Committee (2nd Day)
Clause 2: General objective
31: Clause 2, page 2, line 10, at end insert—
“( ) The MMO shall co-operate with any existing body or body established in the United Kingdom with similar or the same functions as the MMO by means of Memoranda of Understanding, including in relation to areas where both bodies are exercising their respective functions.”
In moving Amendment 31, in the name of my noble friend Lord Greaves and me, I detect that the rapid exodus from the Chamber is due entirely to the fact that my noble friend Lord Greaves unfortunately, through a sad coincidence, has to take part in the proceedings in the Moses Room on the Local Democracy, Economic Development and Construction Bill. It is extremely unfortunate that a number of Peers who have been taking an active part in this Bill are equally interested in that Bill and I hope that the business managers of the House will find it possible in future to avoid these coincidences. It does no credit to the way in which the House manages its business that Members have to be in two places at once.
I have every sympathy with noble Lords who are interested in both Bills. I take very seriously the noble Lord’s point and I shall raise it with the usual channels.
I am grateful to the Minister. I know that he takes this seriously and I am glad to have that assurance.
The amendment, which deals with co-operation between the different Administrations within the United Kingdom, is extremely important. I hope that my noble friends Lord Livsey and Lord Wallace of Tankerness will speak about the Welsh and Scottish dimensions of this issue.
Before I come to the main issue with which the amendment is concerned, I express, on behalf all Members of your Lordships’ House, my thanks to the Minister and his team for the effective briefing we were given yesterday, including the substantial advice in the form of maps about the way in which the various Administrations will need to co-operate to give practical expression to the new arrangements under the Bill. We are all grateful to the Minister for his care and attention on this extremely difficult issue. Having said that, the fact that the Minister felt it desirable to have that briefing and that so many Members of your Lordships’ House attended demonstrates the importance of achieving clarity on the issue to which Amendment No. 31 refers.
The purpose of this amendment to Clause 2(2) is to ensure really effective consistency and co-ordination between the MMO and the devolved Administrations. Where such an Administration are delivering activities within the UK marine area, there is currently no effective requirement in the Bill for the MMO to co-ordinate with it. Clearly, it is extremely important to ensure that an ecosystem approach to marine resource management is effective. On these Benches, we believe—and Committee Members on other Benches may perhaps agree—that it is necessary urgently to address this general objective for the MMO.
It is clear that marine activities are not restricted to any political borders, least of all in the seas around our islands. The management regime must therefore reflect that. We believe that the marine environment must be seen to be dealt with holistically; cross-border areas will, therefore, have to be managed effectively. Otherwise, there is an obvious risk that the Marine and Coastal Access Bill could complicate the situation, at a time when we seek to simplify the management and licensing arrangements.
This amendment, which noble Lords will surely agree is probing, therefore seeks to fulfil the point raised by the Joint Committee chaired by the noble Lord, Lord Greenway, that:
“The relationships between the MMO, the Welsh Assembly Government and the equivalent Scottish body should be formalised in the Bill”.
It is not, in our view, sufficient to leave that to further secondary legislation or to guidance and instruction following thereafter. It also seems to me extremely important to go one step beyond the Joint Committee, by considering the relationship with the Northern Ireland Administration—another point raised at yesterday’s briefing—and, indeed, that of the Republic of Ireland. These matters will take no notice of any lines on the map.
While Clause 2 seeks to ensure a “consistent and co-ordinated” approach to marine management within the MMO area, there remains a gap, given the need for the MMO to co-operate with the activities of equivalent bodies in the various Administrations outwith its area. If the MMO is to be the strategic delivery body for the UK marine area that we all hope and intend, it should clearly be obliged to co-operate with devolved equivalents through a memorandum of understanding, and to reach co-ordinated decisions for areas with a mix of reserved and devolved functions.
There are probably several options to meet that requirement. The Minister might be able to indicate which option is preferred, but there clearly has to be one and it cannot be left in the air. The effective purpose of this amendment is to require the Bill to indicate the Government’s preferred option. There could be a joint body, for example, or a series of joint bodies or regional fora, following how this problem was faced in the JNCC model for UK conservation bodies as set out in Part 2 of the Natural Environment and Rural Communities Act 2006. That involved the establishment of a joint body or bodies with distinct functions to advise on matters of common concern.
The Joint Committee on the draft Marine Bill adopted that approach. Paragraph 201 of its report suggested that,
“the Government consider cooperative approaches towards the Irish Sea, similar to those of existing regional seas commissions, involving the devolved administrations (and the Governments of Ireland and the Isle of Man) to work together collectively to produce agreement on the coordination of spatial planning, fisheries and nature protection … in the Irish Sea, the Solway Firth and Bristol Channel”.
Any brief look at the maps produced by the Minister and his team yesterday will obviously demonstrate the need for that co-operative and co-ordinated approach. We cannot wave maps around to any good effect in your Lordships’ House—Hansard does not record it—but all those Members who took advantage of yesterday’s briefing will agree that that approach is clearly extremely important. I therefore hope that the Government will give further consideration to the recommendations of the Joint Committee.
Another way would of course be to impose a specific duty on the MMO and devolved Administrations. Whether that would work or whether it is better to seek some form of specific mechanism is a matter on which Members of the Committee will hope to hear from the Minister. In the mean time, I beg to move Amendment 31.
I shall speak to the amendments in the name of my noble friend Lord Taylor of Holbeach. In doing so, perhaps I may echo the sentiments of the noble Lord, Lord Tyler, about the difficulties we have with business taking place in the Moses Room at the same time. We hope that we will hear before too long from the noble Lord, Lord Greaves, because we always value his contribution.
Once again, the noble Lord, Lord Tyler, and my noble friend have tabled amendments that appear to seek to address much the same concerns. They are an effort to assign a little more meaning to the rather airy hope that the Marine Management Organisation will act in a way that is “consistent and co-ordinated”, as it is put in the Bill.
The MMO’s area of responsibility is not an isolated and hermetically sealed area of water where policies can be implemented in laboratory conditions. On our first day in Committee, my noble friend Lord Kingsland argued powerfully that the marine environment should be seen as an ecosystem and that decisions should be made with full awareness of the consequences not only for the environment in the immediate area but potentially for that in remoter areas as well. The MMO must therefore take note of the effect of its decisions not only in areas within its remit but in those outside its boundaries. Similarly, it will have to be aware of decisions taken in nearby areas by other organisations.
Amendment 42 would therefore ensure proper consultation, rather along the lines that the noble Lord, Lord Tyler, was talking about, with bodies that have similar responsibilities in areas likely to affect the MMO’s area. Such bodies could be devolved Administrations, land-based organisations or international bodies.
Amendment 65 goes a little further into the devolution of performing functions under the MMO and seeks to ensure that a formal arrangement is made with the relevant bodies to ensure that difficult decisions are handled appropriately and effectively. It is all too easy for an area to be overexploited by one organisation and for the cost of repair to fall on another. The amendments would prevent that. I have no doubt that various agreements could be drawn up without Amendment 65. The Bill contains several measures in Clause 15—for example, to ensure that the agreement is publicly available—that would be of benefit to any memorandum of understanding. I hope that the Minister will consider establishing to a much greater extent interactions between the MMO and the enormous variety of relevant bodies that will be critical to its work.
These are helpful probing amendments. Perhaps I may probe in particular whether the Government expect the MMO to collaborate and co-operate at a practical level with organisations that have responsibility for the heritage—the cultural heritage, if you like—of the sea, particularly with English Heritage.
I, too, found yesterday’s consultation extremely helpful in the context in which Amendment 31 is tabled. The amendment would give some teeth to the general objective on page 2 of the Bill, especially where bodies and legislatures are coterminous, so that there is no doubt about the status of agreed co-operation between them. Hence, the MMO’s co-operation with bodies that have the same functions in the UK would be the subject of memoranda of understanding—I think particularly of agreements struck between the Welsh Assembly Government and the MMO. The nature and detail of what was contained in the agreement to co-operate in certain circumstances would then be quite clear.
I am thinking in terms of what may occur in the Irish Sea, the Severn Estuary or on the north Wales coast if both the Welsh Assembly Government and the MMO were involved. The same may, of course, apply with the other devolved Administrations, and I am sure there will be comments on that. Where Wales is concerned, it may be appropriate to secure, as we heard yesterday, a fair and equal marine boundary between Wales and the Republic of Ireland. It would prove beneficial in a UK context in stabilising, for example, offshore fishermen in the Irish Sea. A memorandum of understanding there would be extremely helpful.
With regard to the Conservative Amendments 42 and 65, Amendment 42 refers to the MMO only having to consult with any relevant body with functions in adjacent areas. No agreement would be struck, only consultation. Amendment 65 refers to an agreement and as such is more acceptable. But a Memorandum of Understanding, as in Amendment 31, is by far the best outcome. It would ratify an agreement and produce an important reference document.
The meeting yesterday with the Minister was helpful and the maps provided transformed the scene for me personally, because I saw the enormous complications that will be involved for the MMO and the bodies with which it has to co-operate. I ask the Minister, for the record, whether the Government are contemplating publishing maps of that kind as part of the Bill when finally it becomes an Act. It would help legislators and those who have to operate this legislation. Whatever the Government do about formalising the means of consultation, the motto should be as simple as possible. It is going to be a very difficult job for the devolved Administrations, the MMO and others to operate this. To leave it completely informal probably will not work. Something will have to happen but the least complicated way will be the right way. I hope that is what the Government will use as their watchword.
I am increasingly worried about how this Bill, which seemed on the face of it to be a good idea, is going to operate. It is an example of the problems of devolution. We all want devolution to work as smoothly as possible but this is an example of what happens when functions overlap between the various bodies. It is going to be very difficult indeed, so it will be interesting to hear what the Minister has to say about these amendments.
I echo the thanks and appreciation expressed to the Minister and his departmental officials for a very helpful meeting yesterday, but it only underlined the complexity of the issues which we are facing and the geometry or the interaction of different responsibilities in different areas. For that reason, perhaps more than any other, the importance of “co-operation”, which is the word mentioned in the amendment moved by my noble friend Lord Tyler, is vital.
I declare an interest as a member of the Commission on Scottish Devolution. I chair within that commission a small task group looking at intergovernmental and inter-parliamentary relationships. In our first report we highlight the need for improved relationships and better understandings where there is cross-border activity. Obviously, as has already been said by my noble friend Lord Tyler, when dealing with the marine environment, you can put boundaries on a map but it does not necessarily affect what will happen at sea. There are clearly interactions in different parts of the marine environment and therefore, again, co-operation is vital. If the Minister was minded to accept this amendment or if a similar amendment was brought forward, in the interests of comity it would be important when the Scottish Government bring legislation before the Scottish Parliament, as they indicated they intend to do, that a similar duty of co-operation is placed on Marine Scotland. It is important that we get that mature relationship between the various bodies that will have responsibility.
I note that in their response to the Joint Committee report, which was referred to by my noble friend Lord Tyler, the Government suggested that the British-Irish Council might be an appropriate forum. I see some advantages in that in as much as it brings together the Administrations not only of Scotland, the United Kingdom and Wales, but those of the Isle of Man, Northern Ireland and the Republic of Ireland, not to mention Jersey and Guernsey. However, in a previous incarnation, I took part in a number of meetings of the British-Irish Council and unless it has materially changed in the past two and a half years, I do not get the impression that that body could get down to the kind of detail that would be required in dealing with this. Therefore, I very much support the thrust of what my noble friend Lord Tyler and indeed the noble Duke, the Duke of Montrose, said about co-operation and I hope that the Minister will be able to say something in response about the importance of that and how it might be embodied in the Bill.
I am sure that we all miss the noble Lord, Lord Greaves. He made what I thought would be a cameo appearance. Alas, it was all too short. I reiterate again—although I did not think I received much positive response from those usual channels who were present at the time—that I sympathise with noble Lords on this matter. Indeed, I attended the debate on local government two days ago only to listen to the noble Lord, Lord Greaves, being concerned about the Government trying to be too explicit about what should be done at local level. Alas, he is not here to argue that point as we debate an important group of amendments.
I appreciate the thanks given to my officials for the maps that were produced yesterday. I echo noble Lords’ thoughts that this is rather complex. As we went through the maps yesterday, the complexity became ever more apparent. The noble Baroness, Lady Carnegy, spoke about publishing the maps with the Bill. I am not sure about publishing them as part of the Bill because I suspect that that would involve some legal niceties. I take her point, but I disagree with her pessimism about the Bill. I will certainly make sure that when, as we hope, this Bill becomes an Act, such maps will be made available to the people who actually have to operate and understand the new system. That was a fair point to make.
Of course, I accept the general proposition put forward that inevitably, given the interrelationship between the UK Government’s responsibilities, the devolved Administrations’ responsibilities and the Executive devolvement of authority, the fact that there are different sets of arrangements in different parts of the Bill is very important. All those who will be involved in ensuring that this Bill when enacted works in practice need to co-operate together. The question is whether the suggestion of the noble Lord, Lord Tyler, is the right one. A more fundamental question is that raised by the noble Baroness, Lady Carnegy, about whether you need a formal arrangement, and, if you do, whether it can be kept simple as possible. It is not easy to answer that. I say right at the beginning that I will be reflecting on this debate between now and Report.
I will take a little time to describe the philosophy that we see underpinning the need for co-operation. Certainly, we see a range of formal and informal arrangements, depending in part on the nature of the organisations concerned, the potential impact of their remit on the MMO’s activities and the complexity of the interdependence of their respective roles and responsibilities.
On the question of a memorandum of understanding, in some cases that will be entirely appropriate, but the organisations may not wish to have one. We think that the most appropriate form of arrangement in each case will be decided through mutual discussion and agreement. Any decisions to be taken on behalf of the MMO will be a matter for its board in due course.
I want to reassure noble Lords that we plan to make more information available later this year as we continue to work on the transition from existing systems to the new body. The noble Duke seeks to include provision in Clause 2 to require the MMO to consult any relevant body with functions in the areas adjacent to, affecting or near the MMO’s area. I want to make it clear that, in the objectives set for the MMO, normal good practice on consultation will apply. This is already the case in relation to the existing Marine and Fisheries Agency whose functions will be subsumed by the MMO, and we will continue to expect consultation to take place with relevant bodies in adjacent areas as necessary. I am yet to be convinced that we have to make that a statutory part of the MMO’s duties, though I am listening to the debate today. We want the MMO to develop strong and effective engagement with its key delivery partners as well as with the full range of coastal and marine industries and interests. As an example, the MMO will be required to consult relevant bodies when making licensing decisions.
We plan to engage with stakeholders—if I can use that wretched term—including relevant regional and local bodies in the marine planning process. It is obviously vital that regulators, coastal communities and a range of individual organisations with an interest in the marine and coastal environment are all to be involved in developing marine plans. Those organisations need to work together to facilitate that process and to make it transparent. The MMO will publish a Statement, known as a Statement of Public Participation, when beginning to develop each plan, setting out how stakeholders will be involved at each stage. This will include consideration of the nature of the coastal community and marine users affected in each plan area.
Will the existing co-operation arrangements within the fishing regime have any formal status, given that co-ordination between the various bodies has been a matter of habit? Is there anything laid down as to how they should co-ordinate?
I do not think there is. That shows that it is often unnecessary to lay it down in statute because, in the main, organisations behave in a sensible way. Any sensible organisation in the marine area will understand that, in order for there to be a coherent approach to all the matters encompassed by this Bill, people should work together. One of the debates is on the question: how far does one need to make it explicit and, if one does, would the fears of the noble Baroness, Lady Carnegy, be realised? It could lead to complicated arrangements which would defeat the object of the exercise.
