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Amendment 101BZZB would remove the licensing authority’s ability to consider any factor not listed in the Bill. We want the licensing authority to have the freedom to make decisions based on the particulars of any given case and on the evidence submitted to it. Given the sheer variety of activities that take place in the marine environment, it is important that anything of relevance to any single activity is considered. Indeed, it would be remiss not to do so. Examples of things that might need considering are other people’s legal interests in, or rights to, the land; international good practice guidelines on how certain activities should be carried out; broader social and economic factors; and government policy as laid out in the relevant marine plan. This provision does not detract from the importance of the need to protect the environment and human health, or to prevent interference with other legitimate users of the sea. However, it does help the licensing authority to make holistic, sustainable decisions.
The noble Lord, Lord Taylor, spoke to Amendment 101BZBBA. This would introduce a requirement on the licensing authority to consult the relevant IFCA or public authority if the application could influence a coastal, estuarine or nearshore zone. Amendments 101BZBA and 101BZBC would require the licensing authority to consult local authorities in England and Wales.
We covered the so-called question of statutory consultees in an earlier debate and I do not want to go over old ground but, for a number of reasons, we are worried about having a list. First, there is the risk of the perception of two levels of consultees, with those listed in the legislation being seen as more important than those not listed. Secondly, there is the question of who should be a statutory consultee. Clearly, a diverse range of activities will require a marine licence. Consultees appropriate to an offshore wind farm could be very different from those for a small jetty at the bottom of someone’s garden.
Although consulting the appropriate bodies is essential to effective decision-making, forcing a licensing authority to consult every statutory consultee, regardless of whether it thinks that the application has any impact on its functions, might increase the time and cost of determining small applications which have minimal impacts. There is also the issue of proportionate regulation in this regard.
A list is also inflexible, as we would need to amend primary legislation to take account of any changes to the bodies listed. A prime example is in Part 2 of the Food and Environment Protection Act, which, despite being concerned with the environmental impacts of deposits in the marine environment, requires consultation with the Food Standards Agency. Another example of the inflexibility of using primary legislation is the
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Baroness Miller of Chilthorne Domer: I have been mulling over whether to ask the Minister about one matter. He has tempted me by quoting the example of a small jetty at the bottom of someone’s garden. That brings us firmly back to the issue of that shared zone between high water and low water where, absolutely rightly, local authorities already have a power. Surely, for that reason alone, even if the Minister does not want a long list, they have a particular reason to be consulted because they already have planning powers over that area.
Lord Hunt of Kings Heath: I knew I should mention that small jetty at the bottom of someone’s garden, but I now very much regret it. In those circumstances, of course I would expect a local authority to be consulted, but there is a general problem with lists. Perhaps I can turn to the issue when I come to the amendment on local authorities. My general point is simply about lists in primary legislation. This is an area where legislation is pretty rare, so you have to be wary about what you put in the Bill for fear of seeming inflexible.
Lord Taylor of Holbeach: The Minister was addressing the amendments I have tabled. I should remind him that the wording is,
It is not a list. It is a matter of considering what is relevant to the application and whether it should be considered. It is specific. If IFCA ceased to exist, no doubt there would be legislation for a replacement body, which would replace its functions in previous legislation. It is nothing more than putting into the Bill what the Minister is saying—that licensing authorities would be consulted, because that is what they are about. They want to get it right. There is no list; it is just a matter of procedure. I am surprised the Minister is taking such a hostile view.
Lord Hunt of Kings Heath: I hope that the noble Lord does not think me hostile to his intent. I fully accept that the amendments in this group are partly probing and partly seeking to improve the consultative process, so I am sorry if I give the impression of hostility. I am rather trying to explain why there might need to be a more flexible approach. However, as I go through this, I also hope to reassure the Committee that there will ultimately be an effective process of consultation. This is not a fierce argument between us; it is about the general approach.
If I might explain how we see the licensing authority doing this, we might perhaps reach a conclusion on whether it is the right approach. We envisage the licensing authority producing guidance on who should be consulted for which types of application. That is simply good practice, enabling staff to take a consistent yet flexible approach to consulting those persons most likely to have an interest or expertise in any particular application while seeking to minimise the burden on both consultees and the developer.
