Before I call the first amendment, it may be helpful if I explain to the Committee that the amendments on the Marshalled List have now been renumbered for ease of reference.
Clause 66 : Determination of applications
Moved by Lord Taylor of Holbeach
A1: Clause 66, page 37, line 33, at end insert ", including social or economic consequences"
I thank those who have renumbered these amendments. Although it has resulted in us having to renavigate our way through the Bill, at least we have clear beacons by which we can see our way through to, I hope, concluding this Committee stage in the not-too-distant future.
We are on Part 4, on the subject of licensing. In moving this amendment, I shall speak also to Amendments A6 and A20, which stand in my name. We have had a comprehensive discussion in previous debates about the need to inform local authorities about licence applications, particularly those that might impact on their areas of responsibility. These amendments are similar and have been suggested by Network Rail. They highlight the concern that other bodies, not just local authorities but public bodies and stakeholders' private bodies, might also benefit from that information. As the Bill is drafted, they might find themselves excluded.
If we use Network Rail as an example, many licences relate to matters that might impact on the use of existing rail infrastructure. The early indication of likely licences would allow the transport infrastructure providers to anticipate and prepare for any likely increase or decrease in traffic on the infrastructure. I hope the Minister will be able to reassure me that licence authorities will keep the lines of communication open, not only between public bodies but also with interested parties in the private sector. I beg to move.
I need to clarify the position because other amendments in this group have not been spoken to. I look, in particular, to the Liberal Democrat Benches, to ask whether they have de-grouped.
We are hoping that the Minister may give us some response on the amendments we wanted to draw to the attention of the Committee. I should be delighted to come back later.
I turn to the question raised by the noble Lord, Lord Taylor. His amendment would introduce a requirement on the licensing authority to consult transport infrastructure providers that may be affected by a marine licence application He mentioned Network Rail in particular. We have already talked in previous debates about statutory consultees and I have given our reasons for not wanting to have a list. However, he raises a very interesting and important point and I hope to give him the reassurance he requires. I certainly accept that the nature of geological, coastal and estuarine issues and marine processes mean that works at one location on the coastline can have long-term effects many miles away. It is clearly important that the owners of rail infrastructure are consulted on applications that might not be in the immediate vicinity, but I can assure noble Lords that this is something that we envisage licensing authorities doing on a regular basis and I want to reassure the noble Lord, Lord Taylor, that we will make that clear through guidance, because he has raised an important point.
Perhaps I may address Amendment A10—I think we have all found the renumbering of amendments slightly confusing and I apologise if the Minister anticipated that I would want to speak at some length on this issue. I thought that we had touched on it so extensively in previous sessions in Committee that it did not need me to go into great detail. Amendment A10 is really trying to establish that those elected bodies that have a legitimate and proper concern in this area should not be excluded from the licensing process under this part of the Bill. I hope, therefore, that, before the Minister completes his analysis of this group, he will respond briefly to that point. It is simply to make sure that local authorities are not excluded. He will be well aware that, throughout the Committee and on all sides of the House, there has been anxiety that local elected bodies, which will be so crucial in establishing ownership of the new regime, particularly in its transitional phase, should not feel excluded or divorced from the process. This applies to licensing just as much as to other parts of the Bill.
I want to raise one more point on Amendment A10. The Minister will recall that, on the issue of planning, we discussed the Bristol Channel and he said that we could not resolve it in any other way because it was a devolved matter. Amendment A10 refers to the appropriate inshore fisheries conservation authority. I wonder if the Minister is aware that, in meeting members of the various sea fishing committees who are over in Brussels today, the EU Fisheries Commissioner, Mr Borg, is advocating the extension of the Brittany maritime charter approach to the whole of the Channel area, including fish, and that the Commission is intending parallel work in the Baltic to establish joint policies. Could not the same be relevant to the Bristol Channel area? All it will take is talking to the Welsh devolved authority.
I am aware that Defra has just put out for consultation the shape that the IFCA areas should take. I believe that three different options are listed on its maps and no doubt all have their merits. But I have to come back to the same point as regards the Bristol Channel: given all the other pressures, it will be very difficult, if not impossible, reasonably to decide where the IFCAs should begin and end, even given that some of the territorial waters fall to Wales and some to England. A joint approach is really the only one, and if the commission is looking at this for other joint areas, could we not lead the way with a pilot between England and Wales?
First, I thank the noble Lord, Lord Tyler, for coming back to Amendment A10, and I thank the House authorities for the renumbering of the amendments. It has made our consideration a lot easier, although I must admit that we became totally confused on the first group. However, it is much appreciated.
I was very interested in the comments of the noble Baroness. Obviously, it would be interesting to see the outcome of any discussions in Europe, and I can assure her that I will ask my officials to find out more information. I also take her point about IFCAs and how they should operate in the Bristol Channel, a point that I suspect is also relevant to the current committee relating to north Wales and part of England. She will probably know that the decision of the Welsh Assembly Government clearly indicated that they were going to make different arrangements from those being proposed for England by the UK Government. We are in the process of consulting on a number of options for IFCAs, and I shall certainly make sure that her comments are considered, but of course we do come across the issue of the relationship between the respective responsibilities of the UK Government for England and the Welsh Assembly Government. The noble Baroness knows from our previous debates on the planning system that there are some constraints on what might be called a statutory joint approach, but none the less we obviously want to do all we can to make sure that where the two Governments need to work together, it happens. I am grateful to her for raising the point.
On the wider question of local authority involvement, I fully accept that local authorities have a vital role to play in many of the arrangements related to this Bill, and we see them as very important partners. Under the current legislative regime put in place by the Food and Environment Protection Act 1985, the Marine and Fisheries Agency, as a matter of good practice, consults the relevant local authorities on the applications in which they are likely to have an interest. I would point out to noble Lords that Clause 65 places a licensing authority under an obligation to publish a notice of any application in a manner calculated to bring it to the attention of any persons likely to be interested in it and must take regard of the representations it receives. I can confirm that this will naturally include local authorities for development activities that affect their area, while the same reasoning applies to inshore fisheries conservation authorities and many of the other bodies proposed by noble Lords in earlier debates. We stand ready to meet at any time representatives of local authorities through the LGA, particularly to discuss any issues that those local authorities may have because we want to ensure that there is as close co-operation as possible. It is clear that local authorities can have a hugely positive role to play in a lot of the matters we are debating.
The noble Lord is right about that, but is he sure that what British Rail has suggested is a bad idea? The effect on local communities of what happens under the Bill will probably be most keenly felt where operations near the shore involve taking material out and carting it away to somewhere else across the country. The effect of decisions about quarrying is very strongly felt in local authorities. The idea of lorries passing endlessly, day and night, full of dusty material worries people very much. Indeed, anyone who has served on a local authority will know that quarrying is a hot issue so far as planning is concerned. I presume that this material will be wet. It may not be dusty but there may be lorries night and day passing some communities. There will also be an enormous number of trains required to take the material wherever it has to be taken. British Rail is right to worry about them. I wonder whether the noble Lord is right not to think about transport as something that should be in the Bill in order to make sure that it is a major consideration when that kind of activity is going to happen at sea.
Of course a marine licence is needed only for activities that take place in the UK marine licensing area. Unless the work being undertaken is on land that is submerged, or partially submerged by water at high water springs, it will not need a marine licence. The Marine and Fisheries Agency, which is currently responsible for regulation, is not aware of any particular difficulties faced by Network Rail in obtaining licences where needed. I do not believe that there is any disagreement in principle about the need for consulting the appropriate rail infrastructure providers. I have already assured noble Lords that we would envisage licensing authorities doing that regularly. I have already said that I will ensure that this is achieved through the guidance, but I am doubtful of the need for making it a statutory responsibility.
I thank the Minister for that response and for acting as a lighthouse in seeking to have the House adjusted to the new numbering system. I am grateful. This has been a useful debate on amendments designed to draw from the Government a commitment as to how the licensing process will involve such bodies. I am grateful that the Minister has been able to place these matters on record. With that commitment, I beg leave to withdraw the amendment.
Amendment 11 was an amendment to Amendment 10, so it cannot be put forward.
Amendment 11 (to Amendment 10) not moved.
Amendments A12 and A13 not moved.
Clause 66 agreed to.
Clauses 67 to 70 agreed to.
Clause 71 [Exemptions specified by order]:
Moved by Lord Tyler
A14: Clause 71, page 41, line 17, at end insert—
"(1A) The appropriate licensing authority for an area may only issue an order under subsection (1) where that order—
(a) does not compromise the requirements under section 66; and
(b) the result of any environmental appraisal indicates that it is appropriate to do so."
Before I address this group, starting with Amendment A14, I want to record again that the Committee will have to suffer from the understudy because the stars are performing in Grand Committee. I hope that the Minister will be able to respond: this is the third time that this confusion has occurred. It is mismanagement by the government managers, after the assurances that we have been given, that this should coincide. It is a curious way to secure agreement, at least from these Benches.
On Clause 71 and this group of amendments, our concern is that there should be a level playing field between the criteria on which exemptions are discussed, assessed and granted with the original issues of licensing. It is important to have consistency between those two sets of decisions. So the controls and safeguards for exempted activities, with which Clause 71 is primarily concerned, seem extremely important.
We believe that there should be exemptions; Clause 71 is necessary. However, the way in which it is set out in the Bill is not conducive to good management. We all understand that we want to reduce the regulatory burden—we are all in that business these days—but the Bill does not provide sufficient environmental safeguards, controls or checks in relation to the exemptions; for example, none of the requirements that we have agreed are necessary for determining applications under Clause 66 is included for determining exemptions, hence my concern about the level playing field. There is no requirement for assessing impacts prior to exemption nor description of the types of activity that can qualify for exemption, and no proper concerns are set out in the Bill to ensure that consultation on exempted activities is sufficiently strong; indeed, it is not mandatory at all.
The process for exemptions set out in the Bill is vague and creates possible loopholes for environmentally damaging activities to proceed unchecked. The Minister will recall that the Government's associated document, Managing our marine resources—licensing under the Marine Bill, which we have all considered carefully, states that they will work with stakeholders to identify where low-risk activities can be exempted from marine licensing, but this limitation to, and assessment of, those low-risk activities are simply not in the Bill. We therefore believe—and this is the common concern of many of the outside organisations considering the Bill—that there need to be amendments, hence this group.
It should be mandatory, first, to ensure that any exemptions do not compromise the licensing authority's purposes in Clause 66; that is, to protect the environment and human health and prevent interference with legitimate uses of the sea. Secondly, carrying out the appropriate environmental assessments under, for example, the strategic environmental assessment process, which assesses the Government's proposed plan for exemptions in secondary legislation, should be a matter for consultation with stakeholders. The process is referred to in the Government's response to recommendation 29 of the Joint Committee's report on the draft Marine Bill under the chairmanship of the noble Lord, Lord Greenway. Additionally, how are environmental impact assessments affected by exemptions? Thirdly, we surely need a process of assessments, where appropriate, where an activity is likely to have an impact on a site protected under the birds or habitat directives. Finally, an impact assessment or, indeed, a cost-benefit analysis of each proposal should surely be carried out as stated in paragraph 26 of the impact assessment for this Bill.
It is extremely important that a process for consultation and obtaining advice from experts should be in the Bill as it is for the licensing process as a whole. That, too, seems to be addressed under Clause 71(4). Taking account of the advice of those experts and the representations received for interested parties should be a matter of common practice when making any decision on whether to allow an exemption.
Where such expert advice is not followed, the reasons should be published, and, where an order is granted for an exemption, the licensee must get approval and/or notify, depending on the conditions in the order, the licensing authority, so that if it repeats or carries out that activity further, it needs to be addressed, hence our desire to strengthen Clause 71(2) and (3).
We believe that it is critical to monitor and review the exempted activities to ensure that conditions are being met and that unintended environmental damage is not occurring. That will be particularly important in the early years of the new legislation.
In the same group, Amendments 61 and 63 address a slightly different aspect of those anxieties that we, and others, have expressed before. We continue to think that the Bill does not adequately address them. It is surely absolutely explicit—as the Bill should be—that in records of any activity exempted activities should, equally, be recorded. The same sort of regime should apply; again, it is about an even playing field. At the very least, it should be compulsory for the licensing authority to be notified each time an exempted activity is carried out and for the proposed register of licensing information to include that, which is why we refer here to Clause 98.
The amendment would ensure that licensing and planning authorities could, as a minimum, base decisions on a complete record of all licensable activities—including those exempted from licensing as such—if they happen to take place in the marine area at any time. That would allow them to properly determine the cumulative effects of those activities on the marine environment. The Minister will surely recall that, in their response to taking the Marine Bill forward after the Joint Committee's report, the Government stated that they would be consulting extensively on their approach to exemptions. Options that could be covered include requiring a licence for exemptions, removing the requirement for a licence altogether and in-between options such as a simple registration scheme. Those were in the Government's response to recommendation 29 from the Joint Committee.
My noble friends and I believe that, to ensure informed decision-making at sea and to deliver sustainable development in the marine area, a notification and registration scheme is a minimum rather than simply an optional requirement. We would like it noted that the option proposed in the Government's response to recommendation 29, which was simply to require a licence for exemption to be potentially obsolete because Clause 71(1)(a) allows the licensing authority to specify an exemption order that a licence will not be needed, is not adequate.
On Amendment 63 to Clause 98, we believe that the statement in the Bill is frankly inadequate. The statement allows exclusion of information from the licensing register on the grounds that it,
"would be unduly prejudicial to any person's commercial interests".
The term "unduly prejudicial" is certainly not clear or adequate to its task. Indeed, in this context its meaning could be interpreted very widely. For example, there are no limitations provided on what is, or what would not be, "unduly prejudicial". We believe that it would be more appropriate to use existing language, such as that in Regulation 12(5) of the Environmental Information Regulations 2004, which states that,
"a public authority may refuse to disclose information to the extent that its disclosure would adversely affect ... the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest".
That is much more definite and does not weaken the Government's case for confidentiality; it makes it clearer.
I apologise for my lengthy explanation of this group of amendments, but they are, to our mind, extremely important. They are certainly so to the alliance of organisations—professional, quango and NGO—that have been looking at this part of the Bill. As I said at the outset on this group, it is extremely important that there should be a level playing field between the consideration of criteria for the licensing process and, equally, the consideration of all exemptions. I beg to move.
I have two amendments in this grouping, focusing on the narrower concept of maintenance dredging. Regular maintenance dredging is of vital importance to coastal marine businesses. Indeed, it is essential for the ongoing viability of coastal marinas and boatyards. I remind your Lordships that these small businesses employ a large number of people and generate something like £3 billion of revenue, more than £1 billion of which is for export. The British Marine Federation is concerned because the Explanatory Notes to the draft marine Bill stated that low-risk dredging activities such as maintenance dredging would become exempt under the new Bill and, although this Bill allows the removal of licensable marine activities from Clause 63(1), there is no definitive statement of intent to exempt such forms of dredging after they have become licensable 12 months from the Bill gaining Royal Assent. Amendment A24 would include the activity of maintenance dredging as one that would be exempt for licensing. Amendment A29 merely provides a definition of maintenance dredging as,
"the removal of accumulated sediments from harbour channels and berths to ensure a safe depth of water for navigational purposes and the removal of sediment to restore an adequate flow of water to mitigate risk of flooding or protect a sensitive habitat".
I must register the fact that not having seen any further progress on the draft marine navigation Bill is very unhelpful. I understand the purpose of Amendments A24 and A29 proposed by the noble Lord, Lord Greenway. However, in considering those amendments, the Committee should bear in mind the comments of the Royal Yachting Association. I declare an interest as a member of the North Devon Yacht Club. The RYA had considerable concerns that the draft marine navigation Bill might well concentrate only on commercial interests, to the exclusion of the interests of the RYA and other small boat users, because of the way in which the Bill decides who can dredge and keep areas clear. Those fears may or may not be grounded. However, with regard to what this Bill can license, particularly in relation to dredging, it is very unhelpful that we have not had the other Bill. I appreciate that it is a Department for Transport Bill, but it shares an awful lot of common ground with this Bill, particularly when we are talking about this area.
I tabled my clause stand part to raise many of the issues that the noble Lord, Lord Tyler, has already raised in speaking to his rather more precise amendments. Although we would support sensible simplification of the licence regime and the resultant reduction in bureaucracy, cost and delay, we need to ensure that nothing slips through the net.
I am sorry that the noble Baroness, Lady Young, is not in her place and will not therefore join in the debate. Her amendments, ensuring that exempted dredging does not breach any environmental objectives, seem very sensible. My Amendment A25 is designed to ensure that, too. I am sure that such maintenance dredging is environmentally unimpeachable but, given that these standards should not be hard for the harbour authorities to meet, does the Minister not think that an appraisal would be a useful safeguard?
Amendment A63, tabled by the noble Lord, Lord Tyler, would make the exclusions covered by Clause 98(5)(b) more subtle and less open to abuse. We would support it for that reason. On these Benches, we agree that it is important to exclude any information that could damage a proper economic interest. Nevertheless, for the purposes of transparency and to reduce the chances of corruption, we support the noble Lord's attempt to reduce the amount of information that could potentially be covered by subsection (5)(b). Finally, I agree with the noble Lord, Lord Greenway, and his amendment: if the Government intend this clause to cover only maintenance dredging, why do they not specify that?
This has been a very helpful debate. It might be useful if I outline the general approach that we are taking in the Bill to marine licensing exemptions. The broad nature of licensable activities listed in Clause 63 means that the Bill captures some operations that are not currently licensed or activities that we do not intend to license because they pose little environmental risk or they are appropriately regulated under other regimes. We are exempting locally authorised dredging activities under Clause 72 and we intend to carve out some other types of activities using the order-making power under Clause 71. This can be done in two ways: either the exemptions order can specify activities that will not need a marine licence under the Bill or it can set conditions that, if met, would mean that the activity would not need a marine licence. The ability to set conditions in the exemptions order means that the licence authority can control more precisely the activities that will not need a marine licence.
Amendments A16, A18 and A21 concern a consultation process on an exemptions order. Each authority when considering an exemptions order has a statutory duty under Clause 71(4) to consult those persons whom it thinks appropriate. We have already started work with interested groups and those with expertise in the marine field to help to develop our approach to exemptions. Secondary legislation will set this out in more detail. We intend to carry out a full public consultation in the spring on our early thinking.
