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My own amendment—Amendment 89CC to Schedule 6—is minor and technical. It makes it clear that the timetable for the statement of public participation for a marine plan must include the consideration of representations made about the consultation draft. This was included in the equivalent paragraph in Schedule 5 on the statement of public participation and we would like to replicate it here for consistency.
I realise that I have responded at some length, but ensuring that the statement of public participation is right and rigorous is important. We think that the provisions here will allow that to happen.
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Lord Taylor of Holbeach: I thank the Minister for the detail in which he has dealt with this series of amendments. I am not entirely sure about this, so much of what I have to say is to clarify my own thinking on the matter. As I understand it, although the legislation talks about “an MPS”, it is rather specific. The schedule refers to a singular, definite
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Furthermore, there can only be one MPS for the entire United Kingdom. I have only one question to ask on that. What happens if any of the relevant authorities seek to negotiate a variance that applies only to its areas of responsibility? Is that envisaged within this legislation, or will there be great lacunas where it has not been possible to reach universal agreement, so that the marine policy statement will not necessarily address any area on which unanimity has not been possible? If there can be variance, that makes a slightly different document from that which perhaps the Minister had implied would exist.
Lord Hunt of Kings Heath: We return to the important question of the practicality of the arrangements for ensuring that there is one marine policy statement for the whole of the United Kingdom that is owned by all the policy authorities—in other words, Ministers in the UK Government and the devolved Administrations. What the noble Lord is saying, and what the noble Duke was saying earlier, is that they would be very worried if the price of agreement led to such a watered-down marine policy statement that it was hardly worth the biscuit. I entirely understand that. Clearly, there would be negotiation. Indeed, officials have started working, as my noble friend said, and are already in preliminary discussions about the development of a marine policy statement.
I cannot stand here and say exactly what will be in an agreed marine policy statement. What I can say is that there is very little point in going through all this process and producing something that in the end is simply not worth it. Clearly, there will be some trade-offs. I am sure that there will be some hard discussions. The UK Government want a marine policy statement that is owned by the devolved Administrations as well. Equally, if one of the devolved Administrations does not join in or leaves the process and does not adopt it, they will lose a considerable amount in terms of their own influence on the statement. For that reason, I am confident that what will be produced, albeit as a result of negotiations—clearly, there will be some compromises—will be one marine policy statement. I am confident that we will do everything that we can to ensure that. From all that I have learnt about the attitude of the devolved Administrations, I am sure that everyone recognises that it is in everyone’s interest to produce a statement of which everyone has ownership and which really is meaningful.
Lord Taylor of Holbeach: I am sorry to come back to the Minister, whom I thank for giving way. We should not plan for failure. Indeed, the whole process must be based on a sense of common and shared objectives, with the devolved authorities participating as equal partners in the development of a policy for the whole United Kingdom. On the other hand, a vacuous compromise would not serve the marine environment at all.
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I was seeking to probe the Minister on what happens if there is dissent. Is it possible, for example, for a wording to be framed within a policy statement taking a slightly different attitude in response to a devolved authority’s position, point of view and even interests, rather than seeking universal application of principles that would be ultimately vacuous and without the drive behind them that the legislation will need? After all, the marine policy statement is a statement of principle; it is in many ways a core document. I am not trying to put the Minister on the spot. I understand his position. However, I think that he can understand that the statement should be bold and courageous. I would not want it to sound vacuous simply because it was founded on compromise.
Lord Hunt of Kings Heath: This is an important discussion, although the noble Lord will understand that I am a little wary of going too far down this pathway. There is not much point in doing this if all that comes out is a vacuous statement of motherhood and apple pie that does not give people clarity or the clear principles applicable to the whole of the United Kingdom under which the marine policy arrangements will take place. Of course, there will be a different emphasis within that context among the different Administrations. I am sure that, as part of negotiations, some recognition will be given to those differences, provided that they take place within the overall principles to which all parties will sign up.
