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To that we propose to add,

Am I right, in both cases, that “inshore region” means up to 12 nautical miles, which is the limit of our jurisdiction? We have discussed this 12-mile issue before,

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but this, again, is probing, because Clause 137(4), about which I was talking earlier, refers to,

What does that mean? It is not in the Clause 143 interpretation. Does it mean up to our 200-mile limit, does it mean as interpreted by the Royal Yachting Association, as per Article 56 of the 1982 United Nations Convention on the Law of the Sea, or what? We would like clarification. I beg to move.

9.15 pm

Lord Davies of Oldham: I am inordinately grateful to the noble Earl for moving these interesting and challenging amendments and I shall do the best that I can to reassure him. We have, after all, spent some time discussing the general offence provisions in Clause 136 and the exemptions in Clause 137. Let me start by addressing Amendment A212, which proposes the deletion of Clause 137(4), about which the noble Earl was emphatic. Amendment A213 is a consequential amendment, which would make sure that vessels are treated equally, irrespective of the flag that they fly or are entitled to fly.

The reason for Clause 137(4) is that the UK is a signatory to the United Nations Convention on the Law of the Sea. Where waters outside a state’s territorial sea are concerned—that is to say, in the exclusive economic zone or an equivalent zone, such as the pollution control zone—the emphasis in UNCLOS is on the coastal state’s power to enforce applicable international rules and standards or national laws conforming to and giving effect to such rules and standards. Clause 137(4) is needed to fulfil our international obligations and removing it would leave us falling short of them. The strength with which I intend to defend that subsection will be recognised.

The clause provides exceptions to the offences of contravening a by-law, under Clause 135, or the general offence in Part 5 of the Bill, under Clause 136. Amendment A214 would provide a due diligence defence for contravention of the by-law in Clause 135. By-laws themselves can be drafted in such a way as to provide an element of due diligence, if that is appropriate. However, in most cases, by-laws will be clear that a certain type of activity is prohibited. A due diligence offence in those terms would not be appropriate. In addition, if there were legitimate reasons why a by-law had been breached, proceedings might then not be in the public interest. I would need some persuading that there was a need for a general provision of a defence here when it can and should be provided, where appropriate, in the by-law itself.

Amendments A223 and A226 seek to highlight that, while the definition of England and Wales includes the inshore area, it excludes the English and Welsh offshore marine regions. England and Wales are already defined in existing legislation. The definition of England is set out in the Interpretation Act 1978 to mean,

the Local Government Act 1972,

Such legislation defines England in relation to land and does not extend the definition to include any of the marine area. Noble Lords will appreciate the reason

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and logic behind that definition. I am not going to leave the noble Lord, Lord Livsey, out of this. Wales is defined in the Government of Wales Act to include,

The current drafting in Clause 143 reflects the definitions that already exist, therefore extending the definition of England to include the inshore marine area and to restate that Wales includes the land of Wales and the inshore marine region. As the existing definitions of England and Wales do not include the offshore marine areas, it is unnecessary to exclude the offshore areas in the Bill. The definitions that we have already exclude them.

I understand noble Lords’ expectations that the Government will clarify these matters and hope that I am succeeding in doing so at this Dispatch Box. I am seeking to clarify which areas are included and excluded from the definitions that were handed to us before we drafted the Bill and are included in it. In terms of legal drafting, we cannot exclude a region that is not already included in a definition. We already have the definitions established and therefore have to follow that pattern. That is because we need to have consistent definitions of Wales and of England written into the Bill. That is why I cannot accept the amendments, despite understanding the intention behind them: “Here is an excellent opportunity for a further definition that would clarify matters”. However, we already have the definition of England and Wales, which constrains us in the framing of the Bill.

I think that the amendments were prefaced by the adjective “probing”. I hope that they were, because we have worked hard to meet legitimate anxieties that we should make clear the definitions in the Bill and why Clause 137(4) must be retained. I hope that I have given satisfactory explanations.

