My Lords, I shall start off the Report stage of this Bill by moving Amendment 1 and speaking to Amendment 2, which is in the same group. As we begin that new stage I should, in doing so, remind the House of my relevant interests: my membership of the British Mountaineering Council—and my involvement with its access, conservation and environment group—and of the Open Spaces Society. Both of those memberships will come into play a long way down the road, in Part 9. Nevertheless, I declare them now.
Amendments 1 and 2 refer to Schedule 1, which is about the membership of the Marine Management Organisation. We had a long debate on a wide range of amendments on these matters in Committee, in which we questioned qualifications for membership of the MMO and probed the size of its board. On most of those amendments, we had very satisfactory answers from the Government and, while we may have done some details differently, we are not quibbling about the way in which they are going. The amendments crystallise two points that were, perhaps, not finally resolved completely satisfactorily.
Amendment 1 proposes that, in the schedule, so far,
"as is reasonably practicable these skills and expertise"— that is, the skills and expertise of members of the MMO, should—
"cover the range of functions of the MMO".
"To assist the MMO in fulfilling its objective, that relevant expertise and experience should as far as possible be drawn from one or more of the pillars of sustainable development; in other words, board members should have experience of environmental, economic and/or social issues".
That was all set out in the helpful briefing note that has been provided and, I think, published on the department's website. The Minister then said,
"The second consideration is the need to ensure a proper balance of skills and experience so the board functions effectively and adds value to the organisation as a whole".
Finally, he talked about the need for people of the highest calibre to be appointed, and said:
"That must be a prime consideration", although,
"we need to ensure that those high calibre members come from a variety of specified backgrounds to ensure that the board works as effectively as possible".—[Hansard, 12/1/09; col. 1051.]
I think that the Minister was, in saying those things, speaking in favour of this amendment, which would simply put the principle of everything that he said into the Bill. That ought to be done, and I do not understand any reasons why it should not be.
Amendment 2 refers to the number. The Minister stated clearly in Committee that, while the Bill states that the number of members should be no fewer than five and no more than eight, plus the chair—that is, six to nine including the chair—the Government intended, nevertheless, that there would be, at least in the first instance, the full complement allowed by that range. Some of us argued that if that was the case it would be sensible to raise the number to the middle of the range, but that was not a major issue of principle. It is clear that the Government intend to appoint a chair and eight other members. I do not quibble with that and I am content that that is a sensible way forward.
This amendment says that, under the further powers of the Secretary of State to change the range of the number of members from five to eight to other figures, the number of members should not fall below five. That is the minimum number necessary to make sense of not just what the Government will do during the inauguration of the MMO but also to make sense of what future Governments and Secretaries of State might wish to do. I therefore suggest that, whatever the Secretary of State might propose, he cannot go below five members plus the chair. That is the absolute minimum that would be appropriate if the MMO is to succeed in its work. Therefore, that should be in the Bill. I beg to move.
My Lords, I should declare that I have been a local councillor for more than 10 years and a member of a number of conservation and sporting bodies, including the Game Conservancy Trust, the BASC and the Salmon & Trout Association, as well as the Countryside Alliance. We had a good debate in Committee on the composition of the MMO board. It certainly is not possible to have every interest group represented on the board: it would quite clearly be too unwieldy. There was consensus from all around the Committee that marine science and marine conservation expertise should be available to the board, whether as a member of the board or through the ability of the board to call in the expertise to give evidence. Provided that ability exists—I should be grateful for that assurance from the Minister—clearly, the most important skill of a member of the board is good judgment. The Committee also had concerns over the board's ability to form a quorum, which would be exacerbated if the number fell below five. I ask the Minister whether he envisages the number ever falling below five.
My Lords, this has been a very helpful start to our debate on Report. It goes right to the heart of the board of the Marine Management Organisation. Clearly, we are expecting a lot of this board. It is right that it should have high calibre people and should be able to operate in an efficient and effective way.
Amendment 1 seeks to ensure that board members represent,
"as far as is reasonably practicable", the range of the MMO's functions. We consider the drafting of the Bill to be sufficient. It allows the Secretary of State to appoint people to the board who have experience related to the MMO's functions. As the noble Earl, Lord Cathcart, has said, we debated this in Committee. I think that there is general consensus that we do not want what might be described as sectoral representation on the MMO's board but we do seek members with experience and expertise across all three pillars of sustainable development—economic, environmental and social. With a board of between five and eight members, which we think is entirely appropriate, it is not possible specifically to represent all the functions of the MMO. I agree with the noble Earl, Lord Cathcart, that good judgment is the essential ingredient for all the people who are appointed to the board.
On the question of whether the board would have available to it expertise in marine science and conservation, whether among the board membership or available to the board, I reply in the affirmative. We will come on to the third group of amendments where we will debate the Government's amendment to ensure that a chief scientific adviser is appointed. I said in Committee that there will be a scientific advisory committee, which the MMO will appoint to advise it. I can reassure the noble Earl on those matters.
Amendment 2 ensures that the number of board members does not fall below five. I have considerable sympathy with the noble Lord, Lord Greaves, on this point. I would have liked to have accepted his amendment as it is. Alas, as ever, I am advised that parliamentary counsel would like to have a look at it. Will the noble Lord accept that I will seek further advice on this and come back to him? In light of that, I would welcome a further amendment from him at Third Reading.
My Lords, that seems like an offer I cannot refuse. I thank the Minister for that. It is a matter of common sense. I will be delighted to move a further amendment at Third Reading if I receive instructions from the Minister or his advisers on what the wording should be. On the question of the composition of, and the range of expertise and experience on, the board, I do not think that there is any difference of opinion between myself and the Minister, or, indeed, between us and the noble Earl, Lord Cathcart. We all agree on what should happen and how. I am simply suggesting that the Bill should say slightly more strongly what we all want to see. We certainly do not want to see sectoral representation or representation of individual organisations. We have all been convinced that that is not the way forward. However, it seems that I am not going to persuade the Minister. The Bill has a long way to go before it reaches Royal Assent and these matters may be discussed further in the House of Commons. On that basis, I beg leave to withdraw Amendment 1.
Amendment 1 withdrawn.
Amendment 2 not moved.
Moved by Lord Davies of Oldham
My Lords, in moving Amendment 3 I shall speak also to the other government amendments in this group. They are all minor and technical in nature, but they are necessary to improve the clarity of the drafting. I apologise for the number of amendments. The House will recall that our first day in Committee was
Amendments 3 and 4 add new text to paragraph 9 of Schedule 1. The paragraph provides the grounds on which the Secretary of State can suspend or terminate the appointment of the chair, deputy chair or any MMO board member. The form of words that we have added ensures that all appropriate Scottish law on forms of insolvency is included in these grounds.
Amendment 26 to Clause 7 is a minor and technical amendment that corrects a reference in this clause to Section 4B of the Sea Fish (Conservation) Act 1967. The clause refers to functions that the MMO exercises under Section 4B of that Act, whereas it exercises those functions under Sections 4 and 4A, so the clause should refer to those sections instead.
Amendment 27 inserts a reference in Clause 9(3) to the area in which this clause is applicable, which is in relation to the whole or any part of England or the English inshore region. The reason for this is to limit the geographical scope of this transitional provision to that particular area. This is consistent with the other transitional provisions in subsection (2) and is necessary because the Secretary of State's functions under the Conservation of Seals Act 1970 are being transferred to the MMO only in respect of England and the English inshore region. It follows that any application made to the Secretary of State before the commencement of the Bill that is to be treated in future as being made to the MMO should relate only to licences applying in England and the English inshore region.
Amendments 28 and 29 to Clauses 9(3) and 10(5) respectively allow applications for licences that have been made but not withdrawn before the licensing functions are transferred to the MMO to be treated as applications made to the MMO after the coming into force of these sections. Amendments 30 to 32 reword Clause 12(3) so that it mirrors the wording of Clause 13(3). As currently drafted, the clause might inadvertently transfer functions relating to Scottish generating stations to the MMO in the future if the existing Executive devolution order is repealed and a new one put in its place because the revocation would return the functions to the Secretary of State. This clause would then transfer them to the MMO before the new Executive devolution order took effect. The amendments are needed to prevent this.
Amendments 33 and 34 to Clause 13 make a small change to the wording so as to remove references to "Scottish areas" and the definition of this term. It has been removed because it is not a term used elsewhere in the Bill. Amendments 35 and 37 change Clause 14(3)(a) to exclude people employed by the Scottish or Welsh Administrations from the definition of a person employed in the Civil Service of the state in this clause. The clause is intended only to apply to people employed by the English Administration, but as drafted it inadvertently includes those in Scotland and Wales, and we want to correct that.
Amendment 40 is a minor amendment to Clause 18 that would remove the word "marine" so that the drafting is consistent in Chapter 3 of Part 1, in particular Clause 15, which refers to agreements authorising the performance of any "function" of the MMO and not a "marine function". Amendment 52 to Clause 25 leaves out the words,
"provision of such publications or" in subsection (1) and inserts,
"publication of such documents or the provision of such".
This amendment is needed to achieve consistency of terminology with Clause 25(2).
Amendment 53 inserts a new clause after Clause 28. It is needed to allow the MMO to carry on certain prosecutions that have already been started by the Secretary of State, including by the Marine and Fisheries Agency, before the functions are transferred to the MMO. I beg to move.
My Lords, it is good to hear that the Minister and his team had a restorative time over Christmas and the New Year. Perhaps I may declare my interest merely in the welfare of fish in and around Scotland, which is relevant to the Bill. This group of amendments is a fine illustration of what it takes to keep everything as tidy as possible when you have devolution settlements at the core of your legislation. The Scots will be pleased to see Amendments 27 to 29 as they are anxious to maintain their own management of policy over the culling of seals. Amendments 30 to 32 deserve a prize for the man who managed to dig it up in the effort to produce legislation that will cope with future repeals of powers, as it will prevent Scotland losing out on its current blanket power over all electricity generation if there is any repeal of the legislation.
The one puzzle to me around Clause 13 and Amendment 33 is that it is in the Bill to deal with safety zones, but Section 95 of the Energy Act 2004 deals only with safety zones around renewable energy installations. Scotland has powers to implement other types of energy generating stations, so these will not be covered by this legislation if they happen to be envisaged.
Amendments 32 and 34 are linked, as they try to find the right placement in the Bill for the definition of "Scottish waters" and "the Scottish part" in relation to renewable energy zones. The Bill endeavours to emphasise that these phrases have the same meaning as in Section 95 of the Energy Act although, as far as I can see, that section does not, in itself, have any definition of those terms in relation to Scottish waters.
This brings me to the puzzling way in which the Government have defined the marine areas up in the north. The Bill refers in the main to the Scottish inshore area and the Scottish offshore area, as if, at a certain level, they have an equivalence. However, this part has the much more definitive term "Scottish waters", which represents the fact that the inshore area is part of Scotland and is the term used in previous legislation. Surely the Minister must admit that consistency would be better served if this term were used throughout the Bill. This would also emphasise the very different framework that governs the Scottish offshore area and the Scottish inshore area and how it might be more appropriately labelled to demonstrate the difference. Can the Minister give us any explanation of why the Government have used "the Scottish inshore area" as a definition?
My Lords, I am grateful for all that explanation of the Scottish stuff from the noble Duke—that was the one part of these amendments I was not sure that I understood. I have to say that I went through the rest of them with a fine-toothed comb, because I have a basic principle that, if the Government put forward a long list of technical amendments like this, somewhere in the middle there is something that they are trying to get through without anyone noticing. I do not think that there is in this group; I think that the amendments are entirely sensible, so I have no further comments to make.
My Lords, the House will recognise my heartfelt relief that the noble Lord, Lord Greaves, is taking the government amendments at their face value—as he should, on all occasions, because they are purely to make the Bill as clear as we can make it. I know what an enthusiast he is for consistency and clarity in legislation, so I welcome his support for these amendments.
I want to emphasise to the noble Duke, the Duke of Montrose, that we are concerned to have the same reference to the Scottish position throughout the Bill. The problem with the definition in this clause is that we had not taken consistency throughout the Bill sufficiently into account, which is why this amendment is necessary. We have now removed reference to Scottish areas and the definition of the term, but the danger, as the noble Duke indicated, was that we would have a lack of consistency and clarity in our reference to the position in Scotland. We have looked at this carefully and consider that with this amendment we have made the references consistent with the rest of the Bill. We will come on to the Scottish position on inshore waters when we refer to the Scottish marine Bill, which is the responsibility of the devolved Administration.
My Lords, the fact that the Government are taking out the "Scottish areas" definition is certainly simplification, but my point is that we are still left with "Scottish waters" in this part of the Bill, while in the rest of it the same portion of the sea is known as the Scottish inshore area.
My Lords, the noble Duke referred to the Energy Act. He will accept that the Government do not want to change definitions in other Acts but to be consistent with them. We have introduced consistent terms: by "inshore waters" we mean nought to 12 nautical miles, while "offshore" refers to 12 to 200 nautical miles. We have that throughout the Bill and it applies to all UK waters, so we are consistent.
As I have indicated, we are bound to have some reference in other amendments to the work of the Scottish Parliament in its devolved responsibilities, which it will produce in the marine Bill that it will consider in the not-too-distant future. However, I reassure the noble Duke that we are not changing the sense of the position but seeking to make it consistent. As he has indicated, we have to make it consistent not only throughout the Bill but with other legislation that relates to it.
Amendment 3 agreed.
Moved by Lord Davies of Oldham
4: Schedule 1, page 214, line 40, leave out "made a composition arrangement with, or"
Amendment 4 agreed.
Moved by Lord Hunt of Kings Heath
5: Schedule 1, page 216, line 3, at end insert—
"Chief scientific adviser
14A (1) The MMO must appoint a person to be its chief scientific adviser.
(2) The chief scientific adviser is an employee of the MMO.
(3) The MMO may only make an appointment under sub-paragraph (1) with the approval of the Secretary of State as to any terms and conditions of employment not falling within paragraph 16 or 17."
My Lords, in moving this amendment I will speak to other government amendments in this group. Our debates in Committee on Clause 2 were lengthy but in many ways some of the most important; they went right to the core of the role of the Marine Management Organisation and to the core of the marine aspects of this legislation. I thank all noble Lords who have taken part in the discussions and debates about the many important matters that have been raised.
The amendments that are aligned with Amendment 7 deal with the MMO's general objective in Clause 2. That objective now has three core elements: first, the obligation to make a contribution to the achievement of sustainable development; secondly, a new obligation to take account of all relevant facts and matters, which are set out in detail in Amendment 9; and, thirdly, a duty to act in a consistent and co-ordinated way.
We have preserved the wording of the MMO's objective to make,
"a contribution to the achievement of sustainable development", in order to maintain consistency with the terminology used throughout the Bill, notably in Clause 56. That is also consistent with other legislation and, in particular, to that related to planning. However, we have now added a broad power in Amendment 8 for the MMO to do anything that it considers necessary or expedient to help it to achieve its general objective by,
"furthering any social, economic or environmental purposes".
In Amendment 7, in relation to the types of material to which the MMO might wish to have regard when carrying out its functions and making decisions, we started with the new core duty in Clause 2(1)(b), to which I have already referred. The reference to,
"all relevant facts and matters", includes scientific and other evidence, with a read-across at the end to Clause 23, under which the MMO can undertake or commission research.
Amendment 5 is perhaps an appropriate point at which to remind noble Lords of the undertaking that I made in Committee to establish a science advisory committee, which demonstrates our commitment to an evidence-based approach for the MMO. I hope that noble Lords will also welcome our additional undertaking today to appoint a chief scientific adviser to the MMO.
Turning back to Amendment 9 to Clause 2, while emphasising the importance of an evidence-based approach, we would not wish to give the impression that specific mention of scientific evidence gives greater weight to any one aspect of sustainable development compared to the other aspects. In order to ensure that relevant evidence such as environmental and socio-economic data is not seen as less important, proposed paragraph (b) includes other evidence relating to each limb of sustainable development. Other matters that might be relevant to a given case are encapsulated in proposed paragraph (c).
In Amendment 18, by including a definition of evidence for the purposes of Clause 2, we have endeavoured to address any concern that, on a narrow reading, the word "evidence" might not include studies that predict or project the likely future condition of the seas. This definition makes it clear that "evidence" includes predictions and other opinions resulting from the consideration of evidence.
I hope that the rewording of the MMO's general objective, to which we have given careful consideration, will meet the approval of noble Lords. We have also gone further in response to concerns relating to the accountability of the MMO. Amendment 58 deletes subsection (3) so that Clause 36 now provides that the guidance to be given to the MMO by the Secretary of State on its sustainable development objective, and any other guidance issued by the Secretary of State to the MMO, will be subject to consultation with such bodies or persons as the Secretary of State considers appropriate. Amendments 16 and 17 to Clause 2 further provide that the guidance to be given to the MMO by the Secretary of State on its sustainable development objective will be laid before each House of Parliament in draft, following which it will be given to the MMO and published by the Secretary of State.
I believe that this package of amendments very much meets many of the legitimate issues and concerns raised in Committee. The legislation will provide a clear and firm footing to the MMO in relation to its objectives. I believe that the appointment of a chief scientific adviser and the commitment that I have already given to establishing a scientific advisory committee meet the points on scientific evidence. I hope that this package of measures in general receives support from your Lordships. I beg to move.
My Lords, I thank the Minister for, and congratulate him on, this group of amendments. It is fair to say that he has gone almost all the way in response to the matters that we raised with respect to scientific evidence.
