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I resist the amendments because they seek to introduce into primary legislation what is effectively the development of a policy. That is an administrative and political exercise and need not be enshrined in every detail in statute.
Earl Cathcart: I admire the Minister’s resolve and confidence that the Government will obtain complete consensus when it comes to the MPS. I am not sure that he answered my question about the role of the MMO. Should I be adding that to my list of six?
Lord Davies of Oldham: I apologise to the noble Earl. He asked me that specific question and I ought to have answered it. In responding to the major issues, I missed this very important issue. The first marine policy statement is being worked on, and it will be worked on before the Bill becomes law and the MMO is set up. Of course the MMO, once it has been established, will always be consulted as an interested party on the development of the MPS.
Baroness Hamwee: I find the concept of an obligation to reach agreement quite strange. On partial withdrawal, the Minister chastised me as being negative, and said that it really is not a sensible proposition. If partial withdrawal is not possible, there would be total withdrawal if the parties are not in agreement. In response to his challenge to my political philosophy, I say that perhaps he is too used to polarised politics to understand that situation.
The amendments are not descriptive; they are quite clear. They are not narrative, and they are fairly precise. The Government think that by identifying their objective, the objective will happen. I had better not at the very start of today’s proceedings rise too much to what we have just heard. It was not a terribly satisfactory response; nor do I think that the answer to the noble Earl was one that he will feel entirely happy with. It seems to have come out as something of an afterthought. Of course, the MMO will be consulted when it is relevant. I dare say we will come back to that, if not to the amendments. I beg leave to withdraw the amendment.
3.30 pm
85CA: Clause 43, page 22, line 24, at end insert—
“( ) When preparing an MPS, the policy authorities must carry out an appraisal of the sustainability of the policy.”
Earl Cathcart: I tabled the amendments to probe a little further the differences between the procedures set out in the Planning Act 2008 and this Bill. In particular, Amendments 85CA and 85DBA concern a sustainability
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My first amendment, Amendment 85CA, concerns the need to,
when preparing the MPS. I know that Clause 42(1)(a) says that the MPS must state,
- “general policies ... for contributing to the achievement of sustainable development in the UK marine area”.
I apologise to the Committee if it seems that this amendment goes over old ground, but my comments are important in relation to preparing the MPS and, therefore, relate to this clause.
I have two points. The first concerns the word “contributing”, rather than “promoting”, and goes back to our debate on Clause 2. I do not propose to regurgitate those arguments, other than to say that this overarching policy document, the MPS, should be subject to stronger wording than just “contributing to ... sustainable development”. For example, the marine conservation zones will satisfy the current requirement in the Bill, as there is no doubt that they will contribute to sustainable development. The Bill effectively says, “So that’s all right then. We’ve made our contribution and we can do what we like with the rest of the seas”. I know that that is not the Government’s intention, but that is the effect at the moment. There should be something stronger in the Bill.
My second point concerns the wording that the MPS must state “general policies”. It struck me that the marine policy statement might end up being as woolly as we agreed that Clause 2 was on the objectives of the MMO. The marine policy statement should be a robust document with strong policies clearly set out.
When I was a soldier, we were taught that, before carrying out an operation, the officer commanding had to give his orders. The first and most important part of giving orders was to say what the mission—the prime objective—was. The mission statement had to be clear, concise and, if possible, in one sentence. It would be followed by a detailed method of achieving the aim, so that all those taking part in the operation were left in no doubt as to their role and the part that they were expected to play in achieving that single objective. An example of a mission statement might be, “We will attack and capture the enemy position on top of that hill”. That is clear, concise—it is one sentence—and leaves no doubt as to what the objective is.
I would expect both Clause 2, on the objective of the MMO, and the aim of the MPS to be just as concise. For example, the aim of the MPS might be, “To set out policies to ensure that the marine environment is protected while allowing human activity to continue”. It would then be followed by concise and robust methods of how that was to be achieved and would leave no doubt to all those involved in the marine area of their duties and expectations. Therefore, I have
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The next two amendments concern requirements when reviewing the MPS and were triggered when I read the single sentence in Clause 44. The Planning Act requires that, before a statement is amended, an appraisal of the sustainability of the policy set out in the new aim must be carried out. Secondly, the Act states that a statement can be amended only if the relevant consultation, publicity and parliamentary requirements have been complied with. We should like to ensure that these two requirements are replicated in a review of the MPS.
Paragraph 2(1) of Schedule 5 states that,
but it is not clear that a review includes the provisions laid out in these two amendments. I should be grateful if the Minister could confirm that that is the Government’s intention. If it is, should that not be made clear in the Bill? I beg to move.
Lord Greaves: When I first looked at the amendments in the group, I thought that they were fairly simple and straightforward, and I have been slightly amazed at the wide-ranging speech of the noble Earl, Lord Cathcart, in supporting them. However, we have considerable sympathy with what we understand to be the aim of the first two amendments, Amendments 85CA and 85DBA. I am not sure that they are in exactly the right place in the Bill but I shall be very interested to hear what the Minister says in response to them.
