Official Report 855KB pdf
Welcome back. Agenda item 4 is consideration of the legislative consent memorandum on the Biodiversity Beyond National Jurisdiction Bill. The bill was introduced to the House of Commons on 10 September and the Scottish Government lodged the LCM on 25 September. The bill will enable the UK to implement the biodiversity beyond national jurisdiction agreement, which seeks to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.
We have a very tight timescale for the LCM. We are told that the bill must be in force by January for the UK to meet new treaty obligations. In effect, that means that the committee must agree a report next week. We have therefore had little choice but to agree to have this evidence session this week, even though we are still waiting for a supplementary LCM to be lodged.
I welcome the Cabinet Secretary for Climate Action and Energy, Gillian Martin, and her supporting officials from the Scottish Government. Eilidh Macdonald is head of marine climate and biodiversity and Dr Joanna Dingwall is branch head lawyer. Before we move to questions, I believe that the cabinet secretary wishes to make a short opening statement.
Thank you, convener, and good morning. I welcome the opportunity to discuss the Biodiversity Beyond Natural Jurisdiction Bill and legislative consent in relation to it. As you have just said, the bill will implement the BBNJ agreement, which is a significant United Nations landmark agreement to protect biodiversity. We support the aims and we are keen to ensure that, with the Parliament’s consent, the UK can ratify the agreement in time for it to take place at the first conference of the parties.
However, our support for the UK bill as introduced is, unfortunately, not straightforward, due to two significant challenges. First, it spans a complex mix of devolved and reserved competences covering a wide range of policy areas, which was not reflected in its initial drafting.
Secondly, the timeline has, from the off, been incredibly difficult. We were not afforded sufficient time prior to introduction to engage with the devolved aspects, which meant that, although we managed to secure rapid amendment to certain clauses for introduction, the remainder have had to be analysed and negotiated in parallel with the bill’s passage. Consequently, I have lodged an initial LCM for some clauses, but have reserved our position on the rest.
I must put on record my deep disappointment and frustration that the timeline has been so tight, and that I have not been able to provide a full LCM to the committee. The Scottish parliamentary scrutiny process—our democratic devolved legislative process—should not, I believe, be rushed, and I have highlighted my concerns in that respect to the UK Government. I had a meeting last week with the lead UK minister, Seema Malhotra, and prior to that I set out all our concerns in a letter.
I can speak to the initial LCM that has been lodged and the amendments to clause 18 that were tabled in the House of Lords yesterday, and where we are still engaged in intensive negotiation, I can speak to our general approach to robustly protecting devolution, despite the challenges presented by the timeline.
Negotiations are still on-going, and we want to keep the committee informed of their outcome as quickly as possible. You have my word that we will do so.
Thank you, cabinet secretary. It is fair to say that, with LCMs, the committee keeps finding itself in the position of having to agree—or not agree—things without having the time to take evidence. The committee has written twice now to the UK Parliament about that. We wrote to the speaker only three weeks ago, I think, suggesting that, to respect devolution, we ought to be given more time and that the Parliament in Scotland should not be considered just as a rubber stamp, but should be able to actually take part in these things. There are genuinely lots of reasons why I feel uncomfortable about this, as I have done with other such bills. I think that sidelining the Scottish Parliament when we are sitting here, trying to do a job, is disrespectful.
I am glad to have got that off my chest and on the record, as it were. My question is this: what high seas activities intersect with devolved competences? Can you give me some practical examples of where there is going to be friction or where this is going to work in conjunction with what the Scottish Government does?
The sorts of activities that will be impacted are in the marine protection and marine research areas, including sea fisheries management, marine licensing and the implementation of international agreements with regard to Scotland. I cannot foresee where things might come into conflict, but it brings us back to the point that you have just made, convener. The bill covers issues of devolved competence in which the Secretary of State for Scotland would be the sole actor. That would go over the Scottish Government and the Scottish Parliament, and they would not be able to scrutinise the secretary of state’s decisions in those areas.
This is a fundamental issue that we have seen with other LCMs in the past—and believe me, I completely share your frustration about the timeline, convener. We have not been able to do our analysis as fast as that, and we need to be sure what we are signing up to. Moreover, as everyone in this place knows, we must ensure that the Sewel convention is adhered to.
