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If the participants know that whatever work is done to achieve a consensus it then has to go through another process of an independent examination, it might lead to their not working quite so hard to achieve consensus. As I said, the construct of the Bill is an attempt to encourage consensus. If it turned out, alas, in the preparation of each plan, however many are developed, that consensus had failed to be reached on strong, substantial issues in each of them, the Bill allows for an independent examination to take place.

4.15 pm

Baroness Hamwee: I have long thought that those of us involved in politics should have a better training in psychology. I apply that to myself. I understand what the Minister is saying, but the difficulty is that the final decision on whether there should be an independent investigation lies with one side in this argument. That is why I object to it being a discretionary matter.

I make one final comment: EIPs do not need to labour long and tediously over particular items. There is now a well worked-out process for sorting out procedure for pre-hearing work to reduce the amount of time spent in public and sort things out beforehand. I see no reason why that could not also apply in the case of a marine plan. I have spent long enough on this. I will consider what the Minister has had to say and beg leave to withdraw the amendment.

Amendment 89J withdrawn.

Amendment 89JZA not moved.

Amendment 89JZAA not moved.

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Amendment 89JZB

Moved by Baroness Hamwee

89JZB: Schedule 6, page 235, line 31, leave out sub-paragraph (2)

Baroness Hamwee: I will be brief. Amendment 89JZB would leave out paragraph 15(2) in Schedule 6. I did not move my other amendments that deal with the role of the Secretary of State. I realised when I re-read them in preparation for today that I have been rather too affected—or possibly infected—by the Local Democracy, Economic Development and Construction Bill, with which I am involved at the moment and where there is considerable temptation to react against the intervention of the Secretary of State. That is not quite the same here. However, I have retained Amendment 89JZB because, as I read it, the Secretary of State would have a veto over all other marine plan authorities in the adoption of a marine plan. I may have misunderstood some link in the process, which means that it is logical for the Secretary of State to have this veto. However, if it is not a matter of logic but of giving the Secretary of State a power that he would not otherwise have had during the process, I am concerned about the paragraph. I beg to move.

The Duke of Montrose: I am interested to see this amendment, moved by the noble Baroness, Lady Hamwee, but if I understand it rightly the Secretary of State’s powers would exist only in matters that relate to retained functions. He might not be able to veto the whole Bill. I would be interested to hear what the Minister has to say. I am afraid that, speaking from this Dispatch Box, I cannot agree with the noble Baroness that the Secretary of State does not need to give agreement to plans relating to retained functions. As we have spent some time discussing already, this Bill potentially devolves enormous powers. These are mainly executive powers, although there is still the question of whether some legislative power might be needed. The consequences of establishing this complex network of powers over the UK marine area are still uncertain.

Of course, we hope that a sensible method of consultation will be established and maintained, as it is at the moment, and that progress will be made relatively smoothly. However, removing the ability of the Secretary of State to check on decisions affecting retained functions does not seem to be the best way to ensure this. Can the Minister explain to the Committee how a marine plan authority could have any reason for making provisions relating to retained functions? Presumably this would not be to the extent of exercising retained functions. That is surely beyond the powers that even a Secretary of State enjoys under the current legislation. There are clauses in the Bill that perhaps require consideration.

Lord Davies of Oldham: I am grateful to the noble Baroness for the amendment, in which she seeks to clarify certain aspects of the settlement and agreement that we reached with the devolved Administrations. As she indicated, clarity on these matters is of help, and I am grateful to the noble Duke, the Duke of Montrose, for identifying which areas need to be clarified.

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The trouble with the amendment is that it strikes at the heart of the settlement that we have reached with the devolved Administrations for marine planning. We have made available a briefing note and a dedicated session on devolution in relation to this Bill. Noble Lords have been seeking reassurance that new functions have not been legislatively devolved under this Bill; I assure the Committee that they have not. Rather, we have between us agreed a form of executive devolution. This recognises that, while the real benefits of marine planning are achieved only if authorities plan for all activities in the marine environment, it is important that such plans are agreed between Administrations so that we can feel comfortable that important matters, such as UK interests in oil and gas, shipping and defence, are protected.

Under the Bill, the devolved Administrations become the planning authority for the relevant offshore region. They may prepare plans which affect both devolved and non-devolved matters. We believe that it would be almost impossible to plan in respect of devolved matters, predominantly fisheries, some nature conservation functions, renewable energy, and so on, without in some way also affecting retained matters, such as oil and gas exploration and exploitation, defence and shipping. It is because of the complex mix of devolved and reserved or non-devolved matters in the offshore areas that all plans for the offshore areas must be agreed by the Secretary of State before adoption by the marine plan authority, which is exactly the point made so effectively by the noble Duke, the Duke of Montrose.