We have reached Report, and it is now the tradition of your Lordships' House that a speaker who has an interest to declare should declare it at each stage of the Bill's progress. In Committee, I declared that I was the chairman of the board of trustees of the Plymouth Marine Laboratory, an unpaid post. Since February, I have ceased to be its chairman—not, I add hastily, because I have been summarily dismissed, but because my term of office of seven years came to an end. However, I have found myself quickly accelerated to the post of chairman of the Plymouth Marine Sciences Partnership, also unpaid.
I welcome Amendment 5, which requires the MMO to appoint a person to be its chief scientific adviser. That goes further than was required by many of your Lordships in Committee and I am delighted that the Government have reached that decision. The Minister also referred to the establishment of a scientific advisory committee, about which I am also delighted. That does not appear in the Bill, but I understand that it will be a requirement to be included in subsequent guidance issued to the MMO. I also welcome the change that the Government have made in Amendment 7 by inserting a third stipulation in the clause designating general objectives. New paragraph (b) requires the MMO to take account of,
"all relevant facts and matters".
My only hesitations relate to government Amendment 9, which seeks to elaborate on new paragraph (b) in Amendment 7. In order for me to clarify my two amendments, Amendments 10 and 11, I need to read out Amendment 9, which inserts new subsection (1B) into Clause 2:
"For the purposes of subsection (1)(b), the facts and matters that may be taken into account include each of the following—
(a) scientific evidence, whether available to, or reasonably obtainable by, the MMO; (b) other evidence so available or obtainable relating to the social, economic or environmental elements of sustainable development; (c) such facts or matters not falling within paragraph (a) or (b) as the MMO may consider appropriate".
I am puzzled about two things. The first is that the word used in the introductory part of the amendment should be "may" rather than "shall". I have tabled Amendment 10 because, if the MMO simply may take into account scientific evidence and,
"other evidence so available or obtainable relating to the social, economic or environmental elements of sustainable development", what is the point of stipulating them at all? It clearly may take them into account under the general objective in paragraph (b) in Amendment 7. Surely new subsection (1B) will bite only if the MMO must take those matters into account and must regard them as relevant. Of course, the weight that it gives those relevant matters is entirely within its discretion. It may give them very little weight or in certain circumstances none at all, but they will plainly be relevant. Therefore, I suggest to the Minister that the correct verb is not "may" but "shall".
My second quibble is on paragraph (c) in new subsection (1B). I remind the House that new paragraph (c) refers to,
"such facts or matters not falling within paragraph (a) or (b)— those are the paragraphs that cover scientific, social, economic and environmental matters—
"as the MMO may consider appropriate".
The word "appropriate" appears there for the first time. It is not defined anywhere. What happens if a matter is relevant but the MMO does not consider it appropriate? Surely the better word to substitute for "appropriate" in new paragraph (c) would be "relevant".
Finally, I entirely concur with Amendment 18. The Government propose to define "evidence" as including,
"predictions and other opinions resulting from the consideration of evidence by any person".
It is well known that, in terms of hard evidence, we have knowledge of only about 2 to 3 per cent of the waters that the Bill seeks to cover. The only way in which we can come to sensible scientific conclusions about the other 97 or 98 per cent is by using scientific models to make predictions from the little evidence that we have. It is, therefore, absolutely essential that these modelling procedures should be included in the definition of "evidence" and I am delighted that the Government have done so.
My Lords, I follow the noble Lord, Lord Kingsland, in a very mild and almost trivial way. I am not sure that I quite understood what the Minister said about scientific evidence. I am an engineer who used to have a nodding acquaintance with science. I thought that I heard him say that other matters would be taken into account in addition to scientific evidence. I also thought that I heard him say—I may be wrong—that one matter that may be taken into account is opinion. I am not sure that opinion has any kind of equivalence to scientific evidence. I hope that I misheard the noble Lord. It looks as though I did, because he is nodding his head. Perhaps he can clear my mind about that later.
My Lords, I thank the Minister for having listened to the concerns expressed previously and I welcome the various amendments. Amendment 5 talks about the appointment of a chief scientific adviser and that person being an employee of the MMO. Is it anticipated that he will be a full-time professional with the MMO or will he be one of the great and the good who is brought in for specific purposes? That is not clear in the amendment.
My Lords, unlike the previous list of technical government amendments, these are extremely important amendments. Like other speakers, I believe that we should be very grateful to the Government for doing a lot of hard work in bringing them forward. Some of them are not exactly as we would have phrased them. In particular, we would have gone further in having a clear bias towards conservation rather than the equivalence of the three pillars as the Government refer to sustainable development. Nevertheless, the amendments are a substantial step forward compared with the text of the Bill when first presented to the House.
If this were the House of Commons considering the Bill for the first time before sending it to the Lords, we would be looking for points of division and difference at this stage and sending it away with those clear points of difference expressed through Divisions. The culture of this House is a little different. Sometimes we are more bent towards consensus where it can be achieved rather than division. A lot of noble Lords around the House will think that what we have is not ideal but it is a great deal better than what we were first presented with. The Government have clearly listened to the very long debate that we had in Committee—I think that it lasted about a day but the Minister indicates that it was longer—on this and related matters. We should be grateful for that. The Conservatives have added their names to some of the amendments. These Benches have not done that but we are certainly prepared to support them at this stage as a basis for sending this Bill to the House of Commons in a better condition. Then the House of Commons can start again and have a good thrash over it down there.
These amendments are fundamental. Some of us who have been talking informally with the Government and their advisers over the past few weeks are aware that they have struggled to come up with this wording. However, the struggle has been worth while, and therefore we should thank them for doing so.
The first major point here concerns science. Different points of view were put forward in Committee regarding how a stronger emphasis on the scientific basis of decisions by the MMO should be expressed. Some thought that should be done through committees while others suggested that it should be done through advisers or specific membership of the board. The Government have come up with a good proposal. The noble Baroness, Lady Byford, asked a very important question, to which we shall be interested to hear the answer. This should not be a part-time, one day a month, ring up for advice when you want it sort of post. It is a fundamental post as far as the MMO is concerned. Having said that, the Government's solution is welcome and we support it.
More fundamental even than that is the Government's substantial rewrite of Clause 2. There was great concern that there was not much in it initially and that the Government were talking only about making a consistent and co-ordinated contribution to the achievement of sustainable development. However, the Government have added the need to take account,
"of all relevant facts and matters" and defined them in new Section (1B), which states that they have to be based on,
"scientific evidence ... other evidence so available or obtainable relating to the social, economic or environmental elements of sustainable development".
It is interesting that the Government are beginning to get close to a definition of sustainable development, which they did not want to do. However, they are edging closer to that and they will inevitably have to define it.
The third element of the facts and matters that need to be taken into account is really anything else that the, "MMO may consider appropriate". That is sensible and a good basis, particularly when taken together with the next section on guidance. The Government have managed to include "furthering", although not exactly in the way in which many Members of the Committee wanted. I congratulate them on their ingenuity in doing that. Government Amendment 8 refers to,
"furthering any social, economic or environmental purposes".
The Government have included three pillars of sustainable development in their Amendment 9, which must come close to being the foundation and a definition of it. That is coming very close to furthering sustainable development. I understand that is as close as the Government can get to meeting the requests that came from all around the Committee. Nevertheless, it is a great step forward.
The sections on guidance are interesting. If I have understood them correctly, Government Amendments 55 to 58 are technical and tidying-up amendments as a result of government Amendments 13 to 18. First, they make the guidance that the Secretary of State has to give to the MMO in relation to its objectives much more specific and much clearer. Secondly, it has to be laid before both Houses of Parliament. Thirdly, it makes it subject to something that looks very like the negative procedure on statutory instruments. This is very unusual in relation to guidance as opposed to orders and regulations—the normal statutory instruments that we are used to—because of the fact that there is not a procedure that can be referred to. The procedure has to be set out here and it has to be 40 days and 40 nights and so on. There is the opportunity for either House to table what is, in effect, a negative resolution against the guidance that is being put forward.
Very often, we take the view that the negative procedure in relation to statutory instruments is not all that important. In this House, we very rarely vote against a statutory instrument, never mind use the negative procedure, and debates are on a take-it-or-leave-it basis and are formalised. That is true. Nevertheless, statutory instruments are scrutinised through a number of different committees of both Houses. They are subject to debate and if the Government get things wrong they risk looking stupid or just being shown to be wrong. This all means that the care that is put into the drawing up of statutory instruments is all that much greater than it otherwise would be. That is going to be the case with this guidance. What either House does with the guidance when it gets it is up to the House. We in this House, if we wish, could set up a procedure during the 40 days and 40 nights to scrutinise the legislation in some way—in the way statutory instruments are scrutinised or even in a more thorough way. The opportunity is there if we wish to take it.
I believe that this is a great step forward. This is very important guidance indeed, because it is going to be fundamental to what the MMO does and the way in which it works. Therefore, I very much welcome it. However, we should be clear that, in a sense, this is pushing the boundaries a little bit of the powers and activities of Parliament and the powers and activities of this House. I am not complaining about that; I am all in favour of it. We should be aware that we are doing that and, if it is not new ground, it is unusual ground. On that basis, the Government should be congratulated on being a little bit innovative in the way in which they are approaching this. They are being innovative in a way that puts more power and influence in the hands of Parliament and of this House in particular. Having said that, we welcome the amendments and we are prepared to support them today.
My Lords, I, too, welcome Amendment 5, which goes a long way to meeting the concerns that I raised earlier in the proceedings on this legislation. It is important that the points raised by the noble Baroness, Lady Byford, be properly addressed. I speak with some experience of this, having done rather more than five years as Chief Scientific Adviser to the Ministry of Defence.
Two elements are important. First, there is the seniority of the appointment. Secondly, there is the amount of time. Seniority is extremely important, because in the Civil Service, in agencies and elsewhere seniority determines how much you are listened to. It is very important that this person be listened to. It determines which meetings you attend and whether you are aware of the total business that is going on in the organisation. It is important that it is a senior position. I judge from the form of the amendment that it is intended that this be senior, because the appointment of an individual has to be approved by the Secretary of State. The MoD made its Chief Scientific Adviser appointment at Permanent Secretary level, and I believe that it still does. That is the sort of clout that is needed.
Secondly, the time commitment, too, is very important—certainly in the early years when the appointee is learning, if I may put it this way, where the stamps are kept. You have to know how the operation works, and where your help will be needed and useful. The problem is that many people in the department do not know that they need advice or help in particular areas, so the person holding the post must be proactive. In the early years, this involves a significant commitment of time. I worked full-time; I do not think that the post has to be full-time, but in the early years one is really looking at four days a week to be effective. Later, when things are under way and the MMO is better established, it could be less. However, it would be very important for the Minister to take account of these things in his guidance to the organisation.
My Lords, I hope not to detract from what my noble friend said in supporting these amendments, but I am afraid that I am going to ask a couple of questions now, rather than leave them until the Bill goes to the Commons. I declare an interest as joint president of London Councils. London boroughs would not normally be thought of as coastal, but some points in the Bill may affect them; and, as my noble friend reminds me, I live on a tidal part of the Thames.
The first question follows the comments made by other noble Lords about the chief scientific adviser. I wonder about the provision for approval by the Secretary of State of most of the terms and conditions of employment. I am not arguing with the Secretary of State's power of approval over the appointment, as the noble Lord, Lord Oxburgh, has just mentioned. However, there must be many provisions other than those that fall within paragraphs 16 and 17, which are about remuneration and pensions. I cannot believe that the Secretary of State should be looking at things like holidays and sick leave. It is a small point, but that would be micromanagement at a nano level.
My Lords, perhaps nanny as well.
My other question arises from Amendment 18, which provides for co-ordination between the MMO's area and other areas. The MMO's area is largely the UK marine area, which includes the sea, the seabed and the subsoil to high water—we find that later in the Bill. Will the Minister explain how the Government anticipate that the relationship between the MMO and the local authorities will be dealt with? Local authority areas go down to mean low water. There is an overlap there, because the MMO area goes to mean high water. Will proposed new Clause 2(8) be a basis for inter-authority working? I am using the government amendment to ask a wide-ranging question, because this is relevant to the marine policy statement, marine plans and real-world decisions. I think that it was the noble Baroness, Lady Byford, who at the last stage referred to offshore energy and the point at which it comes onshore. My noble friends and I are still unclear about how the relationships will work and who will take the lead and the necessary decisions covering certain geographic points.
My Lords, when the Joint Committee considered the draft Bill, it thought that the general objective of the MMO was, if I remember our wording correctly, rather woolly, so I am delighted to join other noble Lords in welcoming the government amendments, which make the objective much clearer. I also very much welcome the fact that the Government have already said that the MMO can set up a scientific advisory committee, which was another of our broad recommendations. The fact that they are going further and appointing a chief scientific adviser is a bonus.
I am also pleased that the Government are keeping the three pillars of sustainable development on an equal footing. I disagree with the noble Lord, Lord Greaves: I do not think that the environment, or whatever, should take precedence over the others. There should be a correct balance. That is what the Government propose; that is absolutely right and I welcome it.
My Lords, before I contribute to this stage of the Bill, I shall declare my interests. Details are available in the register, but I am sure that I should tell the House that I am a grower, farmer and landowner. I am a member of the NFU, the Farmers' Company and a number of agricultural societies and conservation bodies. I am also a member of the National Trust, which owns substantial areas adjacent to the coast. My wife is and has been for the past 20 years the Lincolnshire County Council member for Holbeach, which includes the large expanse of Holbeach marsh, which stretches for many miles out into the Wash. It is an area that I have known well since childhood.
I thank the Minister for moving the amendments. It is clear from the addition of my name and that of my noble friend Lord Cathcart to them that they have our support. I am very grateful to the Minister and his officials for what he said constructively with us and other noble Lords during the past few weeks. I may add very little that is new to the general view of other noble Lords in this debate but, as the Minister explained, the amendments cover several important aspects of the MMO and it is right that the Opposition's voice is added in their support.
We are very glad that the Government have taken our concerns about the scientific basis for the MMO's decision-making seriously. The addition of a chief scientific adviser is a great step forward, as is the stated duty in Clause 2 to base decisions on fact. We hope that the amendments will benefit the MMO by ensuring that it has sufficient in-house expertise for the often difficult decisions that it will be called on to make, and will make those decisions based on fact. The appointment of the chief scientific adviser will also, I hope, act as a figurehead for the development of marine science generally. We all seek to establish government bodies on as professional and effective a footing as possible. We see the amendments as an important step towards that goal.
My noble friend Lord Kingsland has two amendments in the group. The Government's response owes much to the way in which he has contributed to and articulated the argument for the changes in Committee. I will leave it to the Minister to respond to my noble friend's amendments.
The other amendments in the group are also extremely welcome and go a long way towards addressing our concerns about the drafting of Clause 2. The Government have also decided that legislative consistency means that they cannot accept "furthering or promoting sustainable development" in the MMO's duties, but, as the noble Lord, Lord Greaves, said, the new power to further the three pillars of sustainable development will be critical to ensure that the MMO can make a real difference to our marine environment. As we have said, the MMO must not be just another quango in a sector already clogged with them. It needs to be a genuinely effective body with real teeth.
Finally, the amendments ensuring that the Secretary of State's guidance on what is meant by sustainable development will be laid before Parliament are also extremely welcome. I am sure that not only Parliament but those implementing the policy will welcome the increased transparency and clarity. I again thank the Minister for listening to the House's concerns and congratulate him on bringing back amendments that address so many of our concerns. I hope that the rest of our proceedings can continue in an equally productive fashion.
My Lords, I will declare my interests before speaking to this part of the Bill. I am vice-president of the Royal Society for the Protection of Birds; former chief executive of the Environment Agency; former chairman of the predecessor to Natural England, English Nature; president of the Wildlife Trust and president of the British Trust for Ornithology.
I feel a bit like some sort of party-pooper, after the outbreak of harmony and congratulations that has gone around the Chamber. I am sorry to bring a discordant note but I am afraid that I have to. However, let me start on a good note and commend the Government's amendment on the chief scientific advisor. The points on full-time work made by the noble Baroness, Lady Byford, were very well made.
I think that the Minister would quite rightly expect me to fall away from him on Amendments 7 and 8. The statement about the MMO's primary objective fails what I call the "small green man from Mars test"—that is, if a small green man arrived from Mars and read the provision, would he have a clue what on earth this body was there for? The provision continues to fail the "small green man from Mars test". Not only does it say that the primary objective of the MMO is a duty,
"to secure that the MMO functions are so exercised that the carrying on of activities by persons in the MMO's area is managed, regulated or controlled", it goes on to say:
"with the objective of making a contribution to the achievement of sustainable development".
"With the objective of making a contribution" could involve an extremely small contribution. At some point the Government must get off the treadmill of having to perpetuate this definition because it exists in previous legislation, and move on to the more sensible one of asking these organisations, in language understandable by a small man from Mars, to "further" the achievements of sustainable development. It is a very simple statement that we should be expecting of all public bodies.
After all, what is sustainable development? That is where I would differ on Amendment 8—the one where, cunningly, the word "furthering" does appear. The amendment states:
"furthering any social, economic or environmental purposes".
The whole point of sustainability is that it is not about social, economic or environmental purposes; it is about trying to achieve solutions that deliver on all three of these.
I would place a rather large wager—that is probably improper in your Lordships' House—to see whether the Minister could come up with any human endeavour whatever that does not fall into the category of either social, economic or environmental. I think he would be hard-pressed to find one. This amendment says that the MMO,
"may take any action which it considers necessary or expedient for the purpose of", doing anything that it should. So I am not convinced that we have made huge progress. I think that the Government need to get off this treadmill of the historic definition of what we expect our public bodies to do in order to further sustainable development, being so hideously tortuous and flabby that it is not understandable in any commonly understood sense of the word.
