Committee (5th Day)
89BZA: After Clause 49, insert the following new Clause—
“Marine plan for Scottish offshore region
(1) Subject to subsection (2) below, Scottish Ministers may incorporate in any marine plan for the Scottish offshore region a duty on every public body and office-holder, in exercising any functions, to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions.
(2) The duty to further the conservation of biodiversity referred to in subsection (1) above shall only be incorporated in a marine plan for the Scottish offshore region in pursuance of legislation passed by the Scottish Parliament empowering Scottish Ministers to do so.
(3) It shall be competent for the Scottish Parliament to pass legislation to further the conservation of biodiversity in the Scottish offshore region.
(4) For the purposes of this section, “public body and office-holder” has the meaning given in the Nature Conservation (Scotland) Act 2004 (asp 6).”
The amendment picks up the devolutionary theme that runs through this Bill; it is designed to elicit clarification on where the different boundaries fall. The Minister has told the House on a number of occasions that the scheme agreed among the devolved Administrations with the United Kingdom Government is, as far as Scotland is concerned, to allow Scottish Ministers to devise a plan for the offshore area—subject to the express approval of the Secretary of State and any required Executive devolution.
The amendment has a number of purposes, but it is primarily designed to clarify the extent to which the Scottish Parliament has or has not competence to deal with issues in respect of the offshore area. Prima facie, given the terms of the Scotland Act 1998, it certainly would be my understanding that the offshore area is beyond the territorial competence of the Scottish Parliament except in relation to fisheries, where a specific order has already been made confirming devolved powers.
The body which is likely to be created to deal with Scottish waters for the purposes of the Scottish marine Bill is Marine Scotland. Indeed, a press release from the Scottish Government on 9 February indicated that a new marine management body was being created to help Scotland make the most of its seas for future generations and stated that Marine Scotland would be up and running by 1 April this year. It went on to indicate that it would play a key role in managing Scotland’s seas with direct responsibility for marine science, planning, policy development, management and compliance monitoring measures. It also indicates that it will work with other partners with marine interests to deliver both economic prosperity and environmental sustainability.
It is fair to say that it is a body which enjoys cross-party support. Indeed, I seem to recall that in Committee on the first part of the Bill—on the MMO—there was an indication that Marine Scotland would play a role comparable to the MMO so far as Scottish inshore and offshore waters were concerned.
I wish to raise some simple questions. Does the Scottish Parliament have the legislative competence to endow Marine Scotland with a remit in respect of the offshore area? Clearly, Marine Scotland will be able to be established by the act of the Scottish Executive, but one presumes that it will have a role and responsibility that relates to the offshore area, where there will be devolved responsibility to Scottish Ministers. Will the Scottish Parliament have any role in establishing what Marine Scotland can or cannot do? If the answer is that it will, I would like to know the basis for such legislative competence. If not, should the Bill not confer powers on the Scottish Parliament?
The amendment specifically relates to a duty on biodiversity. Its wording is very similar to that in Section 1 of the Nature Conservation (Scotland) Act 2004. Section 2(1) of that Act refers to the Scottish biodiversity strategy. The duty—it is for,
“every public body and office-holder, in exercising any functions, to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions”—
has been widely supported in Scotland. However, it can apply only up to the 12-mile limit. The marine conservation group of the Advisory Group on Marine and Coastal Strategy, which was set up in 2005 by my colleague Ross Finnie MSP, the then Minister for Environment and Rural Development, commended the above statutory definition of a biodiversity duty but acknowledged that to extend it beyond the 12-mile limit would require legislation at Westminster.
Subsequently, the Scottish Government’s own consultation on the Scottish marine Bill—Sustainable Seas for All, published last summer—states, at paragraph 117:
“The Biodiversity Duty in the Nature Conservation (Scotland) Act 2004 could also be considered as a wider measure in that it is not limited in its application to protected sites or specific species protection. Some potential improvements to this duty are described below”.
Paragraph 120 states:
“The Biodiversity Duty on all public bodies and office holders contained in section 1 of the Nature Conservation (Scotland) Act 2004 currently only extends out to 12nm”—
nautical miles. It continues:
“If Scottish Ministers achieve further devolution of nature conservation in the offshore area beyond 12nm, the Scottish Ministers would propose extending the scope of the duty to apply to all public bodies exercising functions in the offshore area. If further devolution cannot be agreed we would discuss with the UK Government how best to take forward this proposal”.
While I raise a general point about the competence of the Scottish Parliament in respect of Marine Scotland in the offshore area, the specific point is that it does not seem possible or competent for the Scottish Parliament to impose a biodiversity duty on public bodies in the offshore area, as the law stands. I see nothing in the Bill that would allow the Scottish Parliament to do so. There is soon to be recognition that, if it could not be done by the Scottish Parliament, it should be done by Westminster, and the amendment would undoubtedly facilitate that. That is the background to why I move the amendment.
The amendment shows an interesting approach by the noble Lord. While at first sight the strict wording does not exactly fit the spirit of co-operation with which the Government insist that the marine policy statement be approached, it serves as a useful amendment to probe the Government on what elements the marine policy statement will contain and whether biodiversity will be one of them. The Scottish Administration, in their consultation paper to which the noble Lord referred, Sustainable Seas for All, are a little more forthcoming than the Minister has found himself able to be with the Committee. They say:
“The United Kingdom Government and Devolved Administrations have worked together to set out a number of high level marine objectives which articulate the outcomes they are seeking”.
The objectives are set out in sections that reflect the five principles of sustainable development. It would be immensely helpful to the Committee if the Minister would make these available in their current form, even if they are not fully developed. If he cannot do so, the Committee would be helped by some explanation.
The amendment raises the possible necessity of the devolution of legislative powers, as the noble Lord, Lord Wallace, explained. We would be interested to know how the Government expect such a thing could be achieved, if not by this amendment. I am sure that Scotland has all the powers that it needs over the Scottish inshore region. Can the Minister explain to the Committee whether the Food and Environment Protection Act 1985 contains all the powers that the Government consider necessary for the protection of biodiversity, and whether that is the mechanism that they expect Scottish Ministers to use? If not, what legislation would be required to ensure that the powers of the Act would extend to the offshore region administered by Scottish Ministers? This does not appear to be contained in any legislation emanating directly from the Scotland Act. It appears that all Administrations taking up this process have adopted the general slogan that we aim for,
“clean, healthy, safe, productive and biologically diverse”
oceans and seas. That is set out in the government paper, Safeguarding our Seas. However, that is too general an aim and one would like specific details.
I fully support the amendment proposed by the noble Lord, Lord Wallace of Tankerness. I would like some information from the Minister about Wales. We have heard about proposals for Marine Scotland and in particular the whole question of biodiversity. If the Minister were of a mind to accept this amendment, one could make a strong case for this kind of legislation to apply to Wales as well.
Biodiversity has been a hot topic, in particular in relation to Cardigan Bay, where netsmen on trawlers with heavy-duty equipment are ruining the seabed by dredging it for various shellfish. This is happening beyond the 12-mile limit of the inshore area contained in the Bill for Wales. To secure proper biodiversity in areas such as Cardigan Bay, we need the powers to police beyond the 12-mile limit. If the Minister accepts this amendment, which I hope he does, will he consider a similar amendment for Wales? I believe, from my knowledge of the Government of Wales Acts 1998 and 2006, that the Welsh Assembly does not have this power.
This has been a very interesting discussion. I will start with the proposal from the noble Lord, Lord Wallace, for a new clause specifically on a marine plan for the Scottish offshore region. This would enable Scottish Ministers to place a duty on every public body and officeholder to further the conservation of biodiversity. The intent of the amendment is to incorporate this duty in a marine plan for the Scottish offshore region, under legislation to be passed following scrutiny by the Scottish Parliament. The amendment would also pass competence for this legislation to the Scottish Parliament. The terms “public body”, “office-holder” and,
“further the conservation of biodiversity”,
come from the Nature Conservation (Scotland) Act 2004.
Before I respond, let me just say that I believe that we have sent noble Lords the high-level objectives in draft. Given that we have sent a lot of paper to noble Lords, I am very happy to pick up the suggestion of the noble Duke that we do so again.
The first issue here is further devolution to the Scottish Parliament, which is a significant matter of principle. Noble Lords will know—this is also a response to the noble Lord, Lord Livsey—that the Bill has been drafted within the current devolution settlement. The Government and the devolved Administrations have agreed that new powers in the Marine and Coastal Access Bill will be the subject not of legislative devolution but of a form of executive devolution, under which the Scottish Government will operate the legislation.
What is the relationship between executive devolution and the Scottish Parliament? As I understand it, the Scottish Parliament will be able to hold Scottish Ministers to account. Under the Bill’s planning and nature conservation provisions, there will also be a role for this Parliament—I suggest that there is a similarity here—in that it will be able to hold UK Ministers to account for the way in which they exercise their right to agree or disagree with Scottish Ministers’ proposals. Essentially, that recognises the reality of the current complex mix of reserved and devolved matters in the marine environment.
We have all agreed that a new system of marine planning is needed to enable us to manage our seas better. For it to deliver the benefits that we all want, the marine policy statement and the plans underneath it need to impact across the breadth of interest in our seas. We must secure issues of national importance, such as defence, shipping, oil and gas. That is why the Government have to agree to marine plans drawn up by Scottish Ministers, which is a very important part of ensuring that such matters are protected.
Scottish Ministers may exercise in any manner they deem appropriate the functions that they already have. That must include establishing Marine Scotland. Once the Bill has been enacted, Scottish Ministers will also have marine planning and the Bill’s nature conservation functions in the offshore area, with the UK Government retaining functions on defence, oil, gas and shipping. Scottish Ministers do not have the competence to give those functions to Marine Scotland. As I understand it, Marine Scotland will, legally speaking, be a part of the Scottish Executive. Therefore, Scottish Ministers do not need any powers to set it up as they wish or to give it the functions that they wish it to exercise. Legally speaking, the actions of Marine Scotland will be those of the Scottish Ministers and, from my understanding of the Scottish Parliament, I believe that Scottish Ministers will of course be held accountable by the Scottish Parliament for the exercise of those powers.
When we talk about reserved matters under the Scotland Act, coal always gets missed out. It is not entirely beyond imagination that there is coal under the sea.
Yes. Is the noble Duke asking whether coal is covered?
Coal is reserved to Westminster, as are gas and oil.
The noble Duke is berating me for missing out the importance of coal. I apologise to him. I am well aware of its importance.
On biodiversity, the simple and straightforward answer is that, although we do not use the wording used by the noble Lord, we believe that we have covered the matter in the Bill. In Clause 121, there is a duty on public bodies, including those in the Scottish offshore area, to further the conservation objectives of designated sites. Moreover, public authorities must have regard to advice from the statutory conservation body, which, for the offshore region, is the Joint Nature Conservation Committee.
Further than that, sustainable development and the vital place that conservation occupies in our suite of marine policies are captured in the marine policy statement under Clause 42 and in marine plans under Clause 49. Those documents will clearly set out how our policies will contribute to achieving sustainable development and how we intend to treat fragile, rare and representative parts of our marine environment and to further the conservation of biodiversity. They will also steer the marine licensing process that is subject to Part 4 of the Bill—we might get to it one day—under which decisions must be made in accordance with the marine policy statement and with marine plans. Through that mechanism, the Bill will ensure that all decision-makers in the marine environment have to consider biodiversity in making their decisions.
I hope that I have, in general, reassured the noble Lord that it is quite within the competence of the Scottish Parliament to hold Scottish Ministers to account for their actions under executive devolution.
I thank the Minister for his reply, as indeed I thank the noble Duke, the Duke of Montrose, and my noble friend Lord Livsey for their contributions. I note that the Minister used the word “complex” about some of these arrangements; his reply underlined that. My concern, which the Minister has addressed to a considerable extent—although, given the complexity, it is something that we would want to go away and consider—is that, for the offshore region, the Scottish Parliament has no say in determining what the powers might be in relation to Scottish Ministers, albeit that it can call them to account.
Some of the paperwork that the Minister’s department has sent us, to which he referred, is genuinely helpful and some of the maps are particularly useful. The one on who will issue marine licences, which I happen to be looking at, has a map relating to construction work. The areas in which Scottish Ministers will issue a marine licence are striped and the areas where Scottish Ministers will issue a FEPA licence—the inshore waters—is blue. The document says that the Scottish Executive intend to replace the FEPA regime with a new licensing system under the Scottish Marine Bill. It seems to me that we could, almost certainly, end up with two separate regimes: one to be determined for inshore waters, under the Scottish Marine Bill, and one to be determined elsewhere under FEPA, one assumes, or under what this Bill puts in place.
If one object is to try to get some consistency between inshore and offshore, it does not necessarily follow that you will get that, even with the best will in the world, if two separate Parliaments are legislating for it. I use that as an example because, while it is now clear that Marine Scotland can be an arm of the Scottish Government and therefore will not necessarily require separate legislation to be established, its functions will be determined in some respects by this Parliament and in others by the Scottish Parliament. I am not sure that that is necessarily the best way to progress. Regarding the duty to promote biodiversity, I certainly want to examine carefully what the Minister has said. I note his reference to Clause 121, which extends only to marine conservation zones, although he also referred to Clauses 42 and 49, which might have a more general application in the offshore area.
I know that there has been cross-party support to extend the biodiversity duty and a recognition in Scotland that that is not possible under the present powers of the Scottish Parliament. Given that large measure of support, even were these powers not to be granted, perhaps Westminster might look sympathetically on this. I will want to go away and consider what the Minister has said on whether the bits that are in place in this legislation fully address this issue. In that spirit, I wish to withdraw the amendment.
Amendment 89BZA withdrawn.
Schedule 6 : Marine plans: preparation and adoption
Amendment 89BZAA had been withdrawn from the Marshalled List.
Amendment 89BZAB not moved.
89BZB: Schedule 6, page 230, line 10, leave out from “region” to “the” in line 11 and insert “adjoins or is adjacent to”
Paragraph 1 of Schedule 6 sets out a clear intention to ensure that at the start of preparing a marine plan the relevant plan authority must notify the local and regional planning bodies whose areas adjoin or are adjacent to the marine plan area. This includes terrestrial bodies and other marine plan authorities. This is so that each of these planning bodies has as much notice as possible about what is happening and can prepare for their involvement in other plans or perhaps decide to plan at the same time. This will be most beneficial in areas that are particularly difficult to manage, such as cross-border estuaries. We will discuss a number of amendments tabled by noble Lords on all sides of the House. Many of the principles are accepted by the Government, and I have tabled a series of amendments to achieve their effect. In moving my amendment, I shall speak to them.
Amendments 89BG, 89BJ, 89BL, 89BM and 89BN insert a requirement to take all reasonable steps to ensure compatibility with Scottish terrestrial development plans as well as with English plans and insert the appropriate definition of the development plan for Scotland. Amendment 89BL corrects an omission from the definition of the relevant Planning Act plan for Wales by inserting a reference to the development plan. Welsh development plans are included in the definition in sub-paragraph (5) and should also appear in sub-paragraph (4)(b).
I am also tabling further minor and technical amendments to paragraph 1 of Schedule 6. Amendments 89BZB and 89BZC change the reference for a marine plan authority to notify its intention to plan to marine plan authorities of regions related to the area about to be planned for. They substitute the term “adjoins or is adjacent to” because it is easier to identify at the start of the planning process what the adjoining or adjacent areas are. It may only be later, when planning starts in earnest, that it is clear that other planning authorities should be consulted. Paragraph 3 of Schedule 6 covers the situation if it becomes clear that another marine plan authority or local or regional planning body also has an interest, although it is not adjoining or adjacent. Under that paragraph, the marine plan authority must take all reasonable steps to ensure compatibility between its plans and the marine plans. There is an extensive consultation process when producing plans, as set out in paragraphs 3 to 7 of this schedule. The statement of public participation for each plan will ensure that should terrestrial or marine planning authorities, in addition to those whose areas adjoin or are adjacent to the marine plan area, have an interest, they will be consulted.
Amendment 89BZD is a consequential amendment in that the provision related to Northern Ireland in paragraph 1(2)(d) will no longer be required since the Northern Ireland inshore region adjoins the Northern Ireland offshore region and the Scottish inshore region only. As marine plan authority for the Northern Ireland offshore region, the Department of Environment in Northern Ireland would be notified in any event. Since the Bill does not provide for marine planning in the Scottish inshore region, there is no marine plan authority for the Scottish inshore region under the Bill. Amendment 89BD is a further consequential amendment following from Amendments 89BZB and 89BZC because if the term “related to” is no longer used in this paragraph, there is no need for the definition in paragraph 1(3), and the sub-paragraph can be deleted. However, the term “related to” is used again in paragraph 3, so Amendment 89BK inserts the definition in that paragraph instead.
I hope that is helpful by way of introduction. I am grateful to noble Lords who have tabled relevant amendments. I hope that noble Lords feel that what I have said shows that the Government’s amendments meet the situations that they seek to raise in your Lordships' House today.
