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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

Tuesday 7 July 2009

[Mr. Roger Gale in the Chair]

Marine and Coastal Access Bill [Lords]

Clause 197

Power to make orders as to fisheries for shellfish
Amendment moved (this day): 56, in clause 197, page 124, leave out from beginning of line 11 to ‘subsection’ in line 12 and insert—
‘(1) Section 1 of the Sea Fisheries (Shellfish) Act 1967 (c. 83) (power to make orders as to fisheries for shellfish) is amended as set out in subsections (1A) and (1B).
(1A) In’. .(Huw Irranca-Davies.)
See Member’s explanatory statement for amendment 57.
4 pm
The Chairman: I remind the Committee that with this we are discussing the following: Government amendments 57 and 58.
Government new clause 5—Variation etc of orders as a result of development.
Government amendment 62.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Huw Irranca-Davies): I am glad to return to the Committee to pick up where we left off this morning on shellfisheries. It might be helpful at this juncture to pick up on one point raised about the timeline. A genuine concern was aired about the nature and extent of the discussion and dialogue. Not many of us had a lot of time to see the word-by-word detail of the amendments, but the fundamentals of what is being proposed have been around for some time, and I will sketch them out briefly.
The Shellfish Association of Great Britain was working in 2007 on a memorandum of understanding with the Crown estates that featured most of the elements now contained in these clauses. The association has had a lot of opportunity, with my officials and others, to shape the proposals that have ended up in the Bill. Officials from the Department for Environment, Food and Rural Affairs have met on numerous occasions to discuss potential solutions to the Crown estate problem. However, it was only with the resolution of a court action, which concluded on 14 May, that negotiations could commence in earnest and in detail with interested parties, in particular the Crown and the shellfish industry. After that point, we could move from the entrenched positions that had had to be adopted while the court case proceeded.
The solutions proposed in the Bill—I shall turn to them in a moment, as I want to explain in detail how the package works—aim to put the relationship between the shellfish industry and landowners on a more commercial footing that is based on agreements, with mechanisms for developments to take place, but with compensation and the removal of consent, which everybody has wanted. Those proposals all come from the industry. If the Committee will bear with me, I will sketch exactly how the process will work in practice.
Government amendments 56, 57 and 62 will amend the Sea Fisheries (Shellfish) Act 1967 to remove the need for consent of the Crown estate or the duchies to be given before an order affecting any part of the sea shore on their land can be granted. Removing that requirement will give the Secretary of State the power to grant shellfish orders without Crown consent, removing a potential obstacle to granting new orders. Such a measure is sought by all parties, and I hope that it will be welcomed by all parties.
The removal of that procedure, which all parties consider to be outdated, will thus allow us to overcome the current impasse, in which a number of several and regulating orders are not being given. At the moment, shellfisheries cannot obtain certainty for long-term investment, despite the best efforts and good will of all parties. The amendments will allow us to overcome the impasse and start granting new several and regulating orders. Both the Crown estate and the shellfish industry support the proposal.
As the amendments all link together and come as a package, I will turn to amendment 58, which requires the appropriate Minister, when considering an application for a several and regulating order, to have regard to the powers and duties of the Crown Estate Commissioners. That is important because those powers and duties come from the Crown Estate Act 1961. The Sea Fisheries (Shellfish) Act 1967 already contains a statutory duty to consult the commissioners as land owners when considering an application for an order that will affect Crown land.
It is important that we recognise that the Crown Estate Commissioners have specific powers and duties that require them to act in a particular way. I must make it clear that the amendment does not grant the commissioners any extra powers, nor does it give them anything with regard to shellfish orders that they do not currently have. Having regard to the Crown estate’s powers and duties simply means that we must take account of them when arriving at a decision on whether to grant an order. We are not bound to accept any objection that they raise, just as we are not bound to accept any objection from any other landowner. The commissioners are constrained in what they can do with regard to the Crown estate in a way that other landowners are not. Our proposal merely acknowledges that difference.
Mr. David Jones (Clwyd, West) (Con): Before I put my question, I declare an interest: by an extraordinary coincidence, the legal firm of which I am a director represents one of the parties in the Menai strait action to which the Minister referred. I understand the thrust of his proposed solution to this difficulty, but the amendment states that Ministers should
“have regard to the powers and duties”.
Will he expand on that? To which powers and duties should they have regard, and how will they have regard to them? What will they do when they have regard to them?
Huw Irranca-Davies: I shall return to that very pertinent question in a moment, but first I want to flesh out the other parts of the proposal.
New clause 5 will insert powers to vary shellfish orders, which is important because it acknowledges the fact that landowners cannot always foresee what development opportunities might arise over the lifetime of an order, which is potentially 60 years. The new clause will allow an order to be varied when landowners, including the duchies and the Crown estate, want to develop land on which an order is in place and when that development would make it impossible, or impracticable, to exercise the right conferred on the fishery. The power to vary an order reflects our desire to put the relationship between the grantee and the landowner on a more commercial footing, with the use of commercial contracts or memorandums of understanding clearly to define the relationship and the system for dealing with future developments. In earlier discussions with the Government, both the Shellfish Association of Great Britain and the Crown estate supported such a measure.
Clause 69 sets out the issues to which the licensing authority must have regard in determining applications for marine licences. Under subsection 1(c), those issues include
“the need to prevent interference with legitimate uses of the sea”,
which in turn include fishing and shellfisheries. Thus the licensing authority is well able to have regard to fisheries’ interests and to reach a balanced view on the merits of an application.
