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12 May 2009 : Column 983

Lord Hunt of Kings Heath: My Lords, I moved my group of amendments; the noble Lord, Lord Kingsland, then moved his own amendment. I have replied to his amendment, and I think that we are at the point where the noble Lord, Lord Kingsland—

The Lord Speaker (Baroness Hayman): My Lords, perhaps I can assist the House. The amendment from the noble Lord, Lord Kingsland, is grouped with the amendment that the Minister has moved, so we are discussing it. The noble Lord, Lord Kingsland, quite correctly spoke to his own amendment. It will be for the Minister to reply, when he winds up on his amendment, to the discussion that has been included on an amendment within this group. It will then be for the noble Lord, Lord Kingsland, to decide whether he wishes to move that amendment in its place on the Marshalled List.

Lord Greaves: My Lords, I was about to blush that I had it completely wrong just then, but I am very grateful to hear from the Lord Speaker that I was right—for once. We are grateful that the Government have looked again at the whole question of remediation, and for the briefing that they sent us. In an interesting discussion of this in Committee, two different considerations were put forward that, in a sense, pulled in opposite directions. One was that the Bill was too prescriptive and needed more flexibility, which is the compensation point; on the other hand, it was suggested that the Bill did not clearly set out the powers to do what is sensible in a particular situation. Quite clearly, there will be situations where complete restoration is the right thing to do, situations—quite small-scale, perhaps—where compensation is the sensible thing, and other circumstances where prevention is required. In many cases, if it is a large and complex site, there might be a mixture of those; the ability to carry out work on a different part of the seabed, as opposed to the ruined part, is also valuable.

The problem, of course, is that that will all depend on what happens in practice and the decisions being made. The enforcing authorities may, in future, be too stringent—probably not, in the view of some of us, yet other people might think that—but in other cases they may let people off lightly. All that we can do is to put forward sensible legislation for a framework that allows what is sensible to take place, then hope that the enforcing authorities do the right thing in each case. There is no way that we can tie up in legislation every situation that will occur; we have to set the framework and urge that what is right is carried out.

My specific question is: although it is not set out in the legislation, will the Government think of giving some kind of guidance to the enforcing authorities, particularly the MMO, on how to carry out that work? It is very important that this is done effectively and quite rigorously, right from the beginning. Having said that, I welcome these government amendments.

Lord Taylor of Holbeach: My Lords, I shall be brief in response to these government amendments, but I shall express my pleasure that the arguments in Committee from my noble friends Lord Cathcart and Lord Kingsland have borne such fruit. The Minister has brought back some comprehensive amendments to clarify what a

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remediation notice may involve, and to explicitly cover the question of remediation and restoration. Having said that, noble Lords have raised some interesting questions; indeed, my noble friend Lord Kingsland has raised some in speaking to his own amendment. I look forward to hearing the Minister’s response to those.

Lord Hunt of Kings Heath: My Lords, I apologise if I misled the House as to which stage we were on. It is always confusing when the Government move the first amendment in a group, which is why I got myself in a tangle there. I suspect that the noble Lord, Lord Kingsland, may speak to his amendment when we come to it in the Marshalled List; in that case I shall respond then, if I may, to the substantive point that he raises. The noble Baroness, Lady Byford, raised the question of whether what I had said in my original response to the noble Lord, Lord Kingsland, could be expressed in legislation. I thought that the noble Lord, Lord Greaves, really answered that point; it would be difficult to do so, which is why we need flexibility.

Clearly, the licensing authorities themselves will need to issue guidance. The noble Lord, Lord Greaves, then asked whether we, as the Government, should issue guidance to the MMO on that important issue. I take the noble Lord’s point and will certainly consider it, because it is important that we understand what is meant on the circumstances in which remediation as opposed to restoration can take place, and the extent to which restoration is appropriate. I doubt whether we can go any further in legislative terms, but it would certainly be important for the MMO to understand the kind of issues that we are debating. Subject to our debate on the amendment proposed by the noble Lord, Lord Kingsland, then, I hope that my amendment finds favour with your Lordships.

