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Lords Chamber

Volume 708: debated on Wednesday 11 March 2009

House of Lords

Wednesday, 11 March 2009.

Prayers—read earlier at the Judicial Sitting by the Lord Bishop of Rochester.

Banking: Corporate Governance


Asked By

To ask Her Majesty’s Government when they expect the first report of the inquiry into the corporate governance of the banking industry, chaired by Sir David Walker.

My Lords, Sir David Walker will examine the board management of risk, incentives to manage risk in bank remuneration policies, the competences needed on bank boards, board practices and structures, and the role played by institutional shareholders. As part of his review, a consultation document will be published in the summer of 2009, and conclusions will be published in the autumn.

My Lords, I thank my noble friend for his Answer and for an answer that he gave yesterday, when he explained an equation: MV=PY. I am sure that that pleased everyone in the House and that they thoroughly understood what he was talking about. May I put a simpler equation to him? If the banks, which are supposed to be lending and have been promised to lend, equal all the money that has gone in, rightly, to try to help them to do so, but they still do not lend, will my noble friend assure us that his policy of an arm’s-length relationship with the banks will change and that he will scrap that arm’s-length policy, or at least moderate it, and see that they do lend?

My Lords, I thank my noble friend for his question. He brings considerable experience to these issues and I always welcome his questions, as indeed I welcome those of the noble Lord, Lord Higgins; they are a truly impressive duo. The negotiated lending commitments with the Lloyds Banking Group and the Royal Bank of Scotland have reached totals of £48 billion of new and additional loan commitments. After careful scrutiny of the plans of those banks and assurances from them on the basis of their economic forecasts for the next 12 to 24 months, and having regard to prudent lending criteria that they are entirely achievable goals, those banks will report to the Treasury on a monthly basis, and we will submit an annual report to Parliament on those lending commitments. All parties entered into them on the basis that they believed they were achievable.

My Lords, as reference has again been made to the very useful Cambridge monetary equation, may I point out that the correct formulation is MV=PT and not MV=PY, as the noble Lord, Lord Barnett, has just said and as the Minister said yesterday? I was going to say, “Eight out of 10. See me afterwards”.

My Lords, I am not sure that I could spot the question there. I did, however, come prepared, because there are different formulations of this equation. The noble Lord, Lord Higgins, is absolutely correct that in previous days it was expressed as MV=PT. However, in more recent economic textbooks, I am told, it is now expressed as MV=PY. The basic concept remains the same.

My Lords, the noble Lord, Lord Barnett, referred to the arm’s-length relationship between the Government and the banks, as has the Minister many times. Perhaps he will clear up a confusion in my mind. In his speech yesterday, the Secretary of State for Business, Enterprise and Regulatory Reform said that the taking of up to a 35 per cent share by the private sector would still ensure that the Royal Mail remains in public ownership. How can the Royal Mail remain in public ownership when the private sector has 35 per cent, whereas banks appear not to be in public ownership when the state has significantly greater than two-thirds of the shareholding?

My Lords, I am sure that it all depends on the framework agreement for governance. My noble friend the Secretary of State for Business, Enterprise and Regulatory Reform has a very clear method by which he will achieve his declared objective in that respect. I will wisely not allow myself to be drawn further into that area.

My Lords, what does the Minister consider the rate of gearing should be for these banks now that they have been recapitalised by the taxpayer? Should that gearing be going up or down, or should it compare with what it was before? What are the Minister’s views?

Lord Myners: My Lords, the level of gearing can be determined only by reference to the nature of the banking activity. Clearly, a number of banks became substantially overleveraged throughout the world. One has to have regard to the quality of the assets and the nature of the funding. The approach to gearing levels and leverage must be particular to the specifics of the institution, rather than a generic statement that a certain figure is either appropriate or a maximum acceptable level. I look to the Financial Services Authority and other global regulatory bodies to provide more guidance on leverage levels.

My Lords, I am sure that I am not the only Member of your Lordships’ House who is not terribly au fait with all these formulae. Will the Minister confirm that his first reply to the noble Lord, Lord Barnett, means that banks will lend to ordinary people who want to borrow money if they are solvent and good propositions?

My Lords, that is precisely what I mean. We want banks to play a critical and important role in the provision of credit to support investment, enterprise, business and individuals. To do that, they must be able to lend with confidence on the basis that they have strong capital, which is more than sufficient to cope with the challenges that lie ahead, adequate funding and access to liquidity. That is the combination we have sought to achieve. I believe I can state with confidence that UK banks, which have already increased their lending over the past 12 months, will further increase that lending over the next 12 months because they can do so from a very confident background.

My Lords, does my noble friend agree that the banks of today are in a much better state with the Government’s help than they were when they were left to their own devices?

My Lords, whether we would have needed to give the support we have is an entirely different matter. But the support we have provided in terms of capitalisation, funding and liquidity puts British banks among the best capitalised in the world and the most effectively positioned to provide their critical economic function in supporting British jobs, British families and individuals in the pursuit of their goals and objectives.

My Lords, I am glad to hear that from the Minister. But can he also assure us that the interest rate on new loans to be made by the banks will reflect at least in part the reduction in interest rates down to 0.5 per cent by the Bank of England?

My Lords, I assure the noble Lord, Lord Renton, that the data we receive at the lending panel indicate that the full cost of lending is declining in accordance with the reduction in interest rates. It is very encouraging to see that LIBOR, which at one stage was somewhat isolated from the base rate, has come down as we expected. We have grounds for some encouragement in the way in which that trend is developing.

Energy Efficiency


Asked By

To ask Her Majesty’s Government what measures they will take, in place of the Energy Efficiency Standards of Performance scheme which ended in 2002, to incentivise small and medium-sized businesses to save energy.

My Lords, the Government have a number of measures to encourage small and medium-sized businesses to adopt energy-saving measures, including the provision of information, advice and financial support. We are working to establish an energy services development network to promote the energy services market in this sector. We are also working with Business in the Community and the Small Business Consortium to consider what further steps the Government can take, and they will be making their recommendations later in the spring.

My Lords, I thank the Minister for that reply, although it seems a little threadbare. Around 20 per cent of our energy is consumed in industrial buildings owned by the SME sector. The Government used to have a good scheme which allowed insulation and other energy-saving measures to be carried out in the sector but that disappeared several years ago. Will they introduce a scheme similar to CERT, which covers domestic dwellings, so that SMEs can play their full part in saving energy in the economy?

My Lords, the noble Lord is right, although we reckon that SMEs are responsible for 26 per cent of business emissions. The scheme to which he refers was very small indeed: my understanding is that between 1994 and 2000 it raised about £5 million to £10 million to help small businesses. However, CERT is having a huge impact on domestic households, and it should be remembered that many SMEs actually operate from domestic premises. The support which we think it is better to focus on is the excellent advice given by the Carbon Trust, which also runs a loan scheme which has proved to be successful, while the enhanced capital allowance scheme is also available to small businesses. We think that that is the best way to provide support for these companies.

My Lords, knowing the Government’s cavalier attitude to consultations I find it baffling that the department has launched four more over the past four weeks. However, the challenges for small and medium-sized businesses in this country are now so urgent that perhaps I may ask the Minister whether he will have a good look at the study which the Conservatives put into the plan for action that is on his table and get the country moving again?

My Lords, I always give Conservative Party documents the attention that they undoubtedly deserve. I am surprised to hear that the Government are thought to be cavalier about consultation when my experience is that we consult until the cows come home. We pay careful attention to what the small business sector says to us and we recognise that in the current circumstances it is coming under very great pressure indeed, which is why the Government have taken the action they have. On energy, however, we want to encourage smaller businesses to look at their energy costs. A lot of advice is available. Many energy-saving measures cost hardly anything at all for businesses to take up. We will do everything we can to encourage small businesses to take advantage of that advice.

Internet: Social Networking Sites


Asked By

My Lords, the Government work with providers of social networking sites to ensure that users and their data are protected securely and appropriately. As the noble Lord will know, the global nature of these sites and the ability of users to hide their identities mean that national limits of jurisdiction hold little sway. However, the Government support the safer social networking principles recently agreed by providers and the European Commission and consider that self-regulation through co-operation between industry and government is the most appropriate and flexible approach.

My Lords, I thank my noble friend for that reply, but is he aware of a group on Facebook called “Northumbria Police—what a group ov”—here I use the topical rhyming slang—“bankers”? On a more serious note, the group is posting messages that identify individual police officers, their families and their addresses, as well as sometimes posting photographs, and is threatening them with violence. Does he agree that this is an unacceptable abuse of freedom of speech and an intolerable attack on front-line police officers and their families? These officers are doing a difficult and dangerous job and this amounts to an undermining of the rule of law in a liberal democracy.

My Lords, like my noble friend, I have visited the site and am aware of the group to which he refers. My officials translated the name into a slightly more agreeable, bowdlerised form: “Northumbria Police—what a group ov onanists”. Having reviewed the content of the site, I share my noble friend’s view that it is deeply unacceptable. My understanding is that that particular site was originally a so-called open group, so the volume of members, as he will be aware if he has looked at the site, is of a greater magnitude than that of other comparable groups. We understand that some of the more offensive and racist remarks have been taken down within the site’s conditions of service. It has now become a closed group, although that does not remove the offence. On a personal note, I rather share my noble friend’s views.

My Lords, while recognising the need to protect the police from unnecessary harassment, does the Minister agree that there is a danger in this area for excessive regulation and does he agree with the statement made last year by the Information Commissioner, who is shortly to retire, that we are in danger of walking into a surveillance society?

