Committee (3rd Day)
Clause 23 : Research
70: Clause 23, page 13, line 5, leave out subsection (1)
This is a probing amendment to call into question the type and scale of research that the MMO can undertake. As the Bill stands, the MMO can undertake research itself when that research is concerned with any of its functions or general objectives, or it can choose to commission research in these areas. Some research is carried out by almost every organisation to facilitate achieving its objectives. We fully support Amendment 70A, tabled by the noble Baroness, Lady Miller, because to perform its remit effectively the MMO will and should have to carry out proper research. Science must be at the heart of its decision-making. This should therefore be a duty.
Will the Minister say what specific sorts of research he expects the MMO to carry out? Subsection (1)(b) specifies that research can be commissioned or supported,
“by financial means or otherwise”.
What is likely to be the “otherwise”? Will he explain that? Will he also tell us whether there are any estimates of how much of the MMO’s budget might be taken up by this research? Who will be in charge of deciding which research gets greater priority if, for example, time or cost factors come into play?
Amendment 70A flags up the question of who the main funder and promoter of research will be. Will it be Defra, the MMO or the NERC? How much will commercial interests be encouraged to participate in co-funding research? Will Defra’s research budget be increased to cope with this demand? In addition, the NERC does not have a history of prioritising funding for the directly applied research that this would entail.
There is also the question of security of information. The Freedom of Information Act means that a lot of the research carried out may end up in the public domain. While that is a positive development in many ways, it could pose problems for sensitive information such as that on licensing. It could also make partnership funding with commercial interests more difficult. How do the Government intend to sort out that situation?
There is a risk of duplicating the research by other bodies. There are many different bodies in charge of various aspects of the marine area. For example, the Environment Agency, Natural England and the inshore fisheries and conservation authorities may all have a vested interest in commissioning similar research. Finally, then, what plan will be put in place to avoid wasteful and expensive duplication of research? Would the MMO be considered the primary research body? I beg to move.
In speaking to the two amendments that I have in this group, I first thank the noble Lord, Lord Taylor of Holbeach, for supporting them. Earlier in this Committee stage, the noble Lord, Lord Oxburgh, eloquently referred to the need for this sort of research. He laid out, for Members of the Committee, why that would be so important. The MMO, as the Minister has said, will have to perform a balancing act as the holder of the ring, given all the tensions between the various interest groups. As the noble Lord, Lord Oxburgh, said, we can be certain that the commercial interests will have commissioned plenty of scientific research to support their case. That is one reason, among many others, for the MMO needing to be really capable when it comes to research.
The Joint Committee on the draft marine Bill dwelt at some length on this matter and the amendments that I have tabled result from its deliberations. It quite unequivocally recommended:
“The MMO should have a duty under the Bill to promote the publicly-funded production of marine data, to collect such data and to make them publicly available”.
Further evidence heard by the Joint Committee led me to table Amendment 70B. The committee suggested that there was no power for the MMO to collect data on a cost-free basis from any public body. The noble Lord, Lord Taylor of Holbeach, asked which body will be primarily responsible and whether it will be Natural England or the MMO, for example. Those questions are vital because, depending on the Minister’s answers, Amendment 70B will be more or less important.
What we really aim to do with these amendments is, first, to make sure that the research is absolutely required to happen—the designation of MCZs alone depends enormously on the quality of research—and, secondly, to ensure that, if the Bill starts to require a reasonable level of research, that research is not prevented simply on grounds of cost.
I, too, support the amendments in this group. They pick up, in a more practical manner, on a theme that has run through the debates on the Bill. Your Lordships are, I think, broadly agreed that the MMO must take its decisions on the basis of the best available scientific evidence. The question is: how does the MMO obtain such evidence?
As both the noble Baroness, Lady Miller, and my noble friend Lord Taylor have said, that evidence will already to some degree be within the knowledge of the MMO staff, because the Minister has accepted that many of them will have to be a of high scientific calibre. However, there will obviously be occasions when there is the need for research and the MMO, because it will not possess that particular expertise, will have to consider what sources it will need to tap—both national and, indeed, international, because the information on biodiversity that it seeks may not be available in the United Kingdom.
I remind the Minister—in case he needs reminding—that the marine White Paper published in 2007 had some important things to say about what it described as an evidence-based policy approach for the MMO. It stated that appropriate scientific data and information were needed to provide,
“an evidence based approach to policy-making both at a strategic level (planning) and for local marine management decisions (licensing, enforcement and nature conservation)”.
It also stated, in what I thought was a powerful commitment in a White Paper:
“We intend to maintain the provision of high quality sound, impartial, scientific advice to underpin decision-making by the MMO and are considering how best to satisfy this need”.
It is in the light of the Government’s approach in the White Paper and the contributions made in previous Committee days and today by the Minister that he needs to construe Clause 23. For example, in what circumstances would he foresee the MMO acting alone, and in what circumstances would he see it drawing in other bodies or persons? If it needs to draw in other bodies or persons, what criteria will it apply? I imagine that the Minister’s response will be that that is a matter that ought to be provided for in guidance, not in the Bill. Depending a little on the detail of his answer, I do not think that I will quarrel with him, but the Committee needs to know a little about what the approach in such guidance is likely to be.
Then there is the other matter, which was extremely well covered by both my noble friend and the noble Baroness, Lady Miller. A great deal of high-quality research is taking place in this country in marine science—some of it what scientists term “blue skies” research and some of it other commissioned research. At some stage, we will need—again probably in guidance—some scheme or methodology for when the MMO needs to go outside, setting out what procedures it should follow to ensure that it not only identifies the right institution with which to enter a research relationship but also gets the best value for money.
I support the principle behind the amendments. It is quite correct to say that the Joint Committee foresaw the MMO as being the guardian of scientific research and knowledge relating to the sea and the distributor of that knowledge. I shall be very interested to hear what the Minister has to say.
This has been a short but interesting debate. I am in no doubt whatever of the view of the Committee of the need for high-quality science and research to be a critical part of the work of the MMO and for its decisions to be evidence-based and embracing what research and scientific evidence are available. The comprehensive nature of existing marine research and monitoring, along with the possibility of new specific and focused research that the MMO can commission, will furnish it with a strong base for planning and making assessments of particular marine activities.
I recognise that noble Lords would like me to give as much detail as possible on how we think that might happen and I will do so. However, when it is established, the MMO will also have to think carefully about this. I would caution against trying to build in too much inflexibility at the moment as, in the end, the MMO will be in a good position to make judgments itself about the range and amount of research that it should commission and the degree to which it should use Defra’s existing research capacity and other matters.
Although we debated this only last week, I remind noble Lords that my department’s research budget is a not insignificant amount of money. We also have access to wider marine research carried out by other government departments and the various agencies that come under them. I am thinking of the nature conservation bodies, the devolved Administrations and the Natural Environment Research Council, as well as, of course, universities and marine research centres. There is also collaboration—I very much take the point of the noble Lord, Lord Kingsland—with partners in European and other international projects. Therefore, there is a fine base already. Seeing the noble Lord, Lord Kingsland, in his place, I should pay tribute to the Plymouth Marine Sciences Partnership as well.
We should not underestimate the fact that the sea is a vast, highly complex and expensive environment within which to carry out research and monitoring activities. Therefore, it is not possible for a single organisation to cover all the evidence needs. Science, in relation to the sea, can mean the ocean processes—the physics and chemistry of the sea—and it can mean biology and biodiversity. The ecosystem approach embodies all these aspects, but there are also separate elements, which need to be brought together.
We also have to consider the impacts on the marine environment of manmade pressures such as pollution—possibly leading to damage—and, as part of our role in sustainability, the socio-economic impact. There are centres of expertise in all these fields and these pieces of evidence need to be blended together. The work of the Marine and Fisheries Agency shows that this can be done very effectively, as it is able to call on the best available evidence on which to base its decisions.
In 2008-09, my department commissioned approximately £2.8 million of research into human activities and related issues. Under the current arrangements, the Marine and Fisheries Agency is a key customer of this research. We anticipate this successful arrangement continuing with the Marine Management Organisation. My department and the MFA have excellent, dedicated advice and research undertaken by the Centre for Environment, Fisheries and Aquaculture Science. However, our experience is that wider collaboration is the most effective way of best understanding the marine environment. Such collaboration means that there is an excellent track record in the UK.
In 2010, the United Kingdom will produce the most comprehensive assessment of the state of its marine environment in the Charting Progress 2 report. This will be achieved through the combined effort of many partners to the marine monitoring and assessment strategy, including many of the organisations that I have already mentioned. However, we want to do more than this. We have recently created the cross-government high-level marine science co-ordinating committee, which will produce a strategy this year to improve further the UK’s marine science and monitoring across the board. The strategy will aim to improve efficiency and address the gaps and long-term needs in the UK’s marine science. It will very much inform some of the decisions that will need to be taken in the future about the research effort in the marine area, so it will be significant in teasing out the areas on which we will have to put more emphasis in the future.
What is the role of the MMO? We see it very much as a partner in that work. The point has already been made that we need to avoid duplication, but we need to fill gaps and to ensure that there is a collaborative approach. On one hand, we want to invest as many of our precious resources as can be made available. On the other hand—many noble Lords will know of some of the challenges of research funding—we need to ensure that there is no duplication of effort either.
As I said in our earlier debates, the MMO will comprise around 250 staff posts in total. As the noble Lord, Lord Kingsland, said, the people who are currently working in the Marine and Fisheries Agency are of a very high calibre and have substantial skills in marine and fisheries science. They will move into the new organisation, and I assure noble Lords that new staff with skills and expertise in marine science and data will also be recruited to the MMO, so it will have a strong science base in house to support its functions and decisions.
Some interesting issues have been raised in this debate. The noble Lord, Lord Kingsland, for example, invited me to construe Clause 23. To an extent, he always anticipates my answer, because, to return to my original point, the clause clearly enables the MMO to carry out and commission research and to work in partnership with other organisations. I strongly suggest to noble Lords that that balance is right; in the end, it is for the MMO to decide. Noble Lords have already emphasised in earlier debates the need for the MMO to act independently, and judgments about research must be one of the elements of that.
Equally, however, we can give a steer in guidance. My understanding is that a science blueprint is being developed for the MMO. It is currently envisaged that the MMO will also have a strategy and evidence unit that will comprise staff with the skills and expertise to support and assist the MMO in performing its functions, skills in the statistical interpretation of data in relation to a range of its functions, and specialist skills related to fisheries data, economics and social sciences to support the MMO in its sustainable development objectives.
Clause 23 in essence enables the MMO to undertake research if it wants to do so, and gives it the freedom to decide to access a wider body of information and evidence to inform its decisions. In many instances, the MMO’s needs will be met by the dedicated service provided by the Centre for Environment, Fisheries & Aquaculture Science, but there is no restriction on the MMO in carrying out its marine science functions. Equally I stress that if the MMO decides to undertake and commission research itself, it is important that it does not duplicate scientific research in other parts of government, universities or other sectors.
The noble Lord, Lord Taylor, asked about resources. I mentioned the £37 million that my department already spends per annum on research and monitoring. The MMO will have access to that and if there are gaps—I have already referred to the work that is being undertaken to look at gaps—the MMO will have ready access to the decisions that need to be taken about the Defra commissioned research alongside the research that is there to underpin decisions. These matters will be subject to constant discussion and review in the years ahead. It is not as if the MMO will simply be a recipient of research undertaken by Defra. It will have a key role to play in informing what research should be undertaken.
I turn to the amendment tabled by the noble Baroness, Lady Miller. She made some general points about the importance of science and research which I tried to address in my opening remarks. Her amendment is designed to ensure that the MMO is empowered to collect data free from other bodies. The Joint Committee chaired by the noble Lord, Lord Greenway, looked into this matter and representations were made to the committee about the cost of marine data. The committee was concerned that the MMO should be adequately funded to secure the data if needed. Of course the MMO will need to use data and it will need to be adequately funded to enable it to access data. That is certainly our intention.
The problem we have with the noble Baroness’s amendment is that it would cut across existing arrangements for trading funds. For instance, the cost of data supplied under licence by the UK Hydrographic Office is one of the concerns of many involved in marine science. The UKHO is a trading fund and, as such, is required to be self-financing, so it retains the information for its products and services to cover running costs and to fund investment. Revenue is clearly important to the UKHO in being able to develop its own programme. So I understand the point the noble Baroness makes but that would be the problem. In essence, it would take resources away from other bodies doing critical work in the area of research.
The noble Baroness raised a general point about the need for information to flow as effectively as possible. I agree with her and it is something that we wish to do. The current principle under the Treasury rules is to allow Government to recover a reasonable cost for providing data on request. It is normal practice for the reasonable cost to cover the administrative costs of providing data to a third party. Additional costs are charged for data once they have had value added to them; that is, by combining other data sets through interpretation of raw data or producing products such as the geographic information system data layers. In those circumstances a charge may be levied by whoever owns the value-added product. These value-added products are often associated with licence charges. I accept the spirit of the noble Baroness’s amendment but it is unreasonable to expect these products to be supplied free of charge because it is often the production of these third-party products which helps to maintain the commercial value of data collection activities.
However, it is not all gloom and doom. As I have said, it clearly is in the Government’s interest to ensure that relevant data collected by one government department are made available to another department which may need them to conduct its business. We are looking at arrangements in government in order to meet that challenge most effectively.
We have taken significant steps over the past few years in preparation for the Marine and Coastal Access Bill, and the setting up of the MMO, to ensure that data collected are discoverable, collected to agreed protocols and held by data archive centres operating to similar protocols. All that is designed to ensure marine data are more readily shared across the community. We are finalising formal arrangements to allow for the exchange of survey data between a number of government departments and agencies at no extra cost. This will increase the efficiency gains for each organisation while avoiding the duplication of data. Clearly, I accept the point that the noble Baroness has raised.
The noble Lord, Lord Taylor, asked me about the confidentiality of data. Intellectual property remains the right of the producer of research. But the aim would be to make as much publicly available as possible. Data availability is set out in contracts for research and development. Applicants for development are asked to make their data available once decisions are taken. The Marine Management Organisation will be able to commission research and set out data openness agreements.
I am a little concerned by the phrase in Clause 23(2), which makes,
“research available to any person on request”.
There may be circumstances when “any person” is not someone you want to know about it. The subsection does not refer to British interests or commercially sensitive information. It seems to be an open invitation for any person to ask for anything.
Looking at the drafting, the noble Lord has raised an important point. The intention clearly is that the research should be made available, but should not be contrary to an agreement about data confidentiality. I will take that back and look at it to ensure it is as tight as it could be.
I have listened to the Minister’s long and comprehensive answer but I wonder how this will work on the ground. The University of St Andrews is the UK centre for research on sea mammals, including seals, which, as we know, have an effect on fisheries—so this is important. How will the funding work? I am not certain, but I imagine that that department at St Andrews is partly funded by the Scots Parliament, partly by one or more research councils and probably other bodies. If the MMO wants research to be carried out on the behaviour of seals and all the existing data, it would be ridiculous for it to embark on research of its own. In fact, I cannot see the MMO embarking on much research with the staffing that it will have. It will be farming research out, although the Government are rightly giving it the right, if it wants, to do that research. If the Government ask St Andrews to do some research or to supply data, will the MMO fund that or will it be the department’s responsibility to supply existing data? How will that work? That is basic to our understanding of the operation of this body.
It is not easy to give a one-line answer to that. It will depend on the research being considered, and the surrounding circumstances. For instance, research will become publicly available that the MMO, along with anyone else, will be entitled to use. Equally, there may be gaps in the research that the MMO requires, and it could commission the department that the noble Baroness refers to, or any other research organisation. Alternatively, Defra’s research and development commissions might identify a research project that is needed. It might be Defra that commissions the department to which she refers, and pays the cost. We have flexibility here.
I agree that, although scientific expertise will be important among the staff of the MMO, the extent to which those staff will do research themselves will probably be limited. What is important is that the MMO has staff who understand science and are able to analyse it and give high-quality advice to the board of the MMO. In my department, our chief scientific adviser, Mr Bob Watson, is a man of the highest calibre. Other departments have people of similar calibre. Clearly, we want to ensure that the MMO has a similar capacity. We also need MMO staff who understand the commissioning of research, so that the specifications are correct and the research is properly monitored. Equally, the MMO will have access to research undertaken by my own department, and it can enter into collaborative agreements as well. The point is that the MMO has a great deal of flexibility. The reassurance that I seek to give noble Lords is that it will have the ability to commission research where it needs to. It all lends to the original point of this debate, which is that decisions by the MMO are informed by high-quality science and other evidence.
