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Marine and Coastal Access Bill [HL]

Volume 708: debated on Wednesday 11 March 2009

Committee (8th Day)

Clause 116: Consultation before designation

Amendments A142 to A145 not moved.

Amendment A146

Moved by

A146: Clause 116, page 70, line 31, leave out subsections (10) and (11)

I move Amendment 146 on behalf of my noble friend Lord Taylor. We have tabled this amendment to probe the expedited process for designating marine conservation zones. Clause 116(1) states very clearly that there is a due process for designating, which is described in subsections (2) to (9). This process involves publishing proposals and consulting the appropriate persons, including the Secretary of State. Subsection (10), however, allows the appropriate authority to miss out all the stages of the publication of the proposed site and the consultation on it if the area in question requires urgent protection.

Will the Minister say what he considers to be “an urgent need” to protect an area? Having waited so long for a marine Bill, what could be so urgent that it cannot wait to go through the normal stages, and who would decide this urgency? Having asked the question, I acknowledge that there will be times when it is crucial to designate a marine conservation zone to stop irreversible damage and the time needed to publish the notice and complete the consultation exercise is unacceptably long. It would be helpful if the Minister could say what he expects the timeframe to be from identifying an area as a possible marine conservation zone and its actual designation as an MCZ. Will he also make it clear to the Committee what other occasions might be needed and what safeguards will be put into place to make sure that subsections (10) and (11) cannot be exploited by one group or another?

We support the principle of the Bill, and we want MCZs to be able to protect areas as quickly and effectively as possible. We do not wish harm to befall an area simply because the proposal for designation got caught up in bureaucracy. Nevertheless, we are nervous about the power that subsections (10) and (11) could afford. Perhaps the Minister can reassure us and put on to the record when and in what circumstances these two subsections might be used. To this end, I also declare our tentative support for Amendments A148 and A196, in the name of the noble Lord, Lord Greenway. Before he speaks to them, however, I note that on day six of Committee the Minister said that,

“in developing the network … it will be subject to monitoring, review, amendment and, I am sure, improvement beyond 2012 ... the network will evolve after 2012 and even after 2020 as pressures on our marine environment change”.—[Official Report, 3/3/09; col. 684.]

With this in mind, it seems that the amendments tabled by the noble Lord, Lord Greenway, are very relevant, and I look forward to hearing him speak to them. I beg to move.

My Amendments A148 and A196 are grouped with Amendment A146. Amendment A148 refers to Clause 118, which deals with the amendment, revocation and review of orders designating marine conservation zones. The amendment would insert a new subsection, because the process for giving effect to amendments to an existing MCZ should be in line with the initial designation procedures, including consulting interested or affected parties. As an MCZ will already be in place in such circumstances, the provision under Clause 116(10) for making an urgent designation without consultation should not be applicable but the opportunity given for representations to be made at a time when original conditions might have changed and/or other persons or interests are affected.

Amendment A196 refers to Clause 128, which deals with interim by-laws. Again, the amendment would insert a new subsection. Representations can be put forward when an interim by-law is made initially. However, the process is less clear when it is subsequently determined to designate the area or part of the area as a permanent MCZ. In such instances subsection (11) requires an order to be made under Clause 113, while the interim by-law may remain in force pending the outcome of the decision. It is not clear whether in such circumstances an order under Clause 113 would be subject to the requirements of Clause 116. But if that is the case, and the by-law can be expected to remain in place, it would not be appropriate to include the procedures in subsection (10) for making an urgent designation without consultation. My amendment is designed to ensure that the opportunity is given for full representations at a time when a permanent order is to be made but conditions might have changed and other persons or interests become affected.

I am grateful to noble Lords who have spoken to this group of amendments. I agree that their anxieties need to be allayed because there is not the slightest doubt that public engagement is fundamentally important to the way in which these sites will be designated and protected. It is the best way to ensure that we come to the right decision on the best available evidence and secure wide understanding and support for the protection measures which result. I am of course at one with the sentiment expressed by the noble Duke, the Duke of Montrose, and the noble Lord, Lord Greenway, that consultation should be the norm and that, for the policy to be effective, consultation needs to be full and thorough.

The noble Duke, the Duke of Montrose, asked questions which focused around several issues, the main one being the provision for urgency in the Bill. I agree with the noble Duke that that should be a rarely used provision, but we allow designation to take place on an interim basis, solely for protection, without prior public consultation. We would want to create the space for that consultation to take place. I am entirely at one with the anxiety that the noble Duke has expressed.

He also asked in what conceivable circumstances urgency would be the issue. We feel that it is necessary to make this provision. Certainly, the powers are likely to be used very infrequently, especially as interim by-laws can be made to protect an area before it is formally designated. But by-laws will not be able to protect nature conservation features from all potential threats. The ability urgently to designate an MCZ means that the duties on public authorities are given effect and the general offence of intentionally damaging a protected feature of a site will apply. It is prudent that the Government should have provision for urgent action.

I agree entirely that when such action has been taken the process should be in place before anything permanent is established for the proper consultation. But there can be occasions when a threat is presented, and we want the power to carry out urgent action. I want to reassure noble Lords that we do not expect this procedure to be used in any other than wholly exceptional circumstances. I follow entirely the thinking behind the amendments, that consultation ought to be the norm and that we will only bring about the effective operation of these zones with full public consultation leading to acceptance and an understanding of them.

However, I want to defend the concept of the urgency provision. Clause 113 as it stands will achieve the same outcome as Amendment 148, spoken to by the noble Lord, Lord Greenway. The amendment would ensure that any changes to the designation orders follow the transparent consultation and designation procedures in the original order. The clause will achieve that because it applies to amending orders as much as it does to the original designation orders.

Amendment 196 seeks to ensure that the public have the right to make representations before an area is designated. The existing duty in Clause 116 to carry out public consultation carries with it the implied right of members of the public to make representations, as well as an implied duty on the appropriate authority to have regard to them. That is certainly our intention and our reading of the clause. I hope that that reassures the noble Lord.

I understand the motivation behind the amendments and I hope that I can interpret them as probing in nature. We have thought about these issues carefully, and I want to make one point about the urgent provision. If we had no capacity at all to act except through existing procedures and consultation, and there was anything like an urgent threat necessitating prompt action, we would be remiss. That is why I defend the Bill as it stands and I hope that the noble Duke will feel able to withdraw the amendment.

I thank the Minister for going into our concerns on this matter so fully, although it is a little quaint that he believes that a by-law could be brought in more quickly than implementing this procedure. I would have thought that this procedure would be as fast as it is possible to be. However, we will have a read of what the Minister has said, and with that I beg leave to withdraw the amendment.

Amendment A146 withdrawn.

Amendment A147 not moved.

Clause 116 agreed.

Clause 117 agreed.

Clause 118: Amendment, revocation and review of orders designating MCZs

Amendment A148 not moved.

Clause 118 agreed.

Clause 119: Creation of network of conservation sites

Amendments A149 and A150 not moved.

Amendment A150A

Moved by

A150A: Clause 119, page 71, line 20, after “authority” insert “for the purpose of conserving marine flora or fauna or marine habitats or types of marine habitat”

We have tabled Amendment A150A to better define the status of the network. Clause 119(2) states that:

“The objective is that the MCZs designated”,

have to “form a network”. I think that most, if not all, noble Lords agree that a network of MCZs will be vital in promoting sustainable development and in the protection and improvement of marine flora, fauna and habitats.

In establishing MCZs, it is important that the purpose and objective of each zone be made clear so that the management and level of protection will vary from zone to zone, and even between zones according to their purpose and objectives. So there will be highly protected zones and at the same time other zones designated with different aims and protection. If this is an accurate reflection of the Government’s intention, where is this reflected in the wording of the Bill?

I want to make it absolutely clear that this amendment in no way diminishes the importance of the previous debates that we had regarding marine conservation zones, namely the designation of conservation zones in order to contribute to an ecologically coherent network of sites which will include highly protected sites. This need for an ecologically coherent network, including highly protected sites, was highlighted by the Joint Committee and, when debated earlier in this Committee, was supported by one and all. Indeed, this consensus was even supported by the Minister.

He emphasised a number of points, using the word “categorical”. First, after taking legal advice, he said:

“Clauses 113 and 119 together clearly place a duty on Ministers to exercise the power in Clause 113 to designate sites”.—[Official Report, 3/3/09; col. 683.]

Secondly, he confirmed that the establishment of an ecologically coherent network of marine protected areas is vital. Thirdly, he confirmed that the shape of the network will clearly be driven by science. Fourthly, he confirmed:

“The ecosystem-based approach also includes the concept of connectivity between zones”.—[Official Report, 3/3/09; col. 710.]

Fifthly, on highly protected marine reserves, the Minister, in answering my noble friend Lord Eden, said:

“I am absolutely clear that that is possible … 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”.—[Official Report, 3/3/09; col. 711.]

These five areas are all matters where there is complete consensus in the Committee, even, as I have tried to illustrate, with the Minister. So why are these matters not in the Bill? Clause 119, under discussion now, seems an obvious place to put that right. I am not asking the Minister to agree today to put these matters in the Bill—though that would be nice—but to agree to take them away and consider whether they can be included. That seems to be the will of this Committee, and where there is a will there is a way. One advantage is that it would save an enormous amount of time at Report. I apologise to the Committee for going over old ground but I find it difficult to debate Clause 119 without doing so. The five points I have mentioned seem to fit nicely within this clause.

As I said, Amendment A150A raises a different point. The Minister talks about the need for flexibility, but as Clause 119(2) is written it gives a strong impression that for an MCZ to be designated it must be part of a network. I am sure that this is not the intention of the Government.

Because of time restrictions, the noble Baroness, Lady Young, talked to her Amendment A151 earlier; it inserts Ransar sites and sites of special scientific interest. I remind the Committee that Ransar sites are protected wetlands. The Minister responded by saying:

“There has been an oversight here. I shall reflect further on that proposal between Committee and Report”.—[Official Report, 3/3/09; col. 684.]

Our amendment develops the amendment tabled by the noble Baroness, Lady Young, and highlights that not all MCZs need to be part of a network. The Minister has already said:

“Marine conservation zones will therefore be designated for the purpose of conserving marine flora and fauna, marine habitats or types of marine habitat, and features of geological or geomorphological interest”.—[Official Report, 3/3/09; col. 678.]

I would add heritage sites. As should be obvious, there is no need for a network to be in place in order to protect these features. Not all MCZs need to be part of a network, although the vast majority will be. I ask the Minister, when he looks at Amendment 151 tabled by the noble Baroness, Lady Young, to consider this amendment at the same time. I beg to move.

My noble friend has already undertaken to look at the amendment of the noble Baroness, Lady Young. If the noble Earl’s objective is that in looking at that amendment my noble friend should look also at the arguments he has put forward with regard to his amendment, I can give that assurance. I can probably sit down at this point because I may have nothing further to add. The noble Earl would expect that on other matters I would develop an argument expressing why we think we have thought through the issues carefully. If he will withdraw his amendment on the grounds that we will look at it at the same time as we consider the noble Baroness’s, we certainly will.

Amendment A150A withdrawn.

Amendments A151 and A152 not moved.

Amendment A153 had been withdrawn from the Marshalled List.

Amendment A154 not moved.

Amendment A155

Moved by

A155: Clause 119, page 71, line 27, leave out paragraph (b)

I also support the amendments of the noble Baronesses, Lady Young and Lady Miller of Chilthorne Domer.

This is a simple probing amendment to establish what the subsection is designed to achieve. As drafted, it seems to suggest that MCZs should be established over uninteresting or environmentally secure areas as well as places that would benefit. I am not sure that the Government mean this and I suggest that the department comes up with rather more precise drafting.

On the other amendments in the group, I agree with the amendment of the noble Baroness, Lady Young, which suggests that MCZs should be an appropriate size for their objectives. I look forward to the Minister’s reassurances that this is how he intends to implement these provisions.

The amendment of the noble Baroness, Lady Miller, is a sensible one. The discussion last week on what constitutes a network and what the duty in Clause 119(3) should achieve will no doubt continue as these provisions are implemented. A transparent assessment of what has worked or not worked will be of great help in informing the debate. I beg to move.

I apologise on behalf of my noble friend Lady Miller of Chilthorne Domer. She has been caught short, even more than I was, by the rapid and somewhat premature ending of the debate on Northern Ireland.

It was chopped off before the end, shall we say.

Amendment A164 refers to Clause 120 and the report that the appropriate authority has to produce on the carrying out of the duties to provide marine conservation zones and the operation of those zones. Clause 120(2) provides that the report must contain certain information, including the number of MCZs that have been designated, their size, the conservation objectives and so on, and, towards the end, those conservation objectives which have been achieved and,

“any further steps which, in the opinion of the authority, are required to be taken … in order to achieve the conservation objectives”.

My noble friend’s amendment seeks to add to this a reference to the requirement in Clause 119(2) for the marine conservation zones to form part of a network which operates in a coherent way for the conservation objectives of the zones. The amendment seeks to add,

“any further steps which, in the opinion of the authority, are required to be taken to comply with section 119(3)”,

which concerns the operation of the network. It is an obvious provision to add. It is a fairly simple amendment, and I hope the Government will at least think about adding it to the Bill on Report.

We have discussed already the importance of designating marine conservation zones. This debate takes us on to matters concerning ecological coherence and what we mean by “representational” and I am glad to be able to respond to it. In probing this matter, Amendment A155 seeks to remove one of the conditions of an ecologically coherent network that requires that the features protected within the marine conservation zones represent the range of features present in the UK marine area. The noble Lord, Lord Taylor, suggested that “representational” might mean some very uninteresting areas.

We are putting in place a network of sites for our seas and we want to ensure that we represent the range of features that we have. In subsection (3), we have included three core design principles as developed for the Convention for the Protection of the Marine Environment of the North-East Atlantic and the International Union for Conservation of Nature. “Representativity” is defined under OSPAR to mean that the MPA network should represent the range of marine habitats and species through protecting all major habitat types and associated biological communities throughout their geographical variation in each of the seas around the UK. This important principle will underpin development of the UK network, but we will need to think further about what we consider representative features to be within our UK seas to ensure that we reflect our precious marine environment.

The noble Lord might have asked for examples of a representative feature. We are thinking about rocky reefs, which might contain a wide variety of attached organisms; sublittoral muds, which are important in nutrient cycling; kelp forests, which contain high biodiversity and can be nursery areas for fish; littoral rock, where rocky seashores provide an important link between the land and the sea; biogenic reefs, which contain reef-building worms and molluscs and provide an important habitat; and salt marshes and saline reed beds, which can provide a natural form of coastal defence and act as nursery areas for fish. Those are some examples of what we have in mind but, as I said, more work needs to be done to understand the matter more fully.

We have, of course, worked hard to learn more about our marine environment but we still have some way to go. Ecological coherence and the definition of the UK network inevitably are evolving concepts that we cannot define on the face of the Bill because they will be out of date very soon. However, we will provide guidance in our draft strategy, to be published for consultation around Easter, which will reflect our thinking on what the network should look like. It will, of course, pick up the issue of “representational”.

Let me be clear on Amendment A164, because I take the point made by the noble Lord, Lord Greaves, on behalf of his noble friend. The purpose of Clause 120 is to establish a duty on the Secretary of State to report to Parliament on progress in designating an ecologically coherent network of sites. The report, initially made in 2012, and then at least every six years thereafter, will set out the number and type of marine conservation zones designated, as well as any measures that could be taken to further the conservation objectives for a site.

Paragraphs (a) and (b) of Clause 120(1) state that the report to Parliament must include the extent to which the objectives of Clause 119(2) have been met and any further steps that are required to be taken in order to contribute to the achievements of the objectives. On the point made by the noble Lord, Lord Greaves, Clause 119(2) sets out the objectives of the ecologically coherent network and suggests that these must meet the conditions set out in subsection (3). From advice that I have had and from my reading, I understand that, because of that, the Bill requires the report to Parliament to include any further steps that, in the opinion of the authority, are required to comply with the conditions in Clause 119(3). That is a roundabout way of saying that we think that we have the point covered.