My Lords, I certainly agree with the noble Lord that in this area aggressive, prescriptive, statutory regulation is inappropriate. It simply does not work. The particular social networking site to which my noble friend refers is, in fact, US-based. None of its servers is hosted in the United Kingdom and they have no capability in the United Kingdom. Therefore, the reach of the rule of UK law, however severe, would in truth be meaningless, even if it were appropriate. It is also inappropriate because, for many of these sites, the technology and the capability change. We have to address this area as a community of interest. Like all communities of interest, we need to encourage a degree of disciplined and effective self-regulation. While this particular site borders on the offensive, many other sites show excellent examples of effective self-regulation, notice and takedown, control and self-discipline. These sites are attracting 10 million active users in this country and the volume of positive activity far outweighs the volume of negative activity.

My Lords, does my noble friend not agree, following the last question, that young people need protection on these sites and their parents cannot always give it?

My Lords, young people indeed need protection, and not just young people, which is what lay behind the agreement published last week under the auspices of the European Commission—the so-called safer social networking principles. This is a classic example of an area that is far better dealt with on a pan-Europe basis because of the international nature of these sites. There are seven basic principles contained in that document. They make sound sense, are subscribed to by all the major social networking sites and, in the main, seek to get the balance right between providing protection and allowing communities to work in a way that suits their own interests.

My Lords, the press recently reported that Whitehall has advertised a senior post paying £120,000 a year, the job description for which includes that it,

“will involve supporting Ministers and senior officials in entering conversations in which Government does not control the message or the dialogue”.

Is it so uncomfortable to the Government not to be able to control the message that it is necessary to spend £120,000 of taxpayers’ money a year on it?

My Lords, I feel that we are a long way from social networking sites. I entirely share the view that we are living in a world where control of the message is very different. My noble friend’s Question asks Her Majesty’s Government what powers they have to control social networking sites. In this world, control in those terms is no longer an appropriate model. We have to learn to work in a very different way, however well or expensively we are advised.

My Lords, if it is the case, as the Minister has just suggested, that control is not possible, how does he suggest that we deal with cases where the content on these sites is not offensive, which perhaps is neither here nor there, but is endangering? The original example—namely, the home addresses of police officers—can endanger, particularly in the context of Northern Ireland.

My Lords, there are in some instances fine lines. As a starting principle, it is worth restating that what is illegal offline is illegal online, a point that is often forgotten. There are also specified offences—child pornography and race hate abuse are two examples—where there is an immediate notice-and-takedown requirement on any service provider or social networking site. In our collaborative and co-operative non-advised fashion, we have worked with service providers to agree a set of guiding principles. Each of these service providers and sites has its own acceptable use policies, but these vary. For example, Yahoo!—a site of which many noble Lords may be aware—has a policy that it describes as recognising dignity in death. For example, when the hanging of Saddam Hussein was available as video material, it did not allow it on its site. By contrast, other sites, which have a freedom of speech principle enshrined in their terms of use, did allow it. These are in part matters of interpretation and in large part the world we are now living in.

My Lords, the noble Lord mentioned incitement to racial hatred as being one of the considerations as to what should be on a website, but what is the responsibility of social networking sites, newspapers that allow comments on their news items or any providers of space on the net for a third party who places on the site material that incites racial or religious hatred? Does not the provider have some responsibility in that regard?

My Lords, as the noble Lord will be aware, this is a grey area. There is a degree of policy and legal debate and discussion around what is called the “mere conduit” principle as it applies to service providers specifically and to host sites. In large part, when notification of illegality or offence is received, the host will, as long as it matches either the terms of use or the rules, withdraw the content. But allocating absolute responsibility to the provider is a difficult and grey area.

My Lords, is there not also a major security problem in the centre of the whole question of control of cyberspace? Are not terrorist and criminal organisations adept at developing their own co-ordination and efforts through the internet and cyberspace? Should we not be moving towards a more co-ordinated regime, if not control, under which the servers will agree to common standards, rather than going their own way? I understand that they are not being very helpful at the moment. Is that right?

My Lords, that is not correct. The industry co-operates fulsomely and in some detail with the relevant parts of government that deal with the issues of cyber and digital security, however you wish to provide it. On the questions raised by the noble Lord around network resilience, data security, data centres and access to information, there is a co-ordinated approach and the industry is constructively engaged with government.

NHS: Cancer Drugs


Asked By

To ask Her Majesty’s Government why, following the cancer drug review, the life-extending drugs Tyverb and Sutent are not available on the National Health Service in England.

My Lords, the National Institute for Health and Clinical Excellence appraisals of Tyverb for advanced breast cancer and Sutent for both renal cell carcinoma and gastro-intestinal stromal tumours are ongoing. It would not be appropriate for the Government to pre-empt NICE's final guidance to the NHS. Until NICE issues its guidance, decisions on the funding of these drugs must be taken locally.

My Lords, I am most grateful to the Minister, but there was a total review of cancer drugs by Professor Richards. It is amazing that NICE continues to review these two drugs at such inordinate length, which means that the 1,500 people with advanced stage bowel cancer and the 2,000 with advanced breast cancer—both of which are terminal—are still suffering. Taking that into consideration, does it make sense for the Government, in the past five years, to have funded an increase in clerical staff in the PCTs from 54 million to 115 million? The House will accept that these drugs are expensive, but, after all, do these National Health Service patients not deserve the best? Surely, they can be funded from a reduction in clerical staff in the PCTs.

My Lords, the Government are very concerned to make sure that as many drugs as possible are available to patients with these conditions. The noble Lord will appreciate that Tyverb comes under the heading of a very difficult area. If Tyverb were to be considered by NICE under the flexible approach it is now taking to end-of-life drugs, it is still unlikely that it would be recommended under the quality-adjusted life years measurement used by NICE.

NICE is issuing guidance that Sutent should be available on the NHS to those who have renal cell carcinoma. In the past week, Macmillan Cancer Support has said that this will make an enormous difference to those patients. Every year, 7,000 people are diagnosed with kidney cancer in Britain, and 3,600 of those patients will be eligible to receive Sutent.

My Lords, while we must sympathise deeply with the patients suffering from these serious and incurable forms of cancer and who see these drugs as giving them a prospect of many more months of useful life, would the noble Baroness nevertheless agree that the National Institute for Health and Clinical Excellence is faced, at times, with an almost insuperable dilemma, in having to determine not only the efficacy of drugs but also their cost-effectiveness? Despite that, is it not the case that, if an oncologist can persuade a local health authority or a primary care trust to prescribe one of these drugs for a patient, he or she can do so? Will the Government also confirm that, in the light of their recent decision, in an extreme position any patient wishing to purchase these drugs will not be denied continuing NHS care as a result of doing so?

My Lords, the noble Lord is exactly right about both those issues. The timetable outlined by the Secretary of State on 4 November 2008 means not only that we will deal with issuing guidance faster on these drugs, but also that the flexibility referred to by the noble Lord is built into the system.

My Lords, we have already taken action to improve the speed with which NICE guidance is issued. As I said, my honourable friend the Secretary of State outlined a new appraisals timetable which will mean that, by 2010, the average time taken by NICE to produce draft or final guidance on new cancer drugs will fall well below six months after licensing.

We are determined that the fast-track, single-technology appraisal process will shorten the time taken to bring on new cancer drugs. Building on these improvements, we also intend to extend that provision to achieve timely delivery of guidance, as a matter of course, on all new drugs.

My Lords, I appreciate that this is an extraordinarily difficult area, but I understand that the National Institute for Clinical Excellence says that Tyverb will give only a few extra weeks of life, if that. In many cases, patients may be quite content to have just a few extra weeks or months of life for some family event they are looking forward to. The drug company that manufactures the drug has offered 12 weeks of treatment free to those patients whom the clinicians think may benefit from it if the Government will take up funding thereafter. If the national institute is right, those patients will be dead in a very short time anyway, so why do the Government not take up the offer of the drug company?

My Lords, the noble Baroness is quite right: Tyverb is a very difficult issue and a high-profile drug. Even if the Government were to take up the offer of the drug company, NICE—this is on the website and in the published draft guidance—estimates that the cost of Tyverb per quality-adjusted life year is around £70,000, compared with the normal NICE threshold of around £30,000. The renal drug Sutent, which NICE has recently recommended, costs around £50,000. The noble Baroness will appreciate that we are talking about very difficult and expensive drugs. The matter is still under consultation. The final decision has not been taken. I am sure that this short debate will be fed into the process. Those are the economics of the drugs.

Consolidated Fund (Appropriation) Bill

First Reading

The Bill was brought from the Commons, endorsed as a money Bill, and ordered to be printed.

Arrangement of Business


My Lords, it may be helpful to the House if I say a few words about the expected timing of proceedings in the Northern Ireland Bill and the Marine and Coastal Access Bill. There are some 20 amendments on the Marshalled List for the Committee stage of the Northern Ireland Bill, which we estimate will take around two hours to consider. Once Committee stage of the Northern Ireland Bill is completed, the Committee stage of the Marine and Coastal Access Bill will be resumed. The Report and remaining stages of the Northern Ireland Bill will be taken after further proceedings on the Marine and Coastal Access Bill.

It might also be helpful if I set out the arrangements for Members wishing to table any amendments for Report stage of the Northern Ireland Bill. The Public Bill Office will accept any amendments for Report stage for one hour after the end of Committee stage. If amendments are tabled, the Public Bill Office will produce a Marshalled List, which will be made available in the Printed Paper Office as soon as can be arranged. The expected time for the Report stage on the Northern Ireland Bill will then be displayed on annunciators around the House.

