My Lords, I will speak to other government amendments in this group as well. The amendments appear complex, but I reassure this House that nothing in them changes whether a function is devolved, or on whom it is conferred. The only effect is to classify functions as either "retained" or "devolved" for the purposes of this part of the Bill and, in particular, for deciding when the marine policy statement should influence public authority decision-making.
Since additional procedural requirements will apply to any devolved marine plan which is intended to affect "retained"—in other words, "non-devolved" functions—it is therefore important that we get the definitions right, and that they are capable of adjusting to the nuances of the different devolution settlements. Otherwise the risk is that we may find that plans could be prepared which affect UK functions without having gone through the correct procedure, or, alternatively, that we are inappropriately constraining the exercise of functions which have been devolved.
The policy which lies behind the amendments is straightforward and is unchanged from the Bill as published in draft and as introduced. If the marine policy statement has been adopted by the policy authority for a marine planning region, then it will be a "relevant marine policy document" for all decisions made by any public authority in relation to that region. Similarly, if a marine plan has been adopted for an area and the plan meets the conditions set out in Clause 57(4), then that plan will also be a "relevant marine plan document" for all decisions in relation to that area. However, the devolution settlements are different for each devolved Administration and use different terminology, which must be properly used to ensure that this Bill has the right effect in practice.
Clause 57(5) presently sets out the effect of the marine policy statement on different decisions. Amendments 91A to 91F amend the present Clause 57(5) to clarify it and insert the new terminology of "secondary" devolved functions and so on, which are used in the new clause inserted by Amendment 91N.
At the same time, Amendment 91G removes the present definition of "retained functions" in Clause 57(7) and (8). Amendment 91N inserts a new clause which defines "retained functions" by providing that all functions are "retained" unless they fall within the classes listed in subsection (1). The subsequent subsections in the new clause provide further detail as to the scope of each of the classes listed in subsection (1). In particular, neither "secondary devolved functions" nor "relevant ancillary functions" can be considered "devolved" if the UK Government still have substantive functions in relation to them.
Finally, Amendments 91H to 91M and 126B update or insert a number of definitions as a result of the changes to Clause 57 and the insertion of the new clause, while Amendments 75A, 77A and 99A update the cross-references to "retained functions" throughout the Bill to refer to the new clause.
I am confident that this drafting delivers the right result and properly respects both UK "retained" functions and the competence of the devolved Administrations. I beg to move.
My Lords, I shall respond to what the Minister says, first in relation to Wales. The amendments are complex and appear to be complicated, but I have read them thoroughly and, speaking specifically about Wales, I am satisfied that he has covered what I regard as the important points.
Amendments 75A and 77A are welcome, in that they spell out clearly the meaning of "retained functions" in relation to devolved authorities and legislatures. Amendment 91A would define what happens if a devolved policy authority adopts an MPS. There then follows a series of consequential amendments, Amendment 91B to 91G. Amendment 91H rightly describes the Counsel General to the Welsh Assembly Government, as he or she is the most senior legal officer in the Assembly and Government of Wales.
Amendment 91K defines the description of the First Minister in the Government of Wales Act 2006. Prior to that, between 1999 and 2006, the title of First Minister was not entirely secure in legislative terms. It also separates out a non-departmental government authority from Welsh Ministers and the legal officer.
The group follows on in Amendment 91M to define exactly what a primary devolved authority is in relation to a devolved policy authority. This gives clarity to the legislation as far as Wales is concerned. Amendment 91N is helpful in defining the retained functions for Wales. It spells out where the Welsh ministerial functions lie, and also in relation to joint functions, an interesting aspect of the Minister's amendment.
Given that the Marine and Coastal Access Bill includes matters that directly impact upon Wales, the Welsh Assembly Government and the National Assembly of Wales, Amendment 91 is particularly helpful in defining the parameters which I am sure that the devolved bodies in Wales will absorb. Amendments 99A and 126B give further clarification, Amendment 126B on town and country planning legislation. On the whole, having looked at the detail of Minister's amendments, I think that I can make sense of them.
My Lords, I remember, during the passage of the Scotland Act through this House, the late Lord Mackay, who was on the Front Bench for us, saying that the lopsided type of devolution that we were adopting would lead to great complexity in legislation. He said that we might well end up with a federal system simply to get the simplicity. That is probably not what we want.
This is a perfect example of what lopsided and uneven devolution brings about in legislation. The Bill is getting fatter and fatter. Quite honestly, it is becoming pretty confused as we go along. I am sure that these amendments are necessary but, unlike the noble Lord, Lord Livsey, I cannot comment on them in detail; I dare say that my noble friend on the Front Bench may do so. However, one day, we will have to simplify all this. Quite honestly, one definition leads to the need for another. It is pretty confusing.
I trust that the Government have got it right and that, if somebody spots further faults here, they will be put right in the other place. In the mean time, however, I support the amendments.
My Lords, I thank the Minister for the extremely helpful letter that was sent to Peers showing, in language that was not that much easier but in more narrative form, the effect of these amendments. I congratulate him on the final paragraph in the annexe dealing with this suite of amendments. He repeated the first sentence of it about his confidence that,
"this drafting delivers the right result".
Yet I cannot resist sharing with the House the second sentence, which reads:
"Whilst it will never be possible to draft for every eventuality, it must be remembered that the duty to act in accordance with the MPS and plans permits public authorities to take other 'relevant considerations' into account, which enables flexibility in the future to adapt to unforeseen circumstances".
I thought that was masterly.
My Lords, I also wish to thank the Minister for explaining his amendments in such a succinct fashion, especially on the back of the very comprehensive briefing that he gave us, which I picked up in my post yesterday afternoon. I am also grateful to him for admitting that it is a complex group, but I am glad to respond because it touches on an area that has exercised my mind since we first began considering the Bill. How far are we aware of what powers are devolved to which Administration, and will all the authorities find clear definition of where they are allowed to exercise authority in the future? Certainly, this group of amendments is a good attempt to address that.
Amendment 75A, which is put in more or less as a consequential amendment, is pretty far-reaching. Every marine authority drawing up its plan will have to state where it sees retained functions being involved. Will that be subject to review by the Secretary of State as part of the approval process? Will the list be confined to retained functions within marine legislation, FEPA legislation and renewable energy legislation or will it have to take in the overarching areas of retained functions such as defence, marine shipping and minerals?
It is very appropriate that this area should be subject to fairly detailed clarification in the Bill, as most of those who have spoken have mentioned. I am glad that it has been in the hands of proper parliamentary draftsmen, as I am not sure anyone else could have battled their way through all the different bits of devolved legislation that are necessarily hard for us to follow. Perhaps once these provisions are in the Bill, those with a sharper brain than mine will see whether there are areas that need tidying up.
I am glad that the Government have addressed the question of where the powers lie for any authority that withdraws from a marine policy statement. I think the Minister is aware of my misgivings about the possibility that an authority might not bother to withdraw but simply ignores the directions that are contained within the relevant marine plan. He tried to reassure me about that in Committee. Otherwise, I am much encouraged by the group of amendments.
My Lords, first, I am grateful for the general welcome there has been for this group of government amendments. Let me reiterate that it is extremely complex and I am very grateful for the tolerance shown by noble Lords in this debate.
I welcome the comments of the noble Lord, Lord Livsey, about clarity. I thought that his analysis from a Welsh point of view was impeccable. The noble Baroness, Lady Carnegy, reminded us of the riveting debates on the Scottish Bill as it went through your Lordships' House. We all of course recall Lord Mackay and the contribution he made to those debates and that legislation. He is still very much missed in your Lordships' House.
I do not quite agree that we have lopsided legislation—
My Lords, lopsided devolution was the phrase; it is not a rude term but a statement of what we have. Legislation is not even between different parts of the country. We have legislated differently for different areas. That is why we referred to it at that time as lopsided devolution.
My Lords, I am grateful, but one person's lopsidedness is another person's flexibility in meeting the circumstances of each devolved Administration.
My Lords, the noble Baroness, Lady Carnegy, is not a lone voice in this. The situation in Wales is not satisfactory. We should much prefer to have the kind of settlement that Scotland has had; if we did, we would not have such complex legislation in front of us today.
My Lords, although it is very tempting to debate particular aspects of devolution in relation to Scotland and Wales, I had better desist from doing so. However, I say to the noble Baroness, Lady Carnegy, that I very much hope that the end result is not a federal system of government. On the 10th anniversary of the establishment of the Scottish Parliament, the polling showed up some very interesting results, which were encouraging for those of us who believe that the Union has much for which to commend itself. However, I realise that the more I speak, the more I tempt noble Lords to debate devolution in general.
Regarding the specifics of my amendments, noble Lords may ask why it has taken until now for the Government to provide the clarity required. The short answer is that the final discussions between the devolved Administrations and the UK Government that took place in the autumn—which led to the confidence that I have stated in this House before that we can make this work from the UK's point of view—meant that a lot of work then had to be done to ensure that the Bill was up to scratch in relation to the devolution settlement. We have been working very closely with counterparts in Scotland, Wales and Northern Ireland and with parliamentary counsel in going through the detail of this revised clause. Of course, the framework of responsibilities within the devolution settlement is extremely complex, but I am confident that we now have it as right as it can be. I say to the noble Baroness, Lady Carnegy, that if we spot further changes that need to be made, there will be another opportunity to do so. I hope that that will not be necessary but, as a result of these amendments, we now have the support of all the devolved Administrations regarding the definitions that we are proposing.
I am grateful to the noble Baroness, Lady Hamwee, for her comments on my extremely lengthy letter. She is right to say that I left a caveat in the penultimate sentence, but that is just a sensible precaution and I do not think that anything more should be read into it.
In Committee, the noble Duke raised his concern that this is a very complex area. Although we are confident that we have it right, and the UK Government and devolved Administrations understand their respective responsibilities, ensuring that that is communicated to all the people who will be affected by this legislation in the future is a considerable challenge. He is right about that, and we will have to think very carefully, as will the other Administrations, about how that is to be done.
Regarding the noble Duke's specific question, my understanding is that the public authorities already know which functions are devolved and which are retained, so we do not think that that is particularly an issue. I reiterate, as I have done on many occasions, that Part 3 does not affect the devolution settlement, however much the noble Lord, Lord Livsey, wishes that it does.
Amendment 75A agreed.
Amendments 76 and 77 not moved.
Schedule 6 : Marine plans: preparation and adoption
Moved by Lord Hunt of Kings Heath
77A: Schedule 6, page 231, line 32, leave out "section 57" and insert "sections 57 and (Meaning of "retained functions" etc)"
Amendment 77A agreed.
Moved by Baroness Hamwee
78: Schedule 6, page 232, line 5, at end insert—
"( ) the Scottish inshore region,"
My Lords, I beg to move Amendment 78 and will speak also to Amendment 79, but not at any length on either. I will probably demonstrate that, helpful as I have found the Minister's letter, I have still not got to grips with the devolution aspects of the Bill.
The first of my amendments is to paragraph 3(2) of Schedule 6, where we are told that:
"The marine plan authority for —
(a) the English inshore region, or
(b) the Welsh inshore region, must also take all reasonable steps to secure that any marine plan for a marine plan area ... is compatible with the relevant Planning Act plan for any area in England, Wales or Scotland".
My amendment would add a further reference to Scotland, because I seek to understand how this paragraph works. I am certainly not trying to interfere with the devolution settlement. I wrote down a number of possibilities as to what it might mean, and I have crossed out most of them in my notes; I do not want to demonstrate my ignorance absolutely and totally. I wondered whether it was because of the reference to adjoining and adjacent areas in the next sub-paragraph, but I would be grateful if the Minister explains how paragraph 3(2) operates as regards Scotland.
Amendment 79 would take out the words "all reasonable steps". Taking all reasonable steps to ensure compatibility, by definition, raises the issue of conflict and begs the question: what if they are not compatible?
My Lords, I may be wrong, but it seems that Amendment 78 is not appropriate. Under Clause 48(1)(a), the Scottish inshore region is not applicable in the Bill. One cannot legislate for it in this Bill.
The way the waters of Scotland are now dealt with in the Bill is somewhat confusing. I do not think there is any way round it and the Scottish Parliament is quite happy about this. The Scottish inshore waters are being legislated for in the Scots Parliament; it is busy getting on with that now. The offshore waters are the mixture of one parliament responsible for some things, and another for others. How the boats sailing between the two will cope remains to be seen, but this is the arrangement we have. I do not think I could support Amendment 78, because I do not think it is applicable.
My Lords, I welcome the probing nature of my noble friend Lady Hamwee's amendment, and her reassurance that she does not intend to impede on the devolution settlement. It raises and helps to focus on an issue which arises out of the boundary between the south-west of Scotland and the north-west of England in the Solway Firth. There were amendments in Committee which I and the Government brought forward to address this.
Since then I have received representations from Mr Gordon Mann of the Solway Firth Partnership about concerns which the partnership has about the future of marine conservation in the Solway Firth. That partnership was established in the early 1990s in response to the growing issue of integrated coastal zone management. In the Solway Firth a particular need was identified to have well joined-up integrated coastal zone management, not least because of the national boundary that goes though it. That boundary inevitably increases the number of agencies involved, operating under different legal systems north and south of the border, and different cultures north and south of the border can lead to different management arrangements. Therefore, I understand that the partnership has been worth while in bringing people together from the Scottish and English sides of the Solway Firth to identify issues and actions that are necessary to secure an environmentally sustainable future of that sea.
The concern now being expressed is that there is no likelihood of sufficient consistency and co-ordination between the MMO, which will be established under this legislation, and the work done by Marine Scotland, which has already been established as an executive agency of the Scottish Government and which will operate under the Marine (Scotland) Bill that is currently before the Scottish Parliament. Assurances have been given, but they have no statutory foundation. It is believed that here is a real need for joint planning. Having been born and brought up in Annan in Dumfriesshire on the Solway Firth, I know only too well that here we have an ecosystem that does not recognise a national boundary. Therefore, it is important that there is some kind of shared responsibility.
I understand that under the Scottish Bill, Marine Scotland will have the power to delegate the preparation of a local plan. That power of delegation is not available to the MMO. Defra has responded to representations that there will be an obligation to consult, but that is not believed to be sufficient. The amendment raises the issue of whether there is an interaction between the responsibility of Scottish Ministers and the inshore plan which directly impinges on an English inshore plan. Perhaps the Minister will indicate a willingness to engage with those who have an interest in the ecosystem and the management of the Solway Firth, so that when the Bill arrives in another place further consideration will have been given to identify whether there are sufficient mechanisms in place to address important issues and underpin the work that has been done since the early 1990s in trying to get a co-ordinated approach to coastal management in the Solway Firth.
My Lords, I was enjoying my noble friend's response to a question about the difficulties of the devolution settlement, thinking that I had a rather straightforward amendment to deal with. But I am now faced with the situation in which the noble Baroness, Lady Hamwee, wants clarification; the noble Baroness, Lady Carnegy, thinks that the amendment has nothing to do with the Bill; and the noble Lord, Lord Wallace, is asking about the boundary of the Solway Firth. I am in deep waters here, my Lords—I am not sure how deep the Solway Firth is, but I am going to struggle.