I was extremely pleased by what my noble friend said in response to the question of the noble Lord, Lord Kingsland. I applaud the importance and status that has been given to the MMO. However, am I right in believing that the status of the MMO will be sufficient to enable it to counter anything that the IPC does in terms of the environment, and that, in the unlikely event of a difference between the two, the MMO will have the upper hand in, for example, vetoing other views on environmental grounds?
I congratulate my noble friend on taking us back to the debate about the relationship between the Marine Management Organisation and the Infrastructure Planning Commission, and the relationship between marine planning statements and the MPSs that will come through because of changes in the Planning Act 2008. I hope that the circumstances he has suggested never arise. The thought of the IPC commissioning scientists to come to one view and the MMO commissioning scientists to come to another is not what I envisage, and I would be horrified if that were the case.
I will make two points. First, as I have said, we expect the marine planning statement and the MPS to be consistent. Secondly, the science and research will be available to both the MMO and the IPC to enable them to make the judgments that they are called upon to make. If an offshore renewable infrastructure planning decision, because it is above the threshold, is not made by the IPC but by the MMO, I would expect that, in making the decision, the MMO would make available to the IPC all the relevant expertise and scientific and research evidence. That is how it will work.
In his full reply, for which I thank him, the Minister mentioned that, to use his words, there is a “blueprint” available. Is it in draft form and are noble Lords able to see it? If not, will there be an opportunity at some point during our consideration of the Bill through its stages in this House to have a look at it?
I knew I should not have used the word “blueprint”. I cannot say to the noble Baroness that there will be a long document setting all this out by a certain date but, if the amendment is withdrawn, I shall write to noble Lords with as much detail as I can about the matter.
Before my noble friend responds, I want to apologise to him for not being able to get to my place to hear his opening remarks. I should like to pick on a point arising from the concerns of the Joint Committee about funding. Has the noble Lord any idea of how much of the research undertaken at the moment is being commissioned and funded by government departments compared with what is being undertaken privately, if you like, by other research areas? It would be interesting and helpful to have some idea about this.
There are two issues here, the first of which is whether there will be enough money to obtain the sort of information that the management organisation will want. Secondly, on a point that my noble friend wanted to come back to, under Clause 23(2) does the MMO have to provide information for anyone who requests it? Does it have to make it available on demand? That could become a very expensive exercise. The Minister has indicated that he will probably come back to this point and I hope that he will, because at the moment the wording is very open-ended and could result in great demands being put on the finite resources of the MMO.
I do not have the information to respond to the first point and I am not sure to what extent it can be discovered. However, I shall do my best to see what we can find. The noble Baroness has raised an interesting point. On the one hand there is an implication in the amendment of the noble Baroness, Lady Miller, about the free flow of research information, and clearly that is well understood. On the other hand, the noble Baroness, Lady Byford, is right that we do not want to encumber the MMO with extravagant requests that are hard to meet.
Having listened to the noble Lord, Lord Taylor, and looked at the wording in Clause 23(2), I am anxious to give this provision further consideration. We have already discussed the confidentiality issue raised in terms of research, and my understanding is that it is implicit in the wording here that it would not be covered. However, I shall check the point and come back in order to debate it further with noble Lords on Report, or I can write.
I might say that I think that the Minister has given a well judged response to the questions that the second part of Clause 2 has raised. When looking at it, perhaps the Minister will bear in mind three possible angles. The first is the broad question of national interest. We may find that an interest from abroad, for reasons which might not be wholly bona fide, may make a demand that would be strongly supported by the clause as it stands. The second point is the one so well made by my noble friend Lady Byford, that the resource cost related to a large, if not infinite, number of demands could be massive, not only in absolute terms, but in being highly distracting from other work of a higher priority which the MMO will also be undertaking. The third point is that if you have, for example, a conflict between one organisation and another that may or may not have reached the stage of litigation, we might find one or other of the parties using this clause to bolster its own partisan cause. The Bill needs to provide some protection against all three of these eventualities.
That is a helpful intervention by the noble Lord, and I will certainly consider all those matters. I suspect that if we had had a clause that was highly restrictive of access to MMO research, amendments would have been tabled to free it up. My sense is that there is a broad consensus in your Lordships’ House that we want information made available wherever appropriate. We should remember that the information that the MMO produces, commissions or has made available to it will be of enormous benefit in a proper way to all those stakeholders who are interested in the marine environment. In the best sense, the more that high-quality research is commissioned and made available, the more it will add to people’s learning. Getting the balance right is a challenge, but this point has been well made in the debate. I am happy to go away and see if we can come back either with amendments or with further explanation of how this ought to be dealt with.
I am pleased that the Minister understands our motivation and purpose so well, and I thank him for that full reply. I do not think I will be alone in being pleased with much of what he has said.
This has been a useful debate. We were probing the way that the Government saw the priority to be given to research. As the Minister knows, we are keen to keep the MMO, particularly its scientific expertise, at the heart of the Bill. When my noble friend Lady Carnegy made her point, I felt that we were back to the core issue of the enabler versus the provider that we get in so much legislation. That is a key part.
Sometimes I suspect that the Minister is with us but has to draw back a little from a wholehearted commitment to the MMO. It would be good if we could ensure that the MMO’s position was clear.
I am certainly with noble Lords on the importance of ensuring that this organisation comes to its decisions on the basis of the best possible evidence and scientific research. I am at one with the noble Lord in wanting the MMO to be able to access the research that is necessary. It is a good thing that the MMO has a number of options available to it in accessing that information and research, particularly in having high-quality scientific people on its staff who can advise and inform the organisation as a whole on the way it should approach these matters.
I thank the Minister for that explanation of his position. I accept that a multi-path approach has a lot to recommend it. I am pleased to hear about the formation of the marine science strategy committee, if I have remembered its name correctly. I hope that the MMO will be not just a partner in it but, one might say, a senior partner. It is clear that the MMO’s role is going to be exclusively on marine matters, and I hope that it will therefore be principal in setting the committee’s agenda. Reassured as I am by the Minister’s willingness to go away and look at Clause 23 again, I happily beg leave to withdraw the amendment.
Amendment 70 withdrawn.
Amendments 70A and 70B not moved.
Clause 23 agreed.
Clause 24 : Advice, assistance and training facilities
Amendment 71 not moved.
Clause 24 agreed.
Clauses 25 to 29 agreed.
Clause 30 : Grants
Debate on whether Clause 30 should stand part of the Bill.
On the money front, I shall probe a little more into the Government’s intentions for funding the MMO. The impact assessment for the Bill puts the cost to the Government at somewhere between £751 million and £1.6 billion over 20 years. There is quite a spread between those two figures. The predicted benefits are even more startling: somewhere between £8.7 billion and £19.6 billion.
However, I am particularly interested in the efficiency savings to the Government. We on these Benches are not generally over-enthusiastic about the creation of another quango. We support the Bill, however, because we have great hopes that the MMO will not merely duplicate existing bodies' responsibilities but go beyond them, incorporating them into the new MMO and extending good environmental practice. Also, the creation of the MMO should make it possible for some of the existing bodies to be better co-ordinated and managed, and to achieve savings on existing budgets.
Streamlining the licensing system will reduce the administrative burden on regulators and advisory bodies. Can we assume that government funding for these bodies will therefore be reduced? What budgetary adjustments does Defra intend to make to account for these existing bodies’ reduced workloads?
I am grateful to the noble Lord for allowing us to discuss Clause 30 and the funding of the MMO. Clearly, the resource made available to the Marine Management Organisation by the Secretary of State has been given consideration in the course of the development of this legislation. The impact assessment that was laid before this House includes costings of the Bill’s measures, set out as costs to government and industry. The costs to government are related to the new functions that the MMO will be carrying out. The marine planning function is estimated to cost government £8.1 million per annum. Enforcement costs will be modernised, so enforcement and civil sanctions regimes will cost £90,000, and enforcement of marine conservation zones around £1 million. The new GS and data systems needed to underpin the new planning and other functions will cost around £3.3 million. There are of course additional one-off costs in setting up a new organisation, and some increase in funding costs for a large organisation in the form of the existing Marine and Fisheries Agency.
Of course, I am glad that the noble Lord, Lord Taylor, would wish that the resources were necessary to deliver the Bill. Indeed, in our previous two days, a number of Members of the Committee have emphasised to the Government the need to expend extra resources in a number of areas—not least research, which we have just debated. Equally, I understand the point of the noble Lord about ensuring that efficiency also goes to the heart of the matter, and that we should ensure that where there is a reduction of function in, say, my own department, there should be a consequent reduction in headquarter costs.
That will be our intention. I do not want to go into the pain of the efficiency targets that my department is currently under, but they are considerably challenging. Clearly, we want to ensure that the transition happens as efficiently as possible. Inevitably, as I have indicated, there will be transition costs that must be met. The transition from the current Marine and Fisheries Agency to the MMO has been and will be gradual. The aim is to spread the cost and build up expertise within what was purely a fisheries organisation. For example, the environmental licensing and dredging responsibilities of the Department for Communities and Local Government have already been transferred to the agency, with full resource transfers. I understand that responsibility for harbours orders will transfer across, with expertise and resource, from the Department for Transport to the Marine Management Organisation. The current running costs for the Marine and Fisheries Agency will be maintained and enhanced from the core departments’ budgets. Running costs are currently around £25 million a year.
Budgetary provision of around £4 million has been made for one-off costs of setting up the MMO. About £3 million has been allocated for the capital expenditure related to the new GIS and data systems needed. We have taken account of the planned need to upgrade the existing systems with a new function stemming from the MMO. The Marine and Fisheries Agency operates a full-cost recovery for its licensing of marine developments, and the Marine Management Organisation will do likewise. We will ensure that industry does not incur unnecessary costs by exempting activities which, by their nature, do not damage the marine environment, or which operate at a de minimis level. The licensing regime will deliver a more joined-up system than currently operates with an estimated saving of some 20 per cent of licences currently issued.
On the research budget, I should have mentioned that—although this does not take anything away from Clause 23(2), which states:
“The MMO is to make the results of any such research available to any person on request”—
under Clause 26 there is power to charge for services. I think that meets one of the concerns about the cost falling back on the MMO.
Clearly, one cannot take on new functions. One has to recognise that this new marine planning system is one of the huge advantages of what we are doing. However, that cannot be instigated without incurring costs.
I am grateful to the Minister for giving way. I may have missed a point during earlier discussion but can he indicate the figure for the initial setting-up costs—we all accept those costs are inevitable as regards the MMO—and in which financial years they will be incurred? What is the final financial year in which he anticipates that the MMO set-up costs will still be a cost to the Exchequer? The £4 million to which he referred will presumably be incurred over a relatively short time. It is a one-off payment, not a recurring figure that goes on for ever. There is always a tendency to think that the setting-up costs of new organisations can be built into their budgets for ever and a day. It is very important that that should not happen.
The noble Lord is absolutely right. I assure him that we will ensure that does not happen. I am not sure that I can give him the specifics as regards the financial years in which this will all occur. That depends on achieving the required timing, how that will be managed and various elements relating to staff transfers. However, as I said, we have indicative one-off set costs of £7.2 million; £2.9 million to set up the MMO; £2.1 million for staff costs; and £4.3 million to set up a new geographic information system over three years. The £2.9 million MMO set-up costs is an indicative figure informed by those incurred in the setting up of the Agriculture and Horticulture Development Board, the Marine and Fisheries Agency and Natural England, and differs slightly from the £3.7 million that appeared in the impact assessment which accompanied the draft Bill. This is because that figure included Defra staff costs incurred in setting up a new NDPB which we have since been advised should not be included.
I think the point is made that we all want the MMO to be resourced to do the job. We want it to work as efficiently and effectively as possible. Where functions have been transferred, there will be a consequent reduction in the budgets of the parent department. I can give the appropriate affirmation in that regard, but clearly there will also be these initial set-up costs.
Am I correct in thinking that as these organisations will be transferred with their existing budgets it will be up to the MMO to drive any efficiency savings that it can achieve out of these transfers and the co-ordination savings that might be achieved?
Yes, of course, but there would also have to be the appropriate reporting and monitoring by my department as would be expected of any non-departmental public body.
Are the functions and their attendant costs being transferred from the devolved Administrations, or only from the United Kingdom departments?
Not that I am aware of, because the MMO's main responsibilities will be in relation to England. It will also have responsibilities that will naturally fall to the UK Government to fund.
Clause 30 agreed.
Clauses 31 and 32 agreed.
Clause 33 : Government loans
72: Clause 33, page 16, line 26, leave out subsections (2) and (3) and insert—
“( ) Loans made under subsection (1) must be subject to repayment with interest at a commercial rate.
( ) Interest is at a commercial rate if it is at least equal to the rate set by the Treasury under section 5 of the National Loans Act 1968 (c. 13) for an equivalent loan.”
Amendment 72 seeks to explore why the Government have retained the flexibility to make loans on a non-commercial basis to the MMO, when Clause 30 has already empowered them to grant the organisation any such money as they see fit.
I am not trying to say that there is no place for a government loan; I imagine that there might be many situations where the MMO takes on the financial burden of setting up a scheme that is eventually self-financing. It might be more appropriate in that case for it to apply for a government loan, rather than to deplete resources that are better preserved for less remunerative duties. However, the Bill is not drafted to allow government loans only in areas where there is a financial benefit in so doing. Instead, we have an enormously vague clause that allows the provision of any amount of money under any terms. There is not even a requirement that such loans should be repaid.
Given the enormous power in Clause 30, it might seem a little otiose to seek to limit Clause 33, but the Government’s approach to accounting for government spending and taxpayer commitments has shown us just what can be conveniently left off certain balance sheets when it is unclear what is a payment, what is a loan and what is something else altogether. By ensuring that loans are put on a commercial basis, we can ensure that they are only made when it is financially appropriate for the duty to be funded by such a mechanism, rather than out of the MMO’s general budget. I look forward to the Minister’s response, and I would appreciate a fuller explanation of why he envisages making the non-commercial loans to the MMO over and above its annual funding.
The noble Lord has raised an interesting point. Clause 33 states:
“A loan under this section may be made subject to such conditions as may be determined … The conditions must include provision with respect to … repayment of the loan”.
Although we might debate the principle, there are sufficient safeguards for the Secretary of State in lending money to the MMO.
I do not think that there is anything exceptional in the clause. It is a facility that is on the books and that could be made available. I accept that it is unusual for departments to make loans to NDPBs from their own budgets or indeed from the National Loans Fund, as funding is usually provided through grant-in-aid.
I have just inquired into my department’s experience in this area and I have not found any example of such loans being made. I understand that loans to Defra-sponsored public corporations, such as British Waterways and the Covent Garden Market Authority, which have a slightly different status, have been agreed at Treasury standard interest rates, primarily to fund profit-generating capital expenditure projects. That is very different from the circumstances in which the MMO finds itself and is likely to find itself in the future.
On the rates, I can assure the noble Lord that colleagues in the Treasury determine the rates at which any loans may be made to bodies such as NDPBs and indeed any loan is subject to Treasury approval. I should have thought that was a pretty strong guarantee against the Secretary of State making a loan in circumstances which might cause the noble Lord concern.
The clause gives flexibility for arrangements to reflect an economic situation that might arise at the time and the exact requirement for which the loan is required. We do not want to put the body at a disadvantage compared with other bodies in having access to loans on that basis, although I accept that it is difficult at the moment to foresee those circumstances. It is simply a standard provision in the terms and conditions for setting up a non-departmental public body.
I am grateful to the Minister for his response to this probing amendment. I am not entirely sure that I have totally taken on board the reasoning. It gives considerable flexibility and powers and usually the Minister is rather keen to avoid too much flexibility in such legislation. I should be grateful if, at some point, he could advise me of other points of legislation where similar arrangements arise. I would find that very useful.
I can do more than that. I can send the noble Lord a copy of Managing Public Money, Her Majesty's Treasury’s guidance to departments, which states:
“The Government can provide loan finance to public sector bodies through the national loans fund and departmental estimate”.
