Andrew George (St Ives, Liberal Democrat)

I beg to move amendment 39, in clause 140, page 95, line 8, leave out ‘kills or injures’ and insert ‘kills, injures or disturbs’.

The amendment would add the word “disturbs” to subsection (2). Although many conservation bodies welcome the general offence of damaging the protected features of the MCZ, there is a desire to explore the possibility that the provision as currently drafted is insufficient to protect the features of MCZs as intended. The worry is that the provision will provide a loophole unless “disturbs” is added, as features and animals that should be protected may be disturbed; they will not be as well protected as was originally intended. As drafted, the general offence still does not cover disturbance to the features of the MCZ. Disturbance can be very damaging, but it is much harder, on a case-by-case basis, to prove that that damage exists than that disturbance has occurred.

The clause should refer to disturbance of any animal in an MCZ that is a protected feature of that MCZ. As the Minister will know, that would also have the benefit of bringing the Bill into line with the provisions for sites of special scientific interest and those in the Wildlife and Countryside Act 1981.

There is concern that marine mammals that are identified—this is the critical factor—as a protected feature of an MCZ, such as cetaceans, dolphins, porpoises, seabirds and sea ducks, will be disturbed and move away from the source of the disturbance. That may cause them to suffer because they will be unable to feed adequately or will come under increasing stress, and the likelihood of their continuing to thrive will diminish. Such things can have a lasting negative impact on the animals’ ability to grow, reproduce and survive.

Disturbance can be caused by a wide variety of marine activities, such as fishing, dredging, marine construction, and oil and gas exploration and production. In some cases, it can even be caused by certain recreational activities, such as swimming, diving and boating. There are even cases where cetaceans have been disturbed by boats coming too close to them. On Second Reading, I argued that there is a case for looking carefully at the impact of sonar, particularly in the case of cetaceans, and the Minister may like to reflect on that. We would not want to constrain the activities or training carried out by our Ministry of Defence vessels, but it is worth looking at the impact that some of those activities might have on cetaceans. For seabirds, disturbance can be particularly damaging at certain sensitive times. For example, when birds are feeding, roosting, breeding or moulting, they will be more sensitive to the effects of disturbance.

It is important to note that including “disturbance” in subsection (2) does not turn all activities that could result in disturbance into offences. If the disturbance affects only animals that are not named features of the MCZ, or if it will not significantly hinder the achievement of the MCZ’s conservation objectives, no offence will have been committed. The amendment is not, therefore, a simple, all-encompassing provision that makes any kind of disturbance an offence.

It is welcome that clause 129 can be used to prohibit disturbance to animals or plants of any description in an MCZ. That is an improvement on previous nature conservation byelaws and it is broader than the inclusion of “disturbance” in the general offence would be, because it refers to animals or plants and does not rely on the subject of the disturbance being a named feature of the MCZ.

Although the ability to control disturbance in MCZs through byelaws is very useful, some conservation bodies do not consider the provisions to be sufficient as currently drafted. In particular, byelaw provisions under the Bill extend to only 12 nautical miles. Without byelaw-making powers, there is still a need for protection of offshore waters from activities that cause disturbances that pose a risk to the MCZ objectives. Therefore, the system clearly needs to be complemented with the general offence in waters beyond 12 nautical miles.

There is a concern that it is hard to prove that disturbance has occurred and the provision will be particularly hard to enforce, as I have mentioned, beyond 12 nautical miles. However, it will be equally hard to prove that disturbance has occurred in contravention to a specific byelaw, unless the byelaw imposes a blanket ban on a particular activity thought to be capable of causing a disturbance. In many cases, it would be disproportionate to completely ban an activity on the grounds that, if done recklessly or irresponsibly, it could cause a disturbance. Enforcement in the marine area, particularly in offshore waters, is clearly going to be challenging, but that is a universal problem for all offshore activities. I know that organisations which are concerned about strengthening the clause do not believe that that should be used as an excuse to avoid regulation in the marine environment.

I hope that the Minister will appreciate that the purpose of the amendment is to both probe the Government’s intentions and to seek clarity. Given the current drafting of the clause, there is a deep and justifiable concern that a disturbance of the type I have described could have a knock-on effect and damage those features that the MCZs have been created to protect. They will be damaged not simply through the killing or injuring of any animal, as the animals may well, as it were, experience their own demise, or be significantly injured by the kind of disturbing activities that I have described.

Do all the Government agencies that advised the Minister on the drafting of the clause, particularly Natural England, take the view that, as currently drafted, it is sufficient to provide adequate protection to animals in designated MCZs? Are there more exacting demands in having to prove that an animal has been killed or, in law, having to prove a definition of “injury”, rather than the offence of “disturbance”? That will clearly require a much higher evidential level of definition. I look forward to the Minister’s response. This is an important area, which clearly needs to be explored further.