Let me begin with the relatively sunny uplands before I get to the deep waters of the Solway Firth. Let me say—
My Lords, we know all about treacherous waters, don't we? Let me say to the noble Baroness, Lady Hamwee, that I have little to add to what the noble Baroness, Lady Carnegy, said. Clause 48 sets out the marine plan authorities, and it does not include a marine plan authority for the Scottish inshore region because the Marine (Scotland) Bill, now being considered by the Scottish Parliament, covers planning for the Scottish inshore region. As there is no marine plan authority under this Bill for the Scottish inshore region, we cannot place obligations on something that does not exist. The valid point made by noble Lords will need to be considered in the context of that Bill when the Scottish Parliament is considering it, and we will of course draw its attention to the issues raised today. But this is very much a matter for that Bill and its consideration, and without grievously affecting the devolution arrangements we could not in this Bill legislate in that context for Scotland. That is why we do not propose to do so, and therefore I hope that the noble Baroness will regard her Amendment 78 as a probing one and will feel that she has received a satisfactory answer.
Amendment 79 is different. It would remove the wording relating to "reasonable steps"; in effect, that would make full compatibility mandatory and take away any reference to what is reasonable in the circumstances. Let me begin by reiterating that compatibility between terrestrial plans is extremely important. We want to see a seamless, integrated approach at the coast—not least on the Solway Firth, which the noble Lord, Lord Wallace, identified. We included paragraph 3 in the Bill to acknowledge the Joint Committee's recommendation that we needed to make that very clear. Yet ensuring absolute compatibility—rather than working towards as much compatibility as we can achieve—is not something that we can guarantee without disproportionate cost.
The resources required by a maritime plan authority under an absolute duty to ensure compatibility with any related terrestrial plans, not just those adjoining or adjacent to the marine plan area in question, would be absolutely enormous. Beyond doing everything reasonable to ensure that plans are compatible, it could require the marine planners to imagine and work through every possible combination of potential development, location and circumstances to identify any situation in which the two plans might conflict.
In our earlier debates on the need for consistency between the marine policy statement and national policy statements, the noble Baroness herself acknowledged the near impossibility of eliminating all potential conflict, particularly between "two sets of statements" that may have,
"developed at different times, with slightly different considerations". —[Hansard, 5/5/09; col. 509.]
That is how she expressed the problem. She also described the absence of any conflict as,
"the best of all worlds".—[Hansard, 28/1/09; col. 330.]
That burden of ensuring total compatibility would not and could not fall only on the marine plan authority, which would necessarily need to work closely with the terrestrial plan authorities to ensure a shared understanding of how terrestrial planning policies were expected to be interpreted and how they would relate to marine policies.
With no limit of what is reasonable, this process could go on indefinitely, delaying the implementation of any marine planning and increasing the cost of the exercise for both terrestrial and marine authorities. That would obviously make it difficult to achieve our goal of preparing effective and, as far as we can obtain them, compatible plans for the whole inshore region in reasonable time. For the reasons that I have identified, an absolute duty is, as I am sure that all those in the House would recognise, an obligation that we could not put into the Bill.
We have drafted an equal arrangement, which we think will assist planning authorities both on land and at sea to reach meaningful agreement on how their plans should work together. We cannot ask the marine plan authorities to do more than is reasonable or to throw unlimited resources at what might be a well-nigh impossible goal of eliminating any potential for conflict. We will strive for full compatibility; that is the philosophy behind the Bill. Compatibility is in everyone's interests, but it has to be within the bounds of what is reasonable and practical, both in terms of resources and time.
There are safeguards in place. Both the marine and terrestrial plans are subject to extensive public scrutiny, providing as many eyes and minds as possible to help identify and eliminate any potential incompatibilities. This is not about picking and choosing whether to be compatible with terrestrial plans, but the duty is clear: to do everything reasonable to ensure that marine plans are compatible with them. If plans were incompatible without good reason they would, of course, be open to challenge.
Every time marine or terrestrial plans are updated, each always having regard to the other, they will become more closely and effectively integrated. In reality, we think the potential for significant conflict is low, but to imagine that it could be taken out altogether is not sensible. As we said last week, planners are expert at integrating and reconciling government policies when making their decisions, and we should acknowledge that level of expertise.
I am confident that the mechanism we have proposed, by which marine planning authorities must take all reasonable steps to ensure compatibility with terrestrial plans and, in return, terrestrial planning authorities will have regard to national policies, including the MPS and marine plans, is the right balance. It is not the function of this legislation to set an impossible task for the marine planning authorities, as I hope the noble Baroness will recognise. Decision-makers may always take into account other relevant matters, such as contradictory plans. Of course, it is a decision-maker's job to be good at resolving such situations. We should trust them to do so within the framework of the legislation which, clearly, indicates that compatibility should be striven for, but not to the point where it becomes an absolute goal which is unrealisable.
I say to the noble Lord, Lord Wallace, that I struggled with the Solway Firth. He will have to give me a little more time to think about that issue. He will appreciate fully that we await the progress of the Scottish Bill for the arrangements which will be made for Scotland. I am all too well aware that in all legislation of this kind the issue with regard to a boundary is always of importance and the boundary which involves a fluctuating ecosystem is particularly difficult. I shall write to the noble Lord on that point as I do not have an answer with that level of detail. I hope that he will accept that the framework of the Bill, in the context of the areas that it covers as far as England and Wales are concerned, strives to assert that there will be the necessary reconciliation of interest. That will apply as much to England and Scotland as to other parts.
My Lords, I am grateful that the Minister will write to me. I did not expect a detailed answer. Will he also give an indication of the willingness of his officials to engage with those of us on both sides of the Solway Firth to see whether things can be done to ensure that the two legislatures can dovetail to find a solution which he would be willing to engage with as the Bill proceeds to another place?
My Lords, as regards the Scottish counterpart, before this legislation was drafted there was a substantial exchange of views. As this Bill and the Scottish position develop, there will be an opportunity for full consultation. I am happy to give him that assurance. I prefaced my remarks in response to this amendment by indicating that, as regards England, it will be necessary to search for agreement and compatibility, in the context of this Bill. When the boundary of England and Scotland is involved, exactly the same principles must obtain.
My Lords, I should know better than to try to table probing amendments seeking to understand what the legislation means. I thought that if I took out the words "or Scotland" I would draw opprobrium. That would have been another way of approaching it. I was not seeking support for either amendment, but if my noble friend would like me to table another dumb amendment—to which he might not want to put his name—at a later stage, to allow the Solway Firth to be debated further, I would be happy to help.
I am not sure that I am any wiser about the second amendment. The only words that the Minister used that answered my question were "open to challenge". My problem is that I do not know if this needs further discussion, but I can see that it will not happen this afternoon. I beg leave to withdraw the amendment.
Amendment 78 withdrawn.
Amendment 79 not moved.
Moved by Baroness Hamwee
80: Schedule 6, page 236, line 20, at end insert—
"(c) the extent to which matters raised in representations have been resolved,"
"Our aim is to ensure that the plans prepared have the support of the local community as well as the various industries, interest groups and regulators who, in one way or another, will be using the plan or subject to it. It is clearly in everyone's interest to ensure that issues are resolved and consensus reached where possible".
The Minister went on, understandably:
"It will inevitably not be possible to please all of the interests all of the time".—[Hansard, 23/2/09; col. 25.]
My amendment simply adds consideration of the extent to which matters raised in representations have been resolved. I have simply aimed to encapsulate the Minister's explanation and to pin the matter down a little more. That is the quite straightforward purpose of Amendment 80, unless somebody tells me that it means something completely different. I beg to move.
My Lords, last time I did not satisfy the noble Baroness with my response to her amendment, although I spoke at some length. I have a reasonably lengthy reply to this amendment, but the note from my officials also says, "This amendment seems sensible and we should consider it". We will.
My Lords, I am very grateful. I beg leave to withdraw the amendment.
Amendment 80 withdrawn.
Amendment 81 not moved.
Clause 52: Duty to keep relevant matters under review
Moved by Lord Hunt of Kings Heath
82: Clause 52, page 27, line 6, at end insert—
"( ) The reference in subsection (2)(a) to the cultural characteristics of the authority's region includes a reference to characteristics of that region which are of a historic or archaeological nature."
Amendment 82 agreed.
Amendment 83 not moved.
Amendment 84 not moved.
Moved by Lord Wallace of Tankerness
84A: After Clause 52, insert the following new Clause—
"Duty to further the conservation of biodiversity in the Scottish Offshore Region
(1) It is the duty of every public body and office-holder, in exercising any functions in the Scottish offshore region, to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions.
(2) In complying with the duty imposed by subsection (1) a body or office-holder must have regard to—
(a) any strategy designated under section 2(1) of the Nature Conservation (Scotland) Act 2004 (asp 6), and
(b) the United Nations Environmental Programme Convention on Biological Diversity of
My Lords, in moving Amendment 84A, I will speak also to Amendment 84B, because I see them very much as alternative amendments. Amendment 84B is in the same terms as the amendment that I proposed in Committee. I indicated then that it was, in essence, a probing amendment to try to identify the extent—if any—to which the Scottish Parliament had a power to legislate to impose a duty of biodiversity on public bodies in the same manner as it had for issues in terrestrial Scotland and the seaward limit up to 12 nautical miles. Could it do so for what we have come to know, lovingly, as the offshore region, which extends from 12 to 200 nautical miles?
It was clear from that debate that the current devolution settlement did not provide for the Scottish Parliament to be able to do that; nor, indeed, did the agreement that was reached between the United Kingdom Government and all the devolved Administrations on how to proceed with regard to marine management. The structure, which we have now discussed many times, is one of executive devolution, rather than legislative devolution, hence the very specific power that would be given under Amendment 84B. It would give the Scottish Parliament a power—if it wished to exercise it—that would allow Ministers to incorporate a general duty of biodiversity on public bodies when bringing forward the marine plan for the Scottish offshore region.
It is recognised, too, by the Scottish Government that their competence is limited in this. The Scottish Cabinet Secretary for Rural Affairs and the Environment, Richard Lochhead, said as much to the Liberal Democrat spokesman on marine issues, Liam McArthur, when the matter of the legislative consent motion was before the relevant committee of the Scottish Parliament in January of this year.
Marine Scotland is the executive arm of Scottish Ministers and has responsibility for marine science, planning, policy development and management. Amendment 84A would enable the United Kingdom Parliament to confer on public bodies a responsibility for biodiversity. Amendment 84B would enable Marine Scotland, in taking forward its responsibilities, to have that power if the Scottish Parliament so wished. The wording used is in the Nature Conservation (Scotland) Act 2004, which, as I have indicated, extends at the moment only up to the 12-mile limit.
It is clear that executive devolution will not confer powers on Scottish Ministers, but imposing this duty on public bodies has certainly been supported in Scotland. Under the previous Administration in the Scottish Parliament, the Advisory Group on Marine and Coastal Strategy was set up to look at the whole issue of the marine environment and it published its report in March 2007. It had a number of working groups and work streams and, in its contribution to the report, the work stream relating to marine nature conservation said:
"From the marine nature conservation perspective, the main requirement is that measures relating to nature conservation can easily be integrated across administrative boundaries, including the boundary currently placed at 12 nautical miles ... and that these can be integrated into measures for the wider regional seas (however these are defined)".
It went on to recognise that because the devolution settlement is as it is, that would require Westminster legislation; that it was not at the hand of Scottish Ministers.
In its concluding paragraph, the report of the work stream states:
"While it is not specifically a Scottish competence, and thus outwith the remit of AGMACS, we also support the proposal to extend species protection measures equivalent to those in the Wildlife & Countryside Act 1981, as amended by the Nature Conservation (Scotland) Act 2004, into the zone from 12 to 200 nautical miles"—
I understand that that has been done under subsequent regulations—
"and to extend the 'biodiversity duty' on all public bodies and office holders into this zone, and would commend the definition of that duty in the Nature Conservation (Scotland) Act".
So there has been a recommendation that the duty should be extended into the offshore.
"If Scottish Ministers achieve further devolution of nature conservation in the offshore beyond 12nm, the Scottish Ministers would propose extending the scope of the duty to apply to all public bodies exercising functions in the offshore area. If further devolution cannot be agreed we would discuss with the UK Government how best to take forward this proposal".
It is clear that only a limited devolution has been agreed which does not allow Scottish Ministers to do this. The amendments offer the House a choice: we can either devolve that power to the Scottish Parliament or, because it is stated in the devolved settlement that this Parliament would take the lead in this area, we can, perfectly properly, legislate to impose that duty, which quite clearly enjoys support north of the border.
When the matter was debated on
"On biodiversity, the simple and straightforward answer is that, although we do not use the wording used by the noble Lord, we believe that we have covered the matter in the Bill. In Clause 121, there is a duty on public bodies, including those in the Scottish offshore area, to further the conservation objectives of designated sites. Moreover, public authorities must have regard to advice from the statutory conservation body, which, for the offshore region, is the Joint Nature Conservation Committee".—[Hansard, 23/2/09; cols. 15-16.]
The point is that the duty is not solely for designated sites; it is a general duty for public bodies when exercising functions in relation to the offshore area which is set out in more detail in the Nature Conservation (Scotland) Act and incorporated by reference in the amendment. Scottish Environment LINK told me recently that it does not believe that the present legislation goes far enough, nor is it competent for the Scottish legislation to cover it. It is concerned that there is a gap in the arrangements which it is the purpose of this amendment to bridge.
I hope that the amendment will commend itself to your Lordships' House. Both Governments are keen to ensure a marine ecosystem where nature conservation is taken forward. A gap has been identified; I do not believe that this legislation addresses it; and the purpose of my amendment is to ensure that a proper biodiversity duty is put on public bodies so that the boundary line at 12 nautical miles becomes meaningless. It seems a nonsense that a duty exists up to a certain point but not at 12.5 miles from the coast. The amendment seeks consistency right up to the 200-mile limit. Therefore, I beg to move.
My Lords, I thank the noble Lord, Lord Wallace, for tabling the amendments and probing the whole question of biodiversity and conservation, which we are concerned with in all areas of the United Kingdom as much as in Scotland. Many amendments have been tabled at all stages of the Bill which show the level of concern about the difficulties that could arise from the various approaches to conservation that different authorities may take.
I do not envy the Minister in responding to these concerns. Not only are devolution arrangements impossibly complicated but the system of agreement means that the effect of a change in one arm is not readily apparent in another. The Government claim to be covering one element of the concerns of the noble Lord, Lord Wallace, by devolving responsibility for the implementation of the EC wild birds and habitats directives to the Scottish Executive for offshore waters adjacent to Scotland. How and when will that take place?
The Bill mentions sustainable development as one of its aims. Including biodiversity places a constraint on that concept. The Government have provided a draft strategy for marine protected areas, which most noble Lords here today will probably have recently received. In it, the Government emphasise biodiversity for England and Wales, but I do not think that biodiversity is mentioned in the Bill. Too strict an interpretation of biodiversity could create a problem if some new species or organisms were introduced that were detrimental to other elements of current biodiversity. Introducing a species increases biodiversity, but there is a choice to be made as to whether it is beneficial.
I have heard scientists explain recently that we may find as we progress into the future that ecosystem evaluations are of greater importance than biodiversity evaluations—the Government talk in their draft strategy about ecosystem service provision. If powers are to be given to the Scottish Parliament, it may be highly restrictive if they are to be limited to biodiversity.
Amendment 84B would place a duty on Scottish bodies that is not placed on others. I shall therefore listen to the Minister's response with much interest.
