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I hope that the Minister will outline the issues that were discussed by the Crown Estate, the shellfish industry and Defra at the meeting that they held. I understand that general agreement was reached on a way forward and that all three parties agreed that primary legislation was needed to amend the Crown Estate Act to relieve the Crown Estate of the power to make the orders for the shellfish fisheries, while reserving appropriate powers as a landowner. If indeed all three parties are in agreement, which I hope the Minister will be able to confirm, given how infrequently marine legislation comes along, it is imperative that the Government are able to table amendments in another place when the Bill goes there to resolve this situation, otherwise it may stay unresolved for years and the industry will suffer enormously. I hope that the Minister will confirm that amendments will be tabled to separate the statutory process from the exercise of landowner rights, a relatively simple thing for parliamentary draftsmen to draft. I beg to move.

Baroness Wilcox: My Lords, I support the amendment of the noble Baroness, Lady Miller of Chilthorne Domer. I apologise to the House; I thought my name was on this amendment but it is not, so obviously I have not gone through the right channels, probably in my enthusiasm to get all the information I could before I stood up.

The noble Baroness has more than likely covered everything that needs to be said, which restrains me from becoming too emotional about the entire subject. That said, I shall still remind noble Lords, anyone who is listening from the Gallery or on the radio, and anyone here today who is writing for the news, what we are talking about. The Crown Estate is answerable only to the Treasury and controls 55 per cent of our coastline. These regulating orders are ancient; they have been given out over 100 years. It is their choice that they do not charge fishermen for a licence to grow shellfish in these areas. They would have been happy to pay had it been asked for. The Treasury now insists that the maximum value is taken for these areas. People who have been fishing for many years, building up delicate oyster and mussel beds—it takes a very long time—are now told that their order has been withdrawn and there is no appeal. This is supposed to be a democracy, the Mother of all Parliaments; this is supposed to be the place where you really can stand up and object. But to this alone you cannot object.

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I know for a fact that Ministers are afraid of the Treasury. Well, I stand on the Back Benches today in opposition; we are not at this moment Her Majesty's Government and, therefore, I can say these things. I have no doubt that my Front Bench cannot support me, because they, too, would be afraid to worry the Treasury. It cannot be right or fair that people in this country cannot earn their living, cannot grow their food and cannot appeal against it. I support the amendment, and hope that the Minister on his birthday will give us a wonderful present.

5.30 pm

Lord Hunt of Kings Heath: My Lords, where does fear of the Treasury come from? We always regard the Treasury as our good friend and colleague who is ever eager to seek constructive solutions to the little challenges that we face.

I am grateful to the noble Baronesses, Lady Miller and Lady Wilcox, for bringing this matter back. I fully acknowledge that this is a very important issue to the shellfish industry. I also fully acknowledge the importance of this industry to the UK and that it is important that this matter is resolved.

Noble Baronesses are right: the decision on 14 May by the House of Lords not to accept the petition from the Crown Estate and Isle of Anglesey County Council to have their case heard is a fact. In the light of that, I hope that a solution will be found to which all parties can agree.

It is clear that the current system for granting orders cannot continue and must be changed. We are doing everything that we can to help the parties reach agreement. We are working closely with the Shellfish Association of Great Britain and the Crown Estate. My colleague, Huw Irranca-Davies, has met shellfish industry representatives and the Crown Estate to move the issue forward.

The Crown Estate manages Crown land on behalf of the Government. The noble Baroness is right in suggesting that surplus revenue goes to the Treasury, in return for which the monarch receives a fixed annual payment known as the Civil List. The Crown Estate is accountable to Parliament, but is run independently of the Government by a board of appointees. Under the Crown Estate Act 1961, the board has a duty to maintain and enhance the value of the estate and return obtained from it, but with due regard to the requirements of good management. The Crown Estate must report to Parliament once a year, providing accounts and information about its activities for the year, including future activities.

It is important to note that, in England and Wales, the legal presumption is that the seabed and foreshore are in the ownership of the Crown. The presumption extends to the bed of all tidal rivers. It extends also to all islands in tidal rivers and coastal waters. The presumption applies in the absence of any evidence of a grant by the Crown to any private individual. It is estimated that the Crown Estate owns around 55 per cent of the UK foreshore, so it is an important player in these matters.