Amendment 102B agreed.

Amendments 102C to 102G

Moved by Lord Hunt of Kings Heath

102C: Clause 88, page 52, line 34, after “remedial” insert “or compensatory”

102D: Clause 88, page 52, line 39, after ““remedial” insert “or compensatory”

102E: Clause 88, page 52, line 41, leave out paragraph (a)

102F: Clause 88, page 52, line 43, after “any” insert “one or more”

102G: Clause 88, page 52, line 43, at end insert “(whether or not the steps are to be taken at or near the place where the harm or interference mentioned in subsection (5) has been, is being, or is likely to be, caused or the activity in respect of which the notice is issued is or has been carried on).”

Amendments 102C to 102G agreed.

Amendment 103

Moved by Lord Kingsland

103: Clause 88, page 52, line 45, after “protecting” insert “or restoring”

Lord Kingsland: My Lords, I shall move Amendment 103. The initial debate on this amendment has, in a sense, already taken place with my speaking to it in the appropriate group on the list, so I can take

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what the Minister has said about it as read. In the light of what he said, I have two questions. The first refers to the capacity to make a physical restoration and the second to the cost of having to make it. I respectfully suggest to the Minister that the correct approach to the first question is to ask the following: can the damaged part of the sea be physically restored wholly, yes or no? If the answer is yes, I suggest that the correct approach, subject to the cost, is to undertake complete restoration. If it can be restored only in part, I suggest that the correct approach is the one which the Minister will find under the habitats directive, where the initial aim is to provide the appropriate mitigation or restoration within the damaged area, or the area which is likely to be damaged if the project goes ahead. If it is not possible to restore or to mitigate within the damaged area, there is a requirement in the habitats directive for the developer to find another part of the sea or the estuary where appropriate compensation can be made, so that within a reasonably well defined area of the sea what has been taken away by the developer in area A can be put back in area B. I would very much like the Minister to say that that is an appropriate parallel.

My more worrying concern is the passage of the Minister’s speech referring to cost. He seemed to me to suggest that where an area is physically capable of being restored but the cost is exorbitant—whatever exorbitant means—there will be an obligation to restore it only in part. I hope that I have misunderstood the Minister. I perfectly understand that it might be said that where the cost of restoration was exorbitant, the decision-maker would give consideration to a proposal from a developer that he might make up for the part which is exorbitantly costly by providing an equivalent amount of environmental benefit elsewhere, in a sense, in conformity with what I said about the habitats directive. I would not be happy if the Minister simply says that, where the cost is exorbitant, nothing can be done. That seems to me to drive a coach and horses through the fundamental intention of the legislation so that all the principles which we set out at the beginning could be undermined by a diluted obligation on the wrongdoer to restore. I beg to move.

Lord Hunt of Kings Heath: My Lords, I do not think there is any disagreement between myself and the noble Lord, Lord Kingsland. It is a matter of how this is best expressed in legislation. He mentioned the habitats directive and I refer him to the Environmental Damage (Prevention and Remediation) Regulations 2009, with which I am sure he is also very familiar. In those regulations, there is reference to what is called compensatory remediation. Perhaps I can give an example. If the offender has damaged a wetland breeding habitat for sea birds, we might want to specify as primary remediation that the offender takes certain steps to restore the site which is damaged. However, that may take some time to achieve and, in the mean time, the damaged site will not be available to bird life.

The Environmental Damage (Prevention and Remediation) Regulations 2009 require compensatory remediation to recognise that loss. Therefore, we might also require that while the primary remediation is taking place, the offender takes steps to create a breeding

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habitat elsewhere for the sea birds. An example of what the 2009 regulations term “complementary remediation” is that, if an offender has damaged an area altering the conditions so as to render it unsuitable for animals and plants that used to live there, the authority might require him to create an artificial habitat such as a reef elsewhere. That is why I do not think that there is any disagreement between myself and the noble Lord.

On resources, the point is that there may be a case—it is always risky giving examples—where the damage is slight but the expense is great. In those circumstances, I argue that there needs to be flexibility. I do not think that there is a reason for us to disagree. If the noble Lord is still not satisfied, I am content, without commitment, to consider the matter further before Third Reading, although I am not sure that is entirely necessary.