The Government are a bit carried away with their drafting. Clause 119(3)(b), to which my noble friend’s Amendment A155 refers, is self-evident. If the features are present in the network, they are present in the marine area. That stands to reason. Presumably, what the Government in fact want is a range of features that are more widely present in the marine area. That may not be the precise drafting needed, but it would be better than this. My noble friend is right. This paragraph does not say anything. The Government really should look at it. It is a drafting point; we all know what we are trying to do, but that paragraph will not do.

The advice of the noble Baroness is always taken seriously and we will always look at it. However, it is quite clear that we are saying that features protected by the sites represent the range of features in the UK marine area. I have read out examples of some features that might come within that, but I am always prepared to look at drafting points.

I am grateful for what the Minister has said. If it is covered, that is okay and we may be satisfied, but I will refer his remarks to my noble friend and she will no doubt analyse them in her normal diligent way. There are rather a lot of things in the list, but this is an important point that is not listed. Some other things that are set out could be regarded as covered somewhere else or in some other way. It may be valuable to put this on the face of the Bill, but no doubt my noble friend and the Minister will think about that.

I am grateful to the noble Lord. I should point out that, under Clause 120(1)(b), the appropriate authority must lay a report that includes any further steps, so there is plenty of scope for further reporting.

I am grateful to the Minister for responding to these amendments so positively. He has said what those of us who tabled the amendments have wanted to hear. However, there is a problem, as my noble friend Lady Carnegy pointed out. The wording might not be quite matched with that of the Minister’s, but my noble friend made the valid point—as I hope I did in my introduction—that it would pay for the Government to look at this wording, to make sure that it expresses what the Minister was saying in his response to these amendments. However, taking into account the Minister’s assurance, I beg leave to withdraw the amendment.

Amendment A155 withdrawn.

Amendment A156 not moved.

Amendment A157

Moved by

A157: Clause 119, page 71, line 31, at end insert—

“(d) that the purpose of designating sites as a network is to implement the ecosystem-based approach to marine management;(e) that the network should cover at least 30 per cent of the UK marine area, and the appropriate authority should aim to deliver this coverage by 2020”

Again, I am moving this amendment on behalf of my noble friend Lady Miller of Chilthorne Domer. I apologise that, in rushing across when the Irish debate suddenly stopped, I forgot to bring my reading glasses, so if I have a little difficulty, the Committee will perhaps sympathise.

Amendment A157 would add that the purpose of designating a network is to implement an ecosystem-based approach. It deals with issues that have been discussed before, but are nevertheless important, regarding the proportion of the seas that may end up being part of the conservation zone network and how long it may take to achieve that.

Clause 119(3) does not state that one purpose of the designation of the network of conservation sites is to implement an eco-based approach to marine management. UK marine management is required to implement the eco-based approach by the EU marine strategy framework directive 2008 and the UK’s OSPAR commitment. Accordingly, this requirement ought to be incorporated into the Bill. My noble friend believes that this is the appropriate place to put it.

Clause 119(3) also does not set a size for the coverage of the UK marine area by the network of conservation sites. The Minister has already explained why he does not think that it is appropriate to set out a specific percentage in the Bill. However, we challenge the Government to explain their vision of what there might be in 10, 20 or 25 years’ time. What are they setting out to achieve? They seem to be remarkably coy about doing this. They say that they want marine conservation zones and more environmentally friendly—or healthy—seas around the shores of this country, but they do not seem to have a vision.

The other day I was thinking about the National Parks and Access to the Countryside Act 1949, in which some of us have been taking an interest recently in order to try to understand later parts of this Bill. At that time, there was a clear vision. That legislation was similar to this Bill in that it set out pioneering ambitions for part of the terrestrial area, or land, of this country, particularly in the form of national parks and long-distance trails. As far as the national parks were concerned, the Government of that time had a clear idea of what they wanted to do and of where those national parks were going to be. By and large, we got them—although one or two were added or taken off. With one or two, there was a vision and it has come back again; I am thinking of the South Downs in particular. However, by and large, the Government knew what they wanted: the Lake District, the Peak District, the North Yorkshire Moors, Dartmoor and so on. They produced the legislation with a clear idea in mind of what its results would be.

We do not have that here. We have a general wish and ambition to have these marine conservation zones but no clear idea of how much of the sea they will cover, how much of them will be highly protective—whether they are called that or not—and how much of them will be lesser protected. That is crucial to the Bill. This amendment challenges the Government to say that.

I should add that, in working out these amendments, my noble friend was working closely with, and had assistance from, the MARINET network of Friends of the Earth organisations. I beg to move.

I congratulate the noble Lord, Lord Greaves, who was as fluent as ever regardless of whether he had the correct glasses on. He presented a very powerful argument. Although I cannot agree with every detail of the amendment, we agree with the concept of using an ecosystem approach when designating the MCZ network. We should very much like to see the Bill changed to reflect that. I hope the Minister will agree with us that the lack of a definition of what a network represents is a weakness in the Bill. I also hope that he can return with an improved drafting which seeks to define it.

We do not, however, agree with the statutory target of 30 per cent. We therefore cannot support the amendment. Setting an arbitrary target of the sea area to be covered would go against our view that MCZs should be established on a clear scientific basis and have the flexibility to respond to improving scientific research and changing circumstances on the ground. From a legislative point of view, we prefer to see an effective conservation network put in place by ensuring that duties and expectations laid upon the Secretary of State are clear.

I agree with the noble Lord, Lord Taylor, that the noble Lord, Lord Greaves, was as fluent as ever. I am just slightly shocked that he thought that the Government, moving with their usual precision and expedition, got through the previous business in a reasonable amount of time so that we would be ready for this Bill—on which we shall proceed with the same degree of expedition and precision. I have not the slightest doubt that the noble Lord, Lord Greaves, will be making his full—I emphasise the word full—contribution to that expedition.

The noble Lord, Lord Greaves, identifies that there should be an ecosystem-based approach to the work we are involved with in the Bill. Of course we agree with that; that is the intention behind the Bill. We will take that into account in designating a network of sites. However, like the noble Lord, Lord Taylor, we have the greatest difficulty in accepting that some percentage of the sea could be identified at this stage. I realise that I am treading on dangerous ground by debating the subject of national parks with the noble Lord, Lord Greaves, but if he is saying that there was a full vision of every aspect of the United Kingdom that would be designated as a national park when the national parks were introduced, I can only disagree with him. That is not so. It is certainly the case that the principles behind the concept of the national park were identified, and it is certainly the case that the Government made relatively early and rapid steps in the designation of certain national parks, but, as the noble Lord knows as well as anyone in the Chamber, the designation of national parks is ongoing.

The same principle, even in extenso, applies to the sea. We are not able arbitrarily to identify a percentage of the sea that needs designation and protection in these terms. We are dealing with an evolving situation. The noble Lord, Lord Greaves, is emphatic that there should be a scientific basis to this work. He accords with that. It will be recognised that science evolves. We are dealing in this situation with at least two dimensions that have great fluidity. “Fluidity” is perhaps the wrong word to use when trying to describe the sea, so I shall withdraw it. Two dimensions have a great deal of variability. The first is advances in science that will take us beyond the positions we can foresee at this stage. If we were operating within the parameters of science in this year of grace 2009, it is likely that, even within the timetable that the noble Lord, Lord Greaves, has set, we would find ourselves constrained by such a concept. The other variable aspect is the sea itself and the demands that are made on it.

I believe that the noble Lord must recognise that the Government, in setting the Bill out in the way that we have, share entirely those objectives about what is to be achieved. However, we are seeking to avoid the very rigidities to which he is trying to direct us by this amendment. It is not the case that experts agree on what proportion of the sea needs to be designated. There is considerable debate about those issues and experts have given different figures. The noble Lord must give the Government credit for wanting to produce legislation that will be effective for a substantial period. To have a prescribed target of this kind on the face of the Bill would therefore be very limiting.

Now, what about the timetable? Ah, the noble Lord, Lord Greaves, will get me on the third point. I hope I am standing on relatively firm ground regarding scientific and public opinion, but what about the fact that we have a timetable for the Bill? The Bill sets out that Ministers will have to report to Parliament on progress. They will have to start reporting in 2012 to show how much progress has been made with the Bill once it becomes an Act of Parliament, and they will have to report at least every six years thereafter. The report will highlight the achievement of the network and include not only details of the marine conservation zones designated but also any further steps that could be taken to achieve a network of conservation sites.

I want to defend the Bill as it stands against an amendment that would be crippling in its limitations. I may not take the noble Lord, Lord Taylor, with me every step of the way, and I am not asking him to subscribe to such an advanced position as that of the Government, but I hope that I am taking him with me in relation to his anxiety about being too prescriptive, as the amendment is. I hope that the noble Lord, Lord Greaves, will feel able to withdraw his amendment.

My Lords, the Minister did not comment on the suggestion that the networks might cover one-third of the sea. I do not know very much about fish, but if these conservation zones cover too big an area, the fish are going to begin to rumble where they can go so as not to be caught. If it were a third of the sea area, I would have thought that Mother Nature and her wonders would mean that the fish would soon discover that they could cluster in that third, and the European fishermen, the Russians and so on would have a very poor time. Does the noble Lord agree?

I had not taken into account the marine life, but it gives me a chance to speculate on the intelligence of the long-snouted seahorse, which is one of the marine animals that we intend to preserve with the Bill. I am sure the noble Baroness is right. We will have to shift with the times, the tides, the changing sea and its ecology. That is why I am resistant to rigidity.

I am grateful to the Minister for his expeditious response. He suggested that I thought the Government were being evasive on two points. He was wrong: I think they were being evasive on all three points. The ecosystem point, as an issue and a concept, will clearly come back for further discussion on Report somehow, so I shall say nothing more about it now. Whether it is at this point in the Bill or some other remains to be seen, but I am quite sure that there is further debate and discussion to be had on it. The point of view will, clearly, have to be put on Report that ecosystems ought to be more overtly placed in the Bill as the basis for marine conservation.

The noble Lord chided me for my historical suggestion that in the historic and iconic 1949 Act on the national parks, people had a much clearer vision of what the end result might be than appears in this Bill. I stand by what I said, and if the noble Lord were to go back and read the Hansard of those debates from 60 years ago, he would find lots of references to the likely size and shape of the national parks that were to be set up. They did not all happen exactly as everybody wanted. There was much controversy, for many years, about the north Pennines and there is in what the Minister mentioned about the network continuing to evolve, which is about the South Downs.

Many people had the vision, 60 years ago, that the South Downs should be a national park. For all sorts of reasons, that was resisted and did not happen, but it is probably happening now. Although the network has evolved, I am absolutely certain that its basic size and shape was a vision that existed at that time, and the Minister was wrong in chiding me over that. Meanwhile, that vision is simply not there for marine conservation zones—or perhaps it is. I accept the remarks from the Conservative Front Bench and from the Government that putting a precise figure in the Bill is not appropriate, but many of us would be much more reassured if the Government were prepared to talk about the likely size or range of a network.

We know—or at least we hope—that the network will probably not be below 5 per cent, or it will not fit the criteria of the Bill, and we know that it will not be 80 per cent. There is a range, then, but its likely range at the finish is clearly a lot narrower. Are the Government thinking of 10 per cent, or 30 per cent, or 50 per cent? They will not tell us. They are not being as visionary, ambitious or clear in the purposes or likely outcome of this legislation as many of us—the many who have for so many years been working, campaigning and hoping for this legislation—would like.

Finally, the Minister said that putting 2020 in the Bill would be “crippling in its limitations”. I thought that this Government were full of targets for amounts of things by certain dates. The rest of the world is inundated by targets that are heaped on them, yet they are not prepared to provide targets here for themselves. What is wrong with targets, or with saying, “This is our ambition; this is what we want to do”? Many people out there, and some of us in here, fear that without that kind of discipline—not a crippling limitation, but a discipline—everything will drift. Reasons will be found, as time goes on, for why it has to go slower and slower. That is the fear, and it remains.

The target does not have to be in the Bill, but it would be wonderful if the Government were to tell us much more clearly what ought to happen in the next 10, 15 or 20 years. If they did that, everybody would be a great deal more confident and it would challenge other parties—who might, by some conceivable stretch, get into government instead—to say whether they agree with it. Do they think it too slow, or too fast? Then, when we are in government, we would know what we are supposed to do, as would the Conservatives, who might by some freak win the election. Having said those things, the issues are clear and the debate was worth having, but I beg leave to withdraw.

Amendment A157 withdrawn.

Amendments A158 to A160 not moved.

Amendment A161 had been withdrawn from the Marshalled List.

Amendment A162

Moved by

A162: Clause 119, page 71, line 35, at end insert “and the duty under EU law includes the delivery under the EU Marine Strategy Framework Directive 2008 (2008/56/EC) of good environmental status in the UK marine area by 2020”

There are two amendments in this group. Amendment A162, on behalf of my noble friend, is as set out: the Bill, in setting up the network of MCZs, should set out that it includes,

“the duty under EU law”,

in the marine strategy framework directive. The issue is fairly straightforward, and I am not terribly expert on it, so I will simply leave it there and listen with interest to the Minister before reporting back to my noble friend.

Amendment A163, which is in this group, proposes that it should also require,

“any further steps which, in the opinion of the authority”,

that is, the appropriate national authority,

“are necessary to comply with obligations under EU or international law”.

Clause 120(1) requires the appropriate authority to,

“lay before the appropriate legislature”,

which may be here, or in Wales, Scotland or Northern Ireland, a report on the implementation of Clause 119(2): namely, to report on any,

“MCZs designated under section 113 and any European marine sites”.

However, under EU law, with the marine strategy framework directive and the legal obligation to deliver good environmental status through the UK marine area by 2020, and under international law such as the OSPAR commitment, it is clearly essential that the report required by Clause 120(1) includes a specific requirement to report upon actions by the appropriate authority to deliver on all its EU and international legal obligations. We believe this to be the appropriate place for this amendment. I beg to move.

In responding to the noble Lord, Lord Greaves, it seemed to me that these amendments were, perhaps, probing as one amendment in some ways duplicates the other’s effect. We on these Benches agree with the noble Lord; we should comply with EU and international law and meet the target given by the EU directive of “good environmental status” by 2020—we come back to that point. Nevertheless, as we have said, we should achieve that not simply because of the target from the EU directive but as a matter of course from the provisions in the Bill.

Furthermore, while it seems sensible that any further steps necessary to achieve compliance with our EU or international obligations are laid out in the report, we would argue that those obligations should be met from the beginning, because they are not objectives or aims but legal requirements. The obligations that would be required for the report proposed by the noble Lord’s second amendment are really covered by the first in the group. I look forward to the Minister’s response.

I am grateful to the noble Lord, Lord Greaves, for moving this amendment on behalf of his noble friend and for the contribution of the noble Duke. I hope to reassure the Committee on both points.

As the noble Duke suggests, the UK Government are committed to meeting their EU and international obligations and this is why we have referenced these on the face of the Bill. The Bill primarily establishes a new UK tool that will complement our EU and international commitments and ensure that we designate a network of sites specific to the UK marine environment.

Amendment A162 relates to the duty on Ministers to designate marine conservation zones and seeks to insert a reference to good environmental status and the marine strategy framework directive into the Bill. It is normal practice for European legislation to be transposed through secondary legislation made under the European Communities Act 1972, and for this reason we do not want to depart from that position. In addition, the marine strategy framework directive is, as it says, a framework directive which sets the overall goal of achieving good environmental status for Europe's seas by 2020, as the noble Duke said. The directive came into force on 15 July 2008 and the first task is to transpose the requirements of the directive into UK law by July 2010. We intend to do this outside the scope of this Bill by: making an initial assessment of the current environmental status within UK marine waters by July 2012; determining what good environmental status means for UK waters, and establishing targets and indicators by July 2012; conducting a monitoring programme to measure progress towards achieving good environmental status by July 2014; and establishing a programme of measures designed to achieve or maintain good environmental status by July 2016. In addition, although we do not believe that a specific reference to the marine strategy framework directive is appropriate here for the reasons I have just given, I assure noble Lords that, in as much as the provisions of that directive require improvement of the marine environment, the terms of Clause 119(4) already cover those obligations.

