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Biodiversity has been a hot topic, in particular in relation to Cardigan Bay, where netsmen on trawlers with heavy-duty equipment are ruining the seabed by dredging it for various shellfish. This is happening beyond the 12-mile limit of the inshore area contained in the Bill for Wales. To secure proper biodiversity in areas such as Cardigan Bay, we need the powers to police beyond the 12-mile limit. If the Minister accepts this amendment, which I hope he does, will he consider a similar amendment for Wales? I believe, from my knowledge of the Government of Wales Acts 1998 and 2006, that the Welsh Assembly does not have this power.
The Minister of State, Department of Energy and Climate Change & Department for Environment, Food and Rural Affairs (Lord Hunt of Kings Heath): This has been a very interesting discussion. I will start with the proposal from the noble Lord, Lord Wallace, for a new clause specifically on a marine plan for the Scottish offshore region. This would enable Scottish Ministers to place a duty on every public body and officeholder to further the conservation of biodiversity. The intent of the amendment is to incorporate this duty in a marine plan for the Scottish offshore region, under legislation to be passed following scrutiny by the Scottish Parliament. The amendment would also pass competence for this legislation to the Scottish Parliament. The terms “public body”, “office-holder” and,
come from the Nature Conservation (Scotland) Act 2004.
Before I respond, let me just say that I believe that we have sent noble Lords the high-level objectives in draft. Given that we have sent a lot of paper to noble Lords, I am very happy to pick up the suggestion of the noble Duke that we do so again.
The first issue here is further devolution to the Scottish Parliament, which is a significant matter of principle. Noble Lords will know—this is also a response to the noble Lord, Lord Livsey—that the Bill has been drafted within the current devolution settlement. The Government and the devolved Administrations have agreed that new powers in the Marine and Coastal Access Bill will be the subject not of legislative devolution but of a form of executive devolution, under which the Scottish Government will operate the legislation.
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What is the relationship between executive devolution and the Scottish Parliament? As I understand it, the Scottish Parliament will be able to hold Scottish Ministers to account. Under the Bill’s planning and nature conservation provisions, there will also be a role for this Parliament—I suggest that there is a similarity here—in that it will be able to hold UK Ministers to account for the way in which they exercise their right to agree or disagree with Scottish Ministers’ proposals. Essentially, that recognises the reality of the current complex mix of reserved and devolved matters in the marine environment.
We have all agreed that a new system of marine planning is needed to enable us to manage our seas better. For it to deliver the benefits that we all want, the marine policy statement and the plans underneath it need to impact across the breadth of interest in our seas. We must secure issues of national importance, such as defence, shipping, oil and gas. That is why the Government have to agree to marine plans drawn up by Scottish Ministers, which is a very important part of ensuring that such matters are protected.
Scottish Ministers may exercise in any manner they deem appropriate the functions that they already have. That must include establishing Marine Scotland. Once the Bill has been enacted, Scottish Ministers will also have marine planning and the Bill’s nature conservation functions in the offshore area, with the UK Government retaining functions on defence, oil, gas and shipping. Scottish Ministers do not have the competence to give those functions to Marine Scotland. As I understand it, Marine Scotland will, legally speaking, be a part of the Scottish Executive. Therefore, Scottish Ministers do not need any powers to set it up as they wish or to give it the functions that they wish it to exercise. Legally speaking, the actions of Marine Scotland will be those of the Scottish Ministers and, from my understanding of the Scottish Parliament, I believe that Scottish Ministers will of course be held accountable by the Scottish Parliament for the exercise of those powers.
The Duke of Montrose: When we talk about reserved matters under the Scotland Act, coal always gets missed out. It is not entirely beyond imagination that there is coal under the sea.
Lord Hunt of Kings Heath: Yes. Is the noble Duke asking whether coal is covered?
The Duke of Montrose: Coal is reserved to Westminster, as are gas and oil.
Lord Hunt of Kings Heath: The noble Duke is berating me for missing out the importance of coal. I apologise to him. I am well aware of its importance.