First, I apologise to the Committee on behalf of my noble friend Lord Greaves, who is unwell. As other Ministers have discovered, even when he is not present for a stage of a Bill, he does not stop working. My amendments in this group relate to definitions. I will speak to some of my noble friend’s amendments later, which are also on definitions. I have received definitions taken from five different sources of the term that he was unhappy with. The Minister will be pleased to know that my researches have not been nearly so extensive. Ministers are never sure if they are happier when my noble friend and his energy are present or absent. I hesitate to say “we” in the absence of the Front Bench, but I am certainly happy with the amendments to which the Minister has spoken. There is an elusive quality to this Bill. One thinks one has understood it and something pops up a bit later, just as one squeezes at the front.
My amendments all relate to the wording,
“adjoins or is adjacent to”,
which, if the Minister’s amendments are accepted, will become more prevalent in this schedule. I was puzzled as to what the distinction is between the terms “adjoins” and “adjacent to”. I used only one source, my own Shorter Oxford English Dictionary, which, to add to my puzzlement, uses one of these terms to define the other. I would have said that “adjoins” means alongside without a gap and that “adjacent” means very near, but I am not sure how far away you can be and still be adjacent. I suggest “contiguous” as an alternative, but only because I was searching for another word in the same category. I would be grateful if the Minister could explain what is meant by “adjacent to” if it means something different from “adjoins”.
As we have heard, this group contains many detailed amendments which raise interesting issues. We are entering an interesting part of the structure of what the Government are creating. They seem to expect all adjoining or adjacent areas to have some say in what is happening in the next area. This process will obviously have to be handled with some tact. By way of an example, if, as someone suggested, Scotland decided to have only one or two offshore regions, every plan contained in the whole Scottish offshore region would have an input from the Secretary of State, and probably will anyway. It might be worth the Minister putting on the record which Secretary of State that would be. Perhaps that is a bit facetious because it could be construed that more than one has an interest in Scotland.
I was happy to listen to the detail of the amendment tabled by the noble Baroness, Lady Hamwee. Changing “adjoins or is adjacent to” to “contiguous to” and related planning authorities being forewarned of planning, even if they are only partly joined to the marine plan area, are important factors for consideration.
The noble Lord, Lord Wallace of Tankerness, has an amendment in this group which goes into the finer detail of the real nub of the issue of trying to define and manage a border area, in this case between existing Scottish government control and Westminster.
On our previous day in Committee, we spent some time in a similar discussion defining the interests and powers in the Severn estuary, and it would be interesting to see whether the Minister wishes to vary his response. In this case, the options are rather more limited, as Scottish Ministers’ authority would be required for anything that affected their interests. Will the Minister elucidate for the Committee whether there is any place in the Bill in which we can require the Scottish Administration in their control of the relevant parts of the Scottish inshore area to consult another UK area that adjoins it or to which it is adjacent?
On the same subject, will the noble Lord, Lord Wallace, explain why he is so prescriptive about local authorities that have to be consulted? Does he have a strong rationale about the role of local authorities? Perhaps he has more up-to-date information than I do, but my impression is that the Scottish Administration do not yet have a settled view of which model they will use for designating Scottish marine regions in the Scottish inshore area. At least four possible administrative groupings appear to affect the Scottish coastal area, only one of which is the Scottish local authorities. This is the nub of the issue when trying to define the border area between Scottish government control and Westminster. I hope that the Minister will be able to expand a little.
I am happy to speak to my amendment and to try to answer the questions which the noble Duke, the Duke of Montrose, has asked.
The origin of my amendments is that paragraph 1 of Schedule 6 requires the marine plan authority that is preparing a marine plan for a marine plan area to give notice of its intention to do so to related planning authorities. Paragraph 1(2) of the schedule defines the related planning authorities, and paragraph 1(4) subsequently defines a local planning authority as one,
“to be read in accordance with section 37 of the Planning and Compulsory Purchase Act 2004”.
It struck me that any developments in the English inshore area in the Solway Firth could have implications for Dumfries and Galloway and the area that is inshore but immediately adjoining the estuary of the Tweed could have implications for the Scottish Borders Council.
Amendment 89BG amends the definition of “local planning authority” to include Scottish local planning authorities. I may be wrong, but I believe that it meets the purpose of my amendments probably more felicitously than mine. There is nothing terribly magical about it; it simply recognises proximity, and I am grateful to the Minister for tabling it.
I am very grateful to noble Lords for their amendments. I am sorry to hear that the noble Lord, Lord Greaves, is unwell. We would much prefer him to be present. We know that even when he is not present, his ingenuity in bringing forward amendments means that he will raise issues that we have already discussed and that we will have to have another go. We always welcome his interventions.
The noble Baroness, Lady Hamwee, rightly seeks to probe these areas. My understanding is that the term,
“whose area adjoins or is adjacent to”,
includes any area that partly adjoins or is adjacent to the marine plan area. The planning provisions in the Bill are written to ensure widespread consultation and liaison. Paragraph 1 of Schedule 6 continues this theme with a duty to notify a related planning authority, so it would be out of keeping if planning authorities were not notified because their areas were only partially related to the marine plan area.
Amendments 89BZF, 89BC and 89BF come to the nub of the point that the noble Baroness made about the requirement to notify other planning authorities from the ones that adjoin or are adjacent to the marine plan area. She wants to change this to those that are “contiguous with” the marine plan area. My understanding is that an area that is contiguous is in contact with the marine plan area. We think that that is covered by the term “adjoining”. My understanding is the word “adjacent” includes areas that may not exactly touch the marine plan area but are close to it. It is a wider definition, which would include notifying more related planning authorities. But there must be circumstances where it is right so to do. I hope that I have reassured the noble Baroness on that wording.
The noble Lord, Lord Wallace, is right with his Amendment 89BA. He spotted defective drafting in this area because, as drafted, the Bill does not make the same provisions for notification of Scottish terrestrial planning bodies. More importantly, paragraph 3 of Schedule 6, which requires marine plan authorities to,
“take all reasonable steps to secure”,
compatibility of their plans with these terrestrial development plans, also lacks a reference to Scottish development plans.
We agree that this needs to be rectified, which we have done by reference to the relevant terrestrial planning legislation, as we have done in relation to English and Welsh plans. This will ensure that the notification and compatibility duties automatically adjust to any future changes to the Scottish terrestrial planning system or to local planning authority names or boundaries.
On a more general issue, the noble Duke asked whether the Government’s thinking has moved on since we debated the Severn and the relationship between England and Wales. The blunt answer is that our thinking has not moved on, although I acknowledge that we had an interesting debate when we exposed some of the challenges of ensuring that, in what we have all already agreed is a complex situation, ultimately we get an integrated approach. I am sure that is the aim of all Members of the Committee.
However, the issue is that we have to do this within the context of the devolution settlement. For instance, in our debate two weeks ago, we had an amendment designed to enable joint planning and a joint plan to be produced between two Administrations. Because of the different legal systems, particularly in relation to Scotland and the devolution arrangements, it is very difficult to have such a joint system. But of course we would very much encourage neighbouring plan authorities to co-ordinate planning timetables and make arrangements for collaborative working. Obviously, that would clearly help users of the sea, lovers of the sea and all those with an interest.
Ultimately, we are dependent on the Administrations making this work together. We think that there are enough incentives to enable that to happen. I would go back to the discussions in the summer and autumn of last year. Because of the intent expressed by all the Administrations, I am optimistic that they can see it is in everyone’s best interest that we work together. But we have to work within the devolution settlement, which makes it difficult to accede to the intent behind the amendment that we discussed two weeks ago about having a joint plan between the two Administrations.
On my amendments, the Minister seemed almost to be saying that one would recognise an area that is adjacent but not adjoining when one sees it. Would I be right in thinking that what is important is the context and the requirement for consultation and working with the relevant authorities, taking account of relevant plans and policies, rather than the detail of the definition? I am sorry to labour the point but someone at some time will say, “Well Parliament meant”, and it would be nice to know what we do mean.
I think that the noble Baroness is inviting me to say that this is a common sense approach and I endorse that.
Amendment 89BZB agreed.
Amendments 89BZC and 89BZD
89BZC: Schedule 6, page 230, line 12, leave out from “region” to first “the” in line 13 and insert “adjoins or is adjacent to”
89BZD: Schedule 6, page 230, line 14, leave out paragraph (d)
Amendments 89BZC and 89BZD agreed.
Amendments 89BZE to 89BC not moved.
Amendments 89BB and 89BC not moved.
89BD: Schedule 6, page 230, line 21, leave out sub-paragraph (3)
Amendment 89BD agreed.
Amendments 89BE and 89BF not moved.
Amendments 89BG to 89BN
89BG: Schedule 6, page 230, leave out lines 28 and 29 and insert—
““local planning authority” means an authority which is—
(a) a local planning authority for the purposes of Part 2 of the Planning and Compulsory Purchase Act 2004 (c. 5) (see section 37 of that Act), or(b) a planning authority for the purposes of the Town and Country Planning (Scotland) Act 1997 (c. 8) (see section 1 of that Act);”
89BH: Schedule 6, page 230, line 31, leave out “that Act” and insert “the Planning and Compulsory Purchase Act 2004 (c. 5)”
89BJ: Schedule 6, page 231, line 11, leave out “or Wales” and insert “, Wales or Scotland”
89BK: Schedule 6, page 231, line 13, leave out sub-paragraph (3) and insert—
“( ) For the purposes of this paragraph, one area is “related to” another if one or more of the following conditions is met—
(a) the one area adjoins or is adjacent to the other;(b) the one area lies wholly or partly within the other;(c) the whole or any part of the one area affects or is affected by the whole or any part of the other.”
89BL: Schedule 6, page 231, line 15, leave out sub-paragraph (4) and insert—
“( ) In the case of an area in England or Scotland, the “relevant Planning Act plan” is the development plan.
( ) In the case of an area in Wales, each of the following is a “relevant Planning Act plan”—
(a) the development plan;(b) the Wales Spatial Plan.”
89BM: Schedule 6, page 231, leave out lines 19 and 20 and insert—
(a) in the case of an area in England or Wales, is to be read in accordance with section 38(2) to (4) of the Planning and Compulsory Purchase Act 2004 (c. 5);(b) in the case of an area in Scotland, is to be read in accordance with section 24 of the Town and Country Planning (Scotland) Act 1997 (c. 8);”
89BN: Schedule 6, page 231, line 22, leave out “that Act” and insert “the Planning and Compulsory Purchase Act 2004 (c. 5)”
Amendments 89BG to 89BN agreed.
Amendments 89C and 89CA not moved.
Amendments 89CB and 89CC
89CB: Schedule 6, page 232, line 4, leave out “by, or”
89CC: Schedule 6, page 232, line 25, at beginning insert “the consideration of representations under paragraph 12 and”
Amendments 89CB and 89CC agreed.
Amendments 89D to 89FZA not moved.
89FZB: Schedule 6, page 233, line 8, leave out “by, or”
Amendment 89FZB agreed.
Amendments 89FA to 89HA not moved.
89HB: Schedule 6, page 234, line 25, leave out “by, or”
Amendment 89HB agreed.
Amendment 89HC not moved.
89J: Schedule 6, page 235, line 3, leave out “consider appointing” and insert “appoint”
Amendment 89J deals with whether there should be a mandatory independent investigation of all marine plans. Like others before it, this amendment has been suggested to us by the Wildlife and Countryside Link coalition. The Government’s response to the pre-legislative—
I am sorry to intervene but there is a group starting with Amendment 89HC, 89JZAA and 90ZB. I want to clarify that we have not zoomed by that unintentionally.
The next amendment on the groupings would have been under Amendment 89JZB, which is why I hesitated.
So, we are now debating Amendments 89J, 89JZA and 89JZC.
The information about amendments which were not to be moved was, I hoped, circulated earlier—otherwise the order of the groupings is a little confusing. Following the pre-legislative scrutiny of the Bill, the Government have improved the paragraph regarding independent investigation, but it is still discretionary and not mandatory, as is the case for the equivalent public examination of terrestrial planning. I understand that there is a concern that to have a mandatory arrangement would be too heavy and bureaucratic, but experience suggests that EIPs need not, and often do not, take long. My own experience of the EIP process on the London Plan was that it was a useful process. It took seven weeks, but given the size and complexity of London, that is not so very much time. Most importantly, it enabled all those with an interest—interest groups, statutory bodies and landholders—to become involved in an inclusive and participative but not overly bureaucratic process. Moreover, it was able to test the soundness of the plan’s evidence base and policies.
Amendment 89JZA is consequential on Amendment 89J, while Amendment 89JZC in the name of my noble friend Lady Miller of Chilthorne Domer would require the authority to have regard to the representations made during the process. I beg to move.
The noble Baroness, Lady Hamwee, raises interesting points in these amendments, for which I have much sympathy and cautiously extend my support. As she acknowledged, they come from the Wildlife and Countryside Link, a consortium of nature conservation groups.
As it stands, the Bill requires only that a marine planning authority,
“must consider appointing an independent person to investigate proposals contained in”,
a consultation draft. Can the Minister expand on when he thinks it might be necessary to have an independent body carry out an investigation? If the clause is flexible enough to allow the marine plan authority only to “consider” appointing, there must be a line between the times when this would be advisable and those when it would not. Who will be the adjudicator of that arbitrary line? Will it be crossed if the proposals in the draft are more controversial, politically sensitive or hard-hitting than usual, or if they cost more money? I would appreciate some clarification.
We are also nervous of clogging up marine planning with yet more bureaucracy and paper. Perhaps the Minister can also expand on how he sees the process working. Will there be any guidelines on how an investigation should be structured, and how often will this process be necessary?
The noble Baroness raises the question of whether every marine plan should be subject to independent scrutiny before it is adopted and what regard the Secretary of State should have to the recommendations arising from such scrutiny in deciding whether to give his agreement to the adoption of a devolved marine plan.
I shall deal first with Amendments 89J and 89JZA to paragraph 13 of Schedule 6. As currently drafted, this paragraph requires a marine plan authority to consider, after the public consultation and before adopting a plan, whether there is a need to appoint an independent investigator to investigate the proposed plan and report on it. In deciding whether to appoint an investigator, the marine plan authority must have regard to the various representations that people have made throughout the preparation of the plan and the public consultation. The noble Lord, Lord Taylor, invites me to be very specific about when such a power should be used. However, I am going to resist that and say to him that the guiding principle is that it is intended to be used to resolve any issues that remain outstanding after the public consultation. Our aim is to ensure that the plans prepared have the support of the local community as well as the various industries, interest groups and regulators who, in one way or another, will be using the plan or subject to it. It is clearly in everyone’s interest to ensure that issues are resolved and consensus reached wherever possible. It will inevitably not be possible to please all of the interests all of the time and that is where an independent viewpoint might be helpful.
We have learnt from the examination in public process recently carried out in relation to regional spatial strategies under the Planning and Compulsory Purchase Act 2004. But there is a distinction, to which the noble Baroness fairly referred in her opening remarks, in that the marine environment is not the same as the land. A slightly different approach is justified, building on the best aspects of examination in public while recognising the different interests and issues that arise at sea. We have therefore put in place a mechanism to allow independent scrutiny, but we do not think that it is appropriate to make it mandatory for every plan.
The reason we do not believe it should be mandatory comes down to a point which the noble Lord, Lord Taylor, raised in his interesting comments about avoiding bureaucratic processes, a point which I well understand. In the debate on the planning Act, which I joined at a late stage, one could see that part of the legislation’s purpose was to address the frustrations felt by many with the past planning system. The point is that having an automatic inquiry would mean that there would be less incentive to reach a common position throughout the development of the plan. Two key themes have emerged from our debates on the Bill so far. First, lots of different interests are concerned about the marine environment. Secondly, to make it work we need people to work together. We therefore want to provide incentives throughout the Bill to encourage people to work together. We want people to engage actively in the planning process and to consider and resolve issues not only with the planning authority but with each other throughout in reaching a common agreement.
The interests likely to be affected at sea are rather different from those found on land. There are fewer personal and private property rights and more potential conflicts of principle about how best to manage, conserve or exploit our marine resources. We believe that the lower number of private property rights will reduce the need for an automatic independent inquiry. People will also have the opportunity via participation in the preparation of the marine policy statement to shape the Government's direction on these matters of principle, which will then be fed down into the marine plans.
We have also discussed why it may not be appropriate to plan in depth for all areas of the sea. Some areas are far less busy than others. It would not seem the best use of public resources to require an independent scrutiny if in practice there was no need for one. This approach also allows flexibility, so that the independent scrutiny process is proportionate to the issues raised. The noble Lord, Lord Taylor, raised a point on regulation. I say to him that we want a proportionate approach to how we do it.
Of course people feel very strongly about the sea and the coast, particularly those for whom the sea provides their livelihood. We want to hear what they have to say. A plan which does not have the support of the local community, industry and interest groups is likely to be challenged, and this will make it harder for decision-makers and investors to rely on it. The short answer to the major questions raised is that we would commission an independent investigation wherever there are substantial unresolved issues, and where it can add value. If that were the case with every plan, the Bill would enable us to appoint an independent person.
Amendment 89JZC seeks to amend paragraph 15(2) of Schedule 6. This amendment could place the Secretary of State in a rather difficult position. I should like to explain a little more about why we have required the Secretary of State’s agreement to the adoption of devolved marine plans, although I realise that we shall debate this in relation to later amendments.