We must also be clear that there are links between marine conservation zones and European sites—that point was made in previous debates—and that is why we have included Clause 119(4) in the Bill. The authorities designating marine conservation zones will do so to contribute to a network of sites, which will include EC sites, so it is appropriate to state here that they should have regard to relevant obligations under EU and international law. Our duty to meet these obligations applies in any event and is not dependent on what we and others do under the Bill.

Amendment A163 seeks to require the report to Parliament set out in Clause 120 to include any further steps that should be taken to comply with our EU and international obligations. My reply in this case is very similar to my reply on the previous amendment. The purpose of Clause 120 is to establish a duty on the Secretary of State to report to Parliament on progress in designating an ecologically coherent network of sites. The report, initially made in 2012 and then at least every six years thereafter, will set out the number and type of marine conservation zones designated as well as any measures that could be taken to further the conservation objectives for a site. I pray in aid again Clause 120(1)(a) and (b), which specifically state that the report to Parliament must include the extent to which the objectives of the network have been met and any further steps that are required to be taken in order to contribute to the achievement of the objectives. Ministers must have regard to our EU and international commitments when designating marine conservation zones, and the report to Parliament will reflect this. I am certain that, as a result, the report will give an evaluation of how far our network goes towards meeting our EU obligations. I hope that I have reassured the noble Lord on that.

I seek clarification. I was very grateful for the dates that the Minister gave. He said that the initial assessment will be completed by 2012. Is there assessment knowledge now covering the whole of the area, or will it have to be worked on in the years up to 2012? I am not certain what evidence we have now, and how big a task this will be. I presume that the evidence will have to be updated by 2012. If he has any further information on that, it would be helpful.

I shall write to the noble Baroness with further details on that. Clearly, we have knowledge and information and research has been undertaken, but we will need to build on that in the next two or three years, and we will do so. I shall set out in writing more detail on how we intend to do that.

I thank the Minister and the noble Baroness for their comments. I would certainly find a copy of the Minister’s letter to the noble Baroness interesting and useful. That would be very useful to the Committee. I listened as carefully as I could to the Minister’s explanation, which went a little way to set out the vision for which I had asked previously, although, again, it was mainly about process rather than outcomes. That is our basic complaint. The very full and technical answer that he gave to the amendments sounded pretty good to me. However, I shall refer it to my noble friend Lady Miller to see whether it seemed pretty good to her as well. On that basis, I beg leave to withdraw the amendment.

Amendment A162 withdrawn.

Clause 119 agreed.

Clause 120 : Report

Amendments A163 to A165 not moved.

Amendment A166 had been withdrawn from the Marshalled List.

Clause 120 agreed.

Clause 121 : General duties of public authorities in relation to MCZs

Amendment A167

Moved by

A167: Clause 121, page 73, line 12, leave out paragraph (b)

I shall speak also to the series of amendments with which Amendment A167 is grouped. I have tabled this set of amendments to probe various parts of Clauses 121 to 123, which relate to the duties of public authorities in relation to the marine conservation zones and the role the statutory conservation bodies will play in the ongoing protection and management of these zones. They seek to test the wording of the Bill against the ambitions of the Government.

I am sure it will come as no surprise to the Minister or the Committee that we have received many representations from the conservation stakeholders, including the Marine Conservation Society and the Countryside Council for Wales inter alia, seeking to confirm their influence in this area. They are understandably worried that once the network has been established and objectives set, responsibility will pass entirely to the local public authorities which might be tempted to downgrade the priority of conservation in favour of other interests.

Clause 121 establishes a duty on the public authority to inform the relevant conservation body, but only after a damaging event has taken place. This is not quite the same as the duty in Clause 122, where a potentially damaging authorisation cannot be given until 28 days after a similar notification. Will the Minister explain this discrepancy? What action does he expect a conservation body, or, indeed, a relevant authority, which will also be informed, to take after a damaging event has taken place? My amendments would also boost this duty to a requirement to consult the conservation bodies before undertaking damaging actions, thus ensuring an ongoing dialogue between the public authorities and the bodies best placed to know exactly what damage is likely to be caused and what measures might be taken to reduce or prevent that damage.

Other amendments in this group look at the many difficult assessments the public authority must make, the assessment of whether the harm done by an event is insignificant, the establishment of whether there are ways to avoid the harm or repair the damage and so on. It is to be hoped that these decisions and assessments would only be made after proper consultation with the statutory conservation bodies, where expertise and experience lie. I beg to move.

My Amendment A180 is in this group. The purpose of the amendment has to do with the advice and guidance that conservation bodies should bear in mind. They should think about any matters that might be detrimental to, or might hinder, the achievement of the objective. That might seem a little abstract. In tabling this amendment, we have drawn comparisons, as before, with terrestrial conservation legislation. This amendment would enable conservation bodies to do a bit more horizon-scanning. They would have a duty to do so, and to think about some of the threats that would come down the line. That is the particular reason for tabling this amendment.

This has been a useful exploration of this part of the Bill. I say to the noble Lord, Lord Taylor, that I have also read a number of letters on these points from statutory conservation bodies. I hear what the noble Lord says about their fears that, once the first phase of the work has been carried out, they will no longer be listened to by the public authorities. I hope I can allay those fears. Clearly, we believe that the statutory conservation bodies have a vital role to play and I pay tribute to their work.

By way of introduction, Clauses 121, 122 and 123 set out the roles and functions of public authorities and statutory conservation bodies. There is a different aspect in each clause. It is important to draw the distinctions between them, because these answer some of the points raised by the noble Lord. The purpose of Clause 121 is to place a general duty on each public authority to exercise its functions in a way that best furthers the conservation objectives for a marine conservation zone. Where the public authority thinks that exercising its functions is likely to conflict with its duty to further site objectives, it must inform the statutory conservation body.

Clause 122 is more specific. It sets out that where a public authority thinks that an individual activity may significantly hinder the conservation objectives for a marine conservation zone, it must notify the statutory conservation body, which will then have 28 days to provide its advice. This clause essentially deals with matters on a case-by-case basis. I make it clear that a statutory conservation body need not wait to be asked for its advice. It can give it at any time under Clause 123(2) and all public authorities are required to have regard to that advice. My experience of the statutory conservation bodies, from my time at Defra, suggests that statutory conservation bodies are well able and well prepared to give such advice.

Turning to the proposed amendments, I start with Amendments A167, A173 and A174. These concern the duty placed on public authorities to carry out their functions in a manner that best furthers, or least hinders, the conservation objectives for a marine conservation zone. Subsection (2)(b) of Clause 121 recognises that, from time to time, public authorities will be unable to carry out their functions in a way that furthers that conservation objective. In such circumstances, the most that we can ask is for those authorities to least hinder the objectives. We cannot ask public authorities to do what is impossible. Furthermore, paragraph (b) makes clear to public authorities that if they cannot further the conservation objectives, they must still carry out their functions so as to do least harm.

One example might be a case where the Environment Agency does work to build or maintain coastal flood defences. While it may not be possible for the agency to further the conservation objectives of a marine conservation zone, it may be able to choose not to carry out its operations at the time of year when there are large populations of migrating birds, or during fish-spawning. Building on this, Amendments A173 and A174 seek to relax the protection for a marine conservation zone by allowing a public authority to permit a potentially damaging act when the public benefit outweighs the risk of environmental damage. I accept that these are probing amendments, but there is a risk here. This part of Clause 122 says that once a site has been protected, the hurdle that needs to be jumped before permitting damaging activities is much higher than elsewhere. If an area is precious, we may permit damaging activity, but only if there are no alternatives; it is clearly for the greater public good; and we secure equivalent environmental benefit elsewhere. It is important to have that kind of safeguard.

Amendments A168, A169, A170 and A172 focus on the relationship between public authorities and statutory conservation bodies. Essentially, the changes proposed by the amendments would require public authorities to wait for the advice of the statutory conservation body before carrying out any of their functions that might hinder the achievement of conservation objectives. We want public authorities in the marine environment to work closely and co-operatively with the statutory conservation bodies, but we are wary of introducing very bureaucratic procedures unless there is a good reason to do so. The clause is designed to ensure that if a body thinks that exercising its functions in general will cause problems for the marine conservation zones, it must inform the statutory conservation body. In effect, it must start a conversation about the problem.

It gives the statutory conservation body the chance to address the problem and provide its advice. If the problems are difficult to resolve, this will take much longer than the 28 days foreseen in the amendment. One can envisage circumstances in which problems might be very difficult to resolve, given some of our previous debates on some of the tensions that are inevitable in such designation. The risk is that such advice might then be of limited value. However, this will not leave the statutory conservation bodies without a proper role in specific cases, or leave conservation zones unprotected. That is why we have Clause 122. Where, for instance, specific activities raise a problem, the relevant public authority must inform the statutory conservation body and give it 28 days to respond before taking a decision. Where the problem is defined and discrete, and specific countermeasures can be taken, the statutory conservation body has ample opportunity to provide its advice. That is why we draw a distinction between the two clauses and why 28 days is appropriate in one case but not the other.

Amendment A172 would remove the significance test from the requirement to inform the statutory conservation body. I would argue that it should remain. The significance threshold performs a vital role in ensuring that public authorities and the statutory conservation bodies are not overwhelmed with notifications. Requiring the public authority to wait 28 days before authorising all applications would be an unnecessary level of caution and bureaucracy, and would not be proportionate. As I have said, the Bill already allows the statutory conservation bodies to provide advice and guidance where they have concerns about the collective effect of a number of insignificant activities. Clause 123(1) provides for conservation bodies to give advice and guidance, which public authorities are required to have regard to exercising their functions. The conservation bodies may choose to target their advice as they see fit, perhaps to specific sectors or issues and to the points where it will have the greatest influence possible. We think this provision is important; we do not want to lose this flexibility; we think that Amendment A178 might risk that by seeking to oblige statutory conservation bodies to give advice and guidance on all matters listed in Clause 123(1), either in relation to a particular marine conservation zone or marine conservation zones generally.

It is likely that that advice will normally cover the range of subjects listed in subsection (1), but it will clearly not be necessary to address all possible matters in every case. It is sensible to retain flexibility and to rely on the judgment of the statutory conservation bodies as to the need for and content of a particular piece of advice and guidance. The record of statutory conservation bodies would give me confidence that this flexibility was sensible.

Amendment A171 would mean that public authorities notified only the statutory conservation body, not the MMO or Scottish or Welsh Ministers, where appropriate, when a criminal offence had occurred that might or would significantly hinder the conservation objectives for a marine conservation zone. However, it is important that these bodies, which are responsible for enforcement, are made aware of damaging acts so that they can take any enforcement action necessary. There is a persuasive argument for retaining paragraph (a) of subsection (4).

I say to the noble Baroness, Lady Miller, that it is also vital that the statutory conservation bodies report to the Secretary of State on any results from monitoring marine conservation zones. Those bodies are already required to give advice to the Government, so the Secretary of State can report to Parliament on progress on designating a network under Clause 120(1)(a). Therefore, I understand the reason for the amendment, but we think that the issue is already covered.

Amendment A175 is on the definition of damage relating to the roles of public authorities and statutory conservation bodies. “Damage” is already defined in Clause 122 as including,

“the prevention of an improvement”.

What could “improvement” mean in the context of a zone’s objectives other than movement towards or reaching them? That is certainly how we understand the word “improvement”, so we think that we have covered the concerns addressed by this amendment.

I hope that I have given some assurance to noble Lords. I certainly want to reiterate the point raised by the noble Lord, Lord Taylor, at the beginning of this debate that this is not a situation whereby the statutory conservation bodies will be heavily involved in the process of designation but will not be seen to have a continuing role. They will have such a role, and it will be an important one.

I am grateful for the Minister’s response, which does a great deal to reassure statutory conservation bodies and, indeed, public authorities. It is most important that he has made it clear that advice and guidance can be given at any time. I was particularly taken by the noble Baroness’s comments that conservation bodies need to feel that they can evaluate risk assessments, take a risk-assessment approach to anticipate future hazards if these situations are likely to arise and advise the authorities on these matters in advance of disaster, rather than just reacting to difficulties. I am reassured by the Minister’s response. I beg leave to withdraw the amendment.

Amendment A167 withdrawn.

Amendments A168 to A171 not moved.

Clause 121 agreed.

Clause 122: Duties of public authorities in relation to certain decisions

Amendments A172 to A175 not moved.

Clause 122 agreed.

Amendment A176

Moved by

A176: After Clause 122, insert the following new Clause—

“Offence of breach of duty by a public authority

(1) A public authority which, in the exercise of its functions, carries out an operation which damages the protected features of an MCZ or adversely affects any ecological or geomorphological process on which the conservation of any protected feature of an MCZ is (wholly or in part) dependant without first complying with section 121(3) is, unless there was a reasonable excuse for carrying out the operation without complying, guilty of an offence and is liable on summary conviction to a fine not exceeding £20,000 or on conviction on indictment to a fine.

(2) A public authority which fails to comply with section 121(4) is guilty of an offence and is liable on summary conviction to a fine not exceeding £20,000 or on conviction on indictment to a fine.

(3) A public authority which, in the exercise of its functions, grants authorisation for an act which is capable of affecting the protected features of an MCZ or any ecological or geomorphological process on which the conservation of any protected feature of an MCZ is (wholly or in part) dependant—

(a) without first complying with section 122(2), or(b) where relevant, without first complying with section 122(3), and in any case,(c) without complying with section 122(5),is, unless there was a reasonable excuse for carrying out the operation without complying, guilty of an offence and is liable on summary conviction to a fine not exceeding £20,000 or on conviction on indictment to a fine.”

We have tabled this amendment in the light of some of the bitter experience that, the Minister will recall, resulted from breaches of duty by public authorities with regard to SSSIs. He will remember, as will all other noble Lords who considered the CROW Act, that we debated at length why so many SSSIs were in an unfavourable condition. Very often a breach of duty by a public authority had led to that situation.

We seek in this amendment to make sure that we have learnt the lessons of what happened to SSSIs and that public authorities think of their duties absolutely all the time. This amendment introduces a penalty to be imposed if authorities breach that duty. It aims to focus minds on the importance of being scrupulous about all their duties regarding an MCZ. In the beginning, when the MCZs are terrific new things, no doubt lots of effort will be made to fulfil those duties but, over time, as other pressures come up the agenda, a similar situation to what happened with SSSIs may arise. Their perceived importance gradually dropped and they were no longer as much a focus for people’s attention. That led to the priority of SSSIs being rather ignored. We do not want that to happen to MCZs and that is why this amendment has been tabled. I beg to move.

The amendment tabled by the noble Baroness, Lady Miller, raises an important issue. Our Amendments A183A and A183B are designed to tackle similar difficulties. The duties laid out in Clauses 121 and 122 make very clear the position of public authorities in relation to MCZs and certain decisions. We support the noble Baroness’s new clause, which would specify the nature of the offence and the fine that it would be possible to incur if the public authority breached this duty. Does the Minister agree that the severity of the offence should be made clear? Does he think that the level of fine is appropriate and may act as a deterrent for any public authority that is hoping to breach its duties towards MCZs in order to meet another requirement?

The Bill as it stands enables the appropriate statutory conservation body to request an explanation in writing from a public authority that has failed, or is perceived to have failed, in its duties. We are in full support of this clause, but it does not go far enough. Our Amendments A183A and A183B would require that the explanation must be forwarded to the “relevant authority” and that this body must be allowed to publish any explanation that it receives.

This is necessary to make it completely clear that the public authority’s explanation must be forwarded to the correct body so that it can be called to account. Does the Minister agree that this is a sensible clarification? Furthermore, does he agree with us that it may be deemed necessary, appropriate and useful for the explanation to be published? Does he support our enabling power that would allow that to happen? I look forward to the Minister’s response.

I am grateful to noble Lords who have spoken to these amendments. Amendment A176, moved by the noble Baroness, Lady Miller, would mean that a public authority that, without reasonable excuse, failed to comply with one of the duties would be guilty of an offence. I note that the duties relate mainly to the requirement to inform the statutory conservation body of something that may significantly hinder the conservation objectives of a marine conservation zone.