Therefore, I cannot give you a list, as such, of all the potential issues—I think that you used the word “conflicts”, convener—that might arise, because I cannot foresee what might happen. However, the fundamental point is that we cannot have a situation in which a UK minister is making all the decisions on what is a devolved competence without the consent of the Scottish Parliament and the Scottish Government.
It is quite difficult for the committee to consider this, cabinet secretary, if we do not fully understand the implications of what we are doing, because we do not have the final LCM in front of us. That causes me concern.
Let me push you on this issue slightly. Is the Scottish Government seeking concurrent powers to those being granted to the secretary of state in relation to implementing these obligations? Are you looking for the same powers in Scotland, or are you just going to be in a position where you will give those over to the secretary of state?
We are exploring all options. I will not alight on one in particular. We are exploring a range of options and my officials have been working hard to try to get an agreement that we could be satisfied with. Obviously, having concurrent powers is an option. If I can put it this way, we are looking at any potential protections to ensure that devolution is properly respected in the bill.
Cabinet secretary, I understand that, and I have confidence that you are doing that, but can you try to give me an example, please, so that I can understand it? In what areas are you happy to give over powers to the secretary of state, and in what areas are you not happy to do that?
I have to be very careful about what I say, because we are negotiating at the moment, although I understand that the committee might want the detail of what we are negotiating on. Concurrent powers is one area that we are looking at. It is not a case of being able to tell you all the potential areas for compromise; what we want is consent powers. We want consent for Scottish ministers and, indeed, the Scottish Parliament. That is the bedrock of the Sewel convention and the bedrock of devolution. If I were—
Cabinet secretary, come on—I am trying to understand. You are bringing this to the committee and I am trying to understand how the committee—or how I, as a committee member—can say that we agreed to the LCM, when you are not telling me anything about it. I am as much in the dark as I was at 5 o’clock this morning, when I was rereading the papers.
We are negotiating sufficient protections. A number of protections are on the table, which means that they are matters of discussion between me and the UK Government minister right now. I said that I would try my best to let the committee know the outcome of those negotiations, so that you will have notice of what we have agreed to. However, while those negotiations are on-going, you will have to forgive me if I do not run through a list of potential protections that we would or would not seek to have in the bill, because those are still being negotiated. I hope that you will respect that.
I find it impossible to do my job as a member of this Parliament if I do not know that. We are in a position where the House of Lords committee is sitting on 16 December and we have got to report by 4 January. You have promised to keep us updated, and I will look forward to that—maybe it will be under the Christmas tree. We are not going to get this before next week, and we are going to be in recess until 4 January, so I am struggling.
I understand that, convener. You say that it is difficult for you to do your job, but I would not be doing my job if I did not ensure that we protect devolution in absolutely everything that comes across my desk from the UK Government.
I absolutely concur with that, but we are an armour of this Parliament, as a committee, and one of our jobs is to scrutinise the things that are put before us. It is difficult to do that if we do not have that information.
Parts 2 and 3 of the bill provide regulation-making powers to UK Government ministers. What is the Scottish Government’s position on those powers?
At the moment, we cannot agree to part 2, because the schedule will impose obligations relating to the collection and utilisation of MGR and associated DSI from a BBNJ. That includes—
I am sorry, cabinet secretary, but can you decipher that for me, please?
Yes, I can. Clauses 2 to 10 impose obligations relating to the collection and utilisation of marine genetic resources. I am sorry for using acronyms, which I always said that I would not do. I usually like to give the full names for things. These clauses impact on devolved matters through the level of impact of the provisions on Scottish actors. We think that the impact will be limited, but the bill provides an exemption of the provisions for fishing and fishing-related activities. Only a small number of organisations are involved in collecting and utilising marine genetic resources. However, part 2 raises questions about the impacts on devolved matters and the role of devolved institutions.
As I said, the clauses are still subject to on-going negotiation with the UK Government in order to bottom that out. As we explore the protections with the UK Government, we need first to ensure that we have consent associated with any devolved areas, but we are hopeful that we can then conclude the negotiations.
That is, in effect, a summary of what is in part 2 and why it is important that we have consent.
09:30
Just so I understand this clearly, you are saying that the Scottish Government is opposed to all of part 2.
Clauses 2 to 10 are the ones with which we have issues.
In part 2.
In part 2.
And part 3?
I am just double checking that I have got that right. It is part 2, clauses 2 to 10.