I understand the questions that have been raised about the devolved Administrations. The maps we looked at yesterday clearly illustrate some of the complexities. The devolved Administrations will be carrying out functions in adjacent areas; for example, through bodies that they establish, such as Marine Scotland. In the case of the Welsh Assembly Government, their intention is not to set up a separate organisation but to undertake the work through the good offices of officials within the Assembly. I gather that might also be the conclusion of the Northern Ireland Executive. The reason why there are technical issues here is that it would not be normal practice for a delivery body of one Administration—the MMO, for instance—to enter into a formal agreement with another Administration. Rather, it will be for the Governments to decide between them how the delivery bodies might need to work together.
On this point, there is very good news. The work in pre-legislation was very helpful in encouraging the Government and devolved Administrations to come together. During the discussions, we promulgated the idea of setting up ways in which to work through a concordat between us to deliver agreements on joined-up marine planning. I believe that across policies in the Bill we, as Ministers, will need to work with colleagues in other Administrations to ensure joined-up ways of working, which can then be turned into guidance or direction to the MMO for delivery in the areas for which we have responsibility. It would be perfectly possible for the devolved Administrations to do the same in relation to their officials, if their officials are responsible, or to any agencies that they so establish.
I do not think that that sort of concordat approach between the UK Government and the other Administrations is without merits. There is a great deal to be said for it, and it does not mean to say that there will not be close collaboration between the Administrations. That will clearly need to be continued. In Clause 26(2), the Bill already allows for the devolved Administrations in Northern Ireland and Wales to ask the MMO to take on functions on their behalf and provides for the MMO to charge for such services.
My initial conclusion is that, while I accept that there is a strong argument for doing everything we can to ensure that close collaboration takes place between all the partners who have to make it work, there are some practical issues about placing duties on the MMO to reach memorandums of understanding with officials in another Administration or, indeed, with agencies set up by another Administration. I recognise that noble Lords need to be convinced that this will work together and that we have the collaborative arrangements and machinery in hand. On that basis, I hope noble Lords will accept that I shall go away and consider what further work needs to be done, although they also need to know that I am sceptical about establishing very formal agreements, for the reasons I have stated.
I hesitate to enter this debate, as I have not taken any part in it up to now. I particularly wanted to hear what the Minister said before I intervened.
We have had a lot of talk about consultation, concordats and co-operation. There is one aspect of this that worries me. The bodies responsible are going to deal with stocks of value, such as fish. As the Minister said, in referring to Clause 26, they will also deal with charging. I should tell the Committee of my own bitter experience as chairman of the National Rivers Authority, when we were responsible for looking after the salmon coming into the Solway Firth. Eventually, if they survived, they entered Scottish waters. Most of them did enter Scottish waters and most of them were caught in Scottish rivers. We in the National Rivers Authority, south of the border, incurred very considerable charges and decided that we must seek to recover them from Scotland. There was nearly a war. I cannot describe the anger and the fury that was created. A former colleague in another place, later a Member of this House, now sadly no longer with us, led a violent campaign against the iniquity of the National Rivers Authority in thinking that it could charge the Scots for those services.
I mention that experience to indicate that such subjects may be extremely difficult and delicate; not always to be sorted out by consultation. I hope that when the Minister gives further thought to the matter he will give particular thought to the problem of dealing with stocks of fish, for example, that move from one area to the other and are valuable, and the effect of the actions that one body may have on those valuable stocks moving into another responsible authority’s waters, and the question of charging.
I have a hunch, having listened to the debate so far, that some elaborate and careful arrangements may have to be made that go beyond consultation, and so on. I make the point at this stage so that it can be adequately considered as the Minister looks at the issue in the future.
That is an interesting comment. When the noble Lord talked about the angst of Scottish fishermen and fee increases it took me back to the early 1970s when we in Birmingham had to start paying for the water that came from Wales, the supply line for which, the noble Lord will know, we had built some years before. That is a sensitive area. Looking at the noble Lord, Lord Livsey, I wish that I had not gone there. I understand his point and I put the point back to him that unless the UK Government and the devolved Administrations work together, there could be problems for those affected by the Bill’s provisions. That is not in doubt. The question is whether establishing some complicated duties that would have to be considered in relation to the devolution settlement will prove to be extremely tricky.
I am heartened by the meeting that took place in the summer between Ministers in the UK Government and the devolved Administrations, which led to the joint statement of determination to work together. As I have said, this is not the last word. I am anxious about putting in the Bill complicated machinery, but I understand the point about the need for us to ensure that co-operation takes place.
I am grateful to all Members of the Committee who have contributed to this short debate. It has been helpful, not least in the way in which the Minister responded. There is one aspect to which the Minister may like to respond now, to which my noble friend Lord Wallace of Tankerness referred. What is unusual about this legislation is that it has been developed in parallel with similar legislation in the Scottish Parliament, and therefore it would be possible for that reciprocity not effectively to be given expression in the two pieces of legislation because they are simply coming together. It would be possible, for example, in the Bill that I understand is to be placed before the Scottish Parliament that Marine Scotland may have put in place some sort of mechanism that does not match anything in the UK legislation.
I wonder whether, in reflecting on that matter—if he does not have an instant reflection—the Minister could give specific expression to it, because it is unusual. Consultation goes so far, but when a legislative process is taking place in two different places at the same time, it seems that the potential for confusion is considerable.
I have two comments. First, although the situation is complex, I hope that the Bill will emerge in such a way that the respective powers and duties of the different Administrations will be clear. Secondly, I will of course ask my officials to look into it further to see what further information can be gathered about developments in Scotland. However, the very fact that the legislation is to be considered in the Scottish Parliament is the most visible demonstration of the co-operation that has taken place between us.
As always, the Minister is reassuring. However, we are all aware that the dialogue between the United Kingdom Government and the Administration in Edinburgh has not always been as smooth and profitable as he perhaps implies. I hope he is right that the fish are all swimming in the same direction.
I shall not go up the salmon rivers of Scotland but I do want to be reassured on whether a concordat is sufficient. The Minister has already gone a long way to doing so, but I hope he will give it further thought. It is at the crux of this. Yes, it is normal practice. Yes, we understand that conversation is taking place all the time—no doubt dialogues are always happening behind the scenes. However, it is important that those of us who are responsible for looking at the detail of UK legislation are properly reassured that that legislation is sufficiently robust when it comes to the difficult problems that may well arise.
It might help if I write to Members of the Committee setting out how we see the concordat working and how we expect the MMO to work with other agencies. If it would help, I am sure that we could have another constructive debate on the matter in the light of that.
I am grateful to the Minister; that is helpful. When we see what he comes forward with, we will undoubtedly reflect on whether we need to take this further. He has generously said that he will reflect on this important issue before Report, and we will do likewise.
Amendment 31 withdrawn.
32: Clause 2, page 2, line 10, at end insert—
“( ) The MMO’s general objective includes—
(a) promoting marine conservation and protecting and enhancing biodiversity and habitats,(b) conserving and enhancing the marine landscape including the seabed and geological features,(c) promoting the study, understanding and enjoyment of the marine environment,(d) undertaking research and providing information and advice to the Secretary of State and other public bodies, and generally on all aspects of the UK marine area and the social and economic uses which take place in it.( ) In promoting its general objective, the MMO may in particular, work closely with coastal communities.”
Amendment 32 reflects to some extent the anxieties expressed when the Committee last studied the Bill that the Bill does not provide sufficient expression of purpose in setting the MMO’s general objectives and giving priority—or at least specific reference—to the issues of conservation. I hope the noble Baroness, Lady Young of Old Scone, will speak to the amendment, because we on these Benches and she share anxiety on the point. We believe that the so-called Sandford principle, which was so important to those of us involved in the national parks, should be seen as a possible model for the Bill.
The amendment sets out a number of general objectives that would strengthen the MMO’s objective base. The evidence we have received so far from a large number of NGOs has been to the effect that they are concerned that the current provision is too weak and needs strengthening. The amendment therefore sets out a number of specific objectives, from (a) to (d), whereby we seek to adapt the list incorporated in the Natural Environment and Rural Communities Act 2006 and give it a marine tinge. We are taking Parliament’s previous decision on these matters and adapting it appropriately to the marine environment. The list includes,
“promoting marine conservation and protecting and enhancing biodiversity and habitats … conserving and enhancing the marine landscape including the seabed and geological features … promoting the study, understanding and enjoyment of the marine environment … undertaking research and providing information and advice to the Secretary of State and other public bodies, and generally on all aspects of the UK marine area and the social and economic uses which take place in it”.
It is a simple read-across from the previous legislation, and it is important to include it.
I should underline that we have also made reference in a separate new subsection—I hope the Minister accepts that it covers a lacuna in the Bill—to the general objective to,
“work closely with coastal communities”.
That will have an important resonance when the Bill reaches the other place. Members of the Committee who have represented a coastal community, as I have, will recognise that it is critically important that these objectives are accepted and owned by those who live along our coasts. If coastal communities feel that this policy is being imposed on them and the MMO’s objectives do not sufficiently recognise these communities’ role in developing the policy, then the policy will fail. In developing the MMO’s role it is extremely important that we take with us the population of those communities as well as those whose livelihoods depend on the sea.
This is a bit of a portmanteau amendment which adopts some important objectives from previous legislation. But it also addresses the issue of involving coastal communities in the development of these policy objectives. I hope the Minister will respond specifically on that. I beg to move.
This is an important group of amendments, as the noble, Lord Tyler, said. I am speaking to my Amendment 33, which covers similar ground to Amendment 33, and to Amendment 179, which appears right at the end of the Bill, in Clause 312, and in which we are joined by the noble Baroness, Lady Young of Old Scone. In the latter amendment we seek to include an interpretation of “natural environment” in the key glossary at the end of the Bill. It is a significant omission which should be corrected.
On our first day in Committee the noble Lord, Lord Hunt, made it clear that we should not worry because, in addition to the more vague objectives in the Bill, the Marine Management Organisation would have to operate within the new marine policy statement and the guidance given by the Secretary of State. We believe that that is not enough. The Joint Committee report states that by failing to define “sustainable development” the Bill,
“leaves undefined a core ethos, by which it proposes that the marine environment be managed”,
and that this “creates uncertainty”. This group of amendments therefore seeks to define the MMO’s functions more clearly and precisely. Amendment 32 is similar to mine but I prefer my drafting as it provides a wider range of more specific duties to which the MMO must have regard.
We on these Benches envisage the MMO as the organisation to resolve the inevitable conflicts between groups with different concerns, not as one more lobby group itself. As Amendment 33 makes clear, the MMO will have a huge variety of concerns, functions and objectives. The list, of course, is not exhaustive, and even the desirability of some of the items listed is open to debate. But the list still indicates and serves to show the balance that the MMO must strike in its activities.
However, all the items are relevant to sustainable development, and many are specifically mentioned in the Bill. Some—such as paragraphs (b) and (g)—focus on the conservation element. Other criteria make it clear that our marine environment is a dynamic resource that is capable of providing food, energy and recreation. Others highlight promises that the Government have made and targets which they themselves have set. All the criteria are important; the question of which is the most important is impossible to answer.
The MMO must be capable of making decisions about the marine environment despite these conflicting concerns. It would be counterproductive for these decisions to be second-guessed and continually challenged by the more narrowly focused lobby groups and stakeholders involved. I should be interested to hear the Minister’s views on this and to hear a fuller explanation of how the MMO will be expected to weigh the different interests in which it will be engaged.
I rise to promote Amendment 179, to which I have gladly added my name. At the moment, this issue feels a bit like a circus act where you have two horses, with a foot on each, but the horses are diverging rather rapidly. We are in the middle of the debate about the general objective of the Marine Management Organisation. We debated it to some extent at the previous Committee sitting and we are debating it now, and I hope that we can persuade the Minister that there is sufficient unrest for there to need to be a radical review of the general purpose before Report.
There is a range of views. At one end is the even-handed view that all the purposes listed in Amendments 32 and 33 need to be weighed up by the MMO in reaching a decision, and at the other end is my view—one that I think is backed up by many of the conservation NGOs which have lobbied for this Bill over the past 20 years—that, although the Marine Management Organisation needs to be even-handed in looking at all the competing pressures around the marine area, if push comes to shove and an important environmental resource would be diminished or destroyed by other pressures, the marine environment must ultimately be the tie-breaker.
With that in mind, having promoted the Sandford principle during our previous day in Committee, I put my name to the definition of the natural environment in Amendment 179. It clarifies what I consider to be an extremely important and basic objective of the Marine Management Organisation. We should press the Minister to take note of the very real unrest that I think exists on all sides of the Committee about the flabby nature of the current objective as stated in the Bill and to come back with something which, although it may not go as far as I want, certainly goes further than the Bill does in its current flabby way.
Can the noble Baroness give the Committee the nuts and bolts of the Sandford principle? At one point, I heard that it was that nothing should take place within a national park if it could be done elsewhere.
The noble Duke has caught me on the hop, as I do not have the piece of paper describing the Sandford principle. However, it is a long way from the view that there should be “no development here”, about which he is so apprehensive. In fact, it is a tie-breaker principle that says that the national parks have a series of objectives—I think that there are three or four—the first of which is nature conservation and landscape protection. The others relate to access, recreation, education and economic development. It says that the aim of the national park system should be to deliver all those objectives but, if push comes to shove and at the end of the day there is a landscape or natural environment issue that is not a run-of-the-mill resource but an important national resource, that should take precedence if there is no way of finding a solution that combines all the objectives. Therefore, it really is a principle of last resort and not a “don’t come here” proposition, which we do not want to see in the marine environment. The marine environment is incredibly important for a whole variety of social, environmental and economic purposes, and we want to see the Marine Management Organisation focus on those in such a way that they are all delivered. However, we have to give it a bit of help by saying that, if it gets absolutely stuck and cannot find a way of doing all of them, ultimately one must have pre-eminence. Alas, the noble Duke has given the Minister adequate and valuable time to stop being outraged at the word “flabby”—I was hoping that he might explode on that.
There is quite a lot to commend the approach in Amendment 33 in that, if you are a member of this body, to which I am increasingly sympathetic because of what it will have to do, and you are trying to reconcile the countless interests, it will be quite helpful if the Bill says what you must have regard to. There is a problem in reconciling competing interests, many of which are professional, involving money and so on, in collaboration with devolved Administrations, some of whom are quite happy to make it a little difficult to do so. So it would be quite good to have a list, such as that in Amendment 33. I see the merits of the approach in Amendment 32, as to what one must have regard to. It would be a very good lesson as one proceeded in this difficult operation. I am sympathetic towards it.
I want to speak to Amendment 33, although I think the other amendments in the group are very useful. All the amendments helpfully open up the discussion and enable the Minister to clarify what the Government envisage will happen under the new structure created by the Bill. First, I apologise to the House for not being able to speak at Second Reading. I would have wished to have covered some of the same ground so excellently covered by the noble Baroness, Lady Hooper, in her remarks at Second Reading about heritage. Other noble Lords also spoke valuably on that topic—my noble friend Lord Davies of Coity and the noble Lord, Lord Tyler—and, of course, my noble friend the Minister said that he looked forward to debating the heritage issues which arise under the Bill.
My noble friend has reminded me that I did not respond to the question he raised in our first debate. He asked whether we would encourage the MMO to enter into fruitful discussions with English Heritage. The answer, of course, is yes. Would I want a statutory provision in the Bill? I suspect the answer to that is no.
That is interesting and characteristically helpful. It advances us a little because the Explanatory Notes make, as far as I can discern, no reference at all to heritage responsibilities for the Marine Management Organisation. My noble friend has given us a positive indication. I hope that he will think very carefully whether he needs to be more specific and more concrete in this legislation.
