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The noble Lord, Lord Rodgers of Quarry Bank, raised interesting issues relating to the appointment of privy counsellors. A privy counsellorship is not an honour, it is an appointment, and in the case of politicians normally goes only to serving Ministers of the Crown, who are actually expected to play a part in the proceedings of the Privy Council. There are, however, exceptions where various politicians have been appointed to the Privy Council without ever having held ministerial office. In these cases, the secrecy enjoined by the privy counsellors’ oath is not used as an excuse for concealing information, but to enable senior members of opposition parties to be given briefings on confidential terms. Such an arrangement is entirely voluntary, and anyone not wishing to be briefed on such terms may decline the invitation. Having accepted a briefing on privy counsellor terms, however, he or she is understood to have agreed to treat it as confidential.

Noble Lords will know that membership of the Privy Council is for life, and that as a result there are 545 living privy counsellors, most of whom are clearly not Ministers. That explains why we have rather more than the 40 of Henry VIII. The 545 play no part in the Privy Council’s day-to-day business and are not summoned to Privy Council meetings. There are only two occasions when the whole of the Privy Council is

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summoned to a meeting: on the marriage of a reigning Sovereign and, on the accession of a new Sovereign—the Accession Council.

Noble Lords will also be aware that, from time to time, a committee or other body is set up, comprising privy counsellors, usually distinguished people who either never were, or have ceased to be, Ministers. These bodies do not form part of the official Privy Council mechanism. They are not committees of the Privy Council; they are committees of privy counsellors. They do not report to the Lord President of the Council, and they are not serviced by the Privy Council Office. Examples include the Newton committee and the Butler committee, cited by the noble Lord, Lord Norton of Louth; he raised some very interesting suggestions regarding more and better use of privy counsellors, as members of parliamentary commissions of inquiry, for example.

I welcome such ideas and I agree that, on occasion, such commissions might well be preferable to judicial inquiries because of time constraints, although I hope noble Lords will agree that there will never be an inquiry as lengthy or as costly as the Saville inquiry. I will take these ideas back to some of my colleagues, who have considered them in the past, but they are certainly worth considering again. I am much attracted by the suggestion that Select Committee chairmen should be privy counsellors.

The Privy Council has a number of standing committees: the universities committee, the baronetage committee and committees on the Channel Islands and the Isle of Man. There are also various ad hoc committees.

The noble Lord, Lord McNally, referred to what he called the shameful case of the Chagos Islands. As he said, my right honourable friend Jack Straw stated in a programme this morning that, with hindsight, he should have engaged in parliamentary scrutiny to debate the issue of the Chagos Islanders. I am sure that that is the case, and while I understand the concerns expressed, it is right to stress that the Privy Council is not a sinister counterbalance to the elected Government, or a means of avoiding parliamentary scrutiny. Ministers are accountable to Parliament for all matters conducted through the Privy Council, and almost all important statutory Orders in Council are subject to parliamentary procedure.

There are those who argue that the Privy Council is an outdated institution. I do not agree. There are those who will argue that the Privy Council is unconstitutional and that there is a lack of transparency and democratic accountability, but that is not the case. There are those who will put forward arguments that prerogative powers have no place in a modern democracy, and that is something that the Government continue to review. The Governance of Britain Green Paper said:

“The Government believes that in general the prerogative powers should be put onto a statutory basis and brought under stronger parliamentary scrutiny and control. The Government also intends to undertake a wider review of the remaining prerogative executive powers and will consider whether, in the longer term, all these powers should be codified or put on the statutory basis”.

The specific powers discussed in the Green Paper were deploying Armed Forces abroad; ratifying treaties; dissolving Parliament; recalling the House of Commons

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and placing the Civil Service on a statutory footing. Measures on ratifying treaties and on the Civil Service were included in the draft Constitution Renewal Bill, published last year, and the Government hope to introduce the Bill for carry-over later this Session. The Government have also published proposals for a more formalised role for Parliament in decisions for deploying troops overseas. My right honourable friend the Leader of the other place is taking forward work on those other measures.

In conclusion, the Privy Council is one of those rather odd bits of the UK constitution, which none the less works extremely well. I am proud to be its president. If we were starting from here, we might not invent it, but, in practice, it fulfils an important role in our constitutional and government arrangements. Long may it continue.

