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23 Feb 2009 : Column 36
Amendment 89JA would allow Scottish Ministers to plan for the Scottish offshore region for devolved functions without the need for the agreement of the Secretary of State. That would extend the provision already made in respect of plans prepared by Welsh Ministers for devolved matters only in the Welsh inshore region. It may help if I explain why that provision for Welsh plans is there. Unlike in Scotland and Northern Ireland, the Welsh Assembly cannot legislate for marine planning in the Welsh inshore region, so we have made provision for Welsh inshore planning in the Bill. However, under current devolution arrangements, Welsh Ministers have existing powers in the Welsh inshore region—particularly in relation to protecting the marine environment—which they currently exercise without the agreement of the Secretary of State. We have therefore included this provision to ensure that the existing devolution arrangements should not be curtailed by this Bill by a need for the Secretary of State to agree plans which cover only devolved matters—to leave the status quo.
Regarding the noble Lord’s amendment, the position of the Scottish offshore region is different. It is not part of devolved Scotland, and although Scottish Ministers have significant functions in that region, they are by no means comprehensive. The Scottish offshore region comprises a significant part of the UK marine area and the UK, rather than the Scottish Executive, retains many key functions in the area, including those relating to international relations with other countries that share borders with that region.
The second of these amendments, Amendment 94A, would remove the definition of “retained functions” as applied to “the Scottish inshore region”. We consider that that could damage the effect of the marine policy statement in that region by creating uncertainty over the decisions to which it should apply. As I explained earlier, if the Scottish Ministers adopt the MPS, it will apply to all decisions relating to the Scottish inshore region. If they do not, it will still apply to retained or reserved functions, so removing that definition would make it unclear which functions these are and threaten most the functions that are reserved to this Parliament. I understood that the noble Lord prefaced his remarks by saying this was a probing amendment. I hope it has probed a satisfactory enough reply from me for him to feel happy to withdraw it.
The remaining amendments, Amendments 97A, 97B and 97C, refer to Clause 59, which sets out how any person may challenge the content of the marine policy statement or marine plans in a court of law. They specifically deal with which court should be applied to. The noble Duke, the Duke of Montrose, expressed his keen interest in this matter. It will be possible to appeal against a published marine policy statement or an adopted plan. Clause 59 provides that any person aggrieved by one of these documents or by a revision or replacement will be able to apply to the relevant court on the grounds that the document is not within the appropriate power or that a procedural requirement has not been complied with.
The amendments limit the courts to which applicants could bring a case. For example, for matters relating to plans in inshore areas in England and Wales, the
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Lord Wallace of Tankerness: I am trying to find what part of the amendment the Minister finds objectionable or would cut off the right of appeal. Is he saying that the Scottish Government have assented to a body, perhaps an oil company, wishing to challenge a provision relating to the marine plan for the Scottish offshore region doing so in the High Court in London as opposed to the Court of Session in Edinburgh? Does he not think that it is logical that if a matter relates to an area in Scottish jurisdiction for other purposes, it should fall to a court of the Scottish jurisdiction, not the High Court, and vice versa?
Lord Davies of Oldham: I indicated that an application challenging the MPS or the marine plan for the offshore region could be heard in the High Court or the Court of Session. I hear what the noble Lord says about the other matters, but he will recognise the wider interests involved in that issue. I assure him that we have framed the Bill on the basis of discussions with the devolved Administrations, and they have looked at this matter with the greatest care, as he would expect. These clauses, which revolve around the powers and the legal basis on which they can be challenged, are part of the agreement that we have reached with the Administrations.
The noble Lord, Lord Wallace, raised the complex main issues in his speech and in his amendments. The noble Lord, Lord Livsey, asked me about the Welsh offshore position with regard to the environment. We have not agreed to devolve offshore nature conservation executively but Welsh Ministers will be able to influence inshore conservation provisions through the marine policy statement and the marine plan, which can cover nature conservation with our consent. Authorities exercising functions in their region must consult and apply the marine policy statement—the noble Lord will recognise the overarching significance of that—but the point he raised is that Welsh Ministers will be able to influence provisions through that statement.
Lord Wallace of Tankerness: The Committee will be grateful to the Minister for his reply and probably even more grateful when he circulates the paper with the list, which will be very helpful, although I understand that we might have been here for a long time had he tried to read it all on to the record. This debate has
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Baroness Hamwee: Before my noble friend withdraws his amendment, as I sense he is going to, I have a final point to make. At the end of his comments on what he described as his “magic” piece of paper, the Minister used the words “in conformity with”. When that piece of paper is circulated, it will be helpful if we know whether we are talking about general conformity or strict conformity. I appreciate that this is not precisely on the amendment that we are discussing, but if we are to understand—and we are groping our way towards it—what the relationships are, that is an important piece of information.
Lord Davies of Oldham: Given what the noble Baroness has said, I thank heaven that I did not read out the statement, but I will make sure that it is circulated and I will include the proviso that she has made.
