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As is often the case—it happens with decisions on pre-legislative scrutiny—there would be discussions between the House authorities and the usual channels on how the MPS would be considered. I would be very surprised if your Lordships’ House did not play an active role in that, given its expertise.
Amendment 85K would remove the link in paragraph 9(5) between the period of public consultation and the time available for scrutiny of the draft marine policy statement. The noble Lord, Lord Greaves, referred to it because of the changes made to the planning legislation to deal with this point. I want to make it clear that we had not intended to curtail the legislatures’ time to consider the marine policy statement; we were concerned to ensure the timely production of the MPS. While we do not wish to create undue delay in the process, we do not want to be so rigid as to inhibit Parliament’s opportunity to give appropriate scrutiny to it.
In our debates on the Planning Act, my noble friend Lady Andrews faced similar amendments and agreed additional time for consideration of national policy statements. Therefore, with the leave of the Committee, I would like to take the amendment away and bring it back on Report. I take the point made by the noble Lord, Lord Greaves, that Members of the Committee would first like to see what the Government are proposing in this House. A legitimate point is being raised through Amendment 85K.
Amendment 86 requires marine policy authorities to lay a copy of the final version of the marine policy statement before the appropriate legislature as part of the adoption process. In Schedule 5, we set out in detail the process of preparation of the MPS. There is a long journey between the preparation and adoption of a final text, made more complex by the necessary input from the devolved Administrations, as we have discussed. Until an MPS has been jointly published by the policy authorities, or that joint publication has at least been agreed upon and arranged by all the relevant policy authorities, it is not certain that any version of the MPS individually adopted by a policy authority will in fact be the final version. Clearly, we need to give time to those who have adopted the text to consider it, and for those who have not to have the opportunity to come on board. It is an iterative process.
Given the role of Parliament and the other UK legislatures in scrutinising the draft marine policy statement, we are of course happy to commit to laying a copy of the final MPS before both Houses of Parliament and the legislatures of the other participating Administrations as part of the publication of the final document, which must happen as soon as reasonably practicable after the MPS has been adopted in its final form by the last participating policy authority. We recognise the need to ensure that Parliament and the legislatures have access to the final MPS as early as possible.
Amendment 86A, proposed by the noble Lord, Lord Taylor, requires that each legislature approves the marine policy statement before it can be adopted
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Clearly, Parliament and the devolved legislatures will have an important role to play in the scrutiny of the marine policy statement. In paragraph 9 of Schedule 5, we provided for a formal legislative scrutiny process, but that is not the end of the story. This Parliament and the devolved legislatures may choose to debate any subject at any time, or to ask dedicated committees to carry out detailed scrutiny into any matter of their choice. Any resolutions reached, or recommendation made, whether as part of the process under paragraph 9 or otherwise, will have to be taken very seriously by this Government and by the devolved Administrations.
What is more, I am quite sure that Members of this House, the other place and the devolved legislatures will be lobbied by individuals and organisations with an interest in the MPS. Indeed, we have already seen that from the lobbying that has taken place on the Bill, and we have seen the insight and expertise that external voices have brought to our debates. I am sure that that will help future scrutiny of marine policy statements.
However—and here we come to the disagreement—the Government do not think it appropriate to treat a statement of policy as though it were draft affirmative secondary legislation by requiring legislative approval of its adoption or withdrawal. I know that that was discussed by the Joint Committee and that the Joint Committee proposed that the MPS should be subject to affirmative resolution. The MPS is not a statement of policy by the UK Government only; it involves each Administration. If, as we hope, the single MPS covers the whole of the United Kingdom, with ownership by the devolved Administrations, then it will require the legislature of each devolved Administration to approve the policy of the other.
I was interested in the contribution made by the noble Lord, Lord Greaves. We are always in danger of replicating what was said on the Planning Act. During the passage of that legislation, the noble Baroness, Lady Hamwee, referred to good scrutiny as being an iterative process. We believe that we have provided the right process. It is substantially similar to that set out in the Planning Act for national policy statements. We think that pressing for approval of policy documents through the equivalent of the affirmative resolution procedure is not the right way to ensure effective scrutiny. We believe that it is for Ministers to make decisions on policy and that they then need to be accountable to the appropriate legislature for those decisions, which is very different from requiring the approval of the legislature before they can make policy decisions in the first place.
Lord Tyler: The noble Lord, Lord Greenway, is not in his accustomed place. If he were, he would be quoting from his committee’s report, which states:
“We asked the Secretary of State whether he felt the MPS should attract Parliamentary scrutiny; he replied ‘if the Committee wanted to suggest a process for Parliamentary scrutiny I would welcome it—I do not have any problem with that at all [...] but we have nothing to fear and everything to welcome from there being scrutiny of the MPS’.”
I am not sure that that completely meets the point that the Minister has been making this afternoon.
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Lord Hunt of Kings Heath: The disagreement between us is about the distinction between scrutiny and Parliament having what can only be described as a legislative role in approving the marine policy statement. The Government are very clear that parliamentary scrutiny is important to this process. That is why this schedule makes provision for allowing that to take place and why we have agreed to take back the amendment tabled by the noble Lord, Lord Taylor, to ensure that Parliament has enough time to do it. The distinction is between effective scrutiny and decision-making. We believe that the decision-making falls to Ministers.