Northern Ireland Bill


Moved by

My Lords, before I ask the House to resolve itself into a Committee on the Bill, I am sure that the whole House will join me in sending heartfelt condolences to the family of Constable Stephen Carroll, the brave PSNI officer who was shot dead on Monday morning. Constable Carroll died in the line of duty, doing his job protecting the community where he worked. He was murdered by cowards—desperate and isolated individuals who are determined to destroy a political process that is working for and wanted by the people of Northern Ireland. They must not be allowed to destroy or undermine that peace process. I beg to move.

Motion agreed.

Clauses 1 and 2 agreed.

Clause 3: Miscellaneous amendments

Amendment 1

Moved by

1: Clause 3, page 2, line 17, at end insert—

“( ) For section 22(2) of the Justice (Northern Ireland) Act 2002 (c. 26) substitute—

“(2) The Attorney General for Northern Ireland shall be appointed by the Lord Chief Justice and the provisions of section 5 (as amended) shall have effect for the procedure governing such appointment.”

( ) In the Justice (Northern Ireland) Act 2002 (c. 26) omit section 41.”

I, and all Members who sit on this side of the Committee, echo everything that the Lord President said about the ruthless and cowardly killing that took place between Second Reading and today. It is tragic that on the first two occasions when the House has addressed this Bill, we have had to begin proceedings by expressing our condolences in that way. Let us hope that it will not happen again.

I had an opportunity at Second Reading to outline the substance of my amendment. I merely intend to underwrite those remarks by providing your Lordships with a little more detail. In this group of amendments we have Amendment 1 and Amendment 12. It might be helpful to the Committee if I began not at the beginning but at the end, by reading out the text of Amendment 12.

This amendment seeks to amend Section 42(1) of the Justice (Northern Ireland) Act 2002, which refers to the independence of the Director of Public Prosecutions for Northern Ireland. As many of your Lordships are already aware, the subsection reads:

“The functions of the Director shall be exercised by him independently of any other person”.

Amendment 12 seeks to amend Section 42(1) as follows:

“The Director must exercise his functions under the superintendence of the Attorney General for Northern Ireland in relation to devolved matters and the Advocate General for Northern Ireland in relation to retained matters and is subject to any directions given by either of them thereunder, but a failure to comply with this subsection does not affect the validity of anything done by or on behalf of the Director”.

Your Lordships will be familiar with the relationship between the Attorney-General and the Director of Public Prosecutions in England and Wales and, indeed, at present, in Northern Ireland. This amendment simply mirrors our own constitutional practice. We believe that Section 42(1) needs this amendment because if it were not so, the Director of Public Prosecutions for Northern Ireland is likely to be exposed to an unacceptable degree of political pressure over at least some of the prosecutorial decisions that he will have to make. In particular, I fear that he is likely to be accused of bias. Under the 2002 Act, the director has no access to the Northern Ireland Assembly to explain and justify his prosecutorial decisions.

That brings me to the other amendment in this group, Amendment 1, which is in substitution of Section 22(2) of the Justice (Northern Ireland) Act 2002. It may be helpful if I read out that subsection before I come to the amendment. It states:

“The First Minister and deputy First Minister, acting jointly, must appoint a person to be Attorney General for Northern Ireland”.

So the Attorney-General is appointed, in effect, by a political deal between the two leading politicians in Northern Ireland. That deal does not even have to be sustained or justified by any reference to the Assembly, because there is no requirement in the 2002 Act to refer the deal to the Assembly.

We submit that that subsection should be replaced by the following:

“The Attorney General for Northern Ireland shall be appointed by the Lord Chief Justice and the provisions of section 5 (as amended) shall have effect for the procedure governing such appointment”.

Section 5 provides that listed judges, and that includes High Court judges, shall be selected in the following manner. After interviews, they will be nominated by the Judicial Appointments Commission in Northern Ireland. That appointment will then be endorsed by the Lord Chief Justice. That is the selection procedure for High Court judges and below. We propose that that procedure should now be used also to appoint the Attorney-General for Northern Ireland.

I think that it is plain to your Lordships why we have done this. Superintendence works in this country because, although the Attorney-General is a member of the Government by constitutional convention, in our jurisdiction he is nevertheless under a quasi-judicial duty to exercise his superintendence over the Director of Public Prosecutions entirely independently of political pressure. That constitutional convention does not exist in the Northern Ireland jurisdiction, or will not exist once devolution occurs. Therefore, this amendment is intended to inject our convention into the devolved system of justice in Northern Ireland.

Once Amendments 1 and 12 are read into the 2002 Act as a result of amending the Bill today, we will have injected into devolution precisely the same arrangements as we have here. That means that, in an often highly charged situation, the Director of Public Prosecutions in Northern Ireland will have the proper protection in relation to his decisions that our own Director of Public Prosecutions receives here.

The Government have taken issue with this and set out their reasons for doing so in the debate on Second Reading. The basis of the Government’s view is that the 2002 Act is the consequence of an investigation which took place right at the end of the previous century and crystallised itself in to what is termed the Northern Ireland Criminal Justice Review. The review was completed in 2000 although it was not published until 2002. The 2002 Act is, in effect, a carbon copy of the Criminal Justice Review. The Government contend that it would be a monumental mistake to seek in this Bill to change the conclusions of that review, as the Lord President said unequivocally to your Lordships’ House on Monday.

Our response is twofold. The first, which was extremely eloquently expressed by my noble and learned friend Lord Mayhew, is that the review was completed nine years ago and a great deal has happened since then; and it would be a mistake to lash ourselves to the tiller of the review without giving ourselves any room for manoeuvre to respond to the many events that have happened since.

My second response is that, in any case, in one significant manner, this Bill alters the recommendations of the Criminal Justice Review 2000 and the content of the Justice (Northern Ireland) Act 2002. It changes the way in which High Court judges are selected, and much for the better. If your Lordships glance at Schedule 3 to the Bill, you will see that, once judicial matters are devolved in Northern Ireland, judges will be selected by a procedure that differs significantly from the 2002 Act. In the 2002 Act, High Court judges are selected first by the Judicial Appointments Commission, and then endorsed or otherwise by the First Minister and Deputy First Minister. We deplored that at the time and have continued to deplore it in a variety of amending Acts.

I congratulated the Government on what they have done in Schedule 3. The Northern Ireland Bill has removed the First Minister and Deputy First Minister from the selection procedure and replaced them with the Lord Chief Justice of Northern Ireland. This is a very significant change. Here is a major example of the Government being prepared to think again about the 2002 Act. If they can think again about a matter as significant as that, why can they not think again about the relationship between the Attorney-General for Northern Ireland and the Director of Public Prosecutions?

We are of course in some difficulty in dealing with this Bill today, as many noble Lords said at Second Reading. It is emergency legislation and takes place against a backcloth of recent events which give rise to great concern—although not, I hope, about the future of devolution. I remain confident that we will achieve that objective. Certainly, it is not a time to start tearing apart arrangements that have been carefully crafted over a long time, even if some of us disagree with some of those arrangements. After all, the implementation is not yet to take place and we may have other opportunities to change the character of the 2002 Act.

That consideration—together with the fact that under Section 22(2) of the Justice (Northern Ireland) Act 2002, the First Minister and Deputy First Minister have already chosen the person who is to become the first Attorney-General for Northern Ireland under these arrangements—has led the Opposition, despite our strong support for this amendment, to take the view that it would be wrong, at this juncture, to press this amendment to a vote. However, I hope that we will get another opportunity to look at this in calmer legislative circumstances. I beg to move.

I associate these Benches with the expression of revulsion and horror at the murder of PC Stephen Carroll. I have been advised today by the Police Federation of Northern Ireland that it is looking after the family of Stephen Carroll. I have expressed all our heartfelt sympathy to them.

I have a brief comment on Amendment 1. We agree that there could be difficulties if the Lord Chief Justice appointed the Attorney-General. One of the roles of the Attorney-General is of course to give legal advice to the Executive, and it could be very uncomfortable for the Lord Chief Justice to appoint the person who is to give legal advice to the Executive.

On Amendment 12, the Minister in the Commons reassured the House that the DPP is independent and that his independence is written across the criminal justice system. Members from Northern Ireland also said that the independence of the DPP has been accepted across Northern Ireland. We are in some difficulty about whether any specific instances have led the Conservatives to worry that the DPP is not independent, other than that stated by the noble Lord, Lord Kingsland, that there could be an unacceptable degree of political pressure and that the DPP could be accused of bias. In both cases the word “could” made us a little concerned. I should be grateful to hear whether any specific instances have led to their concerns.

Amendment 1 proposes that the devolved Attorney-General should be appointed by the Lord Chief Justice, instead of by the First Minister and Deputy First Minister, as provided for in the Justice (Northern Ireland) Act 2002.

Amendment 12 proposes that the Director of Public Prosecutions should be under the direction and superintendence of the Attorney-General for Northern Ireland and the Advocate-General for Northern Ireland.

These amendments would also mean that a number of functions would no longer transfer from the Attorney-General for Northern Ireland to the DPP on devolution of policing and justice. These functions include consenting to the institution or conduct of criminal proceedings, entering a nolle prosequi, and referring unduly lenient sentences to the Court of Appeal.

I believe it would be inappropriate for a judge to make an appointment to a post that sat in part of the executive arm of government. That would be to undermine a fundamental tenet of the UK’s constitutional framework—the doctrine of the separation of powers. I appreciate the noble Lord’s concern that the Attorney-General should be safeguarded from inappropriate political pressure. In response, I should highlight that the appointment is made jointly by the First Minister and Deputy First Minister. That balance should provide reassurance. The First Minister and Deputy First Minister have also made public who they are minded to appoint to this post, and their proposal has been widely welcomed.

