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I can imagine the Minister’s defence. He will say that these penalties for offences against by-laws or orders are merely intended for minor offences of the sort that by-laws might generally represent, and that there are other penalties for the much more serious offence of damaging protected features or offences caused and enforced by other bodies in line with the briefing that he indicated had been sent out yesterday, which gives in quite great detail who can do what to whom. But this is not the case.
The reality is that contravening by-laws or orders can be extremely serious on occasions. Reverting to an either-way offence with a maximum fine of £50,000 in the magistrates’ court and an unlimited fine in the Crown Court would leave it to the courts to decide how serious individual cases are and provide a much wider, more flexible range of individual penalties for the by-law offence. That does not mean that the courts will necessarily hand out the maximum on every occasion. They rarely do. But £5,000 is hardly any deterrent for the sort of things that could be represented by by-law or order contraventions. I hope that the Minister, in whatever way he was swayed to accept the change between the draft Bill and this Bill, might now be swayed back to his original intent, which was by far the better one.
8.15 pm
Lord Hunt of Kings Heath: This has been an extremely interesting debate. It is important that we get this right. I fully accept that we do not want a situation in which there are not adequate penalties for appropriate transgressions. Perhaps I might explain the decision that we reached. It is right that we should explore the level of the penalty. Interestingly, as I understand it, Amendment A198, to which the noble Duke spoke, would make the breach of by-laws a matter of civil law and therefore not subject to prosecution in the court. On that, I am with the noble Baroness, Lady Young. In that case, we need to retain the threat of criminal conviction and a fine of up to £5,000 to act as a deterrent. We agree that without that by-laws are likely to be less effective, since the only sanction would be a fixed monetary penalty up to level 1 on the standard scale, which is currently £200. I appreciate that
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Relatively modest monetary penalties may be fair and proportionate in most cases and act as a deterrent for most people, but we need the deterrent of higher fines and a criminal record to deal with people who recklessly or repeatedly risk causing harm to a site. I well understand that the noble Baroness, Lady Young, thinks that we do not go far enough in relation to that and wishes to go higher. Certainly, there needs to be a hierarchy. The noble Duke asked me to give an example of an activity that might attract a £200 penalty. As Members of the Committee know, it is always dangerous to answer something like that and I would rather resist, but an example might be a person exceeding the speed limit on a wretched jet ski or entering a prohibited area but not causing damage.
Baroness Young of Old Scone: The Minister was probably right to avoid giving an example, because out of the mouth of examples comes reality. Jet skis and conservation have long had difficulty coexisting. There is a difference between a jet skier going at a moderate speed in a prohibited area and the flagrant mass jet skiing at high speeds in very sensitive areas that sometimes occurs. That would be an example of a by-law or order where a judge, if he had the option, could take advice and apply higher penalties where necessary, particularly in the case of repeat offenders. In some recreational activities, the problem is that people repeat-offend and regard it as a legitimate cost of their sport to shell out the odd low-level fine.
Lord Hunt of Kings Heath: I am at great risk of saying what I think of jet skiers, on which I am not a million miles from the noble Baroness. However, does she not see that there is a difference? A fixed penalty notice might be appropriate for a jet skier who inadvertently goes into an area where he or she should not, but if someone acts in the way that she described, we have the ability to pursue them under Clause 135(2). I think that the noble Baroness is saying that she does not think that level 5 is sufficient.
Baroness Young of Old Scone: Absolutely.
Lord Hunt of Kings Heath: This is difficult. In essence, we think that we have the balance right. I understand what the noble Baroness is saying, but we have to be proportionate. Each Member of the Committee may have a different view. The breach of a by-law is most likely to result in localised or small-scale impacts—the noble Baroness has anticipated my response because she knows where I am coming from. However, a prosecution for intentional damage, which is a serious matter, will be brought against people who commit acts of environmental vandalism that cause significant harm to a site. That is covered in Clause 136(3) and (4), which states:
“A person who is guilty of an offence under this section is liable—
(a) on summary conviction, to a fine not exceeding £50,000;
(b) on conviction on indictment, to a fine”.