Marine and Coastal Access Bill [HL]

Copy of Bill
Explanatory Notes
Amendments
1st Report Delegated Powers Committee
1st Report Constitution Committee
11th Report Joint Committee Human Rights

Report (2nd Day)(Continued)

8.32 pm

Amendment 110B

Moved by Lord Wallace of Tankerness

110B: Clause 113, page 68, line 32, at end insert—

“(7A) An order designating any areas as an MCZ in so far as it restricts exploitation of fisheries resources shall not come into effect until agreement has been reached that any such restriction will apply to vessels from all member states of the European Union.”

Lord Wallace of Tankerness: My Lords, the effect of this amendment would be that any order made under the Bill designating an area as a marine conservation zone, in so far as the order includes provision to restrict exploitation of fisheries resources, should not take effect until it had been agreed that the restriction would apply to vessels from all member states of the European Union.

As your Lordships will recall, we touched on this issue in Committee. Indeed, an amendment moved by the noble Duke, the Duke of Montrose, facilitated a debate on it, and it attracted interest from many parts of the Chamber. With regard to fishing resources beyond the six-mile limit, there is a requirement that things take place under the common fisheries policy. Therefore, any restriction or anything that interferes with or controls fishing in that area would require the agreement of the European Union before it could apply. However, the Minister indicated that of course it is possible for Ministers to put tighter restrictions on UK-registered vessels but not on other EU vessels which may well have long-standing, historic fishing rights within that area. That gives rise to the concern that it will lead to strong feelings of resentment among those who ply their trade in British fishing vessels, if they were to see their opportunities restricted where vessels from France, Spain, the Netherlands or Ireland were, in the very same waters, able to continue fishing.

If the overall purposes of this Bill are to be effective, it is generally important that all those with an interest in the marine life of the nation are part of those who

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subscribe to what happens under the Bill. First, if an important sector of the marine community—namely, the fishing industry—feels alienated by what happens under the Bill it could go a long way to undermine its effect, not just in respect of marine conservation zones but more generally. Secondly, if we do not subject other European nations’ vessels to the same restrictions, any conservation benefit that might accrue through restrictions on UK vessels could readily be undone by the fact that non-UK registered vessels would be able to carry on with no such restrictions. Therefore, the conservation effect would be diluted.

It is clear that the Government share these concerns, as has been said, but also that they have no way of ensuring that consent will be given or that other member states will subscribe to agreeing to these restrictions. In a letter to me on 23 March, the noble Lord, Lord Hunt of Kings Heath, stated:

“The UK Government cannot guarantee the agreement of other Member States to its proposals for restrictions beyond 6 nautical miles”.

He went on to observe, quite fairly:

“Yet, the commitment in Europe under the Marine Strategy Framework Directive will influence the restriction of fishing where necessary and help ensure adequate levels of protection for a network of marine protected areas. Other Member States will therefore also need to provide adequate protection for their protected areas if they are to meet their legal obligations. So there will perhaps be a mutual interest in adopting a more supportive stance towards marine nature conservation in the future”.

That is obviously a hope and an expectation; nevertheless, as the Minister himself said, there is no way in which there can be a guarantee. It would be very unfair to our fishing industry to subject it to restrictions that do not apply to other countries’ fishing vessels. The purpose of this amendment would almost be as a goad, as it were, to pressure the Government to ensure that they secure agreement, because that is in the interests of not only our fishermen but of conservation. I beg to move.

The Duke of Montrose: My Lords, I am most grateful to the noble Lord, Lord Wallace of Tankerness, for bringing us back to this topic, because a great deal needs to be settled and it will cause great anxiety among the people that he mentioned. I shall also speak to Amendments 119 and 120, both in the name of my noble friend Lord Taylor. This group of amendments refers to an issue that was labelled in Committee as the whale in the Jacuzzi. The Minister tried his best to answer our concerns but, as is so often the case where EU or international law is concerned, he was reduced in the last resort to saying, “We just don’t have the power”.

The amendment from the noble Lord, Lord Wallace, returns us to the uncomfortable fact that the network of marine conservation zones from six nautical miles to the outer limits will be ineffective without EU approval. Not only will any marine conservation zone outside that six-mile limit be unable to achieve its objectives, since no restrictions can be imposed on foreign fishermen that breach the fisheries agreement, but it is likely that—somewhat as the noble Lord, Lord Wallace, was explaining—they will instead put UK vessels at a disadvantage compared to their EU colleagues. They will also have to bear a disproportionate amount of the burden of restoring our fish stocks.