My Lords, the noble Lord, Lord Wallace, said that there was a gap, and he is perfectly right. This is one of the strangest parts of the Bill. Ministers in the Scots Parliament decide things and Westminster legislates, as I understand it—that is the problem. One has to realise that, when you move out into offshore waters away from Scotland, you come to areas where energy comes into it—where actual and potential oil fields exist. There could be a conflict of interest between, say, the excavation of a potential oil field and the need to protect natural diversity at sea. It is very important that the same legislature should be legislating for those two things. As it stands, it is the Westminster Parliament.
We must be very careful about this. Already the Scots Parliament and Ministers are referring to offshore as well as inshore waters as "Scottish waters"—they are blurring the distinction. If we blur it further, we may be in trouble. For the United Kingdom, oil is a very different matter from biodiversity in those parts of the sea. It is a very important issue that could affect devolution and whether Scotland one day might become independent. We have got to be very careful about this. I can understand that this may be a solution to the gap, but I am afraid that the gap must continue to exist, inelegant though it is in the context of arrangements in the Bill.
My Lords, once again the noble Baroness has put her finger on some general principles. I will start by making it clear that under the existing devolution settlement, the Scottish Parliament has legislative competence in the offshore area for commercial fishing and for the extraction of marine aggregates. In addition, it has executive responsibility for marine licensing and renewable energy. The UK Government currently retain sole responsibility for defence, oil, gas exploration and exploitation, shipping and nature conservation. Assuming that the Bill receives Royal Assent in its current form, the Scottish Government will be given executive responsibility for designating marine conservation zones in the offshore area, subject to the agreement of the UK Government. The Bill will also give the Scottish Government executive responsibility for marine planning in the offshore area—again subject to the agreement of the UK Government.
The Scottish Government will retain the other functions that it already enjoys, but I say to the noble Baroness that the UK Government will retain sole responsibility for defence, oil and gas exploration and exploitation, and shipping. The exercise of such functions will, however, be subject to any relevant marine plan, provided that Scottish Ministers have adopted the marine policy statement.
My Lords, I thank the Minister for giving way. Am I completely out of the picture when I say that energy reserves include coal?
My Lords, we will come to the question of coal later. As I am struggling to find the flag that I have used to identify the issue in my notes, would the noble Duke be content if I answered the point later? I knew that he would raise the issue of coal: alas, I thought that it would be later. I assure him that I have a satisfactory answer on that point.
My Lords, my noble friend says that it is worth waiting for. I do not think that I would put it quite as highly as that. As far as executive devolution is concerned, outside this Bill the Government have agreed in principle to devolve to Scottish Ministers the executive functions in these regulations that relate to offshore waters adjacent to Scotland. Scottish Ministers will become responsible for enforcement of nature conservation under the Bill and the 2007 regulations. The intention is that enforcement officers will have seamless access to the full suite of enforcement powers that they need for enforcing all nature conservation regulations. We are currently in the process of agreeing with the Scottish Executive how the new arrangements will work to ensure continued efficient administration of reserved functions and the protection of UK national interests in these waters.
Before I come on to the issues raised under the noble Lord's very interesting amendments, I should say that we are looking with great interest at the progress of the Marine (Scotland) Bill. Of course, as the UK Bill continues to go through the UK Parliament, we shall work very hard to ensure compatibility across the two Bills. The noble Lord raised a point in that regard under the last group of amendments. It is entirely relevant to the general discussion that we are having about how we make the devolution settlement work in the marine area.
The noble Lord's amendments raise two fundamental issues. There is the question, first, of the Scottish Parliament's competence and, secondly, of whether it is desirable to create a new duty to further diversity in the offshore area. As I have said—and as the noble Lord has said—the Scottish Parliament does not have the competence to legislate on biodiversity in the offshore zone. That is why the noble Lord wants to move this amendment in this House. However, we consider that Scottish Ministers have the ability through the various powers that they have under the Bill to achieve the practical effect of the amendments that he is aiming at. He has already quoted what I was going to say; in Clause 121, there is a duty on public bodies, including those in the Scottish offshore area, to further the conservation objectives in marine conservation zones. Those objectives are aimed in part at furthering biodiversity. The noble Lord made a general point about how the objectives relate to only the designated zones, but it is those zones with which we are most particularly concerned.
What is more, any public authority operating in the Scottish region will have to do so within the terms of the marine plans to be prepared by Scottish Ministers and the marine policy statement, since, under the Bill, we are devolving to Scottish Ministers the responsibility for nature conservation in the Scottish offshore region. They will be able to include in their plans provisions in relation to conservation or furthering biodiversity. In that sense, they will be accountable to the Scottish Parliament for their decisions, which is another point that the noble Lord has made in a number of our debates.
Scottish marine plans for the offshore region will have to be agreed by the Secretary of State but, having given Scottish Ministers executive responsibility for designating marine conservation zones, we see no reason to object to a plan on the grounds that it contained a duty such as that set out in subsection (1) of Amendment 84B, provided that it was consistent with this Bill and the marine policy statement. I hope that the noble Lord finds that comforting. We believe that Scottish Ministers already have the power under this Bill to include a duty to further biodiversity in marine plans, if they see fit.
Amendment 84A seeks to insert a duty to further the conservation of biodiversity within the offshore region adjacent to Scotland. The first question is whether that duty is necessary, and we are not convinced that it is. All UK Administrations have emphasised the importance of consistency across the UK, while respecting the rights of each legislature. We have no such separate, explicit duty to further biodiversity in other UK offshore areas and we do not think that it is necessary. We already have a number of provisions in this Bill and in wider European legislation that allow us to further biodiversity conservation in the offshore area. We, and the Scottish Executive, will be able to consider biodiversity out to 200 nautical miles where MCZs have been designated. Furthermore, the statutory nature conservation bodies will be able to give advice relating to biodiversity under the provision set out in Clause 123. Public authorities are required to have regard to such advice, ensuring that biodiversity is effectively considered. As I have suggested already, our marine planning system provides the opportunity to drive the way that decisions are made in the direction of further biodiversity.
The noble Duke, the Duke of Montrose, raised the question of the birds and habitats directive, matters which are still under discussion with the Scottish Executive. Although they fall outside the Bill, another form of executive devolution is being considered in relation to them. I hope we can have constructive discussions with the Scottish Administration on those matters.
My Lords, does devolving the EC wild birds directive give the Scottish Parliament any legislative competence in carrying it out, or is it purely executive devolution?
My Lords, it would be executive devolution because we cannot do anything that goes outwith the devolution settlement. However, these are early days and I hope we will have a constructive engagement.
Some inspiration has reached me on the issue of coal, so I shall test the patience of the House, if I may. Noble Lords will probably know that the Coal Industry Act 1994 regulates coal mining throughout Great Britain. The exclusive right to authorise coal-mining operations, or operations carried out for the purpose of searching and boring for coal in the terrestrial sea and on the UK continental shelf, is vested in the Coal Authority under the Coal Industry Act. Therefore, any coal-mining operation in the UK—except the Northern Ireland inshore region, which has its own legislation—will need authorisation from the Coal Authority under the Coal Industry Act 1994. A marine licence is only needed for the removal of substances from the seabed, not under the seabed. Therefore, mining operations that extract coal using tunnels dug from the shore would not need a marine licence. The noble Duke has been asking for an explanation on this for some time and I hope that we have finally come up with something that is close to satisfactory.
My Lords, I thank the Minister for bringing that forward but it is a reserved matter.
My Lords, I did not mean to suggest that it is not. However, in the unlikely event of an open-cast operation extracting coal from the surface of the seabed—who knows where technology may take us?—the operation would need a marine licence, and in the Scottish offshore zone, this would be for Scottish Ministers.
I sympathise with what the noble Lord, Lord Wallace, is trying to do here. We do not think the Bill is the right vehicle for further legislative devolution, but I hope that what I said earlier about the power that Scottish Ministers have under the Bill to include a duty to further biodiversity in marine plans if they see fit will provide him with some reassurance that we can get to where he wishes to be.
My Lords, I am grateful to the Minister for his reply and to other noble Lords and the noble Baroness, Lady Carnegy of Lour, who have taken part. The noble Duke, the Duke of Montrose, made a number of important points, not least about the birds and habitats directive. As we heard, there is currently a discussion about trying to make sure that that is extended by way of executive devolution. I rather thought, when the Minister was considering coal, that the idea of tunnelling out to 12 miles plus would challenge, but, as he said, one never knows quite where technology will take us in generations to come.
The noble Baroness, Lady Carnegy, made the important point that decisions regarding the oil and gas extraction industry are made here and, therefore, the decision regarding biodiversity ought to be made here as well. Indeed, the purpose of one of the alternative amendments I put down was that it would be this Parliament that would legislate for it and it would come under the same legislature.
I recognise that a settlement has been made with the devolved Administrations. Although I was minded to push this matter further, I was certainly encouraged by what the Minister said in his reply—specifically the point he made in winding up, that if the biodiversity duty set out in these amendments were to be incorporated in a marine plan in relation to marine conservation zones, the Government would look favourably on them. In many respects, that puts the ball into the court of Scottish Ministers. I do not want to underestimate the significance of what the Minister said. It was helpful, and in those circumstances I beg leave to withdraw the amendment.
Amendment 84A withdrawn.
Amendment 84B not moved.
Clause 53 : Delegation of functions relating to marine plans
Moved by Baroness Hamwee
85: Clause 53, page 27, line 16, after "body" insert "other than a statutory undertaker"
My Lords, a government amendment is grouped with this amendment, and I will not attempt to pre-empt that.
Clause 53 provides for the delegation of functions relating to marine plans. A direction can be given to delegate the functions by a public body. My concern is that a public body as defined in the Bill includes statutory undertakers. Most statutory undertakers are not public: they are private, albeit subject to particular regulation. I query whether it is proper or appropriate to delegate marine plan functions—preparing a plan, identifying the plan area and so forth—to the private sector, even with the Secretary of State's long-stop powers. That is not to say that a marine plan authority should not be working with or consulting statutory undertakers along with other bodies that fall within the normal definition of a public body: of course they should work together. Statutory undertakers will have a role because they have knowledge and views, but to give them the delegation of functions is quite a different matter. Therefore, my amendment would exclude statutory undertakers from the definition of public bodies used in the clause. I beg to move.
My Lords, the noble Baroness's amendment is entirely understandable. I hope to reassure her on this. I agree entirely with her that it is unlikely that it would be appropriate for these functions to be carried out by many statutory undertakers, particularly by the large number which are utility and transport providers. I want to put on record that we are not considering any delegation of marine planning functions to public bodies of that type. The issue that we have is that the definition of statutory undertaker in Clause 312, which points further to that definition given in the relevant terrestrial planning legislation—which the noble Baroness will know better than I do—is wider than simply the utility and transport companies. It includes,
"persons authorised by any enactment to carry on any ...water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking, or any undertaking for the supply of, or hydraulic power".
That rather wide definition could include a number of public bodies with functions relevant to marine planning, including the Environment Agency and some harbour authorities. While we are committed to delegating our marine planning functions in relation to the English inshore and offshore regions to the Marine Management Organisation, we should not restrict other plan authorities, whom we have considered in some detail in our earlier discussions, from delegating their marine planning functions to public bodies such as harbour authorities or the Environment Agency which happen to be statutory undertakers. I hope that I have reassured the noble Baroness sufficiently on that.
I turn to my Amendment 86, which reorganises the drafting of subsections (6) and (7) of this clause. Subsection (6) lists those functions of marine plan authorities which are excepted from the list of delegable functions and so cannot be delegated under this clause. However, many of the functions presently listed in subsection (6) are not, in fact, functions of marine plan authorities, but of the Secretary of State in his own capacity. These functions would not, therefore, be delegable functions to begin with and are more properly listed in subsection (7), along with other non-delegable functions of the Secretary of State. My speaking note says that the amendment is minor and technical and does not affect the powers of marine plan authorities to delegate their planning functions.
My Lords, I thought I would be tempting providence if I said, in opening, that Amendment 86 looked like a technical drafting amendment. I am full of admiration for the people who must be reading this Bill over and over again looking for matters such as this, to ensure that they are correct. I am reassured as to the Government's intentions; I accept that they will not be the only player in this, by any means. I am reassured by what the Minister had to say on my amendment. I beg leave to withdraw the amendment.
Amendment 85 withdrawn.
Moved by Lord Hunt of Kings Heath
86: Clause 53, page 27, line 27, leave out subsections (6) and (7) and insert—
"(6) The "excepted functions" are the following functions of a marine plan authority—
(a) deciding under paragraph 15 of Schedule 6 whether to publish a marine plan or any amendment of a marine plan;
(b) deciding under section 51 whether to withdraw a marine plan.
(7) No direction may be given under this section in respect of any of the following functions of the Secretary of State—
(a) deciding under paragraph 5 of Schedule 6 whether to give agreement to a statement of public participation;
(b) deciding under paragraph 7 of that Schedule whether to give agreement to a revised statement of public participation;
(c) deciding under paragraph 11 of that Schedule whether to give agreement to a consultation draft;
(d) deciding under paragraph 15 of that Schedule whether to give agreement to a marine plan;
(e) deciding under section 51 whether to withdraw agreement previously given under that paragraph to a marine plan."
Amendment 86 agreed.
Clause 56 : Decisions affected by marine policy documents
Amendments 87 to 90 not moved.
Moved by Lord Hunt of Kings Heath
91: Clause 56, page 29, line 20, leave out "relating to" and insert "in relation to"
Amendment 91 agreed.
Clause 57 : The appropriate marine policy documents
Amendments 91A to 91N
Moved by Lord Hunt of Kings Heath
91A: Clause 57, page 30, line 13, at end insert—
"( ) if a devolved policy authority has adopted the MPS, the devolved policy authority and any primary devolved authority related to it;"
91B: Clause 57, page 30, line 14, after "any" insert "non-departmental"
91C: Clause 57, page 30, line 16, after "any" insert "non-departmental"
91D: Clause 57, page 30, line 18, leave out paragraph (e)
91E: Clause 57, page 30, line 19, after "any" insert "non-departmental"
91F: Clause 57, page 30, line 19, after "out" insert "secondary"
91G: Clause 57, page 30, line 28, leave out subsections (7) and (8)
91H: Clause 57, page 31, line 3, at end insert—
91J: Clause 57, page 31, leave out lines 4 and 5
91K: Clause 57, page 31, line 13, at end insert—
"non-departmental public authority" means any public authority other than—
(a) a Minister of the Crown or government department;
(b) the Scottish Ministers;
(c) the Welsh Ministers, the First Minister or the Counsel General;
(d) a Northern Ireland Minister or a Northern Ireland department;
"Northern Ireland Minister"—
(a) has the same meaning as in the Northern Ireland Act 1998 (c. 47), but
(b) includes a reference to the First Minister and the deputy First Minister, within the meaning of that Act;"
91L: Clause 57, page 31, leave out lines 14 to 30
91M: Clause 57, page 31, line 30, at end insert—
""primary devolved authority", in relation to a devolved policy authority, means—
(a) in the case of the Welsh Ministers, the First Minister or the Counsel General;
(b) in the case of the Department of the Environment in Northern Ireland, a Northern Ireland Minister or a Northern Ireland department;
"retained functions" is defined for the purposes of this Part in section (Meaning of "retained functions" etc);
"secondary devolved functions" has the same meaning as in section (Meaning of "retained functions" etc)."
