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We still think that it is an appropriate requirement for a person to know that a feature was within or formed part of a marine conservation zone, or that the person should reasonably have been expected to know this fact. If details of a site are displayed on a notice board or on widely used charts, these facts may help to establish that the person ought reasonably, at the very least, to have been aware. But—and this is the point to which the noble Baroness drew our attention—proving that a person had even more detailed knowledge about which particular species or habitats are listed as protected features on the designation order, or that they had the skill or knowledge to be able to differentiate between protected and unprotected features which might be similar in appearance, would be an awful lot more difficult to prove. That was not our intention and we have tabled Amendment 118A to make it clear that a person does not need to know that the feature was a protected feature of the site; it will be sufficient to prove that they knew or should have known that the feature was in the boundaries of a marine conservation zone. I think that that is the point that the noble Lord, Lord Livsey, was making. This is a sensible amendment to make.

Lord Greenway: My Lords, this creates a slight problem. The Minister said that the area would be marked on a chart or on a notice board on the beach.

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We discussed at earlier stages of the Bill that certain especially highly protected sites may need to be marked in another, more visual way, with buoys or some such, because someone coming down from the middle of England with a jet-ski or something like that would not necessarily have a chart or have read the right magazines. There needs to be some other way of marking these areas.

Lord Hunt of Kings Heath: My Lords, I remember the noble Lord making that point in Committee. He has raised an entirely sensible point, but it would not be reasonable to expect that all marine conservation zones were extensively buoyed. There will have to be a sensible case-by-case approach. Sometimes signs may well be put up on the appropriate jetties. Divers should be expected to find out details about marine conservation zones from notice boards in diving clubs or yachting clubs. We are trying to achieve a sensible balance in the way that enforcement is approached. I fully accept what he says, but I cannot see that it is possible to legislate for. We are going to have to rely on a sensible case-by-case approach.

Lord Taylor of Holbeach: My Lords, I am grateful for the support that Amendment 115 has received.

Amendment 115 agreed.

Amendment 116 not moved.

Amendment 116A

Moved by Lord Hunt of Kings Heath

116A: Clause 136, page 83, line 24, leave out “collects,” and insert “or collects, or intentionally or recklessly”

Amendment 116A agreed.

Amendments 117 and 118

Moved by Lord Taylor of Holbeach

117: Clause 136, page 83, line 26, after “intentionally” insert “or recklessly”

118: Clause 136, page 83, line 28, after “intentionally” insert “or recklessly”

Amendments 117 and 118 agreed.

Amendment 118A

Moved by Lord Hunt of Kings Heath

118A: Clause 136, page 83, line 29, at end insert—

“( ) For the purposes of determining whether anything done by a person in relation to a protected feature is a prohibited act for the purposes of subsection (1), it is immaterial whether the person knew, or ought to have known, that the feature was a protected feature.”

Amendment 118A agreed.

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Clause 137 : Exceptions to offences under section 135 or 136

Amendment 118B

Moved by Lord Davies of Oldham

118B: Clause 137, page 84, line 9, leave out from “vessel,” to end of line 11 and insert “aircraft or marine installation;”

Lord Davies of Oldham: My Lords, this amendment and the others in this group address a significant inconsistency in the Bill. At present, it provides a defence to those who intentionally damage a marine conservation zone for a broader range of activities than under the marine licensing system set out in Part 4. In that part, in Clause 83(1)(a), a person has a defence when taking action in an emergency to secure the safety of a vessel, aircraft or structure or to save human life. In Clause 137(1)(e) in Part 5, by contrast, a person benefits from a defence under these same conditions but also if he is taking action to prevent damage to a cargo or vessel.

We have emphasised numerous times during our debates our intention to provide the best protection that we can for those areas of the sea that we consider environmentally valuable. These amendments therefore seek to raise the level of protection for marine conservation zones to the same level in Part 5 as we have in Part 4.

