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I wanted to identify that we are faced with the fact that the authorities, in seeking to act, would do so under several different Acts and requirements; they would have to operate and get agreement using several different processes. By “holistic”—I am not very fond of that word, which I will now expunge from my lexicon—I was seeking to identify that here is a procedure that will take into account all the necessary factors that obtain with regard to those Acts, but also the necessary issues that are contained in the Marine and Coastal Access Bill. It is in order to achieve that position that we are seeking, in Clauses 75 and 76, to reduce the regulatory burden and to create a position in which all the issues that need to be considered can be considered within this framework, because each of them, in each of the separate Acts, is an important provision that needs to be taken fully into account.
In particular, I wanted to reassure the Committee over the anxiety that might obtain that, if you are dealing with the Harbours Act or the Electricity Act, the authorities acting will have regard to those provisions and that the provisions within this Bill, when it becomes an Act, might be of a lower order and lower in the scale of consideration. I wanted to emphasise that this is a total procedure in which the provisions in this Bill will rank equally in terms of significance or of getting agreement. That explains my unfortunate use of the word “holistic”.
Baroness Carnegy of Lour: The noble Lord—in what did not seem to many of us to be an enormously simple performance, although it is the best that the Government can produce—said that industry is happy. Will he say what he means by that? What industry? Does it include those who run the small harbours that the noble Lord, Lord Tyler, referred to from the Liberal Benches? I think that the people who run small harbours—I know several of them—would find this pretty difficult. Do the Government know whether they are happy with the proposal?
4.30 pm
Baroness Miller of Chilthorne Domer: Perhaps I may follow on from the extremely good point that the noble Baroness has brought up. Although I do not want to compete with my noble friend Lord Tyler for the prettiest harbour, while he was talking I had Ilfracombe in mind, where the harbour is very much the heart of the town and is seen by local people as being at the heart of the regeneration effort that is being brought about. I am all for streamlining the procedures and I can see the arguments in favour of it, but so far we do not have the safeguards in the Bill in relation to local authorities that we were hoping for. On Clause 75, how exactly do the special procedures relate to the relevant planning authority being a district council?
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Lord Davies of Oldham: In response to the noble Baroness, Lady Carnegy, I want to make it clear that this relates to the electricity generating industry. She went on to ask about harbours, particularly as the noble Lord, Lord Tyler, pointed out that harbours can vary in size between enormous ports and very small concerns. Because this Bill is about marine issues, harbours are an important part of our client group, so I want to reassure the noble Baroness that, when I said that the industry supports this approach, I sought to include both categories of harbour within that framework.
I omitted to respond to the point made a little earlier in the debate by the noble Lord, Lord Bridges, about wrecks. We are concerned that the marine environment should embrace any site, including those comprising the remains of any vessel,
Clause 112(2) makes that quite explicit. We are very mindful of that point. It is an important one and I ought to have given the noble Lord a direct answer a moment ago.
I am having a little more difficulty with the question put by the noble Baroness, Lady Miller, because I was dealing with issues related to harbour authorities, and she will recognise their position in relation to the Bill. I shall have to write with a more specific response to the question of local authorities and their relationship with harbours. However, I emphasise that, within this framework, these are issues that relate to all the powers under the Harbours Act 1964, and I sought to be definitive in relation to that legislation. The noble Baroness asked a slightly more extraneous question and I am not sure that I am in a position to answer her directly. However, it is somewhat tangential to the main issues in this clause, which relates to the Electricity Act and the Harbours Act.
Baroness Miller of Chilthorne Domer: I do not think that this is tangential at all and I gave the example of Ilfracombe for a purpose. The development that it is considering has a lot to do with energy generation because it might look at combining that with the harbour development. Far from being tangential, it is an essential part of what we need to know in order to agree Clause 75. I would be grateful if the Minister would write to me on that relationship.
Lord Davies of Oldham: I can certainly undertake to do that and ensure that Members of the Committee are suitably informed.
Lord Taylor of Holbeach: I thank the Minister for that response. One definition of “holistic” is “full of holes”, although I do not for a moment seek to suggest to the Committee that the noble Lord’s response was full of holes. This has been a useful debate because it shows that, in their proposals in the Bill, the Government are seeking to simplify a process. I am not entirely sure that the Committee has been convinced that the legislation as written will in fact simplify it. To that extent, we have had a useful debate in this important area. We would all agree that applicants need to know that, when they are setting out on the process of any sort of development, they are not entering into a mare’s nest
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Clause 78: Submarine cables on the continental shelf
A33: Clause 78, page 46, line 41, leave out subsection (1) and insert—
“(1) Nothing in this Part applies to anything done in the course of laying or maintaining an offshore stretch of exempt submarine cable.
(1A) Where subsection (1) has effect in relation to part (but not the whole) of an exempt submarine cable—
(a) the appropriate licensing authority must grant any application made to it for a marine licence for the carrying on of a licensable marine activity in the course of laying any inshore stretch of the cable, and
(b) nothing in this Part applies to anything done in the course of maintaining any inshore stretch of the cable.
