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The first of my amendments is to paragraph 3(2) of Schedule 6, where we are told that:

“The marine plan authority for —

(a) the English inshore region, or

(b) the Welsh inshore region,

must also take all reasonable steps to secure that any marine plan for a marine plan area ... is compatible with the relevant Planning Act plan for any area in England, Wales or Scotland”.

My amendment would add a further reference to Scotland, because I seek to understand how this paragraph works. I am certainly not trying to interfere with the devolution settlement. I wrote down a number of possibilities as to what it might mean, and I have crossed out most of them in my notes; I do not want to demonstrate my ignorance absolutely and totally. I wondered whether it was because of the reference to adjoining and adjacent areas in the next sub-paragraph, but I would be grateful if the Minister explains how paragraph 3(2) operates as regards Scotland.

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Amendment 79 would take out the words “all reasonable steps”. Taking all reasonable steps to ensure compatibility, by definition, raises the issue of conflict and begs the question: what if they are not compatible?

Baroness Carnegy of Lour: My Lords, I may be wrong, but it seems that Amendment 78 is not appropriate. Under Clause 48(1)(a), the Scottish inshore region is not applicable in the Bill. One cannot legislate for it in this Bill.

The way the waters of Scotland are now dealt with in the Bill is somewhat confusing. I do not think there is any way round it and the Scottish Parliament is quite happy about this. The Scottish inshore waters are being legislated for in the Scots Parliament; it is busy getting on with that now. The offshore waters are the mixture of one parliament responsible for some things, and another for others. How the boats sailing between the two will cope remains to be seen, but this is the arrangement we have. I do not think I could support Amendment 78, because I do not think it is applicable.

Lord Wallace of Tankerness: My Lords, I welcome the probing nature of my noble friend Lady Hamwee’s amendment, and her reassurance that she does not intend to impede on the devolution settlement. It raises and helps to focus on an issue which arises out of the boundary between the south-west of Scotland and the north-west of England in the Solway Firth. There were amendments in Committee which I and the Government brought forward to address this.

Since then I have received representations from Mr Gordon Mann of the Solway Firth Partnership about concerns which the partnership has about the future of marine conservation in the Solway Firth. That partnership was established in the early 1990s in response to the growing issue of integrated coastal zone management. In the Solway Firth a particular need was identified to have well joined-up integrated coastal zone management, not least because of the national boundary that goes though it. That boundary inevitably increases the number of agencies involved, operating under different legal systems north and south of the border, and different cultures north and south of the border can lead to different management arrangements. Therefore, I understand that the partnership has been worth while in bringing people together from the Scottish and English sides of the Solway Firth to identify issues and actions that are necessary to secure an environmentally sustainable future of that sea.

The concern now being expressed is that there is no likelihood of sufficient consistency and co-ordination between the MMO, which will be established under this legislation, and the work done by Marine Scotland, which has already been established as an executive agency of the Scottish Government and which will operate under the Marine (Scotland) Bill that is currently before the Scottish Parliament. Assurances have been given, but they have no statutory foundation. It is believed that here is a real need for joint planning. Having been born and brought up in Annan in Dumfriesshire on the Solway Firth, I know only too well that here we have an ecosystem that does not recognise a national boundary. Therefore, it is important that there is some kind of shared responsibility.

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I understand that under the Scottish Bill, Marine Scotland will have the power to delegate the preparation of a local plan. That power of delegation is not available to the MMO. Defra has responded to representations that there will be an obligation to consult, but that is not believed to be sufficient. The amendment raises the issue of whether there is an interaction between the responsibility of Scottish Ministers and the inshore plan which directly impinges on an English inshore plan. Perhaps the Minister will indicate a willingness to engage with those who have an interest in the ecosystem and the management of the Solway Firth, so that when the Bill arrives in another place further consideration will have been given to identify whether there are sufficient mechanisms in place to address important issues and underpin the work that has been done since the early 1990s in trying to get a co-ordinated approach to coastal management in the Solway Firth.

