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12 May 2009 : Column 963

Amendment 86

Moved by Lord Hunt of Kings Heath

86: Clause 53, page 27, line 27, leave out subsections (6) and (7) and insert—

“(6) The “excepted functions” are the following functions of a marine plan authority—

(a) deciding under paragraph 15 of Schedule 6 whether to publish a marine plan or any amendment of a marine plan;

(b) deciding under section 51 whether to withdraw a marine plan.

(7) No direction may be given under this section in respect of any of the following functions of the Secretary of State—

(a) deciding under paragraph 5 of Schedule 6 whether to give agreement to a statement of public participation;

(b) deciding under paragraph 7 of that Schedule whether to give agreement to a revised statement of public participation;

(c) deciding under paragraph 11 of that Schedule whether to give agreement to a consultation draft;

(d) deciding under paragraph 15 of that Schedule whether to give agreement to a marine plan;

(e) deciding under section 51 whether to withdraw agreement previously given under that paragraph to a marine plan.”

Amendment 86 agreed.

Clause 56 : Decisions affected by marine policy documents

Amendments 87 to 90 not moved.

Amendment 91

Moved by Lord Hunt of Kings Heath

91: Clause 56, page 29, line 20, leave out “relating to” and insert “in relation to”

Amendment 91 agreed.

Clause 57 : The appropriate marine policy documents

Amendments 91A to 91N

Moved by Lord Hunt of Kings Heath

91A: Clause 57, page 30, line 13, at end insert—

“( ) if a devolved policy authority has adopted the MPS, the devolved policy authority and any primary devolved authority related to it;”

91B: Clause 57, page 30, line 14, after “any” insert “non-departmental”

91C: Clause 57, page 30, line 16, after “any” insert “non-departmental”

91D: Clause 57, page 30, line 18, leave out paragraph (e)

91E: Clause 57, page 30, line 19, after “any” insert “non-departmental”

91F: Clause 57, page 30, line 19, after “out” insert “secondary”

91G: Clause 57, page 30, line 28, leave out subsections (7) and (8)

91H: Clause 57, page 31, line 3, at end insert—



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““Counsel General” means the Counsel General to the Welsh Assembly Government;”

91J: Clause 57, page 31, leave out lines 4 and 5

91K: Clause 57, page 31, line 13, at end insert—

““First Minister” has the same meaning as in the Government of Wales Act 2006 (c. 32);

“non-departmental public authority” means any public authority other than—

(a) a Minister of the Crown or government department;

(b) the Scottish Ministers;

(c) the Welsh Ministers, the First Minister or the Counsel General;

(d) a Northern Ireland Minister or a Northern Ireland department;

“Northern Ireland Minister”—

(a) has the same meaning as in the Northern Ireland Act 1998 (c. 47), but

(b) includes a reference to the First Minister and the deputy First Minister, within the meaning of that Act;”

91L: Clause 57, page 31, leave out lines 14 to 30

91M: Clause 57, page 31, line 30, at end insert—

““primary devolved authority”, in relation to a devolved policy authority, means—

(a) in the case of the Welsh Ministers, the First Minister or the Counsel General;

(b) in the case of the Department of the Environment in Northern Ireland, a Northern Ireland Minister or a Northern Ireland department;

“retained functions” is defined for the purposes of this Part in section (Meaning of “retained functions” etc);

“secondary devolved functions” has the same meaning as in section (Meaning of “retained functions” etc).”

91N: After Clause 57, insert the following new Clause—

“Meaning of “retained functions” etc

(1) For the purposes of this Part, the functions of a public authority which are “retained functions” as respects any marine planning region are those functions of the public authority which, as respects that region, are not any of the following—

(a) Scottish Ministerial functions (see subsection (2));

(b) Welsh Ministerial functions (see subsection (2));

(c) Northern Ireland government functions (see subsection (2));

(d) secondary devolved functions (see subsection (3));

(e) relevant ancillary functions (see subsection (5)).

(2) In this section—

“Northern Ireland government functions” means—

(a) any functions exercisable by a Northern Ireland Minister or a Northern Ireland department, other than joint functions and concurrent functions (see subsection (9));

(b) any concurrent functions, so far as exercised by a Northern Ireland Minister or a Northern Ireland department;

(c) the function exercised by a Northern Ireland Minister or a Northern Ireland department when exercising a joint function;

“Scottish Ministerial functions” means—

(a) any functions exercisable by the Scottish Ministers, other than joint functions and concurrent functions;

(b) any concurrent functions, so far as exercised by the Scottish Ministers;

(c) the function exercised by the Scottish Ministers when exercising a joint function;

“Welsh Ministerial functions” means—

(a) any functions exercisable by the Welsh Ministers, the First Minister or the Counsel General, other than joint functions and concurrent functions;



12 May 2009 : Column 965

(b) any concurrent functions, so far as exercised by the Welsh Ministers, the First Minister or the Counsel General;

(c) the function exercised by the Welsh Ministers, the First Minister or the Counsel General when exercising a joint function.

