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8.45 pm

Lord Hunt of Kings Heath: That is a good point. There needs to be collaboration between local authorities and the marine management organisation in England to ensure that there is a consistent approach in that situation. In previous debates, we have agreed that the local authority agreement will be important in ensuring that there is local ownership and involvement. I agree with the noble Lord on that.

Baroness Byford: Is it the Minister’s point of view that the by-laws could come from either the MMO or the relevant local authority?

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Lord Hunt of Kings Heath: No, as regards the provisions contained in this part of the Bill, that falls to the MMO. The point made by the noble Lord, Lord Taylor, is that, for example, there may be disturbance which disturbs people on the land as much as the animals in the sea. I think that is what he is saying. He indicated that as regards the sea, in a marine conservation zone, the by-laws would fall to be made by the MMO, but that one might hope for a consistent approach from the relevant local authority. They are different bodies and will have to take their own decisions, but, as we have discussed in so much of this Bill, let us hope that they will work together.

Lord Taylor of Holbeach: I am grateful for the Minister’s reply to this useful debate. I am grateful for the contribution of my noble friend Lady Byford. She has developed the arguments in a way that has allowed us to explore the localism approach, which, after all, I cannot really speak against.

I accept the Minister’s argument about the efficacy of by-laws applying locally to specific situations over blanket legislation. It is extraordinarily difficult. Most of us would like to think that we knew a villain when we saw one, but it is difficult to actually describe one in legislative form. Some of the difficulty we are having with this is not in disagreeing about what we are trying to achieve, but about the nuance of trying to exclude innocence from punishment and, at the same time, identifying guilt and, indeed, recklessness.

Lord Hunt of Kings Heath: I would add one other point. It is also trying to be proportionate. As the noble Baroness, Lady Miller, has suggested, where it is appropriate to point out to people that they are doing the wrong thing, but no particular harm has been caused, we want a system that encourages people to do the right thing. We have already heard how caution might also be brought into play. Equally, it is clear that where real damage has been caused, strong action needs to be taken.

Baroness Young of Old Scone: I am rather less gracious than the noble Lord, Lord Taylor. I thank the Minister for agreeing to take away the reckless issue and for coming back, with any luck, to post-hoc endorse his use of the word “reckless”.

I am disappointed on the disturbance issue. By dealing with disturbance using by-laws, we are condemning it to a lower penalty level. That means that disturbance will always be subject to those lower levels of penalty. Disturbance can be extremely damaging—particularly to cetaceans and bird life.

On defences, the Minister wants to get the balance right. Experience with SSSIs shows that if too many ways out are given, it is made almost impossible to get prosecutions, and the balance is wrong. No doubt, the test of time and lack of cases will reveal that. I beg leave to withdraw the amendment.

Amendment A201 withdrawn.

Amendments A202 to A207 not moved.

Clause 136 agreed.

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Clause 137: Exceptions to offences under section 135 or 136

Amendments A208 and A209 not moved.

Amendment A210

Moved by The Duke of Montrose

A210: Clause 137, page 84, line 1, leave out subsection (3)

The Duke of Montrose: I move Amendment A210 on behalf of my noble friend Lord Taylor. The amendments in this group are very important probing amendments in a sensitive area. They probe the Government’s intention on their future policy of including a defence of sea fishing. Environmental groups are, unsurprisingly, unhappy about a blanket defence, especially in the light of the more precise definition used elsewhere in the legislation, such as the offshore marine conservation regulations of 2007. That blanket defence is included in the Bill.

Other stakeholders, such as those involved in sea fishing, are worried that despite this subsection the Government have a long-term intention to restrict sea fishing. Can the Minister provide an explanation for the differences between these various bits of legislation? I beg to move.

Lord Tyler: We, too, think that it is very important to probe the Government’s intentions in this area. In its context, it may not look very difficult to deal with. However, to exempt a specific set of actions from offences under Sections 135 or 136 means that we are making some specific exemptions in an important territory. I think we are right to probe the objective and purpose of the exemptions.

