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Session 2008 - 09
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General Committee Debates
Marine and Coastal Access Bill [Lords]

The Committee consisted of the following Members:

Chairmen: Mr. Roger Gale, † Mr. Greg Pope
Ainger, Nick (Carmarthen, West and South Pembrokeshire) (Lab)
Benyon, Mr. Richard (Newbury) (Con)
Brown, Mr. Russell (Dumfries and Galloway) (Lab)
George, Andrew (St. Ives) (LD)
Gilroy, Linda (Plymouth, Sutton) (Lab/Co-op)
Irranca-Davies, Huw (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)
Jones, Mr. David (Clwyd, West) (Con)
Kumar, Dr. Ashok (Middlesbrough, South and East Cleveland) (Lab)
McKechin, Ann (Parliamentary Under-Secretary of State for Scotland)
Salter, Martin (Reading, West) (Lab)
Swire, Mr. Hugo (East Devon) (Con)
Walker, Mr. Charles (Broxbourne) (Con)
Watkinson, Angela (Upminster) (Con)
Whitehead, Dr. Alan (Southampton, Test) (Lab)
Williams, Mr. Roger (Brecon and Radnorshire) (LD)
Wright, David (Telford) (Lab)
Chris Shaw, Committee Clerk
† attended the Committee

Public Bill Committee

Thursday 2 July 2009


[Mr. Greg Pope in the Chair]

Marine and Coastal Access Bill [Lords]

Written evidence to be reported to the House
MC 04 Battersea Dogs & Cats Home
MC 05 Royal Society for the Protection of Birds
9 am
Clause 128 ordered to stand part of the Bill.

Clause 129

Byelaws for protection of MCZs in England
Question proposed, That the clause stand part of the Bill.
Nick Ainger (Carmarthen, West and South Pembrokeshire) (Lab): It is a pleasure to serve under your chairmanship on this beautiful morning, Mr. Pope. I have a couple of questions on clauses 129 to 134, which includes byelaws in Wales to protect marine conservation zones. Again, I have been approached by the Countryside Council for Wales, which would like to know whether it would be possible for byelaws to control movement, not just in MCZs, but in the areas immediately outside them. That is with particular regard to the disturbance of seabirds and marine mammals. The MCZ may well have been set up to protect them, but they do move. I am thinking, for example, of the gannets that nest on Grassholm and similar areas. The CCW seeks information and clarity on whether byelaws can be made that are not limited to the geographic location of the MCZs but cover areas immediately outside or some distance away from them. It is seeking to protect a particular species and avoid disturbance.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Huw Irranca-Davies): I shall both disappoint and reassure my hon. Friend. He shows the importance of getting the area—the scope—of the MCZ right, based on the best scientific evidence. Clause 129 sets out the byelaw provisions for the protection of MCZs—for example, to restrict the movement of animals and vessels, to restrict speed and to restrict the anchoring of vessels in an MCZ. There may also be byelaws to restrict the killing or taking of animals and plants in the zone. However, that is within the zone. It is important to get the zone and the network of zones right, so that movement, whether migration of species in the marine environment or the movement of birdlife, can be taken into account. This is a question of designating the geographic limits not only of the individual zone, but of other zones that relate to it. That is where the network becomes important.
As I said, I have to disappoint my hon. Friend in some ways, as we cannot take account of things outside the zone. This clause has to do with the byelaws that apply within a zone. That is where the importance of getting the zone right comes into play. The hope is that if the zones are set up in the right way, they will take account of the factors to which he referred, to the satisfaction of the CCW and others.
Nick Ainger: I seek further clarification. The problems that we are discussing are often seasonal problems, particularly for seabirds when they raft up and so on at certain times of the year. They are mobile species and there may be rafts of seabirds a mile or two away, or perhaps even 10 miles away. My hon. Friend the Minister is saying that because there is a specific geographic designation to the MCZ, a byelaw could not apply outside that specific geographic location.
Huw Irranca-Davies: My hon. Friend is absolutely right, but in respect of the seasonal aspect, it is perfectly conceivable—I am not drawing up the MCZs at the moment—that an MCZ could be designated to cover the overlap area that he is talking about and that has byelaws applying to it that relate to the seasonal nature of particular migratory patterns and so on. In effect, we would have an extended MCZ, but byelaws would restrict movement at certain seasons of the year. It is important that the underpinning science takes account not only of the restricted area but of a slightly wider area, in order to reflect such concerns.
Question put and agreed to.
Clause 129 accordingly ordered to stand part of the Bill.
Clauses 130 to 138 ordered to stand part of the Bill.
Nick Ainger: On a point of order, Mr. Pope. Clause 139 refers to the offences of intentionally or recklessly killing or injuring animals in MCZs and so on. I realise that many members of the Committee are concerned about the disturbance element. Would it not be more appropriate to discuss the disturbance element when debating clause 139 rather than clause 140? I seek your guidance, Mr. Pope, because although the offences are listed in clause 139, the relevant amendment is to clause 140.
The Chairman: I am grateful for that point of order. As the hon. Gentleman said, we will come to that amendment in the next clause. That will be the correct place for us to have the appropriate debate. It is not necessary to have that debate now, given that we can have it in a few seconds.
Clause 139 ordered to stand part of the Bill.

