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 groupa
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 peopleanyone 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 coaston jet skis, for
examplewho 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. 9.30
am 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 animalsyes, 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
Committees attention to CCWs 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 hinderedor could have
significantly hinderedMCZ 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 Englands
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 intentionit is
implicitthat 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 aboutas the Minister
described, I think, in her responsesimple, 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
interventionI shall not mention names, as the matter is on the
recordcould 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. Gentlemans 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
organisationa 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. 9.45
am 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
141Exceptions
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 usboth 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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