1: After Clause 3, insert the following new Clause—
“Prevention of avoidance by offshoring of activities(1) This section applies where—(a) a United Kingdom person (“P”) arranges for relevant research and development or commercialisation involving marine genetic resources of areas beyond national jurisdiction, or digital sequence information on such resources, to be carried out wholly or partly outside the United Kingdom, and(b) the effect, or likely effect, of the arrangement is that utilisation which would otherwise fall within section 3(1) does not do so.(2) Where this section applies, the utilisation is to be treated, for the purposes of this Part, as if it were a utilisation project to which section 3 applies and were carried out in the United Kingdom by P.(3) The Secretary of State may by regulations make further provision—(a) requiring United Kingdom persons to take reasonable steps to ensure that arrangements with non-United Kingdom persons for the collection or utilisation of marine genetic resources of areas beyond national jurisdiction, or digital sequence information on such resources, are not entered into for the purpose of avoiding, or frustrating the operation of, this Part;(b) requiring United Kingdom persons to keep, and to provide to the Secretary of State on request, such records and information as may be prescribed about such arrangements;(c) for the application, with or without modifications, of enforcement provisions made under section 9 to failures to comply with regulations under this section.(4) In this section, “United Kingdom person” and “relevant research and development” have the meanings given by section 20.(5) Regulations under this section are subject to the negative resolution procedure.” Member’s explanatory statement
This new clause is intended to prevent UK companies and other UK persons from avoiding the information-sharing and benefit-sharing obligations in Part 2 of the Act by offshoring marine genetic resource research and development or commercialisation to non-Parties to the BBNJ Agreement.
My Lords, I was feeling quite confident that we would wholly outnumber the government Benches, but then I saw all the people at the back and thought maybe not. We will get good answers to our questions anyway, that is for sure.
As we all said at Second Reading, this is an important, good treaty, around which we need an implementing Bill. I will move Amendment 1 but will also speak to Amendments 11 and 20, to make matters easy for the Grand Committee.
Amendment 1 is very much a probing amendment. From our Benches, we very much welcome the information- sharing and benefit-sharing aspects of the treaty, particularly around marine genetic resources and digital sequence information. This principle covers the sharing of those physical, biological and information resources to all nations. That is important and something we would very much agree with.
However, a number of nations will not ratify this treaty. At the moment the non-ratifiers include the United Kingdom—I am pleased to say the Government are soon to put that right—China, India, Turkey, Malaysia, Brazil, just to mention a few, and not least the USA. All those nations have signed the treaty, but the United States Administration have made it pretty clear that it they not going to ratify it, perhaps not surprisingly given that they have not even ratified UNCLOS. My concern is that there are ways of bypassing these provisions on information-sharing and benefit-sharing by offshoring, if I could use that phrase, to non-ratifying states, particularly the United States, which has a huge history and a good reputation on innovation, venture capital and all the other areas making sure that human progress moves forward.
My concern is that organisations or persons—whether companies or individuals—that would otherwise be British based will perhaps find a way to capture intellectual property and knowledge within other jurisdictions. My question is: have the Government thought about this and is there a way of approaching it? I am not saying that it is necessarily easy, but I would be interested to hear the Minister’s comments on how that might move forward.
I will speak to Amendment 3 in this group on the UK’s capacity to comply with Article 5 of the BBNJ, which is about capacity building—building the international capacity to understand the problems and issues and to develop solutions.
The UK is particularly well placed to do that because we have the National Oceanography Centre in Southampton and Liverpool, which is a centre of excellence, providing all sorts of leadership and national capabilities in ocean research. We have the Plymouth Marine Laboratory, which is leading in its field of marine science research and is recognised as a centre of international excellence in marine ecosystems. In Scotland, we have the Scottish Association for Marine Science and the excellent Sea Mammal Research Unit at the University of St Andrews, which is the UK’s main centre for marine mammal science. I have not included an absolutely full list of all the centres, so it might be a bit invidious, because there are other places that do a lot of work in this area and are excellent—those are just three examples. We have a special responsibility to share our capacity with the geographical locations that will be making an effort to comply with the BBNJ treaty but do not have anything like the history and knowledge base that we have.
One example I could give would be the Sargasso Sea, which is 4 million square kilometres in area—when I read that, I thought it unlikely to be so large, but I double-checked and it is—with Bermuda at its heart. It would be hard to overstate the importance of the Sargasso Sea in biodiversity terms. It is globally significant and is threatened in lots of ways, particularly by overfishing, obviously, but also by mining. Bermuda, for which the sea is critical, has worked hard to achieve, for example, the Sargasso Sea Commission in 2014. As the treaty implementation gets under way, the UK has not only to help capacity-build the science there to start solving some of the Sargasso Sea’s issues but to set the agenda internationally, because although the treaty affects Bermuda so crucially, as an overseas territory it has no direct voice at the UN. We need to use our voice and scientific capability to help not just Bermuda but all those overseas territories that are so critical, given the fact that the ocean and its currents are global.
