House of Lords
Monday, 16 March 2009.
Prayers—read by the Lord Bishop of Ripon and Leeds.
Parliament Square: Right to Protest
My Lords, we announced our intention to repeal the current provisions covering demonstrations around Parliament in March 2008 as part of the programme of constitutional renewal. As I informed the noble Baroness in my Written Answer of 15 January, we remain strongly committed to constitutional renewal and our aim is to bring a Bill forward as soon as parliamentary time allows. We expect that to be later this Session.
My Lords, I thank the Minister for that reply, but we are still waiting for anything to happen that makes protest take the place that it should have in our democracy. Does the Minister realise that in the mean time it has become an incredible ordeal to protest? Not only is your name taken and your number plate recognised but if you refuse to give your name your credit card will be asked for, and if you obstruct the police you will of course then be up on a charge. This is criminalising protest. Will the Minister ensure that the guidance from the Home Office and the actions of the police move in the opposite direction so that we never see another Kingsnorth policed as it was, with climate protesters being treated as they were?
My Lords, I understand the frustration about this issue and there is no doubt that the overwhelming majority of the responses we had when we asked for them were for this measure to be totally repealed. However, the Joint Committee raised a number of other things to be looked at, which we are doing. We want to ensure that we have a sensible package in the Bill when it is introduced. With regard to Kingsnorth, I would need to look at that and consider exactly what was said there before I made any response about it.
My Lords, can the Minister give the House an assurance that the police will do everything they can to facilitate peaceful protest during the coming G20 summit rather than obstructing it and praying in aid terrorism laws that were not introduced for that purpose?
My Lords, I am sure that that is exactly how the police will behave. This whole issue is interesting. I was struck by Lord Justice Laws’s judgment in the case regarding Aldermaston. This quotation is not overlong, and it is worth repeating:
“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them. Sometimes they are wrong-headed and misconceived”.
To paraphrase him, he said that demonstrations are, however, important for our democracy and that they should go ahead.
My Lords, is the Minister aware that the Secretary of State for Justice told your Lordships’ Constitution Committee on 28 January that he recognised that the restrictions on free speech in and around Parliament—let us not forget that restrictions apply to a distance of one kilometre from Parliament—are widely regarded as “rather oppressive”, and were “inappropriately” included in the 2005 Act? Does the Minister agree that the Government should learn a lesson from this episode and listen more carefully in the future when noble Lords tell them that their legislative proposals are an unnecessary or disproportionate restriction on freedom of expression?
My Lords, as I said before, the Government are quite unequivocal about the fact that they intend to repeal these provisions, and we see that they were wrong. Certainly, speaking for myself, I constantly listen very carefully to what is said in this House, and I make sure that statements in the House are taken account of when we look at legislation.
My Lords, despite the Government’s complacency—it is a year now since it was announced that the provisions would be repealed—how many people have been denied the right to protest in and around Parliament in the one-kilometre radius since the law came into effect? Can the Minister give us those figures?
My Lords, we are not complacent about this at all. As I say, we are moving forward with this. We have listened to what was said. I think that the way it was brought in was wrong. It was brought in for very good reasons; people thought it would help because there are issues of access to the House, security and noise, but it was clearly a very blunt, heavy-handed instrument. It was not right and we have recognised that. We will repeal it and we are working very hard to do that. I am afraid that I do not have the actual numbers at my fingertips, but I shall get back to the noble Baroness in writing on those.
My Lords, bearing in mind that there is virtual political unity on the necessity to repeal the 2005 Act, and that the Prime Minister announced as soon as he was appointed that this Act would be repealed, why has it taken so long to get down to it? Finally, will people who assemble outside Parliament be able to take photographs of policemen?
My Lords, I had hoped that I had covered that through a sequencing, but, basically, the Joint Committee was established in April 2008. It published its report in July 2008. It supported the repeal of the Serious Organised Crime and Police Act. I think all of us agree that it should go, and that is what we are moving towards. However, it identified a number of other things such as access to Parliament, noise and security, which need to be addressed. We are looking at all these issues in terms of tying them together in the constitutional renewal Bill. It is our absolute intention to go with that. As someone who comes from the military, I agree that sometimes the speed of things within government seems slightly slow, but, of course, we have to look at all aspects and it is rather tricky sometimes, but we are pushing that very hard indeed.
My Lords, when the new Bill to allow protest around Parliament is introduced, will it extend the area where people can protest to the grass in Parliament Square? However, as a precursor to that, you would have to get rid of that ghastly encampment. That would benefit us, the general population and, indeed, the image of Parliament.
My Lords, the knotty problem of who owns which bit of Parliament Square and how to get rid of Mr Haw’s permanent site there, so to speak, is a very tricky one. The gardens belong to the GLA, which through a by-law has now stopped people using them. However, Westminster City Council has been unable to stop them being on the pavement. I fear that it will be something as prosaic as an American lawyer breaking his ankle while trying to go along that pavement—rather than legislation—which will cause such a furore in terms of cost that they will have to move.
To ask Her Majesty’s Government what is their assessment of recent developments in Zimbabwe.
My Lords, we are ready, with other donors, to support the new Government when we see demonstrable commitment to reform. Tendai Biti’s appointment as Minister of Finance is a positive development, and an IMF mission this month provides an opportunity for constructive dialogue. However, major concerns remain about commitment to democracy, respect for human rights and the rule of law. Of course, our thoughts are with Morgan Tsvangirai after the tragic loss of his wife.
My Lords, I am sure that the whole House will agree with what the noble Lord has just said about Tsvangirai’s wife. Were not specific commitments made in the Memorandum of Understanding between political parties in Zimbabwe? Does not Mugabe’s party continue flagrantly to breach those commitments? Does not the memorandum also say that implementation of the global political agreement,
“shall be underwritten and guaranteed by the Facilitator, SADC and the AU”?
Is not the facilitator Thabo Mbeki?
Is the Minister aware of any censure by the guarantors over those continuing breaches or, given the expectation by SADC members that the UK will provide funding for Zimbabwe, have we been given any indication by SADC and the African Union of measures that they intend to adopt to make good their guarantee?
My Lords, as I indicated in my original Answer, there are one or two developments that give some cause for optimism, but progress is very slow, as the noble Lord indicated. That is why the British Government are extremely guarded in our response to developments in Zimbabwe. The noble Lord is right that there is a role that Thabo Mbeki is to play in monitoring the development of and encouraging the restoration of those features which I have indicated in terms of the rule of law and the return to democracy. We wait and see. At this stage, it would be premature to reach judgments, but the noble Lord is right to raise the issue. We must be watchful of what are very limited developments in Zimbabwe at present.
My Lords, the House is pleased to see my noble friend back, and I am encouraged by this question. The position of the British Government with regard to aid in Zimbabwe is that aid is concentrated on food aid under the United Nations programme and on concern about the health and welfare of the people of Zimbabwe, particularly given the background of the recent cholera epidemic. Those are both priorities to which international support is being given. Although there is always a difficulty about monitoring certain flows of funds, the international community and the British Government have a great interest in ensuring that the two main issues in Zimbabwe—food and the restoration of some degree of public health—are priorities that can be monitored.
My Lords, can we hear from the Cross Benches first and then the noble Lord?
Thank you, my Lords. More specifically, the Joint Monitoring and Implementation Committee was set up by SADC to oversee the power-sharing agreement between ZANU-PF and the MDC. Never has its work been more desperately needed than now. I heard last week a first-hand account stating that this committee does not have the resources to do its work. Can pressure be brought to bear on SADC countries, or are the Government themselves prepared, to supply the committee with the resources it needs to do this job?
My Lords, the SADC commitment was entered into voluntarily and the Prime Minister, of course, is responsible for seeing it through. We are concerned about this monitoring position. The question of whether there are sufficient resources also relates to the extent of the will to monitor effectively. It is still early days to reach judgments on that matter, but the noble Baroness is quite right to identify it as a key element, because this was the assurance given as regards underpinning the development of the new arrangements in Zimbabwe.
My Lords, I should like to be associated with the condolences expressed by the Minister on the tragic loss of Mr Tsvangirai’s wife. While I note the Zimbabwean Government’s declaration of the principles that have to be satisfied, does the Minister agree that the best way of restoring confidence in the international financial institutions would be for them to comply with the specific requirements of the constitution as amended, including full consultation before the appointment of senior government officials, such as the governor of the bank, Gideon Gono, and the Attorney-General, Mr Tomana? Can the noble Lord assure the House that he has specific proposals on these matters, particularly on the release of the 40 political detainees, to place before the G20 when it meets in the near future?
My Lords, Zimbabwe remains an important issue for the international community. Therefore, I have no doubt that these issues will be discussed. Tardy progress has been made towards the development of the principles upon which the Government should be founded that the noble Lord identified. He is right to express anxiety about appointments, as I have indicated, but one or two developments and appointments, including the swearing into office of Mr Bennett who has been freed from prison, offer some limited encouragement. We have to be patient in circumstances where quite a significant transition of this Government needs to occur.
My Lords, since January 2007 all new large goods vehicles have been required to have improved mirrors. New legislation requires existing large goods vehicles, first used from 1 January 2000, to be fitted with improved mirrors. However, it is important that cyclists are fully aware of the dangers of large vehicles on the near side. The Highway Code gives cyclists specific advice on awareness of long vehicles which may be manoeuvring.
My Lords, I thank the Minister for that Answer. Kensington and Chelsea, many other London councils and the Greater London Authority hand out Fresnel lenses or supplementary mirrors, but there is a particular problem with heavy vehicles from the construction industry, such as concrete mixers and skip and trailer transporters, which are exempted from the requirement to have side protection bars that prevent cyclists being pulled under the wheels, which is how many of the worst accidents occur. As we can expect many more heavy construction vehicles to be in London in preparation for the coming Olympics, what does he think can be done to change this exemption so that heavy goods vehicles of all types have protection bars?
My Lords, I am told that for practical reasons some special types of vehicle, such as those that the noble Baroness mentioned, are exempted from the legislation. These include vehicles equipped with a tipping body, such as those used on construction sites. However, the effectiveness of the legislation is being reviewed in the context of a wider study that is currently being undertaken. The report of this study will be published soon. I will make it available to the noble Baroness and will be happy to discuss it with her then.
My Lords, while agreeing that all people who equip and drive all kinds of vehicles should take the greatest care not to cause injury to cyclists, can I ask my noble friend whether he would also agree that there would be many fewer accidents to both cyclists and pedestrians if that significant proportion of cyclists who routinely flout the Highway Code and the law were instead to observe the rules? When will the Government and the police take effective action to end this cycling anarchy?
My Lords, the Highway Code could not be clearer. Rules 72 and 73 advise cyclists not to ride on the inside of vehicles signalling or slowing down to turn left, to pay particular attention to long vehicles which need a lot of room to manoeuvre at corners, and not to be tempted to ride in the space between them and the kerb. So the advice we give to cyclists is very clear.
My Lords, I am seeing the Mayor of London in precisely one hour to discuss with him the £16 billion investment that we are putting into the construction of the Crossrail line in London. I will personally see that the noble Lord’s concerns are conveyed to him at that meeting.
My Lords, can we hear from the noble Lord first, please?
My Lords, I think that there are two different issues here: which causes more accidents and what is the evidence on bendy buses. I cannot immediately say which is the cause of more accidents but I can provide the noble Lord with that information. As for bendy buses, however, the most recent statistics I have to hand are for London in 2007. They show that a total of 155 incidents involved cyclists and buses, of which 28 were bendy buses. That is 18 per cent of all incidents.
My Lords, has the noble Lord read the judgment of Mr Justice Wyn Williams in the High Court a few days ago to the effect that an otherwise blameless cyclist not wearing protective headgear would inevitably suffer a diminution in the damages that would otherwise have been paid? Is there any good reason why the rule that has obtained since 1976 in relation to the blameless person in a motorcar not wearing a seatbelt should not apply equally to cyclists?
My Lords, does the Minister accept that the real answer to the problem is to have doors that you can see through? I had to operate on a young lady of 20 who was run over by one of these huge lorries over her abdomen, and her injuries were appalling. It would not have happened if the driver could have seen through the side door. The lady survived.
My Lords, yes, we are. I recently hosted a round-table meeting with allotment interests to consider current trends, issues and priorities for action. With their help we are drawing up options about how we can provide further support to local authorities to meet their duty under Section 23 of the 1908 Act to provide allotments where they perceive a demand for them in their area.
My Lords, I thank the noble Baroness for that Answer. John Prescott set up core strategies in relation to planning that have resulted in delays of maybe five years in setting up allotments. Is she aware that there is a great demand for allotments? In fact, it is increasing. Sheffield City Council has a waiting list of over 2,000.
My Lords, I am absolutely aware of the increasing demand for allotments. We are trying to do all that we can to help local authorities to satisfy that. The noble Baroness is right that local authorities are required to consider the allocation of protection of green space in their core strategies and local development plans, which is a good way to secure allotments for the future. It also involves the community, which is a good thing in itself. We are concerned that it has taken longer to provide the LDFs than we thought—they are complex documents—but we are putting in a lot of extra help, particularly through the Planning Inspectorate and Planning Advisory Service. I am pleased to say that we have over 100 finalised and found sound.
My Lords, I declare an interest as a member of Pendle Borough Council, which, in the last few days, has agreed terms to purchase land to provide allotments in the ward that I represent on the council—so I do something useful occasionally. Are not statutory allotments the only service for which parish councils and town councils have a statutory duty? In many cases, they provide allotments that are non-statutory. One of the keys to providing more allotments is to provide capital finance to parish councils to be able to purchase land and set up allotments. They are good at running allotments and often do it economically, but finding the money to buy the land and set up the scheme is often difficult. There seem to be no schemes at the moment for that.
I take it back, my Lords. What is wonderful about allotments is that they have special statutory protections, and therefore local authorities are required to meet demand. What the noble Lord says about parish councils is true; we would like parishes to use resources to expand allotments. The key to more allotments is not to change the law, which is robust, but to enable local authorities to understand and enforce the protections that exist. That is why we concentrate our efforts on promoting good practice and giving advice.
My Lords, is the Minister aware that the city neighbouring where she lives—Brighton and Hove—has long waiting lists for allotments but has increased the number available substantially by splitting the existing number of allotments when they become available and on the market again? Will she ensure that that is looked at in her review?
My Lords, one of the recommendations from a report that we commissioned by Professor Wilshire, which we are looking at closely, was on splitting of plots. Plot size was fixed many years ago. I can see some advantages in plot splitting. I am not sure that it would command much support from the National Society of Allotment and Leisure Gardeners, but we should look at it.
My Lords, given the widespread demand for allotments, will the Minister encourage local councils to work with Landshare, a new initiative set up to encourage landowners in both the private and the public sectors to release derelict land to the community for the use of allotments?
Yes, my Lords, I am pleased that the Landshare scheme has come along. We would certainly want to encourage that. The National Trust has made some of its estate available for allotments in recent weeks. That will mean possibly 1,000 places, and the Landshare scheme is going to manage that. It is a website that enables people who want to grow their own food to match up with landowners who have private land which they are prepared to give over. I would encourage any noble Lord with land that they would like to see used for that purpose to get in touch with Landshare and its website, which I can make available.
My Lords, many allotments are indeed on private land. I declare an interest as an allotment holder of the Saltaire Canalside Allotment Society, which pays rent to a private company. What incentives do the Government have to encourage the large number of companies that have parcels of land around the towns and villages to make them available for an extended period for the rapidly rising number of people who want to run allotments?
My Lords, the National Trust has set a good example of what other public authorities might do with some of the land at their disposal. We should consider that. We would have to address certain issues because they may not be statutory allotments and therefore they do not bring protections with them, but the matter is worth considering.
My Lords, will the Minister intercede to ensure that local councils carry the cost of removing toxic waste from land recycled for allotments after a significant period of misuse or disuse in which the councils used it for waste dumping? At times, it is costing a great deal of money and effort. The noble Baroness might wish to start with the allotments at the junction of the Hornet and Whyke Lane in Chichester.
Arrangement of Business
My Lords, with the leave of the House, my noble friend Lord Myners will repeat the Statement on the G20 Finance Ministers’ meeting at a convenient point around 6.30 pm. To aid progress on the Marine and Coastal Access Bill, the usual channels have agreed that, if the dinner break business does not take a full hour, the House should resume Committee stage immediately after consideration of the Employment Tribunals Act 1996 (Tribunal Composition) Order 2009.
Postal Services Bill [HL]
Order of Consideration Motion
That it be an instruction to the Committee of the Whole House to which the Postal Services Bill has been committed that they consider the bill in the following order:
Clauses 1 to 7, Schedule 1, Clauses 8 and 9, Schedule 2, Clauses 10 to 34, Schedule 3, Clauses 35 to 38, Schedule 4, Clauses 39 to 46, Schedule 5, Clause 47, Schedule 6, Clauses 48 and 49, Schedule 7, Clause 50, Schedule 8, Clauses 51 to 56, Schedule 9, Clauses 57 to 59, Schedule 10, Clause 60.
Parliamentary Constituencies (England) (Amendment) Order 2009
Motion to Approve
My Lords, in moving the approval Motion, I should like to say a few brief words in anticipation of the noble Lord, Lord Tyler, moving his amendment. We fully debated the draft order in Grand Committee on Wednesday 4 March, the proceedings of which are reported in Hansard. I am sure that all noble Lords will be keen to get on with the marine Bill, but it is entirely open to the noble Lord, Lord Tyler, if he so wishes, to test the opinion of the House on his amendment. I should draw to the House’s attention the fact that the other place approved the draft order last Wednesday by a majority of 402 votes to 58. I beg to move.
Amendment to the Motion
My Lords, in moving the amendment I can, as the Minister indicated, be as brief as possible because there has been a full discussion both in your Lordships’ House and in the other place. Three major issues are at stake. First, I want to make it clear to your Lordships that this is not an attack on the integrity or independence of the Boundary Commission. Like others, I have appeared at a Boundary Commission inquiry and have been impressed by the process. However, in the exceptional circumstances of the process by which the commission decided to recommend changes to the boundaries in the two Somerset constituencies referred to in the order, the commission has misdirected itself. Significantly, I am joined in that view by both Members of Parliament whose constituencies are affected, who both argued forcefully to that effect last week.
First, the commission misdirected itself on the need for a further interim review just because the second-tier authority, the district authority, had changed its ward boundaries. This is not required by Parliament, by the 1986 Act or by any other statute, and it has not been a deciding factor everywhere else in England. Instead, the commission decided to take more notice of its own rule, which it had invented, than of the local ties that Parliament had asked it to make its major consideration. The Conservative Member of Parliament for Wells argued this point so convincingly last week that I am sure his colleagues in this House will wish to support the amendment on those grounds alone.
The misdirection also failed to take account of important links between villages and their local town. Any Members of your Lordships’ House who are aware of those important links, historic and social, will, I am sure, understand that the failure to do so was important. The commission also failed to take account of substantial objections to its revised proposals, even from Mendip District Council, whose ward changes were alleged to be the rationale for reopening the issue.
