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Schedule 20 : Amendments of the Harbours Act 1964

Amendments 125 and 126

Moved by Lord Hunt of Kings Heath

125: Schedule 20, page 292, line 30, leave out “repeals or amends” and insert “makes provision repealing or amending”

126: Schedule 20, page 293, line 7, leave out “repeals or amends” and insert “makes provision repealing or amending”

Amendments 125 and 126 agreed.

Schedule 21 : Repeals

Amendments 126A and 126AA

Moved by Lord Hunt of Kings Heath

126A: Schedule 21, page 297, line 20, at end insert—

“Government of Wales Act 2006 (c. 32)

In Schedule 3, paragraph 4(1)(a).”

126AA: Schedule 21, page 303, line 14, at end insert—

“In section 20(1), the word “and” at the end of paragaph (a).”

Amendments 126A and 126AA agreed.

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Clause 312 : Interpretation

Amendment 126B

Moved by Lord Hunt of Kings Heath

126B: Clause 312, page 208, line 29, leave out from second “of” to end of line 31 and insert “any of the following—

(a) Part 11 of the Town and Country Planning Act 1990 (c. 8);

(b) Part 10 of the Town and Country Planning (Scotland) Act 1997 (c. 8);

(c) the Planning (Northern Ireland) Order 1991 (S.I. 1991/1220 (N.I. 11)).”

Amendment 126B agreed.

Clause 313 : Extent

Amendment 126C

Moved by Lord Hunt of Kings Heath

126C: Clause 313, page 209, line 37, leave out “amendments to the Fishery Limits Act 1976 (c. 86)” and insert “paragraph 2 of Schedule 4”

Amendment 126C agreed.

Amendment 126D

Moved by Lord Wallace of Saltaire

126D: Clause 313, page 210, line 35, after “Majesty” insert “following consultation with governments of each territory in question”

Lord Wallace of Saltaire: My Lords, I shall speak also to Amendments 127 to 129. In one of the documents circulated as we prepared for this Bill was a very helpful map of who was responsible for which part of the coastal waters around the United Kingdom. In the middle of the Irish Sea was a large, white hole. The purpose of this amendment is to explore the nature of this large, white hole, because it represents not only the coastal waters of the Isle of Man but also a gap in the application of this Act and many others, which seems to be a matter of considerable ambiguity.

As the Minister will know, I have wider interests in the extent clause and in the whole relationship between the British Government, the Crown dependencies and the overseas territories. A responsible Minister from this House described the constitutional relationship to a Commons committee last December as one which includes considerable ambiguity. That ambiguity may be useful for some purposes, but when, for example, it comes to the duty of Her Majesty's Government when signing international conventions on behalf of all UK territories to implement the obligations that are taken on, the quality of the extent clause leaves a great many questions.

I take as an example Clause 313(8), which lists some of the Crown dependencies and some of the overseas territories but does not list others. It lists Jersey but not Guernsey or the Isle of Man; it lists the Falklands, South Georgia and the Sandwich Islands, but not the Chagos archipelago, Gibraltar or the sovereign base areas of Cyprus. Perhaps the Minister can explain why some are listed and others are not.

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Was it an accident and an oversight, or is there an unseen rationale in government policy of which we are perhaps not fully aware?

Part of my concern is the capacity of these very small territories to implement what they are asked to do. It has, after all, been a settled policy of British Governments of both the major parties during the past 20 years to assume that any local authority with a population of less than half a million is incapable of implementing proper legislation. We are talking here about a range of authorities all of which have populations of less than 100,000—some, after all, have 20,000 or 30,000. They simply lack the staff, the ability and, in some cases, the competence to begin to implement what is asked of them. Anyone who has read the recent government report on the quality of governance in the Turks and Caicos Islands will know exactly what I mean when I talk about competence and ability.

There is then the question of who is in charge in Whitehall. I must thank the Minister for allowing me to meet a number of officials to discuss the matter. However, I gained the impression that there is a settled reluctance across Whitehall to address an issue which to several departments is marginal and where it is unclear which department is in charge.