Baroness Carnegy of Lour: I wonder whether the noble Lord is right about Amendment A214, which concerns the general defence that could be used in relation to by-laws made for England and orders for Wales. The Welsh Ministers would obviously have to be consulted before this change was made. However, thinking about what these orders and by-laws will say, I doubt that it is sensible to say that every one must have a let-out section. It would help, in drawing up the by-laws, to include the defence that is outlined in Amendment A214. Perhaps the Minister could look at that. The Bill has been drafted without that idea, which is a new one. However, in consultation with people in Wales, the Minister might see whether this is a more effective way, as it seems very sensible. It is a normal defence that occurs frequently in legislation and these by-laws and orders are the equivalent. Could the Minister look at the issue, rather than polishing it off in the way that he has?

Lord Davies of Oldham: I was not seeking to be dismissive of debate. We live and learn, and the Government are happy because these debates are informative and give us steers in particular directions. I was indicating why we would expect the issue of the defence to come within the by-law. To search for a

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general defence raises obvious problems: that was my argument. Of course, I will look at the additional point made by the noble Baroness and reflect on it.

Earl Cathcart: I thank the Minister for that. I will start in reverse order and thank him for explaining the definitions of England and Wales, including the English and Welsh inshore regions. He made them very clear.

Like my noble friend Lady Carnegy, I am not completely sure about his explanation of Amendment A214, which refers to someone who has taken,

However, I would like to read what he said and think about it.

I am stuck on the first part of the Minister’s answer. I talked about third-country vessels. Perhaps I was being thick or not listening attentively, because I did not understand the Minister’s answer. The Royal Yachting Association says that the exemption,

The Royal Yachting Association went on, as the Minister did, to cite Article 56 of the United Nations Convention on the Law of the Sea. That implies that the UK can go after third-country vessels. What does the Minister say? Is the Bill unfair to UK vessels or does the convention hold sway? That is where I am stuck.

Lord Davies of Oldham: I have sympathy with the noble Earl, because these are complex areas. I reiterate that I have an extremely useful note from the Box on this highly specific legal matter. There are rights under UNCLOS to regulate foreign vessels to protect the environment, but that has to be balanced case by case against the innocent rights of passage that the convention sets out. The significance of Clause 137(4)—this is why I was emphatic about it in my original reply—is that it identifies the international obligations that we have and need to observe.

Earl Cathcart: Does that go beyond 12 miles?

Lord Davies of Oldham: Yes, exactly so. I re-emphasise that we clearly have to comply with international obligations. Of all powers to abrogate in any way the significance of UNCLOS, the British would be in the worst position to do so because, as such a significant maritime nation, we depend on it for the effective operation of our trading relationships. As I said earlier, so much of our trade goes by sea.

We undertake to ensure that we will do the most that we can, within the bounds of UNCLOS—I think that the noble Earl accepts the basic point—to meet the anxieties expressed here under the amendment. This is not the only time that the issue has been raised. We think that we have it right. I hope that the Committee will give us due respect for the fact that, in this exceedingly important area, very strenuous efforts have been made. I undertake that we will carry out that check and reassert our position if necessary later.

Earl Cathcart: I thank the Minister. It seems that the notes that he has received from the Box are probably rather better than the notes that I have here. I am

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rather clearer now about where we stand. I look forward to any further explanation, if the Minister has one, but at this stage I beg leave to withdraw the amendment.

Amendment A212 withdrawn.

Amendment A213 not moved.

Clause 137, as amended, agreed.

Amendment A214 not moved.

Amendments A215 and A216 had been withdrawn from the Marshalled List.

Amendment A217 withdrawn.

Clause 138: Fixed monetary penalties

Amendment A217A not moved.

Clause 138 agreed.

Clause 139: Fixed monetary penalties: procedure

Amendment A218

Moved by Lord Hunt of Kings Heath

A218: Clause 139, page 85, line 32, leave out “it was” and insert “the penalty is proposed to be”

Amendment A218 agreed.

Clause 139, as amended, agreed.

Clause 140 agreed.

Schedule 10 agreed.

Clauses 141 and 142 agreed.