Although the Attorney-General will be appointed by the First Minister and Deputy First Minister, and as such is clearly appointed by politicians, Section 22(5) of the Justice (Northern Ireland) Act 2002 states that:

“The functions of the Attorney General for Northern Ireland shall be exercised by him independently of any other person”.

This is in line with the criminal justice review, which recommended that the Attorney-General should be “a non-political figure” and concluded that an Attorney-General appointed under these arrangements was,

“less ‘political’ than almost all counterparts in other common law jurisdictions”.

The Criminal Justice System Review Report, published in March 2000, was the most important and far-reaching survey of criminal justice in Northern Ireland in more than 30 years and flowed from the Belfast (Good Friday) agreement. The Government do not believe there is evidence to support a move away from these arrangements which were approved by Parliament as part of the Justice (Northern Ireland) Act 2002.

Again reflecting the criminal justice review, the 2002 Act provides for a consultative relationship between the DPP and the Attorney-General for Northern Ireland, and between the DPP and the Advocate-General. This was considered the best way of ensuring visible independence of prosecutorial decisions by the DPP. Indeed, giving the Attorney-General the power of superintendence and direction would be contrary to the criminal justice review. Noble Lords will therefore understand why the Government also oppose the removal of Section 41 of the 2002 Act, which transfers certain functions from the Attorney-General to the DPP. The transfer was provided for in the 2002 Act to ensure that the Attorney-General’s functions would be consistent with his new consultative role post devolution.

This consultative relationship is a statutory obligation. It allows a wide range of matters to be discussed, with a particular duty to consult on the code of practice for prosecutors which informs so much of the prosecution process. I would expect such discussions to involve challenge and a full and frank exchange in both directions. Also under Section 25 of the Justice (Northern Ireland) Act 2002, the Attorney-General may participate in the proceedings of the Assembly. Although it will be for the Assembly, through its standing orders, to set out how this will work in practice, this will provide a line of accountability from the Director of Public Prosecutions, through the Attorney-General to the Assembly. This is in addition to the fact that the DPP is answerable in the Assembly for the finance and administration of the Public Prosecution Service.

Some things have most certainly changed since 2000, when these arrangements were first envisaged. Indeed, a great deal has happened. The reactions to the recent atrocities from both sides of the political spectrum are testament to this. The political progress we have seen since 2000 is something we can all welcome. However, the review group designed these recommendations to ensure that justice could be transferred to the devolved institutions in Northern Ireland on a sustainable basis. The fundamentals of these devolved institutions, including the joint nature of the Office of the First Minister and Deputy First Minister and the mandatory coalition that makes up the Executive have not changed.

As the noble and learned Lord, Lord Mayhew, said at Second Reading:

“It comes down to a question of judgment concerning the atmosphere in Northern Ireland today”.—[Official Report, 9/3/09; col.974.]

I think that we must respect the views and the judgment of the Northern Ireland Assembly.

The noble Lord, Lord Kingsland, drew our attention to the arrangements for judicial appointments and removals, dealt with in Clause 2 and Schedules 2 to 6 to the Bill. Unlike these arrangements, however, the First Minister and Deputy First Minister have not proposed that the post-devolution arrangements relating to the prosecutorial system should be changed. The Government believe that those who will be taking responsibility for the system are the best judge of whether the time has come to move away from the accountability arrangements put in place in 2002. If, in due course, the Assembly decides that the time has come to put in place new arrangements, they will be able to do so. It is not our job today to pre-empt their decision on the substance or timing of such a change.

I believe that with the commitment of those involved, the arrangements in the 2002 Act will ensure an effective relationship between the Director of Public Prosecutions and the Attorney-General and Advocate-General. The arrangements will preserve the director’s independence and promote confidence in prosecutions in a jurisdiction where justice has been a contested space. I am, therefore, extremely grateful to the noble Lord for signalling that he would not wish to pursue these amendments and I ask him to withdraw them.

I do not wish, through remaining silent while present, to be thought to have resiled from the position I took at Second Reading. I recall that, when we had a debate, back in 2002, on the recommendations of the criminal justice review committee, I supported the proposition that is reflected in the Bill, that the Attorney-General should be appointed in that way and that the DPP should be subject to no ministerial supervision. I do think, however, that it is very important to realise that it is not just a question of instances in which a DPP can be brought under political pressure; perception is almost as important in Northern Ireland as fact, and it was therefore entirely understandable and helpful that my noble friend’s amendments should be put forward as alternatives. After all, they reflect a structure that has been tried over very many years in England and Wales and has been found to serve very well, in my estimation. It does, however, as we have just been reminded, turn upon the question of what the political atmosphere is like in Northern Ireland today, because the criminal justice review committee, back in 2002, specifically referred to the highly charged political atmosphere in Northern Ireland as a justification and an explanation for the proposal that it made.

We all know—I add my condolences to those expressed to the family of PC Carroll—that things have taken a very regrettable turn for the worse but we hope that they will go no further in that direction. Therefore, it is very helpful that this amendment will not be put to the vote. As I said on Second Reading, I would be content with either solution. Perhaps the sensible thing is to wait to see how we get on. In those circumstances, I do not think that I have anything more constructive or useful to add to this short debate.

I am most grateful to the noble Baroness for her full response, which, it is fair to say, reflected the observations that she made two days ago at Second Reading. I should like to respond briefly to her remarks, as well as to the observations made by the noble Baroness, Lady Harris.

I cannot overemphasise the degree of isolation of the DPP in the system. I have already drawn your Lordships’ attention to Section 42(1) of the Justice (Northern Ireland) Act 2002 which refers to the obligation on the director to exercise his functions,

“independently of any other person”.

That is starkly underlined by Section 22(5), to which the noble Baroness briefly drew our attention. It states, almost in the same terms as Section 42(1):

“The functions of the Attorney General for Northern Ireland shall be exercised by him independently of any other person”.

To the extent that he makes any remarks about prosecutions—he is allowed only to make observations about the prosecutorial system generally, not about particular prosecutions—he is not in any way obliged to take the view of the DPP. This underpins the degree of the DPP’s isolation.

Moreover, Section 42(3) states:

“The Attorney General for Northern Ireland and the Director may (from time to time) consult each other on any matter for which the Attorney General for Northern Ireland is accountable to the Assembly”.

The Attorney-General for Northern Ireland is not accountable to the Assembly for particular prosecutorial decisions taken by the DPP. So the DPP is forbidden by Section 42(3) from even consulting the Attorney-General if he has some concerns about a decision he is making.

Some concern was expressed—it was cast under the grand principle of “separation of powers”, which I remember being referred to frequently by the Government in the course of the Constitutional Reform Bill—about the selection of the Attorney-General under our amendments as being made by the Lord Chief Justice. Actually, that is not in practice so. We are suggesting that the appointment of the Attorney-General should mirror the appointment system for High Court judges under Section 5 of the 2002 Act, as amended by this Bill. The selection of the Attorney-General would be as follows: the name, after interviews, would be put forward by the Northern Ireland Judicial Appointments Commission. The Lord Chief Justice would either accept it automatically or refer it back. But if the same name is put forward again by the JAC, the Lord Chief Justice has to accept it—he has no alternative. It is exactly the same as the new system for High Court judges introduced by the Constitutional Reform Act. So although the Lord Chief Justice appears to have powers in relation to the selection of judges, in practice the real choice is made by the Judicial Appointments Commission. With respect to the noble Baroness, it is not fair to apply the analogy of the separation of powers to this process.

However, I agree with the noble Baroness on perhaps the most important thing that she said: these are testing times. It may be that we will have an opportunity in future to influence the devolution process on this matter. After all, although we are talking about a devolved Administration, this is an alteration to the United Kingdom constitution and we have a duty to consider it in that context. However, for the reasons that I gave when I moved the amendment, this would not be an appropriate time to vote on it. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Clause 3 agreed.

Clauses 4 and 5 agreed.

Schedule 1: Northern Ireland department with policing and justice functions

Amendment 1A

Moved by

1A: Schedule 1, page 5, leave out lines 7 and 8 and insert—

“(i) made by the First and Deputy First Minister acting jointly, and”

I join other noble Lords in expressing my heartfelt sympathy at the death of Constable Carroll. He was a long-serving police officer, who came from the Irish Republic many years ago to serve in the Royal Ulster Constabulary. He served there with pride for many years, and it is so sad, in what we believed was a new, peaceful era, that he should die at the hands of republican murderers. It is important to note that he joined the RUC at one of its most difficult times and not at a time when arrangements were made to—perhaps I use the word improperly—nursemaid certain people into the police. Instead, when there was a need to serve, he served faithfully.

I feel totally inadequate in the company of noble and learned Lords. For 26 years in Parliament, I had the benefit of the advice of the noble Lord, Lord Trimble. I am not a lawyer, hence my feeling of inadequacy when dealing with technical points that are exceedingly complex and involve a series of pieces of legislation. At the same time, I am deeply concerned that your Lordships’ House is being asked to legislate for a fix. The ideas that are enshrined in the Bill, whatever may appear to be their strengths, are designed to create a very narrow and restrictive approach to justice and policing in Northern Ireland. I believe that the approach is based on a deal that has been done between two major parties to carve up, in their separate interests, what needs to be done in Northern Ireland.

I will attempt in a moment to address the amendments that I propose. In the mean time, we have only to look at five months of inactivity by the Executive in Northern Ireland to realise that the Democratic Unionist Party and Sinn Fein are not brothers in arms—or out of arms—except when it is expedient for them to show some sort of joint approach, as we have seen in the past day or two. That is not the basis on which we should be taking forward legislation that concerns the administration of justice.