My Lords, we were going well until the noble Baroness spoke at the end. However, I have been well aware of her views, and I appreciate the meetings that I had with her between Committee and Report.
Overall, I thank the noble Lords who have spoken for their general welcome for the amendments—to some of which other noble Lords have put their names. I am particularly grateful to the noble Lord, Lord Greenway, both for his chairmanship of the Joint Committee and for the way that he has helped us to understand some of the problems with the original wording of Clause 2. Although it was probably technically correct, it struggled to get to the core to what the MMO is all about. I know that the noble Baroness, Lady Young, thinks that we have not got there, but I think that we have made considerable progress.
As for the treadmill and the tortuous drafting, I go back to our debate in Committee. I was a bit worried when the noble Lord, Lord Greaves, suggested that we were edging towards a definition of sustainability, but I will hold my nose and urge noble Lords to accept the government amendments. He will know that the reason for not defining sustainable development is that our understanding of what is sustainable is continually evolving.
The UK Administrations have adopted the five shared principles, which set out a broad framework of sustainability: to live within environmental limits; to achieve a just society; to do so by means of a sustainable economy; good governance; and sound science. Those five principles have been expressed in our high-level objectives for the UK marine area. My amendment underpins that understanding of sustainable development in a way that can exist in legislation and which I hope will make clear to the MMO what is required, with the help of guidance and—again as the noble Lord, Lord Greaves, has suggested—with the opportunity for parliamentary scrutiny. He is right to say that it is very rare indeed for your Lordships' House to reject a statutory instrument, but the fact that an SI has to come before Parliament ensures that very great care is taken before any SI is laid before your Lordships' House. Clearly the same will be the case for the guidance to the MMO. The Government will listen very carefully to what Parliament has to say about the guidance; indeed, we would not move this amendment if that was not the intention.
Again, I welcome the welcome given to Amendment 5 by noble Lords who have spoken. It must be considered in relation to the commitment that I made in Committee that a science advisory committee will be established; the two go together. The noble Baroness, Lady Byford, supported by the noble Lord, Lord Oxburgh, and other noble Lords, wished me to say something about the status of the chief scientific adviser and to say whether the appointment would be full-time. I cannot stand at the Dispatch Box and give an absolute guarantee that, for all time, the chief scientific adviser will be a full-time appointment because there might be circumstances in which that did not happen. However, I hope that I can answer the substantive questions: will this person be senior within the MMO, and will they be able to make a significant contribution to the work of the MMO? I have no hesitation whatever in saying yes. The very fact that this appointment appears in statute is a visible indication of that importance.
The noble Lord, Lord Oxburgh, has huge experience in this area. My experience of the role of chief scientific advisers in a number of government departments in which I have now served leads me to say to your Lordships that the appointment of chief scientific advisers has been a huge advance in Whitehall in the advice that Ministers have received. In my experience, chief scientific advisers have ready access to Ministers, and their views and guidance are listened to very carefully. I expect the chief scientific adviser to the MMO to have the same kind of relationship. I am very happy to make that point this afternoon.
My Lords, I am grateful to the Minister for that clarification. I asked my question to try to establish what sort of commitment there was, obviously, but also to wonder whether someone involved in scientific research in other fields would be excluded from being appointed. It was nearly a double question; maybe I did not express it quite well enough. I would hate to think that somebody who would fulfil the role extremely well was employed somewhere else and was therefore unable to be considered. I was searching for that.
My Lords, I really do not see why that should not be possible, if it were considered appropriate. I cannot go much further, but we would want the MMO to have discretion in that regard. It clearly needs to be able to appoint people or a person of the highest calibre and I would not want a situation such as the noble Baroness raises to get in the way of that. Equally, I am sure that we would want to be assured that the person appointed had the time and the ability to do what might be a very demanding job. To take the point raised earlier by the noble Lord, Lord Kingsland, there is a great deal of research to be done and scientific evidence that we still need to have on the marine environment, so I would have thought that whoever was appointed would have not only a very important job but a busy one.
On the question raised by the noble Baroness, Lady Hamwee, we intend there to be not micromanagement but simply an appropriate check and balance on how the organisation might wish to go on with the terms and conditions that the schedule lays out. In view of recent events relating to salaries paid in quangos, while one wants to avoid micromanagement, one wishes to ensure appropriate accountability. The noble Baroness should not read anything more than that into it.
I may have been too quick to shake my head when my noble friend said that I had used the word "opinion". I apologise to him; I thought that he was referring to Amendment 9, whereas I used the word in relation to Amendment 18. However, I want to reassure him that that is not any old opinion but one that has been expressed after consideration of the evidence. I was speaking about opinion in that context, rather than saying, as he might have inferred, that any old opinion from anybody might have equal weight.
The noble Baroness, Lady Hamwee, has a great deal of experience and has raised an important matter about how green planning integrates with other development plans, including those on the land. She referred to the overlap. I hope to reassure her that, during the detailed process of developing marine plans, plan authorities will be under a legal obligation to secure compatibility with other plans that overlap, are adjacent to or have some relevance to marine plans—including river basin and shoreline management plans and terrestrial plans—thereby facilitating integration. That will, clearly, require the plan authorities to work with other regulators, planning bodies and Administrations. We expect the MMO to build sound relationships with terrestrial planners, local authorities and regional planning bodies. I can reassure her that we are working closely with the Local Government Association, regional planning bodies and the Department of Communities and Local Government to see how that relationship might work and, indeed, what lessons we might learn from terrestrial planning. Marine plans in coastal areas will often slightly overlap with the areas of jurisdiction of local authorities. Different kinds of plans in coastal areas already overlap, so this is not a new issue. I am confident that together we can make it work.
We have already discussed devolution. Just as I have overall been encouraged by the approach taken by the devolved Administrations wishing to make this work together in an area that is partly the responsibility of the UK Government and partly the responsibility of the devolved Administrations, I have been encouraged, too, by the approach of local authorities, which are equally committed to making this work. However, I take the noble Baroness's point and I will make sure that this is given due consideration within my department and CLG. We will explore it further with the Local Government Association.
I turn to the amendments proposed by the noble Lord, Lord Kingsland. Perhaps I may say how relieved we are that, although he has ceased to be chairman of one body, he is now chairman of the Plymouth Marine Sciences Partnership. I pay tribute to the case that he made in Committee about science. He says that he is reassured that we see science as one of the underlying principles of sustainable development. I should also make it clear that we believe that the MMO needs to pursue an evidence-based approach to all its decision-making. As a decision-maker, the MMO is under a duty to take into account all relevant facts and matters, including those listed in new subsection (1B). It must also attach the appropriate weight to the different facts and matters taken into account.
The type of evidence that the MMO will need to take into account will depend on the individual circumstances of each case and we have expanded on the kinds of matters that may be taken into account in Amendment 9. This should not be seen as an exhaustive list. Clearly, what is relevant in any particular case must be for the MMO to determine. I know that the noble Lord, Lord Kingsland, asked the point of stipulating these matters and what weight they should be given. The fact is that putting these considerations in the Bill must in itself clearly give significant weight. The problem in the wording of the noble Lord's amendment is that not everything will be relevant in every case. Our worry is about imposing a disproportionately onerous obligation on the MMO.
The noble Lord's second point was about the use of the word "appropriate" as opposed to "relevant" in proposed new paragraph (c). We see our wording as allowing slightly wider discretion to cover anything that the MMO might take into account. Something might be of relevance, but of peripheral relevance, and might not be appropriate. We do not think that the distinction between the terms indicates a significant difference of approach, although I am not sure that I have convinced the noble Lord, Lord Kingsland, on that. He will understand the spirit in which I have tabled these amendments and why there should be some discretion, but I am happy to look into the detail to convince myself that we have got it absolutely right. I would be happy to discuss this matter further with the noble Lord between Report and Third Reading.
My Lords, I am most grateful to the Minister for what he has said about the general approach to Clause 2, in particular the enhanced role that the Government have now given science in a number of respects, for which the House owes him a great debt of gratitude.
With great respect to the Minister, I suggest that the right approach by the Government to Amendment 9, which I do not think they have got quite right, is to make the distinction between relevance and weight. That is a classic planning approach, as I am sure the noble Baroness, Lady Hamwee, would underline. While I foresee circumstances in which the Government might not wish to give any weight to a relevant matter, to introduce the word "appropriate" simply confuses things. However, he has kindly said—to reassure his own interpretation of Amendment 9, which the Government have advanced—that he will give it further thought between now and Third Reading. I am content to leave the matter for the present.
Amendment 5 agreed.
Moved by Lord Davies of Oldham
6: Schedule 1, page 217, line 6, leave out sub-paragraph (3) and insert—
"(3) Sub-paragraph (1) does not—
(a) prevent the MMO from exercising the function itself, or
(b) affect the power of the MMO to authorise an employee of the MMO to carry out functions of the MMO."
My Lords, in the spirit of the phrase used by the noble Lord, Lord Taylor, on a previous amendment, when he said that the Committee should continue in a productive manner, I am now hopeful that I can bring the noble Lord, Lord Greaves, into this virtuous circle. Amendment 6 is a response to the points that the noble Lord, Lord Greaves, made in Committee when he asked how paragraph 20(3) of Schedule 1 was intended to work in practice. He raised this on the first day and I am grateful to him because we said at the time that he had made a significant point, and that we wanted to look again at the paragraph. The result of the Government's consideration is Amendment 6.
It should now be clear from the government amendment and the revised paragraph 20 that the MMO can indeed authorise a committee, sub-committee, member or employee to exercise any MMO function. The power is capable of repeated exercise, so if the MMO wanted, for example, to authorise a different committee to exercise a function, it could do so under that provision. Sub-paragraph (3) makes it clear that the MMO can still exercise that function itself, or get an employee to do it, notwithstanding the delegation of that function under sub-paragraph (1). In considering this amendment, we have looked at paragraph 19 of Schedule 1 to the Natural Environment and Rural Communities Act 2006. We have based our drafting in this Bill on the provision in that Act. I hope we have, through the good offices of the noble Lord, Lord Greaves, who drew the attention of the Government and the House to this issue, clarified this issue. I beg to move.
My Lords, I thank the Government for the amendment. If I remember rightly, we discussed this at some inordinate length in Committee, probably late into the night. At the time I thought that I was having great difficulty in getting my point through to the Government, but clearly they were listening. The problem was that, as the paragraph was originally drafted, it was possible to delegate to two different committees at the same time, which could clearly cause confusion. I am very grateful to the Government for looking at it again, and for the common-sense and practical solution that they have found. Well done.
My Lords, I am of course grateful to both noble Lords. I reassure the noble Lord, Lord Greaves, that, even late at night, if the Government's eyes look glazed and it looks as though their ears may not be listening, we always have eyes and ears, particularly for any amendment that he is moving, whatever the time. Here is proof positive.
Amendment 6 agreed.
Amendments 7 and 8
Moved by Lord Davies of Oldham
7: Clause 2, page 2, line 7, leave out paragraphs (a) and (b) and insert—
"(a) with the objective of making a contribution to the achievement of sustainable development (see subsections (1A) and (3) to (7)),
(b) taking account of all relevant facts and matters (see subsection (1B)), and
(c) in a manner which is consistent and co-ordinated (see subsection (8))."
8: Clause 2, page 2, line 12, at end insert—
"(1A) In pursuit of its general objective, the MMO may take any action which it considers necessary or expedient for the purpose of furthering any social, economic or environmental purposes."
Amendments 7 and 8 agreed.
Moved by Lord Hunt of Kings Heath
9: Clause 2, page 2, line 12, at end insert—
"(1B) For the purposes of subsection (1)(b), the facts and matters that may be taken into account include each of the following—
(a) scientific evidence, whether available to, or reasonably obtainable by, the MMO;
(b) other evidence so available or obtainable relating to the social, economic or environmental elements of sustainable development;
(c) such facts or matters not falling within paragraph (a) or (b) as the MMO may consider appropriate.
See also section 23 (powers of MMO in relation to research)."
Amendments 10 and 11 (to Amendment 9) not moved.
Amendment 9 agreed.
Moved by Lord Greaves
12: Clause 2, page 2, line 12, at end insert—
"( ) In pursuit of its general objective, the MMO shall endeavour to work closely with coastal communities."
"In pursuit of its general objective, the MMO shall endeavour to work closely with coastal communities".
This was part of a much broader amendment moved in Committee by my noble friend Lord Tyler. I want to thank my noble friend for the work he put into this during the Committee stage on the days when I was not able to be here because I was otherwise engaged on another Bill. My noble friend has departed this life as far as this Bill is concerned and is now active on the Political Parties and Elections Bill. In Committee he said that he hoped the Minister would accept that the amendment would cover a "lacuna in the Bill". I had to look up the word because I thought it had something to do with the lady of Laguna, but it turned out not to; I think my noble friend just meant that there is a gap. It is very important that the MMO works in close co-operation and, it is hoped, harmony or at least full and frank discussion, with coastal communities.
We have noted several times that the MMO is unusual for a quango or body with a strong environmental element in that it deals with an area where there are no people. Most related organisations cover areas of the land where people live, work and play. That is not so clearly the case with the sea. Clearly, people work and play on and in the sea, but they do not live there permanently—except along the coast. Where the sea meets the land is a crucial element of our discussions on the whole of the marine aspect of the legislation and the work of the MMO. It is extremely important that the MMO should work closely both with those living on the coast and their representatives.
My noble friend made these points as part of a much longer debate that looked at many of the issues covered by the large group of amendments to Clause 2. It is clear from Hansard that he could not get any satisfactory answers, and the reason for tabling a further amendment today is to raise the issue again and hope that we can be given some today. Of course, parts of the Bill refer to different aspects of the work of the MMO as they relate to the coast and coastal communities while other parts, such as those dealing with IFCAs, relate to communities on the coast as much as they do to the sea. However, we propose that it should be a fundamental principle that people living and working on the coast have to be recognised early on in the Bill at this high-level stage of setting up the MMO and setting out its objectives. If the MMO is not going to work closely with coastal communities, it will get itself into very serious trouble because it will not be able to do what it has to do. This should be in the Bill as a general principle. I beg to move.
My Lords, my name is attached to this amendment. First I declare the interests that I declared in Committee: I am a member of various wildlife trusts, a member of the North Devon Yacht Club and vice-president of the Campaign for National Parks. My husband is a member of the Devon sea fisheries committee and a member of the Environment Agency coastal management group for the Bristol Channel area.
I support what my noble friend said. Having reread the debate in Committee, I think there is a principle that the Government still need to put into the Bill; perhaps the Minister will tell me differently. The inshore sea area that the MMO will be responsible for—I think the far offshore area will be far less contentious—can be likened to common land. Some people have an economic interest in it, while some have an environmental interest and there is no owner, except that the Crown Estate owns the seabed. However, those coastal communities have, in many cases, worked over years to find a way forward. I am thinking, as the Minister knows, of estuary forums, where competing interests have had to be dealt with, some of which we discussed in Committee, such as recreational interests, say, and shellfish interests. Unless this is recognised in the Bill, all the positive work that coastal communities have done in balancing those different interests in the marine area will be lost. Unless the MMO is brought into that work very fundamentally, in statute, it will be an enormous backward step and those interests could start to compete with each other again. That will send different views to the MMO, making its life much more difficult. That is why I feel strongly that we should recognise the importance not of the statutory bodies, which we will talk about later—my noble friend Lady Hamwee will talk, for example, about the role of statutory local authorities—but of the more ephemeral idea of coastal communities, to which this amendment refers.
My Lords, the noble Lord, Lord Greaves, makes an understandable point by moving this amendment and the contribution of the noble Baroness, Lady Miller, has the same relevance. Much of what the MMO seeks to achieve is, of course, of great interest to coastal communities, whether we are talking about harbours, fishing or seaside leisure. The prosperity of these communities will depend on them having good liaison and dialogue with the MMO. So obvious is this, however, that I am not sure that it is a necessary element to include at this early stage of the Bill—there are places later in the Bill where it may be more relevant.
My Lords, I am grateful to the noble Lord, Lord Greaves, and the noble Baroness, Lady Miller, for allowing us to debate what might be described as coastal communities. I recall the debate in Committee and the intervention of the noble Lord, Lord Tyler. When we were in Committee, we had a clash with the Local Democracy, Economic Development and Construction Bill and we now have a clash with the Political Parties and Elections Bill. At one time I thought I might, as a Ministry of Justice Minister, be taking it through, but we have moved on to higher things with the marine Bill.
Rather like the noble Lord, Lord Taylor, I have no argument with noble Lords in their emphasis on the importance of coastal communities. I agreed with the noble Lord, Lord Greaves, when he talked about the need for harmony but, if you cannot have harmony, at least have a full and frank debate. I agree with his point about the interface between the people living along the coast, the sea itself and the interests of people living in coastal areas. My concern is the implications of putting this in the Bill. It is the "list" argument: if you put something in legislation, you are in danger of excluding other interests. The amendment would amend the critically important Clause 2. The government amendments that we have agreed with the support of the House are, in a sense, the high-level duties and objectives. It would not be appropriate to add "endeavour to work closely with coastal communities".
