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21 Jan 2009 : Column 1706
There is a consistent thread running throughout this. If the noble Lord has spotted inconsistencies, I am happy to look at this further. However, the intent is to adopt a consistent approach.
Lord Cameron of Lochbroom: Perhaps the Minister can help me on the meaning of “is to give” in Clause 2(3). Is that “must” or “may”? If one takes it as meaning that the Secretary of State must give guidance before the MMO can,
then the MMO cannot operate until that guidance is given. That seems to be an odd way round. On the other hand, if it is “may”, there will be a period while the guidance is being prepared when the MMO can carry out its duties under Clause 2(1), as part of its function to make a contribution to sustainable development.
Lord Hunt of Kings Heath: The Secretary of State “is to give” does not quite seem to be “must”. However, I reassure the noble and learned Lord that the intention is to give such guidance, and to make it available on the day that the MMO comes into operation. Clearly, it is very important that the Government give such guidance.
Lord Kingsland: The Minister asked me, in broad terms, whether I found his reply helpful. I always find replies from the Minister helpful; and this case is no exception. However, if no amendments are tabled when we get to the clauses, perhaps a stand part debate might be appropriate to crystallise the way in which he sees this working. A bewildering amount of paper will be descending on the senior management of the MMO. It would be a shame if the Bill did not give clear guidance on how the management should act in those circumstances which—I think the Minister will agree—are bound to arise.
Earl Cathcart: When I moved this, I thought that it would be a quick and easy debate—but obviously it never is. I was reassured by the Minister saying that it was not necessary to legislate, because there will be guidance from the day the MMO is created. However, we then move on to the skeleton MMO, which is being formed beforehand. Presumably there will be some sort of skeleton guidance produced for managers so that they know how to operate.
6 pm
Lord Hunt of Kings Heath: In the formal terms of the guidance within the provisions of Clause 2, I would wish to stick to the intention to produce it so that it is available for the MMO when it formally starts its work. I have already said to the noble Baroness, Lady Byford, that I will seek to discover what early information I can give about the likely terms of the guidance. I am sure that as that evolves more information and discussion will become available.
Earl Cathcart: I thank the Minister for that, which is where we will have to leave this. I hope that the noble Lord, Lord Tyler, was satisfied with the answer he got to his part of the amendment. For my part, I was. I
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Amendments 53 to 55 not moved.
Amendments 56 and 57 not moved.
Clause 10 : Wildlife and Countryside Act 1981
Lord Taylor of Holbeach: With one bound we are free to turn to page 6 of the Bill. Amendment 58 is a probing amendment to clarify what appears to be an unusual limitation in the amendment to the Wildlife and Countryside Act. Clause 40 identifies the “UK marine area” to be from the mean high water spring tide. However, new subsection (12)(a), to be inserted into Section 16 of the Wildlife and Countryside Act under Clause 10(2), limits the MMO’s remit in circumstances to only the mean low water mark. Will the Minister give us a clearer idea of when this restricted definition will be used and why it is not appropriate to keep the same high water boundary in all circumstances? I know very well the Holbeach Marsh coastline where the difference between high water and low water can be several miles. It is very hard to define. Boundaries can be quite important, particularly when dealing with an area of wildlife habitat importance such as the marshlands of the Wash and the north Norfolk coast. I hope that it will be possible to make sure that the Bill does not leave fuzzy edges to these boundaries.
I am aware that mean high spring tide is not necessarily all the land that does not get covered by sea. In marshes, tussocks of high ground are covered by only the rarest high spring tides and not necessarily by a mean high spring tide. Can the Minister help me on how they would fit into the definition of what is sea and what is land?
Baroness Miller of Chilthorne Domer: I support the noble Lord’s amendment. I will speak at greater length when I move my amendments. He has identified a real problem because there are at least two definitions in the Bill. The Minister may say that one definition applies to wildlife and the other applies to planning areas. The planning area definition concerns me more because the interface in planning just on those margins will need greater definition. The noble Lord is right that definitions of exactly what constitutes “sea” throughout the Bill will create confusion, especially where different bodies have different powers potentially over the same areas or perhaps a disputed area. As sea levels rise, the mean high water level will change.