My Amendments 1A, 1B and 1C illustrate alternatives to new paragraph 3A(1)(b)(i) in Schedule 1, in which we are being asked to approve a situation where a single Member of the Assembly could nominate the Minister. That is there for a reason. The reason is that if we arrange for one Member to propose who will be the Minister, we do not have the embarrassment for either the DUP or Sinn Fein of having to be seen to nominate someone outside their party. That is unsatisfactory. I do not know which would be best. It might be an idea to put that responsibility on the First and Deputy First Ministers and to test their sincerity in that respect. Alternatively, if we are going to leave it to Members of the Assembly, it should be not just one Member but perhaps eight Members of the Assembly. The third option is that nominating officers from each of the four main parties come together to decide whom they will nominate. That would not let Sinn Fein and the DUP off the hook and out of the responsibility that they should be exercising jointly for the benefit of those in Northern Ireland. I hope that that—inadequately, I know—explains my Amendments 1A, 1B and 1C.

If I may, I shall briefly allude to Amendment 2A, which deals with one of the strangest aspects of the Bill, where the Minister appointed Minister for Justice could in fact be the First or Deputy First Minister. If he were the First or Deputy First Minister, he would for ever have a veto on whether he could be removed as the Minister for Justice. That appears to me to be an injustice.

Amendment 4A deals with the strange provision for a resolution to remove the Minister, where cross-community and separate majorities give the DUP and Sinn Fein power not exercisable by anyone else in any other circumstances. Again, we are being asked to endorse the carve-up of a power. Similarly, Amendment 5A would leave out the words,

“is moved by the First Minister and the deputy First Minister acting jointly”.

In this instance, total power would be given to the leader of the DUP and the leader of Sinn Fein to act in a carve-up.

Those points, I admit, though understood by me, have not perhaps been adequately addressed in technical language. However, they are relevant and applicable. Hence, I ask the Lord President to say whether “made in Northern Ireland”, as the Secretary of State says, actually means “contrived in Northern Ireland”, but put into a form that, in the longer run, will present us with problems that could ultimately cause the Assembly to crumble. I beg to move.

I will briefly speak to two of the amendments tabled by the noble Lord, Lord Maginnis of Drumglass. On Amendment 1C, we feel that there is nothing in legislation to provide that four parties must always be in the Executive. The d’Hondt formula just needs to be applied until all ministerial posts are filled. If one or two parties have a sufficiently large number of Members, that could result in only two or three parties being in the Executive. Indeed, there could come a time when there are fewer than four parties in the Assembly.

Amendment 2A would prevent the First Minister and Deputy First Minister from holding the post of Justice Minister. Although we agree that this probably would not be ideal the first time that policing and justice powers are devolved, there may come a time when it is entirely appropriate. I remind the noble Lord, Lord Maginnis, that my noble friend Lord Wallace of Tankerness, while Deputy First Minister for Scotland, was also the Justice Minister. Although this model is drafted as being temporary and in effect only until 2012, the Assembly could like this model and agree to continue with it after May 2012. In the future, there may be a case for the post being held by the First or Deputy First Minister, so, with regret, we are not able to support the noble Lord in his amendments.

What in fact we are creating—I did not want to reduce it purely to political terms—is a one-issue election forecast for the future, for ever. Once policing and justice are the responsibility of a Minister in the Assembly, one party will be able to argue for the first time, “Vote for us. We may actually have the justice and policing responsibility”. The other party—this is the carve-up between the two parties—will say, “Vote for us, because we are the one party that can prevent Sinn Fein from having the responsibility for policing and justice”. This legislation turns Northern Ireland once again, and more starkly than ever before, into a sectarian society where the electoral contest is purely sectarian.

First, I extend my condolences to the family of PC Stephen Carroll, who was so brutally murdered in Craigavon. Secondly, I declare an interest as an elected Member of the Northern Ireland Assembly.

The Bill is one of eight models that have been designed to establish a new Northern Ireland department to exercise functions that consist wholly or mainly of devolved police and justice powers. This model has received the majority support of the review committee at the Assembly. More important, it has been passed by the whole Assembly by a cross-community vote. That means that more than 50 per cent of the Members who are designated as unionists, and more than 50 per cent of the Members who are designated as nationalists, have given their approval. It is very important, particularly at this time, that the Bill is passed through this House as quickly as possible without amendment, so I do not intend to refer entirely to the points made by the noble Lord, Lord Maginnis.

This is a difficult situation, a difficult Bill and a difficult time. No one is more aware of that than I am, having visited the Province yesterday. I visited all the sites, the chief constable, the head of the Army and, indeed, the chief inspector and the policemen down at Craigavon, and I sent my personal condolences to them through two young policewomen.

I am not taking an active part in this, any more than my noble friend Lord Kingsland is. His arguments are sound, and I shall have a few more later. My reason for not supporting the noble Lords, Lord Maginnis and Lord Browne, is not intellectual; it is purely because I believe that, given the situation that we are in, now is not the time to start dissecting a Bill as important as this. I still think that it is an awful shame that it did not have longer in the Commons and here, but that is where we are and where we must stay and go from. Although it is not really my job, I ask the noble Lord, Lord Maginnis, whether he would be good enough to withdraw his amendment.

I am grateful to all noble Lords for their support and for the actions that they have taken in support of the family of Constable Carroll in Northern Ireland.

I recognise that noble Lords have concerns about how the Bill provides for the appointment and removal of the justice Minister under this new model, and I have heard the concerns expressed by the noble Lord, Lord Maginnis. I must stress that I do not agree with his assertion that the Bill is all about a deal. It is not. As the noble Lord, Lord Browne, quite rightly said, it reflects an agreement between the democratically elected representatives of the people of Northern Ireland, as set out in the agreement that was announced by the First and Deputy First Ministers in November and built on by the cross-party Assembly and Executive Review Committee. The report of that committee was approved, as the noble Lord said, by the Assembly on a cross-community basis on 20 January. The Government believe that it is right and proper that they should take their lead from this agreement.

Amendments 1A, 1B and 1C would remove the possibility of a nomination for the justice Minister being made by any Member of the Assembly. Instead, the nomination would have to be made either by the First Minister and the Deputy First Minister acting jointly, by at least eight Members of the Assembly, or by at least one Member of each of the four largest parties in the Assembly. The Assembly and Executive Review Committee did not seek to restrict who could nominate the justice Minister, and for that reason we have not done so in the Bill.

Another of the models provided for by the 1998 Act in Section 21A(3) already provides for a single elected Minister nominated by the First and Deputy First Ministers, which replicates the effect of Amendment 1A. But, in any case, the key test that needs to be applied is whether the nomination commands cross-community consensus, as expressed through a cross-community vote in the Assembly. That is what the Bill provides; therefore, there is no need to impose the additional hurdles within the nomination process which would be created by Amendments 1B and 1C.

The noble Lord also asserted that having a single Member of the Assembly nominate the justice Minister saves the DUP or Sinn Fein from having to lose face by doing so. I do not accept that these provisions let anyone off the hook. It is simply a way to ensure that any Member of the Assembly can nominate a justice Minister and that there should be no restriction on that right. The nomination still requires cross-community support to be carried.

Amendment 2A, in the name of the noble Lord, Lord Maginnis of Drumglass, would prevent the First Minister and the Deputy First Minister from being nominated to hold the office of justice Minister. It is a feature of all existing ministerial models for the department of justice and the other executive ministerial offices that neither the First Minister nor the Deputy First Minister is precluded from holding these offices. Members of the Committee may recall that the honourable Member for Foyle simultaneously held the office of Deputy First Minister and that of finance Minister under a previous Assembly mandate. I am grateful to the noble Baroness, Lady Harris, for giving the example of her noble friend Lord Wallace of Tankerness, in Scotland.

To amend the Bill in the way proposed by the noble Lord, Lord Maginnis, would create an inconsistency between the model set out here and the arrangements that Parliament has already put in place for existing models. I would draw the noble Lord’s attention to Section 18(7) of the Northern Ireland Act 1998 and to paragraphs 3(7), 7(7), 11(7) and 11F(1) of Schedule 4A to that Act. It is important that the Assembly should have no less flexibility to appoint a justice Minister under this model than under any of the others. In response to the noble Lord’s suggestion that, if the First Minister and Deputy First Minister were to be nominated as justice Minister they would have a veto over their own removal, that is not necessarily the case. On current Assembly arithmetic, the DUP or Sinn Fein would be required to carry a cross-community vote. However, that arithmetic would not always be the same. Given that the DUP and Sinn Fein have committed to not nominating the justice Minister until after 2012, the Government believe that the noble Lord’s concerns are misplaced. I therefore ask him not to press his amendment.

Amendment 4A would make it possible for the Assembly to remove the justice Minister on a straight majority vote, dispensing with the need for cross-community support. The requirement of cross-community support for the removal of the justice Minister was recommendation 11 of the AERC report, approved by the Assembly on 20 January. Not only would I advise caution to the Committee before unpicking arrangements which already have support across the Assembly and will fall to them to implement, but this amendment goes beyond the spirit of the Belfast agreement. The agreement sets out the principle of taking key decisions within the Assembly on a cross-community basis which it defined as either parallel consent, as is provided by the Bill, or a weighted majority; namely, 60 per cent of members present and voting, including at least 40 per cent of the nationalist and unionist designations present and voting. It would be hard to argue that the removal of a justice Minister could not be construed as a key decision of the Assembly. For those reasons, the Government do not agree with this amendment.

Amendment 5A would remove the roles of the First and Deputy First Ministers in removing the justice Minister. This would mean that removal could be brought about only by a Motion supported by a minimum of 30 MLAs, which would then need to be passed by the Assembly on a cross-community basis. The provisions included in the Bill for the removal of the justice Minister replicate the arrangements put in place and approved by Parliament in the Northern Ireland Act 1998 for the exclusion of a Minister under Section 35. Given that the arrangements are suitable in that scenario, the Government consider that they should also be suitable here. Again, I hope that the noble Lord will withdraw his amendment.

