Committee (5th Day) (Continued)

Marine and Coastal Access Bill [HL] – in the House of Lords at 7:58 pm on 23rd February 2009.

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Votes in this debate

Clause 64: Applications

Amendment 101ZA

Moved by Lord Tyler

101ZA: Clause 64, page 36, line 36, leave out "or expedient"

Photo of Lord Tyler Lord Tyler Spokesperson for Environment, Food and Rural Affairs and Constitutional Affairs 8:30 pm, 23rd February 2009

It will surprise and delight the Committee to hear that my noble friend Lord Greaves is not sufficiently indisposed to prevent him doing some very important research on this issue, and so I am fully briefed. He obviously has access to his copious library and to the internet, which is even more copious. However, there is a serious point here and I hope that, having given the Minister due warning of this issue, his officials will have found precedents for the use of this curious phrase. If something is necessary, it surely is unnecessary to add "or expedient"; either it is necessary or it is not. What is the point of adding "expedient" unless it is just expediency?

"Expedient" has two different meanings. One is fairly benign—in that circumstance perhaps there is a case for including it here—the other is loaded with a deprecatory meaning. I want to examine that briefly with the benefit of my noble friend's research. The Oxford English Dictionary defines "expedient" as,

"conducive to advantage in general or to a definite purpose; fit, proper or suitable to the circumstances of the case", and,

"in depreciative sense, 'useful' or 'politic' as opposed to 'just' or 'right'".

I am sure that the Committee is in favour of things that are just and right but is it also in favour of things that are merely useful and politic? That is only one definition. The first definition in the Concise Oxford Dictionary 1991 is,

"advantageous, advisable on practical rather than moral grounds".

At this time of night, I hope that we do not need to explore whether we want to have something that will be immoral; surely we are not in that business. The second definition is, "suitable, appropriate".

Collins Cobuild Essential English Dictionary 1998 states:

"An expedient is an action or a plan that achieves a particular purpose, but that may not be morally acceptable".

The Committee is not full to the rafters with Members, but if it was I am sure they would not be terribly keen on something that was not morally acceptable. My noble friend discovered a further definition in Merriam-Webster's Online Dictionary. It states:

"Expedient usually implies what is immediately advantageous without regard for ethics or consistent principles".

I await with bated breath to hear what the Minister will say to justify something that has no regard for ethics or consistent principles.

Finally, no Liberal or Liberal Democrat can go into the business of definition without quoting John Stuart Mill. He said:

"The expedient, in the sense in which it is opposed to the right, generally means that which is expedient for the particular interest of the state itself".

This is a very small amendment based on the concept that "necessary" is quite enough; nothing else is necessary and it simply is not expedient. I speak also to Amendment No. 101ZB, which seeks to leave out "or expedient" at line 40 of page 36. I submit that "necessary" is quite sufficient, and that nothing else is expedient. I beg to move.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords

The noble Lord, Lord Greaves, never ceases to amaze me. Even when ill he is still assiduous in his activities and research. How much we wish he were with us to expand on that most important point. Before replying to the debate, I have just been informed that there is an error in the list of amendments. In the next group, we should be taking Amendment 101BZBC. Because of degrouping there has been a slight error.

I shall try to set the noble Lord's mind to rest on the matter. Clause 64(4) allows the licensing authority to require the applicant to provide further information or articles or to permit investigations, examinations and tests that it considers,

"necessary or expedient to enable it to determine the application".

Subsection (5) allows the licensing authority to charge the applicant a reasonable fee to carry out those investigations, examinations and tests.

I understand the point behind the amendment moved by the noble Lord, Lord Tyler. We want the licensing authority to make its decisions as expediently as possible based on the best available information. Clearly, determining licences involves the exercise of judgment. The more information that the licensing authority has about any proposed development the better informed its decision can be. Making a determination is not just making a yes or no decision on whether to grant a licence. It is about attaching the right conditions that will best mitigate the adverse impact of any development or activity. Carrying out tests and investigations is an efficient way of allowing the licensing authority to use its judgment, which will be based on experience and expertise of marine matters. It will gather information that it considers useful in making a well informed and reasonable decision.

An example of a common type of test conducted is one that requires an applicant to provide sediment samples for chemical or particle size analysis in order to identify if it contains unacceptably high levels of organic or inorganic contaminants and how or if the material can be predicted to disperse from a disposal site. In some cases it will be obvious that information is necessary before the licensing authority can be confident of being able to make any sort of determination. An obvious example would be information pertaining to the location of the activity. However, in many cases it will not be so clear cut. Some tests and investigations will be open to challenge on whether they were absolutely necessary for a determination to be made, but which would undoubtedly contribute to a more effective and better determination. Also when a test has been carried out that has confirmed that there is no adverse environmental risk, or even perhaps has failed to produce any meaningful results, a case might be advanced that the investigation was not shown to be necessary.