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That, essentially, could be an unlimited fine. I shall come the point about cautions in a moment, but we have a hierarchy here and we consider that, in relation to by-laws where a fixed penalty notice is not appropriate, a level 5 fine is the right potential fine and would act as a deterrent.
On the question of enforcement, I agree entirely with the noble Baroness that there will be people who make simple mistakes, where a caution is entirely the right approach. I shall not bore noble Lords by praying in aid the Health and Safety Executive, but its approach to proportionate regulation is entirely right. The executive starts from the premise that, unless an act has clearly either caused harm or is likely to cause serious harm, everything is done to encourage people to do the right thing, and from there you can move up the hierarchy of sanctions. The noble Baroness is right about that.
I can assure the noble Baroness that we do not need to make express provision. A simple caution is non-statutory and can be administered by prosecuting authorities without the need for an express power. The conditional caution has a statutory basis in the Criminal Justice Act 2003, and Section 27 makes provision for prosecutors other than the CPS to administer conditional cautions if a need is identified for giving them such a power; the mechanism exists and the noble Baroness’s point is very well taken.
The Duke of Montrose: I congratulate the Minister on his courage in bringing forward examples that we can get our heads around; it is immensely helpful when looking at the issue. The noble Baroness, Lady Young, obviously has a long and bitter history in relation to the speed of jet skis and so on. I know fairly well where she is coming from, having been involved in by-laws in a place called Loch Lomond where we are worried about the wake from vessels. I am not sure whether in the context of the sea other than in harbours the wake of jet skis will cause much bother to an MCZ, but at least we have had a chance to air the subject. We shall read what the Minister has said and I beg leave to withdraw the amendment.
Amendment 200 had been withdrawn from the Marshalled List.
Clause 136: Offence of damaging etc protected features of MCZs
Baroness Young of Old Scone: In moving Amendment A201, I shall speak also to Amendments A202 to A206. These refer to the clause about offences of causing damage to the protected features of MCZs. I look forward to
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I shall speak first to Amendment A201. We should welcome the idea of a general offence of causing damage to the protected features of MCZs, but as drafted you would need to prove all three elements beyond reasonable doubt. That is going to be a pretty tall order. Did the person actually commit the prohibited act without lawful excuse? Did he know or should he have known that the feature to which the act relates is part of an MCZ, and has the act significantly hindered or will hinder the achievement of the MCZ conservation objectives? There are two difficulties here. It is going to be hard enough trying to prove that someone committed the act out at sea, and you also have to prove that he knew or ought to have known that the feature was in an MCZ. That will be extremely difficult because the zones will not have notices erected at their entrances stating, “You are entering an MCZ”. I cannot think of legislation governing any other walk of life that I have had experience of where ignorance of a particular protection or designation is a suitable defence. Under many other pieces of legislation, to say, “I am sorry, but I didn’t know it was against the law”, would on many occasions have both the lawyers and the police laughing as you said it. That is a real stumbling block.
Equally difficult is the provision that it has to be demonstrated beyond reasonable doubt that the act has significantly hindered or will hinder achievement of the conservation objectives. The reality of the marine environment is that, if you wait long enough, there is a strong possibility that what is wrong in it will ultimately recover. There are some examples where that is not the case, such as the Newfoundland cod stocks, but we could see hours of legal argument as people try to demonstrate that, in the long run, the conservation objectives would be met and therefore their act has not significantly hindered them. I am concerned that we are putting three tests into place that will make it almost impossible to prove a case beyond reasonable doubt.
My other amendments are Amendments A202 to A206, and I am delighted to be joined by the noble Lord, Lord Taylor of Holbeach, on these. We ought to learn from a history of failure in the protection of SSSIs in terrestrial conservation. The offence as currently drafted applies only to deliberate damage, which was the approach of the Wildlife and Countryside Act 1981—indeed, this Bill is threatening to come perilously close to being almost as long in terms of our debates. The reality was that very few prosecutions were brought under the Act because it was abominably difficult to prove deliberate damage. You have to get inside someone’s head and prove intention, which is notoriously difficult, and sites continued to be damaged.
