as well as whether we would support it. We will carefully consider any future proposals to understand any potential impacts on the UK fishing industry.
Finally, I turn to Amendment 19 from the noble Baroness, Lady Boycott. In the future, if required, the UK will give effect to decisions made by the future Conference of the Parties. Those decisions will reflect the principles and approaches in Article 7 of the BBNJ agreement. Individual decisions, such as those on marine licence applications, are not within the scope of the environmental principles duty, which applies only to Ministers of the Crown when making policy; that includes proposals for legislation but does not include an administrative decision taken in relation to a particular person or case. In any event, under the Marine and Coastal Access Act 2009, the Marine Management Organisation must not grant a licence to carry out any activity that is contrary to international law; the MMO applies the precautionary principle when determining licence applications. For these reasons, we do not think that this amendment is necessary.
Baroness Jones of Moulsecoomb (GP)
May I ask the Minister something? I am so sorry if she already responded to this; if she did, I did not catch it. We could simply pass this Bill—I understand the urgency here—but we could also add something to it. I do not accept that a lot of the things we have talked about are included anywhere else. Those things are simply put and explicit in the amendments here. I do not understand why the Government would not think about just adding them to the Bill.
Baroness Chapman of Darlington (Lab)
The noble Baroness is right; I did not reply to that point. She will be neither surprised nor pleased to hear that that is not the Government’s intention. We want to get this Bill through in order to get on with being able to participate in the Conference of the Parties. The view of Defra Ministers is, I think, that we ought to consult on or consider any additional measures in the light of other decisions being made. I know that that is not what the noble Baroness wants to hear today—I hope that she does not interpret this as any disinclination from the Government to move forward on the things that I know matter so much to her—but that is not what we want to do with this piece of legislation.
Baroness Miller of Chilthorne Domer (LD)
My Lords, I thank everybody who has spoken and brought their insights and expertise to the debate. I am very glad that it emphasised the issues around overfishing; it will be quite a task for the BBNJ treaty to get anywhere with that, because it is such an issue. The noble Lord, Lord Callanan, mentioned the sheer size of the Chinese fleet.
I thank the Minister for listing the actions that this country is taking on domestic plastic, particularly on its reduction. She will forgive me if I missed it, but I think that there was a question on what is happening now with the global plastics treaty. I take it that there is nothing further to say on that because it is still in discussion; we await some news on that.
On overfishing, we often talk about the fish stocks that we eat, such as tuna or salmon, but one that often comes up when you talk to experts is krill, because it is at the absolute bottom of the food chain. I hope that, if there is a chance to take issues to the next COP, the UK might choose to raise the issue of krill, on which the whole food chain depends.
In the meantime, I thank the Committee for this debate and beg leave to withdraw my amendment.
“Screening and procedure(1) The Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 (S.S.I 2017/115) are amended as follows.(2) In regulation 2 (interpretation)—(a) in paragraph (1), after the definition of “application website” insert—““area beyond national jurisdiction” has the meaning given by Article 1(2) of the Biodiversity Beyond National Jurisdiction Agreement; “BBNJ works” means the carrying out of a regulated activity that engages the United Kingdom’s obligations under Part 4 of the Biodiversity Beyond National Jurisdiction Agreement (environmental impact assessments) in respect of an activity in an area beyond national jurisdiction;“the Biodiversity Beyond National Jurisdiction Agreement” means 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;”;(b) in paragraph (1), in the definition of “EIA project”—(i) in the words before paragraph (a) omit “either”;(ii) omit the “or” at the end of paragraph (a), and(iii) at the end of paragraph (b) insert “; or(c) BBNJ works where there are reasonable grounds for believing that the works may cause—(i) substantial pollution, or(ii) significant and harmful changes to,the marine environment;”;(c) in paragraph (1), in the definition of “environmental information”—(i) omit the “and” at the end of paragraph (c);(ii) at the end of paragraph (d) insert “; and(e) in relation to BBNJ works that are an EIA project, any other matter necessary to give effect to Article 31(1)(b) and (c) of the Biodiversity Beyond National Jurisdiction Agreement;”;(d) in paragraph (1), in the definition of “regulated activity”, at the end insert “(see also paragraph (1B))”;(e) after paragraph (1) insert—“(1A) Terms used in paragraph (c)(i) and (ii) of the definition of “EIA project” have the same meaning that they have in the Biodiversity Beyond National Jurisdiction Agreement (see in particular Article 30(1)(b)).(1B) Where the requirement for a marine licence, or variation of a marine licence, under Part 4 of the 2010 Act for works in an area beyond national jurisdiction depends on the application of these Regulations (including the doing or not doing of anything under these Regulations), these Regulations have effect as if such a licence or variation were required unless and until the application of these Regulations produces a different result.”