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We believe that there should be exemptions; Clause 71 is necessary. However, the way in which it is set out in the Bill is not conducive to good management. We all understand that we want to reduce the regulatory burden—we are all in that business these days—but the Bill does not provide sufficient environmental safeguards, controls or checks in relation to the exemptions; for example, none of the requirements that we have agreed are necessary for determining applications under Clause 66 is included for determining exemptions, hence my concern about the level playing field. There is no requirement for assessing impacts prior to exemption nor description of the types of activity that can qualify for exemption, and no proper concerns are set out in the Bill to ensure that consultation on exempted activities is sufficiently strong; indeed, it is not mandatory at all.
The process for exemptions set out in the Bill is vague and creates possible loopholes for environmentally damaging activities to proceed unchecked. The Minister will recall that the Government’s associated document, Managing our marine resources—licensing under the Marine Bill, which we have all considered carefully, states that they will work with stakeholders to identify where low-risk activities can be exempted from marine licensing, but this limitation to, and assessment of, those low-risk activities are simply not in the Bill. We therefore believe—and this is the common concern of many of the outside organisations considering the Bill—that there need to be amendments, hence this group.
It should be mandatory, first, to ensure that any exemptions do not compromise the licensing authority’s purposes in Clause 66; that is, to protect the environment and human health and prevent interference with legitimate uses of the sea. Secondly, carrying out the appropriate environmental assessments under, for example, the strategic environmental assessment process, which assesses the Government’s proposed plan for exemptions in secondary legislation, should be a matter for consultation with stakeholders. The process is referred to in the Government’s response to recommendation 29 of the Joint Committee’s report on the draft Marine Bill under the chairmanship of the noble Lord, Lord Greenway. Additionally, how are environmental impact assessments affected by exemptions? Thirdly, we surely need a process of assessments, where appropriate, where an activity is likely to have an impact on a site protected under the birds or habitat directives. Finally, an impact assessment or, indeed, a cost-benefit analysis of each proposal should surely be carried out as stated in paragraph 26 of the impact assessment for this Bill.
It is extremely important that a process for consultation and obtaining advice from experts should be in the Bill as it is for the licensing process as a whole. That, too, seems to be addressed under Clause 71(4). Taking account of the advice of those experts and the representations received for interested parties should be a matter of common practice when making any decision on whether to allow an exemption.
Where such expert advice is not followed, the reasons should be published, and, where an order is granted for an exemption, the licensee must get approval and/or
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We believe that it is critical to monitor and review the exempted activities to ensure that conditions are being met and that unintended environmental damage is not occurring. That will be particularly important in the early years of the new legislation.
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In the same group, Amendments 61 and 63 address a slightly different aspect of those anxieties that we, and others, have expressed before. We continue to think that the Bill does not adequately address them. It is surely absolutely explicit—as the Bill should be—that in records of any activity exempted activities should, equally, be recorded. The same sort of regime should apply; again, it is about an even playing field. At the very least, it should be compulsory for the licensing authority to be notified each time an exempted activity is carried out and for the proposed register of licensing information to include that, which is why we refer here to Clause 98.
The amendment would ensure that licensing and planning authorities could, as a minimum, base decisions on a complete record of all licensable activities—including those exempted from licensing as such—if they happen to take place in the marine area at any time. That would allow them to properly determine the cumulative effects of those activities on the marine environment. The Minister will surely recall that, in their response to taking the Marine Bill forward after the Joint Committee’s report, the Government stated that they would be consulting extensively on their approach to exemptions. Options that could be covered include requiring a licence for exemptions, removing the requirement for a licence altogether and in-between options such as a simple registration scheme. Those were in the Government’s response to recommendation 29 from the Joint Committee.
My noble friends and I believe that, to ensure informed decision-making at sea and to deliver sustainable development in the marine area, a notification and registration scheme is a minimum rather than simply an optional requirement. We would like it noted that the option proposed in the Government’s response to recommendation 29, which was simply to require a licence for exemption to be potentially obsolete because Clause 71(1)(a) allows the licensing authority to specify an exemption order that a licence will not be needed, is not adequate.