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The Minister and his officials, in their draft strategy which at the moment applies to waters adjacent to England and Wales, have given us a very useful update on how EU and UK negotiations are progressing. Can he tell us how many UK representatives are involved in those negotiations and how they are dealing with devolved issues? Is it a requirement that the UK should draw up the EU zones according to the rules, which I gather are laid down and well understood, and submit them for acceptance by the European Community or do we expect the Community to designate further zones? Although I cannot entirely follow the exact wording of the amendment, because of my concerns about the ineffectiveness within the offshore zones, I do not think the inshore zones should wait for the very slow wheels of the EU to turn. I would appreciate any information which the Minister can give the House about how long he expects the current situation to stand. I would particularly welcome a rough idea of how long it will take to get zones between the six and 12-nautical-mile boundaries agreed under Council Regulation 2371/2002, which we discussed in Committee.

We also tabled Amendment 119 to probe a little further what the Minister said in Committee about the extent of sea fishing defence. I understand from the debates in Hansard that the defence covers only legal sea fishing and that subsection (3)(b) would kick in and disallow any use of that defence if the common fisheries policy were ever changed to allow for sea fishing outside the 12-nautical-mile limit to be restricted at a national level.

Amendment 120 raises the concern from the Royal Yachting Association, which felt that the Government were being rather timid in their interpretation of the United Nations Convention on the Law of the Sea. Its interpretation of Articles 56 and 58 would suggest that we are able to regulate all vessels, not just UK registered ones, for the purpose of conservation or preservation of the environment as long as such regulations do not impact on navigation. I hope that the Minister has looked very carefully since Committee stage at this point and will be able to respond more favourably this time.

Lord Livsey of Talgarth: My Lords, perhaps the Minister could check—I do not expect an answer during this debate—on the status of foreign registered or EU registered boats which operate out of British ports. A few years ago, if my memory serves me correctly, about eight Spanish boats were based in Milford Haven and brought fish back to the port. That appeared to be a loophole in the EU regulations. I am not sure whether that still continues.

The Minister of State, Department of Energy and Climate Change & Department for Environment, Food and Rural Affairs (Lord Hunt of Kings Heath): My Lords, this is an interesting set of amendments. I say to the noble Lord, Lord Wallace, that I understand the resentment which might be felt by the fishing sector. I hope that it will have confidence in this legislation. We shall do everything we can to ensure that it gets the relevant information. I well understand the sentiment which lies behind Amendment 110B. He is right, of course, that under the common fisheries policy we have scope to set conditions unilaterally for UK vessels.

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It is possible that we can use that power to further marine sustainability goals. Indeed, some noble Lords would welcome that possibility. It is true that on rare occasions we have done so and it is entirely possible that we might want to do the same to show environmental leadership and increase our chances of persuading other member states of the EU to do likewise. We will not rush into doing so, but it would not be right simply to remove that instrument as a result of the amendment. Were we to remove such an ability, it should be done in the context of reform of the Common Fisheries Policy more generally. I will come to our approach to reform of the CFP a little later in my response.

8.45 pm

Of course, one has to recognise, as the noble Lord did, that there are areas where only UK vessels fish within the nought-to-six-mile zone and parts of the six-to-12-mile zone. The amendment would make our ability to regulate those exclusively UK fisheries subject to agreement in Brussels. We would be very wary of limiting our national powers in this respect.

On Amendment 119, I have acknowledged that there are concerns over the effect of Clause 137(3). It provides a defence to the general offence in Clause 136 for people engaged in sea fishing. This is, of course, an important economic activity and an important part of our maritime culture. Where people are engaged in it legitimately, they should not be penalised for the damage that it causes. When we authorise such types of fishing as beam trawling, we have to accept that a certain amount of damage will occur. It might include breaking fragile organisms, such as corals and sea fans, or uprooting plants such as sea grass. Clause 137(3) therefore acknowledges this by providing a defence for sea fishing.

However, of course, this part of the Bill is about the conservation of the natural environment. Obviously, we want to do everything that we can to maximise the protection that we give to marine conservation zones. In this, I agree with the noble Duke that we do not want those who are fishing illegally to benefit from this defence. I make it clear that to benefit from the defence, the conditions in both limbs must be met. The second limb requires that the damage caused could reasonably have been avoided. If a fisherman is using the wrong gear and, as a result, cause greater damage than necessary, or if he is fishing in a place where certain or all types of fishing are prohibited, he will not be able to claim that the damage could not reasonably have been avoided. The damage could patently have been avoided by complying with the relevant legislation. Therefore, he would, on my understanding, be guilty of an offence under Clause 136.