I cannot go much further than that, except to say that I agree that we want a clear marine policy statement with clear principles and not one that is achieved through woolly negotiation leading to woolly words. However, we must have some fallback for failure. The guarantee for the UK Government is that, if the price of agreement was to make the marine policy statement so meaningless that it was not worth it, the Secretary of State could publish one. I hope that that would be very much a last resort, but it is there to avoid the very problem that the noble Lord has raised.
Baroness Hamwee: We will just have to accept that we are going to use acronyms and hope that readers will understand.
On paragraph 1 of the schedule, the Minister referred to the earlier definition. That did not deal with the point, but his point on Section 43 probably does—certainly the point that there is one MPS. However, I think that it would be better to make that terminology absolutely clear. If we have struggled a little, perhaps it will not be crystal clear to new readers. It is not the most important point in the Bill and readers will come to the correct conclusion eventually, but starting off correctly and clearly is always helpful.
I am grateful to the Minister for the assurances that he gave a few minutes ago. Many of us have said that it is sometimes helpful to try to conceive of the almost inconceivable situation of a not-quite-so-good Government and of how it would feel if roles were reversed. Assurances from the Dispatch Box are always welcome but it is better to spell it all out in legislation—provided that that does not give us a whole bible—because
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Amendments 85E to 85JA not moved.
Earl Cathcart: When taking the Planning Bill—it is now an Act—through this House in the previous Session, one of the most important debates we had was on the parliamentary scrutiny of national policy statements. The amendments in this group give the Committee the opportunity to revisit some of those arguments in relation to marine policy statements. The amendments are designed to probe the period in which the MPS will be put out for consultation, and the knotty question of whether the statements should be finally approved by Parliament.
First, the Bill gives the policy authorities complete control over the period that a policy statement will be put out for consultation. Paragraph 9(6) states on page 228:
“The relevant period is the period specified by the policy authority in relation to the consultation draft”.
Given our debates on the Planning Bill, I anticipate that the Minister will draw our attention to the possibility that statements may contain anything from a small tweak to existing policies to a major reworking that would naturally require a more thorough consultation. This amendment seeks to probe the length of time the Minister anticipates that consultation will need to last.
Secondly, as regards parliamentary scrutiny, in the Planning Bill our view was that policy statements should be subject to a resolution of both Houses. The Minister argued very hard that they should not, but I am afraid that we were not convinced, and therefore are not convinced in this instance either. The main argument of the noble Baroness, Lady Andrews, was that it was for the Government to decide policy and for Parliament to decide law. Since the statements are policy, she considered that Parliament’s role of commenting on them was sufficient, even generous. No doubt the Minister will repeat that argument in this instance. However, this comparison is rather simplified and does much to explain the recent trend we have seen under this Government for legislation which is designed to give them as much freedom as possible in an area, rather than to indicate what the power will be used for. This Bill represents another step down that road. It is the first time that I have heard a Bill being referred to as a framework and the speaker intending it to be a positive adjective. I am afraid that I do not see the empowerment of the Executive to do what they like as a positive step. I would prefer to see legislation tied more closely to specific policies to ensure the proper scrutiny of both the implementation and the objectives.
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All this, of course, is tied up in the desire for flexibility. The Government appear to believe that it does not matter if they have not got it right the first time, because the Bill gives them the opportunity to have another stab at it without having to go back to Parliament again. Perhaps it is this attitude that has led to the remarkable increase in judicial reviews in recent years.
When defending the Government’s position on what is now the Planning Act, the Minister compared policy statements to White Papers, which departments produce regularly without parliamentary input. This is perhaps an accurate description, since the Parliament website definition of a White Paper contains the phrase:
“A White Paper will often be the basis for a Bill to be put before Parliament”.
What we have here is the opportunity for the Government to produce White Paper after White Paper, with no need ever to turn that policy into legislation that is then subject to parliamentary scrutiny. Does the Minister really think that essentially taking the whole future of marine planning out of the hands of Parliament is a responsible action?