On biodiversity, the simple and straightforward answer is that, although we do not use the wording used by the noble Lord, we believe that we have covered the matter in the Bill. In Clause 121, there is a duty on public bodies, including those in the Scottish offshore area, to further the conservation objectives of designated sites. Moreover, public authorities must
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Further than that, sustainable development and the vital place that conservation occupies in our suite of marine policies are captured in the marine policy statement under Clause 42 and in marine plans under Clause 49. Those documents will clearly set out how our policies will contribute to achieving sustainable development and how we intend to treat fragile, rare and representative parts of our marine environment and to further the conservation of biodiversity. They will also steer the marine licensing process that is subject to Part 4 of the Bill—we might get to it one day—under which decisions must be made in accordance with the marine policy statement and with marine plans. Through that mechanism, the Bill will ensure that all decision-makers in the marine environment have to consider biodiversity in making their decisions.
I hope that I have, in general, reassured the noble Lord that it is quite within the competence of the Scottish Parliament to hold Scottish Ministers to account for their actions under executive devolution.
Lord Wallace of Tankerness: I thank the Minister for his reply, as indeed I thank the noble Duke, the Duke of Montrose, and my noble friend Lord Livsey for their contributions. I note that the Minister used the word “complex” about some of these arrangements; his reply underlined that. My concern, which the Minister has addressed to a considerable extent—although, given the complexity, it is something that we would want to go away and consider—is that, for the offshore region, the Scottish Parliament has no say in determining what the powers might be in relation to Scottish Ministers, albeit that it can call them to account.
Some of the paperwork that the Minister’s department has sent us, to which he referred, is genuinely helpful and some of the maps are particularly useful. The one on who will issue marine licences, which I happen to be looking at, has a map relating to construction work. The areas in which Scottish Ministers will issue a marine licence are striped and the areas where Scottish Ministers will issue a FEPA licence—the inshore waters—is blue. The document says that the Scottish Executive intend to replace the FEPA regime with a new licensing system under the Scottish Marine Bill. It seems to me that we could, almost certainly, end up with two separate regimes: one to be determined for inshore waters, under the Scottish Marine Bill, and one to be determined elsewhere, under FEPA, one assumes, or under what this Bill puts in place.
If one object is to try to get some consistency between inshore and offshore, it does not necessarily follow that you will get that, even with the best will in the world, if two separate Parliaments are legislating for it. I use that as an example because, while it is now clear that Marine Scotland can be an arm of the Scottish Government and therefore will not necessarily require separate legislation to be established, its functions will be determined in some respects by this Parliament and in others by the Scottish Parliament. I am not sure that that is necessarily the best way to progress. Regarding
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I know that there has been cross-party support to extend the biodiversity duty and a recognition in Scotland that that is not possible under the present powers of the Scottish Parliament. Given that large measure of support, even were these powers not to be granted, perhaps Westminster might look sympathetically on this. I will want to go away and consider what the Minister has said on whether the bits that are in place in this legislation fully address this issue. In that spirit, I wish to withdraw the amendment.
3.30 pm
Schedule 6 : Marine plans: preparation and adoption
Amendment 89BZAA had been withdrawn from the Marshalled List.
89BZB: Schedule 6, page 230, line 10, leave out from “region” to “the” in line 11 and insert “adjoins or is adjacent to”
Lord Hunt of Kings Heath: Paragraph 1 of Schedule 6 sets out a clear intention to ensure that at the start of preparing a marine plan the relevant plan authority must notify the local and regional planning bodies whose areas adjoin or are adjacent to the marine plan area. This includes terrestrial bodies and other marine plan authorities. This is so that each of these planning bodies has as much notice as possible about what is happening and can prepare for their involvement in other plans or perhaps decide to plan at the same time. This will be most beneficial in areas that are particularly difficult to manage, such as cross-border estuaries. We will discuss a number of amendments tabled by noble Lords on all sides of the House. Many of the principles are accepted by the Government, and I have tabled a series of amendments to achieve their effect. In moving my amendment, I shall speak to them.
Amendments 89BG, 89BN, 89BJ, 89BL, 89BM and 89BN insert a requirement to take all reasonable steps to ensure compatibility with Scottish terrestrial development plans as well as with English plans and insert the appropriate definition of the development plan for Scotland. Amendment 89BL corrects an omission from the definition of the relevant Planning Act plan for Wales by inserting a reference to the development plan. Welsh development plans are included in the definition in sub-paragraph 5 and should also appear in sub-paragraph 4(b).