The duties also relate to the requirement not to authorise acts where there is a significant risk to a site, unless certain conditions are met. I hope that noble Lords will appreciate that we have taken great care to ensure that these duties are clear and unambiguous. Clauses 121 and 122, which the noble Lord, Lord Taylor, spoke about favourably, refer to actions that public authorities must undertake.

When Parliament, if this Bill becomes an Act, places this statutory duty on a public authority, it expects that body to comply with the legal obligation created. It is unusual for a breach of a statutory duty by a public authority to be made an offence, which is the objective of the amendment. The usual remedy against any public authority that fails to meet its commitments, obligations and duties is judicial review. We have constructed these clauses on that premise.

The noble Baroness raised the issue of SSSIs and her concern about enforcement. She will appreciate, however, that SSSIs are fairly different from marine conservation zones. She is shaking her head, but she has not given me the chance to deploy the difference, so I shall try to persuade her to revise her opinion. The big difference is obvious. With SSSIs, there can be a number of overlapping authorities with different competences and those authorities may, therefore, undertake actions that impact on SSSIs. The relationship between the authorities and their responsibilities may become the subject of real concern. That is a bit different from the situation at sea. We are not talking about a range of different authorities that will be involved; the number of authorities with statutory duties at sea is, by definition, very limited. That means that saying who has the obligation or duty and against whom it must be enforced is that much clearer than with SSSIs. I respect the noble Baroness’s knowledge of SSSIs and attendant issues and I understand that she has anxiety in certain areas, but this is a different configuration of public responsibility and the degree of confusion that she is worried about will not occur.

How will this work with Clause 15? Would the MMO stay as the responsible body, for example, if it had delegated the various functions that this and the subsequent clause enable? Is there to be a range of bodies to which functions can be delegated and, if so, is the Minister saying that it would always be quite clear who would be in breach of their duty? It seems to me that, given that clause early in the Bill, it would be possible for some confusion to arise as to who was responsible. Once the MMO had delegated a function, which authority would become responsible for its breach of duty?

That is the point about Clause 15: it involves a limited number of authorities and the Bill is clear about where the obligations lie. I am trying to reduce the effect of the argument that says, “The trouble with the marine conservation zones is that they will run into some of the difficulties that we have with terrestrial definition”. Well, terrestrial definition can give rise to conflicting responsibilities with regard to land—there are landlords and there is ownership of the land, which in itself creates an important dimension of the designation of such sites. That is not the case with the sea. The MMO does not delegate its authority in quite the same way. It will be delegating to other public bodies responsibilities that are clear and limited in number and which do not raise these issues in the same way. Under Clause 15, it is answerable for its responsibility as a public body; it cannot devolve that to another authority and not be held responsible. The challenge to the MMO will not be a fine; the challenge to the MMO, a body of that significance and salience, is bound to be judicial review, as it would be in all cases of a public body of that stature.

I agree with the Minister in that I do not think that Amendment A176 will do, for the reasons that he gave. However, he said that the Government have made it clear exactly what is being said in Clauses 121 and 122. It strikes me that everything hangs on what counts as significant. The Bill talks of a function,

“the exercise of which is capable of affecting (other than insignificantly)”.

We very much want this Bill to work and we want the bodies that may be involved in any dispute to be very clear about what they are talking about, but are the Government happy that there will not be endless argument about whether the damage has been or might be “significant”? What is significant? Everything hangs on it, I think. I do not know whether there is precedent for this in legislation and whether that argument has to be included in that way but, on the face of it, it seems to me to be slightly vague. Can the Minister reassure me, or am I asking too much at this point?

I am not sure how far I can go with the reassurance, but the noble Baroness will appreciate that we should be grateful to the noble Baroness, Lady Miller, for giving a terrestrial illustration of where this problem can arise and for identifying that it is not always readily resolvable to everybody’s satisfaction. I accept that point in relation to sites of special scientific interest. What I am saying about the sea and the operation of the MMO is that there is not a range of competing authorities whose interests potentially collide and whose titles may even collide with regard to responsibility. As far as the sea is concerned, we are dealing with a considerably more straightforward problem, which is between public authorities.

I understand the anxieties of the noble Baroness, Lady Carnegy, about how much damage merits a case being taken as far as judicial review. Some judgment would have to be exercised, even if we had, within this framework, a fine that could be levied. It would still be a judgment on the severity of the offence by the public body.

I am following the Minister’s argument as carefully as I can, but I do not think that he is responding to the point made by my noble friend. All his emphasis on the different circumstances of SSSIs and MCZs is a bit of a red herring, frankly. The suggestion that there might be different authorities involved in SSSIs is not really the key issue. What will be the remedy if a public authority does not do its duty? The noble Lord’s reliance on judicial review is a bit worrying. So often in this House—in this building—Ministers spend their time trying to avoid circumstances where the only remedy is judicial review, which is tortuous and expensive.

Now that he has had a chance to look at the missives that he has received from the Box, the Minister may be able to tell us how often a solution has been found through judicial review where SSSIs have been involved. Not very often, I suspect. As we all know, it is a tortuous and expensive process, and many people feel that it is the wrong process to undergo when an official body has not performed its duty.

Here we have a very good system, suggested by my noble friend on the basis of practical experience. If the Minister cannot accept this solution, I hope that he and his colleagues will come up with something before Report that does not simply take us back to judicial review.

I hear what the noble Lord says. Regarding the notes from the Box which are of assistance in dealing with such questions, I have to disillusion the noble Lord. One in a hundred can hit the button right on the mark and I always congratulate my officials when they succeed. A lot of the time, the way in which the noble Lord then goes on to express his question is such that not even someone with the wisdom of Solomon could foresee what is meant to be sent to the Minister. Therefore, I am adrift.

The noble Lord is saying that it does not matter what I identify in terms of the public authority involved, even if I give the noble Baroness the response I am able to give. What is significant will have to be worked through as we operate the zones. Scientific evidence on that which is doing, or potentially doing, such damage will condition the issue. The conservation zones will be different from each other in this respect, according to what the objectives are. It is not possible for us to specify what is significant. However, we are seeking to identify that if a public authority is not carrying out its duty, judicial review is the normal way of resolving the matter.

I listened carefully to the noble Lord’s comments on the problems of judicial review. I recognise that the process is not entered into lightly because it is costly and complex. But we are talking about a public authority in action, in a very significant way, charged with not fulfilling the duty that has been laid upon it by the legislation. If it had to be identified which authority was negligent, I can see a case for suggesting that judicial review might not be appropriate. I understand why in many cases people argue against it.

The number of authorities involved is very limited. The MMO does not devolve authority; it stands as the responsible authority. A charge against the MMO for having failed to do its duty would surely justify our suggestion of a judicial review.

Under Clause 124, the statutory conservation bodies can require a public authority to explain its actions. The question of being able to get from a public authority an explanation of what has occurred and therefore the evidential base for any future challenge is contained there. Proposing, as the amendment does, that fines should be imposed on a public body with clear obligations is an odd concept of a sanction. It should be more significant than that, which is why judicial review is the only appropriate remedy.

I wish to clarify what the Minister has said. I will read Hansard very carefully. Was he indicating that if there was a breach of duty by one of these authorities, the responsibility or claim would be made against the MMO in spite of the fact that it has delegated its work to a public authority? He lost me slightly with his final comments—I was getting more confused by the second.

Clause 124 provides for identification of the authority and a demand for information. That could mean that the sanction against the authority is naming and shaming—we could expose the fact that it is falling down on its obligations. That is one level of weakness exposed which would be subject to publicly expressed concern.

Where the MMO fails to meet its duty with regard to a significant issue on the zones, it is appropriate for us to say that it is not a matter of imposing fines on a body of such significance but a matter for judicial review.

I realise that there is not an expression of complete delight in my replies to these issues. They are quite difficult, and I am no lawyer. If it will help, I will undertake to write expressing the Government’s position on the amendment, perhaps more cogently than I have been able to do in this debate.

The Minister did not address the last of our amendments in the group about publication of the evidence. There is a lot to be said, when failure occurs, for making this dialogue as public and open as possible. The Minister spoke of naming and shaming. I should have thought that publication was one way of ensuring that that happens.

I accept that point. In referring to the naming and shaming procedure, I should have referred to the noble Lord’s amendment. I have a hesitation about it, which he will appreciate. Some information may not be appropriate to publish. After all, those who use the sea and are public authorities might have very significant interests which could not be put into the public domain. I am thinking of our defence institutions as well as Customs and Excise. If there is an exercise on a role being carried out which relates to smuggling, putting into the public domain a demand for an explanation of what is going on and the reasons why it is being carried out might not be in the public interest in those rather more specific circumstances. In general terms, I accept the concept of the amendment. Generally, as Clause 124 provides, the public authority can be held to account if it is negligent and that alone, in terms of naming and shaming, will be an important sanction.

That was a very interesting debate. I agree with my noble friend Lord Tyler that judicial review is a very difficult process, because it deals with how a decision was arrived at, and cannot look at the issues in the same way.

It will help if the Minister writes to us, because, like the noble Baroness, Lady Byford, I am still confused about who will face sanctions under the scheme of delegation. The Minister prays in aid Clause 124, but it is a pretty feeble stipulation that,

“on a request the authority can provide an explanation in writing”.

That does not constitute naming and shaming. Even if it did, naming and shaming a quango is not the same as naming and shaming a council that is subject to election every four years, where the sanction may have some effect.

We are giving immense power to the MMO and ought to think seriously about the sanctions that will be applied when it fails: when it has not pursued its duty as it should, or when it has delegated a duty that has fallen between two public authorities. That is an issue that this debate has opened up—the fact that there may be a hole down which important duties may fall in some circumstances. I look forward to receiving the Minister’s letter giving more detail on that matter. In the mean time, I beg leave to withdraw the amendment.

Amendment A176 withdrawn.

Clause 123: Advice and guidance by conservation bodies

Amendments A177 to A183 not moved.

Clause 123 agreed.

Clause 124: Failure to comply with duties etc

Amendments A183A and A183B not moved.

Clause 124 agreed.

Clause 125: Byelaws for protection of MCZs in England

Amendment A184

Moved by

A184: Clause 125, page 76, line 13, leave out “recreational” and insert “any”

I will speak also to Amendments A208, A209, A224 and A225.

Under Clause 125, the MMO is allowed to make by-laws,

“for the purposes of furthering the conservation objectives stated for an MCZ in England”.

There are a number of by-laws prohibiting certain activities. Clause 125(3)(b) prohibits or restricts,

“entry into, or any movement or other activity within, the MCZ by recreational vessels or (where appropriate) vehicles”.

Recreational vessels are singled out only in this paragraph. Elsewhere, “any vessel” is the term used. I looked up the interpretation and saw that “vehicles” refers to hovercraft or bicycles. In more than 50 years of maritime meanderings all over the world, I have on occasion come across a hovercraft, but I admit to never having come across a bicycle. I do recall an occasion when, after a particularly good lunch in a French port, two of my fellow crew members decided that it would be a good idea to hire a tandem, and proceeded to ride straight off the edge of the quay into the sea. Happily, they both resurfaced, one still with a cigar in his mouth. The tandem, unfortunately, did not, and only some nifty work with a grappling hook placated a rather enraged Frenchman. There is also a saying that the three most useless things on a yacht are a bicycle, a stepladder and a naval officer. Looking quickly around the Chamber, I hope that we have none of the latter present.

Does this prohibition refer to an MCZ that comes up to the high water mark? At low water, the beach would be exposed, but presumably there would still be an area of sea at the end. I understand the need to exclude bicycles and recreational craft such as canoes or things that you can haul up the beach; but surely, if it goes into the sea as well, why should the prohibition apply only to recreational vessels? I would like an explanation. Amendments A224 and A225 are subsequential. However, on reflection, the drafting of A225 leaves something to be desired.

Amendments A208 and A209 refer to something quite different and come under Clause 137, where exceptions are mentioned to offences committed under Sections 135 and 136. One exception stipulates that someone is not guilty of an offence when the action taken,

“was necessary for the purpose of securing the safety of any vessel, or of preventing damage to any vessel or cargo, from any danger which could not have been foreseen or anticipated”.

My amendments would alter that to read,

“was necessary for the purpose of securing the safety of any vessel or cargo, or of preventing damage to or by any vessel or cargo, from any danger”.

The reason for the first amendment is that the safety of the vessel will invariably be at one with the safety of the cargo, but occasions may occur where action is needed only in relation to the cargo. This may arise where part of the cargo has to be destroyed or rendered innocuous if it represents a danger to other goods, for example by drifting, leakage or contamination. The first amendment is designed to cover this eventuality.

The second amendment relates to damage by a vessel and would cover a situation where it was necessary, for example to enter an otherwise prohibited area to preserve the safety of the vessel. I beg to move.

Is the Minister content with the extent of the by-law-making powers? The noble Lord, Lord Greenway, talked about recreational vessels. Extent might be important where you have an MCZ that goes out from 10 nautical miles to 14 nautical miles and is particularly valuable for dolphins and basking sharks. The by-law-making powers stop at 12 nautical miles.

In summer, when you have an interesting pod of dolphins, you will often see recreational vessels going to look at them. We hope that they observe the guidance on behaving properly around whales and dolphins, but they do not always. Sometimes they do not slow down and sometimes they follow the creatures, which they are not supposed to do. In fact, if you stay still, you will often be much luckier, because the creatures will come right up to you and you will get a fantastic view of them.

The purpose of the by-law-making powers is to allow the MMO to make whatever by-laws it thinks necessary to protect the features for which the MCZ was designated. I understand that as far as international shipping and fisheries that come within the CFP are concerned, the powers have to stop at 12 nautical miles. However, for conservation purposes, I would like to explore with the Minister why they should not extend beyond 12 nautical miles.

There is a genuine dilemma here, because I entirely agree with what my noble friend says, but I am also anxious that we should not be developing some sort of special treatment for recreational vessels for the simple reason that the noble Lord, Lord Greenway, hinted at: they are often operated by relatively small companies or individuals. If we make it too complicated, we will look as if we are somehow penalising comparatively small operations without proper justification. Although it is obviously important that we identify a potential problem, if we do it in an especially complicated way, there will be a lot of resistance.

I return to a point that I have made several times in this Committee: we want local coastal communities to feel that they own the new legislation as part of their responsibility to make it work. In many coastal communities, those who operate recreational craft are a very important part of the local community. I know that from my experience and I am sure that that is shared by many other Members of the Committee.

The dilemma is that we need to be clear—I hope that in his response the Minister will be able to be precisely clear—about the treatment of recreational craft; but if in any sense we seem to be singling them out for special penalties in a complicated way that is difficult for them to observe and conform to, we would be making a very serious mistake.

The noble Lord, Lord Greenway, raises an interesting point about which vessels can and should be subject to restrictions within a marine conservation zone. I especially enjoyed hearing about his antics with a bicycle in the south of France.

One point has already been touched on by the noble Baroness, Lady Miller. On Monday, we discussed the inability of the Government to impose fishing restrictions outside the 12-mile limit. Can the Minister be similarly helpful today by telling us what rights vessels have as to free navigation and so on that British authorities will be unable to restrict?

I am grateful to all noble Lords who have spoken in this debate, especially the noble Lord, Lord Greenway, whose group of amendments relate to a very important dimension of the life of our nation. As a maritime trading nation, it is vital that we get the treatment of shipping and other vessels in the Bill correct. I am grateful to noble Lords for identifying areas of concern.

Amendment 184 is intended to ensure that recreational vessels are treated in the same way as commercial vessels. I should stress that the Bill is designed to introduce the power to make by-laws so that activities that would not otherwise be regulated can be controlled if necessary. At the same time, we do not want to put an unreasonable burden on industry. Shipping is a vital part of the British economy and a very high percentage of British trade is carried by ship. The differential application of the prohibition contained in Clause 125(3)(b) is valid on economic and better regulation grounds. I hear what the noble Lord, Lord Tyler, says: let us be careful that we do not make prescriptions for some that complicate matters which do not obtain for others.