On Amendment 63 to Clause 98, we believe that the statement in the Bill is frankly inadequate. The statement allows exclusion of information from the licensing register on the grounds that it,
The term “unduly prejudicial” is certainly not clear or adequate to its task. Indeed, in this context its meaning could be interpreted very widely. For example, there are no limitations provided on what is, or what would not be, “unduly prejudicial”. We believe that it would be more appropriate to use existing language, such as
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- “a public authority may refuse to disclose information to the extent that its disclosure would adversely affect ... the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest”.
That is much more definite and does not weaken the Government’s case for confidentiality; it makes it clearer.
I apologise for my lengthy explanation of this group of amendments, but they are, to our mind, extremely important. They are certainly so to the alliance of organisations—professional, quango and NGO—that have been looking at this part of the Bill. As I said at the outset on this group, it is extremely important that there should be a level playing field between the consideration of criteria for the licensing process and, equally, the consideration of all exemptions. I beg to move.
Lord Greenway: I have two amendments in this grouping, focusing on the narrower concept of maintenance dredging. Regular maintenance dredging is of vital importance to coastal marine businesses. Indeed, it is essential for the ongoing viability of coastal marinas and boatyards. I remind your Lordships that these small businesses employ a large number of people and generate something like £3 billion of revenue, more than £1 billion of which is for export. The British Marine Federation is concerned because the Explanatory Notes to the draft marine Bill stated that low-risk dredging activities such as maintenance dredging would become exempt under the new Bill and, although this Bill allows the removal of licensable marine activities from Clause 63(1), there is no definitive statement of intent to exempt such forms of dredging after they have become licensable 12 months from the Bill gaining Royal Assent. Amendment A24 would include the activity of maintenance dredging as one that would be exempt for licensing. Amendment A29 merely provides a definition of maintenance dredging as,
- “the removal of accumulated sediments from harbour channels and berths to ensure a safe depth of water for navigational purposes and the removal of sediment to restore an adequate flow of water to mitigate risk of flooding or protect a sensitive habitat”.
Baroness Miller of Chilthorne Domer: I must register the fact that not having seen any further progress on the draft marine navigation Bill is very unhelpful. I understand the purpose of Amendments A24 and A29 proposed by the noble Lord, Lord Greenway. However, in considering those amendments, the Committee should bear in mind the comments of the Royal Yachting Association. I declare an interest as a member of the North Devon Yacht Club. The RYA had considerable concerns that the draft marine navigation Bill might well concentrate only on commercial interests, to the exclusion of the interests of the RYA and other small boat users, because of the way in which the Bill decides who can dredge and keep areas clear. Those fears may or may not be grounded. However, with regard to what this Bill can license, particularly in relation to dredging, it is very unhelpful that we have not had the other Bill. I appreciate that it is a Department for Transport Bill, but it shares an awful lot of common ground with this Bill, particularly when we are talking about this area.
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Earl Cathcart: I tabled my clause stand part to raise many of the issues that the noble Lord, Lord Tyler, has already raised in speaking to his rather more precise amendments. Although we would support sensible simplification of the licence regime and the resultant reduction in bureaucracy, cost and delay, we need to ensure that nothing slips through the net.
I am sorry that the noble Baroness, Lady Young, is not in her place and will not therefore join in the debate. Her amendments, ensuring that exempted dredging does not breach any environmental objectives, seem very sensible. My Amendment A25 is designed to ensure that, too. I am sure that such maintenance dredging is environmentally unimpeachable but, given that these standards should not be hard for the harbour authorities to meet, does the Minister not think that an appraisal would be a useful safeguard?
Amendment A63, tabled by the noble Lord, Lord Tyler, would make the exclusions covered by Clause 98(5)(b) more subtle and less open to abuse. We would support it for that reason. On these Benches, we agree that it is important to exclude any information that could damage a proper economic interest. Nevertheless, for the purposes of transparency and to reduce the chances of corruption, we support the noble Lord’s attempt to reduce the amount of information that could potentially be covered by subsection (5)(b). Finally, I agree with the noble Lord, Lord Greenway, and his amendment: if the Government intend this clause to cover only maintenance dredging, why do they not specify that?
