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Amendment A163, which is in this group, proposes that it should also require,
that is, the appropriate national authority,
Clause 120(1) requires the appropriate authority to,
which may be here, or in Wales, Scotland or Northern Ireland, a report on the implementation of Clause 119(2): namely, to report on any,
However, under EU law, with the marine strategy framework directive and the legal obligation to deliver good environmental status through the UK marine area by 2020, and under international law such as the OSPAR commitment, it is clearly essential that the report required by Clause 120(1) includes a specific requirement to report upon actions by the appropriate authority to deliver on all its EU and international legal obligations. We believe this to be the appropriate place for this amendment. I beg to move.
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The Duke of Montrose: In responding to the noble Lord, Lord Greaves, it seemed to me that these amendments were, perhaps, probing as one amendment in some ways duplicates the other’s effect. We on these Benches agree with the noble Lord; we should comply with EU and international law and meet the target given by the EU directive of “good environmental status” by 2020—we come back to that point. Nevertheless, as we have said, we should achieve that not simply because of the target from the EU directive but as a matter of course from the provisions in the Bill.
Furthermore, while it seems sensible that any further steps necessary to achieve compliance with our EU or international obligations are laid out in the report, we would argue that those obligations should be met from the beginning, because they are not objectives or aims but legal requirements. The obligations that would be required for the report proposed by the noble Lord’s second amendment are really covered by the first in the group. I look forward to the Minister’s response.
Lord Hunt of Kings Heath: I am grateful to the noble Lord, Lord Greaves, for moving this amendment on behalf of his noble friend and for the contribution of the noble Duke. I hope to reassure the Committee on both points.
As the noble Duke suggests, the UK Government are committed to meeting their EU and international obligations and this is why we have referenced these on the face of the Bill. The Bill primarily establishes a new UK tool that will complement our EU and international commitments and ensure that we designate a network of sites specific to the UK marine environment.
Amendment A162 relates to the duty on Ministers to designate marine conservation zones and seeks to insert a reference to good environmental status and the Marine Strategy Framework Directive into the Bill. It is normal practice for European legislation to be transposed through secondary legislation made under the European Communities Act 1972, and for this reason we do not want to depart from that position. In addition, the Marine Strategy Framework Directive is, as it says, a framework directive which sets the overall goal of achieving good environmental status for Europe's seas by 2020, as the noble Duke said. The directive came into force on 15 July 2008 and the first task is to transpose the requirements of the directive into UK law by July 2010. We intend to do this outside the scope of this Bill by: making an initial assessment of the current environmental status within UK marine waters by July 2012; determining what good environmental status means for UK waters, and establishing targets and indicators by July 2012; conducting a monitoring programme to measure progress towards achieving good environmental status by July 2014; and establishing a programme of measures designed to achieve or maintain good environmental status by July 2016. In addition, although we do not believe that a specific reference to the Marine Strategy Framework Directive is appropriate here for the reasons I have just given, I assure noble Lords that, in as much as the provisions of that directive require improvement of the marine environment, the terms of Clause 119(4) already cover those obligations.
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We must also be clear that there are links between marine conservation zones and European sites—that point was made in previous debates—and that is why we have included Clause 119(4) in the Bill. The authorities designating marine conservation zones will do so to contribute to a network of sites, which will include EC sites, so it is appropriate to state here that they should have regard to relevant obligations under EU and international law. Our duty to meet these obligations applies in any event and is not dependent on what we and others do under the Bill.
Amendment A163 seeks to require the report to Parliament set out in Clause 120 to include any further steps that should be taken to comply with our EU and international obligations. My reply in this case is very similar to my reply on the previous amendment. The purpose of Clause 120 is to establish a duty on the Secretary of State to report to Parliament on progress in designating an ecologically coherent network of sites. The report, initially made in 2012 and then at least every six years thereafter, will set out the number and type of marine conservation zones designated as well as any measures that could be taken to further the conservation objectives for a site. I pray in aid again Clause 120(1)(a) and (b), which specifically state that the report to Parliament must include the extent to which the objectives of the network have been met and any further steps that are required to be taken in order to contribute to the achievement of the objectives. Ministers must have regard to our EU and international commitments when designating marine conservation zones, and the report to Parliament will reflect this. I am certain that, as a result, the report will give an evaluation of how far our network goes towards meeting our EU obligations. I hope that I have reassured the noble Lord on that.