Would the Minister confirm, first, that when the proposal of the First and Deputy First Ministers was brought to the Executive and they were asked to officially note it, there was not unanimity; secondly, that when the review committee of the Assembly and the Executive brought forth its report, it was not unanimous; and, thirdly, that the Ulster Unionist Party and the SDLP voted against the report in the Assembly?

Could I also ask the noble Baroness to clarify another point? It appears that no provision is made in the legislation for a situation where more than one nomination is made in the Assembly. A single member can nominate the Minister, but what if a party decides, because it disapproves of the process, that each of its members will nominate someone to be Minister? I do not believe that there is any provision within the Bill for simultaneous nominations.

The discussions in the Executive are private, and I do not know what the voting was. The vote in the Assembly was not unanimous. I believe that the SDLP did not vote against the proposal in the Assembly, but, as I understand it, the Ulster Unionists did. That is democracy is action.

In response to the noble Lord’s question, I refer him to new Section 3D(6), which states:

“Once one member has been nominated, no further nominations may be made unless and until sub-paragraph (7) applies”.

Sub-paragraph (7) states:


(a) the nomination does not take effect within a period specified in standing orders, or

(b) the nominated person does not take up the office for which the person has been nominated within that period,

a further nomination of a member of the Assembly may be made under sub-paragraph (4)”.

I hope that that clarifies the position.

I am grateful to the Lord President of the Council. Obviously it has been important that I have been able to air and forewarn noble Lords about the implications of this Bill as it will affect what happens on the ground in Northern Ireland, as it will affect the functioning of the Assembly and as it will affect justice and policing. Having done that, I feel that I have done my duty. I am neither competent to nor do I desire to cross swords with noble and learned Lords who are much more aware of the implications than I am. I beg leave to withdraw the amendment.

Amendment 1A withdrawn.

Amendments 1B and 1C not moved.

Amendment 2

Moved by

2: Schedule 1, page 6, line 21, at end insert “, and

(d) where the member nominated was a member of a party at the time he took his seat in the Assembly, a majority of the members of that party voting.”

I will also speak to Amendments 4 and 5. The amendments are partially inspired by the arguments made by the honourable Member for Foyle in Committee in the other place. As Mr Durkan accepted, there is nothing in the Bill to protect a Minister of justice from being ousted from office on a somewhat capricious basis. In the Commons, the SDLP proposed that the nominating officer of a political party should be involved in the appointment and removal of the Minister. We saw a lot of merit in that proposal but we were worried about what would happen if the nominating officer was in fact the Minister himself. There may be circumstances where he might not agree to remove himself from office even if that was the will of his own party. Therefore, we have tabled amendments to provide for an extra component in the cross-community vote.

Amendments 2 and 5 provide that a Minister of justice has to be appointed and removed by 50 per cent of the unionists voting, 50 per cent of the nationalists voting, 50 per cent of the Assembly voting, and the majority of the members of the Minister’s party voting. We believe that these amendments provide the Minister of justice with a degree of security while maintaining the right of the Assembly to remove him from his post. It also provides the synchronisation between the appointment and removal which the Government are keen to maintain. This is a fairly modest amendment and we urge the Government to accept it. As I said at Second Reading, we believe that the Minister of justice is a special Minister in circumstances which are particularly fraught at the present time.

I will now address Amendment 4. The Liberal Democrats tabled this amendment in the other place and we made representation to the Minister, Mr Paul Goggins, at our meetings last week. The amendment takes inspiration from the Police (Northern Ireland) Act 2000 which allows the Secretary of State to remove a political or independent member from the Policing Board if he has been convicted of a criminal offence since his appointment, if he has become bankrupt, if he is not committed to non-violent and exclusively peaceful and democratic means, or if he is unable or unfit to discharge his functions. We believe that putting such a qualification into the Bill would prevent vexatious attempts by Members of the Assembly to remove a Minister of justice from office. The Assembly would need to resolve that a Minister filled one of the four criteria listed in the amendment before they could remove him. This gives a Minister of justice more protection than is afforded in the Bill as it stands. As we know from our daily experience in this place, justice Ministers and Home Secretaries are often called on to make difficult decisions that, in an ideal world, they would choose not to make. They make these decisions because they are in a secure position and because they have to. If a justice Minister is vulnerable to a populist movement within the Assembly, he might not be able to make the difficult decisions required of a justice Minister. The amendment would ensure that the Assembly still has the right to remove the Minister of justice from office, but it would give him protection in that he could not be removed for frivolous or populist reasons but only for serious reasons of grave misdoings. I beg to move.

I will speak to Amendments 6 and 10 in this group. Amendment 6 is another modest amendment. It was moved in the other place and it is an attempt to limit the possibility of vexatious Motions being tabled by Members of the Assembly. It gives the Assembly the ability to set out in Standing Orders a limit on the number of times a Motion to remove a Minister can be made during a specific period of time, again to be specified in Standing Orders. Westminster is simply giving the Assembly the ability to address this problem in its own Standing Orders. The amendment does not specify a limit or a time frame; it respects the remit of the Assembly to determine its own business. We are not prescribing how the Assembly should operate; we are merely giving it an option which it may wish to use.

I declare an interest: I am, as the Government know, doing work in Northern Ireland on their behalf in seeking to reach an accommodation between the various sections of the Northern Ireland community on the issue of parades in the long term.

I listened to the Minister’s response in the debate earlier this week on the issue raised by my noble friend Lord Smith of Clifton in Amendments 2 and 5. I was disappointed and concerned to hear the Minister’s defence as to why he did not wish to respond to the substance of the two amendments. As I recall it, the Minister said that this safeguard was built into the Good Friday agreement so that there would be a counter-balance of veto between the nationalist and the unionist sides. But surely we have moved beyond the conditions of the Good Friday agreement—we would not have this legislation before us if we had not—into a rather more mature situation in Northern Ireland, where those who determine what goes on are not only those representing the nationalist and unionist sides but also others who declare themselves on neither side. Surely that is what we wish to see grow.

Future Ministers of justice very likely may come from the Alliance Party of Northern Ireland, which does not declare itself as part of the nationalist or unionist side but sees itself as representing all of Northern Ireland and what you might call the broader civil society of Northern Ireland which we would wish to see established. It is curious, therefore, that the Government are proposing that we should allow such Ministers of justice to be dismissed by what would basically be a vote of the two sectarian parties of Northern Ireland. That would be folly. It also does not respond to the conditions we see developing in Northern Ireland, thanks in large measure to this Government’s courageous moves, and that is not wise. It does not respond to the present circumstances.

It was right in the context of the Good Friday agreement that we should ignore this third quotient of Northern Ireland; that in order to prevent and stop the Troubles we should place this counterbalancing power in the hands of those who see themselves as representing either the nationalists or the loyalists. That was right for that moment, but surely it is not right for this moment. It was right for that moment that those who regarded themselves as being out of the nationalist/loyalist division should be essentially weightless, but surely they should not be weightless now. To allow a justice Minister, who for very good reasons will probably come from a party that is neither nationalist nor loyalist, to be dismissed by a conspiracy between the nationalists and loyalists who dominate is folly of the highest order.

Imagine a situation where you have a justice Minister from the Alliance Party presiding over a corruption investigation into the Executive, made up necessarily of both nationalists and loyalists. Under these provisions, it would be open to both of those parties to dismiss the justice Minister without it having anything to do with the preservation of the ethnic balance of Northern Ireland but simply because it was politically convenient to do so. Is that the kind of circumstance the Government wish to promote? This provision is like asking a domestic cat to preside over the administration of justice between two tigers on the basis that the tigers have an absolute right to eat it whenever they conclude it is convenient to do so. Who would take such a job under such provisions? More importantly, who could do a good job, in those circumstances, under such provisions? This is not to respond to the movement made by Northern Ireland, to the present climate or to the requirement to bring in others into the Government of Ireland—not just nationalists and loyalists. It is absolutely not to respond to creating appropriate conditions in which a Minister of justice could do his job effectively.

I apologise for having to take the noble Lord to task, but with his experience in Northern Ireland, I would have thought that he would have got the nomenclature correct. He has referred again and again to nationalists and loyalists. I am offended by being called a loyalist. I have never been a loyalist, nor have members of my party been loyalists. We are unionists and have a right to be referred to as unionists. I am disappointed. I thought the noble Lord would have known better.

I accept the noble Lord’s admonition. He is entirely correct and I apologise to him, his party and any others I may have inadvertently offended. However, while my expression may have been inelegant—and again I apologise to the House and to noble Lords for it—that does not subtract in any way from the substance of what I have been saying.

I ask the Government to think again. It seems unwise to put a Minister of justice, who comes from outside that division, into a position where he could be dismissed, for reasons that are nothing to do with the preservation of the balances in Northern Ireland and nothing to do with putting him in that position. This seems unwise and inappropriate and I hope the Government will think again.

The noble Lord made a convincing argument, but there is an exception and it was enshrined in the way that he presented his case. There is a party called the SDLP. There is a party called the Ulster Unionist Party. Neither is sectarian. Neither wants to be associated, by the noble Lord or by anyone else, in sectarian terms. If he decides that he can pick out the Alliance Party of Northern Ireland as the one non-sectarian party, he errs.

