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During the passage of what is now the Planning Act, the noble Lord, Lord Taylor of Holbeach, talked about the MMO. I have to say that at the time, while I could understand at a certain level what he was saying, I did not appreciate the deep and instinctive way he put his point forward; I did not understand the depth of it, but I do now. He was absolutely right. I probably said at the time that he was right, but the comments were perhaps less passionate than his. We are very passionate about this because we want to see these systems working well, so these amendments are intended to be genuinely constructive in that they do not seek to obstruct what the Government are doing, and constructive not just in regard to this Bill but also with that which has already been passed; that is, the Planning Act.

Baroness Young of Old Scone: My Lords, I support Amendments 50 and 51. We all want the Marine Management Organisation to be the single planning body for the marine environment and, to be honest, had we ganged together, we could have driven that through the House. That would have been a sensible outcome. But the Government appear to be very against it, so this group of amendments attempts to ensure that the MMO and the IPC really do stand shoulder to shoulder rather than as a superior and an inferior body.

I support Amendments 50 and 51 because they lay out clearly that the MMO should be a statutory adviser to the IPC in development consents for those projects in energy generation and the larger harbour schemes that the IPC is responsible for, not just for land that has an impact on the marine environment, which I

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think is the purport of Amendment 49. Advice needs to be given on individual projects and not just on statements or plans. I am sure the Minister will tell us that the Government are currently consulting on the list of statutory consultees for the national policy statements, and I welcome that within the consultation it states that the MMO, once established, will be included as a statutory consultee along with the Secretary of State on those statements.

I also welcome the Government’s proposals that, currently subject to consultation, the MMO will be on the list of statutory consultees that the applicant must consult before submitting an application to the IPC. However, there is a difference between being a statutory consultee for the MPS or for an applicant for an individual application and being a consultee to the IPC on the range of issues that it will be dealing with that impact on the marine environment. Amendments 50 and 51 take that forward. I hope that the Government will recognise that this simply brings the IPC and the MMO shoulder to shoulder in an amicable way, rather than as a superior and a subordinate organisation. A statutory consultee makes the MMO just one of a bunch; being a statutory adviser, which implies that advice has to be sought and reasons stated when it is not taken, is appropriate for a body that needs to have similar powers and similar clout to the IPC.

Lord Hunt of Kings Heath: My Lords, this has been a useful debate. I recognise that the intent of the amendments of the noble Earl, Lord Cathcart, and, indeed, those of the noble Baroness, Lady Hamwee, is to get the right relationship between the IPC and MMO and on that basis, they are very much appreciated. I know that those of us who debated this matter on the Planning Bill and in Committee on this Bill have different views about the role of the IPC in relation to consents above 100 megawatts. We debated the principle when the Planning Bill went through and also discussed the potential role of the MMO, but of course, that was before legislation had been brought before Parliament, so, in a sense, it was a discussion in anticipation. On the role of the IPC, we think it right that, for applications that come within the definition of “nationally significant”, the decision should be made by the IPC. However, I also want to make it clear that we consider that the MMO will have a very important role to play throughout the consideration of nationally significant infrastructure projects, both in, or which are capable of affecting, the marine area—one should mention ports as well as wind farm developments. I say to the noble Baroness, Lady Hamwee, that we want to make the arrangements proper and appropriate; we share the view of all noble Lords on that.

We see the MMO as being involved at three key stages of the development of nationally significant infrastructure projects that are within the marine area. First, marine developers must consult the MMO before they make any application to the IPC. That should ensure that the MMO is fully engaged at the start of the application process. Secondly, the MMO will be a statutory party as part of the IPC’s examination of marine projects and our intention had been to enshrine these roles in secondary legislation. Thirdly—and very importantly—where the IPC grants consent in the

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marine area for a development to take place, it will grant a deemed marine licence for the marine aspects of that development after consultation with the MMO. Such a licence will be managed and enforced by the MMO, so that when new evidence comes to light on a particular development, the MMO will, if necessary, be able to modify any conditions of the licence, add new conditions or even revoke it. I think that that gives the MMO very important status and standing.