It is, however, relevant to ask me how the MMO intends to work with the communities that noble Lords have spoken so eloquently about. Noble Lords will be aware of the vision for coastal management that my department has published recently entitled A Strategy for Promoting an Integrated Approach to the Management of Coastal Areas in England. The strategy makes it clear that we place a great deal of emphasis on the need to empower coastal communities. We want them to have a sense of ownership and stewardship within marine and coastal areas, and we think that that will greatly assist the MMO in the delivery of its functions and the overall objective of making a contribution to sustainable development. We think that marine planning will offer new opportunities for coastal regulators and communities to have a say in the way the marine environment is managed in the same way that they input now into land planning on the coast. Further, the statement of public participation issued by the MMO at the outset of development of each marine plan, which we might debate again, sets out how it intends to involve stakeholders and local communities at each stage. That will ensure that those with an interest will be clear about the process, decide what involvement they want to have and be able to become appropriately involved.
I have no disagreement with noble Lords in their desire to ensure that coastal communities have a major input into the deliberations of the MMO and the way it works, but we have great reservations about singling out coastal communities and putting them into the Bill in Clause 2 in the way that the noble Lord has suggested.
My Lords, I am grateful for some of the things the Minister said and his commitments about how coastal communities will be involved. I was surprised by his use of the "list" argument. I am not sure which other items he thinks might be in the list. We are talking about the people who live in the coastal regions and along the coast. I do not consider that those people are just part of a list; they are pretty fundamental. I do not think that that argument applies; I am proposing not a list but something fundamental about the MMO's objectives and how it carries them out. It should work closely with coastal communities.
The Minister said that this part of the Bill is about high-level duties. Working with coastal communities is a high-level duty. I am not saying that this amendment is perfect; if the Government do not like the words, I would be delighted if they went away and produced their own. Words are words. What matters is the meaning underneath those words, and that is what I am putting forward today.
I agree that the vision for coastal management—the integrated strategy—is an interesting, positive and hopeful document. I agree very much that there should be a sense of ownership and stewardship by coastal communities of what the Marine Management Organisation is doing in the inshore waters that affect them. That as why we are proposing this amendment. I do not understand why the Minister is resisting it being in the Bill since he is actually saying that he agrees with the intention behind it in almost every respect. I should like to test the opinion of the House.
Division on Amendment 12 called. Division called off after three minutes due to lack of support for the Contentswhen the Question was put a second time.
Amendment 12 disagreed.
Amendments 13 to 18
Moved by Lord Hunt of Kings Heath
13: Clause 2, page 2, line 13, leave out subsection (2)
14: Clause 2, page 2, line 26, leave out "(1)(b)" and insert "(1)(a)"
15: Clause 2, page 2, leave out from end of line 26 to end of line 28 and insert "(and see also section 36 (guidance))."
16: Clause 2, page 2, line 32, at end insert—
"(5A) A draft of any guidance proposed to be given under this section is to be laid before each House of Parliament.
(5B) Guidance is not to be given under this section until after the end of the period of 40 days beginning with—
(a) the day on which a draft of the guidance is so laid, or
(b) if the draft is laid on different days, the later of the two days.
(5C) If, within that period, either House resolves that the guidance, the draft of which was laid before it, should not be given, the Secretary of State must not give that guidance.
(5D) In reckoning any period of 40 days for the purposes of subsection (5B) or (5C), no account is to be taken of any time during which—
(a) Parliament is dissolved or prorogued, or
(b) both Houses are adjourned for more than four days."
17: Clause 2, page 2, line 33, leave out subsection (6) and insert—
"( ) The Secretary of State must publish, in such manner as the Secretary of State may determine, any guidance given to the MMO under this section."
18: Clause 2, page 2, line 36, at end insert—
"(8) In this section—
"consistent and co-ordinated" includes taking into account the effect (if any) that decisions in respect of—
(a) any particular part of the MMO's area, or
(b) the carrying on of any activity within that area, will have on any other part of that area or the carrying on of any other activity in that area;
"evidence" includes predictions and other opinions resulting from the consideration of evidence by any person;
"the MMO's area" means those parts of the UK marine area, or of the United Kingdom, where MMO functions are exercisable;
"MMO functions" means functions exercisable by or on behalf of the MMO."
Amendments 13 to 18 agreed.
Clause 3 : Performance
Moved by Lord Bridges
19: Clause 3, page 2, line 40, at end insert—
"( ) These objectives should include the protection of items of archaeological interest on the seabed."
My Lords, Amendment 19 incorporates the care of archaeological articles found on the seabed among the responsibilities of the Secretary of State. I should explain that I am not a professional archaeologist in any sense. My interest was first aroused when, as a student at Oxford, the all-embracing curriculum of the school of modern history was described in the university statutes as:
"The history of Britain from the beginning to the present day".
My own special study was devoted to more recent history, in particular, the origins of the First World War, which was totally absorbing. However, there was some archaeology involved in the Anglo-Saxon and Roman periods of British history and subsequently I have belonged to the county archaeological societies of the three counties in which I have come to live: Surrey, Sussex and latterly Suffolk, where I have settled permanently on retirement.
It so happens that one of my Suffolk neighbours in Orford, Mr Stuart Bacon, is seriously interested in locating treasures under the sea. He actually spent his career in the Royal Air Force, but he has opened a small museum in our village called Suffolk Underwater Studies. Some years ago, he located the wreck of a Spanish warship close inshore, which had got lost on the way home after its defeat in the Spanish Armada. The wreck included a rare 16th century Spanish cannon. With some difficulty, Mr Bacon raised this to the surface and transported it to his museum. It was too large to go through the door, so he chained it securely to the structure and began negotiations with the authorities in London so as to locate a national naval museum to which he could present it.
While this was going on, at 7.30 one morning a convoy of official government vehicles arrived with a team who cut the chain and removed the cannon. I thought this to be an extremely rude, even high-handed, action and raised this matter at Question Time in this House on
"Surveys are carried out before dredging but...surveys often miss an ancient wreck"
This seems a somewhat haphazard procedure.
I also wish to draw attention to a significant recent development; namely, the discovery of an important British wreck in the Channel. This was evidently HMS "Victory", launched in 1737. It is a major discovery. Previously it had been believed that the ship had come to grief close to the Channel Islands but the remains of the ship lie further west, scattered over a wide area and her fate now lies in the hands of the Disposal Services Authority, part of the Ministry of Defence. The ministry have a contract with an American company, Odyssey, which will dispose of the proceeds and might share some of them with the Ministry of Defence. Odyssey has American shareholders and is registered in New York. The contract should include archaeological supervision by the British Government but I do not know that that has happened. However, these arrangements do not comply with the UNESCO Convention on the Protection of the Underwater Cultural Heritage, which came into force in January 2009.
Meanwhile, it seems likely that the fate of the valuable contents may be determined by the American courts. Among the items included in the cargo are apparently four tonnes of gold coins. This is the most important naval wreck to be discovered in recent years. Evidently, it is more important than HMS "Mary Rose", which attracted much public attention a few years ago.
For a fuller account of this remarkable event, I refer noble Lords to the current issue of British Archaeology—the issue for May/June—which is published by the Council for British Archaeology. I subscribe to that magazine and have arranged for photocopies of the most important pages to be available in our excellent Library, which is not a subscriber. I think that noble Lords will find it compelling reading, and I strongly recommend that Ministers responsible for the Bill study the article carefully as it will give them much food for thought. In particular, it would appear that the current commercial arrangement with Odyssey may conflict with the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage.
The amendment in my name is intended to give political responsibility for issues as significant as these to the Minister in charge of the department—that well known if elusive personality, the Secretary of State. I suggest this because I believe that the issues involved are so large that the Minister in charge of the department should play a leading role in reaching decisions. The record to date, which I have cited, suggests that there has been little or no consideration of these issues at the political level. That is what I believe should happen in the future and that is the purpose of my amendment.
I suggest that the Government would do well to consider these major issues before proceeding to the last stages of the Bill before us. I trust, therefore, that the Government will take a short period to reconsider the future of the Bill. Pending their reconsideration, I do not propose to press my amendment to a vote at present. I also suggest to the Government that there are other possible ways are proceeding. The first might be to recast the Bill in its entirety so that it concentrates on the issue of coastal paths, which seems to be its main political purpose. The remainder could certainly be put off until another day. We have already had a useful and thorough debate about the footpaths detail, so that would not be wasted.
Alternatively, it might be decided to examine the whole issue of underwater treasure more thoroughly. Clearly, this is an important topic which Her Majesty's Government have not been able to concentrate on so far. I also venture that the creation of the administrative machinery to cope with the Bill in its present form will constitute a burden on the Exchequer which currently it is in no position to absorb. I shall await the Government's response with keen attention. Meanwhile, I repeat my request that the Minister should study the current issue of the magazine British Archaeology. Evidently, the Government have not had access to it so far. I beg to move.
My Lords, I believe that I have no relevant interests to declare, but—just in case—I am a member of the All-Party Parliamentary Groups on Arts and Heritage and on Archaeology.
I very much agree with what the noble Lord, Lord Bridges, said in drawing attention to his amendment. I also attribute considerable importance to this area of our cultural heritage. In saying that, I should like to refer to a splendid document called Archaeology Enriches Us All, which, among other things, states:
"Archaeology is key to understanding an irreplaceable store of human history, most with no written record and sometimes highly vulnerable".
That is particularly true of the marine environment.
I am glad to hear that the noble Lord does not intend to press the amendment today because the Government, in tabling Amendments 82 and 111 in this group, have acknowledged the importance of this area and have—dare I say it?—taken on board amendments tabled earlier by an all-party alliance comprising the noble Lords, Lord Howarth of Newport and Lord Low, the noble Baroness, Lady Miller of Chilthorne Domer, and myself. The issue was discussed also by other noble Lords with considerable expertise and knowledge who are not able to be here today to record their agreement to the government amendments.
I am very happy to acknowledge that, in Amendments 82 and 111, the Government have met many if not most of the concerns expressed in Committee. If it were not for these two amendments, there would be no explicit provision or requirement for marine plan authorities to keep historic or archaeological features under review, nor would there be any provision insisting that the authorities designating marine conservation zones have regard to the consequences for any sites in the area that are of historic or archaeological interest. However many times it is said that the Bill's main emphasis is to protect the natural environment, and however often we are asked to wait patiently for the heritage protection Bill—which may or may not be mentioned in next year's Queen's Speech—we nevertheless now have a specific reference point that enables a read-across to relevant existing legislation and to any future legislation which ties in our historic and cultural heritage, and marine archaeology considerations, with the new organisation and zoning arrangements created by the Bill.
The recently published high-level marine objectives document entitled Our Seas—A Shared Resource uses the word "heritage" eight times, "archaeology" once and "seascape" three times. In the document originally put out for consultation, "heritage" was used on only four occasions and "archaeology" and "seascape" not once. The noble Lord, Lord Bridges, should be reassured by the fact that "archaeology" is included not only in the Bill but in high-level documents published outside the House. The final document also includes definitions of marine cultural heritage and seascape which we may hear a little more about later on Report.
I thank the Minister and all those behind the scenes who have taken part in the discussions that have led to this happy state of affairs. I wish to mention specifically the Defra Minister in another place and the various NGOs, particularly English Heritage, whose input and support have been very significant. This is an important Bill and it should be as comprehensive as possible. As has been said, we send this Bill to another place in a better state. I thank the Government for listening.
My Lords, I wonder whether it might be useful if I spoke now to the government amendments and responded to the amendment of the noble Lord, Lord Bridges. If I do, I will not be able to speak again, although I might be able to refer back with the leave of the House. Shall I do that? I think it would be helpful to the House to have more information about the government amendments.
Not at all, my Lords.
I am very glad that the Government are able to bring forward amendments on an undoubtedly important matter. The noble Lord, Lord Bridges, and the noble Baroness, Lady Hooper, have already indicated why it is important that the MMO gives due consideration to these matters. The noble Baroness has already referred to the Government's high-level marine objectives of
I also make it clear that the kind of specific and comprehensive heritage protection that both noble Lords have intimated they would like to see deserves its own legislation. I know that there is disappointment that the Government have not yet been able to bring forward the heritage protection Bill in this parliamentary Session. However, we remain committed to that legislation and believe that it is the right vehicle for the comprehensive and vital protection of our historic, cultural and archaeological heritage.
With that in mind, I have carefully considered our debate in Committee. We have had the opportunity to talk to colleagues in the Department for Culture, Media and Sport. While we are not prepared to widen the scope of the Bill, we are clear that the provisions in the Marine and Coastal Access Bill should complement future heritage protection legislation. On reflection, while the Bill allows cultural heritage to be taken into account in decision-making, I believe that some references could be strengthened.
I turn to my amendments before responding to that of the noble Lord, Lord Bridges. Amendment 82 seeks to clarify that the reference to culture in Clause 52(2)(a) includes historic and archaeological characteristics. The amendment essentially makes it clear that the historic and archaeological characteristics should be considered in the identification of marine plan areas and in the preparation and review of marine plans.
Amendment 111—which I have tabled to Clause 114, in Part 5—is similarly intended to clarify that any social consequences referenced in subsection (7) include historic and archaeological consequences, so the Secretary of State may therefore take into account the historic and archaeological consequences of marine conservation's own site designations. I understand that noble Lords want to ensure that we are not only recognising and considering heritage in marine planning licensing and nature conservation, but that management of marine conservation zones will not undermine the work of bodies such as English Heritage which are tasked with protecting wrecks and other historic features.
I therefore reassure noble Lords that the Government are extremely committed to ensuring that the nature conservation provisions are compatible with the vital licensing and management work carried out by English Heritage in the preservation of historic wrecks within UK waters.
I draw the attention of the House to Clause 125(5), which specifically enables the MMO to make by-laws that allow for the issuing of permits under controlled circumstances. We expect that such permits will include the licensing of activities for the preservation or investigation of wrecks as well as permitting access to such sites. The MMO will be working closely with bodies such as English Heritage to agree this process, and this relationship is likely to be formalised through a memorandum of understanding, which will clarify how these respective roles will work effectively and efficiently to recognise both nature conservation and heritage interests. The amendments that I will move make a clear commitment to recognising our vital marine cultural heritage.
Let me address the amendment moved by the noble Lord, Lord Bridges. I was interested in his views and comments on HMS "Victory", but I was somewhat taken aback by the suggestion that we should simply not deal with those aspects of the Bill that do not relate to coastal access. After our 11 days in Committee, this House is well able to come to a view on the totality of the Bill.
The amendment proposes that the objectives that the Secretary of State may set for the MMO should include the protection of items of archaeological interest on the seabed. As I have set out, in seeking to achieve its objective of contributing to the achievement of sustainable development, the MMO will be guided by the policies of the marine policy statement and, ultimately, by marine plans. This means that archaeological protection will be one of the many factors taken into account by the MMO when it is making decisions, so it is unnecessary to include this specific requirement in Clause 3. It will be a familiar argument to noble Lords that to do so would actually unbalance the MMO's objective and imply that this factor is more important than other factors. The amendment would widen the focus of the MMO and the Bill beyond what we think is best both for the Bill and for future heritage protection legislation.
Although I do not think that Part 1 is the appropriate place to reference archaeology, heritage can be considered in the drafting of marine plans, in the licensing of marine activities and in considering the social and economic consequences of marine conservation zone designations within 12 nautical miles. I stress that, under the United Nations Convention on the Law of the Sea, the UK cannot make legislation for the protection of archaeological and historical objects beyond 12 nautical miles, except where naval vessels and other vessels owned or operated by a state and used only on government non-commercial service are concerned.
Clause 112(2), when read with Clause 66(1)(a), clearly provides that the marine licensing authority must have regard to the protection of any site that is of historic or archaeological interest when considering applications for a marine licence. Although we will not be able to license the removal of underwater cultural heritage directly beyond 12 nautical miles—we will be using the exemptions order in Clause 72 to ensure that we are compliant with the UN convention in this regard—this will provide some significant protection to wrecks beyond 12 nautical miles from other types of licensable marine activities that could otherwise damage such sites.
In line with the marine licensing provisions, and following reflection on our debate in Committee, marine planning and nature conservation powers can be strengthened in the way in which my amendments seek to do. While I suspect that the amendments do not go as far as the noble Lord would like, I think that they meet the general concerns that were expressed in Committee. I hope that this explanation at this point in our discussion will be helpful.
My Lords, I apologise to the Minister for being so keen to rise to support the amendments, as many noble Lords around the Chamber are. I thank the noble Lord, Lord Bridges, for introducing the amendment and I thank the Minister for speaking to his amendments in the group to address a concern that was raised in Committee by my noble friend Lady Hooper with our support. I am extremely glad that the ongoing conversation between the Minister and interested Peers has found a way forward and that the House has persuaded the Government of the importance of ensuring that the powers in the Bill can be used to protect these sites. I do not share the anxieties of the noble Lord, Lord Bridges, that the government amendments do not address his concern. The amendments have our support.
My Lords, the amendments that the Government have tabled, and the assurances that the Minister has just given the House, are extremely helpful. As the noble Baroness, Lady Hooper, has noted, the government amendments make it clear that historic and archaeological characteristics can be considered in the preparation and review of marine plans and when considering the consequences of marine conservation zone designations. My noble friend has also again placed on record the Government's commitment to the protection of marine heritage and has stated that the nature conservation provisions of Clause 125(5) will be compatible with the licensing and management work that English Heritage carries out in the preservation of historic wrecks. His suggested memorandum of understanding between the MMO and English Heritage would be very useful if it clarifies their respective responsibilities. The only note of caution that I would strike is that, if we are to have by-laws passed by the Marine Management Organisation and licences issued by the DCMS, I hope that all concerned will do their best to ensure that there is the minimum of bureaucracy and complexity and that the system is navigable by the people who need to use it.
