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It might be helpful if I explain the difference we envisage between a review of a national policy statement and a review of the marine policy statement, which is directly linked to the question of suspension. The Planning Act contains detailed provisions on the review
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In contrast, under this Bill, there is no formality connected with the review of the MPS. Therefore, the policy authorities are under a duty to review the MPS when they consider it to be appropriate, which essentially gives more flexibility. In practice, we would expect the review of the MPS to be a continuing activity for all the policy authorities to ensure that the MPS remains up to date and that the policies within it continue to contribute to the achievement of sustainable development in the UK marine area. This mechanism also enables the MPS to stay fully in effect while an amendment is being prepared. The progress of the preparation of that amendment will also be a relevant consideration, enabling decision-makers to take greater account of the emerging new policy as it moves towards finalisation and adoption.
It certainly is not the case that we would expect flawed policy to continue to be applied without question, which brings me to the other amendments in this group relating to the relevant considerations test. In Committee, we discussed the circumstances under which decision-makers and planners might cite relevant considerations, and we found some common ground on the kinds of things which were likely to be relevant considerations.
I also appreciate the noble Baroness's concerns that the word “relevant” does not equate to “significant”. But we have problems with her amendments which we believe would impose a higher threshold under this Bill than has been used successfully for many years in terrestrial planning legislation. Let me be clear: the existence of other considerations which may be relevant to the decision at hand is not the end of the test. Those considerations must also indicate that a course of action other than that indicated by the MPS or plan is, in this case, more appropriate. What is more, the consequences of not following the policy statement or plan should also be considered as relevant in their own right.
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Again, I fully accept that the noble Baroness is right when she says that something may be relevant without being important. If that is the case, it would not be sufficient to indicate that the MPS or plan should not be followed. Decision-makers departing from the MPS or plans must give their reasons. I assure noble Lords that we will want to monitor this flexibility closely to ensure that it is being used and not abused. I give an assurance from the Dispatch Box that this matter will be closely monitored. I also make it clear that insignificant or trivial matters will not be enough to override the clear general principle that decisions should be taken in accordance with the MPS, or that plans should conform to the MPS.
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We are debating how precise the situation should be and how much flexibility should be left in guidelines. I know that the noble Baroness is worried about the guidance. We are committed to consulting and providing guidance on the issue. As I said in my letter, we will attempt, as far as possible, to address the relative weight that is to be given to potential relevant considerations. The problem is that the noble Baroness would much prefer this to be in the Bill but that is very difficult to do. There will always be case-by- case decisions. The relative weight of a consideration will depend as much on the circumstances of the case as the question of what is relevant in the first place. That is why I said that we would attempt to give some general principles and broad priorities in so far as they are not already set out in the MPS or plan.
The matters that have been raised are very legitimate. I doubt that we can give the precision that the noble Baroness seeks, but I hope she will accept my assurance that this will be monitored to make sure that trivial reasons are not used in the way that is feared. Also, there is a significant difference between the MPS and the NPS as regards suspensions. The MPS is, in essence, a more flexible mechanism, which will allow changes to be made more quickly than they would be in relation to the NPS. I hope the noble Baroness and the noble Earl will accept that, in resisting the amendments, I very much understand the points that they are making. I hope I have given some reassurance.
Baroness Hamwee: My Lords, of course I accept the Minister’s reassurance. My concern is whether it is adequate. That is not at all to be pejorative of the Minister; I am sure that he will understand that. It is a question of the relative status of legislation and guidance. As regards suspension, a review and possible alteration will inevitably take time, not least because of consultation. If consultation means anything, it means that there must be at least two options, otherwise what is there to consult on? There must be the option of doing something and of not doing something. That is in the context of suspension as a measure that might have to be applied, pending review.
Of course, we will read what the Minister has said about relevant considerations because the detail in that is very important. I am pleased to have it on the record, because others may need to make reference to it. I am not immediately wholly convinced, but I feel more comfortable than I did an hour ago. I beg leave to withdraw the amendment.
Schedule 5: Preparation of an MPS or of amendments to an MPS
64: Schedule 5, page 228, line 23, leave out from “be” to “paragraph” in line 24 and insert “allocated for legislative scrutiny of the consultation draft under”
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Lord Davies of Oldham: My Lords, I shall also speak to the other government amendments in this group, but I shall hold my fire until the Opposition have had the opportunity to present their amendment before I respond to it. It would be unfortunate if I pre-empted what are cogent arguments on the Government’s side before we had heard the Opposition’s case, so I shall not comment on Amendment 83 at this point; rather I will concentrate on the government amendments, which I am sure will find favour.
Amendment 68 is the crucial one in the group. It reflects the fact that, when we debated an amendment tabled by the noble Lord, Lord Taylor of Holbeach, in Committee, it became clear that there was some ambiguity in the wording of the Bill on the timescale available to the legislatures to scrutinise the marine policy statement. We explained then that it was not our intention to curtail the time that the legislatures would have to consider the marine policy statement to just the public consultation period and we promised that we would look at this again.