Amendment 118B does two things: first, it narrows the scope of Clause 137(1)(e) to actions taken to secure the safety of a vessel; secondly, it then applies the defence to actions taken to secure the safety of a marine installation or aircraft, which makes it comparable with Part 4.

Amendment 118C inserts a new subsection into Clause 137 to say that where the action taken to secure the safety of a vessel, marine installation or aircraft was necessary only due to the fault of the person taking the action or of someone in his control, the defence does not apply. Again, we are making this part of the Bill comparable with Part 4 in Clause 83.

Amendment 120B is a consequential amendment that provides a definition of “marine installation”, a term that is introduced by Amendment 118B. “Marine installation” is a term also used in Clause 252 in Part 8 of the Bill.

I beg to move Amendment 118B and hope that noble Lords will support the other two amendments when we reach them.

Amendment 118B agreed.

4.15 pm

Amendment 118C

Moved by Lord Davies of Oldham

118C: Clause 137, page 84, line 12, at end insert—

“( ) Subsection (1)(e) does not apply where the necessity was due to the fault of the person or of some other person acting under the person’s direction or control.”

Amendment 118C agreed.

Amendments 119 and 120 not moved.

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Clause 143 : Interpretation of this Chapter

Amendment 120A

Moved by Lord Davies of Oldham

120A: Clause 143, page 87, line 7, at end insert—

““animal” includes any egg, larva, pupa, or other immature stage of an animal;”

Lord Davies of Oldham: My Lords, this is a minor amendment. Following debate in Committee, we suggested that the definition of “animal” in the Bill included invertebrates, eggs and larvae. Such a definition is included in Part 8, at Clause 240(10), but is not currently in Part 5. We apologise for this inaccuracy and inconsistency. I reassure the House that we are merely correcting this discrepancy with this amendment.

We want to make sure that the definition is clear and delivers our policy. It is important that, where appropriate, we give protection to all stages in the lifecycle of marine animals. It would be most unfortunate if we were to protect the adults of a species but failed to help the population because of adverse impacts of some activities on its immature stages. I am therefore moving Amendment 120A in response to the amendment in Committee of the noble Baroness, Lady Miller, which emphasised the importance of including those small things at the bottom of the food chain in the definition of an animal.

This amendment to Clause 143, on interpretation of Part 5, will ensure that “animal” will have the same wide definition as in Part 8. I hope therefore that the House will see the value of the amendment and appreciate the contribution in Committee of the noble Baroness, Lady Miller, and others in pointing out this issue. I beg to move.

Lord Livsey of Talgarth: My Lords, I am sure that the noble Baroness, Lady Miller, will be grateful for the recognition that the Minister has just given, particularly in acknowledging that the immature of a species are very important. Immature larvae and pupae also provide invaluable feed for fish species in both marine and freshwater areas. Any disturbance of an immature species, or putting it in peril through destruction, has serious consequences for the whole ecology of areas of our seas. I thank the Minister for including them by way of this amendment.

Lord Davies of Oldham: My Lords, I am grateful for that contribution. Given the progress that we are making, perhaps I may illustrate just a little further the necessity for the amendment. The new drafting will ensure that a greater range of animals can be protected. For example, sea fans are colonies of tiny creatures which are often used by dogfish to anchor their egg cases containing their young. It is clear that ability to protect pink sea fans and the egg cases of dogfish will ensure that we can boost populations of those organisms, which might not otherwise have been covered by the definition of “animal” currently in the Bill. Such ability will ensure that any deliberate damage to a pink sea fan and accompanying dogfish egg cases in a marine conservation zone where they are protected is liable to prosecution under the general offence in Clause 136. That is the burden of the amendment.

Amendment 120A agreed.

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Amendment 120B

Moved by Lord Davies of Oldham

120B: Clause 143, page 87, line 23, at end insert—

““marine installation” means any artificial island, installation or structure;”

Amendment 120B agreed.