(1B) A licensing authority has the same powers to attach conditions to a marine licence required to be granted by virtue of subsection (1A) as it has in relation to a marine licence not required to be so granted.
(1C) In the application of this section in relation to any cable—
“inshore stretch” means any of the cable which is laid, or proposed to be laid, within the seaward limits of the territorial sea;
“offshore stretch” means any of the cable which is laid, or proposed to be laid, beyond the seaward limits of the territorial sea.”
Amendments A33 and A34 agreed.
Clause 78, as amended, agreed.
Clause 79: Structures in, over or under a main river
A35: Clause 79, page 47, leave out lines 30 and 31 and insert—
“(8) In subsection (7) above “licensable marine activity” and “marine licence” have the same meaning as in Part 4 of the Marine and Coastal Access Act 2009.”.”
Lord Hunt of Kings Heath: This amendment introduces a group of minor technical amendments. I shall take the opportunity to explain our general approach to enforcement of the new licensing regime established by the Bill.
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The regime is designed to allow development in the marine area, while also providing protection for the environment and human health and preventing interference with other legitimate uses of the sea. The primary aim of our enforcement proposals is to prevent harm. We want to bring people into compliance with the law, to avoid harm being caused in the first place. Experience with enforcement of the Coast Protection Act 1949 and the Food and Environment Protection Act 1985 has shown that the only options for sanctions under those Acts—warning letters or prosecution—are too limited a range of enforcement tools. There is a compliance gap for offences that the licensing authority would like to enforce but which are judged as being not proportionate to prosecute. Apart from any minor harm that might result, this can mean that operators who abide by the terms of their licence may face costs that those who operate outside licence conditions do not.
In the Marine and Coastal Access Bill, we are establishing a sanctions regime that provides a more proportionate range of tools for enforcement in the marine area. We have worked within the context and recommendations of the Hampton and Macrory reports and considered the provisions of the Regulatory Enforcement and Sanctions Act 2008. Essentially, they provide for more proportionate and targeted enforcement tools, designed primarily to bring people into compliance, but with the teeth to penalise offenders where that is necessary.
There are order-making powers in the Bill in Clauses 90, 92 and 138 to establish a civil monetary penalties scheme for enforcement of both licensing and nature conservation offences, similar to that established under the Regulatory Enforcement and Sanctions Act 2008. There will be further consultation on the design of this scheme later this year. In essence, fixed monetary penalties are intended to address minor non-compliances with licence conditions. Variable monetary penalties are intended to address more serious breaches of licence conditions.
On the statutory notices that we are making available to use under the Bill, the first, a compliance notice in Clause 87, may be used to bring an operator back into compliance where no serious harm has been caused. It will lay down steps with which the operator must comply to avoid any further penalty.
Our Amendments A45, A46 and A47 insert a test of “serious” into the compliance notice for circumstances where the notice cannot be given. These amendments mean that an enforcement authority will be able to issue a compliance notice only where the harm caused by the breach to the environment and human health, or interference to other legitimate uses of the sea, is not serious. This approach is aimed at preventing harm. A notice will be issued to a licensee to bring that operator back into compliance with their licence.
A remediation notice, which is covered in Clause 88, may be used for licensable activities where the operator has caused harm and does not have a licence for that activity or has breached the terms of their licence. This notice will detail steps that the operator needs to undertake to put matters right or may specify a sum of money that they must pay so as to allow someone else to remediate the harm that they have caused.
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Amendments A49, A50 and A51 remove “serious” from the test for issue of a remediation notice. They mean that the enforcement authority will be able to issue a remediation notice where harm has been caused, by the lack of a licence or a breach, to the environment and human health or where there has been interference with other legitimate uses of the sea, and not just when serious harm has been caused. This enacts commitments made by the Government following pre-legislative scrutiny.
Two emergency notices designed to prevent serious harm complete the set. First, the stop notice will be used to stop activities that the enforcement officer believes to be causing or likely to cause serious harm. The second notice, an emergency safety notice, will be used to prevent serious interference with other legitimate uses of the sea—for example, ordering operators to provide navigational lighting to make safe navigational hazards. That last notice re-enacts a power under the Coast Protection Act 1949.
Amendments A65 and A66 remove “will” and insert “is likely to” in the test for issue of a stop notice so that it can be issued if the activity is causing or is likely to cause, or is creating or is likely to create, an imminent risk of serious harm to the environment or human health or serious interference with other legitimate uses of the sea.
Amendments A69, A70, A71 and A72 allow the imposition of an emergency safety notice without there already being a stop notice in place under Clause 101. The amendments allow the enforcement authority to issue an emergency safety notice where a licensable activity has led to a danger to navigation but without the requirement that a stop notice has already been issued, as there may be no activity to stop—for instance, if adverse weather has led to problems causing something to collapse into the sea, thereby creating a hazard.
