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6 Feb 2008 : Column 293WH—continued
My hon. Friend also mentioned a matter on which I do have specific and immediate responsibility for consumer
protection: the Sale of Goods Act 1979, from which, as he rightly said, the purchase of homes is excluded. I hope that I can clarify why that is so, but I first wish to indicate again our welcome for the work that the OFT is engaging in. It is examining the home buyer’s purchasing experience and the fitness for purpose of new homes. It will consider the consumer protection and redress that are available, including the consumer legislation that applies, and whether changes are necessary. We expect that study to report in the autumn. My hon. Friend asked for early action, but he made an assumption that I do not wish to make. However, I assure him that we will give early consideration to the outcome of the report, particularly any recommendation that falls to my Department.
On the 1979 Act, there is not an exceptional omission or exclusion for housing. There is a much broader pattern and structure of how property law, covering land and buildings, is recognised. The law relating to property is distinct, forming a separate body of legislation and jurisprudence, reflecting the importance and value of transactions in land or property. As my hon. Friend will no doubt recognise, for transactions in land, it is particularly necessary that there should be clarity about exactly when ownership passes from one person to another and what is, and is not, included in any transfer. Property law has developed distinctively to meet those needs. Consumer law in general therefore does not apply to transactions in land or buildings, albeit with one significant exception.
Although consumer law and the statutory rights attached to consumer transactions do not generally apply to the purchase of a new home, it does not follow that the consumer is lacking in rights or redress when purchasing a new home. It is true that, on occasion, the buyer of a new home is in a weaker position than the builder. My hon. Friend may be aware of cases in which the developer has had standard terms prepared for the contract and not been willing to amend them. If there is unfairness in such standard terms, it can be addressed through the Unfair Terms in Consumer Contracts Regulations 1999. Under those regulations, a term that is found to be unfair is not binding on the consumer, and the Office of Fair Trading can take action to have standard terms altered if there is a view that they are unfairly weighted against the interests of the consumer. The purchaser of a new home therefore has rights and redress if a contract is not properly performed.
The most used remedies under the 1979 Act—the rejection of unsatisfactory goods by the purchaser or replacement by the vendor—are most unlikely to be appropriate for a dispute about the construction standards of a new house or flat. The contract can be annulled in extreme cases, but it is essentially tied to the property in question, and replacement with another house or flat is probably not realistic and may be undesirable for the buyer. I suggest to my hon. Friend that it is not surprising that the 1979 Act remedies are not appropriate, because they were framed for quite different situations. As I have indicated, we have an open mind about the possibility that new rights could be created for the benefit of consumers if the existing balance of rights and redress is found to be unsatisfactory.
My hon. Friend mentioned the suggestion by the Housing Improvement Task Force that it might be necessary to amend the rule of caveat emptor in relation
to new build homes. Of course, any new legal provision that confers rights or imposes implied terms will, in some sense, qualify the simple rule of caveat emptor. I have no difficulty in principle with that idea but, as I hope my hon. Friend will recognise, we will want to hear what the OFT has to say on that in its report.
I say again that I am sympathetic to my hon. Friend’s concerns and particularly to the views of his constituents who have written to him about their experiences of buying new homes. I hope that he recognises that the situation that he described—that someone has more rights buying a packet of crisps than buying a new home—is not accurate, but we understand the frustration of people who have had bad experiences with rogue builders. That is one reason why the OFT is conducting its market study.
I recognise the need for us here in London, in the Department for Business, Enterprise and Regulatory Reform, with our responsibility for consumer affairs as a reserved issue, to discuss the Scottish experience of the matter with the Scottish Executive. I have also offered to meet my hon. Friend the Member for Livingston about the issue that he raised, and I am happy to receive representations from Helen Eadie or my hon. Friend the Member for Edinburgh, North and Leith, on what Ms Eadie has discussed with the Scottish Executive.
4.28 pm
Sitting suspended for a Division in the House.