A few minutes ago, the Minister referred to consistency of approach. By definition, when you start making exceptions you are not being consistent. Therefore, it is extremely important that the rationale behind these exemptions should be fully explained.

At present, Clause 137(3) is remarkable in that it refers to specific activity,

That is a curious phrase. Then with the condition that,

However, this refers only to sea fishing.

I have, I think, a reasonable record of trying to support the sea fishing industry and fishing communities, but anybody who has any concerns with the particular broad scope of the Bill must wonder why they are being singled out. Bearing in mind our previous debate, why should not those involved in recreational activity be listed? They are often the same people. In the summer, small-scale inshore fishermen often indulge in a bit of recreational activity for their local communities, and no doubt make a reasonable return on that operation. Why should sea fishermen be given this special dispensation while in the summer when they turn to recreational activity they are not?

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As I hope is apparent to all Members of the Committee, I am not a lawyer. I am proud of that fact. My legal friends who look at this clause will have great fun. I think they can make some useful money out of it. This is the sort of exemption that will provide them with many opportunities profitably to exercise their talents before the court in seeking to demonstrate that the offence was committed for the purpose of, and in the course of, sea fishing and was done in connection with such an act. There is an obligation on us in dealing with any legislation of this sort. When a group of individuals is targeted either for a special penalty or special exemption, the Government should explain why they are singling that group out. On that basis, I gladly support the amendment moved by the noble Duke; we are entitled to a fuller explanation that is immediately apparent.

Lord Hunt of Kings Heath: I agree that this is an important consideration, and fully understand why noble Lords want an explanation. Perhaps I might give that explanation before coming to the amendment. Essentially, the common fisheries policy regulates the environmental impacts of fishing as well as the methods and level of catches permitted. Under EU law, it therefore already factors in environmental damage and deems that to be acceptable to the extent that it is a necessary consequence of fishing.

The defence in Clause 137(3) is provided to make it clear that the Bill is not seeking to challenge that position, because we are in no position to do so, and to reassure fishermen that the nature conservation provisions in the Bill will not criminalise their activities. If fishery restrictions are necessary to protect a marine conservation zone in an area where additional domestic measures are permitted under the CFP regime, specific fisheries legislation—such as by-laws made by an inshore fisheries and conservation authority—will be used.

As a member of the EU, if there is a conflict with national law EU law must take precedence. The common fisheries policy covers both the exploitation of fish stocks and the environmental impacts of fishing. As such, if a fisherman is fishing according to the conditions of his licence, we have to consider any environmental impacts as being already taken into account and acceptable. I do not pretend that that is an ideal situation. The fisheries defence in Clause 137(3) does no more than reflect that situation. That gives the fishing industry important clarity, and its presence in the Bill does not necessarily weaken the protection that we can give to marine conservation zones.

While some form of commercial fishing can, no doubt, damage the seabed, and seabed-dwelling plants and animals, there is an obvious risk that uncontrolled fishing activity might undermine our conservation objectives. I fully understand that point, and that we face that risk. Indeed, we discussed at length last week the clear need for any integrated marine policy to bring fisheries and conservation policies together. The common fisheries policy already provides a mechanism for seeking the agreement of other member states and, as I have said, for restricting fishing activity for environmental reasons. We will use that mechanism when sites outside UK territorial waters need such

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protection. I acknowledge that other member states may not always see such restrictions as being compatible with their interests.

The Duke of Montrose: I should like to probe one further point. Clause 143 has a wonderful list of definitions of what this section contains. I can see no definition there of sea fishing. Given the view of the noble Lord, Lord Tyler, on what fun lawyers will be having with a phrase like this, does the Minister know whether sea fishing is defined anywhere in law? It seems to me that it could apply to somebody trawling for fish in the sea. I have spent time trawling a line for mackerel; I do not know whether that counts as sea fishing.

Lord Hunt of Kings Heath: I am not aware of there being a definition in the Bill. I certainly understand the point made by the noble Duke, but he will know that the reason for the defence, in essence, is that the common fisheries policy and European legislation take precedence. I do not know whether that defines sea fishing, but I shall certainly find out.