Lord Hunt of Kings Heath: This has been a very helpful debate. It might be useful if I outline the general approach that we are taking in the Bill to marine licensing exemptions. The broad nature of licensable activities listed in Clause 63 means that the Bill captures some operations that are not currently licensed or activities that we do not intend to license because they pose little environmental risk or they are appropriately regulated under other regimes. We are exempting locally authorised dredging activities under Clause 72 and we intend to carve out some other types of activities using the order-making power under Clause 71. This can be done in two ways: either the exemptions order can specify activities that will not need a marine licence under the Bill or it can set conditions that, if met, would mean that the activity would not need a marine licence. The ability to set conditions in the exemptions order means that the licence authority can control more precisely the activities that will not need a marine licence.
Amendments A16, A18 and A21 concern a consultation process on an exemptions order. Each authority when considering an exemptions order has a statutory duty under Clause 71(4) to consult those persons whom it thinks appropriate. We have already started work with interested groups and those with expertise in the marine field to help to develop our approach to exemptions. Secondary legislation will set this out in more detail. We intend to carry out a full public consultation in the spring on our early thinking.
I hope that I can reassure the noble Lord, Lord Tyler, on his request for greater consistency. The overriding principles of the licensing regime are to protect the
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In relation to environmental appraisal, any decision to exempt activities from the marine licensing regime—and, if so, to what extent—will be based on the evidence that is available, the science and the environmental impact of an activity. The licensing authority will be able to tailor exemptions to specific risks by setting conditions for that activity in the exemptions order.
On the question of commercial prejudice, Amendments A15, A22, A61 and A63 deal with details kept in the licensing register and the review of exempt activities. Clause 98 lists those particulars that must be placed on the licensing register. Other information can be contained within it, if that is appropriate. Amendment A22 is about keeping exempt activities under review. Let me reassure noble Lords that, once an order has been made, the licensing authority is able to amend it in light of, for example, new evidence or technological advances. We intend to consult whether it is necessary for all exempt activities to be formally registered, kept under review or recorded in some other way. Of course, we will take close notice of what comes out from the consultation on that point.
The noble Lord, Lord Tyler, asked about the phrase,
The wording that we have used in the Bill is based on that used in the Food and Environment Protection Act, whose public register requirements have been around since 1996. My understanding is that information under FEPA has been withheld only on a handful of occasions since the introduction of those requirements and only after careful and stringent assessment. I hope that that reassures noble Lords on that point to a certain extent.
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Clause 72 exempts certain dredging activities. I say to the noble Earl, Lord Cathcart, that the clause recreates the exception found in one of the pieces of existing marine legislation, the Coast Protection Act 1949. Without that clause, those dredging activities without associated deposits—primarily maintenance dredging—carried out routinely and with minimal environmental impact under local regulations or a harbour order would have to be authorised under a marine licence. I fully accept that the noble Earl made my next point, which is that we are trying to get the balance right between proper protection and overbureaucratisation. However, unless we recreate the current exception, this could pose a considerable regulatory burden on harbour authorities, which have to maintain safe and navigable channels, as well as on licensing authorities, including the new MMO, in regulating this currently exempt form of dredging. That is why Clause 72 is drafted as it is.
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The noble Lord, Lord Greenway, as ever, made very important points. However, ironically, his amendments would restrict the exemption to maintenance dredging activities only. The vast majority of dredging that falls within this exemption will be maintenance dredging. Those dredging activities covered by this clause that are not maintenance dredging, and which are likely to have an impact on the environment, will still need to undertake the relevant environmental impact assessment, thereby providing the environmental safeguards. Any historically permitted capital dredging and spoil disposal that is regulated under the current regime will continue to be regulated under consent for the disposal activity.
As for Amendments A23, A25, A26 and A30, I appreciate that there is eagerness to ensure that environmental objectives that will be set to deliver the water framework directive requirements are taken into account, but I am not convinced that they are necessary or desirable to set down in this Bill before measures to deliver the water framework directive have been fully developed. When the implementing measures of the directive have been decided, we expect ports and harbour authorities to engage fully with the Environment Agency to help to achieve the successful delivery of the objectives set. I understand that much work is already under way in this respect and that close links with the ports and harbour sector have already been established. Measures to achieve or support good ecological status should already be included in harbours’ maintenance dredging and disposal strategies.
We are trying to avoid double regulation. If a harbour authority is acting in accordance with a local Act or relevant harbour order and in compliance with its other environmental obligations, we would not wish it to have to apply and pay for a marine licence where it is not necessary. I make it clear that, ultimately, harbour authorities, as competent authorities, have a statutory duty to undertake activities in accordance with relevant environmental obligations. The onus is clearly on them to ensure that they are complying with the relevant regulatory regimes, but we want to avoid the problem of double regulation.
