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Nick Ainger: I will not repeat what the hon. Member for Clwyd, West has said. We have both received the same communications, and I am sure that the hon. Member for Brecon and Radnorshire has also received correspondence from the CCW.
I am chairman of the Pembrokeshire coastal forum, which was set up nearly 10 years ago as a secretariat to bring together the public and private sectors, statutory agencies, individuals and charities to look at coastal issues in Pembrokeshire. At our AGM on Monday, I asked members whether the issue of disturbance should be in the Bill. They have all been avidly watching the progress of the Bill and all said reference should be made to disturbance.
The Pembrokeshire coastal forum includes the outdoor charter group—a range of 26 companies offering activity-based holidays on the Pembrokeshire coast. They have come together to produce the outdoor charter, which is aimed at protection and minimising disturbance. They are not just companies that take tourists round Ramsey island to see porpoise and seals. There are also organisations offering surfing and coasteering, field study council people—anyone who is involved in activity on the coast. It is a voluntary charter, and it has been self-policed and self-regulated surprisingly well, but the charter group admits that even its members occasionally cause unnecessary disturbance, which is sorted out between them.
The problem is that there will be literally hundreds, and at times thousands, of other individuals on the coast—on jet skis, for example—who are not there under the guidance of one of those companies, and they can, and do, cause serious disturbance. The charter group feels that the voluntary code, which has been worked out over the years and appears to be working well, should be given some teeth, so that it can be used to regulate those individuals or groups not currently under the guidance of the signatories to the outdoor charter and so that enforcement can take place. It feels that we need to do more on that disturbance issue.
I know that that is not on the face of the Bill and am sure that the Minister will say that it can be included in byelaws, but I want an assurance that that matter will definitely be taken seriously, because disturbance can be just as damaging as the injuring, or even killing, of a marine mammal. If there is constant disturbance from jet skis during the seal pupping season, not only could pups die as a result, but that area might not be used by seals as a pupping site again. Disturbance is just as important an issue as the killing or injuring of marine animals, or any sort of animal. I would be grateful if the Minister were to respond positively and assure people across the board that disturbance is seen as an important issue, because people feel that it should be in the Bill.
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Mr. Roger Williams (Brecon and Radnorshire) (LD): The Times reports today, hon. Members will be pleased to note, that Migaloo, a white humpback whale, is on its migratory path from the Antarctic to the Great Barrier reef for the breeding season and has been spotted off the coast of Australia. The Australian environment ministry has said that no one may approach within 500 m of the whale or fly lower than 600 m above it. I draw Members’ attention to that to demonstrate that the question of disturbance is one not only for the British Government, but for Governments across the world who are trying to protect their marine animals—yes, I have been lobbied by the CCW, but I thought that I would broaden the debate and give it an international flavour. [Interruption.] I have put a smile on Members’ faces this morning.
The management of MCZs could include details on what would be considered disturbance and what could be considered injury, or some other type of activity. I completely support the amendment and draw to the Committee’s attention to CCW’s views on the issue. The proposal has been imposed in other parts of the world, so it would not be new for Britain, but it is something from which we could gain experience and which we could implement in this country through the Bill.
The Parliamentary Under-Secretary of State for Scotland (Ann McKechin): Good morning, Mr Pope. I welcome the contributions that have been made in this interesting debate.
Four features that need careful examination define the debate: one is the definition of disturbance, as the hon. Member for Newbury has mentioned; the second is what level of fines is appropriate; the third is what is proportionate to the offence; and the fourth, which is quite important, is the standard of proof.
I draw hon. Members’ attention to subsection (2)(b) which specifies that someone is guilty of an offence under the clause if, at the time of doing the act in question,
“the person knows, or ought to have known, that the feature to which the act relates is in, or forms part of, an MCZ”.
That is a high standard of proof, relating to what we call, in law, mens rea. It is necessary to show the mental intention behind the act, as well as the physical act itself. That high standard of proof would, by definition, limit the prospects for prosecution, in comparison with the much lower standards of proof found in byelaws.
The Joint Committee that considered the Bill stated in paragraph 79 of its recommendations:
“We recommend that the Government insert the general offence referred to in the Marine Bill White Paper of damaging or destroying any species or habitat or other feature, for which a site has been designated an MCZ.”
The Government have done precisely that. We have reinstated the general offence provision, which will help to prevent deliberate and reckless acts of damage to a marine conservation zone.
I want to explain why we and the Joint Committee did not want to widen the general offence to include disturbance. Acts of disturbance will be an occasional and serious problem, as my hon. Friend the Member for Carmarthen, West and South Pembrokeshire has pointed out, but they are fundamentally different from deliberate or reckless damage. It is important that the Bill reflects that, because, as my hon. Friend has said, many incidents of disturbance are sorted out without prosecution by voluntary codes. That is somewhat different from incidents involving reckless damage or death. There is a difference in the definition, depending on the incident.
