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12.15 pm
The marine environment is subject to the exercise of public rights—more so than on land. One example is the public right to fish. It is possible that the exercise of such rights could result in intentional or reckless damage to a marine SSI; for example, weighing anchor within a lophelia coral reef—although I have never tried that. Will my right hon. Friend clarify whether damage from the exercise of such public rights would be considered an incidental result of an otherwise lawful activity, even if the person carrying out the activity had been informed that it was damaging a site? Will he also confirm whether someone who exercised a public right, but had been informed that in doing so they were damaging, or would damage, a marine SSI, could not then rely on the
- "incidental result of a lawful operation"
I shall now cover some new ground. The second difference between the offence in the 1981 Act and new clause 3 is that the Act refers not only to intentional and reckless damage or destruction but also to disturbance of notified fauna. The issue of reckless disturbance of marine wildlife is close to my heart, as hon. Members on both sides of the House are aware. In February 2000, I introduced the Marine Wildlife Protection Bill—with the able support of the Whale and Dolphin Conservation Society and other non-governmental organisations—to tackle the problems of harassment of, and disturbance to, marine wildlife by motorised marine leisure vessels and jet-skis.
My Bill would not only have enabled local authorities to protect marine wildlife and promote safety by prohibiting the use of motorised marine leisure vessels in coastal areas, but would have made it an offence to disturb marine wildlife recklessly or intentionally. Since then, the Government have passed the Countryside and Rights of Way Act 2000, with which I was proud to be involved. The Act was a significant and welcome step forward for nature conservation. As a result of it, there is an offence of intentional or reckless disturbance of whales, dolphins, porpoises and basking sharks—something which my Bill also sought to address. That was an important change, on which the Government can build in this Bill by extending that provision to other wildlife.
One of my major concerns when I introduced my Bill was the level of hidden disturbance, and indeed persecution, of marine wildlife. I had hoped that this Bill would face up to those problems and tackle them head on. Therefore, I respectfully ask the Minister to clarify why, as a departure from the offence in the Wildlife and Countryside Act, disturbance of fauna is not included in the offence proposed by new clause 3.
Mr. Meacher: There are some concerns about the new clause, although I hope to allay them and obviously we shall consider further what has been said. First, the hon. Member for Oxbridge—[Laughter.] That was a Freudian slip. The hon. Member for Uxbridge said that he was grateful for the Government's avidity; I thank him for that.
The hon. Member for New Forest, West (Mr. Swayne) discussed further the concerns that he adumbrated earlier and asked for examples of where the defence might apply and why it was necessary. During preparation of the Bill, various persons and organisations have asked us what its
impact would be in terms of the commission of offences. The most obvious examples are the fisheries industry and the public engaging in recreational navigation. We believe that it is useful for a defence to be made explicit in the Bill because it assures those persons and organisations of its parameters.I entirely understand the point made by my hon. Friend the Member for Hendon (Mr. Dismore) that it would be otiose to make the defence explicit. The hon. Member for Somerton and Frome (Mr. Heath) said that either an offence is committed under subsection (1) or it is not, and asked why, if it is not, we need a defence, because the defence would be that no offence had been committed under subsection (1). I also understand that argument. However, the fact that we were approached by the fisheries industry and some others for assurance persuaded us that the inclusion of the defence was justified.
I explained how the defence would operate. Perhaps I should add that if a person were charged, they would certainly need to prove that the defence was available to them in those circumstances, but I repeat that the clause is consistent with provisions in other nature conservation legislation, which, as far as I am aware, operates without problems. However, I am sure that further clarification of the provisions of the clause will be made in the guidance that we intend to introduce; I am glad to give the hon. Member for Somerton and Frome an assurance on that point.
My hon. Friend the Member for Hendon raised the issue of corporate liability and the negligence of directors. Directors are liable alongside the corporation only when, in the management of the corporation, they have consented to the offence, connived in committing the offence or been neglectful about whether the corporation committed the offence. The negligence of directors can lead to their becoming criminally liable along with the corporation, where it leads to the corporation's committing a criminal offence. I believe that I heard the hon. Member for Somerton and Frome say that he wanted us to consider again whether we should include negligence with knowledge. Perhaps I should discuss the matter further with him afterwards. I am quite prepared to consider the matter in the light of what he says.
