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23 Feb 2009 : Column 81
“Expedient” has two different meanings. One is fairly benign—in that circumstance perhaps there is a case for including it here—the other is loaded with a deprecatory meaning. I want to examine that briefly with the benefit of my noble friend’s research. The Oxford English Dictionary defines “expedient” as,
- “conducive to advantage in general or to a definite purpose; fit, proper or suitable to the circumstances of the case”,
I am sure that the Committee is in favour of things that are just and right but is it also in favour of things that are merely useful and politic? That is only one definition. The first definition in the Concise Oxford Dictionary 1991 is,
At this time of night, I hope that we do not need to explore whether we want to have something that will be immoral; surely we are not in that business. The second definition is, “suitable, appropriate”.
Collins Cobuild Essential English Dictionary 1998 states:
“An expedient is an action or a plan that achieves a particular purpose, but that may not be morally acceptable”.
The Committee is not full to the rafters with Members, but if it was I am sure they would not be terribly keen on something that was not morally acceptable. My noble friend discovered a further definition in Merriam-Webster’s Online Dictionary. It states:
“Expedient usually implies what is immediately advantageous without regard for ethics or consistent principles”.
I await with bated breath to hear what the Minister will say to justify something that has no regard for ethics or consistent principles.
Finally, no Liberal or Liberal Democrat can go into the business of definition without quoting John Stuart Mill. He said:
“The expedient, in the sense in which it is opposed to the right, generally means that which is expedient for the particular interest of the state itself”.
This is a very small amendment based on the concept that “necessary” is quite enough; nothing else is necessary and it simply is not expedient. I speak also to Amendment No. 101ZB, which seeks to leave out “or expedient” at line 40 of page 36. I submit that “necessary” is quite sufficient, and that nothing else is expedient. I beg to move.
Lord Hunt of Kings Heath: The noble Lord, Lord Greaves, never ceases to amaze me. Even when ill he is still assiduous in his activities and research. How much we wish he were with us to expand on that most important point. Before replying to the debate, I have just been informed that there is an error in the list of amendments. In the next group, we should be taking Amendment 101BZBC. Because of degrouping there has been a slight error.
I shall try to set the noble Lord’s mind to rest on the matter. Clause 64(4) allows the licensing authority to require the applicant to provide further information or articles or to permit investigations, examinations and tests that it considers,
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Subsection (5) allows the licensing authority to charge the applicant a reasonable fee to carry out those investigations, examinations and tests.
I understand the point behind the amendment moved by the noble Lord, Lord Tyler. We want the licensing authority to make its decisions as expediently as possible based on the best available information. Clearly, determining licences involves the exercise of judgment. The more information that the licensing authority has about any proposed development the better informed its decision can be. Making a determination is not just making a yes or no decision on whether to grant a licence. It is about attaching the right conditions that will best mitigate the adverse impact of any development or activity. Carrying out tests and investigations is an efficient way of allowing the licensing authority to use its judgment, which will be based on experience and expertise of marine matters. It will gather information that it considers useful in making a well informed and reasonable decision.
An example of a common type of test conducted is one that requires an applicant to provide sediment samples for chemical or particle size analysis in order to identify if it contains unacceptably high levels of organic or inorganic contaminants and how or if the material can be predicted to disperse from a disposal site. In some cases it will be obvious that information is necessary before the licensing authority can be confident of being able to make any sort of determination. An obvious example would be information pertaining to the location of the activity. However, in many cases it will not be so clear cut. Some tests and investigations will be open to challenge on whether they were absolutely necessary for a determination to be made, but which would undoubtedly contribute to a more effective and better determination. Also when a test has been carried out that has confirmed that there is no adverse environmental risk, or even perhaps has failed to produce any meaningful results, a case might be advanced that the investigation was not shown to be necessary.
We are conscious not to overburden industry with a requirement to conduct test after test where the impacts of an activity are likely to be negligible. However, we think this matter is more appropriately addressed operationally as part of ensuring that licensing authorities make effective and sensible decisions based on the particular facts of the case in question. We do not want to hamstring in any way the ability of the licensing authority to be able to make the most effective decisions that it can. We feel that removing the word “expedient” from the legislation would do this. I was interested in the tour de force dictionary definitions of “expedient”. Would it be helpful if I gave the Government’s view of the meaning of the word? It is the first definition given by the noble Lord that it is,
- “conducive to advantage in general or to a definite purpose; fit, proper or suitable to the circumstances of the case”,
which I find entirely satisfactory and useful. The noble Lord then asked what precedents there were for using the word “expedient”. I am glad to say that we have found two. One is from Section 112A(4) of the Energy Act 2004:
- “if a notice under subsection (1) requires information in connection with a function of the Secretary of State under Section 107(1) or (4), the notice may require the provision of information or
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Section 43 of the Natural Environment and Rural Communities Act 2006, under “Possession of pesticides harmful to wildlife”, has two parts. The second part says:
“The Secretary of State may not make an order under subsection (1) unless he is satisfied that it is necessary or expedient to do so in the interests of protecting wild birds or wild animals from harm”.