91N: After Clause 57, insert the following new Clause—
"Meaning of "retained functions" etc
(1) For the purposes of this Part, the functions of a public authority which are "retained functions" as respects any marine planning region are those functions of the public authority which, as respects that region, are not any of the following—
(a) Scottish Ministerial functions (see subsection (2));
(b) Welsh Ministerial functions (see subsection (2));
(c) Northern Ireland government functions (see subsection (2));
(d) secondary devolved functions (see subsection (3));
(e) relevant ancillary functions (see subsection (5)).
(2) In this section—
"Northern Ireland government functions" means—
(a) any functions exercisable by a Northern Ireland Minister or a Northern Ireland department, other than joint functions and concurrent functions (see subsection (9));
(b) any concurrent functions, so far as exercised by a Northern Ireland Minister or a Northern Ireland department;
(c) the function exercised by a Northern Ireland Minister or a Northern Ireland department when exercising a joint function;
"Scottish Ministerial functions" means—
(a) any functions exercisable by the Scottish Ministers, other than joint functions and concurrent functions;
(b) any concurrent functions, so far as exercised by the Scottish Ministers;
(c) the function exercised by the Scottish Ministers when exercising a joint function;
"Welsh Ministerial functions" means—
(a) any functions exercisable by the Welsh Ministers, the First Minister or the Counsel General, other than joint functions and concurrent functions;
(b) any concurrent functions, so far as exercised by the Welsh Ministers, the First Minister or the Counsel General;
(c) the function exercised by the Welsh Ministers, the First Minister or the Counsel General when exercising a joint function.
(3) "Secondary devolved functions" means—
(a) as respects the Scottish inshore region or the Scottish offshore region, any secondary devolved Scottish functions;
(b) as respects the Welsh inshore region or the Welsh offshore region, any secondary devolved Welsh functions;
(c) as respects the Northern Ireland inshore region or the Northern Ireland offshore region, any secondary devolved Northern Ireland functions.
See subsection (4) for the definition of each of those descriptions of secondary devolved functions.
(4) In this section—
"secondary devolved Northern Ireland functions" means any of the following—
(a) any functions exercisable by a Northern Ireland non-departmental public authority;
(b) any functions exercisable by any other non-departmental public authority, so far as relating to transferred or reserved matters (within the meaning of the Northern Ireland Act 1998 (c. 47));
"secondary devolved Scottish functions" means any of the following—
(a) any functions exercisable by a Scottish non-departmental public authority;
(b) any functions exercisable by any other non-departmental public authority, so far as not relating to reserved matters (within the meaning of the Scotland Act 1998 (c. 46));
"secondary devolved Welsh functions" means any of the following—
(a) any functions exercisable by a Welsh non-departmental public authority;
(b) any functions conferred or imposed on a non-departmental public authority by or under a Measure or Act of the National Assembly for Wales;
(c) any functions exercisable by a non-departmental public authority, so far as relating to matters within the legislative competence of the National Assembly for Wales; but the definitions in this subsection are subject to subsection (6) (which excludes certain functions in relation to which functions are exercisable by a Minister of the Crown or government department).
(5) "Relevant ancillary functions" means any functions exercisable by a non-departmental public authority in relation to any of the following—
(a) a Scottish Ministerial function;
(b) a Welsh Ministerial function;
(c) a Northern Ireland government function;
(d) a secondary devolved function; but this subsection is subject to subsection (6).
(6) Where functions are exercisable by a Minister of the Crown or government department in relation to a function of a non-departmental public authority, the function of the non-departmental public authority is not—
(a) a secondary devolved Scottish function;
(b) a secondary devolved Welsh function;
(c) a secondary devolved Northern Ireland function;
(d) a relevant ancillary function; but this subsection is subject to subsection (7).
(7) Functions are not to be regarded as exercisable by a Minister of the Crown or government department in relation to functions of a non-departmental public authority merely because—
(a) the agreement of a Minister of the Crown or government department is required to the exercise of a function of the non-departmental public authority;
(b) a Minister of the Crown or government department must be consulted by the non-departmental public authority, or by a primary devolved authority, about the exercise of a function of the non-departmental public authority;
(c) a Minister of the Crown or government department may exercise functions falling within subsection (8) in relation to functions of the non-departmental public authority.
(8) The functions mentioned in subsection (7)(c) are—
(a) functions under section 2(2) of the European Communities Act 1972 (c. 68);
(b) functions by virtue of section 57(1) of the Scotland Act 1998 (c. 46) (Community obligations) or under section 58 of that Act (international obligations);
(c) functions under section 26 or 27 of the Northern Ireland Act 1998 (c. 47) (international obligations and quotas for international obligations);
(d) functions by virtue of section 80(3) of, or paragraph 5 of Schedule 3 to, the Government of Wales Act 2006 (c. 32) (Community obligations) or under section 82 of that Act (international obligations etc);
(e) functions under section 152 of that Act (intervention in case of functions relating to water etc).
(9) In this section—
"concurrent function" means a function exercisable concurrently with a Minister of the Crown or government department;
"Counsel General" means the Counsel General to the Welsh Assembly Government;
"devolved policy authority" means—
(a) the Scottish Ministers;
(b) the Welsh Ministers;
(c) the Department of the Environment in Northern Ireland;
"First Minister" has the same meaning as in the Government of Wales Act 2006 (c. 32);
"joint function" means a function exercisable jointly with a Minister of the Crown or government department;
"non-departmental public authority" has the same meaning as in section 57;
"Northern Ireland Minister"—
(a) has the same meaning as in the Northern Ireland Act 1998 (c. 47), but
(b) includes a reference to the First Minister and the deputy First Minister, within the meaning of that Act;
"Northern Ireland non-departmental public authority" means any non-departmental public authority so far as exercising functions in relation to which functions are exercisable by a Northern Ireland Minister or a Northern Ireland department;
"primary devolved authority" means any of the following—
(a) the Scottish Ministers;
(b) the Welsh Ministers, the First Minister or the Counsel General;
(c) a Northern Ireland Minister or a Northern Ireland department;
"Scottish non-departmental public authority" means any non-departmental public authority so far as exercising functions in relation to which functions are exercisable by the Scottish Ministers;
"Welsh non-departmental public authority" means any non-departmental public authority so far as exercising functions in relation to which functions are exercisable by the Welsh Ministers, the First Minister or the Counsel General."
Amendments 91A to 91N agreed.
Clause 58 : Monitoring of, and periodical reporting on, implementation
Amendments 92 to 97
Moved by Lord Hunt of Kings Heath
92: Clause 58, page 31, line 32, at end insert—
"( ) This section makes provision for and in connection with imposing the following duties on a marine plan authority—
(a) where it has prepared and adopted a marine plan, a duty to keep the matters specified in subsection (2) under review for so long as the marine plan is in effect (see subsections (1) and (2));
(b) in any such case, a duty to prepare and publish, and lay a copy of, a report on those matters at intervals of not more than 3 years (see subsections (3) to (7));
(c) in any case, a duty to prepare, and lay, at intervals of not more than 6 years ending before 1st January 2030, a report on—
(i) any marine plans it has prepared and adopted,
(ii) its intentions for their amendment, and
(iii) its intentions for the preparation and adoption of any further marine plans,
(see subsections (8) to (11))."
93: Clause 58, page 31, line 44, at end insert—
"( ) Where the marine plan authority publishes a report under subsection (3), the authority must lay a copy of the report before the appropriate legislature."
94: Clause 58, page 32, line 3, after "report" insert "under subsection (3)"
95: Clause 58, page 32, line 5, leave out "report, successive reports" and insert "report under subsection (3), successive reports under that subsection"
96: Clause 58, page 32, line 14, at end insert—
"(8) Each marine plan authority must from time to time prepare and lay before the appropriate legislature a report which—
(a) identifies any marine plans which the authority has prepared and adopted;
(b) describes any intentions the authority may have for the amendment of any marine plans which it has prepared and adopted;
(c) describes any intentions the authority may have for the preparation and adoption of any further marine plans.
(9) The first report prepared under subsection (8) by each marine plan authority must be laid before the appropriate legislature before the expiration of the period of 6 years beginning with the date of the passing of this Act.
(10) After a marine plan authority has prepared and laid its first report under subsection (8), it must prepare and lay successive reports under that subsection at intervals of no more than 6 years following the laying of the previous report.
(11) No report under subsection (8) is required to be laid in a case where the period of 6 years following the laying of the previous report ends on or after 1st January 2030."
97: Clause 58, page 32, line 14, at end insert—
"( ) For the purposes of this section, the "appropriate legislature" is—
(a) in the case of the Secretary of State, Parliament;
(b) in the case of the Scottish Ministers, the Scottish Parliament;
(c) in the case of the Welsh Ministers, the National Assembly for Wales;
(d) in the case of the Department of the Environment in Northern Ireland, the Northern Ireland Assembly."
Amendments 92 to 97 agreed.
Clause 59 : Validity of marine policy statements and marine plans
Moved by Lord Wallace of Tankerness
98: Clause 59, page 32, line 38, at end insert—
"( ) the Court of Session, if the relevant document is a marine plan or an amendment of a marine plan for an area within the Scottish offshore plan;"
My Lords, I do not wish to detain the House long on this. I wish to pursue again with the Minister a point which I raised in Committee which relates to the courts' jurisdiction if a person should wish to challenge relevant documents in relation to the Scottish offshore region. As the Bill stands, it would be possible to raise an action in either the Court of Session or the High Court. I cannot understand, and I am not aware of a precedent, why a matter relating exclusively to Scottish waters—almost certainly an action where the respondent would be Scottish Ministers—would find its way to the High Court when the Court of Session is perfectly competent, both legally and actually, to deal with the matter.
I remember when this was dealt with before; the Minister seemed to indicate that it was part of the general overall agreement with Scottish Ministers as to how the Bill would proceed. It struck me as very interesting that Ministers from the Scottish National Party should concede the jurisdiction of the Court of Session to the High Court. We perhaps need a slightly more detailed explanation than that one, which stretches credibility. Nevertheless, stranger things have happened.
If a matter relates exclusively to the Scottish offshore region, where the respondents, almost inevitably, would be Scottish Ministers, I cannot see how the High Court could in any way be an appropriate court for that to be heard. By all means, if the matter relates to the English inshore or offshore region, the High Court seems the obvious place. Indeed, if I understand the Bill, such a matter could end up in the Court of Session, which seems to me to be as perverse in the opposite direction.
It is quite a simple point, but an important one. Through 300 years since the Act of Union, we have jealously guarded our distinctive legal system and we do not, even by some means not intended for that purpose, want to see it eroded. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Wallace, for moving this amendment. We are all anxious that the legislation should be proper for the devolved powers under the Bill and this reflects some of the worries of the Law Society of Scotland. I wonder again whether this part of the Bill applies to Scotland—whether Scotland has to be included. It would appear that the Government's view has been that the phrase,
"any superior court in the United Kingdom" should be sufficient. The other side of the coin is whether there are courts in Wales or Northern Ireland that would serve in this context. I am very interested to hear the Minister's reply.
My Lords, I am sorry that the noble Lord, Lord Wallace, thinks that I was stretching credulity when we discussed this in Committee. I am ever-hopeful about our relations with the Scottish Parliament and Executive, but let me try again to respond to what is clearly a very interesting amendment. It looks reasonable, but I have taken further advice since Committee, and the amendment has serious implications that might set a legal precedent, which is enough to get my advisers worried. We are not aware of any precedent in post-devolution legislation which limits the possibility of raising an action against Scottish Ministers in the Court of Session. Even the Scotland Act and the Human Rights Act do not contain such a provision and leave the question open to the normal rules of jurisdiction. The noble Lord will understand that we do not want to take a different approach, in principle, in the Bill.
Clause 59(6)(a) relates only to the English inshore and the Welsh inshore region. There is a mirror provision in the Marine (Scotland) Bill for the Scottish inshore region. As regards Clause 59(6)(b), its sole purpose is to provide that challenges relating to decisions about the offshore regions are brought in superior courts. Which superior court it is brought in will be determined by the normal rules of jurisdiction. In other words, an applicant can go to any court that comes within the description of a superior court and the court itself can decide whether it has jurisdiction or not. The Bill does not require matters to be referred to the High Court; there is no preference for the English or Welsh system over the Scottish courts. In practice, most, if not all actions that may be raised against a marine plan or the amendment of a marine plan, for an area within the Scottish offshore region, will be heard in the Court of Session. However, UK businesses operating in UK waters offshore from Scotland should, we believe, have the right to bring a case in the High Court if they consider that to be the most appropriate court.
As the clause is drafted, it is left to the courts to determine where it is most appropriate for an application to be heard. I understand that that follows the normal rules of jurisdiction. Our expectation is that cases related to plans in the Scottish offshore region will go to the Court of Session and it is most likely that the High Court would decline jurisdiction over purely Scottish cases. Cases involving both UK and Scottish Ministers may be more complicated, because they relate to the Secretary of State's actions in agreeing to the plan in the Scottish offshore region, but there is nothing in the Bill to prevent those cases being heard in the Court of Session and no court is set out as more important than another. The courts themselves will be able to decide each application on its merits and, of course, Ministers could apply to a court to decline jurisdiction if they considered the decision inappropriate. Put simply, it is better that cases are determined on a pragmatic case-by-case basis than by reference to rigid rules. However, our major concern is using this Bill to depart from current practice and precedent.
My Lords, I am grateful for that explanation, which is slightly fuller than the one we got in Committee. I am still not sure what the precedents are for cases which involve Scottish Ministers and Acts relating to Scotland, either territorially or at sea, being heard in the High Court. However, I take the Minister's point that there could be circumstances in which the Secretary of State might be involved, and the action could involve other marine plans, where there might be some sense in bringing them all together in one court.
I will carefully consider what the Minister has said. It is not an issue that I want to push at the moment, but we must always be rather careful. I think that it is probably a precedent in one direction, and he sees it as a precedent in another. However, that is probably sufficient for us to go back and look at this again. I beg leave to withdraw the amendment.
Amendment 98 withdrawn.
Amendment 99 not moved.
Moved by Lord Hunt of Kings Heath
99A: Clause 61, page 34, line 19, leave out "57" and insert "(Meaning of "retained functions" etc)"
Amendment 99A agreed.
Clause 65 : Notice of Applications
Moved by Lord Greaves
99B: Clause 65, page 37, line 10, at end insert—
"(2A) In subsection (2) "persons likely to be interested" includes each principal local authority whose area includes or is adjacent to a location or an area or part of an area that is the subject of the application."
My Lords, we are now leaving Part 3, on planning, and moving on to Part 4, on licensing, so we are making some progress on the Bill. I pay tribute and give my thanks to my noble friend Lady Hamwee for the tremendous work she did, with her great expertise in terrestrial planning, on the planning parts of the Bill. It has been a great help to me and to our party and I believe that it has helped the House. The Government's positive response on planning issues and some of the government amendments has also been very helpful indeed. I thank them for that.
We move on to licensing. The purpose of this amendment is specifically to insert principal local authorities as consultees on marine licensing applications. In Committee I moved a rather complex amendment setting out what principal local authorities were and so on. We all know what they are; they are county councils, district and borough councils and unitary authorities. The Government said in Committee that they did not want lists to appear in this part of the Bill. I have specifically tabled this amendment so that it is not a list but a specific reference to local authorities. In a moment I shall explain why it should be in the Bill.
