Explanatory notes to the Bill, prepared by the Foreign, Commonwealth and Development Office, the Department for Food, Environment and Rural Affairs and the Department for Transport, have been ordered to be published as HL Bill 148—EN.
Baroness Chapman of Darlington has made the following statement under section 19(1)(a) of the Human Rights Act 1998:
In my view the provisions of the Biodiversity Beyond National Jurisdiction Bill are compatible with the Convention rights.
Baroness Chapman of Darlington has made the following statements under section 20(2)(a) and (3) of the Environment Act 2021:
In my view—
(a) the Biodiversity Beyond National Jurisdiction Bill contains provisions which, if enacted, would be environmental law, and
(b) the Bill will not have the effect of reducing the level of environmental protection provided for by any existing environmental law.
A
bill
to
Make provision for and in connection with the implementation by the United Kingdom 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.
B e it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
In this Act, “the 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.
For the purposes of this Act, the following terms have the meanings that they
have in the Agreement (see Article 1)—
“
areas beyond national jurisdiction”, and
“
marine genetic resources”.
This section applies in relation to a project (a “collection project”) in which a
UK craft is used to collect marine genetic resources in an area beyond national
jurisdiction.
The relevant person in relation to the collection project must ensure that no
marine genetic resources are collected for the purposes of the project unless—
the information described in paragraphs (a) to (j) of Article 12(2) of
the Agreement (pre-collection information) has been given to the
Secretary of State, and
subject to
subsection (3)
, a period of at least 7 months has passed,
beginning with the day (or the last day) on which that information
was given to the Secretary of State.
The Secretary of State may, by notice in writing given to the relevant person,
reduce the period mentioned in
subsection (2)
(b)
where the Secretary of State
considers that there is a compelling reason for marine genetic resources to
be collected as part of the project despite less than 7 months having passed
since the information was given to the Secretary of State.
The relevant person must ensure that the information described in paragraphs
(a) to (d) of Article 12(5) of the Agreement (post-collection information) is
given to the Secretary of State—
as soon as it is all available, and
in any case, before the end of the period of 11 months beginning with
the last day on which marine genetic resources are collected in an area
beyond national jurisdiction as part of the project.
In this section—
“
collect”, in relation to marine genetic resources, means collecting or
sampling such resources other than incidentally when carrying out an
activity for another purpose;
“
the relevant person”, in relation to a collection project, is the individual
with principal responsibility for the scientific or technical aspects of
the project so far as it concerns marine genetic resources.
This section applies in relation to a project (a “utilisation project”) involving
the utilisation in the United Kingdom of—
marine genetic resources of areas beyond national jurisdiction, or
digital sequence information on such resources.
The person who controls the utilisation project (“the relevant person”) must
ensure that information is given to the Secretary of State in accordance with
the Schedule.
The relevant person must ensure that samples of any marine genetic resources
the utilisation of which falls within
subsection (1)
(a)
are deposited in a suitable
repository.
The relevant person must ensure that any digital sequence information the
utilisation of which falls within
subsection (1)
(b)
is recorded in a suitable
database.
The relevant person must comply with
subsection (3)
or
(4)
within the period
of 3 years beginning with the day on which the utilisation project begins.
The relevant person must ensure that the deposited samples are, or the
recorded information is, identifiable by reference to any Article 12(3) identifier
relating to the marine genetic resources concerned.
Repositories and databases are “suitable” if they are—
publicly accessible, and
operated, in any part of the world, in accordance with current
international practice.
The Secretary of State may give the information to the Clearing-House
Mechanism established under Article 51 of the Agreement.
But the Secretary of State may not give the information where—
it is protected information within the meaning given by section 1(2)
of the National Security Act 2023, or
in the opinion of the Secretary of State, the Agreement does not require
it to be given (see Article 51(6)).
This section applies in relation to a repository in the United Kingdom in
which samples of marine genetic resources of areas beyond national
jurisdiction are stored.
The person who controls the repository must—
so far as reasonably practicable, ensure that the samples—
can be identified, in accordance with current international
practice, as originating from areas beyond national jurisdiction,
and
in particular, can be identified by reference to any Article 12(3)
identifier relating to the marine genetic resources concerned,
A report under
subsection (2)
(c)
must identify the samples by reference to
any Article 12(3) identifier relating to the marine genetic resources concerned.