(3) In regulation 8 (exemptions)—(a) in paragraph (4), in the words before sub-paragraph (a), after “apply” insert “in respect of schedule 1 works or schedule 2 works”;(b) after paragraph (4) insert—“(4A) The Scottish Ministers may direct that these Regulations do not require an environmental impact assessment to be carried out in relation to BBNJ works if they are satisfied that an equivalent assessment has been carried out, is being carried out or will be carried out in relation to the works.(4B) The Scottish Ministers may not grant a regulatory approval for BBNJ works in respect of which a direction under paragraph (4A) has been given unless they have determined that to do so would be compatible with the United Kingdom’s obligations under Part 4 of the Biodiversity Beyond National Jurisdiction Agreement.(4C) For the purposes of paragraph (4A), an assessment is an equivalent assessment if it is sufficient to meet the requirements of Part 4 of the Biodiversity Beyond National Jurisdiction Agreement.” (4) In regulation 9 (general provisions relating to screening)—(a) in paragraph (1), in the words before sub-paragraph (a), after “works” insert “or BBNJ works”;(b) omit the “and” at the end of sub-paragraph (a)(ii);(c) at the end of sub-paragraph (b) insert “; and(c) in the case of BBNJ works, have regard to any other matter necessary to give effect to Article 30(1)(b) of the Biodiversity Beyond National Jurisdiction Agreement.”;(d) after paragraph (2) insert—“(2A) Where the Scottish Ministers adopt a screening opinion in relation to BBNJ works to the effect that the works are not an EIA project, the screening opinion must also contain provision stating whether the Scottish Ministers consider that—(a) the works may have more than a minor or transitory effect on the marine environment, or(b) the effects of the works are unknown or poorly understood.(2B) Terms used in paragraph (2A)(a) and (b) have the same meaning that they have in the Biodiversity Beyond National Jurisdiction Agreement (see in particular Article 30(1)).”(5) In regulation 12 (application without prior screening)—(a) in paragraph (1)(a), for “or an application to carry out schedule 2 works” substitute “schedule 2 works or BBNJ works”;(b) for paragraph (2) substitute—“(2) Where it appears to the Scottish Ministers that the application relates to proposed schedule 1 works or schedule 2 works, the Scottish Ministers must adopt a screening opinion in relation to the proposed works.”(c) after paragraph (2) insert—“(2A) Where it appears to the Scottish Ministers that the application relates to proposed BBNJ works, the Scottish Ministers must adopt a screening opinion in any case where the Scottish Ministers consider that—(a) the proposed works may have more than a minor or transitory effect on the marine environment, or(b) the effects of the proposed works are unknown or poorly understood.(2B) Where the Scottish Ministers decide that paragraph (2A) does not apply in respect of proposed BBNJ works, they must give the applicant a notice stating that the proposed works do not require an environmental impact assessment.(2C) Terms used in paragraph (2A)(a) and (b) have the same meaning that they have in the Biodiversity Beyond National Jurisdiction Agreement (see in particular Article 30(1)).”(d) in paragraph (3), after “works” insert “or BBNJ works”.(6) In regulation 13 (EIA application made without an EIA report), in paragraph (3)(b), after “12(2)” insert or “12(2A)”.(7) In Schedule 4 (information for inclusion in environmental impact assessment reports)—(a) after paragraph 9 insert—“(9A) In relation to BBNJ works, any other information that is necessary to enable the Scottish Ministers to give effect to Article 31(1)(c) of the Biodiversity Beyond National Jurisdiction Agreement.”;(b) in paragraph 10, for “9” substitute “9A”.”Member's explanatory statement
This new clause would make changes to Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 that are necessary for the purpose of implementing the United Kingdom’s obligations under Part 4 the Biodiversity Beyond National Jurisdiction Agreement.
Baroness Chapman of Darlington (Lab)
My Lords, this set of amendments relates to the scope and exercise of regulatory powers under the Bill, including the making of regulations. Government Amendments 12, 13 and 14 tabled in my name relate to Clause 18, which was originally included in the Bill to give Scottish Ministers the power to amend the Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 for BBNJ purposes. Following work with officials from the Scottish Government and given the timeline for ratification, we would prefer to make the necessary changes directly in the Bill.
These changes will help ensure that the UK meets its obligations under the BBNJ agreement in relation to Scottish marine licensable activities in areas beyond national jurisdiction. The UK Government will be amending their EIA regulations with Clause 15 and officials from the Scottish Government have worked closely with UK counterparts to draft corresponding provisions. Accordingly, the amendments also limit the Clause 18 power to implementing only Article 38 standards or guidelines, reflecting that a wider power is no longer required as other changes will be made directly through the Bill. We continue to work with the Scottish Government to secure the legislative consent Motion for this Bill, which we would expect to be passed prior to the final amending stage in the House. I beg to move.
