Written evidence submitted by the Seabed User and Developer Group (SUDG) (DEB0012)

The Seabed User and Developer Group (SUDG) represents some of the key marine industries, namely: oil and gas, renewable energy, marine aggregates, ports, submarine cables, recreational boating, carbon capture and storage. The SUDG understands that the sea around our shores is a sensitive environment that needs to be valued, protected and improved, but it is also a working environment that makes a substantial contribution to all our lives. From energy to aggregates and from ports to cables and leisure boating, the industries of the sea make an essential contribution to our land-based society and in 2008 represented 4.2 per cent of gross domestic product supporting c.900,000 jobs (these figures are currently being updated). The development of new industries such as aquaculture and deep-sea mining also represent opportunities to grow marine industries further.

SUDG is an informal grouping whose participants have a common interest and commitment to sustainable development within the UK’s marine environment. We believe that sustainable win-win solutions are possible from what are sometimes seen as competing needs. We are committed to working with Government, its agencies and other stakeholders, such as Wildlife and Countryside Link to develop cost-effective regulation and marine management that benefits both business and the environment. Industry has a strong record of working with others to ensure we manage the sea sustainably; for example, throughout the process of designating an ecologically coherent network of Marine Protected Areas around the UK coast, industry was closely involved supplying data to assist in identifying areas appropriate for designation, providing information on activities, the potential impacts they have and the mitigations applied to reduce and remove impacts. More recently we have already started working with Government and others to identify ways in which industry can help to improve the marine environment to promote ‘net gain’ an objective of the 25 Year Environment Plan (25YEP).

To do all this, SUDG promotes liaison with all relevant parties involved in the installation and operation of marine industries in the United Kingdom. These include UK Government and its agencies such as the Marine Management Organisation (MMO) in England and counterparts in the other devolved administrations. Liaison has become particularly important with the development and implementation of recent legislation such as the Marine and Coastal Access Act 2009 (MCAA); a comprehensive piece of legislation that created a number of new mechanisms for managing the marine environment sustainably in areas such as marine licensing and we believe strongly that liaison will be a critical factor in ensuring that the new Environment Act is workable and productive.

SUDG therefore broadly welcomes the proposed legislation in the Environment Bill which aims to ensure that after EU exit we retain the same standards for environmental protection in the sea as we currently have as part of the EU. As stated, industry has over 20 years of working with regulators and others (such as NGOs) to find constructive and positive ways of working with EU legislation such as the Habitats and Birds Directives and SUDG and we have made clear our view that as far as possible the way in which the legislation is managed within the UK should reflect the experience we have had of working with EU legislation. What we do feel, however, is that the EU exit creates opportunities for the implementation of legislation that would benefit UK policies on economy, climate change and transport as well as the environment and this should be reflected in any new approach to regulation and management of the marine environment. SUDG has set out much of this thinking in a joint statement with the Wildlife Trusts, RSPB and others which identifies clear, shared objectives that SUDG and the conservation NGOs wish to see in the way that the marine environment is resourced and managed.

We are also aware that the practical implications arising from the decision to leave the European Union will continue to unfold as the detailed discussions around the nature and form of EU exit continue. It is therefore important that in addition to considering the potential risks associated with the EU exit, industry also examines the potential opportunities that EU exit brings; something which has also been encouraged by Defra and the regulatory bodies. SUDG can also help in delivering these opportunities.

To examine some of these points further we are responding through the questions set by the inquiry below:

1. Does the proposed constitution of the oversight body provide it with enough independence to scrutinise the Government?

It will be important the OEP acts objectively, impartially, proportionately, and 
transparently as stated in the Bill, but the mechanisms for this will need to be set out clearly to show that there is clear distinction between the OEP and Government, especially as the appointment of the CEO and members will be undertaken by Government. We therefore welcome the commitment of S.12.2 and 3 requiring the OEP to set this out in a clear strategy and suggest that consultation on the draft strategy will be important.

2. Does the proposed oversight body have the appropriate powers to take ‘proportionate enforcement action’?

S.18.5 requires that public authorities ensure that they have clear procedures to show that their own ‘internal complaints procedures’ are complete if the OEP is unable to take action as set out in S. 18. 5.b below

A complaint about a public authority may not be made under this section if—

18.                 (a)  …the authority operates a procedure for considering complaints (“an internal complaints procedure”) under which the complaint could be 
considered, and 


              (b)  that procedure has not been exhausted. 