This amendment is not as wide as the amendments I moved in Committee, which concerned a general duty to consult local authorities about everything. The Government not unreasonably said that that was too wide and that specific local authorities that were specifically relevant to particular applications would obviously be consulted. The amendment would apply to relevant applications in the area of a local authority or adjacent to it.
We return to the relationship of the MMO and the new marine regulatory system with territorial decision-makers, with coastal communities—which we discussed in some detail last time—and, particularly, with local authorities. It has been said that we do not want to put any further administrative burdens on the MMO. I do not believe that we are doing that at all by putting local authorities on the face of the Bill if the Government are saying that the relevant authorities will get consulted in practice anyhow. I suspect that that is what the Minister is about to tell me. The marine licensing functions include planning functions and a range of other functions that could impact on what I would call local authority interests—the decision-making processes of local authorities representing their local communities.
I had another look at this interesting document called A Strategy for Promoting an Integrated Approach to the Management of Coastal Areas in England, which we received some time ago, just to see what the involvement of local authorities is within that strategy. I have to say that I was disappointed. Under "Marine Licensing" there is a little flow chart, a simple one that I can understand, with "Licensing decisions" in the middle. The feed-in to that is "Marine Policy Statement", "National Policy Statements"—which I find slightly interesting but will not pursue now—"Marine Plan" and "Stakeholders", which has now forced me to say that word. I assume that local authorities are simply included among the stakeholders. I think that that is very unsatisfactory. As for marine licensing, as far as I can see, there is no other specific reference in this document to "local authorities", which seems to be a mistake.
On page 25 of the document there is an interesting panel setting out what it calls a "desk study" to explore the practical implications of proposals for marine planning licensing and the Marine Management Organisation in coastal areas. The word "licensing" does not appear here but the word "planning" appears several times. It says:
"A number of key messages emerged from both case studies"— there was one in the Thames estuary and one in south-west England, or relating to those places—
"including stakeholder engagement across all levels from as early as possible was very important".
Fair enough. One assumes that local authorities might be included there. The third bullet point says that,
"participants believed that marine planning would improve integration between decision-making bodies on land and at sea, and could provide coastal decision makers with the certainty they needed to make more informed decisions".
In a further flow chart it defines local authorities as being decision-makers—so there is something there. Then, it says that,
"the planning process should be set out clearly, be transparent and democratically accountable".
I am not quite sure what "democratically accountable" means for the marine environment and the issuing of marine licences, including those on planning matters, unless it includes the democratic representatives of the coastal areas; in other words, the principal local authorities.
On page 26, we have an astonishingly complicated flow diagram which I have great difficulty understanding. I could not work out whether it reminded me of one of those integrated circuit boards that I never understood or whether it is a complicated version of the tube map. It has 23 different types of organisations, statements or whatever in it, with arrows going in all sorts of directions. It includes one blob labelled "Local authority", with an asterisk on it saying that this "indicates decision-making organisation". However, the local authority and the local strategic partnership and one or two things connected with it seem to be in a little whirlpool—or perhaps it is an eddy—at the bottom of the chart, and not really related to its main functions. "Coastal stakeholders" all appear completely isolated at the bottom and only relate to the marine policy statement and plan and national policy statements. I do not quite understand how that works.
The impression I get from looking at that is that local authorities are not regarded as the very special and rather different bodies which I believe that they are. They are special and different for two reasons. First, they have a lot of statutory responsibilities which interact and overlap with those of the Marine Management Organisation. That is particularly the case in the inshore areas, especially along the foreshore and the coast itself. They include fairly obvious ones such as planning, plan-making, development control; economic development functions, which are ever more important among local authorities; highways and transport, tourism and recreation functions, which are crucial on the coast; and environmental responsibilities whether environmental health, food hygiene or litter, and other such amenity issues. There are other responsibilities which noble Lords will readily bring to mind. As they have these important statutory responsibilities which will be affected by the MMO's decisions, the Bill should state that local authorities are at the very least statutory consultees.
The second reason why local authorities are different is that they are democratically elected bodies representing the people who live along the coast. For that reason alone they ought to be set aside as something different from all the other consultees. It seems fairly clear to me that acceptable wording could be arrived at to do what I am asking to do. I ask the Government, at this late stage of the Bill in this House, nevertheless to consider this again. I beg to move.
My Lords, I support this amendment in its general objectives. It follows one moved in Committee by the noble Baroness, Lady Hamwee. In a subsequent debate we probed the degree to which local authorities were to be consulted on licence applications, and the noble Lord, Lord Greaves, has done so again today. Indeed, we believe that local authorities' participation in decision-making is highly desirable. I recollect that I came away from the previous debate assured by the Minister that this would be part of the procedure. I hope he can give us that assurance today.
My Lords, I was already quailing in front of the noble Lord, Lord Greaves, in his assertions on this amendment, which we did discuss in Committee. Obviously I did not give him sufficient assurances then. As he has now been joined by the noble Lord, Lord Taylor, I can feel the pressure of force majeure.
Clause 65 places on the licensing authority an obligation to publish, or require the applicant to publish, an application for a marine licence in a manner that is,
"best calculated to bring the application to the attention of any persons likely to be interested in it".
It is the Government's view that that would in all circumstances encompass local authorities whose areas are likely to be affected by the application without a specific reference in the Bill to do so. Other legislation uses exactly that phrase without further qualifying it in the way that the amendment seeks to do.
We think that that is the right approach and that is why we resisted the amendment in Committee. However, I have listened to the strength of feeling expressed by the two noble Lords who have spoken today and it is clear that the assurances we gave in Committee are not sufficient. Therefore, we will look further at this issue between now and Third Reading. On that basis, I hope that the noble Lord will think that he has pressed the Government far enough today.
My Lords, I was looking forward to a bit of exercise but the Minister has just persuaded me that we should not have it. I congratulate him on that and thank him for it. If the Government were to look at terrestrial legislation they would see that under planning legislation it is very often written down that appropriate planning authorities, for example, need to be consulted on planning applications. Indeed, parish councils have a right to be consulted on such applications. In the whole of the plan-making process there is a complex system of formal consultation which is set out in the legislation. I accept that we are talking about licences, but I suspect that if we looked at licensing legislation as well we might find that the same things applied. I am not an expert on that, but certainly planning legislation on planning applications, for example, clearly sets out that local authorities are statutory consultees if they are not the authority to which the application has been made. However, I heard what the Minister said and I thank him for it. I hope he can find a way of putting it in the Bill at Third Reading. As I say, local authorities are different in kind from all the other authorities that exist, because they are the democratically elected representatives of the local people. On that basis, I beg leave to withdraw the amendment.
Amendment 99B withdrawn.
Clause 71 : Exemptions specified by order
Moved by Lord Taylor of Holbeach
100: Clause 71, page 41, line 17, at end insert—
"( ) The appropriate licensing authority for an area may only issue an order under subsection (1) where that order does not compromise the requirements under section 66."
My Lords, I have tabled Amendment 100 in order to draw the Minister out a little further on something he said in Committee. Indeed, one hopes it will meet with similar success. He gave the impression that the power to make an exemption under Clause 71 was subject to the criteria under Clause 66; the appropriate authority has to have regard to protecting the environment and so on.
I would welcome a little more clarification on how that is to happen. The two chapters appear to have been drafted completely separately with no obvious crossover. Obviously, we would want to be certain that no exemptions are granted that would have a significant environmental impact. Clause 71 seems to give authorities the power to exempt a damaging activity on the quiet in the hope of avoiding having to register it and admit to the damage they had permitted.
Amendments 101 and 107 relate to the noting of exempted licences on the register. I understand that the Government are consulting on the matter, and quite rightly. They are concerned that planning a burden of registering activities that are exempted precisely because they are harmless and very small scale could place a disproportionate burden on some very small businesses.
While we would certainly not want to increase the regulatory burden and are very pleased at the harmonisation that is happening in the Bill, if exemptions are used irresponsibly by the appropriate authority, the register could end up with some very worrying holes.
Will there be any sort of assessment by the authority as to whether it would be wise to include an exempted activity on the register? It is not just the possibility of exempting environmentally damaging activities, which I covered in talking to my first amendment, it is also the possibility of exempting activities which would have an impact on another activity where it would be wise to keep tabs on what is happening in the environment.
I would welcome any reassurances the Minister can give us that exemptions will be used wisely and that there will be some check on their abuse. I beg to move.
My Lords, the noble Lord, Lord Taylor, did mention the drawbacks concerned with some minor activities and I would like to reinforce that point.
I think his amendments are too widely drawn in many ways. There are day-to-day activities that go on. For instance, Trinity House might need to lay buoys or ships might need to anchor and other things like that. They should not have to be put on to a register every time they happen.
My Lords, I am grateful to the noble Lord for raising these issues again.
On Amendment 100, we certainly agree that it is important that in the use of the exemption-making power under Clause 71 the licensing authority must adhere to the requirements outlined in Clause 66. They are factors that should be taken into account when determining what activities are appropriate to provide an exemption for, and whether that exemption is a blanket exemption or is to be given conditionally. It is reasonable to expect the licensing authorities to use the same fundamental principles that will be used to determine the impact of individual licence applications when making decisions on what activities are appropriate to be carried out without the need for a licence. We do not believe that there is a problem in relation to the Bill, but I have listened to the noble Lord and am prepared to give this matter further consideration. If I believe that we need to make a change, I will bring back an amendment at Third Reading to deal with the issue that the noble Lord has raised.
So far as concerns Amendments 101 and 107, I hope that I can give reassurance in the way that the noble Lord has suggested. Placing exempted activities on the licensing register where appropriate provides transparency for those operating in the marine environment and allows each licensing authority to take into account the potential cumulative effects of both exempt and licensed activities undertaken in its area. We would expect many exempted activities to be registered in this way, and we have provided a clear mechanism in the Bill for that to happen.
As I said in Committee, our concern is that a blanket requirement in the Bill would mean that some extremely minor, low-risk activities which would be exempted by order and would have a negligible impact on the marine environment would have to be listed. Examples of the kinds of activities that might fall into this category are already listed in the Food and Environment Protection Act 1985 (FEPA) exemptions order and the Deposits in the Sea (Exemptions) Order 1985. I think that it is a question of proportionality. Would it be proportionate for those launching a vessel, dropping an anchor in port or, as the noble Lord, Lord Greenway, suggested, depositing a buoy around a hazard to be under a statutory duty to notify the licensing authority each time that they carried out such an activity? We would be concerned about significant and unnecessary additional burdens being placed on many industries, not least the fishing and shipping industries. Our approach to using the exemption orders will achieve the same aims that the amendments are striving for—the ability to monitor cumulative impacts and ensure protection of the environment—but without the unnecessary additional burdens on already challenged industries.
The public consultation on the exemptions order that we are soon to launch will canvass public views on whether each activity that we propose to exempt should be required to be notified to the licensing authority and then be placed on the licensing register. We would prefer to leave some discretion until we have seen the outcome of that public consultation. However, I reassure the noble Lord that our clear intent is to ensure that we can monitor activities which may have a cumulative impact on the environment.
The noble Lord asked whether the exemptions would be used in an inappropriate way, but of course that is not our intention. I hope that I have been able to give him the reassurance that he requires.
My Lords, I thank the Minister for that response and particularly for his very positive reply on Amendment 100. I hope that it will be possible to tie in the two principal clauses to make the matter clearer and indeed to make the Government's intention clear in the Bill.
I understand the Minister's argument regarding exemptions. Indeed, the noble Lord, Lord Greenway, reinforced the need to avoid pettifogging, bureaucratic processes. However, somehow or another, we need to find a way of ensuring that repeated activity can be properly monitored so that environmental damage can be noted. If that is the purpose of the consultation, we are very happy, and I beg leave to withdraw the amendment.
Amendment 100 withdrawn.
Amendment 101 not moved.
Clause 73 : Dredging in the Scottish zone
Moved by Lord Davies of Oldham
102: Clause 73, page 42, line 16, leave out from "by" to end of line 17 and insert "the Scottish Ministers"
Amendment 108 has been tabled in response to the eloquent case made in Committee by the noble Lord, Lord Tyler. I was going to lavish great praise on him from this Dispatch Box today but, as he has withdrawn to other pursuits, he will have to be content with the fact that the Government are responding to the case that he made. I have no doubt that the noble Lord, Lord Greaves, will carry back the good news as though it came from Ghent to Aix.
In Committee, the noble Lord, Lord Tyler, sought to change the test that the licensing authority would apply when deciding whether information pertaining to a licence application should be withheld from the licensing register. The wording suggested by the noble Lord was that used in the Environmental Information Regulations 2004, which he commended to the Committee. It would have provided that the disclosure of information could be withheld from the register only to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality was provided by law to protect a legitimate economic interest.
We revisited the wording used in Clause 98(5)(b) and, in the light of the arguments presented by the noble Lord, Lord Tyler, I have now tabled Amendment 108. This amendment would replace the test currently in the Bill with wording equivalent to that in the Environmental Information Regulations 2004, which the noble Lord brought to our attention.
Amendment 103B—the other substantive amendment in this group—removes the requirement that appeals against monetary penalties issued by Scottish Ministers in relation to licensing breaches in the Scottish offshore region must be directed to either the First-tier Tribunal or another tribunal. This change is being made at the request of the Scottish Executive and will enable determination of what is considered to be the appropriate appellate body. I am sure that the House will see the advantage of complying with the Scottish Executive's request in these terms.
As I said, the other amendments in this group are all minor and technical. Accordingly, I beg to move.
My Lords, on the second of the amendments that refer to Scottish matters, I think that I have just been given the nod by my noble friend Lord Wallace of Tankerness that it is okay and that we can let it through. On the first amendment, concerning confidentiality, I thank the Minister for looking at this matter again and for effectively doing what my noble friend Lord Tyler asked him to do. It is sensible and much clearer, and I think that it is better legislation.
Last week, I called in on the Grand Committee of the Political Parties and Elections Bill to keep an eye on my noble friend Lord Tyler, and I can say that he is doing sterling work. If the Government respond to his work there in the way that they have done here, then two Bills will be substantially improved. For the moment, I thank the Minister.
My Lords, from this Dispatch Box, I thank the Minister for explaining the very varied amendments in this group. They indicate the complexities of drafting legislation dealing with devolution, and I am very glad that the Minister's officials have caught the inconsistencies in the Bill and dealt with the necessary requirements.
Amendment 102 concerns dredging in the North Sea and, if I am not mistaken, we have now found the slot in which the Minister was going to bring forward something about coal. However, I am still slightly puzzled. Considering that in Section D3 under Schedule 5 to the Scotland Act, headed "Coal", deep and opencast coal mining and coal mining subsidence are reserved matters, why would opencast mining under the sea be a devolved matter, as stated earlier by the Minister? If that is true, when was this power devolved?
My Lords, the position is that if the opencast operation extracting coal from the surface of the seabed is taken out, it will need a marine licence. The authority to issue the marine licence in this inshore position is the Scottish authority. That is why we have the arrangements the way we have.
Amendment 102 agreed.