9 pm

Lord Tyler: I cannot answer the question for the Minister, but he may get the missive that he requires from the Box. I think that in a previous debate his noble friend Lord Davies of Oldham laid great stress on the fact that the common fisheries policy is under review—we hope that it will move on in a more sensible direction—and is about to be devolved in a number of important ways. I wonder whether the explanation that the Minister is giving us could be incorporated in the subsection, because then it would make sense. As it stands, it baldly states that, for reasons that are unexplained, sea fishing is given special treatment. If it were linked to the superiority—that is a dangerous word—of the CFP in its current form, I think that we would all accept that it had logic. However, as it stands, I do not think that the Minister’s explanation—valid though it may well be—is sufficient to justify the incorporation in the Bill of this very special treatment.

Lord Hunt of Kings Heath: The noble Lord says that, but I have given as good an explanation as I can as regards the defence. At the end of the day, this is about ensuring that the fishermen involved are not subject to two conflicting pieces of legislation. That would place them in an absolutely impossible position, and that is what we seek to avoid. I shall certainly consider the noble Lord’s point, which I understand. I think that last week I referred to the discussions in Europe on the common fisheries policy. The advice I have received is that the mood around the Fisheries Council table may be changing due to the provisions of the Marine Strategy Framework Directive, which imposes on maritime member states, including the UK, an obligation to create a network of protected areas. We expect that other member states will also need to provide adequate protection for their protected areas if they are to meet their legal obligations. Therefore, we hope that there might be a mutual interest in adopting a slightly different approach from marine nature conservation in the future.

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Commissioner Borg is aware that we are faced with a very fine balance between achieving a sustainable future for the fishing industry on the basis of a healthy marine environment, and the current state of EU fish stocks. He has stated his desire for an integrated maritime policy and recognises that the common fisheries policy has a crucial role to play in achieving that aim. This is essentially what is also envisaged by the Marine Strategy Framework Directive. As I indicated last week, it is a priority of the Government to secure a better alignment between European fisheries policy and the UK’s objectives for the marine environment. That point will be uppermost in our minds when we go into the negotiations.

I am right: there is no definition of the relevant phrase in the Bill. If there is no definition, it is intended, as ever, to have its natural and broad meaning. It applies to any person fishing in the sea.

This is a clearly acknowledged problem which the Government wish to tackle through negotiations in Europe on the common fisheries policy. However, the existing measure does not provide any protection for a person who is fishing illegally, nor does it provide any protection for those who are using fishing gear solely and deliberately to damage a marine conservation zone. Therefore, it is not a blanket defence. Where the balance of evidence merits it, we will of course take the necessary steps to regulate fishing.

Provided we control fishing where necessary, the defence that is afforded by this clause is appropriate. Essentially, it says that fishing, which is a legitimate activity, has already had its environmental impact taken into account through the common fisheries policy. It should not be prosecutable under two pieces of legislation for the same offence, if such offence is caused. Illegal fishing, though, would be prosecuted under fisheries legislation—for example, through inshore fisheries and conservation authority by-laws, as provided for in the Bill. I know noble Lords are concerned about the situation, but I have tried to explain the logic of why we are where we are. It is not ideal. Clearly, we could have a general debate about the common fisheries policy. Rather as with the CAP, we would all agree that reform is necessary. We will pursue this matter in Europe.

Lord Tyler: It is very helpful that the Minister has taken this approach. He should confirm, and I am sure he can, that—by definition, since this is still a Bill—there are no marine conservation zones yet. There is absolutely no reference to such zones in any fisheries legislation, either EU or UK.

Lord Hunt of Kings Heath: That is absolutely right but the point about the common fisheries policy and legislation is that it allows for environmental impacts, which is how we make the relationship.

Baroness Byford: I smiled when the Minister tempted us to have a discussion on the fisheries policy, which I am certainly not going to do. My query is whether the Minister is at all concerned that we are building in a loophole. I think he has acknowledged that. If other countries eventually get around to introducing marine

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Bills, as we are, and do not include this sort of protection in them, will it not encourage more of their fishermen to come fishing over here, where they run less risk of being caught out by causing damage because of the loophole that is being put into this Bill?