Clause 149 : Management of inshore fisheries

Amendment 120C

Moved by Lord Wallace of Tankerness

120C: Clause 149, page 91, line 19, at end insert—

“( ) seek to balance the social and economic benefits of exploiting the sea fisheries’ resources of the district in that way with the protection of the marine environment from, and the promotion of its recovery from, the effects of such exploitation including past exploitation,

( ) seek to further the conservation and recovery of marine flora and fauna in the district,”

Lord Wallace of Tankerness: My Lords, noble Lords will remember that we had a number of debates in Committee on the establishment of the inshore fisheries and conservation authorities, and the importance of ensuring not only their constitution but their duties as new bodies. A reasonable consensus emerged on the importance of integrating environmental considerations alongside fisheries management.

However, there is some wish to see these duties strengthened if we are to bring about a different culture than has been the case until now. The amendment’s purpose is to enhance the current duty as set out in Clause 149 by also ensuring that the protection of the marine environment, particularly the promotion of its recovery, is not only from current exploitation of sea fisheries resources but also relates to past such exploitation. Moreover, it would introduce a duty to further the conservation and recovery of marine flora and fauna, taking the Bill beyond the more limited wording that is already there. It is also arguable that the reference to marine flora and fauna goes further than the definition of sea fisheries resources in Clause 149(6).

However, the general thrust of the amendment is that fisheries management and environmental protection can go hand in hand. Those who are engaged in fisheries are undoubtedly likely to benefit further if they are fishing in a healthy marine environment. It strikes the right balance and the duty implicit in this amendment would help both those concerned with fisheries and those concerned with marine environment protection. I beg to move.

Lord Kingsland: My Lords, I have an amendment in this group which broadly endorses what the noble Lord, Lord Wallace, has just said. My particular concern is with Clause 149(2)(b), which, roughly, seeks to balance the social and economic benefits of exploiting the sea fishery resources with the need to protect the marine environment.

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My amendment would add to Clause 149(2)(b) the expression,

That is because the present text could lead to a situation in which the social and economic benefits of exploiting the sea played a stronger part in the mind of the decision-maker than the need to protect the marine environment. In other words, we need to put some spin on the subsection to ensure that, where there is a conflict, the principle of sustainable development prevails.

I saw the Minister’s face express a degree of pain at my last statement. Nevertheless, he will understand where I am coming from.

Lord Taylor of Holbeach: My Lords, my amendments in this group do not follow the same line as that of the noble Lord, Lord Wallace of Tankerness, but are instead, we hope, a way forward that will address many of his concerns. Although we have great sympathy with the conservation groups’ concerns that IFCAs genuinely understand and support their new conservation duties, we appreciate the Minister’s alarm that the careful balance that they are trying to strike will be thrown off kilter. We have therefore sought a wording that will reassure stakeholders that the balance will be met, and so have fallen back on “sustainable development”, which is fast becoming the automatic answer to all questions. I think we can agree that sustainable development is—as much for IFCAs as for the MMO—the desired end result. Users of the sea cannot be allowed to exploit the marine environment unrestrained, nor can conservation bodies demand that all development be stopped. This is widely accepted.

This group of amendments tries to make it clear that the balance will be struck within the boundaries of sustainable development. The multiple nature of the amendments in my name represents the development of our thoughts and the very welcome involvement of the Minister, his officials and parliamentary counsel half way through, which resulted in Amendments 121ZA, 121ZB and 121ZC. The more detailed amendments include the very useful requirement that sustainable development is defined by guidance which is to be made publicly available.

We therefore hope that the three amendments in this group standing in my name and that of the Minister will satisfy all concerns. I thank the Minister and his officials for being so helpful in this matter. I pay especial tribute to my noble friend Lord Kingsland, who first struck upon the answer of tying the IFCA duty into sustainable development.

