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5 May 2009 : Column 482

Clause 13: Safety zones: functions under section 95 of the Energy Act 2004

Amendments 33 and 34

Moved by Lord Hunt of Kings Heath

33: Clause 13, page 7, line 21, leave out subsection (1) and insert—

“(1) The functions of the Secretary of State specified in subsection (2) are transferred to the MMO.”

34: Clause 13, page 8, line 8, leave out subsection (8)

Amendments 33 and 34 agreed.

Clause 14: Agreements between the Secretary of State and the MMO

Amendments 35 to 37

Moved by Lord Hunt of Kings Heath

35: Clause 14, page 8, line 32, leave out paragraph (a) and insert “a marine function exercisable by a person—

(a) authorised or appointed by the Secretary of State, or

(aa) employed in the civil service of the State (but see subsection (3A));”

36: Clause 14, page 8, line 34, leave out paragraph (b)

37: Clause 14, page 8, line 37, at end insert—

“(3A) For the purposes of subsection (3)(aa), a person is not to be regarded as employed in the civil service of the State to the extent that the person is any of the following—

(a) the holder of an office in the Scottish Administration which is not a ministerial office (within the meaning of section 51 of the Scotland Act 1998 (c. 46));

(b) a member of the staff of the Scottish Administration (within the meaning of that section);

(c) a member of the staff of the Welsh Assembly Government (within the meaning of section 52 of the Government of Wales Act 2006 (c. 32)).”

Amendments 35 to 37 agreed.

Amendment 38

Moved by The Duke of Montrose

38: Clause 14, page 9, line 2, at end insert—

“( ) A function which the Secretary of State requires the MMO to perform in a devolved area can only take place after consultation with the relevant devolved authority.”

The Duke of Montrose: My Lords, Amendment 38 is in the name of my noble friend Lord Taylor of Holbeach. I am consciously returning to a topic that was broached by the noble Lord, Lord Wallace of Tankerness, on our third day in Committee. His amendment was specifically concerned with the direction or guidance to be issued to the Marine Management Organisation, on which score he asked that consultation be held. In his answer, the Minister did not deny the need for consultation but merely relied on invoking normal good practice.

This time, I have directed the amendment to deal with what I think is an even more critical area, which is where the Secretary of State authorises any marine

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functions to the MMO. This arises because, in his reply in Committee, the Minister expressly said:

“The UK Government will legislate ... for the offshore waters around the UK and for certain functions within the territorial waters of Scotland”.—[Official Report, 28/1/09; col. 276.]

I notice from correspondence received a couple of hours ago from the Minister in another place that the Marine Management Organisation will be given certain functions within the Scottish inshore area and that some legislation coming from the MMO will apply in that area. It seems to me that one requires something beyond normal good practice to cover these situations and it would be clearer to all if that was stated on the face of the Bill. I beg to move.

5.45 pm

Lord Wallace of Tankerness: My Lords, this is the first occasion on which I have spoken at this stage of the proceedings, so I declare interests from the Register in relation to renewable energy, including the chairmanship of the steering group of Marine Renewable Energy Development in Scotland, which is a working group under the auspices of the ICIT at Heriot-Watt University. Also relevant is my membership of the Commission on Scottish Devolution, set up by resolution of the Scottish Parliament and supported by Her Majesty’s Government, which is looking at devolved/reserved boundaries; indeed, I think that today it was taking evidence from the Scottish Environment Link on the respective marine Bills that we and the Scottish Parliament are dealing with.

I generally support the amendment moved by the noble Duke, the Duke of Montrose. In Committee, we came back to the issue of devolved and reserved functions a number of times to try to pin down just which functions still remained the responsibility of UK Ministers and the MMO and would involve the Secretary of State or the MMO undertaking responsibilities in the Scottish inshore area. I do not think that we totally pinned them down. Defence is an obvious issue and international shipping and responsibilities for rights of passage would be another. In areas such as the Pentland Firth, where a considerable amount of renewable marine energy is anticipated, there could well be occasions when it was important to have proper co-ordination between Marine Scotland, as established by the Scottish Government, and the MMO. Therefore, it would be welcome to have some obligation beyond the normal courtesies to consult where there would be interaction in the Scottish inshore water in these circumstances. I think that the noble Duke, the Duke of Montrose, has raised an important point and I look forward with interest to the Minister’s reply.