The purpose of requiring the Secretary of State to agree to the adoption of devolved marine plans is to ensure that non-devolved policies and functions are appropriately represented and protected in those plans. This final agreement should be a formality since we expect and indeed have every confidence that the devolved plan authorities will work closely with the Secretary of State and the UK Government throughout the planning process to ensure that we are content with their proposals. Following the agreement last autumn under the auspices of the joint ministerial committee, there are also a number of other fixed points during the planning process at which the Secretary of State must give his agreement, including before the publication of the statement of public participation and before the publication of the draft plan for public consultation, to minimise the chance of the Secretary of State being forced to veto a devolved plan because of its potential effect on “retained” functions. We have also agreed between Administrations our wish to work constructively together and to produce an agreed MPS and plans.
The purpose of the Secretary of State’s agreement is not to reopen the plan to further representations once the marine plan authority is ready to adopt it. As I said, Amendment 89JZC could oblige the Secretary of State to consider the representations made by another person in addition to those made by the independent inspector—perhaps representations made by someone who did not agree with the inspector’s recommendations—leaving the Secretary of State to choose between the views of that person or the independent investigator even if the inspector’s report recommended that the draft plan was satisfactory. We do not think that that amendment would make the process of developing and adopting a marine plan any more transparent or inclusive. Where an independent investigator has endorsed a plan, or where his recommendations have been addressed by the plan authority, we would expect the Secretary of State to give his agreement to that plan, as long as he was content with its effect on matters which are not devolved to the plan authority.
Paragraphs 12 and 14 of Schedule 6 require the plan authority to give careful consideration to any representations made about the plan during its preparation and the public consultation as well as those made by an independent investigation, where this has taken place. If it chooses not to implement those recommendations, it is also required by paragraph 15 to give its reasons for that decision. We should not ask the Secretary of State to second-guess the investigator.
I hope that I have reassured noble Lords that there are positive reasons for there not being an automatic investigation and that the whole effort is to try to reach consensus. However, where it is not possible to reach consensus on serious matters, it is entirely appropriate for an investigation to be triggered at that stage.
In the earlier part of that very full response, for which we are grateful, the Minister clearly stated that many people will have an interest in these plans, which I accept, and that the ambition is to work together, which we all accept. However, I was slightly worried by his mention of fewer people having personal and private property rights. I hope that he was in no way implying that because just a few people are involved, their case will not be heard fully. He is shaking his head. I wanted to clarify that.
The noble Baroness is right to raise the point. I was saying that because there will be fewer people with property rights, the independent examination process is less likely to come into play. I was drawing a comparison between the situation in the marine area and that referred to by the noble Baroness, Lady Hamwee, which is the examination in public process under the Planning and Compulsory Purchase Act 2004. The noble Baroness, Lady Byford, is right to say that nothing that I have said should imply that persons with private property would not have the right to be heard.
I have no difficulty with that. Clearly if there are fewer people involved, unlike on land, obviously one person will be speaking on his own behalf rather than a group of people speaking for a local community. I am anxious that the Bill should clarify that that person’s views would be heard in the normal way, and that his rights should be exactly the same as if it were a multiple response to the plan.
I am grateful to the Minister for his long response, and will leave it to my noble friend Lady Miller to consider his comments on her Amendment 89JZC.
With regard to my two amendments I am a little puzzled. The Minister started by explaining that there were likely to be fewer outstanding issues when dealing with marine plans, but one of the difficulties is knowing whether there are outstanding issues. I take the point that allowing people to be involved in something that is equivalent to an examination in public helps to reconcile those who may not be satisfied with the substance or at any rate the process, because they feel that they have been given a fair hearing. One sees that from planning development control applications upwards. There is value in thrashing out matters of principle as well as private property rights in this sort of forum. He talked, too, about there being less incentive to reach consensus if there is an independent investigation. I confess that I do not follow that. The only incentive would be on the Government. I cannot see that there would be an incentive on others.
We all recognise that a lot of different interests will come to the fore in the development of any marine plan. The intention is that the process will allow for widespread engagement of those with an interest as the plan is developed. The marine plan authority has to have regard to various representations made throughout the preparation of the plan and the public consultation. That is all there to be done. For that reason I should have thought it a perfectly sensible proposition that the aim all along is to reach a strong consensus.
If the participants know that whatever work is done to achieve a consensus it then has to go through another process of an independent examination, it might lead to their not working quite so hard to achieve consensus. As I said, the construct of the Bill is an attempt to encourage consensus. If it turned out, alas, in the preparation of each plan, however many are developed, that consensus had failed to be reached on strong, substantial issues in each of them, the Bill allows for an independent examination to take place.
I have long thought that those of us involved in politics should have a better training in psychology. I apply that to myself. I understand what the Minister is saying, but the difficulty is that the final decision on whether there should be an independent investigation lies with one side in this argument. That is why I object to it being a discretionary matter.
I make one final comment: EIPs do not need to labour long and tediously over particular items. There is now a well worked-out process for sorting out procedure for pre-hearing work to reduce the amount of time spent in public and sort things out beforehand. I see no reason why that could not also apply in the case of a marine plan. I have spent long enough on this. I will consider what the Minister has had to say and beg leave to withdraw the amendment.
Amendment 89J withdrawn.
Amendment 89JZA not moved.
Amendment 89JZAA not moved.
89JZB: Schedule 6, page 235, line 31, leave out sub-paragraph (2)
I will be brief. Amendment 89JZB would leave out paragraph 15(2) in Schedule 6. I did not move my other amendments that deal with the role of the Secretary of State. I realised when I re-read them in preparation for today that I have been rather too affected—or possibly infected—by the Local Democracy, Economic Development and Construction Bill, with which I am involved at the moment and where there is considerable temptation to react against the intervention of the Secretary of State. That is not quite the same here. However, I have retained Amendment 89JZB because, as I read it, the Secretary of State would have a veto over all other marine plan authorities in the adoption of a marine plan. I may have misunderstood some link in the process, which means that it is logical for the Secretary of State to have this veto. However, if it is not a matter of logic but of giving the Secretary of State a power that he would not otherwise have had during the process, I am concerned about the paragraph. I beg to move.
I am interested to see this amendment, moved by the noble Baroness, Lady Hamwee, but if I understand it rightly the Secretary of State’s powers would exist only in matters that relate to retained functions. He might not be able to veto the whole Bill. I would be interested to hear what the Minister has to say. I am afraid that, speaking from this Dispatch Box, I cannot agree with the noble Baroness that the Secretary of State does not need to give agreement to plans relating to retained functions. As we have spent some time discussing already, this Bill potentially devolves enormous powers. These are mainly executive powers, although there is still the question of whether some legislative power might be needed. The consequences of establishing this complex network of powers over the UK marine area are still uncertain.
Of course, we hope that a sensible method of consultation will be established and maintained, as it is at the moment, and that progress will be made relatively smoothly. However, removing the ability of the Secretary of State to check on decisions affecting retained functions does not seem to be the best way to ensure this. Can the Minister explain to the Committee how a marine plan authority could have any reason for making provisions relating to retained functions? Presumably this would not be to the extent of exercising retained functions. That is surely beyond the powers that even a Secretary of State enjoys under the current legislation. There are clauses in the Bill that perhaps require consideration.
I am grateful to the noble Baroness for the amendment, in which she seeks to clarify certain aspects of the settlement and agreement that we reached with the devolved Administrations. As she indicated, clarity on these matters is of help, and I am grateful to the noble Duke, the Duke of Montrose, for identifying which areas need to be clarified.
The trouble with the amendment is that it strikes at the heart of the settlement that we have reached with the devolved Administrations for marine planning. We have made available a briefing note and a dedicated session on devolution in relation to this Bill. Noble Lords have been seeking reassurance that new functions have not been legislatively devolved under this Bill; I assure the Committee that they have not. Rather, we have between us agreed a form of executive devolution. This recognises that, while the real benefits of marine planning are achieved only if authorities plan for all activities in the marine environment, it is important that such plans are agreed between Administrations so that we can feel comfortable that important matters, such as UK interests in oil and gas, shipping and defence, are protected.
Under the Bill, the devolved Administrations become the planning authority for the relevant offshore region. They may prepare plans which affect both devolved and non-devolved matters. We believe that it would be almost impossible to plan in respect of devolved matters, predominantly fisheries, some nature conservation functions, renewable energy, and so on, without in some way also affecting retained matters, such as oil and gas exploration and exploitation, defence and shipping. It is because of the complex mix of devolved and reserved or non-devolved matters in the offshore areas that all plans for the offshore areas must be agreed by the Secretary of State before adoption by the marine plan authority, which is exactly the point made so effectively by the noble Duke, the Duke of Montrose.
Similarly, this must also apply to a Welsh plan for the Welsh inshore region if it covers retained functions. This is to ensure appropriate protection for reserved or non-devolved functions, defined in the Bill as retained functions, in the offshore area. This requirement for the Secretary of State to agree all offshore plans and any Welsh inshore plans that relate to non-devolved matters is an important condition of the devolution package for this Bill, which was agreed by the Joint Ministerial Committee across all four Administrations last summer and autumn. It is an approach supported by the devolved Administrations as a way of agreeing to work together for the good of all of us across the UK seas.
I accept that the noble Baroness, Lady Hamwee, approached this position with some element of scepticism; she wanted to be absolutely sure that we are not proceeding with the Bill except on the basis of an agreed position with the devolved Administrations. I assure her on that point, and I therefore hope that she will feel some confidence in withdrawing the amendment.
There is one point about which I still feel a little uneasy. We have reserved matters in the offshore area, particularly the Northern Irish and Scottish offshore areas, over oil, gas and, as I mentioned, coal. If the United Kingdom Administration wished to see some of these elements developed, we are saying that at the moment the devolved Administrations could put a stop to these things through refusing planning. Perhaps the fact that it is checked by the Secretary of State might overcome that, but it is an area that would have to be watched very carefully. It is very easy to say that planning is devolved totally to the peripheral Administrations, and they could prove to put a total stop to any exploitation of the matters that are retained.
We would be in a parlous state indeed if we reached that position. That is why we have built in, throughout the process set out in Schedule 6, specific points at which the Secretary of State must sign off the devolved plan authority’s statement of public participation and the consultation draft of the plan to ensure that the Secretary of State is happy with the direction that the plan preparation is taking. This will avoid any misunderstandings or last-minute disagreements that could jeopardise the adoption of the plan and lead to exactly the situation feared by the noble Duke, the Duke of Montrose. We are proceeding through the development of the plan in terms of the Secretary of State’s necessary information and participation, so that we can create the framework which will obviate the noble Duke’s anxiety and will, I hope, reassure the noble Baroness with regard to her amendment.
I am grateful for that explanation. I would like to make it clear that my aim is not to disturb the devolution settlement, but to support devolution as much as possible. That is why I approached this paragraph with what the noble Lord described as scepticism—that is not unfair, actually. As he has confirmed, agreement is required even though more than the retained matters will be the subject of the plan. I am grateful for the material which the Government have given as regards the patchwork quilt of powers, and I will further consider what the Minister has said. I beg leave to withdraw the amendment.
Amendment 89JZB withdrawn.
Amendment 89JZC not moved.
89JZD: Schedule 6, page 235, line 34, leave out “relate” and insert “include provision relating”
I also have three other government amendments in this group—two to Schedule 6 and two to Clause 57. They are all minor and technical in nature, but they are necessary to improve the clarity of the drafting.
Amendment 89JZD provides clarification to paragraph 15 of Schedule 6 that the agreement of the Secretary of State is necessary only for a Welsh plan for the Welsh inshore region which makes provisions relating to retained functions. We included this provision to ensure that the existing devolution arrangements should not be curtailed by this Bill by the need for the Secretary of State to agree plans which cover only devolved matters.
Amendment 89JB is a minor and technical amendment that corrects an incorrect reference we made in paragraph 15(6) of Schedule 6. This deals with the adoption and publication of a marine plan. The Bill refers to the “policy authority” deciding what modifications to the proposals are needed before the final plan becomes adopted. This should read the “marine plan authority” instead.
Amendment 94ZA makes a small change to Clause 57(3), to replace the use of a marine policy document “in force” in the marine plan area with “which is in effect” instead. The reason simply is to ensure consistency in terminology throughout this part of the Bill.
Amendment 94ZB would remove from Clause 57(5)(e) the surplus words,
“and has not withdrawn from it.”
This relates to the effect of the marine policy statement on decisions. These words are unnecessary because the definition of “adopted” in this clause already includes a reference to the effect of withdrawal from the MPS.
Amendment 89JZD agreed.
89JA: Schedule 6, page 235, line 34, at end insert “or a marine plan for the Scottish offshore region to the extent that it does not relate to retained functions”
The amendments are essentially probing and follow on, in the first respect, from the recent debate about the power of the Secretary of State to approve plans—or not—and that being very much part of the devolved settlement that has been agreed.
Amendment 89JA relates to plans being adopted only with the agreement of the Secretary of State, but seeks to put on a par with the case of a marine plan for the Welsh inshore region—Secretary of State approval does not apply if the plan does not relate to retained functions—
“a marine plan for the Scottish offshore region to the extent that it does not relate to retained functions”.
Fisheries were executively devolved to Scottish Ministers subsequent to the Scotland Act. I would welcome the Minister’s clarification that there were no other non-devolved functions in respect of the Scottish offshore region; and that, if a plan under this part of the Act relates to fisheries, the approval of the Secretary of State would still be required as regards any plan for the Scottish offshore region. If that is the case, it is almost re-reserving to a limited extent. The Minister may argue that it is part of the settlement, but it is important that that be clarified.
Amendment 94A is to Clause 57—we are going slightly ahead of ourselves, but the amendment is in this group—where a marine plan for an area in a devolved marine planning region has to have a statement under Clause 49(7) that it contains provisions relating to a retained function. For the purposes of the part of the Act, subsection (7) states that,
“as respects the Scottish inshore region or the Scottish offshore region, functions relating to reserved matters, within the meaning of the Scotland Act 1998”,
are to be defined as “retained functions”. Put simply, the amendment probes what functions relate to reserved matters and are exercised within the Scottish inshore region. I am sure that the Minister will be able to give us a list of those. If there are none the words will appear redundant but, if there are functions, who will be responsible for dealing with them in the plan for the Scottish inshore region? Will that matter, albeit it concerns “retained functions”, be dealt with by Scottish Ministers subject to the approval of the Secretary of State? Again, I seek clarification from the Minister as to what is covered by “retained functions” in the Scottish inshore region.
The final three amendments, which relate to each other, are about the documentation and possible challenges to it in the courts. As I read Clause 59, an application may be made to the Court of Session or the High Court in respect of a document for a marine plan for an area outwith the English inshore region or the Welsh inshore region. If it is a matter relating to the Scottish offshore region, it appears that it can be raised in the High Court. Vice versa, if it relates to the English offshore region, it could be raised and litigated on in the Court of Session. This amendment would give the Court of Session exclusive jurisdiction over matters arising out of a challenge to a relevant document pertaining to the Scottish offshore region; in other circumstances, it would be the High Court. Where you have the geographical division, it seems natural to have the appropriate division of court jurisdiction as well. Maybe I have misread the Bill, but it did not seem that way. If it has to be the case that a matter relating to the Scottish offshore region could be raised in the High Court or vice versa, it would be interesting to know the ministerial justification.
I thank the noble Lord, Lord Wallace of Tankerness, for explaining his amendments. I was waiting with interest to hear him explain about the different courts and their jurisdictions in different areas. Can the noble Lord explain how there can be a difference in the treatment of reserved functions between inshore and offshore areas? This subject has interested me greatly since we started debating the Bill. The Minister will probably confirm that there are already more devolved powers in the offshore area than the noble Lord, Lord Wallace, has spoken of, because powers were devolved under the Electricity Act. This means that all renewable energy in the offshore area, as well as all electricity generation, including all transmission lines and interconnectors, are devolved—so if the Scots wish to keep all their electricity to themselves, they could almost cut it off at the border. We would like to hear the Minister’s reply on this matter.
I do not want to spoil the party. This amendment refers directly to the Scottish situation, but also to retained functions. The plan is to put the Scottish offshore region on a par with the Welsh inshore region. The Government of Wales Act 2006 is unsatisfactory in many respects where it concerns legislative competence. I seek further clarification. The Minister has already dealt with some points concerning the powers of the Secretary of State. I agree with what my noble friend is attempting to do with the amendment as it relates to Scotland. With regard to the publication of a marine plan, it does not relate to retained functions as far as Wales is concerned. It is obvious that the Welsh offshore plan does not fall within the devolved functions of the Welsh Assembly. Paragraph 15(2) of Schedule 6, which has been discussed previously, relates to the powers of the Secretary of State. Sub-paragraph (3) states:
“Sub-paragraph (2) does not apply in the case of a marine plan for the Welsh inshore region if the plan does not relate to retained functions”.
That solidifies the situation. However, the Welsh Assembly Government are bound to be concerned about the situation in the Welsh offshore region. Should they produce an offshore plan, which they may not have the competence to do—I would like the Minister to clarify that—could the Secretary of State veto it?
There are many environmental problems in the Irish Sea. One principle of the Government of Wales Act 1998 was sustainable biodiversity. This is a major statement in the Act. However, what would happen if a large infrastructure project was imminent, or serious inroads were threatened into the viability and sustainability of offshore fisheries? Although the Welsh Assembly has considerable powers in that area, what would happen if the environmental sustainability of the Welsh offshore region were put at risk? If the Welsh Assembly Government attempted to put this right by means of a marine plan for the offshore region, could that be done?