This is not a theoretical situation. Where the evidence makes a strong case for them, there will be restrictions on fishing activity. In the nought-to-six-mile zone, where the UK has greatest control, inshore fisheries and conservation authorities will put appropriate by-laws in place. Between six and 12 miles from shore, we will seek agreement for appropriate restrictions from the European Commission and those EU member states that have historic fishing rights under Council Regulation (EC) No 2371/2002. Beyond 12 miles, as noble Lords

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are aware, we cannot act unilaterally to regulate fishing. We must seek protection for our marine conservation zones through the Common Fisheries Policy. While securing protection through this mechanism is dependent on the agreement of other member states, which we cannot take for granted, we will, of course, do everything that we can to do that.

On the questions raised by the noble Duke about the nature of the EU negotiations, the number of people involved and the agreed timing for zones, I do not have the information to hand. I have not been able to get hold of it during our debates and I am afraid I shall have to offer to write to the noble Duke on those matters.

The Duke of Montrose: My Lords, on the Minister’s earlier point, do I understand that certainly by-laws will be the method used and that the only thing we will be able to govern is whether the gear is appropriate? So certain areas will have to be zoned and the gear appropriate to those zones will have to be covered. If someone is found holding the wrong gear, that will be cause for instituting a charge against them. It is in the nature of trawling in the sea that by the time the damage is found the people who carried it out will be miles away and no one will have any idea who it was.

Lord Hunt of Kings Heath: My Lords, that is a consideration. Clearly we will want to make this process as vigorous as possible for the reasons that the noble Duke has mentioned. I hope it will not be a situation where enforcement is weak or we are unable to detect who the perpetrators are. It is our intention to have a rigorous system in place.

We will of course use our best endeavours to seek the agreement of other member states to the measures we require. Obviously we are hopeful that we will be able to get appropriate agreement within the EU. Of course, one has to accept that the context in which we discuss these matters is the common fisheries policy. My colleague, Mr Irranca-Davies, the Minister for fisheries, has written to Commissioner Joe Borg on that matter to press the case for the reform of the common fisheries policy. Noble Lords may have seen the recent reference in the media to the commissioner’s views on what I thought were deemed to be acknowledged problems and failures with the CFP as it is. I was encouraged by those remarks. Commissioner Borg has replied to my colleague to say that he shares the Government’s view that the future common fisheries policy needs to take fully into account the wider integrated approach. He also wrote that the CFP needs to become an effective tool in the management of fisheries in the context of marine protection.

Clearly these are early days in the reform process, but that is an encouraging start. However, all those who have been involved in negotiations with the EU, particularly over the common fisheries policy, will know that there is a very long way to go before we have a successful outcome. None the less, we start from a more encouraging base than we have had for many a long year.

On Amendment 120, we want to provide the most effective protection we can for marine conservation. We want to be able to protect marine conservation

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zones from third country vessels as well as those of the European Union and, on that point, there is merit in the argument put forward by the noble Duke. We will reflect on it further and it is to be hoped that we will come back with something on Third Reading.

On the concerns raised by the noble Lord, Livsey, I shall take the opportunity to check and write to him further. My initial understanding of the point is that they are bound by the rules of the member state in which they are registered. I am not sure that that is a loophole but, as with other matters in relation to fishing, the noble Lord has identified one of the challenges that we have with this.

Lord Wallace of Tankerness: My Lords, I am grateful to the Minister for his constructive response to this amendment and that put forward by the noble Duke, the Duke of Montrose. If the amendment were passed into law, it would perform the important function of keeping pressure on the Government to try secure agreement. I do not think that there is any doubt that the Government recognise what the issue is and that they would like to see a proper resolution to it. It was therefore important to take an opportunity to remind them in case they were showing any signs of doubt. I have no doubt that, when the Bill is enacted and marine conservation zones come forward, this issue will regularly appear. As I have said, to keep the pressure on to try to secure agreement at a European level is essential not only in terms of fairness but for effective conservation. Against that background, I beg leave to withdraw the amendment.

Amendment 110B withdrawn.

Clause 114 : Grounds for designation of MCZs

Amendment 110C

Moved by Baroness Hooper

110C: Clause 114, page 69, line 2, at end insert—

“( ) an area of sea, including estuaries, as a national seascape, by virtue of the special qualities arising from its wildlife, natural beauty, cultural heritage or from its relationship with the land, or any combination of these reasons.”

Baroness Hooper: My Lords, we return to the proposal to perfect the Bill by introducing to the process of designation of marine conservation zones the notion of seascapes. We had a useful discussion in Committee on two slightly different amendments, since when the Minister has kindly arranged a meeting with officials from the various departments concerned and other organisations involved. Our discussions there certainly reassured me that the issue is being taken seriously by the department—I am happy to place that on record.


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