On too many occasions in the past, we have missed our legislative opportunity. My understanding is—this is buried in our heritage of legislation—that in the Protection of Wrecks Act 1973 the Government and Parliament simply forgot to equip English Heritage or its predecessor body with a competence in underwater archaeology, so we had to stumble along with a very inadequate provision. I tried to remedy that when I was a Minister in DCMS in bringing forward the Culture and Recreation Bill in 2000. It was based on much consultation, a complete consensus between various professional bodies and institutes which were interested and between the political parties. Sadly, as we ran up against the buffers of the 2001 election, the party opposite, the Conservative Opposition, was unwilling to give the legislation a fair wind.
I was cross, at the time, but I shall give them the benefit of the doubt; perhaps they were right to say that one should never wave through legislation and that it ought to be scrutinised. At all events, we were unable to get it on the statute book at that time. Happily, the noble Baroness, Lady Anelay, took up the cause in a Private Member’s Bill which became the National Heritage Act 2002 their put on the statute book some of the relevant provisions which had been in the Culture and Recreation Bill.
The upshot is that under existing legislation, English Heritage is empowered to use resources to protect and conserve submerged marine monuments. It makes recommendations about the designation of shipwreck sites and areas around them of historic and archaeological importance, and it administers licences granted by the Secretary of State. This is enormously important in relation to our national history identity and culture. It is part of our island story—if I may use the phrase—and of our history as a seafaring people. That still applies in the age of air travel, the Channel Tunnel, globalisation and digital communication no less than it did before. Our maritime heritage is massively important.
Amendment 33 rightly requires the MMO to have regard, among other matters, to heritage and marine archaeology. When the Minister winds up, will he explain rather more fully how he envisages that the existing powers and duties of English Heritage will fit into the new structure that the Bill creates and whether those powers will be enhanced or extended? To give a small, practical instance, on which I think the noble Baroness touched in her Second Reading speech, English Heritage does not collect information or advise on historic environment issues in areas beyond the territorial limits of the UK territorial sea. However, the MMO would need to have such information. Who will be empowered, and who will have a duty, to collect that information? What can we expect in the MMO’s statement of public participation about the division of labour and the complementarity of the responsibilities of, for instance, English Heritage and the MMO? My noble friend observed that sensible people and sensible organisations work together willingly enough, and that is true, but sometimes it is not very easy for them. It depends on the terms of reference set for them by legislation and by their department’s policy, and on whether they have the budgets to carry out the work. Can my noble friend assure us that Defra and DCMS are truly shoulder to shoulder in relation to underwater archaeology and the historic maritime heritage and will operate their policies coherently?
Among the major functions of the MMO will be the planning function. That will take place within the context of a marine policy statement. We understand that the marine policy statement will be a statement of policy for the Government as a whole. But can my noble friend give me the reassurance I seek in relation to the maritime heritage? Will sustainable development in marine planning terms explicitly include sustaining the cultural heritage as well as the natural heritage? Will the licensing duties to protect the environment protect the marine historic environment? Will marine conservation zones take account of existing designations in conserving the marine historic environment? Is that what Defra contemplates as well as the DCMS? If so, how will it work, and who will do what? I do not expect the Minister to be able to answer all these questions here and now, but these are important issues that are usefully prompted by this amendment. Will the inshore fisheries and conservation authorities be required to safeguard the historic environment in co-operation with the MMO, English Heritage, local authorities and others?
These are simply some of the issues that are implicit in this helpful Amendment 33. I do not know whether the Government wish to accept it, or something like it. I have noticed that Governments are always rather resistant to what they call catalogues, but the Committee expects the provisions of this legislation to be considerably more precise, indicative and concrete than they appear to be at the moment. I would not dream of using the same language as the noble Baroness, Lady Young of Old Scone, in any animadversions I might offer on the drafting of the Bill. We will be able to return in greater detail—indeed, in greater elaboration—to these issues in subsequent amendments tabled by the noble Baroness, to which I have had the pleasure of adding my name. For now, it would be helpful if the Minister would look forward and give us an initial account of his thinking in this regard.
I follow the noble Lord, Lord Howarth, in supporting this group of amendments, in particular Amendment 33, tabled by my noble friend, and within that amendment, paragraph (e), which deals with the MMO’s need to have regard,
“for heritage and marine archaeology”.
I appreciate that the main thrust of the Bill, and perhaps its original objective, was the conservation of the natural environment as well to deal with fisheries and other practical issues affecting our coastline. However, in the absence of a heritage protection Bill, which had been widely anticipated, this has to be the vehicle for our concerns. As the noble Lord, Lord Howarth, and others have said, in this and previous debates, it is in the interests of co-ordinated thinking and joined-up government that we should think now of other interested parties and agencies that could be involved in the role of the MMO, and indeed, in subsequent parts of the Bill, in relation to the MPS and MCZs. We seek to deal on a holistic basis with all the interests affected by the Bill and to ensure that it deals with everything that affects our coastline and our history as a maritime nation.
As the noble Lord, Lord Howarth, said, I raised these issues at Second Reading, so I will not go into detail again, or reiterate what he said. However, it would be helpful to have a general reaction from the Minister. He replied in a positive way to the remarks I made at Second Reading and said that I had made a very important point. I am glad that he responded to the question raised by the noble Lord, Lord Howarth, on the previous set of amendments. I have already tabled amendments, with the support of other noble Lords from around the Committee, and we will be able to debate these matters in more detail. I suspect it will be necessary to table other amendments as well. In the mean time, I reiterate that I support my noble friend, particularly on Amendment 33, which I believe paves the way for these other amendments. I hope that the Government will accept the spirit of the amendments and indeed their detail as well.
I support my noble friend’s Amendment 32. I accept that Amendment 33 has merits, too. Both attempt further to define and spell out what the MMO should be about. Amendment 32 draws strength—I congratulate my noble friends on drawing the parallel—from the NERC Act, because some time was spent by the Government and their team, and members of both Houses, in drawing out what the objectives should be. Terrestrial and marine objectives are very similar. They both concern the natural environment and the environmental, social and economic considerations that we have mentioned.
I will concentrate on what my noble friends have included in the requirement to work closely with coastal communities. When we talk about social and economic factors, these communities stand to gain or lose the most from whatever happens in the marine areas directly adjacent to them. For years, they have been the guardians of the environment; they have gone out and done the beach cleaning. They are the ones who are most aware of what has happened with the sea off their coasts. They are out in their small boats, thinking about the dolphins and reporting any incidents. They have a lot at stake. I agree with the Minister about the awful word “stakeholder”, but those coastal communities are front-line stakeholders. For that reason, they deserve a particular mention in the Bill.
There seems to be a dichotomy in Amendment 179. Perhaps the noble Lords who have tabled it, in particular, the noble Baroness, Lady Young of Old scone, would like to comment. The natural environment is defined as a number of things with which I would not disagree. However, the amendment ends with the words,
“and natural resources they provide”.
Surely, with aggregates, for example, there might be a conflict because the natural environment—if we mean the seabed—might be the very thing that would be damaged by the other thing that is also defined; namely, the aggregates that might be extracted from it. The amendment might be stronger if those words were deleted.
I have great sympathy with the noble Lord, Lord Howarth of Newport, who regretted that he was unable to take part at Second Reading. I found myself in a similar position because I had to attend a funeral on that day. I should very much have liked to have made my more generalised comments at that time, which would have given me a better platform on which to take part in Committee. That said, I note that under this clause the MMO has a duty to control, co-ordinate, regulate and manage. In that sense, the MMO is intended by the Government to be an enabling organisation, a facilitating organisation and a regulating organisation. In summary, those are its duties.
I like these amendments because they put a more direct onus of responsibility on the MMO to carry out more specific duties, which cover an immense range of interests and responsibilities, during its lifetime. Under Amendment 32 it is called on to promote various activities, such as,
“marine conservation … enhancing the marine landscape … promoting the study … and enjoyment of the marine environment”,
and “undertaking research”. Under Amendment 33, there is an even wider range of activities which the MMO has to bear in mind. The debate on the previous group of amendments clearly brought out some of the complexities that will arise when the MMO tries to co-ordinate its activities with other interested organisations and authorities, not to say Governments.
Amendment 33, tabled by my noble friend, is very interesting. The range of activities and interests that the MMO would have a duty to concern itself with are clearly spelt out. These duties feature in quite a number of later amendments and some will require a lot of authoritative input by the MMO. My one regret, which I have stated before, is that an imperative is not placed on the MMO to carry out what I have always regarded and thought to be the primary objective of the Government: the establishment of marine conservation zones to protect marine life.
I had the opportunity, as did other Members of the Committee, to be present at a short talk given by Professor Callum Roberts, professor of marine conservation biology at the University of York. He is an extremely able individual and, perhaps I may say without being patronising towards him, I thought he gave a most impressive performance. During the Summer Recess I took the opportunity to read his book The Unnatural History of the Sea, which covers 1,000 years of man’s exploitation of marine life. It is a horrible story, utterly horrendous. I thought that the prime motor behind the Government bringing in this Bill was to ensure that, first and foremost, animal life in our seas would no longer be exploited without regard to its sustainability and ability to recover from the fishing operations and other activities which mankind imposes on it.
I thought that the main purpose of the Bill was to establish a network of conservation areas around our country. I now have grave doubts that that is so. As all these other curious bits and pieces are brought in, the MMO seems to be swimming around lost in this great wide ocean of conflicting interests, which it is somehow going to have to meet, engage with, control, regulate and manage. I hope the Minister will be able to give me some reassurance. If not, I suspect that we will have to come back and find some formula along the lines of the amendments moved.
Amendments 33 and 179 are wholly admirable and I support them in their entirety. I will talk a little about Amendment 32, with which I am, again, extremely sympathetic. As a professional geologist and, at times, a marine geologist, I am a little bothered by the concept, in paragraph (b) of the new subsection in Amendment 32, of enhancing seabed and geological features, particularly geological features. I am not sure quite how one would do that or, indeed, whether one ought to do that.
Putting that aside, I turn to proposed paragraph (d). Had the Minister been able to be a little more accommodating on the role of science in this organisation on our first day in Committee, I do not think I would have spoken to it. However, it gives us an opportunity to pursue this a little further. We should recognise that, wholly laudably, the Government have, in a series of appointments—both within and outside this House—recognised the importance of professional expertise. In his replies on the first day, the Minister repeated that science and professional expertise are not particularly more important than other competencies, simply because access to the best advice would be available. That really is not enough.
The very minimum that this organisation must have is the in-house scientific capability to be an intelligent customer. If we do not have that, we are really lost. Although I certainly would not go as far as the full wording of proposed paragraph (d), which would turn this into a full-blown research organisation with significant overlaps with the NERC, there must be some in-house research capability because this is how one maintains professional competence and expertise. I would simply like the Minister to reflect on this. I believe, as I think many noble Lords do, that science has a special role in this organisation which somehow has to be recognised. It may not have to be recognised in the Bill but it must be recognised in the way that appointments are made. Frankly, if this organisation does not have significant internal scientific competence, it simply will not amount to anything.
I make a brief intervention arising from local knowledge. I am attracted by paragraph (e), on “heritage and marine archaeology”, of the proposed new subsection. Living on the east coast of England, I am extremely aware of the number of predators who come from hundreds of miles away to dig offshore for historic remnants, including remnants of the Spanish Armada, which was finally wrecked on that coast. These activities are largely uncontrolled at the moment. Although the breadth of interests covered in the Bill is alarming, I hope that this one will not be omitted from consideration.
I support my noble friend’s two amendments. Although the Minister shook his head when he said that he fears there will be lists of specific requirements, I hope that he will think about what the amendments seek to do if he cannot accept them as they are.
It was clear when we took evidence—other noble Lords have received papers from interested groups—that the responsibilities are quite woolly. That was the expression I used and I still think it is true. Clause 2(1)(b) states that the objective is,
“making a contribution to the achievement of sustainable development”,
and the Bill requires greater definition than it has at this stage. Any list would raise difficulties because it would be either too long or not include matters that people would like included. However, it is extremely important. The Committee has reflected the importance of getting the general objectives right—clearly that is the hub of the Bill—and if the Marine Management Organisation objectives are not achieved through our discussions on the Bill, we will have failed to produce the kind of Bill that the Government and the Committee wish to see.
It will involve a difficult balance between commercial activities and protecting the marine environment and, as other noble Lords have said, archaeological remnants. However, Amendment 33, to which I incline slightly more than the Liberal Democrat Amendment 32, specifies certain aspects that we believe need considering in the overall thrust of responsibilities. If the Minister cannot accept the amendments as they are—I suspect he probably will not be able to—I hope that he will at least think about coming back with something on Report which will strengthen what is currently in the Bill. I think the Minister is aware that there are gaps and that it is a question of how we fill them.
I apologise to the Minister: I was at a conference and could not be with him yesterday. I would therefore be extremely grateful if his department could supply me with the papers that were made available to those who attended. It would be enormously helpful.
I am sure that our desire to get the Bill right has been reflected around the Committee today, as it was earlier. It is the only opportunity that we will have for a Bill of this calibre, and the general objectives have to be right. There are gaps in it and we need to fill those gaps. I support the amendment.
Like the noble Baroness who has just spoken, I remind the Committee that the Joint Committee considered that the MMO should have a duty to further the promotion of sustainable development based on the ecosystem approach. The fact that the Government did not like that particularly has inevitably led to the kind of discussion we have been having over the past 40 or so minutes. It points out some of the difficulties that the MMO will have in balancing all these different interest groups. I believe there should be some strengthening of the duty of the MMO. Quite how the Government can achieve that, I do not know. I think it was the noble Lord, Lord Taylor, who said that “balance” is the crucial word, and the MMO will have to maintain a balance between all the conflicting interests.
We had the same arguments when discussing the Bill that created Natural England, where the Sandford principle again raised its head. A site might be designated for marine conservation that happened to be a place where some kind of power-generating facility, vital to the nation’s power supply, needed to be put. Who would take precedence? The adoption of the Sandford principle might lead to difficulties.
In our first day in Committee, I promoted an amendment to Clause 2 that would require the Government to oblige the MMO, as one objective, to base all its decisions on the best available scientific research. However, I recognise that there are other admirable objectives that the MMO ought to pursue. I agree, therefore, with the draftsmen of both Amendments 32 and 33. Now, which parts of those amendments ought to be in the objective category and which ought to be in the “have regard” category might be the topic of some inter-party discussion between Committee and Report, so that we can present the Minister on Report with what the House would widely regard as the ideal solution. Whether the Minister will respond in the affirmative remains to be seen.
I have a wider concern about Clause 2. It seeks to do too many things in one clause, most obviously, to add guidance to a clause headed “General objective”. The Secretary of State will, presumably, draft that guidance on the basis of the general objective. However, if the Government are going to insist on that objective being as vague as the Bill has it at present, the Secretary of State will have far too wide a discretion in deciding what should and should not be in the guidance. I believe that the Bill ought to constrain the Secretary of State’s discretion to a much greater degree than it does at the moment.
If we glance at Clause 2(1), we see only two general objectives. Indeed, the Bill does not go on to tell us which particular objectives should follow the general ones, so these are the only objectives in the Bill. The first requires the MMO to act,
“in a manner which is consistent and co-ordinated”.
One wonders why that expression appears as a general objective at all. Surely, it applies automatically to any organisation that acts with respect to anything. Why should one be concerned about the MMO’s consistency and co-ordination when, as far as I am aware, that expression appears in no other Bill that has passed through your Lordships’ House in recent years?
