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We seek in this amendment to make sure that we have learnt the lessons of what happened to SSSIs and that public authorities think of their duties absolutely all the time. This amendment introduces a penalty to be imposed if authorities breach that duty. It aims to focus minds on the importance of being scrupulous about all their duties regarding an MCZ. In the beginning, when the MCZs are terrific new things, no doubt lots of effort will be made to fulfil those duties but, over time, as other pressures come up the agenda, a similar situation to what happened with SSSIs may arise. Their perceived importance gradually dropped and they were no longer as much a focus for people’s attention. That led to the priority of SSSIs being rather ignored. We do not want that to happen to MCZs and that is why this amendment has been tabled. I beg to move.
Lord Taylor of Holbeach: The amendment tabled by the noble Baroness, Lady Miller, raises an important issue. Our Amendments A183A and A183B are designed to tackle similar difficulties. The duties laid out in Clauses 121 and 122 make very clear the position of public authorities in relation to MCZs and certain decisions. We support the noble Baroness’s new clause, which would specify the nature of the offence and the fine that it would be possible to incur if the public authority breached this duty. Does the Minister agree that the severity of the offence should be made clear? Does he think that the level of fine is appropriate and may act as a deterrent for any public authority that is hoping to breach its duties towards MCZs in order to meet another requirement?
The Bill as it stands enables the appropriate statutory conservation body to request an explanation in writing from a public authority that has failed, or is perceived to have failed, in its duties. We are in full support of this clause, but it does not go far enough. Our Amendments A183A and A183B would require that the explanation must be forwarded to the “relevant authority” and that this body must be allowed to publish any explanation that it receives.
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This is necessary to make it completely clear that the public authority’s explanation must be forwarded to the correct body so that it can be called to account. Does the Minister agree that this is a sensible clarification? Furthermore, does he agree with us that it may be deemed necessary, appropriate and useful for the explanation to be published? Does he support our enabling power that would allow that to happen? I look forward to the Minister’s response.
Lord Davies of Oldham: I am grateful to noble Lords who have spoken to these amendments. Amendment A176, moved by the noble Baroness, Lady Miller, would mean that a public authority that, without reasonable excuse, failed to comply with one of the duties would be guilty of an offence. I note that the duties relate mainly to the requirement to inform the statutory conservation body of something that may significantly hinder the conservation objectives of a marine conservation zone.
The duties also relate to the requirement not to authorise acts where there is a significant risk to a site, unless certain conditions are met. I hope that noble Lords will appreciate that we have taken great care to ensure that these duties are clear and unambiguous. Clauses 121 and 122, which the noble Lord, Lord Taylor, spoke about favourably, refer to actions that public authorities must undertake.
When Parliament, if this Bill becomes an Act, places this statutory duty on a public authority, it expects that body to comply with the legal obligation created. It is unusual for a breach of a statutory duty by a public authority to be made an offence, which is the objective of the amendment. The usual remedy against any public authority that fails to meet its commitments, obligations and duties is judicial review. We have constructed these clauses on that premise.
The noble Baroness raised the issue of SSSIs and her concern about enforcement. She will appreciate, however, that SSSIs are fairly different from marine conservation zones. She is shaking her head, but she has not given me the chance to deploy the difference, so I shall try to persuade her to revise her opinion. The big difference is obvious. With SSSIs, there can be a number of overlapping authorities with different competences and those authorities may, therefore, undertake actions that impact on SSSIs. The relationship between the authorities and their responsibilities may become the subject of real concern. That is a bit different from the situation at sea. We are not talking about a range of different authorities that will be involved; the number of authorities with statutory duties at sea is, by definition, very limited. That means that saying who has the obligation or duty and against whom it must be enforced is that much clearer than with SSSIs. I respect the noble Baroness’s knowledge of SSSIs and attendant issues and I understand that she has anxiety in certain areas, but this is a different configuration of public responsibility and the degree of confusion that she is worried about will not occur.