Yes, that is right. We provided no position in the initial LCM for all of part 2. As the cabinet secretary has just set out, clause 9, which gives the secretary of state sole power potentially to legislate in devolved areas, is one particular area of concern that has been raised through letters from this committee and from the Delegated Powers and Law Reform Committee.
And part 3?
Sorry—part 3, which is on area-based management tools, is another area on which no position was taken in the initial LCM, and which is subject to on-going negotiations.
Okay. Your position is that you are opposed to the existing provisions in part 2, on the regulation-making powers—subject to negotiations, from what you have said.
Yes—subject to negotiations. As it stands, we cannot support those provisions, and we need to ensure that the negotiations put mechanisms in there that give the Scottish Parliament oversight and respect devolved competence.
That is clear to me with regard to part 2.
With regard to part 3, you are opposed to clauses 11 and 13, subject to negotiation.
Subject to negotiation.
You are opposed to it as it stands—is that correct?
Yes.
The next questions come from Mark Ruskell.
Cabinet secretary, can you say a bit more about area-based management tools and how you anticipate the legislation working in a devolved context? What is the potential fix or amendment, or negotiated outcome, that you are looking for in relation to those tools? I am just trying to picture what, in practice, this all actually means.
At present, clause 9 provides the power for the secretary of state to make regulations in relation to genetic resources, including benefit sharing, enforcement and conflict avoidance. That may apply to devolved matters, and there is currently no requirement in the bill to secure the consent of Scottish ministers for the secretary of state to act in those areas that are within devolved competence.
The fix would be to put in the bill a provision that the secretary of state would seek the consent of the Scottish Government and the Scottish Parliament. I have had a meeting with the UK minister to outline why that is so important.
Will that impact on a lot of our activities? No, but the fundamental bedrock is to ensure that the UK Government does not act in a way that overrides devolved competence, so that is what we are seeking.
My Scottish Government legal colleague has asked to come in.
I thank Mark Ruskell for the question about area-based management tools. We are focused in particular on clause 11 in that regard.
The BBNJ agreement is, at present, essentially a framework agreement that puts in place processes for the eventual adoption of area-based management tools. Right now, we do not know exactly what those will be, per se. We could anticipate that they would include marine protected areas, and there might be other types of controls on marine activities that mean that, in effect, they would become area-based management tools.
Our main focus is clause 11 because it is clause 11 that enables the secretary of state to implement the area-based management tools through regulation. The particular concern for the Scottish Government is to make sure that, for any area-based management tools, Scottish ministers have an appropriate oversight role and input regarding the impact on Scottish actors. That could take the form of consent or, as the cabinet secretary has explained, it could be concurrent powers or some other approach. We are considering all options, and that is the subject of on-going negotiations.
Clause 13, which is on emergency directions, has also been negotiated, and it is probably a more straightforward area of negotiation. However, clauses 11 and 13 need to be bottomed out, because we need to make sure that, even in emergency situations, we are aware of what is happening and that we are involved when the secretary of state takes action.
I think that I understand that. We are talking about the waters beyond 200 nautical miles. Is much of the Scottish fleet operating beyond 200 nautical miles? Are we looking mostly at the pelagic sector?
There are two elements to that. On the one hand, there could be activities in the area beyond the national jurisdiction, which is 200 nautical miles. In some respects, the BBNJ agreement is trying to create a regime for the future, because the types of activities that take place out there are increasingly different. As the cabinet secretary has already mentioned, at the moment there is not a huge amount of Scottish activity out there, but it is a growth industry.
The other thing that I would flag up is that Scotland is in a unique position as the part of the UK that has an area of extended continental shelf that goes beyond 200 nautical miles, because of the prolongation of Scotland’s continental shelf. The UK has claimed that.
Under the BBNJ agreement, area-based management tools and protections could be put in place for that area, where Scottish ministers currently have executive functions in relation to the seabed and subsoil. Those area-based management tools would relate to the water column that is beyond 200 nautical miles, but which lies within our extended continental shelf. We have a particular interest in respect of our executive powers there.
I can see that it is about the ecological coherence with the continental shelf and how it extends beyond that. I think that that is a good example.
You mentioned notification, storage, access and reporting around marine genetic resources, as well as co-ordination of potential area-based management tools. How do you anticipate that being organised? Would the UK Government lead on it, or would the Scottish Government want to feed in? I am just trying to picture what the activity is and the reality of the Scottish Government’s function within that.