I hope that I can reassure the noble Lord, Lord Tyler, on his request for greater consistency. The overriding principles of the licensing regime are to protect the environment, to safeguard human health and to prevent interference with other legitimate users of the sea, while taking into account all other relevant factors. I can assure the noble Lord, in responding to Amendment A14, that all those activities will be fully taken into account when deciding what activities are appropriate to exempt from the need for a marine licence, as, of course, will be sound scientific evidence and wider sustainable development aims.
In relation to environmental appraisal, any decision to exempt activities from the marine licensing regime—and, if so, to what extent—will be based on the evidence that is available, the science and the environmental impact of an activity. The licensing authority will be able to tailor exemptions to specific risks by setting conditions for that activity in the exemptions order.
On the question of commercial prejudice, Amendments A15, A22, A61 and A63 deal with details kept in the licensing register and the review of exempt activities. Clause 98 lists those particulars that must be placed on the licensing register. Other information can be contained within it, if that is appropriate. Amendment A22 is about keeping exempt activities under review. Let me reassure noble Lords that, once an order has been made, the licensing authority is able to amend it in light of, for example, new evidence or technological advances. We intend to consult whether it is necessary for all exempt activities to be formally registered, kept under review or recorded in some other way. Of course, we will take close notice of what comes out from the consultation on that point.
The noble Lord, Lord Tyler, asked about the phrase,
"prejudicial to any person's commercial interests".
The wording that we have used in the Bill is based on that used in the Food and Environment Protection Act, whose public register requirements have been around since 1996. My understanding is that information under FEPA has been withheld only on a handful of occasions since the introduction of those requirements and only after careful and stringent assessment. I hope that that reassures noble Lords on that point to a certain extent.
Clause 72 exempts certain dredging activities. I say to the noble Earl, Lord Cathcart, that the clause recreates the exception found in one of the pieces of existing marine legislation, the Coast Protection Act 1949. Without that clause, those dredging activities without associated deposits—primarily maintenance dredging—carried out routinely and with minimal environmental impact under local regulations or a harbour order would have to be authorised under a marine licence. I fully accept that the noble Earl made my next point, which is that we are trying to get the balance right between proper protection and overbureaucratisation. However, unless we recreate the current exception, this could pose a considerable regulatory burden on harbour authorities, which have to maintain safe and navigable channels, as well as on licensing authorities, including the new MMO, in regulating this currently exempt form of dredging. That is why Clause 72 is drafted as it is.
The noble Lord, Lord Greenway, as ever, made very important points. However, ironically, his amendments would restrict the exemption to maintenance dredging activities only. The vast majority of dredging that falls within this exemption will be maintenance dredging. Those dredging activities covered by this clause that are not maintenance dredging, and which are likely to have an impact on the environment, will still need to undertake the relevant environmental impact assessment, thereby providing the environmental safeguards. Any historically permitted capital dredging and spoil disposal that is regulated under the current regime will continue to be regulated under consent for the disposal activity.
As for Amendments A23, A25, A26 and A30, I appreciate that there is eagerness to ensure that environmental objectives that will be set to deliver the water framework directive requirements are taken into account, but I am not convinced that they are necessary or desirable to set down in this Bill before measures to deliver the water framework directive have been fully developed. When the implementing measures of the directive have been decided, we expect ports and harbour authorities to engage fully with the Environment Agency to help to achieve the successful delivery of the objectives set. I understand that much work is already under way in this respect and that close links with the ports and harbour sector have already been established. Measures to achieve or support good ecological status should already be included in harbours' maintenance dredging and disposal strategies.
We are trying to avoid double regulation. If a harbour authority is acting in accordance with a local Act or relevant harbour order and in compliance with its other environmental obligations, we would not wish it to have to apply and pay for a marine licence where it is not necessary. I make it clear that, ultimately, harbour authorities, as competent authorities, have a statutory duty to undertake activities in accordance with relevant environmental obligations. The onus is clearly on them to ensure that they are complying with the relevant regulatory regimes, but we want to avoid the problem of double regulation.
I understand the point made by the noble Baroness, Lady Miller, and why she wishes the relevant Bill to be brought before Parliament as soon as possible. I wish for that, too, and the Government wish to do so as soon as parliamentary time allows. Much though I should like to give her more information on that, I am not in a position to do so.
I am grateful to the Minister for dealing so comprehensively with this group, but I cannot say that I am wholly satisfied. I listened with care to what he said about consultation that is already taking place, but I have to tell him that at least some stakeholders, particularly those who are members of the Wildlife and Countryside Link's marine task force, are not satisfied that this clause is sufficient to deal with exemptions. I hear what he says about the intentions, but intentions are not as cast iron as a clause dealing with this issue. I will read with care what the Minister has said, and my noble friends and I will look at this again.
On confidentiality, I ask the Minister whether between now and Report he will be kind enough to look again at what seems to be just as good a precedent, if not a better one: Regulation 12(5) of the Environmental Information Regulations 2004, from which I quoted. That is more comparable to the situation that we are addressing and would be a better precedent for this. In the mean time, I beg leave to withdraw the amendment.
Amendment A14 withdrawn.
Amendments A15 to A18 not moved.
Moved by Lord Hunt of Kings Heath
A19: Clause 71, page 41, line 25, leave out "thinks" and insert "considers"
Amendment A19 agreed.
Clause 71, as amended, agreed.
Clause 72: Exemptions for certain dredging etc activities
Amendment A23 not moved.
Moved by Lord Greenway
A24: Clause 72, page 41, line 35, at end insert ", and
( ) that the activity is maintenance dredging"
I have already spoken to Amendment A24. In his response, the Minister said that most maintenance dredging would be exempt under the Bill. Can he give an example of areas of maintenance dredging that might not be exempt? I understand his point about not wishing to have double regulation, but the boating industry is concerned that the present system is bureaucratic and time-consuming. I would be interested to hear what the Minister has to say about that. I beg to move.
When we read the noble Lord's amendment we thought that he was trying to restrict the exemptions, but it is clear that he is trying to clarify the issue, particularly for the groups that he mentioned. Perhaps he would be prepared to provide more information about the problems he identified, and I could look at that between Committee and Report stages. I would certainly like to see whether we could provide some reassurance.
We clearly need some discretion, which is why Clause 71 is drafted as it is. In dealing with the exemptions which have to be specified by order, we cannot compromise the overriding principle in Clause 66(1), which is that,
"the appropriate licensing authority must have regard to ... the need to protect the environment ... the need to protect human health ... the need to prevent interference with legitimate uses of the sea".
Overall, it is a discretionary approach. There is the safeguard of the order-making power and, as I said, it cannot compromise what is set out in Clause 66. It is very difficult to be more specific. However, as I said, if the noble Lord would like to give me more information, I would be very happy to look at the matter.
My reluctance to go where the noble Lord wishes to go is due to the fact that I cannot give him a blanket assurance because of the very nature of the conditions under which exemptions can be given. That is my problem.
I appreciate that but the noble Lord mentioned "assurance", so I naturally jumped on it. I beg leave to withdraw the amendment.
Amendment A24 withdrawn.
Moved by Lord Hunt of Kings Heath
A27: Clause 72, page 41, line 39, leave out "or 10(3)"
A28: Clause 72, page 41, line 40, at end insert ", or
(d) section 10(3) of that Act."
Amendments A27 and A28 agreed.
Clause 72, as amended, agreed.
Clause 73 agreed.
Clause 74: Oil and gas activities and carbon dioxide storage
Moved by Lord Hunt of Kings Heath
A31: Clause 74, page 42, line 38, leave out from "or" to end of line 41 and insert "over any area of sea—
(a) which is within the Welsh inshore region or the Northern Ireland inshore region, or
(b) which is within both the Scottish offshore region and a Gas Importation and Storage Zone (within the meaning given by section 1 of the Energy Act 2008 (c. 32))."
A32: Clause 74, page 42, line 43, leave out "the territorial sea adjacent to Wales or Northern Ireland" and insert "any area of sea within the Welsh inshore region or the Northern Ireland inshore region"
Amendments A31 and A32 agreed.
Debate on whether Clause 74, as amended, should stand part of the Bill.
We talked at length about the relationship between the IPC and the MMO when debating Amendment 59 and subsequent amendments. It seems that the Government's position is that the MMO will only advise the IPC, but nothing in the Bill says what will happen if the IPC ignores this advice. I do not propose to go over the arguments yet again but the consensus of the Committee was that the MMO's position should be strengthened.
There are similar arguments with regard to the Department of Energy and Climate Change when licensing oil and gas activities and carbon dioxide storage. Clause 74 currently completely exempts DECC from the provisions in this Bill. I fully concede that it should probably be responsible for the oil and gas and carbon storage activities, as it has the knowledge and expertise. I should like the Minister to tell the Committee how DECC will interact with this marine Bill, if at all, and I have a number of questions.
First, will DECC be advised by the MMO and, if so, what will happen if DECC does not take its advice? Secondly, will it need to comply with the marine policy statement? Thirdly, will it need to comply with the marine plans? Fourthly, will it respect the marine conservation zones? Fifthly, who will ensure that DECC complies with the EU marine strategy framework directive? We believe that it should be the MMO. I remind the Committee that under this directive member states are required to deliver good environmental status, or GES, by applying,
"an ecosystem-based approach to the management of human activities, ensuring that the collective pressure of such activities is kept within levels compatible with the achievement of good environmental status".
The Committee is fortunate that the noble Lord is the Minister not only for Defra but also for DECC and is therefore in an ideal position to say how these two departments will interact when it comes to offshore activities. We need to ensure that the activities of DECC are not incompatible with the marine objectives set out in the Bill.
The noble Earl has raised a very important question. Perhaps I may respond, first, to the question of the IPC and the MMO. We have debated this matter on a number of occasions with regard to this Bill, and I remind noble Lords that we also had extensive debate on it during the passage of the Planning Bill, which led to this House enacting it only 12, 13 or 14 weeks ago. Of course, the MMO is in a strong position to give advice to the IPC. In the end, the IPC must make its own judgments, but it will do so within the context of the NPS. We have said that the marine policy statement and the NPS will be consistent. Although the IPC must clearly make its own decisions, that will be in the very strong context of agreed government policy in the marine policy statement and the national planning statement.
I suspect we will come back to debate this at Report, but we are ensuring the integrity of the planning system so that there is consistency on land and in the marine area. We are also ensuring that the MMO's wisdom and advice is brought to the fore. It is worth making the point that any conditions attached to any consent given by the IPC would fall to be policed by the MMO, so we expect there to be a very close working relationship.
It is true that under the Bill I propose to exempt myself as a Minister of DECC from its provisions on oil and gas. I well understand that noble Lords want to question me on that point. Essentially, that exemption reflects the key strategic importance of oil and gas. The Government took a decision at an early stage of the development of oil and gas licensing that, from an energy-security imperative, a stand-alone regime should be operated centrally. We think that that is consistent with the reservation of oil and gas matters to the UK Government. That means that we intend to maintain the current position whereby a tailored regime is operated by the Department of Energy and Climate Change. Of course, we also discussed the strategic nature of energy-related issues during debates on the Energy Act. This exclusion is entirely in line with the strategic position in both the Energy Act and the Planning Act.
I hope that I can reassure the noble Earl on the substance of the points he raised about how the Department of Energy and Climate Change will work within the more general requirements that he mentioned. The existing legislative framework for oil and gas is comprehensive, and the regimes are tailored to address the regulatory challenges posed by those activities and to ensure full compliance with stringent international obligations that govern the oil and gas industry. The existing technical specialists in the Department of Energy and Climate Change certainly possess the necessary skills to deal with those complex issues.
The existing legislative framework for oil and gas has substantial environmental protection built into it, including the need to conduct strategic environmental assurance assessments, environmental impact assessments and, where appropriate, assessments as required under the EU habitats directive. A range of environmental permits is also required to control atmospheric emissions and discharges to the sea. In not transferring those activities to the MMO, we have taken account of the comprehensive nature of the existing legislative framework and reflected the current licensing and evolution arrangements in this area, while taking the opportunity to avoid duplication and overlap between the existing regulating regimes.
Will the Department of Energy and Climate Change be advised by the MMO? The answer is yes. I can assure noble Lords that the department will consult the MMO on its marine activities. Will the department respect marine conservation zones? Yes, as a public authority, the department and the Secretary of State in particular will be bound by Clause 121, which imposes a duty on public authorities to further, or at least not hinder, the achievement of the objectives of marine conservation zones. Even if the noble Earl disagrees with the exclusion of oil and gas, I hope he recognises that we will ensure that there is consistency and read-across to the arrangements we are making in the Bill.
Before my noble friend responds, perhaps the Minister will clarify what he said. Although the IPC and DECC will, as I understand it, seek or take guidance from the MMO, they will ultimately make their own judgments. But what will happen when these judgments do not coincide? On the face of it, there could be three different views from three different bodies. Who will ultimately have the overriding authority to say what is right or wrong? I would be glad of clarification.
On oil and gas, it will be the Department of Energy and Climate Change, and on matters that fall to the Infrastructure Planning Commission, it will be the IPC. They will of course be advised by the MMO. Our intention is to ensure consistency. Previous amendments would essentially have given the MMO a veto, but we disagree with that. It is right that the Department of Energy and Climate Change should make decisions on oil and gas. As for the Planning Act, there are thresholds under which planning matters of national significance will fall to the IPC. With regard to the IPC and the MMO, there will be consistency between the marine policy statement and the NPS. We will have consistency, but it is also important to understand which body will make the final decision.
I thank the Minister for his reply and especially for restating the Government's position on the IPC. One of our arguments in moving the amendments on the IPC was that the Planning Act ought to be amended. The Minister said that we could not possibly amend that Act because it had just been passed, but on page 243 of the Bill I see more than a page of amendments to it. So, obviously, it is possible to amend it. I will not address that now.
I would love to intervene on that point, if the noble Earl will let me. There are technical amendments which have to be made. My point is simply that we had a very good debate on this matter in our deliberations on the Planning Act, when I clearly stated government policy and its relationship to the forthcoming marine Bill. My argument is simply that the House had a very good discussion on this matter and, I thought, disposed of it.
I am not sure that we disposed of it. I think that we will have to come back to it. In any event, I do not want to continue that debate now. We thought that our amendments were technical, too. Be that as it may, on this clause, I thank the Minister for saying that DECC will be advised by the MMO, which is a useful step forward, and that it will respect the conservation zones, which is also useful.
The Minister did not reply to the question of who will ensure that DECC, the IPC, and so on, comply with the EU directive where the cumulative effect of all these activities at sea is just too much. We have never really had a satisfactory answer to that. The Secretaries of State for three departments will each be rowing their own boat. There will be nobody to say to them that they are doing too much in an area at sea. It probably ought to be the MMO that, rather than saying, "No, you cannot do it", flags up that there is too much activity in an area at sea.
The noble Earl raises an important point. It is clearly important that there is consistency across government. I will take that away, have a further look at it and, in the first instance, at least write to him about how we feel it should be done. The Department of Energy and Climate Change clearly has a responsibility and we would expect the IPC's decisions to be taken in that context. We need to do further work to ensure that there is a co-ordinated response. Perhaps I could write to the noble Earl in the first instance on that.
I am grateful to the Minister for that. I had imagined that where there was such uncertainty, the Cabinet Office or someone in that department might have the final say. That is what I was trying to get from the Minister, and I am still confused. I would be extremely grateful if he could come back to us on it.
We always resist putting the names of departments on the face of Bills because there are always changes in the machinery of government. In the end, however, one way or another, it is a UK government responsibility. I am also clear that we need a co-ordinated and coherent response. Noble Lords have raised an important question and, rather than delay the Committee, I will take it away, have a further look at it and write to noble Lords. No doubt they will then consider whether to bring it back on Report.
This debate follows on from our earlier debates in Committee today. I speak in a spirit of optimism that the Minister is now very much in tune with the nature of our argument about the role of the MMO.
We oppose Clauses 75 and 76, respectively affecting harbour works and electricity works, standing part of the Bill in order to generate a debate on the workings of the special provisions for which they cater. It is inevitable when dealing with an area as complex as marine licensing that there will be exemptions and special cases which will have to be taken into account. In relation to harbour works and electricity works, there are obvious problems because licences will be required not only under the Marine and Coastal Access Bill but also under the Harbours Act or the Electricity Act.
We fully agree with the Government that this is a difficult deviation from their desire that the MMO should be a one-stop shop which would enable consents to be put through a simplified process and the Minister has already said that the Government are seeking to avoid double regulation. The one-stop shop is a sensible idea and we, too, would rather that the MMO was able to process all the competing demands and then come to an overall decision having taken all factors into account. In addition, it seems wrong that an applicant should have to undertake a dual application process for one project. Nevertheless, we have decided to table stand part objections to Clauses 75 and 76 because, while we agree with the Government's sentiment that the MMO should be a one-stop shop for marine licences, we disagree with the method they have introduced in order to achieve it.
We on these Benches believe that Clauses 75 and 76 as they stand threaten to undermine some of the benefits of the Marine and Coastal Access Bill. As the Bill stands, the Secretary of State has been given an order-making power to allow the procedures from the Harbours Act or the Electricity Act to be used instead in these specific situations. It could be argued that this is one solution to the problem. Nevertheless, does the Minister admit that this leads to an excess of discretionary flexibility in the Bill? Not only could this mean confusion for potential applicants but it could also be open to abuse from interested third parties. We would like to see this flexibility withdrawn.
As Wildlife and Countryside Link has suggested, these provisions go a long way to making the process more, rather than less, complicated. Where once they looked to be favouring a simplified one-stop shop, now it looks as if the Secretary of State could be allowed to modify even the procedures of the Harbour Act or the Electricity Act. Does the Minister agree that this is not in line with the desire to simplify rather than complicate matters? Wildlife and Countryside Link has suggested that it would be more appropriate for the provisions of the Marine and Coastal Access Bill—or Act as we hope it will become—to take precedence, excepting only if the provisions of the Harbour Act or the Electricity Act are stricter. Does the Minister agree that this would achieve the Government's goal of a simplified regime with fewer complications? Can he tell us whether the Government have considered this approach and, if so, why they have rejected it? I look forward to hearing his response.
We, too, have concerns, particularly about Clause 75, for similar reasons to those of the noble Lord, Lord Taylor of Holbeach, but perhaps with a slightly different solution in mind. We share with him the concern about complexity and confusion in this clause. I refer briefly to my experience as a constituency MP. The large number of relatively small harbours in my constituency were managed very effectively by a largely volunteer management operation of harbour commissioners, often with only one or two employees. My concern is that, under the regime that we are setting out here, the complexity involved will not produce the one-stop shop to which the noble Lord, Lord Taylor of Holbeach, referred. Indeed, there still seems to be some degree of potential duplication and confusion with the Harbours Act.