This section applies in relation to a UK database in which digital sequence
information (“DSI”) on marine genetic resources of areas beyond national
jurisdiction is stored.
A “UK database” is a database that is—
controlled by a person in the United Kingdom, and
accessible by members of the public.
The person who controls the UK database must—
so far as reasonably practicable, ensure that the DSI—
can be identified, in accordance with current international
practice, as relating to marine genetic resources of areas beyond
national jurisdiction, and
in particular, can be identified by reference to any Article 12(3)
identifier relating to the marine genetic resources concerned,
A report under
subsection (3)
(c)
must identify the DSI by reference to any
Article 12(3) identifier relating to the marine genetic resources concerned.
For the purposes of this section, the person who controls a database is in the
United Kingdom if—
in the case of an individual, the individual is habitually resident in
the United Kingdom, and
in any other case, the person is incorporated or formed under the law
of any part of the United Kingdom.
the period of 2 years beginning with the day on which—
the Agreement enters into force in accordance with Article
68(1), or
if later, the Agreement enters into force for the United Kingdom
in accordance with Article 68(2), and
each subsequent period of 2 years.
before the end of the period of 2 months beginning with the day
immediately after the relevant 2-year period in question, or
by such other time as the Secretary of State may, by directions given
to the person required to give the report, specify for the purposes of
complying with any timetable set by the access and benefit-sharing
committee established under Article 15 of the Agreement.
Directions under subsection (3) (b) may be general or specific.
Nothing in this Part applies in relation to—
the use of a UK craft for fishing—
in accordance with a licence issued under section 15(1) of the
Fisheries Act 2020, or
where such a licence is not required as a result of section 14(2)
of that Act;
anything that is done in accordance with the joint fisheries statement,
or any document or plan issued by the fisheries policy authorities or
the Marine Management Organisation for the purposes of the Fisheries
Act 2020, to give effect to the scientific evidence objective within the
meaning given by section 1(5) of that Act (including the utilisation,
to give effect to that objective, of fish or other living marine resources
known to have been taken in fishing and fishing-related activities in
areas beyond national jurisdiction);
a warship, military aircraft or naval auxiliary, within the meaning of
Article 4 of the Agreement;
anything done in the course of military activities, within the meaning
of Article 10(3) of the Agreement;
anything done in Antarctica;
marine genetic resources of Antarctica (including digital sequence
information on such resources).
In subsection (1) —
“
Antarctica” has the meaning given by section 1 of the Antarctic Act
1994;
“
the fisheries policy authorities” has the meaning given by section 52 of
the Fisheries Act 2020;
“
joint fisheries statement” means any joint fisheries statement published
from time to time under section 2 of that Act.
The Secretary of State may by regulations make provision within
subsection
(2)
for the purposes of implementing the United Kingdom’s obligations under
Part 2 of the Agreement (marine genetic resources, including the fair and
equitable sharing of benefits).
The provision that may be made is provision—
to ensure that the United Kingdom complies with Part 2 of the
Agreement in a way that is consistent with Article 5(2) of the
Agreement (interaction between the Agreement and other instruments
etc) so far as it applies to the United Kingdom in relation to any other
international agreement or arrangement to which the United Kingdom
is a party;
to enable or facilitate the implementation of a decision of the
Conference of the Parties under Article 14(7) of the Agreement (sharing
of monetary benefits), including by imposing requirements—
to disclose information relevant to the calculation of any
payment required by the decision,
to make payments required by the decision, or
to make payments for the purpose of enabling the Secretary
of State or another person to make payments required by the
decision;
making any changes to this Part that are necessary in consequence of
any determination that may be made by the Conference of the Parties
in accordance with Article 51(2) of the Agreement about the operation
of the Clearing-House Mechanism established by Article 51(1) of the
Agreement;
to limit the application of this Part in accordance with Article 51(6) of
the Agreement (protection from disclosure);
to secure that no person is required to comply both with a provision
of or under this Part (“the domestic provision”) and with a
corresponding provision of the law of another State that is a party to
the Agreement;
about the enforcement of requirements imposed by or under this Part.
In
subsection (2)
(e)
, a “corresponding provision” is a provision that has
substantially the same effect as the domestic provision.