I am also tabling further minor and technical amendments to paragraph 1 of Schedule 6. Amendments 89BZB and 89BZC change the reference for a marine plan authority to notify its intention to plan to marine plan authorities of regions related to the area about to
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Amendment 89BZD is a consequential amendment in that the provision related to Northern Ireland in paragraph 1(2)(d) will no longer be required since the Northern Ireland inshore region adjoins the Northern Ireland offshore region and the Scottish inshore region only. As marine plan authority for the Northern Ireland offshore region, the Department of Environment in Northern Ireland would be notified in any event. Since the Bill does not provide for marine planning in the Scottish inshore region, there is no marine plan authority for the Scottish inshore region under the Bill. Amendment 89BD is a further consequential amendment following from Amendments 89BZB and 89BZC because if the term “related to” is no longer used in this paragraph, there is no need for the definition in paragraph 1(3), and the sub-paragraph can be deleted. However, the term “related to” is used again in paragraph 3, so Amendment 89BK inserts the definition in that paragraph instead.
I hope that is helpful by way of introduction. I am grateful to noble Lords who have tabled relevant amendments. I hope that noble Lords feel that what I have said shows that the Government’s amendments meet the situations that they seek to raise in your Lordships' House today.
Baroness Hamwee: First, I apologise to the Committee on behalf of my noble friend Lord Greaves, who is unwell. As other Ministers have discovered, even when he is not present for a stage of a Bill, he does not stop working. My amendments in this group relate to definitions. I will speak to some of my noble friend’s amendments later, which are also on definitions. I have received definitions taken from five different sources of the term that he was unhappy with. The Minister will be pleased to know that my researches have not been nearly so extensive. Ministers are never sure if they are happier when my noble friend and his energy are present or absent. I hesitate to say “we” in the absence of the Front Bench, but I am certainly happy with the amendments to which the Minister has spoken. There is an elusive quality to this Bill. One thinks one has understood it and something pops up a bit later, just as one squeezes at the front.
My amendments all relate to the wording,
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which, if the Minister’s amendments are accepted, will become more prevalent in this schedule. I was puzzled as to what the distinction is between the terms “adjoins” and “adjacent to”. I used only one source, my own Shorter Oxford English Dictionary, which, to add to my puzzlement, uses one of these terms to define the other. I would have said that “adjoins” means alongside without a gap and that “adjacent” means very near, but I am not sure how far away you can be and still be adjacent. I suggest “contiguous” as an alternative, but only because I was searching for another word in the same category. I would be grateful if the Minister could explain what is meant by “adjacent to” if it means something different from “adjoins”.
The Duke of Montrose: As we have heard, this group contains many detailed amendments which raise interesting issues. We are entering an interesting part of the structure of what the Government are creating. They seem to expect all adjoining or adjacent areas to have some say in what is happening in the next area. This process will obviously have to be handled with some tact. By way of an example, if, as someone suggested, Scotland decided to have only one or two offshore regions, every plan contained in the whole Scottish offshore region would have an input from the Secretary of State, and probably will anyway. It might be worth the Minister putting on the record which Secretary of State that would be. Perhaps that is a bit facetious because it could be construed that more than one has an interest in Scotland.
I was happy to listen to the detail of the amendment tabled by the noble Baroness, Lady Hamwee. Changing “adjoins or is adjacent to” to “contiguous to” and related planning authorities being forewarned of planning, even if they are only partly joined to the marine plan area, are important factors for consideration.
The noble Lord, Lord Wallace of Tankerness, has an amendment in this group which goes into the finer detail of the real nub of the issue of trying to define and manage a border area, in this case between existing Scottish government control and Westminster.
On our previous day in Committee, we spent some time in a similar discussion defining the interests and powers in the Severn estuary, and it would be interesting to see whether the Minister wishes to vary his response. In this case, the options are rather more limited, as Scottish Ministers’ authority would be required for anything that affected their interests. Will the Minister elucidate for the Committee whether there is any place in the Bill in which we can require the Scottish Administration in their control of the relevant parts of the Scottish inshore area to consult another UK area that adjoins it or to which it is adjacent?