We are conscious not to overburden industry with a requirement to conduct test after test where the impacts of an activity are likely to be negligible. However, we think this matter is more appropriately addressed operationally as part of ensuring that licensing authorities make effective and sensible decisions based on the particular facts of the case in question. We do not want to hamstring in any way the ability of the licensing authority to be able to make the most effective decisions that it can. We feel that removing the word "expedient" from the legislation would do this. I was interested in the tour de force dictionary definitions of "expedient". Would it be helpful if I gave the Government's view of the meaning of the word? It is the first definition given by the noble Lord that it is,

"conducive to advantage in general or to a definite purpose; fit, proper or suitable to the circumstances of the case", which I find entirely satisfactory and useful. The noble Lord then asked what precedents there were for using the word "expedient". I am glad to say that we have found two. One is from Section 112A(4) of the Energy Act 2004:

"if a notice under subsection (1) requires information in connection with a function of the Secretary of State under Section 107(1) or (4), the notice may require the provision of information or documents which the Secretary of State considers are necessary or expedient for the purpose of exercising those functions".

Section 43 of the Natural Environment and Rural Communities Act 2006, under "Possession of pesticides harmful to wildlife", has two parts. The second part says:

"The Secretary of State may not make an order under subsection (1) unless he is satisfied that it is necessary or expedient to do so in the interests of protecting wild birds or wild animals from harm".

In essence, there is a precedent and it is sensible and proportionate to allow us to have "expedient" in the Bill.

Photo of Lord Tyler Lord Tyler Spokesperson for Environment, Food and Rural Affairs and Constitutional Affairs

I do not know how the noble Lord, Lord Greaves, would respond to that, but I think that he would express gratitude to the Minister for establishing the precedents—this House likes its precedents. I still think that "expedient" in all other definitions, which have not been quoted by the Minister but which my noble friend referred to, has a deprecatory sense; that is even in the Oxford English Dictionary. "Necessary", "desirable" or "appropriate" might be more suitable here. The noble Lord is clearly trying to make this legally watertight—to coin a phrase—so that it will not be challenged. So be it; that is right. I suspect that "expedient" is just as likely to be challenged by some clever lawyer as the other words that we have referred to as possible alternatives. Nevertheless, this is, I am sure, not an issue on which we want to spend any more time. I therefore beg leave to withdraw the amendment.

Amendment 101ZA withdrawn.

Amendment 101ZB not moved.

Clause 64 agreed.

Clause 65: Notice of applications

Amendment 101ZC

Moved by Baroness Hamwee

101ZC: Clause 65, page 37, line 10, at end insert—

"(2A) Having received an application for a marine licence in an inshore region, the appropriate licensing authority must notify—

(a) in the case of an application in England, the appropriate local authority or local authorities and the appropriate inshore fishing conservation authority,

(b) in the case of an application in Wales, the appropriate local authority or local authorities and any person or body that the Welsh Ministers require to be notified.

(2B) In subsection (2A) "local authority" means—

(a) a county council in England,

(b) a district council in England,

(c) a London Borough,

(d) the Council of the Isles of Scilly and

(e) a Welsh county or district council."

Photo of Baroness Hamwee Baroness Hamwee Spokesperson for Communities and Local Government 8:45 pm, 23rd February 2009

Amendment 101ZC is part of a long group. I hope that I manage to pick up all the amendments; again, there are amendments tabled by my noble friend Lord Greaves. Amendment 101ZC to Clause 65, which is about publishing notification of applications, requires the MMO to notify the principal local authorities and the inshore fisheries and conservation authorities of applications for licences in their areas. Those who are familiar with my noble friend's amendments will not be surprised to see a provision for involving local authorities, and quite rightly so.

Councils, in my noble friend's view and mine, should have a statutory right to information about applications being made. The Bill at present says that the licensing authority must publish notice of the application or require the applicant to do so,

"in such manner as the authority thinks is best calculated to bring the application to the attention of any persons likely to be interested in it".

No doubt local authorities and IFCs would fall within this on any common-sense point of view, but they are important statutory bodies and should not fall foul of the Government's resistance to including statutory consultees and so on.

In these days of electronic communications, it is very easy to send out e-mail lists—I am sure that noble Lords get far more notifications of all sorts of things by e-mail than they really want—and that would be a useful and easy thing to do. Indeed, local authorities often send out lists of planning applications in this way.