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I was talking to my local estuary forum, the Taw Torridge Estuary Forum, where all the organisations with any interest in the estuary come together, whether it be recreational, wildlife or the local authority. The chairman told me that one of the biggest problems with this Bill is in what is defined and where we decide finally that the powers should begin and end. If they are at high water, that leaves an immense place, as the noble Lord, Lord Holbeach, has just identified. All of us who have seen “Shakespeare in Love” will have seen that beach at the end of the film.
Lord Taylor of Holbeach: I should say that my name is Lord Taylor of Holbeach. Holbeach is just where I come from; Taylor is my name, as was the noble Baroness’s name at one time. The beach to which the noble Baroness refers is Holkham beach, which also has an enormous expanse between the low and high water mark.
Baroness Miller of Chilthorne Domer: The noble Lord is right on both counts. I apologise to him for getting his name wrong. I was so busy trying to remember the film and the beach that I forgot his name. During the passage of the Bill, it would be very useful—I am sure that the Minister will do it now—for the Government to define their thinking exactly on the points between the lowest tide, the highest tide and the average tide, and what that means in terms of the wildlife habitats, for this part of the Bill, and the definition in planning terms for other purposes. It is where those definitions lie that the greatest pressures will come, whether they concern recreation, shell fishing or wildlife conservation—the crunch issues. The tensions that have to be balanced will often appear in that zone, which is why it is important that we are aware of exactly what we are saying when we define it.
Lord Davies of Oldham: I am grateful to the noble Lord and the noble Baroness for their contributions on this amendment. I am glad that the noble Lord has indicated that this is a probing amendment because I have to suggest that it would be quite disastrous were it to be passed. The effect of the amendment would be to remove the definitions of the English inshore region and the restricted inshore region from the provision to be inserted in the Wildlife and Countryside Act.
We need these definitions and to be able to explain what is meant by,
in the new subsection to be inserted into the Wildlife and Countryside Act. Otherwise, we would be giving licence to kill as far as the MMO is concerned on a much wider basis than I am sure the noble Lord would ever have envisaged. But, of course, he is seeking to ensure that the Government know clearly the nature of the definition, on which I hope to reassure him. We intend to convey to the MMO licensing functions clearly defined, but not as broad as they would be if this amendment were to be carried, which would destroy the essential definitions.
The clause transfers the power to grant licences to the MMO. Formerly, these powers have been exercised by the Secretary of State or Natural England under the Wildlife and Countryside Act 1981. By amending the definition of the restricted inshore region throughout
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Lord Taylor of Holbeach: One of our concerns was that the legislation was meant to convey exactly what the Minister has said: there will be areas of sea that are not the responsibility of the MMO for wildlife conservation purposes. Indeed, it is the Government’s purpose, as far as one can gather from the Minister, that those areas of intertidal margins will, for wildlife and conservation purposes, still be considered the responsibility of Natural England, not the Marine Management Organisation. I do not know whether we totally agree with the Government on that matter. It is the cause of some concern that there may be mixed responsibilities in the management of these intertidal areas. I certainly hope that between now and Report stage the Government will consider the ambiguity that this might lead to. While I beg leave to withdraw the amendment today, I hope we will have an opportunity to debate this more fully.
Clause 12: Certain consents under Electricity Act 1989
59: Clause 12, page 6, line 32, leave out paragraphs (a) and (b) and insert—
“(a) it is within the UK marine area as defined in section 40,”
Earl Cathcart: In moving Amendment 59 and speaking to Amendment 61, we seek to clarify the relationship between the Infrastructure Planning Committee—the IPC—and the MMO. As the Bill stands, this relationship is, at best, woolly. I am afraid that “woolly” is what I have written here again. We have heard “flabby” and “fuzzy”; certainly this relationship is unclear. There is no mention of this relationship in the Planning Act, so these two pieces of legislation travel in parallel, yet never seem to join up.