The noble Baroness, Lady Hooper, told the House that the context of these amendments and assurances is the new document that the Government have published, Our Seas—A Shared Resource: High-Level Marine Objectives. It is good to read in that document that among the high-level marine objectives is the conservation of the cultural marine heritage and to see definitions of "marine cultural heritage" and "seascapes". Following the assurance that my noble friend Lord Davies of Oldham gave in Committee on
The amendments and commitments give us the essence of what we have sought. However, as the noble Lord, Lord Hunt, indicated, there are problematic issues surrounding the conservation of the marine heritage beyond 12 nautical miles. In the extremely important case of HMS "Victory" described by the noble Lord, Lord Bridges, is the Minister in conversation with colleagues at the Ministry of Defence, which should have competence in this matter given that HMS "Victory" was a naval warship? I hope that the MoD is taking seriously its responsibility to ensure that a commercial and predatory firm of divers is not able to loot this extraordinarily important part of our naval heritage.
My Lords, let me answer the noble Lord's points in order. I confirm that he is right that the powers lie with the Ministry of Defence and, in the light of what he has said, I will make sure that we are in conversation with the MoD.
My Lords, I appreciate what my noble friend has said. I thank him, my noble friend Lord Davies of Oldham, Mr Huw Irranca-Davies and the ministerial team for being so accessible and willing to listen and for responding so constructively—I am most grateful to them. I also thank and congratulate English Heritage officials, who briefed a number of us with precision, lucidity and very good judgment.
My final point has already been suggested by others. Could we please now have the heritage protection Bill? That would much more fairly and squarely deal with the important issues addressed with such eloquence and passion by the noble Lord, Lord Bridges. The debates that we have had on the heritage aspects of this Bill have been more anxious and uncertain than they would have been had the heritage protection Bill been proceeding in parallel through Parliament.
This Bill is primarily about issues concerning the natural environment, whereas the heritage protection Bill is the appropriate primary vehicle for protection of the marine historic environment. As my noble friend Lord Hunt said, there must be complementarity between the two, and I am grateful to Defra for the strenuous efforts that it has made to ensure that there is that complementarity. However, in the absence of what should have been the parallel Bill, the regime for which we are legislating will be lopsided.
I was pleased to hear my noble friend Lord Hunt reaffirm that the Government remain committed to the heritage protection Bill, but why do we not have it? It has been frustrating to be told repeatedly that the House of Commons during the past several weeks has been twiddling its legislative thumbs without enough to do. We know that the heritage protection Bill has all-party support—at least, I am assured by senior, responsible people in both the Conservative and Liberal Democrat parties that they support the essence of the measure. It has had pre-legislative scrutiny. Why can we not, even now, at this late stage of the Session, bring it into the House of Lords, make some progress with it and, if we cannot complete scrutiny of it in this Session, carry it over to the next Session? As I understand it, there is no procedural objection. Of course, that would need to be agreed by the usual channels, but, given that everyone thinks that it is a valuable measure, what difficulty should there be?
If we fail to do that, how will the heritage protection Bill get on the statute book? The next Session, the last of this Parliament, must be a short Session. It is difficult to be confident that the Bill would take its place in the first Session of the next Parliament, when it is all too liable to be crowded out by Bills emanating from big manifesto pledges. It would be a valuable thing to get it on the statute book. It would be enormously helpful for the heritage sector and local government. I hope that it will be possible for the usual channels to have constructive discussion about that and to agree that we should proceed with no further delay with the heritage protection Bill to support the now excellent heritage protection elements within the Marine and Coastal Access Bill.
My Lords, in speaking briefly to the amendments, I should declare an interest as chairman of the World Ship Trust, which is dedicated to encouraging the preservation of historic ships. I say "ships" rather than "wrecks", but we are nevertheless interested in what is brought forth from wrecks discovered under the sea. I agree in many ways with what the noble Lord, Lord Howarth, just said. The proposed heritage protection Bill is certainly the right vehicle to deal with this subject, but I am delighted that the Government have made this concession in their amendments, which will at least act as a stop-gap until such time as the heritage protection Bill is brought forward.
My Lords, I thank the Minister for his interesting remarks and for the sympathetic attitude that he has shown to the subject. I should make it clear that under existing law—I refer in particular to HMS "Victory"—although HMS "Victory" was in international waters, the fact that it was a British vessel was recognised by all concerned, so we had the right to dispose of the remains of the ship in the way that we thought best. I was trying to suggest in that part of my remarks that no proper attention was devoted to that by the Government, who simply allowed the Ministry of Defence to sell it off for what it could get to the United States. That does not seem to me to be an appropriate treatment of the most historic wreck belonging to this country found for a very long time.
I also suggest that, in the other legislation referred to, it would be helpful if more specific reference were made to exactly what we mean by the marine environment. For a lot of people, that will mean fish. The idea that there will be treasures down there that people are not free to raid needs to be explored. Living where I do, it is clear to me that there are a lot of foreign vessels snooping around our shores looking for what they can find. I have yet to see a vehicle from the Ministry of Defence or anyone else keeping an eye on what is going on. We do that where we are. There is an enormous gap before good intentions are transferred into something more concrete. That was my only motive in moving the amendment. I hope that we can be a little more specific; that would give a great deal of encouragement to those of us who care. I beg leave to withdraw the amendment.
Amendment 19 withdrawn.
Clause 4: Licensing of fishing boats
Moved by Lord Hunt of Kings Heath
20: Clause 4, page 3, line 8, leave out subsection (2)
My Lords, in moving Amendment 20, I shall speak to several other amendments in the group. Noble Lords will see that they make substantive amendment to Clause 4. They partly result from agreement reached with Scottish Ministers to enable the Marine Management Organisation to enter into agency arrangements with Scottish Ministers in relation to reciprocal licensing of fishing vessels. That is another indication that a good working relationship has been established.
The licensing of English fishing vessels operating out of Scottish ports and Scottish fishing vessels operating out of English ports is an administrative convenience currently undertaken on a reciprocal basis by Scottish Ministers and the Secretary of State, although, in practice, the Secretary of State's licensing function in England is carried out by the Marine and Fisheries Agency, an executive agency of Defra. Unlike the Northern Ireland Act and the Government of Wales Act, the Scotland Act has no provision enabling Scottish Ministers to enter into agency arrangements with any public body to exercise functions on their behalf. Specific provision for that is therefore required in the Bill to enable the Marine Management Organisation, as a non-departmental public body, to enter into those arrangements with Scottish Ministers to maintain the status quo.
Consequential Amendments 20, 23 and 36 have been made to delete subsections (2), (7) and (8) and Clause 14(3)(b), which are no longer required. In addition, Amendment 23 replaces subsection (6) with new subsections (6) to (8) appropriately to convey the scope of the transitional provisions that may be required when the MMO comes into being. The clause provides that licences already granted by the Secretary of State will, once the Bill is commenced, be treated as having been granted by the MMO. The amendment ensures that the same principle applies to licences that have been varied, suspended or revoked by the Secretary of State before the Bill is commenced; such licences will be treated as if varied, suspended or revoked by the MMO. Similarly, any application for a licence made to the Secretary of State that has not already been determined or withdrawn by the time that the MMO is established will be treated as an application to the MMO. I beg to move.
My Lords, the amendments to Clause 4 envisage a high degree of flexibility in the licensing of fishing boats. It is good to hear the Minister explain that, because of the lack of this agency ability under the Scotland Act, he is bringing Scottish powers into line with those of all the other devolved Administrations. It is certainly a nice thought that Scottish fishing boats in England will be able to get a Scottish licence, as it is that English boats in Scotland will be able to get an English licence. The mind turns to how far flexibility can reach and whether that will have any relevance for Spanish boats that have obtained an English or Scottish quota licence. It might be interesting for the House to know whether the Minister can see such an arrangement being extended to other countries. Does that mean in effect that every skipper can just nominate from which authority he wishes to obtain a licence?
My Lords, I am grateful to the noble Duke for that comment; he raises a very interesting point. Before I come to that, perhaps I could give the background to reciprocal licensing of fishing vessels. Normally, the port letters and numbers given to a fishing vessel on original registration remain with it for life. Thus the registration of a fishing vessel originally registered in Penzance will start with the letters PZ, while that of one registered in Peterhead will start with PH. In a similar way to car registration, the licence number of a fishing vessel remains the same when the vessel is sold on. Therefore, there are now a number of fishing boats that were originally registered in an English port but which now belong to Scottish owners and operate out of Scottish ports, and vice versa.
From a practical point of view, it makes more sense for vessels to be administered and licensed by the port office close to the port out of which they fish. A Scottish vessel was defined in the devolution settlement as a fishing boat whose entry in the register specifies a port in Scotland as the port to which the vessel is to be treated as belonging. I am sure that the noble Duke will remember our debating that point during the devolution Bill.
My Lords, that is a very good question, on which, alas, the noble Duke has found me short.
Because of the way in which that was so defined, it is necessary for Scottish vessels, or those originally registered in Scotland, that operate out of English ports to be licensed by the Secretary of State on behalf of Scottish Ministers and for English vessels, or those whose original port of registration was in England, to be licensed by Scottish Ministers on behalf of the Secretary of State. This is a sensible approach; we just need to make sure that, in legislative terms, we can carry on doing it.
The noble Duke asked about Spanish vessels rather than Spanish customs. This legislation is not a way in which we can encompass Spanish vessels in the licensing regime. They are licensed by the Spanish Government.
Amendment 20 agreed.
Amendments 21 to 23
Moved by Lord Hunt of Kings Heath
21: Clause 4, page 3, leave out lines 14 and 15 and insert—
"(2) In subsection (1)(a) of that section (power by order to prohibit fishing unless authorised by a licence granted by one of the Ministers) the reference to one of the Ministers is to be read as including a reference to the MMO instead of a reference to the Secretary of State.
(3) In the following provisions of that section—"
22: Clause 4, page 3, line 30, at end insert—
"( ) After subsection (11) of that section insert—
"(11A) As respects any function under this section, other than a function of making an order,—
(a) the Marine Management Organisation may make arrangements for the function to be exercised on its behalf by the Scottish Ministers, and
(b) the Scottish Ministers may make arrangements for the function to be exercised on their behalf by the Marine Management Organisation.
An arrangement under this subsection does not affect a person's responsibility for the exercise of the function.
(11B) A person exercising a function on behalf of another by virtue of subsection (11A) above may charge that other such fees as the person considers reasonable in respect of the cost of doing so."."
23: Clause 4, page 3, line 31, leave out subsections (6) to (8) and insert—
"(6) The grant, variation, revocation or suspension of a licence under that section by or on behalf of the Secretary of State before the coming into force of this section has effect as from the coming into force of this section as the grant, variation, revocation or suspension of the licence by the MMO.
(7) Where a decision to grant, vary, revoke or suspend a licence under that section—
(a) has been taken by or on behalf of the Secretary of State before the coming into force of this section, but
(b) has not been notified in accordance with regulations under section 4B of the Sea Fish (Conservation) Act 1967 (c. 84), the decision has effect as from the coming into force of this section as a decision taken by the MMO.
(8) Where, before the coming into force of this section, an application for a licence under section 4 of that Act, or for the variation of such a licence,—
(a) has been made to the Secretary of State or a person acting on behalf of the Secretary of State, but
(b) has not been determined or withdrawn, the application is to be treated as from the coming into force of this section as an application made to the MMO."
Amendments 21 to 23 agreed.
Clause 6: Trans-shipment licences for vessels
Amendments 24 and 25
Moved by Lord Hunt of Kings Heath
24: Clause 6, page 4, line 10, at end insert—
"( ) In subsection (1) of that section (power by order to prohibit trans-shipping of fish unless authorised by a licence granted by one of the Ministers) the reference to one of the Ministers is to be read as including a reference to the MMO instead of a reference to the Secretary of State."
25: Clause 6, page 4, line 27, leave out subsection (5) and insert—
"(5) The grant, variation, revocation or suspension of a licence under that section by or on behalf of the Secretary of State before the coming into force of this section has effect as from the coming into force of this section as the grant, variation, revocation or suspension of the licence by the MMO.
(5A) Where a decision to grant, vary, revoke or suspend a licence under that section—
(a) has been taken by or on behalf of the Secretary of State before the coming into force of this section, but
(b) has not been notified in accordance with regulations under section 4B of the Sea Fish (Conservation) Act 1967 (c. 84), the decision has effect as from the coming into force of this section as a decision taken by the MMO.
(5B) Where, before the coming into force of this section, an application for a licence under section 4A of that Act, or for the variation of such a licence,—
(a) has been made to the Secretary of State or a person acting on behalf of the Secretary of State, but
(b) has not been determined or withdrawn, the application is to be treated as from the coming into force of this section as an application made to the MMO."
Amendments 24 and 25 agreed.
Clause 7: Regulations supplementary to sections 4 and 4A
Moved by Lord Hunt of Kings Heath
26: Clause 7, page 4, line 37, leave out "that section" and insert "section 4 or 4A of that Act (licensing of fishing boats and trans-shipment licences for vessels)"
Amendment 26 agreed.
Clause 9: Licences to kill or take seals
Amendments 27 and 28
Moved by Lord Hunt of Kings Heath
27: Clause 9, page 5, line 31, after "section" insert "in relation to the whole or any part of England or the English inshore region"
28: Clause 9, page 5, line 32, after "determined" insert "or withdrawn"
Amendments 27 and 28 agreed.
Clause 10: Wildlife and Countryside Act 1981
Moved by Lord Hunt of Kings Heath
29: Clause 10, page 6, line 11, after "determined" insert "or withdrawn"
Amendment 29 agreed.
Clause 12: Certain consents under section 36 of the Electricity Act 1989
Amendments 30 to 32
Moved by Lord Hunt of Kings Heath
30: Clause 12, page 6, line 30, leave out from "station" to "a" in line 34 and insert "that meets the requirements of subsections (3) and (3A).
(3) The generating station must be in waters which are subject to regulation under section 95 of the Energy Act 2004 (c. 20), other than—
(a) any area of Scottish waters, or
(b) any area of waters in a Scottish part of a Renewable Energy Zone.
(3A) The generating station must have"
31: Clause 12, page 6, line 40, after "function" insert "of the Secretary of State"
32: Clause 12, page 7, line 19, at end insert—
"( ) In this section, the following expressions have the same meaning as in section 95 of the Energy Act 2004 (c. 20)—
"Renewable Energy Zone";
"Scottish part", in relation to a Renewable Energy Zone;
Amendments 30 to 32 agreed.
Clause 13: Safety zones: functions under section 95 of the Energy Act 2004
Amendments 33 and 34
Moved by Lord Hunt of Kings Heath
33: Clause 13, page 7, line 21, leave out subsection (1) and insert—
"(1) The functions of the Secretary of State specified in subsection (2) are transferred to the MMO."
34: Clause 13, page 8, line 8, leave out subsection (8)
Amendments 33 and 34 agreed.
Clause 14: Agreements between the Secretary of State and the MMO
Amendments 35 to 37
Moved by Lord Hunt of Kings Heath
35: Clause 14, page 8, line 32, leave out paragraph (a) and insert "a marine function exercisable by a person—
(a) authorised or appointed by the Secretary of State, or
(aa) employed in the civil service of the State (but see subsection (3A));"
36: Clause 14, page 8, line 34, leave out paragraph (b)
37: Clause 14, page 8, line 37, at end insert—
"(3A) For the purposes of subsection (3)(aa), a person is not to be regarded as employed in the civil service of the State to the extent that the person is any of the following—
(b) a member of the staff of the Scottish Administration (within the meaning of that section);
Amendments 35 to 37 agreed.
Moved by The Duke of Montrose
38: Clause 14, page 9, line 2, at end insert—
"( ) A function which the Secretary of State requires the MMO to perform in a devolved area can only take place after consultation with the relevant devolved authority."
My Lords, Amendment 38 is in the name of my noble friend Lord Taylor of Holbeach. I am consciously returning to a topic that was broached by the noble Lord, Lord Wallace of Tankerness, on our third day in Committee. His amendment was specifically concerned with the direction or guidance to be issued to the Marine Management Organisation, on which score he asked that consultation be held. In his answer, the Minister did not deny the need for consultation but merely relied on invoking normal good practice.
This time, I have directed the amendment to deal with what I think is an even more critical area, which is where the Secretary of State authorises any marine functions to the MMO. This arises because, in his reply in Committee, the Minister expressly said:
I notice from correspondence received a couple of hours ago from the Minister in another place that the Marine Management Organisation will be given certain functions within the Scottish inshore area and that some legislation coming from the MMO will apply in that area. It seems to me that one requires something beyond normal good practice to cover these situations and it would be clearer to all if that was stated on the face of the Bill. I beg to move.
My Lords, this is the first occasion on which I have spoken at this stage of the proceedings, so I declare interests from the Register in relation to renewable energy, including the chairmanship of the steering group of Marine Renewable Energy Development in Scotland, which is a working group under the auspices of the ICIT at Heriot-Watt University. Also relevant is my membership of the Commission on Scottish Devolution, set up by resolution of the Scottish Parliament and supported by Her Majesty's Government, which is looking at devolved/reserved boundaries; indeed, I think that today it was taking evidence from the Scottish Environment Link on the respective marine Bills that we and the Scottish Parliament are dealing with.
