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Lord Hunt of Kings Heath: My Lords, I am sorry that the noble Lord, Lord Wallace, thinks that I was stretching credulity when we discussed this in Committee. I am ever-hopeful about our relations with the Scottish Parliament and Executive, but let me try again to respond to what is clearly a very interesting amendment. It looks reasonable, but I have taken further advice since Committee, and the amendment has serious implications that might set a legal precedent, which is enough to get my advisers worried. We are not aware of any precedent in post-devolution legislation which limits the possibility of raising an action against Scottish Ministers in the Court of Session. Even the Scotland Act and the Human Rights Act do not contain such a provision and leave the question open to the normal rules of jurisdiction. The noble Lord will understand that we do not want to take a different approach, in principle, in the Bill.

Clause 59(6)(a) relates only to the English inshore and the Welsh inshore region. There is a mirror provision in the Marine (Scotland) Bill for the Scottish inshore region. As regards Clause 59(6)(b), its sole purpose is to provide that challenges relating to decisions about the offshore regions are brought in superior courts. Which superior court it is brought in will be determined by the normal rules of jurisdiction. In other words, an applicant can go to any court that comes within the description of a superior court and the court itself can decide whether it has jurisdiction or not. The Bill does not require matters to be referred to the High Court; there is no preference for the English or Welsh system over the Scottish courts. In practice, most, if not all actions that may be raised against a marine plan or the amendment of a marine plan, for an area within the Scottish offshore region, will be heard in the Court of Session. However, UK businesses operating in UK waters offshore from Scotland should, we believe, have the right to bring a case in the High Court if they consider that to be the most appropriate court.

As the clause is drafted, it is left to the courts to determine where it is most appropriate for an application to be heard. I understand that that follows the normal rules of jurisdiction. Our expectation is that cases related to plans in the Scottish offshore region will go to the Court of Session and it is most likely that the High Court would decline jurisdiction over purely Scottish cases. Cases involving both UK and Scottish Ministers may be more complicated, because they relate to the Secretary of State’s actions in agreeing to the plan in the Scottish offshore region, but there is nothing in the Bill to prevent those cases being heard in the Court of Session and no court is set out as more important than another. The courts themselves will be able to decide each application on its merits and, of course, Ministers could apply to a court to decline jurisdiction if they considered the decision inappropriate. Put simply, it is better that cases are determined on a pragmatic case-by-case basis than by reference to rigid rules. However, our major concern is using this Bill to depart from current practice and precedent.

Lord Wallace of Tankerness: My Lords, I am grateful for that explanation, which is slightly fuller than the one we got in Committee. I am still not sure what the precedents are for cases which involve Scottish Ministers and Acts relating to Scotland, either territorially or at

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sea, being heard in the High Court. However, I take the Minister’s point that there could be circumstances in which the Secretary of State might be involved, and the action could involve other marine plans, where there might be some sense in bringing them all together in one court.

I will carefully consider what the Minister has said. It is not an issue that I want to push at the moment, but we must always be rather careful. I think that it is probably a precedent in one direction, and he sees it as a precedent in another. However, that is probably sufficient for us to go back and look at this again. I beg leave to withdraw the amendment.

Amendment 98 withdrawn.

Amendment 99 not moved.

Amendment 99A

Moved by Lord Hunt of Kings Heath

99A: Clause 61, page 34, line 19, leave out “57” and insert “(Meaning of “retained functions” etc)”

Amendment 99A agreed.

Clause 65 : Notice of Applications

Amendment 99B

Moved by Lord Greaves

99B: Clause 65, page 37, line 10, at end insert—

“(2A) In subsection (2) “persons likely to be interested” includes each principal local authority whose area includes or is adjacent to a location or an area or part of an area that is the subject of the application.”

Lord Greaves: My Lords, we are now leaving Part 3, on planning, and moving on to Part 4, on licensing, so we are making some progress on the Bill. I pay tribute and give my thanks to my noble friend Lady Hamwee for the tremendous work she did, with her great expertise in terrestrial planning, on the planning parts of the Bill. It has been a great help to me and to our party and I believe that it has helped the House. The Government’s positive response on planning issues and some of the government amendments have been very helpful indeed. I thank them for that.

