Previous Section Back to Table of Contents Lords Hansard Home Page

I understand the Minister’s argument regarding exemptions. Indeed, the noble Lord, Lord Greenway, reinforced the need to avoid pettifogging, bureaucratic processes. However, somehow or another, we need to find a way of ensuring that repeated activity can be properly monitored so that environmental damage can be noted. If that is the purpose of the consultation, we are very happy, and I beg leave to withdraw the amendment.

Amendment 100 withdrawn.

Amendment 101 not moved.

Clause 73 : Dredging in the Scottish zone

Amendment 102

Moved by Lord Davies of Oldham

102: Clause 73, page 42, line 16, leave out from “by” to end of line 17 and insert “the Scottish Ministers”

Lord Davies of Oldham: My Lords, Amendment 102, together with the majority of the amendments in this group, is largely technical, and the two amendments of substance are Amendments 108 and 103B.

Amendment 108 has been tabled in response to the eloquent case made in Committee by the noble Lord, Lord Tyler. I was going to lavish great praise on him from this Dispatch Box today but, as he has withdrawn to other pursuits, he will have to be content with the fact that the Government are responding to the case that he made. I have no doubt that the noble Lord, Lord Greaves, will carry back the good news as though it came from Ghent to Aix.

In Committee, the noble Lord, Lord Tyler, sought to change the test that the licensing authority would apply when deciding whether information pertaining to a licence application should be withheld from the licensing register. The wording suggested by the noble Lord was that used in the Environmental Information Regulations 2004, which he commended to the Committee. It would have provided that the disclosure of information could be withheld from the register only to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality was provided by law to protect a legitimate economic interest.

We revisited the wording used in Clause 98(5)(b) and, in the light of the arguments presented by the noble Lord, Lord Tyler, I have now tabled Amendment 108. This amendment would replace the test currently in the Bill with wording equivalent to that in the Environmental Information Regulations 2004, which the noble Lord brought to our attention.

Amendment 103B—the other substantive amendment in this group—removes the requirement that appeals against monetary penalties issued by Scottish Ministers in relation to licensing breaches in the Scottish offshore

12 May 2009 : Column 977

region must be directed to either the First-tier Tribunal or another tribunal. This change is being made at the request of the Scottish Executive and will enable determination of what is considered to be the appropriate appellate body. I am sure that the House will see the advantage of complying with the Scottish Executive’s request in these terms.

As I said, the other amendments in this group are all minor and technical. Accordingly, I beg to move.

Lord Greaves: My Lords, on the second of the amendments that refer to Scottish matters, I think that I have just been given the nod by my noble friend Lord Wallace of Tankerness that it is okay and that we can let it through. On the first amendment, concerning confidentiality, I thank the Minister for looking at this matter again and for effectively doing what my noble friend Lord Tyler asked him to do. It is sensible and much clearer, and I think that it is better legislation.

Last week, I called in on the Grand Committee of the Political Parties and Elections Bill to keep an eye on my noble friend Lord Tyler, and I can say that he is doing sterling work. If the Government respond to his work there in the way that they have done here, then two Bills will be substantially improved. For the moment, I thank the Minister.

The Duke of Montrose: My Lords, from this Dispatch Box, I thank the Minister for explaining the very varied amendments in this group. They indicate the complexities of drafting legislation dealing with devolution, and I am very glad that the Minister’s officials have caught the inconsistencies in the Bill and dealt with the necessary requirements.

Amendment 102 concerns dredging in the North Sea and, if I am not mistaken, we have now found the slot in which the Minister was going to bring forward something about coal. However, I am still slightly puzzled. Considering that in Section D3 under Schedule 5 to the Scotland Act, headed “Coal”, deep and opencast coal mining and coal mining subsidence are reserved matters, why would opencast mining under the sea be a devolved matter, as stated earlier by the Minister? If that is true, when was this power devolved?

Lord Davies of Oldham: My Lords, the position is that if the opencast operation extracting coal from the surface of the seabed is taken out, it will need a marine licence. The authority to issue the marine licence in this inshore position is the Scottish authority. That is why we have the arrangements the way we have.