Regulations under this section may make provision within
subsection (2)
that
applies in areas beyond national jurisdiction or otherwise outside the United
Kingdom.
Regulations made in reliance on subsection (2) (f) may include provision—
for a civil sanction to be imposed in relation to a failure to comply
with requirements imposed by or under this Part,
for an undertaking given by a person to be enforceable as if it were
a requirement imposed by or under this Part,
about monitoring compliance with requirements imposed by or under
this Part,
about requirements for the making and keeping of records and
documents, or
about requirements to provide information.
Regulations under this section may amend or otherwise modify this Part
(apart from this section) and
section 20
.
The consequential provision that may be made by regulations under this
section in reliance on
section 22
(2)
(b)
includes provision amending or repealing
a provision of an Act of Parliament whenever passed (as well as provision
made under such an Act).
Regulations under this section that include provision—
amending or repealing a provision of an Act of Parliament,
made in reliance on subsection (2) (b) , or
creating a civil sanction or varying the maximum amount of any
monetary penalty,
are subject to the draft affirmative procedure.
Any other regulations under this section are subject to the negative procedure.
The Secretary of State must publish guidance about the requirements imposed
by or under this Part.
The Secretary of State—
must keep the guidance under review,
may from time to time revise the guidance, and
must publish any revised guidance.
When preparing guidance to be published under this section, the Secretary
of State must have regard to the importance of giving effect to the Agreement.
The Secretary of State must lay any guidance (including any revised guidance)
published under this section before Parliament.
This section applies where the Conference of the Parties takes a decision
under—
Article 22(1)(a) of the Agreement (decisions on the establishment of
area-based management tools, including marine protected areas, and
related measures),
Article 22(1)(b) of the Agreement (decisions on measures compatible
with other legal instruments and frameworks, and certain other
matters), or
Article 24(1) of the Agreement (decisions to adopt measures to be
applied on an emergency basis).
The Secretary of State may by regulations make such provision as the Secretary
of State considers appropriate for the purpose of meeting the obligation of
the United Kingdom under Article 25(1) of the Agreement (implementing
duty of states with respect to activities under their jurisdiction or control) as
it applies in relation to the decision.
Regulations under this section may, among other things, make provision—
that applies in areas beyond national jurisdiction or otherwise outside
the United Kingdom;
about enforcement;
for the charging of fees in relation to the carrying out of functions
under the regulations (including enforcement functions);
by reference to other documents as issued or having effect from time
to time.
The provision that may be made in reliance on
subsection (3)
(b)
includes
provision—
creating a civil sanction or a criminal offence in relation to a failure
to comply with requirements imposed by or under the regulations,
for an undertaking given by a person to be enforceable as if it were
a requirement imposed by or under the regulations,
about monitoring compliance with requirements imposed by or under
the regulations,
about requirements for the making and keeping of records and
documents,
about requirements to provide information,
about the detention of a UK craft, and
corresponding or similar to, or applying (with or without modification),
any provision of Part 10 of the Merchant Shipping Act 1995
(enforcement officers and powers) or Part 8 of the Marine and Coastal
Access Act 2009 (enforcement).
Regulations creating a criminal offence may not provide—
for an offence under the regulations to be punishable on summary
conviction with imprisonment;
in relation to Scotland or Northern Ireland—
for an offence under the regulations that is triable only
summarily to be punishable by a fine exceeding level 5 on the
standard scale;
for an offence under the regulations that is triable summarily
or on indictment to be punishable on summary conviction by
a fine exceeding the statutory maximum;
for an offence under the regulations to be punishable on conviction
on indictment with imprisonment for a term exceeding 2 years.
The consequential provision that may be made by regulations under this
section in reliance on
section 22
(2)
(b)
includes provision amending or repealing
a provision of an Act of Parliament whenever passed (as well as provision
made under such an Act).
Subject to subsection (3) , regulations under section 11 that contain provision—
amending or repealing a provision of an Act of Parliament,
creating a civil sanction or varying the maximum amount of any
monetary penalty, or
creating a criminal offence,
are subject to the draft affirmative procedure.
Subsection (3)
applies where the provision within
subsection (1)
of this section
relates to a decision under Article 24(1) of the Agreement.