Baroness Hamwee: I am sorry to add to the number of contributions made from these Benches, but I have been prayed in aid. I am glad that we have been consistent on this. When we reached this stage in the passage of the Planning Act, we had the detail regarding scrutiny. That is the distinction. The Minister, John Healey, had undertaken a considerable amount of work, although there were views in this House about the role of this House. That is the distinction. I hope that will satisfy my noble friend. We were assured of the level and detail of scrutiny which was being put in place. Nothing that has been said from these Benches or by the Minister is inconsistent with the other statements from these Benches or the Minister—though I think that there is a difference between us and the Conservative Front Bench, which I hope my noble friend will feel is comforting.
5.15 pm
Lord Hunt of Kings Heath: I am grateful to the noble Baroness for that. I am delighted that I prayed her name in aid on that important matter.
I turn to the circumstances in which a policy authority may feel it necessary to withdraw from the marine policy statement. This relates to the first group of amendments that we discussed today. I very much doubt that any policy authority would take that decision lightly. As I said, it will have severe consequences, not just for its effect on marine planning powers of the devolved Administration but for decision-makers who are using the marine policy statement to inform their work.
Clearly, we hope that that would not happen, but, equally, we need to make provision for what would happen if an Administration felt it necessary to withdraw from the marine policy statement. If that happens, they must be free to take that decision, and then to be answerable to the legislature in the normal way. I rather doubt that we should legislate to require them to seek legislative approval before they take that decision. It is the same argument. Although it would be a grave decision, none the less, it is surely a decision that should fall to Ministers to take—albeit that they will undoubtedly be subject to extensive scrutiny within the appropriate legislature.
I turn to Amendment 89M, which would make any marine plan subject to the appropriate legislative scrutiny process. Previous amendments in this group would give Parliament and devolved legislatures the final say on whether an MPS should be adopted. As I said, we do not believe that it is right to treat the MPS or
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In general, those with an interest in marine issues will have a much greater opportunity to shape what happens than they do now. A separate legislative scrutiny process, with the ability to approve or withdraw plans, might send out the wrong message that the plans are not really part of a process that allows people to get fully involved and that is subject to scrutiny, but in which, finally, Ministers must make the decision. I know that we will come to this in a few moments, but I also point out that there is provision in Schedule 6(13) for an independent investigator to be appointed to look into the proposed plan. If certain proposals in a draft plan appear controversial or unpopular, investigation by an independent person is probably the best way to get to the bottom of the issue and find an appropriate and satisfactory solution.
This is an important matter because we need parliamentary scrutiny; it will aid the development of a rigorous process by which the marine policy statement and marine plans are agreed and adopted. We think that the Bill is right in emphasising the role of Parliament in scrutiny rather than as a legislator, but I accept that we have not got it right on the timing available to Parliament, and I will bring back a government amendment at Report to try to deal with that matter.
Lord Greaves: I am grateful to the Minister for what he said about our amendments. I shall refer his comments to my friends in Scotland and Wales and take further advice. What he said was helpful. I have one further question, however.
On marine plans and the role of the Assemblies and Parliaments, that role might be different in some respects in Wales and Scotland than in England. There is no reason why they have to be identical. One reason is that we in England expect a number of marine plans for different parts of the coast, but there may be just one marine plan each for Scotland and for Wales. That is highly likely in Wales and quite possible in Scotland, I would have thought, so perhaps the Scottish Parliament and the Welsh Assembly could get involved without necessarily having a final veto or having to give their approval. They may want to be involved in the process of developing marine plans, and there is no reason why they should not in a way that would probably not be appropriate in England because of our different circumstances.
On the other matters, we look forward to the Government’s amendments on Report.
On the scrutiny of the marine policy statement by this Parliament, I can only echo the words of my noble friend Lady Hamwee for the second, or perhaps the
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Lord Hunt of Kings Heath: I certainly undertake to write to noble Lords in the light of this debate with any further information that I can give on that matter. I sense that the noble Lord is looking for more detail, if I can give him that, about public participation in the SPP and how that leads to parliamentary scrutiny.
Lord Greaves: That is probably right. The Committee is interested specifically in the role that this House will have in that parliamentary scrutiny, as it was in the scrutiny of other matters.
Lord Hunt of Kings Heath: I will try to give that information. However, it is often not for the Government to say how Parliament will determine how it scrutinises the Executive. Clearly much of that scrutiny falls to be decided quite appropriately by the parliamentary authorities and the usual channels and in discussions between both Houses.
Lord Greaves: That is a very refreshing statement from a government Minister, but the reality is sometimes different because the power of the Government and the usual channels and parliamentary procedures are not clearly discrete; they get all mixed up and muddled.
Lord Hunt of Kings Heath: The noble Lord cannot get away with that. He speaks as though his own party were not part of the usual channels. My experience is that they are only too much part of them.
Lord Greaves: That may be a compliment to those on these Benches in this House. I am not sure that it is entirely true in the House of Commons, but I do not want to get too far into discussing House of Commons procedures and practices here.