We move on to licensing. The purpose of this amendment is specifically to insert principal local authorities as consultees on marine licensing applications. In Committee I moved a rather complex amendment setting out what principal local authorities were and so on. We all know what they are; they are county councils, district and borough councils and unitary authorities. The Government said in Committee that they did not want lists to appear in this part of the Bill. I have specifically tabled this amendment so that it is not a list but a specific reference to local authorities. In a moment I shall explain why it should be in the Bill.

This amendment is not as wide as the amendments I moved in Committee, which concerned a general duty to consult local authorities about everything. The Government, not unreasonably, said that that was too wide and that specific local authorities that were specifically relevant to particular applications would

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obviously be consulted. The amendment would apply to relevant applications in the area of a local authority or adjacent to it.

We return to the relationship of the MMO and the new marine regulatory system with territorial decision-makers, with coastal communities—which we discussed in some detail last time—and, particularly, with local authorities. It has been said that we do not want to put any further administrative burdens on the MMO. I do not believe that we are doing that at all by putting local authorities on the face of the Bill if the Government are saying that the relevant authorities will get consulted in practice anyhow. I suspect that that is what the Minister is about to tell me. The marine licensing functions include planning functions and a range of other functions that could impact on what I would call local authority interests—the decision-making processes of local authorities representing their local communities.

I had another look at this interesting document called A Strategy for Promoting an Integrated Approach to the Management of Coastal Areas in England, which we received some time ago, just to see what the involvement of local authorities is within that strategy. I have to say that I was disappointed. Under “Marine Licensing” there is a little flow chart, a simple one that I can understand, with “Licensing decisions” in the middle. The feed-in to that is “Marine Policy Statement”, “National Policy Statements”—which I find slightly interesting but will not pursue now—“Marine Plan” and “Stakeholders”, which has now forced me to say that word. I assume that local authorities are simply included among the stakeholders. I think that that is very unsatisfactory. As for marine licensing, as far as I can see, there is no other specific reference in this document to “local authorities”, which seems to be a mistake.

5.45 pm

On page 25 of the document there is an interesting panel setting out what it calls a “desk study” to explore the practical implications of proposals for marine planning licensing and the Marine Management Organisation in coastal areas. The word “licensing” does not appear here but the word “planning” appears several times. It says:

“A number of key messages emerged from both case studies”—

there was one in the Thames estuary and one in south-west England, or relating to those places—

Fair enough. One assumes that local authorities might be included there. The third bullet point says that,

In a further flow chart it defines local authorities as being decision-makers—so there is something there. Then, it says that,

I am not quite sure what “democratically accountable” means for the marine environment and the issuing of marine licences, including those on planning matters, unless it includes the democratic representatives of the coastal areas; in other words, the principal local authorities.

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On page 26, we have an astonishingly complicated flow diagram which I have great difficulty understanding. I could not work out whether it reminded me of one of those integrated circuit boards that I never understood or whether it is a complicated version of the Tube map. It has 23 different types of organisations, statements or whatever in it, with arrows going in all sorts of directions. It includes one blob labelled “Local authority”, with an asterisk on it saying that this “indicates decision-making organisation”. However, the local authority and the local strategic partnership and one or two things connected with it seem to be in a little whirlpool—or perhaps it is an eddy—at the bottom of the chart, and not really related to its main functions. “Coastal stakeholders” all appear completely isolated at the bottom and only relate to the marine policy statement and plan and national policy statements. I do not quite understand how that works.

The impression I get from looking at that is that local authorities are not regarded as the very special and rather different bodies which I believe that they are. They are special and different for two reasons. First, they have a lot of statutory responsibilities which interact and overlap with those of the Marine Management Organisation. That is particularly the case in the inshore areas, especially along the foreshore and the coast itself. They include fairly obvious ones such as planning, plan-making, development control; economic development functions, which are ever more important among local authorities; highways and transport, tourism and recreation functions, which are crucial on the coast; and environmental responsibilities whether environmental health, food hygiene or litter, and other such amenity issues. There are other responsibilities which noble Lords will readily bring to mind. As they have these important statutory responsibilities which will be affected by the MMO’s decisions, the Bill should state that local authorities are at the very least statutory consultees.