Schedule 11: Consequential amendments relating to MCZs

Amendment A219

Moved by Lord Hunt of Kings Heath

A219: Schedule 11, page 257, line 23, at end insert—

“(2) The amendment by this paragraph of a provision contained in subordinate legislation is without prejudice to any power to amend that provision by subordinate legislation.”

Amendment A219 agreed.

Schedule 11, as amended, agreed.

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Schedule 12: Transitional provision relating to MCZs

Amendment A220

Moved by Lord Hunt of Kings Heath

A220: Schedule 12, page 258, line 7, leave out paragraph 5

Amendment A220 agreed.

Schedule 12, as amended, agreed.

Clause 143: Interpretation of this Chapter

Amendments 221 to 226 not moved.

Clause 143 agreed.

Clause 144 agreed.

Schedule 13: Marine boundaries of SSSIs and national nature reserves

Amendment A227

Moved by Lord Greaves

A227: Schedule 13, page 262, line 26, leave out paragraph 9

Lord Greaves: Schedule 13 is about an important issue which we keep coming back to: the boundaries between land and sea. It amends the Wildlife and Countryside Act 1981 in relation to marine boundaries of SSSIs and national nature reserves. Part 2, in which lies paragraph 9, refers to SSSIs.

Paragraph 9 of Schedule 13 amends Section 28D of the Wildlife and Countryside Act to cover the denotification of a SSSI on designation of the same area as an MCZ. In other words, the proposal is that the same area cannot be part of both a SSSI and an MCZ. Where SSSIs and MCZs overlap, the overlap between the features of these two designations may be only partial such that some SSSI features of national importance may not be features of the relevant MCZ. In addition, it is not clear whether the features of Natura 2000 sites, special protection areas classified under the birds directive and special areas of conservation designated under the habitats directive will be eligible as features of MCZs.

Natura 2000 sites on land and inter-tidal areas are underpinned by SSSIs, with the lists of operations requiring consent associated with those SSSIs providing the mechanism by which the effects of management operations of Natura 2000 sites are regulated. There is concern that the prospect of denotification of SSSI land, whenever an MCZ is designated over the same area, may well raise a number of legislative complications and confusions. If MCZ designation over an area of SSSI led to the denotification of that part of the SSSI, we believe that sites could be left vulnerable in several ways.

The first of these is that beaches hitherto protected might be left unprotected if the SSSI was denotified but the MCZ in its place was not designated specifically for the same features. Secondly, SSSIs and their features offer protection from developments on land and in inter-tidal areas due to the explicit link between the

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SSSI system and the terrestrial planning system. Indeed, SSSIs are a material consideration in the terrestrial planning system. There is no explicit link with the MCZ system and the planning system, so if a SSSI area was designated as an MCZ and the SSSI was denotified as a consequence, some clarity of protection from development under the terrestrial planning system would be lost.

The third area of concern is that, where a SSSI underpins a Natura 2000 site, the ability to regulate management activities that may adversely affect that Natura 2000 site would be lost if the area, or part of the area, were to be designated as an MCZ and the SSSI were to be subsequently denotified. Where a SSSI underpins a Natura 2000 site, the route by which the habitat regulations are applied to activities that do not require any other form of consent—these include bait digging, cockling, wildfowling, grazing and other forms of salt marsh management—is via the list of operations that require consent and the explicit link between the habitat regulations and the CRoW Act. There is no explicit link between the habitat regulations and MCZs.

There are very clear areas of concern about what happens to the regime that operates on a SSSI if the SSSI is denotified as a consequence of the creation of an MCZ. This is clearly a very technical matter. Indeed, it is one of the many important matters that we have been discussing in our debates on the boundary between the land and sea: that is, the coast. I am not sure whether the Minister will be able to give a clear and comprehensive answer to all these questions this evening, but I will listen to him with interest. If he cannot, I will be very happy if he will write to me and explain it all. Then we can decide what to do about it at a later stage. Meanwhile, this is an important matter, and I beg to move.