It is riveting stuff.
It is never too late to learn. I look forward to receiving the document as soon as the Minister finds it convenient to send it to me. In the mean time, I beg leave to withdraw the amendment.
Amendment 72 withdrawn.
Clause 33 agreed.
Clause 34 agreed.
Clause 35: Directions by the Secretary of State
73: Clause 35, page 18, line 3, after first “of” insert “, or compliance with,”
Amendment 35 deals with directions and guidance by the Secretary of State. I refer specifically to the directions part. Subsection (2) reads:
“The Secretary of State may also give the MMO such general or specific directions as the Secretary of State considers appropriate for the implementation of any obligations of the United Kingdom under”,
and in paragraphs (a) and (b) EU treaties and international agreements are mentioned. The shipping industry is worried that the phrase “implementation of any obligations” could be restrictively interpreted to refer to only new or future obligations. However, directions given should also respect the UK's pre-existing treaty law obligations under, for example, the United Nations Convention on the Law of the Sea, which deals with such things as innocent rights of passage and freedom of navigation, and the International Convention for the Prevention of Pollution from Ships 1973 and its 1978 MARPOL protocol. My amendment, which adds the words “or compliance with” after “the implementation of”, would remove any shadow of doubt by ensuring that directions to be given to the MMO must cover prior, current and future treaty obligations. I beg to move.
I am almost lost for words, not—I hasten to add—having listened to the noble Lord’s amendment, but because my speaking note is extremely brief. It is one line which says, “This all seems fairly sensible and uncontroversial. Stand up and support”, so here I am. Before I support the amendment, I congratulate the noble Lord, Lord Greenway, on chairing the Joint Committee and producing that excellent report. It has certainly made my life—and, I am sure, all your Lordships’ lives—much easier by highlighting so many of the important issues.
I am only too happy to obey my instruction to support the amendment, so ably moved by the noble Lord. Not only does it seem sensible, but I hope the Minister will confirm that the Secretary of State will ensure that all EU treaties and international agreements are complied with.
Since receiving my speaking note, I have been racking my brain for something to add and two points spring to mind. First, Clauses 35 and 36 are about directions and guidance by the Secretary of State. When, last week, I moved Amendment 52 on the need to review guidance from time to time, the Minister said:
“I can reassure noble Lords that we will review and if necessary amend the guidance at appropriate points”.—[Official Report, 21/1/09; col. 1705.]
The Minister went on to list examples of when this might be necessary. With this amendment in mind, perhaps the Minister would add “compliance with EU treaties and international agreements” to his list.
I have no idea where it came from but I have received a draft Defra booklet, dated December 2008. The photograph of the Minister is to follow, as is his text, so I do not know what the final version says, but on European directives the draft says:
“The MMO will play a key role in the implementation of the EU Marine Strategy Framework Directive, but at this stage it has not been decided exactly what form this role will take, or whether the MMO will act as competent authority for the Directive. This will be considered in more detail as part of the ongoing transposition process.
Similarly, the MMO may take on a competent authority role in the marine area in relation to the Environmental Liability Directive but the nature of this role has not yet been decided”.
Have the Government decided yet whether the MMO will take on the competent authority role and, if not, who will? Indeed, if not, I can add this to my list of areas where the MMO’s authority is being undermined. This goes back to the debate on Amendment 59, when I cited four examples. Oil and gas are covered by DECC; large renewable installations are covered by the IPC; shipping is covered by the Marine and Coastguard Agency; and the marine conservation zones are probably covered by Natural England. If the MMO will not be responsible as the competent authority here, that is yet another thing that I can add to my list.
Secondly, this amendment is all about reacting positively to EU and international agreements, but should the Government not be proactive when dealing with the EU and the international marine community? I have two examples of when this should happen. First, have the Government started negotiations on extending the 12-mile derogation beyond 2012? Secondly, have the Government started talks with EU member states and non-EU countries to ensure that they will respect and abide by our rules with regard to marine conservation zones? The Joint Committee states on page 19 of its report:
“The Seafish Industry Authority said that ‘we are approaching the major problem area of legislating in a way that will control activities of UK nationals but not necessarily non-UK nationals’ and that French, Belgian and Spanish fishermen were unlikely to respect the management provisions in an area where they have no requirement to comply”.
Those are two examples of where the Government should be proactive. I ask the Minister whether they are being proactive in those two areas.
I have some sympathy with the noble Earl and I look forward with interest to the Minister’s response. We have a great deal of sympathy with what the noble Lord, Lord Greenway, said on the amendment. However, since brevity is the soul of wit, I can be even briefer than the noble Earl and I register my support and that of my colleagues on these Benches for what the noble Lord has moved.
I agree with the noble Lord, Lord Greenway, that there is a slight ambiguity in the drafting of the clause. It would be good to clear it up to make quite sure that it refers to existing treaties as well as new ones.
I am grateful to noble Lords who have spoken. The intention behind the amendment is to clarify that the directions could apply to existing EU and international obligations as well as future commitments as there has been concern that the concept of implementation could be construed as applying only to future obligations. I understand that the concerns relate to obligations under, for example, the MARPOL Convention and the London Convention on dumping at sea.
I have taken advice on this because the point raised by the noble Lord, Lord Greenway, is valid and is supported by other noble Lords. There is a wealth of existing international commitments, especially in the world of shipping and navigation. Should directions need to be given, it is important that they can relate as much to existing as to new obligations. However, I am assured that the drafting and interpretation of implementation, in our view and those of Department for Transport colleagues who are owners of such matters on shipping, clearly cover existing and new obligations. I hope that I can reassure the noble Lord on that point.
I was enjoying the noble Earl’s speech until he asked me lots of questions. That was when it began to get rather more difficult. I shall try to provide as clear a position as possible. I suspect that we shall come on to marine conservation and to his question about the approach of our neighbours and to the issue of ensuring that not only is due regard paid by nationals of those countries, but that there is a consistent European approach. Essentially, the Marine Management Organisation will not handle policy negotiations in Europe because that will formally rest with the UK Government. In addition, the practicalities of intergovernmental meetings usually cover a wide range of detailed policy issues and are too disparate for a single-policy structure organisation to cover. My understanding is that the competent authority is the UK Government—in other words Ministers—but it is delivered by the MMO for the Government in relation to any functions that remain with the UK Government and the devolved Administrations.
I take the point about the importance of the MMO’s work internationally, and we want it to develop a reputation for efficient and sustainable use and the protection of UK marine resources. We would expect representatives of the MMO to participate in UK delegations to international meetings. The MMO will provide technical expertise to inform international marine policy negotiations and will keep up to date with developing techniques. As the MMO evolves, we expect it to play a key role in implementing the marine strategy framework directive. We are in discussion with our fellow member states in Europe and I firmly believe that the UK will wish to take a leading role in these matters. The construct of the Bill and the establishment of the MMO are valuable resources in enabling us to do that. On the specific point of the amendment, I hope that I have reassured the noble Lord, Lord Greenway.
I am grateful to those who supported the amendment. I do not think that I doubted for a moment that the Government had not taken into account existing treaties and I am pleased with the assurance from the Minister that they are covered by the existing wording. I beg leave to withdraw the amendment.
Amendment 73 withdrawn.
74: Clause 35, page 18, line 8, at end insert “and, insofar as any such directions apply to the Scottish inshore region or the Scottish offshore region, the Secretary of State shall also consult the Scottish Ministers”
I shall also speak to Amendments 76 and 78. I am sure that my noble friend Lord Livsey of Talgarth will wish to speak to the odd-numbered amendments—Amendments 75, 77 and 79—which are the Welsh equivalents.
We have heard from the noble Baroness, Lady Carnegy, that a devolution thread weaves its way through the Bill, but it is not always easy to pick it out. The purpose of the amendments is to get more clarity on the MMO and devolution. The amendments would place an obligation on the Secretary of State to consult Scottish Ministers along with the MMO before giving directions under subsections (1) and (2) of Clause 35. Amendment 74 would add the provision about Scottish Ministers to the end of subsection (3), so, although such consultation would not be required if some emergency arose, good practice might require that they still be consulted. Amendment 76 would apply a statutory requirement to consult Scottish Ministers before the Secretary of State issued guidance to the MMO. I shall deal with Amendment 78 separately.
It is not just any consultee that we are discussing or any body that the Secretary of State thinks appropriate. The amendment would oblige the Secretary of State to consult Scottish Ministers, who have an elected mandate and who, from what has already been said about this Bill and parallel legislation to be published shortly in the Scottish Parliament, expect to act in partnership to try to achieve similar goals.
I tried to anticipate the Minister’s response on past form, not least his response to the amendment moved by my noble friend Lord Livsey on my behalf on our first day in Committee. The Minister then indicated that he was not willing to agree to the MMO report being laid before the Scottish Parliament, on the basis that the MMO would be delivering functions on behalf of Her Majesty’s Government and would in the main be involved with marine functions in waters around England, as many of these functions are already devolved to the respective Administrations in Scotland and Wales. The amendment would not require blanket consultation but would come into effect only if there was a direction or guidance in relation to Scottish inshore or offshore regions. It is clear from Clause 313(4)(a) that Part 1 of the Bill, dealing with the MMO, will extend to Scotland, so it would be useful if the Minister could give some clarity on the specific functions that the MMO will exercise in relation to Scottish waters.
When the noble Lord, Lord Greenway, moved the previous amendment, he mentioned international law and the right of innocent passage; if my memory serves me correctly, the transit through the Pentland Firth is such a right recognised in international law. There are, of course, important renewable energy developments planned for the Pentland Firth and, potentially, some conflict—or, at least, the need to liaise—between a requirement or function that the MMO might, on behalf of the UK Government, exercise on general shipping matters under international law and functions related to renewable energy that were being exercised by Scottish Ministers. Therefore, getting proper co-ordination would seem very important.
We are told that Marine Scotland, which is intended to be the parallel organisation to the MMO, will deliver marine functions in Scottish territorial matters and, in respect of devolved matters, in the offshore area. Can the Minister give greater clarification on what the MMO will be delivering in terms of non-devolved functions in that area? What are these functions? Do they, for example, include nature conservation, the exploitation of hydrocarbons or the marine transport to which I referred? It would be useful to get a better understanding of that.
Also, if the MMO will be exercising quite important functions in the Scottish offshore area—and, possibly, the Scottish inshore area—that underlines the importance of ensuring that there is co-ordination and that, when the Secretary of State intends to issue directions or guidance, there has been prior consultation with Scottish Ministers to ensure co-operation. A good fit between what both Administrations are doing would be in the interests of comity, as would Amendment 78.
As things stand—and here we move forward to Clause 38—on an interim basis the Secretary of State can, as I understand it, requisition the Scottish Parliament or the Scottish Executive to provide the MMO with,
“temporary … staff, premises or other facilities”.
Given that the Scotland Act 1998 established the Scottish Parliament and Scottish Executive, I assume that they fall within the definition of a statutory body. It would not really be in the interests of comity for the Secretary of State to do that. Could the Minister clarify that that is not the intention? I beg to move.
This Bill is highly complex, as the noble Lord, Lord Wallace of Tankerness, has just told us. That is not least because of the legislation involved but also because so many different constituent bodies have to be taken into account. They include the EU, the UK Government, the Scottish Parliament, the Welsh Assembly and the Northern Ireland parliament. They are all part of the Bill, which means that the terms of the legislation have to be predicated around the different legislative bodies.
We certainly found it of great assistance that the Government kindly issued both a brief on devolution and a set of maps. While helping a good deal, those also served to illustrate just how difficult this issue is. Within the material, the Government themselves state that,
“the marine environment is a complex mix of devolved, non-devolved and retained matters”.
It is interesting that in their brief they say:
“The UK Government will legislate for England, the waters around England”,
“around the UK, and for certain functions within the territorial waters of Scotland, Wales and Northern Ireland”.
That is precisely the area where we need the Minister to make things absolutely plain.
In this set of amendments, we are dealing not with the powers of legislation but with areas where the Secretary of State is likely to give directions or guidance. My impression, for Scotland, is that this can only be in the Scottish offshore area, as the zero to 12 nautical miles limit has already been devolved, as I understand. It is practically a part of Scotland. The Marine Management Organisation presumably is not intended to have any powers whatever in that area.
I support the amendments tabled by the noble Lord, Lord Wallace, because it is important that we clarify this issue. They sensibly point out that for the purposes of consultation and guidance, if there is any overlap, the Secretary of State cannot simply confer with the MMO but must also consult the appropriate devolved powers.
On the amendments in the name of the noble Lord, Lord Livsey, the issue must surely be considerably different for Wales, where there is not the same degree of devolution as there is in Scotland. I am not aware of the inshore area being devolved at all at the moment. It would surely be sensible that, before giving guidance to the MMO, the Secretary of State must consult Welsh Ministers in so far as the guidance relates to them.
I make the same request as the noble Lord, Lord Wallace of Tankerness, that the Minister give us some detail about the type of guidance that may affect non-English areas. Does he have any real evidence that that will be needed and can he give his assurance that the devolved Administrations will be consulted? If that is necessary, why not include it in the Bill?
I shall speak to Amendments 75, 77 and 79, which refer to the situation in Wales. What I have to say largely mirrors what the noble Lord, Lord Wallace of Tankerness, said and, to some extent, what the noble Duke just said. Amendment 75 refers to directions by the Secretary of State for Wales. It mirrors Amendment 74, in that the aim is to ensure that, before giving directions, the Secretary of State must also consult Welsh Ministers where such directions apply to the Welsh inshore region or, indeed, the Welsh offshore region. I am sure that the Minister will regard the amendment as making a perfectly reasonable request. There will be an impact on the Welsh inshore region, as featured on the department’s maps, which he kindly gave us recently. Given that the Welsh offshore region is now defined, consultation by the Secretary of State would clearly be necessary, not least for the fishery interests involved, before the MMO could fully consider the overall situation.
What really concerns us is that later in the Bill—I shall not pre-empt that too much—there are references to inshore fisheries conservation authorities. There is concern in Wales that there is insufficient reference to the sustainability of fisheries. If the MMO has powers regarding IFCAs, it appears that they are not sufficient in Wales. That reflects what has just been said: devolution in Wales does not go anything like as far as it does in Scotland. Those matters need to be considered.
In Amendment 77, the same principle about guidance applies in Clause 36. Where matters directly impact on a Welsh region, Welsh Ministers must be consulted. Clause 36(2) is inadequate, with its reference to,
“such other bodies or persons as the Secretary of State considers appropriate”.
Our amendment would ensure that the guidance was subject to the Secretary of State consulting Welsh Ministers. I am sure that the Minister will not find that a difficult principle to absorb.
Amendment 79 would ensure that, under Clause 38, the Secretary of State’s notice with the interim arrangements did not apply to the National Assembly for Wales and the Welsh Assembly Government, as the amendment would exclude those Acts of Parliament—the Government of Wales Act 1998 and the Government of Wales Act 2006—that established the Welsh Government and increased the powers of the National Assembly. Some of these matters are found in the 1998 Act, which deals with, for example, legal proceedings and the public interest, where the public interest is defined as being of the Welsh public in terms of devolution. These matters are of concern and, as far as IFCAs and MCZs are concerned, will come up later in the Bill.
I will not go into all the issues that my noble friend the Duke of Montrose has explained so clearly. However, I will just say to the Minister that, before he replies to my noble friend’s question about where any guidance given by the Secretary of State to the MMO might impact on Scotland, he might think about the fact that it is not particularly courteous to refer to the elected Scots Parliament as one of “such other bodies”.
I, too, support Amendments 74 and 76 in the name of the noble Lord, Lord Wallace of Tankerness. It is appropriate to make it absolutely clear in the Bill that there are areas where the Secretary of State, in issuing guidance, should consult bodies and institutions such as those that the Scottish Ministers represent in these matters.
I say to the noble Duke, the Duke of Montrose—although I stand to be corrected by the noble Lord, Lord Wallace—that the reason why references are made to the Scottish inshore region, although that area is devolved to the Scottish Parliament, is that it has been recognised in earlier debates that, although the MMO may not have authority over the Scottish inshore region, it will have to take it into account in anything that it does outwith those waters. It therefore seems appropriate to include that area within the areas to which directions may apply.