(3) “Secondary devolved functions” means—

(a) as respects the Scottish inshore region or the Scottish offshore region, any secondary devolved Scottish functions;

(b) as respects the Welsh inshore region or the Welsh offshore region, any secondary devolved Welsh functions;

(c) as respects the Northern Ireland inshore region or the Northern Ireland offshore region, any secondary devolved Northern Ireland functions.

See subsection (4) for the definition of each of those descriptions of secondary devolved functions.

(4) In this section—

“secondary devolved Northern Ireland functions” means any of the following—

(a) any functions exercisable by a Northern Ireland non-departmental public authority;

(b) any functions exercisable by any other non-departmental public authority, so far as relating to transferred or reserved matters (within the meaning of the Northern Ireland Act 1998 (c. 47));

“secondary devolved Scottish functions” means any of the following—

(a) any functions exercisable by a Scottish non-departmental public authority;

(b) any functions exercisable by any other non-departmental public authority, so far as not relating to reserved matters (within the meaning of the Scotland Act 1998 (c. 46));

“secondary devolved Welsh functions” means any of the following—

(a) any functions exercisable by a Welsh non-departmental public authority;

(b) any functions conferred or imposed on a non-departmental public authority by or under a Measure or Act of the National Assembly for Wales;

(c) any functions exercisable by a non-departmental public authority, so far as relating to matters within the legislative competence of the National Assembly for Wales;

but the definitions in this subsection are subject to subsection (6) (which excludes certain functions in relation to which functions are exercisable by a Minister of the Crown or government department).

(5) “Relevant ancillary functions” means any functions exercisable by a non-departmental public authority in relation to any of the following—

(a) a Scottish Ministerial function;

(b) a Welsh Ministerial function;

(c) a Northern Ireland government function;

(d) a secondary devolved function;

but this subsection is subject to subsection (6).

(6) Where functions are exercisable by a Minister of the Crown or government department in relation to a function of a non-departmental public authority, the function of the non-departmental public authority is not—

(a) a secondary devolved Scottish function;

(b) a secondary devolved Welsh function;

(c) a secondary devolved Northern Ireland function;

(d) a relevant ancillary function;

but this subsection is subject to subsection (7).



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(7) Functions are not to be regarded as exercisable by a Minister of the Crown or government department in relation to functions of a non-departmental public authority merely because—

(a) the agreement of a Minister of the Crown or government department is required to the exercise of a function of the non-departmental public authority;

(b) a Minister of the Crown or government department must be consulted by the non-departmental public authority, or by a primary devolved authority, about the exercise of a function of the non-departmental public authority;

(c) a Minister of the Crown or government department may exercise functions falling within subsection (8) in relation to functions of the non-departmental public authority.

(8) The functions mentioned in subsection (7)(c) are—

(a) functions under section 2(2) of the European Communities Act 1972 (c. 68);

(b) functions by virtue of section 57(1) of the Scotland Act 1998 (c. 46) (Community obligations) or under section 58 of that Act (international obligations);

(c) functions under section 26 or 27 of the Northern Ireland Act 1998 (c. 47) (international obligations and quotas for international obligations);

(d) functions by virtue of section 80(3) of, or paragraph 5 of Schedule 3 to, the Government of Wales Act 2006 (c. 32) (Community obligations) or under section 82 of that Act (international obligations etc);

(e) functions under section 152 of that Act (intervention in case of functions relating to water etc).

(9) In this section—

“concurrent function” means a function exercisable concurrently with a Minister of the Crown or government department;

“Counsel General” means the Counsel General to the Welsh Assembly Government;

“devolved policy authority” means—

(a) the Scottish Ministers;

(b) the Welsh Ministers;

(c) the Department of the Environment in Northern Ireland;

“First Minister” has the same meaning as in the Government of Wales Act 2006 (c. 32);

“joint function” means a function exercisable jointly with a Minister of the Crown or government department;

“non-departmental public authority” has the same meaning as in section 57;

“Northern Ireland Minister”—

(a) has the same meaning as in the Northern Ireland Act 1998 (c. 47), but

(b) includes a reference to the First Minister and the deputy First Minister, within the meaning of that Act;

“Northern Ireland non-departmental public authority” means any non-departmental public authority so far as exercising functions in relation to which functions are exercisable by a Northern Ireland Minister or a Northern Ireland department;

“primary devolved authority” means any of the following—

(a) the Scottish Ministers;

(b) the Welsh Ministers, the First Minister or the Counsel General;

(c) a Northern Ireland Minister or a Northern Ireland department;

“Scottish non-departmental public authority” means any non-departmental public authority so far as exercising functions in relation to which functions are exercisable by the Scottish Ministers;

“Welsh non-departmental public authority” means any non-departmental public authority so far as exercising functions in relation to which functions are exercisable by the Welsh Ministers, the First Minister or the Counsel General.”

Amendments 91A to 91N agreed.