I wholly concur with what the noble Lord, Lord Greenway, said about the second paragraph, Clause 2(1)(b). Why do the Government not agree with the Joint Committee about the reference to ecosystems? They are obliged to adopt that approach anyway, under European legislation to which they have now signed up. They have no room for manoeuvre, for example, on ecosystems. Why are they not prepared to own up to that in the Bill? It would at least have the advantage of compelling the Secretary of State, in his guidance, to unpack in greater detail what obligations the MMO will have on ecosystems.
I respectfully suggest to the Minister that two things ought to happen to Clause 2 between now and Report. First, Amendments 32 and 33 ought to inform the Government’s thinking, in particular on what should be added to the objectives clause and what should then be had “regard to”. Secondly, the guidance parts of Clause 2 ought to be taken out and put in a separate clause.
Perhaps I may lay a gentle challenge to the noble Lord, Lord Greenway, on his point about vital infrastructure for energy generation and his asking what would happen if there was a tie-breaker proposition for the MMO that stated that, if all things were apparently equal, nature conservation, conservation of natural resources or indeed conservation of the ecosystem would take priority. When the first major round of wind-generation propositions came forward, it was interesting that, out of more than 30—perhaps even 40—of them, only two were objected to on the grounds of nature conservation. In both those cases, the development eventually went ahead in a slightly different location by a process of negotiation. Unless we give a pretty strong steer about the importance of ecosystems, less vigour will be put into the process of negotiating the best outcome for the environment, for social needs and for the economy.
The wind farms will proliferate quite remarkably during the next few years, so the problem may not be quite as simple as that.
It is a great pleasure to respond to a debate that in many ways takes us back to our substantive debate in relation to Clause 2 on the first day of Committee. I do not think that any harm is done by that; indeed, it has helped to inform the debate. I have no doubt that we will have further discussions between now and Report, because it is obvious that noble Lords feel that Clause 2 as it stands does not capture appropriately the critical role of the Marine Management Organisation in contributing to sustainable development.
Although I have serious reservations about the list approach in the amendments, I understand the importance of getting this right. If the noble Lord, Lord Kingsland, is hosting meetings to discuss it, I hope that the Government can be part of them, because I signal from the outset that it is important to try to achieve consensus on this matter. I hope that that is a satisfactory response to the noble Baroness, Lady Byford, who suggested what the Government might do in the light of the debate.
The noble Lord, Lord Eden, made a very interesting contribution. Our vision is for our oceans and seas to be clean, safe, healthy, productive and biologically diverse. At the same time, we must take action to tackle climate change, including through renewable energy developments. We shall continue to use the sea for a variety of reasons to deliver greater economic and social benefits. As the noble Lord, Lord Greenway, suggested, managing those pressures will be a challenging task. It will be achieved via what we have described as high-level marine objectives, on which we consulted last summer and which set out our interpretation of sustainable development principles as they would apply in the marine area.
Our response to the consultation will be published shortly and will set out the high-level objectives for the UK marine area, which, I say in respect of the first group of amendments today, we will aim to agree with the devolved Administrations. Once published, those high-level objectives will underpin the development of the marine policy statement that will be delivered by the Bill, and we will discuss this in due course. The marine policy statement in turn will guide decision-making by the MMO and its development of marine plans as appropriate. The marine policy statement will identify how all marine delivery agencies, including the MMO, will approach the very difficult choices highlighted in our debates.
I say to the noble Lord, Lord Eden, that nature conservation is a very important part of this Bill. The MMO is obliged to create networks of marine conservation zones under Clause 119. That is embraced within the Bill, which provides a thread from the sustainable development principles via the high-level objectives and the marine policy statement right through to their application by the MMO in individual decision-making. Moreover, the MMO will be issued with guidance as to how it is to achieve its general objectives. That guidance will be subject to review as government policy evolves.
I say to the noble Lord, Lord Oxburgh, that I hope his summary of my comments was not accurate. If it was, that is not what I meant to convey. I was arguing that there are difficulties, as there are with this system, in simply singling out a particular expertise. I hope, given my support for the science base in this country, he will accept that I believe that evidence from scientists will play a major part in the Government’s role in the development of the marine policy statement and in the work of the Marine Management Organisation. I accept that there is a debate about whether that should be expressed in the Bill, but that is a second-order issue.
I am most grateful to the noble Lord for giving way. If I might seek to summarise the point that the noble Lord, Lord Oxburgh, was making today, it is that without science there would not be any point in the MMO. Without the science in relation to biodiversity, there would be no MMO. That is why science, in the respectful submission of the noble Lord, Lord Oxburgh, and in mine, has a position in the hierarchy of objectives right at the top. Everything else, whatever its degree of importance, is an also-ran. Accurate science, which measures biodiversity and therefore limits everything else that can be done or proved by the MMO, is the key to understanding the mechanism that ought to drive this new and very welcome institution.
I realise we are in danger of re-running an interesting debate but I am grateful to the noble Lord, Lord Kingsland, for again raising that matter. We will discuss in more detail on a later amendment the scientific advice and the mechanism for that being available to the Marine Management Organisation.
We debated last week the merits of defining sustainable development in the Bill. I know the noble Lord, Lord Greenway, and other noble Lords find the words—
“making a contribution to the achievement of sustainable development”,
not as strong as they would wish, although those words have featured in several Bills in recent years. As I said last week, we think that “making a contribution” is the right wording, but obviously we will discuss that over the next few weeks.
The amendments that we are debating today are in one way seeking to deal with whether there should be a definition. We are concerned about having two types of definition in an evolving concept. It is interesting that since last week my officials have identified 73 statutes and more than 400 EU instruments in which sustainable development is used but not defined, as there is currently no legally binding definition. There is a problem for the courts in attempting to interpret what the legislation actually means. That issue also needs to be considered.
Although the noble Baroness, Lady Young, described this part of the Bill as flabby, it is not for want of us wishing to be clear about the important role of the MMO, but there are some real drafting issues that need to be confronted. Part of it is because the MMO is not a single-sector organisation or one that should deliver one pillar of sustainable development above another. It is there to hold a balance, under the guidance that the Secretary of State will issue and working within the constraint of the marine policy statement. We cannot run away from the architecture, which asks the MMO to make judgments and balances.
While I have no doubt that the matters in Amendment 33 are very important, noble Lords have to confront the problem with lists, which is that the amendment inevitably limits the matters that the MMO must take into account to those in the list, potentially excluding others. Amendment 32 goes beyond matters that the MMO needs to consider in exercising its general objective, for example by adding the promotion of,
“the study, understanding and enjoyment of the marine environment”.
Again, we see the same problem. In our discussions, to which I very much look forward, we have to come to a practical solution that is acceptable for the legislation, but that none the less, as I fully understand, gives the comfort that noble Lords want on the role of the Marine Management Organisation. I do not think this is going to be easy, but the Government are certainly very willing to do what they can in discussion with noble Lords.
What of the Sandford principle, which has been debated and is particularly relevant to Amendment 179? My understanding is that the best summary is that, where two purposes cannot be reconciled by skilful management, conservation should come first. It is used in the management of protected landscapes in the UK. I do not know whether that is a helpful description. One of the objections to putting in the Bill the definition of the natural environment that the noble Baroness puts forward in that amendment is the same as the objection to defining sustainable development. The concept of the natural environment evolves over time. One has to be very wary of putting a definition in primary legislation, where it will be fixed for many years. We have to recognise that marine Bills do not come along very often. That is one of the reasons why we will need flexibility in this Bill as well.
On the question of marine heritage and the questions that my noble friend Lord Howarth, the noble Baroness, Lady Hooper, and the noble Lord, Lord Bridges, raised at Second Reading, my understanding is that the MMO will work with English Heritage, as the Government’s statutory adviser on the historic environment, on licensing and marine planning activities. The MMO will need to take account of both the marine heritage landscape and historic sites in developing marine plans and when determining licences. The MMO will look to English heritage for advice on the historic environment; for example, wrecks in the UK territorial sea adjacent to England.
It is likely that a memorandum of understanding would be helpful in formalising the relationship between the two bodies to cover issues such as data sharing and the relationship between Marine and Coastal Access Bill licences and the system of licensing under the Protection of Wrecks Act 1973. I recognise that amendments will be coming but I hope this will give noble Lords a sense that some thought has been given to this matter and to the need to make the arrangements work.
I am grateful that my noble friend and his officials have evidently begun to think hard about these important issues. What he said is encouraging. Can he give the Committee an assurance—or if he is not yet able to give an assurance, whether he will consider this—that the provisions of this legislation will be entirely consistent with the provisions that we look forward to seeing in the heritage protection Bill. This Bill is in draft and perhaps the relevant clauses are not fully formulated. I press my noble friend a little on this because we found when we examined the Planning Bill in the previous session that there was not complete consistency between the provisions of the Planning Bill and the provisions of the draft heritage protection Bill. It is important to be confident that the Government are at one with themselves and that Defra and DCMS are working so closely together that there is not so much as a hairline crack of difference between them.
My noble friend has invited me to tread in somewhat dangerous waters in anticipating future legislation. He knows I will not do that. As to whether government departments are working well together on Bills and draft Bills, the answer is in the affirmative as ever. However, I will ensure that the message that is implicit in what he says is listened to carefully and that the relevant departments are informed of his remarks.
In conclusion, this has been a helpful debate. The Government believe that the words “contributing to sustainable development” place sustainable development at the core of the work of the Marine Management Organisation. The balance to be administered, managed, licensed and regulated is the balance that is inherent within sustainable development. We understand that noble Lords feel that Clause 2 is not right at the moment and that it does not capture the critical importance of the role of the Marine Management Organisation. However, there are difficulties in getting it right and meeting some of the points noble Lords have raised. Although I suspect it will be some time before we reach that stage on Report, given our current state of progress, I hope noble Lords will accept that the Government are willing to discuss these matters with noble Lords over the next few weeks and to see whether we can find a way through.
I want to ask two questions. Is there a definition anywhere of “sustainable development”? I do not think that there is and that is one problem that the Government face. In an earlier response the Minister said that it would be clear in the guidance. Would it help the Minister and the Committee if, at some stage, we could get a draft of what guidance might be given, as that might help us along the way? I know that this is a nightmare scenario for him to cope with but, in spite of his words—I always listen to him with great care—we are left slightly in limbo. We are very much in the Government’s hands.
The requirement for the Secretary of State to give guidance is also contained in Clause 2. Clearly, definitive guidance is not available at the moment, but I shall certainly undertake to see what information I can give noble Lords on what the guidance might contain, although I cannot promise to do that in detail.
The noble Baroness is absolutely right that there is no definition of “sustainable development”. I have already said that we think there are real problems in placing a definition in this Bill but that the Government have, along with the devolved Administrations, adopted five key principles that must be respected for a policy to be considered sustainable: to live within environmental limits; achieve a just society; and to do so by means of a sustainable economy, good governance and sound science.
I hope that it will reassure my noble friend that during Committee we hope to introduce a series of amendments that may help to define sustainable development as part of our deliberations.
I am pleased that the Minister has found the debate helpful. I know that he is seeking consensus—and he has certainly found it around the Committee this afternoon. All he needs to do is to come and join it. I hope that our discussions lead in that direction and that he is brave enough to seize this opportunity. We have described Clause 2 as “woolly” and, on one occasion, “flabby”. We all know what we mean—it does not really say what we feel it should say. I make no apology for the list in my amendment; we could soon add something to it to take account of any other matter considered relevant. The list only serves to show just what is missing from Clause 2.
Perhaps I can respond in kind. I frequently find that I have the effect of creating consensus around the House. I very much welcome a debate with the noble Lord and other noble Lords. I am not sure whether it is courageous to do so—and one always worries about that at the Dispatch Box—but I accept that Clause 2 as it appears does not convey the critical role of the MMO, as noble Lords would wish. All I ask the noble Lord to accept is that it is a real challenge to come up with a sensible clause that does not involve the problem of lists. Noble Lords may feel that that is one of the Government’s negative responses to these matters, but there is genuine concern that what you omit from a list is in some ways excluded or downgraded. Given the need for this legislation to last for many years to come, one has to be very careful about that.
I thank the Minister for indicating how strongly he believes it is going to be possible to find a rewording of Clause 2. I accept his criticisms of list-type legislation. There may be ways to incorporate the ideas that lie behind the list in a better phrasing of Clause 2. The Committee should seek to do so before Report, if at all possible.
As I said last week, it is the vision thing. The Minister showed that he had the vision thing in a statement he made early on in his piece. He said what he thought Clause 2 should do—unfortunately, I was not quick enough to write it all down, but I am looking forward to reading it in Hansard. The Minister illustrated the scope that the Bill should have. It should have such wording as would alleviate many of our concerns that the Bill does not demonstrate sufficiently in this important clause the purpose of the legislation and the background against which the MMO should be taking these important decisions. I welcome the opportunity, which the Minister has indicated to us, to talk to him along with other noble Lords about the important issues raised in the debate.
In responding to the debate on this group of amendments led by Amendment 32 I endorse entirely what the noble Lord, Lord Taylor, said about the development of consensus. I have always been a consensual politician. It is a delight to have been the lightning conductor for consensus this afternoon. I am sure that when the Minister is given an opportunity to reflect he will join us. Some critical comments have been made about the present Clause 2: that the MMO general objectives are flabby and woolly. Some of us may have considered it to be even worse than that but were far too polite to say so.
In passing, before I come back to Amendments 32 and 33, I have a great deal of sympathy with Amendment 179, although I endorse the point made by my noble friend Lady Miller of Chilthorne Domer that maybe even it needs reworking if its purpose is to be absolutely clear.
I should have referred to the noble Baroness’s remarks about the real problem of attempting to approach an amendment in this way and the argument that one can have about the particular parts of the list that you put in.
This rejection of all lists comes curiously from a Minister who recently was part of a Government who put through the Natural Environment and Rural Communities Act 2006. That is where I would like to point out the difference between Amendments 32 and 33. The reason why my noble friends and I supported Amendment 32 is that it is solidly based on a specific requirement passed by this House two and a half years ago when we were setting out the general purpose of Natural England. We were not overtly specific. We were not being so definitive that we might circumscribe the role of the MMO. We were giving out exactly the same sort of general objectives as this Parliament decided, as recently as that, for the terrestrial comparable organisation. That is why I have a slight preference for our amendment against Amendment 33.
The noble Lords, Lord Kingsland and Lord Eden of Winton, pointed out that our two amendments are not mutually incompatible. I am sure that given goodwill and encouragement from the Minister we could find a way of bringing them together in a way that would make them comprehensive. Our amendment has one advantage in that it is a little more open-ended regarding the natural changes to which the Minister has referred that are going to take place. It is not so specific that in two or three years we may want to change those objectives, which may be a fault in Amendment 33. However, there is a more general point. I am not a lawyer, let alone a constitutional lawyer, but I take an interest in these things. When Parliament has decided as recently as two and half years ago that a list of this sort is an appropriate way to put a set of objectives in an Act, that should be taken as guidance on how we approach this particular legislation.
Equally, I accept the point made by the noble Baroness, Lady Hooper, and the noble Lord, Lord Howarth, that the references to heritage are important. The Minister’s explanation of how this will be handled had some credibility. I am anxious that we do not include in the objectives such specific references that it precludes that sort of arrangement.
The other reason that I feel strongly that simply accepting Amendment 33 and discarding Amendment 32 would be a mistake is that Amendment 32 makes reference to coastal communities, to which other Members of the Committee have referred. It was specific in the Natural Environment and Rural Communities Act 2006, which created Natural England; it refers to “working with local communities”. If it could be in that Act, for a terrestrial body with these environmental objectives, surely it should also be there for those concerned with the marine environment.
The Minister suggested that all this can be left until we get around to the marine policy statement. I do not think that that is right. There should be a framework in which the MMO is asked to set these priorities for the marine policy statements, which will of course be a matter of wide consultation.