Another matter to which I draw the Committee’s attention is that the Scottish Parliament is bound to recognise, for instance, the effect of EU treaties, just as much as it recognises those international agreements to which the United Kingdom is a party for the time being. There again, it would be appropriate for the Secretary of State, in looking to both the Scottish offshore region and the Scottish inshore region, over which the Scottish Parliament has responsibility, to consult Scottish Ministers to be sure that they are at one on the proper interpretation. That might be important in relation to whether under subsection (4) there truly is an emergency, in the sense that the emergency may evolve from the Scottish inshore region and affect the Scottish offshore region, for which of course the MMO would have immediate responsibility.
For those reasons, I generally support these two amendments. I take no particular issue with Amendment 78, which seems to be perfectly sensible, but I have a small comment on the drafting of Amendment 74. Clause 35(3) says that,
“the Secretary of State must consult”.
It would be unfortunate if, as in the amendment, “shall” was used instead of “must”. In this regard, we use words of direction slightly differently in various parts of the Bill. We have “may” and “must”, and we have introduced “is to”. I have asked before whether “is to” is a “must” or a “may”. That was exemplified in the debate that we have just had on Clause 23. Subsection (1) of that clause says “may” and subsection (2) says “is to”. I would have thought that “must” was more appropriate. I simply suggest that we look carefully at how we use words of direction and that we use the well known parliamentary language of either “may” or “must”, unless, in the particular area in which the words are being used, neither “may” nor “must” is appropriate.
I am sure that we are all grateful to the noble Lord, Lord Wallace, and other noble Lords for allowing us to have a discussion about some interesting devolution matters. Before I respond to the amendments, I will say a little about the general principles that govern where we are. I recognise that this is a complex area and, if some things are not clear at the end of our debate, I am happy to follow up our discussions on devolution outside the Chamber to ensure that we are all clear about these matters.
The Bill in essence recognises that the marine environment involves a complex mix of devolved and non-devolved, or reserved, matters and its intention is to respect the provisions of the current devolution settlement. The strategic framework for marine planning, which it introduces, has now been agreed by all four Administrations—a development since the publication of the draft marine Bill in April 2008. The provision in the draft Bill that restricted the marine policy statement in form and impact in Scotland drew criticism from several witnesses to the Joint Committee. The committee believed that it was essential that the marine policy statement and plans had the active support and approval of all the devolved Administrations; indeed, it regarded as imperative the production of an agreed marine policy statement that has consensus across the devolved Administrations, including Scotland.
Subsequent to the Joint Committee’s report and the work of the joint ministerial committee, I believe that we have achieved a satisfactory outcome. There is no doubt that the Scottish Executive will look for the further legislative devolution of new powers in areas such as marine planning and nature conservation where they feel that governance could be as appropriate from Scotland as from this House. The UK Government have not agreed to that, but we have agreed to the devolution of new functions in the Bill in a form of executive devolution. That allows for a more coherent delivery of the common objectives in the Bill that we all share and ensures the real engagement of those who are closest to the waters in question and the protection of key reserved interests, such as oil, gas and shipping.
The UK Government will legislate in the Bill for England, for the waters around England, for the offshore waters around the UK and for certain functions within the territorial waters of Scotland, Wales and Northern Ireland where we have agreed between us to do so. That means that not all the original proposals in the draft Bill will apply to the whole of the UK. Where proposals do not apply—for example, in the territorial waters of Scotland and Northern Ireland—there are proposals for legislation to be brought forward by the relevant Administrations to deliver similar reforms and systems as appropriate.
Most of the provisions of the Bill extend to Wales with the agreement of the Welsh Assembly Government, but in some instances the Bill reflects their wishes for different delivery mechanisms—for example, on inshore fisheries management, where they do not intend to create inshore fisheries and conservation authorities but intend to deliver the same measure in another way. The Bill also delivers framework powers for the creation of a coastal path in Wales. This will allow the Assembly Government to bring forward measures which are tailored to meet the specific circumstances of Wales and which take account of work that is under way under their coastal access improvement programme.
Under the Bill, devolved Administrations become the planning authority for the relevant offshore region under a form of executive devolution. That means that their marine plans will be subject to agreement by the Secretary of State before they can impact on decisions across the breadth of marine interests. Scottish Ministers also become the designating authority for marine conservation zones in the offshore region. Again, proposed designations are subject to agreement by the Secretary of State. For Wales, the Bill takes the opportunity to create a Welsh fisheries zone out to the median line. This delivers parity with Scotland and Northern Ireland, which already have fishery zones for the coherent delivery of fisheries management across the inshore and offshore regions.
I know from talking to a number of noble Lords, both in the Chamber and outside, that there is a perception that we have here a rather fragmented and complex system, which perhaps does not deliver the benefits that the Bill was intended to provide. I disagree with that. Essentially, the Bill recognises the reality of the devolution settlement but it contains provisions to make sure that, as far as possible, there is a consistent approach. I emphasise to the Committee the importance of the joint ministerial statement in the autumn, because it sets out a good framework for making sure that this works from a UK point of view.
Amendments 74 to 77 propose changes to Clauses 35 and 36 to require the Secretary of State to consult Scottish Ministers before issuing directions or guidance to the MMO that might apply to the Scottish inshore or offshore regions and to consult Welsh Ministers before issuing directions or guidance to the MMO that might apply to the Welsh inshore or offshore regions. I understand the purpose behind these amendments, which is to keep the devolved Administrations fully involved in delivering the Bill through the MMO. We would normally expect the MMO to operate without direction. This clause allows directions to be given where appropriate, but it would not be normal practice for directions or guidance to be given to the MMO in relation to Scottish inshore areas where Marine Scotland, the Scottish equivalent of the MMO, will operate—the noble Duke made that point—or the Welsh inshore areas, which will be governed not by an agency but by Welsh Ministers and officials acting for them.
Directions or guidance in the offshore region could relate to reserved matters, but we would not expect that to be normal practice. Shipping and oil and gas exploration, for example, are reserved matters, as is defence. Nature conservation enforcement in the Welsh offshore region will be enforced by the MMO, as will licensing of dredging. If matters relating to implementation of EU or international obligations required the MMO to take a co-ordinating role on behalf of the UK Government—it is the UK Government who have to accept that responsibility—we would expect the MMO to undertake consultation with whomever would be affected in the devolved Administrations throughout the UK area. It will be made clear in the objectives set for the MMO that normal good practice behaviour on consultation will apply.
I can assure Members of the Committee that this is already the practice of existing marine and fisheries agencies whose functions the MMO will subsume. We continue to expect consultation to take place with colleagues from whichever Administration might be affected by the guidance issued. For example, my right honourable friend the Secretary of State has regular meetings with ministerial colleagues from the other Administrations on fisheries and marine matters. We work closely to agree UK objectives for EU and international negotiations and we have worked closely with the other Administrations on this Bill to secure support for the measures that we are introducing.
I am well aware that the Scottish marine Bill has just been subject to consultation in Scotland. My understanding is that it has received widespread support, which is very welcome. Its provisions mirror in large part the provisions of the UK Bill, confirming the support that the Scottish Executive have for the objectives of the Bill. Clearly, where devolved Administrations legislate for themselves, the Government will need to be closely involved to press for coherence across the legislation and to ensure that the proposals do not adversely impact on the UK Government’s responsibilities and objectives. Our position is that we will continue to pursue with the devolved Administrations an integrated approach for the benefit of the marine environment and/or marine users.
The noble Lords, Lord Wallace, Lord Greaves and Lord Livsey—although the noble Lord, Lord Greaves, alas, is not here—also proposed changes to Clauses 35 and 36. Their amendments are designed to exclude any body set up under the Scotland Act or the Government of Wales Act 1998 and the Government of Wales Act 2006 from the bodies on which the Secretary of State may call to provide staff facilities or premises to the MMO on a temporary basis to aid transition to the new organisation. The existing functions being transferred into the MMO comprise functions carried out by UK government departments, such as my department, the Department for Transport and the Department of Energy and Climate Change. It is not proposed to transfer into the MMO any functions carried out by Scottish or Welsh statutory bodies—indeed, any functions carried out by the devolved Administrations.
In conclusion, I very much understand the complexities of this matter and the need to ensure that the UK Government and the devolved Administrations work together. We will do everything that we can to ensure that that happens. However, the construct of the Bill enables that to happen without the benefit of the amendments.
Perhaps the Minister will clarify a couple of things for me. As I understand it, the Scottish Parliament will not legislate for the Scottish offshore area. It will not have powers of legislation; it will just have executive devolution. Do I understand from that and from what the Minister said earlier that, when Marine Scotland comes up with plans for conservation in the offshore area, those plans will have to be checked with the Secretary of State? From what the Minister said, it seems that anything occurring in that area will be subject to approval by the Secretary of State. Under the MMO and, presumably, under the Scottish Parliament in the Scottish offshore area, there will be powers to license developments. The plans that we were offered say that the Scottish Ministers will have to issue a FEPA licence and a marine licence when proposals are made. Does that give them a power of veto on proposals for oil platforms, pipelines and such things?
The noble Duke asks about marine conservation zones. The devolved Administration will become the planning authority for the relevant offshore region, but that will be under a form of executive devolution. The noble Duke is right to say that marine plans will be subject to agreement by the Secretary of State before they can impact on decisions across the breadth of marine interests. The Scottish Administration will also become the designating authority for marine conservation zones in the offshore region. Again, those proposed designations are subject to agreement by the Secretary of State. The noble Duke put that point fairly and I have answered it as clearly as I can. As for licensing, the Scottish Administration already license offshore marine developments, but not oil and gas; the Scottish Administration will not be able to veto oil and gas decisions.
My noble friend Lord Wallace will speak for Scotland but, as far as Wales is concerned, I cannot see why the Minister is so shy about putting into the Bill the requirement in Amendments 75 and 77 to consult on inshore and offshore projects. It is not a lot to ask. Given the good will of the Minister, who says that the Bill complies with the devolution settlements, why can he not find the charity to put this in the Bill, so that there will be no room for misunderstanding?
I am grateful to the Minister and to other noble Lords who have taken part in this debate. I share the disappointment of my noble friend Lord Livsey of Talgarth, because, although a lot of good will has been expressed, it has not been taken that extra bit further and translated into putting the proposals into the Bill. As everyone recognises, the amendments would not get in the way of anything. Indeed, if there was a conflict or problem, they would ensure that there was a requirement for co-operation. You do not need that if there is no difficulty, but the amendments would take care of those circumstances where there was a difficulty and where co-operation and consultation were necessary.
I thank the Minister for explaining in more detail the set-up for ensuring that we cover the whole of the United Kingdom’s waters through the various Administrations. It is no small achievement that the four Administrations have reached this agreement. I am sure that, in all Parliaments and Assemblies, we will want to ensure that we put in place the right statutory mechanisms to take that forward.
I will not dwell on this point, because I have raised it with the Minister outwith the Chamber, and there may be other opportunities. However, I still have a concern. The Minister confirmed to the noble Duke, the Duke of Montrose, that marine planning in the offshore region will be done by way of executive devolution. My concern is for the marine Bill that comes before the Scottish Parliament. I will take a simple example, which there will be an opportunity to debate later. There will be a duty on public bodies in Scotland to promote biodiversity in inshore waters. However, the Scottish Parliament cannot make that requirement; Scottish Ministers cannot put that into a plan for the offshore region, because the Scottish Parliament does not have the legislative capacity to do that. This House and the other place may have to pass the legislation. There is a potential gap here, which we should examine, perhaps in a later amendment.
There is another point that I would like the Minister to respond to if he can. When drafting the amendment, I deliberated on whether to make any reference to the Scottish inshore area. The noble and learned Lord, Lord Cameron of Lochbroom, gave cogent reasons why it is necessary to do so. I am influenced by the fact that the MMO area defined in Clause 2(2) refers to,
“those parts of the UK marine area, or of the United Kingdom, where MMO functions are exercisable”.
So far as I can see, the “UK marine area” as defined in Clause 40 does not appear to exclude the Scottish inshore area, although many other clauses expressly do so. That takes us back to the argument that it could be excluded by way of MMO functions in that those functions are not exercisable in the inshore area, but the fact that there is no express exclusion in the clause has made me wonder whether there are any functions for the MMO here.
I shall give one example. For the past two or three years, and certainly in the last year during which I was in the Scottish Parliament, a recurring controversy arose over ship-to-ship oil transhipments in the Firth of Forth. The activity generated a considerable amount of debate. I recall that one of the explanations that Scottish Ministers had to give to the Scottish Parliament was that, as I recall, the licensing of such activities lies with UK Government Ministers at Westminster. The Firth of Forth is clearly in Scottish inshore waters. My question is this: are there functions exercised by UK Ministers related to Scottish inshore waters that may be transferred to the MMO which we have not yet picked up? It would be unfortunate if we discovered that some functions that are reserved to UK Ministers nevertheless relate to Scottish inshore waters. If the Minister cannot answer now, perhaps he will write to me and to other noble Lords.
I will look into the specific matter that the noble Lord has raised, but the general principle is that the MMO operates in England as the appropriate marine body on behalf of the Secretary of State. Its involvement outside England is on those matters that fall under the responsibility of the UK Government. We have tried to ensure that the Bill reflects that. If the noble Lord would like to give me more details of the specific case, I shall look into it.
The Minister needs to recognise the political implications here. It was rather funny to read in the press that, when oil is transferred from one ship to another in inshore waters, it is a matter for the United Kingdom, although the inshore waters are seen as part of Scotland. This has quite sensitive political implications.
I certainly agree with the noble Baroness about the political implications, but the point that I seek to make is that the MMO will deal with the UK Government’s functions and responsibilities. My query is this: if there are functions within inshore Scottish waters that are exercisable by UK Ministers, where does the responsibility lie? I beg leave to withdraw the amendment.
Amendment 74 withdrawn.
Amendment 75 not moved.
Clause 35 agreed.
Clause 36 : Guidance by the Secretary of State
Amendments 76 and 77 not moved.
Clause 36 agreed.
Clause 37 agreed.
Schedule 3: Transfer schemes
77A: Schedule 3, page 220, line 29, after “employee” insert “working at the Marine and Fisheries Agency”
I want to talk about the effect of the Bill as it stands on the staff of the present Marine and Fisheries Agency. They are civil servants and under the Bill will move to the new Marine Management Organisation. As I understand it, they will not retain their status as civil servants because the MMO will be a non-departmental public body. I know of no overriding reason why the staff concerned, some 200 to 250 of them, cannot continue to be civil servants, retaining the same rights, responsibilities and conditions of service as they have now. I do not know whether the Minister will be surprised to hear me say this, but the staff concerned are proud to be civil servants. They have chosen careers in public service and neither welcome nor want the loss of Civil Service status and conditions and the ability to continue to access Civil Service jobs.
If my understanding of the Bill is right, it is unfortunate when Governments, in order to achieve their policy objectives, find it necessary to adversely affect the position of the staff most directly affected. Why does that have to be done? Are we really being told that the policy objectives could not otherwise be achieved? As I understand it, there are no plans to remove Civil Service status from staff in Wales, Scotland or Northern Ireland, where similar functions to those in England are carried out.
There is also an issue that is addressed in another amendment: if the creation of the MMO results in the removal of Crown immunity, staff may become personally liable for actions taken in the course of their duties—for example, changes in fishing quotas to conserve stocks, or the opening and closing of areas for fishing for the same reason. If the Government are still determined to set up the MMO as a non-departmental public body, I point out that other NDPBs such as ACAS, the Health and Safety Executive and the new Child Maintenance Enforcement Commission have all retained Civil Service status for staff. I believe that the Government’s original intention was to establish CMEC as an NDPB with no civil servants, but subsequently they stated that it was to be given Crown status and that its staff would retain Civil Service status for at least three years.
On top of the change of status of the staff and the implications of that for the future regarding terms and conditions, there is the prospect of at least some staff finding that the post they hold now has been transferred if the headquarters of the MMO is outside London. What is the position on that? If the headquarters is moved outside London it is likely that a majority of staff will not be prepared to relocate, and expertise and experience will be lost. I have been told that staff were given to understand that they would be advised of the intentions regarding the future location or locations just before Christmas, but nothing was said. I am also advised that an announcement on MFA relocation was expected on 22 January, but that again the staff were informed that the decision had been delayed. On 23 January the Plymouth-based Western Morning News announced that the headquarters would be in Newcastle. Do the Government think that the issue of relocation is being well handled? What is the present position?
