Skip to main content

Marine and Coastal Access Bill [HL]

Volume 708: debated on Tuesday 3 March 2009

Committee (6th Day) (Continued)

Clause 113: Marine conservation areas

Amendment A118

Moved by

A118: Clause 113, page 67, line 35, at end insert “or as a highly protected marine conservation zone”

In introducing Part 5, my noble friend Lord Greaves said that this is the heart of the Bill, and I absolutely agree with him. The question for the Government is whether they want it to be a strong heart or a weak one. That is what these amendments seek to examine. They concern the highly protected marine reserves and the question of ecosystems. I recognise and share the frustration among speakers to the previous group of amendments that the groupings are quite difficult. I do not blame the staff who had to group them in this way because either we were faced with a group of 19 amendments or they had to be degrouped. Because of the confusion between the ecologically coherent sites that noble Lords spoke about before the dinner break and ecosystems, there is some confusion which I shall address later in my contribution. That is what led to the difficulties over the groupings.

That said, we heard some splendid contributions. The noble Lord, Lord Eden of Winton, laid the ground very well. Again, the question for the Government is whether they want a strong or a weak heart for the Bill. I take the Committee back to the comments of the Joint Committee on the draft Bill to remind us of exactly what the difference is in the definition. I shall quote from paragraph 108:

“Highly protected marine areas prohibit all damaging activities including, dumping, dredging, construction and the extraction of all resources. Multiple-use marine protected areas permit activities as long as they do not impact on the biodiversity interests of the given site”.

It is clear that we have two kinds of site, one with much stronger protection than the other. A weakness of the Bill is that it does not recognise that there is a place for both. I think that the Government could make the choice. Indeed, their own advisers from Natural England have defined the difference, and I shall quote their definition because it is interesting:

“An MPA is an area of sea that is protected or managed to ensure that activities do not damage or cause disturbance to habitats, species and ecological processes … Highly protected Marine Reserves (MPAs with no exploitation or development) are an essential component of an ecologically coherent MPA network”.

It might sound like an academic difference, but it is much easier to explain when we look at exactly how Defra intends to implement what we are calling marine conservation zones. In the helpful notes to Part 5, it explains that,

“the levels of protection are to depend on site-specific conservation objectives, and some MCZs are likely to require significant restriction of activities, effectively creating highly protected marine reserves”.

The word “effectively” is critical. If we go with the current proposal that Defra licenses a system of MCZs in a less and less generous way, eventually when it denies all licences that will be the equivalent of a highly protected marine reserve. That is one way of doing it. However, there is a difficulty with that approach. It fails to recognise the science behind the fact that there is a strong case to be made for having some highly protected marine reserves simply in their own right, because, as Members of the Committee have said, the sea in conservation terms is in a bad state. It needs to recover.

I know that the noble Lord, Lord Eden, quoted from the interesting evidence gathered by PISCO, which is an international body drawing together scientists from all over the world. The science for having some highly protected reserves is irrefutable. Scientists from 124 marine reserves around the world studied and peer-reviewed them and came up with these figures: in the highly protected reserves, biomass—that is, the mass of plants and animals altogether—increased on average 446 per cent; the density—that is, the number of plants and animals in a given area—increased on average 166 per cent; and the body size of animals increased at an average of 28 per cent. That is important because the size that the animal reaches is critical to how much it will breed. Finally, I turn to species diversity. The number of species increased by an average of 21 per cent in the sample area. It is impossible to obtain such incredibly dynamic results from an area that is suffering from a number of licensed activities. Scientifically, if we want to make a big impact on improving the ecological state of the sea, that is the way to go. I went to the Lundy highly protected marine reserve, where Natural England showed me some of the effects of it being a no-take zone—effects that are agreed by the fishermen as well, who fish all around the zone on the outside of it, because the fish stocks have increased so dramatically. It is hard to see why the Government are resisting having some highly protected marine reserves.

The other effect of carrying out what the Bill proposes, as the Minister will realise, is that all the commercial interests will carry on applying for licences only to find that they are rejected all the time and the MMO will have to keep receiving the licences only to find that it is having to carry out all this paperwork in rejecting them. How much simpler it would be to accept the science of the places that should be highly protected marine reserves and say that nothing will be licensed in that area. It is for the scientists to decide how many there should be and where they should be, but it would be a far better approach to say that there should be some.

If we go back to the lessons of Lyme Bay, the Minister would agree that that started out as trying to protect the sea corals and the Minister tried to designate small areas. In terms of protection, that did not work and it created a much bigger argument about what could and could not happen. He ended up designating the entire area for the purposes of protecting what initially was one species.

The difference between an ecologically coherent approach and an ecosystem approach is difficult to pin down. You could have an ecologically coherent system of marine conservation zones which were not highly protected. It might be one, for example, where basking sharks moved between the zones. A number of things might happen in the network, but it would be for a species that you were trying to protect. An ecosystem approach suggests that you are protecting the entire system, from the very smallest larvae or flora in it right the way through to the biggest creature. That is what an ecosystem is: the biggest creatures feeding off the smallest. If you fail to protect it all the way through, including the habitats, you will never end up with the ecosystem as it should be.

The final amendment in the group, Amendment 207, is from Buglife. Although it might seem a very particular amendment, referring as it does to invertebrates, eggs and larvae, it is very important, because it underpins the idea that those very small things are the bottom of the food chain. The amendment simply probes whether “animal” as defined in the Bill includes all those creatures.

This group of amendments asks that the Government make quite clear what their objection is to having highly protected zones as of right, because the approach which they have in mind of withdrawing the ability to issue licences gradually will make the whole process more opaque and more difficult to implement. I beg to move.

I have great sympathy with the noble Baroness’s amendments in this group. They fit neatly into our discussion before the break on what comprises a proper conservation network. She is right, despite the fact that I have some reservations about the desirability of establishing a formal two-tier system where some zones are seen to be of less priority than others. However, I entirely sympathise with the need to ensure that the network of conservation zones is established with the protections necessary to achieve their objectives.