Richard Benyon (Shadow Minister, Environment, Food & Rural Affairs; Newbury, Conservative)

This is an interesting amendment, which comes down to the definition of the word “disturbed”—the previous word in clause 140 is “recklessly”. “Disturbed” has a very wide descriptive meaning. I am constantly disturbed by the thoughts and actions of my children—and sometimes by those of my colleagues—but that is not relevant in this context. We have to think about the impact on an MCZ, because we could be limiting actions in an MCZ in the wrong sort of way.

I am inclined to support the hon. Member for St. Ives, provided that we do not damage the kind of activities that we want to see in MCZs. For example, tourism,  even eco-tourism, could in certain circumstances be described as disturbing wildlife in the marine environment. Certain sustainable fishing activities, such as recreational angling, could be permissible in or close to a MCZ, but they could be described in a pedantic following of the letter of the law as damaging. I support the hon. Gentleman’s intention and look forward to the Minister’s words on the impact that it will have, because I do not want unintended consequences in the protection provided to MCZs.

David Jones (Shadow Minister, Wales; Clwyd West, Conservative)

I want to draw the Minister’s attention to the representations that I have received from the CCW—I am sure that the hon. Member for Carmarthen, West and South Pembrokeshire will be pleased to hear that he does not have the monopoly on correspondence with that body. The CCW is an adviser to the Welsh Assembly Government on the Bill and other matters. It takes the view that clause 142 should be expanded to include disturbance of an MCZ. Its point, which the hon. Member for St. Ives has also made, is that that would be more intellectually coherent, because it would create a degree of uniformity with offences relating to SSSIs. Since we are talking about conservation of sensitive sites—whether marine or land-based—it is appropriate to introduce intellectual coherence into the Bill. I am interested to hear what the Minister has to say about it.

Nick Ainger (Carmarthen West & South Pembrokeshire, Labour)

I will not repeat what the hon. Member for Clwyd, West has said. We have both received the same communications, and I am sure that the hon. Member for Brecon and Radnorshire has also received correspondence from the CCW.

I am chairman of the Pembrokeshire coastal forum, which was set up nearly 10 years ago as a secretariat to bring together the public and private sectors, statutory agencies, individuals and charities to look at coastal issues in Pembrokeshire. At our AGM on Monday, I asked members whether the issue of disturbance should be in the Bill. They have all been avidly watching the progress of the Bill and all said reference should be made to disturbance.

The Pembrokeshire coastal forum includes the outdoor charter group—a range of 26 companies offering activity-based holidays on the Pembrokeshire coast. They have come together to produce the outdoor charter, which is aimed at protection and minimising disturbance. They are not just companies that take tourists round Ramsey island to see porpoise and seals. There are also organisations offering surfing and coasteering, field study council people—anyone who is involved in activity on the coast. It is a voluntary charter, and it has been self-policed and self-regulated surprisingly well, but the charter group admits that even its members occasionally cause unnecessary disturbance, which is sorted out between them.

The problem is that there will be literally hundreds, and at times thousands, of other individuals on the coast—on jet skis, for example—who are not there under the guidance of one of those companies, and they can, and do, cause serious disturbance. The charter group feels that the voluntary code, which has been worked out over the years and appears to be working well, should be given some teeth, so that it can be used  to regulate those individuals or groups not currently under the guidance of the signatories to the outdoor charter and so that enforcement can take place. It feels that we need to do more on that disturbance issue.

I know that that is not on the face of the Bill and am sure that the Minister will say that it can be included in byelaws, but I want an assurance that that matter will definitely be taken seriously, because disturbance can be just as damaging as the injuring, or even killing, of a marine mammal. If there is constant disturbance from jet skis during the seal pupping season, not only could pups die as a result, but that area might not be used by seals as a pupping site again. Disturbance is just as important an issue as the killing or injuring of marine animals, or any sort of animal. I would be grateful if the Minister were to respond positively and assure people across the board that disturbance is seen as an important issue, because people feel that it should be in the Bill.

Roger Williams (Brecon & Radnorshire, Liberal Democrat)

The Times reports today, hon. Members will be pleased to note, that Migaloo, a white humpback whale, is on its migratory path from the Antarctic to the Great Barrier reef for the breeding season and has been spotted off the coast of Australia. The Australian environment ministry has said that no one may approach within 500 m of the whale or fly lower than 600 m above it. I draw Members’ attention to that to demonstrate that the question of disturbance is one not only for the British Government, but for Governments across the world who are trying to protect their marine animals—yes, I have been lobbied by the CCW, but I thought that I would broaden the debate and give it an international flavour. [Interruption.] I have put a smile on Members’ faces this morning.