The matter comes down, first, to the difference in severity of the impact of what is done. Disturbance might, for example, be caused by people straying too close to a group of animals through innocent curiosity, although I think that if I saw a humpback whale I would move well back. Alternatively, the disturbance might come about because of an organised wildlife watching trip or through the use of machinery that emits a loud noise. A single act of disturbance is likely to have a temporary effect and will often be entirely accidental. In contrast, intentional or reckless acts of damage are likely to have longer-term and more permanent effects.
Secondly, what constitutes disturbance will depend on the protected features and conservation objectives of each MCZ. Byelaws provide a proportionate and effective mechanism to target specific activities in local areas and accordingly are the right way to control acts of disturbance in a MCZ, as opposed to areas of special scientific interest, which are in highly protected areas. MCZs often cover a wider spectrum of protection needs. That is why clause 129(3)(e) specifically states that byelaws may be made to prohibit or restrict the
“killing, taking, destruction, molestation or disturbance of animals of plants of any description in the MCZ”.
To give an example of that, an MCZ might be designated to ensure the protection of sea birds. The byelaw provisions in the Bill will allow us to provide targeted protection against disturbance and to impose movement restrictions at certain times of the year. Breeding seasons and nesting periods, which various hon. Members have alluded to this morning, are also relevant. Restrictions would thus be the minimum necessary and would be drafted to specify the offences and to be clearly understood by everyone.
Thirdly, byelaws will often be the most effective means of protecting a site from the general offence. That is because byelaws create strict liability offences. Prosecution under a byelaw will depend on proving not that an anticipated result occurred, but that a prohibited activity, such as movement within a protected area, took place. In contrast, prosecution under the general offence would depend on being able to prove that the defendant intentionally or recklessly carried out a prohibited act that significantly hindered—or could have significantly hindered—MCZ objectives. That is, again, a high level of proof. The hurdle is lower for proving breach of a byelaw.
We are fully committed to preventing disturbance within MCZs, where there is scientific evidence to suggest that such an approach is required. I do not want to pre-empt the scientific evidence by suggesting that all conservation zones will need to be protected from disturbance, but I will reassure hon. Members on various points raised in this debate.
The hon. Member for St. Ives correctly pointed out that the byelaws extend to only 12 nautical miles. However, clause 124 contains a duty on public authorities to ensure that they must do their best to further the achievement of conservation objectives, including those relating to the impacts of sonar and other activities. Activities beyond 12 miles are generally licensable and controlled through the mechanism in part 4 of the Bill. I assure him that sonar can be regulated through the licensing provisions and the nature of conservation byelaws. All public authorities, including the Ministry of Defence, will be subject to the byelaw restrictions in inshore areas and are under a duty in inshore and offshore waters to further conservation objectives. Under the Bill, nature conservation bodies can offer guidance on that.
The hon. Member for St. Ives also mentioned Natural England’s evidence. Natural England has stated that in the vast majority of cases in SSSIs, writing to people to advise them that they may be in breach of byelaws and subject to a fine is the most effective way to deter further breaches.
Andrew George: On the effectiveness of existing regulations, will the Minister clarify whether the introduction of the Bill, as drafted, will either diminish or remove existing levels of protection available through the Wildlife and Countryside Act 1981, as amended? I understand that last year a conviction was successfully brought against individuals in a case involving the disturbance of cetaceans off the Kent coast. It would be interesting to know whether the Bill will lessen the ability of authorities to obtain such convictions.
Ann McKechin: I assure the hon. Gentleman that the Bill will not remove protections to that effect contained in existing legislation. It is certainly not our intention to weaken existing protections.
My hon. Friend the Member for Carmarthen, West and South Pembrokeshire mentioned the good work of the Pembrokeshire coastal forum. I confirm that the Marine Management Organisation must consult such groups under clause 136(6) and (7). It is certainly our intention—it is implicit—that when it comes to considering byelaws, local organisations on the ground should be fully involved in the consultation on what is best. Their local knowledge will be valuable in that regard.
Accordingly, I believe that the Bill, as it stands, provides a proportionate and flexible way of dealing with disturbance and the right level of sanctions. I hope that on the basis of what I have said, the hon. Member for St. Ives will feel able to withdraw his amendment.
Andrew George: I am grateful to the Minister for her reply. She drew attention in her response, as I did in my opening remarks, to clause 129 and the provisions available there for the creation of byelaws to add further protections in respect of the intentional and reckless disturbance of animals that contributes to their demise. That is reassuring.