We are dealing with dynamic ecosystems, which, as the Minister said, require a dynamic and adaptable conservation system. Indeed, the primary objective of zone designation needs to be at the heart of the process of evaluation and review. Furthermore, it will govern the nature of any restrictions placed on activities within the zone. Will the Minister give us some more information on whether the Government intend to implement zones where there will be no extractive or damaging activities? Have the Government undertaken any analysis of the benefits of establishing some areas of pristine environment? Would it negate the whole purpose of this part of the Bill if marine conservation zones were not designated with a full range of powers in mind? It would not be good legislation to enable powers that do not have a hope of being implemented in practice.

There appears to be great uncertainty about what the network of MCZs will eventually look like. I understand the Minister’s reluctance to commit in an early-stage consultation paper to too much detail, but can he give us any idea of how great he expects the span of marine conservation zones to be? We would of course hope that zones would be properly targeted towards their objectives, but if there is to be a great variety of restrictions and by-laws, great attention will be needed to ensure that the objectives of each zone are properly understood both by the appropriate authorities whose actions will impact on it and by the public seeking to enjoy the sea in that area.

I congratulate my noble friend Lady Miller on her great expertise on this subject. She has mapped out for us everything relevant. Some particular amendments before us, such as Amendment A140, very clearly spell out the consistency and meaning of ecosystems. To build on what the noble Baroness said, I should like to consider the situation in Wales. The existing designations for marine protected areas in Wales already cover 30 per cent of its sea area. The Welsh Assembly Government have confirmed that, in Wales, the MCZ designation will primarily be used to establish some highly protected sites, because the present protected zones are fractured in different parts of the Welsh coast. The Assembly aims to link them up into a network giving coherent protection around that coast so we will see a very great commitment to highly protected sites.

The important matter is that the Bill, as far as Wales is concerned, enables the Assembly Government to support the creation of these highly protected MCZs. To this end, the amendments are considered very helpful by, for example, the Countryside Council for Wales, which advises the Assembly and is the equivalent of Natural England where Wales is concerned. The provisions for designating MCZs in Amendments A118, A133 and A140 are extremely helpful in enabling Ministers in the Welsh Assembly Government to complete the work with a substantial network of highly protected MCZs around the coast of Wales. I certainly fully support the amendments and believe that they are extremely constructive in ensuring the quality of the marine environment for the benefit of seawater quality, the seabed and all that live on it.

I, too, strongly support these amendments and I congratulate the noble Baroness, Lady Miller, on having tabled them and on the work and thought that clearly lie behind them. In parentheses, I also thank her and the noble Lord, Lord Greaves, for their overgenerous comments on my rather faltering earlier contribution. It was extremely kind of them, and I accept it in the right spirit.

In referring to Amendment A118, I want to stress the importance of Amendments A129, A133, A140 and A158—and not to omit Amendment A207. The point raised by that last amendment is extremely important; the noble Baroness may not have laid much extra emphasis on it, but I would do so because we sometimes overlook the fact that we are talking not just about animals formed but about animals yet to come and still unformed. That is an important part of the process of conserving fish stocks.

It was a long time ago—in 1912, to be precise—that a French fisheries scientist, Marcel Hérubel, said, in reference to the theory behind marine reserves,

“choose a locality which is both a spawning-ground and a place where such fish as live on the bottom naturally congregate; delimit this area and make its position precisely known, then decree that all fishing shall be prohibited within its limits, and you will have a preserve wherein fish will multiply and grow, a ‘stock’ of utilisable animal material, or, to use the word employed in France, a cantonnement. The utility of such reservations is proved by experience”.

The experience of these reserves is growing the whole time. The reserves that have been established in various parts of the world, such as the Californian coast, in the Philippines and elsewhere, show that the fish stocks over roughly a 10-year period or more—the 10-year period is the reasonable span that has so far been studied—grow in abundance significantly. It is desirable that we focus on the opportunity of establishing no-take zones, as the Minister described them.

When I said in a previous debate that I thought that the Minister’s heart was in the right place, I should have gone further and said that the Government should be congratulated on this Bill. It is an extremely important step forward and it is likely to be the only step that we have available to us for a very long time to come. Unless we get it right this time, we will miss a great opportunity. That is why I keep coming back to this point. The primary purpose of this legislation is to ensure the conservation of our fish stocks to protect these animals so that they can develop and rebuild after centuries of depredation by man. That is the significance of this measure. We must not lose track of that in order to accommodate other interesting features in other walks of life. I know that they are all important and that we have to do them justice and take them into account; I do not belittle them in any way at all. However, I do not want them to damage the primary purpose of this legislation, or we will miss out on the great opportunity that I thought was a primary objective of the Government.

We will be able to learn a lot from the development of the marine reserves. What the noble Baroness, Lady Miller, said was absolutely right: we need to consider the movement of fish, which is not confined readily within a clearly defined area, because they will move beyond it. The fish stock that is built up successfully within the marine reserve area will spread out beyond that and provide happy hunting ground for fishers. It is natural that that should happen and I do not deny that it will happen.

One question that arises from that—although it does not reply, pace the noble Lord, Lord Tyler, to the point about the black hole or the white hole of the Isle of Man—is that there may well be a gap between the protected zones of the United Kingdom and the protected zones of the Irish Republic within the Irish Sea. What will then happen? Will other national fishing fleets enter the waters and make happy pursuit of the increasing fish stocks that our protected zones are liberating to the wider ocean? I do not know what debate or discussion is going on within the European Union on issues of that kind. This country in particular has had experience of the marauding instincts of other national fishing fleets when they trespass on our national fishing waters. That ought not to be allowed, particularly when we establish a sensitive network of fishing reserves. I hope that this can be addressed in some way at EU level and that we will ensure that the whole operation, when the zones are established, is correctly policed. I am assuming that on this latter point—I know that policing comes up in other respects—satellites will be used and that the MMO will have access to satellite information for marine reserve protection. I strongly support the amendments tabled by the noble Baroness, Lady Miller, and I hope that the Government will give them their full support as well.