The Planning Act 2008 gives the IPC the power to determine nationally significant infrastructure projects offshore, offshore energy over 100 megawatts and larger harbours. In Committee on the Planning Act, my noble friend Lord Taylor argued that this was inappropriate as it placed the IPC above the MMO in the pecking order when it comes to these projects. The setting up of the MMO was welcomed by nearly everyone. The Environment Agency said that the MMO would be, and I use the phrase again:
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This phrase was echoed by the Marine and Fisheries Agency, among others. Last week this idea of the MMO being champion of the seas was rather pooh-poohed by the Minister. He said that the phrase likened the MMO to a grandiose pressure group. I would argue that he has missed the mood of its proponents. I take the phrase to mean that the MMO will be the leading authority for all marine projects.
However, will it be the marine authority? I believe that its authority will be undermined by the four—and there may be others—exemptions from MMO control; namely, oil and gas installations, which were regulated by BERR and are now regulated by the DECC; large renewable energy installations and major ports, which will be regulated by the IPC; shipping, which will be regulated by the Marine and Coastguard Agency; and the marine conservation zones in Part 5 of the Bill, which will be designated by “the appropriate authority”. I believe that Natural England, and not the MMO, is vying for this position. What role will the MMO have? As it stands, it certainly will not have overall authority.
There are at least six Whitehall departments and a plethora of government agencies and non-government organisations involved in the marine environment. Each has its own agenda. It should be the MMO’s role to take an overview of the impact of human activity on the marine environment and, indeed, the cumulative effects of this activity. Under the EU marine strategy framework directive, which I believe was the directive that my noble friend Lord Kingsland referred to earlier, member states are required to deliver good environmental status, or GES, by applying,
- “an ecosystem-based approach to the management of human activities, ensuring that the collective pressure of such activities is kept within levels compatible with the achievement of good environmental status”.
The MMO is the ideal organisation to ensure compliance with this directive but, as the Bill stands, it does not have the necessary authority, especially where the IPC is concerned. The MMO, as things stand, cannot say no, or that what is proposed is too harmful to the marine environment, or that the cumulative effect will be too damaging. It is the straw that breaks the camel’s back.
Our amendments amend the Planning Act so that the MMO becomes the sole planning authority in the marine environment by removing the power of the IPC to determine offshore generating stations. That is not to say that applicants should not apply to the IPC for planning permission, but the IPC would then make a recommendation to the MMO for a final decision once the MMO has ascertained the effect, or cumulative effect, of the application on the ecosystem.
I realise that this is only one way of skinning the cat. If the IPC is to retain control over larger projects, it is essential that the MMO is a statutory adviser. This still begs the question of what happens if the IPC ignores the advice of the MMO because, let us say, the economic advantages outweigh the environmental concerns. The Minister has already said that,
- “inevitably many tensions will come to the fore in the work of the MMO board”.—[Official Report, 12/1/09; cols. 1061-62.]
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These tensions will be inevitable. We saw this last week when, in balancing the economic good against the environmental concern, a decision was made in favour of a third runway at Heathrow. In the marine environment, both sides are building up their arguments for and against the Severn barrage. With this in mind, I had some sympathy with Amendment 28A once I had heard the arguments put forward by the noble Baroness, Lady Young, last week. She referred to her amendment again today but emphasised that it was a mechanism of last resort.
We all understand the need for offshore infrastructures and this could be made quite plain in the marine policy statement and the guidance to be given to the MMO, and indeed in any memorandum of understanding. The noble Lord, Lord Hunt, while trying to clarify the relationship of the IPC and the MMO, said in Committee on the Planning Bill that:
“The MMO can add additional conditions to an order granting development consent if new information comes to light and can even revoke consent if necessary”.—[Official Report, 14/10/08; col. 694.]
This is, of course, welcome as it implies that the MMO after all will have the ultimate say on large marine developments. I hope that the Minister will stand by that statement. Perhaps something to that effect could be written into the Bill to clarify the situation. I welcome therefore the amendment of the noble Lord, Lord Davies of Coity, Amendment 63, which seeks to give the MMO the power of veto.
