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I return to a point that I have made several times in this Committee: we want local coastal communities to feel that they own the new legislation as part of their responsibility to make it work. In many coastal communities, those who operate recreational craft are a very important part of the local community. I know that from my experience and I am sure that that is shared by many other Members of the Committee.

The dilemma is that we need to be clear—I hope that in his response the Minister will be able to be precisely clear—about the treatment of recreational

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craft; but if in any sense we seem to be singling them out for special penalties in a complicated way that is difficult for them to observe and conform to, we would be making a very serious mistake.

Earl Cathcart: The noble Lord, Lord Greenway, raises an interesting point about which vessels can and should be subject to restrictions within a marine conservation zone. I especially enjoyed hearing about his antics with a bicycle in the south of France.

One point has already been touched on by the noble Baroness, Lady Miller. On Monday, we discussed the inability of the Government to impose fishing restrictions outside the 12-mile limit. Can the Minister be similarly helpful today by telling us what rights vessels have as to free navigation and so on that British authorities will be unable to restrict?

Lord Davies of Oldham: I am grateful to all noble Lords who have spoken in this debate, especially the noble Lord, Lord Greenway, whose group of amendments relate to a very important dimension of the life of our nation. As a maritime trading nation, it is vital that we get the treatment of shipping and other vessels in the Bill correct. I am grateful to noble Lords for identifying areas of concern.

Amendment 184 is intended to ensure that recreational vessels are treated in the same way as commercial vessels. I should stress that the Bill is designed to introduce the power to make by-laws so that activities that would not otherwise be regulated can be controlled if necessary. At the same time, we do not want to put an unreasonable burden on industry. Shipping is a vital part of the British economy and a very high percentage of British trade is carried by ship. The differential application of the prohibition contained in Clause 125(3)(b) is valid on economic and better regulation grounds. I hear what the noble Lord, Lord Tyler, says: let us be careful that we do not make prescriptions for some that complicate matters which do not obtain for others.

It will be recognised that the Government operate under significant constraints in certain aspects as regards by-laws. The noble Earl, Lord Cathcart, raised that issue. For example, we considered whether by-laws should extend beyond 12 miles from the shore, but concluded that they should not because the features occurring there tend to be less sensitive or vulnerable to human impact because they occur in deeper water or over large areas, so fewer unregulated activities occur. Damaging activities that occur tend to be dispersed over much wider areas of sea, which is well beyond the 12-mile limit.

7.45 pm

The noble Lords, Lord Greenway and Lord Tyler, asked about commercial vessels. The simple fact of the matter is that, as the noble Lord, Lord Greenway, knows better than anyone else in this House, we have obligations under international law that restrict our power to regulate commercial vessels. Those vessels can be regulated under mechanisms set up under the United Nations Convention on the Law of the Sea, but they are not subject to the by-laws of an individual nation following its particular and narrower objectives.

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I emphasise that we have limited competence in the waters beyond 12 nautical miles which restrict the use of by-laws, about which the noble Baroness, Lady Miller, was asking me. We also have differences under international law between commercial vessels and what we identify as recreational vessels, so some parts of the complexities that noble Lords, with their usual perceptiveness, have identified as difficulties in this area, are genuine difficulties born of British power in relation to the law of the sea.

That does not mean to say that we are without any means to regulate commercial shipping if we need to do so. Other mechanisms are available that can be used to constrain commercial shipping. Where there is a compelling case for the designation of an area of sea as an area that ships should not enter, it is open to the Government to make a submission to the International Maritime Organisation to that effect. An IMO-adopted area to be avoided can be designated in such a way as to apply to all types of ships, commercial and recreational. It will be recognised what a significant action it would be to seek the definition of an area in those terms. Consequently, it will be appreciated why the Bill provides for by-laws operating for a more limited area from the shore, the 12 nautical miles, which does not raise those more crucial matters of the law of the sea.

The noble Baroness, Lady Miller, asked me about the enforcement of MCZs. We sent a note yesterday to all noble Lords who are involved in the Bill and have participated in our debates about how by-laws and other measures protect the MCZs. We hope that that document will explain how enforcement measures fit together. It is a complex issue. The document runs to several pages, so I hope that the Committee will not ask me to read it out. I am not sure that I could do so accurately, as it is also in tabular form and with a whole range of abbreviations of which I am not a master. If the Committee will forgive me, I shall not attempt such an arduous exercise. However, that document is on its way to noble Lords; it was sent out yesterday. I hope that it is appreciated that we recognise that there are issues in the amendments to which we need to respond, and that we are doing the best we can to identify accurately the issues involved.