Baroness Coffey (Con)
My Lords, I have amendments in this group that are pretty straightforward. In essence, it is somewhat frustrating to see that further regulations or commencements need to be made. Candidly, these would have to be done before ratification anyway, so why do we not just get on with it? We have been waiting a long time for this Bill. The clock is ticking and these amendments could be made, hopefully by Report, so that we do not have to keep revisiting this situation.
Lord Callanan (Con)
I can also be brief because this side of the Committee has no concerns about the Government’s amendments. I thank the Minister for introducing this group.
My single amendment in this group would require the Secretary of State to publish a report, within three years of the Act coming into effect, on the exercise of powers granted under this legislation. As I said in the first group, when we are granting wide powers to Ministers, it is important to have transparency and accountability. This is a simple and measured amendment that simply asks for a report after three years, when enough time has passed to see the treaty operating properly. I hope the Minister will either accept it or commit the Government to publishing the same details in due course.
Finally, I turn to the amendments proposed by my noble friend Lady Coffey. These are eminently sensible and seek to remove the need for further regulations. I hope the Government will look at them favourably and I look forward to the Minister’s response.
Baroness Chapman of Darlington (Lab)
My Lords, Amendment 16, tabled by the noble Lord, Lord Callanan, would require the Secretary of State to report to Parliament on the exercise of powers conferred on them by the Bill. A report would be required within three years after the Act has passed. As my ministerial colleague said when this same amendment was considered in the other place, the amendment is not necessary as any regulations created under the powers in the Bill would already be subject to parliamentary scrutiny. There will also be a post-implementation review conducted five years after the Act is passed.
As we currently do not know when or if the powers in the Bill will be used, this approach of a post-implementation review after five years provides the necessary flexibility to review implementation of what is by then the Act at a more appropriate point. The proposed three years in this amendment may well be slightly premature. We are not expecting the powers conferred by the Act to be used to create many new regulations, especially not in the first few years. If the Secretary of State exercises the powers conferred on them by the Act to make regulations, these regulations would already be subject to scrutiny in Parliament through either the affirmative or negative procedure.
In response to Amendments 21, 22 and 23, tabled by the noble Baroness, Lady Coffey, I get the “hurry up” message, but these amendments would remove the power for the Secretary of State to commence the operative provisions of the Bill at a later date or dates, so that all provisions of the Bill would come into force immediately on Royal Assent. I am afraid to disappoint the noble Baroness, but the Government cannot support these amendments. The current position allows the Secretary of State to ensure that the obligations imposed by the BBNJ Bill come into force only when the BBNJ agreement obligations become binding on the UK as a matter of international law, 30 days after the UK has ratified the BBNJ agreement.
The UK will ratify the BBNJ agreement only once all relevant legislation has been passed. This includes secondary legislation passed under powers conferred by the BBNJ Bill. The suggested amendments would not speed up the UK ratification of the agreement. Instead, they would just mean that domestic legislative requirements are imposed before the corresponding international obligations become binding on the UK. This would create disparity between the international and domestic regimes, leading to legal uncertainty. However, I take her amendments as a mark of encouragement and we are grateful to the noble Baroness for that.
Commencement regulation-making powers are standard provisions in Bills, as the noble Baroness knows, giving effect to the long-standing convention that there should be a two-month interval before the commencement of operative provisions of any Act, to give those affected by the new legislation time to acclimatise and adapt. In short, these powers ensure a smooth and legally robust transition from Royal Assent to the point at which the BBNJ agreement obligations bind the UK, which is why the Government are resisting these amendments today.
Baroness Coffey (Con)
I understand what the Minister is saying: that sometimes, not everything can come into effect. However, it can be written into the Bill that it comes into effect two months later. We do not have to go through the various bureaucratic processes—never mind PBL but JCSI and all the other elements—which just take time, as she is finding out. I am surprised to hear that it will not affect our delaying of a ratification date of the treaty overall. I have heard what the Minister said but just encourage her to make progress before Report.
Baroness Chapman of Darlington (Lab)
I will consider it further. We are unlikely to change our position, but I am grateful to the noble Baroness for her constant support for getting this done. That is very much the spirit in which the Government intend to proceed as well.
Member's explanatory statement
This amendment is consequential on my amendment inserting a new clause after clause 17, which would mean that the power conferred on Scottish Ministers by clause 18 can be limited to implementing Article 38 standards or guidelines (as with the power conferred on the Secretary of State by clause 16(1)).