We on these Benches believe that the MMO should be the ultimate marine authority—the champion of the seas; the leading authority—and that it should have the teeth it needs. I beg to move.
The Deputy Chairman of Committees (Baroness Fookes): I should point out that if the amendment were to be carried, I could not call Amendments 60 or 60A by reason of pre-emption.
Baroness Miller of Chilthorne Domer: I shall speak to Amendment 60A, which is grouped with this amendment.
With this modestly titled clause, “Certain consents under Electricity Act 1989”, we move into the area of marine renewables, which is one of the most important issues we shall be addressing in the Bill. I regret that the clause is so modestly titled even if it is for bureaucratic reasons. We need to debate, first, as the noble Earl, Lord Cathcart, outlined, the definition of the relationship between the IPC and the MMO. The Joint Committee was clear on that issue and recommended that the Government should revisit the dual body regulatory infrastructure for offshore energy installations because it recognised that the current situation is unsatisfactory.
The Government have sought to define the relationship by virtue of size—I shall come on to what that means in a moment—but given that the Minister said on the first day in Committee that the MMO was to be the handler and resolver of tensions, to give it the role of statutory adviser to the IPC, as my noble friend suggests in Amendment 71, would be the right relationship. The IPC would then surely be in the planning seat for infrastructure projects and the MMO would have to
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On the question of whether the MMO should be able to approve or not approve a generating station, the Government have decided on 100 megawatts of generation as an understandable splitting point. The difficulty with that can be exemplified by the evidence given to the Joint Committee by Mr Carcas on behalf of Pelamis Wave Power. It is particularly appropriate that the British Wind Energy Association has an exhibition in the atrium at the moment which exemplifies the different kinds of marine energy—tidal energy, wave energy and so on. Mr Carcas’s evidence on behalf of Pelamis, at page 94 of Volume II of the evidence, was that wave energy,
- “is essentially stored concentrated wind energy ... we occupy about four to five times less area for an equivalent rated project compared to offshore wind”.
That is important in this context because it might be more appropriate to have a definition based on the size of the sea area taken than on the amount of energy generated. It might be much more difficult for shipping, navigation, marine conservation areas and so on to define a generating plant by the amount of power generated than by the area of sea it occupies. The Government have taken an easy definition at the moment but I am not sure that it is the most appropriate one. We need to debate the issue fully.
The amendment also suggests that the inclusion of an extension is a difficult concept. A generating station may consist of one element—for example, a wave machine—but it may be connected to other generating stations through a collecting station. The wave hub off Cornwell, for example, is the collecting station for many generating stations. How does that sit with the definition? Is each generating station a separate, small consideration that can come under the MMO, or do they all get added together? I shall be interested in the Minister’s definition of “extension”. How many extensions can there be before their development becomes a nationally significant infrastructure project? There are many issues to debate.
We must also debate at greater length the land-sea interface because the Bill does not satisfactorily consider the relationship between a large generating station at sea and the effect it may have on land. The Government created the IPC partly in reaction to the fact that the operation of the Thames Estuary wind farm was held up because the onshore transmission station could not be constructed as the local district council had objected to it for rather too long. The land-sea interface is important. What role will the IPC have as the projects come onto land and what role will the local authority play in resolving what can sometimes be rather large planning issues?
As another example, we are looking at the Atlantic array wind farm in the Bristol Channel, just north of Lundy, which will have requirements with big knock-on effects. On land, it will need construction bases, all
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6.30 pm
The Duke of Montrose: I add my support to my noble friend’s Amendment 61 and ask the Minister to say how he regards the wording:
“Nothing in this section applies to applications for offshore generating stations within the UK marine area”.
My concern is how that falls in the whole question of devolution because, like one or two other noble Lords, I sat in on the construction of the Scotland Act 1998 and I have tried to follow its progress ever since. It was perfectly clear then—and I have had an update from Butterworths—that under Section D1 of Schedule 5 the Act reserves:
“Generation, transmission ... and supply of electricity”,
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