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The Marine and Fisheries Agency has a list of those bodies that it regularly consults, depending on the expertise needed. I gather that the list includes bodies such as the Centre for Environment, Fisheries and Aquaculture Science; the Crown Estate and Duchy of Cornwall; English Heritage; the Environment Agency; the Joint Nature Conservation Committee; local harbour authorities and planning authorities; the Maritime and Coastguard Agency; Natural England and the Countryside Council for Wales; the National Federation of Fishermen’s Organisations; the sea fisheries committees—the precursor to IFCAs—and Trinity House. Those are some of the bodies consulted at present under FEPA and the Coast Protection Act, without any specific legislative requirement to do so as the amendments propose.
That list is relevant to Amendment 101ZC, which would require the licensing authority to notify the relevant local authorities of any applications that it receives for activities or developments in the inshore region. Clause 65(1) places the licensing authority under a duty to publish notice of any marine application. That goes beyond the Food and Environment Protection Act 1985, which makes no such provision. Clause 65, as drafted, is designed to force the licensing authority to bring an application to the attention of persons who, in its opinion, are likely to be affected by or interested in it. It must be the case that local authorities would be included when the marine development is likely to affect the inshore region or the owners of transport infrastructure. Additionally, Clause 66(3) requires the licensing authority to have due regard to any representations that it receives from any person having an interest in the outcome of the application. That, too, must include local authorities. On top of that, Clause 66(4)(b) gives the licensing authority the power to consult any person or body that it sees as having an expertise in any matter arising from an application, which would clearly include local authorities if the development was in their jurisdiction.
We see these provisions, then, as allowing interested parties to have their say on licensing applications, while requiring the licensing authority to take into full consideration any points made by local authorities, or any other body, interested in or impacted by proposed development or activity. I feel that we have set out the broad principles and powers in the Bill to allow the licensing authority to use its professional discretion about whom to consult on a case-by-case basis, but in all the circumstances that I mentioned I have made it clear that local authorities will be consulted.
On Amendment 101BZBB, I need to clarify the effect of Clause 66(4)(b), which makes it clear that the licensing authority can take into account the views of other bodies on particular cases. Clause 66(4)(a) makes it clear that it can also consult about its general approach to exercising its functions, but it necessarily cannot do that continuously or every time it undertakes a function—hence the inclusion of the words “from time to time”. It is a point of administrative process in giving people affected by those functions an opportunity to comment on and inform them.
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Amendments 101BZAZA and 101BZAB would place a requirement on the licensing authority to have regard to representations that it receives from any persons, not just those who have an interest in the outcome of the application. Amendment 101BZAC would have two effects: first, it would place a requirement on the licensing authority to take account of representations from people with particular expertise in any matter associated with the development; and, secondly, it would force the licensing authority to publish details of how it dealt with any representations and any reasons for not following expert advice. Amendment 101BZBD would provide a power for the licensing authority to set out in regulations more detail on the consultation process for applications. Amendment 101BZBE would make it clear that any such regulations could include provision for notifying any persons who make representations during an application as a result of that application and for the advertising of each licensing determination more broadly.
On the specific question raised by the noble Baroness, Lady Hamwee, by “an interest” in the outcome of an application, we mean not simply a legal interest, such as right, title or legal share in the outcome, but people who are directly affected by it in some way. The licensing authority must have regard to representations from such people. I respond positively to the noble Baroness’s supplementary question. There is nothing to prevent the licensing authority from paying regard to representations from people without the kind of interest that I have just described, including those who may have expertise in any particular area. It is hard to imagine, for instance, that the licensing body would not have regard to a representation from an expert body that it had directly consulted. However, we do not think that there is a need for express provision in the Bill. In some cases, a large number of sometimes frivolous representations may be made by those without an interest, and there is an issue about having a legal obligation to have regard to all of them, which could be bothersome and time-consuming. We are trying to get the right balance between proper consultation taking regard of views and proportionate regulation.