It is clear therefore that the ‘internal complaints procedures’ for all relevant public authorities, including the OEP, are clearly set out so that potential complainants can know when it is appropriate to register a valid complaint with the OEP.

3. Are there any conflicts of interest or overlap with existing government bodies?

Until there is greater detail about the way in which the OEP will operate and at what point it will become involved, it is not possible to give a view on this question. This will only be possible with clear terms of reference on operating procedures from public authorities as well as the complaints procedures referred to in question 2 above.

4. As drafted are the principles legally enforceable? What will need to be included in the National Policy Statement to interpret the application of the principles?

Paragraph 55 in the Explanatory Notes states that

Environmental principles are principles which will act as a foundation for environmental decision-making. There is no single agreed definition set of environmental principles, so the policy statement produced by the Secretary of State under clause 1 will include a fuller definition of each of the environmental principles included.

Without this further definition it is therefore impossible to answer the question; however, SUDG would also add that while many of the principles set out in the Bill are welcome and should form part of the approach of all environmentally aware and compliant industries, we have significant concerns about the precautionary principle.

The precautionary principle is important but needs applying with care and not as a blanket provision. Marine industries have spent many years assessing any impacts which their activities may cause and working with many bodies to identify mitigation and compensation. Using science and monitoring the impacts of development have been reduced or eliminated and more work is still being carried out. To ensure that proportionality is applied in licence determination, it is therefore essential that all this work and experience is properly applied before any application of the precautionary principle, which should therefore only be used as a last resort where there is no science or knowledge to call upon. Without this control there is a real danger that the precautionary principle is simply applied as a stalling mechanism rather than a truly effective environmental principle.

5. Are there any conflicts with other legislators or legislation, for example the Scottish Continuity Bill?

As with other questions, it is difficult to say with clarity whether there will be conflicts with other legislation or legislators as more information is needed on the way the OEP will work and the strategy and environment improvement plans which it is required to draft. SUDG urges that consultation on the next steps of the work of the OEP is therefore important.

6. Does the Bill meet the government’s commitment to non-regression from EU environmental standards?

Again without further clarity on how the Bill will be implemented it is hard to say, but the information within the Bill would suggest that environmental standards will be retained and this is welcomed by SUDG.

7. Is there anything else missing that should be included to meet the enforcement, governance and other gaps in environmental protection left by leaving the European Union?

Most SUDG member industries operate across the UK and while we have always asked for consistency of approach from the Devolved Administrations this has not always been forthcoming and therefore it will be important that the new Bill delivers consistency as far as possible. This will be important in both clarifying what legislation requires and in determining the roles of all those public bodies in delivering it.

Additionally, SUDG has already made clear that it does not think that abandoning EU legislation would be in the best interests of the environment or industry. Industry has spent many years working with regulators to understand how to deliver these more effectively; however, the re-examination of EU legislation through the Repeal Act and other initiatives does provide an opportunity not only to identify where legislation is to be retained, but also to clarify its purpose and objectives going forwards. Consequently, the best opportunities will arise from how the legislation that remains is implemented in practice. These could include:-

• Placing a much greater focus on our approach to management of the marine environment so that it is less driven by over prescriptive regulation, but makes greater use of cost benefit analysis linked to ecosystem services valuation and the socio-economic benefits that derive from development.
• Streamlining the number of separate assessments that may be required for individual aspects of EU legislation (EIA, WFD, MSFD and H and BD)[1] so that the current complexity could be both rationalised and simplified
• Greater clarification of environmental objectives for Marine Protected Areas and for legislation generally. There is still too much uncertainty about this and developers continually find themselves having to guess what environmental aspects they need to consider.
• Developing a more UK based approach to delivering many aspects of EU legislation; for example applying compensatory measures for onshore and offshore development in ways which contribute better to the overall functioning and ecosystem services of SACs and SPAs rather than simply compensating on a ‘like for like’ basis which may be sub-optimal and over prescriptive.
• There are also clear opportunities to make the links between marine planning and development more effective, and for spatial plans to be at the heart of the decision making process, which would assist both developers and consenting authorities.

Although not necessarily linked directly to EU exit, there are also opportunities to:

• Deliver more practical, more proportionate and less risk-averse decision making. We are already working with the conservation bodies such as Natural England and the regulators such as Welsh Government and MMO, but it would be logical to follow this through with more coordinated effort and a need for clearer and shared outcomes.

January 2019