Secondly, there is no party-political motive in challenging the process by which this draft order comes before us. There is no suggestion of any electoral advantage either to the Conservatives, who hold Wells, or to the Liberal Democrats, who hold Somerton and Frome—hence the total agreement of those two senior Members of Parliament, the right honourable David Heathcoat-Amory and David Heath, in the committee last week. Mr Heathcoat-Amory summed it up as follows:
“It is beyond doubt that in 2007 those of us in Somerset were told that the parliamentary boundaries had been fixed for the next election. Indeed, they were approved by order”.—[Official Report, Commons, Second Delegated Legislation Committee, 9/3/09; col. 10.]
The issue is simply that the commission has very unusually—exceptionally—failed to take account of Parliament’s instruction and has instead given precedence to a rule of its own in relation to district council ward boundaries.
Thirdly, we are faced with an insidious argument from Ministers that we should not question this order. Indeed, in the committee in the other place, the Minister went so far as to suggest that any challenge should be by judicial review. Imagine asking the inhabitants of small villages in Somerset to go to the expense of judicial review when we, in the high court of Parliament, are given a specific duty to scrutinise these orders. Why do noble Lords suppose that Parliament has laid down that this process should take place here? Were we expected to act like the proverbial rubber stamp? There might be a case for MPs to avoid taking the final decision on matters that could be considered to be of electoral significance in their own constituencies. However, in your Lordships’ House there is no reason to have such qualms. We have a firm, principled and statutory duty to say so when we think that the process has gone wrong. I beg to move.
My Lords, before expressing a view on this amendment, perhaps I may take the opportunity to set out the legislative background to the order. Section 2(1) of the Parliamentary Constituencies Act 1986 established, among other things, the Boundary Commission for England. Under Section 3(3) of the Act, the commission may submit to the Secretary of State a report recommending the way in which any particular area should be divided into constituencies. The boundaries of the current parliamentary constituencies in England are set out in the Parliamentary Constituencies (England) Order 2007, and these constituencies conform to the pattern of district and borough council areas as established on 12 April 2005.
However, as your Lordships know, since that date a number of changes to the local government wards have been recommended by the commission and subsequently implemented by order. As a consequence, the boundaries of a number of parliamentary constituencies no longer align with the relevant changed areas. Two of those local government changes occurred in the district of South Northamptonshire and the district of Mendip in Somerset. For reasons that are unclear to me, the commission decided that in the case of those two areas, but not in the remainder of those altered since 12 April 2005, realignment should be made to the affected parliamentary constituencies, which are Daventry, South Northamptonshire, Somerton and Frome and Wells.
Accordingly, the commission conducted a statutory review under Section 3(3) of the 1986 Act. The commission published its provisional recommendations in July 2007, inviting representations. As there were a number of objections to the recommendations, the commission held public inquiries in both areas, thereafter producing revised proposals in each case. Despite further written objections to those proposals, the commission decided to make no further adjustments and reported to the Secretary of State on 25 July 2008. The draft order before us implements, without any modification, the Boundary Commission report.
I should say at the outset that we have no intention of supporting the Liberal Democrat amendment, or, indeed, of challenging the order. Parliament, although it has the constitutional right to do so, as the noble Lord, Lord Tyler, pointed out, should, in our view, be very slow, for obvious reasons, to challenge decisions about the composition of individual parliamentary constituencies.
However, the decisions that the order implements raise three issues on which we suggest that clarification would be helpful for the future. First, there is no statutory duty on the commission to realign parliamentary boundaries following alterations to local government ward boundaries. Nevertheless, the commission has always so acted as a matter of policy and practice. Here, if I understand the situation correctly, the commission appears to have altered the boundaries of four constituencies affected by ward boundary changes since 12 April, 2005, but to have ignored the remainder in the same class. If I am correct about the facts, perhaps the Minister would be kind enough to explain why that was so.
Secondly, following the public inquiry in Somerset, so the debate in another place suggests, the inspectors’ revised proposals contained a solution that was never, it is said, raised or discussed at that inquiry. The revised proposals—again, so it is said—are those that appear in the order. If that version of events is correct, would it not be preferable to alter the inquiry rules so that, in future, a public inquiry can be reconvened so as to furnish objectors with the opportunity to test such a solution, which would otherwise remain unexamined?
Finally, there will plainly be occasions when the Boundary Commission’s policy to realign parliamentary constituencies following ward boundary changes will conflict with its statutory obligation contained in the Parliamentary Constituencies Act 1986 to take into account local ties that would be broken by an alteration to a parliamentary boundary. It would be desirable if some help could be given to inspectors in the form of guidance to assist them in determining the appropriate approach to balance those potentially clashing considerations.
My Lords, I want briefly to intervene, having listened to the contribution of the noble Lord, Lord Tyler. For once in my nine or 10 years in this House, I want to say something almost party political, because his contribution today has veered into that area. I was always under the impression that everyone in this House subscribed to the primacy of the House of Commons. I came here on that basis. We are unelected. We accept that, in being unelected, primacy is identifiable with the other House, not with this House. By tabling this fatal amendment, the noble Lord is saying that he, an unelected Liberal Democrat Peer in Parliament, has taken it on himself to defeat the House of Commons, where there is primacy, by overturning a majority of more than 350. That is wrong in principle. I am astonished that the Liberal Democrats are prepared to support this amendment and I hope that, even at this stage, they will say to their membership, “Please do note vote, because we are challenging the primacy of the Commons”.
My Lords, I thank those noble Lords who have spoken in this short debate, particularly the noble Lord, Lord Kingsland, who made some excellent points. I will take back the issues that he raised and look at them for the future, as he asked, but I can deal with one now. The noble Lord says that his advice to his party is not to support the amendment. We are grateful for that, but not surprised because, of the 402 votes in another place, 139 were from his party, supporting 257 Labour MPs. Not one Conservative, not even the Member of Parliament involved, voted for the amendment on that occasion.
My remarks will be short because this matter has already been fully debated in the Moses Room. However, it is important to make one point, as I attempted to do in that debate. Although I am not in the habit of quoting myself, I will on this occasion. I said that,
“the Government’s view is that this is very much a matter for the Boundary Commission itself. Having considered it and having also held a public inquiry, when I understand a minor change was made, the commission came to a view, and it is that view which makes up this draft order … the commission went through its normal procedures and the inquiries were conducted properly. The recommendations following the commission’s inquiries were accepted and we do not see it as our role in government to second-guess on matters of this kind. If we were to do so, it would represent a fairly dangerous precedent in terms of government power”.—[Official Report, 4/3/09; col. GC 322.]
Governments set up Boundary Commissions to give them independent advice, and any party that is really serious about power would take the view that we take today. It would be only in extraordinarily extreme circumstances that a Government would try to interfere with a decision of the Boundary Commission. On something like this, important though it is to the localities involved, it would be quite wrong, in principle, for the Government to knock down the commission’s proposals and recommendations, which had been built up over the course of an inquiry.
The one question from the noble Lord, Lord Kingsland, that I can answer is: why these four constituencies and not the others? The answer is that, as I mentioned in passing in Grand Committee, the Boundary Commission concluded that it should carry out a review but decided to postpone its reviews of the other areas, to which the noble Lord referred, because of local government reorganisations that are taking place. The Boundary Commission will no doubt make up its own mind about what to do once those local government reorganisations have taken place.
If this matter is taken to a vote, I ask the noble Lord, Lord Tyler, seriously to consider whether it is really in the interests of this House to seek to overturn an overwhelming majority in another place on an issue of this kind. I ask him to think carefully about whether to divide the House. If the noble Lord decides to, which is, of course, his right, I ask the House to defeat the amendment.
My Lords, I am grateful particularly to the noble Lord, Lord Kingsland, for analysing the situation so carefully, as always. I understand the point made by the noble Lord, Lord Campbell-Savours, and I bring this amendment before the House with considerable regret because it is exceptional. I was struck by the argument made by the Minister in the other place that the proper process for those who felt that this had not been handled correctly within the law as Parliament lays it down was to go to judicial review. That is not an appropriate remedy when we in this House are given a specific responsibility to look at an order of this sort.
When the matter was first raised, I would have preferred the Minister to say that he would delay the implementation of the order and not bring it forward for consideration in your Lordships’ House, or indeed in the other place, until the Boundary Commission had been given another chance to look at this issue. However, we are given a statutory responsibility to look at these issues, which is why this is exceptional.
All the concerns that have been expressed by the noble Lord, Lord Kingsland, are perfectly legitimate. Indeed, if I had not tabled this amendment, I believe that he would not have taken the step that he has taken and expressed these concerns in your Lordships’ House. I am very disappointed that Conservative Members, it seems, are not going to support their own local Member. Indeed, if I am right about what the Minister has said, the Member, having argued so strongly against the order on Monday, must have voted for it on Wednesday, which is an amazing U-turn, if that is the case.
My Lords, I simply think that we should do our duty this afternoon in very exceptional circumstances—circumstances in which the other House is perhaps less qualified to take a dispassionate view. On this occasion, yes, I believe in the primacy of the House of Commons, but we would not be doing our duty if we did not face up to the responsibilities laid on us. If the noble Lord, Lord Campbell-Savours, is right that we should never vote differently from the House of Commons, what precisely would be the point of your Lordships’ House? I beg leave to test the opinion of the House.
Marine and Coastal Access Bill [HL]
Committee (Ninth Day)
Clause 145 : Establishment of inshore fisheries and conservation districts
A228: Clause 145, page 88, line 14, at end insert—
“( ) In establishing an IFC district under subsection (1), the Secretary of State shall have regard to the nature of the coastline.”
This amendment, tabled in the name of my noble friend Lord Taylor, explores the Government’s intentions as regards the boundaries of the inshore fisheries conservation authorities. According to the briefing so kindly provided by the Minister and his team, there are at present some 12 sea fisheries committees in England and Wales. The Government have an ongoing consultation seeking stakeholder views on whether the current sea fisheries committees arrangement will be moderately adjusted, resulting in 10 associations following local authority boundaries, or whether economies of scale could be enjoyed by reducing the number of associations to six with a few more local authorities involved in each association.
I realise that I am anticipating the result of that consultation here, but I was hoping that the Minister would be able to shed a little light on which of the options appears to be the most preferred. As much as cost savings are always welcome, the second option would lead to some rather large areas being incorporated. The consultation also noted that there will be a further consultation on the exact boundaries when the orders for each new IFCA are being drawn up. I am sure that the Minister will not find it difficult to reassure the Committee and the stakeholders involved that the nature of the coastline and existing fisheries will be considered to ensure that these boundaries are drawn in sensible places.
One aspect that has confused me is that neither option in the consultation suggests that any local authority will find itself dealing with two districts, and yet the Bill makes specific provision for this. I suppose it is possible that the requirements might lead to a very slight overlap, but hardly more than a matter of miles, if that. I am also interested in why the Government have decided to extend the IFCA jurisdiction out to only six nautical miles when the Bill suggests that it might be 12.
Finally, the impact assessment attached to the consultation expresses the hope that the reorganisation will have been completed by 2011, which does seem to be rather a long way away. Can the Minister explain why it will take two years? I beg to move.
I thank the noble Duke for tabling the amendment because it raises important issues. The noble Duke talked about some of them, such as the nature of the coastline, the size of the area covered and how far it extends out to sea, but there is also the issue of local accountability, particularly to and through local authorities. It goes without saying that the bigger these areas are and the fewer they are, the more local authorities will be covered by them. As the Bill stands, some local authorities will not be represented on their local IFCA, which on the face of it seems to be undesirable.
Two of the areas in the option to reduce to six should have huge question marks over them. One, the north-east option, covers the whole north-east coast from the Scottish border down to the Humber. I can see that there may be some operational or marine justification for it, but when we consider the size of the area, which is about 200 miles long, and the number and variety of communities along that coastline, there must be a serious question mark over it.
There is an even bigger question mark over the southern and western area, which includes both a large area of the south coast, from the Devon-Cornwall border to the border between Hampshire and Sussex east of the Isle of Wight, and a substantial amount of the Severn estuary and the Bristol Channel. That is not a single area and if the Government are going for the large option they should seriously consider splitting it into two and have one area for the Severn and one for the south coast. This might create a potential difficulty in that the county of Devon would be in two areas but it would not be a serious matter because that county has two coasts, a north coast and a south coast, and the management of inshore fisheries in those two areas is different; they are separate areas. There may be an argument that Devon and the Isle of Wight should be in the same IFCA area along the south coast, but I can see little argument that the Isle of Wight should be in the same area as the north coast of Somerset.
These are important questions. Are the Government consulting on the two options of six or 10, or are intermediate and different options possible because, at the moment, neither option is ideal?
I thought the noble Baroness, Lady Miller, was going to be tempted to intervene on that extraordinarily bold statement about north Devon.
The Minister has finally tempted me. I thoroughly agree with my noble friend; the north coast has different issues. The Minister will remember that I was pressing for a Bristol Channel approach, and so I agree with my noble friend.
I well remember our debates about the Severn and whether there should be a joint marine plan. Whatever the constraints in relation to statute, the point about the need for an integrated approach is well taken.
A consultation document has been sent out and comments are invited back by 22 April. It would be inappropriate for me to comment too fully on the substantive points made because we must preserve the integrity of the consultation process. However, I will make sure that those collating the responses take into account the interesting points that have been expressed in Committee today. It would not be appropriate for me to say whether the Government have a preference at this stage between 10 or six; we should first listen to the arguments.
I understand the point raised by the noble Lord, Lord Greaves, that the larger the boundaries the more of a challenge there will be in ensuring that information and accountability are shared between the IFCAs and the relevant local authorities.
Annexe E, on page 21 of the consultation document, lists out Option 2, the creation of six IFC districts. For example, the local authorities in the north-west would include Blackpool Borough Council, Cheshire East Council, which is a unitary, Cheshire West and Chester Council, Cumbria County Council, Halton Borough Council, Lancashire County Council, Knowsley Metropolitan Borough Council, Liverpool City Council, St Helen’s Metropolitan Borough Council, Sefton Metropolitan Borough Council, Warrington Borough Council and Wirral Metropolitan Borough Council. I could go on but I shall desist at that point. I accept that, if one went for the 10 option, there would be fewer local authorities within each boundary, which might make relationships more effective. It is a point well taken. However, we need to see the outcome of the consultation before we come to conclusions.
I assure the noble Lord, Lord Greaves, that however many local authorities are defined as relevant, it is our intention that they should all be represented on the IFCAs. I accept that, if local authorities are to feel involved, the relevant ones must be represented. I know that there is a later group of amendments on the issue.
I say to the noble Duke that 2011 is a year after the MMO will be established and, as we will debate in later amendments, it will make appointments to the IFCAs. There is an argument for delaying the creation of IFCAs to allow that to happen. In Wales, the Welsh Assembly Government have decided to take responsibility for Wales in-house, and the current sea fisheries committee, which covers both north Wales and the north-west, will have to be split up. The remnant in the north-west will be used as an early adopter when it comes to preparation for IFCA status. That should be extremely helpful.
In this opening debate, I stress that IFCAs will be different from sea fisheries committees in a number of ways. As we have discussed, the membership will be different. We are also introducing a clear duty on inshore fisheries and conservation authorities to ensure that the exploitation of sea fisheries resources is undertaken sustainably. That duty includes the need to protect the marine environment from the impact of fishing activity. This is at the heart of the model for inshore fisheries and conservation authorities.
I know that we will debate one or two of these points later. This approach has the support of current sea fisheries committees and the Local Government Association. These organisations have recognised the need to change. As I said to the noble Lord, Lord Greaves, every upper-tier local authority with a coastline will be entitled to sit on the inshore fisheries and conservation authority. We have set out a project board to progress matters and, as we have learnt already, we plan to establish the authorities in April 2011.
The noble Duke asked about the limit of six nautical miles. IFCAs will be responsible for the enforcement of legislation regulating inshore fisheries out to six nautical miles; that is the same as sea fisheries committees now, with the addition of marine species management in estuaries. This will bring together responsibility for inshore fisheries management into one organisation, thereby streamlining the delivery landscape and ensuring efficient use of resources.
We have heard already that between six and 12 nautical miles, access rights for certain member states are set out in the common fisheries policy. Limiting IFC districts to six nautical miles avoids the need for IFCAs to submit all their by-laws to the European Commission and affected member states for approval. We have the option, in the light of circumstances and if we feel it necessary, to extend the seaward jurisdiction of IFCAs out to a maximum of 12 nautical miles. That provision gives us the required flexibility.
On aligning local authority boundaries, we see that there is a clear benefit from these measures, because local authorities will be required to be part of, and contribute to, only one inshore fisheries conservation authority, and the district boundaries will be identical to local authority boundaries. Under Clause 165, IFCAs will have a duty to co-operate with each other and will work in a joined-up way across boundaries.
We are in the middle of a consultation. This debate has been extremely useful and I will make sure that the outcome, and the helpful comments made, will be conveyed to officials, who will collate and submit advice to Ministers in due course.
Does the Minister not accept that if there is to be an IFCA that includes a large area of the south coast and the whole of the Severn Estuary apart from north Cornwall and the part on the other side in Wales, it will operate as two separate IFCAs? It will be doing two separate jobs about two separate pieces of water.
The noble Lord is right that on the map they look like two separate pieces of water, given that one is in north Devon and one is in south Devon. I fully accept the point. I should have said to him, when he asked me whether we would consider an intermediate option, that this is an open consultation and, if we receive comments that suggest that neither of the options we propose is acceptable, we will consider such an opinion. Equally, while I accept that where a county has two different coastlines there will be issues that will have to be dealt with, one could argue that there are advantages in one county area being taken as a whole and dealt with consistently.
I will ensure that the noble Lord’s comments are considered. If other ideas are put forward as part of the consultation, they will need to be considered very carefully.
I cannot let the noble Duke get away with that. If I were to pontificate today and say that I preferred a 10-IFCA or a six-IFCA option, the Committee would say that I was undermining the consultation process. That is why I am being very careful.
I understand where the Minister is placed, but he has raised some interesting questions about what the structure of the IFCAs is likely to be. He started off by saying that all local authorities would be represented, but later he said that they would be entitled to sit. One has a vision of the IFCA structure involving huge numbers of people unless they come to some agreement whereby there is joint representation, and that remains to be seen.
I am interested to hear that we will get a look at the consultation, but we would like to have seen it sooner than the end of the summer. We hope it will be slightly earlier than that. In the mean time, I beg leave to withdraw the amendment.
Amendment 228 withdrawn.
Clause 145 agreed.
Clause 146 agreed.
Clause 147: Membership and proceedings of IFC authorities
A228A: Clause 147, page 89, line 3, leave out paragraph (c) and insert—
“(c) a person representing Natural England,(b) a person representing the Environment Agency, and(e) other persons, provided that in respect of the total number of persons appointed as members of the authority by virtue of paragraphs (b) to (e) of this subsection, there shall be equal numbers of—(i) persons acquainted with the needs and opinions of the fishing communities of the district, and(ii) persons with knowledge of, or expertise in, marine environmental matters”
This amendment relates to the composition of the inshore fisheries and conservation authorities. At present the authorities would comprise persons who were members of the relevant council, persons appointed by the MMO and other persons. The amendment seeks to include,
“a person representing Natural England … a person representing the Environment Agency”.