To illustrate the way in which the management of relatively small harbours is at the moment extremely effectively and flexibly undertaken, I recall an occasion when a film company wanted to continue the effective series "Doc Martin" which I am sure many noble Lords enjoyed. It was filmed in Port Isaac, the most beautiful little harbour in the whole of the western world. There was a slight problem because the harbour commissioners had long been seeking to strengthen the harbour wall and had obtained from the ministry then responsible, the Ministry of Agriculture, Fisheries and Food, the appropriate grant after a long and bitter lobby. Because of the way films are produced, there was a danger that the wall would go up and down in the background during the series, so I spent some time negotiating between the film company and the harbour commissioners. Eventually a sum was advanced, the harbour commissioners put off the work until the following autumn, the summer's filming went forward without any hitch and the result was delightful.
My point is that often the smaller harbours need a simple administrative system to cope with this sort of thing. If the MMO is going to represent a genuine one-stop shop and the provisions of the Harbours Act are not going to apply, let us be open about it. We share the concerns of the noble Lord, Lord Taylor of Holbeach, and we look forward to the Minister's response. In a sense we, too, are probing, but perhaps from a slightly different direction.
On that latter point, it is difficult to devise a strategy which copes with the requirements of the film industry over a limited period of time with regard to harbour walls. I have to confess that I have no specific notes on that point, as the noble Lord, Lord Tyler, would expect.
The changes that would result from these two clauses have been welcomed by industry and are part of our efforts towards better regulation in the marine environment. They will reduce the administrative burden on the developer, the regulator and the consultee alike, and help to prevent delays in obtaining regulatory approval for a harbour or offshore energy generation development.
I shall defend the clauses by explaining more specifically how they work. Clause 75 enables an application for a harbour order under the Harbours Act 1964 and an application for a marine licence to be considered together through the same special procedure if they relate to the same activity or works. Clause 76 makes similar provision for offshore generating stations that require consent under Section 36 of the Electricity Act 1989 and a marine licence.
The special procedure will be the procedure outlined in either the Harbours Act 1964 or the Electricity Act 1989, but modified as necessary to take full account of the concerns of the Bill—that is, the marine licensing regime's requirements—by an order under subsection (6). The special procedure will be activated at the discretion of the harbour order or generating station authority. In the event that the Marine Management Organisation is the harbour order authority or generating station authority and the Welsh Ministers the marine licensing authority, the special procedure could be activated only with the agreement of the Welsh Ministers. In those instances the MMO will issue a notice to the applicant to that effect.
Subsections (6) to (8) of Clauses 75 and 76 give the Secretary of State the power, by order, to modify the procedural provisions of the Harbours Act and the Electricity Act as they relate to the special procedure. I want to be clear about what the order will do; it will set up a generic special procedure that will apply to all subsequent applications that take advantage of that procedure. An order will not be made in each and every circumstance where the procedure is to be applied. That will guarantee consistency of treatment across the board. Secondly, the order can modify the procedural provisions of the Harbours Act and the Electricity Act to enable it fully to consider marine licence requirements.
Thirdly, and perhaps most importantly, the marine licensing authority will still need to have regard to the need to protect the environment and human health and prevent interference with other uses of the sea, just as with any other marine licence determination. I emphasise that it will not reduce the environmental safeguards enshrined in the marine licence.
The end result of the special procedure is both a harbour order—or Section 36 consent—and a marine licence, issued by the relevant authorities that take account of the full range of considerations as set out in each piece of legislation. The marine licence that applies is enforceable just as much as a marine licence issued under the ordinary procedure that we have described in Clauses 64 to 68. With these two clauses we are seeking to reduce the regulatory burden in the marine environment. At the moment, a port could require a Food and Environment Protection Act licence, consent under the Coast Protection Act and a harbour order from two—or, in Wales, three—different bodies. Under the proposals in Clauses 75 and 76, however, the same works can undergo the full regulatory processes in one clearly understood procedure and to one timescale. It is a big step towards enabling a joined-up, holistic consideration of developments with environmental, navigation and socio-economic factors considered in the round at the same time.
That is the justification for this procedure. I recognise the noble Lord's anxieties, but he will appreciate that industry seems to be satisfied with the arrangements we are making. They provide essential safeguards with regard to the marine position and the crucial aspects of the protection of the marine environment while creating, out of the two Acts that otherwise govern these authorities, one procedure that is clearly understood and can be implemented. I appreciate the concern about these clauses, but I hope that noble Lords will recognise that this is driven by an attempt to create a straightforward and relatively simple process by which we can deal with these issues and bring together one clear regulatory step and thereby reduce the regulatory burdens on industry. That is the basis on which I hope the noble Lord will feel able to accept the clauses and withdraw his objection.
I welcome what the Minister has just said about the protection of the marine environment in this clause. I referred at Second Reading to the anxieties that we have about certain offshore things that occur without any governmental control, in particular the searching for wrecks of historic ships. I hope that the marine environment aspects of this clause can be extended to cover that activity, possibly by introducing some further words to make that clear.
I would join the noble Earl in saying that I was out of my depth if I were not dealing, on the whole, with inshore waters. Therefore, we are not as far out of our depth as we are with other parts of the Bill, which go further out to sea.
I wanted to identify that we are faced with the fact that the authorities, in seeking to act, would do so under several different Acts and requirements; they would have to operate and get agreement using several different processes. By "holistic"—I am not very fond of that word, which I will now expunge from my lexicon—I was seeking to identify that here is a procedure that will take into account all the necessary factors that obtain with regard to those Acts, but also the necessary issues that are contained in the Marine and Coastal Access Bill. It is in order to achieve that position that we are seeking, in Clauses 75 and 76, to reduce the regulatory burden and to create a position in which all the issues that need to be considered can be considered within this framework, because each of them, in each of the separate Acts, is an important provision that needs to be taken fully into account.
In particular, I wanted to reassure the Committee over the anxiety that might obtain that, if you are dealing with the Harbours Act or the Electricity Act, the authorities acting will have regard to those provisions and that the provisions within this Bill, when it becomes an Act, might be of a lower order and lower in the scale of consideration. I wanted to emphasise that this is a total procedure in which the provisions in this Bill will rank equally in terms of significance or of getting agreement. That explains my unfortunate use of the word "holistic".
The noble Lord—in what did not seem to many of us to be an enormously simple performance, although it is the best that the Government can produce—said that industry is happy. Will he say what he means by that? What industry? Does it include those who run the small harbours that the noble Lord, Lord Tyler, referred to from the Liberal Benches? I think that the people who run small harbours—I know several of them—would find this pretty difficult. Do the Government know whether they are happy with the proposal?
Perhaps I may follow on from the extremely good point that the noble Baroness has brought up. Although I do not want to compete with my noble friend Lord Tyler for the prettiest harbour, while he was talking I had Ilfracombe in mind, where the harbour is very much the heart of the town and is seen by local people as being at the heart of the regeneration effort that is being brought about. I am all for streamlining the procedures and I can see the arguments in favour of it, but so far we do not have the safeguards in the Bill in relation to local authorities that we were hoping for. On Clause 75, how exactly do the special procedures relate to the relevant planning authority being a district council?
In response to the noble Baroness, Lady Carnegy, I want to make it clear that this relates to the electricity generating industry. She went on to ask about harbours, particularly as the noble Lord, Lord Tyler, pointed out that harbours can vary in size between enormous ports and very small concerns. Because this Bill is about marine issues, harbours are an important part of our client group, so I want to reassure the noble Baroness that, when I said that the industry supports this approach, I sought to include both categories of harbour within that framework.
I omitted to respond to the point made a little earlier in the debate by the noble Lord, Lord Bridges, about wrecks. We are concerned that the marine environment should embrace any site, including those comprising the remains of any vessel,
"which is of historic or archaeological interest".
Clause 112(2) makes that quite explicit. We are very mindful of that point. It is an important one and I ought to have given the noble Lord a direct answer a moment ago.
I am having a little more difficulty with the question put by the noble Baroness, Lady Miller, because I was dealing with issues related to harbour authorities, and she will recognise their position in relation to the Bill. I shall have to write with a more specific response to the question of local authorities and their relationship with harbours. However, I emphasise that, within this framework, these are issues that relate to all the powers under the Harbours Act 1964, and I sought to be definitive in relation to that legislation. The noble Baroness asked a slightly more extraneous question and I am not sure that I am in a position to answer her directly. However, it is somewhat tangential to the main issues in this clause, which relates to the Electricity Act and the Harbours Act.
I do not think that this is tangential at all and I gave the example of Ilfracombe for a purpose. The development that it is considering has a lot to do with energy generation because it might look at combining that with the harbour development. Far from being tangential, it is an essential part of what we need to know in order to agree Clause 75. I would be grateful if the Minister would write to me on that relationship.
I can certainly undertake to do that and ensure that Members of the Committee are suitably informed.
I thank the Minister for that response. One definition of "holistic" is "full of holes", although I do not for a moment seek to suggest to the Committee that the noble Lord's response was full of holes. This has been a useful debate because it shows that, in their proposals in the Bill, the Government are seeking to simplify a process. I am not entirely sure that the Committee has been convinced that the legislation as written will in fact simplify it. To that extent, we have had a useful debate in this important area. We would all agree that applicants need to know that, when they are setting out on the process of any sort of development, they are not entering into a mare's nest of competing interests that will be raising or lowering the bar or making life generally difficult. Any single or one-stop process must be preferred, but I am not entirely sure that the way in which the Government are going about it at the moment is the best way of achieving it. We can leave that matter till later.
Clause 75 agreed.
Clauses 76 and 77 agreed.
Clause 78: Submarine cables on the continental shelf
Moved by Lord Hunt of Kings Heath
A33: Clause 78, page 46, line 41, leave out subsection (1) and insert—
"(1) Nothing in this Part applies to anything done in the course of laying or maintaining an offshore stretch of exempt submarine cable.
(1A) Where subsection (1) has effect in relation to part (but not the whole) of an exempt submarine cable—
(a) the appropriate licensing authority must grant any application made to it for a marine licence for the carrying on of a licensable marine activity in the course of laying any inshore stretch of the cable, and
(b) nothing in this Part applies to anything done in the course of maintaining any inshore stretch of the cable.
(1B) A licensing authority has the same powers to attach conditions to a marine licence required to be granted by virtue of subsection (1A) as it has in relation to a marine licence not required to be so granted.
(1C) In the application of this section in relation to any cable—
"inshore stretch" means any of the cable which is laid, or proposed to be laid, within the seaward limits of the territorial sea;
"offshore stretch" means any of the cable which is laid, or proposed to be laid, beyond the seaward limits of the territorial sea."
A34: Clause 78, page 47, line 1, at beginning insert "For the purposes of this section"
Amendments A33 and A34 agreed.
Clause 78, as amended, agreed.
Clause 79: Structures in, over or under a main river
Moved by Lord Hunt of Kings Heath
A35: Clause 79, page 47, leave out lines 30 and 31 and insert—
"(8) In subsection (7) above "licensable marine activity" and "marine licence" have the same meaning as in Part 4 of the Marine and Coastal Access Act 2009."."
This amendment introduces a group of minor technical amendments. I shall take the opportunity to explain our general approach to enforcement of the new licensing regime established by the Bill.
The regime is designed to allow development in the marine area, while also providing protection for the environment and human health and preventing interference with other legitimate uses of the sea. The primary aim of our enforcement proposals is to prevent harm. We want to bring people into compliance with the law, to avoid harm being caused in the first place. Experience with enforcement of the Coast Protection Act 1949 and the Food and Environment Protection Act 1985 has shown that the only options for sanctions under those Acts—warning letters or prosecution—are too limited a range of enforcement tools. There is a compliance gap for offences that the licensing authority would like to enforce but which are judged as being not proportionate to prosecute. Apart from any minor harm that might result, this can mean that operators who abide by the terms of their licence may face costs that those who operate outside licence conditions do not.
In the Marine and Coastal Access Bill, we are establishing a sanctions regime that provides a more proportionate range of tools for enforcement in the marine area. We have worked within the context and recommendations of the Hampton and Macrory reports and considered the provisions of the Regulatory Enforcement and Sanctions Act 2008. Essentially, they provide for more proportionate and targeted enforcement tools, designed primarily to bring people into compliance, but with the teeth to penalise offenders where that is necessary.
There are order-making powers in the Bill in Clauses 90, 92 and 138 to establish a civil monetary penalties scheme for enforcement of both licensing and nature conservation offences, similar to that established under the Regulatory Enforcement and Sanctions Act 2008. There will be further consultation on the design of this scheme later this year. In essence, fixed monetary penalties are intended to address minor non-compliances with licence conditions. Variable monetary penalties are intended to address more serious breaches of licence conditions.
On the statutory notices that we are making available to use under the Bill, the first, a compliance notice in Clause 87, may be used to bring an operator back into compliance where no serious harm has been caused. It will lay down steps with which the operator must comply to avoid any further penalty.
Our Amendments A45, A46 and A47 insert a test of "serious" into the compliance notice for circumstances where the notice cannot be given. These amendments mean that an enforcement authority will be able to issue a compliance notice only where the harm caused by the breach to the environment and human health, or interference to other legitimate uses of the sea, is not serious. This approach is aimed at preventing harm. A notice will be issued to a licensee to bring that operator back into compliance with their licence.
A remediation notice, which is covered in Clause 88, may be used for licensable activities where the operator has caused harm and does not have a licence for that activity or has breached the terms of their licence. This notice will detail steps that the operator needs to undertake to put matters right or may specify a sum of money that they must pay so as to allow someone else to remediate the harm that they have caused.
Amendments A49, A50 and A51 remove "serious" from the test for issue of a remediation notice. They mean that the enforcement authority will be able to issue a remediation notice where harm has been caused, by the lack of a licence or a breach, to the environment and human health or where there has been interference with other legitimate uses of the sea, and not just when serious harm has been caused. This enacts commitments made by the Government following pre-legislative scrutiny.
Two emergency notices designed to prevent serious harm complete the set. First, the stop notice will be used to stop activities that the enforcement officer believes to be causing or likely to cause serious harm. The second notice, an emergency safety notice, will be used to prevent serious interference with other legitimate uses of the sea—for example, ordering operators to provide navigational lighting to make safe navigational hazards. That last notice re-enacts a power under the Coast Protection Act 1949.
Amendments A65 and A66 remove "will" and insert "is likely to" in the test for issue of a stop notice so that it can be issued if the activity is causing or is likely to cause, or is creating or is likely to create, an imminent risk of serious harm to the environment or human health or serious interference with other legitimate uses of the sea.
Amendments A69, A70, A71 and A72 allow the imposition of an emergency safety notice without there already being a stop notice in place under Clause 101. The amendments allow the enforcement authority to issue an emergency safety notice where a licensable activity has led to a danger to navigation but without the requirement that a stop notice has already been issued, as there may be no activity to stop—for instance, if adverse weather has led to problems causing something to collapse into the sea, thereby creating a hazard.
These sanctions do not prevent the enforcement authority from using the tools that it already has: advice and warning letters, through to prosecution in the most serious cases. Under paragraph 10 of Schedule 7, the enforcement authority will develop and publish its enforcement guidance. Taken together, this new suite of enforcement tools will enable the effective enforcement of the marine licensing regime, which will not only protect the environment and human health and prevent interference with other legitimate uses of the sea but also make sure that operators who abide by the terms of their licence are not disadvantaged by the behaviour of those who do not. I beg to move.
We are on the whole very happy with the Government's amendments. They bring some technical changes and correct drafting to make a better and tighter Bill. We applaud these efforts, tempered only by the caveat that there appear to be quite a number of them. Although we are happy to support the Government, we would have preferred a more technically sound beginning.
We shall come back to Clause 88, but I shall talk briefly about Amendments A54 and A55 to Clause 93. We agree that the enforcement authority should be able to modify the amount of variable monetary penalty and, furthermore, that there should be a mechanism for appeal against the amount as well as the penalty. This makes sense in the context of further information about the circumstances and effects of the offence and the condition of the offender. However, these executive powers should not be used as a replacement for criminal prosecution. It is in the courts that the real penalties should be imposed. While it may be quicker and easier to use an effective variable monetary penalty, that should not be allowed to take precedence over criminal prosecution in the courts. Will the Minister assure us that this will not be the case?
Will the Minister address the amendments to Clause 112 in this group, which are Amendments A110 to A112? They are consequential and in no way differ from the general thrust of the amendments on which he has given a fuller explanation. I am particularly concerned about Clause 112(2). It picks up the point about wrecks, which were referred to just now. While the Minister considers that, I can report to the Committee that at about this time yesterday I was off the Scilly Isles, having flown in a Royal Naval helicopter from HMS "Cornwall"—so I was doing my homework, even though I was playing truant from your Lordships' House. What struck me was the extraordinary number of wrecks there are around the Isles of Scilly. This is a particular problem.
When it comes to the issue of enforcement and to seeing that there is proper protection for wrecks, it will potentially be very controversial to make sure that the Bill puts the right enforcement procedures in place and deals sensitively with the relationship concerning wrecks that are of considerable archaeological and historical interest, of which there are a great many around the Isles of Scilly. People should be brought into compliance, in the noble Lord's phrase, in an effective but not heavy-handed way. This is my best opportunity to raise the issue, because of the amendments to Clause 112: there may be other parts of the Bill to which I have not yet given my attention, but I hope that the Minister will be able to reassure us generally that this extraordinarily important issue is being dealt with.
What an exciting life the noble Lord, Lord Tyler, lives. When he is not taking part in films—or helping them to take place—he is on Royal Naval flights over all sorts of things. He also lives in a most wonderful part of the country. The noble Lord is absolutely right that Amendments A110 to A112 are very technical indeed, but I take his point about wrecks. The noble Lord has already noted that Clause 112(2) deals with interpreting that matter, but might I commit myself to writing to him in more detail about how we might approach that interesting point? There is a relationship between it and some of our debates about what might be called cultural heritage. In one sense, wrecks have a contribution, but they might present difficulties too and we clearly have to get the balance right.