In essence, there is a precedent and it is sensible and proportionate to allow us to have “expedient” in the Bill.
Lord Tyler: I do not know how the noble Lord, Lord Greaves, would respond to that, but I think that he would express gratitude to the Minister for establishing the precedents—this House likes its precedents. I still think that “expedient” in all other definitions, which have not been quoted by the Minister but which my noble friend referred to, has a deprecatory sense; that is even in the Oxford English Dictionary. “Necessary”, “desirable” or “appropriate” might be more suitable here. The noble Lord is clearly trying to make this legally watertight—to coin a phrase—so that it will not be challenged. So be it; that is right. I suspect that “expedient” is just as likely to be challenged by some clever lawyer as the other words that we have referred to as possible alternatives. Nevertheless, this is, I am sure, not an issue on which we want to spend any more time. I therefore beg leave to withdraw the amendment.
8.45 pm
Clause 65: Notice of applications
101ZC: Clause 65, page 37, line 10, at end insert—
“(2A) Having received an application for a marine licence in an inshore region, the appropriate licensing authority must notify—
(a) in the case of an application in England, the appropriate local authority or local authorities and the appropriate inshore fishing conservation authority,
(b) in the case of an application in Wales, the appropriate local authority or local authorities and any person or body that the Welsh Ministers require to be notified.
(2B) In subsection (2A) “local authority” means—
(a) a county council in England,
(b) a district council in England,
(c) a London Borough,
(d) the Council of the Isles of Scilly and
(e) a Welsh county or district council.”
Baroness Hamwee: Amendment 101ZC is part of a long group. I hope that I manage to pick up all the amendments; again, there are amendments tabled by my noble friend Lord Greaves. Amendment 101ZC to
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Councils, in my noble friend’s view and mine, should have a statutory right to information about applications being made. The Bill at present says that the licensing authority must publish notice of the application or require the applicant to do so,
- “in such manner as the authority thinks is best calculated to bring the application to the attention of any persons likely to be interested in it”.
No doubt local authorities and IFCs would fall within this on any common-sense point of view, but they are important statutory bodies and should not fall foul of the Government’s resistance to including statutory consultees and so on.
In these days of electronic communications, it is very easy to send out e-mail lists—I am sure that noble Lords get far more notifications of all sorts of things by e-mail than they really want—and that would be a useful and easy thing to do. Indeed, local authorities often send out lists of planning applications in this way.
Amendment 101BZBC is a similar amendment to require these bodies to be consulted on applications as part of the process under Clause 66. It is about a right of consultation, not just notification, so it is stronger than the previous amendment, but the underlying philosophy—the importance of these bodies—is the same.
Amendment 101BZBD is also about the consultation process. Clause 66(6) provides:
“A licensing authority may by regulations make further provision as to the procedure to be followed in connection with”,
various things. The amendment would add “the consultation process”. This really amounts to the licensing authority publishing the system of consultation that it will follow, because clearly those who learn of an application, by whatever means, need to know that they can make representations, how they can make representations and so on.
Amendment 101BZZB is also an amendment to Clause 66, which lists the things that the licensing authority must have regard to—I think that the Minister has referred to this list already today—including the environment, human health, preventing interference with legitimate uses of the sea and,
The amendment to delete those words is a probing amendment, and I invite the Government to give some examples of what they think the authority might think relevant in this context.
Clause 66(3) provides that the licensing authority,
- “must have regard to any representations which it receives from any person having an interest in the outcome of the application”.
Those words after “person” would be deleted by Amendment 101BZAB. Again, the amendment is probing. What is meant by “an interest” in this context? Mostly, in documents that have a legal effect, “interest” is
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We have many examples of applications for development where I would certainly say that those who have a concern about a projected development have a right to be heard—I use that in the widest sense—as well as those who have a legal interest in the subject matter. I suppose that the terrestrial example in my mind is Heathrow Airport, although the Minister would counter this by saying that it should be a matter of policy. A lot of people have an interest in the land that would be the subject of development at Heathrow, but many others have a concern about it.
I come to Amendment 101BZZA. When one becomes a Member of your Lordships’ House, one finds all sorts of strange customs. The lettering of amendments is among them. I could swear that it has changed since I joined this House, but maybe not.
Lord Hunt of Kings Heath: The problem is that far more amendments are now put down, for some reason.
Baroness Hamwee: We become so involved in the Bill as we read it that it is irresistible. But it is not that; I think that the order of the zeds and so on has changed. I am getting support from behind me.
Amendment 101BZZA aims to strengthen the duty to protect marine biodiversity when issuing a licence. There is a duty to have regard to the need to protect the environment, but that is a broad term. Again, this is an amendment that we tabled following an approach by the Wildlife and Countryside Link. We share its concern that a broad definition could result in every project trading off site-specific biodiversity against some more general, indeterminate global environmental gain.
Amendments 101BZAC, 101BZBA, 101BZBB and 101BZBD all deal with consultation on licences. I apologise to your Lordships that I did not take these at the same time as the other amendments to Clause 66. The first of these would impose a requirement for the authority to consult all interested parties—and please do not tease me about the use of the word “interested”. The authority would be required to seek and take account of advice from the statutory conservation bodies and all who know about these things. The detail of mitigating impacts, of imposing conditions and so on is so much within the expertise of a number of organisations that the Government, I am sure, would want them to be consulted in the application procedure.