Both those organisations have very obvious interests in the work of the relevant authority. The amendment would extend the obligation to ensure balance between,
“persons acquainted with the needs and opinions of the fishing communities of the district, and … persons with knowledge of, or expertise in, marine environmental matters”.
It is important to achieve that balance, but, as the Bill is drafted, that balance would apply only to persons appointed by the MMO. Indeed, the third category of “other persons” could lead to a considerable imbalance one way or the other. Balance is an important issue. That is why the amendment seeks to include those with a specific interest in and knowledge of marine environmental matters but also seeks to ensure that, overall, there is a balance between the two most important stakeholder interests.
Amendment A228B seeks to replace “community” with “communities” and follows on from the intervention in the previous debate by my noble friends Lord Greaves and Lord Tyler, who indicated that Devon has a north and a south coast. It might be very invidious to ask someone to represent one community. Having had experience of representing fishing communities, I know that getting a consensus view can be difficult. Therefore, the amendment seeks to provide for the diverse interests that may arise in fishing communities. I beg to move.
The amendment of the noble Lord, Lord Wallace, would include in the Bill what the Government are proposing as the suggested composition of the associations in their helpful briefing on this part, at least as regards a statutory seat for a member of the Environment Agency and Natural England. I received a letter from the noble Lord, Lord Hunt, just before I entered the Committee today, which confirms that under the new arrangements the Government propose that IFCA membership will comprise statutory members from Natural England, the Environment Agency and the MMO. That is comforting.
However, the amendment would go a little further. It seeks to balance the competing interests of environmentalism and fisheries by means of assuring their equal numerical representation. I have a great deal of sympathy with the amendment in this regard. The finding of a balance, which the IFCA is obliged to seek under Clause 149(2)(b) and (c), will not be easy, and this would certainly go some way to ensure that the balance of power within an IFCA is fair. At the risk of lengthening the list, what about a scientist on each authority? Indeed, one could argue that all those with interests in this area should be represented.
Our amendments in this group were tabled to address a concern raised by the Delegated Powers and Regulatory Reform Committee that the power in subsection (3) would allow the Secretary of State to remove the obligation in subsection (2) to provide for that balance. We sought to prevent that occurring by drafting amendments to ensure that any order amending this subsection would be subject to the affirmative procedure. I am happy to note that the Government have gone one better and tabled an amendment that would prevent any order amending subsection (2) as it stands. Instead, the power will now be restricted to the adding, varying or removing of any additional safeguards the Secretary of State might think wise to add in the future. We are very satisfied with this approach and thank the Minister and his officials for their amendment.
This is an important group. Clearly, we want IFCAs to be successful in terms of having the right balance and ensuring that decisions are informed by the need to respect that balance. Having members from a variety of different backgrounds who know what they are doing is clearly very important indeed.
One of the key advantages of the change between the current sea fisheries committees and the inshore fisheries and conservation authorities will be the balance of membership. The new statutory membership requirements will ensure that there is the correct balance of members on each authority so that they can deliver their new duties effectively, while taking account of local circumstances.
It is our clear intention that there will be a statutory seat on each inshore fisheries and conservation authority for the Environment Agency, the MMO and Natural England. This will be set out in the secondary legislation that sets up each inshore fisheries and conservation district and authority. It is not included in the Bill—although I well understand why noble Lords were keen to see that happen—in order to provide flexibility should the name or nature of these organisations change. We will also set out in the secondary legislation setting up each inshore fisheries and conservation authority the maximum number of local authority members that there can be on that inshore fisheries and conservation authority. Our intention is that this will be up to one third.
I want to make it clear that if that means that there are 10 relevant local authorities, it follows that the local authority membership will be 10 and that the total number on the committee will be of the order of 30. Taking the three statutory appointments, that leaves approximately 27 people to be appointed. That is the thinking behind our intention. We do not want to exclude local authorities; we see that it is important that the relevant local authorities are represented. In a sense, that sets out the marker for the composition of the committee. Clearly, if we went for the sixth option in the paper, there would be more local authority membership on the authority, and there would be other members as well. There is a balance, and one can see arguments both ways on that.
Clause 147(2)(a) requires members appointed by the MMO to comprise those with fishing and marine environmental knowledge or expertise. MMO appointments to each inshore fisheries and conservation authority will be made according to the particular economic, social and environmental needs of that inshore fisheries and conservation authority. The detail of the appointment process will be drafted in guidance on which my department will consult this year. That will include information on how the MMO should decide on the balance of interests to be appointed. The guidance will stress the need for the balance of members to enable the inshore fisheries and conservation authorities effectively to deliver their new statutory duties. This will require there to be a balance of expertise that includes both fisheries and environmental interests.
I very much take the point raised by the noble Earl, Lord Cathcart, about having members with scientific expertise. I should have thought that when one thinks about those with marine environmental knowledge, one would expect people with scientific expertise to be appointed. With the appointments by the MMO, Natural England and the Environment Agency, I should be very surprised if people with a scientific background and expertise were not appointed to these organisations. In a sense, we begin to see some of the advantage of the new approach, which balances expertise in the marine area, appropriate fishing representatives, commercial interests’ representatives, local authority representatives and the statutory bodies. That does not mean to say that they are going to find it easy to come to a balanced view, but at least the right people will be around the table.
We do not think that it is appropriate to specify that there should be equal numbers of fishing and environmental members. The MMO should appoint the most appropriate members, depending on local circumstances and need. Some members may have fishing and environmental expertise, so it would not be practical or appropriate to attempt to make an equal split of members. However, the fact is that each IFCA will be the subject of its own order and, therefore, be subject to appropriate parliamentary scrutiny.
Amendment A228B proposes that some of the MMO appointees must be persons acquainted with the needs and opinions of the fishing “communities” of the district, rather than “community”, as the current wording proposes. The noble Lord, Lord Wallace, made a relevant point in relation to that, a point which was well taken. My understanding from the advice that I have received is that “community” is used in the wider sense to include any relevant “communities”. Of course, I well take the noble Lord’s point that there are many different interests and, as has been pointed out in relation to the west country, different coastlines could be covered by the same IFCA. We will very much take the noble Lord’s point on board, but the legislation does not get in the way of that issue.
The noble Earl, Lord Cathcart, has tabled amendments, but he has indicated that the Government have put down amendments which we hope will deal with this matter. We addressed the concern that the clause as drafted could allow the Secretary of State to vary or remove the descriptions of persons currently set out in subsection (2)(a) and (b)—that is, those appointed by the Marine Management Organisation. This issue was raised by the Delegated Powers Committee during its consideration of the Bill. This was not the intention of the clause, so we propose to amend the wording by introducing government amendment A230 whereby the Secretary of State would have a power to vary or remove only anything that is added to subsection (2) rather than a power to amend what is currently in subsection (2)(a) and (b).
Subsection (2)(a) and (b) will not be able to be varied or removed by the Secretary of State as these descriptions will always be appropriate for inshore fisheries conservation authority appointees, but it is useful to retain a power for the Secretary of State to add new descriptions of persons, and to vary or remove those descriptions in future. Therefore, we think that we have dealt with the point raised by the Delegated Powers Committee, but we have the flexibility we need for future appointments that might need to be made. On that basis, we do not think that the order should be taken through the affirmative resolution procedure.
I hope that I have answered the point sufficiently and that noble Lords will recognise that the Government, in bringing forward their own amendment, have considered very carefully the comments of the Delegated Powers Committee and the noble Earl, Lord Cathcart.
Can the Minister say anything about the cost of all this as compared to the present arrangements under the 1966 Act? Will the number of people who will be involved on the authorities increase? I should know this, but, coming from another part of the nation, I am completely ignorant of it. Presumably these people will not be paid, but have travel expenses. Some will have to travel some distance if they represent bodies such as the Environment Agency. Are there sufficient people to represent the bodies mentioned by the noble Lord—Natural England, the Environment Agency and so on? Can the Minister fill in a little bit, just for our information?
Yes. I would be happy to send a note to noble Lords on the number of members on the sea fisheries committees as compared with the IFCAs. The SFC in Cornwall, for example, has 26 members; Cumbria 14; Devon 20; Eastern 20; Isles of Scilly eight; Kent and Essex 22; Northumberland 20; North Eastern 36; North Western and North Wales 38; Southern 20; and Sussex 20. It depends on which model is adopted. If, for instance, one took the sixth IFCA option, it is likely that the committees will be larger in future because the size is determined essentially by how many upper-tier or single-tier local authorities have to be represented. Equally, we want to get a much more effective balance than we have at the moment. Looking at the representation on the sea fisheries committees at the moment, one sees that local authorities have roughly half the membership. The remaining half is appointed mainly by my department. We seek a much more balanced representation ensuring not only strong local authority representation but, obviously, representation of the fishing sector in its many different components and representation of the environmental and conservation interests. That is probably worth the price of somewhat larger committees.
At the moment, about £6 million of local authority funding is paid to sea fisheries committees. We reckon that there will be an additional expenditure, and my department will provide additional funding of around £5 million per year through the area-based grant. One has to say that we expect more of these new authorities. We see a developing role for them and we see the issues around environmental conservation as particularly important. On n that basis, we see some expenditure as reasonable.
Before my noble friend Lord Wallace of Tankerness responds, I would like to say a little bit more about the current situation. We would be naïve if we did not recognise that some in the present regime of sea fisheries committees view what is coming with trepidation and possibly even suspicion. I therefore hope that we can spell out some reassurance to the fishing communities. I noticed that the Minister referred just now to “the fishing sector in its many components”. As that does not sound to me like a very united and integrated “community”, singular, I think that he has already given away his reaction to my noble friend’s Amendment A228B.
It is important that we indicate to the fishing communities as clearly as we can in the Bill that they will not be swamped by people coming in with a different viewpoint and attitude and that there will be a collective and cohesive approach to the problems of marine conservation. There are many people involved in the current regime who will have some concerns and who will see the possibility of imbalance. Although I am sure that the Minister is perfectly honest in saying that the Government’s clear intention is to do this or that, it is difficult for people to be reassured on that point in advance, when such matters are left to secondary legislation.
I specifically take issue with the Minister’s idea that the word “community”, in this particular respect, can somehow encompass “the fishing sector in its many components”—I am quoting back the Minister’s own words. My experience of fishing communities is that they are very disparate. They have very different interests based not just on whether they are on the north or south coast of Devon but on whether they are involved in sea fishing or in shellfish. Take the lobstermen and the crabbers, for example: it is not always possible to get them into the same boat, facing in the same direction. If the Minister honestly thinks he can somehow wave a magic wand and the whole fishing community can be brought together, “in the widest possible sense” was his phrase, into one community, I think he is in never-never land.
I also listened very carefully to the noble Earl, Lord Cathcart. In Amendment A228A my noble friend is proposing a balance between,
“persons acquainted with the needs and opinions of the fishing communities”,
“persons with knowledge of, or expertise in, marine environmental matters”.
The latter category must include the scientists involved. I am sure that my noble friend took that on board. I do not think that we need on this occasion one of the famous lists about which the noble Lord, Lord Taylor of Holbeach, is so anxious. However, we need more clarification from the Minister, otherwise the suspicion to which I referred at the outset may grow.
I am sure that we are right to insist that all major local authorities are properly and directly represented. However, as the Minister himself admitted, that is a critical issue in terms of the number of IFC districts that we have. It could make a huge difference to the management if we had too few so that they became too large and unwieldy.
I was surprised that the noble Lord, Lord Tyler, let rip like that, because I was really agreeing with his noble friend. I made it clear that I fully accepted that “community” is taken to mean “communities”. It has become fashionable for Ministers to read what they said as authority for what they then maintain, as we saw in the debate before the triumphant vote of my noble friend Lord Bach half an hour ago. Clearly there are many different interests in the fishing community. The task of my department when it comes to guidance to be issued to the Marine Management Organisation, the work that the MMO will need to do on each IFCA, and the bringing of an order before Parliament will be to ensure that so far as possible we recognise diversity of interests in a particular sector, such as the fishing community. Clause 147(8) is a helpful explanation of what is meant by “the fishing community”, saying that,
“‘the fishing community’ means all persons with any sort of interest in the exploitation of sea fisheries resources or in fisheries for such resources”.
That seems a pretty wide definition. The challenge will be to ensure that we embrace sufficient interests within an IFCA without having a huge number of members; as the noble Baroness, Lady Carnegy, would probably point out, that would cost a lot more in expenses but also be unmanageable. We have to try to get the balance right.
I have no argument at all with what the noble Lord said about the need to represent. We want the fishing community represented, but there are a lot of different interests within what is meant by “the fishing community”.
I thank Members of the Committee who have taken part in the debate, particularly for the general support that the amendments seemed to attract from the noble Earl, Lord Cathcart. I thank the Minister for his reply, which was helpful in allowing a greater expansion on some of the ideas about what will happen when the authorities are constituted.
I share the concern expressed by my noble friend Lord Tyler that there is a lot of uncertainty and apprehension—from not only fishing communities but environmental interests—that there could be an imbalance one way or the other. What was said should give some reassurance, but often to have something set down gives even more reassurance, particularly as there is a category in subsection (1)(c) of “other persons”, which is mighty wide. I was going to say that it covers a multitude of sinners; that is probably unfair, as I am sure that they are people of great virtue and ability.
I also take the Minister’s point that those appointed from Natural England or the Environment Agency would almost inevitably have a scientific background. To that extent, the important point made by the noble Earl, Lord Cathcart, is met.
I think that the Minister is seized of the issue of “communities”, and if he has an opportunity to reflect on it before we return to it, perhaps there is a way in which that can have expression in the Bill. The Interpretation Act says that the singular embraces the plural, but in this case the sensitivities are somewhat greater than the reassurances allowed for in that Act.
Amendment A228A withdrawn.
Amendments A228B and A229 not moved.
A230: Clause 147, page 89, line 10, leave out from “as” to end of line 12 and insert “to—
(a) add descriptions of persons who may be appointed by virtue of subsection (1)(b) as members of an IFC authority;(b) vary or remove any descriptions added by virtue of paragraph (a).”
Amendment A230 agreed.
A230A: Clause 147, page 189, line 20, at end insert “provided that the number of members falling within paragraph (a) shall form a majority,”
I shall speak also to my other amendments in this group: Amendments A230B to A230E. The group also includes Amendment A231 in the name of my noble friend Lady Miller. This group of amendments probes the relationship between local authorities that are members of IFCA and—the Minister tells us—represented on it, particularly in terms of their representation.
Amendment A230 is a probing amendment that would ensure that representatives of local authorities must form a majority of the IFCA. The Minister has already told us that in practice they will form one-third. That is the factual answer to my question in the amendment, and I look forward to an explanation of why that is thought the appropriate proportion. These bodies will in fact be joint committees of local authorities; indeed, there will be committees of local authorities if there is only one. On the 10 option that could be the case in Cornwall and the Isles of Scilly, but everywhere else there will be a joint committee of the authorities. If that is their status, the question is whether one-third is enough. This also bears on the question already discussed about the size of the IFCAs and the representation on them by local authorities.
I turn to Amendment A230B. The Minister has already told us that each local authority which has a coast that forms part of the IFCA will have a representative on the IFCA. However, Clause 147(5)(b) clearly states that the order setting up the IFCA will state,
“the number of members to be appointed from each council (which may, in the case of any particular council, be none)”.
My amendment A230B seeks to delete those words so that the Bill will state what the Minister has said will happen. If I move the amendment, I take it that the Minister will support it. He shakes his head. That is interesting. We will come to discover why he will not support it even though it states what he says will happen. I wonder if we are coming on to Alice in Wonderland legislation here.
I will say no more about that and will listen to what the Minister has to say with interest. However, if we have an IFCA that consists of one representative from each of the authorities, and if it is the 10 option as set out and we are talking about the southern and western IFCA with its two different coasts, there would be 16 authorities on the IFCA, which means that the IFCA would consist of 48 members—unless Devon has two, because it has two coasts, in which case it might be 51. That is quite a large body. It is not a totally unmanageable body: it can make arrangements; and in the case of southern and western, if that came about, it would have to function as two separate IFCAs and might have separate meetings of the people from the two coasts. It would be rather like having an IFCA for the Irish Sea and the North Sea in the north of England. It would require very special arrangements. Therefore, the intention behind Amendment A230B is to probe why the Bill does not say what the Minister says will happen.
With Amendment A230C, councils would appoint their own representatives. I suppose that the amendment should simply have changed “from” to “by” so that the number of members would be appointed by each council. That is what I wanted to say. The intention behind the amendment is to ask the Minister whether councils will appoint their own member or members or whether someone else will do it for them.
Amendment A230D is really a probing amendment to question who is to appoint all the other members or representatives. We have come close to discussing that but it will be interesting to have a clear statement from the Government about how it is to happen.
Finally, Amendment A230E in my name is quite different. It is intended to question why “physiographical” suddenly appears in this part of the Bill to describe the physical features of the area on the seabed rather than “geomorphological”. The word geomorphological appears quite a few times in the Bill but I think it is used to cover what the Government mean by physiographical. I have a series of references to where the word appears but I shall not bore the Committee by reading them all out. Everywhere else in the Bill, the word geomorphological is used . Geology is of course the science of rocks and geological is taken to mean the features and structure of rocks, whereas geomorphology is the science of land forms and is taken to mean the land forms in an area. I question why we suddenly have the very old-fashioned word physiographical. I beg to move.
The amendment should read page 89, line 20, at end insert the words printed on the Marshalled List.
I shall speak briefly to my Amendment A231, which is grouped with those of my noble friend. This amendment seeks to explore why the Government have defined marine environmental matters under this section as,
“the conservation of flora or fauna”.
The amendment would change that to “of flora and fauna”. We know that conservationists will come together with members of the fishing community, and it seems that, by taking this slightly divisive approach—that is, not recognising that marine environmental matters should mean conservation of the marine ecosystem—the Government are opening up the possibility of a rift for an IFCA right at the beginning. The conservation of fauna—that is, the fish—would, understandably, be of prime importance to the fishing members of the IFCA but the conservation-minded members might be more interested in preserving the eelgrass beds and feel that all fishing should be prohibited therein. Therefore, I think that the wording creates a division that should not be there. Perhaps the Minister can give me a reason for that.
With the first three amendments in this group, the noble Lord seems concerned to ensure that the number of members from relevant councils is not limited, that they will be the majority of members and that each member of the relevant council will be appointed to the IFC authority by the relevant council. The number will not be limited by order. We agree that adequate representation from the relevant councils is very important to obtain the greatest amount of expertise possible.