Amendment 102 agreed.

Clause 78: Submarine cables on the continental shelf

Amendment 102A

Moved by The Duke of Montrose

102A: Clause 78, page 47, line 6, leave out “must” and insert “may”

The Duke of Montrose: My Lords, I move this amendment on behalf of my noble friend Lord Taylor of Holbeach. Clause 78 takes us into a strange field. It says that “nothing in this Part”—which I take to mean the section on the permitting or granting of licences—

12 May 2009 : Column 978

and that the,

once it comes inshore. What is the position currently if the Scottish Government exercise their power to place a wind farm or a wave generator in the offshore area and then want to lay a cable to the shore? Surely, at the moment, there are powers that allow that to happen.

The Minister will be aware that power over interconnectors was devolved to Scotland a little while ago. Does the definition of an interconnector not extend to the Scottish offshore area? How will this measure interact with that provision? The current wording of subsection (2) states that the authority,

At this stage none of us can know what might be argued as falling within that description. The inshore area is likely to be an area with great sensitivity to disruption or degradation. Possible routes for the cable might be various within the area, or they might be better in a neighbouring area. So the phrase “must grant” is too rigid a power to place in the hands of what will really be the developer, let alone anyone else. I would be glad to hear the Minister defend this term.

Lord Hunt of Kings Heath: My Lords, I hope I can reassure the noble Duke on this matter, although I readily agree with him that it is complex. It has to be read alongside the United Nations Convention on the Law of the Sea, which I think adds to the complexity of the general issue.

A coastal state’s ability to regulate submarine cables is tightly defined by the UN Convention on the Law of the Sea. Articles 58, 77 and 79 of UNCLOS, as it is popularly known, do not permit a coastal state to delineate the route of cables or regulate operations associated with the freedom to lay or maintain cables, on the continental shelf or in an exclusive economic zone, that are not involved in the exploration or exploitation of natural resources, or connected to an artificial island, installation or other structure.

This means that there are four scenarios for which we have to cater. First, the rights given to the laying and maintaining of submarine cables under UNCLOS do not extend, as I said, to those cables that are involved in the exploration or exploitation of natural resources, or those connected to an artificial island, installation or other structure. To answer the noble Duke’s question, these cables—such as those running to or from offshore wind farms—will require a marine licence, just like any other marine licensable activity, from the appropriate licensing authority as defined in Clause 110. This is regardless of whether they are in the territorial sea or the continental shelf.

The second scenario is that the rights given under UNCLOS do not extend to any cable that is entirely within the territorial sea. Again, these cables will require a marine licence from the appropriate authority as defined in Clause 110.

The third is that activities relating to the laying and maintaining of cables that are not connected with the exploration or exploitation of natural resources, or

12 May 2009 : Column 979

connected to an artificial island, installation or other structure, no part of which is in the territorial sea, are fully protected under UNCLOS and are therefore not licensable at all by coastal states. They tend to be telecommunications cables.

6.15 pm

The fourth scenario is activities relating to the laying and maintaining of those cables that are not connected with the exploration or exploitation of natural resources, or connected to an artificial island, installation or other structure, but parts of which are in the territorial sea. These sets of cables are covered by the amendment to which the noble Duke has just spoken. Under UNCLOS, a coastal state cannot apply any regulatory control over that part of these cables that lies outside of the territorial sea.

For that part of these cables that lies inside the territorial sea, the coastal state can apply conditions to the laying of the cable for environmental protection reasons, but it cannot prevent the laying of that cable or regulate the maintenance of those cables. It is because of this restriction that Clause 78(2)(a) states that the licensing authority,

in respect of this part of those cables. Accepting the noble Duke’s amendment would put us in breach of our obligations under the UN convention.

Electricity transmission cables will need a marine licence from the appropriate marine licensing authority, unless they are considered ancillary to a nationally significant infrastructure project. In that case, development consent from the IPC covering the main project will also cover the ancillary transmission cables and deem a marine licence to be granted if the development is in English territorial waters or offshore waters adjacent to England or Wales.

