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In its concluding paragraph, the report of the work stream states:
“While it is not specifically a Scottish competence, and thus outwith the remit of AGMACS, we also support the proposal to extend species protection measures equivalent to those in the Wildlife & Countryside Act 1981, as amended by the Nature Conservation (Scotland) Act 2004, into the zone from 12 to 200 nautical miles”—
I understand that that has been done under subsequent regulations—
- “and to extend the ‘biodiversity duty’ on all public bodies and office holders into this zone, and would commend the definition of that duty in the Nature Conservation (Scotland) Act”.
So there has been a recommendation that the duty should be extended into the offshore.
The Scottish Government, in their consultation White Paper, Sustainable Seas for All, indicated that they wished to see the biodiversity duty on all public bodies. The paper states:
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“If Scottish Ministers achieve further devolution of nature conservation in the offshore beyond 12nm, the Scottish Ministers would propose extending the scope of the duty to apply to all public bodies exercising functions in the offshore area. If further devolution cannot be agreed we would discuss with the UK Government how best to take forward this proposal”.
It is clear that only a limited devolution has been agreed which does not allow Scottish Ministers to do this. The amendments offer the House a choice: we can either devolve that power to the Scottish Parliament or, because it is stated in the devolved settlement that this Parliament would take the lead in this area, we can, perfectly properly, legislate to impose that duty, which quite clearly enjoys support north of the border.
When the matter was debated on 23 February, the Minister stated in his reply:
“On biodiversity, the simple and straightforward answer is that, although we do not use the wording used by the noble Lord, we believe that we have covered the matter in the Bill. In Clause 121, there is a duty on public bodies, including those in the Scottish offshore area, to further the conservation objectives of designated sites. Moreover, public authorities must have regard to advice from the statutory conservation body, which, for the offshore region, is the Joint Nature Conservation Committee”.—[Official Report, 23/2/09; cols. 15-16.]
The point is that the duty is not solely for designated sites; it is a general duty for public bodies when exercising functions in relation to the offshore area which is set out in more detail in the Nature Conservation (Scotland) Act and incorporated by reference in the amendment. Scottish Environment LINK told me recently that it does not believe that the present legislation goes far enough, nor is it competent for the Scottish legislation to cover it. It is concerned that there is a gap in the arrangements which it is the purpose of this amendment to bridge.
I hope that the amendment will commend itself to your Lordships’ House. Both Governments are keen to ensure a marine ecosystem where nature conservation is taken forward. A gap has been identified; I do not believe that this legislation addresses it; and the purpose of my amendment is to ensure that a proper biodiversity duty is put on public bodies so that the boundary line at 12 nautical miles becomes meaningless. It seems a nonsense that a duty exists up to a certain point but not at 12.5 miles from the coast. The amendment seeks consistency right up to the 200-mile limit. Therefore, I beg to move.
The Duke of Montrose: My Lords, I thank the noble Lord, Lord Wallace, for tabling the amendments and probing the whole question of biodiversity and conservation, which we are concerned with in all areas of the United Kingdom as much as in Scotland. Many amendments have been tabled at all stages of the Bill which show the level of concern about the difficulties that could arise from the various approaches to conservation that different authorities may take.
I do not envy the Minister in responding to these concerns. Not only are devolution arrangements impossibly complicated but the system of agreement means that the effect of a change in one arm is not readily apparent in another. The Government claim to be covering one element of the concerns of the noble Lord, Lord Wallace, by devolving responsibility for the implementation of the EC wild birds and habitats
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The Bill mentions sustainable development as one of its aims. Including biodiversity places a constraint on that concept. The Government have provided a draft strategy for marine protected areas, which most noble Lords here today will probably have recently received. In it, the Government emphasise biodiversity for England and Wales, but I do not think that biodiversity is mentioned in the Bill. Too strict an interpretation of biodiversity could create a problem if some new species or organisms were introduced that were detrimental to other elements of current biodiversity. Introducing a species increases biodiversity, but there is a choice to be made as to whether it is beneficial.