Lord Taylor of Holbeach: I will be brief. This is an area in which I have a personal interest. Holbeach is a marine parish in the sense that Holbeach Marsh stretches right out into the Wash. The Wash is a site of special scientific interest and, indeed, a textbook example of where such a transition from an SSSI to a marine conservation zone might occur. However, I am not entirely sure that I share the anxieties of the noble Lord, Lord Greaves, about these matters. To me, once you get over the sea-bank, you are in a marine environment, not a land-based environment. There are no developments or people. There are plenty of seals, and there are birds in vast numbers.

I share the noble Lord’s concern that we must ensure that the transition to a marine conservation zone means no dilution of protection, because the Wash is the largest estuarial system in the UK. It is also a special protection area and a Ramsar site, it is preserved under the EC wild birds directive, and it is part of Natura 2000’s special projects for grey seals, mudflats and sub-tidal sands. The whole of the Gibraltar Point National Nature Reserve is a particular point of interest.

My contribution to this debate is to say that, as long as this process is well managed, these areas are best included in a marine conservation zone system

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that is capable of including the total marine environment within it. I do not share the concern of the noble Lord, Lord Greaves, about this issue.

9.45 pm

Lord Davies of Oldham: I am enormously grateful for that latter contribution. I thought that my worst nightmare was about to be realised: the noble Lord, Lord Greaves, assailing me with his anxieties about sites of special scientific interest. Then the noble Lord, Lord Taylor, brought his insight to bear on land and sea issues in the Wash. Had the noble Lord, Lord Taylor, reinforced the position of the noble Lord, Lord Greaves, my nightmare would have been realised, and I am grateful that the noble Lord, Lord Taylor, has spoken so intelligently and perceptively about the issue. He has also, I think, reassured the noble Lord, Lord Greaves, who seemed to understand what the noble Lord, Lord Taylor, had to say.

Let me make the most obvious point first. This Bill is a conservation measure to enhance protection of a significant part of our environment. As the noble Lord, Lord Greaves, indicated, that which we seek to do for the sea inevitably has an interrelationship with that which we already do for the land. Where the boundary is to be drawn is a matter of great difficulty and interest, and natural forces ensure that that boundary moves from time to time.

I want to reassure the noble Lord that the decision on whether a site of special scientific interest should be denotified will be made by a conservation body, and that it will do so only on the basis of effective consultation with those who are concerned with these issues on land. When these bodies meet, they will not be distant government or arbitrary bodies concerned with issues other than conservation; they will be bodies concerned with conservation. We all know about the success of the sites of special scientific interest and we all know how jealously they are guarded, how much they are respected and how important they are to conservation on land. Is it conceivable that such sites would be threatened by the action of a conservation body which has responsibility for the contiguous marine part and is itself concerned about such protection?

Baroness Miller of Chilthorne Domer: The Minister asked whether it would be conceivable. The answer is: yes, it is. If a site falls into a state whereby it is in a very unfavourable condition, there could be great pressure to denotify it. As my noble friend has clearly explained, in that instance the site would be promoted for denotification by the very conservation bodies that the Minister is talking about. That is what happens when a site falls into an unfavourable condition. It is then liable to all the vulnerabilities that my noble friend has explained.

Lord Davies of Oldham: As the noble Baroness will recognise, in drafting the Bill we paid special attention to the interface between land and sea so that these respective mechanisms would dovetail together. Clause 115 sets out the limited circumstances in which the marine conservation zones can extend above the mean high-water spring tide. Conversely, Schedule 13 sets out the

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circumstances in which SSSIs can extend below the mean low-water mark. We have adopted a pragmatic and flexible approach to ensuring that sites are protected through the most appropriate arrangements. The Government intend to publish draft guidance on sub-tidal SSSIs and national nature reserves, which will explain in more detail how we envisage the marine and terrestrial systems working together.

It may even be that there are circumstances when it will be appropriate and desirable for a SSSI and a marine conservation zone partially to overlap. Nothing in the Bill would prevent that overlap. However, where an overlap would provide no conservation benefit and cause unnecessary duplication or potential confusion for sea users, it is important that the conservation body has the power to remedy the situation by denotifying the SSSI. That is the purpose of paragraph 9 of Schedule 13, to which of course the amendment refers.

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