Clause 140
Marine and Coastal Access Bill [Lords]
9:00 am
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.