Where the Secretary of State considers that the regulations need to be made
urgently in order to give effect to the measure to which they relate, the
regulations are subject to the made affirmative procedure.
Any other regulations under section 11 are subject to the negative procedure.
This section applies where the Conference of the Parties takes a decision
under Article 24 of the Agreement (decisions to adopt measures to be applied
on an emergency basis).
The Secretary of State may by directions impose such requirements in respect
of a UK craft as the Secretary of State considers appropriate for the purpose
of meeting the obligation of the United Kingdom under Article 25(1) of the
Agreement (implementing duty of states with respect to activities under their
jurisdiction or control) as it applies in relation to the decision.
A direction under this section must be—
given in writing to the person or persons to whom it applies, or
where it is not reasonably practicable to give it in writing, must be—
read out to that person or those persons, and
confirmed in writing as soon as is reasonably possible.
A direction under this section must be laid before Parliament.
The Secretary of State may vary (by further direction) or revoke a direction
under this section.
A direction under this section (if it has not already been revoked) ceases to
have effect upon the termination of the measure adopted under Article 24 of
the Agreement to which it relates.
A person commits an offence if the person fails, without reasonable excuse,
to comply with a direction given to them under this section.
A person who commits an offence under this section is liable—
on summary conviction—
in England and Wales, to a fine;
in Scotland or Northern Ireland, to a fine not exceeding the
statutory maximum;
on conviction on indictment to imprisonment for a term not exceeding
2 years or a fine (or both).
Proceedings for an offence under this section that is committed outside the
United Kingdom may be taken, and the offence may for all incidental purposes
be treated as having been committed, at any place in the United Kingdom.
In the Marine and Coastal Access Act 2009, Part 4 (marine licensing) is
amended as follows.
In section 66 (licensable marine activities), after subsection (3) (power to add An order under subsection (3) that adds an activity may designate the under Part 3 of the Biodiversity Beyond National Jurisdiction in respect of an activity that takes place in an area beyond Where an order contains provision within
subsection (3A)
, the related In
subsection (3A)
—
“
“
or remove licensable marine activities) insert—
“(3A)
activity as activity added in contemplation of the United Kingdom’s
obligations—
(a)
Agreement (area-based management tools), or
(b)
national jurisdiction, under Part 4 of that Agreement
(environmental impact assessments).
(3B)
provision that may be made in the order in reliance on section 316(1)(b)
(consequential etc provision) includes provision amending primary or
secondary legislation whenever passed or made.
(3C)
area beyond national jurisdiction” has the meaning that it has
in the Biodiversity Beyond National Jurisdiction Agreement
(see Article 1);
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.”
In section 74 (exemptions to requirements for marine licences), after subsection Where an order under this section applies to activity designated under
(4) insert—
“(4A)
section 66
(3A)
, the related provision that may be made in the order
in reliance on section 316(1)(b) (consequential etc provision) includes
provision amending primary or secondary legislation whenever passed
or made.”
In section 81 (submarine cables)—
in the heading omit “on the continental shelf”;
in subsection (1), at the end insert “, subject to subsection (5A)”;
“(5A)
This section does not prevent the application of this Part in
relation to activity designated under section 66 (3A) .”
The Marine Works (Environmental Impact Assessment) Regulations 2007 (S.I.
2007/1518) are amended as follows.
In regulation 2 (interpretation)—
““
area beyond national jurisdiction” has the meaning given by
Article 1(2) of the Biodiversity Beyond National Jurisdiction Agreement;“
BBNJ activity” means a regulated activity—(a)
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, and(b)
for which a marine licence, or a variation of a marine
licence, under Part 4 of the 2009 Act is required;“
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;”;
in paragraph (1), in the definition of “regulated activity”, at the end
insert “(see also
paragraph (1ZA)
)”;
“(1ZA)
Where the requirement for a marine licence, or variation of
a marine licence, under Part 4 of the 2009 Act for an activity 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.”
In regulation 6 (requirement for environmental impact assessment by
determination), for “or 8” substitute “, 8 or 8A”.
“Determination: areas beyond national jurisdiction 8A.
(1)
The appropriate authority must determine that an environmental
impact assessment is required in relation to a BBNJ activity if the authority concludes that there are reasonable grounds for believing that the activity may cause—(a)
substantial pollution of, or
(b)
significant and harmful changes to,
the marine environment.