There is one other issue when looking at this part of the Bill. Paragraph 9(8)(a) of Schedule 5 talks about “either House of Parliament”. Paragraph 9(2) states:
“The policy authority must lay a copy of the consultation draft before the appropriate legislature”.
Sub-paragraph (8) goes on to define the “appropriate legislative body” as,
This Bill starts its passage in this House for a good reason. I am sure that this House would be disappointed if it felt that continued involvement would be denied to it. Will the Minister confirm that this means both Houses of Parliament, rather than just one of them? I beg to move.
Lord Greaves: In speaking to this group, in particular I shall speak to the three amendments in my name and that of my noble friend Lord Wallace of Tankerness. First, I give apologies from my noble friend that he is not able to be in London today. Therefore, I perhaps have to act as a surrogate Scot for the occasion. I can sing “Flower of Scotland” with the best of them, and at rugby matches I probably would do. I had better not pursue that much further, before I am set upon.
In this group, we have Amendments 86FA, 86GB and 89M. I shall speak first to the first two of those, which are on a slightly separate topic relating to when a relevant public authority withdraws from an MPS. The purpose of the amendments is to give a locus to the appropriate legislative body to be involved before a relevant public authority withdraws from an MPS. A “relevant public authority” is the Secretary of State, Scottish Ministers, Welsh Ministers or, in the case of the Department of the Environment in Northern Ireland, the Northern Ireland Assembly.
The scheme for approval of an MPS is set out in Schedule 5. Paragraph 9 provides for the consultation draft to be laid before the appropriate legislature
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Amendment 89M covers the ground of the noble Earl’s amendments. It is a question of parliamentary scrutiny or, possibly in the noble Earl’s case, of giving the various Parliaments and legislatures the ability to approve or disapprove a marine policy statement by affirmative resolution. Our amendment is intended to address the parliamentary deficit in the current proposals, although I notice that in the Government’s response to the Joint Scrutiny Committee report on the draft Bill, they promise that they will bring forward legislation to put in the Bill the same system that applies to national policy statements in the Planning Act. It would be very helpful if the Minister told us more about this and, in particular, gave us an assurance that those government amendments will come before the Bill leaves this House. This is an important matter for this House, as the noble Earl said. It is not just a matter of legislation, but a matter of the involvement, powers and influence of this House. We want to see that legislation before it goes to the other place, otherwise the Minister might find that we write it for him, and perhaps he will then have to change it again when it goes to the other end. It would be far better if the Government could bring those amendments here.
The marine plan authorities are all UK or devolved government bodies, but the involvement of the Houses of Parliament, devolved Parliaments and Assemblies in overseeing the exercise of the powers in relation to the development of marine plans is lacking in the Bill. Schedule 6 makes provision for public, not parliamentary, consultation. Our amendment does not require parliamentary scrutiny, but makes it permissive. In other words, if the Scottish Parliament, for example—I speak in my role as an honorary Scot—wishes to make standing orders or devise procedures which would require Scottish Ministers to present a marine plan to Parliament for scrutiny prior to adoption, it will not vitiate the procedure set out in the Bill, nor the validity of the plan. We are saying: give each of the legislatures the ability to scrutinise this legislation, and to do it properly, but leave it to each legislature to devise the means of scrutiny through their own standing orders, or whatever. That would seem to be in the spirit of devolution.
On that basis, and on the basis of our detailed discussions on the then Planning Bill, we cannot support the proposals put forward by the noble Earl, Lord Cathcart, that the marine policy statement should be subject to an affirmative resolution of this House and the House of Commons. These are complicated matters
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In recent times, the balance of power between the Executive and the legislature—between the Government and Parliament—may have been shifting too far to the Government and too far away from Parliament. On the other hand, the scrutinising procedures of this House and the House of Commons have certainly developed, improved and been extended in recent years. In a number of instances, they have been proved to be more effective now than they used to be, not least in the pre-legislative scrutiny of this Bill. Therefore, these matters are evolving and they may evolve in future, but our view is that it is certainly not for this House to try to rewrite the rules on the basis of a single Bill, whether it is the then Planning Bill or this one. There are certainly major issues and principles here which at the moment mean that we cannot support the Conservative amendment.