Baroness Byford: I seek clarification. I was very grateful for the dates that the Minister gave. He said that the initial assessment will be completed by 2012. Is there assessment knowledge now covering the whole of the area, or will it have to be worked on in the years up to 2012? I am not certain what evidence we have now, and how big a task this will be. I presume that the evidence will have to be updated by 2012. If he has any further information on that, it would be helpful.
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Lord Hunt of Kings Heath: I shall write to the noble Baroness with further details on that. Clearly, we have knowledge and information and research has been undertaken, but we will need to build on that in the next two or three years, and we will do so. I shall set out in writing more detail on how we intend to do that.
Lord Greaves: I thank the Minister and the noble Baroness for their comments. I would certainly find a copy of the Minister’s letter to the noble Baroness interesting and useful. That would be very useful to the Committee. I listened as carefully as I could to the Minister’s explanation, which went a little way to set out the vision for which I had asked previously, although, again, it was mainly about process rather than outcomes. That is our basic complaint. The very full and technical answer that he gave to the amendments sounded pretty
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Amendments A163 to A165 not moved.
Amendment A166 had been withdrawn from the Marshalled List.
Clause 121 : General duties of public authorities in relation to MCZs
Lord Taylor of Holbeach: I shall speak also to the series of amendments with which Amendment 167 is grouped. I have tabled this set of amendments to probe various parts of Clauses 121 to 123, which relate to the duties of public authorities in relation to the marine conservation zones and the role the statutory conservation bodies will play in the ongoing protection and management of these zones. They seek to test the wording of the Bill against the ambitions of the Government.
I am sure it will come as no surprise to the Minister or the Committee that we have received many representations from the conservation stakeholders, including the Marine Conservation Society and the Countryside Council for Wales inter alia, seeking to confirm their influence in this area. They are understandably worried that once the network has been established and objectives set, responsibility will pass entirely to the local public authorities which might be tempted to downgrade the priority of conservation in favour of other interests.
Clause 121 establishes a duty on the public authority to inform the relevant conservation body, but only after a damaging event has taken place. This is not quite the same as the duty in Clause 122, where a potentially damaging authorisation cannot be given until 28 days after a similar notification. Will the Minister explain this discrepancy? What action does he expect a conservation body, or, indeed, a relevant authority, which will also be informed, to take after a damaging event has taken place? My amendments would also boost this duty to a requirement to consult the conservation bodies before undertaking damaging actions, thus ensuring an ongoing dialogue between the public authorities and the bodies best placed to know exactly what damage is likely to be caused and what measures might be taken to reduce or prevent that damage.
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Other amendments in this group look at the many difficult assessments the public authority must make, the assessment of whether the harm done by an event is insignificant, the establishment of whether there are ways to avoid the harm or repair the damage and so on. It is to be hoped that these decisions and assessments would only be made after proper consultation with the statutory conservation bodies, where expertise and experience lie. I beg to move.
Baroness Miller of Chilthorne Domer: My Amendment 180 is in this group. The purpose of the amendment has to do with the advice and guidance that conservation bodies should bear in mind. They should think about any matters that might be detrimental to, or might hinder, the achievement of the objective. That might seem a little abstract. In tabling this amendment, we have drawn comparisons, as before, with terrestrial conservation legislation. This amendment would enable conservation bodies to do a bit more horizon-scanning. They would have a duty to do so, and to think about some of the threats that would come down the line. That is the particular reason for tabling this amendment.
Lord Hunt of Kings Heath: This has been a useful exploration of this part of the Bill. I say to the noble Lord, Lord Taylor, that I have also read a number of letters on these points from statutory conservation bodies. I hear what the noble Lord says about their fears that, once the first phase of the work has been carried out, they will no longer be listened to by the public authorities. I hope I can allay those fears. Clearly, we believe that the statutory conservation bodies have a vital role to play and I pay tribute to their work.