Baroness Miller of Chilthorne Domer: How will this work with Clause 15? Would the MMO stay as the responsible body, for example, if it had delegated the
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Lord Davies of Oldham: That is the point about Clause 15: it involves a limited number of authorities and the Bill is clear about where the obligations lie. I am trying to reduce the effect of the argument that says, “The trouble with the marine conservation zones is that they will run into some of the difficulties that we have with terrestrial definition”. Well, terrestrial definition can give rise to conflicting responsibilities with regard to land—there are landlords and there is ownership of the land, which in itself creates an important dimension of the designation of such sites. That is not the case with the sea. The MMO does not delegate its authority in quite the same way. It will be delegating to other public bodies responsibilities that are clear and limited in number and which do not raise these issues in the same way. Under Clause 15, it is answerable for its responsibility as a public body; it cannot devolve that to another authority and not be held responsible. The challenge to the MMO will not be a fine; the challenge to the MMO, a body of that significance and salience, is bound to be judicial review, as it would be in all cases of a public body of that stature.
7.15 pm
Baroness Carnegy of Lour: I agree with the Minister in that I do not think that Amendment A176 will do, for the reasons that he gave. However, he said that the Government have made it clear exactly what is being said in Clauses 121 and 122. It strikes me that everything hangs on what counts as significant. The Bill talks of a function,
We very much want this Bill to work and we want the bodies that may be involved in any dispute to be very clear about what they are talking about, but are the Government happy that there will not be endless argument about whether the damage has been or might be “significant”? What is significant? Everything hangs on it, I think. I do not know whether there is precedent for this in legislation and whether that argument has to be included in that way but, on the face of it, it seems to me to be slightly vague. Can the Minister reassure me, or am I asking too much at this point?
Lord Davies of Oldham: I am not sure how far I can go with the reassurance, but the noble Lady will appreciate that we should be grateful to the noble Baroness, Lady Miller, for giving a terrestrial illustration of where this problem can arise and for identifying that it is not always readily resolvable to everybody’s satisfaction. I accept that point in relation to sites of special scientific interest. What I am saying about the sea and the operation of the MMO is that there is not
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I understand the anxieties of the noble Baroness, Lady Carnegy, about how much damage merits a case being taken as far as judicial review. Some judgment would have to be exercised, even if we had, within this framework, a fine that could be levied. It would still be a judgment on the severity of the offence by the public body.
Lord Tyler: I am following the Minister’s argument as carefully as I can, but I do not think that he is responding to the point made by my noble friend. All his emphasis on the different circumstances of SSSIs and MCZs is a bit of a red herring, frankly. The suggestion that there might be different authorities involved in SSSIs is not really the key issue. What will be the remedy if a public authority does not do its duty? The noble Lord’s reliance on judicial review is a bit worrying. So often in this House—in this building—Ministers spend their time trying to avoid circumstances where the only remedy is judicial review, which is tortuous and expensive.
Now that he has had a chance to look at the missives that he has received from the Box, the Minister may be able to tell us how often a solution has been found through judicial review where SSSIs have been involved. Not very often, I suspect. As we all know, it is a tortuous and expensive process, and many people feel that it is the wrong process to undergo when an official body has not performed its duty.
Here we have a very good system, suggested by my noble friend on the basis of practical experience. If the Minister cannot accept this solution, I hope that he and his colleagues will come up with something before Report that does not simply take us back to judicial review.
Lord Davies of Oldham: I hear what the noble Lord says. Regarding the notes from the Box which are of assistance in dealing with such questions, I have to disillusion the noble Lord. One in a hundred can hit the button right on the mark and I always congratulate my officials when they succeed. A lot of the time, the way in which the noble Lord then goes on to express his question is such that not even someone with the wisdom of Solomon could foresee what is meant to be sent to the Minister. Therefore, I am adrift.