I understand the point made by the noble Baroness, Lady Miller, and why she wishes the relevant Bill to be brought before Parliament as soon as possible. I wish for that, too, and the Government wish to do so as soon as parliamentary time allows. Much though I should like to give her more information on that, I am not in a position to do so.
Lord Tyler: I am grateful to the Minister for dealing so comprehensively with this group, but I cannot say that I am wholly satisfied. I listened with care to what he said about consultation that is already taking place, but I have to tell him that at least some stakeholders, particularly those who are members of the Wildlife and Countryside Link’s marine task force, are not satisfied that this clause is sufficient to deal with exemptions. I hear what he says about the intentions, but intentions are not as cast iron as a clause dealing with this issue. I will read with care what the Minister has said, and my noble friends and I will look at this again.
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On confidentiality, I ask the Minister whether between now and Report he will be kind enough to look again at what seems to be just as good a precedent, if not a better one: Regulation 12(5) of the Environmental Information Regulations 2004, from which I quoted. That is more comparable to the situation that we are addressing and would be a better precedent for this. In the mean time, I beg leave to withdraw the amendment.
Amendments A15 to A18 not moved.
Amendments A20 to A22 not moved.
Clause 71, as amended, agreed.
Clause 72: Exemptions for certain dredging etc activities
A24: Clause 72, page 41, line 35, at end insert “, and
( ) that the activity is maintenance dredging”
Lord Greenway: I have already spoken to Amendment A24. In his response, the Minister said that most maintenance dredging would be exempt under the Bill. Can he give an example of areas of maintenance dredging that might not be exempt? I understand his point about not wishing to have double regulation, but the boating industry is concerned that the present system is bureaucratic and time-consuming. I would be interested to hear what the Minister has to say about that. I beg to move.
Lord Hunt of Kings Heath: When we read the noble Lord’s amendment we thought that he was trying to restrict the exemptions, but it is clear that he is trying to clarify the issue, particularly for the groups that he mentioned. Perhaps he would be prepared to provide more information about the problems he identified, and I could look at that between Committee and Report stages. I would certainly like to see whether we could provide some reassurance.
We clearly need some discretion, which is why Clause 71 is drafted as it is. In dealing with the exemptions which have to be specified by order, we cannot compromise the overriding principle in Clause 66(1), which is that,
- “the appropriate licensing authority must have regard to ... the need to protect the environment ... the need to protect human health ... the need to prevent interference with legitimate uses of the sea”.
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Overall, it is a discretionary approach. There is the safeguard of the order-making power and, as I said, it cannot compromise what is set out in Clause 66. It is very difficult to be more specific. However, as I said, if the noble Lord would like to give me more information, I would be very happy to look at the matter.
Lord Greenway: I thank the Minister for that and will come forward with something between now and Report stage. I am seeking an assurance, which he has mentioned. If he is able to give that at some stage, I will be very happy.
Lord Hunt of Kings Heath: My reluctance to go where the noble Lord wishes to go is due to the fact that I cannot give him a blanket assurance because of the very nature of the conditions under which exemptions can be given. That is my problem.
Lord Greenway: I appreciate that but the noble Lord mentioned “assurance”, so I naturally jumped on it. I beg leave to withdraw the amendment.
Amendments A25 and A26 not moved.
Amendments A27 and A28 agreed.
Amendments A29 and A30 not moved.
Clause 72, as amended, agreed.
Clause 74: Oil and gas activities and carbon dioxide storage
A31: Clause 74, page 42, line 38, leave out from “or” to end of line 41 and insert “over any area of sea—
(a) which is within the Welsh inshore region or the Northern Ireland inshore region, or
(b) which is within both the Scottish offshore region and a Gas Importation and Storage Zone (within the meaning given by section 1 of the Energy Act 2008 (c. 32)).”
A32: Clause 74, page 42, line 43, leave out “the territorial sea adjacent to Wales or Northern Ireland” and insert “any area of sea within the Welsh inshore region or the Northern Ireland inshore region”
Amendments A31 and A32 agreed.
Debate on whether Clause 74, as amended, should stand part of the Bill.
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