The Minister sounds characteristically forthcoming and says he will reflect. It must be clear to him that, after one hour and 20 minutes this afternoon, there is a consensus in the Committee that Clause 2 is not up to scratch. It is not yet “quite right”, he said. The Committee will want to hold him to that. We will reflect on what he has to say.
I must make myself clear. I clearly acknowledged that Members of the Committee feel that the provision is not quite right. I have said that I am keen to discuss with Members of the Committee whether it can be improved. But the noble Lord must not take that as a commitment. I have also put forward genuine concerns about the difficulty of drafting in this area. I hope that makes things clear on the record.
I am grateful, but the Minister also said that there were drafting issues. I was not clear whether that was our drafting or the Government’s, but I think that there is a consensus around the Committee that the Government’s drafting needs as much attention as ours. Obviously, however, we need to reflect on these matters and I am sure that we will all do so. I hope that the Government are listening carefully to what has been said in the Committee this afternoon.
Amendment 32 withdrawn.
Amendments 33 and 34 not moved.
35: Clause 2, page 2, line 16, leave out “that area” and insert “the UK marine area or an adjacent area of sea or land”
By contrast, this is a simple drafting amendment. I am sure that the Minister and other Members of the Committee will be grateful for that.
The Bill reads as overly restrictive to “that area” on page 2, line 16. It is quite clear from our discussions this afternoon, let alone the briefing we have had from the Minister and his team, that we also need to be a bit more general in that reference. Not only must “that area” be considered, but also,
“the UK marine area or an adjacent area of sea or land”.
Without that, the clause would be dangerously restrictive. These adjacent areas could, for example, include the area around the Isle of Man, which we were looking at on the maps yesterday, as well as the Scottish inshore area. On a wider international scale, they could be areas under the control of the Republic of Ireland or the French Government, which are so close to the UK’s marine zone that they could be very easily affected by what goes on within that zone and vice versa. Inevitably, this is a probing amendment. I hope that it is very straightforward. It seems important that this principle should be established at this stage and, therefore, I am pleased to move the amendment.
The noble Lord, Lord Tyler, has here proposed some very sensible amendments, which echo some of the worries that we had about other bodies. We support these amendments. I accept that Clause 2(2) is dedicated to expanding the idea of what is consistent and co-ordinated. The Bill makes sure that “consistent and co-ordinated” includes the consequences of decisions in any particular part of the UK marine area and the activity occurring within it. However, surely it is obvious that there is something missing. In order to have a fully consistent and co-ordinated approach, it is important that it is made clear that the consequences of any action must be taken into account not just in respect of other parts of the marine area, but also on any adjacent area of sea or land.
Without this proviso, are we not in danger of subordinating land or sea outside the UK marine area? While it is important that the right decisions are made in terms of anything covered by the MMO’s power, it is perhaps just as important to take into account any damage, or indeed benefit, which may occur as a result of this on an adjacent area. Does the Minister think that “consistent and co-ordinated” should include these wider areas? Will he explain to us how the MMO would carry out its duties without taking into account the effect on the other areas?
The noble Lord, Lord Tyler, has suggested that this was a drafting amendment; I winced a little at that, although it is certainly different from the one we have just debated. He went on to say that it is a probing amendment to see where the Government stand on these issues. It is to that dimension that I will respond, particularly as it has been reinforced by the remarks of the noble Duke, the Duke of Montrose.
It is clear that the amendment of the noble Lord, Lord Tyler, would require the MMO to consider the impact of its activities beyond the areas in which it has any function, or perhaps even any influence. I confirm that the intention of the Bill is to ensure that the MMO manages, regulates and controls activities in the marine environment in a consistent and co-ordinated way. As my noble friend Lord Hunt set out a few moments ago, it will be operating within the framework of a marine planning system, which includes a number of requirements to consider at the planning stage the likely impact of any proposed plan, not only on adjacent areas but also any area which may be affected by the proposal.
For example, Schedule 6, which needs to be considered in this context, requires that marine plan authorities notify adjacent plan authorities, both marine and terrestrial, when they start planning and then take reasonable steps to secure compatibility with any adjacent plans. The schedule also contains a separate requirement that marine plan authorities have regard to the effect which any proposal for inclusion in a plan is likely to have on any related area. In this context, “related” includes any adjacent area of sea or land, as well as any areas that may be affected by the proposal, whether directly adjacent or not.
This context is significantly wider than the one envisaged in the noble Lord’s amendment. We recognise that at the planning stage other areas—not even adjacent areas—may be affected, and the MMO will need to take that into account.
When carrying out its planning functions, the MMO will also need to comply with the European Union directive on the strategic environmental assessment of plans and programmes. The assessment directive requires, for example, any adjacent member state to be consulted if a proposed marine plan is likely to have significant effects on its environment. We can all envisage circumstances in which that might be the case. These requirements therefore ensure that the impacts of different activities on the environment and each other are considered at the planning stage, rather than as individual decisions are made. I maintain that this is a more coherent and effective way of dealing with the issues.
The MMO will be operating for the United Kingdom Government in English waters, and in UK waters except where the devolved Administrations have those functions. It will make its decisions in accordance with marine plans, which will have been developed having regard to the impacts of the proposals on adjacent or related areas at sea and on land. Co-ordination between delivery bodies throughout the marine area will be absolutely essential in this context, and mechanisms will be put in place to ensure that that happens. I note that subsequent amendments to later parts of the Bill will give the Government a chance to expand on how we intend to achieve this.
A key aim—indeed, the basis—of the Bill is to move our marine management from a case-by-case consideration of individual projects and impacts to a forward-looking and strategic approach. The provisions in Clause 2 supplement this framework by requiring the Marine Management Organisation to apply that co-ordinated approach within its own operations.
I listened with the greatest care to our prolonged debate on the inadequacies of Clause 2, and I appreciate that my noble friend will think further on those matters. However, the crucial issue of co-ordination is being fleshed out in the response to this amendment. It involves a rather wider dimension than the noble Lord suggested when moving the amendment, so I hope that credit will be given to the Government for thinking strategically, as that is at the heart of the Bill. Clause 2 offers that certainty.
I hope that my explanation has established that the Government are fully apprised of the concerns articulated by the noble Lord and that we have a structure that enables us to take into account dimensions even wider than those that he put forward when advocating the amendment. I hope that he will be reassured in that respect and that he will feel able to withdraw the amendment.
As always, I shall read with great care in Hansard precisely what the Minister has said. My first reaction is that it all sounds excellent but it is not in this part of the clause at the moment. There is currently no reference to assessing the impact on adjacent areas. That was the burden of what he said and it seems to me incredibly important. The clause specifically deals with the “consistent and co-ordinated” approach in so far as it applies to the MMO area. That area is referred to twice in this subsection. The Minister’s explanation sounded pretty good but between now and Report I shall have to look very carefully at whether it is here in this clause. In the mean time, I beg leave to withdraw the amendment.
Amendment 35 withdrawn.
Amendments 36 to 51 not moved.
52: Clause 2, page 2, line 30, at end insert—
“(5A) Guidance issued under subsection (3) shall be—
(a) issued within one year of the MMO’s establishment; and(b) reviewed from time to time.”
This is the last group of amendments to Clause 2. Amendment 52 introduces a timeframe for the guidance which the Secretary of State is required to issue to the MMO under Clause 2(3). Rather than leaving the timescale open, it requires that guidance should be issued within one year of the MMO being established and the guidance should then be reviewed at unspecified intervals.
The Bill is particularly vague and undefined at points where it is necessary to have clarity. Without the amendment, the Secretary of State is required under subsection (3) to give the MMO guidance on how it should contribute to sustainable development; but there is no specification about when that guidance should be delivered. Without precise arrangements, the Secretary of State might not publish the guidance for years; and under the Bill there would be no way of calling him to account. Without the necessary guidance, the contribution made by the MMO to sustainable development would, sadly, be diminished.
Last week, the noble Lord, Lord Hunt, made it clear that we should be reassured that:
“In addition to its duties laid down in the Bill, the MMO will operate in accordance with the new marine policy statement … [and] guidance by the Secretary of State”.—[Official Report, 12/1/09; col. 1100.]
Does the Minister agree that he has, therefore, underlined the importance of the speedy production of that guidance? Perhaps he will tell us what timeframe he envisaged for its publication. There should be provision for review. The MMO, following old, out-of-date guidance, risks being ineffective at best and damaging at worst. Will he tell us how he thinks a review process, as yet not written into the legislation, will work? I beg to move.
I speak briefly to Amendment 53 and endorse the point made by the noble Earl, Lord Cathcart, about the Government giving us clear advice on how they see guidance being given and received. As those who have been in local authorities will know, it is common practice that local authorities always have to have regard to guidance given by Whitehall and Ministers. There seems to be no obligation on the MMO to have regard to, let alone consider carefully and implement, the guidance given here. There seems to be a discrepancy—a divergence from common practice in local authorities—regarding this agency of central government. It is important that we get clearer advice from the Minister on precisely how the MMO is supposed to treat the guidance it may be given; hence the amendment. Like the Conservative Front Bench, we seek a clear exposition from the Minister on how the guidance is to be given, on what timescale, and how it is to be treated by the MMO.
Can the Minister tell us when the Secretary of State for Environment at Westminster will consult all the devolved parliaments and assemblies and get them to agree the guidance?
In his response, will the Minister say something about the relationship between guidance, directions by the Secretary of State under Clause 35, and the marine policy statement? They all issue from the Secretary of State. Is there a hierarchy? If so, what is the order of that hierarchy? In circumstances where guidance might conflict with directions or the marine policy statement, how is the Marine Management Organisation supposed to behave?
The noble Earl, Lord Cathcart, seeks to amend Clause 2(3), the effect of which would be to ensure that the MMO is issued with guidance within one year of its establishment on how it is to achieve its objective. We do not believe that it is necessary to legislate for a deadline for the Secretary of State to issue such guidance. That is a level of detail inappropriate for primary legislation. It is clearly in the Government’s interest to make sure that the MMO delivers their policy objectives effectively. Our firm intention is to issue guidance to the Marine Management Organisation on the day that it commences its activities. Moreover, I can reassure noble Lords that we will review and if necessary amend the guidance at appropriate points; for example, on publication or review of the marine policy statement, on publication or review of marine plans, or as our understanding of sustainable development evolves.
Amendment 53 imposes a requirement that the Marine Management Organisation must have regard to the guidance issued to it by the Secretary of State under Clause 2(3). I refer the noble Lord to Clause 36. It makes clear that:
“The MMO must have regard to any guidance given to it by the Secretary of State”.
That includes the guidance to be issued to the MMO by the Secretary of State, under Clause 2, on how it is to achieve its general objective. Clause 2(4) provides that:
“The Secretary of State must consult the MMO before giving any guidance”;
and Clause 2(5) provides that he,
“must take into consideration … the functions of the MMO, and … the resources available, or likely to be available, to the MMO”.
The noble Lord, Lord Kingsland, asked an interesting question about the guidance given under Clause 2, which relates to the duty in the general objective in that clause. Clause 2(3) makes it clear that:
“The Secretary of State is to give the MMO guidance as to the manner in which the MMO is to seek to secure that the contribution to the achievement of sustainable development mentioned in subsection (1)(b) is made”.
He also referred to Clause 35, which relates to the directions that the Secretary of State may give in respect of any of the Marine Management Organisation’s functions, and to the marine policy statement.
We believe that the Bill’s provisions are part of a consistent thread that goes from the sustainable development principles, via the high-level objectives and marine policy statement, through to their application by the Marine Management Organisation in individual decision-making. As I indicated, the Marine Management Organisation will be issued with guidance on how it is to achieve its general objectives. The organisation will clearly be required to operate within the constraints of the marine policy statement, a subject we will come to in the debate on Part 3. The power of direction under Clause 35 makes it clear that the Secretary of State may give the Marine Management Organisation,
“general or specific directions with respect to the exercise of any of the MMO’s functions”.
There is a consistent thread running throughout this. If the noble Lord has spotted inconsistencies, I am happy to look at this further. However, the intent is to adopt a consistent approach.
Perhaps the Minister can help me on the meaning of “is to give” in Clause 2(3). Is that “must” or “may”? If one takes it as meaning that the Secretary of State must give guidance before the MMO can,
“secure … the contribution to the achievement of sustainable development”,
then the MMO cannot operate until that guidance is given. That seems to be an odd way round. On the other hand, if it is “may”, there will be a period while the guidance is being prepared when the MMO can carry out its duties under Clause 2(1), as part of its function to make a contribution to sustainable development.
The Secretary of State “is to give” does not quite seem to be “must”. However, I reassure the noble and learned Lord that the intention is to give such guidance, and to make it available on the day that the MMO comes into operation. Clearly, it is very important that the Government give such guidance.
The Minister asked me, in broad terms, whether I found his reply helpful. I always find replies from the Minister helpful; and this case is no exception. However, if no amendments are tabled when we get to the clauses, perhaps a stand part debate might be appropriate to crystallise the way in which he sees this working. A bewildering amount of paper will be descending on the senior management of the MMO. It would be a shame if the Bill did not give clear guidance on how the management should act in those circumstances which—I think the Minister will agree—are bound to arise.
When I moved this, I thought that it would be a quick and easy debate—but obviously it never is. I was reassured by the Minister saying that it was not necessary to legislate, because there will be guidance from the day the MMO is created. However, we then move on to the skeleton MMO, which is being formed beforehand. Presumably there will be some sort of skeleton guidance produced for managers so that they know how to operate.
In the formal terms of the guidance within the provisions of Clause 2, I would wish to stick to the intention to produce it so that it is available for the MMO when it formally starts its work. I have already said to the noble Baroness, Lady Byford, that I will seek to discover what early information I can give about the likely terms of the guidance. I am sure that as that evolves more information and discussion will become available.
I thank the Minister for that, which is where we will have to leave this. I hope that the noble Lord, Lord Tyler, was satisfied with the answer he got to his part of the amendment. For my part, I was. I should also like to thank the Minister for his helpful response to my noble friend Lord Kingsland when he referred to the thread running through the various organisations. I beg leave to withdraw the amendment.
Amendment 52 withdrawn.
Amendments 53 to 55 not moved.
Clause 2 agreed.
Clause 3 : Management
Amendments 56 and 57 not moved.
Clause 3 agreed.
Clauses 4 to 9 agreed.
Clause 10 : Wildlife and Countryside Act 1981
58: Clause 10, page 6, line 3, leave out subsection (4)
With one bound we are free to turn to page 6 of the Bill. Amendment 58 is a probing amendment to clarify what appears to be an unusual limitation in the amendment to the Wildlife and Countryside Act. Clause 40 identifies the “UK marine area” to be from the mean high water spring tide. However, new subsection (12)(a), to be inserted into Section 16 of the Wildlife and Countryside Act under Clause 10(2), limits the MMO’s remit in circumstances to only the mean low water mark. Will the Minister give us a clearer idea of when this restricted definition will be used and why it is not appropriate to keep the same high water boundary in all circumstances? I know very well the Holbeach Marsh coastline where the difference between high water and low water can be several miles. It is very hard to define. Boundaries can be quite important, particularly when dealing with an area of wildlife habitat importance such as the marshlands of the Wash and the north Norfolk coast. I hope that it will be possible to make sure that the Bill does not leave fuzzy edges to these boundaries.
I am aware that mean high spring tide is not necessarily all the land that does not get covered by sea. In marshes, tussocks of high ground are covered by only the rarest high spring tides and not necessarily by a mean high spring tide. Can the Minister help me on how they would fit into the definition of what is sea and what is land?