Similarly, this must also apply to a Welsh plan for the Welsh inshore region if it covers retained functions. This is to ensure appropriate protection for reserved or non-devolved functions, defined in the Bill as retained functions, in the offshore area. This requirement for the Secretary of State to agree all offshore plans and any Welsh inshore plans that relate to non-devolved matters is an important condition of the devolution package for this Bill, which was agreed by the Joint Ministerial Committee across all four Administrations last summer and autumn. It is an approach supported by the devolved Administrations as a way of agreeing to work together for the good of all of us across the UK seas.

I accept that the noble Baroness, Lady Hamwee, approached this position with some element of scepticism; she wanted to be absolutely sure that we are not proceeding with the Bill except on the basis of an agreed position with the devolved Administrations. I assure her on that point, and I therefore hope that she will feel some confidence in withdrawing the amendment.

The Duke of Montrose: There is one point about which I still feel a little uneasy. We have reserved matters in the offshore area, particularly the Northern Irish and Scottish offshore areas, over oil, gas and, as I mentioned, coal. If the United Kingdom Administration wished to see some of these elements developed, we are saying that at the moment the devolved Administrations could put a stop to these things through refusing planning. Perhaps the fact that it is checked by the Secretary of State might overcome that, but it is

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an area that would have to be watched very carefully. It is very easy to say that planning is devolved totally to the peripheral Administrations, and they could prove to put a total stop to any exploitation of the matters that are retained.

Lord Davies of Oldham: We would be in a parlous state indeed if we reached that position. That is why we have built in, throughout the process set out in Schedule 6, specific points at which the Secretary of State must sign off the devolved plan authority’s statement of public participation and the consultation draft of the plan to ensure that the Secretary of State is happy with the direction that the plan preparation is taking. This will avoid any misunderstandings or last-minute disagreements that could jeopardise the adoption of the plan and lead to exactly the situation feared by the noble Duke, the Duke of Montrose. We are proceeding through the development of the plan in terms of the Secretary of State’s necessary information and participation, so that we can create the framework which will obviate the noble Duke’s anxiety and will, I hope, reassure the noble Baroness with regard to her amendment.

Baroness Hamwee: I am grateful for that explanation. I would like to make it clear that my aim is not to disturb the devolution settlement, but to support devolution as much as possible. That is why I approached this paragraph with what the noble Lord described as scepticism—that is not unfair, actually. As he has confirmed, agreement is required even though more than the retained matters will be the subject of the plan. I am grateful for the material which the Government have given as regards the patchwork quilt of powers, and I will further consider what the Minister has said. I beg leave to withdraw the amendment.

Amendment 89JZB withdrawn.

Amendment 89JZC not moved.

Amendment 89JZD

Moved by Lord Hunt of Kings Heath

89JZD: Schedule 6, page 235, line 34, leave out “relate” and insert “include provision relating”

Lord Hunt of Kings Heath: I also have three other government amendments in this group—two to Schedule 6 and two to Clause 57. They are all minor and technical in nature, but they are necessary to improve the clarity of the drafting.

Amendment 89JZD provides clarification to paragraph 15 of Schedule 6 that the agreement of the Secretary of State is necessary only for a Welsh plan for the Welsh inshore region which makes provisions relating to retained functions. We included this provision to ensure that the existing devolution arrangements should not be curtailed by this Bill by the need for the Secretary of State to agree plans which cover only devolved matters.

Amendment 89JB is a minor and technical amendment that corrects an incorrect reference we made in paragraph 15(6) of Schedule 6. This deals with the adoption and publication of a marine plan. The Bill refers to the

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“policy authority” deciding what modifications to the proposals are needed before the final plan becomes adopted. This should read the “marine plan authority” instead.

Amendment 94ZA makes a small change to Clause 57(3), to replace the use of a marine policy document “in force” in the marine plan area with “which is in effect” instead. The reason simply is to ensure consistency in terminology throughout this part of the Bill.

Amendment 94ZB would remove from Clause 57(5)(e) the surplus words,

This relates to the effect of the marine policy statement on decisions. These words are unnecessary because the definition of “adopted” in this clause already includes a reference to the effect of withdrawal from the MPS.