Here, I have a problem. Before I came into the Chamber, I thought that there would be representation from relevant councils. I thought of district councils, county councils, and single authorities and thought that the whole authority will have far too many councillors on it and not enough expertise. We need the expertise on the IFCA, but we must also have representation. I was refreshed to read the letter from the Minister, which I received just before I walked into the Chamber. It states:
“In terms of local authority membership, it is proposed that each IFCA will comprise those single and upper tier local authorities with seashore in the IFCA district. Every single or upper tier local authority within an IFC district will be entitled to sit on the IFCA committee. The make-up of each IFCA and its constituent local authorities will be set out in the order establishing each IFCA but it will be left to the local authorities themselves to appoint their representative on each IFCA”.
To me, it makes perfect sense that each local authority appoints one person to the IFCA. However, we then move to the example that the Minister gave on the first amendment of having six districts. In the north-east, I counted more than a dozen different local authorities which, if they are to be a third of the total, would make for a very unwieldy committee. I have not quite got my mind round that and I would be grateful if the Minister would explain that to the Committee.
Lastly, the two amendments changing “physiographical” to “geomorphological” are very sensible. We used the word geomorphological earlier with reference to the marine conservation zones and it makes sense to maintain consistency throughout this long and complicated Bill, so that there is no room for misunderstanding. The amendment tabled by the noble Baroness, Lady Miller, tightens up the definition of marine environmental matters to ensure that it includes the conservation not of flora “or” fauna but of flora “and” fauna. I agree with that amendment. It tightens the definition so that there is no suggestion that one might be more important than the other, or that marine environmental matters could include one without the other. I very much look forward to hearing the Minister's response.
This has been an interesting debate. We have heard arguments that it is essential to ensure appropriate local authority representation. In the previous group of amendments, the Committee was concerned to ensure that where there are different interests within the fishing community, they should also be reflected in IFCAs. We have also heard about the need to ensure that expertise about flora and fauna and other issues should also be reflected. The noble Earl, Lord Cathcart, is worried about the size of the authorities, which I also well understand. Getting the balance right is not easy. We hope that we are steering ourselves through this rather choppy water and have come to sensible conclusions.
Although we do not spell out in the Bill what percentage of members will be from local authorities—we think it much better to embrace that within orders—we intend to ensure that local authority members will constitute up to one-third of the inshore fisheries and conservation authorities. The noble Earl, Lord Cathcart, is quite right: I listed 12 authorities which will be constituted in the north-west IFCA if we accept option 2, which is the creation of six IFC districts. Indeed, in the southern and western districts, there will be a larger number of local authorities.
The noble Lord, Lord Greaves, asked: why one-third? There is no absolute science in this, but essentially, we want to get a balance between the various interests who have considerable knowledge and expertise to bring to the table. One-third membership, allowing each relevant authority and the other interests to be members of the IFCA, will enable us to get the balance right.
We will discuss this later, but because of the local authority funding responsibility for inshore fisheries and conservation authorities, the voting provisions in Clause 171 are included. Although they will be in a minority, local authority members can vote to veto their inshore fisheries and conservation authority budgets. There is the safeguard that, in essence, although local authorities form one-third of the membership, they cannot be dictated to in relation to the budget.
I come to Amendment A230B; I think I have really dealt with the matter. It is made clear in Clause 177, on interpretation, that “relevant council” in relation to an IFC district means the council for a local authority area falling within that district. Earlier in the interpretation clause, it is made clear that local authority area means a single-tier or upper-tier local authority. That is absolutely clear. The noble Lord, Lord Greaves, rightly asked why we cannot put that in the Bill. I shook my head because of the possibility that definitions of categories of local authorities in local government legislation may change in the future. We want some flexibility to provide the option of excluding local authorities where it is sensible to do so. I stress that any such exclusion would need to be agreed with the affected local authorities, and it is not proposed to exclude representation from any local authority that is required to fund the inshore fisheries and conservation authority.
Amendment A230C concerns who appoints the local authority representation. It is implicit in the clause that council members will be appointed by their own council. No other method of appointment is provided. I can reassure the noble Lord, Lord Greaves, on that point. The local authorities themselves will be invited to make the appointment.
Amendment A230D would remove the requirement for an order setting up an inshore fisheries and conservation authority district to specify who should appoint the other persons appointed to the committee, as set out in Clause 147(1)(c). I have made it clear that the other persons are members from Natural England, the Environment Agency and the MMO. This detail will be set out in the orders that set up the districts. It gives us some flexibility in case there are changes in the nature of those bodies in the future.
On the question of changing “physiographical” to “geomorphological”, we have spent so much time debating this Bill in Committee that noble Lords have, of course, sometimes observed differences in approach to different parts of the Bill. There is a very good reason for that. I think we debated only last week why “physiographical” is mentioned in this part of the Bill and “geomorphological” is used elsewhere. This is because “physiographical” is consistent with Section 5A of the Sea Fish (Conservation) Act 1967. However, in view of what the noble Lord, Lord Greaves, has said, I will check between Committee and Report to make sure that I am satisfied that, notwithstanding the different terminology, there is consistency here. Perhaps I could come back to the noble Lord on that important point.
The noble Baroness, Lady Miller, raised the question of expertise in marine environmental matters including the conservation of flora and fauna. The MMO will appoint those members who are best placed to contribute the necessary expertise to IFCAs. In practice, it is highly likely that any person appointed for expertise in flora or fauna would have expertise in—or knowledge of—both flora and fauna, though it may not be needed in every case. We want to keep options open and retain flexibility, so we would not want to exclude any potential appointee with important knowledge and skills in flora or fauna, but not both, from being members of the IFCA, although I very much take the substantive point which the noble Baroness makes in her amendment.
This is an important matter. I go back to the point made by, I think, the noble Lords, Lord Wallace and Lord Tyler, about members serving on existing sea fisheries committees being concerned about the future. I well understand that. We have been gratified by the help that we have received from the existing committees to take forward our views. I understand why various interested parties may be concerned about the future, and clearly we are moving into new circumstances, but the best reassurance that I can give is to say that the IFCAs will be set up with a great deal of care and that guidance will be very carefully brought forward to advise and guide the MMO in making appointments. We very much understand that people of good calibre are wanted. We want a balanced membership, and we want the members to work together. This debate has been helpful in informing the Government of some of the aspects of guidance that we need to give to the MMO on membership of the IFCAs.
I want more clarification about the numbers. I still cannot get into my mind how this will work. If, as the Minister says, the south-west has more than a dozen local authorities and only six local districts—local districts have to be a third of the total of the committee—it will have a committee of 40-odd members. The statutory members from Natural England, the Environment Agency and the MMO will be completely overwhelmed by the other 37. Other than the local authorities and the three statutory bodies, who will the rest be? We have not got that quite right, and I ask the Minister to take this away and look at it again.
I am happy to ensure that we consider what has been said today. It would be particularly helpful because we are still in the middle of the consultation process. I am very happy to give that commitment.
The noble Earl is right that under option 2—the creation of six IFC districts aligned to local authority boundaries—if there were 16 local authorities in the southern and western IFCA, that would tend to suggest that the entire membership would be about 48. That would be a large number. On the other hand, under option 1, which I think the noble Lord, Lord Greaves, favoured—perhaps it is fairer to say that he veered towards it—Devon and southern would end up with nine local authorities.
This is not easy. These proposals reduce local authority involvement from roughly 50 per cent to roughly a third. There is clearly a reduced proportion of local authorities, but I would be very wary of going below the one-third level, which preconditions the numbers that we end up with on an IFCA. That is why, under that option, you would end up with a large body in that part of the country. We cannot have it all ways. Either we have an organisation that does as much as possible and has all the right interests around the table or we do not, and sometimes that means that we will have a larger body.
The Marine Management Organisation will appoint the other people to be on the committee. The MMO is in a very good position, guided by the excellent guidance to be issued by my department, to ensure the right balance. As we have heard, we want the fishing communities to be represented, but we also want to make sure that people with a concern for conservation and the marine environment will have a place on the committee. This debate sounds like our debate on Clause 2, if Members of the Committee can remember that far back in history, when we discussed the meaning of sustainable development. In a sense, we are still reflecting that balance and the tension that is coming through in many parts of this Bill. In the end, we think that the construct of one-third local authority membership, the three statutory bodies each having an automatic place and the Marine Management Organisation making balanced appointments subject to guidance will probably get it about right.
I am not sure whether I should apologise to the Committee for parading my lifetime amateur interest in geomorphology. The first time I tabled an amendment about these words was in respect of the CROW Bill nine years ago. I am not sure which way around the words were or which side I was on. I am in favour of consistency and geomorphology is now in current use and better understood than it used to be. It would be interesting to know whether the Minister believes that the words “geomorphological” and “physiographical” are synonyms and, if not, in what ways they differ. Perhaps he will write to me on this important matter.
I have already said that I will look at this matter to ensure that we have the appropriate consistency. My understanding is that we have tried to be consistent with the 1967 Act, which is why we have used that word. But I fully accept what the noble Lord has said, although I will not rise to the challenge that he has, alas, presented to me today. He has raised an interesting point, which we need to look into further.
I am grateful for that response. In my view, the difference is that one word is modern and the other is old-fashioned. On representation and local authorities, the Minister referred to “one-third”. On one occasion, he referred to “up to one-third”. I never know what the phrase “up to” means when used with figures or statistics. I assume that the Minister meant to say “one-third” and that the words “up to” were a slip of the tongue.
I think that I used the words “around one-third”. There might be circumstances when, for some reason, you go one down, but that is the broad order that we have in mind. It is clear that every relevant authority can be represented, which provides additional safeguards to those relevant local authorities.
I am grateful for that response and I am satisfied. I was also satisfied with the Minister’s answer on at least one other of my amendments. I am less concerned about the size of the body than is the noble Earl, Lord Cathcart, whom I thank for his comments on this group of amendments. There is an obsession with the idea that the smaller a body, the more efficient and more effective it is. I do not believe that that is necessarily the case. Big bodies can run effectively; they just need different ways of working. I am not too bothered about the fact that some of these bodies might be quite large.
An answer to the problem of 48 representatives would be to have an IFCA for the Bristol Channel and an IFCA for the south coast. Without going over this again too much, that would avoid the ludicrous position in which, for example, the representative from the Isle of Wight is involved in what happens in the Bristol Channel, which would be a nonsense. But we have gone through that already.
Finally, I was fascinated, while listening, to begin thinking what reason the Government might have not to take out the words that they say will not be operative. The Bill clearly says that some local authorities as defined—that is, top-tier and unitary authorities—may not be members of the IFCAs, yet the Government say that that is not the case and that they will all be IFCA members. Why, then, are those words in the Bill? The only argument being put forward is the extraordinary one that some new type of local authority might be invented in the future to which the Bill might not refer. For some of us who have been involved in the Local Democracy, Economic Development and Construction Bill and in other discussions with the Government about the future structure of local government, that only increases our suspicions that the Government are messing about wholly unacceptably with local government and intend to do more. I am sure that the Minister does not intend to do that.
The Government are clearly not going to invent new local authorities that would make nonsense of this part of the Bill. Hundreds of statutes, right across the board, would need consequential amendments if the local government structure were completely changed; this would be one of them. The Minister’s arguments, therefore, are pretty weak. It is a bit Alice in Wonderland to say, “We agree with you, but we have to find some excuses why we cannot make the changes that you want”. Can the Government think again about this? If they are going to have no authorities unrepresented, why does the Bill say that there may be some? It is nonsense and we ought to be stopping the Government making nonsense legislation. In the mean time, I beg leave to withdraw the amendment.
Amendment A230A withdrawn.
Amendments A230B to A231 not moved.
Clause 147, as amended, agreed.
Clause 148 agreed.
Clause 149: Management of inshore fisheries
A232: Clause 149, page 90, line 42, at end insert—
“( ) promote sustainable development in the marine environment,( ) further the conservation of the marine environment,”
It is axiomatic that we have a fairly lengthy debate when we get to discuss the duties of any body in this Bill, and this clause is no different. IFCAs will take over from the sea fisheries committees, one of whose problems was that they did what it said on the tin: they were focused on sea fisheries. However, they were not very good at conserving anything other than sea fish and, sometimes, not even that. My amendment, which is about the terms of IFCA duties, and several others grouped with it would make sure that these inshore fisheries and conservation authorities will, indeed, pay attention to both fisheries and conservation.
In my view, Clause 149 still gives the slight flavour that sea fisheries are the primary objective, by saying that the first objective is managing,
“the exploitation of sea fisheries resources”.
Meanwhile, given that that management is the primary duty, the paragraphs in the following subsection—about seeking to ensure this and that—are a bit weak. My amendment would bring sustainable development and conservation up to head the list, making sure that they have their proper and prominent place. That is in line with the recommendation by the Joint Committee on the draft marine Bill. The amendment tries to put a more prominent and stronger duty on IFCAs in respect of sustainable development, furthering the conservation of the marine environment and coastal flora and fauna. Several of the other amendments use different wording to that end, but it is comforting to know that concern and disquiet about this issue is felt by Members all around the Committee. Equivalent proposals in similar terms were put forward for the Marine Management Organisation, which would mean that at least two of the bodies in the marine environment would be singing from roughly the same hymn sheet and have consistent environmental responsibilities.
In their response to the consultation and the Joint Committee, the Government said that the duty on IFCAs to realise the social and economic benefits of these resources in sustainable ways is a sufficient protection and provides an adequate balance. I do not think that it does. In the previous debate on the membership of IFCAs, the Minister was keen on the issue of balance, but the reality is that the history over the past 35 to 40 years of the management of our marine resources, particularly fish stocks, shows that virtually without exception social and economic issues have taken precedence over environmental ones. Jobs and livelihoods have always had more political purchase than environment and conservation. Quotas, catch limits and issues of decommissioning and exclusion zones have been driven by those arguments. In signalling to the IFCAs that they must take a balanced approach, we have to jack up the importance placed on conservation and the environment by putting them right at the top and giving them a better profile. I am sure that other noble Lords will express similar sentiments on this issue and I beg to move.
Within this grouping, if Amendment A232ZA is agreed, I shall not be able to call Amendment A232A by reason of pre-emption.
Before I address the amendment moved by the noble Baroness, I should like to apologise for the rather confusing overlap not only between the amendments of the noble Lord, Lord Livsey, and my own in this group, but also between my own amendments, which duplicate themselves. Amendment A232, my Amendment A232ZA and those to which my name is added, Amendments A233A and A233C, are very similar. They seek to ensure a fundamental cultural shift for the new inshore fisheries and conservation authorities. Indeed, a change is being made even to their name by the introduction of the word “conservation”, which was absent from sea fisheries committees.
We have spoken already about the difficulty that the IFCAs will have in reconciling the competing interests of fisheries and environmentalism. These amendments go a little beyond that and hope to establish the integration of two opposing sides. When one talks to different stakeholders, each with their own narrow agenda, it is easy to forget just how similar the essential objectives of the different organisations are. Indeed, one often has the impression that they, too, have forgotten. That is certainly the case for fishing communities and conservation groups
During a recent meeting of the All-Party Parliamentary Fisheries Group, the spokesman for the organisation Seafish talked at length about how one of the greatest challenges facing us over the next 40 years is food security. He rightly emphasised how valuable fish stocks within our territorial waters will become and how important it is to maintain the ability to fish them. The corollary of that concern, of course, is that there must be some fish stocks left to exploit, which is where the concerns of fishermen mesh entirely with those of the conservation bodies. The development of inshore fisheries that are truly sustainable, providing both for the recovery and development of fish stocks that have been depleted in the past and for the continued survival of the fishing industry and the availability of food in the future, should be the objective of these clauses and I hope will be the result of the new IFCAs.
My remaining amendments would update and strengthen the existing duty on Ministers as regards sea fisheries. Given our debates on Clause 2, the Minister will not be surprised by our hope that the Government will be willing to replace the words “have regard to”, which are generally accepted by noble Lords to be rather weak, with the much more meaningful “further” . The second of my amendments would also ensure that the conservation of the entire marine environment was considered as well as the marine flora and fauna. We feel that this is a much more appropriate approach to marine conservation and would ensure more consistency within the organisations that the Bill establishes.
The right way to approach Clause 149 is to have a text which, as far as possible, mirrors Clause 2, which outlines the general objective of the MMO. We are faced with a difficulty because the current draft of Clause 2 is unsatisfactory. The Minister knows that the Opposition, the Liberal Democrats and certain distinguished figures from the Cross Benches have been seeking a version of Clause 2 which reflects what we feel it ought to reflect. So we have to measure Clause 149 against not the current draft of Clause 2 but against Clause 2 as we would wish it to be.
Subsection (2) is the key ingredient in the clause and paragraph (a) is an excellent first consideration. Indeed, it must be one of the rare moments in the Bill where matters are viewed from the point of view of the fish. Clause 149(2)(b), however, is wholly unsatisfactory because it gives equal weight to the social and economic benefits of exploiting the sea as against,
“the need to protect the marine environment from, or promote its recovery from, the effects of such exploitation”.
The whole purpose of the Bill is to put the protection of biodiversity in the forefront of the decision makers’ minds; and this will almost certainly produce the opposite effect.
It would be highly dangerous to include paragraph (c) in the final draft of the Bill. It would be an invitation to internecine warfare within the decision-making body. How do you identify the different interests that will be engaged in the exploitation of sea fisheries’ resources in the district? One may make a reasonable fist of it today; but what will the picture look like in five or 10 years’ time? Before any decision is taken, Clause 149(2)(c) requires the decision-making body to take all these factors into account. Plainly there will be many factors in decision making, but to place on the body a statutory requirement equal to the other two statutory requirements to take these matters into account would be counterproductive to speedy decision-making.
As for the guidance, I should like to see a reference to the importance of the guidance conforming to an ecosystem approach, just as we hope that the guidance will be under Clause 2.
I would wish to have been more specific, but, since I am not clear about the ultimate content of Clause 2, I will rest my case.
It is clear from the amendments tabled in this group that there is a considerable overlap, as the noble Lord, Lord Taylor, indicated. However, the overlap has a common thrust of trying to add more substance to the duty that is being imposed on the IFCAs. In many respects, the duty replaces the current one specified in the Sea Fisheries (Wildlife Conservation) Act 1992. As has been echoed in earlier contributions to the debate, there is a constant need to strive for a proper balance between the interests of those who make their livelihoods from fishing—and of the communities that are very much dependent on a healthy fishing industry—and the interests of conservation and environmental protection. The noble Lord, Lord Taylor, struck the right note when he indicated that these two interests often come together, because the long-term sustainability of the fishing industry also depends on the long-term conservation of fishing stocks. It is important that we bear that in mind when we address the duties that we are placing on the IFCAs.
The amendments in my name and that of my noble friend pick up three points to make more particular the duties that are to be specified in the Bill. Amendment A232A in many respects replicates the second part of the amendment in the name of the noble Lord, Lord Taylor. It both looks to conservation and takes into account past exploitation as well as current exploitation of the marine environment. As well as seeking to further conservation—the importance of which was emphasised by the noble Lord, Lord Taylor—it also takes account of recovery. There is a difference between furthering conservation and having a positive duty to promote recovery. It is an important distinction that we wish to see imported into the Bill.