I have heard scientists explain recently that we may find as we progress into the future that ecosystem evaluations are of greater importance than biodiversity evaluations—the Government talk in their draft strategy about ecosystem service provision. If powers are to be given to the Scottish Parliament, it may be highly restrictive if they are to be limited to biodiversity.
Amendment 84B would place a duty on Scottish bodies that is not placed on others. I shall therefore listen to the Minister’s response with much interest.
Baroness Carnegy of Lour: My Lords, the noble Lord, Lord Wallace, said that there was a gap, and he is perfectly right. This is one of the strangest parts of the Bill. Ministers in the Scots Parliament decide things and Westminster legislates, as I understand it—that is the problem. One has to realise that, when you move out into offshore waters away from Scotland, you come to areas where energy comes into it—where actual and potential oil fields exist. There could be a conflict of interest between, say, the excavation of a potential oil field and the need to protect natural diversity at sea. It is very important that the same legislature should be legislating for those two things. As it stands, it is the Westminster Parliament.
We must be very careful about this. Already the Scots Parliament and Ministers are referring to offshore as well as inshore waters as “Scottish waters”—they are blurring the distinction. If we blur it further, we may be in trouble. For the United Kingdom, oil is a very different matter from biodiversity in those parts of the sea. It is a very important issue that could affect devolution and whether Scotland one day might become independent. We have got to be very careful about this. I can understand that this may be a solution to the gap, but I am afraid that the gap must continue to exist, inelegant though it is in the context of arrangements in the Bill.
Lord Hunt of Kings Heath: My Lords, once again the noble Baroness has put her finger on some general principles. I will start by making it clear that under the existing devolution settlement, the Scottish Parliament has legislative competence in the offshore area for commercial fishing and for the extraction of marine aggregates. In addition, it has executive responsibility for marine licensing and renewable energy. The UK Government currently retain sole responsibility for defence, oil, gas exploration and exploitation, shipping
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The Scottish Government will retain the other functions that it already enjoys, but I say to the noble Baroness that the UK Government will retain sole responsibility for defence, oil and gas exploration and exploitation, and shipping. The exercise of such functions will, however, be subject to any relevant marine plan, provided that Scottish Ministers have adopted the marine policy statement.
The Duke of Montrose: My Lords, I thank the Minister for giving way. Am I completely out of the picture when I say that the reservation of energy reserves includes coal?
Lord Hunt of Kings Heath: My Lords, we will come to the question of coal later. As I am struggling to find the flag that I have used to identify the issue in my notes, would the noble Duke be content if I answered the point later? I knew that he would raise the issue of coal: alas, I thought that it would be later. I assure him that I have a satisfactory answer on that point.
Lord Davies of Oldham: It is worth waiting for.
Lord Hunt of Kings Heath: My Lords, my noble friend says that it is worth waiting for. I do not think that I would put it quite as highly as that. As far as executive devolution is concerned, outside this Bill the Government have agreed in principle to devolve to Scottish Ministers the executive functions in these regulations that relate to offshore waters adjacent to Scotland. Scottish Ministers will become responsible for enforcement of nature conservation under the Bill and the 2007 regulations. The intention is that enforcement officers will have seamless access to the full suite of enforcement powers that they need for enforcing all nature conservation regulations. We are currently in the process of agreeing with the Scottish Executive how the new arrangements will work to ensure continued efficient administration of reserved functions and the protection of UK national interests in these waters.
5.15 pm
Before I come on to the issues raised under the noble Lord’s very interesting amendments, I should say that we are looking with great interest at the progress of the Marine (Scotland) Bill. Of course, as the UK Bill continues to go through the UK Parliament, we shall work very hard to ensure compatibility across the two Bills. The noble Lord raised a point in that regard under the last group of amendments. It is entirely relevant to the general discussion that we are having about how we make the devolution settlement work in the marine area.