The best way of dealing with the unwanted change in status of the staff would be for the Government to say that the MMO would be an executive agency, an agent of the Crown, and that its staff would be regarded as servants or agents of the Crown and enjoy the status, immunity and privilege of the Crown. I hope my noble friend will agree to give consideration to this point, which would make my amendment unnecessary, with a view to his bringing back amendments to the Bill at a later stage to achieve that objective.
The MFA was set up in October 2005 and has proved successful. It would be entirely capable, with or without a change of name, of carrying out the new functions and remit outlined in the Bill. The main significant difference between the current MFA and the proposed MMO appears to be marine planning responsibilities, on which I am told less than 10 per cent of the staff will be engaged.
My amendment to Schedule 3 would address the situation in the Bill. The schedule provides that if an employee at the Marine and Fisheries Agency objects to being transferred to the new organisation, the employee’s contract of employment is terminated immediately before the transfer date. Presumably, the employee is then faced with the threat of being classified as having resigned voluntarily on refusal to accept change of status. At a time when departments are under instructions to reduce head counts, that threat could become a reality in some instances where an individual has no wish to accept redundancy. There has been no commitment from Defra that staff who do not want to lose their Civil Service status will be found another Civil Service post within the department. There are also a small number of MFA staff based in each of a number of different coastal offices. What will happen to them if they do not wish to accept the change in status? Will they be offered another Civil Service post and, if so, where?
Many of the MFA are specialist staff. This proposed change in status and possibly location risks the loss of specialist skills and expertise. Even those who remain may well find themselves in a post that is of little interest to them and which does not use their skills to maximum advantage. Is this really the Government’s intention? Is it the way to treat staff?
My amendment’s purpose is to at least ensure that an employee working at the Marine and Fisheries Agency who expresses objection to the transfer of the contract of employment, on the grounds of losing the status of Crown servant, continues to have that contract of employment after the transfer date and is to be regarded as an employee of the Department for Environment, Food and Rural Affairs, with the status of Crown servant. I hope that my noble friend’s reply will show that the Government share my view that there is no reason why the staff affected by the policy changes in the Bill will suffer adverse consequences to the extent that would occur under the Bill.
I am interested in the amendments to which the noble Lord, Lord Rosser, has so ably spoken. I look forward to the Minister’s reply with interest. It would be well if the Committee were informed of the details of what is anticipated in staffing the MMO. It would be useful to know, for example, the estimates of the number of Crown servants who are being brought in from various departments and government agencies to staff up the MMO. I well understand the Government’s concern about having two classes of employees within a single body; that could create enormous difficulties. However, it would be useful to understand the Government’s reasoning on the core of the matter.
As for the location being suggested to be Newcastle, the footballers of Grimsby are known as “the Mariners”. Without doubt, as Grimsby has the distinctions of being not only in Lincolnshire but also the pre-eminent fishing port of the United Kingdom, it would make an ideal location for the MMO.
We on these Benches also look forward with interest to clarification from the Minister. On the issue of staffing generally, I hope that the Minister will agree that anything that causes unnecessary disruption, with the effect of reducing the expertise and commitment of existing staff, is to be avoided if it possibly can be. The noble Lord, Lord Rosser, is therefore making a serious point about the body of information and skill in the existing institutions and the need to avoid any unnecessary disruption.
There are two issues with location. We are obviously looking forward to hearing whether the Minister can confirm the rumour—or was it a leak?—that Newcastle has been chosen. That shows a disrespect for the skills and experience of the existing staff, who may find this a disturbing and unsettling period. If the announcement that appeared in my regional paper, the Western Morning News, was in any way authenticated, that is to be deprecated.
However, I cannot agree with what the noble Lord, Lord Taylor, said about Lincolnshire for obvious reasons. The availability of these skills in the south-west, where expert information is available in a number of institutions and given its proximity not just to the Western Approaches but to the Irish Sea, makes it a far more appropriate location than the far north-east. I am sorry that the noble Lord, Lord Kingsland, is no longer present, as I think he would argue the case for Plymouth as against the location proposed by other Members of the Conservative Front Bench. The problem with the far north-east is that it is almost in Scotland, for goodness’ sake, where, as my noble friend Lord Wallace of Tankerness would agree, a quite different regime applies. Having the MMO on its doorstep is obviously much less advantageous than locating it in the south-west.
I hope that the Minister will be able to give us a specific double assurance that, first and foremost, that decision has not been leaked and, secondly, that discussions are still taking place to find a more appropriate location than Newcastle.
I may be wrong but I do not think that the noble Lord, Lord Rosser, mentioned what would happen to the pensions of civil servants who are transferred to the MMO. Will the Minister include that in his reply?
I am grateful to noble Lords for their contributions to the debate. I was delighted to hear my noble friend say that the current staff are proud to be civil servants. When one hears rather ridiculous remarks about civil servants being made by people who should know better, I am glad to stand here and say how much I have enjoyed working with civil servants over the years and what a huge contribution they make.
The designation of the Marine Management Organisation as a non-departmental public body is a visible sign of the status of that organisation. I respect the decision of the Welsh Assembly Government to carry out directly the functions that are akin to those of the MMO. However, in the English context, to retain the MMO functions in my department, or to place them with an executive agency, would not accord the right status to this important body. I return to the discussion we had during the first two Committee days when emphasis was laid time and again on the critical importance of the MMO and the importance of it being able to make its own decisions within the guidance and general objectives that have been laid down. I think that non-departmental body status is the right status for the organisation.
I say to my noble friend that, as a non-departmental public body, its staff will be public servants, not Crown servants, which is very much the usual position. He referred to a number of organisations staffed by Crown servants. However, my understanding is that of the 1,000 or so non-departmental public bodies, only three are staffed by Crown servants on a permanent basis. Their designation as public servants rather than Crown servants reflects the independent nature of non-departmental public bodies. It allows those staff a measure of independence and gives them the ability to speak more freely than would otherwise be the case. It also gives them the flexibility that noble Lords have required of the MMO in our previous debates. As public servants, MMO staff will in practice be treated very much the same as existing MFA staff. They will be transferred to the MMO on the same contractual terms and conditions of employment and any subsequent changes to their terms and conditions will require the approval of the Secretary of State. They will be entitled to trade union membership. I am glad to report to the noble Baroness that their pensions will be retained in the Civil Service pension scheme. They will be able to apply for Civil Service vacancies in the same way as other civil servants. In short, there is no reason for MMO staff to feel disadvantaged by virtue of becoming public servants.
My noble friend, fairly, asked a number of questions. He asked what would happen to MFA staff who simply did not wish to transfer to the Marine Management Organisation. As staff will transfer to the MMO with their contractual terms and conditions of employment preserved, there should be no reason to object to the transfer, and it is expected that all staff will transfer. Should any member of staff choose not to do so, their contract of employment with the MFA will be terminated. They would have been deemed to have resigned their post. I understand that this is the usual form in which transfers to NDPBs are effected.
I very much understand the question of relocation. I always regret leaks, and I can well understand the concern of staff when they read stories in a local newspaper about the location. I am not in a position to give any more information at this stage. I have checked, and the answer is that we will announce this when all the information and evidence have been carefully considered. It will be announced in Parliament in due course. Frankly, the shortlisted locations all would have made a very good home for the MMO, and this has been a very difficult decision. I understand that this is a very important decision for the staff involved, and I can only regret that some kind of allegation has appeared in a local newspaper. I understand people’s concern on this.
Those staff who are unable or unwilling to relocate raise a different issue from the first point asked by my noble friend about staff who object to transferring to the MMO. Relocation is a separate issue. Those staff who are unable or unwilling to relocate will be placed on my department’s redeployment register. This will give those staff first refusal on any vacancies in the Defra network. In addition, those staff will have preferential access to other jobs across Whitehall. The MFA has appointed a resettlement officer, who will help staff to prepare for redeployment. Staff will receive training and help with CV writing, for example. After a period of six months, any staff who have not found an alternative job will be reassigned to Defra. There is no question of compulsory redundancies as a direct result of the relocation.
My noble friend asked about staff losing immunity on becoming staff of the MMO. My understanding is that, as a general principle, civil servants enjoy immunity only under a specific circumstance for which Crown immunity applies. There is no general immunity for civil servants, so we do not think that there is a need to provide protection for individual employees working for the MMO generally. Such decisions would be taken on behalf of the MMO, so any potential claim would lie against the MMO and not an individual officer. Specific immunity is given in the Bill to marine enforcement officers and other enforcement officers, who need to be protected when they carry out inspections and investigations at sea and on land, so long as they are acting lawfully within their powers. Otherwise, their freedom to perform their duties would be hampered by fear of legal action being taken against them. Even if sued, if MMO employees are acting in the course of their duties, the MMO would be vicariously liable for their actions.
I hope that I have answered the questions—
I asked for some numbers. Can the noble Lord give an approximate idea of the number of Crown servants who will be transferred from departments and other agencies?
The main purpose of setting up the MMO is not to rationalise staff numbers. I accept the point that he made earlier about efficiencies. It will take on additional senior management and corporate centre staff. If additional functions are moved to the MMO, over time that may lead to an increase in staff numbers. My understanding is that, in total, the MMO will have about 240 posts set up, but the exact number of staff transferring from other departments has not been resolved because functions will go from the same teams in the Department for Transport and the Department of Energy and Climate Change to the IPC, with some relevant policy roles being retained within those departments. Some matters still have to be resolved. That is as much information as I can give.
Has the Minister counted staffing of the MFA, if the MFA is being transferred and incorporated? It would be helpful to know.
I do not think I have. I shall certainly find out and let the noble Lord know. Work is still being undertaken because of the various transfers that have to take place and some new responsibilities which are being added. Much of that work is ongoing, but I shall certainly find out that information and let the noble Lord know as soon as possible. The information that I do have is that we think that up to 200 MFA staff will be transferring. I will get back to him on that.
I thank my noble friend for that reply. As his final answer indicated, the great bulk of the staff in the new organisation will be existing civil servants, which, once again, begs the question why this change in status is considered to be so crucial. My noble friend referred to significant numbers of NDPBs where the staff were not civil servants and he said that that enhanced their independent status. Does that mean that he is on record as saying that he does not think ACAS is independent; does that mean he is on record as saying that he does not think the Health and Safety Executive is independent; does that mean he is on record as saying that the Child Maintenance and Enforcement Commission is not independent?
Of course not. I had responsibility for the Child Support Agency and the work that led to the setting up of the Child Maintenance and Enforcement Commission. However, nothing I say detracts from the work of those organisations. Noble Lords and the Joint Committee have intimated that they wish this organisation to be seen to be independent within the general constraints laid down in the Bill. In establishing such organisations, it is well known that NDPB status is the appropriate status.
The only comment I would make back to my noble friend—I shall not pursue it further—is that, in effect, he is saying that the three organisations to which I have referred are presumably not as independent as they would be if their staff had not retained Civil Service status. That is the only inference one can draw from his comment. No doubt that point will be pursued.
On the issue of Civil Service conditions, I shall read Hansard with interest because I thought my noble friend said that, if there was a change of status, the staff of the MMO would still have exactly the same rights as they have at the moment if applying for Civil Service jobs; for example, they could apply for the same range of jobs as they can at present. I am not entirely sure that is the case, but I shall need to check that.
I want to make the position clear. I was referring to relocation and to staff who are not able to relocate: they would remain on the books of my department.
Would my noble friend accept that, if the status of the staff transferring to the MMO is to be changed, they will not be able to apply for the same range of Civil Service jobs as they can at present, and that that is, perhaps, an adverse impact on their future careers? On the conditions of employment, the Minister is right to say that on day one they maintain their existing conditions, but they will not then follow Civil Service conditions in the future, in the light of subsequent negotiations affecting those conditions. I want to reflect on what my noble friend has said. I am obviously disappointed that he did not feel able even to say that he will reconsider the position, but I will reflect on what he has said and, in the mean time, I beg leave to withdraw my amendment.
Amendment 77A withdrawn.
Amendments 77B to 77D not moved.
Schedule 3 agreed.
Clause 38: Interim arrangements
Amendments 78 and 79 not moved.
Clause 38 agreed.
Clause 39: Exclusive economic zone
Amendment 80 had been withdrawn from the Marshalled List.
81: Clause 39, page 19, line 39, leave out subsection (2)
I move Amendment 81 on behalf of my noble friend Lord Taylor. This is a probing amendment to clarify exactly what the Government achieve with the establishment of the exclusive economic zone. Can the Minister first reassure the House that we have received Her Majesty’s full permission to allocate her rights, as envisaged under this clause? As I understand it, and I hope the Minister will correct me if I am wrong, our rights under this zone are identical to those that the UK was able to exercise under the existing renewable energy zone and, even more, under the 200-mile fishery limit. If this is the case, many of the provisions that we will come to later need to be viewed through the very dark glass of European legislation. I hope that this debate might clear some of the darkness and allow us to assess more realistically just what we can and cannot expect of the organisations that we are empowering in this Bill.
As allowed under the current EU arrangements, and as my noble friend Lord Cathcart began to point out, these arrangements fall and are due to be renewed in 2012. The UK has complete control over its fishing waters only up to the six-nautical-mile limit. These arrangements have already caused much delay and obstruction to the effective conservation of our fish stocks and other species. For example, an attempt to ban pair trawling for bass in 2004 has had an extremely limited effect, as it was not supported by the EU Commission, and so cannot apply to non-UK ships beyond six nautical miles. For a conservation zone beyond the six-nautical-mile limit to be applied to all EU fishing boats, and so have a chance of achieving its objectives, it is clear that it must not only be approved by the EU Commission but avoid being overturned by the European Council. The difficulty of pushing a meaningful network of conservation zones through this bureaucracy is presumably one of the reasons why the Government have decided to take upon themselves the unilateral powers described in Part 5.
Do the Government have any reason for believing that marine conservation zones imposed within the exclusive economic zone, but beyond the six-nautical-mile limit, will be any more successful than their attempt in 2004 to stop pair trawling? Or do they intend conservation zones to be established within the six-mile limit, making the new economic zone relevant only to planning, energy installations and licensed dredging? What is worse, the current situation—far from perfect—will quite possibly get much worse in a few years. As I mentioned earlier, in 2012 the derogation limit of fishing within 12 nautical miles to historical rights will come to an end, and our unilateral ability to protect the marine environment will be further reduced. However, the Government appear to be doing nothing to protect what limited rights we still have, let alone seeking to extend our powers in this area. Can the Minister give the House any reassurance that they are seeking to protect the existing restrictions within the 12-mile boundary? Even better, have they made any progress in establishing how they feel about common fisheries policy reform?
The EU promises to bring forward a package of marine protection proposals, which might go some way to improving the current arrangements for fish conservation in our waters. However, if we are to rely on the EU to do all the work in this area for us, there is little purpose in discussing what we want to achieve with this Bill. The Government must either take steps to ensure that the appropriate authorities have the power to impose and enforce effective protections, or admit that much of the Bill will be ineffective unless the EU takes the necessary steps to do it for us. I beg to move.
My note indicates that I should express gratitude to the noble Duke, the Duke of Montrose, for moving this amendment. I am not sure that I can express that with quite my normal enthusiasm. The reason is that the noble Duke has hung a significant discussion about the common fisheries policy on this amendment. I do not doubt for a moment that we will discuss the common fisheries policy in the context of this part of the Bill and, indeed, this clause, but I had not anticipated that it would occur on this particular amendment. I am therefore grateful that he preceded his remarks by saying that this was a probing amendment. I can indicate that he will probe quite successfully over a narrow area, but I rather hope that the debate on the common fisheries policy might be raised more appropriately a little later. If he does not accept that position, I will be more extensive on the common fisheries policy, but this amendment does not really have much to do with the common fisheries policy because we are not changing boundaries as far as it is concerned.
Clauses 39, 40 and 41 establish an exclusive economic zone, define the UK marine area and allow for the establishment of the Welsh zone. They are the base on which the remainder of the Bill rests. On this base is the whole concept of what we are discussing in planning for the future. The establishment of an unambiguous, clearly defined set of boundaries provides a clear basis for various maritime activities. I do not for one moment deny the significance of fishing, but the noble Duke, the Duke of Montrose, will be well aware that a range of maritime activities concern us in this Bill and are conducted around the coast of the United Kingdom.