The second reason why local authorities are different is that they are democratically elected bodies representing the people who live along the coast. For that reason alone they ought to be set aside as something different from all the other consultees. It seems fairly clear to me that acceptable wording could be arrived at to do what I am asking to do. I ask the Government, at this late stage of the Bill in this House, nevertheless to consider this again. I beg to move.

Lord Taylor of Holbeach: My Lords, I support this amendment in its general objectives. It follows one moved in Committee by the noble Baroness, Lady Hamwee. In a subsequent debate we probed the degree to which local authorities were to be consulted on licence applications, and the noble Lord, Lord Greaves, has done so again today. Indeed, we believe that local authorities’ participation in decision-making is highly desirable. I recollect that I came away from the previous debate assured by the Minister that this would be part of the procedure. I hope he can give us that assurance today.

Lord Davies of Oldham: My Lords, I was already quailing in front of the noble Lord, Lord Greaves, in his assertions on this amendment, which we did discuss

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in Committee. Obviously I did not give him sufficient assurances then. As he has now been joined by the noble Lord, Lord Taylor, I can feel the pressure of force majeure.

Clause 65 places on the licensing authority an obligation to publish, or require the applicant to publish, an application for a marine licence in a manner that is,

It is the Government’s view that that would in all circumstances encompass local authorities whose areas are likely to be affected by the application without a specific reference in the Bill to do so. Other legislation uses exactly that phrase without further qualifying it in the way that the amendment seeks to do.

We think that that is the right approach and that is why we resisted the amendment in Committee. However, I have listened to the strength of feeling expressed by the two noble Lords who have spoken today and it is clear that the assurances we gave in Committee are not sufficient. Therefore, we will look further at this issue between now and Third Reading. On that basis, I hope that the noble Lord will think that he has pressed the Government far enough today.

Lord Greaves: My Lords, I was looking forward to a bit of exercise but the Minister has just persuaded me that we should not have it. I congratulate him on that and thank him for it. If the Government were to look at terrestrial legislation they would see that under planning legislation it is very often written down that appropriate planning authorities, for example, need to be consulted on planning applications. Indeed, parish councils have a right to be consulted on such applications. In the whole of the plan-making process there is a complex system of formal consultation which is set out in the legislation. I accept that we are talking about licences, but I suspect that if we looked at licensing legislation as well we might find that the same things applied. I am not an expert on that, but certainly planning legislation on planning applications, for example, clearly sets out that local authorities are statutory consultees if they are not the authority to which the application has been made. However, I heard what the Minister said and I thank him for it. I hope he can find a way of putting it in the Bill at Third Reading. As I say, local authorities are different in kind from all the other authorities that exist, because they are the democratically elected representatives of the local people. On that basis, I beg leave to withdraw the amendment.

Amendment 99B withdrawn.

Clause 71 : Exemptions specified by order

Amendment 100

Moved by Lord Taylor of Holbeach

100: Clause 71, page 41, line 17, at end insert—

“( ) The appropriate licensing authority for an area may only issue an order under subsection (1) where that order does not compromise the requirements under section 66.”

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Lord Taylor of Holbeach: My Lords, I have tabled Amendment 100 in order to draw the Minister out a little further on something he said in Committee. Indeed, one hopes it will meet with similar success. He gave the impression that the power to make an exemption under Clause 71 was subject to the criteria under Clause 66; the appropriate authority has to have regard to protecting the environment and so on.

I would welcome a little more clarification on how that is to happen. The two chapters appear to have been drafted completely separately with no obvious crossover. Obviously, we would want to be certain that no exemptions are granted that would have a significant environmental impact. Clause 71 seems to give authorities the power to exempt a damaging activity on the quiet in the hope of avoiding having to register it and admit to the damage they had permitted.