Amendment 101BZBC is a similar amendment to require these bodies to be consulted on applications as part of the process under Clause 66. It is about a right of consultation, not just notification, so it is stronger than the previous amendment, but the underlying philosophy—the importance of these bodies—is the same.

Amendment 101BZBD is also about the consultation process. Clause 66(6) provides:

"A licensing authority may by regulations make further provision as to the procedure to be followed in connection with", various things. The amendment would add "the consultation process". This really amounts to the licensing authority publishing the system of consultation that it will follow, because clearly those who learn of an application, by whatever means, need to know that they can make representations, how they can make representations and so on.

Amendment 101BZZB is also an amendment to Clause 66, which lists the things that the licensing authority must have regard to—I think that the Minister has referred to this list already today—including the environment, human health, preventing interference with legitimate uses of the sea and,

"such other matters as the authority thinks relevant".

The amendment to delete those words is a probing amendment, and I invite the Government to give some examples of what they think the authority might think relevant in this context.

Clause 66(3) provides that the licensing authority,

"must have regard to any representations which it receives from any person having an interest in the outcome of the application".

Those words after "person" would be deleted by Amendment 101BZAB. Again, the amendment is probing. What is meant by "an interest" in this context? Mostly, in documents that have a legal effect, "interest" is understood to mean a financial interest, ownership, or an interest that might be affected by an application. However, does it mean having an interest in the sense of, "This is something that we are concerned about"? In other words, is it wider? If it is the latter, surely the point could be met by the deletion of the words. I suspect that it is the former, though I hope that the licensing authority will have regard to applications wherever they come from.

We have many examples of applications for development where I would certainly say that those who have a concern about a projected development have a right to be heard—I use that in the widest sense—as well as those who have a legal interest in the subject matter. I suppose that the terrestrial example in my mind is Heathrow Airport, although the Minister would counter this by saying that it should be a matter of policy. A lot of people have an interest in the land that would be the subject of development at Heathrow, but many others have a concern about it.

I come to Amendment 101BZZA. When one becomes a Member of your Lordships' House, one finds all sorts of strange customs. The lettering of amendments is among them. I could swear that it has changed since I joined this House, but maybe not.

Photo of Baroness Hamwee Baroness Hamwee Spokesperson for Communities and Local Government

We become so involved in the Bill as we read it that it is irresistible. But it is not that; I think that the order of the zeds and so on has changed. I am getting support from behind me.

Amendment 101BZZA aims to strengthen the duty to protect marine biodiversity when issuing a licence. There is a duty to have regard to the need to protect the environment, but that is a broad term. Again, this is an amendment that we tabled following an approach by the Wildlife and Countryside Link. We share its concern that a broad definition could result in every project trading off site-specific biodiversity against some more general, indeterminate global environmental gain.

Amendments 101BZAC, 101BZBA, 101BZBB and 101BZBD all deal with consultation on licences. I apologise to your Lordships that I did not take these at the same time as the other amendments to Clause 66. The first of these would impose a requirement for the authority to consult all interested parties—and please do not tease me about the use of the word "interested". The authority would be required to seek and take account of advice from the statutory conservation bodies and all who know about these things. The detail of mitigating impacts, of imposing conditions and so on is so much within the expertise of a number of organisations that the Government, I am sure, would want them to be consulted in the application procedure.

The Government's response to the Joint Committee's report focused on why a list of statutory consultees was not desirable, but we think that a simple requirement to consult without naming bodies or persons would meet the point. As in the previous amendment, electronic communication could be a blessing, not just a curse. There is also a proposal to change "may" to "must"—a familiar amendment—and to strengthen the Bill by leaving out "from time to time".

As for the other amendments in this group, Amendment 101BZAZA is consequential—or pre-sequential, if that is possible. The other one, Amendment 101BZZB, would take from Clause 66 the words,

"and such other matters as the authority thinks relevant".

However, I have made a note to ask the Minister whether that in any way links to a provision in Clause 67 that puzzled me, albeit too late to table an amendment. I am sorry not to have given notice of the question; he may feel that he cannot deal with it this evening. Clause 67(8) allows the Secretary of State to certify that it would be contrary to national security to hold an inquiry, or for the public or particular people to be admitted to an inquiry. I thought that that was—let me use a neutral term—an interesting provision. On these Benches, we have an instinctive reaction against holding an inquiry in private or excluding certain people from an inquiry. I find it particularly curious that an inquiry could be public but that certain people could be kept out of it, unless of course they were causing a disturbance and, after due warning or whatever, the chairman of the tribunal or whatever it might be ordered them to be excluded. I do not know whether there is a link; I admit that this is a little tenuous, but I did not want to let the Committee go by without raising the matter to see whether we could explore why it is necessary.