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The most recent meeting of officials with the Shellfish Association of Great Britain and Crown Estate was at the end of April, where there was agreement on all sides to work together. The use of commercial contracts, with leasing and compensation arrangements between the industry and the Crown Estate based around a memorandum of understanding, is a viable solution to which all sides will be able to agree. We are arranging to meet the parties again urgently to attempt to reach formal agreement to such an approach.

We are clear, and we think that the Lords recent decision does not change this, that simply removing the consent clause in the Act will not resolve the problems that we face in granting orders. It does not give the industry the security that it wants to develop economically viable shellfisheries and is likely to jeopardise the development of an approach based on consensus being reached between the Crown Estate and the industry.

Although the recent court case leaves some questions unanswered about the operation of the current clause in several and regulating orders, which seek to preserve the rights of the Crown Estate, it is indisputable that the Crown Estate continues to have rights as a landowner. We have to work with those rights in reaching a solution. We also need to have discussions with the Duchies, which have similar rights under the legislation.

An additional problem is that the amendment would result in significant costs to the industry, because it is likely that the Crown Estate and possibly other landowners with similar rights would use other means to contest attempts to grant orders against their will. In any event, as part of the application process for an order, the Secretary of State could not ignore representations and objections made by the Crown Estate in reaching a reasonable decision whether to grant an order, especially given its landowner rights. This process would involve the Secretary of State having to call a public inquiry, with all the implications in terms of expense for the applicant for an order. That is our problem with the amendment.

It has been suggested that these issues could be resolved by provisions in the legislation to protect the rights of the Crown Estate and other landowners. Our view is that it would be extremely difficult to place such a savings clause in favour of the Crown Estate in primary legislation that would be satisfactory to all sides. The decision of the Judicial Committee to reject the Crown Estate’s appeal undoubtedly means that there are uncertainties over what rights it would have in a savings clause.

We are committed to resolving this issue. We think that putting the relationship between applicants for orders and the Crown Estate on a more commercial footing offers a much better, long-term solution, and that removing the consent clause or inserting a savings clause will not help resolve this situation. I am clear that we need to move quickly, and we shall work urgently with the key parties to seek a sustainable solution. If it requires changes in primary legislation, we will consider the most appropriate route, including possible changes to the Bill. I know that the noble Baroness, Lady Miller, says that drafting legislation

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could be done quickly. Alas, that is not my experience, but I fully take her point. If legislative solution is the way forward, this Bill would seem to offer the most appropriate opportunity. The noble Baroness said that it was unlikely that we will get another chance in relation to the marine environment for some time—I agree with that. I assure noble Lords that if we believed that primary legislation was necessary, we would look to introducing it during the passage of the Bill, probably in another place. However, it may not be necessary. It seems abundantly clear that, above all, we need the parties to work through a solution that is satisfactory to all of them. That, the Government will undoubtedly seek to encourage.

Baroness Miller of Chilthorne Domer: My Lords, perhaps I may wish the Minister a happy birthday and thank him warmly for that reply. Given the energy with which both he and his colleague, Huw Irranca-Davies, have addressed this issue since it was brought to their attention, I feel reassured that there is the will at ministerial level to drive through a solution. I accept, as the Minister said, that the solution may be commercial, with MOUs. I am relieved by his assurance that if it appears that primary legislation is needed while the Bill is still going through the other place, which will be for several months yet, the opportunity to table it will not be missed.

In conclusion, I am extremely happy with the Minister’s comments. Before we leave the issue, he may like to note that in my discussions with the Crown Estate it became apparent that, of all their commissioners, there is not one whose particular interest and responsibility is marine issues. As the Minister said, the Crown Estate owns 55 per cent of the foreshore and has a primary interest in the sea bed. I would have thought it appropriate, particularly after the Bill has gone through, when it comes to reappoint a commissioner, that it does so with particular regard to the need for that expertise. It would make a big difference to this sort of situation. I thank the Minister again for the energy that he has put into this issue, and beg leave to withdraw the amendment.

Amendment 122ZA withdrawn.

Clause 213 : Definitions relating to fish

Amendment 122A

Moved by Lord Hunt of Kings Heath

122A: Clause 213, page 124, line 1, at end insert—

“( ) After the definition of “screen” insert—

““smelt” means any fish of the species Osmerus eperlanus;”.”

Amendment 122A agreed.