It will be recognised that the Government operate under significant constraints in certain aspects as regards by-laws. The noble Earl, Lord Cathcart, raised that issue. For example, we considered whether by-laws should extend beyond 12 miles from the shore, but concluded that they should not because the features occurring there tend to be less sensitive or vulnerable to human impact because they occur in deeper water or over large areas, so fewer unregulated activities occur. Damaging activities that occur tend to be dispersed over much wider areas of sea, which is well beyond the 12-mile limit.

The noble Lords, Lord Greenway and Lord Tyler, asked about commercial vessels. The simple fact of the matter is that, as the noble Lord, Lord Greenway, knows better than anyone else in this House, we have obligations under international law that restrict our power to regulate commercial vessels. Those vessels can be regulated under mechanisms set up under the United Nations Convention on the Law of the Sea, but they are not subject to the by-laws of an individual nation following its particular and narrower objectives. I emphasise that we have limited competence in the waters beyond 12 nautical miles which restrict the use of by-laws, about which the noble Baroness, Lady Miller, was asking me. We also have differences under international law between commercial vessels and what we identify as recreational vessels, so some parts of the complexities that noble Lords, with their usual perceptiveness, have identified as difficulties in this area, are genuine difficulties born of British power in relation to the law of the sea.

That does not mean to say that we are without any means to regulate commercial shipping if we need to do so. Other mechanisms are available that can be used to constrain commercial shipping. Where there is a compelling case for the designation of an area of sea as an area that ships should not enter, it is open to the Government to make a submission to the International Maritime Organisation to that effect. An IMO-adopted area to be avoided can be designated in such a way as to apply to all types of ships, commercial and recreational. It will be recognised what a significant action it would be to seek the definition of an area in those terms. Consequently, it will be appreciated why the Bill provides for by-laws operating for a more limited area from the shore, the 12 nautical miles, which does not raise those more crucial matters of the law of the sea.

The noble Baroness, Lady Miller, asked me about the enforcement of MCZs. We sent a note yesterday to all noble Lords who are involved in the Bill and have participated in our debates about how by-laws and other measures protect the MCZs. We hope that that document will explain how enforcement measures fit together. It is a complex issue. The document runs to several pages, so I hope that the Committee will not ask me to read it out. I am not sure that I could do so accurately, as it is also in tabular form and with a whole range of abbreviations of which I am not a master. If the Committee will forgive me, I shall not attempt such an arduous exercise. However, that document is on its way to noble Lords; it was sent out yesterday. I hope that it is appreciated that we recognise that there are issues in the amendments to which we need to respond, and that we are doing the best we can to identify accurately the issues involved.

In addition to accepting necessary action taken to secure the safety of a vessel, Amendment 208, tabled by the noble Lord, Lord Greenway, would extend the exception in Clause 137(1)(e) to securing the safety of cargo. Amendment 209 would exempt damage done to a marine conservation zone by a vessel acting in emergency. Of course, we should not criminalise those whose actions unavoidably harm the environment in the course of emergency involving the saving of lives. We discussed that aspect earlier and of course the Government are four square with the noble Lord in his concern on that. However, we are not so sure about securing the safety of a cargo. Is that sufficient reason to cause harm in an area which we ought to take into account? Cargo, after all, is replaceable and insurable. It is not obvious that we should put on cargo as high a valuation as we put on the protection of valued parts of the environment, which we cannot insure or replace. So we have, as the noble Lord will appreciate, reservations about that amendment.

On Amendment A209, I can assure the noble Lord that Clause 137 as drafted provides that where a person takes necessary action to secure the safety of a vessel in an emergency and in so doing damages a marine conservation zone or contravenes a by-law, that person will certainly benefit from the exception described in that clause. As for the issues raised in Amendments A224 and A225, we address the issue of the meaning of a recreational vessel. I listened very carefully to the noble Lord, and I have to admit that when I heard the phrase “recreational vessel” I did not think of a bike. I am glad for his reassurance that bikes do not prove very effective at sea.

I would like to offer a further reassurance. Although the term “recreational vessel” is defined separately from “vessel” and is not as a subset of it, the two definitions are clearly related. There is no risk that a recreational vessel would be considered as a vessel and bound by the same rules. We want to make clear that distinction.

Noble Lords will forgive me if I have not answered all the points. I have to say that I have had from the Box a proliferation of more than helpful notes, rocketing its success rate to an unparalleled level. Therefore, if I have not satisfied noble Lords, it is my fault alone. I hope that the noble Lord will feel able to withdraw his amendment.

I am wondering whether the setting of lobster pots would require a by-law. The part of the coast that I am thinking of is not one to which the Bill applies. However, there must be areas in the inshore waters where small businessmen, in a small way, in small boats, regularly set lobster pots very near the coast. Would that disturb a conservation zone? Would that be something for which a by-law would be required—not an emergency one, but one under the other clause?

In Scotland I was a beneficiary of a small lobster-pot fisherman who produced an excellent lobster for supper, so I would not want to constrain that activity. However, the answer to the noble Baroness’s question has to be framed in terms of the nature of the marine conservation zone and the conditions established for it. She is right to express anxiety: there may be circumstances, though I am not knowledgeable enough to describe them, where that form of fishing did present a challenge to the conditions of a particular zone. I would like to reassure her, however, that this Bill is not designed to stop lobster fishing.

Will the Minister answer one very definite question? I look forward to receiving the much more detailed briefing that he says is in the post. However, my question is whether the MMO will have any power, if it sees fit, to extend any necessary by-law beyond 12 nautical miles. I have taken the international shipping regulations into account along with common fisheries issues, but the Bill as drafted does not allow the MMO to extend its by-law-making powers beyond 12 nautical miles. Does the Minister think that it would at least be worth reconsidering whether in some circumstances it would be a good idea for the MMO to have those powers? Does leaving them out of the Bill not mean that if it found that it really did need them, it would have to come back to the Government and ask for special legislation?

I hope that I have explained to the noble Baroness that we are masters in our own land and we certainly have rights in relation to the sea up to 12 nautical miles. Beyond that, however, our position is a great deal more limited and controlled—properly—by the United Nations Convention on the Law of the Sea. So the answer is that we cannot arbitrarily extend by-laws out beyond the 12 nautical miles. There may be circumstances in which that case could be made, and I explained the mechanism by which we might be able to make an application. But the answer to the noble Baroness is that we are significantly constrained by international law beyond the 12 nautical miles.

I am grateful to the other noble Lords who have spoken and to the Minister for his full response. I am still a little bit in the dark in respect of my Amendment A184 on recreational vessels. I can understand that the International Maritime Organisation deals with large commercial shipping, but what is the case with small commercial fishing boats, for instance, which are not covered by the IMO? Surely it should apply to them as well. I am also still rather confused by how bicycles come into it, and other non-motorised forms of transport. Are we to take those as being sand yachts or some such things? Was I right in assuming that it referred to a beach when the tide is out?

The noble Lord is asking very particular questions and I am not sure I can go into that detail at this stage. I was trying to reassure him on why we have a distinction between commercial vessels and recreational vessels, since we are all concerned about the necessary obligations to keep commercial shipping as free as possible. The issue of recreational vessels makes the mind boggle; one thinks, for example, of vessels that ply the Thames and then drive up Whitehall. I do not know how that DUKW-type vessel is identified, but I do know that the capacity and genius of inventors and developers of transport know no bounds. If we tried within the framework of this Bill to be at all precise about that which we circumscribe, we would get into great difficulties almost immediately. So he will have to accept the intent of the broad divisions in the Bill, and the issues of contention will be on the margins.

Does the Minister accept that if he had gone to Morecombe on his holidays in the 1950s he would have been able to travel on DUKWs up and down the beach and into the sea? My understanding is that they are amphibious craft, used by people like commandoes in the last war.

This is the second time in two days that I have had the delights of Morecombe brought to my attention. Yesterday, it was a poster from the 1950s; today, it is a reminiscence. I need no persuasion to believe in the delights of Morecombe.

We do not need to prolong this debate any longer. I will certainly read with interest what the Minister has said, and will decide whether to come back to the issue at a later stage. In the mean time, however, I beg leave to withdraw the amendment.

Amendment A184 withdrawn.

Amendment A185

Moved by

A185: Clause 125, page 76, line 21, leave out “will” and insert “would”

Amendment A185 agreed.

Clause 125, as amended, agreed.

Clause 126: Byelaws: procedure

Amendment A186

Moved by

A186: Clause 126, page 77, line 1, leave out subsection (2)

On behalf of my noble friend Lord Taylor, I move Amendment A186. This amendment has been tabled to call into question Clause 126(2). Under the Bill, the MMO is required to send a copy of the draft by-law to,

“any person who the MMO thinks is likely to be interested in, or affected by, the making of the byelaw”.

Does the Minister truly think that this is possible? Could he clarify just how interested or affected a person would have to be to qualify for receiving this draft copy of a by-law? Can he suggest how many draft copies he envisages might be sent out, and does he accept that this could cost large sums of money? Indeed, what consideration has been given to how much this will cost, and can the Minister provide anything like an approximate figure? Subsection (2) is impractical and represents an impossible task. Can the Minister give us an explanation that could persuade us otherwise?

The amendment tabled by the noble Lord, Lord Greenway, makes it clear that when creating a permanent by-law, the MMO must publish its intention to do so in accordance with the rules laid down in Clause 126 about by-law procedure in subsection (8). This is a sensible amendment, and I look forward to hearing the noble Lord’s thoughts on the matter. I beg to move.

Amendment A193 deals with the same consultation process to which we spoke earlier. I do not really need to say any more, except that, on that occasion, the Minister gave an assurance that there would be due consultation, and I seek equal reassurance on this point.

I hope that I can do better than that by responding constructively to both amendments, although I will not accept them; that would be pushing things a little too far, as noble Lords will recognise. The noble Lord, Lord Montrose, has identified an issue, and I am grateful to him for that. When drafting this subsection, we were concerned to maximise the chance of everyone with an interest having the opportunity to express views. That is the objective. However, the noble Lord is right that we are in danger of imposing disproportionate burdens on the MMO. Indeed, he described them in such a way that it is clear that they could be not only disproportionate but absolutely indefensible. He is right that, in the most extreme case, anyone who could remotely be said to express an interest could be expected to receive their copy. We will look at this again in the light of the noble Lord’s amendment. I think that I can assure him that when we do so we will ensure that we do not fall into the trap that he has accurately identified. Falling into such a trap would not be the right thing to do.

On the point raised by the noble Lord, Lord Greenway, I emphasise that emergency by-laws are intended to be a contemporary measure. They should not normally remain in force for more than 12 months, as this is generally sufficient for a permanent by-law to be made if necessary. A longer period may be needed, however, and Clause 127(7) allows the MMO to extend the protection for up to six months by making a further by-law. I emphasise that the MMO could do so only when it intends to make a permanent by-law and has already published notice of it. I reassure noble Lords that Clause 126 makes it clear that, to comply with Clause 127(7), the MMO must ensure that its notice complies with the requirements of Clause 127(8). I hope that that gives the noble Lord the assurance that he seeks and that, having scored bull’s-eyes, both noble Lords will feel able not to press their amendments to a vote.

I am most grateful to the right honourable Member for Oldham—I beg his pardon, I get very confused with all these titles; I mean the Minister—for accepting our amendment. I beg leave to withdraw the amendment.

Amendment A186 withdrawn.

Amendments A187 to A190 not moved.

Clause 126 agreed.

Clause 127: Emergency byelaws

Amendments A191 to A193 not moved.

Clause 127 agreed.

Clause 128: Interim byelaws

Amendments A194 to A196 not moved.

Clause 128 agreed.

Clause 129: Further provision as to byelaws

Amendment A197 not moved.

Clause 129 agreed.

Clauses 130 to 134 agreed.

Clause 135: Offence of contravening byelaws or orders

Amendment A198

Moved by

A198: Clause 135, page 82, line 33, leave out subsection (2)

I move Amendment A198 on behalf of my noble friend Lord Taylor. The amendments in this group have been tabled to explore the penalty levels set by the Government in Clauses 135 and 138. They could well have been tabled to Clause 136, but the noble Baroness, Lady Young, has tabled her Amendment A199, which highlights the discrepancy between the penalty levels in Clauses 135 and 136, and will do just as well. The difference between £5,000 and £50,000 is enormous, and I look forward to hearing the Minister explain his reasoning behind it.

Amendment A217A deals with the penalty level in Clause 138, which sets the level of monetary penalty that the enforcement authority can impose. This level is very low. We do not necessarily disagree with this; fixed monetary penalties may be a cheap and quick method of getting through a large case load without clogging up the courts, but they should not be seen as a substitute for proper legal proceedings where the circumstances warrant. Where a serious breach of by-laws has occurred, the enforcement authority should proceed under Clause 136 rather than Clause 138.

I am curious as to what sort of situation the Minister thinks a maximum penalty of £200 will be effective in. It is too small to be a meaningful deterrent for many of those who might intend to breach the by-laws for commercial gain, but enough to be a significant and not necessarily useful nuisance for those who accidentally breach a by-law. The noble Baroness’s amendment in this group is an interesting possible alternative and I look forward to hearing the response that it receives. I beg to move.

My Amendment A217 in this group suggests that there should be a system of simple and conditional cautions, as defined in the Criminal Justice Act 2003, particularly given that some people, as this whole system of marine conservation zones comes in—we have still not heard from the Government that the zones will be marked, where necessary—will make simple mistakes. Those mistakes might be dealt with better, and a far better relationship might be built up between the stakeholders using the sea and the authority trying to enforce this regime, if, instead of going straight to a fine, a caution was an option. Beyond the simple mistake that might get overlooked, there very likely could be a next stage where a person repeats an activity that they have done for generations. They may not understand that what they are doing is serious and that there is a good reason for not continuing to do it. Before a fine is imposed, it would seem reasonable to have the option of a caution. That is in other legislation because it is a tried and tested system, which I hope that the Government will think about.

Amendment A199 is in my name. The noble Duke who led on this group presented it for me admirably, but I should like to add a few things. In the draft Bill, the penalties for offences against by-laws or orders were the same as in Clause 136 and were as tough as the penalties already in the Bill for damaging protected features. Between the draft Bill and the Bill as introduced, the offence of breaching MCZ by-laws or orders has been downgraded. It was an either-way offence with a maximum fine of £50,000 in the magistrates’ court and an unlimited fine in the Crown Court. It has now been downgraded to a summary-only offence with a maximum fine of £5,000.

I can imagine the Minister’s defence. He will say that these penalties for offences against by-laws or orders are merely intended for minor offences of the sort that by-laws might generally represent, and that there are other penalties for the much more serious offence of damaging protected features or offences caused and enforced by other bodies in line with the briefing that he indicated had been sent out yesterday, which gives in quite great detail who can do what to whom. But this is not the case.

The reality is that contravening by-laws or orders can be extremely serious on occasions. Reverting to an either-way offence with a maximum fine of £50,000 in the magistrates’ court and an unlimited fine in the Crown Court would leave it to the courts to decide how serious individual cases are and provide a much wider, more flexible range of individual penalties for the by-law offence. That does not mean that the courts will necessarily hand out the maximum on every occasion. They rarely do. But £5,000 is hardly any deterrent for the sort of things that could be represented by by-law or order contraventions. I hope that the Minister, in whatever way he was swayed to accept the change between the draft Bill and this Bill, might now be swayed back to his original intent, which was by far the better one.

This has been an extremely interesting debate. It is important that we get this right. I fully accept that we do not want a situation in which there are not adequate penalties for appropriate transgressions. Perhaps I might explain the decision that we reached. It is right that we should explore the level of the penalty. Interestingly, as I understand it, Amendment A198, to which the noble Duke spoke, would make the breach of by-laws a matter of civil law and therefore not subject to prosecution in the court. On that, I am with the noble Baroness, Lady Young. In that case, we need to retain the threat of criminal conviction and a fine of up to £5,000 to act as a deterrent. We agree that without that by-laws are likely to be less effective, since the only sanction would be a fixed monetary penalty up to level 1 on the standard scale, which is currently £200. I appreciate that Amendment A217A would remove that upper limit and I certainly can see that a single form of sanction to deal with all breaches of a by-law might be simpler, but we do not think that it would be fairer or as effective.