I am grateful for your Lordships' indulgence on that long group of amendments.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions

We agree with the noble Baroness that relevant authorities should naturally be informed of applications for licences relevant to their areas, and should be able to feed any views of that application back to the licensing authority. I hope that the Minister will be able to reassure her that the Bill allows for that, and that it is the Government's intention that interested and expert representations will be given the attention that they deserve.

Again, I have some sympathy with the noble Baroness's concern that licences should be awarded only after considering the effect on biodiversity, but I am less supportive of the amendment to remove the provision allowing other matters to be considered. As our discussions on Clause 2 made clear, the list of matters that should be considered relevant for a marine body to have regard to when exercising functions is extensive, as well as being a challenge to define. It would be more appropriate to retain some flexibility in the area. Our own amendment in the group—Amendment 101BZBBA—makes it clear that appropriate public authorities, local authorities and IFCAs should be consulted before any application is determined. I hope that the Government will agree that that should be part of the process.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords

This is a long group of amendments, and I congratulate the noble Baroness on a tour de force—on picking them all up and explaining them as effectively as she did. I shall take them individually, perhaps in a slightly different order from the one in which she and the noble Lord did.

I shall start with Amendments 101BZZA and 101BZZB, which insert additional considerations that the licensing authority must take into account when determining the application for a marine licence. Amendment 101BZZA makes it explicit that the need to conserve biodiversity should be taken into account. Amendment 101BZZB does away with any considerations not listed. Already it is clear that a number of sometimes competing interests would want to get a mention in the clause.

Before addressing specific amendments, it might be helpful if I explain how licensing decisions will take into account sustainable development. As I have said in earlier debates, the marine policy statement will articulate our shared vision, and detailed policies and objectives, for the sustainable development of the marine area. It will bring together all our marine policies, covering social, economic and environmental considerations, to set a clear and consistent framework for decision-makers. Marine licensing authorities will take their decisions in accordance with policies set out in the marine planning statement and subsequent marine plans. In this way, marine licensing will give clear effect to the policies set out in the MPS and the marine plans. Case by case, licensing authorities will obtain relevant scientific input from expert bodies such as CEFAS, and information from other consultees, to allow evidence-based, holistic consideration of the overall impacts and benefits of any particular activity, while having due regard to the need to protect the environment and human health, and prevent interference with other users of the sea. These might be described as baseline considerations that have to be taken into account.

Authorities will be able to add conditions to a licence that will help to mitigate any adverse impact of a proposal. If an activity is to take place in a marine conservation zone, the licensing authority will have further regard to the impacts of the activity on the conservation objectives of that marine conservation zone. The general considerations that a licensing authority can take into account by virtue of Clause 66(1) are therefore already broad.

Amendment 101BZZA would separate the need to conserve biodiversity from the need to protect the environment. Under the Food and Environment Protection Act, the licensing authority must have regard to the marine environment and the living resources that it supports. However, the distinction between the marine environment and living resources may no longer be considered sound. International commitments on the protection of the environment in general, and of marine biodiversity in particular, now emphasise the holistic nature of marine ecosystems. It is the health of the ecosystems in the sea that contributes in large part to determining whether the marine environment as a whole is healthy. The quality of the seawater, seabed and seashore are vital, but so too are the things living in them, or affected by them.

We do not want to limit environmental considerations to the marine environment alone. For example, it may be necessary to consider the impact on the neighbouring terrestrial environment, to encourage coastal integration, and also to consider the need to protect the environment from global damage. It may also be necessary for the decision-maker to assess the relative significance of the effect of a proposed activity on the global and local environments.

Amendment 101BZZB would remove the licensing authority's ability to consider any factor not listed in the Bill. We want the licensing authority to have the freedom to make decisions based on the particulars of any given case and on the evidence submitted to it. Given the sheer variety of activities that take place in the marine environment, it is important that anything of relevance to any single activity is considered. Indeed, it would be remiss not to do so. Examples of things that might need considering are other people's legal interests in, or rights to, the land; international good practice guidelines on how certain activities should be carried out; broader social and economic factors; and government policy as laid out in the relevant marine plan. This provision does not detract from the importance of the need to protect the environment and human health, or to prevent interference with other legitimate users of the sea. However, it does help the licensing authority to make holistic, sustainable decisions.