By way of introduction, Clauses 121, 122 and 123 set out the roles and functions of public authorities and statutory conservation bodies. There is a different aspect in each clause. It is important to draw the distinctions between them, because these answer some of the points raised by the noble Lord. The purpose of Clause 121 is to place a general duty on each public authority to exercise its functions in a way that best furthers the conservation objectives for a marine conservation zone. Where the public authority thinks that exercising its functions is likely to conflict with its duty to further site objectives, it must inform the statutory conservation body.
Clause 122 is more specific. It sets out that where a public authority thinks that an individual activity may significantly hinder the conservation objectives for a marine conservation zone, it must notify the statutory conservation body, which will then have 28 days to provide its advice. This clause essentially deals with matters on a case-by-case basis. I make it clear that a statutory conservation body need not wait to be asked for its advice. It can give it at any time under Clause 123(2) and all public authorities are required to have regard to that advice. My experience of the statutory conservation bodies, from my time at Defra, suggests that statutory conservation bodies are well able and well prepared to give such advice.
Turning to the proposed amendments, I start with Amendments A167, A173 and A174. These concern the duty placed on public authorities to carry out their
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One example might be a case where the Environment Agency does work to build or maintain coastal flood defences. While it may not be possible for the agency to further the conservation objectives of a marine conservation zone, it may be able to choose not to carry out its operations at the time of year when there are large populations of migrating birds, or during fish-spawning. Building on this, Amendments A173 and A174 seek to relax the protection for a marine conservation zone by allowing a public authority to permit a potentially damaging act when the public benefit outweighs the risk of environmental damage. I accept that these are probing amendments, but there is a risk here. This part of Clause 122 says that once a site has been protected, the hurdle that needs to be jumped before permitting damaging activities is much higher than elsewhere. If an area is precious, we may permit damaging activity, but only if there are no alternatives; it is clearly for the greater public good; and we secure equivalent environmental benefit elsewhere. It is important to have that kind of safeguard.
Amendments A168, A169, A170 and A172 focus on the relationship between public authorities and statutory conservation bodies. Essentially, the changes proposed by the amendments would require public authorities to wait for the advice of the statutory conservation body before carrying out any of their functions that might hinder the achievement of conservation objectives. We want public authorities in the marine environment to work closely and co-operatively with the statutory conservation bodies, but we are wary of introducing very bureaucratic procedures unless there is a good reason to do so. The clause is designed to ensure that if a body thinks that exercising its functions in general will cause problems for the marine conservation zones, it must inform the statutory conservation body. In effect, it must start a conversation about the problem.
It gives the statutory conservation body the chance to address the problem and provide its advice. If the problems are difficult to resolve, this will take much longer than the 28 days foreseen in the amendment. One can envisage circumstances in which problems might be very difficult to resolve, given some of our previous debates on some of the tensions that are inevitable in such designation. The risk is that such advice might then be of limited value. However, this will not leave the statutory conservation bodies without a proper role in specific cases, or leave conservation zones unprotected. That is why we have Clause 122. Where, for instance, specific activities raise a problem,
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Amendment A172 would remove the significance test from the requirement to inform the statutory conservation body. I would argue that it should remain. The significance threshold performs a vital role in ensuring that public authorities and the statutory conservation bodies are not overwhelmed with notifications. Requiring the public authority to wait 28 days before authorising all applications would be an unnecessary level of caution and bureaucracy, and would not be proportionate. As I have said, the Bill already allows the statutory conservation bodies to provide advice and guidance where they have concerns about the collective effect of a number of insignificant activities. Clause 123(1) provides for conservation bodies to give advice and guidance, which public authorities are required to have regard in exercising their functions. The conservation bodies may choose to target their advice as they see fit, perhaps to specific sectors or issues and to the points where it will have the greatest influence possible. We think this provision is important; we do not want to lose this flexibility; we think that Amendment A178 might risk that by seeking to oblige statutory conservation bodies to give advice and guidance on all matters listed in Clause 123(1), either in relation to a particular marine conservation zone or marine conservation zones generally.
