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Ferrers, E.
Finlay of Llandaff, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Garden of Frognal, B.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Greaves, L.
Greengross, B.
Greenway, L.
Griffiths of Fforestfach, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hooper, B.
Howard of Rising, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Inglewood, L.
James of Blackheath, L.
Jenkin of Roding, L.
Kerr of Kinlochard, L.
Kimball, L.
Kingsland, L.
Kirkwood of Kirkhope, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lewis of Newnham, L.
Linklater of Butterstone, B.
Listowel, E.
Liverpool, E.
Livsey of Talgarth, L.
Lucas, L.

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Luce, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Meacher, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monson, L.
Montgomery of Alamein, V.
Montrose, D.
Moonie, L.
Morris of Bolton, B.
Murphy, B.
Neuberger, B.
Neville-Jones, B.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Bengarve, B.
Onslow, E.
Palmer, L.
Pilkington of Oxenford, L.
Ramsbotham, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Sandwich, E.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Southwark, Bp.
Stair, E.
Steel of Aikwood, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Tanlaw, L.
Taylor of Holbeach, L.
Tebbit, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Trimble, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Ullswater, V.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Warner, L.
Warnock, B.
Warsi, B.
Watson of Richmond, L.
Williams of Crosby, B.
Williamson of Horton, L.


Adonis, L.
Ahmed, L.
Amos, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Armstrong of Ilminster, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Bhatia, L.
Bhattacharyya, L.
Bilston, L.
Blood, B.
Borrie, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Browne of Belmont, L.
Campbell-Savours, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Deech, B.
Desai, L.
Dubs, L.
Eatwell, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gilbert, L.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.

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Grantchester, L.
Grocott, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Kingsmill, B.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Malloch-Brown, L.
Mandelson, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Yardley, B.
Myners, L.
Parekh, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Prys-Davies, L.
Puttnam, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Soley, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Vadera, B.
Wall of New Barnet, B.
West of Spithead, L.
Whitaker, B.
Williams of Elvel, L.
Young of Old Scone, B.
4.14 pm

A privilege amendment was made.

Bill passed and sent to the Commons.

Marine and Coastal Access Bill [HL]

Copy of Bill
Explanatory Notes
1st Report Delegated Powers Committee
1st Report Constitution Committee
11th Report Joint Committee Human Rights

Report (2nd Day)

4.15 pm

Clause 49 : Marine plans for marine plan areas

Amendment 75A

Moved by Lord Hunt of Kings Heath

75A: Clause 49, page 25, line 17, leave out “section 57” and insert “sections 57 and (Meaning of “retained functions” etc)”

The Minister of State, Department of Energy and Climate Change & Department for Environment, Food and Rural Affairs (Lord Hunt of Kings Heath): My Lords, I will speak to other government amendments in this group as well. The amendments appear complex, but I reassure this House that nothing in them changes whether a function is devolved, or on whom it is conferred. The only effect is to classify functions as either “retained” or “devolved” for the purposes of this part of the Bill and, in particular, for deciding when the marine policy statement should influence public authority decision-making.

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Since additional procedural requirements will apply to any devolved marine plan which is intended to affect “retained”—in other words, “non-devolved” functions, it is important that we get the definitions right, and that they are capable of adjusting to the nuances of the different devolution settlements. Otherwise the risk is that we may find that plans could be prepared which affect UK functions without having gone through the correct procedure, or, alternatively, that we are inappropriately constraining the exercise of functions which have been devolved.

The policy which lies behind the amendments is straightforward and is unchanged from the Bill as published in draft and as introduced. If the marine policy statement has been adopted by the policy authority for a marine planning region, then it will be a “relevant marine policy document” for all decisions made by any public authority in relation to that region. Similarly, if a marine plan has been adopted for an area and the plan meets the conditions set out in Clause 57(4), then that plan will also be a “relevant marine plan document” for all decisions in relation to that area. However, the devolution settlements are different for each devolved Administration and use different terminology, which must be properly used to ensure that this Bill has the right effect in practice.

Clause 57(5) presently sets out the effect of the marine policy statement on different decisions. Amendments 91A to 91F amend the present Clause 57(5) to clarify it and insert the new terminology of “secondary” devolved functions and so on, which are used in the new clause inserted by Amendment 91N.

At the same time, Amendment 91G removes the present definition of “retained functions” in Clause 57(7) and (8). Amendment 91N inserts a new clause which defines “retained functions” by providing that all functions are “retained” unless they fall within the classes listed in subsection (1). The subsequent subsections in the new clause provide further detail as to the scope of each of the classes listed in subsection (1). In particular, neither “secondary devolved functions” nor “relevant ancillary functions” can be considered “devolved” if the UK Government still have substantive functions in relation to them.