I am genuinely grateful for what the Minister said, and we look forward to hearing from him further. The problem is that unless we, and I am sure the Conservatives, are satisfied about these matters, we will bring them back on Report. The fewer things that we can bring back on Report, the more time we will have to concentrate on the things that we really have to concentrate on.
Earl Cathcart: That was a very good debate. I thank the Minister for agreeing to reconsider Amendment 85K on the relevant period for the consultation draft. If I heard him rightly, he said that the final text would be laid before the appropriate legislature for scrutiny, as per our second amendment. However, the Minister’s response to our third amendment, Amendment 86A, was rather predictable. It was what we guessed it might be in moving the amendment. It is further complicated by the devolved issues, which makes it a can of worms. If I heard the Minister correctly, he said that if you have got the sheep in the pen, you do not want anyone opening the gate again. So one must not let the devolved
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Lord Hunt of Kings Heath: I need to make this clear. The noble Earl referred to the final text for parliamentary scrutiny. That is not exactly right. The provision here is for the draft to come before Parliament and the legislatures, and for Parliament to be able to conduct scrutiny properly and respond. I said that when all the work has been done, and after the MPS has been adopted, that information will also be made available to Parliament. It will then be open to Parliament to call Ministers to account, in whatever way, if it does not like the final policy; but by then the policy will have been adopted. However, any appropriate Select Committee can at any time summon Ministers to account for what they do, and further scrutiny can take place then. But it is not as though the final document will be laid for further scrutiny under the Bill.
Earl Cathcart: I thank the Minister for correcting me. I will need to read exactly what has been said in this useful and wide-ranging debate before proceeding further. Perhaps we will need to come back to the point. At this stage, I beg leave to withdraw the amendment.
Amendments 86 and 86A not moved.
86B: Schedule 5, page 229, line 20, after “practicable” insert “, but not longer than three months,”
Baroness Hamwee: In moving Amendment 86B, I shall speak also to Amendments 86C, 86D and 86K. I hope that this is a much more straightforward matter than the previous one. These amendments concern the timetables for the adoption and publication of the marine policy statement and marine plans. The Bill provides for certain things to happen,
which is a phrase used in three places. My amendments propose long-stop periods. The terms “reasonable” or “reasonably” are subjective. They can depend on particular circumstances and, more important, can be too easily abused. My proposal may not give precisely the right periods, but it will give the Minister the opportunity to explain why, other than good will, long-stop periods are not spelt out in the Bill.
Amendment 86D would provide for an authority to publish “their”—not “its”—reasons for not adopting the final text in the circumstances of the paragraph. Despite some of the exchanges that we have had today, I would hope that an authority would publish its reasons, or even “their” reasons, for not doing so. I beg to move.
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5.30 pm
Earl Cathcart: I join the noble Baroness, Lady Hamwee, in expressing concern that the terms “reasonably practicable” and “reasonable period” are neither strong nor clear enough. Could the Minister tell us how he would define these terms? Does he have a suitable timeframe in mind? If so, does he not agree that it would be better to put it in the Bill? Moreover, I suggest that if he cannot tell us how he thinks these terms should be interpreted, a similar problem will be had by all who are trying to follow them.
I also agree with the noble Baroness and with Wildlife and Countryside Link that, if the terms are defined, we may end up with a problem whereby the documents go into limbo between adoption and publication. On our last day in Committee, the Minister gave a full explanation of MPSs and assured us that they would provide a unified context and framework for decision-makers. It is therefore important that the MPS comes into effect as soon as possible. The Minister said that he did not want to be “too precise” about the timetable, but that 2010 is a “critical date”. While he cannot be too precise about the timetable for the preparation of the MPS, could he give us some indication of the time needed for the transition between adoption and publication?
Lord Hunt of Kings Heath: I am sorry that the words,
do not enjoy universal approval among noble Lords. My noble friend has reminded me of the great Health and Safety at Work etc Act 1974, which uses the phrase. Only last year the UK Government won an important case in Europe to protect the wording on the grounds that it indicates a sensible and proportionate approach. There are good reasons why that kind of wording can be used in legislation.
I understand that noble Lords want to know what is meant by the use of this phrase. The problem is that I do not want to be pinned down, because the whole point of using this terminology is to make it clear that something should be done as soon as possible but that the timing has to take account of practical considerations. In most cases, the period will be considerably less than three months and I am happy to make a commitment to publishing as soon as it is reasonably practicable to do so. I fully take the point that, once a marine policy statement or plan has been adopted, it is in no one’s interest to delay its implementation, but it is always possible that an unforeseen problem could cause a delay. If that were to happen, the imposition of a time limit would serve only to force the publication of an MPS or plan before it was reasonably practicable to do so. Noble Lords will also be familiar with the tendency of time limits to gradually become the length of the expected delay, despite the best intentions of all concerned. For those reasons, I urge noble Lords to consider that this is not a bad way to deal with the issue, particularly with my assurance that we would wish to see the document published as soon as possible.
On Amendment 86C, if for whatever reason a policy authority has participated in preparing the MPS but has not adopted the final text, it is allowed a reasonable
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