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A distinction need to be made between the measures which the Minister has put forward to get compatibility between these two policy statements and clarification of who can call the shots in each individual application. You could do it either way. We could say that the Infrastructure Planning Commission should be the power on land and at sea for the issues that it covers. Personally, having argued for the creation of marine policy and the MMO because successive planning decisions and successive resource-extraction decisions in the marine environment had over time depleted its value, I think that we were at risk of dribbling away one of our most precious resources as an island through a series of individual planning decisions. Giving the Infrastructure Planning Commission predominance in these decisions would continue to do that on a piecemeal basis. Unless we grip the issue and say that the marine policy statement and the decisions of the MMO at least have parity in terms of the importance of the marine policy statement—and preferably the MMO is the boss in the marine setting—we are missing yet again the benefit that this Bill should be bringing to the marine environment.
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Lord Hunt of Kings Heath: There is little more I can say on this matter. I understand what the noble Baroness is saying, but I hope that the MPS and the NPS are not going to be woolly and vague statements. I fully expect them to be very clear statements, and I expect the IPC to come to a view that will be consistent with both. Equally, I would not ignore the benefit of the IPC calling on the Marine Management Organisation’s expertise when assessing proposals because I am sure that it will have an important contribution to make. Moving away from the clearly stated framework that we set in statute only four months ago would cause a great deal of concern. Any uncertainty about which body was taking the decision would be the worst of all worlds and very confusing indeed.
Baroness Hamwee: There can be clarity but still the problem to which the noble Baroness alluded, because the crunch is when an application is made. If there were parallel approaches rather than slightly different ones, the IPC would have to take a decision in accordance with, rather than having regard to, the marine policy statements, or the Marine Management Organisation would have to have regard to the national policy statements, which is a lesser test than taking decisions in accordance with them,
That was a phrase that we debated on the last occasion. If I understand this correctly, it is not necessarily the Marine Management Organisation that will be taking the decision. The noble Lord made much of the IPC—the Infrastructure Planning Commission, which was quite often referred to as the independent planning commission in the debates on the Planning Act. It is intended to be independent in its approach, though of course it will be dealing with policy statements which come from the Government of the day or which a Government have inherited from their predecessor. The noble Lord is quite right in that. But the public authority taking a decision under Clause 56 will not necessarily be of the same political hue as the Government whose policies
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Lord Hunt of Kings Heath: Surely it is right that these critical issues are decided by Ministers. If there are changes in Administration, that is democracy. That does not mean to say that we should give it to a quango. Quangos should not decide these matters.
Baroness Hamwee: That is exactly my point. In saying that, the Minister strengthens my argument on the first two of these amendments. I wrote down “R” for Report fairly early on in this exchange, and I am sure we will come back to this issue, but for the moment I beg leave to withdraw Amendment 91.
Amendments 92 to 94ZZA not moved.
Clause 57: The appropriate marine policy documents
Amendments 94ZA and 94ZB agreed.
Clause 57, as amended, agreed.
Clause 58: Monitoring of, and periodical reporting on, implementation
Clause 59: Validity of marine policy statements and marine plans
96: Clause 59, page 32, line 33, at end insert—
“( ) that the provisions are not in accordance with any international agreement to which the United Kingdom or the European Union is for the time being a party.”
Lord Greenway: I will also speak to Amendments 97 and 98. Clause 59 deals with the validity of marine policy statements and marine plans. Under subsection (4),
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“A person aggrieved by a relevant document may make an application to the appropriate court on any of the following grounds—
(a) that the document is not within the appropriate powers;
(b) that a procedural requirement has not been complied with”.
My Amendment 96 seeks to add another ground:
- “that the provisions are not in accordance with any international agreement to which the United Kingdom or the European Union is for the time being a party”.
The reason for this is that the provisions in a marine policy statement or marine plan should not be in conflict with the UK’s treaty law obligations under the UN Convention on the Law of the Sea, covering, for example, rights of innocent passage and freedom of navigation, or other conventions, such as MARPOL, dealing with marine pollution. Issues of conflict are matters of substance and should give rise to an automatic right of referral to, and determination by, the courts. This amendment would provide such a course of action.
Amendment 97 refers to subsection (5), which says:
- “Any such application must be made not later than 6 weeks after the publication of the relevant document”.
My amendment seeks to lengthen that period to no later than 12 weeks, as the issues for a referral to a court are likely to be complex, especially where matters of international treaty law need to be considered. A period of six weeks would be insufficient; 12 weeks is much more realistic.
Amendment 98 seeks to add a small new subsection to Clause 60, which deals with the powers of a court over an application under Section 59. My amendment would insert a new paragraph (c) into subsection (3), using the same wording as my Amendment 96, which would require a court to use its powers under subsection (4) to quash or remit a proposal when satisfied that there has been a breach of treaty law obligations. I beg to move.