6.45 pm

Lord Kingsland: My Lords, as always, I am most grateful to the Minister for his helpful response to my remarks. I am reassured by much of what he has said. It would be useful if he could give some further thought to what has been said, not just by me but also by my noble friends Lady Byford and Lady Carnegy, who suggested that some help might be given by recognising, to a greater degree, the substance of what the noble Lord has said today. I do not want him to think that I am anything other than extremely grateful for the distance which the Government have already travelled in this respect.

Lord Hunt of Kings Heath: My Lords, before the noble Lord sits down—I have always wanted to say that—I should say that I would be happy to do that. I have some considerable doubt about whether this can be done satisfactorily in terms of the legislation. Perhaps I may also take the point made by the noble Lord, Lord Greaves, about guidance to be given to the MMO. I am very happy to look at both issues.

Lord Kingsland: My Lords, on that basis, I certainly beg leave to withdraw the amendment.

Amendment 103 withdrawn.

Amendment 103A

Moved by Lord Hunt of Kings Heath

103A: Clause 88, page 53, line 2, at end insert—

“(d) preventing or minimising, or remedying or mitigating the effects of, the harm or interference mentioned in subsection (5);

(e) restoring (whether in whole or in part) the condition of any place affected by that harm or interference to the condition, or a condition reasonably similar to the condition, in which the place would have been had the harm or interference not occurred;

(f) such purposes not falling within the preceding paragraphs as the enforcement authority considers appropriate in all the circumstances of the case.”

Amendment 103A agreed.



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Schedule 7 : Further provision about civil sanctions under Part 4

Amendment 103B

Moved by Lord Hunt of Kings Heath

103B: Schedule 7, page 240, line 5, at end insert—

“This sub-paragraph does not apply in the case of an order made by the Scottish Ministers.”

Amendment 103B agreed.

Clause 95 : Delegation of functions relating to marine licensing

Amendments 104 to 106

Moved by Lord Hunt of Kings Heath

104: Clause 95, page 57, line 30, leave out paragraph (f)

105: Clause 95, page 57, line 35, leave out “and (5)(a)”

106: Clause 95, page 57, line 35, leave out from “register” to end of line 37

Amendments 104 to 106 agreed.

Clause 98 : Register

Amendment 107 not moved.

Amendment 108

Moved by Lord Hunt of Kings Heath

108: Clause 98, page 59, line 31, leave out from “would” to end of line 32 and insert “adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate commercial interest.”

Amendment 108 agreed.

Clause 103 : Power to take remedial action

Amendments 108A and 108B

Moved by Lord Hunt of Kings Heath

108A: Clause 103, page 62, line 17, leave out “the purpose of” and insert “any one or more of the following purposes”

108B: Clause 103, page 62, line 20, at end insert—

“(d) preventing or minimising, or remedying or mitigating the effects of, any harm or interference falling within subsection (3);

(e) restoring (whether in whole or in part) the condition of any place affected by any such harm or interference to the condition, or a condition reasonably similar to the condition, in which the place would have been had the harm or interference not occurred.

(3) The harm or interference mentioned in subsection (2)(d) and (e) is any of the following which has been, is being, or is likely to be, caused by the carrying on of the licensable marine activity—

(a) harm to the environment;

(b) harm to human health;

(c) interference with legitimate uses of the sea.”

Amendments 108A and 108B agreed.



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Schedule 8 : Licensing: minor and consequential amendments

Amendment 108C

Moved by Lord Hunt of Kings Heath

108C: Schedule 8, page 245, line 11, at end insert—

“The Government of Wales Act 2006

2A (1) In Schedule 3 to the Government of Wales Act 2006 (c. 32) (transfer etc of functions: further provisions) paragraph 4 (power to direct that certain functions exercisable by a Minister of the Crown are exercisable in relation to Welsh controlled waters only after consultation with the Welsh Ministers) is amended as follows.