The management of MCZs could include details on what would be considered disturbance and what could be considered injury, or some other type of activity. I completely support the amendment and draw to the Committee’s attention to CCW’s views on the issue. The proposal has been imposed in other parts of the world, so it would not be new for Britain, but it is something from which we could gain experience and which we could implement in this country through the Bill.

Ann McKechin (Parliamentary Under-Secretary, Scotland Office; Glasgow North, Labour)

Good morning, Mr Pope. I welcome the contributions that have been made in this interesting debate.

Four features that need careful examination define the debate: one is the definition of disturbance, as the hon. Member for Newbury has mentioned; the second is what level of fines is appropriate; the third is what is proportionate to the offence; and the fourth, which is quite important, is the standard of proof.

I draw hon. Members’ attention to subsection (2)(b) which specifies that someone is guilty of an offence under the clause if, at the time of doing the act in question,

“the person knows, or ought to have known, that the feature to which the act relates is in, or forms part of, an MCZ”.

That is a high standard of proof, relating to what we call, in law, mens rea. It is necessary to show the mental intention behind the act, as well as the physical act  itself. That high standard of proof would, by definition, limit the prospects for prosecution, in comparison with the much lower standards of proof found in byelaws.

The Joint Committee that considered the Bill stated in paragraph 79 of its recommendations:

“We recommend that the Government insert the general offence referred to in the Marine Bill White Paper of damaging or destroying any species or habitat or other feature, for which a site has been designated an MCZ.”

The Government have done precisely that. We have reinstated the general offence provision, which will help to prevent deliberate and reckless acts of damage to a marine conservation zone.

I want to explain why we and the Joint Committee did not want to widen the general offence to include disturbance. Acts of disturbance will be an occasional and serious problem, as my hon. Friend the Member for Carmarthen, West and South Pembrokeshire has pointed out, but they are fundamentally different from deliberate or reckless damage. It is important that the Bill reflects that, because, as my hon. Friend has said, many incidents of disturbance are sorted out without prosecution by voluntary codes. That is somewhat different from incidents involving reckless damage or death. There is a difference in the definition, depending on the incident.

The matter comes down, first, to the difference in severity of the impact of what is done. Disturbance might, for example, be caused by people straying too close to a group of animals through innocent curiosity, although I think that if I saw a humpback whale I would move well back. Alternatively, the disturbance might come about because of an organised wildlife watching trip or through the use of machinery that emits a loud noise. A single act of disturbance is likely to have a temporary effect and will often be entirely accidental. In contrast, intentional or reckless acts of damage are likely to have longer-term and more permanent effects.

Secondly, what constitutes disturbance will depend on the protected features and conservation objectives of each MCZ. Byelaws provide a proportionate and effective mechanism to target specific activities in local areas and accordingly are the right way to control acts of disturbance in a MCZ, as opposed to areas of special scientific interest, which are in highly protected areas. MCZs often cover a wider spectrum of protection needs. That is why clause 129(3)(e) specifically states that byelaws may be made to prohibit or restrict the

“killing, taking, destruction, molestation or disturbance of animals of plants of any description in the MCZ”.

To give an example of that, an MCZ might be designated to ensure the protection of sea birds. The byelaw provisions in the Bill will allow us to provide targeted protection against disturbance and to impose movement restrictions at certain times of the year. Breeding seasons and nesting periods, which various hon. Members have alluded to this morning, are also relevant. Restrictions would thus be the minimum necessary and would be drafted to specify the offences and to be clearly understood by everyone.

Thirdly, byelaws will often be the most effective means of protecting a site from the general offence. That is because byelaws create strict liability offences. Prosecution under a byelaw will depend on proving not that an anticipated result occurred, but that a prohibited activity,  such as movement within a protected area, took place. In contrast, prosecution under the general offence would depend on being able to prove that the defendant intentionally or recklessly carried out a prohibited act that significantly hindered—or could have significantly hindered—MCZ objectives. That is, again, a high level of proof. The hurdle is lower for proving breach of a byelaw.

We are fully committed to preventing disturbance within MCZs, where there is scientific evidence to suggest that such an approach is required. I do not want to pre-empt the scientific evidence by suggesting that all conservation zones will need to be protected from disturbance, but I will reassure hon. Members on various points raised in this debate.

The hon. Member for St. Ives correctly pointed out that the byelaws extend to only 12 nautical miles. However, clause 124 contains a duty on public authorities to ensure that they must do their best to further the achievement of conservation objectives, including those relating to the impacts of sonar and other activities. Activities beyond 12 miles are generally licensable and controlled through the mechanism in part 4 of the Bill. I assure him that sonar can be regulated through the licensing provisions and the nature of conservation byelaws. All public authorities, including the Ministry of Defence, will be subject to the byelaw restrictions in inshore areas and are under a duty in inshore and offshore waters to further conservation objectives. Under the Bill, nature conservation bodies can offer guidance on that.