The noble Lord is saying that it does not matter what I identify in terms of the public authority involved, even if I give the noble Baroness the response I am able to give. What is significant will have to be worked through as we operate the zones. Scientific evidence on that which is doing, or potentially doing, such damage will condition the issue. The conservation zones will be different from each other in this respect, according to what the objectives are. It is not possible for us to specify what is significant. However, we are seeking to identify that if a public authority is not carrying out its duty, judicial review is the normal way of resolving the matter.
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I listened carefully to the noble Lord’s comments on the problems of judicial review. I recognise that the process is not entered into lightly because it is costly and complex. But we are talking about a public authority in action, in a very significant way, charged with not fulfilling the duty that has been laid upon it by the legislation. If it had to be identified which authority was negligent, I can see a case for suggesting that judicial review might not be appropriate. I understand why in many cases people argue against it.
The number of authorities involved is very limited. The MMO does not devolve authority; it stands as the responsible authority. A charge against the MMO for having failed to do its duty would surely justify our suggestion of a judicial review.
Under Clause 124, the statutory conservation bodies can require a public authority to explain its actions. The question of being able to get from a public authority an explanation of what has occurred and therefore the evidential base for any future challenge is contained there. Proposing, as the amendment does, that fines should be imposed on a public body with clear obligations is an odd concept of a sanction. It should be more significant than that, which is why judicial review is the only appropriate remedy.
Baroness Byford: I wish to clarify what the Minister has said. I will read Hansard very carefully. Was he indicating that if there was a breach of duty by one of these authorities, the responsibility or claim would be made against the MMO in spite of the fact that it has delegated its work to a public authority? He lost me slightly with his final comments—I was getting more confused by the second.
Lord Davies of Oldham: Clause 124 provides for identification of the authority and a demand for information. That could mean that the sanction against the authority is naming and shaming—we could expose the fact that it is falling down on its obligations. That is one level of weakness exposed which would be subject to publicly expressed concern.
Where the MMO fails to meet its duty with regard to a significant issue on the zones, it is appropriate for us to say that it is not a matter of imposing fines on a body of such significance but a matter for judicial review.
I realise that there is not an expression of complete delight in my replies to these issues. They are quite difficult, and I am no lawyer. If it will help, I will undertake to write expressing the Government’s position on the amendment, perhaps more cogently than I have been able to do in this debate.
Lord Taylor of Holbeach: The Minister did not address the last of our amendments in the group about publication of the evidence. There is a lot to be said, when failure occurs, for making this dialogue as public and open as possible. The Minister spoke of naming and shaming. I should have thought that publication was one way of ensuring that that happens.
Lord Davies of Oldham: I accept that point. In referring to the naming and shaming procedure, I should have referred to the noble Lord’s amendment. I have a hesitation about it, which he will appreciate.
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7.30 pm
Baroness Miller of Chilthorne Domer: That was a very interesting debate. I agree with my noble friend Lord Tyler that judicial review is a very difficult process, because it deals with how a decision was arrived at, and cannot look at the issues in the same way.
It will help if the Minister writes to us, because, like the noble Baroness, Lady Byford, I am still confused about who will face sanctions under the scheme of delegation. The Minister prays in aid Clause 124, but it is a pretty feeble stipulation that,
That does not constitute naming and shaming. Even if it did, naming and shaming a quango is not the same as naming and shaming a council that is subject to election every four years, where the sanction may have some effect.
We are giving immense power to the MMO and ought to think seriously about the sanctions that will be applied when it fails: when it has not pursued its duty as it should, or when it has delegated a duty that has fallen between two public authorities. That is an issue that this debate has opened up—the fact that there may be a hole down which important duties may fall in some circumstances. I look forward to receiving the Minister’s letter giving more detail on that matter. In the mean time, I beg leave to withdraw the amendment.
Clause 123: Advice and guidance by conservation bodies
Amendments A177 to A183 not moved.
Clause 124: Failure to comply with duties etc
Amendments A183A and A183B not moved.
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Clause 125: Byelaws for protection of MCZs in England
Lord Greenway: I will speak also to Amendments A208, A209, A224 and A225.