The noble Lord, Lord Taylor, spoke to Amendment 101BZBBA. This would introduce a requirement on the licensing authority to consult the relevant IFCA or public authority if the application could influence a coastal, estuarine or nearshore zone. Amendments 101BZBA and 101BZBC would require the licensing authority to consult local authorities in England and Wales.

We covered the so-called question of statutory consultees in an earlier debate and I do not want to go over old ground but, for a number of reasons, we are worried about having a list. First, there is the risk of the perception of two levels of consultees, with those listed in the legislation being seen as more important than those not listed. Secondly, there is the question of who should be a statutory consultee. Clearly, a diverse range of activities will require a marine licence. Consultees appropriate to an offshore wind farm could be very different from those for a small jetty at the bottom of someone's garden.

Although consulting the appropriate bodies is essential to effective decision-making, forcing a licensing authority to consult every statutory consultee, regardless of whether it thinks that the application has any impact on its functions, might increase the time and cost of determining small applications which have minimal impacts. There is also the issue of proportionate regulation in this regard.

A list is also inflexible, as we would need to amend primary legislation to take account of any changes to the bodies listed. A prime example is in Part 2 of the Food and Environment Protection Act, which, despite being concerned with the environmental impacts of deposits in the marine environment, requires consultation with the Food Standards Agency. Another example of the inflexibility of using primary legislation is the National Parks and Access to the Countryside Act 1949; we are having to use this Bill to update the list to make it more appropriate for reports on long-distance routes.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 9:00 pm, 23rd February 2009

I have been mulling over whether to ask the Minister about one matter. He has tempted me by quoting the example of a small jetty at the bottom of someone's garden. That brings us firmly back to the issue of that shared zone between high water and low water where, absolutely rightly, local authorities already have a power. Surely, for that reason alone, even if the Minister does not want a long list, they have a particular reason to be consulted because they already have planning powers over that area.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords

I knew I should mention that small jetty at the bottom of someone's garden, but I now very much regret it. In those circumstances, of course I would expect a local authority to be consulted, but there is a general problem with lists. Perhaps I can turn to the issue when I come to the amendment on local authorities. My general point is simply about lists in primary legislation. This is an area where legislation is pretty rare, so you have to be wary about what you put in the Bill for fear of seeming inflexible.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions

The Minister was addressing the amendments I have tabled. I should remind him that the wording is,

"consult any relevant public authority or IFCA".

It is not a list. It is a matter of considering what is relevant to the application and whether it should be considered. It is specific. If IFCA ceased to exist, no doubt there would be legislation for a replacement body, which would replace its functions in previous legislation. It is nothing more than putting into the Bill what the Minister is saying—that licensing authorities would be consulted, because that is what they are about. They want to get it right. There is no list; it is just a matter of procedure. I am surprised the Minister is taking such a hostile view.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords

I hope that the noble Lord does not think me hostile to his intent. I fully accept that the amendments in this group are partly probing and partly seeking to improve the consultative process, so I am sorry if I give the impression of hostility. I am rather trying to explain why there might need to be a more flexible approach. However, as I go through this, I also hope to reassure the Committee that there will ultimately be an effective process of consultation. This is not a fierce argument between us; it is about the general approach.

If I might explain how we see the licensing authority doing this, we might perhaps reach a conclusion on whether it is the right approach. We envisage the licensing authority producing guidance on who should be consulted for which types of application. That is simply good practice, enabling staff to take a consistent yet flexible approach to consulting those persons most likely to have an interest or expertise in any particular application while seeking to minimise the burden on both consultees and the developer.

The Marine and Fisheries Agency has a list of those bodies that it regularly consults, depending on the expertise needed. I gather that the list includes bodies such as the Centre for Environment, Fisheries and Aquaculture Science; the Crown Estate and Duchy of Cornwall; English Heritage; the Environment Agency; the Joint Nature Conservation Committee; local harbour authorities and planning authorities; the Maritime and Coastguard Agency; Natural England and the Countryside Council for Wales; the National Federation of Fishermen's Organisations; the sea fisheries committees—the precursor to IFCAs—and Trinity House. Those are some of the bodies consulted at present under FEPA and the Coast Protection Act, without any specific legislative requirement to do so as the amendments propose.