There are two further considerations that we wish IFCAs to take account of. The first is that they should have regard not only to animals or plants that live in the sea, but also to those on the seashore. It might seem a small point, but for some plant life it could be very important. Perhaps most important in this connection is Amendment A233C, which defines fauna as including birds,
“which are dependent on, or associated with, a marine or coastal environment for part or all of their lives or whilst migrating”.
People who are familiar with the marine environment know how important it is to many coastal birds. The relationship between the resource of the sea and the welfare of birds on our coastlines is crucial. Many of us have had concerns expressed to us about the breeding failures of a number of species, and we know how crucial the link is between the availability of resources in the marine environment and the bird life around our coasts. It is appropriate that bird life should be taken account of when IFCAs are considering their duties. That is why these amendments have been tabled.
Amendment A240 is in my name and that of my noble friend. It is in the same grouping and would insert a new clause amending the Sea Fisheries (Wildlife Conservation) Act 1992 to incorporate the Marine Management Organisation. That would give much more beef, if you like, to the Bill’s environmental and conservation credentials. In a similar way to some of the Conservative amendments, we also wish to take reasonable steps to further many of these functions, particularly to ensure that we are talking not only about conservation but about enhancement of the marine environment and indeed incorporating the marine ecosystems as well. The amendment would change the balance much more in favour of conservation than is the case as the Bill stands.
I shall refer briefly to other amendments that have already been referred to. Amendments A232A to A233C would also give protection to flora and fauna that are dependent on the marine and coastal environment. The points made by my noble friend Lord Wallace about migration are very important. I support these matters as well as the duties imposed on Ministers in Amendment A242. Amendment A245ZA is similar to our new clause in Amendment 240 in relation to marine ecosystems and conservation.
In passing, but certainly not lightly, I shall mention the amendment proposed by the noble Baroness, Lady Young, which would insert into the Bill and underline important fundamental principles: sustainable development and conservation of the marine environment, a much stronger use of the wording than is contained in the Bill at present. It would give authority to an IFC district so that it would have not only to manage resources in a sustainable way, which is what the Bill says, but to promote sustainable development and further marine environment conservation. That would ensure that the IFC district had an in-built duty in the Bill to improve the management of sea fisheries in the district, which is a vital responsibility. That is also reflected in Amendment A232A.
These amendments, as has already been said, are trying to achieve a similar objective. That is a clear indication that the conservation, sustainable and marine environment parts of the Bill are not sufficient. The amendments underline the importance of those factors in not only conserving the marine environment but enhancing it and seeking to ensure that there will be recovery.
This is one of those debates that we have had on a number of occasions. That is understandable, because we have come to the main duties of the IFCAs. It is important that we get this right. I have noted that my noble friend Lady Young, who opened the debate, was concerned, partly in the light of previous experience with the SFCs, that we had not got Clause 149 right. I understand entirely the point that she made.
We believe, and it is our intention, that inshore fisheries and conservation authorities will work to achieve sustainable development in the marine environment. We think that the duty in Clause 149(2)(a) and (b) to,
“seek to ensure that the exploitation of sea fisheries resources is carried out in a sustainable way”,
“balance the social and economic benefits … with the need to protect the marine environment”,
is a strong one. The noble Lord, Lord Kingsland, does not like paragraph (b), but it seems to me to achieve the necessary balance between exploiting social and economic benefits, protecting the marine environment and promoting its recovery from the effects of exploitation.
As regards Clause 149(2)(c), I noted the comments of the noble Lord, Lord Kingsland, on internecine warfare. However, it is a case of one noble Lord’s warfare as against another’s understanding of fishing communities. I understand what he is saying but these authorities will have to make balanced judgments, not just on issues to do with fishing and exploitation of the sea but as regards different elements—if I may put it that way—of the fishing community. However, I hear what noble Lords say about whether we have this right. I understand that it is to an extent coloured by our long-promised discussions on whether we can agree a sensible way through in relation to Clause 2. I am happy to have further discussions with noble Lords, without commitment, on Clause 149(1) and (2) to ensure that we have the balance right. As I say, I offer that without commitment but on the understanding that because we have not resolved the questions in relation to Clause 2, it is difficult to have that debate, as the noble Lord, Lord Kingsland, said. As I say, I am very happy to have those discussions on that basis.
Amendment A232ZA, in the names of the noble Lord, Lord Taylor, and the noble Earl, Lord Cathcart, would require inshore fisheries and conservation authorities’ duty to protect the marine environment from, and promote its recovery from, the effects of such exploitation including past exploitation, to include the effects of past exploitation. I well understand the point, which is an entirely proper one to make. We think that it is implicit in the Bill as drafted. I hope that the noble Lord will accept that we certainly agree with his point.
On Amendments A233A, A233B and A233C, the noble Lords, Lord Greaves and Lord Wallace, propose to insert a definition of “marine flora and fauna” in subsection (6) of Clause 149 to include those species, including birds,
“which are dependent on, or associated with, a marine or coastal environment for part or all of their lives or whilst migrating”.
The duty placed on inshore fisheries and conservation authorities includes a duty to protect the marine environment from, or promote its recovery from, the effects of exploitation when managing sea fisheries resources within their district. The “marine environment” is defined in Clause 177 and includes,
“flora and fauna which are dependent on, or associated with, a marine or coastal environment”.
Since the definition of “marine environment” captures all flora and fauna associated with the marine or coastal environment, including birds, this makes the need to define “marine flora and fauna” unnecessary.
Amendment A233B is proposed to include “seashore” after “sea” in the definition of “sea fisheries resources”. However, Clause 40(3) defines “sea” to include the seashore. Specifically, it says,
“any area submerged at mean high water spring tide”,
so we do not think there is a need for this change.
Amendments A242, A245ZA—this seems a return to our old style of numbering—and A240 would make a range of changes to the Sea Fisheries (Wildlife Conservation) Act 1992. The Act requires UK Ministers to have regard to the conservation of flora and fauna in the discharge of their functions under the Sea Fisheries Acts. The amendments would extend the Act to the MMO; require Ministers and the MMO to further or,
“take reasonable steps to further”,
conservation and enhancement of marine ecosystems, flora and fauna; and require those affected to seek to balance that consideration and any other consideration to which they are required to have regard.
I say to the noble Lord, Lord Taylor, that my understanding is that the 1992 Act in its present form is already extended to the MMO by virtue of Clause 11. In terms of the proposed changes to Section 1(1)(a) of the 1992 Act, a duty to further the conservation and enhancement of marine ecosystems would be imprecise and, particularly in relation to enhancement, potentially open-ended. In addition, most fishing activities will impact to some degree on the marine ecosystem, making the duty impossible to meet.
As far as the MMO is concerned, we could not accept a duty to further conservation, as that would be to favour one element of its overall sustainable development duty over the others, notwithstanding the second part of the amendment and our more general discussion about the sustainable development duty, which I have already referred to in relation to Clause 2.
I understand that the noble Lord wishes to ensure that fisheries do not have an adverse impact on the marine environment and wishes to impose duties to protect the marine environment. That is covered more precisely through the various commitments or duties that Ministers currently have; for example, the conservation of the marine environment and biodiversity under the habitats directive, the birds directive and the Natural Environment and Rural Communities Act 2006 and, in this Bill, the creation and protection of marine conservation zones. We have a range of powers in the Bill—
For the information of the Committee, all the provisions that the Minister has just mentioned are about special and protected areas. The amendment is about the broader conservation of the wider sea, the general environment and conservation across the totality of the marine environment, not simply in protected areas. We learnt that lesson very hard on the terrestrial environment, where no amount of protection of protected areas in terms of SSSIs, SPAs and SACs stopped the massive decline of wildlife in the wider farmed countryside.
Yes, but that does not mean that one should not take those matters into account when debating the amendments. The question before us is whether we have a range of powers under the Bill and existing Acts to regulate fishing to protect the marine environment to meet those objectives. Clearly, I have been referring to a number of pieces of legislation that may apply, as the noble Baroness says, to what we might call specially protected areas, one example being marine conservation zones. However, the question still arises whether, under the general provisions in the Bill and specifically in terms of the duties of the IFCAs, there is sufficient leverage to ensure that these matters are given proper attention. We believe that they are and that the duties placed on IFCAs are sufficient to do that.
In conclusion, I shall come back to the point that I raised at the beginning. It has been useful to reflect on this part of the clause. I understand that it is important to get the hierarchy of decision-making right. I also understand that, in the light of our discussions on Clause 2, we need to ensure that the thinking that I hope will inform our finding an agreed way through on that also reflects our discussion of this clause. In the light of my response, I wonder whether noble Lords will agree to leave the matter at this point. I look forward to further discussions on this matter between now and Report.
I do not wish to prolong this much further, but when the Government are considering this issue and discussing it with people, it is important to remember that IFCAs have to reconcile the interests and enthusiasms of local people with what the Government have recognised as very important—conserving and repairing the environment.
Although I appreciate what the noble Baroness, Lady Young, is saying about the need to put the environment first on this list, if one wants to persuade local people and help councillors to come to terms with what their constituents and the experts are saying, it might be better to put the whole thing in terms of balance. That is what the Government are doing in the Bill and what my noble friend in Amendment A232ZA is attempting to do.
What is actually going to happen at meetings of these bodies? One shudders to think how it will work if every councillor turns up and some 30 people discuss these matters. If that is the case and they have to come to a decision, it is probably easier to word the clause in a way that people more readily understand that they are reconciling what the majority interest will probably be, as the noble Baroness, Lady Young, said, and the aspirations of the Bill.
That sounded like a robust defence of the words in Clause 149(1) and (2). In a sense, the Bill seeks to do what the noble Baroness suggested. We start from a premise of defining the role of an IFCA; it is to manage the exploitation of sea fisheries resources in a district, because they have to be managed—that is a fact of life. In managing those resources, the authority must,
“seek to ensure that exploitation … is carried out in a sustainable way”.
The Bill goes on to say that an IFCA needs to,
“seek to balance the social and economic benefits of exploiting the sea … with the need to protect the marine environment”,
and in subsection (2)(c) to,
“seek to balance the different needs of persons engaged in the exploitation of sea fisheries resources in the district”.
In the light of our debate, there is clearly some dispute as to whether we have got the balance right, and I have agreed to reflect on this. The noble Baroness has said that this will be a difficult task and that we are talking about local communities who are concerned with the environment and with the exploitation of sea fisheries. Getting the balance right is crucial but difficult.
I am most grateful to the noble Lord for his response to my noble friend Lady Carnegy of Lour. I take issue with him on one matter; Clause 149(2)(a) is clearly a satisfactory paragraph, because the exploitation of sea fisheries has to be carried out in a sustainable way. However, unlike fisheries, the standard for protecting the marine environment is different. The word “sustainable” is not to be found in paragraph (b), nor is the supremacy of biodiversity over social and economic benefits, which, I take it, is what this Bill is all about. Its main intention is, fundamentally, to protect biodiversity, otherwise we would not need the Bill at all—there would be no point in it. In my respectful submission, Clause 149(2)(b) gets the matter entirely wrong. It is not a question of balancing, but one of hierarchies.
I certainly understand the question of hierarchy and I have agreed to have a look at this matter. I could not resist praying in aid the noble Baroness, Lady Carnegy, because she put up a very robust defence of the wording in the Bill.
On the noble Lord’s question regarding what the Bill is all about, one has to reflect that different parts of the Bill have slightly different approaches because they are dealing with different matters. They also reflect previous legislation. However, we also must reflect that there is a balance to be brought to achieve sustainability in its best sense. We have tried to express that in terms of IFCAs in this part of the Bill, but we need to look at the issue to make sure we have got it right, and I look forward to further discussions.
I thank the Minister for his responses to the amendments I have spoken to and for his offer of discussions. This has been a valuable debate and I do not intend to speak at length to summarise it, except to say that I am grateful for the opportunity to revisit this matter so that it matches the aspirations that the Minister clearly has for the Bill.
I thank noble Lords for raising their concerns in line with mine to ensure that conservation and the environment are given more prominence in the definition of IFCA duties than I believe they have in the current wording of the Bill. It was important that several noble Lords pointed out that conservation is vital for future fisheries and I am glad that the issue of getting the IFCA’s duties into line with Clause 2 has been raised and that the Minister has given a commitment to hold discussions, without commitment on his part, to see if we can reach a view on a draft for Clause 2 and a draft for the IFCA duties that would flow from that.
However, perhaps I may comment on the issue raised by the noble Baroness, Lady Carnegy. Her case supports the concerned lobby rather than the view that the existing wording is right. The reality is that we know from bitter experience that local pressures and interests tend to focus on jobs and the economy at the expense of the environment. Somehow the fact that you will have an impact on something that is nationally or internationally important in the longer term pales into insignificance if you are a local councillor who is being lobbied heavily by local economic interests because they or their kids do not have jobs. That pressure will increase even more and, therefore, we need a corresponding counterbalance for the environment, because it will be a tough job to resist these strong pressures.
Does the noble Baroness not agree that one of the arguments is that due to change in the membership IFCAs will be in a much better position to reflect that balance and deal with the matter she raised in perhaps a more rigorous way than would have been the case under the existing committees?
I accept that the revised membership of the committees provides a better balance, but my experience of sea fisheries committees over the years is that attendance at their meetings by local authority members is incredibly sporadic, mostly because they are worried about getting lumbered with the bill for any measures that they take. That is one problem that sea fisheries committees have faced. I do not think that we have seen a clear run through for decision-making, because it has been coloured by the fact that sea fisheries committees have been heavily dependent on local authority funding and have for the most part been hampered by local authorities’ lack of willingness to provide adequate resources.
I thank the Minister for agreeing to talk turkey on this one; I hope that his turkey comes with a bit of commitment and we look forward to those discussions. I beg leave to withdraw the amendment.
Amendment A232 withdrawn.
Amendments A232ZA to A232A not moved.
A233: Clause 149, page 91, line 8, after the first “to” insert—
(a) the conservation needs of species of fish falling within subsection (7); and(b) ”
In the name of my noble friend Lord Taylor of Holbeach, I beg to move Amendment A233. This amendment addresses the interaction between the new IFCAs and the existing Environment Agency. I appreciate that the Bill is drafted so as to draw a division between the responsibilities that will fall to these two bodies, since their territorial remit overlaps considerably. As it stands, the Environment Agency is to remain responsible for the fish specified in Clause 149(7), basically migratory and freshwater fish, while the IFCAs are to concentrate on other species. This appears on paper a very neat and tidy division, but of course in the real world it will be considerably more difficult to separate their respective responsibilities. In many ways this is the first time we have had a chance to look at the question of migratory and freshwater fish.
The fisheries that the IFCAs will manage will in many cases directly impact on the attempts of the Environment Agency to conserve many of the fish specified in subsection (7) which, as is indicated, frequently spend much of their lives in saltwater. I am pleased that the Bill gives IFCAs the power to regulate fisheries in order to conserve fish that do not come directly under their remit, but as has often been the case there is little indication in this Bill of how the relationships between the different bodies will ensure that the implementation of these provisions meets their potential. Close interaction between the two agencies will be critical in estuarial and intertidal habitats, where there is no clear boundary between sea and freshwater, and the two classes of species frequently coexist. What possibility is there for IFCAs to delegate their functions to the Environment Agency, or vice versa, in areas where this in particular is the case? I hope the Minister can give some response.
In speaking to this Amendment, which stands in my name and in that of other noble Lords, I need to remind the House that I have, for a good many years, fished for trout, sea trout and particularly salmon, and on occasions have been successful. I have also for a long time been a member of the Salmon and Trout Association. As the noble Duke, the Duke of Montrose, has said, the purpose of this amendment is to place on IFCAs a duty to take account of the conservation needs of fish that migrate from freshwater to seawater and later back again. That duty is in addition to their primary duty to manage sea fisheries in their districts. The amendment would not make IFCAs responsible for the regulation and management of those fish, because that would remain the responsibility of the Environment Agency, but the IFCAs would have to ensure that fishing for sea fish did not threaten the conservation of migratory fish: salmon, sea trout, eels, shad and so on. I intend to speak about shad in another amendment later today.
There are two reasons why I believe the amendment is necessary. First, the Environment Agency acts as the sea fisheries committee in most of the estuaries of the major salmon and sea trout rivers in these islands. This enables the agency to ensure that salmon and sea trout within the estuary are not targeted by fisheries and by fishermen who claim to be fishing for sea fish, whether deliberately or accidentally. Indeed, methods of fishing that are likely to catch salmon and sea trout can be banned as the law stands. Under the arrangements to be created by the Bill, this will change, and IFCAs will become responsible for managing sea fisheries throughout their districts, including the estuaries of the major rivers, and it will therefore be for IFCAs to take action necessary to protect salmon and sea trout stocks in those estuaries from sea fishery activities.
Secondly, migratory fish remain vulnerable to exploitation by sea fisheries well beyond the estuary limits. That applies to sea trout and is particularly so with salmon. At present, the sea fisheries committees have powers to make by-laws to protect salmon and sea trout from that sort of exploitation. The Bill will give IFCAs similar powers, and it is very important that they should make use of them. The Minister may consider that the proposed duty of IFCAs to protect the marine environment already covers migratory fish. That may very well be the case, but I and perhaps other noble Lords would like to see a more explicit duty on the face of the Bill to ensure that IFCAs will take this responsibility very seriously and devote the necessary resources to it. If the Minister cannot go that far, perhaps he would give a very clear assurance that the IFCAs will be left in no doubt that the protection of migratory fish is important to the continuance of those species and that, if necessary, the Secretary of State would use powers of direction to that end.
As this is a standalone amendment, I would like to speak very briefly to it. The noble Lord, Lord Dear, has made most of the points that need to be made about the conservation needs of salmon, trout, sea trout, eels, lamprey, smelt and shad. This is extremely important and our Amendment A244, to which I shall speak later in Committee, addresses an identical situation in Wales.
Obviously, in supporting Amendment A233, I strongly support the conservation needs of the species named in the amendment, which to a greater or lesser extent are under threat and in a great deal of decline. I, too, am a keen rod and line fisherman. I return most species, catch very few salmon, but go sea trout fishing quite a lot, which is very exciting sport, and return quite a lot of them as well. But I was dismayed to be fishing in the west of Ireland and see a big notice which said “SOS”. I wondered what that meant. It was “save our sea trout”.
Like my noble friend Lord Dear, perhaps I should declare an interest in salmon. I have fishing interests in Scotland, but I was appointed by the Secretary of State for Scotland to chair the strategy taskforce in 1997 and, rather like the Warren Committee, I was delighted to see that the Scottish Government had produced a strategic taskforce. Had I been able to be present at the Second Reading, and I apologise that I was not, I would have liked very much to welcome this Bill, particularly Clauses 205 to 233, which largely implement the recommendations of the Warren Committee.