Amendment 89JZD agreed.

4.30 pm

Amendment 89JA

Moved by Lord Wallace of Tankerness

89JA: Schedule 6, page 235, line 34, at end insert “or a marine plan for the Scottish offshore region to the extent that it does not relate to retained functions”

Lord Wallace of Tankerness: The amendments are essentially probing and follow on, in the first respect, from the recent debate about the power of the Secretary of State to approve plans—or not—and that being very much part of the devolved settlement that has been agreed.

Amendment 89JA relates to plans being adopted only with the agreement of the Secretary of State, but seeks to put on a par with the case of a marine plan for the Welsh inshore region—Secretary of State approval does not apply if the plan does not relate to retained functions—

Fisheries were executively devolved to Scottish Ministers subsequent to the Scotland Act. I would welcome the Minister’s clarification that there were no other non-devolved functions in respect of the Scottish offshore region; and that, if a plan under this part of the Act relates to fisheries, the approval of the Secretary of State would still be required as regards any plan for the Scottish offshore region. If that is the case, it is almost re-reserving to a limited extent. The Minister may argue that it is part of the settlement, but it is important that that be clarified.

Amendment 94A is to Clause 57—we are going slightly ahead of ourselves, but the amendment is in this group—where a marine plan for an area in a devolved marine planning region has to have a statement under Clause 49(7) that it contains provisions relating to a retained function. For the purposes of the part of the Act, subsection (7) states that,

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are to be defined as “retained functions”. Put simply, the amendment probes what functions relate to reserved matters and are exercised within the Scottish inshore region. I am sure that the Minister will be able to give us a list of those. If there are none the words will appear redundant but, if there are functions, who will be responsible for dealing with them in the plan for the Scottish inshore region? Will that matter, albeit it concerns “retained functions”, be dealt with by Scottish Ministers subject to the approval of the Secretary of State? Again, I seek clarification from the Minister as to what is covered by “retained functions” in the Scottish inshore region.

The final three amendments, which relate to each other, are about the documentation and possible challenges to it in the courts. As I read Clause 59, an application may be made to the Court of Session or the High Court in respect of a document for a marine plan for an area outwith the English inshore region or the Welsh inshore region. If it is a matter relating to the Scottish offshore region, it appears that it can be raised in the High Court. Vice versa, if it relates to the English offshore region, it could be raised and litigated on in the Court of Session. This amendment would give the Court of Session exclusive jurisdiction over matters arising out of a challenge to a relevant document pertaining to the Scottish offshore region; in other circumstances, it would be the High Court. Where you have the geographical division, it seems natural to have the appropriate division of court jurisdiction as well. Maybe I have misread the Bill, but it did not seem that way. If it has to be the case that a matter relating to the Scottish offshore region could be raised in the High Court or vice versa, it would be interesting to know the ministerial justification.

The Duke of Montrose: I thank the noble Lord, Lord Wallace of Tankerness, for explaining his amendments. I was waiting with interest to hear him explain about the different courts and their jurisdictions in different areas. Can the noble Lord explain how there can be a difference in the treatment of reserved functions between inshore and offshore areas? This subject has interested me greatly since we started debating the Bill. The Minister will probably confirm that there are already more devolved powers in the offshore area than the noble Lord, Lord Wallace, has spoken of, because powers were devolved under the Electricity Act. This means that all renewable energy in the offshore area, as well as all electricity generation, including all transmission lines and interconnectors, are devolved—so if the Scots wish to keep all their electricity to themselves, they could almost cut it off at the border. We would like to hear the Minister’s reply on this matter.

Lord Livsey of Talgarth: I do not want to spoil the party. This amendment refers directly to the Scottish situation, but also to retained functions. The plan is to put the Scottish offshore region on a par with the Welsh inshore region. The Government of Wales Act 2006 is unsatisfactory in many respects where it concerns legislative competence. I seek further clarification. The Minister has already dealt with some points concerning the powers of the Secretary of State. I agree with what

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my noble friend is attempting to do with the amendment as it relates to Scotland. With regard to the publication of a marine plan, it does not relate to retained functions as far as Wales is concerned. It is obvious that the Welsh offshore plan does not fall within the devolved functions of the Welsh Assembly. Paragraph 15(2) of Schedule 6, which has been discussed previously, relates to the powers of the Secretary of State. Sub-paragraph (3) states:

“Sub-paragraph (2) does not apply in the case of a marine plan for the Welsh inshore region if the plan does not relate to retained functions”.