Lord Wallace of Tankerness: I am grateful to my noble friend Lady Hamwee. I am sure that the distinction between “general conformity” and “strict conformity” comes into the realms of “adjacent” and whatever the other phrase was. Some can read more into that than I can, but I am sure that it is intended to be helpful.
My final point relates to the question of court jurisdiction. I want to think about this, because I believe that the pass is being sold here and may indeed have been sold by Scottish Ministers. My colleagues in the Scottish Parliament will be fascinated that Mr Salmond and others were quite happy to trade off the jurisdiction of the Court of Session, if that is indeed what has happened; it is what I thought the Minister said. If matters happen to fall territorially within Scotland, the application should be to the Court of Session; if they fall territorially within England’s offshore waters, they should fall to the High Court. Ultimately there will be an appeal to what, in time, will be the Supreme Court.
The Duke of Montrose: Is it clear in the noble Lord’s mind that the Scottish offshore area currently falls within the jurisdiction of the Scottish courts? Is this a change that is going to take place under this Bill?
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Lord Wallace of Tankerness: Unless someone can tell me otherwise, the Scottish offshore area is, I think, within the jurisdiction of the Scottish courts. I recall from a previous existence that if, for example, a criminal offence occurs in Scotland on one of the offshore installations, it comes within the jurisdiction of the Sheriffdom of Grampian, Highlands and Islands or of the Scottish High Court. Following the tragedy of Piper Alpha, there was a fatal accident inquiry as well as the inquiry of the noble and learned Lord, Lord Cullen. That seemed to indicate that it was within the jurisdiction of the Scottish courts. With those comments and the possibility of revisiting the issue at a future time, I beg leave to withdraw the amendment.
Schedule 6, as amended, agreed.
Clause 51 : Withdrawal of marine plan
Amendments 89KA and 89KB not moved.
5 pm
Clause 52 : Duty to keep relevant matters under review
Baroness Hooper: In moving Amendment 89L, I shall also speak to Amendments 101BZAA, 106CB, 107A and 107D.
I have a general comment to make before I deal with the detail of the amendments. In a Bill as comprehensive and complex as this, it seems strange that the opportunity to include clear measures to improve the protection, management and enjoyment of our marine heritage has not been taken. I recognise from what the Minister has said on previous occasions that it may be argued that references to the marine heritage and the historic environment are implicit and that it may be pointed out that Clause 112(2), for example, refers to “historic or archaeological interest” in its definition of the environment, but there is insufficient clarity. I would have felt much happier if the amendment that my noble friend Lord Taylor proposed to Clause 2 earlier in Committee had been given a warmer welcome, as it would have made it clear early in the Bill that heritage and marine archaeology are within the scope of the Bill. This group of amendments was therefore
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Amendment 89L would add “historic” and “archaeological” to the list of matters to be kept under review in Clause 52. As we already have a list, and as the Minister has said that such features will be taken into account in licensing, planning and so on, the amendment would ensure that equal weight was given to these features in considering policies on marine plan areas and would clearly distinguish them from more general social or cultural aspects.
Amendments 101BZAA and 107D underline a similar point and would give recognition to the special status of statutory consultees in determining licence applications and in the consultation prior to the designation of a marine conservation zone. When I refer to statutory consultees, I mean mainly English Heritage. There is concern that English Heritage, as an adviser to the Secretary of State for Culture, Media and Sport on the designation of historic wrecks under the 1973 Act, is not to be specifically consulted on proposals to designate an MCZ, which could have implications for its operations in relation to a designated wreck under the Act. The role of statutory consultees is very important in ensuring that decision-making is informed by independent and knowledgeable advice and that complete attention is given to all aspects of any proposal, subject to the decision of the Secretary of State. I believe that the Bill should differentiate between those bodies with a specific role and expertise and other generally interested persons to provide clarity and accountability in the decision-making process. As I have said, those comments apply equally to Amendments 101BZAA and 107D.
Amendment 106CB, which would insert the words “historic and cultural heritage” in Clause 114, would enable the designation of a marine conservation zone on historic and cultural heritage grounds. It would help to ensure the integrated management of all features subject to conservation. Provisions for including the historic environment as supporting features of marine protected areas were included in the marine Bill Green Paper, which preceded this Bill. However, as it emerged, the Bill focuses on nature conservation as grounds for designating marine protected areas, as they were referred to in the Green Paper—they have now been renamed “marine conservation zones”—without any reference to the historic environment. The Bill should ensure that the historic environment is a factor in qualifying the interest of a location to be subject to marine protected area status. Such status would broaden the approach to management by ensuring that other activities that have the potential to impact marine archaeological resources are first assessed against the natural and historic conservation interests of the marine protected area.