Finally, Amendments 91H to 91M and 126B update or insert a number of definitions as a result of the changes to Clause 57 and the insertion of the new clause, while Amendments 75A, 77A and 99A update the cross-references to “retained functions” throughout the Bill to refer to the new clause.

I am confident that this drafting delivers the right result and properly respects both UK “retained” functions and the competence of the devolved Administrations. I beg to move.

Lord Livsey of Talgarth: My Lords, I shall respond to what the Minister says, first in relation to Wales. The amendments are complex and appear to be complicated, but I have read them thoroughly and, speaking specifically about Wales, I am satisfied that he has covered what I regard as the important points.

Amendments 75A and 77A are welcome, in that they spell out clearly the meaning of “retained functions” in relation to devolved authorities and legislatures.

12 May 2009 : Column 945

Amendment 91A would define what happens if a devolved policy authority adopts an MPS. There then follows a series of consequential amendments, Amendments 91B to 91G. Amendment 91H rightly describes the Counsel General to the Welsh Assembly Government, as he or she is the most senior legal officer in the Assembly and Government of Wales.

Amendment 91K defines the description of the First Minister in the Government of Wales Act 2006. Prior to that, between 1999 and 2006, the title of First Minister was not entirely secure in legislative terms. It also separates out a non-departmental government authority from Welsh Ministers and the legal officer.

The group follows on in Amendment 91M to define exactly what a primary devolved authority is in relation to a devolved policy authority. This gives clarity to the legislation as far as Wales is concerned. Amendment 91N is helpful in defining the retained functions for Wales. It spells out where the Welsh ministerial functions lie, and also in relation to joint functions, an interesting aspect of the Minister’s amendment.

Given that the Marine and Coastal Access Bill includes matters that directly impact upon Wales, the Welsh Assembly Government and the National Assembly for Wales, Amendment 91 is particularly helpful in defining the parameters which I am sure that the devolved bodies in Wales will absorb. Amendments 99A and 126B give further clarification, Amendment 126B on town and country planning legislation. On the whole, having looked at the detail of Minister’s amendments, I think that I can make sense of them.

Baroness Carnegy of Lour: My Lords, I remember, during the passage of the Scotland Act through this House, the late Lord Mackay, who was on the Front Bench for us, saying that the lopsided type of devolution that we were adopting would lead to great complexity in legislation. He said that we might well end up with a federal system simply to get the simplicity. That is probably not what we want.

This is a perfect example of what lopsided and uneven devolution brings about in legislation. The Bill is getting fatter and fatter. Quite honestly, it is becoming pretty confused as we go along. I am sure that these amendments are necessary but, unlike the noble Lord, Lord Livsey, I cannot comment on them in detail; I dare say that my noble friend on the Front Bench may do so. However, one day, we will have to simplify all this. Quite honestly, one definition leads to the need for another. It is pretty confusing.

I trust that the Government have got it right and that, if somebody spots further faults here, they will be put right in the other place. In the mean time, however, I support the amendments.

Baroness Hamwee: My Lords, I thank the Minister for the extremely helpful letter that was sent to Peers showing, in language that was not that much easier but in more narrative form, the effect of these amendments. I congratulate him on the final paragraph in the annexe dealing with this suite of amendments. He repeated the first sentence of it about his confidence that,

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Yet I cannot resist sharing with the House the second sentence, which reads:

“Whilst it will never be possible to draft for every eventuality, it must be remembered that the duty to act in accordance with the MPS and plans permits public authorities to take other ‘relevant considerations’ into account, which enables flexibility in the future to adapt to unforeseen circumstances”.

I thought that was masterly.

The Duke of Montrose: My Lords, I also wish to thank the Minister for explaining his amendments in such a succinct fashion, especially on the back of the very comprehensive briefing that he gave us, which I picked up in my post yesterday afternoon. I am also grateful to him for admitting that it is a complex group, but I am glad to respond because it touches on an area that has exercised my mind since we first began considering the Bill. How far are we aware of what powers are devolved to which Administration, and will all the authorities find clear definition of where they are allowed to exercise authority in the future? Certainly, this group of amendments is a good attempt to address that.

Amendment 75A, which is put in more or less as a consequential amendment, is pretty far-reaching. Every marine authority drawing up its plan will have to state where it sees retained functions being involved. Will that be subject to review by the Secretary of State as part of the approval process? Will the list be confined to retained functions within marine legislation, FEPA legislation and renewable energy legislation or will it have to take in the overarching areas of retained functions such as defence, marine shipping and minerals?

It is very appropriate that this area should be subject to fairly detailed clarification in the Bill, as most of those who have spoken have mentioned. I am glad that it has been in the hands of proper parliamentary draftsmen, as I am not sure anyone else could have battled their way through all the different bits of devolved legislation that are necessarily hard for us to follow. Perhaps once these provisions are in the Bill, those with a sharper brain than mine will see whether there are areas that need tidying up.