Lord Hunt of Kings Heath: My Lords, I apologise to the noble Lord, Lord Kingsland; I looked pained as I had hoped that the amendments tabled by his noble friend would meet the point that he raised. Like the noble Lord, Lord Taylor, I entirely accept that the debate in Committee was very valid. The Government have clearly reflected on that. That is why we are supporting the three amendments spoken to by the noble Lord, Lord Taylor, to ensure that we have the right balance.

We do not like the wording of the amendment of the noble Lord, Lord Kingsland, because we realise that—I think this is clear from our support of the

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amendments of the noble Lord, Lord Taylor—an explicit reference to sustainable development in the clause would aid consistency and clarity. The problem we have with the noble Lord’s amendment is that it would be inconsistent with wording elsewhere in the Bill, particularly in Clause 2. We seek to have consistency as far as possible.

Amendment 121 states,

The wording in Clauses 2 and 42 is,

We might be dancing on the head of a pin as regards ascertaining the difference between those wordings. However, I am advised that, although in practice the wordings may not be very different, using different wordings may cause confusion. That is the reason for the grimace; it was nothing more substantive than that.

I strongly support Amendments 121ZA, 121ZB and 121ZC in the name of the noble Lord, Lord Taylor, and appreciate the discussions that took place on them. Amendment 121ZA places in the Bill a requirement for IFCAs to take necessary steps,

This requirement is consistent with the change that we have already made to Clause 2. Amendment 121ZB makes explicit the Secretary of State’s power to give IFCAs guidance on how they are to perform their duty under subsection (1). In addition, the amendment requires the Secretary of State to give IFCAs guidance on how they are to perform their duty under subsection (1),

Again, the wording of the amendment is consistent with the change that has been made to Clause 2. However, it is appropriate to have separate IFCA guidance as IFCAs will be different types of organisation from the Marine Management Organisation, and it would be difficult to write guidance that was appropriately tailored to both IFCAs and the MMO. However, clearly we wish the guidance to IFCAs as far as possible to be consistent with and based on the MMO guidance.

4.30 pm

Amendment 121ZC requires the Secretary of State to publish the sustainable development guidance given to IFCAs and it requires IFCAs to provide copies of the guidance to anyone who asks for it. The wording of the amendment is consistent with the change made to Clause 2, and the Government support that amendment.

Amendment 120C, moved by the noble Lord, Lord Wallace, is an interesting amendment and has a number of elements. I will turn first to what might be described as the more technical parts of the amendment. It refers to the protection of the marine environment and the promotion of its recovery, so that, in every case, social and economic benefits must be balanced against this protection and promotion. However, I hope I can reassure the noble Lord that the reason why the clause as drafted says,

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is that it will not always be the case that the need is both to protect the environment and to promote its recovery.

For example, in deciding whether to allow the continued dredging of the seabed for scallops, where as a result of such dredging the seabed is in fact barren, the duty would require IFCAs to balance the social and economic benefits of allowing scallop fishing with the need to promote the recovery of the marine environment. Protection of the seabed perhaps does not come into it, because there is nothing worth protecting. Likewise, in considering whether to allow fishing in a pristine marine environment, it is the need to protect that environment that is relevant, not the need to promote its recovery.

Here is the assurance. None of this means that the two elements are mutually exclusive; in some circumstances both will be applicable. The fact that the word “or” is used does not alter the fact that IFCAs will need to take both factors into account in performing their duty under subsection (2)(b). My understanding is that legal drafting in these circumstances requires use of the word “or” to mean “and/or”. However, to ensure that there is clarity on this point, I will amend the Explanatory Notes to make that clear. I hope that this will address the issue raised.

The next part of the amendment would require the duty of IFCAs to protect the marine environment from, and promote its recovery from, the effects of such exploitation, to include the effects of past exploitation. I can again reassure the noble Lord that that is our policy intent, and we are clear that IFCAs will be under a duty to do exactly that under the current wording in the Bill. We are clear from the reference to promoting recovery from the effects of exploitation that exploitation must include that which has already occurred.

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