I hope that that is a full explanation. If the noble Duke wishes to consider it between now and Third Reading I would entirely understand, because of the complexity. We think that we have got it right in relation to the requirements under the UN convention.

The Duke of Montrose: My Lords, I am most grateful to the Minister for taking the trouble to give us a really extensive lesson in the whole question of undersea cables and all the ins and outs. It is interesting that the provision saying “must” is covered by various caveats under the United Nations law of the sea. I shall read very carefully what he had to say, and I beg leave to withdraw the amendment.

Amendment 102A withdrawn.

Clause 88: Remediation notice

Amendment 102B

Moved by Lord Hunt of Kings Heath

102B: Clause 88, page 52, line 31, after “remedial” insert “or compensatory”

12 May 2009 : Column 980

Lord Hunt of Kings Heath: My Lords, in moving Amendment 102B I shall speak also to the amendments grouped with it. When we debated Clauses 88 and 103 in Committee, there was concern that the clause as drafted would not enable the environment to be restored to the condition it had been in before the harm or interference had been caused. If this interpretation were correct, it would mean that the clauses would not achieve the intention that we had agreed was appropriate, which was that people should be made to put right the harms that they have caused. I agreed to look at these clauses and have tabled these amendments to ensure that harm or interference can be properly addressed.

Clause 88 enables the enforcement authority to issue a remediation notice to make someone remediate the harm they have caused where they have carried out a licensable activity and that activity has involved the commission of an offence under Clause 82(1). Perhaps the person breached the conditions of their licence and so damaged the environment, or perhaps they did not have a licence at all when they should have had.

Clause 103 gives the licensing authority power to take remedial action. It enables the authority to carry out any works, whether these are to protect the environment or human health, or to prevent interference with legitimate uses of the sea, where a licensable activity has been undertaken without a licence. This power already exists under Schedule 10 of the Food and Environment Protection Act.

My amendments amend Clause 88 to allow restoration of the environment under a remediation notice as well as providing for compensatory steps elsewhere if remediation at the site of harm itself is not reasonably practical. In my aims on enforcement under the Bill, I have been clear that enforcement action should be proportionate to the offence. Remediation notices should be proportionate to the scale of the harm to the environment, human health or interference to other legitimate uses of the sea. Financial gain by an offence should not be targeted by use of a remediation notice—other provisions under this part, such as variable monetary penalties, allow such gain to be addressed.

In some cases, the costs of restoration to the condition the environment was in prior to the harm or interference, even if technically possible, may be disproportionate to the benefits to be achieved. The ability to order remedial steps not directly connected to the harm itself reduces the likelihood of remediation notices being successfully challenged, on the basis that they are unreasonable according to all the circumstances of the case.

I have also tabled Amendments 108A and 108B to Clause 103. This clause uses the same sort of wording as in Clause 88 and suffers from a similar risk of being interpreted in a narrow sense—that the authority may only carry out works to protect what is left of the site, if anything, after the harm has been caused, rather than allowing it to put right the damage, or to prevent further harm, as intended.

In addition to being able to take steps to protect what is left of the site of damage, I want authorities to be able to carry out remedial works for the purpose of preventing or minimising, or remedying or mitigating, the effects of harm to the environment or human

12 May 2009 : Column 981

health, or interference with legitimate uses of the sea. Clearly, the ability to prevent further harm is a desirable objective, which, while it is unlikely to have frequent application, would be a noticeable gap in our provisions if we did not seek to plug it.

The power to take protective or preventive works may be needed at the site of damage or elsewhere, such as in an area to where contaminated material has been transported. However, I have not extended the power to take compensatory steps away from damaged sites. We anticipate that the enforcement authority will need to use the power under Clause 103 instead of Clause 88 only where there is a particular need to do so; for example, where the offender cannot be readily identified. The extended nature of Clause 88 as amended is not needed for Clause 103, since we would expect the enforcement authority to use Clause 103 to take positive steps to address the harm caused, rather than to seek to compensate for it.