We are explicitly setting out the seaward and landward limits of the UK marine area and establishing an exclusive economic zone which will ensure conformity with international best practice on law-of-the-sea matters. If, as the amendment indicates, subsection (2) is left out of Clause 39, the clause’s position would be, effectively, destroyed. Subsections (1) and (3) make no sense at all without subsection (2), which defines the rights to which the other two subsections apply. The definition in subsection (2) refers back to the United Nations Convention on the Law of the Sea and makes clear that the rights which the UK is claiming are only those for which Part 5 of the convention provides. The clause is needed to enable the UK to declare an exclusive economic zone, which is at the very heart of the Bill, in accordance with the UK’s obligations under these provisions, and the reference is therefore absolutely essential.
I could follow the noble Duke down the issue of one of the particular economic activities and discuss fisheries policy; I recognise that that debate is important and I shall not shy away from it. However, in terms of clarity I seek to establish that I cannot accept, nor should the House accept, the proposal in the amendment, because that would render absolutely nugatory the fundamental concept of the Bill. I hope, therefore, that the noble Duke, the Duke of Montrose, will accept that the common fisheries policy will be fruitfully discussed within the framework of these clauses—there is no way in which it would not. I hope that he will understand that if I engage in that specific debate about an exceedingly important economic activity within the zone, I would be detracting from concentrating on his amendment and the need for me to persuade him to withdraw it.
I thank the Minister for coming back on these points. The main thing that I was focusing on, although I did raise the problems of the common fisheries policy, was the question of the authority that we expect to have on the establishment of marine conservation zones. No doubt we will have a debate on that issue in due course. I have heard in the past few months, although I cannot remember which piece of legislation it related to, that Her Majesty was waiving her rights. I wanted to confirm that that was not attached to this legislation.
That is an entirely fair point and I apologise for not commenting on that. I am assured that everything is in order in that respect.
Perhaps I may help the noble Duke with regard to the fisheries policy. We are not changing the concept of the territorial sea and the 12-nautical-mile limit. On these changes, we are concerned with the issues 200 miles out. The law of the sea defines our position with regard to our waters 200 miles from our coast. Of course, it is not possible to go 200 miles in some directions, due to the limits of the ocean, but in certain directions it is possible. That 200-mile limit is not entirely adequate for us, because we seek to extend the UK’s rights in relation to the continental shelf. Geology does not follow the 200-mile boundary with quite the exactitude we would like. In the Bill, we are seeking, therefore, to extend our position in relation to the continental shelf, but to do that we need to be able to negotiate the issues under the United Nations Convention on the Law of the Sea. That is why we have to have this clause in the form in which it appears, and in a form which defends it against the noble Duke’s amendment.
I thank the Minister for that further clarification. It is rather useful to know how the clause will be applied. We are still worried that we do not have the powers that we need out to 200 miles, but perhaps we can look at that again. I beg leave to withdraw the amendment.
Amendment 81 withdrawn.
Clause 39 agreed.
Clause 40 : UK marine area
81A: Clause 40, page 20, line 33, leave out “high water spring” and insert “low”
With this amendment and Amendment 81B, we move to a discussion of what should constitute the marine area between low water and the MMO’s influence all the way up rivers as far as the high tide reaches. There is quite a discrepancy between what is in the Bill and what is in A Strategy for Promoting an Integrated Approach to the Management of Coastal Areas in England, in which the Government state that,
“marine plan authorities must have regard to other plans prepared by a public or local authority in that marine plan area. This will facilitate integration and include Local Development Plans within the Local Development Framework; Shoreline Management Plans; and River Basin Management Plans. The marine plan authority will be required to ensure, as far as reasonably possible, compatibility with adjacent terrestrial plans”.
That is what my amendments go to the heart of. I am very concerned that there is no real mechanism in the Bill for ensuring compatibility.
Perhaps noble Lords should think for a moment about the area between high and low water and all the activities that take place there. Those include lifeguarding; games on the beach such as volleyball, which may form part of a local authority’s leisure plans; boating, canoeing and that sort of activity; and perhaps flood defences, in which the Environment Agency and the local authority are very much involved. The area between high and low water is extremely biodiverse; it is where one finds a lot of birds, shellfish and rock pools full of prawns, sea anemones, mussels, seaweeds, and so on. An awful lot goes on between high and low water.
My concern is about making this area simply one for which the Marine Management Organisation’s plan is responsible, given that local authorities are not part of the list of eligible bodies that we discussed in relation to Clause 16. I could have chosen to address this issue by including them in that list. However, I thought about all the activities that take place between high and low water and all the activities that local authorities are primarily responsible for in that area, including one that was very recently given to them by the Government—cleaning the beaches—as well as access to beaches, car parking and highway issues on access roads to the beach, some of which are covered by high water. All of these matters have not been adequately thought about, given the way in which the Bill is phrased.
The Joint Committee was similarly concerned that there was no mention of integrated coastal management in the Bill. The committee’s report states in paragraph 105:
“The planning and decision-making process at the land/sea interface is particularly important for certain industries, such as ports and offshore developments”.
Again, the planning authorities need to think about that. These things all come down to local authorities.
Primarily, I am talking not about development control but about the planning in its widest sense that local authorities undertake. That is why I have tabled the first of these amendments. The Marine Management Organisation is concerned with everything that happens at sea, which is not the area between high and low water where a lot of human activity takes place. That should be the rightful domain of the coastal authorities, which have to plan for social and economic issues. Of course environmental issues are already covered by the designations where appropriate by Natural England. If the marine conservation zones happen to fall within that area, as some will, that will be taken into account, but primarily they are areas where a lot of other things happen.
The Bill also does not take account of all the issues that I address in my second amendment, as it gives the MMO power up to high water all the way up the rivers. In some cases that is miles inland. I cannot see the reason for that. We know, because the Minister told us on our previous Committee day, that the EA will stay as the competent authority for the water framework directive. I believe that the practical way of deciding where the MMO’s responsibility should stop is,
“the first non-navigable land crossing”.
That could be argued in all sorts of ways. However, in the rivers that I know, there are usually, where the estuaries are still wide and there is still a big tidal effect, navigable bridges and crossings, and it is arguable that the MMO should continue its responsibility underneath those and that its responsibility should end on the non-navigable bridges. As the Minister has pointed out in previous discussions, the MMO will have agreements with other bodies and will be able to delegate functions for those upstream parts of rivers beyond those bridges. That would be the appropriate thing to do, as most of the functions on and around those rivers will have nothing to do with the MMO. It has the junior part to play in those upstream rivers. As we go 10, 15 or 20 miles inland, people would find it extraordinary that the MMO had any part to play.
The other well expressed Defra strategy on the management of coastal areas is the participatory planning approach from an early stage, as laid down in the statement of public participation. We are talking about marine areas; as we move on to marine plans, I am sure that we will come back to this point, but I should like the Bill to recognise that public participation is very important. I mention that at this stage because planning issues in the area between high and low water will need the greatest public participation. That is the area that the public use and enjoy and the one over which they have an absolute right through their democratic bodies to have a say. I beg to move.
I am grateful to the noble Baroness, Lady Miller of Chilthorne Domer, for giving us an opportunity to debate this important matter. When I first read the Bill, I put great big lines down against this clause as I thought that we could argue about it all night. I am not proposing to do that, as I am sure that the Committee would not welcome it, but this is a very important area.
I disagree with some of what the noble Baroness is suggesting, as she wants to restrict the extent of the area defined as the UK marine area to low water, thereby restricting not only the remit of the MMO but the area in which consideration should be paid to the marine environment specifically under this legislation. I would have had more sympathy for an amendment that extended rather than restricted the remit.
In the previous debate, the Minister said how important it was to have clearly defined physical boundaries, but there needs to be a clear definition of where one organisation’s remit starts and another’s ends. As these debates are showing, this is—even if we debated it all night—an extraordinarily complicated issue. Influences on the marine environment do not end neatly at one point on the map. Indeed, events just above the high tide mark impact much more on the marine environment than vice versa. Rivers flow into the sea and, although fish indeed swim up rivers, provision has already been made for the Environment Agency to retain control of the licensing of freshwater fish. I would much prefer to leave this part of the Bill as it is with the MMO dealing with marine issues and involving itself in areas that might not always be covered in salt water but which common sense would identify as being part of the marine area and which certainly impact on the wider marine environment.
My amendment in this group is a simple, probing one to clarify subsection (4)(a), which, with its accompanying Explanatory Notes, suggests that the UK marine area incorporates areas that would be under the sea were it not for the tide being deliberately kept out of that area. That would seem to include many areas where no precise delineation is possible. More important—I speak from a purely selfish interest—large tracts of reclaimed land are arguably not under the sea because of a great deal of drainage work and so on.
Many noble Lords will know of my farming interests. My farm and my home—indeed, all the Fenland region—would be described as being marine under this provision. Sluices, dykes, seabanks, riverbanks and the artificial exclusion of the tide are the only ways in which the area can be kept dry. I hope that the Minister will accept that that definition needs a bit of fine-tuning if it is not to extend the marine area to those parts of the country that, although they may have the word “beach” in their name, are not particularly adjacent to the sea now.
Presumably it is not the intention to reclassify land as marine that has been reclaimed from the sea for many years—centuries in some cases. Paragraphs (b) and (c) of subsection (4) also appear to extend the UK marine area limit a little further than subsection (3) would suggest. The mean high water spring tide is not the highest mark that spring tides get to, but these paragraphs imply that we should be talking about the furthest that seawater gets to “from time to time”—or does the wording imply, as in paragraph (a), that it is only where the seawater is allowed to get to? It would benefit the Bill if we could define some of these things more accurately. I return to the point that I made in the beginning, which is that the marine area should include the land and the sea between the low and high water marks.
I speak with some trepidation, not having spoken about this Bill before. However, I was for 10 years chairman of, first, the South Downs Conservation Board and then of the committee that also embraced east Hampshire. One of our real beauties is the iconic coastal land and seascape of the Seven Sisters and Beachy Head. Those of us living close by and those now on the South Downs joint committee have been considerably worried by there being no allowance in the Bill for seascapes, which is where beautiful land—in our case, it is probably about to become a national park—also embraces a fantastic view of the sea. That may be a serious omission.
We discussed this beforehand with the inspector, who wanted views on it. He expressed a view that consideration should be given to statutory provisions that would allow marine areas beyond the mean low water mark to be part of a national park. That is a big question. However, if I read the Bill right, there is at present no thought given to what will happen to seascapes, particularly where a national park, of special conservation, looks down from right above the sea. We feel that the two could be embraced together, with law and planning to combine both. This would be a strong step forward, which I hope can be considered in the context of this Bill.
We have moved toward inshore waters, yet I am still in deep water regarding these amendments and the difficulties of definition. Noble Lords have some real concerns and arguments, and I appreciate their significance while wrestling, at this stage, with the issue of definition.
Let me add that if I was in any way discourteous to the noble Duke, the Duke of Montrose, I did not intend it. On the next amendment to be moved—Amendment 83, in the name of the noble Lord, Lord Taylor—we will be discussing the economic zone as it applies to Wales. That has a great deal to do with common fisheries policy, and it seemed to me that it fitted more into that economic debate. I did not want to be discourteous to the noble Duke who, no doubt, is absolutely right to take the first opportunity that he can. However, I am reeling with quite difficult problems of definition, and taking on the common fisheries policy at that stage was probably rather more than I could accomplish.
Regarding what I said on that first definition, I want to make one point absolutely clear, as I may not have expressed myself as clearly as I ought to the Committee. The economic zone will only stretch to 200 miles; the law of the sea defines that for us. Yet, as I indicated, we have interests in the continental shelf beyond that, because of particular geological features. We seek to exploit them under the Continental Shelf Act 1964, and that is included in Clause 40(1)(c) of the Bill. As I indicated in responding to the first amendment, all three clauses are part of the definition issue; we are talking about the heart of the Bill, as it concerns marine development and planning. I seek to make that point as clearly as I can, and confess to any inadequacy in my earlier remarks.
I am now in difficulty, not least because the noble Baroness, Lady Miller, entices me with the roles that local authorities can play within planning development and concerns in areas immediately by the coast—and not only that, for salt water can go a little further inland, as she indicated. Meanwhile, the noble Lord, Lord Taylor, has upbraided me lest I stray too far along that line and include most of Lincolnshire within the framework of the Bill, which I certainly do not want. The Committee will recognise, then, that I seek to tread a rather difficult line between the two positions with some care.
In the Bill, the UK marine area is used as the basis for defining that part of the sea that will be subject to marine planning and licensing. For these purposes, we believe it important for the UK marine area to include all places containing seawater that is exchanged with the open sea. This enables us to regulate effectively all activities—and I accept the representations from the noble Baroness, Lady Miller, on how extensive activities can be in coastal areas—that may significantly impact the marine area.
The licensing of these activities is currently regulated under Part II of the Food and Environment Protection Act 1985, which applies from mean high water spring tide outwards. Since the licensing provisions in that Act are to be replaced by this Bill, any change to the definition of the UK marine area, as the noble Baroness was so persuasively suggesting, would mean changing a well established and understood definition that we have applied without difficulty for the past 20 years. Therefore, rather than having clear difficulty in defining boundaries, where we have strong arguments about where boundaries should be and one perspective clashes with another, the noble Baroness will appreciate why we seek—if I may mix my metaphors—to build on reasonably secure foundations. That is because of how the Food and Environment Protection Act licensing system has operated over the past 20 years.
A large number of developments taking place landward of mean low tide can have significant detrimental effects on the marine environment. It would be anomalous for these activities to fall outside the very regime that has been designed in the Bill specifically to help protect the marine environment. For this reason, it is also important that we are able to create marine plans for the full extent of the area within which licences are required. That will ensure that all licensing decisions are taken within the planning framework; to look at it another way, decisions on issuing licences will be one of the key means by which the policies set out in plans would give effect in the real world.
I am conscious that by using,
“mean high water spring tide”,
as the Bill defines it, an overlap arises between the marine regimes that we are discussing and existing terrestrial planning and development consent regimes, which extend down to the low water mark. The noble Baroness, Lady Miller, gave a clear articulation of those interests. Yet we are not involved in a mistake here; a deliberate and conscious act of policy underpins the Bill.
We believe that an overlap between the planning regimes will help to encourage and support integration between the two systems. We have made specific provision in Schedule 6 to require marine planning authorities to notify terrestrial ones when they begin a marine plan, and to require the marine plan authority to have regard to the provisions of any related terrestrial plan. The overlap between the two systems will help here by providing an added incentive to create a seamless join between them.
I know that that does not go as far as the noble Baroness wants in her definition of where the boundary should be, but I hope that she will appreciate that the Government are not being arbitrary here—although we must take a decision on where the boundary should be—and are conscious of her point about the necessity of co-operation when authorities, marine and terrestrial, both have an interest in crucial activities. The overlap is also important when it comes to development consents and licences. Coastal activities by their nature have both marine and terrestrial elements. The noble Lord, Lord Renton, in a different context, pointed that out. I will come to his point when I can think of a satisfactory answer in due course. He spoke about the concept of a national park, which raises real difficulties about the boundary. I am not sure that I will be totally adequate in my response to him, but I will do my best.
It is important that all the impacts of coastal development are considered by the appropriate land and marine expertise. The overlap allows us to do that. We are conscious that the limits we have chosen will vary over time and are not regulated by lines on the map. That is a conscious choice. The noble Lord, Lord Taylor, is as aware as anyone else in the House that tides are a natural phenomenon. They do not necessarily recognise our human attempts to define and contain them. Consequently, boundaries change, not through the will of man but through the force of nature.
Our choice of mean high water springs and the tidal limit in estuaries will ensure that we can plan for and regulate activities in the areas that regularly interact with and can have a substantial impact on the sea and the marine environment more generally. Defining the marine area by reference to directly human considerations, such as landing, crossing and navigation—the point raised by the noble Baroness when she moved her amendment—would not be appropriate when designing a regime to manage and protect what is in fact a dynamic natural environment. That is why we have drawn the boundary where we have. I appeal to her to recognise that that has been done with care, but that under the Bill the marine authority will have to have the closest relationship to terrestrial authorities—she mentioned local authorities—where issues concern them both.