Clause 140

Offence of damaging etc protected features of MCZs
Andrew George (St. Ives) (LD): I beg to move amendment 39, in clause 140, page 95, line 8, leave out ‘kills or injures’ and insert ‘kills, injures or disturbs’.
The amendment would add the word “disturbs” to subsection (2). Although many conservation bodies welcome the general offence of damaging the protected features of the MCZ, there is a desire to explore the possibility that the provision as currently drafted is insufficient to protect the features of MCZs as intended. The worry is that the provision will provide a loophole unless “disturbs” is added, as features and animals that should be protected may be disturbed; they will not be as well protected as was originally intended. As drafted, the general offence still does not cover disturbance to the features of the MCZ. Disturbance can be very damaging, but it is much harder, on a case-by-case basis, to prove that that damage exists than that disturbance has occurred.
The clause should refer to disturbance of any animal in an MCZ that is a protected feature of that MCZ. As the Minister will know, that would also have the benefit of bringing the Bill into line with the provisions for sites of special scientific interest and those in the Wildlife and Countryside Act 1981.
There is concern that marine mammals that are identified—this is the critical factor—as a protected feature of an MCZ, such as cetaceans, dolphins, porpoises, seabirds and sea ducks, will be disturbed and move away from the source of the disturbance. That may cause them to suffer because they will be unable to feed adequately or will come under increasing stress, and the likelihood of their continuing to thrive will diminish. Such things can have a lasting negative impact on the animals’ ability to grow, reproduce and survive.
Disturbance can be caused by a wide variety of marine activities, such as fishing, dredging, marine construction, and oil and gas exploration and production. In some cases, it can even be caused by certain recreational activities, such as swimming, diving and boating. There are even cases where cetaceans have been disturbed by boats coming too close to them. On Second Reading, I argued that there is a case for looking carefully at the impact of sonar, particularly in the case of cetaceans, and the Minister may like to reflect on that. We would not want to constrain the activities or training carried out by our Ministry of Defence vessels, but it is worth looking at the impact that some of those activities might have on cetaceans. For seabirds, disturbance can be particularly damaging at certain sensitive times. For example, when birds are feeding, roosting, breeding or moulting, they will be more sensitive to the effects of disturbance.
It is important to note that including “disturbance” in subsection (2) does not turn all activities that could result in disturbance into offences. If the disturbance affects only animals that are not named features of the MCZ, or if it will not significantly hinder the achievement of the MCZ’s conservation objectives, no offence will have been committed. The amendment is not, therefore, a simple, all-encompassing provision that makes any kind of disturbance an offence.
It is welcome that clause 129 can be used to prohibit disturbance to animals or plants of any description in an MCZ. That is an improvement on previous nature conservation byelaws and it is broader than the inclusion of “disturbance” in the general offence would be, because it refers to animals or plants and does not rely on the subject of the disturbance being a named feature of the MCZ.
9.15 am
Although the ability to control disturbance in MCZs through byelaws is very useful, some conservation bodies do not consider the provisions to be sufficient as currently drafted. In particular, byelaw provisions under the Bill extend to only 12 nautical miles. Without byelaw-making powers, there is still a need for protection of offshore waters from activities that cause disturbances that pose a risk to the MCZ objectives. Therefore, the system clearly needs to be complemented with the general offence in waters beyond 12 nautical miles.
There is a concern that it is hard to prove that disturbance has occurred and the provision will be particularly hard to enforce, as I have mentioned, beyond 12 nautical miles. However, it will be equally hard to prove that disturbance has occurred in contravention to a specific byelaw, unless the byelaw imposes a blanket ban on a particular activity thought to be capable of causing a disturbance. In many cases, it would be disproportionate to completely ban an activity on the grounds that, if done recklessly or irresponsibly, it could cause a disturbance. Enforcement in the marine area, particularly in offshore waters, is clearly going to be challenging, but that is a universal problem for all offshore activities. I know that organisations which are concerned about strengthening the clause do not believe that that should be used as an excuse to avoid regulation in the marine environment.
I hope that the Minister will appreciate that the purpose of the amendment is to both probe the Government’s intentions and to seek clarity. Given the current drafting of the clause, there is a deep and justifiable concern that a disturbance of the type I have described could have a knock-on effect and damage those features that the MCZs have been created to protect. They will be damaged not simply through the killing or injuring of any animal, as the animals may well, as it were, experience their own demise, or be significantly injured by the kind of disturbing activities that I have described.
Do all the Government agencies that advised the Minister on the drafting of the clause, particularly Natural England, take the view that, as currently drafted, it is sufficient to provide adequate protection to animals in designated MCZs? Are there more exacting demands in having to prove that an animal has been killed or, in law, having to prove a definition of “injury”, rather than the offence of “disturbance”? That will clearly require a much higher evidential level of definition. I look forward to the Minister’s response. This is an important area, which clearly needs to be explored further.
Mr. Richard Benyon (Newbury) (Con): This is an interesting amendment, which comes down to the definition of the word “disturbed”—the previous word in clause 140 is “recklessly”. “Disturbed” has a very wide descriptive meaning. I am constantly disturbed by the thoughts and actions of my children—and sometimes by those of my colleagues—but that is not relevant in this context. We have to think about the impact on an MCZ, because we could be limiting actions in an MCZ in the wrong sort of way.
Mr. David Jones (Clwyd, West) (Con): I want to draw the Minister’s attention to the representations that I have received from the CCW—I am sure that the hon. Member for Carmarthen, West and South Pembrokeshire will be pleased to hear that he does not have the monopoly on correspondence with that body. The CCW is an adviser to the Welsh Assembly Government on the Bill and other matters. It takes the view that clause 142 should be expanded to include disturbance of an MCZ. Its point, which the hon. Member for St. Ives has also made, is that that would be more intellectually coherent, because it would create a degree of uniformity with offences relating to SSSIs. Since we are talking about conservation of sensitive sites—whether marine or land-based—it is appropriate to introduce intellectual coherence into the Bill. I am interested to hear what the Minister has to say about it.
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