However, I would like to speak in support of the amendment which we are addressing now, particularly in relation to the very complicated matter that arises with migratory fish. I illustrate the problem by drawing the Committee’s attention to the huge gap that exists in the situation with salmon now, as against 30 years ago. The United Kingdom puts to sea every year in the order of 10 million to 15 million small fish, smolts. That is not a scientific figure but it will not be too far out. Thirty years ago, perhaps 25 per cent might have come back as adult salmon. In other words, we were looking to 3 million to 4 million adult salmon returning to the shores of this country. Now, we are quite lucky if it is 5 per cent. Therefore, “lost at sea” describes what is happening to this hugely important species: important environmentally because it is an iconic species and a litmus test to the environment, but economically it also supports many jobs and a great deal of pleasure, as noble Lords have already said.
We do not know where that loss at sea occurs. We know that it could be due to climate change, temperature, predation, or bycatch in other sea methods, and we do not know where that occurs. We do not know whether it occurs in estuaries, or in an area six miles out that would be the responsibility of IFCAs, or whether it totally occurs in the area for which the MMO would be responsible. It could be in international waters. A major scientific project is under way, the SALSEA project, which is sponsored by NASCO, the North Atlantic Salmon Conservation Organization. It is attempting, by science, to prove where that black hole appears in the oceans. Gradually over the next five to 15 years, the scientists may tell us where that is happening; it may be due to any of those causes. It may be close inshore and the responsibility of IFCAs, or may be further out. However, genetically—by DNA—we will know where the fish come from, and I hope that we will find out where they are disappearing.
In this important Bill, it is therefore important that there be flexibility in the powers. In this amendment, the power is there to look at migratory fish, not only in the areas of IFCAs but under the MMOs and further out. I entirely support the purpose behind the amendment and hope very much that the Government will consider it.
I am grateful to all noble Lords for their contributions on this important amendment, and particularly to the noble Lord, Lord Nickson, for his, which puts things in a broader context that we must have regard to. He will appreciate that the Bill defines certain obligations within a certain framework, but he is absolutely right that we have enough anxieties about conservation issues on these extremely important species and need to take that into account when making our arrangements.
I shall deal first with the noble Duke, the Duke of Montrose, who asked me specific questions about the split of responsibilities between inshore fisheries and the conservation authorities and the Environment Agency, which is an important dimension to the Bill. The Environment Agency will lead on protection for salmon, trout and other migratory species and freshwater fish in estuaries and as far out as the six-nautical-mile limit. Inshore fisheries and conservation authorities will lead on marine species. That is the division in the Bill. However, the inshore fisheries and conservation authorities will be able to introduce by-laws for the regulation of sea fisheries to protect salmonids and other migratory species. That arrangement exists at present and will continue under the Bill, because migratory species are included in the wider definition of the “marine environment”, so by-laws to regulate sea fisheries—for example, to set bass nets at a certain level so that salmon can swim over them—can continue.
Inshore fisheries and conservation authorities will work with the Environment Agency, as sea fisheries committees do at present, so that appropriate measures can be taken to regulate sea fisheries in a way that protects salmon and other migratory species. The Government are at one with all representations made on the amendment about the necessity for protection, of course. Such an approach has been used in the past. For example, the Southern Sea Fisheries Committee worked with the Environment Agency to introduce a fixed engine by-law to protect salmonids within the district. The general duty of inshore fisheries and conservation authorities, along with the duty to co-operate, cross-warranting arrangements and Environment Agency representation on each inshore fisheries and conservation authority, will ensure that that arrangement continues and is strengthened by the Bill.
The noble Lord, Lord Dear, raised some wider issues. He was supported by the noble Lord, Lord Livsey, and the context was established by the noble Lord, Lord Nickson. There is no provision for delegation of the functions of the IFCAs, as we believe that the model in the Bill is correct; obviously, we are defending the structure of responsibilities in the Bill. However, a range of provisions will ensure joined-up working. There is clearly a duty for co-operation between the IFCAs and the Environment Agency in Clause 165, cross-warranting of others will be possible and, as I mentioned a moment ago, the Environment Agency will have a seat on every IFCA. Therefore, while defending the responsibilities of the IFCA, we have the basis for the fullest co-operation and participation of the Environment Agency in the work.
The substance of the amendment commends itself to Members of the Committee, particularly the noble Lord, Lord Dear, who spoke forcefully on this issue, and the noble Lord, Lord Livsey. However, we have the structure in the Bill right and this additional wording is unnecessary for migratory species because the effect of the amendment is already in the Bill. The general duty of the inshore fisheries and conservation authorities in Clause 149 includes the protection of the marine environment from the effects of exploitation of sea fisheries resources. I hasten to re-emphasise that the definition of the “marine environment” includes, under Clauses 149(2)(b) and 177(1), flora and fauna which are dependent on or associated with a marine or coastal environment.
The general duty of the inshore fisheries and conservation authorities therefore includes the protection of those species set out in subsection (7) which fall within the definition of the “marine environment”. That is all the migratory species. The duty set out in the Bill will require the inshore fisheries and conservation authorities to take action where sea fisheries under their jurisdiction are impacting, or have the potential to impact, on salmonids, other migratory fish or freshwater fish.
I hope that I have given to Members of the Committees a response to the two anxieties presented in the debate. One was about the relationship between the IFCAs and the Environment Agency and how they would dovetail. On the second, the inshore fisheries and conservation authorities have responsibility for the migratory species in the way in which I have described it. Having allayed anxieties, I hope that the noble Duke will feel able to withdraw his amendment.
I thank all Members of the Committee who have participated in the debate. Having had a long debate earlier on the broad duties of the IFCAs, we are now looking at some of the more practical stuff. There is still a worry, because subsection (6) states:
“In this Chapter ‘sea fisheries resources’ means any animals or plants, other than fish falling within subsection (7)”.
It sounds slightly as though that could be read to mean that IFCAs did not have responsibility for migratory and freshwater fish, but we will look at what the noble Lord said in some detail before we decide what to do further on the amendment. We recognise the Government’s desire to draw the distinction between the two groups, but actions that take place within the six-mile limits will obviously have an effect on the migratory fish. Part of the value of the debate is the way in which it has brought out the practical and historical knowledge of people round the Chamber, which is important for us to consider as we look further at the practical implications. I beg leave to withdraw the amendment.
Amendment A233 withdrawn.
Amendments A233A to A233C not moved.
Clause 149 agreed to.
Clauses 150 and 151 agreed to.
Clause 152: Provision that may be made by byelaw
A234: Clause 152, page 93, line 2, at end insert “subject to a provision for fair distribution of the limited number”
This amendment deals with the by-laws that the IFCAs can make. In particular, it deals with what will be one of the most contentious by-laws but also the one that will make real the efforts that IFCAs will have to make to reach their conservation objectives: the by-law in Clause 152 that enables an IFCA to limit the number of permits that it issues. Those are the permits that allow exploitation of the resources—in other words, fishing.
My purpose in tabling the amendment is to find out the Government’s thinking on a fair way to limit them. I presume that the Government will have to issue guidance on the matter, or will they leave it up to the individual IFCAs? The Minister might say that this is not going to be such a contentious issue. However, I think that it will be a much more difficult issue than it is now because, as marine conservation zones are created, often inshore, the inshore fleet that operates from that area will have to go further to find its fishing area.
The Minister might at first glance have thought that fair distribution might be by auctioning off the permits, for example. However, that might not be at all fair because the inshore fishing fleet in that area might not be able to buy them. Alternatively, perhaps it would be fair, because others would need more fuel to get to those fishing grounds. One might decide that the person who has the whole of their fishing life in front of them—the younger fishermen—should have a better stab at the limited number that there will be.
My purpose in tabling the amendment is to see what the Government have in mind when it comes to the distribution, bearing in mind that the pressure on the resources to be exploited will be very different from now because of the conservation effort. The creation of marine conservation zones will inevitably mean that there is a much reduced number of places that can be fished, possibly of times of year when the fishing can take place and possibly of the sorts of gear that can be used. A huge variety of restrictions will come in over a large number of what have been traditional fishing grounds. I accept that fishing may still take place in some of them, but to me this by-law in the clause is likely to be one of the most contentious unless there is a clear way in which provision for fairness can be made. I beg to move.
The noble Baroness’s amendment draws attention to the wording of Clause 152, in particular subsection (1). Once again, my amendments in this group overlap, on this occasion with the amendment tabled by the noble Lord, Lord Wallace. However, I would like to think that my drafting meets the concerns of his Amendment A234B and goes a little further.
Amendments A234AA and A234AB would extend the powers of IFCAs beyond the prevention or restriction of particularly damaging methods of fishing or types of fishing equipment and would allow them to insist on certain more environmentally friendly methods or equipment. As the amendment tabled by the noble Lord, Lord Wallace, highlights, this would be a useful power as regards the minimisation of by-catch. The ongoing research into new technologies to reduce incidental damage to species or sizes of fish not commercially exploitable will, I hope, soon produce results. IFCAs would therefore benefit from the option of the take-up of those new technologies at some point in the future.
I shall speak to the amendments standing in my name in the group. The noble Lord, Lord Taylor, has added his name to the one that would insert the word “vehicles”. That is a recognition that some of the techniques being used in some fisheries are somewhat more sophisticated than implements that might be described as “vessels”. Therefore, the amendment would ensure that, when by-laws are made, there is sufficient scope and power to the IFCA to be able to stipulate vehicles without falling foul of any ultra vires rule.
The second amendment, Amendment A234B, is also intended to ensure that IFCAs are not challenged on the grounds of ultra vires. The noble Lord, Lord Taylor, and I clearly have the same objective. If I have understood his amendments and my own amendment correctly, one of the differences is that his amendment relates to paragraphs (b) and (c) of subsection (5), which require a prohibition or restriction, whereas Amendment A234B would positively require the use of particular equipment. It would not outlaw certain equipment but would cover any technology that emerged which, if used, could reduce a by-catch. There is common ground about the need to prevent or reduce by-catches. However, without specific reference to that in the Bill, it may be possible to challenge a by-law that required the use of a certain technology on the grounds that the current provisions do not cover that. The amendment tries to ensure that, where technology provides a way of limiting, reducing or preventing by-catch, there is a means of enforcing that without leaving it to good will. That is the thinking behind the amendment.
If I may say so, that is also the thinking behind the Government’s approach to the Bill and the clauses that are subject to the amendments. I am in the most interesting position of agreeing with every word that has been said but not agreeing to any of the amendments, not least because we feel that the Bill already meets the amendments’ objectives. We agree with the sentiment behind the amendments, which has been expressed so graphically. It is essential to making the Bill work well. By-laws have an important role to play, for the very reason given by the noble Lord, Lord Wallace, and other noble Lords: there are specifics that are necessary to control and to affect, which is why the IFCAs need this opportunity.
I begin with the point about the permits. The mechanism for the distribution of permits will need to be set out in a by-law, which will require extensive consultation. I agree with the points that have been made that this is a potentially controversial issue and that the process has to be seen to be fair. That is why the arrangements, although the IFCAs are to produce the by-laws, must be confirmed by the Secretary of State. An unfair by-law will also be vulnerable to legal challenge, but we would probably say that more important at this stage is that there must be provision in the Bill for a judgment on the fairness of the by-law—a judgment that must be made by an elected person, who is of course the Secretary of State.
The amendments have provoked an interesting debate but they are unnecessary because the effects that they seek to establish are already captured by the Bill. The list of provisions that inshore fisheries and conservation authorities can make by by-law, set out in Clause 152, is not exhaustive but it is the product of consultation in the preparation of the Bill. The provisions listed include examples of the types of by-law that are likely to be required. Clause 151(1) provides inshore fisheries and conservation authorities with the power to make any by-laws that are required for them to meet their duty to manage the exploitation of sea fisheries resources in their districts.
Therefore, where IFCAs establish the need for a by-law, subject to the fact that any by-law needs the recognition of the Secretary of State, under the Bill it is within their power to make that by-law. The Bill currently gives IFCAs the ability to propose by-laws of the type intended in all these amendments. The opportunity for IFCAs also to make by-laws which we have not yet considered but which, in an evolving situation, may be necessary in the future is also provided by these clauses.
Amendment A234E would change the drafting of Clause 156(1) by replacing “may” with “must”. In explaining why we cannot have the word “must”, I am in danger of sounding a little precious when I hope simply to be precise. There is no question but that regulations will have to be made by the Secretary of State but, given that this clause will come into effect before IFCAs have been created, it is not appropriate to impose a duty on the Secretary of State to make regulations immediately. He cannot do that. We want the regulations to relate to IFCAs, but the word “must” would not add anything as, without regulations, it would not in practice be possible for by-laws to be made. If IFCAs are to have the power which we are expressly giving them in the Bill and which we all recognise as necessary, the Secretary of State must make regulations. That necessary and logical path follows from the structure of these clauses. Therefore, we do not need “must”, as it is already implicit in the structure of the Bill.
This approach is consistent with that taken in Section 5 of the Sea Fisheries Regulation Act 1966, so we are not doing anything novel; we are merely creating the basis on which the Secretary of State will make regulations to give IFCAs the opportunity to make the by-laws that they define as necessary. However, particularly with regard to permits, as the noble Baroness emphasised, and because the concept of fairness is very important, those by-laws will then be subject to a judgment as to their fairness. I hope that noble Lords will accept that the Government’s reasoning follows the exact lines as those expressed in this debate, which is why these clauses should stand as they are.
The lists reflect the consultation that we had on the Bill in the crucial areas where by-laws are likely to be made; noble Lords have identified and highlighted certain ones in this debate. I am conscious that in other parts of the Bill we have been somewhat in denial about lists and I have no doubt that I will be upbraided about this. In the case of Part 6, existing legislation, to which I made reference a moment ago—namely, the 1966 Act—will be highly relevant to the work of IFCAs. By-laws made by them will tackle many of the same issues that have been dealt with via by-laws made by SFCs. Indeed, SFCs and IFCAs will be very similar. Consequently, if a specific power is provided in Section 5 of the Act to which I referred a few moments ago but is not included in Clause 152, there is a risk that a court would assume that that was because the power was intended to be excluded, when that is not what we intend.
In addition, SFCs have been making fisheries by-laws for decades and the sort of matters that they need to be able to regulate are very well understood. If we know that we will want to exercise a power for a specific purpose, it is sensible to include that specific power, and that is the basis of this list.
We know from meetings and consultation with stakeholders that SFCs are strongly in favour of the long list, as it provides real clarity about the extent of their powers. They are especially keen that a specific provision is included to cover permits, including charging and being able to limit the number of permits issued. Therefore, I was not surprised that this matter was identified as being of the highest salience and as causing difficulty in these provisions. It is of great importance and that is why we feel justified in including the long list. However, I hope that noble Lords will accept that we have considered the other matters raised during the debate on these amendments.
My point was that paragraphs (a), (b) and (c) under head 3 in Clause 152(5) relate to the making of by-laws that would prohibit or restrict the type of vessel, the method of fishing or, indeed, certain equipment. My point relating to the amendment that I spoke to was that an IFCA might wish not to prohibit but to stipulate the use of a technology. For example, a fisherman might come along and say, “If you’re going to oblige me to do that, it is going to cost me money and I’m going to challenge your right to do it”. The Bill refers to by-laws that tell you what you cannot do, but I should like to know where it says that a by-law can be made saying what you have to do. Is the Minister confident that a by-law would be intra vires in these circumstances?
The by-laws are subject to the consideration of the Secretary of State. If we were dealing with an issue such as the noble Lord has described, where it looked as though an IFCA was acting in an arbitrary and less than fair manner, that issue would then be open to public debate because the Secretary of State would be reaching a judgment on it.
I think that the noble Lord would accept, when he is talking about equipment, that here we have the clearest illustration of where changing technologies can impact on the marine environment in particular and even dramatic ways. It is therefore right, first, that we have the capacity for a by-law to be made and, secondly, that there is a framework in which it may be seen to be a fair and justifiable by-law.
I am sorry to interrupt the Minister, but the noble Lord, Lord Wallace, has a good point here about by-laws that specify use of equipment in a positive sense that is not included in this list. I hesitate to tease the Minister about this whole section of lists, but they do not appear to crown it by having a little catch-all at the end stating, “and any other matter that may be relevant to the performance of their duties”, or some such phraseology which we know has been used in the past. Can the Minister confirm that it may be useful in creating those by-laws to have such an all-embracing phrase if the provision is to deal with the sort of situation that the noble Lord, Lord Wallace, mentioned?
I am grateful to the noble Lord. Let me assure him that he did not interrupt me, because I had finished. I take on board his point. After consultation with interested parties and stakeholders, we have produced an extensive list for a justifiable reason. He will recognise that I am loath to construct legislation out of my head at the Dispatch Box with his suggestion of some additional powers, or whatever. I will look at that point. I respect the fact that the noble Lord, Lord Wallace, was identifying an important issue, but I hope that noble Lords will appreciate that the Government have thought about the clauses very carefully and feel able not to press their amendments.
We will be very grateful for the Minister’s further thoughts on that. Of course, sea fisheries committees in their present form have been making by-laws for ages. I am still slightly perturbed that the Minister thinks that it will be enough that the Secretary of State is reactive, so that he confirms a by-law when it is made or may cause a local inquiry to be held. I am absolutely all for localism and diversity where possible, but the least that the Secretary of State could do is to give what will be very new bodies—IFCAs—which have a new make-up and have not worked together before, some clear guidance about what a fair provision will be, given the restraints that I mentioned, in particular in areas that may become unavailable for fishing. I hope that we can discuss that with the Minister between now and Report. In the mean time, I beg leave to withdraw the amendment.
Amendment A234 withdrawn.
Amendments A234A to A234B not moved.
Clause 152 agreed.
Clause 153 : Emergency byelaws
A234C: Clause 153, page 94, line 1, leave out paragraph (b)
I shall speak also to a corresponding amendment, Amendment A234D. They are by way of “compare and contrast” amendments, because they are intended to probe the differences between this clause, which gives power to the IFCAs to make emergency by-laws to manage their fisheries, and Clause 127, which gives powers to the MMO to manage MCZs.
In Clause 153(2)(b), IFCAs are expected to prove that they could not have foreseen the need for the emergency by-law before they can impose one. Why are IFCAs being held to a higher level of foresight than the MMO? Both organisations will suffer from conflicting and lacking scientific evidence and opinions, and both will have to pick their way through as best they can. To prevent a useful emergency by-law being imposed because of an inaccurate earlier assessment would seem to be counterproductive. The best way forward would of course be that IFCAs use the normal by-law procedure, but the second-best option should surely be that the emergency by-law powers are used, rather than that the damaging activity be allowed to continue unrestricted.
Similarly, subsection (6)(a) requires an IFCA to use its best endeavours to use the normal procedure, rather than relying on the Secretary of State to extend the emergency by-law. Again, we agree entirely with the principle behind the provision. IFCAs should not rely on an extension rather than going through the proper procedures but, again, the Bill ensures that the marine environment, rather than the IFCA, will suffer from its negligence. Surely there is a better way to ensure that IFCAs take a responsible attitude to the imposition of by-laws. I beg to move.
