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Marine and Coastal Access Bill [HL]
Bill Main Page
Copy of the Bill
Explanatory Notes
13th Report from the Delegated Powers Committee
Commons Amendments
8.30 pm
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Davies of Oldham): My Lords, I shall speak also to Amendments 18, 19, 21 to 26 and 28.
Amendment 1 to Clause 7 was agreed in the other place to ensure that references to the Marine Management Organisation in regulations made under Section 4(B) of the Sea Fish (Conservation) Act 1967 are linked to the exercise of the MMO's functions, rather than to geographical area. Amendment 2 to Clause 21(4) ensures that Schedule 15 to the Deregulation and Contracting
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Amendments 21 and 22 are necessary consequential amendments that we missed in the earlier drafting and correct the definition of the gas importation and storage zone in Section 35 of the Energy Act 2008, which has been invalidated by the amendment made to Section 1(5) of the Energy Act by paragraph 5 of Schedule 4 to the Bill. Amendment 23 to Schedule 4 was agreed in the other place to remove provisions amending the British Fishery Limits Act 1976 to take account of the creation of the Welsh zone. These provisions are no longer necessary as the required changes will be achieved by the transfer of functions order which is to be made under Clause 43 transferring fisheries functions in the Welsh zone to Welsh Ministers.
As we turn to the amendments to Part 3 made in the other place-Amendments 3, 18, 19 and 24-I take this opportunity to tell the House of recent developments on the subject of planning in the Scottish and English border areas, which is not an unimportant issue. I note that the noble Duke, the Duke of Montrose, is nodding assent. The House will recall that we debated how planning would operate in the Solway Firth. I am pleased to tell your Lordships that the Minister for the Natural and Marine Environment and the Scottish Cabinet Secretary for Rural Affairs have agreed a joint statement on marine planning in the areas bordering England and Scotland. This statement makes clear our commitment to build on cross- border collaboration already in place to enable a joined-up planning process across the borders. A copy of this statement will be placed in the House Library.
Amendment 24 to Schedule 5 is a missed consequential amendment on the changes made to Schedule 5 at the Bill's Report stage in this House. It clarifies that the timetable set out by the policy authorities in the statement of public participation for the preparation of the marine policy statement must include time for carrying out the appraisal of sustainability. Amendment 3 is also consequential on changes made to the Bill in this House, which added a subsection to place a duty on a marine plan authority to seek to ensure that a marine plan or marine plans are prepared for the whole of the marine planning region where an MPS governs marine planning for that region. However, some adjustment to the drafting was required to ensure that the provision would work as intended by this House.
Amendments 18 and 19 were made in the other place to provide for early commencement of certain provisions in Part 3 referring to marine planning. These provisions relate to the preparation and publication of a statement of public participation for the involvement of interested persons in development of the marine policy statement and will enable the Government to make early progress following Royal Assent.
Amendment 25 concerns an issue involving Schedule 13, which includes a power for the Secretary of State to call in the notification of a site of special scientific interest, which includes land lying below mean low-water mark. Concerns were raised in another place that there was a risk resulting from this provision
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Finally, Amendments 26 and 28 were agreed in the other place to correct an omission from our original list of salmon and freshwater fisheries legislation to be repealed. The amendments repeal Section 22 of the Salmon and Freshwater Fisheries Act 1975, as this is now redundant. Section 22 has also become redundant as a tool in the Environment Agency's fight against poaching and the subsequent sale of illegally caught fish. The agency has already been given more flexible powers in the Salmon Act 1986 which apply throughout the year and, following amendments we have made in this Bill, will extend to the sale of eels, lamprey, smelt and freshwater fish in addition to salmon and sea trout.
The amendments are largely technical and consequential, although one or two required a degree of explanation. I commend them to the House and beg to move.