I support the noble Lord’s amendment. I will speak at greater length when I move my amendments. He has identified a real problem because there are at least two definitions in the Bill. The Minister may say that one definition applies to wildlife and the other applies to planning areas. The planning area definition concerns me more because the interface in planning just on those margins will need greater definition. The noble Lord is right that definitions of exactly what constitutes “sea” throughout the Bill will create confusion, especially where different bodies have different powers potentially over the same areas or perhaps a disputed area. As sea levels rise, the mean high water level will change.
I was talking to my local estuary forum, the Taw Torridge Estuary Forum, where all the organisations with any interest in the estuary come together, whether it be recreational, wildlife or the local authority. The chairman told me that one of the biggest problems with this Bill is in what is defined and where we decide finally that the powers should begin and end. If they are at high water, that leaves an immense place, as the noble Lord, Lord Holbeach, has just identified. All of us who have seen “Shakespeare in Love” will have seen that beach at the end of the film.
I should say that my name is Lord Taylor of Holbeach. Holbeach is just where I come from; Taylor is my name, as was the noble Baroness’s name at one time. The beach to which the noble Baroness refers is Holkham beach, which also has an enormous expanse between the low and high water mark.
The noble Lord is right on both counts. I apologise to him for getting his name wrong. I was so busy trying to remember the film and the beach that I forgot his name. During the passage of the Bill, it would be very useful—I am sure that the Minister will do it now—for the Government to define their thinking exactly on the points between the lowest tide, the highest tide and the average tide, and what that means in terms of the wildlife habitats, for this part of the Bill, and the definition in planning terms for other purposes. It is where those definitions lie that the greatest pressures will come, whether they concern recreation, shell fishing or wildlife conservation—the crunch issues. The tensions that have to be balanced will often appear in that zone, which is why it is important that we are aware of exactly what we are saying when we define it.
I am grateful to the noble Lord and the noble Baroness for their contributions on this amendment. I am glad that the noble Lord has indicated that this is a probing amendment because I have to suggest that it would be quite disastrous were it to be passed. The effect of the amendment would be to remove the definitions of the English inshore region and the restricted inshore region from the provision to be inserted in the Wildlife and Countryside Act.
We need these definitions and to be able to explain what is meant by,
“the restricted English inshore region”,
in the new subsection to be inserted into the Wildlife and Countryside Act. Otherwise, we would be giving licence to kill as far as the MMO is concerned on a much wider basis than I am sure the noble Lord would ever have envisaged. But, of course, he is seeking to ensure that the Government know clearly the nature of the definition, on which I hope to reassure him. We intend to convey to the MMO licensing functions clearly defined, but not as broad as they would be if this amendment were to be carried, which would destroy the essential definitions.
The clause transfers the power to grant licences to the MMO. Formerly, these powers have been exercised by the Secretary of State or Natural England under the Wildlife and Countryside Act 1981. By amending the definition of the restricted inshore region throughout this Bill, which we are, the MMO may now issue licences to prevent the killing or injuring of wild birds, animals and plants seaward of the mean low water mark and out to 12 nautical miles. That is the definition that we seek in every change to this Bill when we seek to amend the Wildlife and Countryside Act. If we did not amend that Act at all and this amendment were carried, and if our position on this clause—that is, our proposal to amend the wildlife Act—were withdrawn, the MMO would have no restrictions on its geographical area as regards licences.
One of our concerns was that the legislation was meant to convey exactly what the Minister has said: there will be areas of sea that are not the responsibility of the MMO for wildlife conservation purposes. Indeed, it is the Government’s purpose, as far as one can gather from the Minister, that those areas of intertidal margins will, for wildlife and conservation purposes, still be considered the responsibility of Natural England, not the Marine Management Organisation. I do not know whether we totally agree with the Government on that matter. It is the cause of some concern that there may be mixed responsibilities in the management of these intertidal areas. I certainly hope that between now and Report stage the Government will consider the ambiguity that this might lead to. While I beg leave to withdraw the amendment today, I hope we will have an opportunity to debate this more fully.
Amendment 58 withdrawn.
Clause 10 agreed.
Clause 11 agreed.
Clause 12: Certain consents under Electricity Act 1989
59: Clause 12, page 6, line 32, leave out paragraphs (a) and (b) and insert—
“(a) it is within the UK marine area as defined in section 40,”
In moving Amendment 59 and speaking to Amendment 61, we seek to clarify the relationship between the Infrastructure Planning Committee—the IPC—and the MMO. As the Bill stands, this relationship is, at best, woolly. I am afraid that “woolly” is what I have written here again. We have heard “flabby” and “fuzzy”; certainly this relationship is unclear. There is no mention of this relationship in the Planning Act, so these two pieces of legislation travel in parallel, yet never seem to join up.
The Planning Act 2008 gives the IPC the power to determine nationally significant infrastructure projects offshore, offshore energy over 100 megawatts and larger harbours. In Committee on the Planning Act, my noble friend Lord Taylor argued that this was inappropriate as it placed the IPC above the MMO in the pecking order when it comes to these projects. The setting up of the MMO was welcomed by nearly everyone. The Environment Agency said that the MMO would be, and I use the phrase again:
“the champion of the seas”.
This phrase was echoed by the Marine and Fisheries Agency, among others. Last week this idea of the MMO being champion of the seas was rather pooh-poohed by the Minister. He said that the phrase likened the MMO to a grandiose pressure group. I would argue that he has missed the mood of its proponents. I take the phrase to mean that the MMO will be the leading authority for all marine projects.
However, will it be the marine authority? I believe that its authority will be undermined by the four—and there may be others—exemptions from MMO control; namely, oil and gas installations, which were regulated by BERR and are now regulated by the DECC; large renewable energy installations and major ports, which will be regulated by the IPC; shipping, which will be regulated by the Marine and Coastguard Agency; and the marine conservation zones in Part 5 of the Bill, which will be designated by “the appropriate authority”. I believe that Natural England, and not the MMO, is vying for this position. What role will the MMO have? As it stands, it certainly will not have overall authority.
There are at least six Whitehall departments and a plethora of government agencies and non-government organisations involved in the marine environment. Each has its own agenda. It should be the MMO’s role to take an overview of the impact of human activity on the marine environment and, indeed, the cumulative effects of this activity. Under the EU marine strategy framework directive, which I believe was the directive that my noble friend Lord Kingsland referred to earlier, member states are required to deliver good environmental status, or GES, by applying,
“an ecosystem-based approach to the management of human activities, ensuring that the collective pressure of such activities is kept within levels compatible with the achievement of good environmental status”.
The MMO is the ideal organisation to ensure compliance with this directive but, as the Bill stands, it does not have the necessary authority, especially where the IPC is concerned. The MMO, as things stand, cannot say no, or that what is proposed is too harmful to the marine environment, or that the cumulative effect will be too damaging. It is the straw that breaks the camel’s back.
Our amendments amend the Planning Act so that the MMO becomes the sole planning authority in the marine environment by removing the power of the IPC to determine offshore generating stations. That is not to say that applicants should not apply to the IPC for planning permission, but the IPC would then make a recommendation to the MMO for a final decision once the MMO has ascertained the effect, or cumulative effect, of the application on the ecosystem.
I realise that this is only one way of skinning the cat. If the IPC is to retain control over larger projects, it is essential that the MMO is a statutory adviser. This still begs the question of what happens if the IPC ignores the advice of the MMO because, let us say, the economic advantages outweigh the environmental concerns. The Minister has already said that,
“inevitably many tensions will come to the fore in the work of the MMO board”.—[Official Report, 12/1/09; cols. 1061-62.]
These tensions will be inevitable. We saw this last week when, in balancing the economic good against the environmental concern, a decision was made in favour of a third runway at Heathrow. In the marine environment, both sides are building up their arguments for and against the Severn barrage. With this in mind, I had some sympathy with Amendment 28A once I had heard the arguments put forward by the noble Baroness, Lady Young, last week. She referred to her amendment again today but emphasised that it was a mechanism of last resort.
We all understand the need for offshore infrastructures and this could be made quite plain in the marine policy statement and the guidance to be given to the MMO, and indeed in any memorandum of understanding. The noble Lord, Lord Hunt, while trying to clarify the relationship of the IPC and the MMO, said in Committee on the Planning Bill that:
“The MMO can add additional conditions to an order granting development consent if new information comes to light and can even revoke consent if necessary”.—[Official Report, 14/10/08; col. 694.]
This is, of course, welcome as it implies that the MMO after all will have the ultimate say on large marine developments. I hope that the Minister will stand by that statement. Perhaps something to that effect could be written into the Bill to clarify the situation. I welcome therefore the amendment of the noble Lord, Lord Davies of Coity, Amendment 63, which seeks to give the MMO the power of veto.
We on these Benches believe that the MMO should be the ultimate marine authority—the champion of the seas; the leading authority—and that it should have the teeth it needs. I beg to move.
I should point out that if the amendment were to be carried, I could not call Amendments 60 or 60A by reason of pre-emption.
I shall speak to Amendment 60A, which is grouped with this amendment.
With this modestly titled clause, “Certain consents under Electricity Act 1989”, we move into the area of marine renewables, which is one of the most important issues we shall be addressing in the Bill. I regret that the clause is so modestly titled even if it is for bureaucratic reasons. We need to debate, first, as the noble Earl, Lord Cathcart, outlined, the definition of the relationship between the IPC and the MMO. The Joint Committee was clear on that issue and recommended that the Government should revisit the dual body regulatory infrastructure for offshore energy installations because it recognised that the current situation is unsatisfactory.
The Government have sought to define the relationship by virtue of size—I shall come on to what that means in a moment—but given that the Minister said on the first day in Committee that the MMO was to be the handler and resolver of tensions, to give it the role of statutory adviser to the IPC, as my noble friend suggests in Amendment 71, would be the right relationship. The IPC would then surely be in the planning seat for infrastructure projects and the MMO would have to balance many other issues. I am looking forward to the comments of the noble Lord, Lord Davies of Coity, because, in the context of what the Minister said, it will be particularly interesting to consider whether the MMO should have the power of veto.
On the question of whether the MMO should be able to approve or not approve a generating station, the Government have decided on 100 megawatts of generation as an understandable splitting point. The difficulty with that can be exemplified by the evidence given to the Joint Committee by Mr Carcas on behalf of Pelamis Wave Power. It is particularly appropriate that the British Wind Energy Association has an exhibition in the atrium at the moment which exemplifies the different kinds of marine energy—tidal energy, wave energy and so on. Mr Carcas’s evidence on behalf of Pelamis, at page 94 of Volume II of the evidence, was that wave energy,
“is essentially stored concentrated wind energy … we occupy about four to five times less area for an equivalent rated project compared to offshore wind”.
That is important in this context because it might be more appropriate to have a definition based on the size of the sea area taken than on the amount of energy generated. It might be much more difficult for shipping, navigation, marine conservation areas and so on to define a generating plant by the amount of power generated than by the area of sea it occupies. The Government have taken an easy definition at the moment but I am not sure that it is the most appropriate one. We need to debate the issue fully.
The amendment also suggests that the inclusion of an extension is a difficult concept. A generating station may consist of one element—for example, a wave machine—but it may be connected to other generating stations through a collecting station. The wave hub off Cornwell, for example, is the collecting station for many generating stations. How does that sit with the definition? Is each generating station a separate, small consideration that can come under the MMO, or do they all get added together? I shall be interested in the Minister’s definition of “extension”. How many extensions can there be before their development becomes a nationally significant infrastructure project? There are many issues to debate.
We must also debate at greater length the land-sea interface because the Bill does not satisfactorily consider the relationship between a large generating station at sea and the effect it may have on land. The Government created the IPC partly in reaction to the fact that the operation of the Thames Estuary wind farm was held up because the onshore transmission station could not be constructed as the local district council had objected to it for rather too long. The land-sea interface is important. What role will the IPC have as the projects come onto land and what role will the local authority play in resolving what can sometimes be rather large planning issues?
As another example, we are looking at the Atlantic array wind farm in the Bristol Channel, just north of Lundy, which will have requirements with big knock-on effects. On land, it will need construction bases, all sorts of service areas and so on. Surely, those will need to be resolved by the local council, not by the IPC. At the moment the Bill leaves those questions rather unresolved.
I add my support to my noble friend’s Amendment 61 and ask the Minister to say how he regards the wording:
“Nothing in this section applies to applications for offshore generating stations within the UK marine area”.
My concern is how that falls in the whole question of devolution because, like one or two other noble Lords, I sat in on the construction of the Scotland Act 1998 and I have tried to follow its progress ever since. It was perfectly clear then—and I have had an update from Butterworths—that under Section D1 of Schedule 5 the Act reserves:
“Generation, transmission … and supply of electricity”,
“Part II of the Electricity Act 1989”.
Since that time, various things have taken place. In particular, Section 32 of the Electricity Act was devolved to Scotland, giving it power over renewable energies and the connection of electricity from renewable resources. Various other parts of Section 32 were devolved, but something that still puzzles me is that I have seen no sign of the devolution of Section 36, which concerns consent for the construction of electricity generating stations. That would be useful to know, as up to now people have considered only renewable energy generating stations in the renewable energy area adjacent to Scotland. However, it is quite conceivable that someone with a gas platform might decide to generate electricity that would not be renewable. Would that, then, come under a devolved power or under the Marine Management Organisation?
I shall speak to Amendment 63, which stands in my name, and not Amendment 62. This amendment follows on from the concerns I expressed at Second Reading. I am grateful to the clerks of the Public Bill Office for their assistance in formulating this new clause.
My concerns are primarily about the conflicts that could arise between the need for conservation and protection of the natural marine environment and the Government’s policy on renewable energy sources. At Second Reading, I cited the Severn barrage, which has already been mentioned. That is a real example of where such conflict will undoubtedly arise should the project be on the Government’s shortlist for renewable energy projects, which I understand will be announced in a few weeks.
There is a wealth of evidence from expert national and international environmental organisations, such as the RSPB and the WWF, clearly indicating that a barrage across the Severn estuary would result in damage to the marine environment that would be nothing short of catastrophic. Such damage would be permanent, as the marine environment would never, ever recover.
If the Government proceed with a Severn barrage, the measures that are in place to mitigate the environmental impact cannot possibly be honoured. For example, more than 2,000 square hectares of alternative wetlands would have to be found to compensate for the area lost to the project. Where do the Government think they are going to find that extent of wetland? Surely, if the provisions of the Bill are to be meaningful and deliverable, there must be a mechanism for the Marine Management Organisation to prevent such a project going ahead.
That brings me to the purpose of my proposed new clause, which would give the Marine Management Organisation the power to veto any decisions made by virtue of Parts 6 and 7 of the Planning Act 2008, or orders made under Section 3 of the Transport and Works Act 1992, if it regards such a development as likely in any circumstances irrevocably to damage the environment, potentially damage human health, and/or interfere with the legitimate rights of users of the sea.
We must be forensic in examining the conflicts surrounding the Severn barrage. I recognise that the Government, with the support of the environmental movement, have committed themselves to take action on the threats posed by global warming. I recognise that the Government have to find renewable energy sources, while at the same time recognising the need to conserve our environment and heritage—a difficult balancing act, anyone would agree. Yet this Bill, which is widely welcomed, must send a message that conservation must remain a fundamental pillar of our environmental policy. There can be no getting away from that basic principle.
As conscientious parliamentarians, then, we cannot allow a situation to develop where one government department promotes legislation seeking to protect the environment while another actively considers a project that would destroy an entire ecosystem. I hope the Government are able to take my points on board, and even if they feel unable to accept the new clause, I would look for some clear assurance that the inevitable conflicts between conservation and the energy needs of the nation can be rectified without the environment being sacrificed.