The Government’s response to the Joint Committee’s report focused on why a list of statutory consultees was not desirable, but we think that a simple requirement to consult without naming bodies or persons would meet the point. As in the previous amendment, electronic communication could be a blessing, not just a curse.
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As for the other amendments in this group, Amendment 101BZAZA is consequential—or pre-sequential, if that is possible. The other one, Amendment 101BZZB, would take from Clause 66 the words,
However, I have made a note to ask the Minister whether that in any way links to a provision in Clause 67 that puzzled me, albeit too late to table an amendment. I am sorry not to have given notice of the question; he may feel that he cannot deal with it this evening. Clause 67(8) allows the Secretary of State to certify that it would be contrary to national security to hold an inquiry, or for the public or particular people to be admitted to an inquiry. I thought that that was—let me use a neutral term—an interesting provision. On these Benches, we have an instinctive reaction against holding an inquiry in private or excluding certain people from an inquiry. I find it particularly curious that an inquiry could be public but that certain people could be kept out of it, unless of course they were causing a disturbance and, after due warning or whatever, the chairman of the tribunal or whatever it might be ordered them to be excluded. I do not know whether there is a link; I admit that this is a little tenuous, but I did not want to let the Committee go by without raising the matter to see whether we could explore why it is necessary.
I am grateful for your Lordships’ indulgence on that long group of amendments.
Lord Taylor of Holbeach: We agree with the noble Baroness that relevant authorities should naturally be informed of applications for licences relevant to their areas, and should be able to feed any views of that application back to the licensing authority. I hope that the Minister will be able to reassure her that the Bill allows for that, and that it is the Government’s intention that interested and expert representations will be given the attention that they deserve.
Again, I have some sympathy with the noble Baroness’s concern that licences should be awarded only after considering the effect on biodiversity, but I am less supportive of the amendment to remove the provision allowing other matters to be considered. As our discussions on Clause 2 made clear, the list of matters that should be considered relevant for a marine body to have regard to when exercising functions is extensive, as well as being a challenge to define. It would be more appropriate to retain some flexibility in the area. Our own amendment in the group—Amendment 101BZBBA—makes it clear that appropriate public authorities, local authorities and IFCAs should be consulted before any application is determined. I hope that the Government will agree that that should be part of the process.
Lord Hunt of Kings Heath: This is a long group of amendments, and I congratulate the noble Baroness on a tour de force—on picking them all up and explaining them as effectively as she did. I shall take
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I shall start with Amendments 101BZZA and 101BZZB, which insert additional considerations that the licensing authority must take into account when determining the application for a marine licence. Amendment 101BZZA makes it explicit that the need to conserve biodiversity should be taken into account. Amendment 101BZZB does away with any considerations not listed. Already it is clear that a number of sometimes competing interests would want to get a mention in the clause.
9 pm
Before addressing specific amendments, it might be helpful if I explain how licensing decisions will take into account sustainable development. As I have said in earlier debates, the marine policy statement will articulate our shared vision, and detailed policies and objectives, for the sustainable development of the marine area. It will bring together all our marine policies, covering social, economic and environmental considerations, to set a clear and consistent framework for decision-makers. Marine licensing authorities will take their decisions in accordance with policies set out in the marine planning statement and subsequent marine plans. In this way, marine licensing will give clear effect to the policies set out in the MPS and the marine plans. Case by case, licensing authorities will obtain relevant scientific input from expert bodies such as CEFAS, and information from other consultees, to allow evidence-based, holistic consideration of the overall impacts and benefits of any particular activity, while having due regard to the need to protect the environment and human health, and prevent interference with other users of the sea. These might be described as baseline considerations that have to be taken into account.
Authorities will be able to add conditions to a licence that will help to mitigate any adverse impact of a proposal. If an activity is to take place in a marine conservation zone, the licensing authority will have further regard to the impacts of the activity on the conservation objectives of that marine conservation zone. The general considerations that a licensing authority can take into account by virtue of Clause 66(1) are therefore already broad.
Amendment 101BZZA would separate the need to conserve biodiversity from the need to protect the environment. Under the Food and Environment Protection Act, the licensing authority must have regard to the marine environment and the living resources that it supports. However, the distinction between the marine environment and living resources may no longer be considered sound. International commitments on the protection of the environment in general, and of marine biodiversity in particular, now emphasise the holistic nature of marine ecosystems. It is the health of the ecosystems in the sea that contributes in large part to determining whether the marine environment as a whole is healthy. The quality of the seawater, seabed and seashore are vital, but so too are the things living in them, or affected by them.
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We do not want to limit environmental considerations to the marine environment alone. For example, it may be necessary to consider the impact on the neighbouring terrestrial environment, to encourage coastal integration, and also to consider the need to protect the environment from global damage. It may also be necessary for the decision-maker to assess the relative significance of the effect of a proposed activity on the global and local environments.
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