Earl Cathcart: The noble Lord, Lord Greenway, has tabled interesting amendments, which we support. It is important that it is made absolutely clear that it is an offence if international agreements are not complied with, and that this should mean referral to the courts. Will the Minister tell us whether this is the case?
We have already spoken in our debate on Amendment 73 about the importance of guidance on the implementation of, or compliance with, obligations of the UK under EU treaties and international agreements. We agreed, I think, that it was crucial both for the UK to abide by new and old agreements and for other countries to do the same with regard to us. We cannot operate in a vacuum, and the success of the Bill will depend in large part on how well international agreements are adhered to both by us and by them. I therefore agree with the noble Lord, Lord Greenway, that it is of the utmost importance that we clarify whether non-compliance with international obligations means referral to the courts. Will the Minister clarify the position? Does he agree that it would be helpful to put this into the Bill?
On Amendment 97, six weeks is too short. A person who is aggrieved by a relevant document must have
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Lord Davies of Oldham: I am grateful to both noble Lords who have spoken in this debate. The noble Lord, Lord Greenway, has presented the issues with his usual clarity, and I recognise how important they are. The noble Earl, Lord Cathcart, has asked me a couple of quite specific questions, which I hope I will cover in my response to the amendments.
Amendments 96 and 98, which the noble Lord, Lord Greenway, has proposed, seek to create a new ground on which legal challenges may be brought against marine policy statements or plans; that is, if the MPS or the plans are not in accordance with EU or international obligations. I fully understand the noble Lord’s concern that international shipping treaty obligations might be breached. That is a pretty important matter. If the challenge were successful, the court would be able to quash the document or send it back to an earlier stage in the preparation process.
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The provisions in Clauses 59 and 60 enable anyone who is aggrieved by an MPS or a plan to challenge it if the plan authority failed to comply with the process set out for the document’s preparation, including any procedural requirements contained in a direction delegating the planning functions to another body, or if the plan authority or delegate acted outside their legal powers in preparing the document. This is the same approach that is used in the Planning and Compulsory Purchase Act 2004. Those legal powers to prepare the MPS or the plan must be read in accordance with any limitations imposed by the UK’s existing European Union and international obligations. I assure the Committee, particularly the noble Earl, Lord Cathcart, who emphasised this point, that if the marine plan or the MPS is not in accordance with our EU or international obligations, it has not been prepared within the appropriate powers and may therefore be challenged in the courts. I will ask the noble Lord, Lord Greenway, to withdraw his amendment, because in effect it reaffirms the legal position as it stands and is therefore not required.
Amendment 97 seeks to extend the time window during which legal challenges may be brought against an adopted marine policy statement or plan from six to 12 weeks. This very same issue was discussed in our debate on challenges to national policy statements under the Planning Act 2008, to which the noble Earl, Lord Cathcart, recently referred. The Committee will be familiar with the points that I am about to make. Even if we left aside the Planning Act, which contains this, this is not a new provision. A six-week period for commencing proceedings applies at present to statutory challenges to the development plan under the Town and Country Planning Act, which received Royal Assent in 1990, and the same approach was used again in the Planning and Compulsory Purchase Act 2004.
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The regime that we have set out in the Bill has been designed to provide a fair system that encourages engagement and participation in the process of preparing marine policy documents rather than a reliance on legal challenge after those documents are adopted. We want to avoid the delays that are inevitably caused by such challenges, and the attendant uncertainty and doubt that they cause in the minds of decision-makers and developers. We have prescribed processes for preparing marine policy documents that are clear and open and are undertaken in full public view. The preparation process begins with the publication of a statement of public participation, and sets out how the policy or plan authority intends to involve those who are interested in, or affected by, the document. That statement will be a living document, which is to be kept under review and updated throughout the process.
When the final marine policy statement or plan is adopted and published, it will make clear the date on which it comes into effect. We will ensure that we publish it in ways that are considered to be the most likely to bring it to the attention of anyone who is interested in or likely to be affected by it. We want to ensure that anyone who wants to participate has the opportunity to do so. As I said in our debate on the previous amendment, this is the time for concerns and issues to be raised: when the authority can do something about them. By the time the documents are adopted and published, any concerns should not be new issues. That is why it is reasonable to ask for challenges to be brought within six weeks of the adoption and publication of the document.
The Government are strongly of the view that the six-week period is reasonable in the context of the way in which the marine planning and policy statements are developed. That is why we have tabled Amendment 97ZA, which is grouped with these amendments. We want the six-week rule to be applied consistently across the UK. This would therefore also include any challenge which was brought before the Court of Session in Scotland, which is a change in the Bill as currently drafted. This is a minor and technical amendment which is necessitated by an earlier misunderstanding on our part that their judicial review process requires this. The Scottish Executive have since clarified that this is not the case and stated that they agree that the six-week deadline for applications to challenge the validity of a marine policy statement and marine plan documents should also apply in Scotland. They are at one with us on the six-week period.
