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19 May 2009 : Column 1324

114B: Clause 119, page 72, line 21, at end insert—

““Ramsar site” has the same meaning as in section 37A of the Wildlife and Countryside Act 1981 (c. 69);

“SSSI” means a site of special scientific interest, within the meaning of Part 2 of that Act.”

Amendments 114A and 114B agreed.

Clause 121 : General duties of public authorities in relation to MCZs

Amendment 114C

Moved by Lord Davies of Oldham

114C: Clause 121, page 73, line 31, leave out “the exercise of any of its functions” and insert “any of its functions is such that the exercise of the function”

Lord Davies of Oldham: My Lords, Amendments 114C to 114F address a significant burden that the Bill as drafted places on public authorities.

Clause 121 places a duty on public authorities to inform the statutory conservation bodies when they think that the exercise of their functions might significantly hinder the achievement of conservation objectives for a marine conservation zone. It is clearly right that a public authority should assess the likely impact of its functions on marine conservation zones, and if it thinks that exercising those functions might have an adverse effect it should seek the advice of the relevant statutory conservation body. Such advice would help it to fulfil its duty best to further, or least hinder, the achievement of a marine conservation zone’s conservation objectives.

On further consideration, however, we have concluded that the duty as drafted applies not only to the general exercise of functions, which is our intention, but to each occasion on which a public authority carries out functions in its own right, even for routine and well understood activities, such as Trinity House laying buoys for the safety of navigation or a harbour authority dredging a channel that has been silted up by a storm. It is disproportionate and impractical to require public authorities to inform the statutory conservation body every time they wish to carry out a core function for which Parliament may have given powers or imposed duties in legislation. We do not wish the Bill to have that effect, and the Government’s amendments address this problem accordingly.

Amendment 114D contains substantive provisions to the effect that if statutory conservation bodies issue standing advice or guidance to public authorities, those authorities are not required to inform the statutory conservation bodies each time an activity is carried out, provided that the activity is within the scope of the standing advice or guidance. If, for example, the statutory conservation body had issued guidance on the precautions that need to be taken to avoid damage to marine conservation zones when navigational buoys are being laid, an authority such as Trinity House would not need to seek advice each time it laid a buoy.

Where there is no relevant standing advice, the amendment establishes a time limit of 28 days for the statutory conservation bodies to give any advice necessary,

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after which public authorities may decide whether to go ahead as planned. This is to give the statutory conservation body a reasonable period during which to provide advice—this is comparable with Clause 122—and to avoid the authority being unnecessarily prevented from carrying out its duty by delays in the statutory conservation body issuing advice. The amendment also makes provision for the 28-day rule to be disapplied when the public authority considers its work to be urgent. For example, a navigational buoy might come adrift from its moorings and need replacing. The amendment would allow authorities to carry out their essential duties at short notice, if required.

Those are the substantial parts of the amendments. Amendments 114C, 114E and 114F are consequential drafting amendments. Amendment 114C clarifies wording that would become unclear as a result of our amendment. Amendments 114E and 114Fmerely rearrange definitions as a consequence of the new drafting. Accordingly, I hope noble Lords will support the amendments and I beg to move.

Lord Greenway: My Lords, I welcome what the Minister has said regarding the work of Trinity House. I must declare an interest as an elder brother of that organisation. We discussed this on the previous day on Report. I am very glad that the Government have seen fit to bring forward these amendments.

Lord Davies of Oldham: My Lords, I am grateful for those supportive remarks. I shall merely add that I hope other public authorities in addition to Trinity House will express similar commendation for the Government’s amendments, but I am particularly grateful given the significance of Trinity House with regard to our marine affairs.

Amendment 114C agreed.

Amendments 114D to 114F

Moved by Lord Davies of Oldham

114D: Clause 121, page 73, line 34, at end insert—

“(3A) Subject to subsection (3C), subsection (3B) applies in any case where a public authority intends to do an act which is capable of affecting (other than insignificantly)—

(a) the protected features of an MCZ;

(b) any ecological or geomorphological process on which the conservation of any protected feature of an MCZ is (wholly or in part) dependent.

(3B) If the authority believes that there is or may be a significant risk of the act hindering the achievement of the conservation objectives stated for the MCZ, the authority must notify the appropriate statutory conservation body of that fact.

(3C) Subsection (3B) does not apply where—

(a) the appropriate statutory conservation body has given the authority advice or guidance under section 123 in relation to acts of a particular description,

(b) the act which the authority intends to do is an act of that description, and

(c) the advice or guidance has not ceased to apply.

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(3D) Where the authority has given notification under subsection (3B), it must wait until the expiry of the period of 28 days beginning with the date of the notification before deciding whether to do the act.