Relatively modest monetary penalties may be fair and proportionate in most cases and act as a deterrent for most people, but we need the deterrent of higher fines and a criminal record to deal with people who recklessly or repeatedly risk causing harm to a site. I well understand that the noble Baroness, Lady Young, thinks that we do not go far enough in relation to that and wishes to go higher. Certainly, there needs to be a hierarchy. The noble Duke asked me to give an example of an activity that might attract a £200 penalty. As Members of the Committee know, it is always dangerous to answer something like that and I would rather resist, but an example might be a person exceeding the speed limit on a wretched jet ski or entering a prohibited area but not causing damage.

The Minister was probably right to avoid giving an example, because out of the mouth of examples comes reality. Jet skis and conservation have long had difficulty coexisting. There is a difference between a jet skier going at a moderate speed in a prohibited area and the flagrant mass jet skiing at high speeds in very sensitive areas that sometimes occurs. That would be an example of a by-law or order where a judge, if he had the option, could take advice and apply higher penalties where necessary, particularly in the case of repeat offenders. In some recreational activities, the problem is that people repeat-offend and regard it as a legitimate cost of their sport to shell out the odd low-level fine.

I am at great risk of saying what I think of jet skiers, on which I am not a million miles from the noble Baroness. However, does she not see that there is a difference? A fixed penalty notice might be appropriate for a jet skier who inadvertently goes into an area where he or she should not, but if someone acts in the way that she described, we have the ability to pursue them under Clause 135(2). I think that the noble Baroness is saying that she does not think that level 5 is sufficient.

This is difficult. In essence, we think that we have the balance right. I understand what the noble Baroness is saying, but we have to be proportionate. Each Member of the Committee may have a different view. The breach of a by-law is most likely to result in localised or small-scale impacts—the noble Baroness has anticipated my response because she knows where I am coming from. However, a prosecution for intentional damage, which is a serious matter, will be brought against people who commit acts of environmental vandalism that cause significant harm to a site. That is covered in Clause 136(3) and (4), which states:

“A person who is guilty of an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding £50,000;

(b) on conviction on indictment, to a fine”.

That, essentially, could be an unlimited fine. I shall come the point about cautions in a moment, but we have a hierarchy here and we consider that, in relation to by-laws where a fixed penalty notice is not appropriate, a level 5 fine is the right potential fine and would act as a deterrent.

On the question of enforcement, I agree entirely with the noble Baroness that there will be people who make simple mistakes, where a caution is entirely the right approach. I shall not bore noble Lords by praying in aid the Health and Safety Executive, but its approach to proportionate regulation is entirely right. The executive starts from the premise that, unless an act has clearly either caused harm or is likely to cause serious harm, everything is done to encourage people to do the right thing, and from there you can move up the hierarchy of sanctions. The noble Baroness is right about that.

I can assure the noble Baroness that we do not need to make express provision. A simple caution is non-statutory and can be administered by prosecuting authorities without the need for an express power. The conditional caution has a statutory basis in the Criminal Justice Act 2003, and Section 27 makes provision for prosecutors other than the CPS to administer conditional cautions if a need is identified for giving them such a power; the mechanism exists and the noble Baroness’s point is very well taken.

I congratulate the Minister on his courage in bringing forward examples that we can get our heads around; it is immensely helpful when looking at the issue. The noble Baroness, Lady Young, obviously has a long and bitter history in relation to the speed of jet skis and so on. I know fairly well where she is coming from, having been involved in by-laws in a place called Loch Lomond where we are worried about the wake from vessels. I am not sure whether in the context of the sea other than in harbours the wake of jet skis will cause much bother to an MCZ, but at least we have had a chance to air the subject. We shall read what the Minister has said and I beg leave to withdraw the amendment.

Amendment A198 withdrawn.

Amendment 199 not moved.

Amendment 200 had been withdrawn from the Marshalled List.

Clause 135 agreed.

Clause 136: Offence of damaging etc protected features of MCZs

Amendment A201

Moved by

A201: Clause 136, page 83, line 4, leave out paragraphs (b) and (c)

In moving Amendment A201, I shall speak also to Amendments A202 to A206. These refer to the clause about offences of causing damage to the protected features of MCZs. I look forward to reading Hansard tomorrow because I thought that it was a slightly Freudian moment when the Minister talked about reckless damage to the features of an MCZ. It may be a Freudian slip that indicates that he is willing to accept some of the amendments being put forward today.

I shall speak first to Amendment A201. We should welcome the idea of a general offence of causing damage to the protected features of MCZs, but as drafted you would need to prove all three elements beyond reasonable doubt. That is going to be a pretty tall order. Did the person actually commit the prohibited act without lawful excuse? Did he know or should he have known that the feature to which the act relates is part of an MCZ, and has the act significantly hindered or will hinder the achievement of the MCZ conservation objectives? There are two difficulties here. It is going to be hard enough trying to prove that someone committed the act out at sea, and you also have to prove that he knew or ought to have known that the feature was in an MCZ. That will be extremely difficult because the zones will not have notices erected at their entrances stating, “You are entering an MCZ”. I cannot think of legislation governing any other walk of life that I have had experience of where ignorance of a particular protection or designation is a suitable defence. Under many other pieces of legislation, to say, “I am sorry, but I didn’t know it was against the law”, would on many occasions have both the lawyers and the police laughing as you said it. That is a real stumbling block.

Equally difficult is the provision that it has to be demonstrated beyond reasonable doubt that the act has significantly hindered or will hinder achievement of the conservation objectives. The reality of the marine environment is that, if you wait long enough, there is a strong possibility that what is wrong in it will ultimately recover. There are some examples where that is not the case, such as the Newfoundland cod stocks, but we could see hours of legal argument as people try to demonstrate that, in the long run, the conservation objectives would be met and therefore their act has not significantly hindered them. I am concerned that we are putting three tests into place that will make it almost impossible to prove a case beyond reasonable doubt.

My other amendments are Amendments A202 to A206, and I am delighted to be joined by the noble Lord, Lord Taylor of Holbeach, on these. We ought to learn from a history of failure in the protection of SSSIs in terrestrial conservation. The offence as currently drafted applies only to deliberate damage, which was the approach of the Wildlife and Countryside Act 1981—indeed, this Bill is threatening to come perilously close to being almost as long in terms of our debates. The reality was that very few prosecutions were brought under the Act because it was abominably difficult to prove deliberate damage. You have to get inside someone’s head and prove intention, which is notoriously difficult, and sites continued to be damaged.

The Countryside and Rights of Way Act 2000 changed all that by strengthening the provisions for SSSIs to cover reckless damage and indeed disturbance, which is the point of Amendment A203. Disturbance can be a real cause of damage both in the short and the long run for wildlife. So far as SSSIs were concerned, the Natural Environment and Rural Communities Act 2006 also strengthened the protections by removing the requirement to prove that a person who caused the damage to an SSSI knew that it was so designated, reflecting the provisions in Amendment A201, which talk about knowing when you are in an MCZ and causing damage. We have ample evidence from the terrestrial environment that an offence that will apply only to deliberate damage, which does not include disturbance, and will exempt people from blame if they can demonstrate that they did not know that it was an MCZ will be a pretty weak element in the Bill. Since the protected features of MCZs are the absolute fundamentals of the conservation elements of this Bill, I believe that the Government need to strengthen these provisions considerably. I beg to move.

We have joined the noble Baroness on a large number of the amendments in this grouping. She is understandably concerned about the limited circumstances in which the more stringent offences in Clause 136 become liable. I am not sure that I agree with the removal of subsection (1)(b) completely for fear that enforcement authorities will not take the appropriate steps to inform the public about MCZs, but certainly subsection (1)(c) is a stringent burden to be overcome. The way this is drafted makes successful prosecutions unlikely. I hope the Minister will take account of what was said by the noble Baroness in reviewing this subsection.

Why has the Minister decided that it is only an offence if significant hindrance is caused? It is the cumulative effect of many damaging acts, often small in themselves, which has harmed the marine environment up until now. This clause would seem to allow this to continue. How significant would an act have to be for Clause 136 to apply? I know the Minister is reluctant to detail this but I hope he can see the importance of the point the amendment tabled by the noble Baroness makes.

As the noble Baroness pointed out, we are joint signatories to the majority of the amendments in this group. They also extend the definition of “injure” to include “disturb”. As the noble Baroness set out, disturbing many species is akin to injuring them. This is in line with other marine protection legislation. I would like to hear the Minister’s views on “recklessly”, particularly as he used that word, as the noble Baroness pointed out and I noted down. The word “recklessly” can be an indictable offence and I would like to see it included in the Bill.

I would also like to take the opportunity to ask about the possibility of somebody being caught with clear intent of committing a prohibited act. Why have the Government decided that a serious intent to commit a prohibited act, perhaps only prevented by the timely arrival of the enforcement authority, is not subject to a similar penalty?

We would like to associate ourselves with this group of amendments, particularly with the comments made by the noble Baroness, Lady Young of Old Scone, and the noble Lord, Lord Taylor. In the interests of the expedition wished upon me earlier by the noble Lord, Lord Davies of Oldham, I do not have anything to add, but the Minister should be aware that there is considerable support for these amendments around the House.

This carries on our debate about whether we have the balance right and whether there are sufficient sanctions contained in the Bill to ensure that we do everything we can to prevent damaging or reckless behaviour. I fully accept the importance of this.

I will start with the amendment tabled by the noble Baroness, Lady Young. Essentially, it widens the scope of the general offence by removing the defences in Clause 136(1). I understand where she is coming from and why she is concerned about the effect of the defences. If we were to go down the route that she suggests, the problem is that the person would be deemed to have committed an offence even if they could not have been expected to know that a feature was protected, and even where no significant harm occurred. Our concern is to get the balance right. We clearly want there to be deterrents so that there are sufficient sanctions and sufficient confidence that when prosecutions are taken, they will be successful if the evidence is there. We are concerned about well-intentioned and responsible people finding themselves unwittingly in breach of the law. That is the reason for the defences as they are set out. We do not want to criminalise people whose behaviour is unlikely to have discernable conservation impact.

Giving examples is dangerous, as I have already discovered tonight. Clause 136(1)(b) is an important matter and states:

“at the time of doing the act, the person knows, or ought to have known, that the feature to which the act relates is in, or forms part of, an MCZ”.

This part of the clause relies on what a person actually knows or what it is reasonable to expect the person to know in the light of the activity they are carrying out. If the person knows that a feature is part of a marine conservation zone and intentionally damages it, clearly they should be guilty of the offence. In other cases, it may well be that a responsible person would take certain steps to inform themselves about any restrictions on any activities they wish to pursue in an area. It is reasonable, for example, to expect a person to inform themselves about the conditions of a marine licence under which they are operating. It would also be reasonable for a person who was diving to collect shellfish to check whether there were any restrictions on what shellfish might be collected from the seabed in an area. This is not a carte-blanche defence. It is entirely reasonable to expect a responsible person to take steps to inform themselves. An example of what might not be caught by this defence might be damage caused because relevant information was not readily available, although it was sought about protected features or restrictions on activities in appropriate places.

On the question of reckless damage, I find myself in sympathy with the point the noble Baroness raised, which is fortunate since I used that word perhaps unguardedly a moment or two ago—indeed recklessly. I agree that people who know about a marine conservation zone but simply do not care if they damage it should be subject to this offence. I will take the amendment away and give serious consideration to it before Report because I think the point has been well and truly made.

Amendment A203 extends the general offence to include intentional disturbance of animals. This is an important amendment linked to Amendment A222, which provides a definition of disturbance. I do not disagree with the point put forward by the noble Lord, Lord Taylor: the question is how to deal with it. The Government’s approach is that because the kind of activity that might cause disturbance will differ between sites, it is better dealt with on a case-by-case basis. The Bill allows for potentially disturbing activities to be controlled through by-laws, which have the advantage of being easier to enforce and provide greater clarity for sea users. Disturbance might be caused, for example, by people straying too close to a group of animals through innocent curiosity or as part of an organised wildlife watching trip, or perhaps through using machinery which emits a loud noise or is fast-moving, such as our favoured jet skis. Where a site is considered vulnerable to such disturbance, the Bill allows for by-laws to be made. We believe that these can control the doing of anything which will disturb any object, animal or plant within a marine conservation zone.

Why do we look to by-laws? Because they can be readily adapted to deal with a specific threat and will often be a more effective means of protecting a site than a general offence. For example, where a community of seabirds is vulnerable to disturbance during a particular time of the year, a by-law could prohibit particular activities in a specific area during that time of the year. In that way, restrictions will be kept to the minimum necessary. They will be expressed in ways which are clearly understood by everyone and it should be clear whether or not an offence has occurred.

The definition of disturbance proposed in the noble Lord’s amendment would make it difficult to prosecute offenders. The measure of noise which may disturb a plant or an animal, or the extent to which an organism has been stressed by it, can be difficult to prove. There are other aspects to disturbance which we think make it better controlled through by-laws. A single act of disturbance is likely to have a temporary impact and may become a problem only when combined with other sources of disturbance over a period of time. Therefore disturbance is different in character from the kind of intentional damage that we consider merits the introduction of a general offence. That is why it is probably better approached through by-laws, which can be much more specific and almost on a case-by-case basis.

I recognise that this is very important but we think that we have got the hierarchy right. We understand the point about recklessness and that we need some defences, but we do not intend these defences to be used in a way that enables wrongdoers to get off, if I can put it that way. I hope it is clear, from the way I have explained the paragraph (b) part of the defence, that it is not good enough to plead simple ignorance. There are expectations that go alongside that defence.

Perhaps the Minister can clarify the by-law question for me. Given what is contained in Clauses 125 and 126, do I take it that the by-laws would be brought into being only by the MMO? If not, who else would bring them in? It is clearly different from terrestrial zones where it might be brought in by other people. I accept the Minister’s argument that the Government are trying to get a balance within the Bill—that is extremely important—but a difficulty may sometimes arise where people should have known, but did not know, that they were committing an offence. That is a very fine point.

In our earlier discussions, we were talking about foreign vessels coming into our zones. It will be quite a challenge to ensure that international shipping and the people who use our waters are aware of the by-laws—I remember we had a long discussion on buoys and markers—and I seek clarification on who is entitled to make the by-laws and on the way in which the Government anticipate getting that information out into the public domain. Sometimes offences are committed by people who have no understanding that they are committing them, and sometimes people deliberately and knowingly commit offences. A certain amount of flexibility to deal with such situations is sensible and I am happy with that, but I seek guidance on the by-law situation.

Clause 125(1) makes clear that:

“The MMO may make one or more byelaws for the purpose of furthering the conservation objectives stated for an MCZ in England”.

It is for Welsh Ministers to make by-laws in Wales. Scotland is not covered under these provisions because they deal with inshore waters, which is a devolved matter. Therefore it is a matter entirely for Scotland in that respect. By-laws can be made alongside the creation of MCZs, but, equally, further by-laws can be made in the light of experience. Issues around disturbance might be anticipated or they might be made in the light of experience, so there is sufficient flexibility.

Obviously, local authorities can make by-laws. They are the authorities that might well be making by-laws on that area not covered by the marine conservation zone but running adjacent to it. Disturbance of the sort mentioned by the Minister, such as excessive noise, may well originate from outside the marine conservation zone and it may be that a local authority might have by-laws on access and things of this nature. They might not be part of this Bill, but will the Minister clarify that?

That is a good point. There needs to be collaboration between local authorities and the marine management organisation in England to ensure that there is a consistent approach in that situation. In previous debates, we have agreed that the local authority agreement will be important in ensuring that there is local ownership and involvement. I agree with the noble Lord on that.

Is it the Minister’s point of view that the by-laws could come from either the MMO or the relevant local authority?

No, as regards the provisions contained in this part of the Bill, that falls to the MMO. The point made by the noble Lord, Lord Taylor, is that, for example, there may be disturbance which disturbs people on the land as much as the animals in the sea. I think that is what he is saying. He indicated that as regards the sea, in a marine conservation zone, the by-laws would fall to be made by the MMO, but that one might hope for a consistent approach from the relevant local authority. They are different bodies and will have to take their own decisions, but, as we have discussed in so much of this Bill, let us hope that they will work together.