(2)
In considering whether or not there are such reasonable grounds, the
appropriate authority must have regard to—(a)
the criteria set out in Schedule 1, and
(b)
any other matter necessary to give effect to Article 30(1)(b) of the
Biodiversity Beyond National Jurisdiction Agreement.(3)
Terms used in paragraph (1) (a) and (b) have the same meaning that they
have in the Biodiversity Beyond National Jurisdiction Agreement (see in particular Article 30(1)(b)).(4)
This regulation is subject to regulations 9 and 9A.”
In regulation 10 (exceptions)—
“(1A)
An appropriate authority may determine that an environmental
impact assessment is not required under regulation 8A in relation to a BBNJ activity if it is satisfied that another person has carried out, is carrying out or will carry out an equivalent assessment in relation to the activity.(1B)
For the purposes of paragraph (1A) , an assessment is an
equivalent assessment if it is sufficient to meet the requirements of Part 4 of the Biodiversity Beyond National Jurisdiction Agreement.”;
in paragraph (2), after “(1)” insert “or (1A)”;
in paragraph (3A)—
after “(1)(b)” insert “or (1A)”;
at the end insert “or person”;
in paragraph (4), at the beginning insert “In a case to which paragraph
(1) applies,”;
“(4ZA)
In a case to which paragraph (1A) applies, the regulator must
not grant regulatory approval unless it has determined that to do so would be compatible with the United Kingdom’s obligations under Part 4 of the Biodiversity Beyond National Jurisdiction Agreement.”;
in paragraph (4A)—
in the words before sub-paragraph (a), after “(1)(b)” insert “or,
as the case may be, the other person’s assessment referred to
in
paragraph (1A)
”;
in sub-paragraph (b), after “authority” insert “or person”;
in sub-paragraph (d), after “authority” insert “or person”;
in sub-paragraph (e), after “authority” insert “or person”;
in paragraph (4B), after “authority’s”, in both places, insert “or
person’s”;
in paragraph (4C)(b), after “authority’s decision” insert “or person’s
assessment”;
in paragraph (4E)(a), after “authority’s” insert “or person’s”;
in paragraph (4F)(c), after “authority” insert “or person”;
in paragraph (4F)(d), after “authority” insert “or person”.
In regulation 11 (screening opinions)—
in paragraph (3), for “or 8” insert “, 8 or 8A”;
“(3A)
The regulator must decide that a BBNJ activity may be an
activity in relation to which an environmental impact assessment is required under regulation 8A if the regulator considers that—(a)
the activity may have more than a minor or transitory effect
on the marine environment, or(b)
the effects of the activity are unknown or poorly understood.
(3B)
Where the regulator decides that paragraph (3A) does not apply
in respect of a BBNJ activity, the regulator must give the applicant a notice stating that the activity does not require an environmental impact assessment.(3C)
Terms used in paragraph (3A) (a) and (b) have the same meaning
that they have in the Biodiversity Beyond National Jurisdiction Agreement (see in particular Article 30(1)).”
In regulation 21A (conclusion about environmental impact), in paragraph
(1)—
omit the “and” at the end of sub-paragraph (e);
(g)
in relation to a regulated activity for which an environmental
impact assessment is required under regulation 8A, any other matter necessary to give effect to Article 31(1)(b) and (c) of the Biodiversity Beyond National Jurisdiction Agreement.”
In Schedule 2 (screening opinions), in paragraph 4A (giving a screening
opinion)—
the existing words become sub-paragraph (1);
“(2)
A screening opinion given in relation to a BBNJ activity must
include provision stating—(a)
whether or not the regulator considers that an
environmental impact assessment is required under regulation 8A in relation to the activity, and(b)
in a case where the regulator considers that an
environmental impact assessment is not required under regulation 8A in relation to the activity, whether the regulator considers that—(i)
the activity may have more than a minor or
transitory effect on the marine environment, or(ii)
the effects of the activity are unknown or
poorly understood.(3)
Terms used in sub-paragraph (2) (b) (i) or (ii) have the same
meaning that they have in the Biodiversity Beyond National Jurisdiction Agreement (see in particular Article 30(1)).”