(3E) Subsection (3D) does not apply where—

(a) the appropriate statutory conservation body notifies the authority that it need not wait until the end of the period referred to in that subsection, or

(b) the authority thinks that there is an urgent need to do the act.”

114E: Clause 121, page 73, line 40, leave out “or omission”

114F: Clause 121, page 74, line 9, leave out subsection (8) and insert—

“( ) In this section—

“act” includes omission;

“public authority” does not include a Northern Ireland Minister or Northern Ireland department.”

Amendments 114D to 114F agreed.

Clause 125 : Byelaws for protection of MCZs in England

Amendment 114FA

Moved by Lord Greenway

114FA: Clause 125, page 76, line 29, leave out “recreational” and insert “any”

Lord Greenway: My Lords, we come back to by-laws governing the restriction of vessels from entering MCZs. Under the Bill, only recreational vessels are subject to this restriction, which I queried in Committee. In his response, the Minister said that recreational vessels had to be singled out because the Government were under international obligations not to restrict entry for any other vessel, which includes shipping. It has since become clear that the UN Convention on the Law of the Sea allows the Government to restrict entry to or passage through marine conservation zones to all vessels, not just recreational ones. In the light of that, I wonder whether the Government have had a chance to rethink in terms of it being inequitable to single out recreational vessels when they have the power to restrict all vessels. I beg to move.

Earl Cathcart: My Lords, I have a great deal of sympathy with the noble Lord’s amendment. Given the encouraging reception another RYA amendment received when debated earlier, I hope that we can find a similarly constructive way forward here too. The noble Lord, Lord Greenway, is right to defend recreational vehicles from unfair discrimination. Ensuring that MCZs can, if necessary, be defended from damage by excessive recreational use is desirable, but deliberately exempting other vehicles from similar restrictions even though they too cause damage would be counterproductive.

Earlier, the Minister rightly raised a concern about ensuring that the regulation this Bill produces does not result in an unreasonable burden on industry. This cuts two ways. Care also needs to be taken that the burden is not instead laid entirely on recreational vessels. I hope that the Minister will consider carefully before building into primary legislation a distinction

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between which sorts of vehicles are to be burdened. There are of course international law ramifications, but the Government’s initial reading of what we can do has already been seen to be perhaps rather hesitant.

4 pm

Baroness Hamwee: My Lords, I support the amendment as well, but two things about it occur to me. The first is the potential difficulty of enforcement given that the purpose for which a particular vessel is being used at any given time may not be obvious. Secondly, since we must be subject to the provisions referred to by the noble Lord, Lord Greenway, if this clause is to be as effective as it should be, surely we should be dealing with all vessels that we are able to prohibit, having regard to other relevant regulations. I am not clear on how the hierarchy is dealt with in this sense, but this cannot be the only occasion when one has had to deal with that hierarchy.

Lord Davies of Oldham: My Lords, I am grateful to the noble Lord. I note that he has powerful friends since he has been supported by both Front Benches in his amendment. He will appreciate that the Government are keen to ensure that protection in the marine conservation zones is as effective as possible and that we enable by-laws to be applied to all vessels to the extent that we can under the United Nations Convention on the Law of the Sea and other legislation. In response to the combined ranks of those noble Lords who supported the amendment, I can be brief. I want to take the amendment back and consider it further before Report. On that understanding, I hope the noble Lord will withdraw it.

Lord Greenway: My Lords, I am most grateful to the Minister. One further thought has come to me courtesy of the noble and gallant Lord, Lord Boyce, who is chairman of that august body, the Royal National Lifeboat Institution. When the Minister and his department look at this, could they consider the possible position with regard to the lifesaving activities of the RNLI? I see that he is nodding. If that could be taken on board, I would be happy to withdraw the amendment.

Lord Williams of Elvel: My Lords, before the noble Lord, Lord Greenway, withdraws his amendment, did I understand my noble friend to say that he would bring an amendment back on Third Reading? We are on Report at the moment.

Lord Davies of Oldham: My Lords, that is exactly the point. We want to consider this further. This is an important amendment and the noble Lord, Lord Greenway, has raised an additional point with regard to the RNLI. We shall take that into consideration and think in terms of bringing forward a government amendment to deal with the issue at Third Reading.

Lord Greenway: My Lords, I am most grateful to the Minister and I beg leave to withdraw the amendment.

Amendment 114FA withdrawn.

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Clause 126 : Byelaws: procedure

Amendments 114G to 114J

Moved by Lord Hunt of Kings Heath

114G: Clause 126, page 77, line 15, leave out “(2)” and insert “(3)”

114H: Clause 126, page 77, line 17, leave out subsection (2)

114J: Clause 126, page 77, line 43, at end insert—

“(9A) As soon as is reasonably practicable after the confirmation of a byelaw made under section 125, the MMO must publish notice of the making of the byelaw.