The Countryside and Rights of Way Act 2000 changed all that by strengthening the provisions for SSSIs to cover reckless damage and indeed disturbance, which is the point of Amendment A203. Disturbance
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8.30 pm
Lord Taylor of Holbeach: We have joined the noble Baroness on a large number of the amendments in this grouping. She is understandably concerned about the limited circumstances in which the more stringent offences in Clause 136 become liable. I am not sure that I agree with the removal of subsection (1)(b) completely for fear that enforcement authorities will not take the appropriate steps to inform the public about MCZs, but certainly subsection (1)(c) is a stringent burden to be overcome. The way this is drafted makes successful prosecutions unlikely. I hope the Minister will take account of what was said by the noble Baroness in reviewing this subsection.
Why has the Minister decided that it is only an offence if significant hindrance is caused? It is the accumulative effect of many damaging acts, often small in themselves, which has harmed the marine environment up until now. This clause would seem to allow this to continue. How significant would an act have to be for Clause 136 to apply? I know the Minister is reluctant to detail this but I hope he can see the importance of the point the amendment tabled by the noble Baroness makes.
As the noble Baroness pointed out, we are joint signatories to the majority of the amendments in this group. They also extend the definition of “injure” to include “disturb”. As the noble Baroness set out, disturbing many species is akin to injuring them. This is in line with other marine protection legislation. I would like to hear the Minister’s views on “recklessly”, particularly as he used that word, as the noble Baroness pointed out and I noted down. The word “recklessly” can be an indictable offence and I would like to see it included in the Bill.
I would also like to take the opportunity to ask about the possibility of somebody being caught with clear intent of committing a prohibited act. Why have the Government decided that a serious intent to commit a prohibited act, perhaps only prevented by the timely arrival of the enforcement authority, is not subject to a similar penalty?
Lord Greaves: We would like to associate ourselves with this group of amendments, particularly with the comments made by the noble Baroness, Lady Young
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Lord Hunt of Kings Heath: This carries on our debate about whether we have the balance right and whether there are sufficient sanctions contained in the Bill to ensure that we do everything we can to prevent damaging or reckless behaviour. I fully accept the importance of this.
I will start with the amendment tabled by the noble Baroness, Lady Young. Essentially, it widens the scope of the general offence by removing the defences in Clause 136(1). I understand where she is coming from and why she is concerned about the effect of the defences. If we were to go down the route that she suggests, the problem is that the person would be deemed to have committed an offence even if they could not have been expected to know that a feature was protected, and even where no significant harm occurred. Our concern is to get the balance right. We clearly want there to be deterrents so that there are sufficient sanctions and sufficient confidence that when prosecutions are taken, they will be successful if the evidence is there. We are concerned about well-intentioned and responsible people finding themselves unwittingly in breach of the law. That is the reason for the defences as they are set out. We do not want to criminalise people whose behaviour is unlikely to have discernable conservation impact.
Giving examples is dangerous, as I have already discovered tonight. Clause 136(1)(b) is an important matter and states:
- “at the time of doing the act, the person knows, or ought to have known, that the feature to which the act relates is in, or forms part of, an MCZ”.
This part of the clause relies on what a person actually knows or what it is reasonable to expect the person to know in the light of the activity they are carrying out. If the person knows that a feature is part of a marine conservation zone and intentionally damages it, clearly they should be guilty of the offence. In other cases, it may well be that a responsible person would take certain steps to inform themselves about any restrictions on any activities they wish to pursue in an area. It is reasonable, for example, to expect a person to inform themselves about the conditions of a marine licence under which they are operating. It would also be reasonable for a person who was diving to collect shellfish to check whether there were any restrictions on what shellfish might be collected from the seabed in an area. This is not a carte-blanche defence. It is entirely reasonable to expect a responsible person to take steps to inform themselves. An example of what might not be caught by this defence might be damage caused because relevant information was not readily available, although it was sought about protected features or restrictions on activities in appropriate places.
On the question of reckless damage, I find myself in sympathy with the point the noble Baroness raised, which is fortunate since I used that word perhaps unguardedly a moment or two ago—indeed recklessly.