Clause 215 : Byelaws: emergency procedures

Amendment 122B

Moved by Lord Hunt of Kings Heath

122B: Clause 215, page 125, line 32, leave out “physiological” and insert “physiographical”

Amendment 122B agreed.

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Clause 219 : Handling fish

Amendment 122C

Moved by Lord Hunt of Kings Heath

122C: Clause 219, page 129, line 13, after ““eels”,” insert ““smelt”,”

Amendment 122C agreed.

Clause 220 : Duties of the Environment Agency

Amendment 122D

Moved by Lord Hunt of Kings Heath

122D: Clause 220, page 129, line 26, after ““eels”,” insert ““smelt”,”

Amendment 122D agreed.

Clause 221 : Tweed and Esk fisheries

Amendments 122E and 122F

Moved by Lord Hunt of Kings Heath

122E: Clause 221, page 129, line 33, at end insert—

“( ) In subsection (4), in the definition of “conservation”, for “salmon, trout, eels and freshwater fish,” substitute “salmon, trout, eels, lampreys, smelt, shad and freshwater fish,”.”

122F: Clause 221, page 129, line 36, at end insert—

“(aa) after “salmon” insert “, “smelt””;”

Amendments 122E and 122F agreed.

Clause 239 : Dwellings

Amendment 123

Moved by Lord Wallace of Tankerness

123: Clause 239, page 146, line 26, after “sheriff” insert “or”

Lord Wallace of Tankerness: My Lords, I will not detain the House. This is a simple amendment, the effect of which would be to delete “justice of the peace” from the list of those who can give warrants to enforcement officers under Chapter 2 of Part 8 of the Bill in respect of warrants issued in Scotland.

Chapter 2 of Part 8 sets out various powers: powers to board and inspect vessels and marine installations; to enter and inspect premises; and to enter and inspect vehicles. However, it has an important further provision in Clause 239, that an enforcement officer may not, by virtue of the powers to which I have just referred, enter any dwelling place unless a justice has issued a warrant authorising the officer to do so. In Scotland, “justice” is defined as a sheriff, a stipendiary magistrate or a justice of the peace. Given the importance of a warrant to enter a dwelling house, and the fact that in issues like that nowadays rights under Article 8 of the European Convention on Human Rights can be an issue, there is a view that this should be done by a sheriff or stipendiary magistrate.

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Anticipating the Minister’s response to this, I am sure that he will point out that, in England and Wales, “justice” means a justice of the peace and, in Northern Ireland, a lay magistrate, and then ask why Scotland should be different. I merely note that the origin of this amendment was the concern expressed by the Law Society of Scotland. That should give the Minister some cause for reflection. He should have regard to the fact that that body, with intimate knowledge of the working of Scots law, expresses that concern.

I also note that Schedule 17, relating to warrants issued under Section 239, states in paragraph 2(2) that:

“An application for a warrant must be made without notice and must be supported by an information in writing or, in Scotland, evidence on oath”.

The Bill itself makes different provision for Scotland in terms of application for a warrant from other parts of the United Kingdom. The Bill itself therefore concedes that some distinction can be made, and I just seek a further distinction. I beg to move.

The Duke of Montrose: My Lords, considering that this amendment has been supported by the Law Society of Scotland and moved by the noble Lord, Lord Wallace of Tankerness, and that between them they have many more legal credentials than those to which I could ever aspire, and that both think that the amendment’s wording is appropriate, I should like to offer my support.

Lord Davies of Oldham: My Lords, there is nothing worse than a noble Lord moving an amendment saying that it is simple, straightforward and backed by the Law Society of Scotland. That makes my knees knock right from the start as I have no legal background.

I am also awaiting someone who would be much better qualified to address this issue, my noble and learned friend Lord Davidson, but he will be here for the next business, which is also of great import. It therefore falls to me to respond to the noble Lord. We in the department did not think that this was a simple amendment at all. In fact, we thought that it raised some pretty significant issues. My reply may therefore not satisfy the noble Lord, particularly as I note his additional point that Bill does, in its subtle way, recognise differences in Scotland from time to time. However, we will seek to convince the noble Lord that the Bill should remain as it is and that the amendment should not be carried.