12 May 2009 : Column 967

Clause 58 : Monitoring of, and periodical reporting on, implementation

Amendments 92 to 97

Moved by Lord Hunt of Kings Heath

92: Clause 58, page 31, line 32, at end insert—

“( ) This section makes provision for and in connection with imposing the following duties on a marine plan authority—

(a) where it has prepared and adopted a marine plan, a duty to keep the matters specified in subsection (2) under review for so long as the marine plan is in effect (see subsections (1) and (2));

(b) in any such case, a duty to prepare and publish, and lay a copy of, a report on those matters at intervals of not more than 3 years (see subsections (3) to (7));

(c) in any case, a duty to prepare, and lay, at intervals of not more than 6 years ending before 1st January 2030, a report on—

(i) any marine plans it has prepared and adopted,

(ii) its intentions for their amendment, and

(iii) its intentions for the preparation and adoption of any further marine plans,

(see subsections (8) to (11)).”

93: Clause 58, page 31, line 44, at end insert—

“( ) Where the marine plan authority publishes a report under subsection (3), the authority must lay a copy of the report before the appropriate legislature.”

94: Clause 58, page 32, line 3, after “report” insert “under subsection (3)”

95: Clause 58, page 32, line 5, leave out “report, successive reports” and insert “report under subsection (3), successive reports under that subsection”

96: Clause 58, page 32, line 14, at end insert—

“(8) Each marine plan authority must from time to time prepare and lay before the appropriate legislature a report which—

(a) identifies any marine plans which the authority has prepared and adopted;

(b) describes any intentions the authority may have for the amendment of any marine plans which it has prepared and adopted;

(c) describes any intentions the authority may have for the preparation and adoption of any further marine plans.

(9) The first report prepared under subsection (8) by each marine plan authority must be laid before the appropriate legislature before the expiration of the period of 6 years beginning with the date of the passing of this Act.

(10) After a marine plan authority has prepared and laid its first report under subsection (8), it must prepare and lay successive reports under that subsection at intervals of no more than 6 years following the laying of the previous report.

(11) No report under subsection (8) is required to be laid in a case where the period of 6 years following the laying of the previous report ends on or after 1st January 2030.”

97: Clause 58, page 32, line 14, at end insert—

“( ) For the purposes of this section, the “appropriate legislature” is—

(a) in the case of the Secretary of State, Parliament;

(b) in the case of the Scottish Ministers, the Scottish Parliament;

(c) in the case of the Welsh Ministers, the National Assembly for Wales;

(d) in the case of the Department of the Environment in Northern Ireland, the Northern Ireland Assembly.”

Amendments 92 to 97 agreed.



12 May 2009 : Column 968

Clause 59 : Validity of marine policy statements and marine plans

Amendment 98

Moved by Lord Wallace of Tankerness

98: Clause 59, page 32, line 38, at end insert—

“( ) the Court of Session, if the relevant document is a marine plan or an amendment of a marine plan for an area within the Scottish offshore plan;”

Lord Wallace of Tankerness: My Lords, I do not wish to detain the House long on this. I wish to pursue again with the Minister a point which I raised in Committee which relates to the courts’ jurisdiction if a person should wish to challenge relevant documents in relation to the Scottish offshore region. As the Bill stands, it would be possible to raise an action in either the Court of Session or the High Court. I cannot understand, and I am not aware of a precedent, why a matter relating exclusively to Scottish waters—almost certainly an action where the respondent would be Scottish Ministers—would find its way to the High Court when the Court of Session is perfectly competent, both legally and actually, to deal with the matter.

I remember when this was dealt with before; the Minister seemed to indicate that it was part of the general overall agreement with Scottish Ministers as to how the Bill would proceed. It struck me as very interesting that Ministers from the Scottish National Party should concede the jurisdiction of the Court of Session to the High Court. We perhaps need a slightly more detailed explanation than that one, which stretches credibility. Nevertheless, stranger things have happened.

If a matter relates exclusively to the Scottish offshore region, where the respondents, almost inevitably, would be Scottish Ministers, I cannot see how the High Court could in any way be an appropriate court for that to be heard. By all means, if the matter relates to the English inshore or offshore region, the High Court seems the obvious place. Indeed, if I understand the Bill, such a matter could end up in the Court of Session, which seems to me to be as perverse in the opposite direction.

It is quite a simple point, but an important one. Through 300 years since the Act of Union, we have jealously guarded our distinctive legal system and we do not, even by some means not intended for that purpose, want to see it eroded. I beg to move.

The Duke of Montrose: My Lords, I am grateful to the noble Lord, Lord Wallace, for moving this amendment. We are all anxious that the legislation should be proper for the devolved powers under the Bill and this reflects some of the worries of the Law Society of Scotland. I wonder again whether this part of the Bill applies to Scotland—whether Scotland has to be included. It would appear that the Government’s view has been that the phrase,

should be sufficient. The other side of the coin is whether there are courts in Wales or Northern Ireland that would serve in this context. I am very interested to hear the Minister’s reply.


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