Lord Davies of Oldham: My Lords, I am grateful to the noble Duke, the Duke of Montrose, for moving this amendment, which helps us to take the debate a little further on, and to the noble Lord, Lord Wallace of Tankerness, who certainly clarified the issues on which we need to concentrate relating to this aspect of the devolution settlement. Of course I fully understand their anxieties. They wish to ensure that, where the

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MMO could be required to undertake a function in a devolved area such as the Scottish inshore region, this should not happen without prior consultation. The noble Lord, Lord Wallace, identified not an exhaustive list of functions, but several clear areas where it might be necessary for the MMO, working on behalf of the Government in respect of UK-wide powers, to undertake a function within the inshore waters.

We had some extensive discussions on the devolution issues during our earlier debates. I emphasise that, in preparing this Bill, the Government were concerned to secure the full support of all four Administrations. I want to assure the House that what we have in the Bill in this respect has the full support of those Administrations. We have not had representation from any of the Administrations that they want anything on the face of the Bill that gives additional expression to what the noble Lord, Lord Wallace, indicated would be good established practice. That is what the four Administrations are content with.

I buttress this remark by giving a full assurance that the Secretary of State will not permit the MMO to operate within the devolved Administrations’ inshore regions without prior consultation with the appropriate Ministers or Administration. It goes without saying that this is best practice for neighbouring Administrations working together, and that the devolved Administrations understand how it will work. I re-emphasise that point today from the Dispatch Box. There is therefore not a great deal between the two supporters of the amendment and the Government. We are out to emphasise, as they have, the importance of such consultation taking place. I emphasise that the devolved Administrations are happy with the Bill, so it will be appreciated that we do not see the benefit of placing such a provision in the Bill. I might also add that we are not totally convinced that, if it were in the Bill, this would be the place to put it, but that is a different matter. I hope that, with that statement, the noble Duke, the Duke of Montrose, will feel able to withdraw his amendment with some confidence.

The Duke of Montrose: My Lords, I thank the Minister for his reply. He did at least from the Dispatch Box say exactly what I said should be put into the Bill. I do not know whether the noble Lord, Lord Wallace of Tankerness, has seen the letter that came today from the Minister in the other place and which extends a little the list that the noble Lord read out. It says that,

However, it goes on to say that,

Certain elements are coming in that complicate the area, but I will consider what the Minister has said. I will be interested to hear him say where he thinks an amendment such as this should go, but in the mean time I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

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Clause 16: Eligible bodies

Amendment 39

Moved by Baroness Hamwee

39: Clause 16, page 9, line 39, at end insert—

“( ) any local authority;”

Baroness Hamwee: My Lords, in moving Amendment 39, I shall also speak to Amendment 63 in this group.

What the Minister had to say about working with local authorities in our brief discussion on Amendment 18 and the overlap in area between coastal local authorities and the MMO was very welcome. He talked about working with the Local Government Association, which has a coastal authorities special interest group. My noble friend Lady Miller says that I referred to it in Committee as a special needs group. If I did, I certainly did not mean it in quite that way.

Clause 16 deals with bodies that are eligible to have a delegation from the MMO. My amendment would add local authorities to the list. The list includes harbour authorities. Some harbour authorities are also local authorities, but I understand that not all coastal local authorities are harbour authorities. This is not a very dramatic or wide amendment. Under Clause 15(1), the delegation requires the approval of the Secretary of State. Clause 17 precludes the delegation of a function that is not compatible with a local authority function, so any suggestion that the amendment would give local authorities far too wide a remit would be incorrect. Clause 18 requires the delegation to have a time limit.