Perhaps I may now respond to the points made by the noble Lord, Lord Taylor. First, there was the question of the enforcement authority's ability to choose whether to prosecute or to issue a monetary penalty. Part 4 of the Bill contains several offences: Clause 82 sets out that it is an offence to breach a requirement for a licence or a licensing requirement. The maximum penalties are,
"on summary conviction ... a fine not exceeding £50,000" and
"on conviction on indictment ... a fine or ... imprisonment" for up to two years. There are also offences in Clauses 86, 89, 100 and 102, while Clauses 90 to 92 provide for a powerful licensing authority to establish civil sanctions for an offence under Part 4. Those sanctions embrace both fixed and variable monetary penalties.
The noble Lord, Lord Taylor is concerned that the enforcement authority has the discretion to decide whether and how to enforce the provision. I hope to give him some reassurance here, because the approach to that would be set in its enforcement policy and in guidance. It can choose to enforce by prosecution or taking matters short of prosecution, such as giving advice or warning letters. Alternatively, it can impose a civil sanction. Paragraphs 9 and 10 of Schedule 7 set out the requirement on civil sanctions. As now under the Food and Environment Protection Act 1985, the offence is set out in Schedule 9, but how the licensing authority enforces the legislation is not set out in the Bill. We think that it would fetter a prosecutor's discretion to set out when the prosecutor must or must not prosecute. Essentially, the civil sanctions statutory notices in Part 4 are designed to address the issue that the tools currently available under the Food and Environment Protection Act 1985 do not provide sufficient proportionality for enforcement. This is an attempt to have a range of sanctions available to deal in a proportionate way with the matters that arise, which is why we want the enforcement authority to have the choice that we give. However, guidance will be issued to ensure that it is used in a proper way.
In my stewardship as Minister responsible for the Health and Safety Executive, which is not always the most popular organisation, I was very impressed by the proportionate approach that it took in practice. It made considerable efforts to encourage people to do the right thing but, in the end, needed strong sanctions and ultimately that of prosecution if people either did something that was so dreadful that that had to happen or continually ignored the help and warnings that they had been given. I must be careful not to draw too many parallels, but giving the enforcement authority a range of options in relation to sanctions is helpful and proportionate. In the context, I see it as an example of better regulation.
Will the Secretary of State be the author of the guidelines under which this would be administered?
Yes. I shall write to the noble Lord with more detail on how we will consult on those guidelines, because clearly they are very important.
The Minister kindly referred to Clause 112, "Interpretation of this Part". Perhaps I may add a brief comment on that clause. I am a little surprised to see that the interpretation refers largely to British vessels. As has been made clear from the recent reference to the wreck of HMS "Victory" on the Casquets, a lot of these wrecks are not necessarily British vessels. I am concerned that there are some extremely entrepreneurial people from other countries who will see what they think is an interesting wreck in our jurisdiction and that we have no means of stopping them. I hope that the clause can be looked at again to see whether the provisions could embrace waters that are definitely under our control, where foreigners come and hijack these wrecks.
The noble Lord has made a very important point. I have already said to the noble Lord, Lord Tyler, that I would like to take the opportunity to write to him in more detail about how we see the approach to the issue of wrecks. In doing so, I shall also look into the important matters raised by noble Lords, because we must ensure that there are no gaps here, if we can.
Clause 79, as amended, agreed.
Moved by Lord Taylor of Holbeach
A36: After Clause 79, insert the following new Clause—
"Waste activities in intertidal zone
(1) Where any waste operation requires an environmental permit under the Environmental Permitting Regulations 2007 (S.I. 2007/3538), the Environment Agency may disapply the requirements of those Regulations provided that the conditions specified in subsection (2) are met.
(2) The conditions are—
(a) the carrying out of the operation is also a licensable marine activity,
(b) the Environment Agency considers that, in view of the terms and conditions that will be included in the marine licence, the provisions of those Regulations can be dispensed with, and
(c) the Environment Agency issues a notice to that effect to the applicant for the environmental permit and marine licence.
(3) In this section, "waste operation" has the meaning given in the Environmental Permitting Regulations 2007."
After that slight foray into crime and punishment, we are back to one-stop shopping. This is a probing amendment. I believe that the Environment Agency has been in productive talks with Defra over the past couple of weeks, and I have tabled this amendment in the hope that there has been a satisfactory conclusion. My new clause addresses an apparent overlap between the two licence regimes—for an environment permit and for a marine licence—that might both apply to activities in the intertidal zone. In this situation, if the successful application for one licence requires the necessary criteria for the other to be met anyway, it would be wholly unnecessary for the applicant and the Environment Agency to have to go through the motions again for the second licence. This clause would allow the requirement for the second licence to be disapplied and save everyone involved some time and effort. I hope the Minister will be able to accept this amendment. I beg to move.
I am grateful to the noble Lord for moving this amendment. It reflects one of the key aims of this Bill, which is to introduce better regulation to the marine environment and reduce the burdens placed on industry while maintaining rigorous environmental standards. The Government welcome all suggestions from noble Lords that would further these aims and this is one such suggestion. I cannot give him the assurance today that we can accept it in its entirety but I can give him the assurance that we will look at it very carefully indeed; we certainly accept its intent and will return to this issue on Report constructively.
Amendment A36 withdrawn.
Clause 80 agreed.
Clause 81: Byelaws for flood defence and drainage purposes
Moved by Lord Hunt of Kings Heath
A37: Clause 81, page 48, line 20, at end insert—
"(3B) In sub-paragraph (3A) "marine licence" has the same meaning as in Part 4 of the Marine and Coastal Access Act 2009."."
Amendment A37 agreed.
Clause 81, as amended, agreed.
Clause 82 agreed.
Clause 83 : Action taken in an emergency
Moved by Lord Greenway
A38: Clause 83, page 49, line 5, after "vessel," insert "cargo,"
Part 4, Chapter 3 deals with enforcement and Clause 83(1) lists activities where a person charged with an offence can claim a defence. Paragraph (a) brings forward a defence, when a person is charged, provided that the activity was carried out for the purpose of securing the safety of a vessel, aircraft or marine structure or for the purpose of saving life. My amendment would introduce the word "cargo" after "vessel". This would ensure that a defence for failing to comply with licensing requirements was equally available where cargo in itself became a danger or had to be destroyed or rendered innocuous. For example, this could apply in the event of cargo shifting, or a spillage or leakage when it may be necessary to jettison some or all of the cargo to avoid loss or damage to other goods. Amendment A40 inserts a new clause headed "Accidental loss overboard". It states:
"It is a defence for a person charged with an offence under section 82(1) to prove that the action in contravention of section 62(1) was the result of the accidental loss overboard of cargo."
Such a defence would arise where, for example, as a result of stress of weather or other conditions beyond the vessel's control, cargo falls or is washed overboard. I beg to move.
The wording of Clause 83 comes straight out of the Food and Environment Protection 1985, which is a very small Act with fewer than 30 sections, unlike this Bill which has 300 or so clauses.
I have been involved in the London insurance market for more than 25 years. I should like to think that the loss of cargo, together with the cost of clean-up and other related liabilities, was covered by insurance. When I read these amendments I was not sure where the noble Lord, Lord Greenway, was going with them, so I was pleased to listen to his speech on them. I have racked my brain to see how securing cargo can lead to a damaging activity that can be defensible, other than damage caused when acting in accordance with instructions given by the Secretary of State's representative—otherwise known as SOSREP. I remind the Committee that SOSREP was an appointment set up following Lord Donaldson's 1990s report, Safer Ships, Cleaner Seas, whereby SOSREP manages marine emergencies. In the event of an impending disaster, after negotiation, SOSREP will issue instructions to minimise or avoid any damage. The instructions may be to run to port, or to run aground if the ship is about to break up. I seek an assurance that a person has a defence if he acts within SOSREP's intent, thereby trying to secure the cargo's safety.
I am grateful to the noble Lord, Lord Greenway, for moving this amendment and speaking to Amendment 40. I am also grateful for the specific point that the noble Earl, Lord Cathcart, raised. If the noble Lord, Lord Greenway, will forgive me, I shall address myself to the rather technical point which the noble Earl raised. As he indicated, the Secretary of State's representative (SOSREP) may make directions under Schedule 3A to the Merchant Shipping Act 1995, as amended, for someone to carry out a licensable activity without a licence in order to remove or reduce the risk of pollution, or more serious pollution. This may include the jettisoning of cargo from a vessel. Any person directed by SOSREP will have the defence of due diligence under Clause 106. In some circumstances they may also have the defence provided under Clause 83 if action is also taken in order to secure,
"the safety of a vessel, aircraft or marine structure ... for the purpose of saving life".
It is highly unlikely that a prosecution would be pursued in either of those circumstances. The person appointed as SOSREP would carry out this function as a Minister of the Crown, and is answerable to the Secretary of State. In the circumstances described, it is just not credible that the Secretary of State would ever have proceedings brought against him either under this Bill or under the Merchant Shipping Act 1995, as amended, which does not envisage any such situation. Therefore, I hope that I have given the noble Earl complete reassurance on that important point.
On the rather more general points that the noble Lord, Lord Greenway, raised, Clause 83 gives a person a defence against a charge brought against them if they carried out a licensable activity without a licence if they could prove that they did so,
"for the purpose of securing the safety of a vessel, aircraft or marine structure, or for the purpose of saving life".
The circumstances where the emergency defence is available are limited to those four possibilities. Licensable activities in all other circumstances should be undertaken within the terms of the licence in order to protect the environment and human health and to prevent interference with other uses of the sea, which is a cardinal principle underpinning this legislation.
For example, a deposit of a potentially dangerous or contaminated substance made to protect cargo is likely to be harmful to the marine environment. It is right that any such activity is controlled or carried out under the terms of the licence, if permitted at all by a licensing authority. Providing a defence as an emergency provision here would set an unwelcome precedent and cause quite severe damage to the objectives of the legislation.
We have tried and failed to think of other examples where a licensable activity would be undertaken without licence, or in breach of a licence, in an emergency in order to protect cargo that would not also be for the purposes of securing the safety of a vessel, aircraft or structure, or for the purpose of saving life, with the one exception to which I responded to the noble Earl, Lord Cathcart, where the instruction has been given to the people concerned. We would welcome suggestions of where this may not be the case. We think that the provisions give us total coverage on this matter, but I am always prepared to listen to Members of the Committee on such an important matter, particularly the noble Lord, Lord Greenway.
Under Amendment A40, the noble Lord suggests an additional provision in order to provide a defence if a person charged is able to prove that an unlicensed deposit was a result of accidental loss of cargo overboard. The Bill already contains the general defence of due diligence in Clause 106, which provides a defence against a charge if a person carries out a licensable activity without a licence but can prove that they,
"took all such steps as reasonably could be taken to ensure that no offence would be committed".
If a person has taken necessary steps to make secure any cargo or other items on board, a defence would be provided under this provision in Clause 106.
The licensing provisions protect those who unwittingly commit an offence while taking all reasonable steps to stay within the law. We would not want someone who has lost items overboard, albeit accidentally, to have a defence available to them if that loss is as a consequence of their own incompetence or neglect. Where those factors obtain, that should not be a proper defence. I want to reassure the noble Lord and the Committee that in all cases the enforcement authority will take into account extenuating circumstances, such as force majeure, when it decides if any enforcement action is appropriate. When we approached the Department for Transport about this amendment, it said that it was not aware of a prosecution that has been pursued in any case where cargo has accidentally been lost from a vessel.
For the reasons I have indicated, we think that we have thought about these issues seriously and have covered all eventualities where there could be a reasonable defence. I hope therefore that the noble Lord will feel that he has explored these issues sufficiently to be able to withdraw his amendment.
I take comfort from what the Minister has said, particularly with regard to Amendment A40. On Amendment A38, what would be the position if a ship carrying drums of chemicals on deck caught fire and, in order to prevent that fire spreading to the rest of the ship, they were pushed overboard? They certainly would not need to have a licence for polluting the sea under such circumstances.
In that case, the defendant would establish that the jettisoning had taken place to secure the safety of the vessel, which is a defence within the framework of the Bill. I think that that issue would be covered.
Amendment A38 withdrawn.
Moved by Lord Hunt of Kings Heath
A39: Clause 83, page 49, line 19, leave out "defendant or a person acting under the defendant's" and insert "person or of some other person acting under the person's"
Amendment A39 agreed.
Clause 83, as amended, agreed.
Amendment 40 not moved.
Clause 84: Electronic communications: emergency works
Moved by Lord Hunt of Kings Heath
A41: Clause 84, page 49, line 26, at end insert "and"
A42: Clause 84, page 49, line 28, leave out from "code" to end of line 30
Amendments A41 and A42 agreed.
Clause 84, as amended, agreed.
Clause 85 agreed.
Clause 86: Information
Moved by Lord Hunt of Kings Heath
A43: Clause 86, page 50, line 46, leave out "£50,000" and insert "the statutory maximum"
Amendment A43 agreed.
Clause 86, as amended, agreed.
Clause 87: Compliance notice
Moved by Lord Hunt of Kings Heath
A44: Clause 87, page 51, line 4, leave out "the appropriate" and insert "an"
A45: Clause 87, page 51, line 16, at beginning insert "serious"
A46: Clause 87, page 51, line 17, at beginning insert "serious"
A47: Clause 87, page 51, line 18, at beginning insert "serious"
Amendments A44 to A47 agreed.
Clause 87, as amended, agreed.
Clause 88: Remediation notice
Moved by Lord Hunt of Kings Heath
A48: Clause 88, page 51, line 26, leave out "the appropriate" and insert "an"
A49: Clause 88, page 51, line 40, leave out "serious"
A50: Clause 88, page 51, line 41, leave out "serious"
A51: Clause 88, page 51, line 42, leave out "serious"
Amendments A48 to A51 agreed.
Debate on whether Clause 88, as amended, should stand part of the Bill.
I tabled my opposition to Clauses 88 and 103 standing part of the Bill in order to ask some probing questions about the concept of remediation notices. I know that the Minister has already moved government Amendments 48 to 51 to Clause 88, but the clause is rather light on the detail of what remediation steps might be required of a licence holder and the Explanatory Notes do not go much further. In fact, the Explanatory Notes do not quite seem to mesh perfectly with the provisions of the Bill. The notes talk of remedying the damage caused, whereas the clause speaks only of steps to protect. I am sure the Minister would agree that restoring or remedying environmental damage and preventing or protecting from future damage are different things.
Can the Minister give us further information about what sorts of actions are likely to be encouraged? Will remedial notices be primarily financial, as made possible in subsection (7)(c), or will the offender be expected to participate in the steps? What would happen if the initial fine were found to be inadequate? Could a further levy be imposed for the same offence? Is there to be any sort of cap on how much can be levied by a remedial notice? Finally, if the licence holder is to undertake the remedial steps, what sort of assessment will be made of whether they have been effective?
There are wider questions about the effectiveness of remedial steps as a concept. Clauses 88 and 103 appear to assume that remedial action is a possibility in the case of all environmental damage. Of course, that is not so. Much environmental damage is irreversible, as has already been said. A species driven to extinction cannot be reintroduced. Damage to habitats is also extremely difficult to repair. For example, any Severn barrage will cause the loss of a stretch of intertidal area that is of the greatest importance for feeding resident and migratory birds. What remedial action could possibly compensate for that damage?
Remedial notices and actions could of course, in some cases, be extremely helpful. The cost of clearing up spills and pollution can be prohibitive, and it is right that the person who caused the damage should pay for it. However, we would not want to see the growth of an attitude of complacency, in which environmental damage is nodded at because of a mistaken belief that remedial action can always be applied.
We share some of the anxieties of the noble Earl, Lord Cathcart. The issue of remedy as opposed to mitigation of damage seems to be crucial to the whole philosophy behind the Bill.
Its long process of genesis has not yet sorted out precisely how that careful balance is to be achieved. The Minister has on a number of occasions and again this afternoon referred to bringing those responsible for damage into compliance, which is clearly an extremely important objective of the Bill. It may well be that in some circumstances it will be a question of mitigation rather than full remedy. As the noble Earl said, often damage that may start as being relatively minor can have very long-term consequences and be very difficult to reverse. This is an extremely difficult and technical area where the expertise available to the MMO will be extremely important. We have had a number of discussions in Committee about the quality of advice and support that it will have.
We share the concerns expressed by the noble Earl and his objective of probing from the Minister and the Government clarity about exactly what they have in mind in the complicated area of remediation notices. I do not envy the Minister, because he will have to live with the consequences of the Bill long after it has left your Lordships' House and perhaps after he has left his current responsibilities. This may be an area where he will look back and wonder whether we got it right. It will be very difficult to get it right; I sympathise with him in that respect. Sometimes it is much easier to say "Stop!" than to say what should happen once something has happened and it is necessary to try to reverse the situation. That is especially true in the marine environment, so I say good luck to the Minister. I hope that he will not need it.
"In subsection (7)(b) and (c), 'remedial steps' means steps taken (or to be taken)—
(a) in consequence of the carrying on of the activity in respect of which the notice is issued,
(b) for any of the purposes mentioned in subsection (9)".
Subsection (9) states:
"The purposes are—
(a) protecting the environment;
(b) protecting human health;
(c) preventing interference with legitimate uses of the sea".
Plainly, subsections (8) and (9) suggest that action must be taken to protect the environment, but not to restore it. Yet remediation must mean restoration. Clause 88 does not seem to address the need for a mechanism to enforce restoration, let alone to determine what level or type of restoration is acceptable and in what time frame. In that context, it is well to observe that European legislation demands either restoration at the damaged or destroyed site or compensation in the form of the provision, at an adjacent site, of an equivalent habitat. A similar criticism can be made of Clause 103, entitled "Power to take remedial action".
In reality, remedial action, either by restoration or providing a similar habitat, is very difficult to achieve in the marine environment. That is why regular and careful monitoring of the effect of licensed activities on biodiversity is so critical.
I make one final observation in this context. Subsection (9) mentions the purpose of protecting the environment, but does that mean protecting what is left of the environment after the damage is done?
This is a very interesting debate. I shall start by describing how the Government see the two clauses and then come on to deal with the substantive points of the argument in the debate. I readily acknowledge that it is complex but it is consistent with the approach we have taken to give proportionate powers to the enforcement authority.
Clause 88 enables the enforcement authority to issue a remediation notice to make someone put right the harm they have caused where they have carried out a licensable activity. The person might have breached the conditions of their licence and so damaged the environment or they might not have had a licence at all. We want to make sure that they can be made to remediate that harm to the environment or human health or the interference they have caused to other legitimate uses of the sea.