Cetacean Mortality
4.58 pm
Andrew George (St. Ives) (LD): I am delighted to have secured this opportunity to debate something that stirs the passions of many people around the coast of the UK, but also inland. When the Minister visits my constituency and other parts of Cornwall and the south-west early next week, I hope that it will be possible to continue the dialogue that we are commencing today.
As I shall explain in a moment, the issue certainly creates an environment in which there is much uncertainty. Perhaps it is appropriate to use a Rumsfeldism: there are many known unknowns, and probably as many unknown unknowns, when it comes to the science that surrounds the marine ecological system and our knowledge about the extent, population, health and mortality of cetaceans, which, of course, are the whales, dolphins and porpoises around our coast.
I should acknowledge at the outset the contribution of the Minister’s predecessors—the right hon. Member for Scunthorpe (Mr. Morley) and the hon. Member for Exeter (Mr. Bradshaw), who is now the Minister for the South West—and their work in this field. My conversations with them and with European Commissioner Joe Borg indicate a degree of sympathy and concern, although progress to achieve results is particularly slow.
I should also acknowledge the interest and co-operation of fishermen and fishing organisations in my part of the world. The Cornish Fish Producers Organisation and its chief executive, Paul Trebilcock, have co-operated in trying to achieve a better understanding, despite the fact that many accusations have been thrown at fishermen. They have allowed observers on their boats and assisted with investigation and mitigation measures to reduce cetacean by-catch. I believe that the Minister will be meeting Edwin Derriman, chief executive of the Cornwall Sea Fisheries Committee, next week.
On the environmental front, many organisations have taken a passionate and deep interest in the matter, including the Cornwall Wildlife Trust, particularly Dr. Nick Tregenza and Joanna Doyle, and many other national and international organisations, including the World Wildlife Fund, Greenpeace, Silver Dolphin marine conservation and diving centre at Penzance, the Whale and Dolphin Conservation Society and Marine Connection.
I want to paint the background. The vision of a thriving marine environment and sustainable, economically viable fisheries is at the heart of what I believe the Government want to achieve, and I hope that the Minister will expand on that. One prominent issue that is hampering the achievement of that is the incidental by-catch of cetaceans in fishing gear. By-catch, which accounts for thousands and possibly tens of thousands of cetacean deaths worldwide each year, poses a major threat to the conservation of small cetaceans throughout the world’s oceans and is widely recognised as one of the most serious environmental impacts of modern commercial fishing. Apart from the direct impact on cetacean populations, by-catch may affect the structure and function of marine ecosystems at population, community and
ecosystem levels. I believe that the Department for Environment, Food and Rural Affairs has identified and acknowledged that.
Dolphins and porpoises are particularly good biological indicators of the status of the environment in which they live and can indicate problems in the food chain brought about by overfishing or changes in environmental conditions. Looking at the impact on dolphins and porpoises around the Cornish and south-west coasts involves looking primarily at the impact of the offshore industry, particularly of pair trawling—predominantly a French industry, but it involves a few Scottish boats—and the set nets around the inshore waters of Cornwall and the south-west. An indicator of the seriousness of the concern that many people have, particularly environmentalists in the area, is the bottlenose dolphin. I raised that issue in a parliamentary question to the Minister last Thursday.
The number of bottlenose dolphins had recovered in the area to an estimated 16 or 20 in 1991, but has fallen, following a further stranding at St. Ives last year, to six. They are fascinating creatures, and local Admiralty charts show dolphin pools where fishermen have seen dolphins fishing for themselves by pushing shoals into a bay and then catching the fish as they try to escape. They use intelligent methods of fishing, which make them a fascinating source of study.
In recent years, many innovative approaches have been put to the test in an attempt to reduce by-catch in set net fisheries particularly. Potential by-catch mitigation techniques include gear modifications, such as acoustic deterrents or pingers, on which I hope the Minister will comment, and fisheries management, such as seasonal and geographical closure of specific fisheries.
Under the EC habitats directive, the Government are obliged to monitor cetaceans around our coast. The main aim of the directive is to promote the maintenance of biodiversity by requiring member states to take measures to maintain natural habitats and wild species at, or to restore them to, a favourable conservation status by introducing robust protection for those habitats and species of European importance.