The local authorities that are coastal authorities undertake land-use planning down to mean low water and prepare their local development frameworks accordingly. This overlaps with the marine planning function, extending to mean high water. Certain local authorities have by-law-making powers that extend offshore, such as zoning areas for water sports, and certain local authorities deliver coastal protection measures that involve the development between the mean high and low water marks and sometimes even below mean low water.

In Committee, the Minister said in a debate on another amendment that,

It would therefore be entirely appropriate to include local authorities in the list. I appreciate that if they are not included, the Secretary of State can add them because he can add eligible bodies by order, but if it is appropriate for them to be eligible it is appropriate now and we should say so from the start.

My Amendment 63, which would amend Schedule 5, would require consultation with representatives of coastal local authorities, although not necessarily with every single one, during the preparation of the consultation draft of the marine policy statement and the finalising of that statement, for the reasons that I just gave in speaking to Amendment 39. I beg to move.

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Lord Taylor of Holbeach: My Lords, I have no amendments in this group and I wondered whether the Government wanted to speak to their amendments before I made my contribution, but I recollect that we had some considerable discussion in Committee on the extent of the marine area or, to put it another way, the area between high water and low water. I remember drawing on my experience of Holbeach Marsh and the Wash and of the large proportion of my wife’s county council division that lay under water at high tide. It is clear as you climb the sea bank and at low tide take in the wide expanse of marsh, mudflats and sea that it is a marine area. It is very properly heavily protected and just the sort of coastal area to be part of the Bill’s purpose.

However, I remember being impressed by the contribution of the noble Baroness, Lady Miller of Chilthorne Domer, who is not in her place at the moment, who introduced a different point of view. I thought of the inter-tidal areas of beaches and the current interests and responsibilities of local authorities in those areas. I had in mind in large terms Brighton beach and other similar places in which the foreshore is an area covered by local authorities in which they have interests and for which they issue by-laws. I therefore welcome the Government’s amendments, which ensure that harbour authorities positions’ are properly regarded. Further to that, however, I support the idea behind the amendments tabled by the noble Baroness, Lady Hamwee, which would ensure that the MMO found ways of reaching joint agreements with local authorities to facilitate the proper use and maintenance of inter-tidal areas where they have a strong interest to do so.

Lord Davies of Oldham: My Lords, I am grateful to the noble Baroness for her amendment. I hope that it will help to clarify these issues, which were the subject of fairly intensive debate in Committee. I reassure the noble Lord, Lord Taylor, that I was not excessively eager to get up to move the government amendments—to which I shall speak—because I regard them as less significant either than the amendment moved by the noble Baroness or Amendment 63, which is also part of the group, as our amendments are largely technical.

6 pm

Amendment 39, as the noble Baroness indicated, adds local authorities to the list of bodies that the Marine Management Organisation can enter into agreement with, to allow it to delegate functions to them. It is our intention to include in the list of eligible bodies in Clause 16 all local authorities that would have a legitimate expectation of carrying out functions on behalf of the MMO. We therefore included the sea fisheries committees—they may still exist when the MMO is established—and those local authorities which are also harbour authorities. There is no question that we recognise the significance of local authorities to those responsibilities, while Clause 16 also includes a power allowing the Secretary of State to add bodies to the list in the future, should that be deemed necessary.

However, it is, surely, inappropriate to add all local authorities to the list of eligible bodies in Clause 16, because it is pretty obvious that not all local authorities

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would expect to be delegated functions by the Marine Management Organisation. After all, a fair number of our authorities have no coast at all, nor do any of their functions relate to the coastal or marine area. That is why Clause 16(3) states that the Secretary of State,

to add bodies to the list,

I would have thought that that was clear enough; we only want those local authorities involved which could conceivably have a marine function and, therefore, some relationship with the MMO.

During the debate in Committee on Clause 20, the noble Baroness, Lady Miller, and the noble Earl, Lord Cathcart, were keen to enable local authorities to work together jointly when carrying out functions delegated to them by the MMO. They supported the flexibility that this type of arrangement would offer the relevant local authorities. I emphasise that we want to see that in the operation of Clause 20, but that clause refers specifically to local authorities that are harbour authorities. We have, of course, reflected on the matters that have been raised about joint working, but have decided that we do not wish to restrict local authorities which are also harbour authorities from working together on a particular function, if it is appropriate for them to do so.