Clause 103 provides the power of the licensing authority to take remedial action. It enables the authority to carry out any works, whether they are for the purpose of protecting the environment or human health, or for preventing interference with legitimate uses of the sea, where a licensable activity has been undertaken without a licence. This is not a new power; it already exists under the Food and Environment Protection Act. Both FEPA and the Bill make provision for costs to be recovered. The difference is that under this Bill, the mechanism by which this is achieved is the service of a remediation notice, requiring the person on whom it is served to pay the costs of work undertaken under Clause 103. I understand that the power under FEPA is rarely used, but the Marine and Fisheries Agency tells me that it has found the threat of taking remedial action a useful tool in previous years.
As I said earlier, we are modernising the enforcement sanctions available for marine licensing offences under this Bill. The currently limited range of sanctions available—advice, warnings or prosecution—leads to what is considered to be a compliance gap where the licensing authority may have clear evidence that an offence has been committed but the seriousness of the case is such that it is judged not to be proportionate to prosecute it in the criminal courts. While the licensing authority works hard to ensure that the further harm or interference caused can be avoided or removed, this gap is unfair to the operators who abide by the law. They bear the costs of keeping to licence conditions while those competitors who do not save those costs.
The aim is for the enforcement authority to issue a remediation notice to make sure that those who hope to profit by acting illegally can be made to put right the wrongs they have caused. I will come on to the practicality of putting right everything that has been wrong; I accept that it is a very important point.
Amendments A49, A50 and A51, which we have already discussed, remove the word "serious" from the test for issue of a remediation notice. That is important because it means that the enforcement authority will be able to issue a remediation notice where the lack of a licence or a breach has caused harm to the environment and human health or caused interference to other legitimate uses of the sea, not just when serious harms have been caused. This enacts a commitment that the Government made following pre-legislative scrutiny.
Through Amendment A104, we have stipulated that only a licensing authority, and not an enforcement officer, will be able to issue a remediation notice. This is a safeguard, because it means that consideration of the measure, which might be required, will need to be carefully assessed. We would expect the enforcement authority to consult other expert bodies and those affected by the harm as to what actions might be required for remediation. We accept that this is an important issue.
We want to be able to address offences proportionately. There may be instances where an operator has inadvertently breached their licence, caused harm or interference, and is keen to work with the enforcement authority to put right that harm or interference. We want to encourage that, and we think that issuing a remediation notice detailing the steps that need to be undertaken might be all that is needed to bring the operator back into compliance.
As to what sort of remedial steps might be necessary, it very much depends on the case. That is why it is difficult to be precise. It might simply be a case of undoing what has been done, such as, for instance, removing a jetty that had been built without a licence. It might be impossible to undo what has been done. I readily accept that in some circumstances, it might not be possible to put right what has been damaged by such action. For example, if a habitat has been damaged or aquatic life killed, habitat construction or fish stocking elsewhere might be the appropriate remediation. It depends on the circumstances of the case. We would expect the enforcement authority, with expert advice, to assess whether the work has been done to a satisfactory level. If the offender was not capable of undertaking the work, the enforcement authority could use a remediation notice to recover the cost of the work.
Remediation notices are intended as a proportionate way to get someone who has caused harm to put that right. I emphasise that the enforcement authority would look at all the circumstances of the case, and only after detailed examination of the case—with consultation with interested parties, including the offender—would it finalise the steps to be taken under the notice. The licensing authority will need to publish its enforcement policy, and its development of this policy will have to consider the nature of the offence and what it is appropriate to take into account about the offender when deciding to issue a notice. If the licensing authority decides that the behaviour of the operator is so poor that the business operation is called into question, it will have other methods at its disposal. It could, for instance, suspend, vary or revoke the licence. It could issue a variable monetary penalty and prosecute the offence if that was proportionate enforcement action in that case.
As for costs, which noble Lords mentioned, remediation measures might entail, as I said, undoing what has been done. If a structure was built without a licence, it would be straightforward to require that the structure be taken down in a sensible and sensitive way. As the noble Lord, Lord Kingsland, pointed out, restorative action might simply not be possible in some cases. In such cases, remediation works designed to compensate for the damage may be ordered. I have already referred to the possibility of fish stocks being developed elsewhere. I am also advised that remediation might mean, for instance, running an education campaign to inform the public about a protected area.
I readily accept that we have little experience of the costs of restoration of marine diversity damage in the UK. There is an example of work that has been undertaken to mitigate the impact of human activities on marine ecology in the development of codes of conduct. The estimated cost of one code of conduct, aimed at the full range of activities in a bay, was about £150,000. That included developing the code; publishing it on sign boards, laminated cards and leaflets; and reporting and monitoring over a five-year period.
There is some experience of creating artificial reefs, whereby a structure fulfilling the functions of a natural reef is deployed on the sea bed. I understand that this is one strategy used to promote fishery enhancement, create new habitat or restore damaged habitat. There are examples where this has been done in the UK, including in Poole Bay, where the estimated cost was £200,000. There are other examples. In Plymouth, a wreck was deployed as an interest feature for recreational divers at a cost of £600,000. Remediation will ideally mean that what has been put wrong is put right. In some cases, as the noble Lord, Lord Kingsland, in particular, pointed out, other remediation steps might be taken.
I turn to subsections (8) and (9). In particular, subsection (9) needs to be seen in the context of Clause 66, which sets out the general principles for determining an application. As far as possible, remediation means putting right what has been done wrong. But if that is not possible, it means doing other things that will at least make amends for what has happened.
I very much appreciate the comprehensive way in which the noble Lord has dealt with this matter.
Clause 88 goes right to the heart of the Bill. The purpose of the Bill is to sustain biodiversity and enhance the sustainability of our seas. Unless we have an effective remediation system, we will not succeed in reaching, let alone maintaining, this objective.
I agree with the Minister and other noble Lords—I even said it myself—that restoration in a marine context is very difficult once the damage is done; and there are circumstances in which restoration can never take place. It is even more important, therefore, that the Committee should scrutinise the monitoring capabilities of the MMO very carefully to make sure that damage is not beginning to be done. If it can step in at that stage, restoration will not be an issue.
That is why I am worried, in particular, about subsection (9)(a), which refers to "protecting the environment". Although I have not tabled an amendment at this stage, I shall contemplate tabling one on Report to substitute "restoring the environment" for "protecting the environment". I am particularly alert to this problem because "protecting the environment", in the end, could be interpreted by the courts to mean protecting what is left of the environment after the damage has been done.
I invite the Minister, between now and Report, to reflect on whether Clause 88 needs tightening up and to look at the monitoring powers of the MMO to make sure that the best possible efforts are made not to let the damage start in the first place.
I am grateful to the noble Lord, Lord Kingsland, for his advice in this area. I certainly undertake to look at this matter in the light of what has been discussed in this debate. The basis on which the enforcement provisions are put before the Committee is that we want a preventive approach. The noble Lord was not in his place when I drew parallels with the Health and Safety Executive. It is always rather foolhardy of me to draw such parallels, but I believe that most of its work is at the preventive end; enforcement comes only where it is absolutely necessary. If we are going to be successful, we will need early intervention to ensure that the marine environment is protected as effectively as possible.
I hear what the noble Lord says about subsections (8) and (9). Subsection (8) describes what "remedial steps" means. I take the meaning to be restoration as far as possible and that it has to take place within the context of the purposes mentioned in subsection (9). The reason for that can be found in Clause 66(1), which sets the overriding context. The noble Lord, with all his experience, said that he thinks that there may be a risk that we have not got this as tight as possible, so I shall take it back and have a further look at it.
This has been a useful debate and I thank the noble Lord, Lord Tyler, for his support on the need for clarity and my noble friend Lord Kingsland for reinforcing my questioning of the word "protecting" rather than "remedying". I thank the Minister for underlining the requirement to remedy the damage caused and for clarifying the steps necessary to bring any damage case to a satisfactory conclusion, in particular that he causing the harm must put it right. However, I know that this is a very difficult area and that it is not always possible to do that. The Minister also said that it will probably be possible to revoke the licences of persistent offenders and that, where remedial work is not possible, compensation might be necessary. I also thank him for agreeing to take back the point made by my noble friend Lord Kingsland about protecting the environment—that is, what is left of the environment—after damage has been done.
Clause 88, as amended, agreed.
Clause 89: Further provision as to enforcement notices
Moved by Lord Hunt of Kings Heath
A52: Clause 89, page 52, line 30, leave out "The appropriate" and insert "An"
Amendment A52 agreed.
Clause 89, as amended, agreed.
Clause 90 agreed.
Clause 91: Fixed monetary penalties: procedure
Moved by Lord Hunt of Kings Heath
A53: Clause 91, page 54, line 13, leave out "it was" and insert "the penalty is proposed to be"
Amendment A53 agreed.
Clause 91, as amended, agreed.
Clause 92 agreed.
Clause 93: Variable monetary penalties: procedure
Moved by Lord Hunt of Kings Heath
A54: Clause 93, page 55, line 11, leave out "the penalty" and insert "a penalty and, if so, the amount of the penalty,"
A55: Clause 93, page 55, line 15, leave out "to impose it" and insert "as to the imposition or amount of the penalty"
Amendments A54 and A55 agreed.
Clause 93, as amended, agreed.
Clause 94 agreed.
Schedule 7: Further provision about civil sanctions under Part 4
Moved by Lord Hunt of Kings Heath
A56: Schedule 7, page 238, line 35, leave out sub-paragraph (2) and insert—
"( ) In sub-paragraph (1)(b)—
"enactment" includes an enactment contained in, or in an instrument made under, Northern Ireland legislation;
"tribunal" does not include an ordinary court of law."
Amendment A56 agreed
Schedule 7, as amended, agreed.
Clause 95: Delegation of functions relating to marine licensing
Moved by Lord Hunt of Kings Heath
A57: Clause 95, page 56, line 16, leave out "the appropriate licensing authority or the appropriate" and insert "that authority or an"
A58: Clause 95, page 56, line 39, at end insert—
"( ) section 70 (making regulations regarding appeals against licensing decisions under section 68);"
A59: Clause 95, page 57, line 1, leave out " 75(2) and 76(2)" and insert " 75(6) and 76(6)"
Amendments A57 to A59 agreed.
Moved by Lord Tyler
A60: Clause 95, page 57, line 10, at end insert—
"(7) The appropriate licensing authority may at any time revoke, suspend or amend an order made under this section."
We now come to Chapter 4 and the issue of delegation. Clause 95 contains a great deal of detail, which we recognise as being necessary on this subject. It spells out in considerable detail precisely in what circumstances what types of functions can be delegated and, implicitly, to whom. We suggest a simple addition at the end of the clause:
"The appropriate licensing authority may at any time revoke, suspend or amend an order made under this section".
The Government may say that that is implied but, frankly, it is better spelt out in the Bill. It is extremely important because, as I am sure all Members of the Committee will agree, this Bill, once enacted, will have to stand for a long time. It will have to move, to some extent, with the times and it will have to be sufficiently flexible to ensure that all those given responsibilities under the Bill have the powers that are needed to keep up with what could be a changing situation. The tide will come in and the tide will go out. In those circumstances it seems essential to spell out that the authority concerned should have, as part of its powers, the opportunity and the responsibility to revoke, suspend or amend an order made under the delegation arrangements. It is as simple as that. This is a tidying-up suggestion and I hope that the Minister will see fit to include it, because we believe that it would complete this clause and make it watertight.
The noble Lord, Lord Tyler, has introduced a worthy amendment. If the appropriate licensing authority is allowed to delegate functions relating to marine licensing, it is equally important that these powers are not alienated beyond control. The appropriate licensing authority must ultimately be in command and so must be able to revoke the delegation of its powers. Can the Minister tell us whether he agrees with the amendment tabled by the noble Lord, Lord Tyler, and can he explain in more detail how he envisages the process of delegation and revocation of powers working? Does he agree that it might be useful to have the process set out in the Bill?
I hope that I am in the right place at the right time to ask whether the Government are going to take up the recommendation from the Delegated Powers Committee's first report that any order under Clause 95 should attract the affirmative procedure, as do orders under Clauses 90 and 92.
I agree with the noble Lord, Lord Tyler, that, because this Bill will, we hope, stand for a long time, sometimes one needs to be precise and at other times one needs flexibility. We tend to veer between the two in our debates, which is entirely understandable.
Clause 95 provides the appropriate licensing authority, as defined by Clause 110, with the power to delegate any of its licensing functions by order to another person or body, referred to as the "delegate". There are a limited number of functions that the licensing authority cannot delegate which involve the production of orders or regulations. These remain the preserve of the ministerial authority and are listed in subsection (6). Additionally, a delegate cannot subsequently delegate the licensing and enforcement functions to another body. This is specifically prevented by subsection (6)(g).
Subsection (2) provides for the order-making power to confer directly on a person the powers to impose fixed and variable monetary penalties that it may otherwise confer by virtue of an order under Clauses 90 or 92. That is drafted in such a way as to accommodate the different approaches that each of the UK Administrations is taking towards the exercise of their licensing and enforcement functions. The approach that we have taken to delegation provides the flexibility not only to accommodate the different approaches but also to change them in the future without the need for amending the Bill.
I understand why the noble Lord tabled his helpful amendment, but we do not think that it is necessary. Parliament has already legislated to the same effect in the Interpretation Act 1978. Section 14 of that Act states that, unless the contrary intention appears, a power to make regulations is exercisable in the same manner and subject to the same conditions or limitations to revoke, amend or re-enact any instrument made under that power.
In relation to "suspend", the Bill aims to increase certainty for developers and users of the marine environment. Suspending an order delegating functions to the delegate—the MMO in the case of England—would lead to a period of great uncertainty for applicants and a hiatus in processing licence applications. Applications currently in the pipeline or under consideration could not be progressed. It is unlikely that the licensing authority would have the operational capacity and expertise to pick up where the delegate left off. Clause 97 creates a power of direction that will enable the licensing authority to instruct any delegate in the performance of its functions, which the delegate must comply with by virtue of Clause 97(3). This is an appropriate mechanism for controlling the performance of the delegate when exercising its licensing functions.
The noble Lord raised a substantive point and I know that he is seeking to give clarity to readers of the legislation. However, because this is covered by the Interpretation Act, we think that it is quite clear. The noble Baroness, Lady Byford, asked whether the Government have accepted the recommendations of the Delegated Powers Committee. She will know that the Government always consider carefully recommendations from the Delegated Powers Committee. Government Amendment A372 in Clause 306 addresses the recommendations of the Delegated Powers Committee where the order contains civil sanctions, which is the point that it raised.
I am grateful to the Minister for that full explanation. I confess that the Interpretation Act is not my normal bedtime reading so I have not gone back and looked at it, but clearly it is relevant in this context. We will read in Hansard what he has said and consider whether we still think it necessary to pursue this. In the mean time, I beg leave to withdraw the amendment.
Amendment A60 withdrawn.
Clause 95, as amended, agreed.
Clauses 96 and 97 agreed.
Clause 98: Register
Amendment 61 not moved.
Moved by Lord Hunt of Kings Heath
A62: Clause 98, page 58, line 30, after "licensable" insert "marine"
Amendment A62 agreed.
Amendment A63 not moved.
Clause 98, as amended, agreed.
Clause 99: Notice to stop activity causing serious harm etc
Moved by Lord Hunt of Kings Heath
A64: Clause 99, page 59, line 19, leave out "the appropriate" and insert "an"
A65: Clause 99, page 59, line 28, leave out "will" and insert "is likely to"
A66: Clause 99, page 59, line 29, leave out "will" and insert "is likely to"
Amendments A64 to A66 agreed.
Clause 99, as amended, agreed.
Clause 100: Further provision as to stop notices
Moved by Lord Hunt of Kings Heath
A67: Clause 100, page 60, line 17, leave out "The appropriate" and insert "An"
Amendment A67 agreed.
Clause 100, as amended, agreed.
Clause 101: Imposition of safety requirements where stop notice is in force
Moved by Lord Hunt of Kings Heath
A68: Clause 101, page 60, line 27, leave out subsections (1) and (2) and insert—
"(1) This section applies if it appears to an enforcement authority that serious interference with legitimate uses of the sea is occurring, or is likely to occur, in its area as a result of—
(a) any works for the carrying out of which a marine licence is or was needed, or
(b) any substantial and unforeseen change in the state or position of any such works.
(2) The enforcement authority may issue a notice (an "emergency safety notice") to any person who is in control of the works to which the notice relates."
A69: Clause 101, page 60, line 39, leave out subsection (5)
A70: Clause 101, page 61, line 5, leave out from "occur" to end
A71: Clause 101, page 61, line 13, leave out subsections (7) to (9)
Amendments A68 to A71 agreed.
Clause 101, as amended, agreed.
Clause 102: Further provision as to emergency safety notices
Moved by Lord Hunt of Kings Heath
A72: Clause 102, page 61, line 25, leave out subsection (1) and insert—
"(1) An emergency safety notice issued by an enforcement authority must be served on each of the following—
(a) if a marine licence has been granted authorising the carrying out of the works, the licensee,
(b) if there is in effect a stop notice which relates to the works, any person on whom the stop notice was served."
A73: Clause 102, page 61, line 28, leave out "The appropriate" and insert "An"
Amendments A72 and A73 agreed.
Clause 102, as amended, agreed.
Clause 103 agreed.
Clause 104: Power to test, and charge for testing, certain substances
Moved by Baroness Miller of Chilthorne Domer
A74: Clause 104, page 62, line 12, at end insert—
"(d) any nano substance."
Clause 104 is to do with the power of the licensing authority to test—and charge for testing—certain substances. My amendment suggests that we should include any nanosubstance. I believe that this amendment is necessary to probe what is happening as far as regulating nanosubstances is concerned.
Your Lordships may wonder why we specify "nano"—would that not fall under the chemical regime? I do not believe it does. The regulatory regime as it stands does not cover nanosubstances; indeed, back in 2005 Defra showed foresight in commissioning the Central Science Laboratory to undertake a scoping study into the manufacture and use of nanomaterials in the UK. The development of these materials is very quick, while our regulatory and legislative response is very slow in comparison. Defra recognised the urgency of this; as the Minister will remember, in 2006 Defra's R&D budget suffered a serious number of reductions, but nanotechnology research received an exemption from the moratorium that year. I do not have the latest research figures—perhaps the Minister will tell me—but I think that it was intended last year that £450,000 would be spent on research in this field. I would be grateful if the Minister would update us on where that research has got to.
Why is this important for the marine environment? Nanomaterials have a completely different way of being toxic to the ecosystem from the substances from which they come. One of the examples that I could give of where a substance has a different form in its larger life, so to speak, is silver, which is a well known substance. When you reduce it to its "nano" form, it performs a completely different function. We will probably all be using it in our washing machines in the next decade or so, as apparently it is one of the ways that you can clean things. I will not go into much more detail on that now.
