 House of Commons |
Session 2008 - 09 Publications on the internet General Committee Debates Marine and Coastal Access Bill [Lords] |
The Committee consisted of the following Members:†
Irranca-Davies,
Huw (Parliamentary Under-Secretary of State for Environment, Food
and Rural Affairs) Chris
Shaw, Committee Clerk †
attended the Committee Public Bill CommitteeThursday 2 July 2009(Morning)[Mr. Greg Pope in the Chair]Marine and Coastal Access Bill [Lords]Written evidence to be reported to the HouseMC 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 129Byelaws
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 140Offence
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. I
am inclined to support the hon. Member for St. Ives,
provided that we do not damage the kind of activities that we want to
see in MCZs. For example, tourism,
even eco-tourism, could in certain circumstances be described as
disturbing wildlife in the marine environment. Certain sustainable
fishing activities, such as recreational angling, could be permissible
in or close to a MCZ, but they could be described in a pedantic
following of the letter of the law as damaging. I support the hon.
Gentleman’s intention and look forward to the Minister’s
words on the impact that it will have, because I do not want unintended
consequences in the protection provided to
MCZs. 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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