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Amendment A203 extends the general offence to include intentional disturbance of animals. This is an important amendment linked to Amendment A222, which provides a definition of disturbance. I do not disagree with the point put forward by the noble Lord, Lord Taylor: the question is how to deal with it. The Government’s approach is that because the kind of activity that might cause disturbance will differ between sites, it is better dealt with on a case-by-case basis. The Bill allows for potentially disturbing activities to be controlled through by-laws, which have the advantage of being easier to enforce and provide greater clarity for sea users. Disturbance might be caused, for example, by people straying too close to a group of animals through innocent curiosity or as part of an organised wild-life watching trip, or perhaps through using machinery which emits a loud noise or is fast-moving, such as our favoured jet skis. Where a site is considered vulnerable to such disturbance, the Bill allows for by-laws to be made. We believe that these can control the doing of anything which will disturb any object, animal or plant within a marine conservation zone.
Why do we look to by-laws? Because they can be readily adapted to deal with a specific threat and will often be a more effective means of protecting a site than a general offence. For example, where a community of seabirds is vulnerable to disturbance during a particular time of the year, a by-law could prohibit particular activities in a specific area during that time of the year. In that way, restrictions will be kept to the minimum necessary. They will be expressed in ways which are clearly understood by everyone and it should be clear whether or not an offence has occurred.
The definition of disturbance proposed in the noble Lord’s amendment would make it difficult to prosecute offenders. The measure of noise which may disturb a plant or an animal, or the extent to which an organism has been stressed by it, can be difficult to prove. There are other aspects to disturbance which we think make it better controlled through by-laws. A single act of disturbance is likely to have a temporary impact and . may become a problem only when combined with other sources of disturbance over a period of time. Therefore disturbance is different in character from the kind of intentional damage that we consider merits the introduction of a general offence. That is why it is probably better approached through by-laws, which can be much more specific and almost on a case-by-case basis.
I recognise that this is very important but we think that we have got the hierarchy right. We understand the point about recklessness and that we need some defences, but we do not intend these defences to be used in a way that enables wrongdoers to get off, if I can put it that way. I hope it is clear, from the way I have explained the paragraph (b) part of the defence, that it is not good enough to plead simple ignorance. There are expectations that go alongside that defence.
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Baroness Byford: Perhaps the Minister can clarify the by-law question for me. Given what is contained in Clauses 125 and 126, do I take it that the by-laws would be brought into being only by the MMO? If not, who else would bring them in? It is clearly different from terrestrial zones where it might be brought in by other people. I accept the Minister’s argument that the Government are trying to get a balance within the Bill—that is extremely important—but a difficulty may sometimes arise where people should have known, but did not know, that they were committing an offence. That is a very fine point.
In our earlier discussions, we were talking about foreign vessels coming into our zones. It will be quite a challenge to ensure that international shipping and the people who use our waters are aware of the by-laws—I remember we had a long discussion on buoys and markers—and I seek clarification on who is entitled to make the by-laws and on the way in which the Government anticipate getting that information out into the public domain. Sometimes offences are committed by people who have no understanding that they are committing them, and sometimes people deliberately and knowingly commit offences. A certain amount of flexibility to deal with such situations is sensible and I am happy with that, but I seek guidance on the by-law situation.
Lord Hunt of Kings Heath: Clause 125(1) makes clear that:
“The MMO may make one or more byelaws for the purpose of furthering the conservation objectives stated for an MCZ in England”.
It is for Welsh Ministers to make by-laws in Wales. Scotland is not covered under these provisions because they deal with inshore waters, which is a devolved matter. Therefore it is a matter entirely for Scotland in that respect. By-laws can be made alongside the creation of MCZs, but, equally, further by-laws can be made in the light of experience. Issues around disturbance might be anticipated or they might be made in the light of experience, so there is sufficient flexibility.
Lord Taylor of Holbeach: Obviously, local authorities can make by-laws. They are the authorities that might well be making by-laws on that area not covered by the marine conservation zone but running adjacent to it. Disturbance of the sort mentioned by the Minister, such as excessive noise, may well originate from outside the marine conservation zone and it may be that a local authority might have by-laws on access and things of this nature. They might not be part of this Bill, but will the Minister clarify that?
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