That list is relevant to Amendment 101ZC, which would require the licensing authority to notify the relevant local authorities of any applications that it receives for activities or developments in the inshore region. Clause 65(1) places the licensing authority under a duty to publish notice of any marine application. That goes beyond the Food and Environment Protection Act 1985, which makes no such provision. Clause 65, as drafted, is designed to force the licensing authority to bring an application to the attention of persons who, in its opinion, are likely to be affected by or interested in it. It must be the case that local authorities would be included when the marine development is likely to affect the inshore region or the owners of transport infrastructure. Additionally, Clause 66(3) requires the licensing authority to have due regard to any representations that it receives from any person having an interest in the outcome of the application. That, too, must include local authorities. On top of that, Clause 66(4)(b) gives the licensing authority the power to consult any person or body that it sees as having an expertise in any matter arising from an application, which would clearly include local authorities if the development was in their jurisdiction.

We see these provisions, then, as allowing interested parties to have their say on licensing applications, while requiring the licensing authority to take into full consideration any points made by local authorities, or any other body, interested in or impacted by proposed development or activity. I feel that we have set out the broad principles and powers in the Bill to allow the licensing authority to use its professional discretion about whom to consult on a case-by-case basis, but in all the circumstances that I mentioned I have made it clear that local authorities will be consulted.

On Amendment 101BZBB, I need to clarify the effect of Clause 66(4)(b), which makes it clear that the licensing authority can take into account the views of other bodies on particular cases. Clause 66(4)(a) makes it clear that it can also consult about its general approach to exercising its functions, but it necessarily cannot do that continuously or every time it undertakes a function—hence the inclusion of the words "from time to time". It is a point of administrative process in giving people affected by those functions an opportunity to comment on and inform them.

Amendments 101BZAZA and 101BZAB would place a requirement on the licensing authority to have regard to representations that it receives from any persons, not just those who have an interest in the outcome of the application. Amendment 101BZAC would have two effects: first, it would place a requirement on the licensing authority to take account of representations from people with particular expertise in any matter associated with the development; and, secondly, it would force the licensing authority to publish details of how it dealt with any representations and any reasons for not following expert advice. Amendment 101BZBD would provide a power for the licensing authority to set out in regulations more detail on the consultation process for applications. Amendment 101BZBE would make it clear that any such regulations could include provision for notifying any persons who make representations during an application as a result of that application and for the advertising of each licensing determination more broadly.

On the specific question raised by the noble Baroness, Lady Hamwee, by "an interest" in the outcome of an application, we mean not simply a legal interest, such as right, title or legal share in the outcome, but people who are directly affected by it in some way. The licensing authority must have regard to representations from such people. I respond positively to the noble Baroness's supplementary question. There is nothing to prevent the licensing authority from paying regard to representations from people without the kind of interest that I have just described, including those who may have expertise in any particular area. It is hard to imagine, for instance, that the licensing body would not have regard to a representation from an expert body that it had directly consulted. However, we do not think that there is a need for express provision in the Bill. In some cases, a large number of sometimes frivolous representations may be made by those without an interest, and there is an issue about having a legal obligation to have regard to all of them, which could be bothersome and time-consuming. We are trying to get the right balance between proper consultation taking regard of views and proportionate regulation.

The licensing provisions laid out in this part establish the overarching framework and principles for the new licensing regime. Under Clause 66, each licensing authority will produce secondary legislation that lays out all the applications and decision-making processes in more detail. These details are something on which we want to work closely with all interested parties, including NGOs and industry. We are planning to launch a first early consultation on this legislation in the next few months, followed, subject to the passage of the Bill, by a further consultation on the draft statutory instruments. We want to work closely with all relevant organisations on that. Consultations are a key part of the applications process, all aspects of which will be worked up in regulations under Clause 66(6), so we do not see a need to make specific reference to the consultations process in subsection (6). We plan to include in these regulations the issue that noble Lords have raised in their amendments.

Amendment 101BZBE is about when and how the licensing authority should publish details of how it dealt with any representations received, whether and when it should notify any person or bodies that made representations in relation to any application of the determination and whether to advertise it more generally. This is something that is done under regulations such as for local planning applications and is something to which we will give careful consideration. It is our intention that these issues should be addressed in secondary legislation and we want to work with interested bodies in putting forward sensible and efficient solutions.

On the question the noble Baroness, Lady Hamwee, raised, Clause 66(1) is about allowing the licensing authority access to all the facts needed to make a holistic, evidence-based decision, and Clause 67(8) is about national security as a clearly necessary provision, although we would expect the licensing authority to need to use that very rarely. I will write to the noble Baroness with more details about the circumstances in which we think that might arise.

I have responded at some length but these are important matters. As a general comment, we believe that the Bill is sufficient, that the necessary provisions are there and that they allow the process to be carried out in a proportionate way. We are wary about the listing which a number of amendments propose.