I am grateful to the noble Lord, Lord Taylor, because he identified why he could not agree with the noble Baroness's amendment. I hope that I can be helpful on the concerns that he voiced. The scope of the licensing and planning regimes in areas such as harbour bases and sea locks that contain seawater exchanged with the open sea is an issue. Having heard a series of constituency points two amendments ago about the location, I for a brief moment recollected days in the other place when any proposal for the location of government offices led to a free-for-all from Members rightly advocating why their town or city should be the place where they should be located. I noticed the echoes here today of that position.
I am going to choose the example of Bristol, largely because I cannot see anyone who will attack me in detail on Bristol in the Chamber at present. Bristol fits all the categories: it is a very significant port and a seaport with a big estuary.
I fear that the noble Lord’s namesake, the noble Lord, Lord Davies of Coity, might have considerable reservations, believing that there may be some conspiracy for a barrage.
Fortunately, my noble friend is not in his place at present. For that, I thank small mercies on this occasion.
We want to ensure that licensable activities taking place inside areas such as the Port of Bristol do not adversely affect the wider sea, which our regime is designed to protect. Subsection (3) on its own will not in some cases include such places, because lock gates prevent the tide flowing in and out of them. Subsection (4) is therefore intended to capture those places where locks affect the flows of water.
If we did not include harbour basins and the like, we could not regulate effectively all the activities that may have a significant impact on the marine area. Moreover, we would be faced with having those harbours without lock gates and open to the tide within the scope of the marine planning system, and others—those with lock gates to control the flow of water—beyond its scope. We seek consistency in the Bill, as our stakeholders have repeatedly requested. Subsection (4) is intended to bring that consistency.
I am grateful to the Minister for giving way. This is an important area, because a lock is for one purpose; to allow water to be retained. However, sluices are very similar structures and the water contained within them would never be considered sea, but it would include all the drainage of the fenland basin. I understand exactly what the Minister means; he knows that, generally speaking, I agree with the Government's definition of where the sea, or the marine area, starts; but I am concerned by the wording of Clause 4. It needs to be quite clear that sea banks, sluices and areas protected from the sea by artificial means are not included within the meaning of the Bill.
I am grateful to the noble Lord for saying that he broadly supports the Government’s approach on that. I chose Bristol with care because it is a fairly clear case. He is right to say that sluices are not the same as locks, and they raise interesting issues. If he will allow me, I will reflect on that and give him an answer in due course. I am not equipped to debate the issue of sluices with him now—it may well be not at any stage, but certainly not now.
Concerns were raised in an earlier debate in Committee about the different extents of the Bill. The noble Baroness was prominent at our last meeting in what she said in that respect. I assure the Committee that each extent has been carefully chosen to best reflect the activity in question. For the reasons I have just outlined, licensing and planning, for example, are very important issues. Clause 10 restricts the MMO's functions to seaward of low water mark clearly to delineate functions between the MMO and Natural England. Licensing and planning overlaps with terrestrial regimes are beneficial. They will ensure that we have the necessity for co-operation in which the boundary, if it were just set for one authority, would be excessively arbitrary. For licences, under the Wildlife and Countryside Act, they are not. Natural England, as a nature conservation body, is the appropriate authority to manage wildlife on land, whether or not it is sometimes covered by the sea. Only once its jurisdiction ends should the MMO take over and that is at the low water mark. We have already had that debate, and, no doubt, we will return to it on Report.
I recognise that we have the problem of different delineations with different authorities. These issues are not easily resolvable. However what I am seeking to maintain in response to the amendments—and I know they have been put forward constructively—is that one size does not fit all functions equally. The Bill has to dovetail with a myriad other legislation and the boundaries set in each and every case are designed to do this to the best effect. I hope that noble Lords will feel that I have helped to clarify some of the issues sufficiently to withdraw their amendments and I ask the noble Baroness to do so.
I thank the Minister for his response and, in particular, for his comments on my amendments. This is a complicated area which needs good thought. I know marshland environments very well. They are quite difficult to describe because much of the marsh area is dry above a mean, high water spring tide. Only occasionally are much of the green areas of the marsh actually under the water. Yet, within the Minister’s definition, we would obviously consider them to be a marine area. So, the wording used needs careful thought because we do not want delineation disputes at a later stage. I hope the Minister will commit himself to having a good look at that before we come back on Report.
I do not want to prolong this matter, but it seems that we are delineating marine areas within which, for example, the Scots Parliament will be working on devolved matters. I am picturing the Montrose basin, near where I live, which is tidal and where there is a great deal of natural activity. I am sure that will be included in the Scots marine Bill. There is a bridge that is so low that no boat can come in, but it is tidal. Presumably, everything is all right for the Montrose basin. However, we have to think all the time of the whole of the United Kingdom when thinking of the marine area. If there are going to be disputes, they may well be between the devolved Administrations and Westminster, so it is important that we get this right.
I did not think that we would get very far with this part of the Bill without the issue of the devolved parts of the United Kingdom becoming prominent. The noble Baroness has raised it in this context. We will have a number of other opportunities where these issues will need to be explored.
The noble Lord, Lord Renton of Mount Harry, has done a tremendous amount, in his part of the world with his AONB, and in this House, introducing the original concept of AONBs having the statutory powers they do now. He did really groundbreaking work, laying the way open for the Government to adopt that in the subsequent Act that gave AONBs much better status. The noble Lord will be comforted to know that we will be dealing with the issues that he raised more fully under Amendment 106CA, so I will not address those now.
It does not surprise me that the Minister wants to take powers away from local authorities—which plan between medium low water and medium high water—and give them to a quango. It does not matter whether the quango is Natural England or the Marine Management Organisation. The fact is that it is a quango.
It could be that local authorities under this Bill would be required to take additional steps to pay attention to the MMO’s plans. Nevertheless, it would be right that the local authority would be left with the primacy of planning in this area, where so much human activity takes place. However, it does not surprise me because the Government have not been terrific at giving powers to local authorities. If anything, they have been busy taking them away, as they are doing here. I am surprised that the noble Lord, Lord Taylor of Holbeach, is going along with this attitude. I hope that between now and Report, he will talk to his Local Government Association colleagues and all the local authorities that are controlled by Conservatives, and see whether they are happy about losing their power and being subservient to a quango.
I was talking recently at a meeting of CoastNet in Barnstable. Someone came up to me afterwards and asked what the Conservatives’ attitude would be to a quango. I said that I did not know but would find out during the course of the Bill. His question was whether it would be okay for quangos to have much more power. He was a member of the estuary forum, I think, and concerned that it would be losing a say as it would not have elected representatives. The MMO will be a remote body. I worry that we are taking a step that will fundamentally undermine an enormous amount of what coastal authorities do. They will now be in the position of playing second fiddle to the MMO, which is a quango. In fact, it should be a much more equal relationship. We could, during later stages of the Bill, or on Report, remedy this by strengthening the hand of local authorities through other amendments, but, at the moment, they are not recognised at all.
I am sorry that the LGA has not made better representations to us on this Bill. It has been remarkably silent. I do not think that we have had a briefing from it—if any noble Lord has, perhaps they would let me know. However, it has a special interest group which I expect to make representations to us and, if it feels differently from me, I would accept that.
I share the fondness of the noble Lord, Lord Taylor of Holbeach, for salt marshes. I am fond of everything about them, from curlews to salt marsh lamb—I do not eat the curlews; I just like listening to them—and I think they are wonderful places. But, again, they are so rarely under water. Of course, they are important. However, they are essentially land-based places, full of farmers, such as the noble Lord. Therefore, why should the MMO be primarily the planning body for them? That again, should rest with local authorities.
There is a lot here that we should be coming back to in Committee and on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment 81A withdrawn.
Amendments 81B and 82 not moved.
Clause 40 agreed.
Clause 41 : Welsh zone
83: Clause 41, page 21, line 6, leave out subsection (2)
I appear at your Lordships’ Dispatch Box wearing my Welsh hat.
This is a short, probing amendment to enable your Lordships to delve a little more deeply into the new Welsh zone. As I understand it—I hope that the Minister will correct me if I am wrong—the Bill establishes through Clause 41 and Part 2 of Schedule 4 that fisheries will be devolved to the Welsh Ministers in this zone. This is obviously a significant devolution. The control of fisheries will have a huge impact not only on those directly involved in the industry but on the development of marine conservation zones, as the rather tortuously expressed consultation requirements in Clause 116 make clear.
Clause 284 also makes it clear that this devolution carries with it significant powers to impose executive penalties. It is therefore surprising that the actual limits of the zone are still not specified. The Minister and his officials were kind enough to give us a very useful and enlightening meeting with maps last week on the various devolved powers, but their notes and maps contained the very concerning detail that the boundary between the Republic of Ireland and the Welsh economic zone is still undefined and a matter of negotiation.
This negotiation, I suspect, will not be all that easy. If the Republic of Ireland does not recognise this new zone, as distinct from its waters, the devolved powers that we are discussing cannot be implemented properly. Getting final agreement is therefore of the utmost importance, and the agreed limits should be clearly stated in the Bill to provide certainty for those involved. Let us not forget how wide that strip of water is. At its widest—I have not taken this from a chart—it is probably 100 miles at the very most and, in many places, considerably less.
The Minister gave the impression in that meeting that the negotiations were close to their conclusion and that only a few small details had still to be resolved, but I have dealt with an awful lot of small details concerning Ireland in the past 20 years. Presumably, if this is so, we can anticipate final agreement before the Bill receives Royal Assent, which is still several months away. Can the Minister promise the Committee that he will table amendments as soon as he can that express this agreement and remove some of the uncertainty enshrined in the Bill? I would also be grateful if he could confirm that no such uncertainty remains about the other boundaries of this zone, in particular that with the Isle of Man. I would like these boundaries to be numerically clarified, because, excellent though the maps were that the department showed us, the distances are so small and the scale of the maps and charts were of a size that they did not indicate the problem.
I am also concerned about the areas between Scotland and Northern Ireland. We should not be fighting among ourselves, but we need clarity. At its narrowest, the distance is only 10 miles. I beg to move.
The amendment is of great interest to me as a Welsh Member of this House. I deduce from it that Clause 41(2) would be taken out of the Bill and subsection (3) would remain, and I conclude that that would leave the Secretary of State determining by order where the division to which the noble Lord, Lord Glentoran, referred would occur. My understanding from the briefing that we received recently from the Minister, which was extremely helpful, was that the negotiations on the boundary between the Welsh zone and that of Ireland were at an advanced stage.
I note that the last few words of subsection (3) are:
“British fishery limits adjacent to Wales, and those which are not”.
I assume that that refers to the offshore area. Will the Minister confirm that I have interpreted that correctly? I would prefer subsection (2) to be left in, although, as the noble Lord, Lord Glentoran, says, perhaps the definition of where the limits are needs to be much more exact—I can see the point in that argument—so that no doubt is left about where they are. It would be better for the definition of the Welsh zone to remain in the Bill as it is in subsection (2); there is quite a lot of scope for defining more clearly in subsection (3) the words “those which are not”. I will be very interested in the Minister’s response to the amendment and his views, on behalf of the Government, of the proposed exclusion of subsection (2).
I am grateful to noble Lords who have spoken on this amendment, although they have slightly taken me aback; I had not thought that the boundaries issue would be significant at this stage. Let me make it absolutely clear that the Welsh zone has absolutely nothing to do with changes to UK international boundaries. No doubt many anxieties will be articulated about the Welsh zone and what goes on in it. It gives rise to the obvious issue of a devolved authority, so I have no doubt that Scottish—and doubtless Northern Irish—eyes are keenly focused on the matter, too. This is not a boundary issue, however. The Welsh zone brings responsibilities for fishing and fisheries management in Wales into line with those of Scotland and Northern Ireland, where similar zones have existed since devolution in 1998. The clause provides that the precise co-ordinates of that zone will be subsequently determined either by an Order in Council or by order of the Secretary of State. At that stage, the Welsh zone will come into effect. Such an order will be the subject of further consultation with all interested parties, and the Committee will appreciate the nature of that order; it is part of the existing devolved arrangements with the Welsh Assembly Government.
The Welsh zone will allow the existing powers under fisheries legislation to be extended to that area. A single Welsh zone will provide a far less complex patchwork of fisheries legislation off the Welsh coast, will make enforcement far easier and will provide fishermen with a simpler legislative context. The Welsh Assembly Government undertook extensive consultation on the proposal in May 2007 and almost 100 interested bodies across the UK were invited to comment on the document. From this consultation only one outright objection was received and the majority showed support for the proposal. The amendment would prevent the creation of the Welsh zone. If it is a probing amendment, I hope I have given reassurance about the boundaries issue, which we do not regard as significant. I give way to the noble Baroness.
Can the Minister tell us who the one objection was from and what the implication is for the fishermen of the north Devon coast? I realise it is a very specific question, but if we are making changes to the Welsh fishing zone, they are likely to be most affected. Indeed, the whole Bristol Channel area is brought into question.
The noble Baroness will be reassured to learn that I asked to look at a map of the Bristol Channel because of this issue. I am not sure that I was much the wiser afterwards in terms of the impact on the north Devon fisheries, but I will come back to that point in a moment.
On the more general issues of the zone, I apologise once again to the noble Duke, the Duke of Montrose, for being a little dismissive of the fisheries argument earlier. We have had endless debates about the common fisheries policy and we all know that it is coming to some kind of climax with the arrangements for 2012. However, Scotland and Northern Ireland have these zones and Wales is getting the opportunity to have a zone. There is certainly no issue with regard to international boundaries. I am not sure I can give an answer to the noble Baroness about the boundary arrangements between Wales and north Devon. I will write to her on that point because in all my voluminous notes I am afraid that particular dimension does not occur.
The fisheries issue will, of course, recur in this House but I emphasise, with regard to this clause, that we are merely creating a framework within which the Welsh Assembly Government can exercise authority within the limited waters that the map defines. I give way to the noble Lord.
I thank the noble Lord. Obviously, the fisheries issue is extremely important and this is a step forward in terms of legislation for the Welsh zone. I am therefore well satisfied with his explanation.
I, too, thank the noble Lord for his explanation. I am not entirely happy about his comments on international boundaries. If there is no change, why did the Minister and his team tell us the other day that negotiations were nearly complete? Negotiations are clearly needed and ongoing to form the fishing boundary for Wales. I am not pushing that any further; I am just commenting that we need to get it sorted out. This is a serious framework power being devolved to Wales and a lot of work needs to be done.
The negotiations are about co-operation on the fisheries policy. Obviously, the Irish have their interests with regard to the management of the sea as well as their role in relation to the common fisheries policy. But these are not acute issues of boundary definition; they are about how effective co-operation occurs and about policing and sustaining the control regime with regard to the fisheries policy. The negotiations are not boundary issues in terms of the actual territory limits. I am talking about land, of course; territory is hardly the right word. But I do not think that the issues are as serious as that.
I thank the noble Lord again for that explanation. This is just an aside, but I have sailed up and down there many times and I know the waters, maps and charts very well. I have never actually seen a boundary on any chart I have used, including the modern electronic ones. That may just be coincidental but I have never seen anything on paper or electronically recorded. I beg leave to withdraw my amendment.
Amendment 83 withdrawn.
Clause 41 agreed.
Schedule 4 agreed.
Clause 42: Marine policy statements
Amendment 85 not moved.
85ZA: Clause 42, page 21, line 34, after “development” insert “and setting the framework for future development consent of projects”
In moving Amendment 85ZA, obviously I need to refer to a number of other amendments in this mammoth grouping. We on these Benches and your Lordships generally are suffering from the absence of the noble Lord, Lord Greaves, and my noble friend Lady Hamwee, both of whom are still engaged with the Local Democracy, Economic Development and Construction Bill in Grand Committee in the Moses Room. I hope the noble Lord can give us an assurance that any further Committee days on this Bill will not coincide with that Bill because we are all going to miss their expertise.
We now turn to the important part of the Bill concerned with the new marine planning regime, and specifically, in this chapter, the marine policy statements. The amendments that I am addressing, starting with Amendment 85ZA, are concerned to make sure that these statements are sufficiently compatible with other important policy developments that we have all been considering in this House and in the other place over recent years. It is also extremely important, as has been made clear since Second Reading and through all the preparation work for this Bill, that there is complete effective compatibility with the requirements of European Directive 2001/42/EC and all the various UK enabling regulations needed to fulfil that.