I am grateful to noble Lords who have spoken in this short debate. I have been handed a most useful summary of the various powers which are proposed in this legislation and which exist under other legislation. It is a graphic and valuable illustration, which I shall make available to noble Lords as soon as possible. Had I had the sense to show it to Members of the Committee earlier, I might not have been involved in such intricacies on these amendments. It will clarify the issues greatly. I cannot possibly read it out as it would take an inordinate length of time and I am not sure I could make complete sense of it as it is in columns. However, I shall ensure that it is circulated to all noble Lords who are interested in the Bill. It will be invaluable in understanding where we are now and will also help to clarify the situation for a future discussion on these important and complex issues.
These amendments are interesting. We learnt from our previous discussions that this is a complex area of the Bill and a complex area generally. That is reflected in the drafting of this part of the Bill. It may be helpful if I set out how the devolution agreement works for marine planning in the Scottish inshore and offshore regions. There are two issues to be considered: first, the effect of the MPS on marine plans and, secondly, its effect on decisions. If Scottish Ministers adopt the marine policy statement, with the agreement of the Secretary of State—an issue which we discussed earlier—they will be able to prepare comprehensive marine plans for the Scottish offshore region. Those plans must be in conformity with the marine policy statement, unless relevant considerations apply, and will be able to address matters which are devolved to Scotland, such as fisheries, renewable energy generation and some nature conservation functions, as well as matters which are reserved by the UK Parliament. This is obviously our preferred option, towards which both Administrations are committed to working.
That is how the authorities should work together in the future. However, if, for any reason, Scottish Ministers do not adopt the marine policy statement, or if they decide at some stage to withdraw from it, their decisions and those of public authorities in Scotland which relate to devolved functions will not be bound by it. If they do not adopt the marine policy statement or withdraw from it, Scottish Ministers will be able to prepare marine plans only in respect of matters which are devolved to Scotland. I am sure that the Committee recognises the logic of that. Given the complex mix of devolved and reserved functions in the Scottish offshore region, the joint ministerial committee, to which I have made reference earlier, agrees that all plans for the Scottish offshore region should be subject to agreement by the Secretary of State whether or not they expressly make provision for functions which are not devolved.
I reiterate that even if the Scottish Ministers do not adopt the marine policy statement, it will still apply to both the inshore and offshore regions in respect of all decisions in relation to functions which are not devolved. In other words, in the Bill the retained functions are defined in Clause 57.
Separately, Scottish Ministers are preparing a Scottish marine Bill which will include provision for marine planning in the Scottish inshore region. As their recent consultation document on the proposals for a Scottish marine Bill says:
“To apply marine planning provisions to reserved matters in these waters, the agreement of the UK Government would be needed”.
We are already in discussion with our Scottish colleagues to agree a mechanism that will enable the UK Government to signal our consent to these plans, so that both Administrations can enjoy the benefits of comprehensive marine planning for the Scottish inshore region. As I said earlier, the marine policy statement will apply to reserved matters throughout the UK marine area, including the Scottish inshore region, and we would expect any plan prepared under a Scottish Marine Bill that seeks to address reserved functions to conform to that policy statement.
I must thank the Minister for the full and useful explanation he has been giving on some of the matters that have exercised us for some time. I wonder whether that wonderful piece of paper that he has makes it clear that one devolved matter, the Food and Environment Protection Act, is still a major part of the functions that will exist. The Scottish Executive currently use that—certainly in the Scottish inshore area, and I think it applies in the Scottish offshore area.
The answer is yes, and that is without consulting my magic document. I believe that this will also help with such issues.
Amendment 89JA would allow Scottish Ministers to plan for the Scottish offshore region for devolved functions without the need for the agreement of the Secretary of State. That would extend the provision already made in respect of plans prepared by Welsh Ministers for devolved matters only in the Welsh inshore region. It may help if I explain why that provision for Welsh plans is there. Unlike in Scotland and Northern Ireland, its Assembly cannot legislate for marine planning in its inshore region, so we have made provision for Welsh inshore planning in the Bill. However, under current devolution arrangements, Welsh Ministers have existing powers in the Welsh inshore region—particularly in relation to protecting the marine environment—which they currently exercise without the agreement of the Secretary of State. We have therefore included this provision to ensure that the existing devolution arrangements should not be curtailed by this Bill by a need for the Secretary of State to agree plans which cover only devolved matters—to leave the status quo.
Regarding the noble Lord’s amendment, the position of the Scottish offshore region is different. It is not part of devolved Scotland, and although Scottish Ministers have significant functions in that region, they are by no means comprehensive. The Scottish offshore region comprises a significant part of the UK marine area, and the UK, rather than the Scottish Executive, retains many key functions in the area, including those relating to international relations with other countries that share borders with that region.
The second of these amendments, Amendment 94A, would remove the definition of “retained functions” as applied to “the Scottish inshore region”. We consider that that could damage the effect of the marine policy statement in that region by creating uncertainty over the decisions to which it should apply. As I explained earlier, if the Scottish Ministers adopt the MPS, it will apply to all decisions relating to the Scottish inshore region. If they do not, it will still apply to retained or reserved functions, so removing that definition would make it unclear which functions these are and threaten most the functions that are reserved to this Parliament. I understood that the noble Lord prefaced his remarks by saying this was a probing amendment. I hope it has probed a satisfactory enough reply from me for him to feel happy to withdraw it.
The remaining amendments, Amendments 97A, 97B and 97C, refer to Clause 59, which sets out how any person may challenge the content of the marine policy statement or marine plans in a court of law. They specifically deal with which court should be applied to. The noble Duke, the Duke of Montrose, expressed his keen interest in this matter. It will be possible to appeal against a published marine policy statement or an adopted plan. Clause 59 provides that any person aggrieved by one of these documents or by a revision or replacement will be able to apply to the relevant court on the grounds that the document is not within the appropriate power or that a procedural requirement has not been complied with.
The amendments limit the courts to which applicants could bring a case. For example, for matters relating to plans in inshore areas in England and Wales, the appropriate court will be the High Court, but the marine policy statement and plans for the English, Welsh, Northern Irish and Scottish offshore areas may affect a wide range of interests in those areas. It is appropriate to allow for an application challenging the marine policy statement or a marine plan for part of the offshore region to be heard in the High Court or the Court of Session. Applicants can also challenge the marine policy statement in any superior court, and we are concerned that the effect of Amendment 97B would be to remove the provision relating to where applications challenging the marine policy statement should be brought. That is why we cannot accept it, because it puts at risk the protection of UK interests in the Scottish offshore region, which are extensive, and the basis on which we have agreed the Bill in our discussions with the devolved Administrations.
I am trying to find what part of the amendment the Minister finds objectionable or would cut off the right of appeal. Is he saying that the Scottish Government have assented to a body, perhaps an oil company, wishing to challenge a provision relating to the marine plan for the Scottish offshore region doing so in the High Court in London as opposed to the Court of Session in Edinburgh? Does he not think that it is logical that if a matter relates to an area in Scottish jurisdiction for other purposes, it should fall to a court of the Scottish jurisdiction, not the High Court, and vice versa?
I indicated that an application challenging the MPS or the marine plan for the offshore region could be heard in the High Court or the Court of Session. I hear what the noble Lord says about the other matters, but he will recognise the wider interests involved in that issue. I assure him that we have framed the Bill on the basis of discussions with the devolved Administrations, and they have looked at this matter with the greatest care, as he would expect. These clauses, which revolve around the powers and the legal basis on which they can be challenged, are part of the agreement that we have reached with the Administrations.
The noble Lord, Lord Wallace, raised the complex main issues in his speech and in his amendments. The noble Lord, Lord Livsey, asked me about the Welsh offshore position with regard to the environment. We have not agreed to devolve offshore nature conservation executively but Welsh Ministers will be able to influence inshore conservation provisions through the marine policy statement and the marine plan, which can cover nature conservation with our consent. Authorities exercising functions in their region must consult and apply the marine policy statement—the noble Lord will recognise the overarching significance of that—but the point he raised is that Welsh Ministers will be able to influence provisions through that statement.
The Committee will be grateful to the Minister for his reply and probably even more grateful when he circulates the paper with the list, which will be very helpful, although I understand that we might have been here for a long time had he tried to read it all on to the record. This debate has given us greater clarity as to who can do what, subject to what authority and subsequent approval, but I still have a concern about the offshore area for which Scottish Ministers currently have a responsibility. I mentioned fisheries and the noble Duke, the Duke of Montrose, quite rightly reminded us that renewable energy is a function as well. The Minister seemed to be saying that he did not want to upset the current devolutionary arrangements for the Welsh inshore area but that there was to be some trade-off for the Scottish offshore area. Given the totality of other matters for which Scottish Ministers do not currently have responsibility, the trade-off might be worth while. It would be useful to have that on the record so that we can make a judgment. Likewise, with regard to the Scottish inshore area, the Minister seemed to indicate that important current functions would be reserved but that they would have to be set out in any marine plan that was brought forward. I want to look at what the Minister said in detail, but it has been helpful in giving us clarification.
Before my noble friend withdraws his amendment, as I sense he is going to, I have a final point to make. At the end of his comments on what he described as his magic piece of paper, the Minister used the words “in conformity with”. When that piece of paper is circulated, it will be helpful if we know whether we are talking about general conformity or strict conformity. I appreciate that this is not precisely on the amendment that we are discussing, but if we are to understand—and we are groping our way towards it—what the relationships are, that is an important piece of information.
Given what the noble Baroness has said, I thank heaven that I did not read out the statement, but I will make sure that it is circulated and I will include the proviso that she has made.
I am grateful to my noble friend Lady Hamwee. I am sure that the distinction between “general conformity” and “strict conformity” comes into the realms of “adjacent” and whatever the other phrase was. Some can read more into that than I can, but I am sure that it is intended to be helpful.
My final point relates to the question of court jurisdiction. I want to think about this, because I believe that the pass is being sold here and may indeed have been sold by Scottish Ministers. My colleagues in the Scottish Parliament will be fascinated that Mr Salmond and others were quite happy to trade off the jurisdiction of the Court of Session, if that is indeed what has happened; it is what I thought the Minister said. If matters happen to fall territorially within Scotland, the application should be to the Court of Session; if they fall territorially within England’s offshore waters, they should fall to the High Court. Ultimately there will be an appeal to what, in time, will be the Supreme Court.
Is it clear in the noble Lord’s mind that the Scottish offshore area currently falls within the jurisdiction of the Scottish courts? Is this a change that is going to take place under this Bill?
Unless someone can tell me otherwise, the Scottish offshore area is, I think, within the jurisdiction of the Scottish courts. I recall from a previous existence that if, for example, a criminal offence occurs in Scotland on one of the offshore installations, it comes within the jurisdiction of the Sheriffdom of Grampian, Highlands and Islands or of the Scottish High Court. Following the tragedy of Piper Alpha, there was a fatal accident inquiry as well as the inquiry of the noble and learned Lord, Lord Cullen. That seemed to indicate that it was within the jurisdiction of the Scottish courts. With those comments and the possibility of revisiting the issue at a future time, I beg leave to withdraw the amendment.
Amendment 89JA withdrawn.
89JB: Schedule 6, page 236, line 3, leave out “policy” and insert “marine plan”
Amendment 89JB agreed.
Amendment 89K not moved.
Schedule 6, as amended, agreed.
Clause 50 agreed.
Clause 51 : Withdrawal of marine plan
Amendments 89KA and 89KB not moved.
Clause 51 agreed.
Clause 52 : Duty to keep relevant matters under review
89L: Clause 52, page 26, line 41, after “cultural” insert “, historic, archaeological”
In moving Amendment 89L, I shall also speak to Amendments 101BZAA, 106CB, 107A and 107D.
I have a general comment to make before I deal with the detail of the amendments. In a Bill as comprehensive and complex as this, it seems strange that the opportunity to include clear measures to improve the protection, management and enjoyment of our marine heritage has not been taken. I recognise from what the Minister has said on previous occasions that it may be argued that references to the marine heritage and the historic environment are implicit and that it may be pointed out that Clause 112(2), for example, refers to “historic or archaeological interest” in its definition of the environment, but there is insufficient clarity. I would have felt much happier if the amendment that my noble friend Lord Taylor proposed to Clause 2 earlier in Committee had been given a warmer welcome, as it would have made it clear early in the Bill that heritage and marine archaeology are within the scope of the Bill. This group of amendments was therefore tabled to ensure that our marine heritage is not overlooked in the delivery of the duties of marine management, whether we are talking about marine planning or marine licensing, and in the designation of marine conservation zones.
Amendment 89L would add “historic” and “archaeological” to the list of matters to be kept under review in Clause 52. As we already have a list, and as the Minister has said that such features will be taken into account in licensing, planning and so on, the amendment would ensure that equal weight was given to these features in considering policies on marine plan areas and would clearly distinguish them from more general social or cultural aspects.
Amendments 101BZAA and 107D underline a similar point and would give recognition to the special status of statutory consultees in determining licence applications and in the consultation prior to the designation of a marine conservation zone. When I refer to statutory consultees, I mean mainly English Heritage. There is concern that English Heritage, as an adviser to the Secretary of State for Culture, Media and Sport on the designation of historic wrecks under the 1973 Act, is not to be specifically consulted on proposals to designate an MCZ, which could have implications for its operations in relation to a designated wreck under the Act. The role of statutory consultees is very important in ensuring that decision-making is informed by independent and knowledgeable advice and that complete attention is given to all aspects of any proposal, subject to the decision of the Secretary of State. I believe that the Bill should differentiate between those bodies with a specific role and expertise and other generally interested persons to provide clarity and accountability in the decision-making process. As I have said, those comments apply equally to Amendments 101BZAA and 107D.
Amendment 106CB, which would insert the words “historic and cultural heritage” in Clause 114, would enable the designation of a marine conservation zone on historic and cultural heritage grounds. It would help to ensure the integrated management of all features subject to conservation. Provisions for including the historic environment as supporting features of marine protected areas were included in the Marine Bill Green Paper, which preceded this Bill. However, as it emerged, the Bill focuses on nature conservation as grounds for designating marine protected areas, as they were referred to in the Green Paper—they have now been renamed “marine conservation zones”—without any reference to the historic environment. The Bill should ensure that the historic environment is a factor in qualifying the interest of a location to be subject to marine protected area status. Such status would broaden the approach to management by ensuring that other activities that have the potential to impact marine archaeological resources are first assessed against the natural and historic conservation interests of the marine protected area.
Amendment 107A would insert the words “historic or archaeological”. I believe that it is important that the grounds for designation of MCZs take full account of all other features that are subject to statutory protection—again, the 1973 wrecks Act is an example—or that could be subject to protection, including any future legislation for historic and archaeological assets. If the MCZs do not do so, there could be conflict between their conservation objectives and the licensing of activities within them permitted by other legislation. In other words, there could be a recipe for confusion. As well as to protect our historic environment, we seek clarity and joined-up thinking.
At this stage, these are probing amendments. I hope that the Minister will give us reassurance and a warmer welcome to this aspect than he has previously. I also hope that he will accept that there is considerable interest among a wide range of individuals and relevant organisations in getting this right. We want to be helpful and, as I have said, to ensure co-ordinated management between natural and historic features of the Bill to avoid potential conflict. I beg to move.
I am pleased to follow the noble Baroness, Lady Hooper, who has so cogently introduced this group of amendments standing in her name as well as mine and other noble Lords in all parts of the House. Our purpose in tabling these amendments is to tighten up the language of the Bill, removing ambiguities and making it clear that the legislation is intended to protect the marine historic environment as well as the marine natural environment. I am grateful to the Minister, my noble friend Lord Hunt, for meeting the noble Baroness, Lady Hooper, and myself and for the helpful discussion we had about that general issue and about these amendments in particular.
Amendment 89L to Clause 52 clarifies that, in determining what are relevant matters for a marine plan authority to keep under review, the term cultural includes historic and archaeological. My noble friend may say, as has been said before in proceedings on this Bill, that the Government eschew lists which can be interpreted as excluding other matters that are not specifically included in them. I understand the force of that point generally, but it is not the point here. Here we are simply seeking elucidation of terms to clarify that the legislation is intended to protect the marine historic environment. If you were Neptune or Venus arising from the waves and reading the Bill as drafted for the first time, you would not be at all sure of that. The occasional references to cultural, historic and archaeological interest seem like an afterthought and not integral to the conception of the Bill.
Similarly Amendment 106CB amends Clause 114 to state forthrightly that an authority may designate a marine conservation zone for the purpose of conserving historic and cultural heritage. Without this amendment, it is by no means clear in the Bill that an authority could do so. Amendment 107A clarifies that the authority, in considering whether it is desirable to designate an area as a marine conservation zone, may have regard to the historic and archaeological consequences of doing so. Clause 114 as drafted as far as subsection (6) is exclusively concerned with the natural heritage. The addition in subsection (7) of permission to have regard to economic or social consequences of designation fails to indicate that the authority may also have regard to the consequences for the marine historic environment. The Bill should explicitly require a balanced concern for the various aspects of the environment, historic as well as natural. The Bill should also point the way towards reconciling the tensions that there could sometimes be between the needs of different important aspects of the environment.