We are all grateful to the noble Baroness, Lady Miller, for this group of amendments and for the powerful way in which she presented them to us. She asked, as did the noble Lord, Lord Greaves, before supper, whether we wanted this core of the Bill to be strong or weak. Let me say again that we intend that this part of the Bill will be very strong indeed.

I say to the noble Lord, Lord Eden, that he is right to say that this legislation is likely to be on the statute book for a long time: legislation in the marine area does not come too often. When we started our debate a few weeks or months ago—I suspect that we did so months ago; we had our Second Reading debate in December—one of the criticisms made was that, although there are 300 clauses, this is described as a framework Bill. That is because we believe that we have to have some flexibility, as this needs to stand the test of time. We are going back and forth on this. Noble Lords at some times want flexibility and at other times want to be more precise; that is an entirely understandable debate.

I also say that, in terms of being strong, we want the MMO to be a very effective regulator, if I can put it that way, and to have all the techniques available to it to ensure that it is able to act. In our earlier debates about enforcement of licensing decisions, I very much agreed with the noble Lord, Lord Kingsland, that we want regulators to be proactive and to intervene at as early a stage as possible so that any possible damage is prevented, rather than the MMO having to pick up the pieces when the damage has been done.

We will discuss these matters within Europe. I hesitate to mention the common fisheries policy—in fact, I know that I should not have mentioned it—but it, too, comes into play. I very much take the point that we want consistency across Europe as much as possible and that we particularly need to work as effectively as possible with the Irish Government. As is the case with the devolved Administrations, my understanding is that working relationships are very good and very close indeed. Everyone recognises that to make this work we need consistency of approach between the UK Government and the devolved Administrations. We also need as far as possible consistency of approach with our European neighbours and allies.

I entirely understand what the noble Baroness, Lady Miller, said on the question of groupings. It is clearly difficult to get a coherent grouping. However, degrouping has an impact: 10 groups were degrouped from today’s list, which, by my reckoning, adds three-quarters of a day to our debate. The best that we have done so far is 14 groups a day. I recognise that if you have a huge group it is very difficult to do justice to the amendments but, in many cases, once you start degrouping, you lengthen the debate. There is a bit of a trade-off.

Amendment A140 would require the network to be based on the ecosystem-based approach. I have no argument whatever with the principle of what the noble Baroness seeks to achieve in that area. That is what the Government intend to do in putting the network together. We see the ecosystem-based approach as underpinning the regional projects that the Government have asked Natural England to set up to identify possible marine conservation zones. It will be a very important element of the guidance that we intend to issue to support those projects. Clause 119 already requires Ministers to consider how a network of sites will be representative of the ecosystem as a whole. The success of designating a network of sites relies on the Government considering the conservation objectives of the ecosystem as a whole.

The ecosystem-based approach also includes the concept of connectivity between zones that is encapsulated in the first part of Amendment A158. It is part of our understanding of what the phrase “ecologically coherent network”—that is what we want to create—means. Indeed, this is already recognised in the Bill. Clause 119(3)(c) specifically says,

“that the designation of sites … in the network reflects the fact that the conservation of a feature may require the designation of more than one site”.

I do not think that there is any disagreement in principle on this matter. However, we question the wisdom of setting this down in legislation. As I said, while we fully intend to use the ecosystem-based approach in constructing our network, I am not at all sure that we should tie it to a definition in EU legislation that has yet to be elucidated. I have no doubt that the network will contribute to our work to achieve good environmental status in our seas. Indeed, I say on behalf of the Government that we fully intend that it should do so. However, we must be clear that we are creating national legislation for our own reasons. It is not normal practice to use primary legislation to implement EU requirements for all the well rehearsed reasons of which the Committee is only too well aware.

The second major aspect of this group of amendments ties the creation of a network of marine conservation zones to the designation of at least some zones with a high level of protection. I am well aware that many people would like to see a requirement in law for there to be highly protected marine conservation zones. I have listened with great interest to the arguments made in relation to that. The noble Baroness, Lady Miller, referred to the importance of recognising the science and to what she believes is the need for highly protected zones to be created in their own right, as she put it. However, she recognised that we can do that under the Bill, although she does not like the relevant provision. The noble Lord, Lord Taylor, put his finger on it when he warned of the risks of having a two-tier approach to designation. At the risk of repeating what I said earlier, we do not think that there is a need for specific provision for highly protected marine reserves or zones because we believe that we are able to provide the protection that noble Lords require within the designation of marine conservation zones and the network, and that the—

Yes. I am absolutely clear that that is possible. Not only is there flexibility in the marine conservation zone mechanism to allow us to place whatever level of protection is necessary for a site, but the Bill makes it clear that there is a requirement for the Secretary of State to report on the number of marine conservation zones designated where any licensable marine activity has been restricted and the taking of animals or fishing has been prohibited. The Bill recognises that that will happen and requires the Secretary of State to report on the number of marine conservation zones designated where any licensed marine activity has been restricted.

We think that there is clear provision to allow the kind of protection that Members of the Committee require in a number of areas. I know that the noble Baroness, Lady Miller, thought that our approach to commercial developers might be rather bureaucratic, but it is fairly straightforward for a developer to determine whether a marine conservation zone exists in the area in which development is desired and then to look up what restrictions on activities are in place in the designating order. A phone call to the MMO or a look at its website should be sufficient to find out what a developer needs to know.

By not imposing a one-size-fits-all approach to high levels of protection, we may be able to allow some activities that would have no adverse effects on a protected zone because we do not want to lose the flexibility. However, I am absolutely clear that, where an extremely high level of protection needs to be given, there is nothing in the legislation to prevent that. It is very important that that is understood.