Clause 78: Submarine cables on the continental shelf
Moved by The Duke of Montrose
102A: Clause 78, page 47, line 6, leave out "must" and insert "may"
My Lords, I move this amendment on behalf of my noble friend Lord Taylor of Holbeach. Clause 78 takes us into a strange field. It says that "nothing in this Part"—which I take to mean the section on the permitting or granting of licences—
"applies to anything done in the course of laying or maintaining an offshore ... cable", and that the,
"authority must grant any application" once it comes inshore. What is the position currently if the Scottish Government exercise their power to place a wind farm or a wave generator in the offshore area and then want to lay a cable to the shore? Surely, at the moment, there are powers that allow that to happen.
The Minister will be aware that power over interconnectors was devolved to Scotland a little while ago. Does the definition of an interconnector not extend to the Scottish offshore area? How will this measure interact with that provision? The current wording of subsection (2) states that the authority,
"must grant any application ... for the carrying on of a licensable marine activity".
At this stage none of us can know what might be argued as falling within that description. The inshore area is likely to be an area with great sensitivity to disruption or degradation. Possible routes for the cable might be various within the area, or they might be better in a neighbouring area. So the phrase "must grant" is too rigid a power to place in the hands of what will really be the developer, let alone anyone else. I would be glad to hear the Minister defend this term.
My Lords, I hope I can reassure the noble Duke on this matter, although I readily agree with him that it is complex. It has to be read alongside the United Nations Convention on the Law of the Sea, which I think adds to the complexity of the general issue.
A coastal state's ability to regulate submarine cables is tightly defined by the UN Convention on the Law of the Sea. Articles 58, 77 and 79 of UNCLOS, as it is popularly known, do not permit a coastal state to delineate the route of cables or regulate operations associated with the freedom to lay or maintain cables, on the continental shelf or in an exclusive economic zone, that are not involved in the exploration or exploitation of natural resources, or connected to an artificial island, installation or other structure.
This means that there are four scenarios for which we have to cater. First, the rights given to the laying and maintaining of submarine cables under UNCLOS do not extend, as I said, to those cables that are involved in the exploration or exploitation of natural resources, or those connected to an artificial island, installation or other structure. To answer the noble Duke's question, these cables—such as those running to or from offshore wind farms—will require a marine licence, just like any other marine licensable activity, from the appropriate licensing authority as defined in Clause 110. This is regardless of whether they are in the territorial sea or the continental shelf.
The second scenario is that the rights given under UNCLOS do not extend to any cable that is entirely within the territorial sea. Again, these cables will require a marine licence from the appropriate authority as defined in Clause 110.
The third is that activities relating to the laying and maintaining of cables that are not connected with the exploration or exploitation of natural resources, or connected to an artificial island, installation or other structure, no part of which is in the territorial sea, are fully protected under UNCLOS and are therefore not licensable at all by coastal states. They tend to be telecommunications cables.
The fourth scenario is activities relating to the laying and maintaining of those cables that are not connected with the exploration or exploitation of natural resources, or connected to an artificial island, installation or other structure, but parts of which are in the territorial sea. These sets of cables are covered by the amendment to which the noble Duke has just spoken. Under UNCLOS, a coastal state cannot apply any regulatory control over that part of these cables that lies outside of the territorial sea.
For that part of these cables that lies inside the territorial sea, the coastal state can apply conditions to the laying of the cable for environmental protection reasons, but it cannot prevent the laying of that cable or regulate the maintenance of those cables. It is because of this restriction that Clause 78(2)(a) states that the licensing authority,
"must grant any application made to it", in respect of this part of those cables. Accepting the noble Duke's amendment would put us in breach of our obligations under the UN convention.
Electricity transmission cables will need a marine licence from the appropriate marine licensing authority, unless they are considered ancillary to a nationally significant infrastructure project. In that case, development consent from the IPC covering the main project will also cover the ancillary transmission cables and deem a marine licence to be granted if the development is in English territorial waters or offshore waters adjacent to England or Wales.
I hope that that is a full explanation. If the noble Duke wishes to consider it between now and Third Reading I would entirely understand, because of the complexity. We think that we have got it right in relation to the requirements under the UN convention.
My Lords, I am most grateful to the Minister for taking the trouble to give us a really extensive lesson in the whole question of undersea cables and all the ins and outs. It is interesting that the provision saying "must" is covered by various caveats under the United Nations law of the sea. I shall read very carefully what he had to say, and I beg leave to withdraw the amendment.
Amendment 102A withdrawn.
Clause 88: Remediation notice
Moved by Lord Hunt of Kings Heath
102B: Clause 88, page 52, line 31, after "remedial" insert "or compensatory"
My Lords, in moving Amendment 102B I shall speak also to the amendments grouped with it. When we debated Clauses 88 and 103 in Committee, there was concern that the clause as drafted would not enable the environment to be restored to the condition it had been in before the harm or interference had been caused. If this interpretation were correct, it would mean that the clauses would not achieve the intention that we had agreed was appropriate, which was that people should be made to put right the harms that they have caused. I agreed to look at these clauses and have tabled these amendments to ensure that harm or interference can be properly addressed.
Clause 88 enables the enforcement authority to issue a remediation notice to make someone remediate the harm they have caused where they have carried out a licensable activity and that activity has involved the commission of an offence under Clause 82(1). Perhaps the person breached the conditions of their licence and so damaged the environment, or perhaps they did not have a licence at all when they should have had.
Clause 103 gives the licensing authority power to take remedial action. It enables the authority to carry out any works, whether these are to protect the environment or human health, or to prevent interference with legitimate uses of the sea, where a licensable activity has been undertaken without a licence. This power already exists under Schedule 10 of the Food and Environment Protection Act.
My amendments amend Clause 88 to allow restoration of the environment under a remediation notice as well as providing for compensatory steps elsewhere if remediation at the site of harm itself is not reasonably practical. In my aims on enforcement under the Bill, I have been clear that enforcement action should be proportionate to the offence. Remediation notices should be proportionate to the scale of the harm to the environment, human health or interference to other legitimate uses of the sea. Financial gain by an offence should not be targeted by use of a remediation notice—other provisions under this part, such as variable monetary penalties, allow such gain to be addressed.
In some cases, the costs of restoration to the condition the environment was in prior to the harm or interference, even if technically possible, may be disproportionate to the benefits to be achieved. The ability to order remedial steps not directly connected to the harm itself reduces the likelihood of remediation notices being successfully challenged, on the basis that they are unreasonable according to all the circumstances of the case.
I have also tabled Amendments 108A and 108B to Clause 103. This clause uses the same sort of wording as in Clause 88 and suffers from a similar risk of being interpreted in a narrow sense—that the authority may only carry out works to protect what is left of the site, if anything, after the harm has been caused, rather than allowing it to put right the damage, or to prevent further harm, as intended.
In addition to being able to take steps to protect what is left of the site of damage, I want authorities to be able to carry out remedial works for the purpose of preventing or minimising, or remedying or mitigating, the effects of harm to the environment or human health, or interference with legitimate uses of the sea. Clearly, the ability to prevent further harm is a desirable objective, which, while it is unlikely to have frequent application, would be a noticeable gap in our provisions if we did not seek to plug it.
The power to take protective or preventive works may be needed at the site of damage or elsewhere, such as in an area to where contaminated material has been transported. However, I have not extended the power to take compensatory steps away from damaged sites. We anticipate that the enforcement authority will need to use the power under Clause 103 instead of Clause 88 only where there is a particular need to do so; for example, where the offender cannot be readily identified. The extended nature of Clause 88 as amended is not needed for Clause 103, since we would expect the enforcement authority to use Clause 103 to take positive steps to address the harm caused, rather than to seek to compensate for it.
I hope that noble Lords will accept that we have listened carefully to the debate in Committee and that my amendment meets the main points and concerns that were raised. I beg to move.
My Lords, I have tabled Amendment 103 in this group. Its purpose at the time I tabled it was to add the expression "or restoring" to Clause 88(9)(a). I am delighted to say that the Government have, as the Minister explained, tabled their own Amendment 103A which, except with one hesitation that I shall express in a moment, seems to cover the problem I had identified entirely. I am extremely grateful to the Minister for once again meeting our concern.
My hesitation may be dispelled immediately by the Minister if he gives the reply that I hope he will. In his Amendment 103A, he uses the expression, at the beginning of the relevant paragraph,
"restoring (whether in whole or in part) the condition of any place affected by that harm or interference to the condition, or a condition reasonably similar to the condition, in which the place would have been had the harm or interference not occurred".
My question is this. What do the words "whether in whole or in part" mean? Do they mean, as I hope the Minister will say, that if part of the relevant location in the ocean—and only part of it—is damaged, then, plainly, only part of it needs to be restored? If that is what the amendment means, I am entirely content. If, however, it might be said to mean that the obligation to restore might be reduced, because of some set of circumstances, to only a partial restoration, then the Minister's amendment does not do what I would have thought would have been appropriate.
My Lords, I am grateful to the noble Lord, Lord Kingsland. I entirely understand why he has raised that point with me. We would usually want the enforcement authority to be able to require steps aimed towards restoring the site of damage to the state it was in before the harm occurred. This might consist of measures such as the dredging or capping of unlicensed deposits.
One has to accept that taking such active steps to restore a condition at sea might not be possible; or it might cause further damage in taking the steps to do so; or it might be expensive relative to the gain achieved; or it might be a case where the best course of action is to rely on natural recovery rather than active steps for primary remediation. However, if the harm is such that the site itself cannot or should not be restored, should that mean that an offender cannot be made to make some redress for the harm they have caused? We do not think that that is right, which is why my amendments allow for remedial steps to be ordered at a place other than where the harm occurred.
In effect, these are steps taken at one place to compensate for damage caused in another. Such steps might be the installation of artificial reefs to make recompense for the damage to the seabed; or the case might be such that the authority wants the offender to make recompense the other way. I do not know whether that reassures the noble Lord, but the aim is to have a practical approach, starting from the premise that we want steps taken to restore the site of damage to the state it was in before the harm occurred. But there might be some circumstances where that is not entirely appropriate, and I aim to give those. That is why my amendment is worded as it is.
We have to develop enforcement guidance which will provide greater clarity for operators and allow for what, after all, is a developing area to be incorporated into practice. If the noble Lord, Lord Kingsland, is not satisfied, I would have to say to him that I believe that there is some room for a degree of flexibility here.
My Lords, before my noble friend comes back, might I clarify whether the Minister's amendments are saying, in other words, that if you cannot restore the site to its former state then some other action or area of the sea within that sort of area might be given as compensation for the damage done? I was not absolutely sure, because using "compensatory" suggests that if something is not perfect then it is nearly quid pro quo—that you give something else where it cannot be renewed as it formerly was. I do not think that is quite what my noble friend was after.
My Lords, with the leave of the House and also before the Minister comes back, I ask whether the amendment should not say what he has said to my noble friend Lord Kingsland. At the moment, it could be read as simply restoring in part the condition of any place, in which case people could get away with murder. I do not know what my noble friend will say, but I would have thought that the amendment should actually say what the Minister has said.
My Lords, I hesitate to try and bring the Minister to order, but we are on Report and we risk descending into a Committee sitting if we are not careful. I wonder if it would help if we all say what we want to, ask our questions and the Minister then replies. In no way do I suggest that the questions asked, for example by the noble Baroness, have not been extremely helpful. I want to briefly welcome this group of amendments on behalf of the Liberal Democrats—
My Lords, perhaps I can assist the House. The amendment from the noble Lord, Lord Kingsland, is grouped with the amendment that the Minister has moved, so we are discussing it. The noble Lord, Lord Kingsland, quite correctly spoke to his own amendment. It will be for the Minister to reply, when he winds up on his amendment, to the discussion that has been included on an amendment within this group. It will then be for the noble Lord, Lord Kingsland, to decide whether he wishes to move that amendment in its place on the Marshalled List.
My Lords, I was about to blush that I had it completely wrong just then, but I am very grateful to hear from the Lord Speaker that I was right—for once. We are grateful that the Government have looked again at the whole question of remediation, and for the briefing that they sent us. In an interesting discussion of this in Committee, two different considerations were put forward that, in a sense, pulled in opposite directions. One was that the Bill was too prescriptive and needed more flexibility, which is the compensation point; on the other hand, it was suggested that the Bill did not clearly set out the powers to do what is sensible in a particular situation. Quite clearly, there will be situations where complete restoration is the right thing to do, situations—quite small-scale, perhaps—where compensation is the sensible thing, and other circumstances where prevention is required. In many cases, if it is a large and complex site, there might be a mixture of those; the ability to carry out work on a different part of the seabed, as opposed to the ruined part, is also valuable.
The problem, of course, is that that will all depend on what happens in practice and the decisions being made. The enforcing authorities may, in future, be too stringent—probably not, in the view of some of us, yet other people might think that—but in other cases they may let people off lightly. All that we can do is to put forward sensible legislation for a framework that allows what is sensible to take place, then hope that the enforcing authorities do the right thing in each case. There is no way that we can tie up in legislation every situation that will occur; we have to set the framework and urge that what is right is carried out.
My specific question is: although it is not set out in the legislation, will the Government think of giving some kind of guidance to the enforcing authorities, particularly the MMO, on how to carry out that work? It is very important that this is done effectively and quite rigorously, right from the beginning. Having said that, I welcome these government amendments.
My Lords, I shall be brief in response to these government amendments, but I shall express my pleasure that the arguments in Committee from my noble friends Lord Cathcart and Lord Kingsland have borne such fruit. The Minister has brought back some comprehensive amendments to clarify what a remediation notice may involve, and to explicitly cover the question of remediation and restoration. Having said that, noble Lords have raised some interesting questions; indeed, my noble friend Lord Kingsland has raised some in speaking to his own amendment. I look forward to hearing the Minister's response to those.
My Lords, I apologise if I misled the House as to which stage we were on. It is always confusing when the Government move the first amendment in a group, which is why I got myself in a tangle there. I suspect that the noble Lord, Lord Kingsland, may speak to his amendment when we come to it in the Marshalled List; in that case I shall respond then, if I may, to the substantive point that he raises. The noble Baroness, Lady Byford, raised the question of whether what I had said in my original response to the noble Lord, Lord Kingsland, could be expressed in legislation. I thought that the noble Lord, Lord Greaves, really answered that point; it would be difficult to do so, which is why we need flexibility.
Clearly, the licensing authorities themselves will need to issue guidance. The noble Lord, Lord Greaves, then asked whether we, as the Government, should issue guidance to the MMO on that important issue. I take the noble Lord's point and will certainly consider it, because it is important that we understand what is meant on the circumstances in which remediation as opposed to restoration can take place, and the extent to which restoration is appropriate. I doubt whether we can go any further in legislative terms, but it would certainly be important for the MMO to understand the kind of issues that we are debating. Subject to our debate on the amendment proposed by the noble Lord, Lord Kingsland, then, I hope that my amendment finds favour with your Lordships.
Amendment 102B agreed.
Amendments 102C to 102G
Moved by Lord Hunt of Kings Heath
102C: Clause 88, page 52, line 34, after "remedial" insert "or compensatory"
102D: Clause 88, page 52, line 39, after ""remedial" insert "or compensatory"
102E: Clause 88, page 52, line 41, leave out paragraph (a)
102F: Clause 88, page 52, line 43, after "any" insert "one or more"
102G: Clause 88, page 52, line 43, at end insert "(whether or not the steps are to be taken at or near the place where the harm or interference mentioned in subsection (5) has been, is being, or is likely to be, caused or the activity in respect of which the notice is issued is or has been carried on)."
Amendments 102C to 102G agreed.