Under Clause 125, the MMO is allowed to make by-laws,
There are a number of by-laws prohibiting certain activities. Clause 125(3)(b) prohibits or restricts,
- “entry into, or any movement or other activity within, the MCZ by recreational vessels or (where appropriate) vehicles”.
Recreational vessels are singled out only in this paragraph. Elsewhere, “any vessel” is the term used. I looked up the interpretation and saw that “vehicles” refers to hovercraft or bicycles. In more than 50 years of maritime meanderings all over the world, I have on occasion come across a hovercraft, but I admit to never having come across a bicycle. I do recall an occasion when, after a particularly good lunch in a French port, two of my fellow crew members decided that it would be a good idea to hire a tandem, and proceeded to ride straight off the edge of the quay into the sea. Happily, they both resurfaced, one still with a cigar in his mouth. The tandem, unfortunately, did not, and only some nifty work with a grappling hook placated a rather enraged Frenchman. There is also a saying that the three most useless things on a yacht are a bicycle, a stepladder and a naval officer. Looking quickly around the Chamber, I hope that we have none of the latter present.
Does this prohibition refer to an MCZ that comes up to the high water mark? At low water, the beach would be exposed, but presumably there would still be an area of sea at the end. I understand the need to exclude bicycles and recreational craft such as canoes or things that you can haul up the beach; but surely, if it goes into the sea as well, why should the prohibition apply only to recreational vessels? I would like an explanation. Amendments A224 and A225 are subsequential. However, on reflection, the drafting of A225 leaves something to be desired.
Amendments A208 and A209 refer to something quite different and come under Clause 137, where exceptions are mentioned to offences committed under Sections 135 and 136. One exception stipulates that someone is not guilty of an offence when the action taken,
- “was necessary for the purpose of securing the safety of any vessel, or of preventing damage to any vessel or cargo, from any danger which could not have been foreseen or anticipated”.
My amendments would alter that to read,
- “was necessary for the purpose of securing the safety of any vessel or cargo, or of preventing damage to or by any vessel or cargo, from any danger”.
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The reason for the first amendment is that the safety of the vessel will invariably be at one with the safety of the cargo, but occasions may occur where action is needed only in relation to the cargo. This may arise where part of the cargo has to be destroyed or rendered innocuous if it represents a danger to other goods, for example by drifting, leakage or contamination. The first amendment is designed to cover this eventuality.
The second amendment relates to damage by a vessel and would cover a situation where it was necessary, for example to enter an otherwise prohibited area to preserve the safety of the vessel. I beg to move.
Baroness Miller of Chilthorne Domer: Is the Minister content with the extent of the by-law-making powers? The noble Lord, Lord Greenway, talked about recreational vessels. Extent might be important where you have an MCZ that goes out from 10 nautical miles to 14 nautical miles and is particularly valuable for dolphins and basking sharks. The by-law-making powers stop at 12 nautical miles.
In summer, when you have an interesting pod of dolphins, you will often see recreational vessels going to look at them. We hope that they observe the guidance on behaving properly around whales and dolphins, but they do not always. Sometimes they do not slow down and sometimes they follow the creatures, which they are not supposed to do. In fact, if you stay still, you will often be much luckier, because the creatures will come right up to you and you will get a fantastic view of them.
The purpose of the by-law-making powers is to allow the MMO to make whatever by-laws it thinks necessary to protect the features for which the MCZ was designated. I understand that as far as international shipping and fisheries that come within the CFP are concerned, the powers have to stop at 12 nautical miles. However, for conservation purposes, I would like to explore with the Minister why they should not extend beyond 12 nautical miles.
Lord Tyler: There is a genuine dilemma here, because I entirely agree with what my noble friend says, but I am also anxious that we should not be developing some sort of special treatment for recreational vessels for the simple reason that the noble Lord, Lord Greenway, hinted at: they are often operated by relatively small companies or individuals. If we make it too complicated, we will look as if we are somehow penalising comparatively small operations without proper justification. Although it is obviously important that we identify a potential problem, if we do it in an especially complicated way, there will be a lot of resistance.
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