The amendments have the effect of removing a justice of the peace from the court officials who are able to authorise a warrant in Scotland. Clause 122 of the Marine (Scotland) Bill contains similar provisions to Clause 239 of the Marine and Coastal Access Bill and provides that a justice may issue a warrant to search dwellings. “Justice” is defined in Clause 141 as,

So it has been considered appropriate for stipendiary magistrates and justices of the peace to have the power to grant warrants for the search of dwellings for the equivalent Scottish provisions. Our own provisions at Clause 239(5)(c) have of course been agreed by the Scottish Executive. It seems a strange discrepancy to

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remove “justice of the peace” from our provisions when the Scottish Executive is content for this to be reflected in this Bill, and for such officials to issue warrants in Scottish legislation.

I recognise that there is a distinction between the Scottish Executive and the Scottish law courts, but the noble Lord will appreciate that throughout the Bill we sought to emphasise the extent to which we are taking the different parts of the United Kingdom into account, particularly the work that Scotland is still doing on its Marine Bill. That is evidenced by how we have approached this issue.

Additionally, the Scottish Executive could see no justification for restricting the issue of warrants in Scotland only to sheriffs and stipendiary magistrates. The Scottish Executive have confirmed that in Scotland, justices of the peace are trained in the issue of warrants and indeed are already used to issuing them for the purposes of entering dwellings under other legislation; for example, under Section 125 of the Immigration and Asylum Act 1999; under regulation 4 of the Zoonoses (Monitoring)(Scotland) Regulations 2007, which I have no doubt are well known to the House; and under paragraph 2 of Schedule 4 to the Building (Scotland) Act 2003, among other legislation. I am also mindful of the fact that justices of the peace in Scotland, who are lay members advised by a legally qualified clerk, have considerable responsibility, being able to impose up to 60 days’ imprisonment and fines of up to £2,500.

The power for justices of the peace to issue search warrants is clearly not new. Similar provisions exist in the legislation from which the enforcement powers of the Bill have been consolidated. For example, in Schedule 2 to the Food and Environment Protection Act 1985, paragraph 7(3)(b) enables a justice of the peace in England and Wales, or a sheriff, stipendiary magistrate or justice of the peace in Scotland, to issue a warrant to search a dwelling. This is the same that we have provided for in Clause 239. Section 12 of the Sea Fisheries Regulation Act allows a justice of the peace to issue a search warrant. Section 19 of the Wildlife and Countryside Act 1981 enables a justice of the peace to issue a warrant to enter and search any premises.

We have looked at similar legislation relevant to the Bill before the House today. More recent legislation, both in England and in Scotland, has followed the line of allowing justices of the peace to issue warrants to search dwellings. Section 12 of the Animal Health and Welfare (Scotland) Act 2006 permits JPs to issue warrants to enter any premises, as does the Health and Social Care Act 2008 and Section 29H of the Racial and Religious Hatred Act 2006, which applies in both England and Scotland. Very recently, the Aquatic Animal Health (Scotland) Regulations 2009—a lively issue which the House will recall—permitted JPs to do this. There are many other examples from new and old legislation with which I could entertain the House. So we are not creating anything novel here; we are simply following precedent for the ability of justices of the peace to issue warrants for officers to enter and search.

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If we remove the ability for justices of the peace to issue warrants for entering and searching dwellings in Scotland, we may set a precedent that will go far wider than this Bill. It is not the intention of the Bill to alter legal precedent in relation to powers of lay magistrates in Scotland. That is far outside the compass of the Bill. I am not sure that the Law Society of Scotland would thank us if we set such a precedent within the framework of this measure. As there is no desire from the Scottish authorities to pursue this amendment, I hope that the noble Lord will withdraw it. If he does not wish to do so, he will see that I now have a powerful ally at my side in the shape of the noble and learned Lord the Advocate-General, whose expertise in Scottish law I would not hesitate to deploy. However, I am backed by the Scottish authorities who believe that the amendment should be withdrawn, and I hope that the noble Lord will do so.

Lord Boyd of Duncansby: My Lords, before the noble Lord sits down, is he aware that there is a very considerable programme of training and education for justices of the peace which was initiated when the noble Lord, Lord Wallace, was a Minister of Justice in Scotland? Does he agree with me that this programme, which was initiated by the noble Lord, means that justices of the peace are now much better trained than they were at one time?

Lord Davies of Oldham: My Lords, I am enormously grateful to my noble and learned friend for catching me just before I sat down in order to emphasise this point. I am sure that the noble Lord, Lord Wallace, will take the point on board when he responds.

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