Moved by Lord Kingsland
103: Clause 88, page 52, line 45, after "protecting" insert "or restoring"
My Lords, I shall move Amendment 103. The initial debate on this amendment has, in a sense, already taken place with my speaking to it in the appropriate group on the list, so I can take what the Minister has said about it as read. In the light of what he said, I have two questions. The first refers to the capacity to make a physical restoration and the second to the cost of having to make it. I respectfully suggest to the Minister that the correct approach to the first question is to ask the following: can the damaged part of the sea be physically restored wholly, yes or no? If the answer is yes, I suggest that the correct approach, subject to the cost, is to undertake complete restoration. If it can be restored only in part, I suggest that the correct approach is the one which the Minister will find under the habitats directive, where the initial aim is to provide the appropriate mitigation or restoration within the damaged area, or the area which is likely to be damaged if the project goes ahead. If it is not possible to restore or to mitigate within the damaged area, there is a requirement in the habitats directive for the developer to find another part of the sea or the estuary where appropriate compensation can be made, so that within a reasonably well defined area of the sea what has been taken away by the developer in area A can be put back in area B. I would very much like the Minister to say that that is an appropriate parallel.
My more worrying concern is the passage of the Minister's speech referring to cost. He seemed to me to suggest that where an area is physically capable of being restored but the cost is exorbitant—whatever exorbitant means—there will be an obligation to restore it only in part. I hope that I have misunderstood the Minister. I perfectly understand that it might be said that where the cost of restoration was exorbitant, the decision-maker would give consideration to a proposal from a developer that he might make up for the part which is exorbitantly costly by providing an equivalent amount of environmental benefit elsewhere, in a sense, in conformity with what I said about the habitats directive. I would not be happy if the Minister simply says that, where the cost is exorbitant, nothing can be done. That seems to me to drive a coach and horses through the fundamental intention of the legislation so that all the principles which we set out at the beginning could be undermined by a diluted obligation on the wrongdoer to restore. I beg to move.
My Lords, I do not think there is any disagreement between myself and the noble Lord, Lord Kingsland. It is a matter of how this is best expressed in legislation. He mentioned the habitats directive and I refer him to the Environmental Damage (Prevention and Remediation) Regulations 2009, with which I am sure he is also very familiar. In those regulations, there is reference to what is called compensatory remediation. Perhaps I can give an example. If the offender has damaged a wetland breeding habitat for sea birds, we might want to specify as primary remediation that the offender takes certain steps to restore the site which is damaged. However, that may take some time to achieve and, in the mean time, the damaged site will not be available to bird life.
The Environmental Damage (Prevention and Remediation) Regulations 2009 require compensatory remediation to recognise that loss. Therefore, we might also require that while the primary remediation is taking place, the offender takes steps to create a breeding habitat elsewhere for the sea birds. An example of what the 2009 regulations term "complementary remediation" is that, if an offender has damaged an area altering the conditions so as to render it unsuitable for animals and plants that used to live there, the authority might require him to create an artificial habitat such as a reef elsewhere. That is why I do not think that there is any disagreement between myself and the noble Lord.
On resources, the point is that there may be a case—it is always risky giving examples—where the damage is slight but the expense is great. In those circumstances, I argue that there needs to be flexibility. I do not think that there is a reason for us to disagree. If the noble Lord is still not satisfied, I am content, without commitment, to consider the matter further before Third Reading, although I am not sure that is entirely necessary.
My Lords, as always, I am most grateful to the Minister for his helpful response to my remarks. I am reassured by much of what he has said. It would be useful if he could give some further thought to what has been said, not just by me but also by my noble friends Lady Byford and Lady Carnegy, who suggested that some help might be given by recognising, to a greater degree, the substance of what the noble Lord has said today. I do not want him to think that I am anything other than extremely grateful for the distance which the Government have already travelled in this respect.
My Lords, before the noble Lord sits down—I have always wanted to say that—I should say that I would be happy to do that. I have some considerable doubt about whether this can be done satisfactorily in terms of the legislation. Perhaps I may also take the point made by the noble Lord, Lord Greaves, about guidance to be given to the MMO. I am very happy to look at both issues.
My Lords, on that basis, I certainly beg leave to withdraw the amendment.
Amendment 103 withdrawn.
Moved by Lord Hunt of Kings Heath
103A: Clause 88, page 53, line 2, at end insert—
"(d) preventing or minimising, or remedying or mitigating the effects of, the harm or interference mentioned in subsection (5);
(e) restoring (whether in whole or in part) the condition of any place affected by that harm or interference to the condition, or a condition reasonably similar to the condition, in which the place would have been had the harm or interference not occurred;
(f) such purposes not falling within the preceding paragraphs as the enforcement authority considers appropriate in all the circumstances of the case."
Amendment 103A agreed.
Schedule 7 : Further provision about civil sanctions under Part 4
Moved by Lord Hunt of Kings Heath
103B: Schedule 7, page 240, line 5, at end insert—
"This sub-paragraph does not apply in the case of an order made by the Scottish Ministers."
Amendment 103B agreed.
Clause 95 : Delegation of functions relating to marine licensing
Amendments 104 to 106
Moved by Lord Hunt of Kings Heath
104: Clause 95, page 57, line 30, leave out paragraph (f)
105: Clause 95, page 57, line 35, leave out "and (5)(a)"
106: Clause 95, page 57, line 35, leave out from "register" to end of line 37
Amendments 104 to 106 agreed.
Clause 98 : Register
Amendment 107 not moved.
Moved by Lord Hunt of Kings Heath
108: Clause 98, page 59, line 31, leave out from "would" to end of line 32 and insert "adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate commercial interest."
Amendment 108 agreed.
Clause 103 : Power to take remedial action
Amendments 108A and 108B
Moved by Lord Hunt of Kings Heath
108A: Clause 103, page 62, line 17, leave out "the purpose of" and insert "any one or more of the following purposes"
108B: Clause 103, page 62, line 20, at end insert—
"(d) preventing or minimising, or remedying or mitigating the effects of, any harm or interference falling within subsection (3);
(e) restoring (whether in whole or in part) the condition of any place affected by any such harm or interference to the condition, or a condition reasonably similar to the condition, in which the place would have been had the harm or interference not occurred.
(3) The harm or interference mentioned in subsection (2)(d) and (e) is any of the following which has been, is being, or is likely to be, caused by the carrying on of the licensable marine activity—
(a) harm to the environment;
(b) harm to human health;
(c) interference with legitimate uses of the sea."
Amendments 108A and 108B agreed.
Schedule 8 : Licensing: minor and consequential amendments
Moved by Lord Hunt of Kings Heath
108C: Schedule 8, page 245, line 11, at end insert—
2A (1) In Schedule 3 to the Government of Wales Act 2006 (c. 32) (transfer etc of functions: further provisions) paragraph 4 (power to direct that certain functions exercisable by a Minister of the Crown are exercisable in relation to Welsh controlled waters only after consultation with the Welsh Ministers) is amended as follows.
(2) In sub-paragraph (1) (which extends the power conferred by section 58(1)(c) of that Act and specifies the enactments to which it applies)—
(a) omit paragraph (a) (Part 2 of the Food and Environment Protection Act 1985 (c. 48)), and
(b) after paragraph (b) insert—
"(c) the provisions of Parts 4 and 8 of the Marine and Coastal Access Act 2009 (marine licensing and enforcement) specified in sub-paragraph (1A), or
(d) regulations under section 70 of that Act (appeals),".
(3) After sub-paragraph (1) insert—
"(1A) The provisions of the Marine and Coastal Access Act 2009 mentioned in sub-paragraph (1)(c) are—
(a) sections 64(1) to (5), 66(1), (3) and (4), 68(1) to (3) and 69(1) to (3) (marine licences), so far as relating to items 1 to 6 and 11 to 13 in section 63(1) of that Act (licensable marine activities);
(b) section 98 (registers);
(c) sections 103 and 88(7)(c) (power to take remedial action, and power to require payment of sum representing reasonable expenses of taking such action);
(d) section 104 (power to test, and charge for testing, certain substances);
(e) sections 225(3) and 230(1)(c) (enforcement officers)."."
Amendment 108C agreed.
Schedule 9 : Licensing: transitional provision relating to Part 4
Amendments 109 and 109A
Moved by Lord Hunt of Kings Heath
109: Schedule 9, page 251, line 10, leave out sub-paragraphs (1) and (2) and insert—
"(1) This paragraph applies in any case where—
(a) immediately before the commencement date, an authority was required to maintain under section 14 of FEPA a register (the "FEPA register") containing information of any particular description in respect of any particular area,
(b) on that date the authority ceased to be required to maintain a register under that section containing information of that description in respect of that area, and
(c) as from that date the authority is required to maintain a register under section 98 of this Act (the "new register") containing information in respect of that area.
(2) In any such case, the authority must include in the new register any information falling within sub-paragraph (1)(a) that was contained (or was required to have been contained) in the FEPA register immediately before the commencement date."
109A: Schedule 9, page 253, line 43, at end insert—
"Direction under section 58(1)(c) of the Government of Wales Act 2006
13 (1) To the extent that they relate to the abandonment of an offshore installation, any functions exercisable under the provisions of this Part of this Act specified in sub-paragraph (2) are exercisable in relation to Welsh controlled waters by a Minister of the Crown only after consultation with the Welsh Ministers.
(2) The provisions are—
(a) sections 64(1) to (5), 66(1), (3) and (4), 68(1) to (3) and 69(1) to (3) (marine licences), so far as relating to items 1 to 6 and 11 to 13 in section 63(1) (licensable marine activities);
(b) section 103 (power to take remedial action).
(3) In this paragraph—
"offshore installation" has the meaning given by section 44 of the Petroleum Act 1998 (c. 17);
"Welsh controlled waters" has the same meaning as in paragraph 4 of Schedule 3 to the Government of Wales Act 2006 (c. 32).
(4) The provision made by the preceding provisions of this paragraph has effect as if it were a direction made by Order in Council under section 58(1)(c) of the Government of Wales Act 2006 (c. 32) made by virtue of paragraph 4(1)(c) of Schedule 3 to that Act and may accordingly be amended, modified or repealed by any such Order in Council."
Amendments 109 and 109A agreed.
Clause 112 : Interpretation of this Part
Moved by Lord Greenway
110: Clause 112, page 67, leave out lines 16 to 20 and insert—
"(a) which is registered in the United Kingdom,
(b) which falls within section 1(1)(d) of the Merchant Shipping Act 1995 (c. 21) (small ships), or
(c) which is exempt from registration under section 294 of that Act;"
My Lords, this is a small but important technical amendment dealing with the interpretation of the words "British vessel" in this part of the Bill. The Merchant Shipping Act 1995 draws a distinction between a British ship registered in the United Kingdom and those registered under the law of a British possession, including Bermuda, the Cayman Islands, Gibraltar and the Isle of Man.
Certain aspects of United Kingdom merchant shipping legislation can be applied to UK-registered vessels wherever they are and—in broad terms and consistent with international law under the United Nations Convention on the Law of the Sea—to other vessels when they are within the United Kingdom's jurisdiction. Vessels registered in British overseas possessions are subject to the laws of their respective Administrations when outside UK jurisdiction.
Clause 112, as drafted, refers to,
"a British ship within the meaning of the Merchant Shipping Act 1995"— but fails to address the distinction, important in exercising regulatory powers, scope and coverage, between a vessel registered in the United Kingdom and one registered in a British possession. This amendment, which links the British vessel to United Kingdom registration, will, I hope, correct the anomaly. I beg to move.
My Lords, I thank the noble Lord, Lord Greenway, for his amendment, which the Government are pleased to accept. It will effectively, as he says, remove vessels registered in British Overseas Territories from the need to obtain a marine licence from the Secretary of State when they are depositing, scuttling or incinerating in waters outside the UK marine licensing area. We have, as the noble Lord indicated, an obligation under international agreements to ensure that adequate environmental controls apply to British Overseas Territories and their vessels. However, the territories are already obliged, under the Environment Protection (Overseas Territories) Order 1988, made under the Food and Environment Protection Act 1985, to license vessels registered in their territory for depositing, incinerating or scuttling outside their waters. Therefore, needing a marine licence from the Secretary of State under the Bill would constitute dual licensing. I welcome the clarity that this amendment brings to the Bill and the licensing arrangements faced by vessels registered in overseas territories. I am therefore happy to accept the amendment.
My Lords, with this amendment we move back to what I think we agreed in Committee was, for many of us, at the heart of the Bill. This is the part that deals with marine conservation zones. I have brought this amendment back, first, because I believe that the terminology is, in itself very unhelpful in discussing what is meant by marine conservation zones. Secondly, the Government are still denying the MMO a vital tool in the box. I thank the Minister for sending the various pieces of draft Defra guidance around; it was very helpful. Having said that, it increased my fear that the terminology is mixed up here; it really should be better defined in the Bill.
In the beginning, when we talked about marine conservation zones, we were just talking about something that would improve dramatically the conservation effort in marine areas. There were some impassioned speeches, notably by the noble Lord, Lord Eden of Winton, in Committee. I will not rehearse all the reasons why we should have this strong effort towards conservation. However, there are zones in the Bill that can be designated as marine conservation zones at the moment, but all sorts of activities can still apply to take place within them. That is fine; there are many places where lots of activities may still be applicable. There may be one sort of fishing denied and another sort admitted. There may be no dredging at all. Recreational activities may be fine. There is a whole gamut of things.
However, then we come to those places that I think the noble Lord, Lord Taylor of Holbeach, referred to in Committee as "pristine". The Defra guidance now has a new word for it, which is "naturalness". These are places that really have not been disturbed at all. If you have a zone that really exhibits that, and which has lots of rare species and all or many of the other things that Defra has on its list, surely that place has a claim to being a highly protected marine zone, where it is pointless to apply for a licence because you simply should not be granted it. Any human activity that encroached on the place would spoil it. It should be in the MMO's power to designate such a zone straight away.
I think that there is still confusion around this subject. Defra's guidance, Delivering Marine Conservation Zones and Marine Protected Areas, refers to marine protected areas' benefits for fisheries. The place that it quotes, again and again throughout this—and under benefits for tourism—is the Lundy no-take zone. If there is one example of a highly protected area, this is it. You cannot extrapolate everything about marine conservation zones from one highly protected area. It would be terrific to achieve the objective of all our seas being as they are around Lundy. However, when the Government talk about designating marine conservation zones, it is not a realistic aim at this point to say that this is where they believe that they will be, even by 2020, let alone 2012.
Lundy is a particular place. There will be other places around the coast that scientific evidence will show should be a highly protected zone. That is why the Bill needs to give this tool to the MMO, so that it can say that most places that demonstrate good reasons and scientific evidence for having particular protection will simply be marine conservation zones, where licences can be applied for and may be granted if they will not be damaging. However, there will be a few special places that should have absolutely nothing granted that will damage their naturalness or pristineness at all. For example, around Lundy, you cannot even drop an anchor; you must attach to a buoy. I am interested to hear why the Government want to deny the MMO this one very important tool. It has been proved internationally. Every time that the benefits of highly protected areas are widely quoted, it is because they are very highly protected and there is no human activity in them.
The Wildlife Trusts produced a very attractive brochure, Marine Reserves, which covered what they had campaigned for. The section "Do marine reserves work?" mentions 160 of the world's most eminent marine experts assessing work and deciding that full protection is critical to achieve the full range of benefits. It highlighted that the last point is the important one. The full range of benefits may not always be possible for social or economic reasons, but where the science is driving you to say that an area deserves the full range of benefits, it deserves full protection.