(2) In sub-paragraph (1) (which extends the power conferred by section 58(1)(c) of that Act and specifies the enactments to which it applies)—

(a) omit paragraph (a) (Part 2 of the Food and Environment Protection Act 1985 (c. 48)), and

(b) after paragraph (b) insert—

“(c) the provisions of Parts 4 and 8 of the Marine and Coastal Access Act 2009 (marine licensing and enforcement) specified in sub-paragraph (1A), or

(d) regulations under section 70 of that Act (appeals),”.

(3) After sub-paragraph (1) insert—

“(1A) The provisions of the Marine and Coastal Access Act 2009 mentioned in sub-paragraph (1)(c) are—

(a) sections 64(1) to (5), 66(1), (3) and (4), 68(1) to (3) and 69(1) to (3) (marine licences), so far as relating to items 1 to 6 and 11 to 13 in section 63(1) of that Act (licensable marine activities);

(b) section 98 (registers);

(c) sections 103 and 88(7)(c) (power to take remedial action, and power to require payment of sum representing reasonable expenses of taking such action);

(d) section 104 (power to test, and charge for testing, certain substances);

(e) sections 225(3) and 230(1)(c) (enforcement officers).”.”

Amendment 108C agreed.

Schedule 9 : Licensing: transitional provision relating to Part 4

Amendments 109 and 109A

Moved by Lord Hunt of Kings Heath

109: Schedule 9, page 251, line 10, leave out sub-paragraphs (1) and (2) and insert—

“(1) This paragraph applies in any case where—

(a) immediately before the commencement date, an authority was required to maintain under section 14 of FEPA a register (the “FEPA register”) containing information of any particular description in respect of any particular area,

(b) on that date the authority ceased to be required to maintain a register under that section containing information of that description in respect of that area, and

(c) as from that date the authority is required to maintain a register under section 98 of this Act (the “new register”) containing information in respect of that area.

(2) In any such case, the authority must include in the new register any information falling within sub-paragraph (1)(a) that was contained (or was required to have been contained) in the FEPA register immediately before the commencement date.”



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109A: Schedule 9, page 253, line 43, at end insert—

“Direction under section 58(1)(c) of the Government of Wales Act 2006

13 (1) To the extent that they relate to the abandonment of an offshore installation, any functions exercisable under the provisions of this Part of this Act specified in sub-paragraph (2) are exercisable in relation to Welsh controlled waters by a Minister of the Crown only after consultation with the Welsh Ministers.

(2) The provisions are—

(a) sections 64(1) to (5), 66(1), (3) and (4), 68(1) to (3) and 69(1) to (3) (marine licences), so far as relating to items 1 to 6 and 11 to 13 in section 63(1) (licensable marine activities);

(b) section 103 (power to take remedial action).

(3) In this paragraph—

“offshore installation” has the meaning given by section 44 of the Petroleum Act 1998 (c. 17);

“Welsh controlled waters” has the same meaning as in paragraph 4 of Schedule 3 to the Government of Wales Act 2006 (c. 32).

(4) The provision made by the preceding provisions of this paragraph has effect as if it were a direction made by Order in Council under section 58(1)(c) of the Government of Wales Act 2006 (c. 32) made by virtue of paragraph 4(1)(c) of Schedule 3 to that Act and may accordingly be amended, modified or repealed by any such Order in Council.”

Amendments 109 and 109A agreed.

Clause 112 : Interpretation of this Part

Amendment 110

Moved by Lord Greenway

110: Clause 112, page 67, leave out lines 16 to 20 and insert—

“(a) which is registered in the United Kingdom,

(b) which falls within section 1(1)(d) of the Merchant Shipping Act 1995 (c. 21) (small ships), or

(c) which is exempt from registration under section 294 of that Act;”

Lord Greenway: My Lords, this is a small but important technical amendment dealing with the interpretation of the words “British vessel” in this part of the Bill. The Merchant Shipping Act 1995 draws a distinction between a British ship registered in the United Kingdom and those registered under the law of a British possession, including Bermuda, the Cayman Islands, Gibraltar and the Isle of Man.


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