I generally support the amendment moved by the noble Duke, the Duke of Montrose. In Committee, we came back to the issue of devolved and reserved functions a number of times to try to pin down just which functions still remained the responsibility of UK Ministers and the MMO and would involve the Secretary of State or the MMO undertaking responsibilities in the Scottish inshore area. I do not think that we totally pinned them down. Defence is an obvious issue and international shipping and responsibilities for rights of passage would be another. In areas such as the Pentland Firth, where a considerable amount of renewable marine energy is anticipated, there could well be occasions when it was important to have proper co-ordination between Marine Scotland, as established by the Scottish Government, and the MMO. Therefore, it would be welcome to have some obligation beyond the normal courtesies to consult where there would be interaction in the Scottish inshore water in these circumstances. I think that the noble Duke, the Duke of Montrose, has raised an important point and I look forward with interest to the Minister's reply.
My Lords, I am grateful to the noble Duke, the Duke of Montrose, for moving this amendment, which helps us to take the debate a little further on, and to the noble Lord, Lord Wallace of Tankerness, who certainly clarified the issues on which we need to concentrate relating to this aspect of the devolution settlement. Of course I fully understand their anxieties. They wish to ensure that, where the MMO could be required to undertake a function in a devolved area such as the Scottish inshore region, this should not happen without prior consultation. The noble Lord, Lord Wallace, identified not an exhaustive list of functions, but several clear areas where it might be necessary for the MMO, working on behalf of the Government in respect of UK-wide powers, to undertake a function within the inshore waters.
We had some extensive discussions on the devolution issues during our earlier debates. I emphasise that, in preparing this Bill, the Government were concerned to secure the full support of all four Administrations. I want to assure the House that what we have in the Bill in this respect has the full support of those Administrations. We have not had representation from any of the Administrations that they want anything on the face of the Bill that gives additional expression to what the noble Lord, Lord Wallace, indicated would be good established practice. That is what the four Administrations are content with.
I buttress this remark by giving a full assurance that the Secretary of State will not permit the MMO to operate within the devolved Administrations' inshore regions without prior consultation with the appropriate Ministers or Administration. It goes without saying that this is best practice for neighbouring Administrations working together, and that the devolved Administrations understand how it will work. I re-emphasise that point today from the Dispatch Box. There is therefore not a great deal between the two supporters of the amendment and the Government. We are out to emphasise, as they have, the importance of such consultation taking place. I emphasise that the devolved Administrations are happy with the Bill, so it will be appreciated that we do not see the benefit of placing such a provision in the Bill. I might also add that we are not totally convinced that, if it were in the Bill, this would be the place to put it, but that is a different matter. I hope that, with that statement, the noble Duke, the Duke of Montrose, will feel able to withdraw his amendment with some confidence.
My Lords, I thank the Minister for his reply. He did at least from the Dispatch Box say exactly what I said should be put into the Bill. I do not know whether the noble Lord, Lord Wallace of Tankerness, has seen the letter that came today from the Minister in the other place and which extends a little the list that the noble Lord read out. It says that,
"an order under section 104 of the Scotland Act ... will be taken forward at Westminster to ensure that Scottish marine plans only bind UK public authorities once they have been approved by UK Ministers".
However, it goes on to say that,
Certain elements are coming in that complicate the area, but I will consider what the Minister has said. I will be interested to hear him say where he thinks an amendment such as this should go, but in the mean time I beg leave to withdraw the amendment.
Amendment 38 withdrawn.
Clause 16: Eligible bodies
Moved by Baroness Hamwee
39: Clause 16, page 9, line 39, at end insert—
"( ) any local authority;"
My Lords, in moving Amendment 39, I shall also speak to Amendment 63 in this group.
What the Minister had to say about working with local authorities in our brief discussion on Amendment 18 and the overlap in area between coastal local authorities and the MMO was very welcome. He talked about working with the Local Government Association, which has a coastal authorities special interest group. My noble friend Lady Miller says that I referred to it in Committee as a special needs group. If I did, I certainly did not mean it in quite that way.
Clause 16 deals with bodies that are eligible to have a delegation from the MMO. My amendment would add local authorities to the list. The list includes harbour authorities. Some harbour authorities are also local authorities, but I understand that not all coastal local authorities are harbour authorities. This is not a very dramatic or wide amendment. Under Clause 15(1), the delegation requires the approval of the Secretary of State. Clause 17 precludes the delegation of a function that is not compatible with a local authority function, so any suggestion that the amendment would give local authorities far too wide a remit would be incorrect. Clause 18 requires the delegation to have a time limit.
The local authorities that are coastal authorities undertake land-use planning down to mean low water and prepare their local development frameworks accordingly. This overlaps with the marine planning function, extending to mean high water. Certain local authorities have by-law-making powers that extend offshore, such as zoning areas for water sports, and certain local authorities deliver coastal protection measures that involve the development between the mean high and low water marks and sometimes even below mean low water.
In Committee, the Minister said in a debate on another amendment that,
"there will be occasions when, for reasons of resources, expertise or geographical remit, another body is better placed to perform a function on the MMO's behalf".—[Hansard, 21/1/09; col. 1758.]
It would therefore be entirely appropriate to include local authorities in the list. I appreciate that if they are not included, the Secretary of State can add them because he can add eligible bodies by order, but if it is appropriate for them to be eligible it is appropriate now and we should say so from the start.
My Amendment 63, which would amend Schedule 5, would require consultation with representatives of coastal local authorities, although not necessarily with every single one, during the preparation of the consultation draft of the marine policy statement and the finalising of that statement, for the reasons that I just gave in speaking to Amendment 39. I beg to move.
My Lords, I have no amendments in this group and I wondered whether the Government wanted to speak to their amendments before I made my contribution, but I recollect that we had some considerable discussion in Committee on the extent of the marine area or, to put it another way, the area between high water and low water. I remember drawing on my experience of Holbeach Marsh and the Wash and of the large proportion of my wife's county council division that lay under water at high tide. It is clear as you climb the sea bank and at low tide take in the wide expanse of marsh, mudflats and sea that it is a marine area. It is very properly heavily protected and just the sort of coastal area to be part of the Bill's purpose.
However, I remember being impressed by the contribution of the noble Baroness, Lady Miller of Chilthorne Domer, who is not in her place at the moment, who introduced a different point of view. I thought of the inter-tidal areas of beaches and the current interests and responsibilities of local authorities in those areas. I had in mind in large terms Brighton beach and other similar places in which the foreshore is an area covered by local authorities in which they have interests and for which they issue by-laws. I therefore welcome the Government's amendments, which ensure that harbour authorities positions' are properly regarded. Further to that, however, I support the idea behind the amendments tabled by the noble Baroness, Lady Hamwee, which would ensure that the MMO found ways of reaching joint agreements with local authorities to facilitate the proper use and maintenance of inter-tidal areas where they have a strong interest to do so.
My Lords, I am grateful to the noble Baroness for her amendment. I hope that it will help to clarify these issues, which were the subject of fairly intensive debate in Committee. I reassure the noble Lord, Lord Taylor, that I was not excessively eager to get up to move the government amendments—to which I shall speak—because I regard them as less significant either than the amendment moved by the noble Baroness or Amendment 63, which is also part of the group, as our amendments are largely technical.
Amendment 39, as the noble Baroness indicated, adds local authorities to the list of bodies that the Marine Management Organisation can enter into agreement with, to allow it to delegate functions to them. It is our intention to include in the list of eligible bodies in Clause 16 all local authorities that would have a legitimate expectation of carrying out functions on behalf of the MMO. We therefore included the sea fisheries committees—they may still exist when the MMO is established—and those local authorities which are also harbour authorities. There is no question that we recognise the significance of local authorities to those responsibilities, while Clause 16 also includes a power allowing the Secretary of State to add bodies to the list in the future, should that be deemed necessary.
However, it is, surely, inappropriate to add all local authorities to the list of eligible bodies in Clause 16, because it is pretty obvious that not all local authorities would expect to be delegated functions by the Marine Management Organisation. After all, a fair number of our authorities have no coast at all, nor do any of their functions relate to the coastal or marine area. That is why Clause 16(3) states that the Secretary of State,
"may not exercise the power", to add bodies to the list,
"unless satisfied that at least one of the purposes or functions of the body ... to be added to the list is, or is related to or connected with, a marine function".
I would have thought that that was clear enough; we only want those local authorities involved which could conceivably have a marine function and, therefore, some relationship with the MMO.
During the debate in Committee on Clause 20, the noble Baroness, Lady Miller, and the noble Earl, Lord Cathcart, were keen to enable to enable local authorities to work together jointly when carrying out functions delegated to them by the MMO. They supported the flexibility that this type of arrangement would offer the relevant local authorities. I emphasise that we want see that in the operation of Clause 20, but that clause refers specifically to local authorities that are harbour authorities. We have, of course, reflected on the matters that have been raised about joint working, but have decided that we do not wish to restrict local authorities which are also harbour authorities from working together on a particular function, if it is appropriate for them to do so.
We have, therefore, tabled Amendments 42 to 46 to make that clear. They would alter Clause 20 to allow joint working by local authorities that are harbour authorities to take place. The amendments have been drafted to allow harbour authorities that are operating executive arrangements to work jointly, as well as those authorities that are not. As a result of changes to Clause 20, we have also tabled minor and technical amendments to Clause 19; Amendment 41 is needed to correct the reference to Clause 20 in Clause 19, and is therefore purely technical. I hope, then, that it will be appreciated that we took on board the arguments in Committee about joint working, and that these amendments help to make that clear.
I turn to the much more substantive Amendment 63, which gives us a further opportunity to restate our intention that local authorities in coastal areas will be fully involved in the marine planning process. The amendment would make coastal local authorities statutory consultees in,
"the preparation of the consultation draft", and when settling the final text. We have previously explained our reasons for not including any statutory consultees for the marine planning process, and the House will surely be relieved to hear that I do not intend to reiterate those arguments; however, I want to give a firm reassurance on the involvement of local authorities in that process.
First, the statement of public participation will set out how, when and where local communities and stakeholders will be involved in the marine planning process. We intend that that process will be fully participatory, involving as fully as possible all who want to be involved. It is vital for the success of marine planning that local knowledge and expertise is used throughout, a point much emphasised in Committee. The need for compatibility with terrestrial plans—another point that was greatly emphasised—means that there can be absolutely no doubt; relevant local authorities must be consulted in the marine planning process, starting with the marine policy statement.
In addition, paragraph 8 of Schedule 6 enables the marine plan authority to,
"seek advice or assistance from any body or person" with
A local authority is clearly such a body and, in our guidance to the Marine Management Organisation, we will set out how we expect it to work closely with representatives from local authorities as part of a focused advisory group, as well as more generally. The group would assist the planning team throughout the process of creating the marine plan.
In developing the marine planning proposals we have worked closely with the Local Government Association special interest group on coastal issues for nearly three years. To help us to understand how and through what mechanisms we can enable local authorities to be fully involved throughout the marine planning process and the issues around this, including the resource and capacity demands for their involvement, we recently ran a marine planning workshop in partnership with the Local Government Association special interest group. This event was well supported by 35 local authorities and we are considering what further work we may need to take forward. We are endeavouring to engage closely with all 135 local authorities around the coast, so we have also been working with the Coastal Chairs Group, government offices and the regional development agencies coastal network.
I hope, therefore, that I have given evidence of the fact that far from the Government neglecting the interests and the rightful role of local authorities with a coastal interest, we have been engaged with them over a period of time in preparing this Bill. They know that we intend to include them in that part of the planning process, but we do not think that it is sensible to put the totality of local authorities in the Bill. Therefore, I hope the noble Baroness will think that we have responded to her amendments and the debate in Committee with thoroughness, and that she will feel able to withdraw her amendment.
My Lords, on the last point, my amendment concerns representatives of local authorities. The marine policy statement is the basis for the marine plan, which is why I felt that it was important to raise it in the context of recognising the points in Schedule 6. I am grateful to the noble Lord, Lord Taylor. The first of my amendments is merely about eligibility. It is not about delegation. If the MMO sought to delegate a function to an entirely inappropriate, completely landlocked local authority, I do not think that the local authority would accept the delegation.
The Minister criticised my first amendment because it would apply to all local authorities. He hinted that perhaps I should have said "coastal" local authorities. But if the Government had wanted coastal local authorities in this list of eligible bodies, they could have said so, they would have said so and they should have said so. I do not think that we got enough exercise the last time we attempted to divide, so on this occasion I will test the opinion of the House.
Clause 18: Maximum duration of agreement
Moved by Lord Hunt of Kings Heath
40: Clause 18, page 10, line 34, leave out "marine"
Amendment 40 agreed.
Clause 19 : Particular powers
Moved by Lord Hunt of Kings Heath
41: Clause 19, page 11, line 31, leave out " 20(5)(a)" and insert " 20(5)"
Amendment 41 agreed.
Clause 20: Agreements with certain harbour authorities
Amendments 42 to 46
Moved by Lord Hunt of Kings Heath
42: Clause 20, page 11, line 39, leave out "subsection (5)" and insert "subsections (5) to (5B)"
43: Clause 20, page 11, line 40, at end insert—
"( ) any power of a local authority to arrange for the discharge of the function jointly with another local authority (but only to the extent that each of the authorities is a harbour authority),"
44: Clause 20, page 12, line 3, leave out subsection (4) and insert—
"(4) In subsection (3)—
(a) "committee" includes a joint committee of two or more local authorities which are harbour authorities and which include the local authority mentioned in subsection (1);
(b) "sub-committee" includes a sub-committee of any such joint committee;
(c) the reference to a member, officer or employee of the local authority includes a reference to a member, officer or employee of any local authority, or any of the local authorities, with which the local authority may have entered into arrangements for the joint discharge of functions which consist of or include functions which the local authority is authorised under an agreement to perform."
45: Clause 20, page 12, line 5, leave out subsection (5) and insert—
"(5) If the local authority is operating executive arrangements, the function is to be treated as a function of the local authority for the purposes of section 13 of the Local Government Act 2000 (c. 22) (provision for determining which functions of the authority are to be the responsibility of the executive and which are not).
(5A) If, in a case where the local authority is operating executive arrangements, the function is to any extent the responsibility of the executive of the local authority, then to that extent—
(a) subsection (2) does not apply, but
(b) the provisions mentioned in subsection (5B) have effect.
(5B) The provisions are—
(a) sections 14 to 16 of the Local Government Act 2000 (c. 22) (discharge of functions in the case of different types of executive arrangements);
(b) any regulations under section 17 or 18 of that Act (discharge of functions by executive of a type prescribed under section 11(5) of that Act, and discharge of functions by area committees);
(c) so far as relating to arrangements (including the appointment of joint committees) under section 101(5) of the Local Government Act 1972 (c. 70) which involve another local authority which is a harbour authority, any regulations under section 20 of the Local Government Act 2000 (c. 22) (joint exercise of functions)."
46: Clause 20, page 12, line 16, leave out "(5)(b)(ii)" and insert "(5B)"
Amendments 42 to 46 agreed.
Clause 23 : Research
Moved by Lord Kingsland
47: Clause 23, page 13, line 9, at end insert "to be undertaken by an appropriately qualified person or body"
My Lords, I hope that the Minister is not unduly alarmed by this amendment. It is in the nature of a probing amendment and a word from the Minister will be sufficient reassurance, provided, of course, that it is the right word. The Minister will recall the debate that we had on Clause 23 in Committee. My concern is that when the MMO commissions research under subsection (1)(b), it does so according to a procedure that will enable the appropriate decision-maker in the body to choose the right person or research body for the right task.
My confidence that this will be the case is reinforced both by the prospective insertion into the Bill of a chief scientific adviser and by the Minister's undertaking to have a scientific advisory committee included as part of government guidance to the MMO. I am sure that the MMO will follow such guidance. Nevertheless, it would be helpful if the Minister could confirm that he would expect such procedures to be established by the MMO so that, if it is in the position of having to spend valuable money on research, that money will go to the person or organisation best qualified to use it productively in the public interest. I beg to move.
My Lords, it might be helpful if I respond briefly to the noble Lord, Lord Kingsland, and then speak to my own amendments in this group. I think I can give the word that the noble Lord is seeking; I think it is "yes" and I am happy to say that. The noble Lord is also right to say that the amendments we have tabled, particularly those on the appointment of a chief scientific adviser and my commitment that the MMO will establish a scientific advisory committee, in themselves go a long way towards meeting the point he is making.
We expect the MMO to forge good and active relations with many of the centres of scientific excellence. Those include—there is always a danger in listing only some of them but I will take the risk today because I want to make this point to the noble Lord—the Plymouth Marine Sciences Partnership, the National Oceanography Centre, the Centre for Environment, Fisheries and Aquaculture Science, or CEFAS, the Proudman Oceanographic Laboratory and Newcastle University School of Marine Science and Technology, to name a few. All of those organisations and others are staffed by experts in the field of marine research. I would expect the MMO to have a robust approach to commissioning research from organisations that are appropriately qualified, with people who are qualified and best able to make a contribution. I hope the noble Lord is happy with those assurances.
I turn now to my Amendment 48 to Clause 23. Noble Lords will recall that in Committee we had a very interesting discussion about the MMO's power to undertake research. Some noble Lords were concerned that, as currently drafted, subsection (2) would require the MMO to disclose all results of research to any person on request, including those results that may be of a sensitive nature and the disclosure of which could have unwanted implications. I have reflected on those concerns and tabled Amendment 48 to address them. Let me make it clear that, as a non-departmental public body, the MMO should make available to the public as much information as possible and that it is required to have a publication scheme under the Freedom of Information Act. We intend the MMO to act in an open and transparent manner. It is entirely appropriate that the MMO should make available the results of any research that it undertakes. My department has a publication scheme for research projects, the results of which are publicly available on the departmental website. The way in which the MMO operates should be no different from that at all.