I am grateful for the Minister’s reply to this useful debate. I am grateful for the contribution of my noble friend Lady Byford. She has developed the arguments in a way that has allowed us to explore the localism approach, which, after all, I cannot really speak against.

I accept the Minister’s argument about the efficacy of by-laws applying locally to specific situations over blanket legislation. It is extraordinarily difficult. Most of us would like to think that we knew a villain when we saw one, but it is difficult to actually describe one in legislative form. Some of the difficulty we are having with this is not in disagreeing about what we are trying to achieve, but about the nuance of trying to exclude innocence from punishment and, at the same time, identifying guilt and, indeed, recklessness.

I would add one other point. It is also trying to be proportionate. As the noble Baroness, Lady Miller, has suggested, where it is appropriate to point out to people that they are doing the wrong thing, but no particular harm has been caused, we want a system that encourages people to do the right thing. We have already heard how caution might also be brought into play. Equally, it is clear that where real damage has been caused, strong action needs to be taken.

I am rather less gracious than the noble Lord, Lord Taylor. I thank the Minister for agreeing to take away the reckless issue and for coming back, with any luck, to post-hoc endorse his use of the word “reckless”.

I am disappointed on the disturbance issue. By dealing with disturbance using by-laws, we are condemning it to a lower penalty level. That means that disturbance will always be subject to those lower levels of penalty. Disturbance can be extremely damaging—particularly to cetaceans and bird life.

On defences, the Minister wants to get the balance right. Experience with SSSIs shows that if too many ways out are given, it is made almost impossible to get prosecutions, and the balance is wrong. No doubt, the test of time and lack of cases will reveal that. I beg leave to withdraw the amendment.

Amendment A201 withdrawn.

Amendments A202 to A207 not moved.

Clause 136 agreed.

Clause 137: Exceptions to offences under section 135 or 136

Amendments A208 and A209 not moved.

Amendment A210

Moved by

A210: Clause 137, page 84, line 1, leave out subsection (3)

I move Amendment A210 on behalf of my noble friend Lord Taylor. The amendments in this group are very important probing amendments in a sensitive area. They probe the Government’s intention on their future policy of including a defence of sea fishing. Environmental groups are, unsurprisingly, unhappy about a blanket defence, especially in the light of the more precise definition used elsewhere in the legislation, such as the offshore marine conservation regulations of 2007. That blanket defence is included in the Bill.

Other stakeholders, such as those involved in sea fishing, are worried that despite this subsection the Government have a long-term intention to restrict sea fishing. Can the Minister provide an explanation for the differences between these various bits of legislation? I beg to move.

We, too, think that it is very important to probe the Government’s intentions in this area. In its context, it may not look very difficult to deal with. However, to exempt a specific set of actions from offences under Sections 135 or 136 means that we are making some specific exemptions in an important territory. I think we are right to probe the objective and purpose of the exemptions.

A few minutes ago, the Minister referred to consistency of approach. By definition, when you start making exceptions you are not being consistent. Therefore, it is extremely important that the rationale behind these exemptions should be fully explained.

At present, Clause 137(3) is remarkable in that it refers to specific activity,

“in the course of, sea fishing, or … an act done in connection with such an act”.

That is a curious phrase. Then with the condition that,

“the effect of the act on the prohibited feature in question could not reasonably have been avoided”.

However, this refers only to sea fishing.

I have, I think, a reasonable record of trying to support the sea fishing industry and fishing communities, but anybody who has any concerns with the particular broad scope of the Bill must wonder why they are being singled out. Bearing in mind our previous debate, why should not those involved in recreational activity be listed? They are often the same people. In the summer, small-scale inshore fishermen often indulge in a bit of recreational activity for their local communities, and no doubt make a reasonable return on that operation. Why should sea fishermen be given this special dispensation while in the summer when they turn to recreational activity they are not?

As I hope is apparent to all Members of the Committee, I am not a lawyer. I am proud of that fact. My legal friends who look at this clause will have great fun. I think they can make some useful money out of it. This is the sort of exemption that will provide them with many opportunities profitably to exercise their talents before the court in seeking to demonstrate that the offence was committed for the purpose of, and in the course of, sea fishing and was done in connection with such an act. There is an obligation on us in dealing with any legislation of this sort. When a group of individuals is targeted either for a special penalty or special exemption, the Government should explain why they are singling that group out. On that basis, I gladly support the amendment moved by the noble Duke; we are entitled to a fuller explanation that is immediately apparent.

I agree that this is an important consideration, and fully understand why noble Lords want an explanation. Perhaps I might give that explanation before coming to the amendment. Essentially, the common fisheries policy regulates the environmental impacts of fishing as well as the methods and level of catches permitted. Under EU law, it therefore already factors in environmental damage and deems that to be acceptable to the extent that it is a necessary consequence of fishing.

The defence in Clause 137(3) is provided to make it clear that the Bill is not seeking to challenge that position, because we are in no position to do so, and to reassure fishermen that the nature conservation provisions in the Bill will not criminalise their activities. If fishery restrictions are necessary to protect a marine conservation zone in an area where additional domestic measures are permitted under the CFP regime, specific fisheries legislation—such as by-laws made by an inshore fisheries and conservation authority—will be used.

As a member of the EU, if there is a conflict with national law EU law must take precedence. The common fisheries policy covers both the exploitation of fish stocks and the environmental impacts of fishing. As such, if a fisherman is fishing according to the conditions of his licence, we have to consider any environmental impacts as being already taken into account and acceptable. I do not pretend that that is an ideal situation. The fisheries defence in Clause 137(3) does no more than reflect that situation. That gives the fishing industry important clarity, and its presence in the Bill does not necessarily weaken the protection that we can give to marine conservation zones.

While some form of commercial fishing can, no doubt, damage the seabed, and seabed-dwelling plants and animals, there is an obvious risk that uncontrolled fishing activity might undermine our conservation objectives. I fully understand that point, and that we face that risk. Indeed, we discussed at length last week the clear need for any integrated marine policy to bring fisheries and conservation policies together. The common fisheries policy already provides a mechanism for seeking the agreement of other member states and, as I have said, for restricting fishing activity for environmental reasons. We will use that mechanism when sites outside UK territorial waters need such protection. I acknowledge that other member states may not always see such restrictions as being compatible with their interests.

I should like to probe one further point. Clause 143 has a wonderful list of definitions of what this section contains. I can see no definition there of sea fishing. Given the view of the noble Lord, Lord Tyler, on what fun lawyers will be having with a phrase like this, does the Minister know whether sea fishing is defined anywhere in law? It seems to me that it could apply to somebody trawling for fish in the sea. I have spent time trawling a line for mackerel; I do not know whether that counts as sea fishing.

I am not aware of there being a definition in the Bill. I certainly understand the point made by the noble Duke, but he will know that the reason for the defence, in essence, is that the common fisheries policy and European legislation take precedence. I do not know whether that defines sea fishing, but I shall certainly find out.

I cannot answer the question for the Minister, but he may get the missive that he requires from the Box. I think that in a previous debate his noble friend Lord Davies of Oldham laid great stress on the fact that the common fisheries policy is under review—we hope that it will move on in a more sensible direction—and is about to be devolved in a number of important ways. I wonder whether the explanation that the Minister is giving us could be incorporated in the subsection, because then it would make sense. As it stands, it baldly states that, for reasons that are unexplained, sea fishing is given special treatment. If it were linked to the superiority—that is a dangerous word—of the CFP in its current form, I think that we would all accept that it had logic. However, as it stands, I do not think that the Minister’s explanation—valid though it may well be—is sufficient to justify the incorporation in the Bill of this very special treatment.

The noble Lord says that, but I have given as good an explanation as I can as regards the defence. At the end of the day, this is about ensuring that the fishermen involved are not subject to two conflicting pieces of legislation. That would place them in an absolutely impossible position, and that is what we seek to avoid. I shall certainly consider the noble Lord’s point, which I understand. I think that last week I referred to the discussions in Europe on the common fisheries policy. The advice I have received is that the mood around the Fisheries Council table may be changing due to the provisions of the Marine Strategy Framework Directive, which imposes on maritime member states, including the UK, an obligation to create a network of protected areas. We expect that other member states will also need to provide adequate protection for their protected areas if they are to meet their legal obligations. Therefore, we hope that there might be a mutual interest in adopting a slightly different approach from marine nature conservation in the future.

Commissioner Borg is aware that we are faced with a very fine balance between achieving a sustainable future for the fishing industry on the basis of a healthy marine environment, and the current state of EU fish stocks. He has stated his desire for an integrated maritime policy and recognises that the common fisheries policy has a crucial role to play in achieving that aim. This is essentially what is also envisaged by the Marine Strategy Framework Directive. As I indicated last week, it is a priority of the Government to secure a better alignment between European fisheries policy and the UK’s objectives for the marine environment. That point will be uppermost in our minds when we go into the negotiations.

I am right: there is no definition of the relevant phrase in the Bill. If there is no definition, it is intended, as ever, to have its natural and broad meaning. It applies to any person fishing in the sea.

This is a clearly acknowledged problem which the Government wish to tackle through negotiations in Europe on the common fisheries policy. However, the existing measure does not provide any protection for a person who is fishing illegally, nor does it provide any protection for those who are using fishing gear solely and deliberately to damage a marine conservation zone. Therefore, it is not a blanket defence. Where the balance of evidence merits it, we will of course take the necessary steps to regulate fishing.

Provided we control fishing where necessary, the defence that is afforded by this clause is appropriate. Essentially, it says that fishing, which is a legitimate activity, has already had its environmental impact taken into account through the common fisheries policy. It should not be prosecutable under two pieces of legislation for the same offence, if such offence is caused. Illegal fishing, though, would be prosecuted under fisheries legislation—for example, through inshore fisheries and conservation authority by-laws, as provided for in the Bill. I know noble Lords are concerned about the situation, but I have tried to explain the logic of why we are where we are. It is not ideal. Clearly, we could have a general debate about the common fisheries policy. Rather as with the CAP, we would all agree that reform is necessary. We will pursue this matter in Europe.

It is very helpful that the Minister has taken this approach. He should confirm, and I am sure he can, that—by definition, since this is still a Bill—there are no marine conservation zones yet. There is absolutely no reference to such zones in any fisheries legislation, either EU or UK.

That is absolutely right but the point about the common fisheries policy and legislation is that it allows for environmental impacts, which is how we make the relationship.

I smiled when the Minister tempted us to have a discussion on the fisheries policy, which I am certainly not going to do. My query is whether the Minister is at all concerned that we are building in a loophole. I think he has acknowledged that. If other countries eventually get around to introducing marine Bills, as we are, and do not include this sort of protection in them, will it not encourage more of their fishermen to come fishing over here, where they run less risk of being caught out by causing damage because of the loophole that is being put into this Bill?

It is not a loophole; it is an acknowledgement of the reign of the common fisheries policy, which will of course apply to those fishermen as well.

The problem is not only European fishermen. What about the Russians off Shetland? The noble Lord says that the Bill cannot protect us from what might come from Europe, but could there not be something to make us a little safer from that? As far as the general point of this clause is concerned, the Government will not have political problems about it where I live because there is a great deal of sympathy for fishermen. There is rather more than there is for dolphins and seals. From my own experience, it will not present a huge problem among the population generally. What about the Russians?

What about the Russians, indeed? Clearly, there is a general issue around the enforcement of provisions outside our territorial waters. It depends on the nature of the activity that takes place. We wish to have the tools that will enable us to deal with those matters. My understanding is that the position of Russian trawlers—if that is the point—would be no different in relation to marine conservation zones from their position in relation to fishing at the moment. That is not changed by the Bill.

This has proved to be a great education for those of us who do not spend our lives worrying about the ins and outs of fishing. In fact, what the Minister has been telling us is that anyone carrying out the operation known as fishing—which may not always involve extracting fish, but may include octopuses, crabs or all sorts of other things—has an exemption under the common fisheries policy. There is a fine point when you are fishing in an estuary as to whether that is the sea; we shall have to find out where the boundary of the sea lies in that sort of situation. This debate has been most revealing and I am grateful to the Minister for providing explanations. I beg leave to withdraw the amendment.

Amendment A210 withdrawn.

Amendment A211

Moved by

A211: Clause 137, page 84, line 8, leave out “prohibited” and insert “protected”

Amendment A211 agreed.

Amendment A212

Moved by

A212: Clause 137, page 84, line 10, leave out subsection (4)

In moving the amendment, I shall speak also to Amendments A213, A214, A223 and A226. They are probing amendments to call into question the status of third-country vessels. As the Bill stands, an offence of damaging protected features of MCZs, under Clause 136, specifically does not apply, under Clause 137, to,

“anything done in relation to an MCZ lying beyond the seaward limits of the territorial sea by a person on a third country vessel”.

Does the Minister agree that, as the Royal Yachting Association has argued, this,

“unfairly and unreasonably prejudices UK and member State vessels”?

According to the RYA, under Article 56 of the 1982 United Nations Convention on the Law of the Sea the coastal state has jurisdiction in the exclusive economic zone with regard to the protection and preservation of the marine environment. The convention does not prevent the UK from extending Clause 136 to have reference to third-country vessels. Can the Minister tell us whether this is the case? Can he account for the fact that it has not been included in the Bill? Does he not agree that it would be sensible to maximise protection and preservation of the marine environment and that inclusion of third-country vessels would be sensible and desirable?

Clause 137 deals with exceptions to offences that contravene by-laws and orders or damage protected features of marine conservation zones. However, it does not include any reference to a situation whereby an offence may be committed even despite the best efforts of the person involved to avoid doing so. We have therefore tabled Amendment A214 to insert a new clause stating that, for any offence under Clause 135 on contravening by-laws or orders, the defendant is allowed to use as a defence the fact that they took “all reasonable precautions” and “exercised all due diligence” in order not to commit an offence.

Does the Minister agree that there may be situations where an offence is committed despite the best intentions and most concerted efforts of those involved? Does he concede that a person should then be allowed to use this argument in their defence? The circumstances of this offence and the fact that all reasonable precautions were taken may have an impact on the severity of the penalty, or may at least bring up important considerations that should be taken into account. Therefore, we on these Benches think that it is important that this new clause be included in the Bill.

The last two amendments in this group concern Clause 143, an interpretation clause, to which my noble friend the Duke of Montrose referred earlier. The clause says:

“‘England’ includes the English inshore region”.

To that we propose to add,

“but excludes the English offshore region”.

The clause also says:

“‘Wales’ includes the Welsh inshore region”.

To that we propose to add,

“but excludes the Welsh offshore region”.

Am I right, in both cases, that “inshore region” means up to 12 nautical miles, which is the limit of our jurisdiction? We have discussed this 12-mile issue before, but this, again, is probing, because Clause 137(4), about which I was talking earlier, refers to,

“anything done in relation to an MCZ lying beyond the seaward limits of the territorial sea by a person on a third country vessel”.

What does that mean? It is not in the Clause 143 interpretation. Does it mean up to our 200-mile limit? Does it mean as interpreted by the Royal Yachting Association, as per Article 56 of the 1982 United Nations Convention on the Law of the Sea, or what? We would like clarification. I beg to move.

I am inordinately grateful to the noble Earl for moving these interesting and challenging amendments and I shall do the best that I can to reassure him. We have, after all, spent some time discussing the general offence provisions in Clause 136 and the exemptions in Clause 137. Let me start by addressing Amendment A212, which proposes the deletion of Clause 137(4), about which the noble Earl was emphatic. Amendment A213 is a consequential amendment, which would make sure that vessels are treated equally, irrespective of the flag that they fly or are entitled to fly.

The reason for Clause 137(4) is that the UK is a signatory to the United Nations Convention on the Law of the Sea. Where waters outside a state’s territorial sea are concerned—that is to say, in the exclusive economic zone or an equivalent zone, such as the pollution control zone—the emphasis in UNCLOS is on the coastal state’s power to enforce applicable international rules and standards or national laws conforming to and giving effect to such rules and standards. Clause 137(4) is needed to fulfil our international obligations and removing it would leave us falling short of them. The strength with which I intend to defend that subsection will be recognised.