Lord Davies of Oldham: My Lords, I was enjoying my noble friend’s response to a question about the difficulties of the devolution settlement, thinking that I had a rather straightforward amendment to deal with. But I am now faced with the situation in which the noble Baroness, Lady Hamwee, wants clarification; the noble Baroness, Lady Carnegy, thinks that the amendment has nothing to do with the Bill; and the noble Lord, Lord Wallace, is asking about the boundary of the Solway Firth. I am in deep waters here, my Lords—I am not sure how deep the Solway Firth is, but I am going to struggle.

Let me begin with the relatively sunny uplands before I get to the deep waters of the Solway Firth. Let me say—

Lord Wallace of Tankerness: My Lords, in many parts the Solway Firth is quite shallow, but it has treacherous tides.

Lord Davies of Oldham: My Lords, we know all about treacherous waters, don’t we? Let me say to the noble Baroness, Lady Hamwee, that I have little to add to what the noble Baroness, Lady Carnegy, said. Clause 48 sets out the marine plan authorities, and it does not include a marine plan authority for the Scottish inshore region because the Marine (Scotland) Bill, now being considered by the Scottish Parliament, covers planning for the Scottish inshore region. As there is no marine plan authority under this Bill for the Scottish inshore region, we cannot place obligations on something that does not exist. The valid point made by noble Lords will need to be considered in the context of that Bill when the Scottish Parliament is considering it, and we will of course draw its attention to the issues raised today. But this is very much a matter for that Bill and its consideration, and without grievously affecting the devolution arrangements we could not in this Bill legislate in that context for Scotland. That is why we do not propose to do so, and therefore I hope that the noble Baroness will regard her Amendment 78 as a probing one and will feel that she has received a satisfactory answer.

4.45 pm

Amendment 79 is different. It would remove the wording relating to “reasonable steps”; in effect, that would make full compatibility mandatory and take

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away any reference to what is reasonable in the circumstances. Let me begin by reiterating that compatibility between terrestrial plans is extremely important. We want to see a seamless, integrated approach at the coast—not least on the Solway Firth, which the noble Lord, Lord Wallace, identified. We included paragraph 3 in the Bill to acknowledge the Joint Committee’s recommendation that we needed to make that very clear. Yet ensuring absolute compatibility—rather than working towards as much compatibility as we can achieve—is not something that we can guarantee without disproportionate cost.

The resources required by a maritime plan authority under an absolute duty to ensure compatibility with any related terrestrial plans, not just those adjoining or adjacent to the marine plan area in question, would be absolutely enormous. Beyond doing everything reasonable to ensure that plans are compatible, it could require the marine planners to imagine and work through every possible combination of potential development, location and circumstances to identify any situation in which the two plans might conflict.

In our earlier debates on the need for consistency between the marine policy statement and national policy statements, the noble Baroness herself acknowledged the near impossibility of eliminating all potential conflict, particularly between “two sets of statements” that may have,

That is how she expressed the problem. She also described the absence of any conflict as,

That burden of ensuring total compatibility would not and could not fall only on the marine plan authority, which would necessarily need to work closely with the terrestrial plan authorities to ensure a shared understanding of how terrestrial planning policies were expected to be interpreted and how they would relate to marine policies.

With no limit of what is reasonable, this process could go on indefinitely, delaying the implementation of any marine planning and increasing the cost of the exercise for both terrestrial and marine authorities. That would obviously make it difficult to achieve our goal of preparing effective and, as far as we can obtain them, compatible plans for the whole inshore region in reasonable time. For the reasons that I have identified, an absolute duty is, as I am sure that all those in the House would recognise, an obligation that we could not put into the Bill.

We have drafted an equal arrangement, which we think will assist planning authorities both on land and at sea to reach meaningful agreement on how their plans should work together. We cannot ask the marine plan authorities to do more than is reasonable or to throw unlimited resources at what might be a well-nigh impossible goal of eliminating any potential for conflict. We will strive for full compatibility; that is the philosophy behind the Bill. Compatibility is in everyone’s interests, but it has to be within the bounds of what is reasonable and practical, both in terms of resources and time.

There are safeguards in place. Both the marine and terrestrial plans are subject to extensive public scrutiny, providing as many eyes and minds as possible to help

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identify and eliminate any potential incompatibilities. This is not about picking and choosing whether to be compatible with terrestrial plans, but the duty is clear: to do everything reasonable to ensure that marine plans are compatible with them. If plans were incompatible without good reason they would, of course, be open to challenge.