The noble Lord’s amendments raise two fundamental issues. There is the question, first, of the Scottish Parliament’s competence and, secondly, of whether it
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What is more, any public authority operating in the Scottish region will have to do so within the terms of the marine plans to be prepared by Scottish Ministers and the marine policy statement, since, under the Bill, we are devolving to Scottish Ministers the responsibility for nature conservation in the Scottish offshore region. They will be able to include in their plans provisions in relation to conservation or furthering biodiversity. In that sense, they will be accountable to the Scottish Parliament for their decisions, which is another point that the noble Lord has made in a number of our debates.
Scottish marine plans for the offshore region will have to be agreed by the Secretary of State but, having given Scottish Ministers executive responsibility for designating marine conservation zones, we see no reason to object to a plan on the grounds that it contained a duty such as that set out in subsection (1) of Amendment 84B, provided that it was consistent with this Bill and the marine policy statement. I hope that the noble Lord finds that comforting. We believe that Scottish Ministers already have the power under this Bill to include a duty to further biodiversity in marine plans, if they see fit.
Amendment 84A seeks to insert a duty to further the conservation of biodiversity within the offshore region adjacent to Scotland. The first question is whether that duty is necessary, and we are not convinced that it is. All UK Administrations have emphasised the importance of consistency across the UK, while respecting the rights of each legislature. We have no such separate, explicit duty to further biodiversity in other UK offshore areas and we do not think that it is necessary. We already have a number of provisions in this Bill and in wider European legislation that allow us to further biodiversity conservation in the offshore area. We, and the Scottish Executive, will be able to consider biodiversity out to 200 nautical miles where MCZs have been designated. Furthermore, the statutory nature conservation bodies will be able to give advice relating to biodiversity under the provision set out in Clause 123. Public authorities are required to have regard to such advice, ensuring that biodiversity is effectively considered. As I have suggested already, our marine planning system provides the opportunity to drive the way that decisions are made in the direction of further biodiversity.
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The noble Duke, the Duke of Montrose, raised the question of the birds and habitats directive, matters which are still under discussion with the Scottish Executive. Although they fall outside the Bill, another form of executive devolution is being considered in relation to them. I hope we can have constructive discussions with the Scottish Administration on those matters.
The Duke of Montrose: My Lords, does devolving the EC wild birds directive give the Scottish Parliament any legislative competence in carrying it out, or is it purely executive devolution?
Lord Hunt of Kings Heath: My Lords, it would be executive devolution because we cannot do anything that goes outwith the devolution settlement. However, these are early days and I hope we will have a constructive engagement.
Some inspiration has reached me on the issue of coal, so I shall test the patience of the House, if I may. Noble Lords will probably know that the Coal Industry Act 1994 regulates coal mining throughout Great Britain. The exclusive right to authorise coal-mining operations, or operations carried out for the purpose of searching and boring for coal in the terrestrial sea and on the UK continental shelf, is vested in the Coal Authority under the Coal Industry Act. Therefore, any coal-mining operation in the UK—except the Northern Ireland inshore region, which has its own legislation—will need authorisation from the Coal Authority under the Coal Industry Act 1994. A marine licence is only needed for the removal of substances from the seabed, not under the seabed. Therefore, mining operations that extract coal using tunnels dug from the shore would not need a marine licence. The noble Duke has been asking for an explanation on this for some time and I hope that we have finally come up with something that is close to satisfactory.
The Duke of Montrose: My Lords, I thank the Minister for bringing that forward but it is a reserved matter.
Lord Hunt of Kings Heath: My Lords, I did not mean to suggest that it is not. However, in the unlikely event of an open-cast operation extracting coal from the surface of the seabed—who knows where technology may take us?—the operation would need a marine licence, and in the Scottish offshore zone, this would be for Scottish Ministers.
I sympathise with what the noble Lord, Lord Wallace, is trying to do here. We do not think the Bill is the right vehicle for further legislative devolution, but I hope that what I said earlier about the power that Scottish Ministers have under the Bill to include a duty to further biodiversity in marine plans if they see fit will provide him with some reassurance that we can get to where he wishes to be.