However, while we want the MMO to make as much information as possible publicly available, there might be occasions when it is not appropriate to disclose the results of research. In Committee noble Lords instanced some of those occasions. For example, they might arise because information includes personal data or, as the noble Lord, Lord Taylor, suggested earlier, because the information is commercially sensitive or affects British interests. In such cases the MMO might reasonably wish to keep the information confidential. It would be possible to keep this type of information confidential under an exemption from the Freedom of Information Act 2000 or an exception from the Environmental Information Regulations 2004. I accept that that is not explicit in the clause as drafted. As a result, I have decided that it would be appropriate to bring Amendment 48 to your Lordships so that it tightens the clause to make it clear that any requirement for the MMO to make available its results or research would be subject to any exemptions or exceptions under two pieces of access to information legislation, namely the Freedom of Information Act 2000 and the Environmental Information Regulations 2004. The MMO would also not have to disclose information that was prohibited from disclosure under any other Act in the future.
I should say clearly again that, having tabled this amendment in light of the concerns expressed in Committee, our overall stance is that the MMO will wish to make as much information as possible publicly available, and we will make sure that it happens. This is a sensible amendment in light of the concerns expressed by noble Lords in Committee. I hope it finds favour with your Lordships.
My Lords, I thank the Minister for introducing his amendment and I support the amendment moved by my noble friend. He has persuaded the Government to ensure the importance of science in the Bill and, indeed, the importance of building up our knowledge of the marine environment, which is only just starting to be appreciated. Although progress is being made, the MMO will be critical in encouraging further research and investigation.
Earlier this month I had the great pleasure of being invited by the Minister to look around the research vessel "Cefas Endeavour", and the work impressed me greatly. The mapping, collating and analysis being carried out will be of great benefit to all users of the marine environment, fishermen as well as conservationists. However, it is not just Cefas that is involved in this work. As my noble friend said, there are research laboratories in universities as well as private firms seeking to produce more effective equipment and develop new techniques. All sources of information must be exploited if we are to manage our seas effectively. I thank the Minister for tabling his amendment and thus meeting our concerns.
Amendment 47 withdrawn.
Moved by Lord Hunt of Kings Heath
48: Clause 23, page 13, line 11, at end insert—
"(3) Subsection (2) does not require the MMO to make available—
(a) any information that it could refuse to disclose in response to a request under—
(i) the Freedom of Information Act 2000 (c. 36), or
(ii) the Environmental Information Regulations 2004 (S.I. 2004/3391) or any regulations replacing those Regulations;
(b) any information whose disclosure is prohibited by any enactment."
Amendment 48 agreed.
Moved by Earl Cathcart
49: After Clause 23, insert the following new Clause—
"Advisory role of the MMO in development consents
(1) The Planning Act 2008 (c. 29) is amended as follows.
(2) After section 60 (local impact reports) insert—
"60A Advice from the Marine Management Organisation
(1) Subsection (2) applies where the Commission—
(a) has accepted an application for an order granting development consent, and
(b) the application relates to land which is in the UK marine area or is likely to impact upon the UK marine area.
(2) The Commission must give notice in writing to the Marine Management Organisation, inviting it to submit advice and recommendations in respect of the application.
(3) The "Marine Management Organisation" is the body established under section 1 of the Marine and Coastal Access Act 2009.
(4) The "UK marine area" is the area defined within section 40 of the Marine and Coastal Access Act 2009."
(3) After paragraph (2)(d) in section 104 (decisions of Panel and Council) insert—
"(e) any advice and recommendations given to the Panel or Council by the Marine Management Organisation in accordance with section 60A as inserted by section (Advisory role of the MMO in development consents) of the Marine and Coastal Access Act 2009."
(4) After paragraph (2)(d) in section 105 (decisions of the Secretary of State) insert—
"(d) any advice and recommendations given to the Commission by the Marine Management Organisation in accordance with section 60A as inserted by section (Advisory role of the MMO in development consents) of the Marine and Coastal Access Act 2009."
(5) After subsection (1) in section 116 (reasons for decision to grant or refuse development consent) insert—
"(1A) Where the Commission has received advice and recommendations from the Marine Management Organisation, the reasons for decision to grant or refuse development consent must include a statement addressing—
(a) the advice and recommendations that were adopted;
(b) justification for not adopting any advice and recommendations.""
My Lords, this group of amendments looks rather more like those we discussed in Committee, with several versions of much the same point being tabled by various Peers around the House. I hope that the Minister will appreciate that with these amendments, we are all trying to achieve the same thing: the statutory role of the MMO as an adviser to the IPC for decisions that will impact on the marine area it has responsibility for. I am sure that the drafting of these alternatives could be improved, but it is always tricky to amend previous legislation. However, I hope that the substance is clear.
It may be surprising to the Minister that we have returned in such force to this group. After all, we are close to the Government's own position on the point. In Committee, we tabled much stronger amendments which sought to insist that the MMO should take complete control of these decisions. I hope the Minister will appreciate our search for an acceptable compromise. We still oppose the carve-out of such important decisions from the MMO because that damages not only its position as the principal management body for the marine environment, but also achievement of a consistent policy of sustainable development. In this I believe that I am supported by noble Lords to my right and many outside organisations concerned with the effective implementation of the Government's marine policy. However, it has been made clear to us that the Government do not intend to move on putting the MMO in overall charge of all planning decisions at sea. Of course, with the numbers in this House we probably could have won the day, but only for a short time, and I have been persuaded that seeking to insist on such a policy, only to see it rejected in another place, would be counterproductive for the smooth passage of a Bill that we are all keen to see made into law.
A better option is to seek a compromise amendment which I hope will be more acceptable to all sides of the House. This amendment therefore represents the bare minimum of what we would find acceptable and is not, I believe, very different from the Government's own intentions. We seek to put in the Bill that the MMO must be a statutory adviser or consultee and that the IPC must not only seek the advice of the MMO, but where its advice and recommendations are not taken, justification for not adopting them must be published. I hope that the Minister will accept the amendment, but if not, that he will be able to come back on Report with his own no doubt better drafted version. I beg to move.
My Lords, we are the "various Peers" who have tabled the other amendments in the group, although from the minor explosion on the Front Bench, perhaps I should put on the record that we are only to the right of the noble Earl in the geographical sense.
The Government have created two big beasts in the IPC and the MMO and it is essential—not a word I use lightly—to ensure that the relationship between them is proper, appropriate and as equal as it can be, given that their responsibilities are not so very different. Our amendments amount to something very similar to that moved by the noble Earl so I do not need to go through the detail, but I will say that we believe that there is a qualitative difference between being a statutory adviser and a statutory consultee.
During the passage of what is now the Planning Act, the noble Lord, Lord Taylor of Holbeach, talked about the MMO. I have to say that at the time, while I could understand at a certain level what he was saying, I did not appreciate the deep and instinctive way he put his point forward; I did not understand the depth of it, but I do now. He was absolutely right. I probably said at the time that he was right, but the comments were perhaps less passionate than his. We are very passionate about this because we want to see these systems working well, so these amendments are intended to be genuinely constructive in that they do not seek to obstruct what the Government are doing, and constructive not just in regard to this Bill but also with that which has already been passed; that is, the Planning Act.
My Lords, I rise to support Amendments 50 and 51. We all want the Marine Management Organisation to be the single planning body for the marine environment and, to be honest, had we ganged together, we could have driven that through the House. That would have been a sensible outcome. But the Government appear to be very against it, so this group of amendments attempts to ensure that the MMO and the IPC really do stand shoulder to shoulder rather than as a superior and an inferior body.
The reason I support Amendments 50 and 51 is that they lay out clearly that the MMO should be a statutory adviser to the IPC in development consents for those projects in energy generation and the larger harbour schemes that the IPC is responsible for, not just for land that has an impact on the marine environment, which I think is the purport of Amendment 49. Advice needs to be given on individual projects and not just on statements or plans. I am sure the Minister will tell us that the Government are currently consulting on the list of statutory consultees for the national policy statements, and I welcome that within the consultation it states that the MMO, once established, will be included as a statutory consultee along with the Secretary of State on those statements.
I also welcome the Government's proposals that, currently subject to consultation, the MMO will be on the list of statutory consultees that the applicant must consult before submitting an application to the IPC. However, there is a difference between being a statutory consultee for the MPS or for an applicant for an individual application and being a consultee to the IPC on the range of issues that it will be dealing with that impact on the marine environment. Amendments 50 and 51 take that forward. I hope that the Government will recognise that this simply brings the IPC and the MMO shoulder to shoulder in an amicable way, rather than as a superior and a subordinate organisation. A statutory consultee makes the MMO just one of a bunch; being a statutory adviser, which implies that advice has to be sought and reasons stated when it is not taken, is appropriate for a body that needs to have similar powers and similar clout to the IPC.
My Lords, this has been a useful debate. I recognise that the intent of the amendments of the noble Earl, Lord Cathcart, and, indeed, those of the noble Baroness, Lady Hamwee, is to get the right relationship between the IPC and MMO and on that basis, they are very much appreciated. I know that those of us who debated this matter on the Planning Bill and in Committee on this Bill have different views about the role of the IPC in relation to consents above 100 megawatts. We debated the principle when the Planning Bill went through and also discussed the potential role of the MMO, but of course, that was before legislation had been brought before Parliament, so, in a sense, it was a discussion in anticipation. On the role of the IPC, we think it right that, for applications that come within the definition of "nationally significant", the decision should be made by the IPC. However, I also want to make it clear that we consider that the MMO will have a very important role to play throughout the consideration of nationally significant infrastructure projects, both in, or which are capable of affecting, the marine area—one should mention ports as well as wind farm developments. I say to the noble Baroness, Lady Hamwee, that we want to make the arrangements proper and appropriate; we share the view of all noble Lords on that.
We see the MMO as being involved at three key stages of the development of nationally significant infrastructure projects that are within the marine area. First, marine developers must consult the MMO before they make any application to the IPC. That should ensure that the MMO is fully engaged at the start of the application process. Secondly, the MMO will be a statutory party as part of the IPC's examination of marine projects and our intention had been to enshrine these roles in secondary legislation. Thirdly—and very importantly—where the IPC grants consent in the marine area for a development to take place, it will grant a deemed marine licence for the marine aspects of that development after consultation with the MMO. Such a licence will be managed and enforced by the MMO, so that when new evidence comes to light on a particular development, the MMO will, if necessary, be able to modify any conditions of the licence, add new conditions or even revoke it. I think that that gives the MMO very important status and standing.
My Lords, I am trying to envisage the circumstances in which the MMO would legitimately do what the Minister has just described. If we are talking about the bigger ports and the major infrastructure developments offshore for energy generation, once planning consent has been granted and construction work has started, the likelihood that the MMO is going to leap to its feet and ask for things to be demolished and taken away is nil. We must take a realistic view about what the power of variation of conditions will mean in reality.
My Lords, the noble Baroness is underestimating the power of the MMO in that respect and also underestimating the fact that the MMO will have been consulted before the IPC comes to make the original decision.
Turning to the detail of the amendments, the way the Planning Act works is to place a duty on applicants to consult the MMO at the pre-application stage, and once an application has been accepted by the IPC, to notify the MMO and invite it to make representations. Amendment 49 would, in effect, duplicate what the Planning Act regime will already require, in that the applicant will have already notified the MMO and invited it to make representations regarding the application. It is our clear intention that the national policy statement and the marine policy statement will be consistent. Of course, there may be many cases where the MMO will have nothing to add to an individual application over and above the opinions of the IPC and we would be concerned about imposing an absolute obligation, as proposed in Amendment 51, on the MMO to give advice in such circumstances. At the moment, the MMO would advise only as required, which would already be the case under the system set in the Planning Act and in the secondary legislation that we intended. Moreover I believe that this intention as regards these advice-giving functions is already met through Clause 24 of the Bill, which states that the MMO may provide whatever advice it feels appropriate to other public bodies, on its own initiative or upon request.
As for the intention in the amendments to require the IPC to include specific reference to MMO advice and recommendations that were adopted when refusing or granting a licence, and to give justification for not adopting any of this advice or recommendations, the MMO will be a statutory party as part of the IPC's examination of marine projects. Like advice from any body with statutory duties, any advice from the MMO provided to the IPC will be an important part of the IPC's consideration. Section 116 of the Planning Act already imposes a duty on the IPC to give reasons for the decisions it makes. In practice, the IPC would need to justify itself when not following the MMO's advice. The IPC has to justify its decision and would clearly be at risk of having that decision overturned in the courts.
I have some reservations about the exact details of the amendments, but I understand the importance of the substance of what is contained in the argument in support of those amendments. I understand the need to give as much certainty as possible about the relationship between the MMO and the IPC. I understand that noble Lords want to ensure that the expertise and experience that the MMO will gain is utilised. It is worth making the point that, if we take account of offshore developments, the MMO will be building up experience, because it will be the statutory body asked to give consents for projects up to 100 megawatts, so it will have a lot of expertise to give.
Because of that, and because I recognise the spirit in which the amendments have been put, I should like to take this matter away and see whether, after discussion between now and Third Reading, the Government can come up with suitable amendments that reflect in primary legislation the MMO's role of being a statutory consultee at the pre-application stage and a statutory party to IPC examinations, as a way of providing reassurance that the MMO will have a clear, important and transparent role in the process.
I hope that, on that basis, noble Lords will accept that the Government are prepared to engage in these important matters and that we can come back to this at Third Reading with an amendment that meets the substance of the arguments that noble Lords have put.
My Lords, I have an academic question. The MMO, rightly, must be consulted first, as the Minister has reinforced again today. It is a statutory party regarding decisions that are taken. At the end of the day, though, the organisation is consulted only as it stands in the Bill. I seek clarification on this point. If the IPC decides that it does not agree with the MMO's findings, the IPC overrules it. The Minister is nodding.
That is right, my Lords. We have heard today that, although a number of noble Lords do not agree with the relationship between the IPC and the MMO, that relationship is central to offshore marine developments of above 100 megawatts. There are safeguards, however. It was intended that we use secondary legislation to make the issue of consultation clear, but I have agreed to see what government amendment or amendments we could bring forward to enshrine those safeguards in primary legislation.
I say to the noble Baroness that the work of the IPC will take place in the context of the national policy statements, while that of the MMO will take place in the context of the marine policy statements. Given that it is the Government's responsibility to bring forward those statements, we are under an obligation to ensure that there is consistency between the two, and we will seek to do that.
My third point is that the MMO will have undoubted expertise and experience in this area. It will be the organisation that is asked to give consent for most of these developments—only a limited number will meet the threshold for matters to fall to the IPC—in which case the MMO will be a serious player with a significant input into the process.
My Lords, I am grateful to the Minister for clarifying that, and for agreeing to take this away and try to come back with some words that will strengthen the position. Some of us were very concerned about this. Although he said that these matters could end up in the courts, that is not where any of us want to be. It would be so much better to do it in primary legislation than to leave it to secondary legislation.
My Lords, before the Minister sits down, he just used the term "serious player" about the MMO. What he has said is very welcome. Could we retain that phrase? I wrote down "legislative parity". It is obviously not possible for the two bodies to be absolutely equal, but we are saying that we want them to be as equal as possible.
I am sorry, my Lords, but we are on Report and I truly have sat down.
My Lords, I thank the Minister for setting out the Government's position so clearly. I do not believe that any of us who have contributed to this debate are very far apart. We all want to see the MMO in the Bill as a statutory adviser/consultee. Where the IPC does not take the MMO's advice and recommendations, it should publish the reasons why not.
I thank all those who have contributed, and I thank the noble Baroness, Lady Young, for flattering me with her disapproval of my amendment and choosing the other amendment in this group. We are all nearly there, though. With that, I beg leave to withdraw the amendment.
Amendment 49 withdrawn.
Clause 24: Advice, assistance and training facilities
Amendments 50 and 51 not moved.
Clause 25: Provision of information etc
Moved by Lord Hunt of Kings Heath
52: Clause 25, page 13, line 33, leave out "provision of such publications or" and insert "publication of such documents or the provision of such"
Amendment 52 agreed.
Clause 28: Power to bring proceedings
Moved by Lord Davies of Oldham
53: Clause 28, page 14, line 41, leave out subsections (4) to (6) and insert—
"(4) The MMO may designate under this subsection any of its employees who would not (apart from subsection (6)) be entitled to carry on, in relation to magistrates' court proceedings, an activity which constitutes—
(a) the conduct of litigation, or
(b) the exercise of a right of audience falling within subsection (5).
(5) The rights of audience are—
(a) a right of audience in trials of summary offences;
(b) a right of audience in relation to any application for, or relating to, bail in criminal proceedings relating to a summary offence or an offence triable either way, unless (as matters stand at the time when the application is made) the offence is to be tried on indictment;
(c) a right of audience in relation to interlocutory applications and sentencing in proceedings relating to a summary offence or an offence triable either way;
(d) a right of audience in proceedings for the recovery of any sum of money.
(6) Subject to any exceptions specified in the designation, a person designated under subsection (4) is entitled to carry on, in relation to magistrates' court proceedings, any activity specified in the designation which constitutes—
(a) the conduct of litigation, or
(b) the exercise of a right of audience falling within subsection (5).
(7) For the purposes of subsection (5), a trial—
(a) begins with the opening of the prosecution case after the entry of a plea of not guilty, and
(b) ends with the conviction or acquittal of the accused.