The third amendment in the group, Amendment 85DBB, appears to be in the wrong place. The noble Earl did not seem to speak to it, so I shall not comment on it further. I think that we will be discussing these matters two or three groups ahead.
The main point in the very interesting general comments of the noble Earl concerned the compatibility of this Bill and the Planning Act, and, in particular, whether the regime and rules for the marine policy statement will effectively be the same as for national policy statements under the Planning Act or whether the MPS will in some ways be different. That theme has run through quite a few of our discussions; it is a fairly fundamental issue that the Minister needs to get a grip on, not least so that we understand the position.
Lord Davies of Oldham: As the noble Earl, Lord Cathcart, was generous enough to acknowledge, we have been around this course before. We debated it in the context of Clause 2 and, I think, on one or two other occasions. At that time, we sought to make it clear that we do not in any way, shape or form contend with noble Lords about the objective of ensuring that sustainability forms a significant part of the Bill and an obligation in the marine policy statement. There is no question of any division between us in our desire to make that clear. The difference is that the noble Earl wishes to amend the clause and we are not convinced that that is necessary. It is not that we take the amendment lightly. After all, it strikes at the heart of a significant objective of the Bill and a very important consideration.
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We have consulted very thoroughly. I refer to the noble Baroness’s earlier comment that the draftsmen have worked on the Bill with some care. We asked whether the Bill needed strengthening with the kind of amendment that the noble Earl has put forward here and the answer was clear. As we made explicit in earlier debates, the Bill is drafted to ensure that the achievement of sustainable development in the UK marine area is an important part of the Bill. The MPS should contribute to guaranteeing that that objective, which is a serious obligation, is realised. If the MPS does not make this contribution to sustainability, it is not a marine policy statement under the Bill. The MPS will have an impact assessment, too. I am in no way critical; I am entirely sympathetic to the objectives of the amendments but I am saying merely that the Bill delivers them, so the amendments are not necessary.
The noble Lord, Lord Greaves, said that we will discuss the concept behind the third amendment later. I hope that the noble Earl will accept the obvious point that he is not just pressing at an open door; it is a door that we have already gone through to reach exactly the objectives that he seeks to achieve. The Bill is drafted in those terms and he should have no anxiety about or need to press the amendment. I therefore hope that he will withdraw it.
Baroness Wilcox: The Minister said that consultation took place. Who were the consultees and what was the response? I know that he is giving lots of assurances, but from an outsider’s point of view this seems like a sensible amendment to put in the Bill. However, it is on the consultation that I want a response.
Lord Davies of Oldham: I shall narrow that point. We went back and talked to parliamentary counsel about the drafting of the Bill in terms of awareness and appreciation of the crucial point raised by the noble Earl, Lord Cathcart, on the Bill hitting the objective of sustainability. To be viable, the marine policy statement would require that to be hit. We are entirely secure that the Bill delivers that, which is why I responded with such confidence. I was not talking about extra consultation at that point.
Baroness Wilcox: I thank the Minister for that clarification. It would surely have been sensible to have considered and taken feelings from outside organisations and bodies that are much in favour of and support the Bill. The Minister is saying that consultation was just with the lawyers who drafted the Bill.
Lord Davies of Oldham: That is so, but the noble Baroness will be all too well aware of the consultation preceding the development of the Bill, in which this was a clear objective. We merely sought to reassure ourselves once the noble Earl had tabled his amendment that there was sufficient substance to give additional clarity and support to the concept of sustainability. We are confident that the Bill is correctly drafted and does not need the amendment.
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Lord Greaves: Will the Government set out in some form the difference between national policy statements and marine policy statements and how they will be dealt with procedurally and otherwise? That would be extremely helpful.
Lord Davies of Oldham: I know why, for the best of reasons, the noble Lord was not with us on the previous occasion but I seem to recall this issue having arisen before. We indicated that we were positive in relation to that concept. However, if I am wrong, I reassure him now that we agree with his point and will certainly do that.
Earl Cathcart: That was an interesting debate, on which I have a number of points to make. First, if I were cheeky enough to ask Members of the Committee to write down what they think is the objective of the marine policy statement, having read the relevant clause, we would get a number of different answers, as the Bill is far from clear. Secondly, the Minister did not address the review of the MPS, which was the subject of my second and third amendments. There is no requirement in the Bill that policy authorities must carry out an appraisal of the sustainability of the policy when reviewing an MPS. Thirdly, the Bill still does not set out clearly that policy authorities may amend the MPS only if consultation, publicity and parliamentary requirements set out in Schedule 5 have been complied with in relation to the proposed amendment.
3.45 pm
Lord Davies of Oldham: Perhaps I was too brief when I referred to the impact assessment. I was indicating the process of review in these terms and of course any amendments to the marine policy process would also have to go through adequate consultation. Perhaps I was remiss in not being sufficiently emphatic about the impact assessment. It is a clear part of the MPS process.