We do not intend to interfere with this marine planning process by insisting that fishing interests should automatically override all other needs or uses of the sea. If the order is varied, the landowner could be liable to pay compensation to the grantee of a several order for the loss of part, or all, of the order. It will be open for the grantees and landowners to agree a level of compensation, either when the order is varied or right from the outset. We believe that the ability to consider such outcomes at the outset of the making of an order will help to put the relationship between the two parties on a much more commercial footing. It will also make the agreements more transparent. That idea was previously supported by the shellfish industry as well as the Crown estate. The new clause will provide certainty to grantees of shellfish orders and landowners and signal a new relationship allowing the industry to develop and move forward.
The hon. Member for Clwyd, West asked about Crown powers. Those powers will be as set out in the Crown Estates Act, section 1(3) of which states that the commissioners will have a duty “to maintain and enhance” the value of the estate
“but with due regard to...good management.”
A letter from DEFRA to the Shellfish Association of Great Britain dated 26 June stated:
“Having regard to the CE’s powers and duties simply means that we must take account of them in arriving at a decision as to whether to grant an Order. It does not mean that if the CE object to the creation of an Order that we are bound to accept their objection as valid and reject any applications to grant an Order in these circumstances. But it would be open to the CE to challenge the SoS as to how their view has been taken account of in our decision making process.”
It is important that I read this next part into the record:
“Similarly, we would be bound to explain to any consultee how their view has been taken account of in our decision making processes; the difference is that the CE have explicit statutory powers and duties and our proposal reflects that point. If as you hinted you have legal or other advice which contradicts this view, I would be grateful if you could share it or summarise it”.
We concur with that view.
Andrew George (St. Ives) (LD): So that I can better understand the background, I would be grateful if the Minister could clarify that the Crown estate is answerable to the Treasury and to Parliament and that, under the 1961 Act, one of its primary objectives is to produce a surplus for the Treasury. Does that not create a potential conflict between two separate Government Departments, one of which is there to create financial surpluses for the Government, while the other surely seeks to maintain the responsible management of the marine resource? There is a clear conflict between two Government Departments, and I do not understand how the Minister’s proposals are going to resolve it.
Huw Irranca-Davies: As I pointed out, the amendments have been subject to long discussions. They have been supported by the Shellfish Association of Great Britain and the Crown estate, and they resolve that situation. There will always be a question of the need to resolve different interests across Whitehall. There needs to be close dialogue, whether one is thinking of the Infrastructure Planning Commission, marine planning or most aspects of Government.
It might be worth explaining how the Crown estate works. As the hon. Gentleman rightly points out, the Crown estate manages Crown land on behalf of the Government, and the surplus revenue goes to the Treasury. In return, the monarch receives a fixed annual payment—the civil list. The Crown estate is responsible to Parliament, but is run independently of the Government by a board of appointees. Let me give a brief history lesson of why we have got to where we are today. In 1955, a Government committee under the chairmanship of Sir Malcolm Trustram Eve recommended that to avoid confusion between Government property and Crown land, the latter should be renamed—[Interruption.] I am sorry, Mr. Gale, I have been slightly distracted by the hon. Member for Broxbourne bringing what seems to be a weapon into the Committee.
To avoid the confusion between Government property and the Crown, the latter was to be renamed the Crown estate and managed by an independent board. Those recommendations were implemented by the Crown Estate Acts 1956 and 1961. Under the 1961 Act, the estate is managed by a board, which has a duty to maintain and enhance the value of the estate and the return obtained from it, but with due regard, as I pointed out earlier, to the requirements of good management. The Crown estate must report to Parliament once a year, providing accounts and information about Crown estate activities for the year, including future activities.
In England and Wales, the legal presumption is that the sea bed and the foreshore are owned by the Crown, and that presumption extends to the bed of all tidal rivers and to all islands in tidal rivers and coastal waters. The presumption also applies in the absence of any evidence of a grant by the Crown to any private individual. It is estimated that the Crown estate owns about 50 per cent. of the UK foreshore.
4.15 pm
We cannot use the Marine and Coastal Access Bill to ride roughshod over the Crown estate’s rights as set out in the Crown Estate Acts. To say that shellfisheries, for example, are more important than the Crown estate’s duty is not an argument that would make the running, and it would be very hard to get cross-Government agreement to amend either the Crown Estate Acts or this Bill in a way that would limit its rights.
Does the group of amendments deliver emphatically what everybody wants? The amendments contain the fundamentals of the discussions that have gone on for a long time to resolve problems, especially those between the Shellfish Association of Great Britain and the Crown estate. We have taken the fundamental areas of agreement in principle with those parties and incorporated them into five amendments that work together—not separately. As was debated to some extent in the other place, by considering the amendments today as a package—not one by one—we have a golden opportunity to have several and regulating orders back up and running, to give certainty to the shellfisheries industry, to recognise the rightful regard that we must also have to the Crown estate, to recognise variance where it is needed in long contracts, and to recognise that in some situations there might also be a need for compensation.
The amendments do all those things, and although I appreciate that their details have not been seen for long by many people, their fundamentals have been discussed ad nauseam in meetings with my officials, with me, and with many other people, including representatives of the Shellfish Association of Great Britain and the Crown estate. There is good will to make this happen, and I urge Committee members to take the opportunity.
 
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