I hope that noble Lords will accept that we have listened carefully to the debate in Committee and that my amendment meets the main points and concerns that were raised. I beg to move.

Lord Kingsland: My Lords, I have tabled Amendment 103 in this group. Its purpose at the time I tabled it was to add the expression “or restoring” to Clause 88(9)(a). I am delighted to say that the Government have, as the Minister explained, tabled their own Amendment 103A which, except with one hesitation that I shall express in a moment, seems to cover the problem I had identified entirely. I am extremely grateful to the Minister for once again meeting our concern.

My hesitation may be dispelled immediately by the Minister if he gives the reply that I hope he will. In his Amendment 103A, he uses the expression, at the beginning of the relevant paragraph,

My question is this. What do the words “whether in whole or in part” mean? Do they mean, as I hope the Minister will say, that if part of the relevant location in the ocean—and only part of it—is damaged, then, plainly, only part of it needs to be restored? If that is what the amendment means, I am entirely content. If, however, it might be said to mean that the obligation to restore might be reduced, because of some set of circumstances, to only a partial restoration, then the Minister’s amendment does not do what I would have thought would have been appropriate.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord, Lord Kingsland. I entirely understand why he has raised that point with me. We would usually want the enforcement authority to be able to require steps aimed towards restoring the site of damage to the state it was in before the harm occurred. This might consist of measures such as the dredging or capping of unlicensed deposits.

One has to accept that taking such active steps to restore a condition at sea might not be possible; or it might cause further damage in taking the steps to do

12 May 2009 : Column 982

so; or it might be expensive relative to the gain achieved; or it might be a case where the best course of action is to rely on natural recovery rather than active steps for primary remediation. However, if the harm is such that the site itself cannot or should not be restored, should that mean that an offender cannot be made to make some redress for the harm they have caused? We do not think that that is right, which is why my amendments allow for remedial steps to be ordered at a place other than where the harm occurred.

In effect, these are steps taken at one place to compensate for damage caused in another. Such steps might be the installation of artificial reefs to make recompense for the damage to the seabed; or the case might be such that the authority wants the offender to make recompense the other way. I do not know whether that reassures the noble Lord, but the aim is to have a practical approach, starting from the premise that we want steps taken to restore the site of damage to the state it was in before the harm occurred. But there might be some circumstances where that is not entirely appropriate, and I aim to give those. That is why my amendment is worded as it is.

We have to develop enforcement guidance which will provide greater clarity for operators and allow for what, after all, is a developing area to be incorporated into practice. If the noble Lord, Lord Kingsland, is not satisfied, I would have to say to him that I believe that there is some room for a degree of flexibility here.

Baroness Byford: My Lords, before my noble friend comes back, might I clarify whether the Minister’s amendments are saying, in other words, that if you cannot restore the site to its former state then some other action or area of the sea within that sort of area might be given as compensation for the damage done? I was not absolutely sure, because using “compensatory” suggests that if something is not perfect then it is nearly quid pro quo—that you give something else where it cannot be renewed as it formerly was. I do not think that is quite what my noble friend was after.

6.30 pm

Baroness Carnegy of Lour: My Lords, with the leave of the House and also before the Minister comes back, I ask whether the amendment should not say what he has said to my noble friend Lord Kingsland. At the moment, it could be read as simply restoring in part the condition of any place, in which case people could get away with murder. I do not know what my noble friend will say, but I would have thought that the amendment should actually say what the Minister has said.

Lord Greaves: My Lords, I hesitate to try and bring the Minister to order, but we are on Report and we risk descending into a Committee sitting if we are not careful. I wonder if it would help if we all say what we want to, ask our questions and the Minister then replies. In no way do I suggest that the questions asked, for example by the noble Baroness, have not been extremely helpful. I want to briefly welcome this group of amendments on behalf of the Liberal Democrats—

Next Section Back to Table of Contents Lords Hansard Home Page