Amendment 101BZAA to Clause 66 and Amendment 107D to Clause 116 are designed to make clear that bodies charged with a duty to advise the Government on relevant matters and to undertake relevant executive functions on their behalf must be consulted during those processes of taking decisions that will have important consequences for the marine historic environment. Amendment 101BZAA clarifies that in determining an application for a marine licence the licensing authority must have regard to representations not only from,
“any person having an interest in the outcome of the application”,
but also specifically from statutory consultees. Consulting the wider public of people who are interested is right and proper, but we need to make a distinction between that and consultation with organisations that have relevant duties under statute. Amendment 107D similarly clarifies that before designating a marine conservation zone an authority must consult statutory consultees as well as any other persons likely to be interested. Persons “likely to be interested”, in the wording of the Bill, is an odd way to refer to statutory bodies which have clear responsibilities in this area—as English Heritage has in relation to the marine historical environment.
Politically it will be helpful to the Government to make it an avowed principle to consult the relevant non-departmental public bodies. They are different from non-governmental organisations. They are set up by government as independent and expert bodies. A legally binding and clear obligation to consult with them will help to persuade the interested public that the Government genuinely wish to get their decisions right. Such consultation provides a form of audit and accountability.
My noble friend may say that there is no such thing as a statutory consultee and that it is not a term recognised in government. While it may not be an elegant term, it precisely describes something that matters, so why do we not coin it as a useful legislative term? If he really does not like it, we could perhaps use instead the terminology of “partner authorities” that the Government themselves are using in the Local Democracy, Economic Development and Construction Bill. My noble friend may otherwise say that the amendments are unnecessary since by definition statutory consultees must be consulted. That is true in theory, but busy people do not always remember to consult everyone they ought to consult, or appreciate the status of the responses they receive. Bureaucratic jealousies do occur and co-operation between departments can be less than perfect.
I readily accept that Defra Ministers and officials are working with DCMS and English Heritage at present. Defra is a signatory to English Heritage’s funding agreement and has, I understand, commissioned English Heritage to prepare a position statement on marine development control. Defra, DCMS and English Heritage work together very well on the Aggregates Levy Sustainability Fund. English Heritage is a fundholder under this Defra scheme, which supports much archaeological work, including the examination of “Dogger Land” under the North Sea and the use of new survey technology to study shipwreck sites on the Goodwin Sands. I am not at all saying, therefore, that there is not at present good co-operation. Ministers are, however, birds of passage. I have watched with admiration how my noble friend Lord Hunt has swooped from one portfolio to another. Civil servants, despite the mythology, are not permanent, and the institutional memory in Whitehall can be amnesiac. There are pressures on Defra to subordinate its concern for the marine historic environment arising, for example, from the international agreement to deliver an ecological network of marine protected areas by, I think, 2012. Nature conservation NGOs are pushing hard for ecological and biodiversity interests alone in this network, and that makes it hard for the archaeology NGOs to play their part in achieving co-ordinated action for the benefit of conservation overall.
The terms of this major legislation should make it unambiguously clear that duties to conserve are duties to conserve the historic as well as the natural environment. We understand why my noble friend Lord Hunt does not intend to attempt a definition of “sustainable” in the Bill, but I do ask the Government to state, in lapidary terms, on the record in Hansard, that when they speak of sustainability and when they legislate on sustainability and conservation, they intend that these terms and these duties embrace the historic as well as the natural environment. Successor officials, and, indeed, the courts, must have no doubt of this.
I have noticed that Defra’s document, A Strategy for Promoting an Integrated Approach to the Management of Coastal Areas in England, while emphatic on the need for a joined-up approach, and while acknowledging the historic environment in its vision, is, like this Bill, overwhelmingly focused on the natural environment. That is appropriate in a Bill originating from Defra. What causes me concern in that document, however, is the account of what the Government intend in the UK marine policy statement. It says:
“The statement will bring together social, economic and environmental policies”.
It makes no reference to policies for the cultural and historic heritage. Yet the national policy statement will, on behalf of the Government as a whole, set the terms of reference for marine planning and conservation. I ask my noble friend to state that the NPS will set out the policy of the Government to safeguard the marine historic environment. I also ask him to make clear on the face of the Bill at the crucial points the Government’s commitment to the cultural and historic marine heritage.
We must not fluff this legislation, as has happened too often in the past. The Protection of Wrecks Act 1973 was, I have been told, a narrowly-intended emergency measure originating as a Private Member’s Bill. It is incapable of bearing the load that we may hope to place upon it. It is doubtful, for example, whether its provisions will help us in relation to the discovery the other day by a commercial salvage firm of divers of the remains of the first HMS “Victory”, yet the extent of the media coverage and intensity of public interest in that ship show that there is a demand that the Government and the public agencies should be competent and determined to act in the public interest in conserving the marine historic environment. The 2002 legislation, also introduced as a Private Member’s Bill, though it drew on a previous government Bill that had not been enacted, was similarly insufficiently comprehensive. The Government’s heritage protection Bill, though not a wreck, has not surfaced in this Session. I believe that the Secretary of State is trying to navigate it into port, but he has not got there yet.
Meanwhile, we have this Bill. I do not suggest that it should not primarily be about the marine natural environment, or that it should be made to substitute for the heritage protection Bill, but I would argue that it should very clearly create a part of the legislative structure that we need for the conservation of the marine historic environment.
After that very erudite contribution by my noble friend perhaps I may add just a general word. I should say that I am honorary president of the Friends of the Royal Naval Museum. In that capacity I am very concerned by what my noble friend is putting forward. I think that he is right.
I want to emphasise a wider policy point. The Government are taking exciting and commendable steps in the direction of getting planning in so many spheres into better shape, and I find myself with them not only intellectually but enthusiastically. But if we are trying to get that right then, where we have other national priorities concerning the quality and character of our existence, it is not enough just to leave them to be taken into consideration as a kind of appendix in which there are certain moral obligations. They have to be central to the whole strategy. If we care about heritage then it is not something that just has to be taken into account; it is something that is central to the whole design. The noble Baroness, Lady Hooper, and my noble friend have done a valiant job in bringing this amendment before the Committee. I commend it and hope that the Government will feel able to give it serious consideration.
I sincerely apologise to the Committee, particularly the noble Baroness, Lady Hooper, for missing the first minute or so of her speech. I was serving in another committee of the House which was meeting upstairs, and this Committee has moved rather faster this afternoon than I anticipated.
I and my noble friends Lady Miller of Chilthorne Domer and Lord Greaves have an amendment in this group, which we are calling the “heritage group”. However, I also support the other amendments. They may offer different courses but they are all aimed towards the same target. It is important that we discuss these issues in the round. I am grateful that I was in the Chamber to hear the noble Lord, Lord Judd—who I know spoke from the heart, because he has a long record of interests in these matters—and the noble Lord, Lord Howarth, who has taken such an active interest in these particular concerns.
We have all seen the briefing from English Heritage. It contains a powerful argument for proper designation and co-ordinated management between the different agencies that may be involved in the natural and historic features around our coastline. I am particularly interested in the example of Lundy Island, where a nature reserve contains two historic wrecks designated under the Protection of Wrecks Act 1973. The possibility of confusion in a situation like that is great. It is also true around the Isles of Scilly, in which I also have a close interest, that if we are not careful and do not find ways of making the various organisations—be they less or more formal, quangos or, as they are more properly designated, NGOs—we will lose out substantially on important parts of our heritage. In that context, I pay particular tribute to the Campaign for the Protection of Rural England, which has also expressed anxiety about this.
Amendment 106CA, in my name and the names of my noble friends, is an attempt to build into the requirements of Clause 114 a specific reference to,
“features or defined areas of sea or tidal waters, including the coastline, of natural beauty or cultural significance or a combination of any of these reasons”.
It therefore falls into the same category that other noble Lords have already referred to. The amendment attempts to define areas of sea and their contiguous coastline where land or tidal features need to be designated on grounds of natural beauty or cultural, archaeological or geological heritage.
The Bill should contain a presumption in favour of designating areas of this sort, particularly when we already have long-established, well recognised and well accepted designations made under the national park regime, for example, or as areas of outstanding natural beauty or as heritage coasts. It would be extraordinary if all that legislation, which is so well supported and so well bedded down in this country, was treated as less important than this new legislation. It would also be welcome if world heritage sites such as the Jurassic coasts of Dorset and Devon were included in the criteria for protection under the MCZs. The Government have expressed interest in enhancing protection for the WHS designation; here is a useful opportunity to do just that.
Views over the sea from land are an integral part of the coastal landscape. Coastal waters and the coastline are indivisible in terms of the natural processes at work which create the coastal morphology and the visual integrity of land and sea when viewed from land. Coastline viewed from the sea is similarly indivisible from the marine setting. The CPRE is right to regard the absence of landscape and visual criteria from the designation criteria for MCZs as a serious omission. I hope that the Minister will find some way to remedy that in the Bill.
The Government have already shown the importance they attach to the concept of landscape by ratifying the European landscape convention. English Heritage has conducted a historic characterisation of seascapes similar to its historic characterisation of landscapes. This analysis lends further weight to the case for including the protection and enhancement of coastal and sea landscapes in the Bill as it is intended to designate the protection of the marine environment.
For many of our fellow citizens the clearest and most relevant manifestation of the marine environment is the view of it from the land or from the surface of the sea. The CPRE is right to believe that understanding the sea and its wildlife is largely achieved through cherishing that view of the sea and its coastline. Natural England has recognised the great importance of this experience in putting the enhancement of coastal access at the heart of this marine Bill. Therefore, it is logical that we should bring landscapes including the sea within the remit of the MCZs. That would complete this vital legislation, which otherwise will leave a major element of the marine environment unprotected. I believe that the Minister recognises the significance of this whole group of amendments and I hope he will be able to respond very positively.
I intervene for the first time on the Bill. I had intended to speak at Second Reading but had to withdraw due to the timetabling of that debate. If I had spoken, I would have focused my remarks almost entirely on the coastal aspect part of the Bill, which we have still to get to. Perhaps one day we will get there. Indeed, it was only when I read the notable contribution of the noble Baroness, Lady Hooper, that I became aware of the issues we are discussing and their importance. That was rather myopic on my part, perhaps inadequately excused by my past chairmanship of the National Trust which, for the most part, is not terribly concerned with the marine environment.
We are quintessentially a marine nation with a huge marine heritage, which is as important as our terrestrial heritage. The marine heritage must include, and be concerned with, the issues covered by this group of amendments. It is, indeed, curious that the Bill is virtually silent in this area, perhaps because the issues were expected to be dealt with in the heritage Bill, which has never seen the light of day.
Be that as it may, I congratulate the noble Baroness on seeking to remedy that deficiency with this group of amendments, and I am thankful that they have been included in a single group, which makes it much easier and more logical. They hang together as they are all of a kind, although they relate to various parts of the Bill.
I shall not go over the amendments in detail as this has already been done, particularly in the notable intervention of the noble Lord, Lord Howarth. As always, he speaks with knowledge and great authority. For example, the word “cultural”, which has been used in Clause 52, is surely too imprecise. It is all very well for people to say, “Well, everybody knows it includes the sort of things that we are talking about”, but, as noble Lords have said, civil servants and others can forget at times. It is rather a vogue word today, which I always find rather disturbing. So in this important area of marine history and archaeology the wording needs to be more specific and we need Amendment 89L.
Similarly, in Clause 114, which deals with the grounds for MCZ designation, the word “social” needs to be buttressed in the same way—hence Amendment 107A. In addition, it is surely important to refer at the two related points to the statutory consultees to ensure, as has been said by previous speakers, that we are reminded that English Heritage, for example, has a statutory role, as it is very important that we give proper weight to its views and responsibilities—hence Amendments 10BZAA and 107D.
The two remaining amendments refer to seascape. The point was well expressed by the noble Lord, Lord Tyler, so I need not go over it again. I hope that the Government can find a way to include these amendments in the Bill, or something like them, when we get to the next stage.
I thank my noble friend for tabling the amendments and those around the Committee who have spoken in her support and for raising the important issue of protection of our marine and maritime heritage, in particular. My noble friend is right to draw attention to the fact that there is much interest in this subject and evidence of support for these amendments.
The gracious Speech for this Session was extremely disappointing for those interested in preserving our marine environment and adequately providing for archaeological conservation. The much needed and eagerly anticipated heritage protection Bill has been shelved, but just as with the Planning Act 2008, which ignored the Bill that we are now considering, this Bill was introduced without provisions necessary to ensure that the new marine planning legislation includes and properly safeguards our historic heritage which lies under the sea. Our island history is largely maritime. The work on the wreck of the HMS “Victory” off the Channel Islands shows how important our maritime heritage is to our understanding of the past.
The Minister will no doubt point to the draft heritage protection Bill to explain why these provisions are missing. After all, that draft Bill went into great detail and it is no doubt the best vehicle for a comprehensive and consistent policy towards the UK’s heritage. But the Government have decided not to bring it forward. As much as we on these Benches support that Bill, it can do no good in draft. That may be a shock for some in the Government, but statements of intent and press releases are not as effective as enforceable legislation, and the Government should not act as if they are.
Protecting historic and archaeological sites should not be considered an optional extra to be added on when the Government find a convenient moment. They should be looking for ways of making sure that protection can be ensured now to prevent further damage until the draft Bill can be introduced and to ensure that these provisions will interact appropriately and efficiently with the heritage objective.
I also agree with the amendment of the noble Lord, Lord Tyler, which provides for—I paraphrase—an area of outstanding natural beauty designation for coastal aspects and seascapes. The interaction of sea and land is the source of some of the most beautiful aspects of our country. I feel strongly that the Government should provide for marine heritage protection with this Bill. Not to do so would represent a lost opportunity.
I wish to add a further word in support of my noble friend Lady Hooper, and also to reflect on the comments of others. I understand that originally there were plans in the green Bill that it should be included. Will the Minister tell us why it was then dropped and whether that was due to the proposed heritage Bill that has not now happened? Even if the answer is yes, should the Government not think again about the opportunity provided by this Bill to ensure that it is included? Having taken through the House the Countryside and Rights of Way Act and one or two others, I know that sometimes an opportunity moves by too quickly. Unless there is a very good reason why the provision was not included when it was originally intended to be in the Bill, we should like to persuade the Minister to think again. I look forward to his response.
I am grateful to all noble Lords who have spoken in this interesting debate, and of course to the noble Baroness, Lady Hooper, for the amendments which she tabled and to which she spoke so eloquently. She will have derived a great deal of encouragement from the anticipated support she has had from all sides of the House. I know that noble Lords take the issue of our heritage—our marine heritage in this context—very seriously.
The Bill spans a great deal of policy as well as a vast area of sea. The Government intend the marine policy statement and marine plans to address the interests and concerns of all those who are connected with the sea. Protecting our marine historic environment is important in our management of the marine environment more generally. We have ensured protection for these aspects within our high-level marine objectives, which we issued for consultation last summer. These objectives will underpin the development of the marine policy statement, which will then be applied in more detail in specific areas via marine plans. In response to the points put forward with his usual precision by my noble friend Lord Howarth, while there will be a number of national policy statements that we cannot pre-empt at this stage, I put it on the record that the marine policy statement will indeed set out the Government’s policy on safeguarding the marine environment, which will include cultural and historic marine heritage. Those documents will then drive decisions made in the marine area, so I hope that the Committee will appreciate that heritage protection will in a very real sense feature in decisions that are made.
Of course, the Government are committed to sustainability. In response to my noble friend Lord Howarth, this embraces the concept of the historic as well as the natural environment. The purpose of the nature conservation proposals in the Marine and Coastal Access Bill is to protect the natural environment. We have concluded that history and archaeology are very specialised areas of policy requiring equally specialised provisions. That is why we have been drafting a new heritage protection Bill. I make this point in response to a number of noble Lords who have spoken, the most recent of whom was the noble Baroness, Lady Byford. We have been unable to give the heritage protection Bill space in this Session’s legislative programme. The Government regret that, in the current economic climate, there are other pressing priorities, but we will bring that Bill forward as soon as parliamentary time allows. Defra has worked with the Department for Culture, Media and Sport to ensure that the Bill we are now considering enables us to provide adequate protection for the marine historic environment.
I am grateful that the noble Baroness, Lady Hooper, has introduced Amendment 89L. It gives us a chance to air these important issues and for me to give some reassurance that they form part of the Government’s marine planning, which is the basis of this Bill. Amendment 89L relates to the matters that the marine plan authority must keep under review while exercising its planning functions. As stated in the Bill, they include physical, environmental, social, cultural and economic characteristics. I listened carefully to both the noble Baroness and my noble friend Lord Howarth, who said that this list was not precise enough, although “social, cultural and economic” seems sufficiently broad to encompass the issues that they address with their amendments. The list of things that Clause 52 requires the planning authority to keep under review is indeed broad. It is certainly broad enough to include matters of historical and archaeological interest, without specific mention in the legislation. If it will help, I am happy to put it on record that we firmly intend that issues of historical and archaeological interest should be considered and addressed in marine plans.
As the noble Lord, Lord Chorley, asked in his contribution, why is the list of objectives not more specific about cultural and—in particular—archaeological or historic matters? I think my noble friend Lord Judd also reflected on this. We intend to address those issues in much greater detail in due course, and to answer all noble Lords’ questions on these matters. However, I emphasise that this Bill does not exclude the important considerations that noble Lords have brought to the attention of the House this afternoon. There will be very few cases where there will be a risk that designating a marine conservation zone might have an adverse impact on marine heritage. We do not consider, given the range of consultations that are necessary and the objectives that the authorities must follow, that this Bill is anything except benign and constructive with regard to these significant issues.