That solidifies the situation. However, the Welsh Assembly Government are bound to be concerned about the situation in the Welsh offshore region. Should they produce an offshore plan, which they may not have the competence to do—I would like the Minister to clarify that—could the Secretary of State veto it?

There are many environmental problems in the Irish Sea. One principle of the Government of Wales Act 1998 was sustainable biodiversity. This is a major statement in the Act. However, what would happen if a large infrastructure project was imminent, or serious inroads were threatened into the viability and sustainability of offshore fisheries? Although the Welsh Assembly has considerable powers in that area, what would happen if the environmental sustainability of the Welsh offshore region were put at risk? If the Welsh Assembly Government attempted to put this right by means of a marine plan for the offshore region, could that be done?

Lord Davies of Oldham: I am grateful to noble Lords who have spoken in this short debate. I have been handed a most useful summary of the various powers which are proposed in this legislation and which exist under other legislation. It is a graphic and valuable illustration, which I shall make available to noble Lords as soon as possible. Had I had the sense to show it to Members of the Committee earlier, I might not have been involved in such intricacies on these amendments. It will clarify the issues greatly. I cannot possibly read it out as it would take an inordinate length of time and I am not sure I could make complete sense of it as it is in columns. However, I shall ensure that it is circulated to all noble Lords who are interested in the Bill. It will be invaluable in understanding where we are now and will also help to clarify the situation for a future discussion on these important and complex issues.

These amendments are interesting. We learnt from our previous discussions that this is a complex area of the Bill and a complex area generally. That is reflected in the drafting of this part of the Bill. It may be helpful if I set out how the devolution agreement works for marine planning in the Scottish inshore and offshore regions. There are two issues to be considered: first, the effect of the MPS on marine plans and, secondly, its effect on decisions. If Scottish Ministers adopt the marine policy statement, with the agreement of the Secretary of State—an issue which we discussed earlier—they will be able to prepare comprehensive marine plans for the Scottish offshore region. Those plans must be in conformity with the marine policy statement, unless relevant considerations apply, and

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will be able to address matters which are devolved to Scotland, such as fisheries, renewable energy generation and some nature conservation functions, as well as matters which are reserved by the UK Parliament. This is obviously our preferred option, towards which both Administrations are committed to working.

That is how the authorities should work together in the future. However, if, for any reason, Scottish Ministers do not adopt the marine policy statement, or if they decide at some stage to withdraw from it, their decisions and those of public authorities in Scotland which relate to devolved functions will not be bound by it. If they do not adopt the marine policy statement or withdraw from it, Scottish Ministers will be able to prepare marine plans only in respect of matters which are devolved to Scotland. I am sure that the Committee recognises the logic of that. Given the complex mix of devolved and reserved functions in the Scottish offshore region, the joint ministerial committee, to which I have made reference earlier, agrees that all plans for the Scottish offshore region should be subject to agreement by the Secretary of State whether or not they expressly make provision for functions which are not devolved.

I reiterate that even if the Scottish Ministers do not adopt the marine policy statement, it will still apply to both the inshore and offshore regions in respect of all decisions in relation to functions which are not devolved. In other words, in the Bill the retained functions are defined in Clause 57.

Separately, Scottish Ministers are preparing a Scottish Marine Bill which will include provision for marine planning in the Scottish inshoreregion. As their recent consultation document on the proposals for a Scottish Marine Bill says,

“To apply marine planning provisions to reserved matters in these waters, the agreement of the UK Government would be needed”.

We are already in discussion with our Scottish colleagues to agree a mechanism that will enable the UK Government to signal our consent to these plans, so that both Administrations can enjoy the benefits of comprehensive marine planning for the Scottish inshore region. As I said earlier, the marine policy statement will apply to reserved matters throughout the UK marine area, including the Scottish inshore region, and we would expect any plan prepared under a Scottish Marine Bill that seeks to address reserved functions to conform to that policy statement.

4.45 pm

The Duke of Montrose: I must thank the Minister for the full and useful explanation he has been giving on some of the matters that have exercised us for some time. I wonder whether that wonderful piece of paper that he has makes it clear that one devolved matter, the Food and Environment Protection Act, is still a major part of the functions that will exist. The Scottish Executive currently use that—certainly in the Scottish inshore area, and I think it applies in the Scottish offshore area.

Lord Davies of Oldham: The answer is yes, and that is without consulting my magic document. I believe that this will also help with such issues.

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