In addition to accepting necessary action taken to secure the safety of a vessel, Amendment 208, tabled by the noble Lord, Lord Greenway, would extend the exception in Clause 137(1)(e) to securing the safety of cargo. Amendment 209 would exempt damage done to a marine conservation zone by a vessel acting in emergency. Of course, we should not criminalise those whose actions unavoidably harm the environment in the course of emergency involving the saving of lives. We discussed that aspect earlier and of course the Government are four square with the noble Lord in his concern on that. However, we are not so sure about securing the safety of a cargo. Is that sufficient reason to cause harm in an area which we ought to take into account? Cargo, after all, is replaceable and insurable. It is not obvious that we should put on cargo as high a valuation as we put on the protection of valued parts of the environment, which we cannot insure or replace. So we have, as the noble Lord will appreciate, reservations about that amendment.

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On Amendment A209, I can assure the noble Lord that Clause 137 as drafted provides that where a person takes necessary action to secure the safety of a vessel in an emergency and in so doing damages a marine conservation zone or contravenes a by-law, that person will certainly benefit from the exception described in that clause. As for the issues raised in Amendments A224 and A225, we address the issue of the meaning of a recreational vessel. I listened very carefully to the noble Lord, and I have to admit that when I heard the phrase “recreational vessel” I did not think of a bike. I am glad for his reassurance that bikes do not prove very effective at sea.

I would like to offer a further reassurance. Although the term “recreational vessel” is defined separately from “vessel” and is not as a subset of it, the two definitions are clearly related. There is no risk that a recreational vessel would be considered as a vessel and bound by the same rules. We want to make clear that distinction.

Noble Lords will forgive me if I have not answered all the points. I have to say that I have had from the Box a proliferation of more than helpful notes, rocketing its success rate to an unparalleled level. Therefore, if I have not satisfied noble Lords, it is my fault alone. I hope that the noble Lord will feel able to withdraw his amendment.

Baroness Carnegy of Lour: I am wondering whether the setting of lobster pots would require a by-law. The part of the coast that I am thinking of is not one to which the Bill applies. However, there must be areas in the inshore waters where small businessmen, in a small way, in small boats, regularly set lobster pots very near the coast. Would that disturb a conservation zone? Would that be something for which a by-law would be required—not an emergency one, but one under the other clause?

Lord Davies of Oldham: In Scotland I was a beneficiary of a small lobster-pot fisherman who produced an excellent lobster for supper, so I would not want to constrain that activity. However, the answer to the noble Baroness’s question has to be framed in terms of the nature of the marine conservation zone and the conditions established for it. She is right to express anxiety: there may be circumstances, though I am not knowledgeable enough to describe them, where that form of fishing did present a challenge to the conditions of a particular zone. I would like to reassure her, however, that this Bill is not designed to stop lobster fishing.

Baroness Miller of Chilthorne Domer: Will the Minister answer one very definite question? I look forward to receiving the much more detailed briefing that he says is in the post. However, my question is whether the MMO will have any power, if it sees fit, to extend any necessary by-law beyond 12 nautical miles. I have taken the international shipping regulations into account along with common fisheries issues, but the Bill as drafted does not allow the MMO to extend its by-law-making powers beyond 12 nautical miles. Does the Minister think that it would at least be worth reconsidering

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whether in some circumstances it would be a good idea for the MMO to have those powers? Does leaving them out of the Bill not mean that if it found that it really did need them, it would have to come back to the Government and ask for special legislation?

Lord Davies of Oldham: I hope that I have explained to the noble Baroness that we are masters in our own land and we certainly have rights in relation to the sea up to 12 nautical miles. Beyond that, however, our position is a great deal more limited and controlled—properly—by the United Nations Convention on the Law of the Sea. So the answer is that we cannot arbitrarily extend by-laws out beyond the 12 nautical miles. There may be circumstances in which that case could be made, and I explained the mechanism by which we might be able to make an application. But the answer to the noble Baroness is that we are significantly constrained by international law beyond the 12 nautical miles.