I was interested in the question asked by the noble Lord, Lord Taylor, on what proportion of the sea will be protected by marine conservation zones. I was also very interested in the helpful remarks of the noble Lord, Lord Livsey, on the experience and intention of the Welsh Assembly Government. In the spirit of co-operation in which the Bill has been developed, we will wish to learn as much as we can from the experience of the devolved Administrations.

I appreciate what the Minister is saying; indeed, one of my purposes was to show that it is possible to co-operate for the same objective. However, because the Welsh Assembly does not have the legislative powers to create a highly protected zone, the only way in which it could do so is through this Bill. As Ministers in the Welsh Assembly Government would like to do that, does the Minister not feel a bit embarrassed that he might be preventing them from doing so?

No, for two reasons. First, the noble Lord will get bored with me saying that this Bill is entirely consistent with the devolution settlement. Secondly, as I have already indicated, the legislation allows for an area—it may be a marine conservation zone or a part of one—to be highly protected in the way in which he has described. Although I fully accept that the Welsh Assembly Government might have preferred a different approach, none the less I cannot see why they cannot achieve what they want to achieve within the Bill. We will be very interested to see the outcome of the work of the Welsh Assembly Government.

The noble Lord, Lord Taylor, wishes me to give a more precise indication of how much the sea would be protected under MCZs. I really cannot go there at the moment as more work needs to be undertaken. As I said earlier, a publication will be available at around Easter, which I hope will give some general intent relating to the issues that will need to be considered, and I understand that a more technical document will be published in the autumn. I am afraid that I cannot go further than that. However, we would not bring this legislation before your Lordships’ House were we not committed to marine conservation zones, protection of the marine area and the network. This is not a matter to be taken lightly. We fully understand why it needs to happen.

Amendment A154 would insert a cross-reference to Clause 113 and the areas in which marine conservation zones can be designated. I make it clear that the purpose of Clause 119 is to place a duty on the appropriate authority to use its powers to designate marine conservation zones so as to contribute to a network of sites throughout the UK, including in Scottish and Northern Irish territorial waters. The requirement in Clause 119 to designate zones under the Bill does not extend to the Scottish and Northern Irish inshore areas, but we want appropriate authorities to bear in mind, as far as possible, the interactions of their designations with protected areas in those inshore areas and to work with the Scottish and Northern Irish Administrations to ensure that the UK as a whole fulfils its international obligations. That, we believe, is the effect of the Bill as it now stands. Amendment A154 would narrow that because, by cross-referring to Clause 113, there is a risk of narrowing the scope of the duty to designate a network to exclude the Scottish and Northern Irish inshore areas, which we think would be a missed opportunity. However, I suspect that this is a drafting issue rather than one of substance.

Amendment A207 would insert a definition of “animal” into Clause 136. My advice is that there is no need for this amendment, as the ordinary and natural meaning of the word will ensure that the term applies to animals in the general sense, including their eggs and other immature stages. All flora and fauna are potential “features” which can be protected under this part of the Bill and may therefore be subject to the general offence provision in Clause 136. However, I am prepared to reflect further on this matter in the light of comments that we have received this evening.

I hope that I have reassured noble Lords that I fully understand why it may well be necessary for some areas of the sea to receive complete protection. I have no doubt whatever that there will be some circumstances where that will be desirable and that the Bill currently allows us to do that.

In his response, the noble Lord said that he hesitated to mention the European fishing policy. If a conservation zone, whether a very pure one or a more ordinary one, were created off the coast of Cornwall or Devon, would there be anything to prevent the Spanish fishing fleet coming, as is its right, constantly to fish in that zone?

I gather that we will debate some of those matters later when we come to Amendment A122. Would the noble Baroness mind if we took note and came back to that point at that stage?

The noble Lord, Lord Eden, cited the eminent French gentleman who gave a definition of what a marine conservation zone should be. If I remember him correctly, he said that it should be properly marked or properly made known. Marking is something that I have mentioned before. There must be some way to mark a highly protected zone in a different way from an ordinary zone so that people who are using it are well aware of exactly what is there.

That is a very helpful comment, and I am happy to take it away to give it further consideration.

More generally, conservation of fish stocks is clearly important. I am not sure that marine conservation zones of themselves are necessarily the best mechanism to deal with that. Fisheries by-laws enable us to provide adequate protection where necessary, but I reiterate—I know that we will come back to this point later—that we will work within Europe and within the common fisheries policy to ensure that we influence fisheries policy in the right direction.

First, I thank the Committee for spending this length of time on this important group of amendments; it has been an excellent debate. I also thank the Committee for the very kind comments about what an expert I am. Of course, if I were a real expert, I would probably be somewhere in waders, quite muddy and with a lot of sampling kit. What I can say is that I have had a lot of excellent advice from many experts, including all the organisations in Wildlife and Countryside Link and from Natural England.

The description by the noble Lord, Lord Taylor of Holbeach, of a highly protected marine conservation zone as a pristine environment—that is what we should be trying to get to—was telling and one that we should keep in our minds as we think about what we are trying to achieve. It suggests something that is in no way despoiled. I also thank my noble friend Lord Livsey of Talgarth, who raised a very good example of where, not for the first time, the Welsh are ahead of us in their thinking. They want to have a number of highly protected sites. His point was that the Bill must support that. The noble Lord, Lord Eden of Winton, made the point that this is likely to be the only legislation for a long time to come.

After the Minister’s full reply, for which I thank him, I am much happier about his answers on networks. He gave a very helpful explanation of networks and how the Government envisaged them. We do not doubt the Government’s commitment to the marine area, otherwise we would not have the Bill before us; they are giving it considerable government time.