The licensing provisions laid out in this part establish the overarching framework and principles for the new licensing regime. Under Clause 66, each licensing authority will produce secondary legislation that lays out all the applications and decision-making processes in more detail. These details are something on which we want to work closely with all interested parties, including NGOs and industry. We are planning to launch a first early consultation on this legislation in the next few months, followed, subject to the passage of the Bill, by a further consultation on the draft statutory instruments. We want to work closely with all relevant organisations on that. Consultations are a key part of the applications process, all aspects of which will be worked up in regulations under Clause 66(6), so we do not see a need to make specific reference to the consultations process in subsection (6). We plan to include in these regulations the issue that noble Lords have raised in their amendments.
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Amendment 101BZBE is about when and how the licensing authority should publish details of how it dealt with any representations received, whether and when it should notify any person or bodies that made representations in relation to any application of the determination and whether to advertise it more generally. This is something that is done under regulations such as for local planning applications and is something to which we will give careful consideration. It is our intention that these issues should be addressed in secondary legislation and we want to work with interested bodies in putting forward sensible and efficient solutions.
On the question the noble Baroness, Lady Hamwee, raised, Clause 66(1) is about allowing the licensing authority access to all the facts needed to make a holistic, evidence-based decision, and Clause 67(8) is about national security as a clearly necessary provision, although we would expect the licensing authority to need to use that very rarely. I will write to the noble Baroness with more details about the circumstances in which we think that might arise.
I have responded at some length but these are important matters. As a general comment, we believe that the Bill is sufficient, that the necessary provisions are there and that they allow the process to be carried out in a proportionate way. We are wary about the listing which a number of amendments propose.
Lord Tyler: I listened with great care to the Minister but I do not feel he has dealt adequately with Amendment 101BZBA, which is the famous may/must dilemma. He needs to look carefully at Clause 66(4) because, frankly, it does not make good sense at the moment. It states:
“A licensing authority may from time to time consult any person or body it thinks fit”.
There are two qualifications already. It is a very weak statement. If, as the Minister was saying earlier, it is so obvious that the licensing authority has to do this, why put the subsection in there at all? It is so permissive and obviously not mandatory that the licensing authority will, in these terms, ignore it. If it is going to be covered by secondary legislation, which the Minister implied in a more general sense about this group of amendments, why is it here as well? There may be a better case for making subsection (4)(b) permissive, but these qualifications in subsection (4)(a) offer a let-out for the licensing authority if the wording is left as vague as that. I do not think that is satisfactory. I acknowledge that the Minister’s response to many of the other points raised by my noble friend Lady Hamwee and others has been substantial, but on this amendment it has not been sufficient. Since it has the support, unusually, of both opposition Front Benches, I hope he will be able to give us a better answer or at least undertake to look at this again.
Lord Hunt of Kings Heath: The noble Lord accepts that there is a distinction between subsections (4)(a) and (4)(b). Subsection (4)(b) clearly relates to a case-by-case issue and subsection (4)(a) is rather more about the general approach. I think that that is a fair distinction. He says that because of the word “may”, the licensing authority will not use it. I beg to disagree. The discretion contained and implied by the word “may” as opposed to “must” is perfectly appropriate.
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Baroness Hamwee: I, too, was going to point out that a power is not the same as a duty. I will not attempt to run through all the points. Like my noble friend, I acknowledge that there is a good deal in much of what the Minister says and I understand the points he makes. Local authorities are a special case, however. We are labouring on the Local Democracy, Economic Development and Construction Bill elsewhere and some of us keep arguing that representative democracy is what local authorities do, and they should be recognised as having a particular status because they have a particular role. As for the definition of persons who are interested, the Minister’s definition seems to be somewhere in between the two examples that I used.
I am grateful to the Minister for his offer to write to me about Clause 67(8). Having noticed this very late in the day, we may well want to come back to it, if only to get his answer to me on to the record. One understands that there are matters of security that may need a very particular approach, but they are so particular that it is right that they should be on the record. I thank him for his very detailed response to all my amendments, and I beg leave to withdraw the amendment.