We have tabled a number of amendments to try to give practical effect to those requirements. This is the context in which these important marine policy statements must be developed. If they are not developed within this context, there will be widespread agreement across the Committee that we are failing in our duty in scrutinising this Bill. There is general consensus among all the so-called stakeholders—I hate the word; I think we can do better but we have to live with it, I suppose—that the marine policy statements and the marine plans must be subjected to effective strategic environmental assessment, or SEA, under the directive. There are obviously several advantages to the directive. It has not just been imposed on us and we can make good use of it. It ensures that there is a robust assessment of the policies and proposals, with all their environmental impacts taken into account and with the promotion of sustainable development fully and properly considered. There is also the considerable advantage that the directive gives guidance on proper consultation. We are all very much aware that in this and in many other areas consultation is essential if the outcome is to be owned by those who are most concerned with these policies. There is also the ability for recourse in extremis to the European courts should there be a breach of the directive’s requirements.
In order to be sure that the SEA process is triggered, the marine policy statement and the marine plans must meet certain criteria. The MPS and marine plans must fall within the definition of plans and programmes for the directive to apply, and to allow for further consideration as to whether an SEA is required. The most relevant element of the definition is that the plan or programme must be,
“required by legislative, regulatory or administrative provisions”.
In other words, it must appear in the Bill. If it is not there, it may not trigger the SEA. There must be a mandatory obligation on the relevant authority to produce that plan or programme.
As things stand, the Bill makes the adoption of the MPS and marine plans only discretionary. We may think it is more than that but, under the Bill, it is discretionary. This means that the MPS and the marine plans could not be defined as plans and programmes under the directive. Therefore, the requirement for an SEA would not be triggered. A number of environmental organisations that have been so supportive of the Bill and so keen to see this legislation on the statute book are very concerned that we may not be effective in triggering this process, which is obviously crucial for its success. We must make sure that the MPS and marine plans will be subjected to full and proper SEA processes, even if they are subject to an appraisal which includes components of SEA. It is extremely important that we pursue this issue. For that reason, we have tabled the amendments.
Various options are included in the amendments. I have followed a procedure here, which I have often found useful in public life, whereby if you ask anyone whether they want to say yes or no, they invariably say no. But if you give them two options—either A or B—there is a much better chance of success. For example, Amendments 85JA and 85J are alternatives. I hope that the Minister will find having a choice more conducive to a forthcoming and responsive answer, rather than if I had chosen to present just one option to the Committee, to which he could just say no. I am sure that he has had the same experience.
For the benefit of speed, I will not read out the sustainability appraisal, which is included here and is very substantial but nevertheless well based. It comes from sources for which other legislation has given us guidance. I accept that the alternatives are not that different, but I hope that the Minister will find them helpful.
The other amendments in this large group are all derivative and consequential. I do not propose to go through them in detail because I suspect that the Committee would like to deal with this group expeditiously in view of the hour. I hope that I have given sufficient indication of how crucial they are in trying to make sure that we are including in the Bill marine policy statements which carry all the opportunities and advantages to which I have referred under the directive. I beg to move.
With this group of amendments we are moving into Part 3, Marine Planning. All the following groups of amendments, including this one, are necessary because, as the Bill stands, there is a huge lack of clarity. We broadly support the probing nature of the amendments put by the noble Lord, Lord Tyler, but, in particular, the requirement for a strategic environment assessment, SEA, that should be conducted for the MPS. Apparently, there has been legal advice supporting the view that the SEA directive does and should apply to the MPS. However, to date, the Government have stated that they,
“would not be required to carry out a strategic environmental assessment of the MPS under the terms of the Directive concerning SEA”.
That was the Government’s response to the Joint Committee’s report on the draft Marine Bill.
In addition, I understand that concerns have been expressed regarding the practicalities of carrying out an SEA to such a high-level or overarching document as an MPS. The principle of whether an SEA should be carried out goes back to the same argument posed by my noble friend Lord Kingsland when moving Amendment 12. He argued that until the MMO has established the best scientific evidence, it cannot make an assessment about the damage or otherwise that particular human activities would do. In the same vein, a marine policy statement would be incomplete without first having done an environmental assessment.
It is said that the SEAs of high-level plans or programmes, such as the proposed marine policy statement, pose particular practical challenges to undertake. Such plans or programmes often lack detail, thus making them difficult to assess. To our knowledge there have been few high-level SEAs in England, Wales or Northern Ireland. However, I understand that Scotland has had success and experience of SEAs at a high level. The Environmental Assessment (Scotland) Act 2005 covers strategies as well as plans and programmes. I do not believe that England, Wales or Northern Ireland have this experience. I further understand that Scotland has a number of high-level strategy plans which have undergone or are undergoing SEA. Therefore, it would be perfectly possible to conduct an SEA for the MPS. I hope that the Minister will look at this issue, especially after the assurances that he gave the Committee when responding to Amendment 73 in the name of the noble Lord, Lord Greenway.
I am conscious of the time, but we have reached Part 3 and it would be appropriate for me to make a few remarks about this very important part of the Bill before responding directly to the amendments. The marine planning system we are developing will adopt a straightforward two-stage approach; that is, a UK marine policy statement, and a series of marine plans, which will apply the policies in the policy statement to particular geographical areas. Decisions on licensing and consents in the marine area will have to be taken in accordance with the marine policy statement and the plans.
The intent of the marine policy statement is to be agreed by the UK Government and the devolved Administrations, which are called “policy authorities”. The Bill does not change the devolution settlement but provides, as we know, for a form of executive devolution, which will allow the devolved Administrations to produce comprehensive plans with the agreement of the Secretary of State. We know that ensuring a consistency of approach throughout the UK SEAs is very important. The marine policy statement will cover the whole of the UK marine area. If all four Administrations agree the MPS, as we intend, there is no question that we will deliver consistency throughout the United Kingdom.
Significant incentives are built into the system to encourage co-operation. However, it is a fact of devolution that we cannot require other Administrations to agree with us. We have had to provide for devolved Administrations to opt out of the MPS, and for the Secretary of State to work alone if necessary. Clearly, the impact of what countries, including ourselves, can achieve alone is significantly diminished. None the less, the discussions that took place between the four Administrations last year give me a great deal of confidence that we can achieve a marine policy statement to which all four Administrations have signed up.
The statement will bring together all our marine policies, covering social, economic and environmental considerations; set out a clear and consistent framework for coastal and marine regulators and users; and help everyone to work together towards common, agreed objectives. The marine policy statement will be prepared—this is an important point—in the light of the amendments. It will be prepared within our EU and international obligations, and will address how we give effect to them. It may also contain information about the location and extent of resources, activities and pressures that will assist the development of marine areas.
We want to make sure that the MPS is a useful document for decision-makers, providing a unified context and framework for their decisions. Following the recommendation made by the Joint Committee scrutinising the draft Bill, we have introduced a new requirement for a draft marine policy statement to be laid before both Houses of Parliament, and the devolved legislatures of all the Administrations that have participated in preparing it. If Parliament or any legislature makes recommendations about the draft MPS, each Administration will have a duty to respond. All public authorities will be obliged to have regard to the MPS and marine plans, and, in most cases, to take licensing or enforcement decisions in accordance with the policies set out in the MPS.
As a first step to developing an integrated policy statement, we consulted all interested parties last summer on a set of high-level objectives. We are considering carefully what they told us, and will take forward further close working with those parties as we develop the MPS. I apologise for taking the time of the Committee, but it is important, at the start of such a crucial part of the Bill, to set out the general principles that govern it.
The amendments are focused on the core purpose of marine policy statements and marine planning. They seek to ensure that the MPS and marine plans are subject to an appraisal of sustainability, including compliance with the European directive on the strategic environmental assessment of plans and programmes, known as the SEA directive. I will deal first with Amendments 85ZA, 85ZB, 89ZA and 89ZB, relating to Clauses 42 and 49. These clauses set out the definitions of a marine policy statement and a marine plan. The amendments add to those definitions wording that will ensure that the SEA directive applies to them.
Whether a legal obligation, such as a directive and the regulations transposing it, apply to an MPS or marine plan should be determined by the directive and the regulations. If it applies, then we and the other UK Administrations will comply: we have to. It is not necessary to restate an existing legal obligation in legislation. That might backfire if the European directive were revoked or replaced. The references might become redundant and would do nothing to ensure compliance with any directive or regulations that came along later.
Many other directives may apply to the marine policy statement and plans, including the birds directive and the habitats directive—not that I wish to inspire further amendments on Report. They will also require assessments to be carried out when proposals might affect a designated site. We do not list them in the Bill because there is no need: we will comply with them if they apply. We do not think that a strategic environmental assessment is any different. Although there is no reference in the Bill to carrying out an appraisal of the sustainability of the marine planning statement, that does not mean that the policies in it will not be subject to appraisal and assessment.
As set out in Clause 42(1)(a), the MPS will be a statement of our policies on contributing to the achievement of sustainable development in the UK marine area. The policies that it contains will add up to a positive contribution to sustainable development, otherwise it will not meet the criteria required of it in the Bill and will not then be an MPS. Appraisal of sustainability is inherent in the process of preparing an MPS, rather than a separate consideration or process, which is why there is no separate requirement in the Bill. This goes to the heart of the matter.
We shall debate the statement of public participation later. It will set out the process to be followed in developing the marine policy statement, including an impact assessment that will set out the options that have been considered, and any assessment or appraisal of sustainability. The MPS will also be subject to extensive public consultation and scrutiny, not only by this House and the other place, but also by the devolved legislatures. We will be happy to receive representations as part of the consultation. If there are concerns that we are not meeting our European obligations on assessing the sustainability and environmental effects of the MPS, there will be ample opportunity for parliamentarians to call the UK Government and the devolved Administrations to account.
We began this process last summer by consulting on a set of high-level marine objectives that will form the basis of the MPS. These objectives start from the principle of enabling an integrated approach to delivering economic, social and environmental benefits, underpinned by sound science and good governance.
I stated in our response to the Joint Committee that scrutinised the draft Bill that we do not think that the requirements of the European directive on the strategic environmental assessment of plans and programmes will apply to the marine policy statement. I understand the desire to ensure that we assess the sustainability of our policies. However, as I have said, Clause 42(1)(a) makes clear that the statement has to contribute to the achievement of sustainable development in the UK. If the Government are wrong and the requirements of the European directive on the strategic environmental assessment do apply to marine policy statements, they will be applied; nothing in this legislation would prevent that. We accept that whether the SEA directive applies to the MPS will depend to some extent on the eventual content of the MPS. I reassure noble Lords that, if it appears that the requirements of the directive apply, then we will comply.
As far as concerns Amendments 85J and 85JA, we must ensure that the policies in the MPS are sustainable, otherwise the MPS will not be an MPS. We have also committed to publishing a partial impact assessment alongside the draft consultation which sets out the options considered for inclusion in the draft MPS. What is more, and as I have said already, we need to ensure that the policies in the MPS are sustainable.
I turn to Amendments 89FA, 89G, 89GA, 89H and 89HA. Let me reiterate that we are clear that every marine plan will require a strategic environmental assessment under the terms of the directive and that this will be carried out as part of the sustainability appraisal of each plan. In our response we have made a commitment to conducting pre-legislative scrutiny in order to produce guidance for the MMO on how to carry out these appraisals. This guidance will make it clear that the process of sustainability appraisal is intended to be carried out alongside the development of options for inclusion in the draft plan, and that it should inform the choices made about which of the possible alternative proposals to take forward. Furthermore, we are happy to publish the guidance for public consultation before it is finished.
As I said in response to earlier amendments, we do not think details such as those proposed in these amendments are appropriate for primary legislation. We will comply with our European obligations and appraise the sustainability of options for inclusion in the marine plan. The appraisal will inform the choice of options that are selected for inclusion in the draft plan and we will publish guidance for the MMO on how we expect this to be carried out.
I agree with the Minister that we have come to an important part of the Bill and I am only sorry that our consideration has been slightly rushed. He said that he hopes for a consistent approach, which is clearly what we are all after. My question is therefore simple: what will happen if it is not consistent?
It is a good question. Essentially, the marine policy statement will always apply to the whole UK marine area and can have regional content within it. If the devolved Administrations are not signed up, it will be limited in its scope and impact. I suppose that in theory a UK Government-only marine policy statement could cover devolved matters, but I am not sure that that would be wise. In any case, the devolved Administrations would not have to follow it. A UK Government-only marine policy statement would cover reserve matters, and for England it would cover the whole area of marine licensing and consents.
It would be a huge disappointment to get to that position. We hope—the incentives to do so are in the Bill—for agreement to be reached. Again, I go back to the statement of intent by the four Administrations following the meeting last autumn setting out their determination to make this work. The Bill is constructed to make it possible, with incentives moving in the direction towards an agreed marine policy statement for the United Kingdom to which all the devolved Administrations are signed up, but in a sense there is a reserve position in order to deal with the matter if it is not possible.
Is that the reason for Clause 46, which concerns the withdrawal of the devolved authorities from such a statement? Did this clause have to be included as part of the agreement?
I am not sure that I want to go into the detail of the discussions. Clause 46 sets out the circumstances in which withdrawal from a statement may be made, while Clause 43, which we shall reach shortly, describes the flexibility provided so that an MPS may be prepared by all the policy authorities acting jointly, which is very much the desired option. It may also be prepared by the Secretary of State and by one or another of the other devolved Administrations or, in the end, it could be prepared just by the Secretary of State. There is flexibility in the legislation, but I am confident that there is sufficient understanding between all the Administrations that the benefits of working together far outweigh not doing so. It is necessary to have this kind of measure in the Bill to deal with circumstances where working together is not possible, but I am confident that it will not have to be used.
I am grateful for the support of the noble Earl, Lord Cathcart. This is an important part of the Bill and I, too, am sorry that the debate has been slightly truncated by the hour. The Minister referred to our optional amendments to Schedule 5. Perhaps I should have made it clear that although we do not believe that we have heard the last word on this subject, we are slightly disappointed that he feels that no such assessment of sustainability appraisal needs to be provided for in Schedule 5. We shall certainly look at the issue again.
I warmly welcome the Minister’s assurances about the discussions held at ministerial level with the various devolved Administrations about this part of the Bill, because that is absolutely critical. He used the word “hope” at one point, but he has also used the word “confidence”. I hope that his confidence is well placed because if the development and implementation of the MPS does not work out, there will be a major problem at the very heart—
Based on my understanding of the agreement reached by Ministers that has led to the statement, along with the discussions between officials from the UK Government and the devolved Administrations, I am optimistic about the conclusion.
I thank the Minister. I am also grateful for his statement that a great deal of consultative discussion has already taken place with a number of stakeholders about the form and content of the MPS and that that is to continue; obviously that is right not just as the Bill progresses through both Houses, but thereafter. Perhaps I may repeat the point I made earlier: if those who are most concerned about the success of this legislation are not adequately consulted about the way in which the policy statement is developed, there would be a lacuna at the very heart of the Bill.
I come back to the issue of the relevance of the SEA because I am concerned that we should be as confident as possible that we are using the right mechanism to ensure that the sustainability appraisal is really effective. I understand that there is another option known as the sustainability appraisal, but to be frank that is a rather tame weapon to use in this context. There is widespread concern that by apparently turning down the possibility of the SEA process, we may be adopting a rather limp approach. Incidentally, I am sure that I recall reasonably well the Minister saying in his response that sustainability appraisal was inherent in the preparation of the MPS and therefore reference to the SEA directive is not really necessary. That does not quite accord with the Government’s response in taking forward the draft marine Bill in response to the Joint Committee report from the noble Lord, Lord Greenway. The Government stated that while they believed that they would not be required to undertake an SEA for the MPS, they said that they were,
“considering mechanisms that might be suitable for assessing the policies in the statement”.
Frankly, nothing we have heard this evening has really fulfilled that promise. Perhaps it is still ongoing work and we shall hear about it later, but no assessment mechanism has been built into the Bill at the moment.
We have had a brief but useful debate. However, these issues will come back in various forms. We shall ponder carefully between now and Report what the Minister has said, but in the mean time I beg leave to withdraw the amendment.
Amendment 85ZA withdrawn.
Amendment 85ZB not moved.
House resumed. Committee to begin again not before 8.49 pm.