Lord Taylor of Holbeach: My Lords, I think that your Lordships have had enough excitement for this evening-perhaps the Minister is sailing in calmer waters than the Minister in the previous debate did. I thank him for his explanations. As he said, these are largely technical and consequential amendments. I am very pleased, as I am sure other noble Lords are, to hear of the agreements made with the devolved authorities to ensure that this applies to all the waters around the United Kingdom in a way that this House would wish. It is perhaps a pattern for the future that augurs well for joint working between Whitehall and the devolved authorities. I am very pleased that the Minister has been able to report on the matter to the House this evening
Lord Wallace of Tankerness: My Lords, I think that in an earlier life I moved an amendment that had some relation to Solway Firth, recognising that anything that happens on the Scottish side inevitably must have implications on the English side and vice versa. Having been born less than a mile as the crow flies from the Solway Firth, I am well aware of how integrated the ecosystem is. This agreement is welcome and shows that where there is good will and a willingness to reach agreement, agreement can be reached. Perhaps the Minister can also confirm that the understanding also extends to the east side of the border, to the estuary of the Tweed, where there might be implications for activities offshore of the Scottish borders coast and also of the coast of north Northumberland.
Lord Greaves: My Lords, we meet this evening to look again at the Marine and Coastal Access Bill with a certain feeling of nostalgia. Nostalgia is a good thing only if it does not last very long. We shall be
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I have two points. First, I congratulate the Government on accepting the amendment. It was the only hostile amendment accepted during passage of the Bill, although we did persuade the Government to make many changes and improvements in all sorts of ways on the marine planning regions. We also persuaded them of the necessity and desirability of ensuring that marine planning covers the whole of an area once the marine planning statement is in place. The Government should be congratulated on seeing the sense of that and understanding that the amount of detail that the plans will cover, and the way in which they will cover different parts of the region, will vary enormously. Nevertheless, the principle of the planning system which will now apply to the marine environment is that it should be comprehensive. The Government deserve some congratulation on tidying it up to make sure that it is watertight-if that is the right word to use.
My other comment is on the statement of public participation for the marine policy statement and the Government's obvious intention and wish to get on with it as quickly as possible by bringing the deadline forward to the date of Royal Assent. On Monday, we had the first of the new national policy statements under the Planning Act 2008, and a Statement was repeated in this House about the publication of the draft policy statements for energy and the results of draft policy statements for ports. I want to refer briefly to the many debates we had during the passage of the marine and planning legislation about the way in which the national and marine policy statements will dovetail and have to be reconciled. The Statement made and the contents of the overarching national policy statement on energy leave quite a few worries that, in practice, the marine policy statement will follow on from those documents and will simply repeat in another document what they say. We are concerned that the publication of the marine policy statement will not be as robust and independent as we had hoped it would be.
Those concerns are for the future, however. As regards these amendments, we are very happy to support them.
Lord Livsey of Talgarth: My Lords, I am pleased that agreement has been achieved with the Welsh Assembly for close co-operation. Unfortunately, I was walking through the door to the Chamber just as the Minister had started speaking. I heard him refer to Wales and I apologise for not picking up everything he said. Perhaps he could therefore enlighten me. Various Bills have transferred many functions to Welsh Ministers. I am wondering whether in the case of the marine Bill, that will be done on a one-off basis rather than spending a considerable time from month to month transferring various parts of it to Welsh Ministers.
Lord Davies of Oldham: My Lords, I am grateful to all noble Lords for their contribution to this short debate on what I regard as largely technical issues. I appreciated the comments made by the noble Lord, Lord Taylor, on the general issues before we moved to
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The noble Lord, Lord Greaves, is right to point out that a great deal of work needs to be done in the evolution of policy, but we are talking about the Bill as it now stands. These amendments largely give effect to the positions taken up in the other place and in this House. He is right that the Government listened to points about the overall planning position.
As regards the Welsh situation, my comments related largely to the transfer of functions. I wanted them to emphasise that we are working in close association with the Welsh Assembly, underpinning the Bill throughout. I accept entirely the point made by the noble Lord, Lord Wallace, because Scotland is addressing these issues separately and making its decisions. There is a necessity for a joint statement on the estuaries. However, Wales is different because we have been working on its position throughout the Bill. I want to assure the noble Lord, Lord Livsey, that he did not miss anything with regard to these amendments. They are merely consequential, following the policy decision involved in the Bill which this House has agreed. The other place has also offered its contributions on that matter and, accordingly, I commend the Motion.