I commend the noble Lord for his alertness in comparing different parts of the Bill and seeking to point out inconsistencies. Of course, that is impossible, but he raises a legitimate point. The question of emergency by-laws has been dealt with differently in relation to IFCAs in contrast to the MMO. Those differences are appropriate. Inshore fishery and conservation authorities are under a duty to protect the marine environment. As the noble Lord, Lord Taylor, suggested, it is much better that they go through the regular by-law-making channels to fulfil that duty, but there may be an exception where a committee considers that there is an urgent need to introduce a by-law where the need for such a by-law could not reasonably have been foreseen.
To give an example, an IFCA could introduce an emergency by-law to prevent an activity such as scallop dredging where it is found to be damaging an ecosystem and where significant damage could occur if the activity were not stopped quickly. For the most part, we expect IFCAs to anticipate damaging fishing activity and introduce a regular by-law to regulate any damaging activity. We want the emergency by-law provision to be used only where a damaging fishing activity could not have reasonably been foreseen and a by-law is considered urgent. We would be worried about removing the criteria of it being unforeseeable, because then the provision in the Bill would not be proportionate.
Why is that different from the MMO emergency by-laws? The MMO by-laws have been designed to regulate threats to nature conservation from non-fishery-related activity where an urgent need for protection has arisen. For the most part, those will be unregulated activities, such as regulating the speed of jet skiers, which may be more difficult to predict and plan ahead for. On the other hand, IFCAs will be regulating threats from fishing activity within their district, so it would not be appropriate to regulate fishing impacts through emergency measures in the same way as non-fishing impacts because, for the most part, the regulation of commercial activity should predominantly be subject to full consultation and confirmation by the Secretary of State. Only where the committee considers that there is an urgent need for protection where a damaging activity could not have been readily foreseen should the power to introduce an emergency by-law be used.
On Amendment A234D, my response is the same. We would expect inshore fisheries and conservation authorities to go through the regular by-law-making channels. It is important that the Secretary of State is satisfied that every effort was made by the IFCA to introduce a by-law in the time that the emergency by-law was in place before approving any extension. It is important to note that the regular by-law-making channels are a democratic and evidence-based approach to regulation, where full consultation is carried out and confirmation by the Secretary of State is required. In essence, the IFCAs are probably in a better position than the MMO to forecast the activities that need to be covered by by-laws. We need the backstop of emergency by-laws. It is rather different with IFCAs, where it may be more difficult to anticipate in advance the activity to be covered. That is why there is a more open-ended approach to emergency by-law-making when it comes to the MMO.
I thank the Minister for that explanation of the difference. He mentioned in particular the problem of local jet skis, which may cause concern. The need for by-laws might well be considerably broader than that sort of thing. Indeed, it may well come to matters such as scallop dredging, as was mentioned earlier. This would suddenly present the IFCA with a challenge to its environmental and conservation roles. The difficulty is that if it could not reasonably have foreseen this particular activity taking place within its boundaries, it might find itself excluded from using the emergency procedure. I am not sure that the Minister would wish for that to happen. As I read the Bill at present, it would be quite difficult for IFCAs to take action promptly and quickly in the face of a conservation threat. I note what the Minister says and beg leave to withdraw the amendment.
Amendment A234C withdrawn.
Amendment A234D not moved.
Clause 153 agreed.
Clauses 154 and 155 agreed.
Clause 156: Byelaws: procedure
Amendment A234E not moved.
Clause 156 agreed.
Clauses 157 to 161 agreed.
G20: Finance Ministers Meeting
My Lords, with the leave of the House, I will now repeat a Statement made in another place by my right honourable friend the Chancellor of the Exchequer on the G20 Finance Ministers’ meeting. The Statement is as follows.
“Mr Speaker, with permission, I would like to make a Statement about the meeting of G20 Finance Ministers and central bank governors held on Friday and Saturday, to prepare for the meeting of leaders and Finance Ministers in London next month.
Since November, when the G20 last met in Washington, we have seen a collapse in international trade. This is a much deeper and more widespread economic downturn, with every country in the world affected. In October, the IMF was forecasting world growth this year of 3 per cent. Now it predicts negative global growth for the first time in 60 years. At the meeting, it was clear that every G20 country was determined to act together to restore growth, take steps to restore bank lending and prepare for recovery. There was unanimous recognition, too, that we must take action to help emerging and developing economies deal with this global downturn.
We agreed on the following. First, to support our economies, we agreed that we must take whatever action is necessary, for as long as it is necessary, to boost demand and support jobs. Many countries have already taken substantial steps to support their economies. The IMF calculates that in the US this year’s fiscal stimulus is worth 3.5 per cent of GDP; in Germany it is worth 3.2 per cent; in China and France it is worth 2.6 per cent; and here our fiscal stimulus is 3.4 per cent of the economy. We also agreed that we should be ready to do more if necessary—not all countries in the same way or at the same time, but whatever is needed to deal with today’s problems and prepare for recovery.
Secondly, to support people and businesses, it was recognised that it is essential to restore bank lending. It was agreed that countries need to consider the full range of options available, including liquidity support, recapitalisation and dealing with assets for which there is no market or whose value has fallen significantly. In dealing with these assets—something that we, America and other countries are already doing—there is no single solution or overnight fix, but we have developed a common framework so that countries can use the full range of options when dealing with the immediate problems in their banking systems.
Thirdly, on monetary policy, we welcomed recent reductions in interest rates and G20 central bank governors made a commitment to maintain lower rates for as long as it is needed. This is important as it sends a clear signal that central banks all over the world will keep interest rates at low levels to support economic recovery. It was agreed that central banks can also use measures other than interest rates; that is why the Bank of England, the US Federal Reserve and the Swiss Central Bank are currently putting money into the economy through their credit easing programmes.
It was also agreed that financial supervisory and regulatory regimes need to be strengthened both nationally and internationally. There is a significant consensus emerging, here and across the world, that we need to reform the system of banking regulation. That is why I asked Lord Turner, when he became chairman of the Financial Services Authority in the autumn, to come forward with recommendations on how to strengthen our regulatory regime. He will publish his proposals this week and I expect his overview of the system to cover four broad themes: first, capital and liquidity rules; secondly, remuneration and the links to risk management; thirdly, how to better anticipate risks to the wider economy presented by problems in the financial sector; fourthly, rather than abolishing our single regulator, how the FSA can be strengthened to regulate large complex institutions.
It was clear at the G20 meeting that financial regulation in most countries needs strengthening. In particular, all important financial institutions should be regulated, including those hedge funds that are systemically important. Wider regulation must be complemented by strengthened prudential oversight, by looking not only at individual banks but at how they contribute to wider risks to the economy. In future, banks throughout the world must have sufficient reserves at all times, and regulators need powers to ensure that banks do not overextend themselves.
We must also improve international co-operation, building on the 25 supervisory colleges set up since last year to supervise banks that trade across the world. We also need a joint international early warning system that will enable us to deal with emerging problems sooner. That means working with the European Union, too, recognising the need for co-operation which we have been demanding for some time while at the same time recognising the essential role of national regulators.
We also agreed a range of other measures on international banking supervision: all credit rating agencies need to be regulated; there needs to be full transparency of off-balance sheet exposures; accounting standards will need to improve; regulation will cover payment and bonus systems; and we agreed that tax havens must be opened up—we welcomed recent agreements by Switzerland, Hong Kong, Andorra and Singapore to share information according to OECD guidelines. Here at home, we expect banks to comply fully with their tax obligations. So I can tell the House that I have asked HM Revenue and Customs to publish shortly a draft code of practice on taxation for the banking sector so that banks comply not just with the letter but with the spirit of the law.
The World Bank currently estimates that 129 developing countries, many in sub-Saharan Africa, are facing financing shortfalls, and up to 90 million more people could fall into poverty as a result of this global crisis. We agreed that we must minimise the impact of this on developing and emerging economies, many of which—India, Indonesia, Turkey and South Africa, for example—were represented at the G20. We agreed that this would require a very substantial increase in resources for the IMF and the development banks having the capital that they need. Agreement on total levels of support will need to be reached next month.
We remain committed to fighting protectionism and maintaining open trade and investment. That is essential if we are to avoid a prolonged downturn. It is also imperative that the international institutions reflect the reality of the day: the IMF and the World Bank were set up 60 years ago. Once, when we talked about the global economy, we meant the West and Japan, but not any more. China, for example, is already the third largest economy in the world. Emerging and developing countries need to be at the table too, so we agreed that the next review of IMF representation should be concluded by January 2011, while World Bank reform must be completed by next spring. We welcomed the recent decision to extend the Financial Stability Forum to cover all G20 member countries.
The G20 leaders and Finance Ministers will meet again in three weeks’ time. We must seize the moment to make a real difference: supporting our economies, dealing with the banks’ problems and preparing for recovery. Ours must be a time for renewal to tackle the downturn and build a more sustainable future. I commend this Statement to the House”.
That concludes my right honourable friend’s Statement.
My Lords, I thank the Minister for repeating the Statement made in another place. A good subtitle for the Statement would be “Much Ado about Nothing”.
The G20 communiqué is full of platitudes, and the Chancellor’s Statement followed suit. Ever since the Washington summit last year, the Government have been hyping the fact that they now chair the G20. Real action was promised, but they forgot the inconvenient truth that summits and preparatory meetings rarely produce anything concrete, which is why they have been desperately trying to find a reverse gear in recent days.
Only last month, the Prime Minister was quoted as saying:
“The whole point of the G20 is that the whole world must take action to deal with a global problem”.
By last weekend, however, the Chancellor was talking only about,
“pointing in the same direction”,
and the Prime Minister’s official spokesman described,
“the world … coming together to deal with the common challenges”.
That is not exactly action-oriented.
The communiqué issued on Saturday started off by bragging:
“We have taken decisive, coordinated and comprehensive action to boost demand and jobs”.
This demonstrates an extraordinary lack of awareness of what the economy feels like to the people around the world, including in the UK, who are still losing their jobs at unprecedented rates.
In keeping with the Prime Minister’s absolute refusal to accept any measure of blame for what has happened in the UK economy, there was not even a collective “sorry” anywhere in the Statement. Surely when they all get together, they could muster up a joint apology. How out of touch can the world’s finance leaders get?
The communiqué goes on to say that the G20 is also,
“prepared to take whatever action is necessary until growth is restored”.
What does that mean? It is certainly not the co-ordinated fiscal stimulus which the Prime Minister said last month would be a feature of the G20 meeting. We know that France and Germany have ganged up to prevent that, even if it were ever a real possibility.
Closer to home, will the Minister explain how the Statement puts the UK’s existing fiscal stimulus at 3.4 per cent of GDP, but Parliament was told that it was only 1 per cent at the time of the PBR? There are rumours of the Chancellor coming around to our view that a further attempt at fiscal stimulus would be reckless, given the state of our economy, although it is far from clear that he has yet convinced the man who actually got us into this mess. Will the Minister confirm that the Government are now taking to heart the need for the fiscal sustainability to which the communiqué specifically refers?
The communiqué said that the G20 was committed,
“to fight all forms of protectionism and maintain open trade and investment”.
We fully support that, but it has to be more than words. Only last November, the G20 committed itself to rejecting protectionism, and specifically to a 12-month ban on raising new trade barriers. India went home and increased tariffs on soya beans, the US introduced its Buy American programme, and our own Prime Minister talked about “British jobs for British workers”. Does the Minister think that there is any hope of resurrecting the Doha round? As a minimum, does he expect the G20 to go beyond words and produce some genuine bankable commitment to avoiding further protectionism?
The second element of the communiqué was the priority to restore lending. We have been saying for a long time that credit is the most important issue to tackle in our own economy. The Government have regularly been grabbing headlines with various new plans to restore the flow of credit, but they have delivered little. How many mortgage borrowers have yet benefited from the mortgage protection scheme that was announced in December? None has yet benefited. How many businesses have benefited from the scheme to help the car industry, which was announced in January, or the working capital scheme? None has benefited. Whatever the G20 ends up saying about restoring lending, the plain fact is that nothing will help the UK economy unless our own Government turn promises into reality. We have consistently advocated a simple and bold national loan guarantee scheme. When will the Government see the light on this?
Much has been made of the apparent agreement to increase the funds available to the IMF “very substantially”, but what does this actually mean? The Chancellor has already said that he did not even try to reach agreement on a number. The smaller countries have said that they will not contribute until they get more influence, and that is not scheduled to happen before 2011. Can the Minister give any more detail on this “very substantial” increase in funds, which apparently will be agreed in detail in a couple of weeks’ time, and can he say what the impact will be on the UK’s finances?
The communiqué committed the G20 to getting on top of the pro-cyclicality bias of Basel 2, which we have advocated for a long time. Yet again, however, there is neither timetable nor detail. We have yet to be convinced that there is a real consensus on this issue. Can the Minister say whether the UK, as one of the countries with banks that are very large compared with the size of our economy, will proceed whatever the state of international agreement? If there continues to be international foot-dragging, will we address the issues? There are many concepts in the communiqué that we support, such as the need for better early warning systems; but again, there is so little detail that we are left wondering whether anything will really change.
Lastly, the Chancellor’s Statement included something which was not in the weekend communiqué—namely, a code of practice for taxation in the banking sector to make banks comply with the spirit of tax law. How will this work in practice? I believe that taxation needs to be imposed by clear law. We do not have purposive legislation. How can a code of practice alter that? Our tax system is so complex—a point which we have continually pressed—that it is difficult to see where the spirit really is. But perhaps that is just another mirror of the G20 communiqué; that is, words and political gestures which conceal the fact that nothing much will happen.
My Lords, I am grateful to the Minister for repeating the Statement. I have written as my opening comment that it is very easy to be sceptical about G20 meetings and the noble Baroness has made that point in spades. But it seems to me that whatever one’s doubts about what flows from these meetings, the best hope of avoiding the kind of depression that we saw in the 1930s is that we have a G20-type process and other intergovernmental-type processes taking place, which means that any Finance Minister or Prime Minister who goes outwith the agreements made one to the next at the very least has to justify what they have been doing to their peers. In the absence of any external force, that seems to be one of the most persuasive ways of getting people to toe the line.
Let us take, for example, almost the first statement in the communiqué, to which the noble Baroness referred. It states:
“We commit to fight all forms of protectionism and maintain open trade and investment”.
That would not have been said, and was not said, in the 1930s, which is one of the main reasons why the depression lasted as long as it did. Okay, the Indians have put a tariff on soya beans, which is somewhat different from a tit-for-tat protectionist war. I firmly believe that this process, flawed as it is—anyone who has ever had any negotiations internationally knows the force of them—offers not necessarily the perfect but the best opportunity for avoiding the worst of a prolonged global recession.
However, it has been suggested, unkindly perhaps, that one reason why the Prime Minister puts so much emphasis on international initiatives is that it is a displacement activity from looking at some of the problems that need dealing with urgently at home. Certainly, on looking at the Prime Minister’s track record on dealing with tax havens, which is 12 years of almost total inactivity followed by the enthusiasm of the convert, one can see why people might think that he is looking externally for that kind of reason.
However, the Government need to take further action urgently on a number of things at home. First, on the crackdown on the tax avoidance of banks, the noble Baroness referred to the wonderful phrase in the Statement that HMRC is to produce a code of conduct to ensure that banks comply with the spirit as well as the letter of the law. She suggested that one of the reasons why these poor chaps have such difficulty in knowing what the spirit of the law is is that the law is more complicated. Did she read yesterday’s Sunday Times about the way in which Barclays has deliberately sought to avoid hundreds of million of pounds of tax? It was not because it did not understand the law, or thought that the law was too complex and the poor souls were confused; it was because it knew that it could make a lot of money and did so assiduously and very successfully. How confident is the Minister that the banks now owned by the Government have stopped this kind of tax avoidance activity? If he is not confident, will he ensure that they are instructed to stop? Will the Minister assure the House that Barclays will not receive any help under the asset protection scheme until it has given a categoric assurance that all the tax avoidance activities exposed at the weekend have ceased?
The Government have accepted the need for reform of banking regulation, particularly in respect of large, complex institutions, and we should bear in mind that three of the five biggest banks in the world are now British. In view of the growing consensus in support of this, will the Minister revisit the idea of introducing at least a modified version of the Glass-Steagall Act into the UK so that we can clearly segregate off the casino-type activities of the investment banks from the straightforward deposit-taking activities of the retail banks? There is no doubt that the majority of people want a straightforward bank that does not do that kind of thing. It is now virtually impossible, unless one goes to a building society, to find a bank which fits that definition.
There are two bland statements in the communiqué, which mean something or nothing. Perhaps the Minister will help us. It says that credit rating agencies are to be regulated and registered. Will that be by means of national regulators alone or will there be some kind of international framework for them? We then have a wonderful statement:
“Accounting standards will need to improve”.
I am sure that accounting standards always need to improve. What do the Government have in mind and when might they improve?
On global matters, the IMF and a number of points made by the noble Baroness, the Statement says that significant additional funding will be going into the IMF. I think everyone can see why that might be required at this point. But it is strange that while numbers have been floated in the press, the communiqué was completely silent on them. Does the Minister have any idea of when a decision will be taken on the scale of that increase? Finally, why will it take until January 2011 to complete the review of IMF quotas? One would have thought that it was a mathematical exercise of working out the current size of the various countries’ economies within the global marketplace and accepting that the quotas should reflect them. It seems bizarre, perverse and unacceptable that we should have to wait nearly another two years to do that straightforward exercise.
My Lords, “Much Ado About Nothing” says the noble Baroness, Lady Noakes. It is quite the contrary in my view. A considerable amount has been achieved over a short period, which will have a very real impact on the lives of people here and throughout the developed and developing world. I salute the Chancellor of the Exchequer, the other Finance Ministers and the central bank governors for a thoroughly industrious and worthwhile outcome from a weekend of work here in the United Kingdom.
The report, far from achieving little, is full of initiatives. There was significant agreement about the importance of fiscal stimulus and recognition that that is critical to driving the world out of this global recession, but also recognition that each nation has its own issues in terms of fiscal management and that a single solution does not fit all. It will depend on the precise circumstances of the fiscal regime in each country, but the key thing is to have a continued, concerted and effective fiscal stimulus that provides demand from the public sector to absorb the capacity which is no longer being used because of the crisis of confidence in the private sector. There will be detailed reviews of fiscal stimulus and calls to report to the G20 and the IMF on the actions that are being taken globally on fiscal stimulus in recognition that this needs to be done by nearly all countries if we are to pull the world economy out of this global downturn. Similarly, there are clear commitments on monetary policy from central bank governors throughout the G20 countries: to keep interest rates low for as long as necessary and—to follow the lead set by the United States of America and the United Kingdom—to consider and, if necessary, implement credit and quantitative easing, with or without complex formulae.