Baroness Young of Old Scone: My Lords, I am trying to envisage the circumstances in which the MMO would legitimately do what the Minister has just described. If we are talking about the bigger ports and the major infrastructure developments offshore for energy generation, once planning consent has been granted and construction work has started, the likelihood that the MMO is going to leap to its feet and ask for things to be demolished and taken away is nil. We must take a realistic view about what the power of variation of conditions will mean in reality.

6.45 pm

Lord Hunt of Kings Heath: My Lords, the noble Baroness is underestimating the power of the MMO in that respect and also underestimating the fact that the MMO will have been consulted before the IPC comes to make the original decision.

Turning to the detail of the amendments, the way the Planning Act works is to place a duty on applicants to consult the MMO at the pre-application stage, and once an application has been accepted by the IPC, to notify the MMO and invite it to make representations. Amendment 49 would, in effect, duplicate what the Planning Act regime will already require, in that the applicant will have already notified the MMO and invited it to make representations regarding the application. It is our clear intention that the national policy statement and the marine policy statement will be consistent. Of course, there may be many cases where the MMO will have nothing to add to an individual application over and above the opinions of the IPC and we would be concerned about imposing an absolute obligation, as proposed in Amendment 51, on the MMO to give advice in such circumstances. At the moment, the MMO would advise only as required, which would already be the case under the system set in the Planning Act and in the secondary legislation that we intended. Moreover I believe that this intention as regards these advice-giving functions is already met through Clause 24 of the Bill, which states that the MMO may provide whatever advice it feels appropriate to other public bodies, on its own initiative or upon request.

As for the intention in the amendments to require the IPC to include specific reference to MMO advice and recommendations that were adopted when refusing or granting a licence, and to give justification for not adopting any of this advice or recommendations, the MMO will be a statutory party as part of the IPC’s examination of marine projects. Like advice from any body with statutory duties, any advice from the MMO provided to the IPC will be an important part of the IPC’s consideration. Section 116 of the Planning Act already imposes a duty on the IPC to give reasons for the decisions it makes. In practice, the IPC would need

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to justify itself when not following the MMO’s advice. The IPC has to justify its decision and would clearly be at risk of having that decision overturned in the courts.

I have some reservations about the exact details of the amendments, but I understand the importance of the substance of what is contained in the argument in support of those amendments. I understand the need to give as much certainty as possible about the relationship between the MMO and the IPC. I understand that noble Lords want to ensure that the expertise and experience that the MMO will gain is utilised. It is worth making the point that, if we take account of offshore developments, the MMO will be building up experience, because it will be the statutory body asked to give consents for projects up to 100 megawatts, so it will have a lot of expertise to give.

Because of that, and because I recognise the spirit in which the amendments have been put, I should like to take this matter away and see whether, after discussion between now and Third Reading, the Government can come up with suitable amendments that reflect in primary legislation the MMO’s role of being a statutory consultee at the pre-application stage and a statutory party to IPC examinations, as a way of providing reassurance that the MMO will have a clear, important and transparent role in the process.

I hope that, on that basis, noble Lords will accept that the Government are prepared to engage in these important matters and that we can come back to this at Third Reading with an amendment that meets the substance of the arguments that noble Lords have put.

Baroness Byford: My Lords, I have an academic question. The MMO, rightly, must be consulted first, as the Minister has reinforced again today. It is a statutory party regarding decisions that are taken. At the end of the day, though, the organisation is consulted only as it stands in the Bill. I seek clarification on this point. If the IPC decides that it does not agree with the MMO’s findings, the IPC overrules it. The Minister is nodding.

Lord Hunt of Kings Heath: That is right, my Lords. We have heard today that, although a number of noble Lords do not agree with the relationship between the IPC and the MMO, that relationship is central to offshore marine developments of above 100 megawatts. There are safeguards, however. It was intended that we use secondary legislation to make the issue of consultation clear, but I have agreed to see what government amendment or amendments we could bring forward to enshrine those safeguards in primary legislation.

I say to the noble Baroness that the work of the IPC will take place in the context of the national policy statements, while that of the MMO will take place in the context of the marine policy statements. Given that it is the Government’s responsibility to bring forward those statements, we are under an obligation to ensure that there is consistency between the two, and we will seek to do that.

My third point is that the MMO will have undoubted expertise and experience in this area. It will be the organisation that is asked to give consent for most of

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these developments—only a limited number will meet the threshold for matters to fall to the IPC—in which case the MMO will be a serious player with a significant input into the process.