8.45 pm
Lord Davies of Oldham: My Lords, this is an important amendment. I want to preface my introduction by saying that there has been considerable comment in the Commons about the extent to which this House played a full part in the scrutiny of the Bill. We had the benefit of the Joint Committee on pre-legislative scrutiny, but when this House got down to the real task of examining the measures before us there was real and constructive scrutiny. Our colleagues in the other place were appreciative of the work done at this end. It was at times suggested that our debates had been somewhat protracted, and I remember that at times 11 days in Committee seemed rather protracted and that one or two contributions may have been a little lengthier than they needed to be. However, we presented to the other House a Bill that had been carefully scrutinised and that assisted their deliberations and made them more succinct. It helps us in considering their amendments because they are focused on issues that we considered fully and their views are of the greatest moment.
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There was considerable debate about the relationship between marine conservation and commercial fishing. We all know the importance of that debate. I know that it is several months since we were at full tilt on the issues, but we gave them much consideration. This area was one on which the other place focused and played a significant part in considering. The Government amended the Bill to future-proof it in anticipation of reform of the common fisheries policy. Of course we need to do that. I commend Amendment 4 and Amendment 17, to which I am also speaking, because that is their purpose. The principal amendment adds a new subsection (4A) after Clause 141(4). The new provision gives a power to the Secretary of State to restrict or remove the sea fisheries defence in Clause 141(4).
We cannot at present remove the sea fishing defence because to do so would leave us in clear breach of our European obligations under the common fisheries policy. However, we wish stronger recognition of our environmental objectives to emerge from the forthcoming reform of the common fisheries policy. The amendment sets us up to be able to take advantage of that as and when it occurs. It gives us the necessary flexibility to deal with potential changes to the common fisheries policy. The amendment enables us to restrict or remove the sea fishing defence. An important feature is that it is a one-way ratchet. Once restricted, we could not then broaden the defence again.
The Secretary of State, who is responsible on behalf of the UK for negotiations in Europe on fisheries matters, will exercise the power. However, as the Parliamentary Under-Secretary of State said at Report in the Commons,
- "any exercise of the new power would be made in close consultation with Scottish and Welsh Ministers, the industry, the MMO, inshore fisheries and conservation authorities and many others".-[Official Report, Commons, 26/10/09; col. 113.]
The 13th report of Session 2008-09 from the Delegated Powers and Regulatory Reform Committee of this House highlighted the amendment so that the House might seek the Government's explanation for the delegation of a power to remove or restrict a statutory defence to a criminal offence. I acknowledge that it is unusual to take a power to remove a defence at a future date, but the circumstances we find ourselves in are unusual. There are certain instances where criminal offences have been created through secondary legislation, not least in implementing European legislation.
The Government have considered the options available to address the concerns that have been raised in the debate. We need a flexible mechanism that allows us to deal with the unpredictable outcomes of the next and future reforms of the common fisheries policy. We need that flexibility. We believe that the amendment is the most straightforward way to ensure that we can refine the defence following any reform, and meet the concerns that have been raised. The alternative would be no amendment to the Bill and the necessity to use future primary legislation to restrict or remove the sea fisheries defence. It is unclear whether and when such an opportunity might arise. Of course, we are quite clear as to when any opportunity for such primary legislation would occur, so it is prudent that we build into this Bill the necessary flexibility to take account of changes to the common fisheries policy.
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I hope that the House will be reassured by the associated amendment, Amendment 17, to Clause 310(7). This ensures that the power will be exercised by means of a statutory instrument subject to affirmative resolution. Clearly, that power is important, and should therefore be exercised only through the affirmative resolution procedure, after being considered by both Houses. It is important that the exercise of that power is subject to debate in both Houses because its effect would be to amend primary legislation to expand the scope of what is criminal activity. That mechanism guarantees that the determination of what is criminal activity, which is of course more usually a matter for primary legislation, will be done only with proper parliamentary scrutiny both in the other place and in this House.