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It is likely that that advice will normally cover the range of subjects listed in subsection (1), but it will clearly not be necessary to address all possible matters in every case. It is sensible to retain flexibility and to rely on the judgment of the statutory conservation bodies as to the need for and content of a particular piece of advice and guidance. The record of statutory conservation bodies would give me confidence that this flexibility was sensible.
Amendment A171 would mean that public authorities notified only the statutory conservation body, not the MMO or Scottish or Welsh Ministers, where appropriate, when a criminal offence had occurred that might or would significantly hinder the conservation objectives for a marine conservation zone. However, it is important that these bodies, which are responsible for enforcement, are made aware of damaging acts so that they can take any enforcement action necessary. There is a persuasive argument for retaining paragraph (a) of subsection (4).
I say to the noble Baroness, Lady Miller, that it is also vital that the statutory conservation bodies report to the Secretary of State on any results from monitoring marine conservation zones. Those bodies are already required to give advice to the Government, so the Secretary of State can report to Parliament on progress on designating a network under Clause 120(1)(a). Therefore, I understand the reason for the amendment, but we think that the issue is already covered.
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Amendment A175 is on the definition of damage relating to the roles of public authorities and statutory conservation bodies. “Damage” is already defined in Clause 122 as including,
What could “improvement” mean in the context of a zone’s objectives other than movement towards or reaching them? That is certainly how we understand the word “improvement”, so we think that we have covered the concerns addressed by this amendment.
I hope that I have given some assurance to noble Lords. I certainly want to reiterate the point raised by the noble Lord, Lord Taylor, at the beginning of this debate that this is not a situation whereby the statutory conservation bodies will be heavily involved in the process of designation but will not be seen to have a continuing role. They will have such a role, and it will be an important one.
Lord Taylor of Holbeach: I am grateful for the Minister’s response, which does a great deal to reassure statutory conservation bodies and, indeed, public authorities. It is most important that he has made it clear that advice and guidance can be given at any time. I was particularly taken by the noble Baroness’s comments that conservation bodies need to feel that they can evaluate risk assessments, take a risk-assessment approach to anticipate future hazards if these situations are likely to arise and advise the authorities on these matters in advance of disaster, rather than just reacting to difficulties. I am reassured by the Minister’s response. I beg leave to withdraw the amendment.
Amendments A168 to A171 not moved.
Clause 122: Duties of public authorities in relation to certain decisions
Amendments A172 to A175 not moved.
A176: After Clause 122, insert the following new Clause—
“Offence of breach of duty by a public authority
(1) A public authority which, in the exercise of its functions, carries out an operation which damages the protected features of an MCZ or adversely affects any ecological or geomorphological process on which the conservation of any protected feature of an MCZ is (wholly or in part) dependant without first complying with section 121(3) is, unless there was a reasonable excuse for carrying out the operation without complying, guilty of an offence and is liable on summary conviction to a fine not exceeding £20,000 or on conviction on indictment to a fine.
(2) A public authority which fails to comply with section 121(4) is guilty of an offence and is liable on summary conviction to a fine not exceeding £20,000 or on conviction on indictment to a fine.
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(3) A public authority which, in the exercise of its functions, grants authorisation for an act which is capable of affecting the protected features of an MCZ or any ecological or geomorphological process on which the conservation of any protected feature of an MCZ is (wholly or in part) dependant—
(a) without first complying with section 122(2), or
(b) where relevant, without first complying with section 122(3), and in any case,
(c) without complying with section 122(5),
is, unless there was a reasonable excuse for carrying out the operation without complying, guilty of an offence and is liable on summary conviction to a fine not exceeding £20,000 or on conviction on indictment to a fine.”
Baroness Miller of Chilthorne Domer: We have tabled this amendment in the light of some of the bitter experience that, the Minister will recall, resulted from breaches of duty by public authorities with regard to SSSIs. He will remember, as will all other noble Lords who considered the CROW Act, that we debated at length why so many SSSIs were in an unfavourable condition. Very often a breach of duty by a public authority had led to that situation.
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