I cannot sit in your Lordships’ House and allow that misunderstanding to be stated again and again—to be underlined—because it is not true. Many in Northern Ireland have a huge desire—not least those of us who negotiated at the coalface of the Belfast agreement—for a non-sectarian, pluralist society within Northern Ireland. Hence to suggest that provision is made within this Bill to facilitate one small party that will simply be the buffer between Sinn Fein and the DUP, appears to be an act of folly.

The noble Lord, Lord Ashdown, will see that on page 6, subsection (11) states:

“The relevant Minister shall cease to hold office if—

the Minister resigns by notice in writing to the First Minister and the deputy First Minister,

(b) the Minister ceases to be a member of the Assembly otherwise than by virtue of a dissolution, or

(c) the Assembly resolves that the Minister is to cease to hold office”.

There is nothing about the First Minister or the Deputy First Minister doing a deal to get rid of the Minister; it is the Assembly which decides.

The removal of the Justice Minister was discussed before legislation was published. It is important that arrangements are in place to enable the justice Minister to be removed, although they are unlikely to be triggered during the interim period. Even with the existing provision, the justice Minister could still be removed through the normal exclusion procedure or through a Section 17(1) resolution rearranging departments. It is important that some removal power is in place apart from the normal provisions because it is consistent, first, with the letters of the First Minister and the Deputy First Minister. It is also important that there is consistency between appointment and removal. I would point out that permitting a removal of the justice Minister by a cross-community vote is entirely consistent in that it mirrors the manner of the appointment of that justice Minister. This power again is highly unlikely to be used and other departmental models already provide for analogous arrangements for removal by those who appointed.

Perhaps I may respond to the noble Lord, Lord Glentoran. He drew our attention to subparagraph (11) on page 6 and accurately described what is there. If he looks a little further, he will see that a,

“resolution for the purposes”,

of the above paragraph,

“must be passed with the support of”,

and then he sees a majority of the Members of the Assembly,

“a majority of the designated Nationalists voting, and … a majority of the designated Unionists voting”.

The purpose of the amendment tabled by my noble friend Lord Smith of Clifton was simply to add to that a majority of the party from which the justice Minister was drawn. To vote otherwise would really leave this entirely in the hands of those who would be able to describe themselves as either nationalists or unionists. That would not include, for instance, in the case that I raised earlier, Members from the Alliance Party and indeed other political parties that did not see themselves as sectarian in nature.

In the previous group of amendments, we looked briefly at the arrangements for the nomination and removal of the justice Minister. The Government wholeheartedly agree that the justice Minister is extremely important and we understand that concerns about the arrangements exist, but we continue to believe that the arrangements provided for in the Bill are appropriate. Therefore, we are not able to support the amendments under deliberation.

Amendments 2 and 5 would require, in addition to cross-community support, the support of the majority of the justice Minister’s party before he or she could be appointed or removed from office. The Assembly and Executive Review Committee dealt explicitly with the question of how the Assembly should approve the appointment and removal of the justice Minister. Recommendations 10 and 11 make it clear that appointment and removal would require a cross-community vote and specify that it should be a parallel consent vote requiring a majority of designated nationalists and a majority of designated unionists as well as an overall majority.

The Government agree that the justice portfolio is special and may require different treatment from the other ministerial portfolios. That is why we have provided for a series of alternative models for the structure of a justice department. However, as I explained at Second Reading, we do not accept that cross-community votes are, to use the noble Lord’s words, simple or routine. The principle of taking key decisions within the Assembly on a cross-community basis was one of the safeguards set out in the Belfast agreement of 1998. We have moved a long way since that agreement. I heard the arguments expressed forcefully by the noble Lord, Lord Ashdown, but I do not believe that today is the time or the place to start a re-examination or unpicking of the Belfast agreement by the addition of further layers of protection to the definition of cross-community support.

The Belfast agreement defined cross-community support as either parallel consent, which we are discussing here, or a weighted majority—that is, 60 per cent of Members present and voting, including at least 40 per cent of the designated nationalists and unionists present and voting. The safeguard was designed to meet the particular circumstances of Northern Ireland, given its difficult history, and it was intended to apply in relation to key decisions, not to all routine matters. The appointment and removal of a justice Minister could certainly be characterised as such a key decision.

While I understand that the noble Lord, Lord Smith, and the noble Baroness, Lady Harris, are keen to ensure the most stable framework possible for an incoming justice Minister, I suggest that the best way of providing for that is to put in place the framework recommended by the people who will be operating within it.

Amendment 4, again tabled by noble Lords from the Liberal Democrat Benches, sets out criteria that would need to be met before a motion could be tabled to call for the removal of the justice Minister. Again, I understand the desire of those who have tabled this amendment to head off any suggestion that the justice Minister could be removed at the whim, as it were, of the two largest parties. However, for the reasons that I have set out, the Government believe that a cross-community vote—in particular, the requirement for parallel consent, or 50:50:50—is sufficient to safeguard the power from being used trivially or malignly. I am grateful to the noble Lord, Lord Glentoran, for drawing our attention to page 6, sub-paragraph (11).

The belief that I mentioned was strengthened by the words of the Northern Ireland First Minister, speaking as the right honourable Member for Belfast East during the debate on this Bill last week in another place. I referred to them at Second Reading, but they are worth repeating because, in the Government’s view, they clearly illustrate the commitment of both the First and Deputy First Ministers to making the framework workable. The right honourable Member said:

“Neither the First nor the Deputy First Minister will wish to do anything other than give … support to a Justice Minister, especially a Justice Minister who will have been appointed by a more democratic method than any other Minister in the Executive and who will therefore be harder to dismiss”.—[Official Report, Commons, 4/3/09; cols. 940-41.]

The Government believe that those words clearly indicate that there is no intention on the part of the two largest parties in the Assembly to misuse the power to remove a justice Minister from office.

Amendment 6 proposes that Assembly standing orders might limit the number of removal motions that could be brought against the justice Minister in a given period. As I have set out, the Government recognise the concern that the noble Baroness expressed, which is that the power to seek removal of the justice Minister could be used vexatiously. That is why, at line 5 on page 7, we propose to restrict the circumstances in which such a motion can be tabled in new paragraph 3D(13) of Schedule 4A to the 1998 Act. Any motion would require the support of 30 or more Members of the Assembly, or to have been tabled by the First and Deputy First Ministers acting jointly. These filters replicate those used for exclusion motions under Section 30 of the 1998 Act, and the safeguards that the Belfast agreement set out should apply to votes on key issues in the Assembly.

Should the Assembly wish to provide further protection against such vexatious requests via standing orders, it is already permitted to do so. Section 41 of the 1998 Act provides a broad power for the Assembly to regulate its own proceedings by standing orders. Providing an additional explicit power for the Assembly to do so for removal motions is not necessary and could call into question the generality of the power in Section 41. The Government are, therefore, unable to support this amendment.

Amendment 10 would prevent a removal motion against the justice Minister being brought before 1 May 2012, or, if the Assembly resolved before then to continue with the departmental model in the long term, from the date of that resolution. As with my earlier comments on Amendments 2 and 4, the key here is recommendation 11 of the Assembly and Executive Review Committee, which explicitly recommended that the arrangements for removing the justice Minister by cross-community vote should apply until May 2012. Once again, this amendment contradicts the express wishes of the Northern Ireland Assembly and Executive Review Committee and the Government are thus unable to support it.

I thank the Lord President for her explanation. I heard what other noble Lords said. We are not unpicking the Belfast agreement; we are adding a new provision in the light of changed circumstances. My noble friend Lord Ashdown vividly described a situation where a Minister of justice could find himself having to investigate, say, two quite different cases of corruption, which might be enough to unite the two main parties in seeking his removal. The Lord President has not given a satisfactory answer there. As for the assurances given by the First Minister, as I said at Second Reading, we have had categorical assurances from Ministers in Great Britain that were not, as it turned out, worth the breath that was expended on them. For these reasons, I wish to test the opinion of the Committee.

Amendment 2A not moved.

Amendment 3

Moved by

3: Schedule 1, page 6, line 37, at end insert “and in addition has made a solemn declaration to respect the operational independence of the Chief Constable of the Police Service of Northern Ireland and to uphold the independence of the judiciary”

The amendment would require Ministers to make a solemn declaration and oath. This is vital. I have spoken again with the chief constable and, given the way in which things happen when terrorist activity and serious criminal activity gear up in Northern Ireland, he must have a guarantee of those freedoms. At Second Reading, I asked whether, had these recent murders taken place post-devolution, the chief constable would have the powers—the freedom—to call in resources independently, and I think, unless I am wrong, that the noble Baroness’s answer was in the affirmative. We believe that the amendment would clearly strengthen the Bill and give a lot of comfort to everybody involved in the process. I beg to move.

We are happy to support the principles behind this amendment, which we think will allow the Committee to feel reassured on this point.

I support the amendment in the name of the noble Lords, Lord Glentoran and Lord Kingsland. We have made great progress with the Bill since the first elusive reference to it in the Queen’s Speech, but this is a most essential matter. In our debates this afternoon, noble Lords have disagreed on the possible pressures that a Minister of justice, an Attorney-General or the DPP might come under with the new arrangements. There is genuine room for disagreement and uncertainty about the political context in which those officers might operate. However, there can be no doubt at all, in the light of the past few days, that the operational integrity of the chief constable could come under challenge. We saw a bitter debate, before the tragic murders of the past few days in Northern Ireland, when the chief constable made his decision to call in Special Forces, and it is to be remembered that the anger expressed over that came from one of the key parties to the agreement we are moving to implement today. It is therefore vital that we do what we can to underline the operational integrity of the chief constable. In this case, it is not a matter of speculation or debate. This is a fraught political position and everything we can do or say, every signal that the Government can send—I am sure the Government fully accept the validity of the point that the chief constable should have operational freedom of manoeuvre—is vital.