In conclusion, I was heartened by the numerous views expressed from all parts of the Committee on its first day regarding the importance of the powers of the Marine Management Organisation. Those views have also been expressed today. My amendment therefore seeks to give the MMO the teeth required to fulfil its environmental responsibilities. It is not my intention to divide the Committee on this amendment, but I hope that the Government will seriously consider it.
I am tempted to follow the noble Lord, Lord Davies of Coity, down the route of debating the Severn barrage. He knows that my views on the subject are very much his, and I am certain that there will be a moment when I shall want to return to the subject. I will be one of those who will fight as hard as it is possible to fight in this House against a project that I believe will have catastrophic environmental consequences, but that is a fight to be fought another day. Although I have a great deal of sympathy with the noble Lord’s amendment, I do not believe that it is the appropriate one to block that project.
I want to move on to a different issue, which was raised at the end of her speech by the noble Baroness, Lady Miller of Chilthorne Domer. I always find her title extremely complicated to remember, and I apologise. We heard from my noble friend Lord Cathcart of a number of complicated relationships, particularly those involving the IPC and the MMO. I want to refer to another relationship, which has not yet been referred to specifically, arising from the Electricity Act 1989. The clause with which we are dealing takes us to Section 36 of that Act and transfers responsibility from the Secretary of State to the MMO, but Section 37 deals with transmission lines, for which responsibility remains with the Secretary of State. Indeed, Schedule 8 to the Electricity Act, which imposes on both sections, and therefore on both the MMO and the Secretary of State, the duty to take account of the natural countryside and the environment, is applicable in both cases.
I shall take an example other than that of the Severn barrage to illustrate why we need clarification. A project has been proposed—which, unlike the Severn barrage, I favour—to place generating apparatus in the fast currents between St David’s Head and Ramsey Island. It is the kind of scheme that has a lot to be said for it. The generators will be essentially underwater and invisible, and will not do significant damage to the marine environment—although it is clear that that has to be looked at by the MMO with the greatest possible care. If one is going to have such a generating station approved or disapproved of by the MMO, the power cables that will feed the electricity will have to cross the whole of Pembrokeshire and the Pembrokeshire national park.
I am familiar with the countryside involved—I was the Member of Parliament there for many years and lived at St David’s for a time. It is clearly an area of extreme sensitivity. It may be possible to place the generating cables, or perhaps a section of them, underground to avoid severe damage to one of the most beautiful parts of the national park and what will be a key part of the coastal footpath which goes around the whole of the Pembrokeshire coast. However, the relationship between the decisions of the MMO and the Secretary of State are worth considering, because the MMO could decide that the scheme in the water is thoroughly to be approved of and the Secretary of State could come to a different conclusion about the effect on the natural environment and the beautiful countryside and so on under the duties imposed on him by the Electricity Act.
I am sure that these matters can be resolved, but it is worth drawing attention to another complication on which we need clarification. The Government need to explain how the relationship is to be managed and what consultation they envisage between the Secretary of State, taking his decision about the transmission lines and the other onshore facilities that may be required—indeed, the major construction works that may be involved in the heart of a sensitive national park—and the MMO, taking its decisions on the sea. The two cannot be separated; they are inevitably connected. We cannot just brush the whole thing aside. I am afraid that all I am doing is drawing attention to yet another complication and relationship which the Government need to clarify before we decide what to do at a later stage of the Bill.
I was about to talk about Amendment 71, which I might add, since we are talking about flabby definitions, would crispen up the relationship between the roles of the Marine Management Organisation and the Infrastructure Planning Commission, and make the general powers and duties of the MMO more specific in respect of that relationship. However, I am a little ashamed of the amendment now that I have heard the debate so far. Having been at the rabid end of the debate on Clause 2, I appear to be at the reasonable end of the debate on this issue, which feels deeply uncomfortable. I commend the position of the noble Lord, Lord Davies, on this issue. Ideally, the MMO will be the centre for marine expertise; it will be an independent body; it will have huge experience across a range of activities in the marine environment; but, strangely enough, it will not be the licensing body for all marine activities, because some of them will fall under the purview of the Infrastructure Planning Commission. On mature reflection as a result of this debate, which I presume is the purpose of debates in your Lordships' House, I have been persuaded that the MMO, as the planning and licensing body with that huge marine experience, ought logically to license all marine projects. I had lost hope that we could ever persuade the Government that that could ever be the case, because the Planning Act has only recently become law and it seemed strange to be going back and writing out the script so soon after its ink was dry. However, I have been persuaded that perhaps we should.
My amendment was indeed flabby, because it said, “If we can’t persuade the Government to do that, there need to be two safeguards in the circumstances where the Infrastructure Planning Commission is the licensing or decision-making body”. The two safeguards were, first, that the MMO must be a statutory adviser to the Infrastructure Planning Commission in these circumstances, but, secondly, in reverse, that the IPC should seek and take account of advice from the MMO.
The Government’s response to a similar recommendation by the Joint Committee on the draft Bill indicated that they expected the MMO to be a statutory consultee for offshore, nationally significant infrastructure projects, and that the Department for Communities and Local Government would consult on that as part of the secondary legislation package following the Planning Act.
However, I am not a bundle reassured by that, because what the Department for Communities and Local Government can give, it can also take away. If we cannot win either a veto position or a removal of the powers of the Infrastructure Planning Commission in the marine environment, I would prefer a clear statutory consultee role for the Marine Management Organisation to be in the Bill and, most importantly, a clear statutory obligation on the Infrastructure Planning Commission to ask for the MMO’s advice and a strong requirement to take account of it.
I deliberately waited before I spoke to Amendments 60, 62 and 71, which are in my name and that of other colleagues—indeed, Amendment 71 is in the name also of the noble Baroness, Lady Young—because I wanted to listen to the debate. I am glad that I have done so, because a number of issues have come up in the last few minutes to which I would like very much to respond.
Like the noble Lord, Lord Crickhowell, I know Pembrokeshire Coast National Park very well from being involved in national parks over many years. However, precisely the same situation could arise with Exmoor National Park, which I know even better. I would venture to say that there are some great coastlines outwith the national park designation, such as the coastline of Cornwall, which deserve all the protection that the designation gives. The noble Lord, Lord Crickhowell, was absolutely right that, for all those sensitive coastlines, what happens offshore can have a major impact onshore. That strengthens the argument that this should not be left to the overall strategic views, which may be unsympathetic to precise, local environmental issues, that will necessarily be the role of the IPC. In those circumstances, having decided that we are going to set up a new organisation with very specific requirements regarding the marine and coastal environment, surely the MMO must take precedence.
Why and how we can give effect to that in the Bill is perhaps a secondary issue. There are a number of options in this group of amendments. I do not entirely follow the concerns of the noble Lord, Lord Davies of Coity, about the Severn estuary because there may be options for renewable energy generation that are nothing like as damaging as the barrage. The barrage seems the least attractive proposition for the Government. Nevertheless his point is well made. If the decision is going to be, in the end, a matter of some national strategic significance in planning terms under the Planning Act, then I fear that the environmental issues will be secondary and not taken sufficiently well into account. That may mean that the wrong option is adopted. In contrast to the noble Baroness, Lady Young, I do not think that we should be mealy-mouthed about the necessity to look again at the Planning Act. It is very recent, but we were not debating the marine environment at that time because we knew we were going to be getting legislation of this sort. So I thought her initial instinct was right.
With the greatest respect, since I had the pleasure of dealing with that legislation, I should point out that we did debate the marine environment at considerable length in anticipation of this Bill and the House reached a settled view on this point.
I do not think that is fair, with due respect to the Minister. Every Bill that comes before your Lordships’ House and the other place has to be taken on its merits. The fact that we have previously considered some of these issues is part of the evidence in front of the Committee, but it is not conclusive. Otherwise we can never take a new view in light of new circumstances. The Government have now produced a detailed rationale for this Bill. We did not have that in front of us at that time. I listened to the Minister, as I always do, and I am a reasonable man, as is he, but I do not think it is a conclusive argument. The Planning Act 2008 set up a new system but it was primarily concerned with what was going to happen on land, not offshore. It would be inappropriate in the light of all the new information, and not least the discussions that have taken place in this House, to regard that as so settled that we cannot look at it again. That is why a number of amendments from different sides of the Committee demand clarification about the interrelationship between the IPC and the MMO. If it was all settled under the Planning Act, there would be no need for this debate, but it is evident from the contributions on all sides of the Committee that it is not as settled as all that. That is why I hope the Minister will be able to indicate precisely, within the marine policies and the guidance given by the Secretary of State and the other Administrations that are part of this complex network, how the MMO is going to approach these issues.
There is a strong case for taking out the section in this Bill which leaves to the IPC the rather artificial designation of “generating stations”. My noble friend Lady Miller of Chilthorne Domer indicated that the definition is at least questionable, if not even weaker than that. I hope the Minister will not be so apparently reluctant to look at this issue. It seems to me and to many other Members of your Lordships’ House that the way in which the MMO and the IPC interrelate, where there is a sensitive area and where a major development proposition is on the table, is going to be crucial to success. All those who have campaigned for this legislation for many years will take this as the litmus test. If the IPC looks as if it can push hard for a proposition that does major damage to the marine environment, there will be many disappointed people who have high expectations of this Bill.
I draw the Committee’s attention to my debate of 13 December 2007 on the Severn barrage. I have a great deal of sympathy with what the noble Lord, Lord Davies of Coity, said. In that debate the IPC was not even on the horizon. I am not going to refer to the detail of the debate—it is on the record and can be read—but there was a great deal of support for conserving the situation in the Severn estuary.
My noble friend Lord Tyler has begged the question what would have happened if we had had the Marine Bill before we had the Planning Bill. I guess that we would be having a totally different debate because we would have given the MMO primary planning powers. But that is not the situation. In this debate we are trying to redress the powers given to the IPC, which appear to be going to subsume any meaningful influence the MMO might have.
I agree, too, with the comments of the noble Lord, Lord Crickhowell, about alternative production of electricity, particularly in sensitive areas around the coast. The issues raised tonight need careful consideration. The priority should surely be given to conservation. The damage that can be done by some of the proposals on the table would be catastrophic. We must remember that some of these areas have European conservation protection and the IPC will have great difficulty, if things are left as they are, overturning such designations. The problem for the Government is that they have been set huge targets for renewable energy production. The IPC has been the Trojan horse in the Planning Act to try to ensure that these targets are met, but the other serious considerations expressed tonight must not be ignored.
I hope noble Lords will forgive me for moving positions. The Committee has already heard from two of us on the Front Bench and I feel it would be straining our indulgence for me to speak from that position. I want to follow up on the point made by the noble Lord, Lord Taylor—sorry, Lord Tyler; I get confused myself—and the Minister’s response to that. We did indeed have a number of debates on the relationship between the IPC and the MMO during the Planning Bill. I led on those matters in those debates. We were in a difficult position because the MMO did not exist; indeed the legislation to create it had not been laid before the House. So I appreciated the Minister’s position, but in order to get me to withdraw an amendment about the veto of the MMO, he said the following:
“The MMO can add additional conditions to an order granting development consent if new information comes to light and can even revoke consents if necessary”.—[Official Report, 14/10/08; col. 694.]
I hope the Minister is not going to resile from that position because it appears to give the MMO the power to veto an order if it feels that the information which it possesses makes it unsatisfactory.
I support Amendment 59, moved by my noble friend Lord Cathcart some 45 minutes ago. I am sure that the Minister will be aware of my position on the Infrastructure Planning Commission—I would like to see it abolished. My view is that without the Infrastructure Planning Commission, matters would be simpler. We could streamline the approval process, making it clearer and more efficient.
One of my great concerns with this Bill has been over the role of the Marine Management Organisation and its interaction with the Infrastructure Planning Commission. As it stands, the Marine Management Organisation will be responsible for renewable energy installations of up to 100 megawatts, and the Infrastructure Planning Commission will be responsible for nationally significant infrastructure projects, defined in the Planning Act 2008 as installations of greater than 100 megawatts. It is unclear to me which of these bodies will have the overriding power to approve projects. I fear that they are destined to clash over the provision of planning consent, as we have already heard this evening. For example, which document will take precedence in the final decision process, the Infrastructure Planning Commission’s national policy statement or the Marine Management Organisation’s marine policy statement? In my view, the Marine Management Organisation could take on full responsibility for approving all renewable energy installations within the UK marine area, which this amendment would provide for. Removing the provision that allows for nationally significant infrastructure projects to be exempt from the remit of the Marine Management Organisation enables the Marine Management Organisation to have overriding authority on all renewable energy installations within the UK marine area.
As many noble Lords have said, we have waited a considerable time for this Bill to be brought forward by the Government. It is a pity that it has taken so long, but, that said, it is imperative that we now all work together on the Bill before us to produce robust, practical and effective legislation that includes all the measures necessary to protect the marine environment and benefit all marine users. I believe this amendment enables that to happen and I give it my full support.
I should like to reply to the question posed just now by the noble Lord, Lord Taylor, regarding the MMO having a veto. I would have thought that the MMO, as a delivery body, would have to look to the Secretary of State to veto something rather than doing so itself. Again, the Minister might comment on that.
I shall turn briefly to the Severn barrage, which has cropped up. The noble Lord, Lord Tyler, was absolutely right. We must not necessarily think of a fixed barrage. There are all sorts of different ways we can cover this. I think we all agree that there is a huge amount of potential energy in the massive tides that flow in and out of the Bristol Channel every day. For instance, in the shallower parts we could have normal wind farms and in some of the deeper parts, excluding the shipping channels, inverted windmills that operate under water. There are many different ways to look at this.
This has been an extremely interesting debate that takes us back a little bit to the debate that some of us had on the Planning Bill. Perhaps I should start with a response on why the Planning Act is as it is and why we think that the role of the IPC is important. I shall then come on to say how I believe that the work of the IPC and the MMO can be complementary.
Clearly, the Planning Act 2008 responded to the need for an improved system for delivering nationally significant infrastructure. We think it will help us to respond to some of the really pressing needs, including the long-term challenge of climate change for one and security of energy and water supplies for another. The aim of the Planning Act was to introduce a new single consent regime for nationally significant infrastructure, under which there will be improved accountability, with a clear distinction between policy setting and decision taking, with decisions on nationally significant infrastructure proposals made by an independent Infrastructure Planning Commission within the policy framework set by Ministers, with the IPC having to give detailed reasons for its decisions, with improved public consultation on the draft national policy statements at the pre-application stage, and with the examinations stage being easier for the public to engage with.
The Infrastructure Planning Commission is central to those reforms. It will consider nationally significant infrastructure projects and take decisions on them. The aim is to improve the speed and efficiency of the way we deal with infrastructure projects from application to decision, in contrast with problems that we have seen in the past, and an end-to-end approach to these major projects, which we believe will deliver faster and more efficient decisions.
Clearly, the IPC has a very important role to play. It will consist of experts in a range of fields, including community engagement, planning, local government and the environment. For the first time it will bring together every part of the process that a nationally significant infrastructure project needs to go through. We believe it will lead to better decision making. Going back to the point that I made earlier, decisions will be taken by an independent body of people with broad expertise. They will see all the evidence and hear all the representations themselves. At the heart of the system is the principle that responsibility for policy making, which rightly should be for Ministers, should be separated from the process of taking decisions on specific applications within the framework. So the aim is to have greater clarity and transparency and for the accountability for the discharge of those distinct roles to be much clearer.
I shall now deal with the relationship that we envisage between the Infrastructure Planning Commission and the Marine Management Organisation and the interaction between the national policy statement and the marine policy statement. As well as various types of onshore infrastructure, the IPC will be responsible for issuing development consents for large offshore projects such as renewable energy installations over 100 megawatts and larger harbours. The MMO, as the specialist marine licensing authority, will license development projects in the marine area below the IPC threshold, including offshore renewable energy installations of 100 megawatts or less.