Amendment 68 and the other related amendments are a reflection of that further consideration. We have proposed amendments to Schedule 5 to make it clear that the period allocated to an appropriate legislative body or appropriate legislative committee for legislative scrutiny of the consultation draft will be specified by the policy authority. Amendments 67 and 69 make consequential changes to paragraph 9, while Amendment 64 makes a similar change to paragraph 5, as it sets out that the statement of public participation must state the period allocated for legislative scrutiny. I beg to move.
Baroness Hamwee: My Lords, I have tabled Amendment 83 in this group, but I feel that I may be letting everyone down because, having seen the government amendments, I do not have great arguments to put forward. My amendment spells out the devolution arrangements, but it is a matter for the legislative bodies in each of the four jurisdictions how they deal with them. As long as we are assured that nothing in the legislation would prevent the arrangements as spelt out in my amendment, I suppose that I am content and I dare say that the Minister can say that the noble Baroness is right.
Earl Cathcart: My Lords, I thank the Minister for these amendments, which address the concerns that we raised in Committee. It is always reassuring to see an area of confusion cleared up and I thank him for that.
Lord Wallace of Tankerness: My Lords, when the Minister comes to respond, will he clarify whether the government amendments pick up the point made in the amendment tabled by my noble friend Lady Hamwee? Subsection (1) in her amendment indicates that there would be an opportunity for the appropriate body to have regard to a proposal to withdraw a marine plan. In the Bill as it stands, the relevant authorities can go through a long process of agreeing a marine plan, but the following day one of them could withdraw by simply putting a notice in the London Gazette or the Edinburgh Gazette. I am certain that my noble friend’s amendment would make provision for the appropriate
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Lord Davies of Oldham: My Lords, I am grateful to the noble Baroness for agreeing that the government amendments meet the main objective of Amendment 83 and of the discussion that we had in Committee on this matter. On that basis, of course, the Government are pleased that the amendments will be supported and that it is felt that Amendment 83 is not essential.
The noble Lord, Lord Wallace, will recognise that the government amendments relate to scrutiny of the marine plans; that is the area that we are considering. It will be appreciated that the government amendments fulfil the concern that was expressed about the time that legislatures would have for this effective scrutiny. The original drafting of the Bill looked to have unduly curtailed that time and we have now made provision to go beyond the public consultation period and for the authorities to make up their own minds on the amount of time that they need for effective scrutiny. I hope that the noble Lord, Lord Wallace, will recognise the fact that that is the framework within which the government amendments have been tabled; they are a response to that debate in Committee.
I should make it clear that we are talking about the scrutiny of the marine policy statement. That is where the legislatures will have sufficient time for proper consideration of the statement. We never intended to restrict that. It was pointed out to us that the way in which the Bill was framed produced a restriction on the time; we are taking that away. The legislatures will make up their own minds about the scrutiny process and the time that they require. I hope therefore that the noble Lord, Lord Wallace, will recognise that these amendments have responded to what was the heart of the debate in Committee.
65: Schedule 5, page 228, line 33, at end insert—
“Sustainability appraisal6A (1) The relevant authorities must carry out an appraisal of the sustainability of their proposals for inclusion in the relevant document.
(2) The relevant authorities may proceed with those proposals only if they consider that the results of the appraisal indicate that it is appropriate to do so.
(3) The relevant authorities must publish a report of the results of the appraisal.
(4) The report is to be published when the relevant authorities publish the consultation draft under paragraph 7.”
Lord Hunt of Kings Heath: My Lords, this group relates to an issue that was considered at some length in Committee. Amendment 66, in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, would require that an appraisal of sustainability be carried out on the marine policy statement and that this should be incorporated within
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We said in previous debates that appraisal of sustainability is inherent in the production of the marine policy statement. However, in recognition of the concerns expressed by noble Lords on this matter, our amendment will place a requirement on the authorities to carry out an appraisal of sustainability of the marine policy statement. My Amendment 65 requires that the relevant authorities carry out an appraisal of the sustainability of proposals for inclusion in the marine policy statement, that they should proceed only if the results of the appraisal indicate that it is appropriate to do so and that they should publish a report of the results alongside the consultation draft. The wording is the same as in Schedule 6 on marine plans.
Whether or not the SEA directive or another directive, such as the birds and habitats directive, applies will depend primarily on the content of the marine policy statement and the extent to which it contains site-specific policies that could be identified as likely to have an impact on environmental features. We are committed to complying with these directives should they apply, but we do not think that an explicit reference to them in the Bill is necessary. If the directives apply, we already have a legal obligation to comply with them and it is therefore not necessary to duplicate that in the Bill. I hope that noble Lords will feel that Amendment 65 goes some considerable way towards meeting the concerns expressed in Committee. I beg to move.
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Baroness Hamwee: My Lords, the Minister referred to our Amendment 66. He used two slightly different phrases, one of which was the one that, when he used it at a previous stage, led to the wording in sub-paragraph (2). He pointed out that the Government would follow the law in the case of this particular directive or of any other. I am glad that he confirmed that just now when he said that the Government were committed to complying. That sounds more like a political commitment than a legal one, although obviously one wants both. I am glad that he has confirmed the legal commitment. He also pointed out in Committee that the directive might be changed or replaced and there might be other directives. That was one of the bases on which our amendment was criticised and it is why I worded sub-paragraph (2) in this way. I recognise the step that the Government have taken in their Amendment 65.