We have, therefore, tabled Amendments 42 to 46 to make that clear. They would alter Clause 20 to allow joint working by local authorities that are harbour authorities to take place. The amendments have been drafted to allow harbour authorities that are operating executive arrangements to work jointly, as well as those authorities that are not. As a result of changes to Clause 20, we have also tabled minor and technical amendments to Clause 19; Amendment 41 is needed to correct the reference to Clause 20 in Clause 19, and is therefore purely technical. I hope, then, that it will be appreciated that we took on board the arguments in Committee about joint working, and that these amendments help to make that clear.

I turn to the much more substantive Amendment 63, which gives us a further opportunity to restate our intention that local authorities in coastal areas will be fully involved in the marine planning process. The amendment would make coastal local authorities statutory consultees in,

and when settling the final text. We have previously explained our reasons for not including any statutory consultees for the marine planning process, and the House will surely be relieved to hear that I do not intend to reiterate those arguments; however, I want to give a firm reassurance on the involvement of local authorities in that process.

First, the statement of public participation will set out how, when and where local communities and stakeholders will be involved in the marine planning process. We intend that that process will be fully participatory, involving as fully as possible all who want to be involved. It is vital for the success of

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marine planning that local knowledge and expertise is used throughout, a point much emphasised in Committee. The need for compatibility with terrestrial plans—another point that was greatly emphasised—means that there can be absolutely no doubt; relevant local authorities must be consulted in the marine planning process, starting with the marine policy statement.

In addition, paragraph 8 of Schedule 6 enables the marine plan authority to,


A local authority is clearly such a body and, in our guidance to the Marine Management Organisation, we will set out how we expect it to work closely with representatives from local authorities as part of a focused advisory group, as well as more generally. The group would assist the planning team throughout the process of creating the marine plan.

In developing the marine planning proposals we have worked closely with the Local Government Association special interest group on coastal issues for nearly three years. To help us to understand how and through what mechanisms we can enable local authorities to be fully involved throughout the marine planning process and the issues around this, including the resource and capacity demands for their involvement, we recently ran a marine planning workshop in partnership with the Local Government Association special interest group. This event was well supported by 35 local authorities and we are considering what further work we may need to take forward. We are endeavouring to engage closely with all 135 local authorities around the coast, so we have also been working with the Coastal Chairs Group, government offices and the regional development agencies coastal network.

I hope, therefore, that I have given evidence of the fact that far from the Government neglecting the interests and the rightful role of local authorities with a coastal interest, we have been engaged with them over a period of time in preparing this Bill. They know that we intend to include them in that part of the planning process, but we do not think that it is sensible to put the totality of local authorities in the Bill. Therefore, I hope the noble Baroness will think that we have responded to her amendments and the debate in Committee with thoroughness, and that she will feel able to withdraw her amendment.

Baroness Hamwee: My Lords, on the last point, my amendment concerns representatives of local authorities. The marine policy statement is the basis for the marine plan, which is why I felt that it was important to raise it in the context of recognising the points in Schedule 6. I am grateful to the noble Lord, Lord Taylor. The first of my amendments is merely about eligibility. It is not about delegation. If the MMO sought to delegate a function to an entirely inappropriate, completely landlocked local authority, I do not think that the local authority would accept the delegation.

The Minister criticised my first amendment because it would apply to all local authorities. He hinted that perhaps I should have said “coastal” local authorities. But if the Government had wanted coastal local

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authorities in this list of eligible bodies, they could have said so, they would have said so and they should have said so. I do not think that we got enough exercise the last time we attempted to divide, so on this occasion I will test the opinion of the House.

6.10 pm

Division on Amendment 39

Contents 112; Not-Contents 130.

Amendment 39 disagreed.

Division No. 1


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