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New Clause 3

Damage or destruction in a marine site

'(1) A person is guilty of an offence if he—
(a) intentionally or recklessly damages or destroys any of the flora, fauna, or geological or physiographical features by reason of which a marine area is a marine site of special interest; and
(b) knew that what he damaged or destroyed was within a marine site of special interest.
(2) Subsection (1) does not have effect in relation to a competent marine authority acting in the exercise of its functions.
(3) It is a defence for a person charged with an offence under subsection (1) to prove that the damage or destruction was the incidental result of a lawful operation and could not reasonably have been avoided.
(4) A person guilty of an offence under this section is liable—
(a) on summary conviction, to a fine not exceeding £20,000;
(b) on conviction on indictment, to a fine.
(5) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to that person in consequence of the offence.
(6) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
(a) any director, manager, secretary or other similar officer of the body corporate; or
(b) any person who was purporting to act in any such capacity,
he, as well, as the body corporate, is guilty of the offence and is liable to be proceeded against and punished accordingly.
(7) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(8) An offence under this section is for the purposes of conferring jurisdiction to be deemed to have been committed in any place where the offender is found or to which he is first brought after the commission of the offence.'.—[Mr. Meacher.]

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Brought up, and read the First time.

Mr. Meacher: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker: With this it will be convenient to discuss Government amendments Nos. 26 to 29.

Mr. Meacher: The Bill provides for no offences and the Government felt that that was an important omission. New clause 3 introduces a new offence of intentionally damaging or destroying the flora, fauna or geological or physiographical features of a marine site of special interest that make it of special interest, or being reckless as to whether the special interest would be destroyed or damaged. An offence is committed only if a person or body other than the competent marine authority damages or destroys the special feature, knowing that it is within an MSSI. The matter was raised by my hon. Friend the Member for Cleethorpes (Shona McIsaac) during the previous debate. We have fixed the fine at the level of £20,000. I did not say then that this is a new offence of intentionally damaging or destroying or being reckless. That is important. An offence would not be committed in other circumstances.

Examples of offences under the provision would include intentional reckless damage to or destruction of the special feature of an MSSI through the collection of material or direct impact by divers, the digging up of sea grass beds to put down moorings or breaking off and removing sea fans where the person knew that what he damaged or destroyed was within an MSSI. I hope that that reassures those who think that they may unwittingly and inadvertently fall foul of the Bill. We are talking about deliberate, reckless action.

Mr. Swayne: I take the Minister's point and congratulate him on the new clause, but I remind him that the provision includes a defence. What is the reason for that?

Mr. Meacher: That is a good point. I shall come to that thread of my speech a little later—in fact, now.

Subsection (3) of the new clause would provide a defence where the person can show that the activity that caused the damage was

The defence is intended to protect someone who acts without malice or recklessness and is carrying out a lawful operation, but as a result may incidentally cause the relevant effects.

Mr. Swayne: If the offence is reckless or with intent, how can it be a defence to say that it was not carried out with malice?

Mr. Meacher: If it is intentional action to damage or destroy flora or fauna, or if it is reckless, the defence will not apply. It is intended to protect people who do not fall into that category.

There is nothing new in the provision. It is consistent with the defence contained in section 4(2)(c) of the Wildlife and Countryside Act 1981—passed by a Conservative Government, whom we support in that

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respect—relating to the protection of birds and section 10(3)(c), which concerns the protection of schedule 5 wild animals.

The penalties in subsection (4) are consistent with the SSSI provisions. Other parts of the new clause are more technical. For instance, it explains what happens where an offence is committed by a corporate body with the consent, or owing to the neglect, of an officer of the body, and confers jurisdiction on the courts in the place where an offender is found or first brought to after the offence has been committed.

The precedent that we had in mind for the offence was section 28P(6) of the Wildlife and Countryside Act 1981 concerning SSSIs. That section was framed primarily to discourage actions, mainly by persons other than owners or occupiers of land, which were causing damage. A similar disincentive is required for marine sites.

I am aware of concerns that activities carried out in pursuit of the public rights of navigation and fishing would be assessed against the provisions of the new offence. However, I stress that the offence is committed only where a person intends to damage or recklessly damages the protected features of an MSSI. The person must have known that what he damaged was in an MSSI. The defence that I described applies where a member of the public is carrying out a lawful activity such as navigation, and damage to an MSSI-protected feature is the incidental result. However, he could not avail himself of the defence had there been reasonable steps that he could have taken to avoid the damage, but he did not take them. Ultimately, the court must make a judgment on the matter.

Mr. Randall: When we start talking about legal niceties it is as well for me to keep out of it, but I presume that if someone was warned that their action would be reckless and they carried on, there would be no defence.

Mr. Meacher: Yes. That would be regarded as an intent recklessly to damage, having been warned that such an action would be contrary to the provisions.

I should emphasise that the main purpose of the offence is to act as a deterrent. A fine of £20,000 should be a significant deterrent to individual acts of irresponsibility that result in deliberate or reckless damage or destruction.

I shall deal with the enforcement of the provision. I appreciate that the enforcement of nature conservation legislation in the marine environment is a difficult issue, especially as no one body is responsible for it. It is clear that the enforcement of marine offences requires clarification. That is why the Partnership for Action against Wildlife Crime, sometimes known as PAW, which is co-chaired by my Department, is setting up a sub-group to consider how marine enforcement can be improved. The Bill is not an appropriate vehicle to address that wider issue, and I take the point made by the hon. Member for Uxbridge (Mr. Randall).

In its interim report published last year, the review of marine nature conservation recommended that the Government should commission an exercise to identify best practice in marine enforcement both here and abroad. That will examine available methods of enforcement and common approaches concerning the relationship between regulators and sea users. The results of the review will be taken into account when looking more closely at the enforcement of the Bill's provisions.

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Amendments Nos. 26 to 29 are principally designed to clarify the byelaw-making procedures in clause 6. Amendment No. 26 provides that the consent of the Secretary of State, or the National Assembly for Wales in respect of Wales, is needed for a nature conservation agency to make byelaws for the protection of MSSIs. That is consistent with section 37(1) of the Wildlife and Countryside Act 1981. The power to make byelaws will be a useful tool for agencies to use in trying to modify behaviour where it is causing damage to features of acknowledged importance. It will draw on the examination of enforcement in the marine environment to which I referred.

We thought it would be helpful to rectify this omission in the Bill. I commend the new clause and amendments to the House.

Mr. Randall: I thank the Minister for including the new clause. It would not have been appropriate for me to include measures such as fines in a private Member's Bill. I am grateful to the Government for dealing with that, because without proper deterrence such legislation is not necessarily worth the paper it is written on.

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