The directive requires member states to introduce a range of measures, including protection of species listed in its annexes, to undertake surveillance of habitat and species and to produce a report every six years on its implementation. The Government have designated two sites on the Moray firth and in Cardigan bay as special areas of conservation for bottlenose dolphins in accordance with the UK’s obligations under the directive.
The UK participated in major European surveys of small cetaceans in the European Atlantic and North sea—the SCANS, or small cetacean abundance in the North sea and adjacent waters, I and II surveys—in 1993 and 2005, which were unable to detect inshore bottlenose dolphins off south-western and Cornish coasts. We are not aware of any formal systematic surveying of bottlenose dolphins in south-western and Cornish inshore waters.
There was a significant difference in the SCANS. In 1993, the common dolphin population in the Celtic sea was estimated to be approximately 75,000. By the time of SCANS II in 2005, it was less than one third of that,
but that reduction was attributed to better counting methods rather than a decline. Given the wide variability in those figures, I want to emphasise the unreliability or uncertainty of the data with which we are dealing.
With the movement of common dolphins into southern waters, it has been very noticeable that around 2,000 a year are caught in inshore fisheries in the Celtic sea. Apart from the bottlenose dolphin groups in the Moray firth and Cardigan bay, there are other groups, including those around the Cornish and south-western coasts. It is estimated that they colonised the Cornish coast some time after the last ice age, about 12,000 years ago, but died out in the second half of the last century because of organochlorine pollution. That is now much reduced, and they recolonised those coastal waters in 1991. They have been monitored by local agencies, and their decline has been noted.
All those matters are a cause for deep concern with a significant loss of cetaceans around our coast. Environmental scientists—certainly the Wildlife Trust—have been working very productively with fishermen, both inshore and offshore, to try better to understand the science. Other efforts include the tagging and dropping of dolphins at different distances from the shore, so that we get a better understanding of which fisheries the strandings are likely to come from. It seems that offshore by-catch is most likely to be masked because of the distances that the carcases must travel to be stranded on the coast. It sounds logical, but science is needed properly to understand the issue.
On 8 October last year, the Minister responded to my letter of 7 September. He stated:
“The latest UK and international figures indicate that these have remained steady in UK waters over the last decade and are higher than for most of the post World War Two period.”
“these by-catch totals are on their own unlikely to represent a major conservation threat to dolphins or porpoises.”
However, that is on the basis of what is known within the UK. The biggest threat to dolphin and cetacean by-catch in the western approaches comes from French pair trawlers. As the Minister knows, I have been in contact with the French embassy about that issue. It has been rather slow in co-operating with me over the years. However, the French ambassador has now said that the French Government have completed their annual report on the implementation measures contained within European Council regulation 812, which has been sent to the European Commission. They are indicating to me that they wish to co-operate.
The Minister has given me figures—I would say that they are rather unreliable—about the extent of by-catch within the industry. However, no attempt has been made to cross-tally those figures with those held by other European states. We need to know whether the by-catch estimates for common dolphins will prove to be significant in the light of the recent SCANS II survey, which I have mentioned and which shows that the Celtic sea common dolphin population is about one third of the previous SCANS I survey estimate.
I know that the Minister seeks to address those issues, and I look forward to his response with regard to monitoring the problem. There is a wish within the community in Cornwall that the environmentalists and wildlife experts and enthusiasts co-operate with the
fishing industry to monitor the health and mortality of the cetacean populations and to investigate mitigation measures, such as closed areas or the development of more sophisticated and more effective pinger systems.