Baroness Byford: My Lords, I am grateful to the Minister for clarifying that, and for agreeing to take this away and try to come back with some words that will strengthen the position. Some of us were very concerned about this. Although he said that these matters could end up in the courts, that is not where any of us want to be. It would be so much better to do it in primary legislation than to leave it to secondary legislation.

Baroness Hamwee: My Lords, before the Minister sits down, he just used the term “serious player” about the MMO. What he has said is very welcome. Could we retain that phrase? I wrote down “legislative parity”. It is obviously not possible for the two bodies to be absolutely equal, but we are saying that we want them to be as equal as possible.

Lord Livsey of Talgarth: My Lords, would the Minister just take account of—

Lord Hunt of Kings Heath: I am sorry, my Lords, but we are on Report and I truly have sat down.

Earl Cathcart: My Lords, I thank the Minister for setting out the Government’s position so clearly. I do not believe that any of us who have contributed to this debate are very far apart. We all want to see the MMO in the Bill as a statutory adviser/consultee. Where the IPC does not take the MMO’s advice and recommendations, it should publish the reasons why not.

I thank all those who have contributed, and I thank the noble Baroness, Lady Young, for flattering me with her disapproval of my amendment and choosing the other amendment in this group. We are all nearly there, though. With that, I beg leave to withdraw the amendment.

Amendment 49 withdrawn.

Clause 24: Advice, assistance and training facilities

Amendments 50 and 51 not moved.

Clause 25: Provision of information etc

Amendment 52

Moved by Lord Hunt of Kings Heath

52: Clause 25, page 13, line 33, leave out “provision of such publications or” and insert “publication of such documents or the provision of such”

Amendment 52 agreed.

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Clause 28: Power to bring proceedings

Amendment 53

Moved by Lord Davies of Oldham

53: Clause 28, page 14, line 41, leave out subsections (4) to (6) and insert—

“(4) The MMO may designate under this subsection any of its employees who would not (apart from subsection (6)) be entitled to carry on, in relation to magistrates’ court proceedings, an activity which constitutes—

(a) the conduct of litigation, or

(b) the exercise of a right of audience falling within subsection (5).

(5) The rights of audience are—

(a) a right of audience in trials of summary offences;

(b) a right of audience in relation to any application for, or relating to, bail in criminal proceedings relating to a summary offence or an offence triable either way, unless (as matters stand at the time when the application is made) the offence is to be tried on indictment;

(c) a right of audience in relation to interlocutory applications and sentencing in proceedings relating to a summary offence or an offence triable either way;

(d) a right of audience in proceedings for the recovery of any sum of money.

(6) Subject to any exceptions specified in the designation, a person designated under subsection (4) is entitled to carry on, in relation to magistrates’ court proceedings, any activity specified in the designation which constitutes—

(a) the conduct of litigation, or

(b) the exercise of a right of audience falling within subsection (5).

(7) For the purposes of subsection (5), a trial—

(a) begins with the opening of the prosecution case after the entry of a plea of not guilty, and

(b) ends with the conviction or acquittal of the accused.

(8) In this section—

“bail in criminal proceedings”—

(a) in relation to England and Wales, has the same meaning as in section 1 of the Bail Act 1976 (c. 63) (see subsection (1) of that section);

(b) in relation to Northern Ireland, means bail within the meaning of Part 2 of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13));

“conduct of litigation” has the meaning given by paragraph 4 of Schedule 2 to the Legal Services Act 2007 (c. 29);

“magistrates’ court proceedings” means proceedings before a magistrates’ court in England, Wales or Northern Ireland;

“right of audience” has the meaning given by paragraph 3 of Schedule 2 to the Legal Services Act 2007 (c. 29).”

Lord Davies of Oldham: My Lords, subsections (4) to (6) of Clause 28, as drafted, allow the MMO to designate people to carry out certain legal proceedings on the MMO’s behalf. The intention behind these subsections was to allow staff who were not legally qualified to conduct litigation in the magistrates’ courts and to exercise certain rights of audience in those courts. For more straightforward cases we believe that it should be possible for certain employees authorised by the MMO to be involved in some trials and to recover civil penalties. That will allow cases to come before the courts more speedily, especially in the case of guilty pleas.