I ask the Minister to accept that there is a difference in definition and that it is a waste of everybody's time to have people apply for licences and go through the whole bureaucratic process that they would for one sort of conservation zone; and to accept that there should be a few of these particularly special areas that are recognised by this one particular designation. I beg to move.
My Lords, I strongly agree with what my noble friend has just said in support of her amendment and I wish to comment on it, very briefly, from a Welsh perspective.
The Welsh Assembly Government have already confirmed that in Wales a marine conservation zone designation will be used to establish some highly protected sites and zones. Such sites have the greatest potential for delivering biodiversity and the example given by my noble friend of Lundy Island is outstanding. It is well known on both sides of the Severn estuary that, because of the no-take zone, the quality of the fish stocks and biodiversity in Lundy sets a good example throughout the whole of the British Isles. Indeed, I know examples of a similar kind in New Zealand which have produced similar quality results.
The Countryside Council for Wales, which advises the Welsh Assembly Government, believes it is particularly important for Wales that the Bill enables and supports the creation of highly protected zones in the way described in the amendment. I agree that the inclusion of highly protected zones would be a welcome improvement to the Bill. It would provide a benefit for the Welsh marine ecosystem and could be pursued throughout the waters around the United Kingdom.
My Lords, I support the amendment of the noble Baroness, Lady Miller of Chilthorne Domer. I used to be completely dubious about highly protected marine conservation zones. I was not convinced that it was necessary—this will be music to the Minister's ears—to have this provision in the Bill. A number of groups tried to persuade me otherwise and, of all the arguments I heard, one changed my mind considerably and I now believe that the Government should fulfil the commitment they made in their response to the Joint Committee report to include a reference to such sites in the Bill. They have not carried out that commitment.
The reason I was persuaded otherwise was rather bizarre. I, too, commend the very good book produced by the Wildlife Trust movement, but other groups spoke to me about this. We are still in the infancy of marine conservation science. We do not know very much about what goes on under the sea; we do not have good baseline information; and we do not know the true richness of our seas, particularly those closer to our coasts, or what they are capable of because we have not got a memory that goes back to a time when they were not quite heavily exploited, particularly by fisheries. So, unless we get some sites where economic activity is excluded—they do not need to be extensive—and the absolute requirement is that nature be allowed to bounce back to whatever level it naturally bounces back to, we will not know what the marine environment is capable of.
We all bang on about Lundy, but it is the only live experiment of that kind that we have had so far and it is not a particularly good one. But the richness, size and robustness of the marine ecosystem that was generated as a result of excluding fishing and lobster exploitation from that area should encourage the Minister to go back to the original intention in the Government's response to the Joint Committee and signal to the Secretary of State that some highly protected areas are desirable and should be in the Bill.
I am not exactly sure of the quotation—something about a sinner saved being worth more than anyone else—but I was a sinner. I did not believe in highly protected marine conservation zones; but now I do.
My Lords, I am tempted to start quoting from the Bible about the sinner that repenteth but, as there are no right reverend Prelates here to get it right for me, I shall not pursue it any further.
I want to say two or three very quick things about the amendment. First, generally, I thought my noble friend Lady Miller was a little dismissive about the bits of paper that the Government have sent round to us. I think that the latest mailing we have had from the Government on marine conservation zones is extremely helpful and shows how far and how quickly the thinking and work is progressing. We received the latest version of the draft strategy on Delivering Marine Conservation Zones and European Marine Sites and the draft guidance on Selection and Designation of Marine Conservation Zones (Note 1)—one in a series of how many, I wonder. The fact that we have received these in time for Report stage here and that they will be available before the whole of the debate in the House of Commons is extremely useful. Those who have obviously been putting in a large amount of work in producing all this documentation and those who are carrying out work on the ground and in the sea are to be commended.
Secondly, the Government seem to be implying in their briefings that there is not much difference between us. They are saying that there will be a spectrum of marine conservation zones—or perhaps a kaleidoscope of them—which will all have their own individual regimes, rules and regulations and will be different in each case. Some of them will be highly protected at one end and some will be protected for only one purpose at the other end. We understand that. However, the reason there should be a small number of special zones is partly symbolic and partly a declaration that there are some areas where, no matter what people put forward and what they argue, the answer is no. They are special areas, based on the science and on the facts, and are qualitatively different from all other zones, which will be bespoke in the sense that their regimes will vary based on what is in them.
There will be relatively few special places where the regime is absolute, and that is the difference of opinion between us. I think that difference will run to the end of the Bill, and I hope that the Government will find ways of moving on this. They say that they do not want a two-tier system; we are not talking about a two-tier system. Having a relatively few special areas will not in any way detract from whatever regime there may be in all the other areas. The argument that if you have these special areas everyone will think that it is open house to do anything they want anywhere else does not stand up at all.
My Lords, once again I cannot support the noble Baroness's amendment. I have not had the conversion that came fortuitously to the noble Baroness, Lady Young. Not for me the possibility of seeing this differently from my initial reaction.
I understand the concern of the noble Baroness, Lady Miller, that marine conservation zones should be, when appropriate, of suitable strength properly to protect the environment over which they are established. I also understand the important and often significantly underappreciated contribution that pristine areas, or areas of naturalness, can make to the overall ecosystem. I, too, hope that, in designating the network, the appropriate authority will have the will and power to impose the necessary restrictions over the features that we are seeking to conserve. Listening to the arguments presented by noble Lords only reinforced my view that within marine conservation zones will be many specific designations. Therefore, I still hold the view that I expressed in Committee: that establishing a two-tier system—as it would be if there were two different levels of designation—where the appropriate authority would have to weigh up whether a habitat was worthy of a higher status of protection would be counterproductive.
MCZs will, I hope, be flexible, targeted webs of different restrictions, changing over time for many reasons. Migratory habits, ever-improving scientific knowledge, the impact of global warming and even the recovery of some features will all make necessary the review of by-laws and planning decisions. Adding another arbitrary feature that would need to be changed would not add to the network but instead make it a little more cumbersome and unresponsive. My later amendment, to Clause 119, to tighten up the duty to designate a network, is my preferred way forward.
I hope that the Minister will reassure us that what the noble Baroness seeks in her amendment can happen anyway. There is, I presume, no top limit on the amount of restriction that the appropriate authority can impose on an area of sea. If the habitat is found to be so vulnerable and so valuable that it is decided that the only way to protect it is to prevent all activity in that area, that is, as I understand it, possible under the existing drafting.
My Lords, I am relieved that the noble Lord, Lord Taylor, has not strayed from the path of righteousness on this amendment. Having listened with great attention to this debate, I feel that there is no disagreement in principle between us. The Government fully understand the intent of the noble Baroness's amendment, but are concerned that it could have perverse consequences. I generally plead with the House to be very cautious about going down the two-tier route and causing confusion and difficulties in putting the legislation into practice. That, I think, is the argument between us.
I am glad that the benefit of the draft strategy, Delivering Marine Conservation Zones and European Marine Sites, has been acknowledged. I hope that it is helpful in highlighting the Government's aims and commitment to marine nature conservation. As I have said, I do not believe that there is disagreement between us on the principles. We believe that the powers in the Bill are broad enough in appropriate cases to protect marine conservation zones from all damaging human activities. I can assure the House that the Bill allows for this. We have heard mentioned a number of times the marine nature reserves at Lundy and, as the noble Baroness, Lady Miller, suggested, they are highly protected by anyone's standards. However, I cannot see how the Bill as it is currently drafted would in any way cause a reduction in those standards of protection.
Clause 113(1) states that the appropriate authority—for England, this is the Secretary of State—may designate marine conservation zones. It applies no restrictions on the power of the appropriate authority to set stringent restrictions. Clause 120(2)(c) refers to the requirement to report to Parliament and talks specifically of areas where licensable or extractive activities are prohibited. Licensing conditions can be set under Clause 68(3). They can be as stringent as necessary and they will come under the duty of public authorities in Clause 121 to best further or least hinder the conservation objectives of each marine conservation zone.
I accept, as the noble Baroness, Lady Young, said, that there is much scientific knowledge that we need to seek and understand in the years ahead. It is therefore very important that the flexibility exists for the restrictions to change over time. We accept that the levels of restriction required to achieve conservation objectives can change over time, and the Bill, as drafted, allows us to change the conditions. If because of the science it is necessary for further conditions to be set, there is nothing in the Bill to prevent it.
I come to the two-tier approach. As I have said, we have deliberately designed the marine conservation zones as a flexible mechanism that can be tailored to deliver the precise level of protection needed by the features of each individual site. We think that a two-tier approach is not only unnecessary but could undermine the flexibility which is fundamental to our vision for marine conservation zones.
As I have said already, we have debated on many occasions the complexity of the marine environment, how our understanding of it is still developing and how our seas are changing in the face of climate change and other factors. Each new scientific study reveals more of the complexities of the living environment in our seas. The dynamic nature of the marine environment means that the levels of protection for individual sites will need to change over time. We therefore need flexibility. Noble Lords should not be concerned that such flexibility will mean that, where we need high protection and very stringent conditions, those conditions will not be applied, because they can be and will be.
The problem with the two-tier approach is, first, bureaucracy, where the level of protection for marine conservation needs to change in the light of new information. A two-tier approach would require all kinds of processes to enable a zone to be designated in the way that the noble Baroness's amendment envisages, as opposed to what might be called an "ordinary" marine conservation zone.
Moreover, the two-tier approach does not fit comfortably with the fact that there may need to be different levels of protection within the same site, either at different times of the year or in different parts of the site. The noble Baroness said that if one had a highly protected zone, as in her amendment, it would make it clear to potential applicants for licences that they would have very little chance of success, thereby creating greater certainty. However, I come back to the point raised by the noble Lord, Lord Taylor, that it could also cause a lot of confusion. There is a risk of the lower designation of marine conservation zone being taken to imply that the zone has less conservation value. That is not the case: these zones will be as vital to our network as zones with the highest level of protection. There is a real danger that ordinary marine conservation zones—or lower marine conservation zones, as I describe them—would receive a lower level of legal protection. That would be a problem.
I feel very strongly about this and I know that the noble Baroness does, too. I assure her that nothing in the Bill prevents an MCZ being designated with the kind of conditions that she wishes to see. It is a genuine concern that her well meant amendment could lead to perverse incentives. Again, the disagreement is not on principle, but simply on the impact that her amendment would have.
My Lords, I warmly thank my noble friend Lord Livsey of Talgarth. His comments about Wales will be the shining example that shows the Government what a trick they are missing here. I am grateful to the noble Baroness, Lady Young of Old Scone, because a conversion is probably worth as much as the huge number of us who already thought as we did. She is absolutely right about the evidence of nature bouncing back; that is a good way of putting it.
My noble friend Lord Greaves, who supported me, seemed to think that I was dismissive of Defra's guidance; and perhaps I did not say enough about it. It was extremely useful in spelling out the different categories of ecological significance—high natural and biological diversity, representivity, sensitivity, naturalness and so on—because this gave us a flavour of how Defra sees a marine conservation zone working.
I was extremely disappointed when those on the Conservative Front Bench said that they would not support this. They said that it would establish a two-tier system and would be counterproductive. However, in the terrestrial area there are many protective tiers, such as SSSIs and AONBs, that protect the landscape. National parks protect social activities within a special landscape, and the landscape itself. We are used to working with different tiers to protect and conserve. It is not a new concept, and I am astonished that those on the Conservative Front Bench, who have often talked volubly about conservation matters, and even worked with us on the CROW Act to further their aims, are now withdrawing from them in the context of the marine landscape. That is extremely disappointing.
My Lords, I do not wish to pick an argument with the noble Baroness, but that is not the case. We are reasoning on the argument, and I am afraid that the argument presented in her amendment does not warrant our support. We believe in a high level of protection, and we believe that the Bill provides us with a better chance of achieving that protection than her amendment would facilitate. Indeed, it could be a threat to protection elsewhere. I wish that she had listened to the arguments that I presented.
My Lords, I did listen to the arguments, and it did not lessen my disappointment, because what the Conservative Front Bench has given us is the view that there should be no top restriction on red tape such as licence applications. The noble Lord does not agree with me, and I will not labour the point; I would rather turn to the Minister's comments.
The Minister said that he did not want a two-tier system, but there will be a multi-tier system. I am asking simply for recognition in legislation of the top tier. The Government are ignoring the evidence from around the world that for full benefits, you need full protection. That experiment can never take place unless you recognise it.
The Minister stated that there could be changing levels of protection over time. That is exactly what I am afraid of. If you have an area that is exhibiting what Defra calls,
"a high degree of naturalness, with species and habitats ... still in a very natural state as a result of the lack of human-induced disturbance or degradation", a changing level of protection over time could only mean a lessening level of protection. In other areas, it might mean that the damage occurs first, and then you protect it later. In some areas—
My Lords, I am grateful to the noble Baroness for giving way. It might also mean that, in the light of experience or new scientific knowledge, the protection of some marine conservation zones may be mightily enhanced. The noble Baroness is arguing for two different designations; I believe that it is much better to have a more flexible approach where, in the cases of the marine areas that the noble Baroness has referred to, you can make stringent conditions in relation to licensable activities. The problem with the approach of the noble Baroness is that it would lead to greater confusion. As the noble Lord, Lord Taylor, suggested, a perverse incentive could result from having an ordinary—or lower—level marine conservation zone.
My Lords, I do not think that we will agree on this. It is not what I think that counts, but what the scientists in all the countries in the world who did the work—particularly in New Zealand—came out with. It is universally recognised that there are places where you need a level of protection against, for example, trawling, but where many other activities could take place. In a normal conservation zone you could admit human activity such as sailing, canoeing and so on, and the species and what you are trying to protect in that area of sea will be fine. Other areas will merit a higher level of protection.
I can see that I will not win the argument with the Government. We have failed to get Conservative support. However, all those people who lobbied so hard for the Bill—for example, members of the Wildlife Trust or the Marine Conservation Society, and others who simply want to see marine areas deliver what science has proved that they can—will need to lobby their MPs and see if this can be changed in the other place.
I can see some of the Minister's argument, but behind it are other worries. I have no idea whether they concern the Crown Estate or other lobbies, but there is no reason why the Government could not designate a special category for very special places, just as we do in the terrestrial area.
My Lords, I am grateful to the noble Baroness. I do not know whether she will push this to a vote: I rather hope that she does, because we have identified a clear division and it would be useful to air it. However, I will reassure her on this matter. I know that she has strong views about the Crown Estate, which we might be debating later. The Government's attitude has nothing to do with concerns expressed by the Crown Estate or any other body. We want this to work and we think that we have the right mechanism. In the cases that the noble Baroness described, where a very high level of protection is required, there is nothing in this Bill or anything that any Minister has said that detracts from that possibility. She needs to be very careful about the kind of perverse incentives that would be put in place if we had a two-tier approach to the system.
My Lords, I shall not press this amendment to a Division, because I can see that we are a small number here in support of it. I shall not take up the time of the House with a Division. All I can do is to urge all Members in the other place to look at the scientific evidence from around the world and to support this concept and try to persuade the Government. In the mean time, I beg leave to withdraw the amendment.
Amendment 110A withdrawn.
Consideration on Report adjourned until not before 8.30 pm.