Lord Greenway: I am grateful to the other noble Lords who have spoken and to the Minister for his full response. I am still a little bit in the dark in respect of my Amendment A184 on recreational vessels. I can understand that the International Maritime Organisation deals with large commercial shipping, but what is the case with small commercial fishing boats, for instance, which are not covered by the IMO? Surely it should apply to them as well. I am also still rather confused by how bicycles come into it, and other non-motorised forms of transport. Are we to take those as being sand yachts or some such things? Was I right in assuming that it referred to a beach when the tide is out?

Lord Davies of Oldham: The noble Lord is asking very particular questions and I am not sure I can go into that detail at this stage. I was trying to reassure him on why we have a distinction between commercial vessels and recreational vessels, since we are all concerned about the necessary obligations to keep commercial shipping as free as possible. The issue of recreational vessels makes the mind boggle; one thinks, for example, of vessels that plies the Thames and then drives up Whitehall. I do not know how that DUKW-type vessel is identified, but I do know that the capacity and genius of inventors and developers of transport know no bounds. If we tried within the framework of this Bill to be at all precise about that which we circumscribe, we would get into great difficulties almost immediately. So he will have to accept the intent of the broad divisions in the Bill, and the issues of contention will be on the margins.

Lord Taylor of Holbeach: Does the Minister accept that what he is talking about comes perilously close to a list?

Lord Greaves: Does the Minister accept that if he had gone to Morecombe on his holidays in the 1950s he would have been able to travel on DUKWs up and down the beach and into the sea? My understanding is that they are amphibious craft, used by people like commandoes in the last war.

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Lord Davies of Oldham: This is the second time in two days that I have had the delights of Morecombe brought to my attention. Yesterday, it was a poster from the 1950s; today, it is a reminiscence. I need no persuasion to believe in the delights of Morecombe.

Lord Greenway: We do not need to prolong this debate any longer. I will certainly read with interest what the Minister has said, and will decide whether to come back to the issue at a later stage. In the mean time, however, I beg leave to withdraw the amendment.

Amendment A184 withdrawn.

Amendment A185

Moved by Lord Davies of Oldham

A185: Clause 125, page 76, line 21, leave out “will” and insert “would”

Amendment A185 agreed.

Clause 125, as amended, agreed.

8 pm

Clause 126: Byelaws: procedure

Amendment A186

Moved by The Duke of Montrose

A186: Clause 126, page 77, line 1, leave out subsection (2)

The Duke of Montrose: On behalf of my noble friend Lord Taylor, I move Amendment A186. This amendment has been tabled to call into question Clause 126(2). Under the Bill, the MMO is required to send a copy of the draft by-law to,

Does the Minister truly think that this is possible? Could he clarify just how interested or affected a person would have to be to qualify for receiving this draft copy of a by-law? Can he suggest how many draft copies he envisages might be sent out, and does he accept that this could cost large sums of money? Indeed, what consideration has been given to how much this will cost, and can the Minister provide anything like an approximate figure? Subsection (2) is impractical and represents an impossible task. Can the Minister give us an explanation that could persuade us otherwise?

The amendment tabled by the noble Lord, Lord Greenway, makes it clear that when creating a permanent by-law, the MMO must publish its intention to do so in accordance with the rules laid down in Clause 126 about by-law procedure in subsection (8). This is a sensible amendment, and I look forward to hearing the noble Lord’s thoughts on the matter. I beg to move.

Lord Greenway: Amendment A193 deals with the same consultation process to which we spoke earlier. I do not really need to say any more, except that, on that occasion, the Minister gave an assurance that there would be due consultation, and I seek equal reassurance on this point.

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Lord Davies of Oldham: I hope that I can do better than that by responding constructively to both amendments, although I will not accept them; that would be pushing things a little too far, as noble Lords will recognise. The noble Lord, Lord Montrose, has identified an issue, and I am grateful to him for that. When drafting this subsection, we were concerned to maximise the chance of everyone with an interest having the opportunity to express views. That is the objective. However, the noble Lord is right that we are in danger of imposing disproportionate burdens on the MMO. Indeed, he described them in such a way that it is clear that they could be not only disproportionate but absolutely indefensible. He is right that, in the most extreme case, anyone who could remotely be said to express an interest could be expected to receive their copy. We will look at this again in the light of the noble Lord’s amendment. I think that I can assure him that when we do so we will ensure that we do not fall into the trap that he has accurately identified. Falling into such a trap would not be the right thing to do.