Photo of Lord Tyler Lord Tyler Spokesperson for Environment, Food and Rural Affairs and Constitutional Affairs 9:15 pm, 23rd February 2009

I listened with great care to the Minister but I do not feel he has dealt adequately with Amendment 101BZBA, which is the famous may/must dilemma. He needs to look carefully at Clause 66(4) because, frankly, it does not make good sense at the moment. It states:

"A licensing authority may from time to time consult any person or body it thinks fit".

There are two qualifications already. It is a very weak statement. If, as the Minister was saying earlier, it is so obvious that the licensing authority has to do this, why put the subsection in there at all? It is so permissive and obviously not mandatory that the licensing authority will, in these terms, ignore it. If it is going to be covered by secondary legislation, which the Minister implied in a more general sense about this group of amendments, why is it here as well? There may be a better case for making subsection (4)(b) permissive, but these qualifications in subsection (4)(a) offer a let-out for the licensing authority if the wording is left as vague as that. I do not think that is satisfactory. I acknowledge that the Minister's response to many of the other points raised by my noble friend Lady Hamwee and others has been substantial, but on this amendment it has not been sufficient. Since it has the support, unusually, of both opposition Front Benches, I hope he will be able to give us a better answer or at least undertake to look at this again.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords

The noble Lord accepts that there is a distinction between subsections (4)(a) and (4)(b). Subsection (4)(b) clearly relates to a case-by-case issue and subsection (4)(a) is rather more about the general approach. I think that that is a fair distinction. He says that because of the word "may", the licensing authority will not use it. I beg to disagree. The discretion contained and implied by the word "may" as opposed to "must" is perfectly appropriate. It is entirely right to expect the licensing authority, where appropriate, to undertake the consultation contained in subsections (4)(a) and (4)(b) and "may" fits the circumstance.

Photo of Baroness Hamwee Baroness Hamwee Spokesperson for Communities and Local Government

I, too, was going to point out that a power is not the same as a duty. I will not attempt to run through all the points. Like my noble friend, I acknowledge that there is a good deal in much of what the Minister says and I understand the points he makes. Local authorities are a special case, however. We are labouring on the Local Democracy, Economic Development and Construction Bill elsewhere and some of us keep arguing that representative democracy is what local authorities do, and they should be recognised as having a particular status because they have a particular role. As for the definition of persons who are interested, the Minister's definition seems to be somewhere in between the two examples that I used.

I am grateful to the Minister for his offer to write to me about Clause 67(8). Having noticed this very late in the day, we may well want to come back to it, if only to get his answer to me on to the record. One understands that there are matters of security that may need a very particular approach, but they are so particular that it is right that they should be on the record. I thank him for his very detailed response to all my amendments, and I beg leave to withdraw the amendment.

Amendment 101ZC withdrawn.

Clause 65 agreed.

Clause 66: Determination of applications

Amendment 101A

Moved by Lord Taylor of Holbeach

101A: Clause 66, page 37, line 30, after second "the" insert "local and global"

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions

We are still on the determination of applications. In moving Amendment 101A, I shall also speak to Amendment 101B.

As your Lordships will no doubt recall, I tabled similar amendments when we discussed marine policy statements. Those amendments were not accepted, primarily on the ground that including a list—we are back to the list again—that does not encompass all permutations of sustainable development risks overemphasising some at the expense of others. To head off that criticism of these amendments at the start, I emphasise that they are not intended to ensure that renewable energy should be given preferential treatment when applying for licences, although I should add that they derive from a briefing from the British Wind Energy Association; they are intended merely to allow for a debate on the meaning of paragraph (a), under which licensing authorities must have regard to protecting the environment.

As my amendment makes clear, "environment" can mean very different things to different people. Protecting the local environment would no doubt result in care being taken to ensure that the pollution or degradation of the surrounding area is kept to a minimum, and perhaps that the recreational needs of people living in the immediate coastal area are met. When we look at the global environment, however, the results are very different. A wind farm might have a negative impact on the local environment in a small way but have enormous benefits for the global environment.

I hope the Minister will accept—these matters are close to his heart—that it is right and proper that this reference to the global environment and to climate change should be explicit in the Bill. I beg to move.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords 9:30 pm, 23rd February 2009

It is very tempting to do so. I fully accept the reasons why the noble Lord, Lord Taylor, has proposed the amendments.

Amendment 101A seeks to test the meaning and concept of "environment", and introduces the concept of the local and the global environment. He gave the very good example of the tension between the local environment and renewable development, which would contribute to the global environment but might have an adverse impact on the local environment. This was dealt with in the Explanatory Notes to Clause 66, which say:

"The reference to the 'environment' should be given its ordinary meaning".