Bill Wiggin (Leominster) (Con): I congratulate the hon. Gentleman on securing this important debate. I, too, am waiting to hear what the Minister says. One of the saddest things was in the Whale and Dolphin Conservation Society report, which has been sent to all UK MPs. Unfortunately, for our Government, it evaluates the efforts that they are making and states:
“The issues evaluated include fisheries by-catch (2/10), chemical pollution (4/10), noise pollution (1/10), boat traffic (1/10) and climate change (3/10)”
Does the hon. Gentleman agree that, if we are to stop the decline in our cetacean numbers and provide the right sort of habitat, the Government must do considerably more? Their intentions are good—everybody’s intentions are good—but the issue is one of delivery. I hope that the hon. Gentleman agrees that that is what we are looking for from the Minister today.
Andrew George: The hon. Gentleman is saying that there is a great deal of disputation as well as an attempt on the part of the partners involved in this process to try to find common ground, so that they can work together to find solutions. Clearly, if the fishing industry is prepared to work with environmentalists, that is an important first step. The Whale and Dolphin Conservation Society has offered constructive remarks, as well as reasonable criticism. We want to encourage the Government by praising them when they do well and castigating them when they are not making fast enough progress.
Will the Minister tell me how the Government are fulfilling their obligations under the EC habitats directive to monitor bottlenose dolphins around the Cornish and south-west coast? Given the significant uncertainty and varying estimates of population and the health and viability of many species, what plans do the Government have to adopt more accurate measuring methods?
Have the Government fully evaluated acoustic monitoring, which has been used successfully in locations such as the Baltic sea and New Zealand and developed locally in Cornwall? How does the new estimate of common dolphin numbers impact upon the UK’s assessment of current by-catch figures and the effect of by-catch on dolphin populations in the north-east Atlantic? In the absence of a porpoise special area of conservation around the UK, will the Government consider monitoring porpoises acoustically in existing special areas of conservation and around the Isles of Scilly, which also fall within my constituency?
Will the Minister advise on any potential funding streams to help to support the monitoring and experimental mitigation projects? What discussions have the Minister and his Department had with the European Commission, and the French especially, about the implementation of the European regulation that I mentioned earlier? What further efforts will the Department be prepared to support with regard to further pinger trials, the use of closed areas and other measures?
When the Minister comes to Cornwall next week, he will notice that people want to work co-operatively with each other and the Government.
5.16 pm
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Jonathan Shaw): I congratulate the hon. Member for St. Ives (Andrew George) on securing this debate and on the way he has presented the case. He referred to people’s passion about these wonderful creatures. He referred to the dolphin report compiled by the Wildlife Trust in his area. I have received a copy of it and we applaud the work of the Wildlife Trust.
We must ensure that the issue of cetaceans, dolphins and porpoises remains in the public eye. Pressure is brought on Government and questions are asked both by hon. Members in this House and by outside organisations. I argue that we have a good track record. The shadow Minister, my friend the hon. Member for Leominster (Bill Wiggin), who follows me around, said that there is still more for us to do. We might not be as good as he expects, but that is all part of the cut and thrust of this debate. I welcome it.
What the hon. Member for St. Ives says in raising those issues is important. It is important that we are held to account. I am pleased that he has called this debate. I look forward to visiting his wonderful constituency and meeting the folk down there. I hope that we have the opportunity to discuss the issue.
We know that the seas around the UK host more than 25 species of whale, dolphin and porpoise. Some of those species make their home in our waters, while others are welcome seasonal or occasional visitors. The hon. Gentleman will be aware that the seas around his area in the south-west of England are rich in cetaceans; they can play host to as many as 14 different species. Those species contribute to the UK having one of the richest marine environments anywhere in the world, and I share his concerns. It is important that those species are properly protected.
Effective conservation of those species and the marine environment are key parts of DEFRA’s over-arching goal of living within our environmental means. We want to ensure that we are operating within environmental limits and have healthy marine ecosystems and marine wildlife. Many whales, dolphins and porpoises are very mobile and part of a wide-ranging species. To be effective, conservation measures must be taken at international as well as national level.
The hon. Gentleman rightly mentioned the world’s population of cetaceans and asked what we can do about that. Obviously, there are more constraints in that regard than in relation to our own waters, but I suggest that those involved in illegal, unreported and unregulated fishing are most likely to be involved in the by-catch of dolphins.
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