Every time marine or terrestrial plans are updated, each always having regard to the other, they will become more closely and effectively integrated. In reality, we think the potential for significant conflict is low, but to imagine that it could be taken out altogether is not sensible. As we said last week, planners are expert at integrating and reconciling government policies when making their decisions, and we should acknowledge that level of expertise.

I am confident that the mechanism we have proposed, by which marine planning authorities must take all reasonable steps to ensure compatibility with terrestrial plans and, in return, terrestrial planning authorities will have regard to national policies, including the MPS and marine plans, is the right balance. It is not the function of this legislation to set an impossible task for the marine planning authorities, as I hope the noble Baroness will recognise. Decision-makers may always take into account other relevant matters, such as contradictory plans. Of course, it is a decision-maker’s job to be good at resolving such situations. We should trust them to do so within the framework of the legislation which, clearly, indicates that compatibility should be striven for, but not to the point where it becomes an absolute goal which is unrealisable.

I say to the noble Lord, Lord Wallace, that I struggled with the Solway Firth. He will have to give me a little more time to think about that issue. He will appreciate fully that we await the progress of the Scottish Bill for the arrangements which will be made for Scotland. I am all too well aware that in all legislation of this kind the issue with regard to a boundary is always of importance and the boundary which involves a fluctuating ecosystem is particularly difficult. I shall write to the noble Lord on that point as I do not have an answer with that level of detail. I hope that he will accept that the framework of the Bill, in the context of the areas that it covers as far as England and Wales are concerned, strives to assert that there will be the necessary reconciliation of interest. That will apply as much to England and Scotland as to other parts.

Lord Wallace of Tankerness: My Lords, I am grateful that the Minister will write to me. I did not expect a detailed answer. Will he also give an indication of the willingness of his officials to engage with those of us on both sides of the Solway Firth to see whether things can be done to ensure that the two legislatures can dovetail to find a solution which he would be willing to engage with as the Bill proceeds to another place?

Lord Davies of Oldham: My Lords, as regards the Scottish counterpart, before this legislation was drafted there was a substantial exchange of views. As this Bill and the Scottish position develop, there will be an opportunity for full consultation. I am happy to give

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him that assurance. I prefaced my remarks in response to this amendment by indicating that, as regards England, it will be necessary to search for agreement and compatibility, in the context of this Bill. When the boundary of England and Scotland is involved, exactly the same principles must obtain.

Baroness Hamwee: My Lords, I should know better than to try to table probing amendments seeking to understand what the legislation means. I thought that if I took out the words “or Scotland” I would draw opprobrium. That would have been another way of approaching it. I was not seeking support for either amendment, but if my noble friend would like me to table another dumb amendment—to which he might not want to put his name—at a later stage, to allow the Solway Firth to be debated further, I would be happy to help.

I am not sure that I am any wiser about the second amendment. The only words that the Minister used that answered my question were “open to challenge”. My problem is that I do not know if this needs further discussion, but I can see that it will not happen this afternoon. I beg leave to withdraw the amendment.

Amendment 78 withdrawn.

Amendment 79 not moved.

Amendment 80

Moved by Baroness Hamwee

80: Schedule 6, page 236, line 20, at end insert—

“(c) the extent to which matters raised in representations have been resolved,”

Baroness Hamwee: My Lords, Amendment 80 is on a different subject. It follows a debate in Committee about whether there should always be an independent investigator. In resisting that amendment, the Minister said:

“Our aim is to ensure that the plans prepared have the support of the local community as well as the various industries, interest groups and regulators who, in one way or another, will be using the plan or subject to it. It is clearly in everyone’s interest to ensure that issues are resolved and consensus reached where possible”.

The Minister went on, understandably:

“It will inevitably not be possible to please all of the interests all of the time”.—[Official Report, 23/2/09; col. 25.]

My amendment simply adds consideration of the extent to which matters raised in representations have been resolved. I have simply aimed to encapsulate the Minister’s explanation and to pin the matter down a little more. That is the quite straightforward purpose of Amendment 80, unless somebody tells me that it means something completely different. I beg to move.