(8) In this section—
"bail in criminal proceedings"—
(a) in relation to England and Wales, has the same meaning as in section 1 of the Bail Act 1976 (c. 63) (see subsection (1) of that section);
"magistrates' court proceedings" means proceedings before a magistrates' court in England, Wales or Northern Ireland;
"right of audience" has the meaning given by paragraph 3 of Schedule 2 to the Legal Services Act 2007 (c. 29)."
My Lords, subsections (4) to (6) of Clause 28, as drafted, allow the MMO to designate people to carry out certain legal proceedings on the MMO's behalf. The intention behind these subsections was to allow staff who were not legally qualified to conduct litigation in the magistrates' courts and to exercise certain rights of audience in those courts. For more straightforward cases we believe that it should be possible for certain employees authorised by the MMO to be involved in some trials and to recover civil penalties. That will allow cases to come before the courts more speedily, especially in the case of guilty pleas.
The amendment simply clarifies the intent of that policy. Clause 28(4) gives the MMO the power to designate any person to conduct proceedings in the magistrates' court, whereas we need to provide that power only in relation to those who are not legally qualified. Amendment 53 therefore rewords the clause so that the MMO can authorise specifically those people who are not legally qualified.
The amendment also clarifies the existing provisions as well as our policy on cases that staff who are not legally qualified can carry out. Clause 28(5) sets out the type of rights of audience that the MMO may designate staff who are not legally qualified to carry out, while subsection (7) provides detail about when a trial is taken to begin and end for the purposes of a right of audience in trials of summary offences. Clause 28(8) includes a definition of what we mean by "bail proceedings" through reference to other relevant enactments.
I hope that the House will agree that the changes we have made to the drafting improve the clarity of the clause. The amendments do not involve a change of policy; they merely clarify what was the intent all along. I hope that they command the assent of the House.
My Lords, I thank the Minister for his introduction of the amendment and his explanation of its implications. Will he give us a little more information about the qualifications that these employees will have in order for them to be able to handle these activities effectively? It surely would not be to the benefit of either the MMO or court procedure in general if inadequately trained people were expected to handle litigation.
My Lords, we certainly expect the individuals to have a distinct level of expertise, and they will need to have had the training to equip them with that. The noble Lord will appreciate that we are seeking to avoid a situation where only legally qualified staff can carry on this work. If the point of his inquiry is that there is proper concern that those exercising these functions will have had adequate training and will know their competence in those terms, that is certainly the intent.
Amendment 53 agreed.
Moved by Lord Hunt of Kings Heath
54: After Clause 28, insert the following new Clause—
"Continuation of certain existing prosecutions
(1) Any prosecution commenced by the Secretary of State before the appropriate commencement date—
(b) for an offence under the fisheries legislation (see subsections (2) and (3)), may be continued on or after that day by the MMO.
(2) In this section "the fisheries legislation" means—
(a) any enactments relating to sea fishing, including any enactment relating to fishing for shellfish, salmon or migratory trout (but see subsection (3));
(b) any enforceable EU restrictions and enforceable EU obligations relating to sea fishing.
(3) "The fisheries legislation" does not include—
(a) the Salmon and Freshwater Fisheries Act 1975 (c. 51);
(b) the Salmon Act 1986 (c. 62);
(e) byelaws made by an inshore fisheries and conservation authority under section 151.
(4) In this section—
"the appropriate commencement date" means—
(a) in relation to an offence falling within paragraph (a) of subsection (1), the date on which the function to which the offence relates is transferred to the MMO;
(b) in relation to an offence falling within paragraph (b) of that subsection, the date on which section 1 comes into force;
"enforceable EU obligation" means an obligation to which section 2(1) of the European Communities Act 1972 (c. 68) applies;
"enforceable EU restriction" means a restriction to which section 2(1) of that Act applies."
Amendment 54 agreed.
Clause 36: Guidance by the Secretary of State
Amendments 55 to 58
Moved by Lord Hunt of Kings Heath
55: Clause 36, page 18, line 24, at end insert—
"( ) The Secretary of State may give the MMO guidance with respect to the exercise of any of the MMO's functions."
56: Clause 36, page 18, line 25, after "it" insert "under this Act"
57: Clause 36, page 18, line 27, leave out "guidance to the MMO" and insert "such guidance"
58: Clause 36, page 18, line 31, leave out subsection (3)
Amendments 55 to 58 agreed.
Clause 39 : Exclusive economic zone
Moved by The Duke of Montrose
58A: Clause 39, page 20, line 6, at end insert—
"( ) The Secretary of State may by order withdraw a designation of all or part of an area in which a devolved administration has functions."
My Lords, it strikes me that under the Bill, we—or perhaps more properly the Government and their administrators, who put these matters before us—are sitting behind our desks and drawing lines on the map for areas for which we have only the sketchiest detail, in much the same way as the old colonial Administrations used to do for parts of Africa and North America. That was underlined by my noble friend Lord Kingsland who, with much more authority than I can bring, told us that we know only about 3 per cent of the area for which we are legislating. I am sure that the colonial administrators also thought that they were dealing with areas in which nobody resided and which would not cause any problems.
Of course, at this stage we are not causing disruption to any resident populations of humans or administrative boundaries of communities. However, as our knowledge of detail expands and as the structures we place on the marine conservation zones become more rigorously enforced, we may find that these boundaries are causing unnecessary complications. That might then be overcome by redrawing the boundary in a way that would appear to be logical, although currently we have no access to the logic that might be available to future generations.
I find it of some interest that the mechanism used in subsection (4) in designating the different devolved areas is an Order in Council. Some kind advice that the Minister offered me is that Section 14 of the Interpretation Act 1978, if applied, would imply a power for amending or modifying an Order in Council.
What strikes me is that what we are looking at here predates the coming of devolution while not predating our acceptance of some European legislation. The issue might not be as clear as it once was. Let us suppose it became necessary to move the boundary between the English and Scottish offshore areas, or, heaven forbid, a new Administration in Scotland decided that they were not going to participate in the marine policy statement, but would insist that an Order in Council was not just any order and could not be overturned. Perhaps they would be able to argue that under some abstruse European statute, Orders in Council came under the aegis of their Administration. A clause such as the one I have proposed might serve to clarify any doubt there would be on the point. I beg to move.
My Lords, I am not sure I can entirely follow the hypothetical case that the noble Duke, the Duke of Montrose, has set out, nor indeed where the Scottish Parliament might get some powers from a European source to insist on an Order in Council.
Undoubtedly, the designation of boundaries has a capacity for controversy. When the Scottish Parliament was established just 10 years ago, I well recall that one of the first orders we had to pass, which had previously been passed in this Parliament, was to determine the boundary between Scotland and England for devolution of fisheries matters. They took a line, which went at an angle from where the Scotland/England boundary hits the coast just north of Berwick-upon-Tweed. That was contested by many Members of the Scottish Parliament, including those of my own party. Indeed, the first rebellion of my Back-Benchers was on that occasion, and we narrowly won the vote. Therefore, the issue is not without controversy.
However, there are certain advantages and certainty with a boundary that is set rather than one that continually flows back and forth; although I noted in an edition of the Economist last month that because of melting glaciers in the Alps the boundary between Italy and Switzerland is on the move. I do not think that anyone is suggesting that there is a similar sort of geological change here, but I cannot honestly be persuaded by the case made by the noble Duke, although undoubtedly these are sensitive issues.
My Lords, I never thought that the issue of boundaries could be anything other than sensitive in almost any context. Therefore, I appreciate the interest in this clause and the amendment moved by the noble Duke, the Duke of Montrose. The Government consider that the time has come for the United Kingdom to declare an exclusive economic zone. This is an internationally recognised concept that is characteristically set out in the United Nations Convention on the Law of the Sea. Up to now we have declared different zones for different purposes—fisheries, marine pollution, renewable energy and carbon storage. We recognise that the accumulation of these different zones produces the potential for confusion domestically, and is somewhat contrary to best international practice. Therefore, we believe that declaring an exclusive economic zone is the right course.
We do not think that the issue with regard to the amendment arises. The noble Duke referred to the Interpretation Act 1978, which applies to these orders made under Clause 39(4). I am sorry if it causes some difficulty, but the Interpretation Act is there to facilitate all concerned with these issues, to make it easier for the law to be understood and therefore enacted. Implied in the power in Clause 39(4) is a power to revoke, amend or re-enact any order made under that clause. Therefore, we already have, under the Interpretation Act, the very power that the noble Duke identified.
I have no way of allaying the broad anxiety, which the noble Lord, Lord Wallace, indicated, that there can be differences of interpretation about the contestability of boundaries. I am all too well aware that that is a sensitive issue with implications as regards aspects of the relationship between England and Scotland, to say nothing of other devolved practice. I cannot answer that within the framework of this very limited amendment to the clause. What I am obliged to answer is why this amendment is not necessary and I have sought to make that case. I hope the noble Duke, the Duke of Montrose, is satisfied on that point.
My Lords, I am most grateful to the Minster for his reply. It is of course very useful that, even if the amendment is any good, he has at least stated the issue from the Dispatch Box for anybody who wishes to look at it again. We hope that if alterations to boundaries do become necessary—and I still think that they might—they will be achieved amicably and that there will not be any need to worry about rescinding legislation. In the light of these matters, I beg leave to withdraw the amendment.
Amendment 58A withdrawn.
Clause 41 : Welsh zone
Moved by Lord Davies of Oldham
59: Clause 41, page 21, line 20, leave out "modify or amend" and insert "make such modifications or amendments of"
My Lords, I say with some relief that this is definitively a minor and technical amendment to correct a grammatical error in the original drafting. It does not alter in any way the effect of Clause 41, which amends the Government of Wales Act 2006 to introduce a definition of the Welsh zone; it simply improves the grammar of the clause as originally drafted. I beg to move.
Amendment 59 agreed.
Clause 42 : Marine policy statement
Moved by Baroness Hamwee
My Lords, we are all for elegance, particularly when it is achieved in under one minute.
In Committee I tabled amendments on the relationship between the marine policy statement and the national policy statements under the Planning Act. It was explained to me that the subsection that I had attempted to amend had the purpose of promoting internal consistency within the marine policy statement. I did understand that. I am sorry that I did not make it clear that I understood not only that but that my own amendments would have taken the matter of consistency into a different area. So I say at the start that I am concerned not about internal consistency within the marine policy statement—I am concerned about it, but not for the purposes of this amendment—but about how we can be assured that the marine policy statement and the potentially large number of national policy statements are consistent, not as a matter of intention or aspiration but through the process provided by the legislation.
That is not quite as easy or obvious as it might appear, because more than one Administration are involved in the marine policy statement. At the last stage, the Minister said:
"If, as we intend, all four Administrations agree".—[Hansard, 28/01/2009; col. 331.]
I read that phrase to my noble friend Lord Alderdice, who, with his background in one of the Administrations, laughed for quite a long time.
These amendments seek a greater understanding of the process provided for by the legislation. Amendments 60 and 61 would deal with the marine policy statement covered in Clause 42. Grouped with them, as they are on similar points, are Amendments 76 and 77 to Clause 49, which is about marine plans, and Amendments 89 and 90 to Clause 56, which is about authorisation and the enforcement of decisions. I beg to move.
My Lords, I am grateful to the noble Baroness for raising this matter. We come back to this relationship between the MMO and the IPC and also, in this group of amendments, the relationship between the marine policy statement and the national policy statements. She is right to say that there will be a number of those statements. I very much understand the point she raises about the need for clarity. She also mentioned the relationship between this Administration and the devolved Administrations. I thought that the noble Lord, Lord Alderdice, might be in the Chamber for the order that is about to be debated as it covers matters in which he has a great interest. I am not quite sure what lay behind his laughter, which the noble Baroness described. Our discussions with the devolved Administrations over the past few months about the Bill and the areas where we need absolute clarity and consistency between the Administrations have gone very well indeed.
These are interesting amendments. One of their themes is the extent of the influence of the plans and the marine policy statement on the IPC's decisions; hence the amendment which would require the IPC to take its decisions in accordance with marine policy documents. Another thread in the amendments is that which relates to which documents and policies should take precedence in the event of a conflict between them.
We are always in danger of reopening the regime established by the Planning Act 2008, which the Government are reluctant to do. We believe that it has established a new regime for allowing us to address the national need for infrastructure that is vital to the future of this country. The new regime has been put in place precisely because of the recognition of the particular and special importance of nationally significant infrastructure projects and the considerable challenges that are related to them. In particular, I believe that there is a lot of support for the notion that there should be a special planning and consenting regime to consider them. Nationally significant infrastructure projects which are in the marine area, whether they are related to ports or energy generation, are a vital part of this new process. The Government have consistently argued that those projects should not be removed from the new planning regime simply because they are in the marine area.
We think that it is entirely appropriate that the IPC will make its decisions in accordance with the national policy statements but also have regard to the marine policy statement and relevant plans, because we think that that gets the relationship right. Clearly, as far as the IPC is concerned, the relevant national policy statement will be the prime statement. However, we are also clear that the IPC must have regard to the marine policy statement. I do not want to take us back to the debate on group 10, but we also expect the MMO to have a strong role by having to be consulted on pre-applications and then to have an involvement in the IPC's examination process itself.
I also want to reiterate a point which I have made consistently. The national policy statements and the marine policy statement plans will be entirely consistent—they have to be. The same departments will collectively be involved in establishing both the NPS and the marine policy statement. It would be intolerable if there were inconsistency and conflicts between the two statements. It would not give the kind of clarity that all noble Lords, including me and the Government, wish to see.
I know that the noble Baroness's Amendments 89 and 90 seek to ensure that policies in the marine policy statement or plans will always take precedence over those in the national policy statements. Of course, Clause 56 imposes a clear duty on public authorities, with the single exception of the IPC, to take any authorisation or enforcement decision relating to the marine area in accordance with the marine policy statement and plans. In contrast, the only public authority under a direct duty to take its decisions in accordance with the national policy statements is the IPC, in view of the national significance of projects on which it will take decisions. So those duties and the relative precedence of the marine policy statement and national policy statements in relation to authorisation and enforcement decisions seem to be entirely appropriate.
The question of precedence is less acute in relation to the secondary duty on public authorities to have regard to the marine policy statement and plans when taking their other marine decisions. Even so, that duty to have regard to the marine policy documents is clear and applies to any decision which is capable of affecting the UK marine area.
I am not unrealistic. I recognise that there will sometimes be circumstances in which a planning authority is to have regard to both a national policy statement and the marine policy statement. Despite the best endeavours of government, there could be a conflict between the two which had not previously been foreseen, and I do not think that as a matter of principle one could provide that the marine documents should in all cases outweigh the national policy statements. Policies on matters of national significance will by their very nature often be different from those relating to local matters. Sometimes a decision-maker, such as a coastal local planning authority in the present context, may need to consider both when deciding what weight as a material or relevant consideration should be given to each. We have therefore not imposed duties to take these decisions in accordance with either the marine policy statement or the national policy statements, precisely because in such circumstances we believe that public authorities should use their discretion and judgment, looking at the context and the likely impacts of possible decisions.
That is not an unusual approach and, after many years' experience, planning authorities are experts in weighing up and integrating government policy. We would also expect them to seek advice from the relevant department on how to resolve any conflict, which will help us to identify any potential need for clarification or amendment of our policies. It should not be a question of technical precedence but of taking the best decision for the marine area and the national interest in all the circumstances.
If the noble Baroness were to press her amendments and they were accepted by your Lordships they might reduce the clarity in the Bill about how any conflicts within the MPS or plan should be resolved. Clauses 42(3) and 49(9) presently provide that in the event of a conflict between the policy and any other information included in an MPS or plan, the conflict is to be resolved in favour of the policy. This provision is necessary to ensure clarity for decision-makers and we think that that would be lost if the focus of these clauses were turned on the national policy statements instead.
I apologise for speaking at such length. It is so good to see the noble Lord, Lord Alderdice, now in his place. It is not too late for him to intervene and explain why he thinks that collaboration between the UK Government and the devolved Administrations will not work on the marine Bill. His timing is impeccable.
I fully understand why the noble Baroness, Lady Hamwee, has moved these amendments—she seeks clarity. I want to reassure her that we thought a lot about this. We do not want the circumstance that she fears to arise whereby there is a lack of clarity and a conflict and the relevant public bodies do not know what to do. It is clear, as it has to be, that the IPC must turn first to the national policy statements.
I turn to my own amendment in this group. It is a minor and technical amendment to correct a typographical error in Clause 56(4). As noble Lords will have noted, the closing words should read "in relation to which" rather than "relating to which", as currently in the Bill. I hope that noble Lords will support the Government on that amendment.
My Lords, that was a typographical mistake, was it? I thought that it was much more significant.
We on these Benches often see our role as one of asking the "what ifs". I found what the Minister said very helpful. It certainly deserves to be read properly. It went a great deal further than the response that I had on similar amendments in Committee. He accepts the possibility of conflict, as do we, not least because the two sets of statements may have been developed at different times, with slightly different considerations. I need to think about his comment on not allowing a technical response and the Government being unable to tweak policy. I think that that was more or less what he said.
I am left with one query. In saying that the MPS and the NPSs must be consistent, is the Minister saying that the Secretary of State would not agree something that was inconsistent if there were a conflict between the Secretary of State and one or more of the devolved Administrations? That seems to be what he is saying or the natural conclusion to his comments. His comments were helpful. I certainly do not intend to press the matter tonight. My objective is to understand the Government's thinking and how it would all work rather better than was set out at the previous stage. I beg leave to withdraw the amendment.
Amendment 60 withdrawn.