In reality, most of the actions that are associated with the bill will be exercised by UK Government ministers. We do not have any problem with that. It is just a case of them having our consent to do so. In emergency situations, such as conflict between marine craft, the UK Government has responsibility.
The consent of Scottish ministers is the issue here, not the deployment or the response.
Some of those functions could therefore be co-ordinated at the UK level, but the Scottish Government would seek to input into that process rather than leading on it.
Yes. It is about awareness and consent.
I think that that is clear.
Douglas Lumsden is next, and then I will go to Bob Doris.
I want to continue on the theme of area-based management tools, to get a better understanding.
Is it possible that the UK Government could bring in another highly protected marine area by the back door? Can it make changes to toughen up the rules about where fishermen can fish?
I suppose that the provision of area-based management tools, such as MPAs, would be a component of that. That is why it is so important that we have consent.
I do not know whether I can answer the question about HPMAs, but, as Douglas Lumsden has pointed out, fisheries management tools are the domain of the Scottish Government and it is for the Scottish Parliament to scrutinise what is happening in that area. I do not think that that potential scenario is likely to happen.
In effect, marine protection is a power that sits with the Scottish Parliament and the Scottish Government, so we would not want to see a UK Government minister having powers over marine protection.
It might be helpful to give a bit of context for what the decisions would be and their status. Those decisions will be taken at the BBNJ conference of the parties, which is the international decision-making body. We expect it to meet for the first time next summer. There would be a period leading up to meetings of the conference of the parties, and we would expect to be involved, as part of the memorandum of understanding between the UK Government and the devolved Administrations—the concordat on international relations—in the lead-up to the UK taking its seat at the conference of the parties. Decisions would be made there, together, on what is necessary to protect biodiversity in the high seas, and then—this is the bit that we are referring to—in emergency situations, those decisions would be implemented under clauses 11 and 13, with the power to make regulations to do so. It is not so much that the UK Government would have a policy of its own to introduce something; it is a decision that would be taken with the involvement of the Scottish Government in the lead-up to those meetings— then, the decision would be taken together by the signatories to the agreement.
So it is not the case that the UK Government can change, by regulation, where fishermen can fish. That would be an agreement between—
It could sign up to something that is decided on at the conference of the parties. Obviously, Scotland does not have a seat, because we are not a nation state at the conference of the parties, so we are reliant on the UK Government to negotiate the situation on our behalf. We are looking for mechanisms in the bill to ensure that the Scottish Government is consulted and included in the discussions at the conference of the parties. When an agreement is made by the conference of the parties, we mean to have consent over its devolved aspects, because we cannot have the implementation of things that we have not signed up to. It is as simple as that, I suppose.
In that case, may I ask about consultation and engagement with the fishing industry? Has the industry had an input to this? Has it raised concerns about the legislation?
That discussion might more be one to have with the UK Government, but Scottish institutions are included in the explanatory notes for the bill. As the guidance is developed after the bill is passed, we want to ensure that the Scottish Government has engagement with all stakeholders that might be affected. The UK Government is running a public consultation, which was published on 21 November and which closes on 19 December, on the implementation of part 4 of the BBNJ agreement, as it relates to licensable marine activities. We were involved in what the consultation looked like, so it is a joint consultation. For information, I say to anyone who is watching this evidence session and is concerned about licensable marine activities that they have until 19 December to put their points. However, once the bill is enacted and we have a better understanding of where we have got to on consent, we will want to ensure that all our Scottish stakeholders have the opportunity to be involved in the guidance that we put together.
Yes, that is my concern—that the Parliament will be asked to approve this without understanding the implications for Scottish fishermen.
There is another aspect to this, which is about ascertaining the breadth of activities that might happen in this area. The consultation will also give both Governments an understanding of what is taking place beyond national jurisdictions. I have given the convener a few instances of things that we know with regard to marine research and whatever, but, through the consultation, we hope to have a better understanding of who is carrying out what activities, and what the connection is to both the UK and Scotland.
I am going to try valiantly to understand this. Cabinet secretary, as things stand, what regulatory or legislative powers does the Scottish Government have in relation to boundaries beyond national jurisdictions for the Scottish fleet—for Scottish vessels that go out beyond 200 nautical miles? An agreement is going to be reached internationally on all that stuff, so what levers does the Scottish Government have within its devolved competences?