Lord Davies of Oldham: My Lords, last time I did not satisfy the noble Baroness with my response to her amendment, although I spoke at some length. I have a reasonably lengthy reply to this amendment, but the note from my officials also says, “This amendment seems sensible and we should consider it”. We will.

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Baroness Hamwee: My Lords, I am very grateful. I beg leave to withdraw the amendment.

Amendment 80 withdrawn.

Amendment 81 not moved.

Clause 52: Duty to keep relevant matters under review

Amendment 82

Moved by Lord Hunt of Kings Heath

82: Clause 52, page 27, line 6, at end insert—

“( ) The reference in subsection (2)(a) to the cultural characteristics of the authority’s region includes a reference to characteristics of that region which are of a historic or archaeological nature.”

Amendment 82 agreed.

Amendment 83 not moved.

Amendment 84 not moved.

Amendment 84A

Moved by Lord Wallace of Tankerness

84A: After Clause 52, insert the following new Clause—

“Duty to further the conservation of biodiversity in the Scottish Offshore Region

(1) It is the duty of every public body and office-holder, in exercising any functions in the Scottish offshore region, to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions.

(2) In complying with the duty imposed by subsection (1) a body or office-holder must have regard to—

(a) any strategy designated under section 2(1) of the Nature Conservation (Scotland) Act 2004 (asp 6), and

(b) the United Nations Environmental Programme Convention on Biological Diversity of 5 June 1992 as amended from time to time (or any United Nations Convention replacing that Convention).”

Lord Wallace of Tankerness: My Lords, in moving Amendment 84A, I will speak also to Amendment 84B, because I see them very much as alternative amendments. Amendment 84B is in the same terms as the amendment that I proposed in Committee. I indicated then that it was, in essence, a probing amendment to try to identify the extent—if any—to which the Scottish Parliament had a power to legislate to impose a duty of biodiversity on public bodies in the same manner as it had for issues in terrestrial Scotland and the seaward limit up to 12 nautical miles. Could it do so for what we have come to know, lovingly, as the offshore region, which extends from 12 to 200 nautical miles?

It was clear from that debate that the current devolution settlement did not provide for the Scottish Parliament to be able to do that; nor, indeed, did the agreement that was reached between the United Kingdom Government and all the devolved Administrations on how to proceed with regard to marine management. The structure, which we have now discussed many times, is one of executive devolution, rather than legislative devolution, hence the very specific power

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that would be given under Amendment 84B. It would give the Scottish Parliament a power—if it wished to exercise it—that would allow Ministers to incorporate a general duty of biodiversity on public bodies when bringing forward the marine plan for the Scottish offshore region.

It is recognised, too, by the Scottish Government that their competence is limited in this. The Scottish Cabinet Secretary for Rural Affairs and the Environment, Richard Lochhead, said as much to the Liberal Democrat spokesman on marine issues, Liam McArthur, when the matter of the legislative consent motion was before the relevant committee of the Scottish Parliament in January of this year.

5 pm

Marine Scotland is the executive arm of Scottish Ministers and has responsibility for marine science, planning, policy development and management. Amendment 84A would enable the United Kingdom Parliament to confer on public bodies a responsibility for biodiversity. Amendment 84B would enable Marine Scotland, in taking forward its responsibilities, to have that power if the Scottish Parliament so wished. The wording used is in the Nature Conservation (Scotland) Act 2004, which, as I have indicated, extends at the moment only up to the 12-mile limit.

It is clear that executive devolution will not confer powers on Scottish Ministers, but imposing this duty on public bodies has certainly been supported in Scotland. Under the previous Administration in the Scottish Parliament, the Advisory Group on Marine and Coastal Strategy was set up to look at the whole issue of the marine environment and it published its report in March 2007. It had a number of working groups and work streams and, in its contribution to the report, the work stream relating to marine nature conservation said:

“From the marine nature conservation perspective, the main requirement is that measures relating to nature conservation can easily be integrated across administrative boundaries, including the boundary currently placed at 12 nautical miles ... and that these can be integrated into measures for the wider regional seas (however these are defined)”.

It went on to recognise that because the devolution settlement is as it is, that would require Westminster legislation; that it was not at the hand of Scottish Ministers.

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