I pay tribute to my hon. Friend the Member for Peterborough (Mrs. Clark) for introducing a Bill on a similar subject and for her long-term commitment to the marine environment. She asked whether the right of anchorage of vessels would be removed by the clause. The customary right of anchoring would of course be subject to the provisions of the clause in the same way as the public rights of fishing and navigation would. I do not see why a person who drops anchor knowing that he or she is in an MSSI and intentionally or recklessly damages a special feature by reason of which it has been notified—such as a coral reef, which she mentioned—should be immune from prosecution. Of course the defence in subsection (3) would be available, where the criteria for the defence were met, but I would obviously expect the defence to apply where it was necessary for a vessel to drop anchor because of force majeure, as was stated in the debate, or because it was in distress, or for the purpose of rendering assistance to persons or ships in danger or distress.
My hon. Friend also asked whether we could extend the provisions to include the disturbance of wildlife, which was the thrust of her Bill. Of course, this is a private Member's Bill, not a Government Bill. Although the disturbance of wildlife is a relevant and interesting phenomenon, it raises further, considerable issues, such as how it should be defined, and I do not think that the Bill represents the channel to deal with them.
Finally, my hon. Friend asked why disturbance of fauna is not included in the offence under the Bill. I should point out, as I have already, that the Bill is promoted by the hon. Member for Uxbridge. Given the amount of Government involvement, hon. Members might think that it has become a quasi-Government Bill, but it is a private Member's Bill.
As I said earlier, the Government feel strongly that a criminal offence of intentional or reckless damage should be incorporated to strengthen the protection offered by the Bill, and that that offence should be relevant and proportionate to the marine environment. Similar provisions were introduced in the Wildlife and Countryside Act 1981 and apply when a specific threat is posed by disturbance of certain species. Disturbance of marine species is more relevant to species-protection legislation rather than to site-based mechanisms in the Bill. My hon. Friend correctly drew attention to a gap that remains, but I do not think that we can resolve the issue in considering the Bill. Again, on that basis, I hope that, although there are doubts about the operation of the defence, those legal provisions will be acceptable to the House. They seem to have general support.
Clause read a Second time, and added to the Bill.
New Clause 4
Meaning of "marine area" and "marine site of special interest"
'(1) For the purposes of this Act—
a "marine area" is any part of the sea in or adjacent to England or Wales, or any land covered (continuously or intermittently) by tidal waters in or adjacent to England or Wales;
a "marine site of special interest" is a marine area in respect of which a notification has effect under this Act.
(2) A marine area notified as a marine site of special interest—
(a) may extend from the mean low water mark up to the seaward limit of territorial waters;
(b) may include the sea bed, the soil under the sea bed to a depth of 30 metres, and the water column.
(3) A marine site of special interest must not include—
(a) any part of an area of land which has been notified under section 28(1) of the Wildlife and Countryside Act 1981 (c. 69) (sites of special scientific interest);
(b) any part of a European marine site, unless the reason for which that part of the marine area is a marine site of special interest is a reason other than that for which it is a European marine site.
(4) In section 28 of the Wildlife and Countryside Act 1981 (c. 69) (sites of special scientific interest), after subsection (10) insert—
"(11) An area notified under this section must not include any part of an area of land which has been notified as a marine site of special interest under the Marine Wildlife Conservation Act 2002 (c. 00).".
(5) If any part of a marine site of special interest is, after it has been notified as such, included in a European marine site, that part ceases to be a marine site of special interest, unless the reason for which that part is a marine site of special interest is a reason other than that for which it is a European marine site.
(6) References in this Act to the reasons for which a marine area is a European marine site are references to—
(a) the natural habitat types in Annex I to the Habitats Directive hosted by the site;
(b) the native species in Annex II to the Habitats Directive hosted by the site; or
(c) the bird species for which the site is classified pursuant to Article 4(1) or (2) of the Wild Birds Directive.'.—[Mr. Meacher.]
Brought up, read the First and Second time, and added to the Bill.
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