One of several briefings that we received on this issue points out that there is an interdepartmental ministerial group on biodiversity, which is responsible for ensuring that biodiversity in the Crown dependencies and overseas territories is considered. It brings together representatives of four departments—the Foreign Office, Defra, DfID and, for some reason, DCMS, but it has not met for nearly two years. It was due to meet in January, and I hope that the Minister will be able to tell me whether it has met since January to consider this important issue. If it has not met for over two years, the Government are leaving an even larger hole in this important area than we had expected.

Biodiversity, after all, is an important issue for many of our overseas territories. This morning I received a note from Simon Hughes, my colleague in the other place, who is campaigning for the European elections in Gibraltar on Friday. As Ministers will know, one of the many oddities, ambiguities and absurdities of our Crown dependencies and overseas territories is that although the Gibraltarians get to vote in European elections by their choice, the people in the Isle of Man, Jersey and Guernsey decided that they did not want to—so some are in while others are out. Simon Hughes has discovered that Gibraltar is,

such as the,

and lesser kestrels. I am sure that the Minister could recognise all of those through his binoculars with no problem at all.

The Environmental Audit Committee report on halting biodiversity loss in November last year concluded:

“The government has a clear moral and legal duty to help protect the biodiversity of the UK Overseas Territories and Crown Dependencies”.

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The Royal Society for the Protection of Birds points out that Her Majesty's Government currently allocate some £2 million for biodiversity protection to all of this rather long list of Crown dependencies and overseas territories. In the Chagos Islands, which include Aldabra, the British Antarctic territories, as well as St Helena and Ascension Island, we are talking about territories that are particularly important for bird species and for coastal and marine wildlife.

There are a large number of questions here, which I know that the Government would prefer not to have to answer—but that is part of the reason why I wish to pose them. We are assured that the Government will consult these dependent territories and their small Governments on whether they might like to implement some of these obligations. What form will that consultation take? Is there an expectation, since the Government have already signed up to international conventions covering these issues, that implementation will follow? What happens if Crown dependencies and overseas territories decide not to implement obligations to which Her Majesty's Government have signed up in international conventions? Do we simply accept that? Do we have to go back to any of the international organisations to which we belong and explain that we have no authority to force them to implement it? It would be a little easier if we understood some of the informal mechanisms so beloved of the British unwritten constitution.

The Royal Society for the Protection of Birds says that the approach,

as a whole, and particularly with regard to biodiversity. Which is the lead department for biodiversity conservation of the territories—or is it not clear which it is? Do the Government intend to take on board the recommendation in the Foreign Affairs Committee inquiry about providing increased and adequate resources for biodiversity conservation, which was also reinforced by the Environmental Audit Committee? Why were some but not others listed in the extent clause? If the Minister can assure us on those questions, we will not have to divide the House or be more of a nuisance on later occasions. I beg to move.

Lord Taylor of Holbeach: My Lords, I had not intended to speak to this set of amendments, but as we have reached the Turks and Caicos Islands much more quickly than noble Lords might have expected, I shall take this opportunity to thank the noble Lord, Lord Saltaire, for raising some very interesting questions and proposing amendments which seek to extend the scope of the Bill to the oceans of the world; the Minister and his officials for the way in which they have facilitated a most productive Report stage; and indeed other noble Lords for their support. In particular, I thank the noble Lord, Lord Greaves, whose absence today has been noticed by us all and may account for the speed—but it may not be so; it cannot be so—with which we find ourselves here. I thank my noble friends on these Benches for playing their role. I shall be very interested in the Minister’s response to these amendments.

Lord Livsey of Talgarth: My Lords, as the noble Lord has taken the opportunity to thank the Ministers and their team, I should like to mention again the

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enormous help that we have received. My noble friend Lord Wallace has just reminded me that my noble friend Lord Shutt recently paid a visit to St Helena and came back with some very interesting information on what happens there. We sincerely—I am sure that I speak not only for my noble friend Lady Hamwee but also for my noble friend Lord Greaves from his sick bed—give our thanks for the hard work that has been done by all during the lengthy process of the Bill.