In Schedule 3 (information to be included in an environmental statement)—
“9A
In relation to a BBNJ activity, any other information that is
necessary to enable the appropriate authority to give effect to Article 31(1)(c) of the Biodiversity Beyond National Jurisdiction Agreement.”;
in paragraph 10, for “9” substitute “9A”.
The Secretary of State may by regulations make such provision in relation to
a licensable marine activity as the Secretary of State considers appropriate
for the purpose of implementing any Article 38 standards or guidelines.
In subsection (1) —
“
Article 38 standards or guidelines” means standards or guidelines that
may be adopted by the Conference of the Parties from time to time
as mentioned in Article 38 of the Agreement;
“
licensable marine activity” means an activity within section 66(1) of the
Marine and Coastal Access Act 2009 (as that section has effect from
time to time).
Regulations under this section may, among other things, amend or otherwise
modify Part 4 of the Marine and Coastal Access Act 2009 (marine licensing).
The consequential provision that may be made by regulations under this
section in reliance on
section 22
(2)
(b)
includes provision amending or repealing
a provision of an Act of Parliament whenever passed (as well as provision
made under such an Act).
Regulations under this section that amend or repeal a provision of Act of
Parliament are subject to the draft affirmative procedure.
Any other regulations under this section are subject to the negative procedure.
In the Marine (Scotland) Act 2010 (asp 5), Part 4 (marine licensing) is amended
as follows.
In section 21 (licensable marine activities), after subsection (3) (power to add An order under subsection (3) that adds an activity may designate the under Part 3 of the Biodiversity Beyond National Jurisdiction in respect of an activity that takes place in an area beyond Where an order contains provision within
subsection (3A)
, the related In
subsection (3A)
—
“
“
or remove licensable marine activities) insert—
“(3A)
activity as activity added in contemplation of the United Kingdom’s
obligations—
(a)
Agreement (area-based management tools), or
(b)
national jurisdiction, under Part 4 of that Agreement
(environmental impact assessments).
(3B)
provision that may be made in the order in reliance on section 165(1)(b)
(consequential etc provision) includes provision amending an enactment
(whenever passed or made).
(3C)
area beyond national jurisdiction” has the meaning that it has
in the Biodiversity Beyond National Jurisdiction Agreement
(see Article 1);
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.”
In section 32 (exemptions to requirements for marine licences), after subsection Where an order under this section applies to activity designated under
(4) insert—
“(4A)
section 21(3A), the related provision that may be made in the order
in reliance on section 165(1)(b) (consequential etc provision) includes
provision amending an enactment (whenever passed or made).”
In section 37 (submarine cables)—
in subsection (1), at the end insert “, subject to subsection (5A)”;
“(5A)
This section does not prevent the application of this Part in
relation to activity designated under section 21(3A).”
The Scottish Ministers may by regulations make provision that—
relates to a Scottish licensable marine activity,
the Scottish Ministers consider appropriate for the purpose of
implementing the United Kingdom’s obligations under Part 4 of the
Agreement, including any Article 38 standards or guidelines, in respect
of an activity in an area beyond national jurisdiction, and
would be within the legislative competence of the Scottish Parliament
if it were contained in an Act of that Parliament.
In subsection (1) —
“
Article 38 standards or guidelines” means standards or guidelines that
may be adopted by the Conference of the Parties from time to time
as mentioned in Article 38 of the Agreement;
“
Scottish licensable marine activity” means an activity within section 21
of the Marine (Scotland) Act 2010 (asp 5) (as that section has effect
from time to time).
Where regulations under this section contain provision that is made for the
purpose of implementing the United Kingdom’s obligations under any Article
38 standards or guidelines, that provision may amend or otherwise modify
Part 4 of the Marine (Scotland) Act 2010 (marine licensing).
Regulations under this section may—
confer a function (including a discretion) on any person;
make different provision for different purposes or for different areas;
make consequential, supplementary, incidental, transitional, transitory
or saving provision.
The consequential provision that may be made by regulations in reliance on
subsection (4)
(c)
includes provision amending an enactment within the
meaning given by Schedule 1 to the Interpretation and Legislative Reform
(Scotland) Act 2010 (asp 10) (whenever passed or made).
Regulations under this section that contain provision amending an Act of
Parliament or an Act of the Scottish Parliament (whether alone or with other
provision) are subject to the affirmative procedure (see section 29 of that Act).