This is a perfectly reasonable sentiment but I believe that it is unnecessary to include it as part of the legislation, because it is dealt with elsewhere in legislation. These are accepted realities in Northern Ireland and they are implicit in existing arrangements. Section 1 of the Justice (Northern Ireland) Act 2002 already places a duty on those responsible for the administration of justice to uphold the continued independence of the judiciary. In addition, all Ministers must take a pledge of office, which is also in the Ministerial Code. I therefore believe that this amendment is unnecessary.

The amendment seems to me to be downright common sense and I shall support it, unless there is a more adequate reply. The Bill, as the noble Lord, Lord Browne, has said, simply says that there must be an affirmation of,

“the terms of the pledge of office”.

Where in the Bill is that pledge of office defined and what exactly is this pledge of office? The wording seems very vague: we would be agreeing to something which is not explained. The solemn declaration in the amendment to respect the operational independence of the Chief Constable of the Police Service of Northern Ireland and to uphold the independence of the judiciary in Northern Ireland is common sense. Incidentally, when the Lord President says that the appointment has already been made by the First Minister and the Deputy First Minister and been widely welcomed throughout Northern Ireland, can she put on the record the name of that appointee? Obviously, it must be widely known if it has been widely welcomed.

This is, indeed, an extremely important issue. As my right honourable friend the Secretary of State said in another place, the Government understand fully the sentiments behind this amendment and agree completely that all Ministers, whether in the UK Government or the devolved Administration, should be fully committed to these fundamental principles of independence.

I turn first to the issue of resources raised by the noble Lord, Lord Glentoran. On the current atrocities, the Prime Minister has said that we will provide whatever extra resources are necessary. Post devolution, the chief constable, like any other chief constable, will be able to request extra resources. That is the position.

Request extra resources from whom? Not from the Assembly, I take it. The chief constable is apolitical, so from whom can he request resources?

As I understand it, the chief constable, post devolution, would request technical resources from the United Kingdom Government. I will come back to the noble Lord if I am wrong.

Technical and specialist resources—resources relating, for instance, to bomb disposal—would be a matter for the Government of the United Kingdom. The chief constable would request those additional technical resources from the UK Government.

In respect of the judiciary, Section 1 of the Justice (Northern Ireland) Act 2002 already places a clear duty on those with responsibility for the administration of justice to uphold the continued independence of the judiciary. The duty applies today to my right honourable friends the Prime Minister, the Lord Chancellor and the Secretary of State. Post devolution, it will also apply to Ministers in the Northern Ireland Executive. The duty will be underpinned by a concordat between the UK Government and the devolved Executive that underscores the core principles of the independence and impartiality of the judiciary in Northern Ireland.

In respect of the police, the Independent Commission on Policing in Northern Ireland, known as the Patten commission, was clear that the chief constable must have sole operational responsibility, and that neither the policing board nor the Government of the day, be it a devolved or direct-rule Administration, should have the power to direct him or her on how to conduct an operation. Section 33 of the Police (Northern Ireland) Act 2000 makes clear that the police come under the sole direction and control of the chief constable. Sections 3(4)(a) and 69 of the Act require that the duties of the policing board and the Minister respectively must be carried out with regard to the principle that the policing of Northern Ireland is to be conducted in an impartial manner.

Noble Lords will recall that the policing board itself was a central element of the Patten reforms. It is made up of 19 members: 10 political members drawn from the parties in the Assembly, selected using the d’Hondt formula; and nine independent members currently appointed by the Secretary of State but, post devolution, to be appointed by the Minister of Justice. It holds the chief constable to account on ordinary policing matters, and also supports the network of district policing partnerships that link the police and the community at local level.

As the noble Lord, Lord Browne, informed us, in addition to these provisions, the pledge that must be sworn by all Northern Ireland Ministers when they take office contains a commitment to,

“uphold the rule of law based as it is on the fundamental principles of fairness, impartiality and democratic accountability”.

These existing guarantees enable me to be very clear: statute already safeguards the chief constable’s operational independence and the principle of impartial policing after the devolution of policing and justice. The Government therefore do not believe that it is necessary or appropriate to replicate the guarantees in the Bill. Additionally, we believe that it is important that the Justice Minister should be subject to the same pledge of office as other Executive Ministers. Therefore, while we support the principles on which the amendment is based, we do not consider that the amendment itself is necessary.

I apologise if I unwittingly misled noble Lords on the earlier question of technical resources. The chief constable will request additional financial resources from the policing board, but requests for technical support will be made to the military and to the British Government.

I thank the Lord President for her fulsome response. For simplicity and clarity, my amendment would be quite neat and tidy in the Bill. People would not have to refer to other Bills and statutes if they were arguing about this provision. However, knowing that it is there, if it can be found—I am sure that people will find it whenever it is needed—I feel able to withdraw the amendment. Of course, I would be delighted if, between now and Report, the noble Baroness would agree that it went in. That would be very helpful. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendments 4 and 4A not moved.

Schedule 1: Northern Ireland department with policing and justice functions

Amendments 5 to 6 not moved.

Amendment 7

Moved by

7: Schedule 1, page 8, line 10, at end insert—

“Immediate filling of Ministerial office6A If, after a period of six months following a devolution order relating to policing and justice being made, the Ministerial office has not been filled, the Secretary of State shall assume the direction of the department.”

This is also a detailed amendment. The base of it is that I have been concerned ever since I started working on the Bill with the possibility of there being quite long periods after devolution without the appointment of a Minister. In other words, we could have criminal justice and policing devolved and even have a Ministry put together but if we do not have a Minister appointed, the department will be rudderless. It is a very serious department to have rudderless. My amendments attempt to cover that by setting time limits on how long the Assembly has to get its act together and agree to the Minister, the leader, on all occasions that the post becomes vacant. I am concerned that in the Bill there are at least two opportunities for sluggishness in making the appointment and for hanging around. Then we will not have direction in what is probably the most important department in that Executive. I beg to move.

The noble Lord has spoken eloquently about the undesirability of providing for a vacuum, particularly in a portfolio as sensitive as that of justice. The Government recognise that there are concerns that, both after the transfer of powers and after the 2011 election, the Assembly will be unable to agree on whom to appoint as the Justice Minister. I hope that what I said at Second Reading, and what I am about to say, will reassure the noble Lord.

Amendments 7, 8, 9 and 11 provide that if a Justice Minister has not been appointed within six months of responsibility for policing and justice being devolved, or within six months of the Assembly election in 2011, or if the department is dissolved in 2012, the Secretary of State should assume the direction of the department or of the functions that it previously exercised.

The amendments are addressed at the absence of a deadline for appointing a Justice Minister during the transitional period up to 1 May 2012. The Government agree that having no Justice Minister in place is unsustainable in the long term. However, we have taken the view that it is not appropriate during that initial period to be prescriptive about deadlines. We disapplied the normal seven-day deadline for appointing the Justice Minister following an Assembly election to avoid a situation where a slight delay in reaching cross-community agreement on the prospective Justice Minister triggered a further Assembly election, disrupting the newly formed Executive just as they were bedding in.

We deliberately did not put in its place an alternative deadline. The reason for that is two-fold. First, we have confidence that the parties in the Assembly will be able to reach agreement on a Justice Minister in a timely fashion and there is no need, during that transitional period, for us to impose specific deadlines: they will just get on with it without the need for us to set limits.

The second reason is that the Government believe that, in the event that the Assembly was unable to appoint a Justice Minister, it is right that the Government and Parliament should have the maximum flexibility to decide both when and how to intervene. It is unhelpful to speculate at this point as to exactly what the nature of that intervention might be and when it might prove necessary. Such prescriptive amendments would prevent the necessary flexibility in deciding how to deal with the situation. For that reason, the Government do not feel able to support the amendments.

However, I am happy to assure the Committee that, in not supporting the amendments, the Government are not taking the position that it would be acceptable to have a situation where, in the long term, there was no Justice Minister. Rather, we are saying that we have confidence that the parties in the Assembly will reach agreement on this.

Obviously this amendment is looking to the longer term in Northern Ireland, but with the appointment of the first justice Minister there seems to be no problem, because, as the Lord President has said, a person has now been selected for this position. That name has been widely welcomed—

The other day when I was referring to somebody who would be appointed, I was referring to the post of Attorney-General, not to this specific post.

This is a strange and unnecessary amendment. I would expect that, if devolution of policing and justice takes place, this will only happen where there is agreement on who the Minister will be. The operation of the triple lock is such that we would not devolve without the matter being agreed. Indeed, it may even be possible to elect the justice Minister in advance of devolution, to be in post upon devolution. In the event, six months would be a very long time for such an important position to remain vacant. It would be constitutionally odd to have the Secretary of State for Northern Ireland in charge of a Northern Ireland department. Although the Secretary of State is given certain powers under the Northern Ireland Act, I believe that this would not be a very good precedent. In such circumstances, it would be preferable for Westminster to resume control.

I admire the optimism of the noble Lord, Lord Browne; I like to share it. He also takes the point that six months would be a very long time. I am delighted as well to hear from the Lord President that the Government think likewise and will have their eye on the potential problem. I was not sure at first, but I also like the idea of the flexibility, which the noble Baroness talked about, on when the Government should react to the vacancy in the Assembly. In those circumstances, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Amendments 8 to 11A not moved.

Schedule 1 agreed.

Schedule 2 agreed.

Schedule 3: Amendments to the Justice (Northern Ireland) Act 2002

Amendments 11B and 12 not moved.

Schedule 3 agreed.

Schedules 4 to 6 agreed.

House resumed.

Bill reported without amendment.

Marine and Coastal Access Bill [HL]

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.