Amendments 106CA and 106CB seek to add the protection of historic and cultural heritage, as well the conservation of cultural significance, to the reasons for marine conservation zone-designations, which are set out in Clause 114. I understand the pressure for this from noble Lords and have some sympathy for the thrust of the amendment. I have already alluded to the need for specialised provisions to protect adequately our marine heritage. The same is true of marine nature conservation. The Bill sets out a system of protective measures specifically designed for natural environment conservation purposes. I consider that the results that we want in these two areas of policy do not overlap sufficiently for us to be able to use exactly the same tools for both. That is why we intend to bring the heritage protection Bill before Parliament in due course. That does not alter the fact that the protection of historic and cultural heritage is an important part of the work of this Bill.
The noble Lord, Lord Tyler, spoke eloquently on the issues of Amendment 106A, which seeks to include natural beauty in the grounds for designating marine conservation zones. We will have a chance to debate that later when we look at the conservation of visual beauty in Part 5 of the Bill. I recognise that the noble Lord has located the amendment in this group for the purpose of supporting the general issues of cultural heritage.
On the question of statutory consultees, who could disagree with the objective of this amendment? It seeks to ensure that the relevant expert advice is taken into account when making certain decisions. We agree with that point and have drafted the Bill to ensure that it happens. However, there is a problem with including lists of statutory consultees in the Bill. Our approach is, rather, to require the bodies taking decisions to consult all those people who are likely to take an interest in, or be affected by, these decisions. That should be clear. We expect to issue guidance, where appropriate, to indicate whom bodies should normally consider consulting when taking decisions. Where the marine historic environment is relevant to a decision, that guidance will say that obvious experts in marine heritage, such as English Heritage, should be consulted.
I particularly appreciate the sharpness with which my noble friend Lord Howarth presented the point that unless people or organisations are listed, they can be overlooked. He will forgive me if I say that, within the framework of the Bill, we are certainly making sure that there is provision for our cultural and historic heritage. If we look in that framework at the marine environment and marine heritage, it is unthinkable that consultation could take place without English Heritage having its full opportunity for consultation. This approach will be quite as effective as lists of consultees. After all, the problem with lists of consultees—I am not for a moment suggesting this in the context of English Heritage—is that they go out of date because bodies change their names or designation. We are making provision in the Bill for the objectives that the noble Baroness, Lady Hooper, brought to our attention in her initial amendment. We will certainly ensure that English Heritage will be consulted wherever aspects of the marine conservation zones and marine plan are developed that affect anything to do with our heritage at sea. I give way to my noble friend.
I am extremely grateful to my noble friend for the reassurances that he is offering the Committee. I assure him that I am always disposed to forgive him. I am still puzzled that the Minister is so reluctant even to specify statutory consultees, let alone itemise who they might be, in this clause of the Bill, whereas, on turning to page 179 of the Bill, we see in proposed new Clause 55D—titled “Coastal margin”—a whole litany of bodies which Natural England is required to consult. It is required to consult each London borough council, and the Historic Buildings and Monuments Commission for England, alias English Heritage; I am very pleased to see that there. It is also required to consult the Environment Agency. There seems to be some inconsistency in the Government’s approach to this matter.
I do not think that there is inconsistency, although I would be the first to emphasise that I am no expert on the other legislation to which my noble friend makes reference. He will recognise the great danger that we are in with regard to the Bill. If we give a list of a small group of organisations that have a broad interest in marine plans and marine conservation zones, the danger would be that they would inevitably have a privileged status over those with local and regional interests and expertise.
My noble friend will recognise how important the local and regional aspects are with regard to the Bill, particularly as we spent a good part of this afternoon debating where the devolved authorities fit into this. Even less significant bodies than the devolved authorities have a part to play in the development of marine plans and marine conservation zones. Therefore, we are reluctant to put into the legislation—on which in so many of the local dimensions it is important that bodies have their say—a national list which might look pre-emptive over them. That is why I am not persuaded of the virtues of the amendment.
I would be failing in my duty to the Committee if I did not indicate that the Government fully share concerns on the question of our heritage with even the most enthusiastic Members. That is why we are putting forward two positions. This Bill necessarily is drawn in fairly broad terms with regard to marine heritage, because of the other considerations that inevitably are of great significance within the framework of the legislation. However, we will pursue the heritage protection Bill in due course. Noble Lords will accept that we have that Bill in draft, and we merely await the parliamentary opportunity to introduce it. Therefore, I hope that noble Lords will feel that on an important part of this Bill they have pressed their case for concern for the historic environment within British waters, and that the Bill provides the opportunity for the Government to fulfil our obligations in this respect. I hope that the noble Baroness will feel able to withdraw her amendment.
I thank the Minister for his comments, and I thank all noble Lords who have supported the amendment. It is very clear to me, as it is not at all clear in the Bill, that there is considerable interest in getting the references correct and in making it absolutely clear—in a way that the noble Lord has made in his statement just now—that these issues of cultural heritage and the historic environment are included in the Bill.
Before I refer in detail to some of the other issues that have been raised, I must apologise to the noble Lord, Lord Tyler, because I had understood that his Amendment 106CA might be grouped with our Amendment 106C, which introduces the concept of seascapes. Therefore, I did not make any comment on it. It must have been recently added to the group. That means that we will have another bite of the cherry and that we will be able to return to this aspect at a later stage.
I am grateful for all the support that has been shown. The argument about the heritage protection Bill, which is over beyond the horizon somewhere, is not satisfactory or sufficient to cover the importance of the issues that we have been discussing. I have always worked on the principle that a bird in the hand has to be aimed for, and here we have a perfectly appropriate Bill in which these provisions could perfectly appropriately be included. As my noble friend Lady Byford said earlier, people are now kicking themselves that, when the Countryside and Rights of Way Act went through your Lordships’ House in 2000, the marine references were not included. Now, nine years later, in spite of assurances, they are still not apparent anywhere. It is not particularly helpful to put our faith in a Bill which may well be wonderful when it comes about, but on which even the Minister was very clear that it would come only “in due course”. That could mean anything; not soon, not in the near future; nothing at all helpful or hopeful. I am glad to hear that the marine policy statement will include explicit references to marine heritage and to the historic importance of various sites and objects on our coastline, and I look forward to hearing a bit more about that.
The issue of statutory consultees was not adequately covered. The noble Lord, Lord Howarth, in speaking to the amendment, made the position perfectly clear and, in questioning the Minister, asked for further help, and did not get it. An organisation such as English Heritage has a special status. It is not just an interested person or body. It may well be that “statutory consultee” is not a felicitous term; perhaps we should find some other way of describing them. There has to be some way in which we can get this very important requirement in the Bill, to give comfort to those who are interested in this issue and who wish to play their part fully, to ensure that their role is not overlooked.
I am not entirely happy with the Minister’s response on this occasion. I said at the outset that these were probing amendments, so, although I am a bit tempted, I am not going to test the feeling of the Committee on this occasion. I feel sure that, given the interest and wide support, we will return to these issues. I beg leave to withdraw the amendment.
Amendment 89L withdrawn.
Amendments 89LA to 89LC not moved.
Clause 52 agreed.
Amendment 89M not moved.
Clause 53: Delegation of functions relating to marine plans
90: Clause 53, page 27, line 17, at end insert—
“( ) Any direction under subsection (2) from a marine plan authority other than the Scottish Ministers shall designate the MMO as the public body.”
This amendment will presumably come as no surprise to your Lordships. Much as we support the overall provisions of this Bill, we are, as I and my noble friends have said before, deeply concerned not only by what is definitely to be carved out of the Marine Management Organisation remit but also by what might potentially happen in the future. I hope that we have been consistent in our argument. Certainly there is no ambiguity in this amendment. It would ensure that, if there were to be any delegation of planning functions to a public body outside the areas devolved to Scotland, that body would be the MMO. That is, I understand, the Government’s very sensible intention, so we would like to see that intention set out on the face of the Bill.
The Minister will no doubt say that flexibility is needed in the event that the MMO proves incapable of exercising these functions effectively. Surely, however, if that were the case, the Secretary of State would, first, withdraw the functions back into the department and, secondly, reconsider the whole approach to marine planning, with the appropriate legislation following. Watching the MMO fail and not taking the proper steps to dissolve it and to replace it with a more effective body would be the worst possible way to proceed.
Of course, this principle also applies to marine licensing. Although I have not tabled an amendment to that part of the Bill, I hope and trust that the Government’s intentions are to delegate the relevant licensing powers to the MMO. However, this is nowhere indicated in the Bill. Perhaps the Minister might consider ways in which this could be made more explicit in the wording of the Bill. I beg to move.
Can the Minister confirm my reading of the Bill that the direction could designate a statutory undertaker as a public body? Statutory undertakers now are largely private sector. If I read it right, I have a question mark over that provision.
I am very unhappy with this amendment. It says:
“Any direction under subsection (2) from a marine plan authority other than the Scottish Ministers shall designate the MMO as the public body”.
Surely the Welsh Assembly is a public body. I know that the Minister has said that co-operation between Welsh Ministers and the MMO will be the procedure. I really find the exclusion of the Welsh Assembly in this context unacceptable.
This is an interesting question, on which I would like to allay the concerns of the noble Lord, Lord Taylor. I would also like to comment on the wording of his amendment. It would have the effect of limiting to the MMO the public body to which the Secretary of State, Welsh Ministers and the Department of the Environment in Northern Ireland could delegate their marine planning functions. It would be unusual to place a greater limit on the discretion of the Secretary of State, Welsh Ministers and the Department of the Environment in Northern Ireland to choose their delegate than is placed on Scottish Ministers. We certainly would start from the premise that each marine plan authority should have equal status, including in their ability to choose a suitable delegate to carry out their planning functions.
Let me make it clear that we intend to delegate our planning functions in the English inshore and offshore regions to the MMO, but we disagree with the noble Lord, Lord Taylor, on the virtue of limiting ourselves to doing so under this Bill. He has anticipated the reasons why we will resist his amendment. The system is new. We are pretty convinced that we have got it right and that this is the best way to do it, but changes to the remit of the MMO might need to be made in the future, which might mean that it would no longer be the best body to carry out marine planning. In those circumstances, we do not want to be tied by statute to delegating marine planning functions only to that body.
I know that the noble Lord, Lord Taylor, has said, “Well, if that were the case, it would show that the whole system was not working, and the Government would have to come back to your Lordships’ House and the other place with new legislation”. However, marine legislation does not come along very often. We heard in the previous debate about legislation that was long anticipated but, alas, had not quite reached your Lordships’ House. There is a genuine concern that, if we were to specify the MMO as he wants to, the result could be very inflexible if there were changes to be made in the future in the light of experience.
The Minister’s case would have more force if he could indicate which other public bodies he thinks might be possible recipients of delegated powers in the future.
The noble Lord asks me to anticipate a circumstance that I hope will never arise. He will know that I cannot do that; all I can say to him is that it is best to leave some flexibility in that regard.
The noble Baroness, Lady Hamwee, asked me to interpret “public body”. Clause 312—“Interpretation”—on page 206 makes it clear that a public body includes a government department, a Northern Ireland department, a local authority, a local planning authority or a statutory undertaker, although there is a further definition in relation to that in Clause 312(2).
We think that we should retain some flexibility here, to keep the option open of delegating specific functions within planning to specialist bodies. There are circumstances in which we might want some other body than the MMO to perform—for example, public consultation elements if there were a good reason for that.
We have had debates on the Severn. I have explained why there cannot be a joint plan, because of the devolution settlement, but there can be a lot of working well together. It would be possible for UK and Welsh Ministers to direct the same cross-border body to undertake public consultation in relation to both plans—both the Welsh plan and the plan covering the English part of the Severn environment. We think that there needs to be a degree of flexibility. We certainly do not think it appropriate to designate the MMO as the marine plan authority. We believe that the adoption of plans is a policy decision that should remain at ministerial level. That is why we have provided a mechanism in Clause 53 by which any marine plan authority may delegate the practical functions of preparing and monitoring marine plans.
I know that, behind the amendment tabled by the noble Lord, Lord Taylor, is a concern that the MMO will not have the degree of authority that he wishes it to have. I well understand that concern. However, we have deliberately set up the MMO as an independent body—a non-departmental public body. That gives the organisation the independence and status that it needs to deliver on behalf of the Government as a whole.
The marine environment covers policy areas of direct interest to nearly every central government department—defence, shipping, ports, renewable energy, fisheries, aggregates, the environment, recreation and more. While the Secretary of State for Environment, Food and Rural Affairs will be the sponsor Minister, the organisation will deliver on behalf of all departments. It will be better able to deliver with the new marine planning system, with objectivity and propriety on behalf of the UK Government. It will have a crucial role, building on the experience of fisheries and environmental licensing to deliver more joined-up decisions and a much better and faster one-stop-shop service to developers. It will play a key role in integrated coastal zone management, in helping to deliver important reforms and link conservation with fisheries management, and in managing and regulating a new and flexible tool to enable conservation benefits to be delivered, while encouraging important economic developments such as marine renewable energy to proceed.
These are major policies that run through the Bill. They mostly arise because of the need to deal with the increasing and conflicting pressures on the sea. We are equipping the MMO to deliver sustainable development in the marine environment. There should be no question about the importance of the Marine Management Organisation, or that we wish to fetter it in any way, apart from in the terms in which it undertakes its duties in accordance with the Bill. In the end, it ought to be up to each marine plan authority whom to delegate their functions to. I have made it clear that, as the UK Government, we will delegate those functions to the Marine Management Organisation. However, we retain the right for some flexibility in future if required. It would not be appropriate to limit Welsh Ministers and the Department of the Environment in Northern Ireland to using a UK government non-departmental public body. Those Administrations ought to be allowed to make decisions on the arrangements that work best for them.
I reiterate to the noble Lord, Lord Taylor—I hope that he will agree—that the Marine Management Organisation will be extremely important and that it has the powers to do the job that we have set out for it.
I am grateful to the Minister for that response and for the way in which he addressed the issues. One question that my amendment raised but to which I did not speak was about the devolved authorities in Northern Ireland and Wales. I have no wish to tangle with the noble Lord, Lord Livsey, on that issue. As the Minister recognised, the purpose of my amendment was to enhance the authority of the MMO and to put it into the Bill in this area.
I suspect that this is likely to be a bit of a running argument throughout the Bill. We know from the early stages of our proceedings on the Bill that the Minister was keen to vest in the MMO the authority that he manifested in the speech that he just gave. However, we are not entirely sure why there is a certain withdrawal at this point in the Bill. If it is the Government’s intention to vest the authority of the Secretary of State and the planning authority for England in the MMO, why do they not say so in the Bill? What circumstances could arise in which the MMO was not the capable body? If the MMO performs badly as an executive function, that will need to be addressed by the Government. The powers vested in the MMO will have to be exercised in some way or another through some body or another, and that body needs to be the MMO, as the Government have clearly decided. I find it hard to understand why they draw back from putting that into the Bill at this stage. It would enhance the authority that the Government are seeking to vest in the MMO. From this Bench our view is that, if we want adequate authority from that body, we should make it clear that it has the full authority of legislation.
We may well return to the issue—I am sure that we will find that it comes up at other points throughout the Bill—but I beg leave to withdraw the amendment.
Amendment 90 withdrawn.
Amendment 90ZA not moved.
Clause 53 agreed.
Clause 54 agreed.
Clause 55: Directions to public bodies as regards performance of delegated functions
Amendment 90ZB not moved.
Clause 55 agreed.
Clause 56: Decisions affected by marine policy documents
Amendments 90ZC and 90A not moved.
91: Clause 56, page 29, leave out lines 19 to 21
This amendment was tabled by my noble friend Lord Greaves, who has attached the name of my noble friend Lord Tyler to it; I do not know whether he was aware of that. The noble Baroness, Lady Young, has her name to it and to Amendment 92, I am glad to see. Amendments 93 and 94 are also in the group. The amendments are about a matter to which we have alluded before—the relationship between this legislation and the Planning Act 2008, particularly applications for development control for nationally significant infrastructure projects to be determined by the Infrastructure Planning Commission under the Act. The nub is to probe the relationship between applications for development consent determined by the IPC.
As the Bill stands, it seems to my noble friend that there is a lesser test relating to the marine policy documents—the policy and the plan—when the application is to the Infrastructure Planning Commission than with an application for authorisation by the Marine Management Organisation. The IPC will be subject to a requirement to have regard to the appropriate marine policy documents, but in other cases—where we are dealing with an authorisation or enforcement decision by the Marine Management Organisation—the decision must be in accordance with the appropriate marine policy documents unless relevant considerations indicate otherwise. Amendments 91 and 92 remove that exception.
Our other two amendments in the group are more specific. Amendment 93 is about offshore energy and would remove generation of more than 100 megawatts from the Infrastructure Planning Commission and put it into the marine regime. My noble friend describes this as a bit of kite-flying; he might not thank me for repeating that, of course. If there is to be a marine planning regime, it should cover everything. We had difficulty on the then Planning Bill in anticipating this legislation but, now that we have this large and generally admirable Bill, we find that decisions of the Infrastructure Planning Commission could ride roughshod over the new marine regimes. We know that the Government want to co-ordinate everything. Part of our task is to see whether it is co-ordinated.