Lord Wallace of Tankerness: My Lords, I am grateful to the Minister for his reply and to other noble Lords and the noble Baroness, Lady Carnegy of Lour, who have taken part. The noble Duke, the Duke of Montrose,
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The noble Baroness, Lady Carnegy, made the important point that decisions regarding the oil and gas extraction industry are made here and, therefore, the decision regarding biodiversity ought to be made here as well. Indeed, the purpose of one of the alternative amendments I put down was that it would be this Parliament that would legislate for it and it would come under the same legislature.
I recognise that a settlement has been made with the devolved Administrations. Although I was minded to push this matter further, I was certainly encouraged by what the Minister said in his reply—specifically the point he made in winding up, that if the biodiversity duty set out in these amendments were to be incorporated in a marine plan in relation to marine conservation zones, the Government would look favourably on them. In many respects, that puts the ball into the court of Scottish Ministers. I do not want to underestimate the significance of what the Minister said. It was helpful, and in those circumstances I beg leave to withdraw the amendment.
Clause 53 : Delegation of functions relating to marine plans
Baroness Hamwee: My Lords, a government amendment is grouped with this amendment, and I will not attempt to pre-empt that.
Clause 53 provides for the delegation of functions relating to marine plans. A direction can be given to delegate the functions by a public body. My concern is that a public body as defined in the Bill includes statutory undertakers. Most statutory undertakers are not public: they are private, albeit subject to particular regulation. I query whether it is proper or appropriate to delegate marine plan functions—preparing a plan, identifying the plan area and so forth—to the private sector, even with the Secretary of State's long-stop powers. That is not to say that a marine plan authority should not be working with or consulting statutory undertakers along with other bodies that fall within the normal definition of a public body: of course they should work together. Statutory undertakers will have a role because they have knowledge and views, but to
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Lord Hunt of Kings Heath: My Lords, the noble Baroness's amendment is entirely understandable. I hope to reassure her on this. I agree entirely with her that it is unlikely that it would be appropriate for these functions to be carried out by many statutory undertakers, particularly by the large number which are utility and transport providers. I want to put on record that we are not considering any delegation of marine planning functions to public bodies of that type. The issue that we have is that the definition of statutory undertaker in Clause 312, which points further to that definition given in the relevant terrestrial planning legislation—which the noble Baroness will know better than I do—is wider than simply the utility and transport companies. It includes,
- “persons authorised by any enactment to carry on any ...water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking, or any undertaking for the supply of, or hydraulic power”.
That rather wide definition could include a number of public bodies with functions relevant to marine planning, including the Environment Agency and some harbour authorities. While we are committed to delegating our marine planning functions in relation to the English inshore and offshore regions to the Marine Management Organisation, we should not restrict other plan authorities, whom we have considered in some detail in our earlier discussions, from delegating their marine planning functions to public bodies such as harbour authorities or the Environment Agency which happen to be statutory undertakers. I hope that I have reassured the noble Baroness sufficiently on that.
I turn to my Amendment 86, which reorganises the drafting of subsections (6) and (7) of this clause. Subsection (6) lists those functions of marine plan authorities which are excepted from the list of delegable functions and so cannot be delegated under this clause. However, many of the functions presently listed in subsection (6) are not, in fact, functions of marine plan authorities, but of the Secretary of State in his own capacity. These functions would not, therefore, be delegable functions to begin with and are more properly listed in subsection (7), along with other non-delegable functions of the Secretary of State. My speaking note says that the amendment is minor and technical and does not affect the powers of marine plan authorities to delegate their planning functions.
Baroness Hamwee: My Lords, I thought I would be tempting providence if I said, in opening, that Amendment 86 looked like a technical drafting amendment. I am full of admiration for the people who must be reading this Bill over and over again looking for matters such as this, to ensure that they are correct. I am reassured as to the Government’s intentions; I accept that they will not be the only player in this, by any means. I am reassured by what the Minister had to say on my amendment. I beg leave to withdraw the amendment.
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