I am glad that the Government have addressed the question of where the powers lie for any authority that withdraws from a marine policy statement. I think the Minister is aware of my misgivings about the possibility that an authority might not bother to withdraw but simply ignores the directions that are contained within the relevant marine plan. He tried to reassure me about that in Committee. Otherwise, I am much encouraged by the group of amendments.

Lord Hunt of Kings Heath: My Lords, first, I am grateful for the general welcome there has been for this group of government amendments. Let me reiterate that it is extremely complex and I am very grateful for the tolerance shown by noble Lords in this debate.

I welcome the comments of the noble Lord, Lord Livsey, about clarity. I thought that his analysis from a Welsh point of view was impeccable. The noble Baroness, Lady Carnegy, reminded us of the riveting debates on the Scottish Bill as it went through your Lordships’

12 May 2009 : Column 947

House. We all of course recall Lord Mackay and the contribution he made to those debates and that legislation. He is still very much missed in your Lordships’ House.

I do not quite agree that we have lopsided legislation—

Baroness Carnegy of Lour: My Lords, lopsided devolution was the phrase; it is not a rude term but a statement of what we have. Legislation is not even between different parts of the country. We have legislated differently for different areas. That is why we referred to it at that time as lopsided devolution.

Lord Hunt of Kings Heath: My Lords, I am grateful, but one person’s lopsidedness is another person’s flexibility in meeting the circumstances of each devolved Administration.

Lord Livsey of Talgarth: My Lords, the noble Baroness, Lady Carnegy, is not a lone voice in this. The situation in Wales is not satisfactory. We should much prefer to have the kind of settlement that Scotland has had; if we did, we would not have such complex legislation in front of us today.

4.30 pm

Lord Hunt of Kings Heath: My Lords, although it is very tempting to debate particular aspects of devolution in relation to Scotland and Wales, I had better desist from doing so. However, I say to the noble Baroness, Lady Carnegy, that I very much hope that the end result is not a federal system of government. On the 10th anniversary of the establishment of the Scottish Parliament, the polling showed up some very interesting results, which were encouraging for those of us who believe that the Union has much for which to commend itself. However, I realise that the more I speak, the more I tempt noble Lords to debate devolution in general.

Regarding the specifics of my amendments, noble Lords may ask why it has taken until now for the Government to provide the clarity required. The short answer is that the final discussions between the devolved Administrations and the UK Government that took place in the autumn—which led to the confidence that I have stated in this House before that we can make this work from the UK’s point of view—meant that a lot of work then had to be done to ensure that the Bill was up to scratch in relation to the devolution settlement. We have been working very closely with counterparts in Scotland, Wales and Northern Ireland and with parliamentary counsel in going through the detail of this revised clause. Of course, the framework of responsibilities within the devolution settlement is extremely complex, but I am confident that we now have it as right as it can be. I say to the noble Baroness, Lady Carnegy, that if we spot further changes that need to be made, there will be another opportunity to do so. I hope that that will not be necessary but, as a result of these amendments, we now have the support of all the devolved Administrations regarding the definitions that we are proposing.

I am grateful to the noble Baroness, Lady Hamwee, for her comments on my extremely lengthy letter. She is right to say that I left a caveat in the penultimate sentence, but that is just a sensible precaution and I do not think that anything more should be read into it.

12 May 2009 : Column 948

In Committee, the noble Duke raised his concern that this is a very complex area. Although we are confident that we have it right, and the UK Government and devolved Administrations understand their respective responsibilities, ensuring that that is communicated to all the people who will be affected by this legislation in the future is a considerable challenge. He is right about that, and we will have to think very carefully, as will the other Administrations, about how that is to be done.

Regarding the noble Duke’s specific question, my understanding is that the public authorities already know which functions are devolved and which are retained, so we do not think that that is particularly an issue. I reiterate, as I have done on many occasions, that Part 3 does not affect the devolution settlement, however much the noble Lord, Lord Livsey, wishes that it does.

Amendment 75A agreed.

Amendments 76 and 77 not moved.

Schedule 6 : Marine plans: preparation and adoption

Amendment 77A

Moved by Lord Hunt of Kings Heath

77A: Schedule 6, page 231, line 32, leave out “section 57” and insert “sections 57 and (Meaning of “retained functions” etc)”

Amendment 77A agreed.

Amendment 78

Moved by Baroness Hamwee

78: Schedule 6, page 232, line 5, at end insert—

“( ) the Scottish inshore region,”

Baroness Hamwee: My Lords, I beg to move Amendment 78 and will speak also to Amendment 79, but not at any length on either. I will probably demonstrate that, helpful as I have found the Minister’s letter, I have still not got to grips with the devolution aspects of the Bill.

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