Lord Hunt of Kings Heath: My Lords, I am most grateful to the noble Lord, Lord Livsey. I echo the comments made about the Bill team and the way in which it has responded, which has been excellent and has helped us to reach what has generally been a consensual approach to the Bill. As I said earlier, that provides a good foundation for what we all wish to achieve, not only in the marine environment but also in relation to coastal access provisions.

The noble Lord, Lord Wallace, has raised this matter in relation to a number of Bills. While I am not sure that I can promise him anything new, I can promise him consistency in the Government’s approach and response. I know that he is rather wary of our unwritten constitution and conventions. He is right that the constitutional relationship between the Crown dependencies and the UK is not enshrined in a formal constitutional document or in statute; rather it is the outcome of historical processes and accepted practice.

On the Crown dependencies, the islands are not part of the UK and therefore have no representation in Parliament at Westminster. They are internally self-governing dependencies of the Crown included in the term “British islands”. The Crown dependencies have never been colonies of England or the UK, nor are they overseas territories, which have a different relationship with the UK. They are fully functioning parliamentary democracies. Constitutionally, the UK Government have a considerable role; they are responsible for the defence of the islands and for their international relations.

The Crown is responsible for the good government of the islands as Crown dependencies. The Crown acts through the Privy Council on the recommendation of UK government Ministers in their capacity as privy counsellors, so the Crown’s powers over the islands are, in effect, exercised by the UK Government.

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The Channel Islands legislatures pass primary legislation which requires approval by the Queen in Council. The Isle of Man Lieutenant Governor, subject to the consent of the Secretary of State for Constitutional Affairs and the Lord Chancellor, grants Royal Assent to most primary legislation dealing with domestic matters passed by the island’s legislature. In the case of a minority of Bills, primarily those affecting the role and responsibilities of the Lieutenant Governor, Royal Assent is reserved to the Queen in Council. All the Crown dependencies have their own legislatures. The UK Government also have the power to legislate for the islands. However, the UK respects the islands’ rights to autonomy in their domestic affairs and it would be contrary to constitutional convention to exercise the power to legislate for them in these areas in all but the most exceptional circumstances.

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The UK’s relationship with overseas territories is based on partnership, shared values and the right of each territory to determine whether it wishes to retain the link to the UK. When seeking to extend the effect of UK legislation to the overseas territories, we would normally do so through consultation with them. The specific circumstances, diversity and remote location of many of the territories mean that UK legislation may not always be appropriate. Moreover, implementation of the law and creation of relevant local bodies would be extremely difficult without the co-operation of the territory concerned.

I know that the noble Lord, Lord Wallace, has concerns about the constitutional relationship. On the Crown dependencies—and the noble Lord knows this—the relationship was last examined by a royal commission on the constitution, which was appointed in April 1969. The commission issued its report, referred to as the Kilbrandon report, in 1973. The terms of reference of the commission were to,

The commission received and examined evidence about the relationship from the authorities in the islands and from organisations and individuals who responded to an open invitation. As the noble Lord mentioned, it acknowledged that there were areas of uncertainty in the existing relationship, which was itself complex. It did not, however, purport to draw up a fully authoritative statement as to that relationship. It noted the following conclusion in relation to the constitutional relationship between the Crown dependencies and the UK:

“We have been impressed by the virtual unanimity of opinion in the evidence submitted to us in favour of maintaining the existing constitutional relationships, either without change or furnished with additional defences against encroachment on the Islands’ autonomy”.

On 13 January 2009, my right honourable friend Mr Michael Wills replied to a Question raised by Dr Kumar on this matter in the other place. He was asked what the Government’s policy is on the future constitutional relationship between the UK and the Crown dependencies. Mr Wills confirmed:

“There are no plans for change to the constitutional relationship between the UK and the Crown dependencies”.—[Official Report, Commons, 14/1/09; col. 810W.]