Despite all the Minister’s replies, I am still concerned. He says that he wants the MMO to be strong; that is exactly what we want. I still do not believe that we will be giving it a good tool in Clause 113 as it stands. Amendment A118 is still essential: the MMO should be able to designate a zone from the start as a highly protected marine conservation zone. The Minister says that nothing prevents a highly protected zone, but nothing in the Bill encourages it either.

With other noble Lords who have spoken, I will mull over where we have got to after this interesting debate.

The noble Baroness makes a fair comment, although I disagree with her. The very fact that the Bill requires the Secretary of State to report when there is a restriction on licensable activity shows that we recognise that that may well happen.

That is about where we are. It may happen. We could effectively create highly protected marine reserves, as the Defra briefing says. But if that is Natural England’s advice and the MMO thinks that it is justified, it should be able to create them straight off. It is hard to see how we can move away from that position. However, I will consult with colleagues and experts.

I am sorry to prolong this, but of course it can have that effect straight off by not allowing any licensable activities to be created.

If that is the effect, I am not sure that it is such a big step for the Minister to agree with me that Amendment A118 is fine. I look forward to discussing it with him before Report. I beg leave to withdraw the amendment.

Amendment A118 withdrawn.

Amendments A119 to A120 not moved.

Amendment A121

Moved by

A121: Clause 113, page 68, line 19, at end insert—

“( ) Until the coming into force of the first Order in Council made under section 39 (the exclusive economic zone), the reference in subsection (2)(b) to the exclusive economic zone is to be read as a reference to a renewable energy zone.”

I do not think this need detain the Committee for 45 minutes. These amendments are minor and technical; they correct a number of drafting errors in the Bill which we spotted after it had been published. We believe that they have no impact on the policy intent of the Bill. I beg to move.

I have no intention of detaining the Committee for 45 minutes, but I wish to use these technical amendments to pose a more substantive point. Specifically, government Amendment A185 refers to the provision in Clause 125 on by-laws for the protection of marine conservation zones in England. It provides that a by-law may be made which would prohibit or restrict,

“the doing of anything in the MCZ which will interfere with the sea bed or damage or disturb any object in the MCZ”.

Amendment A185 would change “will” in that provision to “would”. The point I wish to make is that this relates to the protection of MCZs in England. There is an order-making power in Clause 130 to protect MCZs in Wales, but I can find nowhere in the Bill a provision that allows either a by-law or order to protect MCZs in Scotland. No power is conferred on Scottish Ministers or the Scottish Parliament.

Clause 136 establishes offences but if I can go onshore and give a parallel, you can have an offence against a protected species onshore such as chopping down a tree. However, by-laws prohibiting people lighting fires in the vicinity of a wood might give greater protection as a preventive measure. Why is there not similar protection for MCZs in Scotland as provided for in Clause 125, to which government Amendment A185 refers?

I may need to take advice on this, but I shall give the noble Lord an off-the-cuff response. The inshore region of Scotland is entirely a matter for the Scottish Parliament and Executive to decide. I gather that because the by-laws apply to 12 miles out, there does not need to be provision for Scotland at all. That is the reason—the by-laws apply to 12 miles out.

I accept that I have sprung this on the Minister but what happens beyond the 12-mile limit? The by-laws may not apply but should there be an order-making power? It is clear in Clause 125 that it is not intended that these should apply only up to the 12-mile limit. If an MCZ is established beyond the 12-mile limit, do by-laws apply there or not?

By-laws do not apply beyond the 12-mile limit; it is as simple as that. Fisheries legislation may apply, but the by-laws cannot apply beyond the 12-mile limit. I am happy to write to the noble Lord with further detail, but that is the straightforward reason why it simply is not appropriate for Scotland to be mentioned in that context.

Amendment A121 agreed.

Amendment A122

Moved by

A122: Clause 113, page 68, line 19, at end insert—

“( ) In advance of designating an MCZ in an area where fishing vessels from other European Union Member States—

(a) have historic rights within the 12 nautical mile zone; or(b) operate within the UK marine area beyond the 12 nautical mile zone,the Secretary of State shall consult with the relevant Regional Advisory Council, the European Commission and affected European Union Member States.( ) When an MCZ is designated in an area where fishing vessels from other European Union Member States—

(a) have historic rights within the 12 nautical mile zone; or(b) operate within the UK marine area beyond the 12 nautical mile zone,the Secretary of State shall, within 28 days of designating the MCZ, make a request to the European Commission that any measures restricting fishing activity be applied to vessels from all Member States in line with the procedure outlined in Council Regulation (EC) No. 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy or in any successor Regulation.”

I move this amendment in the name of my noble friend Lord Taylor of Holbeach. We now come to the topic that my noble friends Lord Eden of Winton and Lady Carnegy have been dying to get their teeth into. The Committee has touched on this matter before. When we discussed Part 2, I raised the question of what powers we would have to protect the marine environment outside the six-nautical-mile limit. I do not know if, this evening, there is any way that I can persuade the Minister to discuss this in a little more depth because time is getting on. We have just had an interesting and useful debate on the levels of protection that a marine conservation zone might be able to offer various aspects of a marine environment. Along with my noble friend Lord Taylor, I welcome the Government’s intention to establish a network of zones that will make a meaningful impact on marine ecosystems.

I was interested to hear the noble Baroness, Lady Miller of Chilthorne Domer, in the debate on the previous group of amendments, mention flora and animals. I notice that Clause 114 stipulates “flora or fauna”. I wonder if it would be a little more comprehensive to use “flora and fauna”. From my limited understanding of science, I believe that when you get down to the level of diatoms and plankton it is a little difficult to determine exactly which is which. However, the question remains of what power there will be to establish marine conservation zones outside the six or 12-mile limit. If they extend out there, to what level will they be effective?