I will have to turn to the lawyer for that, if that is okay.
09:45
We currently regulate some activities that are beyond national jurisdiction. The way in which the legislative competence of the Scottish Parliament works under the Scotland Act 1998 relates to the phrase “in or as regards Scotland”. The “as regards Scotland” element is really crucial, because we are talking about activities that have some nexus with Scotland—for example, a Scottish actor undertaking a particular activity beyond national jurisdiction. Because the marine environment is a devolved matter, we have legislative competence beyond national jurisdiction, provided that it is “as regards Scotland”. I will give you a concrete example. Scottish ministers have the licensing authority for deep seabed mining operations beyond national jurisdiction, but no Scottish actors are currently doing that, and there have been no applications. Things such as that are currently regulated.
Another example is that, under our current marine licensing regime, we already legislate for certain activities anywhere at sea. This is where clause 14 of the bill comes in, with the rethinking of the division of responsibilities for marine licensing between the UK and Scotland. At the moment, we have some administrative arrangements in place, meaning that we use the marine management organisation to regulate some Scottish actors beyond national jurisdiction; that is within the legislative competence of the Scottish Parliament. I will give you the concrete example of rocket launches in Scotland. At the different stages of a rocket launch, parts peel off, typically falling into the ocean. That might need a licence, possibly from the MMO at the moment or from Scottish ministers in future.
Those are the main activities that are beyond national jurisdiction now, but we are conscious of the fact that a lot of activities are coming along, including marine geoengineering, carbon capture and storage, and different types of energy, such as wave converters. That takes us back to the complicated mix of reserved and devolved responsibilities in different areas.
Thank you for making that tangible and concrete, Dr Dingwall. It has been quite a challenge for me this morning, but I think that I understand that.
The conference of the parties that the cabinet secretary has referred to will involve the UK Government trying to reach an international agreement on a range of matters that are reserved to it—quite rightly, under the current constitutional settlement, anyway—and on matters that are devolved. That means that both Governments in Scotland will be in lockstep in relation to those negotiations. What is the process for the Scottish and UK Governments signing up to that? Has the Scottish Government been given any assurance in relation to any of that?
That is why it is important that the Scottish Government has a presence at any conference of the parties, wherever that might be. Before the UK Government goes to negotiate at a COP—at COP30 last month, for example—it will give us an indication of how it is negotiating. When you are at COP, the hope is that you are at least able to find out from officials on the UK ministerial team how the negotiations are going.
It is not very official and not very concrete, unfortunately. We do not have a particular constitutional role in the UK negotiations. However, the Northern Ireland Executive and the Welsh and Scottish Governments usually attend the conference of the parties, and we all have meetings with the UK Government ahead of attendance. I would prefer it if those discussions with the UK Government were formalised.
As it stands, the UK Government makes decisions as to what it can sign up to on behalf of the whole UK. I would like the Welsh and Scottish Governments and the Northern Ireland Executive to be more involved in those agreements but, as it stands, they are not. How much the devolved nations are included also depends on the flavour of the UK Government. Ahead of COP30 in Brazil, we had a certain amount of sight on the UK’s negotiations, and we expect that respect between the devolved Governments and the UK Government to continue.
The fundamental problem with the BBNJ bill is that, when it was put together, there was a complicated mix. We heard about rocket launches, carbon capture and storage and all sorts of things that may or may not happen in those areas beyond jurisdiction. It is a complicated mix of devolved and reserved impacts. That is why it is important that, as we agree to the BBNJ bill and there is legislative consent, we are absolutely satisfied as a Parliament and as a Government that we will not have situations in which future secretaries of state could make decisions on what happens in the areas that affect devolved competence.
I will add a bit to that. You asked about forming positions at the conference of the parties for the BBNJ agreement. On where we are heading with things, as the cabinet secretary said, we are all working to very tight timescales for a very complex and technical bill—I think that that is what the Delegated Powers and Law Reform Committee called it. As the cabinet secretary set out, we have been exploring legislative and non-legislative means to protect devolution and ensure that Scottish ministers and institutions have their right and proper place.
We expect—this is part of what we will bring forward—that there will be non-legislative agreement between the Governments, which we will share with you, as well as any on-bill changes to protect devolution. We have already discussed that with the UK Government and we expect that the BBNJ agreement from the conference of the parties will follow the concordat on international relations, which is part of the memorandum of understanding between the devolved Administrations. It stipulates that we will be consulted on matters to be decided at the conference of the parties should they have devolved impacts. We are exploring that with the UK Government, but we expect there to be quite weighty involvement when there are devolved matters.