Earl Cathcart: My Lords, once again I thank the Minister for listening to the concerns of this House and bringing back an amendment to ensure that the relevant authorities must carry out an appraisal of sustainability in the MPS, and for setting out the Government’s legal obligation to comply with the directives.
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67: Schedule 5, page 229, line 22, leave out “relevant period” and insert “period allocated to it for legislative scrutiny of the consultation draft”
68: Schedule 5, page 229, line 31, leave out sub-paragraph (6) and insert—
“(6) The period allocated to an appropriate legislative body or appropriate legislative committee for legislative scrutiny of the consultation draft is such period as the policy authority may specify.”
69: Schedule 5, page 229, line 33, leave out “relevant period in relation to” and insert “period allocated for legislative scrutiny of”
70: After Clause 46, insert the following new Clause—
(1) Each policy authority must, no later than 31 March each year, lay before the appropriate legislature a report setting out—
(a) how, in the opinion of the authority, the MPS has been carried into effect;
(b) any further steps which, in the opinion of the authority, are required to be taken in order to contribute to MPS being carried into effect.
(2) The report must also contain the following information—
(a) information about any amendments which the policy authority has made to the MPS;
(b) an assessment of the effectiveness of the MPS; and
(c) any further steps which, in the opinion of the policy authority, are required to be taken in relation to any MPS in order to achieve its objectives.
(3) In this section “the appropriate legislature” means—
(a) in relation to the Secretary of State, Parliament;
(b) in relation to the Welsh Ministers, the National Assembly for Wales;
(c) in relation to the Scottish Ministers, the Scottish Parliament; and
(d) in relation to the Department of the Environment in Northern Ireland, the Northern Ireland Assembly.”
Lord Wallace of Tankerness: My Lords, I shall speak also to Amendment 84. Amendment 70 seeks parliamentary scrutiny through a report being made to Parliament on the marine policy statements. The parallel provision in Amendment 84 relates to parliamentary scrutiny based on reports on the marine plan.
To pick up on the debate two sets of amendments ago, the steps that have been taken, which the Minister referred to, are very welcome. Perhaps there was some confusion—my noble friend’s amendment in that grouping related more to the marine plan than to the MPS—but some of the points remain relevant. Here we are seeking that there should be a report to the appropriate legislatures on an annual basis in connection with the marine policy statement and with regard to the marine plan, so that the appropriate authorities have an opportunity to set out the extent to which the MPS or the marine plan has been carried into effect and to say whether they believe that it is adequate, whether further
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Much of what we have discussed in these debates, both in Committee and today, relates to work that will be done principally by Secretaries of State, Scottish Ministers, the devolved Administrations in Northern Ireland and Wales or public bodies such as the MMO. It is important that we remember the parliamentary dimension to this, especially given the length of time that we have devoted to these subjects, which are clearly of considerable importance; I do not think that anyone who has taken part would doubt that. That is why it is important that Parliament should have a regular opportunity to examine whether the mechanics and the framework that we are putting into place in the legislation are bearing the fruit, having the oversight and carrying forward the approach to marine conservation and the treatment of our marine resource in the way in which we as parliamentarians would wish them to.
I say that also in the context of agreement with the devolved Administrations. It is very much to be welcomed that, in an area of considerable complexity, an agreement was reached. That shows that that can be done where good will applies. It was 10 years ago this week that we elected a Scottish Parliament and, indeed, a Welsh Assembly. We had executive devolution before then in the guise of the Scottish Office and the Welsh Office. What the people of Scotland and Wales voted for was some democratic oversight of that devolution. These amendments would at least give an entrée for the respective Parliament and Assembly to have oversight as to what Ministers are doing in pursuance of either an MPS or a marine plan.
Following the precedent set earlier by the noble Lord, Lord Davies, I will not prejudge Amendment 92 in the group, which seeks a report on a three-yearly and, in some cases, a six-yearly basis. I think that it would be better to have it yearly. However, I note that Amendment 92 says:
That is a novel form of drafting. I cannot remember seeing that previously in a Bill. It may be something to be welcomed. I am all in favour of trying to put things into more readable English, rather than saying “subject to”, “notwithstanding” or whatever. Perhaps he could explain whether this is a novel departure that we should perhaps be welcoming. I beg to move.
The Duke of Montrose: My Lords, the amendments of the noble Lord, Lord Wallace, have reopened an area about which, judging from the other amendments in the group, the Government have had concerns. I should like to thank the Law Society of Scotland for putting this forward; I believe I received a prompt from it on that score. The amendment tabled looks so much neater than the raft included in the six tabled by the Government.
I differ from the noble Lord only in that I think the Government in their Amendment 93 are really proposing a much more practical approach where the reports are spaced out as up to three years. There is always a great danger in allowing politicians to meddle too much with organisations that are trying to evolve and carry out consistent policies.
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