The Government’s marine programme plan notes yearly tranches of special areas of conservation, to be proposed to the European Commission. Defra’s website notes the five sites that have already been submitted. I look forward to hearing how these sites are to fit into the ecologically coherent network that this Bill seeks to establish. Are they to be considered separately at the moment, consulted on and considered in isolation from the marine conservation zones; or are they to be integrated, year by year, into other parts of the network? Surely it would be simpler and more effective for there to be one system of conservation. As we have discussed, the Bill’s provisions allow for a great deal of flexibility in the objectives of the marine conservation zones. There is equal flexibility in the restrictions and—in inshore areas—by-laws that can be imposed on them. What need is there for multiple and separate zones?

Do the Government have any intention initially to make designations within the six-mile limit, and then to start extending and overlapping into the area of the 12-mile limit, where we know that we have a realistic chance of being able to implement whatever regulations we put in place? The real question then becomes: are the Government prepared to suggest their intentions in the UK offshore area, and do they think that they would get any support from the operators from other countries in the absence of EU regulation? Can they expect backing from EU regulations before this magic date of 2012 that people talk about? How does the Minister intend to proceed if the recommendation process leads to suggested sites in offshore waters? What objectives will he be able to approve in these areas? How do the Government intend to further the objectives of a marine conservation zone when only a small fraction of the ships with access will have regard to them? I beg to move.

The noble Baroness, Lady Carnegy, referred to Devon and Cornwall and the western approaches, which are dear to my heart. The common fisheries policy is the elephant in the room—or perhaps one should say the whale in the Jacuzzi. We clearly must cross-reference the Government’s policy with the development of the CFP. When my noble friend Lord Teverson was a Member of the European Parliament he spent a huge amount of time trying to develop the thesis that the management of the fisheries around the European Union shores should be as far as possible a matter of subsidiarity, so that those most directly affected by those fisheries should be directly effective in their management. That is why this probing amendment is so important—it deals with both consultation and implementation. If the Bill is to be a success, it is absolutely critical that those two processes go together.

The Committee deserves an explanation of how the Minister and the Government anticipate that the MCZs will be treated by EU fisheries management. Clearly it would be absurd if we tried to develop an effective degree of conservation management only to find that we were subject to quite different approaches by other member states with historic rights, either within the 12 nautical mile limit or beyond, to an extent which could completely undermine the purposes of the zones.

I support the attempt by the Conservative Members of the Committee to elicit from the Minister a statement on precisely how the Government see these two important policy objectives interrelating. If we do not get clarity there will be considerable scepticism, and, indeed, cynicism, about how best to manage these zones in the future.

The western approaches are but one area where this issue will be particularly sensitive. The noble Baroness referred to the fact that we have in the past had our fishing rights infringed by the French, Spanish and Portuguese fishing fleets; it has long been a sensitive area. I am particularly concerned that the fishing communities all around the United Kingdom, especially in the south-west, should feel that the Bill is of general long-term value in conserving fish stocks, and that it will not be undermined by the short-term approaches of other member states. That is in no way incompatible with the long-term development of the common fisheries policy, nor does it undermine the purposes of the European Union, which is attempting to devote more attention to this important long-term strategic objective.

I hope the Minister will be able to give a positive reply. Without one, there will be an important lacuna at the very centre of this part of the Bill.

I support the amendment moved by my noble friend the Duke of Montrose and the remarks made by the noble Lord, Lord Tyler. I hope the Minister will be reasonably expansive in informing the Committee of the current thinking in the European Union in relation to the development MCZs and marine reserves. It is important that we know what the attitude of the European Union is today. My noble friend’s amendment refers to the Council regulation of December 2002 on the conservation and sustainable exploitation of fisheries resources under the common fisheries policy, and I should like to know what that amounts to in relation to the marine conservation zones that the Bill seeks to establish.

The common fisheries policy has been responsible for some of the most awful depredation of marine life in our oceans. I hope that the obscene practice of the quota system, which compels the discarding of any catches exceeding the quota because they may not be landed, is coming to an end. It cannot in any way be regarded as a defensible activity. I hope that the Minister will illuminate our proceedings today, if he is ready to do so on this occasion, by explaining the EU’s attitude towards the establishment of these important protected areas.

I apologise to my noble friend on the Front Bench and to the Committee for jumping the gun and asking about the European Union when I had not observed this excellent amendment. Of all the things I have heard my noble friend ask the Committee to accept, this is a really pious hope. I cannot see this working when it comes to keen fishermen who do not always obey the rules anyway. The country has picked on the alleys with the most fish and made them conservation zones. These are hardly going to be places that the Spaniards and Portuguese will want to leave alone. I will be interested to hear the Minister’s reply. It would be wonderful if this could be done. Something will have to be done but I think it will have to stronger than this amendment is suggesting.

This is a worthwhile amendment and I look forward with interest to the Minister’s reply. I share the view expressed by my noble friend Lord Tyler that there is nothing inconsistent with what we are trying to do in establishing marine conservation zones, either with the conservation objectives of the European Union or with the concept of the European Union itself. But it would be unfortunate when there is a lot of criticism among fishermen that the common fisheries policy is anything but common to create yet another area where what applies to UK fishermen does not apply to those from elsewhere.

In an earlier debate this evening the Minister indicated to the noble Lord, Lord Eden, that there could be no-take zones. If these were only to be no-take zones for British fishing vessels but quite legal for any other flag, that would build up resentment. One of the features of this legislation and the parallel legislation that is coming forward in Scotland is the extent to which the fishing industry along with other stakeholders—I hate the word but it is as good a shorthand as any—with interests in the marine area have had a buy-in. There has been considerable consultation and the Bill goes forward with a lot of support from all those who have an interest in the marine areas. If that was in any way to be fractured or held back because of an apparent and real discrepancy and prejudice between what applies to UK fishermen and what applies to others, that could be problematic. That is why the Minister’s response to this amendment is so important.