We accept the need for security of energy supply, but should it take precedence over other marine considerations and should it fall within this legislation and be dealt with in the way that this legislation compares and balances the different matters that need to be taken into account? We find ourselves in the ironic position where an application for a smaller development for generating less energy will be taken into the balancing judgment of the Bill but, with a substantial generation of more than 100 megawatts, you can somehow leave all that aside, at any rate so far as concerns this legislation.
Amendment 94 is about decisions taken by the Infrastructure Planning Commission. It states that the marine policy statement and marine plans are the policies that should be relevant, rather than national policy statements. I tabled amendments referring to the potential conflict within the marine policy statement. This extends to the national policy statement. Again, the Government told us in effect not to worry because there will be proper co-ordination, but we are concerned about which should prevail if there is a conflict. I beg to move.
I rise to support Amendments 91 and 92, to which I have put my name. The noble Baroness, Lady Hamwee, said it all: this is the perennial argument that we had in debating the Planning Bill, and will have here, about the relationship between national infrastructure decisions and the marine policy statement and marine plans, and how much influence the marine policy statement and marine plans should have on IPC decisions. My view is that where a marine policy statement exists, all marine projects should be made in accordance with it—otherwise what is the point of having it?—and in accordance with the associated marine plans. The clauses that exempt decisions on nationally significant infrastructure projects at sea were late entries into the field and are a detrimental step, because the IPC is required only to have regard to the marine policy statement and marine plans, rather than take decisions in line with them. Now that we have a Marine and Coastal Access Bill, marine projects should be considered within the framework that the marine planning process provides.
We have already spent some time dwelling on the relationship between the MMO and the IPC. It is clear that the issue of the relationship between land and sea, development and conservation, planning and protection, and who should be in charge of each of these sectors, is one of the major themes of the Bill. I declare my full support for all that has been said by the noble Baronesses, Lady Hamwee and Lady Young.
We are to some extent going over old ground. During our second day in Committee, I said:
“There is no mention of this relationship”—
between the IPC and the MMO—
“in the Planning Act, so these two pieces of legislation travel in parallel, yet never seem to join up”.—[Official Report, 21/1/09; col. 1709.]
As I have mentioned previously, in Committee on the Planning Bill my noble friend Lord Taylor said that he was unhappy about the fact that the IPC was considered above the MMO when it came to offshore developments, or those greater than 100 megawatts. We are still concerned. It is important to join up these two disparate and inextricably linked pieces of legislation and to make sure that marine plans are given the authority that they deserve. We on these Benches want to achieve consistency, clarity and effective marine management with the Bill. Therefore we agree that the IPC should have to make decisions in accordance with,
“the appropriate marine policy documents”.
We are also concerned that the relationship between the MMO and the IPC should be properly scrutinised and appropriately defined in the Bill. We have introduced our two amendments to the Planning Act 2008 with the intention of delineating this relationship, not only to make it clearer but also to ensure that it suitably reflects concerns about the marine area and the authority of the MMO.
Amendment 95 ensures that there is a duty to consult the MMO when making applications for development relating to coastal and offshore areas. It also ensures that the IPC must give notice inviting a local impact report to the MMO, even if only part of the application is considered coastal or offshore.
Our second amendment makes sure that the national policy statement created by the IPC can cover marine areas, but only if it is subject to approval by the MMO. In addition, when the Secretary of State is developing the NPS, he must have regard to both marine policy statements and marine plans.
These amendments are crucial to the working of the Bill. If the MMO is to be a functional and effective body, it cannot be subject to, and subservient to, the IPC and NPS. This is a difficult area, because the complexities of the relationship between land and sea, and the various developments, mean that it is not possible simply to divide one from the other. We need to employ subtleties to make sure that the MMO does not become just another quango that has to obey the IPC.
Our amendments provide a solution to this thorny problem by integrating the Planning Act with the marine Bill in a way that ensures that neither the IPC nor the MMO is rendered ineffectual. Instead, they are encouraged to work together to make sure that both land and sea can be part of a broader plan of sustainable development.
There is also the issue of who says no when the cumulative effect of human activities at sea is too harmful to the marine environment. This ability and need to say no is required by an EU directive. Who will say no? It presumably will not be the Secretary of State for the Department of Energy and Climate Change, or indeed the Secretary of State in charge of the IPC. We believe that it should be the MMO. I will be interested to hear the Minister’s answer to this. If the final say lies not with the MMO but with the Secretary of State for Defra, will it be made on the advice of the MMO? During the passage of the Planning Bill, the noble Lord, Lord Hunt, said that the relationship between the IPC and the MMO would be made plain during the course of this Bill. Perhaps the moment has now come and I look forward to his clarification.
Some of the most important amendments to the Bill are contained in this group. I agree with the noble Earl, Lord Cathcart, that we have come to the crunch point—in a different sense from the economic crunch. The relationship between the MMO and the IPC is absolutely crucial. Had we had the marine Bill before the Planning Bill, I believe that most of the contents of these amendments would have been contained within that marine Bill and that the Planning Act would be a somewhat different Act of Parliament from what it is.
The wording of these amendments is very apposite. I can see that the will to drive through the targets for renewable energy impacts on both the Planning Act and this Bill. We have not got the balance right between conservation and the production of renewable energy. I believe that the Planning Act could have taken care of part of this without forgoing the importance of conservation. If the MMO were the lead body, which I believe it most definitely should be, there is nothing wrong in it having due regard to the importance of climate change. This is a very important debate and I hope that the Minister will respond sympathetically to the point, which I am sure will be made by others shortly.
Apparently not. I agree with the noble Lord about the importance of this group of amendments, although I disagree fundamentally with all the comments made by noble Lords on it. We debated these issues on the Planning Bill, and we did so in anticipation of the marine Bill. It is somewhat puzzling that 12, 13, 14 weeks after the House has disposed of an issue we are called on to amend that legislation. Of course, it is entirely within the provenance of the House to do so—I do not argue with that—but at the very least it is puzzling that Members should seek so soon to change absolutely critical provisions in the Planning Bill.
I am puzzled by the Minister's reply, bearing in mind the Government’s response to the pre-legislative scrutiny and public consultation. A paragraph on the relationship between the marine policy statements and the national policy statements talks about a government commitment to ensuring consistency between MPSs and NPSs and ensuring that the MMO and the IPC can work effectively. It said:
“because the Planning Bill has not yet completed its transition through Parliament, we will need to keep these issues under review”.
The Planning Bill has now completed its progress through Parliament and those issues were unresolved during that progress. I suggest that the Government now need to continue to keep those issues under review and consider seriously our amendments.
That is an ingenious intervention, but as the Minister responsible for debating these points at a late stage of the Planning Bill, I was not at all aware that these matters were unresolved. I thought that there was great clarity about the threshold in relation to offshore renewables, which essentially is what we are talking about, and the relationship and the role of the IPC in relation to that.
I do not buy that at all. It was not resolved in the Planning Bill. During proceedings on the Planning Bill the Minister said that the MMO would be able to say no to an application of the IPC. When we came to discuss it in this Bill, the Minister slightly changed his attitude on how the MMO would be able to say no to a planning application of the IPC. I agree with the noble Baroness: I do not believe that the issue was resolved under the Planning Bill, so we have to bring it back now.
Perhaps I may go on and then we can come back to the general point at the end. Clearly, it is an important one. I do not really agree with the noble Lord, Lord Livsey, when he says that we do not have the balance right between renewables and conservation. I do not want to reopen our great debates on Clause 2 about contributing to sustainable development, but I believe that we have the balance right. The intent of national policy statements is to bring together all relevant government policy, including relevant marine policy, and that is to be the primary factor for IPC decisions in the new, single consent regime. Of course, the national policy statement, which will cover the offshore renewables situation, will, like the marine policy statement, be widely consulted on and scrutinised by Parliament. I also point out that the Planning Act provides that the national policy statement will not be the only factor. The IPC will also have to have regard to other matters which may be prescribed in secondary legislation as well as any other which the commission thinks are important and relevant to its decisions.
Clause 56 of this Bill amends Section 104(2) of the Planning Act 2008 to add the marine policy statement and relevant marine plans to the list of matters to which the infrastructure planning commission must have regard. This is at the heart of my concern on this matter. We have always been clear that we want a comprehensive and holistic marine policy statement and we are fully committed to ensuring that there is consistency between the marine policy statement—
The Minister is claiming that there is balance and equality and that there will be a level playing field, but he has not addressed the specific point made by my noble friend Lady Hamwee about the difference between “having regard to” and “in accordance with”. Clearly, the test for any application that comes before the IPC is different from one that would have to come before the MMO. Therefore, there is not equality; there is not a level playing field. At the heart of our concerns is the fact that there will be an easier ride for an application to the IPC for development consent, while a similar application to the MMO will have to be dealt with in a different way. There will not be equality of treatment.
I just do not see it that way. I was about to say that we are fully committed to ensuring that there is consistency between the marine policy statements and the national policy statements and that policies for the marine environment are included in the national policy statements where that is relevant. The same administration will be concerned with producing marine policy statements and national policy statements. There is absolutely no reason at all why there should be any inconsistency between what is in the national policy statement and what is in the marine policy statement.
I turn to another point that is of concern to noble Lords. In a sense, there is a fear that somehow the MMO is being sidelined by the arrangements contained within the Planning Act. The IPC will license nationally significant projects, both on land and in the marine area. However, let us be clear that we expect it to handle around 45 applications each year, covering energy, transport and water and waste projects across both the onshore and offshore regions, while the MMO will be dealing with hundreds of other activities and developments taking place each year at sea, the cumulative impact of which are extremely significant. The MMO will also play a key role in advising the IPC on its decisions. We will take steps to ensure that the two bodies work well together.
The noble Baroness, Lady Hamwee, asked about the threshold, which we also debated extensively during the passage of the Planning Bill. She will note that, being set at 100 megawatts, the threshold is in contrast to the 50 megawatts that applies on land, because renewable generating stations in the marine area are larger than those on land. It seems sensible that the threshold at which projects are treated differently, and become subject to the IPC regime, should be set higher. For the near future, most wave and tidal developments will be smaller than 100 megawatts. Those smaller projects are unlikely to be subject to many of the challenges faced by their larger equivalents. So far, the Department of Energy and Climate Change and its predecessor have licensed 23 offshore renewable energy installations. If the MMO and IPC had been operational at the time, four wind farms and two wave and tidal installations—at a combined generating capacity of 356 megawatts—would have fallen to the MMO.
Amendments 95 and 99 would amend the Planning Act in a slightly different way: first, by adding the MMO to those to be consulted before an applicant submits an application to the Infrastructure Planning Commission and including it in the local impact report procedures set out in the Planning Act; secondly, by giving the power to the MMO to decide whether national policy statements should have effect in the UK marine area; and, lastly, by requiring the Secretary of State to have regard to the MPS and any marine plans when preparing or amending national policy statements.
I know that in our debates on the Planning Bill it was explained that certain persons who must be consulted on pre-application consultations will be prescribed in secondary legislation flowing from that Act. I am happy to reiterate to the noble Earl, Lord Cathcart, my intent to include the Marine Management Organisation within these regulations. That process has already begun with the publication late last month of the consultation on regulations under the Planning Act to make the Marine and Fisheries Agency, and subsequently the MMO, a consultee in relation to national policy statements. The consultation on the second package of regulations, which will deal with the pre-application consultation that is the subject of Amendment 95, will be published fairly shortly—in the spring, I am told, although I am not entirely sure what a Defra or a DECC spring is. I can get some more information about that. On that basis, I hope that the noble Earl will agree that we do not need to amend the Planning Act to include this provision.
I know that the noble Earl also wished to include the Marine Management Organisation in Section 60 of the Planning Act 2008, which makes provision regarding local impact reports. The amendments would require the IPC to give written notice to the Marine Management Organisation that it has accepted an application for a nationally significant infrastructure project that relates to coastal or offshore areas and to invite the MMO to submit a local impact report on that application. I ought to tell the Committee that we debated this issue during the passage of the Planning Bill. The provision for the Infrastructure Planning Commission to consider local impact reports is to give due prominence to democratically elected local councillors, who represent the views of local people affected by the proposal. For that reason, the MMO should not be treated in the same way; it is clearly a different type of organisation with a different remit.
That does not mean to say that the MMO will not be involved—far from it. We intend to prescribe the MMO as a statutory “interested party” under the examination process that we will consult on later this year. As I have said, the Infrastructure Planning Commission will also draw on the Marine Management Organisation’s expertise when assessing proposals for nationally significant infrastructure—for instance, when it considers which conditions might be appropriate in order to mitigate any negative impacts on the marine environment. Details of how the Infrastructure Planning Commission will receive advice from the Marine Management Organisation will be covered in guidance under the Planning Act and through a memorandum of understanding.
In addition, amendments made to the Planning Act by paragraph 3 of Schedule 8 to the Bill enable the Infrastructure Planning Commission to deem marine licences to have been issued as part of development consent under the Planning Act, if such a licence would be required for that project. Those marine licences will operate as if the Marine Management Organisation had issued them. Importantly, the MMO will then be responsible for monitoring and enforcing them; it could also add conditions to deemed licences as new information came to light.
The first proposal in Amendment 99 would prevent a national policy statement from applying to the marine area unless it had been approved by the Marine Management Organisation. In relation to this amendment, the noble Earl, Lord Cathcart, asked who would say no. Here, we come to an important point. I am strongly resistant to this amendment, because we have to be clear that the national policy statements will state government policy—setting out the national need for infrastructure and providing a framework for decisions on nationally significant projects by the Infrastructure Planning Commission—while the Marine Management Organisation will be a delivery body and a non-departmental public body.
As we debated on the previous amendments, the MMO’s role and expertise in marine matters will, of course, be hugely important. However, it will not set government policy for the marine area. The development of that policy, including the marine policy statement and the adoption of marine plans, is the responsibility of the policy authorities—the marine plan authorities—or, in other words, the Government, but not the Marine Management Organisation. For that reason, I strongly resist the idea that the MMO should be given the power of veto over decisions of Ministers to apply a national policy statement to the marine environment.
The second proposal in Amendment 99 relates to whether the Secretary of State should have regard to the marine policy statement and plans when developing national policy statements. I am glad that the Bill already imposes such a duty: Clause 56(3) requires that public authorities, including government departments and Ministers, have regard to marine policy statements and plans when taking any decisions that are,
“capable of affecting … the UK marine area”.
That will include any decisions by Ministers to designate or amend a national policy statement that may apply to the marine area.
Finally, I return to the fascinating question from the noble Earl, Lord Cathcart: who, in government, will say no? In essence, preparing the national policy statement and marine policy statement is a matter for the Government as a whole. It will be a corporate exercise, which is why it will be essential to have consistency between those statements. This will not work unless there is consistency. That is why I have confidence that the arrangements in the Bill and in the Planning Act will work and be consistent with government policy on planning and our intent with regard to the environment. I know that noble Lords feel strongly about this matter, but so do I. We need to be very cautious before we move away from the careful arrangements in the Planning Act and the Bill.
I would like some clarification on who says no. I understand the Minister’s argument but what I do not understand—it may be me being naive—is, if the Department of Energy and Climate Change is doing oil and gas installations at sea, the IPC is doing the over-100 megawatt installations and the MMO is granting other licences, who is saying, “Hang on a minute. There’s too much activity in that part of the sea. Stop! The cumulative effect is too much”? The Secretaries of State in those three areas will not be saying that, but there is an EU directive that requires us to have this sort of break in place. That can only be the MMO, which would be looking at the overall effect of all these planning decisions at sea and would, therefore, presumably have to advise the Secretary of State at Defra that there is too much in an area, which is damaging the environment because the cumulative effect is too much. There must be a role for the scientists within the MMO to say that we must stop.
That is a fair question. We have already agreed that the MMO will have access to expert advice, whether on its own books or through—but I do not want to go back to the debate that we had for what seemed an eternity. The MMO will have an extraordinary amount of expertise available to it and will be in a position to give advice to my department, Defra, and to other government departments. Since the MMO will be the licensing authority for the great majority of licensing divisions, acting within the marine plan and the marine policy statement, it will have a hugely influential role.
The noble Earl asked what would happen if, in a few years’ time, a view is taken that activity in part of the marine area is doing damage. One would be extremely concerned, because Part 4, which we will come to shortly, lays down explicit circumstances in which the Marine Management Organisation will operate and in which licences will be granted. For example, Clause 66—“Determination of applications”—states that,
“the appropriate licensing authority must have regard to … the need to protect the environment … the need to protect human health … the need to prevent interference with legitimate uses of the sea”.
So one would be concerned if, notwithstanding the constraints and protections in the legislation, the cumulative impact of licensing decisions, most of which would have been made by the MMO, was causing the concern that the noble Earl suggests. In those circumstances, I would have thought that the MMO would advise relevant government departments.
I have already said that, in relation to the work of the IPC, the MMO will make advice available. There should be no doubt about that. If what had occurred suggested that the NPS and the marine policy statement needed adjustment, there are provisions in the Planning Act and the Bill for them to be made. I have no doubt that the advice of the MMO would be readily available to those organisations. However, that point does not detract from the overall architecture that we have put in place, which states that it is much better for one body to make consents that are deemed to be of national significance than for people to be confused about who should make them and for us to go back to pre-Planning Act problems in relation to planning.