On the same subject, will the noble Lord, Lord Wallace, explain why he is so prescriptive about local authorities that have to be consulted? Does he have a strong rationale about the role of local authorities? Perhaps he has more up-to-date information than I do, but my impression is that the Scottish Administration do not yet have a settled view of which model they will use for designating Scottish marine regions in the Scottish inshore area. At least four possible administrative groupings appear to affect the Scottish coastal area,
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Lord Wallace of Tankerness: I am happy to speak to my amendment and to try to answer the questions which the noble Duke, the Duke of Montrose, has asked.
The origin of my amendments is that paragraph 1 of Schedule 6 requires the marine plan authority that is preparing a marine plan for a marine plan area to give notice of its intention to do so to related planning authorities. Paragraph 1(2) of the schedule defines the related planning authorities, and paragraph 1(4) subsequently defines a local planning authority as one,
It struck me that any developments in the English inshore area in the Solway Firth could have implications for Dumfries and Galloway and the area that is inshore but immediately adjoining the estuary of the Tweed could have implications for the Scottish Borders Council.
Amendment 89BG amends the definition of “local planning authority” to include Scottish local planning authorities. I may be wrong, but I believe that it meets the purpose of my amendments probably more felicitously than mine. There is nothing terribly magical about it; it simply recognises proximity, and I am grateful to the Minister for tabling it.
Lord Hunt of Kings Heath: I am very grateful to noble Lords for their amendments. I am sorry to hear that the noble Lord, Lord Greaves, is unwell. We would much prefer him to be present. We know that even when he is not present, his ingenuity in bringing forward amendments means that he will raise issues that we have already discussed and that we will have to have another go. We always welcome his interventions.
The noble Baroness, Lady Hamwee, rightly seeks to probe these areas. My understanding is that the term,
includes any area that partly adjoins or is adjacent to the marine plan area. The planning provisions in the Bill are written to ensure widespread consultation and liaison. Paragraph 1 of Schedule 6 continues this theme with a duty to notify a related planning authority, so it would be out of keeping if planning authorities were not notified because their areas were only partially related to the marine plan area.
Amendments 89BZF, 89BC and 89BF come to the nub of the point that the noble Baroness made about the requirement to notify other planning authorities from the ones that adjoin or are adjacent to the marine plan area. She wants to change this to those that are “contiguous with” the marine plan area. My understanding is that an area that is contiguous is in contact with the marine plan area. We think that that is covered by the term “adjoining”. My understanding is the word “adjacent” includes areas that may not exactly touch the marine plan area but are close to it.
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3.45 pm
The noble Lord, Lord Wallace, is right with his Amendment 89BA. He spotted defective drafting in this area because, as drafted, the Bill does not make the same provisions for notification of Scottish terrestrial planning bodies. More importantly, paragraph 3 of Schedule 6, which requires marine plan authorities to,
compatibility of their plans with these terrestrial development plans, also lacks a reference to Scottish development plans.
We agree that this needs to be rectified, which we have done by reference to the relevant terrestrial planning legislation, as we have done in relation to English and Welsh plans. This will ensure that the notification and compatibility duties automatically adjust to any future changes to the Scottish terrestrial planning system or to local planning authority names or boundaries.
On a more general issue, the noble Duke asked whether the Government’s thinking has moved on since we debated the Severn and the relationship between England and Wales. The blunt answer is that our thinking has not moved on, although I acknowledge that we had an interesting debate when we exposed some of the challenges of ensuring that, in what we have all already agreed is a complex situation, ultimately we get an integrated approach. I am sure that is the aim of all Members of the Committee.
However, the issue is that we have to do this within the context of the devolution settlement. For instance, in our debate two weeks ago, we had an amendment designed to enable joint planning and a joint plan to be produced between two Administrations. Because of the different legal systems, particularly in relation to Scotland and the devolution arrangements, it is very difficult to have such a joint system. But of course we would very much encourage neighbouring plan authorities to co-ordinate planning timetables and make arrangements for collaborative working. Obviously, that would clearly help users of the sea, lovers of the sea and all those with an interest.
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