Clause 66: Determination of applications
Lord Taylor of Holbeach: We are still on the determination of applications. In moving Amendment 101A, I shall also speak to Amendment 101B.
As your Lordships will no doubt recall, I tabled similar amendments when we discussed marine policy statements. Those amendments were not accepted, primarily on the ground that including a list—we are back to the list again—that does not encompass all permutations of sustainable development risks overemphasising some at the expense of others. To head off that criticism of these amendments at the start, I emphasise that they are not intended to ensure that renewable energy should be given preferential treatment when applying for licences, although I should add that they derive from a briefing from the British Wind Energy Association; they are intended merely to allow for a debate on the meaning of paragraph (a), under which licensing authorities must have regard to protecting the environment.
As my amendment makes clear, “environment” can mean very different things to different people. Protecting the local environment would no doubt result in care being taken to ensure that the pollution or degradation of the surrounding area is kept to a minimum, and perhaps that the recreational needs of people living in the immediate coastal area are met. When we look at
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I hope the Minister will accept—these matters are close to his heart—that it is right and proper that this reference to the global environment and to climate change should be explicit in the Bill. I beg to move.
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Lord Hunt of Kings Heath: It is very tempting to do so. I fully accept the reasons why the noble Lord, Lord Taylor, has proposed the amendments.
Amendment 101A seeks to test the meaning and concept of “environment”, and introduces the concept of the local and the global environment. He gave the very good example of the tension between the local environment and renewable development, which would contribute to the global environment but might have an adverse impact on the local environment. This was dealt with in the Explanatory Notes to Clause 66, which say:
“The reference to the ‘environment’ should be given its ordinary meaning”.
My understanding is that that means that it should include both the local and the global environment, the natural environment and, indeed, any site of historic or archaeological interest. The natural environment includes the physical, chemical and biological state of the sea, the seabed and the seashore, and the ecosystems within it or those that are directly affected by an activity, whether within the marine licensing area or otherwise.
The problem with defining the term “environment” more explicitly is that you might narrow the definition rather than broaden it. We want the definition to be as broad as possible to encompass all the possible impacts that a development can have on the environment. We clearly want the licensing authority to have the freedom to make decisions based on the particulars of any given case and the evidence submitted to it. It should not be restricted by a narrower definition of what it can and cannot consider, which would in turn reduce its ability to make sustainable, holistic decisions.
Amendment 101B would give the licensing authority explicit duties to consider the impacts of developments on mitigating climate change and the need to maintain security of energy supplies. We consider that the licensing authority can already consider the impacts of mitigating climate change as part of its consideration of global environment factors. Climate change is possibly the greatest challenge facing humankind and its importance cannot be overstated. However, healthy local marine environments and marine biodiversity play an important role in absorbing carbon and therefore reducing climate change.
The tension described by the noble Lord will need to be taken into account in the decisions made by the regulatory body, which will be informed by the marine policy statement and marine plans in guiding the determination of licensing decisions. The marine policy statement will draw on all the national policy statements affecting the marine area. It is in this part of the process that considerations such as security of energy supplies
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Baroness Byford: I appreciate what the Minister is saying and I understand his logic. However, it continues to worry me that in recent years we have passed about four Acts. If we are not careful they will become just one compartment. I reinforce what my noble friend has said. The impact of climate change is very real and is here, and I think we all agree that it needs to be addressed. It is the same with the security of energy supplies. Although the Minister has indicated that Clause 66(1)(a) and the need to protect the environment would be taken into consideration, I hope that he might give the matter further thought. It really worries me that to members of the public there is the Climate Change Act, the marine Bill and the Energy Act. I do not think that it would be amiss to include the two specific suggestions made by my noble friend. In the light of my contribution, I hope that the Minister will reconsider this matter.
Lord Hunt of Kings Heath: I am very grateful to the noble Baroness for her helpful suggestions. The problem with accepting the amendment is that it almost qualifies what is meant by the term “environment”. In seeking, as the noble Baroness rightfully does, to give greater clarity to the matters that will fall to be considered under this legislation, the problem is that, by defining it in the way proposed in the amendment, the definition is narrowed. We are facing that problem in a number of parts of the Bill.
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