The ecotoxicity of any material such as silver when used in that way is something that we should be concerned about with regard to the marine environment. If it is used in a washing machine, for example, it will go out into the water course, through the sewer system and eventually into the marine environment, where it could bioaccumulate in fish, in shellfish or in anything. We do not know what the effect of that will be, nor what the effect on us will be of eating those fish or shellfish when we are lucky enough to do that. I do not want to be alarmist, as there may be no ill effects at all; I am simply saying that at the moment we do not know the effects.
I realise that the clause containing this is very specific and is really talking about oil spills and so on. Equally, though, nanotechnology may have lots of applications in that area. I am not sure that the Bill as drafted would cover these substances, because it refers to "chemicals"—nanoparticles may well be not chemical but mineral, although they have been re-engineered to produce a quite different effect, such as accumulating in shellfish, as I have explained.
The amendment probes where the Government have got to in their research and what they have commissioned and received in terms of the aquatic, particularly the marine, environment with regard to this technology, and to check with the Minister if he thinks that the regulatory regime has anticipated the force with which nanotechnology is going to hit it and whether this is a legislative gap that needs to be filled. I beg to move.
I was interested to hear the noble Baroness's introduction of her amendment. It has alerted the Committee to important developments that may need addressing in the Bill. She is quite right that nanotechnology is certain to have a huge impact on all aspects of our lives in future. Research and development is constantly turning up new uses for and effects of this technology, and it is already making itself felt in those industries connected with the marine sector.
The potential of the technology is clear: the new anti-fouling paints that rely on nanotechnology rather than biocides will, hopefully, lead to a significant reduction in the environmental harm done by shipping. However, as the Royal Commission's report made clear, the dangers are considerably less well understood. It is vital that new products and technologies are properly assessed before being widely implemented. I share the noble Baroness's concern that the Bill draws too tight a definition around the areas in which the licensing authority can commission further research before considering a licence application. There is also the danger of shooting too far off in the other direction and preventing the application of a new technology because it is impossible to prove that it will be 100 per cent safe in all circumstances.
I look forward to hearing the Minister's response to this amendment in the hope that he will be able to shed some light on the Government's thinking about the adoption of new and uncertain technologies. The licensing authorities will need to have clear guidance about how rigorous these tests must be before a new product can be considered safe.
I will certainly do my best to shed some light, but the noble Lord will appreciate as much as the noble Baroness who moved the amendment that we are discussing some unknown factors here, on which substantial research is still to be carried out. I understand the importance of the noble Baroness's amendment, but she will know that the clause enables the licensing authority, at anyone's request, to perform tests to ascertain the affected substances on the marine environment and to charge for that testing. Substances that she rightly identified as covered by the provision are those that have the purpose of treating oil, chemicals, algae or other living or dead organisms that may foul the surface.
The purpose of this clause is that, once tested and found to have an acceptably low impact on the marine environment, approved substances can be added to the exemptions order, meaning that they can be applied in emergency situations without the need for obtaining a marine licence first. The purpose for which these substances are put to use is therefore central to whether or not they should be tested by the licensing authority. To that list the noble Baroness is adding nanosubstances.
There are considerable uncertainties about the toxicity, behaviour and effects of nanomaterials in environmental media, and the UK currently has in place a moratorium on the use of these substances and applications for environmental remediation, because we are not certain about their impact. It may be that the future will demonstrate that nanosubstances can indeed be a helpful method for treating chemicals, oil or fouling material on the sea, seabed or structures under Clause 104. They would then be classified under one of the terms in subsection (1) as a marine chemical treatment substance, a marine oil treatment substance or a marine surface fouling cleaner. That would allow the licensing authority to test the environmental effects associated with using nanosubstances for those purposes, with a view to exempting them from the need for a marine licence and the deployment in clean-up situations. Anyone who wants to deposit a nanosubstance in the marine environment for non-clean-up or emergency situations should require a marine licence, as they would for any other substance.
The noble Baroness sought to press the Government on how far we had got in resolving uncertainties. We are committed to the responsible development of nanotechnologies, and we will work with all interested parties to develop a suitable strategy that addresses both the exploitation of the technologies and the management of any potential risks to which they give rise. There is, however, continuing uncertainty over the properties and behaviour of manufactured nanomaterials, which make it difficult to determine accurately the extent of hazard and exposure. The recently launched second phase of the Environmental Nanoscience Initiative, a jointly funded research programme between the United Kingdom and the United States, aims to improve understanding of the fate and behaviour, ecotoxicology and ecological effects of engineering nanoparticles in environmental systems. The programme aims to develop conceptual modelling scenarios for environmental exposures, thereby identifying critical exposure points. As I have already had criticism this afternoon, in the social science context, on the basis that "holistic" is not entirely acceptable in this House—what does it mean?—I am wilting a little as I describe the nature of this research and the investigation we are carrying out. I am afraid that the House will have to accept these terms from me as I have no others to put in their place.
The Royal Commission on Environmental Pollution's recent report, Novel Materials in the Environment: the case of nanotechnology, called for a larger and more co-ordinated effort, led by the research councils, to address uncertainties about the behaviour and effects on nanomaterials on human health and in the environment, and the Government's response to this report will be available in late spring.
That is the best I can do to enlighten the noble Baroness, and, indeed, the noble Lord. They will fully appreciate that we are dealing here with an area in which there are still very substantial uncertainties. I accept entirely the noble Baroness's point that we ought not to close off potentialities, but she will also recognise our anxieties about including in the Bill a specific reference to concepts upon which very substantial research is still necessary, on which the Government have not yet got a firm view and upon which there is still a moratorium on deployment.
The noble Baroness has succeeded, by moving this amendment, in pushing the Government as far as they can go in identifying possibilities in these terms at this stage. I hope she will recognise why we are reluctant to, and in fact cannot, accept the amendment and that she will feel able to withdraw it with the confidence that the Government are taking this technology very seriously. There is very substantial research going on, but we are not at the point of reaching judgment as yet.
Before the noble Baroness responds, perhaps I may add that we understand the Government's aversion to lists, and this very clause shows the difficulties of a list system—we have three items listed and we are seeking to add a fourth—but the very argument that the Minister has presented is surely the reason why a licensing authority should be able to conduct tests. If nanotechnology does have such a bearing on possible maritime uses, a specific reference to it, to my mind, would not be out of order in this section and indeed, would very much reflect what the Minister says about potential development in this area.
I certainly thank the noble Lord, Lord Taylor of Holbeach, for his very useful comments and for reminding us of how far the Royal Commission's report has got. It is helpful that the Minister has told us that the response will be in late spring, and we look forward to that, because one of the themes of the Royal Commission was that there should be mandatory reporting about this. The Minister did not tell us how much money is being spent at the moment by Defra on research and I would be grateful if he would drop me a line on that between now and Report; nor was there any mention of the research commissioned in the marine area, which would be very interesting.
What the Minister did tell us was that there is a moratorium on the use of nanosubstances for environmental remediation, but I am not sure that, in the Bill, the term, "wash-off substance" would actually be covered. That is a bit different from environmental remediation, which is the term used in those other instances. I would want to look at that between now and the Report stage, unless the Minister can assure me that the moratorium does cover wash-off.
I thank the noble Baroness for giving way. Her amendment raised an interesting subject. The Bill deals with things that are happening at sea and substances that are used at sea, but given that the noble Baroness said that nanosubstances might be classified as a chemical substance, we are also talking about substances that might be washed down into the sea, not necessarily from the marine area. The authorities here would not have any powers to look into these effects.
I thank the noble Duke for reinforcing the point I was trying to make and for recognising that that is an issue. I take heart from the interventions from the Conservative Benches: the Government should recognise that this Bill should be forward-looking, but between now and the Report stage, I shall look carefully at the other issues I have mentioned. I look forward to receiving the Minister's letter outlining the information I have asked for and in the mean time I beg leave to withdraw the amendment.
Amendment A74 withdrawn.
Clause 104 agreed.
Clauses 105 to 107 agreed.
Clause 108: Application to the Crown
Moved by Lord Hunt of Kings Heath
A75: Clause 108, page 64, line 27, leave out "requisite" and insert "necessary"
Amendment A75 agreed.
Clause 108, as amended, agreed.
Clause 109 agreed.
Schedule 8: Licensing: minor and consequential amendments
Moved by Lord Hunt of Kings Heath
A76: Schedule 8, page 242, line 12, at end insert—
"( ) Omit Part 2 (provisions for safety of navigation)."
A77: Schedule 8, page 242, line 15, leave out sub-paragraph (3)
A78: Schedule 8, page 243, line 6, leave out "officers" and insert "offences"
A79: Schedule 8, page 243, line 24, at end insert—
"( ) in paragraph (b)(i), for "United Kingdom waters, or United Kingdom controlled waters, adjacent to Scotland" substitute "waters within the Scottish inshore region";"
A80: Schedule 8, page 243, line 25, leave out "sub-paragraphs (i) to (iii) of paragraph (b)" and insert "paragraph (b)(ii) and (iii)"
A81: Schedule 8, page 243, line 40, leave out "148" and insert "149"
A82: Schedule 8, page 243, line 41, leave out "148A" and insert "149A"
A83: Schedule 8, page 244, line 23, leave out "160" and insert "161"
A84: Schedule 8, page 244, line 26, at end insert—
"( ) In section 161 (breach of terms of order granting development consent), in subsection (2), for "sections 148(4) and 149(4)" substitute "section 149A(4)"."
A85: Schedule 8, page 244, line 26, at end insert—
"( ) In Schedule 4, in paragraph 1(11) (power to correct certain errors or omissions in development consent decisions) for the words from "any of paragraphs" to the end of the sub-paragraph substitute "paragraph 30A or 30B of Schedule 5 (deemed marine licence under Marine and Coastal Access Act 2009)."."
A86: Schedule 8, page 244, line 46, leave out "147" and insert "148"
A87: Schedule 8, page 245, line 1, leave out "148" and insert "149"
A88: Schedule 8, page 245, line 38, leave out from "code" to end of line 40
Amendments A76 to A88 agreed.
Schedule 8, as amended, agreed.
Schedule 9: Licensing: transitional provision relating to Part 4
Moved by Lord Hunt of Kings Heath
A89: Schedule 9, page 248, line 23, leave out paragraph (ii) and insert—
"(ii) is an activity which, on or after that date, must not be carried on except in accordance with a marine licence granted by the appropriate licensing authority,"
A90: Schedule 9, page 248, line 43, leave out paragraph (ii) and insert—
"(ii) on or after that date, must not be carried on except in accordance with a marine licence granted by the appropriate licensing authority,"
A92: Schedule 9, page 249, line 10, leave out "date on which that repeal takes effect" and insert "commencement date"
A93: Schedule 9, page 249, line 18, leave out paragraph 6 and insert—
"6 The amendments made by paragraph 2 of Schedule 8 do not affect the operation of section 10 of FEPA in relation to anything carried out otherwise than under and in accordance with a FEPA licence before the commencement date."
A94: Schedule 9, page 249, line 38, leave out sub-paragraph (2)
A95: Schedule 9, page 250, line 5, leave out from "date" to end of line 12 and insert "remains in force, and may be revoked, amended or re-enacted, as if that section had not been repealed."
A96: Schedule 9, page 250, line 18, leave out "marine licensing provisions" and insert "provisions of Part 2 or 4"
A97: Schedule 9, page 250, line 20, leave out sub-paragraph (5)
A98: Schedule 9, page 251, line 4, after "determined" insert "or withdrawn"
Amendments A89 to A98 agreed.
Schedule 9, as amended, agreed.
Clause 110: The appropriate licensing authority
Moved by Lord Glentoran
A99: Clause 110, page 65, line 24, leave out paragraph (b)
I am afraid that this amendment returns to the question of devolution; in this case, the power of the Welsh Assembly to issue licences in Welsh territorial waters. The complexity of the devolution provisions in this Bill is clearly highlighted in this area. As we have already discussed, not only do we have a multiplicity of licensing authorities based on territorial limits but frequently need consent from each other; we also have overlapping areas of authority between these licensing authorities and the other licensing bodies, such as the IPC.
As my noble friend said earlier, these overlaps cause duplication and risk conflict. Clause 76 specifically acknowledges one area where licences are likely to be duplicated, and the appointment of the devolved Administrations as the appropriate licensing authorities for certain activities in certain areas of the sea will undoubtedly lead to many more. Does the Minister anticipate any degree of conflict between the various bodies involved that is likely to arise when multiple permissions need to be sought? I beg to move.
I note what the noble Lord, Lord Glentoran, has said about the powers to issue licences in Wales. My understanding is that the Welsh Assembly desires this power and, indeed, that it is a necessary one. I cannot follow the logic of removing it in these circumstances.
I thought that the amendment was probing in nature, but obviously the noble Lord, Lord Livsey, interprets it as a provocative one. I shall respond to it in slightly more careful terms than I might otherwise have done. The noble Lord is right to say that the amendment would prevent Welsh Ministers exercising any marine licensing functions in Wales for the Welsh inshore region when that is what they want to do. I am sure that with his amendment, the noble Lord, Lord Glentoran, is stimulating the debate for the purposes of clarity and in order to ensure that we have the issues absolutely right between the several authorities involved in the Bill.
The licensing arrangements in Part 4 reflect as far as possible the current devolution of responsibilities for protection of the marine environment, and these are reflected in the arrangements set out in Clause 110. In essence, Scottish Ministers are the licensing authority in the Scottish offshore region; Welsh Ministers in Wales and the Welsh inshore region; the Northern Ireland Department of Environment in Northern Ireland and the Northern Ireland inshore region; and the Secretary of State everywhere else. There are a number of reserved matters, activities relating to which will remain licensable by the Secretary of State even in areas that would otherwise have a different licensing authority.
Let me reiterate a point that I and, I am sure, my noble friend Lord Hunt have made before: it is not the intention of this Bill to renegotiate the devolution settlement. Where devolved Administrations currently have environmental protection functions under Part II of the Food and Environment Protection Act 1985, these have been preserved by the arrangements as laid down in this part. Clause 110 sets out these arrangements by defining the appropriate marine licensing authority accordingly.
I shall have some difficulty in convincing the Committee on this point, but the Bill does not make the arrangements more complicated so far as environmental protection is concerned. Scotland and Northern Ireland have legislative competence for marine environmental protection in their territorial waters. Scotland has decided to exercise this legislative competence and is producing its own Scottish marine Bill for the Scottish inshore region. Northern Ireland has decided not to produce its own Bill and is therefore brought within the scope of this Bill. That is why there is a difference between them.
Wales does not have legislative competence here and is therefore subject to the provisions of this Bill, which reflects, as far as possible, the existing executive devolution arrangements in the marine area. As I said, the arrangements primarily mean that in the Scottish offshore region, Scottish Ministers are the licensing authority; in the Welsh inshore region, Welsh Ministers are the licensing authority; in the Northern Ireland inshore region, the Northern Ireland Department of Environment is the licensing authority, and everywhere else it is the Secretary of State. But of course the licensing authority is also dependent on the type of activity being undertaken, and as the Committee will readily appreciate, there are reserved matters. Oil and gas are reserved, and the issuing of marine licences is also reserved in all areas except for the Northern Ireland inshore region. The Secretary of State is therefore responsible for issuing all marine licences for activities relating to oil and gas matters, except in the Northern Ireland inshore region where they will be issued by the Department of Environment, Northern Ireland. Defence matters are also reserved—they are "excepted" in Northern Ireland—and therefore the Secretary of State is responsible for issuing marine licences anywhere in UK waters for activities relating to defence.
I hope it will be appreciated that the Bill follows clearly the pattern of the agreed settlement on devolved matters. All the devolved Administrations are committed to the licensing reforms in this Bill, and we have worked closely with them in developing this legislation. We have to reflect the nature of the devolution settlement and the respective powers of the Administration, which is what the Bill does and why the provisions are different for Wales and Scotland.
I am still struggling with one element of this. Under the devolution settlement, Scotland has full powers in the Scottish inshore area. However one of the things that is exercising me is mineral extraction. Under the FEPA regulations the Scottish Executive will have powers at the planning level in the Scottish offshore area, but will they have powers over the actual mineral extraction in that area? Perhaps the Minister would like to come back to me on that point.
Is the noble Duke talking about mineral extraction in terms of coal? The Bill concerns the marine arrangements for above the surface of the sea bed. Extraction from the sea bed is not devolved and the Scottish authorities do not have powers for extraction, because that is a reserved position. In this legislation we are discussing not what lies below the sea bed but the marine environment above the sea bed, if I can put it in such crude terms.
The Bill goes into the question of dredging and removing matter from the sea bed, so it is a question of how deep that is likely to become. I quite agree with the Minister that the extraction of coal is thoroughly a reserved matter, but when it comes to other minerals, I wonder how the situation stands in the offshore area.
I referred specifically to coal because the Coal Industry Act 1994 regulates it and I am, therefore, standing on firm ground. I would scarcely be doing so if we were to discuss what else lies under the sea bed. I do not think that I am in a position to answer the noble Duke's question directly at this point and I would not want to mislead the Committee. I will write to him and make sure that Members of the Committee know the position. However, he will appreciate that the extraction from the sea bed of the key mineral of coal is clearly not a devolved matter.
I will have to come back on that point. The issue of dredging does not really come into it. Dredging is not excavation from below the sea bed in quite that form but the clearing of channels, not with a view to extraction but to make navigable the harbours. It is therefore under a different provision and relates to the clauses governing harbour authorities. I will have to write on the other point because I do not have a definitive answer on other minerals. I hope that the amendment can be withdrawn on that basis.
The Minister is right: this was intended to be a purely probing amendment to open the debate on the complex issue of overlapping boundaries, overlapping authorities and so on. Today we had another very helpful set of maps from the Secretary of State's office. I have not had time to study them in detail, but they have been very helpful. It might interest the noble Lord, Lord Hunt, to know that I mentioned in another situation the huge helpfulness of his team in another department in producing the maps and all the rest of it. I was hoping that the noble Lord, Lord Livsey, would come in, because he was not here when I first started. I thank him for rising to the debate. I beg leave to withdraw the amendment.
Amendment A99 withdrawn.
Moved by Lord Hunt of Kings Heath
A100: Clause 110, page 66, leave out line 14
Amendment A100 agreed.
Clause 110, as amended, agreed.