A lot of the bodies that are concerned that the Bill, as drafted, does not contain a general offence as proposed in the amendment are worried because achieving the attachment of protection from reckless and intentional disturbance will now depend on the successful introduction of byelaws, with all the various hurdles over which byelaws must inevitably go, including the Secretary of State. The hon. Member for Newbury rightly emphasised that we are not talking about—as the Minister described, I think, in her response—simple, innocent curiosity without the intention to disturb or contribute to the demise of an animal, but about a reckless or intentional disturbance that would have a lasting impact on an animal. I hope that the Minister will acknowledge that a case similar to one that I referred to in an earlier intervention—I shall not mention names, as the matter is on the record—could be dealt with through byelaws, if, for example, there is an intention to protect particular cetaceans within an MCZ.
Ann McKechin: I welcome the hon. Gentleman’s comments; he has made some good points. To reiterate what we have already said: we see the MMO as a proactive body. We do not think that there will be any reluctance to create byelaws; the body will have a duty to do so under conservation objectives. Byelaws are implicitly the means to achieve such ends. We anticipate the MMO carrying out exactly the type of activity that the hon. Gentleman has discussed and dealing with the need for protection, which will be the core of its work. I hope that I have reassured the hon. Gentleman.
Andrew George: I think that all parties want to see such an organisation—a proactive body that is keen to be responsive to the concerns expressed by stakeholders, including conservation bodies that wish to uphold the principles and objectives of designating an area an MCZ. In the case off the Kent coast, a conviction was successfully enforced on 16 April 2008, and it is worth reflecting on that example.
In the previous year, the two gentlemen who were convicted for that offence had been involved in trying to lift a bottlenose dolphin out of the water by holding on to its dorsal fin. The animal was not injured or killed, but the impact on it was long lasting. The police were called and the men were arrested and charged with recklessly disturbing a dolphin under the Wildlife and Countryside Act 1981, as amended. Our amendment seeks to ensure that reckless and intentional disturbance can ideally be made a general offence, because once a marine conservation zone has been designated, it is clear which features and animals are to be protected.
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I have listened to the Minister, and I hope that she will take on board the concerns expressed. Providing that we can be reassured, as the Bill goes through its later stages, that there will be little or no obstruction to legislating for the kind of byelaws that we need to provide that kind of protection, I am happy to have had the debate and probed the issue and to have received the assurances that the Minister has offered so far. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 140 ordered to stand part of the Bill.

Clause 141

Exceptions to offences under section 139 or 140
Mr. Benyon: I beg to move amendment 18, in clause 141, page 96, line 2, at end insert—
‘(3A) It is a defence for a person who is charged with an offence under section 139 to show that that person took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.’.
It seems at times that we are coming at the Bill from different directions. I do not apologise for that because this is all about getting the balance right. I have been persuaded by many arguments made by some of the organisations lobbying us—both greens and those more concerned with socio-economic factors, which shows the nature of the Bill; we have to ensure that we get the balance right.
In moving the amendment, I hope to debate whether it is appropriate for a breach of a byelaw or order made on an MCZ to be a strict liability offence. Offences of strict liability are those crimes that do not require awareness of one or more elements of the guilty act; therefore, to be convicted, the defendant need not have intended to commit the offence or known that what they were doing was an offence. As the Bill stands, MCZs will clearly have an impact on navigation. They will not necessarily be marked with physical aids, as we discussed earlier this week, so there will not by any buoys or markers on the sea and perhaps not a recording on the relevant navigational charts. In the absence of such demarcation, it seems short-sighted not to include a defence for a person who takes all reasonable precautions and exercises all due diligence to avoid committing the offence. The language reflects that used in clause 104 on marine licensing. Proposed new clause 141(3A) does not need to apply to clause 140 because that relates only to acts committed “intentionally or recklessly”.
The longer I look at the clause, the more concerned I become about the sea-fishing defence in clause 141(4)(a)(i). I know, Mr. Pope, that you do not want me to start a debate that belongs to a later amendment, but this is important. It seems incongruous to whack a yacht or a ship that inadvertently breaks a byelaw in an MCZ with the full force of the law, regardless of it having done all in its power to avoid committing the offence, while those who are fishing and may not have taken reasonable steps to avoid damage, appear to have an instant defence. That is inconsistent. I firmly believe that the majority of fishermen will do all that they can to avoid the offence, but there may be one or two, and they might not be our own fishermen, who come into our waters and damage an MCZ. It is important to look at these matters, and, perhaps in the context of later aspects of the clause, clarify the position when there is no intention to damage an MCZ.
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