This was one of the issues that exercised the pre-legislative scrutiny committee. There was concern that these matters were not being dealt with in the same way. I have no more to add, except to say that it is crucial that this is got right. Although the smaller installations that might seek approval from the MMO would be greater in number, the bigger installations could clearly have greater impact on the marine environment. The committee considered this in great depth and my noble friend has a valid point. The difficulty is that the MMO has certain responsibilities, yet the Secretary of State or Minister in whichever devolved Administration will have the overall responsibility. Those things do not sit very happily together. There was considerable discussion in the committee and unease that the two are being dealt with differently. I did not have the advantage of sitting on the planning committee, so I cannot comment on what went on in it. However, the Minister should not be unaware of the degree of concern on this issue.
I am aware of the degree of concern because we have debated it on a number of occasions. If one were to cut the cards in a different way, there would still be inconsistencies, because if we were to accept the thrust of the amendments, we would be taking the marine area out of the planning regime that we have just enacted. There are a number of ways in which one can approach this, but we get consistency through the national policy statement and the marine policy statement being entirely consistent. We think that the best way to get consistency is by the MMO being in a strong position to give advice to the IPC about the decisions that it is called on to make.
There is a difference in relation to getting consistency between the marine policy statement and the national policy statement. My perception of the two statements is that they can probably coexist at quite a high level of generality; the nub of the question comes when you start to make individual planning decisions. It is quite conceivable that you could have two policy statements that seemed compatible whereas at the same time there was a requirement, as the result of an individual planning application, to decide whether the economic significance, climate-change significance, or whatever other significance of an offshore energy proposition, for example—and offshore energy is not the only issue, there are many other issues to do with marine resources in general—was more important than the impact on the marine environment which the MMO and the marine policy statement are aimed at protecting.
A distinction needs to be made between the measures which the Minister has put forward to get compatibility between these two policy statements and clarification of who can call the shots in each individual application. You could do it either way. We could say that the Infrastructure Planning Commission should be the power on land and at sea for the issues that it covers. Personally, having argued for the creation of marine policy and the MMO because successive planning decisions and successive resource-extraction decisions in the marine environment had over time depleted its value, I think that we were at risk of dribbling away one of our most precious resources as an island through a series of individual planning decisions. Giving the Infrastructure Planning Commission predominance in these decisions would continue to do that on a piecemeal basis. Unless we grip the issue and say that the marine policy statement and the decisions of the MMO at least have parity in terms of the importance of the marine policy statement—and preferably the MMO is the boss in the marine setting—we are missing yet again the benefit that this Bill should be bringing to the marine environment.
There is little more I can say on this matter. I understand what the noble Baroness is saying, but I hope that the MPS and the NPS are not going to be woolly and vague statements. I fully expect them to be very clear statements, and I expect the IPC to come to a view that will be consistent with both. Equally, I would not ignore the benefit of the IPC calling on the Marine Management Organisation’s expertise when assessing proposals because I am sure that it will have an important contribution to make. Moving away from the clearly stated framework that we set in statute only four months ago would cause a great deal of concern. Any uncertainty about which body was taking the decision would be the worst of all worlds and very confusing indeed.
There can be clarity but still the problem to which the noble Baroness alluded, because the crunch is when an application is made. If there were parallel approaches rather than slightly different ones, the IPC would have to take a decision in accordance with, rather than having regard to, the marine policy statements, or the Marine Management Organisation would have to have regard to the national policy statements, which is a lesser test than taking decisions in accordance with them,
“unless relevant considerations indicate otherwise”.
That was a phrase that we debated on the last occasion. If I understand this correctly, it is not necessarily the Marine Management Organisation that will be taking the decision. The noble Lord made much of the IPC—the Infrastructure Planning Commission, which was quite often referred to as the independent planning commission in the debates on the Planning Act. It is intended to be independent in its approach, though of course it will be dealing with policy statements which come from the Government of the day or which a Government have inherited from their predecessor. The noble Lord is quite right in that. But the public authority taking a decision under Clause 56 will not necessarily be of the same political hue as the Government whose policies the Infrastructure Planning Commission is applying. If the public authority can be the Scottish Government or the Welsh Assembly, we are not necessarily talking about political allies joined at the hip.
Surely it is right that these critical issues are decided by Ministers. If there are changes in Administration, that is democracy. That does not mean to say that we should give it to a quango. Quangos should not decide these matters.
That is exactly my point. In saying that, the Minister strengthens my argument on the first two of these amendments. I wrote down “R” for Report fairly early on in this exchange, and I am sure we will come back to this issue, but for the moment I beg leave to withdraw Amendment 91.
Amendment 91 withdrawn.
Amendments 92 to 94ZZA not moved.
Clause 56 agreed.
Clause 57: The appropriate marine policy documents
Amendments 94ZA and 94ZB
94ZA: Clause 57, page 29, line 45, leave out “in force” and insert “which is in effect”
94ZB: Clause 57, page 30, line 18, leave out “and has not withdrawn from it”
Amendments 94ZA and 94ZB agreed.
Amendment 94A not moved.
Clause 57, as amended, agreed.
Clause 58: Monitoring of, and periodical reporting on, implementation
Amendment 94B not moved.
Clause 58 agreed.
Amendment 95 not moved.
Clause 59: Validity of marine policy statements and marine plans
96: Clause 59, page 32, line 33, at end insert—
“( ) that the provisions are not in accordance with any international agreement to which the United Kingdom or the European Union is for the time being a party.”
I will also speak to Amendments 97 and 98. Clause 59 deals with the validity of marine policy statements and marine plans. Under subsection (4),
“A person aggrieved by a relevant document may make an application to the appropriate court on any of the following grounds—
(a) that the document is not within the appropriate powers;
(b) that a procedural requirement has not been complied with”.
My Amendment 96 seeks to add another ground:
“that the provisions are not in accordance with any international agreement to which the United Kingdom or the European Union is for the time being a party”.
The reason for this is that the provisions in a marine policy statement or marine plan should not be in conflict with the UK’s treaty law obligations under the UN Convention on the Law of the Sea, covering, for example, rights of innocent passage and freedom of navigation, or other conventions, such as MARPOL, dealing with marine pollution. Issues of conflict are matters of substance and should give rise to an automatic right of referral to, and determination by, the courts. This amendment would provide such a course of action.
Amendment 97 refers to subsection (5), which says:
“Any such application must be made not later than 6 weeks after the publication of the relevant document”.
My amendment seeks to lengthen that period to no later than 12 weeks, as the issues for a referral to a court are likely to be complex, especially where matters of international treaty law need to be considered. A period of six weeks would be insufficient; 12 weeks is much more realistic.
Amendment 98 seeks to add a small new subsection to Clause 60, which deals with the powers of a court over an application under Section 59. My amendment would insert a new paragraph (c) into subsection (3), using the same wording as my Amendment 96, which would require a court to use its powers under subsection (4) to quash or remit a proposal when satisfied that there has been a breach of treaty law obligations. I beg to move.
The noble Lord, Lord Greenway, has tabled interesting amendments, which we support. It is important that it is made absolutely clear that it is an offence if international agreements are not complied with, and that this should mean referral to the courts. Will the Minister tell us whether this is the case?
We have already spoken in our debate on Amendment 73 about the importance of guidance on the implementation of, or compliance with, obligations of the UK under EU treaties and international agreements. We agreed, I think, that it was crucial both for the UK to abide by new and old agreements and for other countries to do the same with regard to us. We cannot operate in a vacuum, and the success of the Bill will depend in large part on how well international agreements are adhered to both by us and by them. I therefore agree with the noble Lord, Lord Greenway, that it is of the utmost importance that we clarify whether non-compliance with international obligations means referral to the courts. Will the Minister clarify the position? Does he agree that it would be helpful to put this into the Bill?
On Amendment 97, six weeks is too short. A person who is aggrieved by a relevant document must have time to acquire the document, to process it and to write up an application. When dealing with the complex issues to which the noble Lord referred and which the Bill is likely to raise, six weeks is a very short time. I hope the Minister thinks that this issue deserves further thought.
I am grateful to both noble Lords who have spoken in this debate. The noble Lord, Lord Greenway, has presented the issues with his usual clarity, and I recognise how important they are. The noble Earl, Lord Cathcart, has asked me a couple of quite specific questions, which I hope I will cover in my response to the amendments.
Amendments 96 and 98, which the noble Lord, Lord Greenway, has proposed, seek to create a new ground on which legal challenges may be brought against marine policy statements or plans; that is, if the MPS or the plans are not in accordance with EU or international obligations. I fully understand the noble Lord’s concern that international shipping treaty obligations might be breached. That is a pretty important matter. If the challenge were successful, the court would be able to quash the document or send it back to an earlier stage in the preparation process.
The provisions in Clauses 59 and 60 enable anyone who is aggrieved by an MPS or a plan to challenge it if the plan authority failed to comply with the process set out for the document’s preparation, including any procedural requirements contained in a direction delegating the planning functions to another body, or if the plan authority or delegate acted outside their legal powers in preparing the document. This is the same approach that is used in the Planning and Compulsory Purchase Act 2004. Those legal powers to prepare the MPS or the plan must be read in accordance with any limitations imposed by the UK’s existing European Union and international obligations. I assure the Committee, particularly the noble Earl, Lord Cathcart, who emphasised this point, that if the marine plan or the MPS is not in accordance with our EU or international obligations, it has not been prepared within the appropriate powers and may therefore be challenged in the courts. I will ask the noble Lord, Lord Greenway, to withdraw his amendment, because in effect it reaffirms the legal position as it stands and is therefore not required.
Amendment 97 seeks to extend the time window during which legal challenges may be brought against an adopted marine policy statement or plan from six to 12 weeks. This very same issue was discussed in our debate on challenges to national policy statements under the Planning Act 2008, to which the noble Earl, Lord Cathcart, recently referred. The Committee will be familiar with the points that I am about to make. Even if we left aside the Planning Act, which contains this, this is not a new provision. A six-week period for commencing proceedings applies at present to statutory challenges to the development plan under the Town and Country Planning Act, which received Royal Assent in 1990, and the same approach was used again in the Planning and Compulsory Purchase Act 2004.
The regime that we have set out in the Bill has been designed to provide a fair system that encourages engagement and participation in the process of preparing marine policy documents rather than a reliance on legal challenge after those documents are adopted. We want to avoid the delays that are inevitably caused by such challenges, and the attendant uncertainty and doubt that they cause in the minds of decision-makers and developers. We have prescribed processes for preparing marine policy documents that are clear and open and are undertaken in full public view. The preparation process begins with the publication of a statement of public participation, and sets out how the policy or plan authority intends to involve those who are interested in, or affected by, the document. That statement will be a living document, which is to be kept under review and updated throughout the process.
When the final marine policy statement or plan is adopted and published, it will make clear the date on which it comes into effect. We will ensure that we publish it in ways that are considered to be the most likely to bring it to the attention of anyone who is interested in or likely to be affected by it. We want to ensure that anyone who wants to participate has the opportunity to do so. As I said in our debate on the previous amendment, this is the time for concerns and issues to be raised: when the authority can do something about them. By the time the documents are adopted and published, any concerns should not be new issues. That is why it is reasonable to ask for challenges to be brought within six weeks of the adoption and publication of the document.
The Government are strongly of the view that the six-week period is reasonable in the context of the way in which the marine planning and policy statements are developed. That is why we have tabled Amendment 97ZA, which is grouped with these amendments. We want the six-week rule to be applied consistently across the UK. This would therefore also include any challenge which was brought before the Court of Session in Scotland, which is a change in the Bill as currently drafted. This is a minor and technical amendment which is necessitated by an earlier misunderstanding on our part that their judicial review process requires this. The Scottish Executive have since clarified that this is not the case and stated that they agree that the six-week deadline for applications to challenge the validity of a marine policy statement and marine plan documents should also apply in Scotland. They are at one with us on the six-week period.
In the light of this change and the explanations that I have put forward, I hope the noble Lord, Lord Greenway, will feel that we have taken into account the very important representation he has made and feels able to withdraw the amendment. I also hope that the Committee will feel able in due course to support the government technical amendment.
I am grateful for the support of the noble Earl, Lord Cathcart, and for the full response from the Minister. I am gratified by the Minister’s assurance that what I seek to achieve in Amendments 96 and 98 is already covered in law and that the amendments are therefore unnecessary. I am a little disappointed about the six weeks but I will not argue about it at this stage. I beg leave to withdraw the amendment.
Amendment 96 withdrawn.
Amendments 96A and 97 not moved.
97ZA: Clause 59, page 32, leave out line 36
Amendment 97ZA agreed.
Amendments 97A to 97C not moved.
Clause 59, as amended, agreed.
Clause 60: Powers of the court on an application under section 59
Amendment 98 not moved.
Clause 60 agreed.
Clause 61 agreed.
Amendment 99 not moved
Amendment 100 withdrawn.
Clause 62: Requirement for licence
100ZA: Clause 62, page 34, line 33, at end insert “(exemptions)”
The many government amendments in this group are of a technical nature, and Amendment 101 is in the name of the noble Lord, Lord Greenway. We have reached Part 4, a significant milestone. This part essentially consolidates a number of Acts into one and modernises marine licensing, bringing it up to modern standards of transparency, fairness and proportionality, as well as—importantly—reducing the number of processes that applications for developments will have to go through.
Clause 63 lists the activities that will require a marine licence. The Bill also provides more effective enforcement of marine licensing legislation. In preparing the Bill we have already made a number of responses in relation to the pre-legislative scrutiny. In replying to a number of the responses we received to the consultation we have tabled government amendments to amend the test of the severity of harm or interference for the issue of remediation notices from “serious harm” or “serious interference” to simply “harm” or “interference”. We believe that harm caused by the commission of an offence should not have to be serious before the person who caused the harm should have to make amends. That is consistent with the “polluter pays” principle.
We have included Clause 70 in response to recommendation 20 of the Joint Committee’s report which recommends a clear mechanism for appealing licensing decisions of the appropriate licensing authority. We have agreed with the Delegated Powers Committee’s recommendations and introduced government amendments, or added my name to opposition amendments, to change some of the procedures for orders made under this part of the Bill from the negative procedure to the affirmative one.
Part 4 is technical and complex and this group of amendments—as with group 20, which I hope we will debate later—includes a number of government amendments. The amendments in group 20 relate to the new enforcement tools being set up in this part. My minor and technical amendments were identified after a careful run-through of the complex Part 4 provisions to ensure that they work and are legally sound. I beg to move.
My Amendment 101 seeks to insert paragraph (c) into Clause 63(2), which deals with descriptions of dredging and incineration. Amendment 101 reads,
“in items 11, 12 and 13 ‘incinerate’ and ‘incineration’ shall not include activities relating to the navigation, management or operation of a vessel”.
Shipboard incineration activities connected with the running or onboard operations of a vessel are already regulated under international agreement through MARPOL, which lays down rules covering when, in which areas and under what conditions shipboard waste may be incinerated. The amendment ensures that such operations are not brought within the scope of licensable activities under the Bill. I hope that the Minister will confirm that that is so.
I am grateful to the noble Lord for tabling this amendment because it allows me to clarify this point in a way that I hope is commendable to him. Let me be clear that it is not the Government’s intention to license those incineration activities that are part of the everyday running and operation of a vessel. Current legislation exempts the incineration of victual or domestic waste originating on vessels and we are not changing that. However, we do not think that a carte blanche exemption in the Bill is the way to do it.
Incineration is subject to a number of international and European rules. The London Protocol and OSPAR generally prohibit incineration but have exceptions for the normal operation of vessels. However, that is not the full picture. Article 16 of MARPOL provides a number of restrictions on the onboard incineration of waste and matter generated during the normal operation of a ship. Waste-management licensing regulations also provide additional conditions on the incineration of waste on board vessels.
It is our intention to use the exemptions order provided by Clause 71 to exempt incineration activities that are part of the everyday running and operation of a vessel in a manner which is compatible with the myriad rules and legislation applied to it. That is the approach used in FEPA, and a quick look at the FEPA exemptions order will show that quite a complex clause would be required to do this effectively in the Bill. Moreover, such an approach might be compatible with the current international rules and obligations but fall foul of this legislation in future if new rules come into force or existing rules are amended.
We will cover exemptions in more detail when we come to a later group of amendments. However, as a further reassurance to the Committee, we will consult extensively with industry and other parties when putting together the exemptions order to ensure that we capture all those activities with minimal or no impact in order to get the sensible, fair and proportionate approach to regulation that we seek to achieve. I hope the noble Lord will be satisfied with the reassurance that we intend to deal as I suggested with the exemptions order provided in Clause 71. I therefore hope he will consider not pressing his amendment.
I am most grateful for that clarification, which allays my concerns considerably.
Amendment 100ZA agreed.
Clause 62, as amended, agreed.
Clause 63: Licensable marine activities
100A: Clause 63, page 35, line 28, leave out paragraph (b) and insert—
“(b) from the UK marine licensing area, unless the towing or propelling began outside that area.”
Amendment 100A agreed.
Amendment 101 not moved.
Clause 63, as amended, agreed.
House resumed. Committee to begin again not before 8.30 pm.