Irrespective of what is agreed at the conference of the parties, I take it that the UK Government will have to bring in a suite of powers and regulations to give effect to whatever is agreed internationally, in order to make sure that organisations across the UK comply with the UK’s international obligations. That is perhaps where it impinges on devolved competences.
Dr Dingwall said that agreements might be made more generally, but there are deep seabed mining and marine licensing regimes to consider. I will not comment on rocket launches, but there is also carbon capture and wave power. The Scottish Government would be acting in accordance with its rules, licensing regimes and regulations, but there would be a UK layer that could dictate what that looks like at a Scottish level on matters that were previously devolved. Is that where the rub is? Is that why you are looking for consent to be required from the Government and the Parliament, rather than just to be consulted?
A requirement to be consulted is not worth pursuing, because what does that mean in practice? We could just be told what is happening quite quickly before something is agreed, or whatever. With the BBNJ bill, you can see how late it was when we were able to find out that devolved competences were being looked at.
It comes back to the fundamental point that, in the future, in areas known and unknown, a secretary of state could in effect leapfrog the Scottish Parliament. Well, they would not be leapfrogging the Scottish Parliament because, if we consent to the bill as is, that would be perfectly legitimate. However, we cannot consent to the bill as it is. We need consent so that we have the protection of devolved competence and we cannot be leapfrogged in future situations.
I understand that. The word “alignment” is forming in my head. I am thinking about a situation in which the UK Government decides, perfectly reasonably, that, under its international duties, it wishes—after consulting the Scottish Government—to implement its own regime within international boundaries, beyond the Scottish Government’s direct control. If there is one regime there but a different regime within Scotland’s boundaries, is there any possibility that the UK Government could think, “We’re doing carbon capture differently beyond 200 nautical miles; at 195 nautical miles, it’s being done in a different way, so let’s align those”?
I am thinking about the idea of alignment—I am not saying that there is a danger of alignment, but we could perhaps have a situation in which there is one regime for both the international jurisdiction and the Scottish jurisdiction, as the UK Government could bring in conditions for something that is overtly devolved.
I hope that I have expressed that correctly. My question is about the idea of alignment between what we currently do within the boundary of 200 nautical miles, which we keep hearing about, and what will be agreed internationally beyond 200 nautical miles.
I suppose that that is a possibility. Again, I will defer to the lawyers to give me the lowdown on what that could mean, because I do not know how I can answer that without legal advice.
I think that we are all flying blind.
Yes. That is the issue: what could happen in the future and how might that have an impact? You have raised a good point. I will bring in Joanna Dingwall.
It is a good point. Part of the difficulty is that there are quite complicated competences in the marine space in particular. It would really be considered case by case, depending on the types of activities that are involved.
Under international law—the United Nations Convention on the Law of the Sea—there are typically various high-seas freedoms, so there would be limits on the extent to which the UK could regulate in relation to the water column, say, beyond 200 nautical miles.
On certain topics, it would be hard to conceive of there being comparable regimes within national jurisdiction waters and beyond. It would be a case of looking at all the different activities and thinking through the current legal rules, devolved and reserved competences and executive competences, and then working out things such as high-seas freedoms under the UN Convention on the Law of the Sea.
A general point is that, because we cannot foresee what might happen if we did not have consent, or if we were not even merely consulted—again, I think that “consult” is a very woolly term, and we not should sign up to being consulted; we should have consent—we could not, case by case, figure out the consequences that might arise in whatever scenario there was. Without having consent, Parliament would not have the ability to scrutinise the consequences of a decision that was being made in which we were not included.
I am not sure where that leaves the committee, but thank you, cabinet secretary.
We are trying to negotiate. As I said, we want to be able to tell the committee that we have been successful in our negotiations and that we have come to conclusions with which we are satisfied, in the same way that we were with the amendment to clause 18 that was tabled at the House of Lords bill committee yesterday. We are happy with that amendment, which related to environmental impact assessment obligations. It can be done, therefore, and we are hopeful that it will be done.