The Duke of Montrose: The noble Lord, Lord Greaves, has pointed out that this matter is complicated and confusing. I was certainly confused when I first read the amendment, and I am very grateful that he explained in some detail what he meant by a public authority. The amendment says:
“It shall be competent for the appropriate legislative body to make provision requiring the relevant public authority”.
I thought that perhaps he meant the relevant policy authority, which means the Secretary of State. Certainly in this section we are looking at the place of the legislatures in monitoring the progress of marine policy statements, which will be important. However, we need to see what holding these legislatures have and in what form the notice will come to them. This raises the important issue of the incorporation of views expressed in the marine policy statement by representatives in the various legislative bodies.
Lord Livsey of Talgarth: Perhaps I may add to what has been said by my noble friend Lord Greaves and the noble Earl, Lord Cathcart. I draw attention to Amendment 89BZA, which concerns the marine plan for the Scottish offshore region. I should like to ask the Minister a number of questions. Does the Scottish Parliament currently have a legislative competence to establish Marine Scotland with a remit in respect of the offshore area? I am married to a Scot, have worked in Scotland twice and was even at Murrayfield on Sunday, so I sympathise with the objectives in Scotland. If the answer is that the Scottish Parliament currently does have a legislative competence in that regard, what is the basis for it? If it does not, does the Bill confer powers on the Scottish Parliament to have such a competence? Again, if it does not, will UK Ministers bring forward amendments to the Bill to give the Scottish Parliament the required competence to legislate for Marine Scotland to have an operational remit in the offshore area?
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The amendment also focuses specifically on a biodiversity duty. The duty to further the conservation of biodiversity is set out in Section 1 of the Nature Conservation (Scotland) Act 2004, which is of course Scottish legislation.
The Duke of Montrose: I am grateful to the noble Lord for giving way. I am a little confused because, so far as I understand it, the amendment that he is speaking to has not yet been moved and is not in this group.
Lord Livsey of Talgarth: I apologise.
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Lord Greaves: It is like the Local Democracy, Economic Development and Construction Bill, which we considered in Grand Committee yesterday. We had lots of lists of groupings and they were all different.
Lord Hunt of Kings Heath: Perhaps the noble Lord can tell us to which amendment he was speaking so that we can clarify the matter.
Lord Livsey of Talgarth: I was speaking to Amendment 89BZA.
Lord Hunt of Kings Heath: We are debating the fifth group, comprising Amendments 85K, 86, 86A, 86FA, 86GB and 89M. The noble Lord’s amendment will be debated later, as he has certainly raised an interesting point.
The role of Parliament in scrutinising the work undertaken in the development of a marine policy statement is very important. I was surprised at the criticism of the noble Earl, Lord Cathcart, of the construct of the Bill. There clearly is a balance between over-prescription within legislation which we all believe will last for a very long time, given the average length of time that marine legislation is usually in force, and the ability to make changes through order-making powers. I realise that there will always be an argument about whether we should be more precise in primary legislation or whether the House is content to allow certain issues to be left to secondary legislation.
We have tried to get the balance right and, on parliamentary scrutiny, I think that we have. The scrutiny role of your Lordships’ House is a matter of great importance to all of us. Paragraph 9(2) of Schedule 5 states:
“The policy authority must lay a copy of the consultation draft before the appropriate legislature”,
must be Parliament. That embraces both Houses of Parliament.
The schedule shows the method used to consider the draft and respond to it. Paragraph 9(8) makes it clear that,
- “‘appropriate legislative body’ means ... in the case of the Secretary of State, either House of Parliament”.
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As the noble Earl said, the paragraph later refers to an “appropriate legislative committee”, which means,
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