These sanctions do not prevent the enforcement authority from using the tools that it already has: advice and warning letters, through to prosecution in the most serious cases. Under paragraph 10 of Schedule 7, the enforcement authority will develop and publish its enforcement guidance. Taken together, this new suite of enforcement tools will enable the effective enforcement of the marine licensing regime, which will not only protect the environment and human health and prevent interference with other legitimate uses of the sea but also make sure that operators who abide by the terms of their licence are not disadvantaged by the behaviour of those who do not. I beg to move.
Lord Taylor of Holbeach: We are on the whole very happy with the Government’s amendments. They bring some technical changes and correct drafting to make a better and tighter Bill. We applaud these efforts, tempered only by the caveat that there appear to be quite a number of them. Although we are happy to support the Government, we would have preferred a more technically sound beginning.
We shall come back to Clause 88, but I shall talk briefly about Amendments A54 and A55 to Clause 93. We agree that the enforcement authority should be able to modify the amount of variable monetary penalty
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4.45 pm
Lord Tyler: Will the Minister address the amendments to Clause 112 in this group, which are Amendments A110 to A112? They are consequential and in no way differ from the general thrust of the amendments on which he has given a fuller explanation. I am particularly concerned about Clause 112(2). It picks up the point about wrecks, which were referred to just now. While the Minister considers that, I can report to the Committee that at about this time yesterday I was off the Scilly Isles, having flown in a Royal Naval helicopter from HMS “Cornwall”—so I was doing my homework, even though I was playing truant from your Lordships’ House. What struck me was the extraordinary number of wrecks there are around the Isles of Scilly. This is a particular problem.
When it comes to the issue of enforcement and to seeing that there is proper protection for wrecks, it will potentially be very controversial to make sure that the Bill puts the right enforcement procedures in place and deals sensitively with the relationship concerning wrecks that are of considerable archaeological and historical interest, of which there are a great many around the Isles of Scilly. People should be brought into compliance, in the noble Lord’s phrase, in an effective but not heavy-handed way. This is my best opportunity to raise the issue, because of the amendments to Clause 112: there may be other parts of the Bill to which I have not yet given my attention, but I hope that the Minister will be able to reassure us generally that this extraordinarily important issue is being dealt with.
Lord Hunt of Kings Heath: What an exciting life the noble Lord, Lord Tyler, lives. When he is not taking part in films—or helping them to take place—he is on Royal Naval flights over all sorts of things. He also lives in a most wonderful part of the country. The noble Lord is absolutely right that Amendments A110 to A112 are very technical indeed, but I take his point about wrecks. The noble Lord has already noted that Clause 112(2) deals with interpreting that matter, but might I commit myself to writing to him in more detail about how we might approach that interesting point? There is a relationship between it and some of our debates about what might be called cultural heritage. In one sense, wrecks have a contribution, but they might present difficulties too and we clearly have to get the balance right.
Perhaps I may now respond to the points made by the noble Lord, Lord Taylor. First, there was the question of the enforcement authority’s ability to choose whether to prosecute or to issue a monetary penalty.
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for up to two years. There are also offences in Clauses 86, 89, 100 and 102, while Clauses 90 to 92 provide for a powerful licensing authority to establish civil sanctions for an offence under Part 4. Those sanctions embrace both fixed and variable monetary penalties.
The noble Lord, Lord Taylor is concerned that the enforcement authority has the discretion to decide whether and how to enforce the provision. I hope to give him some reassurance here, because the approach to that would be set in its enforcement policy and in guidance. It can choose to enforce by prosecution or taking matters short of prosecution, such as giving advice or warning letters. Alternatively, it can impose a civil sanction. Paragraphs 9 and 10 of Schedule 7 set out the requirement on civil sanctions. As now under the Food and Environment Protection Act 1985, the offence is set out in Schedule 9, but how the licensing authority enforces the legislation is not set out in the Bill. We think that it would fetter a prosecutor’s discretion to set out when the prosecutor must or must not prosecute. Essentially, the civil sanctions statutory notices in Part 4 are designed to address the issue that the tools currently available under the Food and Environment Protection Act 1985 do not provide sufficient proportionality for enforcement. This is an attempt to have a range of sanctions available to deal in a proportionate way with the matters that arise, which is why we want the enforcement authority to have the choice that we give. However, guidance will be issued to ensure that it is used in a proper way.
In my stewardship as Minister responsible for the Health and Safety Executive, which is not always the most popular organisation, I was very impressed by the proportionate approach that it took in practice. It made considerable efforts to encourage people to do the right thing but, in the end, needed strong sanctions and ultimately that of prosecution if people either did something that was so dreadful that that had to happen or continually ignored the help and warnings that they had been given. I must be careful not to draw too many parallels, but giving the enforcement authority a range of options in relation to sanctions is helpful and proportionate. In the context, I see it as an example of better regulation.
Lord Taylor of Holbeach: Will the Secretary of State be the author of the guidelines under which this would be administered?
Lord Hunt of Kings Heath: Yes. I shall write to the noble Lord with more detail on how we will consult on those guidelines, because clearly they are very important.
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