(9B) The notice under subsection (9A) must—

(a) be published in such manner as the MMO thinks is most likely to bring the byelaw to the attention of any persons who are likely to be affected by the making of it;

(b) state that a copy of the byelaw may be inspected at the offices of the MMO.”

Amendments 114G to 114J agreed.

Clause 129 : Further provisions as to byelaws

Amendments 114K to 114M

Moved by Lord Hunt of Kings Heath

114K: Clause 129, page 79, line 41, leave out subsection (3)

114L: Clause 129, page 80, line 1, leave out “the byelaw” and insert “a byelaw to which this section applies”

114M: Clause 129, page 80, line 10, leave out “(3) to” and insert “(4) and”

Amendments 114K to 114M agreed.

Clause 131 : Consultation etc regarding orders under section 130

Amendments 114N and 114P

Moved by Lord Hunt of Kings Heath

114N: Clause 131, page 80, line 33, at end insert—

“(1A) The Welsh Ministers must publish notice of the making of an order under section 130.

(1B) The notice under subsection (1A) must—

(a) be published in such manner as the Welsh Ministers think is most likely to bring the order to the attention of any persons who are likely to be affected by the making of it;

(b) give an address at which a copy of the order may be inspected.”

114P: Clause 131, page 80, line 37, leave out from beginning to end of line 6 on page 81 and insert—

“(b) the notice under subsection (1A) must also state that any person affected by the making of the order may make representations to the Welsh Ministers.”

Amendments 114N and 114P agreed.

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Clause 133 : Further provision as to orders made under section 130 or 132

Amendment 114Q

Moved by Lord Hunt of Kings Heath

114Q: Clause 133, page 81, line 42, leave out from “State” to end of line 2 on page 82

Amendment 114Q agreed.

Clause 136 : Offence of damaging etc protected features of MCZs

Amendment 115

Moved by Lord Taylor of Holbeach

115: Clause 136, page 83, line 22, after “intentionally” insert “or recklessly”

Lord Taylor of Holbeach: My Lords, Amendment 115 is grouped with Amendment 116, which I will not press. I tabled these amendments to raise again our concern that the offence of damaging a marine conservation zone does not cover reckless behaviour. I was very pleased to see that the Minister has added his name to many of my amendments, improving the drafting where appropriate. I thank him for accepting our point. I beg to move.

Lord Wallace of Tankerness: My Lords, no Liberal Democrat Peer’s name appears on this amendment. However, it makes sense to take both intention and recklessness into account when considering these matters. We therefore happily support the amendment.

Lord Livsey of Talgarth: My Lords, Amendment 118A contains an extremely useful provision. It states that,

I look upon this as a no-escape clause. If someone pretends that they did not know about it, that is no excuse. It is a useful part of the amendment. We on the Liberal Democrat Benches have supported such provision. The word “reckless” is extremely important in this context, as a great deal of damage has been done. Indeed, there is now photographic evidence that many things have gone awry. We therefore very much support these amendments.

Lord Hunt of Kings Heath: My Lords, we had a lively debate on this matter in Committee, when the case for widening the scope of the general offence in Clause 136 to include reckless acts was very well made. I am therefore grateful to the noble Lord, Lord Taylor, for tabling Amendments 115 to 118, which will extend the scope of the offence to include reckless acts. The Government support his Amendments 115, 117 and 118 without reservation. They will ensure that the reckless killing or injuring of animals which are protected features of a marine conservation zone, the reckless

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taking of things and the reckless destruction or damage of habitats or features will all constitute an offence. It is entirely right that the features are protected from people who know about a marine conservation zone but simply do not care whether they damage it.

In relation to the picking, collection, cutting, uprooting or destruction of plants, the Government have tabled their own Amendment 116A, which provides an alternative form of words to that proposed in Amendment 116, which the noble Lord, Lord Taylor, has already intimated he does not intend to move. The reason we have tabled a different amendment is that we share the concern to see plants protected in the same way as other types of feature. I should like to reassure the House that the purpose of Amendment 116A is not to reduce the level of protection. The different wording proposed is intended simply to take account of the fact that the act of picking or collecting a plant must by definition always be an intentional act and therefore cannot be the result of recklessness. In contrast, it is conceivable that the act of cutting or uprooting a plant may or may not be intentional, and where it is unintended it could indeed result from recklessness, and the wording contained in Amendment 116A simply reflects this distinction.

The point raised by the noble Lord, Lord Livsey, takes us back to the contribution made by the noble Baroness, Lady Young, when she spoke about the difficulties facing prosecution authorities in proving how much knowledge an offender possessed. We have carefully reflected on the points she raised because she speaks with a great deal of experience of pursuing offenders in her previous role. That is why we have tabled Amendment 118A, where we seek to clarify the level of knowledge that a person must have in order to be guilty of an offence.

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