Any other regulations under this section are subject to the negative procedure
(see section 28 of that Act).
In the Levelling-up and Regeneration Act 2023, in Part 6 (environmental outcomes reports), section 154 (power to define “relevant consent” and “relevant plan” etc) is amended as follows—
in subsection (9), for “or a relevant offshore area” substitute “, a
relevant offshore area or, where
subsection (10)
applies, an area beyond
national jurisdiction”;
“(10)
This subsection applies where the activity within any of
paragraphs (a) to (e) of subsection (9) is or involves a licensable marine activity within the meaning of—(a)
section 66 of the Marine and Coastal Access Act 2009,
or(b)
section 21 of the Marine (Scotland) Act 2010 (asp 5).
(11)
In this section, “area beyond national jurisdiction” has the
meaning given by Article 1(2) 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.”
In this Act—
“
Article 12(3) identifier” means an identifier generated in relation to
marine genetic resources as described in Article 12(3) of the Agreement
(“BBNJ” standardised batch identifiers);
“
civil sanction” means—
a monetary penalty,
a stop notice, or
a compliance notice;
“
commercialisation”, in relation to research and development, means the
making available of a relevant product—
in the course of a commercial activity, and
other than for the purposes of trialling the effectiveness of the
product;
“
compliance notice” means a notice imposing on a person, in relation to
a failure to comply with a provision made by or under this Act, a
requirement to take such steps as may be specified in the notice, within
such period as may be specified, to secure that the non-compliance
does not continue or recur;
“
Conference of the Parties” means the Conference of the Parties
established under Article 47(1) of the Agreement;
“
craft” includes any vessel, machine, structure or other item;
“
digital sequence information”, in relation to marine genetic resources,
has such meaning as the Secretary of State may provide in regulations;
“
relevant product”, in relation to research and development, means a
product developed through or as a result of that research and
development;
“
relevant research and development” means research and development
within Article 1(14) of the Agreement (meaning of “utilization”);
“
stop notice” means a notice prohibiting a person from carrying on an
activity specified in the notice until the person has taken such steps
as may be specified in the notice;
“
UK craft” means—
a ship that is a British ship by virtue of section 1(1)(a) or (d)
of the Merchant Shipping Act 1995 (ships registered in the
United Kingdom and certain small ships with qualifying
owners),
a Government ship within the meaning given by section 308(4)
of that Act, or
any other craft to which the Agreement applies and which has
a qualifying UK connection (see
subsection (2)
);
“
UNCLOS” means the United Nations Convention on the Law of the
Sea 1982 (Cmnd 8941);
“
United Kingdom person” means—
an individual who is a British citizen or habitually resident in
the United Kingdom, or
a person that is incorporated or formed under the law of any
part of the United Kingdom;
“
utilisation”, in relation to marine genetic resources or digital sequence
information, means—
the use of those resources or that information in carrying out
relevant research and development, or
the commercialisation of relevant research and development
carried out using those resources or that information;
For the purposes of
paragraph (c)
of the definition of “UK craft” in
subsection
(1)
, a craft has “a qualifying UK connection” if—
it is not a British ship by virtue of section 1(c) of the Merchant Shipping
Act 1995 (ships registered under the law of a relevant British
possession),
it is not, and has not been deployed from, a ship which has been
granted the nationality of a state other than the United Kingdom in
accordance with Article 91 of UNCLOS, and
it is—
owned or operated by a United Kingdom person, or
being used after being deployed from the United Kingdom or
from a ship within
paragraph (a)
or
(b)
of the definition of
“UK craft” in
subsection (1)
.
The Secretary of State may by regulations amend or otherwise modify the
meaning of “a qualifying UK connection”.
For the purposes of interpreting references in this Act to areas beyond national
jurisdiction, a relevant maritime zone of any of the British overseas territories
is to be treated as if it were an exclusive economic zone within the meaning
of UNCLOS (see Article 55).
In subsection (4) , “relevant maritime zone” includes—
an exclusive fishing zone,
an ecological protection zone, and
any other zone in relation to which the territory in question asserts
or exercises any rights or jurisdiction of the sort referred to in Article
56(1) of UNCLOS.
Regulations under
subsection (1)
that are made for the purposes of the
definition of “digital sequence information” are subject to the negative
procedure.