Coming to the substance of the issue in relation to the Bill, I assure noble Lords that the Crown dependencies and the overseas territories have been fully consulted on the extent of the Bill and have been given every opportunity to request order-making powers in respect of all the provisions of the Bill. The outcome of these is reflected in Clause 313. On the noble Lord’s question of why only certain of the Bill’s provisions apply to certain Crown dependencies and overseas territories,

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I have answered implicitly. UK legislation is not normally extended to overseas territories and the Crown dependencies without their consent. In general, we seek to extend the effect of UK legislation through consultation with them. Therefore, the Bill as drafted reflects the outcome of consultations with the Crown dependencies and the overseas territories on the extent of the Bill and the specific order-making power included in it. Marine licensing is the most relevant part of the Bill applicable to the Crown dependencies and overseas territories. Following consultation, certain islands and overseas territories are listed but others are not, as the listed ones had requested that they be part of the Bill. That is the reason for that.

Lord Wallace of Saltaire: My Lords, I apologise for interrupting. There is the question of UK legislation, but there is also the question of the growing amount of international law and treaties on this issue. In 1973—some 35 years ago—when the Kilbrandon commission report was produced, international law on the sea, on maritime conservation and on the exploitation of marine resources was far less developed than it is now. So it is not purely a matter of extending UK legislation; it its about Her Majesty’s Government being caught in the middle between signing up to international law and then apparently not ensuring that those international measures are implemented in substantial areas of the sea that come under British sovereignty.

Lord Hunt of Kings Heath: My Lords, the noble Lord raises an important matter. He is right that under international law the UK is responsible for our treaty obligations undertaken in respect of the territories. There is no disagreement with him on that at all. Before a treaty can be extended to an overseas territory, the UK must be satisfied that the treaty obligations can be fulfilled by the territory. Consultation with territories regarding the extension of a treaty is clearly a matter of good policy and administration. Under international law, we are ultimately responsible for the due performance of treaty obligations undertaken in respect of the territories. I do not have an argument with the noble Lord in that respect. However, that is rather different from saying that the provisions of the Bill need to be reflected as regards the Crown dependencies and the overseas territories. I do not think that we can pull it all together and say that, given the requirements of international treaty organisations, the Bill is defective in relation to those territories and dependencies. We could not allow the legislation to do that.

The noble Lord also asked me about responsibility and the interdepartmental group. Alas, I have made inquiries about when the group last met but I am afraid that I have not yet found out. However, he can be assured that we will find out and I will let him have that information as soon as possible. I am sure that we are all eager to know. As regards departmental responsibility, the Foreign and Commonwealth Office is, not surprisingly, the lead department for overseas territories. The Ministry of Justice is the lead department for the Crown dependencies. Indeed, I think that my noble friend Lord Bach is the Minister responsible. I am sure that he wishes that he were present to answer the noble Lord’s questions on this

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fascinating matter. However, I shall ensure that my noble friend is aware of what we have discussed. Clearly, these are interesting issues.

My department, Defra, has an interest in biodiversity as the lead department on that in the UK. Other departments have relevant interests. The Department for International Development clearly has an interest in these matters. I am sure that DCMS is included due to maritime heritage issues. The noble Lord will recall that my noble friends and the noble Baroness who debated this issue were ever anxious for DCMS to produce a Bill on that basis.

On the problem of what I think can be called the white space—I think that the noble Lord was referring to the Isle of Man, but he could have referred to the Channel Islands—whatever the constitutional arrangements are, it is important that as far as possible there is an integrated approach between the UK Government, the devolved Administrations and the Crown dependencies. I hope that I can reassure him on this basis, because, first of all, we engage regularly with the Isle of Man, Jersey and Guernsey on relevant marine environmental issues. The Isle of Man supported much of the Bill and will be bringing forward its own legislative proposals in due course. It is undertaking a three-year project to designate the first marine nature reserve in Manx waters and aims to implement the first site by 2011.

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