Lord Hunt of Kings Heath: It is not a loophole; it is an acknowledgement of the reign of the common fisheries policy, which will of course apply to those fishermen as well.

Baroness Carnegy of Lour: The problem is not only European fishermen. What about the Russians off Shetland? The noble Lord says that the Bill cannot protect us from what might come from Europe, but could there not be something to make us a little safer from that? As far as the general point of this clause is concerned, the Government will not have political problems about it where I live because there is a great deal of sympathy for fishermen. There is rather more than there is for dolphins and seals. From my own experience, it will not present a huge problem among the population generally. What about the Russians?

Lord Hunt of Kings Heath: What about the Russians, indeed? Clearly, there is a general issue around the enforcement of provisions outside our territorial waters. It depends on the nature of the activity that takes place. We wish to have the tools that will enable us to deal with those matters. My understanding is that the position of Russian trawlers—if that is the point—would be no different in relation to marine conservation zones from their position in relation to fishing at the moment. That is not changed by the Bill.

The Duke of Montrose: This has proved to be a great education for those of us who do not spend our lives worrying about the ins and outs of fishing. In fact, what the Minister has been telling us is that anyone carrying out the operation known as fishing—which may not always involve extracting fish, but may include octopuses, crabs or all sorts of other things—has an exemption under the common fisheries policy. There is a fine point when you are fishing in an estuary as to whether that is the sea; we shall have to find out where the boundary of the sea lies in that sort of situation. This debate has been most revealing and I am grateful to the Minister for providing explanations. I beg leave to withdraw the amendment.

Amendment A210 withdrawn.

Amendment A211

Moved by Lord Hunt of Kings Heath

A211: Clause 137, page 84, line 8, leave out “prohibited” and insert “protected”

Amendment A211 agreed.

Amendment A212

Moved by Earl Cathcart

A212: Clause 137, page 84, line 10, leave out subsection (4)

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Earl Cathcart: In moving the amendment, I shall speak also to Amendments A213, A214, A223 and A226. They are probing amendments to call into question the status of third-country vessels. As the Bill stands, an offence of damaging protected features of MCZs, under Clause 136, specifically does not apply, under Clause 137, to,

Does the Minister agree that, as the Royal Yachting Association has argued, this,

According to the RYA, under Article 56 of the 1982 United Nations Convention on the Law of the Sea the coastal state has jurisdiction in the exclusive economic zone with regard to the protection and preservation of the marine environment. The convention does not prevent the UK from extending Clause 136 to have reference to third-country vessels. Can the Minister tell us whether this is the case? Can he account for the fact that it has not been included in the Bill? Does he not agree that it would be sensible to maximise protection and preservation of the marine environment and that inclusion of third-country vessels would be sensible and desirable?

Clause 137 deals with exceptions to offences that contravene by-laws and orders or damage protected features of marine conservation zones. However, it does not include any reference to a situation whereby an offence may be committed even despite the best efforts of the person involved to avoid doing so. We have therefore tabled Amendment A214 to insert a new clause stating that, for any offence under Clause 135 on contravening by-laws or orders, the defendant is allowed to use as a defence the fact that they took “all reasonable precautions” and “exercised all due diligence” in order not to commit an offence.

Does the Minister agree that there may be situations where an offence is committed despite the best intentions and most concerted efforts of those involved? Does he concede that a person should then be allowed to use this argument in their defence? The circumstances of this offence and the fact that all reasonable precautions were taken may have an impact on the severity of the penalty, or may at least bring up important considerations that should be taken into account. Therefore, we on these Benches think that it is important that this new clause be included in the Bill.

The last two amendments in this group concern Clause 143, an interpretation clause, to which my noble friend the Duke of Montrose referred earlier. The clause says:

“‘England’ includes the English inshore region”.

To that we propose to add,

The clause also says:

“‘Wales’ includes the Welsh inshore region”.

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