Regulations under
subsection (3)
that amend this section are subject to the
affirmative procedure.
Any other regulations under
subsection (3)
are subject to the negative
procedure.
The Secretary of State may by regulations make provision that is consequential
on this Act.
Regulations under this section may amend or repeal provision made by an
Act passed—
before this Act, or
later in the same session of Parliament as this Act,
(as well as provision made under such an Act).
Regulations under this section that amend or repeal provision made by an
Act are subject to the draft affirmative procedure.
Any other regulations under this section are subject to the negative procedure.
Regulations under this Act are to be made by statutory instrument.
A power to make regulations under this Act includes power to—
confer a function (including a discretion) on any person;
make consequential, supplementary, incidental, transitional, transitory
or saving provision;
make different provision for different purposes or for different areas.
Regulations under this Act that provide for civil sanctions—
must provide a right of appeal against the imposition of any such
sanction;
may make any provision corresponding to, or dealing with similar
matters to, provision made by or capable of being made under the
Regulatory Enforcement and Sanctions Act 2008.
Where regulations under this Act are subject to “the draft affirmative
procedure”, the regulations may not be made unless a draft of the statutory
instrument containing them has been laid before, and approved by a resolution
of, each House of Parliament.
Where regulations under this Act are subject to “the made affirmative
procedure”, the statutory instrument containing the regulations must be laid
before Parliament after being made.
Regulations contained in a statutory instrument laid before Parliament under
subsection (5)
cease to have effect at the end of the period of 28 days beginning
with the day on which the instrument is made unless, during that period,
the instrument is approved by a resolution of each House of Parliament.
In calculating the period of 28 days, no account is to be taken of any whole
days that fall within a period during which—
Parliament is dissolved or prorogued, or
either House of Parliament is adjourned for more than 4 days.
If regulations cease to have a effect as a result of
subsection (6)
, that does
not—
affect the validity of anything previously done under the regulations,
or
prevent the making of new regulations.
Where regulations under this Act are subject to “the negative procedure”, the
statutory instrument containing them is subject to annulment in pursuance
of a resolution of either House of Parliament.
Any provision that may be made by regulations under this Act subject to the
negative procedure may be made in regulations subject to the draft affirmative
procedure or the made affirmative procedure.
This section does not apply to regulations under—
section 18 , or
This Act binds the Crown (but see section 8 and Article 4 of the Agreement).
The Crown is not criminally liable as a result of anything in this Act.
Despite
subsection (2)
, this Act applies to persons in the service of the Crown
as it applies to other persons.
Sections 17 and 18 extend to Scotland only.
The rest of this Act extends to England and Wales, Scotland and Northern
Ireland.
His Majesty may by Order in Council provide for any of the provisions of
this Act to extend, with or without modifications, to the Isle of Man or to
any British overseas territory.
Except as provided in subsection
(2)
, this Act comes into force on the day on
which it is passed.
Different days may be appointed for different purposes.
The Secretary of State may by regulations make transitional or saving provision
in connection with the coming into force of any provision of this Act.
The power to make regulations under
subsection (4)
includes power to make
different provision for different purposes.
Regulations under this section are to be made by statutory instrument.
This Act may be cited as the Biodiversity Beyond National Jurisdiction Act 2025.
Where the utilisation involves or leads to any result within Article 12(8)(a)
of the Agreement (publications, patents, product development etc), the
information referred to in Article 12(8)(a) to (d) must be given within the
period of 1 month beginning on the day on which the result is achieved.
Where the utilisation involves commercialisation, the information referred
to in Article 12(8)(b) to (e) of the Agreement must be given—
within the period of 1 month beginning with the day on which the
product in question is made available, and
within each subsequent period of 12 months for any part of which
the product remains available.
Information does not have to be given where—
the relevant person does not have, and could not with reasonable
effort obtain, the information, or
in a case where the utilisation concerned is that of digital sequence
information, it is for any other reason not reasonably practicable to
give the information.
The Secretary of State may by written notice to the relevant person extend
the period within which any information has to be given.
In this Schedule, “the utilisation” means the utilisation that—
forms part of the utilisation project concerned, and
A
bill
to
Make provision for and in connection with the implementation by the United Kingdom 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.
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