I hope the House will recognise that we have been concerned to meet the necessary future flexibility against changes in the common fisheries policy to which future Governments are bound to be committed, in circumstances where we all know why the common fisheries policy will need changes. I hope it will be recognised that we are seeking flexibility, but flexibility governed by the affirmative resolution procedure, so that any changes effected will be considered by both Houses of Parliament. Accordingly, I beg to move.
Lord Taylor of Holbeach: My Lords, I join the Minister in our slightly self-congratulatory mood over the success of this House in its scrutiny of the Bill. It has certainly strengthened the Bill and shown the House at its scrutinising best, notwithstanding the pre-legislative scrutiny that also took place. I suspect that the noble Lord, Lord Greaves, was making his comments with a certain amount of pride. I guess it is a campaign medal that most of us will remember.
Lord Greaves: Irony, my Lords.
Lord Taylor of Holbeach: Irony indeed, my Lords. The noble Lord, Lord Greaves, has a strong suit in irony. I shall stick to the plain narrative and thank my noble friends the Duke of Montrose and Lord Cathcart for their support in this scrutiny, as indeed I thank the Back Benches which have been behind me. It is appropriate to mention my late friend Lord Kingsland's work on the Bill. He was at his very best in probing, searching out and focusing all our minds on the relevant issues. I think that he would have had a bit of fun with this amendment, because it is not usual for this House to be much in favour of enabling powers. The Minister has been cautious in the way in which he has presented his case for these powers. However, the success of this marine conservation legislation cannot allow for damage to be done to the marine environment and a defence continued purely on the grounds of precedent. It may well be that this is the best solution for dealing with this matter when the common fisheries policy is reformed. When does the Minister think that that might be? How long will this clause be there to be used and how long will the Marine and Coastal Access Act, as it will become, have to operate while tolerating the fishing defence? I would be grateful for his opinion on this matter, although I understand that he can never be certain in his assessment. I think that I have said enough on the issue.
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Lord Wallace of Tankerness: My Lords, one part of the scrutiny that we did on this Bill in Committee and on Report was to ask the Government the extent to which non-UK-registered fishing vessels could be subject to prosecution if their fishing activities caused damage to the marine environment. The noble Lord, Lord Taylor, is right that we should treat with some caution orders that effectively extend the criminal law. At the moment there is a defence that, as I understand it, would be open to UK-registered vessels that might otherwise find themselves charged with doing damage. In any reform of the common fisheries policy, is it anticipated that non-UK-registered vessels doing the same damage to the marine environment would be subject to the same criminal prosecution as UK-registered fishing vessels?
The Duke of Montrose: My Lords, speaking as one of the lame ducks in this House who could be removed at a stroke if the Government came forward with a new alignment for this Chamber, it is nice to get a pat on the back from the Minister for what we have been able to achieve.
The government amendment is to Clause 141, which governs exceptions to offences. It currently contains the defence for sea fishing, but in future that will be governed by this amendment. I was intrigued to see that Clause 66 is lifted almost bodily from Section 5 of the Food and Environment Protection Act 1985-although, in describing the types of vessels that might be used at sea, it rather quaintly omits hovercraft, but perhaps they are not marine vessels. Part of the purpose when the 1985 Act was passed was that there would be a statutory instrument excepting a large number of fairly common occurrences that happen when a ship is at sea from the need for a licence. The statutory instrument that was passed includes, in Schedules 7 and 8, the deposit of fishing gear, whether fixed or not, and the deposit of fish or shellfish or parts thereof in the course of a fishing operation. This has the benefit, among other things, of giving specific permission not just for fishing tackle but for bait, which is a most necessary part of fishing.
Chapter 2 of the Bill describes an array of exemptions for major activities, but will the Minister say whether the Government will need another statutory instrument with another set of exceptions, such as those in the previous SI that enabled the prosecution of fishing, to accompany this Bill? There is a fear that its early application will be highly detrimental to fishing, which a number of people regard as a traditional right.
I was most intrigued to hear the Minister describe the role of the amendment in changing the common fisheries policy. If the current common fisheries policy prevents the removal of the fisheries defence, is there any guarantee that a new common fisheries policy will allow us to remove the sea fishing defence on that date? Is this part of the Government's approach and measures to reform the common fisheries policy?
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