Clause 111: The appropriate enforcement authority
Moved by Lord Hunt of Kings Heath
A101: Clause 111, page 66, line 18, leave out "the appropriate" and insert "an"
A102: Clause 111, page 66, line 20, leave out " 99 and 101" and insert "and 99 to 102 (and any other provisions of this Part so far as relating to those sections)"
A103: Clause 111, page 66, line 20, leave out from second "the" to end of line 21 and insert "appropriate licensing authority for any area is an enforcement authority for that area."
A104: Clause 111, page 66, line 22, leave out "99 and 101" and insert "and 99 to 102 (and any other provisions of this Part (except sections 88 and 90 to 94) so far as relating to those sections)"
A105: Clause 111, page 66, line 23, leave out "appropriate"
A106: Clause 111, page 66, line 25, at end insert "(as defined in section 225)"
A107: Clause 111, page 66, line 28, leave out paragraph (c) and insert—
"(c) in relation to the relevant enforcement area (within the meaning of section 231), any person appointed under section 231;"
A108: Clause 111, page 66, line 32, leave out "appropriate"
A109: Clause 111, page 66, line 32, at end insert "(so far as relating to the sections specified in that subsection)"
Amendments A101 to A109 agreed.
Clause 111, as amended, agreed.
Clause 112: Interpretation of this Part
Moved by Lord Hunt of Kings Heath
A110: Clause 112, page 66, line 36, at end insert—
""appropriate enforcement authority", in the case of any area and any provision of this Part, means any authority which is an enforcement authority for that area for the purposes of that provision;"
A111: Clause 112, page 66, leave out lines 39 and 40
A112: Clause 112, page 67, line 7, at end insert—
""enforcement authority" has the meaning given by section 111;"
A113: Clause 112, page 67, line 8, at end insert—
""licensable marine activity" is to be read in accordance with section 63;"
Amendments A110 to A113 agreed.
Clause 112, as amended, agreed.
Clause 113: Marine conservation zones
Moved by Lord Greaves
A114: Clause 113, page 67, line 34, at beginning insert "Subject to the requirement in subsection (1A) below,"
We move on to Part 5, nature conservation, at last. In moving the amendment, I shall speak also to Amendment A120, which stands in my name and that of my noble friend Lord Tyler. Perhaps I may say that it is nice to be back. I thank my noble friend for looking after our Front Bench while I have been away on other business. I am delighted to be back on this Bill for various reasons.
We now start on an important part of the Bill: nature conservation, particularly marine conservation zones. This group contains 10 more amendments in it in addition to ours. It is inevitable that, at this stage, there will be a bit of what people call a Second Reading debate on nature conservation and nature conservation zones, although we hope that it does not go on for too long. Most of the Liberal Democrat amendments to this part are in the name of my noble friend Lady Miller of Chilthorne Domer, who is a person of considerable distinction in this area. I have added my name to her amendments to give them the imprimatur of being the official Liberal Democrat amendments in this section. The fact that she is sitting a few Benches behind me is not to be taken as in any way significant. I thank her for her work as part of our team on this part.
For many people, this part of the Bill is its raison d'être. The setting up of the Marine Management Organisation, the new planning and licensing systems, the new regulation of fisheries and the other things in the Bill are all in general a good thing. A consolidation and review of the legislation in these areas, and, indeed, in the case of the planning system, the setting up of a completely new system, are all things that are very much required. However, for many people the purpose of all these other different provisions is to satisfy the need to stop the decline and degradation of the marine environment and marine ecosystems around our shores. That is what the Bill is all about. So Part 5 is at the very heart of the Bill, as is a consideration of how all this can be achieved while reconciling all the other important interests in the marine environment.
When we talk about marine conservation zones, we are really challenging the Government to tell us how serious they are about setting up the network of conservation zones, how they will work and what their commitment is to them—the number, size and scale of them. There will no doubt be debates about whether the proportion will be 30 per cent or more or less, and what that means and whether it is relevant; their location, the type of areas they will be in and the type of environment where they will be designated; the nature of the regulation regime in the conservation zones; and whether there will be a different regime in different zones and different degrees of intensity of environmental regulation and control in the different zones.
Those are crucial factors that run through all the amendments in this group and through the majority of the amendments to this part of the Bill and the timetable. Our Amendment A120 challenges the Government to say whether they are going to have at least a satisfactory initial network of marine conservation zones set up by the end of 2012, which is a significant date because of European obligations. This and the other amendments in the group, and much of the debate that we will be having on this part, are about how committed the Government are to a system of marine conservation around our shores that will not only look good when the Bill is finally turned into an Act but will work in practice. With those general introductory remarks, I look forward to the other amendments in the group, which come from all around the Committee. I beg to move.
I am sure that the whole Committee welcomes the return of the noble Lord, Lord Greaves. He arrives at an auspicious moment. As he says, we are now at the heart of the Bill. These amendments address an important aspect of what the Bill is about. This group addresses an enormously wide range of topics. Our amendment in this group addresses merely one aspect of marine conservation zones: the question of by when they will be established.
As we know, the Government have already indicated in their marine programme plan that they are aiming to receive recommendations in 2011 and so designate in 2012, as does Amendment No. 120, spoken to by the noble Lord, Lord Greaves. Our amendment would likewise firm up that intention and place it in the Bill. Three years does not seem an overly onerous timetable for the development and designation of a network of marine conservation zones, especially as the early work of establishing the consultation panels and so on is by all accounts under way.
Other amendments in this group address whether there is a duty on the Government to ensure that the MCZs establish a network, or whether it is just another intention. I, too, hope that the MCZs will be designated from the first instance with an ecologically coherent, ecosystem-based network in mind. A scattergun approach in the initial stages would be counterproductive, resulting in time-consuming and distracting reviews and adjustments to the objectives and boundaries of zones. It would result also in ongoing confusion among the wider public. The finer detail of what comprises an ecologically coherent network will change over time as scientific research continues and more information is gathered. However, will the Minister confirm that the Government and the conservation body being charged with the responsibility for organising the consultation panels have at least a working model of what they are seeking to achieve?
The helpful briefings on the Bill which Defra has provided show a worrying vagueness about what a network might mean in different circumstances. This Chamber is rightly proud of its commitment to probing not just the intentions of government but also the consequences of drafting. I hope that the Minister will listen carefully to calls for the definition of "network" to be more fully defined in the Bill.
I hope that I do not stray too far from good order if I trespass a little beyond the amendments grouped with Amendment A114. The amendments grouped with Amendment A118 cover some of the ground touched on by the grouping of Amendment A114. I am interested also in a later clause, Clause 119, to which Amendment A157 has been tabled and which covers much the same ground. Perhaps I may say a few words about networks, because it seems convenient to take in the matter here, although I recognise that the same issues are raised, albeit with slight variations, in other parts of the Bill.
In one of its briefings on the draft Marine Bill, the Wildlife Trusts urged that, in its final form, the Bill should,
"ensure we will have ecologically coherent networks of protected areas, selected on the basis of scientific criteria alone".
That point has already been made in earlier debates by my noble friend Lord Kingsland and others. It was strongly supported by the Joint Committee on the draft Bill, which stated on page 54 of its report:
"We support the opportunity for at least some MCZs, particularly where they are highly protected, to be designated areas to improve our scientific understanding both of the marine environment and of the effects of human activities on marine biodiversity".
Although science has moved a long way in recent years, I am sure that scientists in this sector would be the first to agree that there is still a great deal to be learnt. Our knowledge of marine ecosystems is still developing.
The existing highly protected areas of our marine life cover a very small part of the world's oceans. Marine reserves where all fishing is prohibited are few and far between. I was very impressed, as I think I have mentioned previously to noble Lords, by the book by Professor Callum Roberts called The Unnatural History of the Sea, published in 2007. If noble Lords have not had the opportunity to read it, I strongly recommend it; it is absolutely fascinating. I take this opportunity to quote briefly from page 374. It states:
"The twentieth century heralded an escalation in fishing intensity that is unprecedented in the history of the oceans, and modern fishing technologies leave fish no place to hide. Today, the only refuges from fishing are those we deliberately create. Unhappily, the sea trails far behind the land in terms of area and quality of protection given".
Later, referring to protection on land, the book says:
"Twelve per cent of the world's land is now contained in protected areas, whereas the corresponding figure for sea is but three-fifths of 1 per cent. Worse still, most marine protected areas allow fishing to continue. Areas off-limits to all exploitation cover something like one five-thousandth of the total area of the world's seas".
That, as noble Lords will recognise, is a very small proportion of what should be in place and what we hope the Bill will help to come into place. The small degree of protection now granted to fish was highlighted simply and straightforwardly by the Wildlife Trusts in its briefing for the draft Marine Bill, in which it said:
"If only 0.001% of the UK's land area were protected, that would equate to a single nature reserve the size of Kensington Gardens".
That is the area that is now being protected for our marine animals, which highlights what a mass of work there is to be done and, therefore, arising out of that work, what a lot there will be to be learnt.
The Partnership for Interdisciplinary Studies of Coastal Oceans highlighted the need to have protected areas in a network of reasonably close proximity, so that not only fish but also larvae and eggs can move from one to the other, which is very important. It states:
"In a marine reserve network, young and adults travelling out of one reserve may end up being protected in another reserve. Marine reserve networks provide more protection than a set of individual, unconnected reserves".
As was highlighted in the Marine Information Network's briefing of February of this year, the Royal Commission on Environmental Pollution emphasised in 2004 the importance of designating areas as marine conservation zones to improve our scientific understanding both of the marine environment and of the effects of human activities on marine biodiversity.
The great goal for which we should all aim and in whose achievement I hope that we will be helped through the medium of this Bill will be the establishment of fully protected areas which enable fish to grow in size and, as a result of that, to increase the rate of production and quantity of eggs laid, so helping to preserve the species, which otherwise will not happen. I am worried that we are limiting ourselves to the 12-mile zone. It looks to me as though the EU is dictating the course of future events, rather than our own national Government and Parliament. We should be going at least 30 miles out or even further, to 200 miles out into the oceans, to ensure proper protection for marine life. I hope that the amendments in this group and the next, and to Clause 119, will get a sympathetic hearing from the Minister, whose heart is, I know, in the right place, and that he will see that the Bill has the imperative written into it of establishing a network of marine control zones.
I shall speak to the amendments in my name in this group: Amendments A115 to A117, A119, A149 and A150, and A151 and A152. That sounds like rather a lot, but they achieve only a small number of outcomes. First, I apologise for not being in my place earlier when a number of my amendments came up, and for having to leave immediately after this group. If it is not unparliamentary language, Sod's Law and multitasking are working against me at the moment. The Minister may be deeply grateful for that: I think he feels that we ought to be moving faster, and the fewer people who contribute to the Bill, the better. The purpose of my Amendments to Clauses 113 and 119 are to make sure that there is a duty to designate marine conservation zones, not just a power—and that, in doing so, an ecologically coherent network is created, not just a network of marine protected areas. I would endorse much of what was said earlier on this part of the Bill.
As the noble Lord, Lord Greaves, said, this is the Bill's centrepiece on conservation. The Government's response to the Joint Committee's report proposed that there would be a duty conferred on the Secretary of State and the Welsh Ministers to designate marine conservation zones,
"in order to contribute to an ecologically coherent network of sites which will include highly protected sites".
That commitment appears to have failed on all three counts: there is no duty, the Bill does not mention ecological coherence, and it does not mention the issue of highly protected sites—so it is nought out of three for the Government there. The Bill is a bit ambiguous, as in Clause 113 it refers to a power. I therefore understand that to mean that the slightly stronger wording in Clause 119 only elaborates on how that power is to be exercised; it does not lay a duty to declare and designate marine conservation zones. I hope that the Minister will accept that, since the Command Paper in response to the Joint Committee indicated that would be the case, and that he will give way on some of these amendments.
The noble Lord, Lord Eden, talked about the slightly idiosyncratic groupings. I know that one should comment in advance on groupings, but having arrived in mid-flow I fear I was unable to. However, I believe that my Amendments A156 and A158 would perhaps have been better grouped with these, because the second objective of my amendments—Amendment A152, in particular—is to elaborate on what an ecologically coherent network of sites might be. There are three parameters. First, the network should be representative, to include the full range of marine features: species, habitats and ecosystems. Secondly, it should embody the principle of replication, meaning that each feature should be represented in a number of sites—so that not all of your eggs, as it were, are in one basket—and that the sites are big enough and ranged widely enough that if there is the risk of damage, for a whole variety of natural and non-natural reasons, it is likely that those species and habitats will, nevertheless, remain protected in some element. Thirdly, on connectivity, the whole principle of having an ecologically coherent network is that it allows species to move between its elements to replicate their natural life cycle, and to allow dispersal, migration and regeneration. Although the Bill mentions representation and replication, it is light on connectivity. My Amendment A158, which is in the next group, would come in there.
Amendment A151 is also about the issue of ecological coherence and the types of sites that the network needs to include. As drafted, the list includes marine conservation zones and any European marine sites under the Natura 2000 designation, but omits two important sets of sites: Ramsar sites—I note that the amendment misspells it as "Ransar"—which are protected under the international convention on wetlands, and sites of special scientific interest in marine areas. All of those designated sites ought to be included in the marine conservation zone network to ensure ecological coherence.
I have now covered all of those amendments, but I will pass on my regrets—although, in parliamentary terms, I want to misbehave here—that, alas, when my Amendment A135A on socio-economic conditions comes up, I will not be here to speak to it. However, there is no doubt about it; if one were trying to create an ecologically coherent network of sites, simply striking a few out from time to time on the grounds that they are of socio-economic importance will almost certainly mean that we will be in no position to get one. I have now managed to speak to my Amendment A135A, without necessarily having broken the parliamentary conventions of taking it out of order.
First, I welcome the noble Lord, Lord Greaves, who opened this debate. He is very welcome and he, in essence, posed the question that was reinforced by the noble Lords, Lord Taylor and Lord Eden, and by the noble Baroness, Lady Young, when he asked whether the Government were serious about this part of the Bill. My answer is: yes, we are. I agree with those of your Lordships who said that it goes to the core of what the Bill is about, and I certainly endorse that.
While I much regret that the noble Baroness, Lady Young, is not joining further with us this evening, she took rather a negative view of this. The noble Lord, Lord Eden, quoted the Wildlife Trusts: it is a fact that, at a conference last week, the Wildlife Trusts said that the Marine Bill is a pretty damn good Bill. We need to place this in context, and the noble Lord, Lord Greaves, is absolutely right that this part is the core of what we want to do. We have a vast marine area around the UK. If it remains largely untamed by human endeavour, that should not blind us to the significant impact that human activities are having on the marine environment. Nor will it be untouched by the increasing demands that are likely to be placed upon it.
We need to balance the pressures upon it, if future generations are to enjoy the same benefits that we have, until recently, all taken for granted. The Bill therefore provides a wide range of tools for doing that, some of which we have debated and some of which are yet to come. Measures such as marine planning and licensing, reformed inshore fisheries management and modernising enforcement are essential, but on their own are not enough. We also urgently need to conserve the habitats and species in our seas to ensure that we have resilient ecosystems, and continue to benefit in future from the services that they provide. We need to provide areas of sanctuary for animals and plants where they do not suffer the pressures caused by our use of the sea. That is what Part 5 seeks to do. There is strong consensus and support for the general principles embodied in Part 5, both in Parliament and beyond.
Part 5 sets out a proportionate evidence-based mechanism enabling us to meet the Government's marine nature conservation aims and objectives for the future. We are quite clear that the powers and duties in this part will help the UK to fulfil its EU and international commitments. Marine conservation zones are a new tool and type of marine protected area, which will help to protect the UK marine area. Marine protected areas are internationally recognised to improve diversity and ecosystem health, protecting or managing activities to prevent damage to habitats, species and ecological processes. Marine conservation zones will therefore be designated for the purpose of conserving marine flora and fauna, marine habitats or types of marine habitat, and features of geological or geomorphological interest.
The UK is already required to establish and manage sites under European legislation, but those European sites, such as special protection areas for birds and special areas of conservation for other species and habitats, collectively known as Natura sites, can be established for only a limited range of marine habitats and species that are important on a European scale. We see the new marine conservation zone mechanism being used to protect a wider range of species and habitats that are important in UK waters. Together, marine conservation zones and other European sites will form part of an ecologically coherent network, which will ensure coherent and appropriate protection throughout the UK marine area. I endorse the comments made by noble Lords about the importance of the network itself.
We have reached agreement with the devolved authorities on nature conservation under the Bill. The Secretary of State will designate marine conservation zones in the English inshore region and all offshore waters except those adjacent to Scotland. Scottish Ministers will designate in Scottish offshore regions, but those designations will be subject to the Secretary of State's approval, because it is an executive devolution. Welsh Ministers will designate in the Welsh inshore region. The nature conservation provisions do not apply to the Scottish and Northern Ireland inshore regions, which will be regulated under Scottish and Northern Ireland legislation.
Together, marine conservation zones designated by the appropriate authorities in the devolved Administrations will form part of an ecologically coherent network. Clearly we do not want marine protected areas to function in isolation, as connectivity between sites will ensure that we have the appropriate level of protection for our seas. I agree entirely with the noble Baroness, Lady Young, and the noble Lord, Lord Eden, on those important points. I say to the noble Lord that the establishment of an ecologically coherent network of marine protected areas is vital in realising the Government's conservation aims and objectives. That is why Clause 119 places a duty on Ministers to designate marine conservation zones and to do so to contribute to the overall network of sites.
What network of sites will that be? The shape of the network will clearly be driven by the science. We are starting a series of research projects with Natural England and the Joint Nature Conservation Committee on what UK ecological coherence should look like and we will issue further guidance setting out a more detailed definition in the next few months. The perfectly legitimate question to ask, as did the noble Lord, Lord Greaves, is what proportion of our seas will be protected by marine conservation zones. We will very much be guided by the work that is starting to be undertaken. I am well aware of the figure of 30 per cent, as was initially suggested in the 25th report from the Royal Commission on Environmental Pollution, which recommended that 30 per cent of UK seas out to 200 nautical miles should be managed as highly protected marine reserves, thus enabling the rebuilding of commercial fish stocks along with damaged marine ecosystems. This management approach, known as the ecosystem-based approach, seeks to protect the marine ecosystem as a whole.
The area of the sea that should be protected has not been universally agreed. I hope that noble Lords will not press me further—
Will the Minister take this opportunity to deal with the particular problem of the Isle of Man, where we have the need for the holistic approach to which his noble friend referred earlier? There is a hole there. If there is going to be a coherent approach, or network approach, to the zones, we must be clear about what the Government intend to do about the Isle of Man.