In the light of this change and the explanations that I have put forward, I hope the noble Lord, Lord Greenway, will feel that we have taken into account the very important representation he has made and feel able to withdraw the amendment. I also hope that the Committee will feel able in due course to support the government technical amendment.
Lord Greenway: I am grateful for the support of the noble Earl, Lord Cathcart, and for the full response from the Minister. I am gratified by the Minister’s assurance that what I seek to achieve in Amendments 96 and 98 is already covered in law and that the amendments are therefore unnecessary. I am a little
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Amendments 96A and 97 not moved.
Amendments 97A to 97C not moved.
Clause 59, as amended, agreed.
Clause 60: Powers of the court on an application under section 59
Clause 62: Requirement for licence
Lord Hunt of Kings Heath: The many government amendments in this group are of a technical nature, and Amendment 101 is in the name of the noble Lord, Lord Greenway. We have reached Part 4, a significant milestone. This part essentially consolidates a number of Acts into one and modernises marine licensing, bringing it up to modern standards of transparency, fairness and proportionality, as well as—importantly—reducing the number of processes that applications for developments will have to go through.
Clause 63 lists the activities that will require a marine licence. The Bill also provides more effective enforcement of marine licensing legislation. In preparing the Bill we have already made a number of responses in relation to the pre-legislative scrutiny. In replying to a number of the responses we received to the consultation we have tabled government amendments to amend the test of the severity of harm or interference for the issue of remediation notices from “serious harm” or “serious interference” to simply “harm” or “interference”. We believe that harm caused by the commission of an offence should not have to be serious before the person who caused the harm should have to make amends. That is consistent with the “polluter pays” principle.
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We have included Clause 70 in response to recommendation 20 of the Joint Committee’s report which recommends a clear mechanism for appealing licensing decisions of the appropriate licensing authority. We have agreed with Delegated Powers Committee’s recommendations and introduced government amendments, or added my name to opposition amendments, to change some of the procedures for orders made under this part of the Bill from the negative procedure to the affirmative one.
Part 4 is technical and complex and this group of amendments—as with group 20, which I hope we will debate later—includes a number of government amendments. The amendments in group 20 relate to the new enforcement tools being set up in this part. My minor and technical amendments were identified after a careful run-through of the complex Part 4 provisions to ensure that they work and are legally sound. I beg to move.
Lord Greenway: My Amendment 101 seeks to insert paragraph (c) into Clause 63(2), which deals with descriptions of dredging and incineration. Amendment 101 reads,
- “in items 11, 12 and 13 ‘incinerate’ and ‘incineration’ shall not include activities relating to the navigation, management or operation of a vessel”.
Shipboard incineration activities connected with the running or onboard operations of a vessel are already regulated under international agreement through MARPOL, which lays down rules covering when, in which areas and under what conditions shipboard waste may be incinerated. The amendment ensures that such operations are not brought within the scope of licensable activities under the Bill. I hope that the Minister will confirm that that is so.
Lord Hunt of Kings Heath: I am grateful to the noble Lord for tabling this amendment because it allows me to clarify this point in a way that I hope is commendable to him. Let me be clear that it is not the Government’s intention to license those incineration activities that are part of the everyday running and operation of a vessel. Current legislation exempts the incineration of victual or domestic waste originating on vessels and we are not changing that. However, we do not think that a carte blanche exemption in the Bill is the way to do it.
Incineration is subject to a number of international and European rules. The London Protocol and OSPAR generally prohibit incineration but have exceptions for the normal operation of vessels. However, that is not the full picture. Article 16 of MARPOL provides a number of restrictions on the onboard incineration of waste and matter generated during the normal operation of a ship. Waste-management licensing regulations also provide additional conditions on the incineration of waste on board vessels.
It is our intention to use the exemptions order provided by Clause 71 to exempt incineration activities that are part of the everyday running and operation of a vessel in a manner which is compatible with the myriad rules and legislation applied to it. That is the approach used in FEPA, and a quick look at the FEPA exemptions order will show that quite a complex clause would be
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We will cover exemptions in more detail when we come to a later group of amendments. However, as a further reassurance to the Committee, we will consult extensively with industry and other parties when putting together the exemptions order to ensure that we capture all those activities with minimal or no impact in order to get the sensible, fair and proportionate approach to regulation that we seek to achieve. I hope the noble Lord will be satisfied with the reassurance that we intend to deal as I suggested with the exemptions order provided in Clause 71. I therefore hope he will consider not pressing his amendment.
Lord Greenway: I am most grateful for that clarification, which allays my concerns considerably.
Clause 62, as amended, agreed.
Clause 63: Licensable marine activities
100A: Clause 63, page 35, line 28, leave out paragraph (b) and insert—
“(b) from the UK marine licensing area, unless the towing or propelling began outside that area.”
Clause 63, as amended, agreed.
House resumed. Committee to begin again not before 8.30 pm.
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