The clause provides exceptions to the offences of contravening a by-law, under Clause 135, or the general offence in Part 5 of the Bill, under Clause 136. Amendment A214 would provide a due diligence defence for contravention of the by-law in Clause 135. By-laws themselves can be drafted in such a way as to provide an element of due diligence, if that is appropriate. However, in most cases, by-laws will be clear that a certain type of activity is prohibited. A due diligence offence in those terms would not be appropriate. In addition, if there were legitimate reasons why a by-law had been breached, proceedings might then not be in the public interest. I would need some persuading that there was a need for a general provision of a defence here when it can and should be provided, where appropriate, in the by-law itself.

Amendments A223 and A226 seek to highlight that, while the definition of England and Wales includes the inshore area, it excludes the English and Welsh offshore marine regions. England and Wales are already defined in existing legislation. The definition of England is set out in the Interpretation Act 1978 to mean,

“the area consisting of the counties established by section 1 of”,

the Local Government Act 1972,

“Greater London and the Isles of Scilly”.

Such legislation defines England in relation to land and does not extend the definition to include any of the marine area. Noble Lords will appreciate the reason and logic behind that definition. I am not going to leave the noble Lord, Lord Livsey, out of this. Wales is defined in the Government of Wales Act to include,

“the sea adjacent to Wales out as far as the seaward boundary of the territorial sea”.

The current drafting in Clause 143 reflects the definitions that already exist, therefore extending the definition of England to include the inshore marine area and to restate that Wales includes the land of Wales and the inshore marine region. As the existing definitions of England and Wales do not include the offshore marine areas, it is unnecessary to exclude the offshore areas in the Bill. The definitions that we have already exclude them.

I understand noble Lords’ expectations that the Government will clarify these matters and hope that I am succeeding in doing so at this Dispatch Box. I am seeking to clarify which areas are included and excluded from the definitions that were handed to us before we drafted the Bill and are included in it. In terms of legal drafting, we cannot exclude a region that is not already included in a definition. We already have the definitions established and therefore have to follow that pattern. That is because we need to have consistent definitions of Wales and of England written into the Bill. That is why I cannot accept the amendments, despite understanding the intention behind them: “Here is an excellent opportunity for a further definition that would clarify matters”. However, we already have the definition of England and Wales, which constrains us in the framing of the Bill.

I think that the amendments were prefaced by the adjective “probing”. I hope that they were, because we have worked hard to meet legitimate anxieties that we should make clear the definitions in the Bill and why Clause 137(4) must be retained. I hope that I have given satisfactory explanations.

I wonder whether the noble Lord is right about Amendment A214, which concerns the general defence that could be used in relation to by-laws made for England and orders for Wales. The Welsh Ministers would obviously have to be consulted before this change was made. However, thinking about what these orders and by-laws will say, I doubt that it is sensible to say that every one must have a let-out section. It would help, in drawing up the by-laws, to include the defence that is outlined in Amendment A214. Perhaps the Minister could look at that. The Bill has been drafted without that idea, which is a new one. However, in consultation with people in Wales, the Minister might see whether this is a more effective way, as it seems very sensible. It is a normal defence that occurs frequently in legislation and these by-laws and orders are the equivalent. Could the Minister look at the issue, rather than polishing it off in the way that he has?

I was not seeking to be dismissive of debate. We live and learn, and the Government are happy because these debates are informative and give us steers in particular directions. I was indicating why we would expect the issue of the defence to come within the by-law. To search for a general defence raises obvious problems: that was my argument. Of course, I will look at the additional point made by the noble Baroness and reflect on it.

I thank the Minister for that. I will start in reverse order and thank him for explaining the definitions of England and Wales, including the English and Welsh inshore regions. He made them very clear.

Like my noble friend Lady Carnegy, I am not completely sure about his explanation of Amendment A214, which refers to someone who has taken,

“all reasonable precautions and exercised all due diligence”.

However, I would like to read what he said and think about it.

I am stuck on the first part of the Minister’s answer. I talked about third-country vessels. Perhaps I was being thick or not listening attentively, because I did not understand the Minister’s answer. The Royal Yachting Association says that the exemption,

“unfairly and unreasonably prejudices UK and member State vessels”.

The Royal Yachting Association went on, as the Minister did, to cite Article 56 of the United Nations Convention on the Law of the Sea. That implies that the UK can go after third-country vessels. What does the Minister say? Is the Bill unfair to UK vessels or does the convention hold sway? That is where I am stuck.

I have sympathy with the noble Earl, because these are complex areas. I reiterate that I have an extremely useful note from the Box on this highly specific legal matter. There are rights under UNCLOS to regulate foreign vessels to protect the environment, but that has to be balanced case by case against the innocent rights of passage that the convention sets out. The significance of Clause 137(4)—this is why I was emphatic about it in my original reply—is that it identifies the international obligations that we have and need to observe.

Yes, exactly so. I re-emphasise that we clearly have to comply with international obligations. Of all powers to abrogate in any way the significance of UNCLOS, the British would be in the worst position to do so because, as such a significant maritime nation, we depend on it for the effective operation of our trading relationships. As I said earlier, so much of our trade goes by sea.

We undertake to ensure that we will do the most that we can, within the bounds of UNCLOS—I think that the noble Earl accepts the basic point—to meet the anxieties expressed here under the amendment. This is not the only time that the issue has been raised. We think that we have it right. I hope that the Committee will give us due respect for the fact that, in this exceedingly important area, very strenuous efforts have been made. I undertake that we will carry out that check and reassert our position if necessary later.

I thank the Minister. It seems that the notes that he has received from the Box are probably rather better than the notes that I have here. I am rather clearer now about where we stand. I look forward to any further explanation, if the Minister has one, but at this stage I beg leave to withdraw the amendment.

Amendment A212 withdrawn.

Amendment A213 not moved.

Clause 137, as amended, agreed.

Amendment A214 not moved.

Amendments A215 and A216 had been withdrawn from the Marshalled List.

Amendment A217 withdrawn.

Clause 138: Fixed monetary penalties

Amendment A217A not moved.

Clause 138 agreed.

Clause 139: Fixed monetary penalties: procedure

Amendment A218

Moved by

A218: Clause 139, page 85, line 32, leave out “it was” and insert “the penalty is proposed to be”

Amendment A218 agreed.

Clause 139, as amended, agreed.

Clause 140 agreed.

Schedule 10 agreed.

Clauses 141 and 142 agreed.

Schedule 11: Consequential amendments relating to MCZs

Amendment A219

Moved by

A219: Schedule 11, page 257, line 23, at end insert—

“(2) The amendment by this paragraph of a provision contained in subordinate legislation is without prejudice to any power to amend that provision by subordinate legislation.”

Amendment A219 agreed.

Schedule 11, as amended, agreed.

Schedule 12: Transitional provision relating to MCZs

Amendment A220

Moved by

A220: Schedule 12, page 258, line 7, leave out paragraph 5

Amendment A220 agreed.

Schedule 12, as amended, agreed.

Clause 143: Interpretation of this Chapter

Amendments 221 to 226 not moved.

Clause 143 agreed.

Clause 144 agreed.

Schedule 13: Marine boundaries of SSSIs and national nature reserves

Amendment A227

Moved by

A227: Schedule 13, page 262, line 26, leave out paragraph 9

Schedule 13 is about an important issue which we keep coming back to: the boundaries between land and sea. It amends the Wildlife and Countryside Act 1981 in relation to marine boundaries of SSSIs and national nature reserves. Part 2, in which lies paragraph 9, refers to SSSIs.

Paragraph 9 of Schedule 13 amends Section 28D of the Wildlife and Countryside Act to cover the denotification of a SSSI on designation of the same area as an MCZ. In other words, the proposal is that the same area cannot be part of both a SSSI and an MCZ. Where SSSIs and MCZs overlap, the overlap between the features of these two designations may be only partial such that some SSSI features of national importance may not be features of the relevant MCZ. In addition, it is not clear whether the features of Natura 2000 sites, special protection areas classified under the birds directive and special areas of conservation designated under the habitats directive will be eligible as features of MCZs.

Natura 2000 sites on land and inter-tidal areas are underpinned by SSSIs, with the lists of operations requiring consent associated with those SSSIs providing the mechanism by which the effects of management operations of Natura 2000 sites are regulated. There is concern that the prospect of denotification of SSSI land, whenever an MCZ is designated over the same area, may well raise a number of legislative complications and confusions. If MCZ designation over an area of SSSI led to the denotification of that part of the SSSI, we believe that sites could be left vulnerable in several ways.

The first of these is that beaches hitherto protected might be left unprotected if the SSSI was denotified but the MCZ in its place was not designated specifically for the same features. Secondly, SSSIs and their features offer protection from developments on land and in inter-tidal areas due to the explicit link between the SSSI system and the terrestrial planning system. Indeed, SSSIs are a material consideration in the terrestrial planning system. There is no explicit link with the MCZ system and the planning system, so if a SSSI area was designated as an MCZ and the SSSI was denotified as a consequence, some clarity of protection from development under the terrestrial planning system would be lost.

The third area of concern is that, where a SSSI underpins a Natura 2000 site, the ability to regulate management activities that may adversely affect that Natura 2000 site would be lost if the area, or part of the area, were to be designated as an MCZ and the SSSI were to be subsequently denotified. Where a SSSI underpins a Natura 2000 site, the route by which the habitat regulations are applied to activities that do not require any other form of consent—these include bait digging, cockling, wildfowling, grazing and other forms of salt marsh management—is via the list of operations that require consent and the explicit link between the habitat regulations and the CRoW Act. There is no explicit link between the habitat regulations and MCZs.

There are very clear areas of concern about what happens to the regime that operates on a SSSI if the SSSI is denotified as a consequence of the creation of an MCZ. This is clearly a very technical matter. Indeed, it is one of the many important matters that we have been discussing in our debates on the boundary between the land and sea: that is, the coast. I am not sure whether the Minister will be able to give a clear and comprehensive answer to all these questions this evening, but I will listen to him with interest. If he cannot, I will be very happy if he will write to me and explain it all. Then we can decide what to do about it at a later stage. Meanwhile, this is an important matter, and I beg to move.

I will be brief. This is an area in which I have a personal interest. Holbeach is a marine parish in the sense that Holbeach Marsh stretches right out into the Wash. The Wash is a site of special scientific interest and, indeed, a textbook example of where such a transition from an SSSI to a marine conservation zone might occur. However, I am not entirely sure that I share the anxieties of the noble Lord, Lord Greaves, about these matters. To me, once you get over the sea-bank, you are in a marine environment, not a land-based environment. There are no developments or people. There are plenty of seals, and there are birds in vast numbers.

I share the noble Lord’s concern that we must ensure that the transition to a marine conservation zone means no dilution of protection, because the Wash is the largest estuarial system in the UK. It is also a special protection area and a Ramsar site, it is preserved under the EC wild birds directive, and it is part of Natura 2000’s special projects for grey seals, mudflats and sub-tidal sands. The whole of the Gibraltar Point National Nature Reserve is a particular point of interest.

My contribution to this debate is to say that, as long as this process is well managed, these areas are best included in a marine conservation zone system that is capable of including the total marine environment within it. I do not share the concern of the noble Lord, Lord Greaves, about this issue.

I am enormously grateful for that latter contribution. I thought that my worst nightmare was about to be realised: the noble Lord, Lord Greaves, assailing me with his anxieties about sites of special scientific interest. Then the noble Lord, Lord Taylor, brought his insight to bear on land and sea issues in the Wash. Had the noble Lord, Lord Taylor, reinforced the position of the noble Lord, Lord Greaves, my nightmare would have been realised, and I am grateful that the noble Lord, Lord Taylor, has spoken so intelligently and perceptively about the issue. He has also, I think, reassured the noble Lord, Lord Greaves, who seemed to understand what the noble Lord, Lord Taylor, had to say.

Let me make the most obvious point first. This Bill is a conservation measure to enhance protection of a significant part of our environment. As the noble Lord, Lord Greaves, indicated, that which we seek to do for the sea inevitably has an interrelationship with that which we already do for the land. Where the boundary is to be drawn is a matter of great difficulty and interest, and natural forces ensure that that boundary moves from time to time.

I want to reassure the noble Lord that the decision on whether a site of special scientific interest should be denotified will be made by a conservation body, and that it will do so only on the basis of effective consultation with those who are concerned with these issues on land. When these bodies meet, they will not be distant government or arbitrary bodies concerned with issues other than conservation; they will be bodies concerned with conservation. We all know about the success of the sites of special scientific interest and we all know how jealously they are guarded, how much they are respected and how important they are to conservation on land. Is it conceivable that such sites would be threatened by the action of a conservation body which has responsibility for the contiguous marine part and is itself concerned about such protection?

The Minister asked whether it would be conceivable. The answer is: yes, it is. If a site falls into a state whereby it is in a very unfavourable condition, there could be great pressure to denotify it. As my noble friend has clearly explained, in that instance the site would be promoted for denotification by the very conservation bodies that the Minister is talking about. That is what happens when a site falls into an unfavourable condition. It is then liable to all the vulnerabilities that my noble friend has explained.

As the noble Baroness will recognise, in drafting the Bill we paid special attention to the interface between land and sea so that these respective mechanisms would dovetail together. Clause 115 sets out the limited circumstances in which the marine conservation zones can extend above the mean high-water spring tide. Conversely, Schedule 13 sets out the circumstances in which SSSIs can extend below the mean low-water mark. We have adopted a pragmatic and flexible approach to ensuring that sites are protected through the most appropriate arrangements. The Government intend to publish draft guidance on sub-tidal SSSIs and national nature reserves, which will explain in more detail how we envisage the marine and terrestrial systems working together.

It may even be that there are circumstances when it will be appropriate and desirable for a SSSI and a marine conservation zone partially to overlap. Nothing in the Bill would prevent that overlap. However, where an overlap would provide no conservation benefit and cause unnecessary duplication or potential confusion for sea users, it is important that the conservation body has the power to remedy the situation by denotifying the SSSI. That is the purpose of paragraph 9 of Schedule 13, to which of course the amendment refers.

I want to emphasise that we have taken care to ensure that the denotification of an SSSI is a power and not a duty. The Bill leaves the decision where it should be, with the conservation body. So I understand the noble Lord’s expression of anxiety. It is right that when we are dealing with the definition of the boundary between land and sea and all its difficulties, we should be assured that the Bill addresses those issues fully and satisfactorily. However, I hope the noble Lord, Lord Greaves, will accept that the Bill is a conservation measure in the same way as SSSIs represent conservation and that we have the power vested in the conservation body. I hope he will also accept what the noble Lord, Lord Taylor, said in his remarks. It is inevitable that issues will arise about responsibility for the boundary between land and sea, and the Bill takes due cognisance of that by addressing the issue with due thoroughness. I therefore hope that he will feel able to withdraw his amendment.

I am grateful to the Minister for his response and I thank the noble Lord, Lord Taylor of Holbeach, for explaining the situation on the beach at Holbeach and giving the Committee the benefit of his experience. I do not think that we disagree very much about this. What matters is what management regime and rules are set up for each particular stretch of shoreline and inshore area where land and sea meet. Clearly, where SSSIs meet marine conservation zones, special care will have to be taken in deciding how to set up the regime. The noble Lord said that the Government are going to publish draft guidance. Could he indicate whether its publication is imminent, something for the distant future or somewhere in between? Does he have that information with him?

I suppose I expected that because it is the answer to everything along the coast: it is somewhere in between. The Minister waxed lyrical about the success of SSSIs, although I am sure that many of us wish that they actually had been quite as successful as he considers. A lot of them are hard work. If the Minister has not answered all our questions, no doubt we will pursue them further, perhaps by correspondence. On that basis and in the knowledge that we will read carefully what he has said, I beg leave to withdraw the amendment. I see that the Irishmen and their associates are gathering, so we had better move on quickly.

Amendment A227 withdrawn.

Schedule 13 agreed.

House resumed.