Amendments 101 and 107 relate to the noting of exempted licences on the register. I understand that the Government are consulting on the matter, and quite rightly. They are concerned that planning a burden of registering activities that are exempted precisely because they are harmless and very small scale could place a disproportionate burden on some very small businesses.

While we would certainly not want to increase the regulatory burden and are very pleased at the harmonisation that is happening in the Bill, if exemptions are used irresponsibly by the appropriate authority, the register could end up with some very worrying holes.

Will there be any sort of assessment by the authority as to whether it would be wise to include an exempted activity on the register? It is not just the possibility of exempting environmentally damaging activities, which I covered in talking to my first amendment, it is also the possibility of exempting activities which would have an impact on another activity where it would be wise to keep tabs on what is happening in the environment.

I would welcome any reassurances the Minister can give us that exemptions will be used wisely and that there will be some check on their abuse. I beg to move.

Lord Greenway: My Lords, the noble Lord, Lord Taylor, did mention the drawbacks concerned with some minor activities and I would like to reinforce that point.

I think his amendments are too widely drawn in many ways. There are day-to-day activities that go on. For instance, Trinity House might need to lay buoys or ships might need to anchor and other things like that. They should not have to be put on to a register every time they happen.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord for raising these issues again.

On Amendment 100, we certainly agree that it is important that in the use of the exemption-making power under Clause 71 the licensing authority must adhere to the requirements outlined in Clause 66. They are factors that should be taken into account when determining what activities are appropriate to

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provide an exemption for, and whether that exemption is a blanket exemption or is to be given conditionally. It is reasonable to expect the licensing authorities to use the same fundamental principles that will be used to determine the impact of individual licence applications when making decisions on what activities are appropriate to be carried out without the need for a licence. We do not believe that there is a problem in relation to the Bill, but I have listened to the noble Lord and am prepared to give this matter further consideration. If I believe that we need to make a change, I will bring back an amendment at Third Reading to deal with the issue that the noble Lord has raised.

6 pm

So far as concerns Amendments 101 and 107, I hope that I can give reassurance in the way that the noble Lord has suggested. Placing exempted activities on the licensing register where appropriate provides transparency for those operating in the marine environment and allows each licensing authority to take into account the potential cumulative effects of both exempt and licensed activities undertaken in its area. We would expect many exempted activities to be registered in this way, and we have provided a clear mechanism in the Bill for that to happen.

As I said in Committee, our concern is that a blanket requirement in the Bill would mean that some extremely minor, low-risk activities which would be exempted by order and would have a negligible impact on the marine environment would have to be listed. Examples of the kinds of activities that might fall into this category are already listed in the Food and Environment Protection Act 1985 (FEPA) exemptions order and the Deposits in the Sea (Exemptions) Order 1985. I think that it is a question of proportionality. Would it be proportionate for those launching a vessel, dropping an anchor in port or, as the noble Lord, Lord Greenway, suggested, depositing a buoy around a hazard to be under a statutory duty to notify the licensing authority each time that they carried out such an activity? We would be concerned about significant and unnecessary additional burdens being placed on many industries, not least the fishing and shipping industries. Our approach to using the exemption orders will achieve the same aims that the amendments are striving for—the ability to monitor cumulative impacts and ensure protection of the environment—but without the unnecessary additional burdens on already challenged industries.

The public consultation on the exemptions order that we are soon to launch will canvass public views on whether each activity that we propose to exempt should be required to be notified to the licensing authority and then be placed on the licensing register. We would prefer to leave some discretion until we have seen the outcome of that public consultation. However, I reassure the noble Lord that our clear intent is to ensure that we can monitor activities which may have a cumulative impact on the environment.

The noble Lord asked whether the exemptions would be used in an inappropriate way, but of course that is not our intention. I hope that I have been able to give him the reassurance that he requires.

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Lord Taylor of Holbeach: My Lords, I thank the Minister for that response and particularly for his very positive reply on Amendment 100. I hope that it will be possible to tie in the two principal clauses to make the matter clearer and indeed to make the Government’s intention clear in the Bill.

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