I certainly agree with the noble Lord that the Isle of Man is an important consideration and I am prepared to discuss with him further, perhaps outwith this Chamber, what needs to be done in that respect.
There is absolutely no reason why Europe has to come in and act as umpire. As we discussed under earlier parts of the Bill, the UK Government have established a very good working relationship with the Irish Government. I expect that to continue and to embrace marine conservation zones.
As I have said in relation to earlier parts of the Bill, with the indications that we have received so far on the determination of all the devolved Administrations to work together, we fully expect that we will be able to ensure that this is managed in a coherent way. I have no indication whatever that the devolved Administrations and the UK Government will not be able to ensure that there is coherence.
I have received a riveting note about the Isle of Man as a Crown dependency. I hesitate to read it to noble Lords. The point that the noble Lord makes is that, since the Isle of Man sits in the middle of an important part of the sea, it is important that we work closely with the Isle of Man Administration. That is the point that he is making—and, of course, we will seek to do so. Perhaps between Committee and Report I might be allowed to write to him with more details about our engagement with the Isle of Man Administration.
I am grateful to the Minister for giving way again. I think that he will acknowledge that the useful briefing that his team has given us, with the excellent maps to which reference has been made this afternoon, shows time and again that there is a large hole in the Irish Sea around the Isle of Man. Therefore, however riveting the brief that he has been given—and I am giving him the opportunity to rivet it more fully—would he like to give the Committee just a bit more indication of precisely what the Government's intention will be in dealing with a big hole in the otherwise coherent and effective network that he has in mind?
We started at a high level in debating Part 5. We have now come to the question of the Isle of Man. It is important that we do not distract ourselves from the overriding matters that we came to discuss.
I point out to the Committee that Amendment A393, which we may reach in several weeks' time, refers to the Isle of Man.
That is yet another reason why we are so grateful that the noble Lord has returned to our debate on this Bill. We await that debate with great anticipation. Indeed, my noble friend Lord Davies is eager to respond to it.
The point is that the Isle of Man is a Crown dependency alongside the Bailiwick of Jersey and the Bailiwick of Guernsey. Since the noble Lord presses me, I point out that the Bailiwick of Guernsey includes the separate jurisdictions of Alderney and Sark and is also responsible for the administration of the islands of Herm, Jethou and Lihou. The island of Brecqhou—I hope that I have pronounced it right—is part of Sark. Jersey, Guernsey and the Isle of Man are not part of the UK, but are self-governing dependencies of the Crown. The Crown dependencies are not represented in the UK Parliament and UK legislation does not extend to them. In a sense, we have debated devolution matters and the one principle we have stuck to is that the Bill reflects the devolution settlement. I make the same point about the Crown dependencies. However, behind the noble Lord's rather mischievous intervention, if I may put it that way, is a serious point—that it is as important to work with the Administrations of the Channel Islands and the Isle of Man as it is with the devolved Administrations. That is the challenge. I will go away and respond to him seriously in relation to how we intend to work with the Isle of Man Administration, if he would be happy with that.
Before I was so ably interrupted by the noble Lord I was trying to respond to the question of what proportion of the seas would be covered by marine conservation zones. I have already acknowledged the extremely important work of the Royal Commission on Environmental Pollution, which recommended the figure of 30 per cent of the seas. I hope I will not be pressed any further on this matter. I cannot give, and I think it would be wrong for me to give, a figure tonight. However, in accordance with Section 119, we have already started a series of research projects with Natural England and the JNCC on what UK ecological coherence should look like. Under the Bill, Ministers will be required to report regularly to Parliament on progress in designating the network, starting in 2012. Those reports must include the extent to which the network has been achieved. There is clear accountability and a reporting mechanism. I re-emphasise that marine conservation zones will be identified using the best available scientific evidence but the Secretary of State will be able to consider the social and economic consequences of designations. Later amendments deal with that particular matter.
Although later amendments deal with that matter, how is it likely to be possible to achieve proper marine reserve areas where fish are completely protected if, in addition to scientific issues, social and economic issues are also brought into account? Surely that derogates from the purity of the scientific criteria that should be honoured in this case.
I am not sure that I entirely agree with that. Clearly, the science informs the work that would be undertaken towards the designation of marine conservation zones. The Secretary of State must have regard to a number of factors in marine conservation zone designation and they may include social and economic considerations. That surely is important if we are to ensure that we minimise the impact on society and maximise potential synergies. Let me give the example of an area that contains features that are rare, threatened or declining or which form what might be called a biodiversity hotspot. In coming to a judgment about whether designation should be made, the Secretary of State is likely to place greater weight on ecological considerations. However, there might be a choice of alternate areas which are equally suitable on ecological grounds for designation but, in that case, socio-economic factors might be more significant in deciding which areas may be designated as a marine conservation zone. I clearly understand where the noble Lord is coming from. However, there is a balance throughout this Bill, and social and economic considerations must also come into play, just as they come into play in any definition of "sustainable development". We will come to this later.
It is very likely that I am totally confused; perhaps the Minister would be very helpful and straighten me out. I am getting confused between marine conservation zones and marine reserves. Is it the case that there will be marine reserves within marine conservation zones and that the marine reserves will be fully protected and that no fishing and no intrusion, whether for social or economic factors, are allowed to take place?
The noble Lord raised the question of what has been described as highly protected marine reserves. This term has been used by a range of organisations to mean a number of things. My understanding is that, in general, "highly protected marine reserves" equates, as he implied, to what are described as no-take zones where all licensable fishing activities are restricted. Some organisations have called for such no-take zones to conserve depleted fish stocks, while others have focused on the need to preserve the seabed and habitat features. When it comes to a marine conservation zone, the level of protection that would be given to any site would be determined by the features we wish to protect and the evidence we have available. We have flexibility within the designation of a marine conservation zone to place whatever level of protection necessary for a site without having to have another description or designation or a special category of highly protected marine reserves.
It is perfectly possible for the kind of reserve that the noble Lord suggests to be embraced within a marine conservation zone. There is a requirement in the Bill for the Secretary of State to report on the number of marine conservation zones designated where any licensable marine activity has been restricted and the taking of animals or fishing has been prohibited. This is intended to encompass sites which will have a high level of protection, but there will be other marine conservation zones where it does not occur. There is sufficient flexibility within the Bill to designate some marine conservation zones in the terms suggested by the noble Lord but others might be applied to totally different situations. The point about socio-economic factors is that the designation of MCZs and the work that will be done to build up submissions as to potential MCZs will be guided by the science and all the factors that the noble Lord raised. There is also a balance here involving socio-economic provisions; that is why we have that provision in the Bill.
I thank the Minister for giving way. My noble friend raises a problem on which an attempt was made to draw a balance. It is a difficult problem. The purists would say that we should protect everything, and that that should take priority over any socio-economic factors. I do not think that my noble friend has a copy of the relevant recommendations. Recommendation 54 states:
"We do not think it is appropriate to place any set percentage for highly protected areas on the face of the Bill. However, we recommend that the Bill sets out the need to establish Highly Protected Marine Reserves, and that their contribution to the overall Marine Protected Areas network and UK biodiversity targets should be reviewed after a stated period of time".
If you were thinking literally of biodiversity in its own right, you would not do anything, but, unfortunately, life has to be lived. A question that exercised some of us more than others concerned the feasibility of linking networks together. Some may not be linked in the way that certain people may wish. These difficult decisions will have to be taken in the future. I am trying to reinforce the point that the Minister made. I am reasonably happy with what we have at present.
I do not want the fact that I am not speaking to this group to be interpreted as my having any less interest in it. However, I shall analyse the situation in the next group. If the noble Lord, Lord Eden, waits until we reach that group, he will probably find more support from these Benches for what he is saying.
I am sure that we await that with eager anticipation. The noble Baroness, Lady Byford, is right; this is a complex issue and there is a balance to be drawn. That is why at this stage it is not possible to come up with some of the answers that the Committee wishes. I am afraid that a lot more work, science and research need to be done before we can be sure about these matters. This is a new development for this country and there will have to be—I am not sure that I should use the phrase "trial and error"—learning as we go along. That is why there is flexibility. The noble Baroness, Lady Young, had to leave but I should respond to her amendments as they are so important, although that is strictly against the procedures of our House.
Her Amendments A115, A116, A117, A119, A149 and A150 all seek to ensure that there is a strong duty on the Secretary of State to designate a number of marine conservation zones. I reiterate and state clearly that the Government are fully committed to creating a network that will include more than one marine conservation zone, and the Bill requires us to do so. We have learnt the lesson from the past that we need to provide clear measures that are strong enough to meet the Bill's aims and objectives. We acknowledge—this point was raised in our earlier debates—that the mechanism created by the Wildlife and Countryside Act 1981 was not strong enough, which is why we have included a duty on Ministers to designate sites so that they form part of a network of sites. Clauses 113 and 119 together clearly place a duty on Ministers to exercise the power in Clause 113 to designate sites and, moreover, to contribute to the creation of such a network. I have sought legal advice on this point and it is categorical.
Amendment A152, also tabled by the noble Baroness, Lady Young, seeks to insert a reference to the requirement for an ecologically coherent network of sites. Again, I reassure the Committee that, in imposing the duty to designate marine conservation zones, it is clearly necessary to set out as far as we can what constitutes a network, which we have done in Clause 119. Subsection (3) sets out three design principles, as developed for the Convention for the Protection of the Marine Environment of the North-East Atlantic and the International Union for Conservation of Nature, which should underpin a coherent network of marine protected areas. We have worked hard to learn more about the marine environment and, as I said earlier, we clearly have some way to go. Ecological coherence and the definition of the UK network will be evolving concepts. So, here again, it is important that we do not fully define this legally in the Bill. We are looking to provide guidance in our draft marine protected area strategy, to be published for consultation around Easter. This will reflect the Government's thinking on what the network will look like. However, as the noble Baroness, Lady Byford, suggested, this is an evolving concept.
On Amendment A151, the noble Baroness, Lady Young, would be glad to know that I think her suggestion about Ramsar sites and sites of special scientific interest is helpful. We think that there has been an oversight here. I shall reflect further on that proposal between Committee and Report.
Amendments A114, A120 and A124—to which the noble Lord, Lord Greaves, spoke some time ago—seek to insert in the Bill a timetable for designating a network of marine protected areas. We have specifically not included a timetable as we are worried that even requiring an initial network to be designated by 2012 would create a perverse incentive on appropriate authorities to compromise on designations or conservation objectives, and would risk leading to the designation of a sub-optimal network. A timetable in the Bill could also apply an end point in developing the network when, in fact, it will be subject to monitoring, review, amendment and, I am sure, improvement beyond 2012. I make it clear that the network of marine conservation zones designated by the end of 2012 will not be a fixed or static one because the marine environment is highly dynamic. Of course, the network will evolve after 2012 and even after 2020 as pressures on our marine environment change and develop. The important point about 2012 is that Clause 120 requires Ministers to report to Parliament on progress starting in 2012 and at least every six years thereafter. I see that report highlighting the achievement of precisely the type of initial network that these amendments seek to deliver. The report will not only provide details of designated marine conservation zones, including details on the level of protection, but will include any further steps that could be taken to achieve a network of conservation sites.
Amendment A160 requires Ministers to define how they will comply with EU or international law in carrying out their duty to designate marine conservation zones in Clause 119. I have already referred to links between marine conservation zones and European sites. Indeed, that is why we have included Clause 119(4) in the Bill. This requires the appropriate authority to have regard to any obligations under EU and international law. However, whether or not it is mentioned in the Bill, the UK is bound by these agreements and is committed to meeting them. The normal way for the UK to define how it will comply with EU legislation is through the process of consultation and policy development with which Members of the Committee are familiar. This has started for the marine strategy framework directive. Inevitably, we will ensure that our Bill and the implementing legislation are consistent with each other.
We do not think that it is necessary to write the requirement of 2012 into the Bill. Under the Convention on Biological Diversity and other international fora, our commitments demonstrate our undertaking to achieve the designation of the network, which will also include European sites by 2012. As I have said, that is just a start. This has been a lengthy debate, but it is on the start of Part 5, which many Members of the Committee think is the most important part of this Bill.
I know that we will discuss amendments on some of the detail. I hope I have assured the Committee that within the context, as the noble Baroness has said so wisely, of considerable work still to be undertaken on the designation—we have to do the science and the research—the Government also consider this to be at the core of the Bill. We are committed to the designation of marine conservation zones and absolutely understand the need for coherence of networks. I hope that Members of the Committee will feel that, in responding to the amendments, I have answered the question posed by the noble Lord, Lord Greaves, on how serious we are. The issue is very serious.
The Minister has done very well in his attempt to respond to these many points, which are so important. We listen very carefully. Ecological coherence seems crucial. What is ecological coherence? Do we know how far fish will swim? What makes them swim? Will they go against the tide and the current? Will they swim from one temperature to another, as they would have to on each side of the Shetland Islands, for example? All these things will need to be known.
Are the Government carrying the devolved Administrations along with them in commissioning research? If they do not agree on the research, this will not work. Do the Government know how far along the research is? Will it be possible to decide on the boundaries of the zones within the foreseeable future? Are the Government optimistic? These are huge issues. But it is important to carry everyone along. There are those who would like to have a squabble about these zones, which we do not want because it will not work if there are squabbles.
Perhaps I may ask the Minister a further question on his response, which, I agree, has been very comprehensive. He mentioned a paper to be published in April, which would give us the shape of the network of marine conservation zones. Is it meant to be illustrative or projected in its form? It would help everyone engaged in this Bill a great deal if they felt that they were likely to be seeing something that would give some substance to the programme outlined by the Minister.
It is being a bit forward to say that the consultation paper at Easter will contain definitive ideas about marine conservation zones. That will be too early. This goes back to ecological coherence and what that means. The first stage is for us to provide guidance in what we describe as a draft marine protected area strategy, which will reflect the Government's thinking on what we mean by ecological coherence and what the network should look like. That will set out some general principles in which further work will need to be undertaken. The research mentioned by the noble Baroness, Lady Carnegy, will also very much have a bearing on that.
The noble Baroness asked a number of questions. First, will we carry people in the devolved Administrations? The discussions held in the past few months have been very warm. My understanding is that we are working closely together on research. Secondly, the noble Baroness asked when the research will become available. Obviously, there are various research projects with different deadlines, but there is no doubt that we hope to have more detailed information coming from some over the next few months. If it would be helpful, I am happy to write to Members of the Committee with an outline of all the research being undertaken and when projects are likely to be completed. That is as far as I can go on the designation of sites.
I suggested that this debate might have a Second Reading flavour, which was correct. We have benefited from that, particularly from the distinguished contribution from the noble Lord, Lord Eden, and the contribution from the noble Baroness, Lady Young, with her great experience of these matters. Right around the Committee, we should be grateful for everyone who has taken part in this debate.
The Minister again should be thanked for the depth and care that he has taken, and the lengths he has gone to, in his response to these important issues. Nevertheless, I still have some questions, specifically on an amendment proposed by the noble Baroness, Lady Young of Old Scone. The Minister referred to ecological coherence and the consultation paper we will see around Easter, which will be very helpful. We will obviously have further discussions about this as we go through some of the later amendments on this part of the Bill. There is a step forward.
Perhaps I may anticipate what the noble Baroness, Lady Young, might have said on the duty to designate. The Minister was very clear that the Bill as set out provides a duty to designate these areas. When we think of the training we have had on the use of words such as "may", "must", "shall" and so on, it does not read as though there is a duty to designate: it reads as though there is power to designate. It would be helpful if the Minister could write to us to explain Clause 113.
I am happy to respond to that. As I have said to the Committee, I have taken careful legal advice on this matter. The advice is that it is quite clear that it is a duty. But I am happy to rise to the challenge of writing a long letter to prove it.
I am very grateful to the Minister. No doubt, we will take up the challenge of reading it to see whether we think that it proves what the Minister thinks it proves. At the moment, we do not think that.
There was considerable discussion about the need for research, science and decisions on designation to depend on the science. I do not think that any of us disagree with that, which was put very eloquently by the noble Lord, Lord Eden. But there are two stages to a decision based on research and science. There can be research and science, and different policies can be applied to that research and science with different outcomes. The policies do not come from objective investigation; they come from Governments, politicians and other people who are engaging in the debate. We want the science in order to know what is there and in order for the people designated by the Secretary of State to make sensible decisions. We also want to know the policies that would be applied to that science. This is the area of debate. This is not just a technical matter; it is also a policy matter. The Minister referred to being guided by the science and balance, which is fine, but what criteria will be used to guide and what are the criteria for where the balance lies?
Perhaps I may throw one further thing into the pot which I think will be helpful. Before this Bill is passed by Parliament, more clarity will be needed on what the outcomes are likely to be. I do not think that we expect to see a map with a designation of marine conservation zones or anything like that, but we want a much clearer idea of what the system will look like on a broad scale. Scale is very important here. Taking the British seas as a whole, I believe that the Government can give a much clearer idea of the expected outcome, not in detail—say, 30 or 35 per cent or whatever—but on a broad scale.
When it comes to detail, every site has to be looked at on its own merits, and it may well be, on the basis of the science, that one site is more valuable than a second site. The second site might be chosen above the first site because of other factors. If the first site is needed for commercial purposes and there seems to be no alternative, that may be the answer. However, if that is the case and it is being heavily used for commercial purposes now, the odds are that it will in any case be pretty degraded. Even so, there may well be sites of equal value and, at a detailed level, one will be chosen and another will not. However, that does not stop the Government trying to give us a better picture, or vision, of what the system will look like at the end of the process.
Finally, I come back to my amendment on the timetable. I listened carefully to what the Minister said and I will read it all very carefully. In a sense, we are back to the old problem that we always have with legislation—that is, on the one hand, what the words say in the Bill and, on the other, what the Government's intentions are. When we look at legislation, we are always being asked to believe that the Government have good intentions, that everything in the world is wonderful and that the legislation is going to work. One of our jobs is to ensure that it will happen, even if there is a change of Government. I must be careful what I say, given possible changes of Government, but who knows? Governments, Secretaries of State, policies and circumstances can change, and when the Bill leaves this House, particularly when it leaves Parliament, we have to ensure that it works and that we have a jolly good system at the end of it. I beg leave to withdraw the amendment.
Amendment A114 withdrawn.
Amendments A115 to A117 not moved.
House resumed. Committee to begin again not before 8.33 pm.