Earl Cathcart: I thank the Minister for setting that out quite clearly. I beg leave to withdraw the amendment.
Clause 44: Review of statement
85D: Clause 44, page 22, leave out lines 26 and 27 and insert—
“(1) For so long as an MPS is in effect, the policy authority must keep under review each of the matters referred to in subsection (2).
(a) the effects of the policies in the MPS;
(b) the effectiveness of those policies in securing that the objectives for which the MPS was prepared and adopted are met;
(c) the progress being made towards securing those objectives.
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(3) The policy authorities must from time to time prepare and publish a report on the matters kept under review pursuant to subsection (1).
(4) After publishing a report under subsection (3), the policy authority must decide whether or not to amend or replace the marine plan.
(5) The first report must be published before the expiration of five years beginning with the date on which the MPS was adopted.
(6) After the publication of the first report, successive reports must be published at intervals of no more than five years following the date of publication of the previous report.
(7) Any reference in this section to the replacement of an MPS is a reference to preparing and adopting, in accordance with the provisions of this Part, a fresh MPS which replaces an earlier MPS as determined by section 43(3).”
Baroness Hamwee: I shall speak also to Amendment 85DC. I cannot claim the credit for the drafting of either of these long amendments. The first comes from Link Coalition and relates to the timetable for the review of a marine policy statement. It would leave out the moderately open-ended and brief provision that the policy authorities,
The amendment replaces that provision with a longer one providing for a periodic report on the matters kept under review, the first report to be published within five years of the MPS and then at five-yearly intervals thereafter. This is because of the desirability of a long-stop date for a review rather than the open-ended term “periodically”. The amendment would add the same provisions for monitoring, review and update as are included for marine plans in Clause 58, although after a five-year rather than a three-year period.
Amendment 85D is lifted from Section 11 of the Planning Act 2008, which deals with the position after a material change that was not anticipated when the statement was created. The Planning Act provides what should then happen as regards the NPS—the national policy statement. There should therefore be a similar provision in the case of an MPS—a marine policy statement. The terminology is as exact as it can be, changing “N” for “M”. I beg to move.
The Deputy Chairman of Committees (Lord Colwyn): If this amendment were to be agreed, I would not be able to call Amendment 85DZA, which has already been debated, because of pre-emption.
Earl Cathcart: Again, I agree with the general thrust of these amendments and I hope that the Minister will carefully consider the noble Baroness’s concerns. Every five years is certainly not too often for the MPS to be reviewed. In five years, if everything has gone as the Government think it will, the MMO will be up and running, the marine plans should be rolled out, and the marine conservation zones will be designated by the time of the first review.
Any mistakes in the Government’s policy, or corrections needed to the legislation, must be identified and fixed as soon as possible. The Government have made the point about the need for flexibility several times, and it is true that there will be many developments over the next five years, such as new marine conservation research,
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The Minister may say that the Government do not want to put too much detail into primary legislation. As it stands, Clause 44, entitled “Review of Statement”, is a two-liner, but the Planning Act devoted a whole page to the review of a national policy statement. I am sure that the Minister would want to be as consistent as possible. I know that he was not involved in the Planning Act but, if he has not already done so, he might like to look at Section 6 of that Act. Does he envisage the possibility of reviewing only part of the MPS? Section 6 of the Planning Act allows for part of an NPS to be reviewed, so it should be made possible to review only part of the marine policy statement. After completing a review of all or part of the MPS, the Secretary of State must do one of the following things: amend all or part of the MPS, withdraw that statement’s designation as an MPS, or leave the statement as it is. That comes straight out of Section 5 of the Planning Act.
The noble Baroness raised an interesting point about what happens to ongoing planning decisions in the event that the MPS is under review. The way the Bill is drafted suggests that the original MPS continues until the procedure for amending it is completed. That implies that in the mean time the flawed policy will continue to be applied, even though there is general awareness of its shortcomings. I look forward to hearing how the Minister envisages the statement continuing to operate when under review. Surely it would be preferable to suspend those activities affected by the review until such time as the matter has been resolved. By the same token, as I argued earlier, it should be possible to suspend only that part of the MPS affected by the need for change.
Lord Davies of Oldham: I am grateful to noble Lords who have spoken on these amendments. Of course we want the MPS to be a settled statement of our policies for contributing to the achievement of sustainable development in the UK marine area. We want industry and commerce to be able to rely on the MPS in planning their business and investments, and we do not want to undermine that trust by creating the impression that everything in the MPS is subject to revision every five years, which is what Amendment 85D suggests. That is also the reason why we do not want to create doubt over the status or future of the MPS by enabling all or part of it to be suspended indefinitely in the manner in the new clause inserted by Amendment 85DC. The Committee will appreciate that if these amendments were accepted, they would produce real uncertainty about a crucial area of policy. A policy may indeed be subject to review but there is a world of difference between it being subject to review and then possibly, after consultation, being improved, and a hiatus occurring in which the policy is suspended and everyone has to cope with what has gone by as
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