I wonder whether you can help me on a wider point, cabinet secretary, so that I can understand it. There are, I think, 193 UN member states plus two observers, so there is a total of 195. There are 75 signatures to the BBNJ agreement, which means that 38 per cent of UN members have signed up to it. We are, therefore, going to be putting in force an agreement that fewer than half of the member states of the UN have agreed to.
Can you explain to me how that is going to be enforced? It is not good enough just to say that Scotland will enforce it with the actors that it has. How are we going to do it on the high seas, or are the high seas just going to remain the high seas and anyone can do whatever they want? We do not seem to have full agreement to all of this. I just want to understand what policing is going to be done. What policing do you know—
I can understand why you are putting that question to me, but we have not been a signatory to the BBNJ agreement as a nation state—
If you are signing up to the LCM, you must have asked that question. You would not sign up to something without knowing how it will be policed, surely.
With regard to the previous question about who would enact everything associated with the BBNJ, it is the UK Government. We would scrutinise the devolved areas on which it impinged, and Parliament would scrutinise that as part of having a consent mechanism embedded in the bill. I cannot pick out a potential scenario and predict what would happen and how the UK Government would respond to it. It is an impossible question to answer.
I am saying that, if you sign up to or consent to an agreement, you must know what Scotland’s obligations are. I am asking you whether you know what they are, and you are not saying anything at the moment.
You are creating potential scenarios in which the UK Government acts in an area of devolved competence and you are asking how we would interact with that. That is why it is important that we have the consent mechanism. I cannot possibly answer that question at the moment, but Joanna Dingwall might be able to help. Maybe I do not understand your question.
I can rephrase it, if you like.
10:00
I will have a go at it. It is a difficult question that has several layers. On the one hand, you are right that the BBNJ agreement is not a universal agreement, so it very much relies on states parties enforcing it against their nationals, primarily, and against their Government vessels and suchlike. It relies on everyone enforcing it against their own people and vessels. Various civil and criminal sanctions for people who do not comply are already contemplated in the bill.
Enforcement on the high seas is a challenge, but there are methods such as remote surveillance. Something to keep in mind is that actors on the high seas will typically be part of a corporate structure with funding and financing, and important legalities are involved in that. There is a huge investment risk for people who go out there and act illegally. We see that with deep seabed mining, for example.
It is only illegal if you are signed up to the agreement. If you are not signed up to the agreement, you would not be doing anything illegal, and 62 per cent of the world is not signed up to the agreement. That is my problem.
Our focus is on ensuring standards for Scottish actors.
I am not sure that there is an answer to my question.
Kevin Stewart wants to come in.
I have a couple of simple questions. Cabinet secretary, neither you nor the Scottish Government has signed up to the agreement because it is an international agreement and, as you pointed out earlier, we are, unfortunately, not a nation state at this time. Would that be correct?
That is true. We are not a signatory because we are not a nation state. We support the aims of the BBNJ agreement and are working hard with the UK Government to support ratification, but your fundamental point is absolutely correct. I was not at the negotiations on the BBNJ. We do not have a seat at the table of the conference of the parties. We rely on the UK Government to give us information about how it is negotiating and what is it is negotiating about.
We have no issues with the BBNJ agreement, but we have to make sure that, when it is enacted by the UK Government, we have consent in relation to the devolved areas in which we have an interest. That is the least that we should expect.
It is not great that we are dealing with the LCM in this manner and that, once again, the UK Government seems to be riding roughshod over devolved competences. It would be much better overall if this was an independent Parliament deciding on this as a whole, as an international signatory—
Mr Stewart, we leave politics at the door, and I do not think that that is an appropriate question.
This is a Parliament—
Mr Stewart, with respect, you have made your point, which you have got on the record. I actually do not think that it is appropriate and I am not going to allow—
I am sorry convener, but this is a Parliament and we have politics—
Mr Stewart, are you challenging my position as convener?
I am suggesting, convener, that you should point out to me where, under standing orders, you feel that my question is inappropriate.
I have made a ruling from my position as convener. You have made your point. You have got it on the record. I do not think that it is appropriate to take it any further. If you want to challenge my position, I will suspend the meeting and I will deal with it in private. What would you like me to do?
We will deal with it after the meeting, convener.
Thank you.
As there are no other questions, I thank the cabinet secretary for giving evidence this morning. I will suspend the meeting to allow for a changeover of witnesses.
10:04 Meeting suspended.Air ais
Subordinate LegislationAir adhart
Ecocide (Scotland) Bill: Stage 1