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The amendment simply clarifies the intent of that policy. Clause 28(4) gives the MMO the power to designate any person to conduct proceedings in the magistrates’ court, whereas we need to provide that power only in relation to those who are not legally qualified. Amendment 53 therefore rewords the clause so that the MMO can authorise specifically those people who are not legally qualified.

The amendment also clarifies the existing provisions as well as our policy on cases that staff who are not legally qualified can carry out. Clause 28(5) sets out the type of rights of audience that the MMO may designate staff who are not legally qualified to carry out, while subsection (7) provides detail about when a trial is taken to begin and end for the purposes of a right of audience in trials of summary offences. Clause 28(8) includes a definition of what we mean by “bail proceedings” through reference to other relevant enactments.

I hope that the House will agree that the changes we have made to the drafting improve the clarity of the clause. The amendments do not involve a change of policy; they merely clarify what was the intent all along. I hope that they command the assent of the House.

Lord Taylor of Holbeach: My Lords, I thank the Minister for his introduction of the amendment and his explanation of its implications. Will he give us a little more information about the qualifications that these employees will have in order for them to be able to handle these activities effectively? It surely would not be to the benefit of either the MMO or court procedure in general if inadequately trained people were expected to handle litigation.

Lord Davies of Oldham: My Lords, we certainly expect the individuals to have a distinct level of expertise, and they will need to have had the training to equip them with that. The noble Lord will appreciate that we are seeking to avoid a situation where only legally qualified staff can carry on this work. If the point of his inquiry is that there is proper concern that those exercising these functions will have had adequate training and will know their competence in those terms, that is certainly the intent.

Amendment 53 agreed.

7 pm

Amendment 54

Moved by Lord Hunt of Kings Heath

54: After Clause 28, insert the following new Clause—

“Continuation of certain existing prosecutions

(1) Any prosecution commenced by the Secretary of State before the appropriate commencement date—

(a) for an offence in relation to any of the functions transferred to the MMO by or under Chapter 2 of this Part, or

(b) for an offence under the fisheries legislation (see subsections (2) and (3)),

may be continued on or after that day by the MMO.

(2) In this section “the fisheries legislation” means—

(a) any enactments relating to sea fishing, including any enactment relating to fishing for shellfish, salmon or migratory trout (but see subsection (3));

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(b) any enforceable EU restrictions and enforceable EU obligations relating to sea fishing.

(3) “The fisheries legislation” does not include—

(a) the Salmon and Freshwater Fisheries Act 1975 (c. 51);

(b) the Salmon Act 1986 (c. 62);

(c) byelaws made by the Environment Agency under Schedule 25 to the Water Resources Act 1991 (c. 57);

(d) the Scotland Act 1998 (Border Rivers) Order 1999 (S.I. 1999/1746);

(e) byelaws made by an inshore fisheries and conservation authority under section 151.

(4) In this section—

“the appropriate commencement date” means—

(a) in relation to an offence falling within paragraph (a) of subsection (1), the date on which the function to which the offence relates is transferred to the MMO;

(b) in relation to an offence falling within paragraph (b) of that subsection, the date on which section 1 comes into force;

“enforceable EU obligation” means an obligation to which section 2(1) of the European Communities Act 1972 (c. 68) applies;

“enforceable EU restriction” means a restriction to which section 2(1) of that Act applies.”

Amendment 54 agreed.

Clause 36: Guidance by the Secretary of State

Amendments 55 to 58

Moved by Lord Hunt of Kings Heath

55: Clause 36, page 18, line 24, at end insert—

“( ) The Secretary of State may give the MMO guidance with respect to the exercise of any of the MMO’s functions.”

56: Clause 36, page 18, line 25, after “it” insert “under this Act”

57: Clause 36, page 18, line 27, leave out “guidance to the MMO” and insert “such guidance”

58: Clause 36, page 18, line 31, leave out subsection (3)

Amendments 55 to 58 agreed.

Clause 39 : Exclusive economic zone

Amendment 58A

Moved by The Duke of Montrose

58A: Clause 39, page 20, line 6, at end insert—

“( ) The Secretary of State may by order withdraw a designation of all or part of an area in which a devolved administration has functions.”

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