The hon. Member for St. Ives also mentioned Natural England’s evidence. Natural England has stated that in the vast majority of cases in SSSIs, writing to people to advise them that they may be in breach of byelaws and subject to a fine is the most effective way to deter further breaches.

Andrew George (St Ives, Liberal Democrat)

On the effectiveness of existing regulations, will the Minister clarify whether the introduction of the Bill, as drafted, will either diminish or remove existing levels of protection available through the Wildlife and Countryside Act 1981, as amended? I understand that last year a conviction was successfully brought against individuals in a case involving the disturbance of cetaceans off the Kent coast. It would be interesting to know whether the Bill will lessen the ability of authorities to obtain such convictions.

Ann McKechin (Parliamentary Under-Secretary, Scotland Office; Glasgow North, Labour)

I assure the hon. Gentleman that the Bill will not remove protections to that effect contained in existing legislation. It is certainly not our intention to weaken existing protections.

My hon. Friend the Member for Carmarthen, West and South Pembrokeshire mentioned the good work of the Pembrokeshire coastal forum. I confirm that the Marine Management Organisation must consult such groups under clause 136(6) and (7). It is certainly our intention—it is implicit—that when it comes to considering byelaws, local organisations on the ground should be fully involved in the consultation on what is best. Their local knowledge will be valuable in that regard.

Accordingly, I believe that the Bill, as it stands, provides a proportionate and flexible way of dealing with disturbance and the right level of sanctions. I hope that on the basis of what I have said, the hon. Member for St. Ives will feel able to withdraw his amendment.

Andrew George (St Ives, Liberal Democrat)

I am grateful to the Minister for her reply. She drew attention in her response, as I did in my opening remarks, to clause 129 and the provisions available there for the creation of byelaws to add further protections in respect of the intentional and reckless disturbance of animals that contributes to their demise. That is reassuring.

A lot of the bodies that are concerned that the Bill, as drafted, does not contain a general offence as proposed in the amendment are worried because achieving the attachment of protection from reckless and intentional disturbance will now depend on the successful introduction of byelaws, with all the various hurdles over which byelaws must inevitably go, including the Secretary of State. The hon. Member for Newbury rightly emphasised that we are not talking about—as the Minister described, I think, in her response—simple, innocent curiosity without the intention to disturb or contribute to the demise of an animal, but about a reckless or intentional disturbance that would have a lasting impact on an animal. I hope that the Minister will acknowledge that a case similar to one that I referred to in an earlier intervention—I shall not mention names, as the matter is on the record—could be dealt with through byelaws, if, for example, there is an intention to protect particular cetaceans within an MCZ.

Ann McKechin (Parliamentary Under-Secretary, Scotland Office; Glasgow North, Labour)

I welcome the hon. Gentleman’s comments; he has made some good points. To reiterate what we have already said: we see the MMO as a proactive body. We do not think that there will be any reluctance to create byelaws; the body will have a duty to do so under conservation objectives. Byelaws are implicitly the means to achieve such ends. We anticipate the MMO carrying out exactly the type of activity that the hon. Gentleman has discussed and dealing with the need for protection, which will be the core of its work. I hope that I have reassured the hon. Gentleman.

Andrew George (St Ives, Liberal Democrat)

I think that all parties want to see such an organisation—a proactive body that is keen to be responsive to the concerns expressed by stakeholders, including conservation bodies that wish to uphold the principles and objectives of designating an area an MCZ. In the case off the Kent coast, a conviction was successfully enforced on 16 April 2008, and it is worth reflecting on that example.

In the previous year, the two gentlemen who were convicted for that offence had been involved in trying to lift a bottlenose dolphin out of the water by holding on to its dorsal fin. The animal was not injured or killed, but the impact on it was long lasting. The police were called and the men were arrested and charged with recklessly disturbing a dolphin under the Wildlife and Countryside Act 1981, as amended. Our amendment seeks to ensure that reckless and intentional disturbance can ideally be made a general offence, because once a marine conservation zone has been designated, it is clear which features and animals are to be protected.

I have listened to the Minister, and I hope that she will take on board the concerns expressed. Providing that we can be reassured, as the Bill goes through its later stages, that there will be little or no obstruction to legislating for the kind of byelaws that we need to  provide that kind of protection, I am happy to have had the debate and probed the issue and to have received the assurances that the Minister has offered so far. I beg to ask leave to withdraw the amendment.