My understanding is that that means that it should include both the local and the global environment, the natural environment and, indeed, any site of historic or archaeological interest. The natural environment includes the physical, chemical and biological state of the sea, the seabed and the seashore, and the ecosystems within it or those that are directly affected by an activity, whether within the marine licensing area or otherwise.

The problem with defining the term "environment" more explicitly is that you might narrow the definition rather than broaden it. We want the definition to be as broad as possible to encompass all the possible impacts that a development can have on the environment. We clearly want the licensing authority to have the freedom to make decisions based on the particulars of any given case and the evidence submitted to it. It should not be restricted by a narrower definition of what it can and cannot consider, which would in turn reduce its ability to make sustainable, holistic decisions.

Amendment 101B would give the licensing authority explicit duties to consider the impacts of developments on mitigating climate change and the need to maintain security of energy supplies. We consider that the licensing authority can already consider the impacts of mitigating climate change as part of its consideration of global environment factors. Climate change is possibly the greatest challenge facing humankind and its importance cannot be overstated. However, healthy local marine environments and marine biodiversity play an important role in absorbing carbon and therefore reducing climate change.

The tension described by the noble Lord will need to be taken into account in the decisions made by the regulatory body, which will be informed by the marine policy statement and marine plans in guiding the determination of licensing decisions. The marine policy statement will draw on all the national policy statements affecting the marine area. It is in this part of the process that considerations such as security of energy supplies will be factored in. Licensing decisions will be made in accordance with those plans. Clearly, there will be a balance between developing wind farms or other forms of offshore renewable energy developments, and in those areas such considerations will filter down to case-by-case licensing decisions. In other areas, the emphasis might be different. However, I hope that the noble Lord will be reassured that we think that the regard the licensing authority will have to pay in Clause 66(1) to protecting the environment encompasses the very points to which he wishes to draw our attention. On that basis, I hope that he will feel able to withdraw his amendment.

Photo of Baroness Byford Baroness Byford Conservative

I appreciate what the Minister is saying and I understand his logic. However, it continues to worry me that in recent years we have passed about four Acts. If we are not careful they will become just one compartment. I reinforce what my noble friend has said. The impact of climate change is very real and is here, and I think we all agree that it needs to be addressed. It is the same with the security of energy supplies. Although the Minister has indicated that Clause 66(1)(a) and the need to protect the environment would be taken into consideration, I hope that he might give the matter further thought. It really worries me that to members of the public there is the Climate Change Act, the marine Bill and the Energy Act. I do not think that it would be amiss to include the two specific suggestions made by my noble friend. In the light of my contribution, I hope that the Minister will reconsider this matter.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords

I am very grateful to the noble Baroness for her helpful suggestions. The problem with accepting the amendment is that it almost qualifies what is meant by the term "environment". In seeking, as the noble Baroness rightfully does, to give greater clarity to the matters that will fall to be considered under this legislation, the problem is that, by defining it in the way proposed in the amendment, the definition is narrowed. We are facing that problem in a number of parts of the Bill.

Responding on the more general principle, the noble Baroness is right to say that with this Bill, the Energy Act, the Planning Act and the Climate Change Act, it is a challenge to find one's way through and to understand how they fit coherently together. However, the Government have deliberately brought these pieces of legislation through Parliament in close proximity. We see them as being consistent. I know that we have had a lively debate about the interrelationship between the NPS and the MPS and that that raises some difficult issues for noble Lords. None the less, the intent is clear—that these pieces of legislation act consistently together, albeit that the decisions that will have to be made will be tough at times and challenging. There will be tensions between the desirable aims of each piece of legislation.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions

I thank the noble Lord for that response. I cannot agree that including "local" and "global" limits the definition of the environment. Indeed it makes it clear that the environment is not just something that happens in your own backyard but is the interaction between everyone's environments throughout the world. It is a global issue. The issues of climate change and security of energy supplies, which have very much exercised the Government—the Minister among them—are key. The Government have made a strategic error in not seeking to insert cross references and make them part and parcel of a single project to tackle these great issues of our time. I am disappointed with what the Minister has had to say. I beg leave to test the opinion of the Committee.

Division on Amendment 101A

Contents 16; Not-Contents 42.

Amendment 101A disagreed.

Division number 1 Marine and Coastal Access Bill [HL] — Committee (5th Day) (Continued)

Aye: 14 Members of the House of Lords

No: 40 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Amendments 101B to 101BZZB not moved.

House resumed.