The very legitimate question has been raised tonight of how the role of the MMO integrates with that position. In responding to the challenge of the noble Lords, Lord Taylor and Lord Tyler, I will reiterate the points that I made during the debate on the IPC. The MMO will be consulted on IPC marine decisions. It will provide its marine expertise and advise on conditions to be included in any IPC consents. This will be an important factor when the IPC is considering any application affecting the marine area. Details of how the IPC will receive advice from the MMO will be covered in guidance on the Planning Act. I also understand that a Memorandum of Understanding is likely to be agreed to formalise this relationship and it may well cover areas such as data sharing.
Marine enforcement officers will use enforcement powers in this Bill to monitor and enforce marine licences from the MMO and deemed marine licences granted by the IPC. As part of its enforcement role, the MMO will be able to add conditions to these consents as new information comes to light and even revoke them if necessary. I am very happy to repeat what I said during the passage of the Planning Bill.
To answer the question of why we propose this structure, it is simply that the scale, complexity and nature of nationally significant infrastructure and the number of people affected pose a number of unique challenges to any regulatory system—challenges which the old planning regime is widely acknowledged to have failed to overcome consistently.
The Planning Act establishes a process specifically designed to tackle these challenges. Projects that are not nationally significant will be dealt with by the relevant local system. In the marine area, this will be marine licensing under the Marine and Coastal Access Bill, which will be a simplification of the existing marine licensing regime. It will be flexible enough to accommodate a range of project sizes, from the smallest jetty right up to the threshold of “nationally significant”. For these smaller developments, we envisage this being a more appropriate route for developers than if they applied to the IPC.
I know that noble Lords were worried during debates on the Planning Act about what they saw as possible tension between the different agendas of various departments. Key to that is the relationship between the national planning statement, the marine policy statement and the marine plans. I assure noble Lords that UK Government departments are absolutely committed to working together to ensure consistency between national policy statements and the marine policy statement. I gave a commitment to this effect at Second Reading.
One of my departments, Defra, is working closely with other government departments, including the other department that I have responsibility for, the Department for Energy and Climate Change. When I say it is our intention to ensure consistency, I am therefore speaking for both those departments and the Government as a whole. Defra will be working very closely with DECC and with other government departments in the development of the national planning statements to ensure that marine policy interests and objectives are incorporated. Equally, other government departments will be closely involved in the work that will assist us to develop the marine policy statement.
I know that there are debates about the threshold, so perhaps I may come to the comments of the noble Baroness, Lady Miller. We debated this in the Planning Act as well. There is a distinction between the threshold for onshore projects, which is 50 megawatts, and offshore projects. In the Planning Act we set the threshold for onshore projects at 50 megawatts to match provision in Section 36 of the Electricity Act 1989. We proposed a threshold of 100 megawatts for offshore projects because they tend to be larger and have a less significant impact on people than those on land. We thought it sensible to set the threshold of what constitutes “nationally significant” in the offshore region at a higher level compared with onshore projects. If I remember rightly, we had a number of amendments that proposed a much lower threshold. However, that is the position as to the threshold. I will come on to the second point, as to whether a hub approach comes within the definition of one project.
During the period when the MMO is being set up, and if a national policy statement is in place—for instance, if there is a national policy statement on renewables or in the marine area—before the marine policy statement is agreed, we will ensure that the Government’s marine policies and objectives will be reflected in decisions of the IPC because of the Government’s role in relation to the national policy statements. The MPS and the national policy statement will provide a tool for authorities making decisions and a framework for achieving sustainable marine development. We will ensure that consistency is sought.
I come to the specifics of the noble Earl’s amendments, and I will also respond to the other points raised in the debate so far. One part of Amendment 59 would reword Clause 12(3)(a), altering the geographical area in which the MMO can exercise licensing functions under Section 36 of the Electricity Act to the UK marine area. Section 36 of the Electricity Act requires that consent is obtained for the construction of certain generating stations in a “relevant place”. “Relevant place” means Great Britain, the territorial sea adjacent to Great Britain or “renewable energy zone”. That is different from the UK marine area in two ways. First, it generally excludes waters adjacent to Northern Ireland, whereas these are included in the definition of the UK marine area. Secondly, the renewable energy zone extends to a maximum of only 200 nautical miles offshore. The UK marine area, on the other hand, extends to the edge of the UK sector of the continental shelf, which in some cases, off the north-west coast of Scotland and the south-west coast of England, can extend up to 120 miles further out to sea than the renewable energy zone. The renewable energy zone was designated by order under the Energy Act 2004 and covers that area of sea beyond the territorial sea that the UK can exploit in connection with the production of energy from water or winds under the UN Convention on the Law of Sea. The amendment would therefore increase the jurisdiction of Section 36 of the Electricity Act to a geographical area beyond which we have rights to exploit renewable energy under international law. I am happy to write to noble Lords with more information.
The other part of Amendment 59 would delete Clause 12(3)(b) in its entirety, as would Amendment 60, tabled by the noble Lord, Lord Tyler. I will cover that amendment at the same time. Deleting Clause 12(3) on its own would have no practical effect. Section 33(1)(h) of the Planning Act 2008 determines that Section 36 of the Electricity Act is not needed for any installation subject to a development consent from the IPC. All Clause 12(3) provides is further transparency that the MMO will be licensing only those offshore renewable energy installations not subject to the requirement for a development consent from the IPC.
An additional effect of Amendment 61 is that it removes the Secretary of State’s power to add new offshore projects into the IPC’s remit. We had extensive debates on the matter during passage of the Planning Act, when, at Committee and Report stages, the noble Baroness, Lady Hamwee—who unfortunately cannot be with us now—tabled amendments on it. The power in Section 43 of the Planning Act provides flexibility to add to or vary the list of projects defined as nationally significant, and thus to be considered by the IPC, because we wanted to have the flexibility to deal with any new, emerging technology. Especially in marine technology, there are other areas where we will need flexibility in the future. That is why we included that provision.
Amendment 62 would allow the MMO to designate safety zones under Section 95 of the Energy Act 2004 around all offshore renewable energy developments regardless of their size. Currently it is restricted to those offshore renewable energy installations not classified as nationally significant infrastructure projects by the Planning Act 2008. I suspect that that is a consequential amendment with the intention of extending the safety zone functions of the MMO to cover all offshore renewable energy installations in the event that the amendments we are considering were accepted. I certainly agree that the two functions should be aligned to the same installations.
I come to the question of my noble friend’s amendment on the power of veto. I have stressed the close relationship that will need to be established between the IPC and the MMO and the involvement that the MMO will have in development consent decisions taken by the IPC in the marine area. We believe that to give a power of veto would undermine this relationship, effectively putting the IPC behind the MMO in the hierarchy of decision-making. I understand that that is probably the intent of those noble Lords who have spoken in favour of it. The Government would oppose that, because we think that putting the IPC behind the MMO in such a hierarchy undermines the whole construct of the Planning Act and the expertise and understanding that the IPC will develop of large infrastructure projects.
As I said during the passage of the Planning Act, the MMO will have an enormous expertise of its own, which will come to the fore, will be constructive and will contribute to ensure sustainable development in the marine environment. We believe that the relationship between the two organisations is the best way in which to achieve this in a manner that does not undermine either organisation but increases business certainty, which is very important.
I realise that time is moving on, but I shall say a little more about the relationship between national planning statements and marine policy statements, as it is an absolutely critical point of the argument. I remind noble Lords that Section 10 of the Planning Act places a duty on the Secretary of State to ensure that national planning statements are drawn up with the objective of contributing to the achievement of sustainable development. The Government have made it clear already that the national policy statement will integrate our objectives for infrastructure with our strategic environmental, social and economic policy objectives, including our climate change objectives, to help us to deliver sustainable development.
The appraisal of sustainability that Ministers must carry out for each national policy statement is central to that. It will form a robust assessment framework that will apply to all statements to ensure that environmental, social and economic objectives are properly factored into their development. It will involve an iterative process of collecting information and evidence, defining realistic alternatives, identifying sustainability impacts and effects and developing mitigation measures. It will be fully integrated with the wider national policy statement preparation process, involving statutory consultees during key stages. When necessary, the draft national policy statement will be revised in light of the appraisal of sustainability. The IPC must take its decisions in accordance with the relevant national policy statement and have regard to the marine policy statement. Sustainable development considerations will therefore be properly reflected.
I turn to a number of other points that have been raised. The noble Duke, the Duke of Montrose, asked about oil and gas licensing offshore decisions.
It was electricity generation.
Ah. I do not know whether he would care to repeat the point—or perhaps I could write to him on that. I apologise for that.
The Minister said that he was not keen to consider my noble friend’s Amendment 61, on which I asked for clarification. He is obviously not going to take the amendment on its own. We have reached the provisions dealing with devolution, but I have yet to find the measure in which Section 36 of the Electricity Act was devolved to Scotland. It is relevant whether the MMO might have to oversee the construction of generating stations that were not renewable energy generating stations within the renewable energy zone. But maybe the Minister would like to write to me on that.
That is a very kind invitation and all noble Lords will probably be relieved if I take the noble Duke up on it.
The noble Lord, Lord Crickhowell, raised an important matter about how different planning consents fit together. He referred to Section 37 of the Electricity Act, on transmission rights, which relates to overhead transmission cables staying with the Secretary of State. As they are almost exclusively land based, we did not think it necessary or appropriate for the MMO to deal with them. That was not really his point, however. The point was that there are a number of different organisations that might be involved in a project relating to development on both sea and land. I fully accept that his point is that we must ensure a consistency of approach.
I did not have the great pleasure of listening to the Minister debating the Planning Act. I just want confirmation, so that there is no misunderstanding, that that Act did not alter the responsibility of the Secretary of State under the Electricity Act and that the Secretary of State is still responsible for transmission lines. I wanted to make sure that that was not taken over by the IPC and was a separate responsibility.
I think that the noble Lord has got it right, but I will just check that to make sure. I am pretty sure that he is on the right lines, on transmission lines.
I come to the question of the Transport and Works Act, which again was raised by my noble friend. In fact, Welsh Ministers used it once, in 2004, to consent to a major offshore generating station on their territorial waters. It has been used by the Secretary of State four times for similarly sized projects, most recently in 2004. I understand that the procedure remains a suitable route for consenting to such developments, because of its ability to declare safety zones and compulsorily purchase land for onshore elements of the projects. However, in practice, since modernisation of the Section 36 consenting regime, the TWA route has not been used for major offshore stations. As the consenting function under the TWA has been devolved to Welsh Ministers, any power of veto by the MMO over Welsh ministerial decisions would mean that, contrary to agreed government policy, this provision would not be in accordance with existing devolution settlements.
Amendment 71 seeks to place a duty on the MMO to provide advice to the IPC and to amend the Planning Act 2008 to place a reciprocal duty on the IPC to seek and take account of advice from the MMO. I have already mentioned that a co-operative relationship between the two organisations will be key to achieving the Bill’s objectives. Details of how the IPC will receive advice from the MMO are to be covered in guidance to the Planning Act. A memorandum of understanding has also been envisaged to formalise this advice-giving relationship, which could also cover other areas such as data sharing. Clause 56 places a duty on the IPC to have regard to the marine policy statement and relevant marine plans. We have already given clear assurances during the passage of the Planning Act and in the comments I have just made that we intend to prescribe the MMO as a statutory consultee and interested party under the new IPC regime. We believe that those are the guarantees of the MMO’s close involvement when nationally significant infrastructure projects are being developed by promoters and examined by the IPC.
I turn to the other amendment of the noble Baroness, Lady Miller, on the question of whether the generating station licensable by the Marine Management Organisation is connected to the hub. If stations generating over 100 megawatts are connected to a hub, under her amendment they would fall to the Marine Management Organisation.
It is a probing amendment. Our view is that a group of generating stations linked to a hub would be classified as a single development. There are no hubs currently in existing offshore, although the Department of Energy and Climate Change consented to a wave hub project off the Cornish coast in 2007 which, when built, will enable four or five arrays of wave devices to produce up to 30 megawatts of electricity to be connected to the mainland by way of a single cable. This was treated as a single development, so any generating station subsequently connected to that hub would classify as an extension of that development.
Section 15 of the Planning Act is clear on the thresholds that apply in these cases. A development is considered to be subject to development consent if after construction or extension it has a generating capacity in excess of 100 megawatts. A current position with the particular wave hub project off the Cornish coast is that it counts as a single application, but it is below the threshold. Under the new circumstances it would fall to the MMO for consent, but if it were to be extended, and an extension or a series of extensions raised it in excess of 100 megawatts, that would change the position.
I apologise for speaking at such length, but it was important to set the Government’s view as to how the two organisations will relate together. I assure Members of the Committee that the last thing we want is a conflict between the two organisations. We wish to have consistency. The references to sustainability are one way in which we will have that, but we are determined to make this provision work. We believe that the IPC should be responsible for projects that are classified as nationally significant, but we want to make the provision work effectively.
I thank the Minister for that full reply. I am not sure that it is the reply that the Committee wanted. I congratulate him on obtaining consensus in the Committee because most Members felt that there must be some sort of mechanism when the cumulative effects of the human activity are so great that it is damaging to the ecosystem. Most people felt that somehow the MMO was the ideal vehicle to put on that brake and give a veto. We will have to read what the Minister says in greater detail, but we will have to return to the matter on Report. I beg leave to withdraw the amendment.
Amendment 59 withdrawn.
Amendments 60 to 61 not moved.
Clause 12 agreed.
Clause 13 : Safety zones: functions under section 95 of the Energy Act 2004
Amendment 62 not moved.
Clause 13 agreed.
63: After Clause 13, insert the following new Clause—
“MMO’s power of veto over nationally significant infrastructure projects
(1) The MMO shall have the power to veto any development consent for nationally significant infrastructure projects within the UK marine area or Welsh zone granted under Parts 6 and 7 of the Planning Act 2008 (c. 29).
(2) The MMO shall have the power to veto any decisions regarding the construction or extension of Welsh offshore generating stations made by orders under section 3 of the Transport and Works Act 1992 (c. 42).
(3) In exercising its powers of veto under subsections (1) and (2), the MMO must have regard to—
(a) the need to protect the environment,(b) the need to protect human health,(c) the need to prevent interference with legitimate uses of the sea, and such other matters as the MMO thinks relevant.”
This Bill is widely welcome, but by people who want it to work. I used the example of the Severn barrage. It could apply anywhere where there is a conflict between planning and the environment. However, I use that example because I understand that in a couple of weeks’ time a decision is going to be taken on whether that barrage will be built irrespective of the environmental consequences. That is what I worry about.
I accept my noble friend’s description of the way in which departments work together. I believe that and that it will always be the case. But there may be an occasion where there is a conflict between the two. I am told that a relationship between the two departments would be damaged if the power of veto was in the hands of the MMO. At the moment, the imbalance is in favour of the planning committee and consequently we will not have a position of redress. I do not believe that the relationship between the two departments would be damaged if there were such a power in the Bill. Nor do I believe that they would abuse that power, because in the first day of Committee my noble friend said that the people on the MMO would be of high calibre. I am sure that they would be and that they would be concerned about falling out with any planning applications.
However, if it were there, it would be even stevens because it would not be abused and it would be used only when necessary. I shall not move the amendment.
Amendment 63 not moved.
I beg to move that the House do now resume. Before adding the additional comment about when the Committee stage will recommence, and although I do not wish to intrude on the next debate, which is strictly limited to one hour, I want to emphasise to Back-Benchers speaking in that debate that as soon as the clock shows two minutes, they must resume their seats. I suggest that the Committee stage begins again not before 8.37 pm.
House resumed. Committee to begin again not before 8.37 pm.