My Lords, I thank the noble Lord, Lord Teverson, for leading this group. I will start by speaking to my own Amendments 2 and 17, before addressing Amendments 4 and 5 in the name of my noble friend Lord Fuller, who sadly cannot be in the House today.
Amendment 2 is a straightforward probing amendment which seeks to understand what steps the Government will be able to take to prevent genetic samples being accessed by hostile state actors. We know that much of the deep ocean has yet to be researched, and the impact of future discoveries on key sectors such as the life sciences may well be significant. In certain circumstances, we would not want discoveries shared with state actors who may use them against us and against our interests. Can the Minister set out the contingency powers that Ministers have to prevent the sharing of critical genetic samples in those circumstances?
My Amendment 17 follows on closely from the debates that were had in the House of Commons. The Bill contains a large number of regulation-making powers to allow the UK to remain compliant with the decisions made by the Conference of the Parties under the treaty. This amendment simply seeks to improve transparency and parliamentary accountability by ensuring that there is a regular update on core metrics, such as the details of regulatory changes and the impact of them on relevant sectors. When Parliament grants Ministers wide-ranging powers in legislation, it is only right that we put in place the appropriate transparency and accountability requirements. While the Minister may not be able to accept this amendment today, I hope that she will be able to set out more fully the Government’s plans to ensure that Parliament, and consequently the British public, have access to information on the way that Ministers are using the powers that the Bill has granted them.
Amendment 4, in the name of my noble friend Lord Fuller, seeks to probe the impact of the treaty, including the imposition of marine protected areas over the deep ocean, on the economy and on infrastructure. As the Minister knows, we signed this treaty when we were in office, and at the time we were satisfied that the treaty struck the right balance. However, it would be interesting to hear what further work the Government have done more recently to assess the projected impact of marine protected areas on the economy, in particular through restrictions on certain shipping activities. Can the Minister please expand on that?
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
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?
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.
With pleasure, I beg leave to withdraw my amendment.
Amendment 1 withdrawn.
Clauses 4 and 5 agreed.
Amendment 2 not moved.
Clauses 6 and 7 agreed.
20 of 89 shown
My Amendments 11 and 20 are about flags of convenience. Let us look at some of the issues. I am concerned about enforceability. As noble Lords will be aware, 45% of total marine tonnage—vessels above 100 gross tonnes in weight—are registered to just three nations: Panama, the Marshall Islands and Liberia. All of them have already ratified the BBNJ treaty, so that gives me some consolation. However, as to enforceability, the irony of this treaty, in some ways, is that it relies on UNCLOS, one of the core values of which, throughout the history of marine commerce on the high seas, is that you cannot intervene on vessels with flags other than your own unless you have the permission of those flagged authorities. That is almost impossible to do, so enforcement on the high seas is extremely difficult. We may not be talking about supertankers or the big freighters in terms of biodiversity, but we are talking about research vessels, which are still subject to the same restrictions for intervention on the high seas. Those remain despite the treaty, unless there is a broader agreement, but I cannot see that the treaty allows for the boarding of vessels of other nations on the high seas.
One of the areas that came out a couple of years ago from the International Relations and Defence Committee was that the UK had not signed or ratified the UN Convention on Conditions for Registration of Ships. I am not saying that that is an answer to everything, but it would be a great service if the United Kingdom, with its influence through the IMO and other organisations, were able to revive that treaty, which only has some 15 ratifications but needs 40 to come into effect. What I am looking at here is for the United Kingdom to take this forward. We are 27th in terms of internationally registered tonnage, so we are a small fleet despite being an international, global and maritime nation. Can the Minister say whether there is a way that we can start to repair this situation, because enforceability, under the current rules of UNCLOS and even under the BBNJ treaty, is going to be extremely difficult? I beg to move.
Amendments 5 and 5A relate to craft that are not members of the class societies for shipping. My understanding of my noble friend’s amendments in this regard is that they are designed to facilitate a debate on the so-called dark fleet. According to a February report from the Institute for Human Rights and Business, some estimates claim that there are now 1,400 vessels in the fleet, which would be up to 10% of the world’s tanker fleet. The Kyiv School of Economics estimates that Russia alone has invested nearly $10 billion— €9.26 billion—to set up a ghost fleet of several hundred vessels, estimated at nearly 600 ships in July 2024. These, of course, are the ships that transport Russia’s oil, helping to support its illegal war in Ukraine.
Can the Minister set out the Government’s thoughts on how this treaty might help us tackle the dark fleet, as well as what steps the Government are actively taking to prevent the operations of illegal shipping? I hope that the Minister will be able to take our concerns on board across these amendments; I look forward to her reply.
“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.