Amendment 107A would insert the words “historic or archaeological”. I believe that it is important that the grounds for designation of MCZs take full account of all other features that are subject to statutory protection—again, the 1973 wrecks Act is an example—or that could be subject to protection, including any
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At this stage, these are probing amendments. I hope that the Minister will give us reassurance and a warmer welcome to this aspect than he has previously. I also hope that he will accept that there is considerable interest among a wide range of individuals and relevant organisations in getting this right. We want to be helpful and, as I have said, to ensure co-ordinated management between natural and historic features of the Bill to avoid potential conflict. I beg to move.
Lord Howarth of Newport: I am pleased to follow the noble Baroness, Lady Hooper, who has so cogently introduced this group of amendments standing in her name as well as mine and other noble Lords in all parts of the House. Our purpose in tabling these amendments is to tighten up the language of the Bill, removing ambiguities and making it clear that the legislation is intended to protect the marine historic environment as well as the marine natural environment. I am grateful to the Minister, my noble friend Lord Hunt, for meeting the noble Baroness, Lady Hooper, and myself and for the helpful discussion we had about that general issue and about these amendments in particular.
Amendment 89L to Clause 52 clarifies that, in determining what are relevant matters for a marine plan authority to keep under review, the term cultural includes historic and archaeological. My noble friend may say, as has been said before in proceedings on this Bill, that the Government eschew lists which can be interpreted as excluding other matters that are not specifically included in them. I understand the force of that point generally, but it is not the point here. Here we are simply seeking elucidation of terms to clarify that the legislation is intended to protect the marine historic environment. If you were Neptune or Venus arising from the waves and reading the Bill as drafted for the first time, you would not be at all sure of that. The occasional references to cultural, historic and archaeological interest seem like an afterthought and not integral to the conception of the Bill.
Similarly Amendment 106CB amends Clause 114 to state forthrightly that an authority may designate a marine conservation zone for the purpose of conserving historic and cultural heritage. Without this amendment, it is by no means clear in the Bill that an authority could do so. Amendment 107A clarifies that the authority, in considering whether it is desirable to designate an area as a marine conservation zone, may have regard to the historic and archaeological consequences of doing so. Clause 114 as drafted as far as subsection (6) is exclusively concerned with the natural heritage. The addition in subsection (7) of permission to have regard to economic or social consequences of designation fails to indicate that the authority may also have regard to the consequences for the marine historic environment. The Bill should explicitly require a balanced concern for the various aspects of the environment,
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Amendment 101BZAA to Clause 66 and Amendment 107D to Clause 116 are designed to make clear that bodies charged with a duty to advise the Government on relevant matters and to undertake relevant executive functions on their behalf must be consulted during those processes of taking decisions that will have important consequences for the marine historic environment. Amendment 101BZAA clarifies that in determining an application for a marine licence the licensing authority must have regard to representations not only from,
but also specifically from statutory consultees. Consulting the wider public of people who are interested is right and proper, but we need to make a distinction between that and consultation with organisations that have relevant duties under statute. Amendment 107D similarly clarifies that before designating a marine conservation zone an authority must consult statutory consultees as well as any other persons likely to be interested. Persons “likely to be interested”, in the wording of the Bill, is an odd way to refer to statutory bodies which have clear responsibilities in this area—as English Heritage has in relation to the marine historical environment.
Politically it will be helpful to the Government to make it an avowed principle to consult the relevant non-departmental public bodies. They are different from non-governmental organisations. They are set up by government as independent and expert bodies. A legally binding and clear obligation to consult with them will help to persuade the interested public that the Government genuinely wish to get their decisions right. Such consultation provides a form of audit and accountability.
My noble friend may say that there is no such thing as a statutory consultee and that it is not a term recognised in government. While it may not be an elegant term, it precisely describes something that matters, so why do we not coin it as a useful legislative term? If he really does not like it, we could perhaps use instead the terminology of “partner authorities” that the Government themselves are using in the Local Democracy, Economic Development and Construction Bill. My noble friend may otherwise say that the amendments are unnecessary since by definition statutory consultees must be consulted. That is true in theory, but busy people do not always remember to consult everyone they ought to consult, or appreciate the status of the responses they receive. Bureaucratic jealousies do occur and co-operation between departments can be less than perfect.
5.15 pm
I readily accept that Defra Ministers and officials are working with DCMS and English Heritage at present. Defra is a signatory to English Heritage’s funding agreement and has, I understand, commissioned English Heritage to prepare a position statement on marine development control. Defra, DCMS and English Heritage work together very well on the Aggregates
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The terms of this major legislation should make it unambiguously clear that duties to conserve are duties to conserve the historic as well as the natural environment. We understand why my noble friend Lord Hunt does not intend to attempt a definition of “sustainable” in the Bill, but I do ask the Government to state, in lapidary terms, on the record in Hansard, that when they speak of sustainability and when they legislate on sustainability and conservation, they intend that these terms and these duties embrace the historic as well as the natural environment. Successor officials, and, indeed, the courts, must have no doubt of this.
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