On the point raised by the noble Lord, Lord Greenway, I emphasise that emergency by-laws are intended to be a contemporary measure. They should not normally remain in force for more than 12 months, as this is generally sufficient for a permanent by-law to be made if necessary. A longer period may be needed, however, and Clause 127(7) allows the MMO to extend the protection for up to six months by making a further by-law. I emphasise that the MMO could do so only when it intends to make a permanent by-law and has already published notice of it. I reassure noble Lords that Clause 126 makes it clear that, to comply with Clause 127(7), the MMO must ensure that its notice complies with the requirements of Clause 127(8). I hope that that gives the noble Lord the assurance that he seeks and that, having scored bull’s-eyes, both noble Lords will feel able not to press their amendments to a vote.

The Duke of Montrose: I am most grateful to the right honourable Member for Oldham—I beg his pardon, I get very confused with all these titles; I mean the Minister—for accepting our amendment. I beg leave to withdraw the amendment.

Amendment A186 withdrawn.

Amendments A187 to A190 not moved.

Clause 126 agreed.

Clause 127: Emergency byelaws

Amendments A191 to A193 not moved.

Clause 127 agreed.

Clause 128: Interim byelaws

Amendments A194 to A196 not moved.

Clause 128 agreed.

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Clause 129: Further provision as to byelaws

Amendment A197 not moved.

Clause 129 agreed.

Clauses 130 to 134 agreed.

Clause 135: Offence of contravening byelaws or orders

Amendment A198

Moved by The Duke of Montrose

A198: Clause 135, page 82, line 33, leave out subsection (2)

The Duke of Montrose: I move Amendment A198 on behalf of my noble friend Lord Taylor. The amendments in this group have been tabled to explore the penalty levels set by the Government in Clauses 135 and 138. They could well have been tabled to Clause 136, but the noble Baroness, Lady Young, has tabled her Amendment A199, which highlights the discrepancy between the penalty levels in Clauses 135 and 136, and will do just as well. The difference between £5,000 and £50,000 is enormous, and I look forward to hearing the Minister explain his reasoning behind it.

Amendment A217A deals with the penalty level in Clause 138, which sets the level of monetary penalty that the enforcement authority can impose. This level is very low. We do not necessarily disagree with this; fixed monetary penalties may be a cheap and quick method of getting through a large case load without clogging up the courts, but they should not be seen as a substitute for proper legal proceedings where the circumstances warrant. Where a serious breach of by-laws has occurred, the enforcement authority should proceed under Clause 136 rather than Clause 138.

I am curious as to what sort of situation the Minister thinks a maximum penalty of £200 will be effective in. It is too small to be a meaningful deterrent for many of those who might intend to breach the by-laws for commercial gain, but enough to be a significant and not necessarily useful nuisance for those who accidentally breach a by-law. The noble Baroness’s amendment in this group is an interesting possible alternative and I look forward to hearing the response that it receives. I beg to move.

Baroness Miller of Chilthorne Domer: My Amendment A217 in this group suggests that there should be a system of simple and conditional cautions, as defined in the Criminal Justice Act 2003, particularly given that some people, as this whole system of marine conservation zones comes in—we have still not heard from the Government that the zones will be marked, where necessary—will make simple mistakes. Those mistakes might be dealt with better, and a far better relationship might be built up between the stakeholders using the sea and the authority trying to enforce this regime, if, instead of going straight to a fine, a caution was an option. Beyond the simple mistake that might get overlooked, there very likely could be a next stage where a person repeats an activity that they have done

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for generations. They may not understand that what they are doing is serious and that there is a good reason for not continuing to do it. Before a fine is imposed, it would seem reasonable to have the option of a caution. That is in other legislation because it is a tried and tested system, which I hope that the Government will think about.

Baroness Young of Old Scone: Amendment A199 is in my name. The noble Duke who led on this group presented it for me admirably, but I should like to add a few things. In the draft Bill, the penalties for offences against by-laws or orders were the same as in Clause 136 and were as tough as the penalties already in the Bill for damaging protected features. Between the draft Bill and the Bill as introduced, the offence of breaching MCZ by-laws or orders has been downgraded. It was an either-way offence with a maximum fine of £50,000 in the magistrates’ court and an unlimited fine in the Crown Court. It has now been downgraded to a summary-only offence with a maximum fine of £5,000.

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