The trouble with giving way to other noble Lords is that nearly everything you want to say has been said, but I think it needs reinforcing. This is crucial for all of us around the Chamber. We do not want to put into statute something that affects British trawlermen but does not have the same effect on others who come fishing within our area. This issue has already exercised the Committee. The comments made by the noble Lord, Lord Eden, about discards and trawling—and I would include sand eels—reminded me of all the reports we have had from the EU Committee looking at fishing and the CAP. Year after year we say that we all know where there is a problem and what ought to be done, but nothing gets done.

This is a very good amendment, as other noble Lords have said, because it highlights some of the practical problems of bringing in legislation specifically for your own country rather than it being common to everybody. How do you police it? We are back to square one. The noble Lord, Lord Greenway, mentioned the question of how you mark these areas, because people do not always do this deliberately. Doing it by default is bad enough but doing it deliberately is hugely damaging. I understand that there are historic rights. Can the Minister clarify what those are? If we have no-take zones, they should be no-take zones for everybody. There does not seem to be, if I am reading it right, as much of a problem within the six-mile limit; the limits beyond that cause the greatest problem.

I go back to a point made earlier. Another noble Lord—I cannot remember who it was—asked whether it is just the easy no-take zones nearer the shore that will be allocated, and how that will relate to the sustainability of fish that might well be beyond that limit. If you had to implement that policy then it would be much easier to do the simpler things first, but in the long term that might not help conservation.

The amendment that my noble friend has moved has invigorated the Committee to bring back real and practical issues for the Government to think about, and in my few words I wanted to reinforce many of the issues that have been raised. We need to have a satisfactory answer. We may not be able to get an answer on the EU question from the Minister, but if he is not able to give it to us today then by Report we certainly need something concrete in that regard.

I congratulate the noble Duke, the Duke of Montrose, and his colleagues on the Front Bench for a gentle little amendment to conclude today’s proceedings. At this comparatively late hour it has raised one of the most significant issues in the Bill. There is no doubt that the integration of our conservation policies with those on commercial fishing go to the very heart of the Bill, so I am not surprised that the amendment has brought forward a number of heartfelt contributions. Noble Lords have raised a range of questions, not all of which I am confident of being able to answer satisfactorily, but I will do my level best to give reassurance in crucial areas and bear in mind the points that have been made in others.

Our objective is clear: we want to create a legal framework enabling us to make the best use of our abundant marine resources over the coming decades, and we want to find space in our seas for all sectors of the marine economy while ensuring that the natural environment, which provides so much support to the marine economy, is adequately protected. If I had been in any doubt at all, several of the contributions to this short debate made it clear that in some cases commercial fishing can have an adverse effect on the natural environment, and that in the past commercial fishing has been subject to some imperfections in the overall policy that has sought to control it. The noble Lord, Lord Eden, made that point strongly. I believe his phrase was that there had been “imperfections” in the common fisheries policy, although I have heard things expressed even more trenchantly than that about the policy. Suffice it to say that we are not alone when we identify weaknesses in the past.

As the Committee will be aware, the common fisheries policy is due for a major review in the near future, by 2012. We have learnt some severe lessons from the past, some of which have been reflected in the anxieties expressed here today and on other occasions. The noble Baroness, Lady Carnegy of Lour, said that something needs to be done. That is the Government’s view too, which is why we will be participating in that work on the common fisheries policy against a background where we will also have this legislation, indicating the role that we need legislation to play in terms of protecting the marine environment.

The other dimension that came through strongly from the beginning from the noble Duke and was then reflected faithfully from all parts of the Committee—the noble Lord, Lord Wallace, was as trenchant as any—was that we do not want to disadvantage our fisherman against those from other territories and countries. I will not be able to give total satisfaction on all those points, but I bear in mind the strength of the representations, and we will do a great deal of thinking about them.

We need to recognise that EU law, through the common fisheries policy, places restrictions on the measures we can take in some of the UK marine area. The authorities will, of course, assess these factors and many others and will make the best judgment on the available evidence and expert advice on the balance between fishing and the necessary conservation measures. The amendment would add two new subsections to Clause 113 which clearly recognise the tension here. It would oblige Ministers to seek agreement in Brussels, under the common fisheries policy, where any necessary restrictions on fishing activities need to apply to the vessels of another member state.

Let me reassure the Committee that, of course, the Government recognise that as a most crucial obligation and it is something we will do. It is obvious that we need to ensure agreement in Brussels for the totality of this legislation, together with other aspects of our fishing policy, to be effective. We are fully seized of those points made in the debate this evening and the strong representations that we need to take those points on board. But we are obliged to take them on board—we are already legally bound to seek agreement for the six to 12 nautical mile zone, by Council Regulation No. 2371/2002 which is referred to in this amendment. It requires us to seek such agreement. Beyond 12 nautical miles, as we are all aware, the common fisheries policy applies in any event. So although I emphasise that not every marine conservation zone will necessarily entail restriction on fishing, it is inevitably the case that some work in this area will, and we will need to get agreement as far as the European Community is concerned.

What the amendment also seeks to do is to ensure that UK fishing vessels are treated in the same way as those of other member states. That is certainly the Government’s aim too, but the Committee will know the realities of the situation and will expect me to be frank about those realities. We have the ability, under the common fisheries policy, if we so choose, to apply more stringent regulation to UK vessels than required by the common fisheries policy. If we did, of course, that would apply to UK vessels only, and I am all too aware of the strength of feeling on this point, which is contained in the amendment.

The Minister has talked of UK vessels only, so I wonder what will happen in the areas, of which the JNCC has furnished us with some maps, which refer to proposed special areas of conservation. These would, I think, fall within the area we are talking about. Presumably the measures that will apply to those have already been discussed with Brussels and agreed, or are these just proposals at the moment and an aspiration for the JNCC?

I do not think that we are in a position where we can say that we have secured full agreement, but the noble Baroness is right to say that it is part of the Government’s objectives. Let me conclude the point I was making because it is important, and I shall try to develop the other issues that have been raised.

We could put more stringent regulations on UK vessels if we chose to do so, but I make the obvious point that exercising that power would not be undertaken lightly. If we have to use it to protect marine conservation zones, it would be only because there was a compelling case to use a measure of last resort. The idea that we would lightly apply to the British fishing fleet controls that we would not be able to operate in relation to other vessels is, as far as the Government are concerned, a matter of last resort. So I accept the point made by the noble Lord, Lord Wallace, and indeed it underpinned what the noble Lord, Lord Eden, and the noble Baroness, Lady Carnegy of Lour, were saying as well. We are not in the business of disadvantaging the British fishing industry, but with regard to certain aspects of these zones, we could not give an undertaking that we would do nothing about fishing if the only way to protect the zones was in fact to do something.

I am grateful to the Minister for making his point so clearly, but it is not the other side of the same coin. It is not that we are only seeking comparable and fair treatment between British and other fishing vessels, but if the conservation argument is such that restrictions have to be imposed, that aspect could be undermined if there were not also comparable treatment between British and foreign vessels.

Very briefly, I want to remind the Minister of the fact that the European Union regulation to which my noble friend’s amendment refers was examined by the European Union Select Committee of this House in its 25th report, published in 2003, commenting on the progress of reform of the common fisheries policy. The committee made the point then that this regulation was the most controversial of the 18 documents published about the outcome of the consultation process. What is the attitude of the European Commission today? The difficulty is that there is a gap between the declaration of intent and the implementation of the policy. Other noble Lords have talked about the need for consistency in the establishment of conservation zones. The consistency will come about only if the European Commission requires it to happen, and therefore the attitude of the main fishing countries such as Spain and France is very important. We need to know exactly where they stand.

That is certainly so, but I am not sure that I am able to go into any accurate detail about it at this point. What the noble Lord is reflecting is the fact that there is a marine strategy framework directive which is the property of the European Commission. It requires member states to include spatial protection measures within their programmes of measures to achieve good environmental status, and therefore we have a plank on which to argue and negotiate the achievements scheduled in this Bill against a background of general European understanding of the necessity to take these kinds of measures in the waters around Europe. We anticipate that the requirement of the directive will be met at least in part through the delivery of our commitments under the birds and habitats directives and through the domestic legislation of the marine conservation zones, which we are introducing through the Bill. We are working with the grain of the European position.

I am sure that none of us wants to extend this discussion for too long but, given the Bill’s long gestation, the tentative way in which the Minister indicates the position of the Commission, the EU generally and other member states is not satisfactory. Surely the Government must have made more progress in the discussions before the Bill came forward on this vital issue, which threatens to undermine the whole purpose of the legislation. If he cannot do it this evening, maybe he can find some way in which he can give us a more definitive answer about how precisely the zones are intended to interrelate with the CFP as is now intended by the Commission and by other member states. Without that, we are in a difficult situation in looking at the Bill. I appreciate that it is late in the evening but, given that the Bill has been in prospect for so long, it is not acceptable to be as vague as the Minister is now being.

The noble Lord must not underestimate the progress made thus far. The network that we are establishing, which will include the marine conservation zones, will establish a network with all European sites. The objective of the network set out in Clause 119(2) ensures that the zones taken together with the European marine sites form a network. We have a framework within which these negotiations occur. We have a directive that enjoins on states the necessity of making progress in this area, which we are doing. I admit that 2012 is some distance away, but the reform of something as substantial as the common fisheries policy is not done at the flick of a switch. The noble Lord will recognise that that objective gives us time to do the revision against the background of necessary changes to the common fisheries policy as well.

I am indicating to the Committee that it should not be surprising that the UK is taking a progressive lead on these matters, as we are with regard to marine conservation, but we are doing it with the grain of changed European opinion and the acceptance of the desirability of making progress well outside United Kingdom waters. Within that framework, we are working with the grain of opinion in Europe, necessitating change in the common fisheries policy, and with the recognition that others will be jointly expected to do what we are doing. All I am able to add at this stage is the recognition of the point that has been made so forcefully tonight: the Government must not lightly take on as part of this policy decisions that would disadvantage British fishermen and the British fleet against other European fleets. I am indicating that of course the Government are fully charged of the importance of that statement, which has been made all around the Committee this evening.

I understand what the Minister is implying, but Clause 119(2) states:

“The objective is that the MCZs designated by the appropriate authority”,

will be,

“taken together with any other MCZs designated … and any European marine sites that have been established”.

Have any been established?

The noble Baroness will be all too well aware that we are discussing an evolving policy. None of our sites has been established yet, either. We are dealing with legislation that creates a circumstance, so she will forgive me if I do not give a detailed map of what has been achieved thus far. However, she will recognise what we are aiming for with this legislation and that a European drive is consonant with it; in fact, the European drive partly predates it.

Perhaps I may help the Minister. I believe that the Defra website has made note of five possible sites already submitted, so there is a little bit of information available.

I thank all noble Lords who have contributed to this animated debate. The Minister will perhaps be quite pleased that it took place so late in the day, or we might have had a much larger body of noble Lords trying to intervene. I am not sure that I should be glad that my noble friend Lady Carnegy of Lour feels that I am capable of pious hopes, but some of the answers given by the Minister perhaps make me something of a common bedfellow as far as that goes.

The Minister said that we are obliged by EU regulation to seek agreement on matters within the 12-mile limit. We do not need agreement with anybody other than those within the UK, but we need to get on and get it done. Given the sense of urgency, I had hoped that the Government would give us some idea of what they see as the way forward in the areas over which we have power. The prospect of the Minister imposing on UK vessels restrictions that do not apply to others gives one visions of reactions perhaps even more violent than anything we have had to the current banking crisis. In the mean time, I beg leave to withdraw the amendment.

Amendment A122 withdrawn.

Clause 113, as amended, agreed.

House resumed.

House adjourned at 10.07 pm.