There was also a series of co-ordinated actions on regulatory issues. On the macro front, there is reform to the IMF, enlargement of the financial stability forum—a small, under-resourced unit that has achieved a great deal and which I, and others, believe can play an important role in future—and a commitment from the full G20 group to root out the deleterious effect of tax havens. On the micro level, much was achieved through agreement: on bank lending ratios, on liquidity management in addition to capital management—a clear deficiency of the Basel approach to managing bank capital—and on embracing within the regulatory regime the non-banks that have had such a damaging effect on the downturn of the global economy. I refer to the shadow banking sector— organisations that looked and behaved like banks but were not regulated like banks. Clearly, there was also agreement that this is a real global challenge, not one linked to a few countries but, rather, one which the world has to unite behind to find solutions.
The noble Baroness said that she is picking up some suggestions that the Chancellor is now of the view that further attempts at fiscal stimulus would be reckless; we shall await the judgments he reaches on that in the Budget, but whatever they are, we are committed to sustainable fiscal management. That is why we have taken the quite extraordinary step of spelling out changes that will be introduced once the economy is recovering in terms of slowing the pace of growth in public expenditure and identifying tax increases that will then be introduced. There is a clear statement on protectionism, which I welcome. As the noble Lord, Lord Newby, said, it is important that that comes at the top of the G20 communiqué.
The noble Baroness, Lady Noakes, said that people have not benefited from car and mortgage schemes. Goodness me: the fiscal stimulus has been very significant. The noble Baroness also asked, on the mathematics, why the figure given by the Chancellor differs from the IMF calculation. That is because the IMF includes the fiscal stabilisers in its calculation of 3.4 per cent. As we have previously discussed in this House, the UK economy has some of the world’s most powerful fiscal stabilisers, as a consequence of our very real programmes to support those who find themselves in need during an economic downturn. The car industry and those borrowing for house purchases are benefiting from the fiscal stimulus, from a good and sensible monetary policy introduced and maintained by an independent Monetary Policy Committee, and as a consequence of our support for banks—through capital, through funding and liquidity and, now, through the asset protection scheme. I have already praised the comments on protectionism made by the noble Lord, Lord Newby. His observations about the need to avoid a move toward protectionism are absolutely right, and the Government clearly share that concern.
Regarding the taxation of banks, it would probably be inappropriate for me to comment in detail on allegations made in yesterday’s Sunday Times in connection with Barclays¸ but in his Statement today the Chancellor was absolutely right to make clear the spirit that banks are required to recognise. In my view, there is no difficulty about that spirit; banks, and all corporations, must behave as responsible members of society and make the contribution through taxes that we expect them to. Quite frankly, some schemes and structures that banks and other companies have pursued do not pass the “Can I look at myself in the mirror?” test, being the behaviours of people acting in a way that would command the respect of their peers and of others in society.
The noble Lord, Lord Newby, also asked about Glass-Steagal. My own sense is that the report by the noble Lord, Lord Turner, which we are expecting, and other thinking on bank regulation, will mean that we will, effectively, see a move back to more specialist institutions. The cost of capital being placed behind the proprietary dealing, derivative and exotic trading sides of banks has been far too low in the past. We need to put much more significant capital and liquidity requirements behind those activities, which will have the impact of dampening down their scale. I, for one, will have no discomfort with that. The noble Lord also asked about credit rating agencies, and who will regulate them. I must be absolutely frank; I am limited to the G20 communiqué and while it is, as I have said, a wonderful document of considerable achievement it nevertheless asks a number of questions. That detail will, no doubt, be provided in due course, as will the matter of improving accounting practices. We can be perfectly frank, however; the failure to incorporate into banks their off balance sheet activities and the impact of market-to-market will, I imagine, be two issues that the accounting profession will be working to address.
Finally, the noble Lord asked about IMF quotas. I am sure that he is, in some ways, right to say that we could all make a simple review, agree it on the back of a menu and sign up for it at the end of the dinner. I suspect that people are more delicate about those issues and that it will take a little longer, but spring 2011 is a target date for completing the review. With good will, perhaps an earlier date can be achieved.
My Lords, my noble friend the Minister put considerable emphasis on the banks and responded in even more detail to the two Front Benches. I welcome that, but does he agree that, since this crisis started in the banks and the finance industry, we ought to start looking at the possibility of putting limits on the leverage ratios of banks? That seems to be an important factor, and one almost implied within what my noble friend said.
My Lords, my noble friend Lord Lea has also raised a Question in the past about leverage ratios. Although, in answering his Question, I said they were a somewhat blunt instrument, I find myself increasingly persuaded that blunt instruments have a role in regulating banking activity. As such, leverage ratios may well have a part to play in future bank regulation, here and elsewhere. I shall be interested in whether the noble Lord, Lord Turner, has any views on that when he publishes his report later this week.
My Lords, I welcome the Statement from the Minister and the emergence of the G20—not just at Finance Minister level but at Heads of Government level—as a more representative body for handling global issues than the G8, which I hope it will, in time, replace. However, one glaring defect of the G20 is that it has no direct representative of the world’s poorest countries, particularly those of sub-Saharan Africa. Can the Minister say a little more about the measures that may be taken at the G20 summit next month to ensure that the poorest countries, and the most vulnerable people within them, will not suffer from the implications of the present financial crisis?
My Lords, I agree with the comments of the noble Lord, Lord Jay, about the G20 becoming a more significant grouping. It has been a long time arriving, but it offers some real advantages over the various other smaller “G” groups that we have lived with in the past. It is more worthy as a consequence of being representative of a more diverse set of economies. Indeed, the opportunity that the G20 provides to harness the energy and commitment of a broader group can only be good for the world.
I share the noble Lord’s concern about the world’s poorest. That was clearly covered in the G20 communiqué and I know that it will feature on the agenda of the meeting to be held in London at the beginning of April. Our own Prime Minister is particularly concerned about the economies and people who are most vulnerable as a consequence of the downturn. We will make representations in the G20 to ensure that the needs of those in sub-Saharan Africa and elsewhere are not overlooked during this challenging global crisis.
My Lords, the communiqué appears to give a general approval to a continuing regime of very low interest rates but, if we are to increase bank lending, we have to encourage savings and deposits. The reality of the situation is that there is no point in having a low price for money if in fact you do not have a supply of it. At some stage we will have to consider whether pursuing the policy of low interest rates, when carried to extremes as it has been, is really the right thing to do.
I have another point. There is a crucial difference between tax evasion, which is illegal, and tax avoidance, which is legal—I am glad to see that a former Financial Secretary to the Treasury on the Cross Benches agrees with me. If we blur that distinction, it would be very dangerous indeed. If the Government do not like what a particular taxpayer is doing, the right solution is to legislate. It is completely wrong to say, “We will introduce a code of practice”, because that leaves the directors of a company in the dark as to whether they are doing the best thing for their shareholders. They cannot suddenly say, “We are not going to do what is best for our shareholders”. They can go on to do something that is entirely legal and create a situation where the Government have to rely on the spirit of the tax system. However, the tax system does not have a spirit and does not have a soul. What we have is taxation law.
My Lords, the noble Lord, Lord Higgins, has correctly identified the Augustinian position that we find ourselves in globally in connection with both fiscal and interest rate policy. The fiscal deficits being run across the world at the moment are not sustainable in the long term, which is why the G20 communiqué makes it very clear that there will come a time when we have to move towards a more sustainable position. The same clearly applies to interest rates. At the moment, with a low risk of inflation, interest rates can be sensibly held at these levels. In real terms, however, if the RPI goes into the negative soon, one could argue that real interest rates are still high by comparison with various periods in the past.
The noble Lord has made informed and concise observations about tax. In some ways I wish that tax did have a spirit, but I take his advice in that respect. There is a clear difference between tax evasion and tax avoidance and we shall see whether a code is helpful in guiding the policies of companies. There is a dilemma. The boards of directors of companies are clearly charged with managing the activities of their businesses in the best interests of their shareholders, and tax is in some respects a cost that they should seek to mitigate in so doing. Indeed, I have been familiar with that in my own business career. However, my experience is that the good boards on which I have sat have always tended to hold an annual review of tax strategy and through that have sought to determine how far they would go in aggressive tax management. I believe that good companies—those that are respected members of the community—say, “This far and no further. This structure is so complicated and devoid of any commercial reality or merit, would be so exposed to ridicule and would cause such reputational damage that we will not go beyond that point”. A code to help and guide thinking in that respect is well worth a try.
My Lords, spurred on by my noble friend’s kind remarks a few moments ago, perhaps I may take the opportunity of airing another bee in my bonnet. The third paragraph of the communiqué concerns the reputation of economists and economic forecasting. Is it not astonishing that side by side with the sins of bankers and the maestros of new financial instruments, we had a forecast last October that growth would be at 3 per cent, with which, like the Gadarene swine, all the world’s economists—the Bank of England, financial institutions, the Bank of Tokyo—agreed? Now growth is in the negative. Is there not something that needs to be looked into in the model of economic forecasting used around the world whereby everyone says, “Well, we have to stay in line with what the Bank of England and someone in the Financial Times has said”, when they are all up the pole? Could not an inquiry be made into the characteristics of the internal workings of the City and the financial system that made all these economists march over the edge of the cliff together?
My Lords, perish the thought that my noble friend Lord Lea of Crondall would invite me to defend economists as a profession. However, my own experience in business suggests that economists are rather good at extrapolating trends and factoring in modest changes in the delta but are hopeless at forecasting inflection points. That is true of economists whether they are operating in commercial organisations, international agencies or academia. The answer to that lies in the fact that human behaviour goes beyond their modelling ability. Their lack of capacity to capture fear as the reverse of the exuberance that they also failed to recognise in the previous strong global economy is a real limitation. I think that economists’ forecasts are helpful, but they should always be treated with a high degree of scepticism. I have always been much attracted to the Bank of England’s use of fan diagrams to indicate not only a central expectation of certain important metrics but also a spread of decile expectations to give a sense of whether it has a high degree of confidence and certainty about its forecasts.
My Lords, I hope that the Minister will be able to help me and, I guess, quite a number of other people in the country. If, as the chairman of the FSA, the former president of the French central bank and others who have produced reports say, the fundamental cause of the current crisis was interest rates being held too low, an expansion of monetary policy, excessive debt, excessive borrowing and people spending beyond their means, how can it be that more borrowing and lower interest rates are part of the solution and not part of the problem? Do the Government take no responsibility for having held down interest rates? As far as gearing and excessive debt are concerned, were their policies—for example, cutting the effective rate of corporation tax to 10 per cent for private equity and others—not partly responsible for this? Would not the Government have more credibility at these summits if they were to acknowledge the error of their ways and the part that they played in getting us into this mess? Would that not be the way to achieve any recognition of their abilities to get us out of this mess?
My Lords, I have seen no real evidence that the people identified by the noble Lord, Lord Forsyth of Drumlean, said that monetary policy was the root cause of the global crisis. There is much more evidence that people whose views one respects in this area recognise that global imbalances were the core source of the problem. Global imbalances as a consequence of the high productivity of developing nations, together with their low propensity to consume, coming after the Asian banking crisis at the end of the previous millennium, meant that large credit balances were produced in the developing world, which fed the insatiable demand for products produced by the developing world. The developed world manifested a sense of, “I must have it and I must have it now and, if necessary, I will borrow”, and the large global imbalances meant that it was possible for people to borrow on what appeared to them to be attractive terms. This was not monetary policy; this was a consequence of trade imbalances.
As to admissions for failure, it must be abundantly clear from the G20 communiqué that this is a global problem and has nothing to do with the UK alone; indeed, our experience is being shared by many other countries. We are committed to working with other countries in the G20 to address these issues and to ensure that we minimise the damage being done by this global crisis.
My Lords, I support what the Minister said about protectionism and trade policy and, indeed, I support the very good article that the noble Lord, Lord Mandelson, put in the Times this morning on that subject, but does the Minister accept that there is a real credibility problem? In November, as the noble Baroness said, the G20 Prime Ministers committed themselves strongly to avoiding protectionism and called for an early meeting of Ministers to complete the Doha round. Alas, the meeting of Ministers never took place and the pledge to avoid all protectionist measures was honoured as much in the breach as in the observance. There is a real credibility problem if the best that can be done in April is just more warm words about trade and resisting protectionism and no specifics of any kind. Is there any possibility of getting some kind of monitoring mechanism that holds the G20 to its statements about avoiding protectionism? Is there any prospect of a firm sense of direction about the rather rudderless Doha round, whose revival is, I think—and I imagine from what he said that the Minister would think—is an absolutely necessary part of the revival of the world economy?
My Lords, I, too, enjoyed reading my noble friend’s article in the Times this morning. The noble Lord, Lord Hannay, is right to draw attention to the arguments that my noble friend made in that article and in other statements that he has made about his personal commitment to the Doha round. I anticipate that this item will be on the agenda for the G20 meeting in London in three weeks’ time. At their meeting over the weekend, the Finance Ministers reviewed the progress that had been made in the commitments to address the risk of protectionism and concluded that, on the whole, good progress had been made. However, insidious forms of protectionism are beginning to creep in and we need to be alert to them. My right honourable friend the Prime Minister will take encouragement and strength from the observation of the noble Lord, Lord Hannay, in respect of the need to be vigilant in addressing the risks of protectionism.
My Lords, I invite the Minister to return to the point raised by the noble Lord, Lord Higgins, in relation to tax avoidance and evasion. The Minister will recollect that the words, “Evasion is unlawful, avoidance is lawful”, were spoken by the greatest of all tax lawyers, Lord Merriman. While appreciating as a moral precept that both are to be condemned, can the Minister place himself in the position of a trustee who is responsible for the expenditure of millions of pounds in regard to his beneficiaries every year and is seeking the advice of learned counsel or solicitors as to whether he should indulge in a scheme that is an artificiality—not a culpable transaction, not something that smells, but a clear artificiality? Does the Minister say that artificialities are to be regarded as evasions and therefore criminal? Or will those remain and what he is really attacking is the grey area that is near to evasion?
My Lords, I have already touched on this point. I do not think that, in practice, there is a clear point at which most boards or trustees can say that that is the end of avoidance and this is the beginning of evasion, not least because many of these issues would need to be tested in a court of law. My experience is that companies that have a responsible approach to tax management build into their policies a statement that they will not use strategies that they believe are likely to be challenged by the Inland Revenue. They will also take full advantage of the facility that the Government have established for companies to discuss tax strategies with the Inland Revenue and to form a view with it on whether the tax strategy is acceptable.
I believe that there is a good possibility of a code being effective; it is certainly worth trying. However, I also recognise that there issues that HMRC will need to continue to develop in order to ensure more clarity. HMRC will need to be alert to the fact that innovative and ingenious schemes that seek to undermine the fiscal threshold will always be developed. This is a battle that may never end but it is one in which we should use as wide a range of instruments as possible. Morality plays an important part in this process. Companies that engage in wholly artificial structures, often involving dozens of trusts, companies and Anstalts, in order to avoid tax need to say, “How do I look to those in my society? Can I defend the fact that these strategies are placing at risk important programmes?”.
Employment Tribunals Act 1996 (Tribunal Composition) Order 2009
Motion to Approve
My Lords, this order will enable employment tribunal proceedings relating to leave entitlement under certain working time regulations to be heard by an employment judge sitting alone. Employment tribunal panels usually consist of a legally qualified employment judge and two lay members, one each from the employee and employer sectors. However, since the mid-1990s there have been specific instances, set out in the Employment Tribunals Act 1996, where an employment judge can sit alone to decide a case. Initially this power applied to claims including breach of contract and unauthorised deductions from wages. Claims for redundancy payments and certain national minimum wage claims were added to the list from 1 August 1998 and 1 April 1999 respectively.
Today’s order adds a further category, referred to as “holiday pay”. Again, it covers simple monetary matters and relates to leave entitlements under the working time regulations. Straightforward monetary disputes typically involve clear issues of law where there is no dispute over the facts. In such cases a lay member’s practical experience of the workplace is less relevant. Consequently, the Government, and the majority of our stakeholders, view this order as a sensible measure that will enable the most productive use of the precious time of lay members.
Lay members make an immensely important contribution to employment tribunals. They bring an understanding of the realities of the workplace from the perspective of both employers and employees. During the passage of the Employment Act last year, there was widespread support among Members of both Houses for their role. My noble friends Lord Wedderburn and Lady Turner raised a number of valuable points, for which I am grateful. I apologise to my noble friends for an oversight by the department in not consulting them before this measure was tabled, as was promised by the noble Lord, Lord Jones. The request was not conveyed directly to the department and Ministers. However, we would have wished to consult them, and I hope they will accept this apology.
I know that my noble friends are concerned that there should be no diminution of the role of lay members and I can assure the House that this order will not undermine their valuable contribution. Indeed, as employment tribunals continue to see rising numbers of individual claims it is important that lay members are involved in these cases where their skills and experience can bring most benefit.
During 2007-08, 3,000 holiday pay cases were disposed of by an employment tribunal. Some would not have been suitable to be heard by a judge sitting alone but many would. This order will free lay members to sit on more complex cases instead, allowing them to be heard sooner.
The majority of respondents to the Government’s consultation last year agreed that lay members’ time could be better used. The Council of Tribunal Members’ Association said that it had no objection in principle to this measure provided that appropriate safeguards were in place. I can assure the House that such safeguards are already in place for cases where an employment judge can sit alone, and these will apply equally to cases concerning holiday pay.
When deciding whether a case should be heard by a judge sitting alone or by a full tribunal, an employment judge must consider the circumstances of the case and the views of the parties involved. A judge may also decide at any stage that a case should be heard by a full tribunal; for example, if the facts of the case are likely to be disputed.
The order is part of broader efforts to simplify and improve the dispute-resolution framework. In addition to today’s measure, we are expanding the confidential and impartial ACAS helpline. It is available to answer specific employment questions and to provide advice on resolving workplace disputes. From April, ACAS will offer, in appropriate circumstances, a free pre-claim conciliation service, accessed via the helpline, to employees and employers unable to resolve their disputes.
For the reasons that I have outlined, the Government believe that the reform is a sensible addition to the jurisdictions that can be heard by a judge sitting alone. We are confident that it will ensure that the valuable expertise that lay members bring to the tribunal process is used where it can add greatest value. On that basis, I commend the order to the House.
My Lords, I thank the Minister for introducing the order. We understand that it represents a shift towards a less rigid adjudication of holiday-pay disputes. As such, I cannot see that we would have a major problem with it. However, I will ask a few general questions.
The 2007 Gibbons review made 17 recommendations. Will the Minister say which of these have been implemented to date? The Gibbons review found that the average cost to a business of defending an employment tribunal claim was £9,000. In the light of this significant figure, what plans have the Government to address the problem of vexatious claims, particularly against small businesses that can ill afford them?
The noble Baroness will be aware that the Federation of Small Businesses has called for a moratorium on the implementation of new employment laws due to come into force on 6 April, until the next implementation date of 1 October. The federation says that these laws could cost small businesses nearly £800 million a year and will put more financial pressure on already struggling companies. The FSB is concerned that firms will be unable to retain staff—or employ extra staff—if they are burdened with such new legislation. Have the Government met the FSB to discuss its request, or have they given it any consideration; and if so, what is the likely outcome?
My Lords, the adding of a fifth category, best summed up as cases relating to holiday pay where employment tribunal proceedings may be heard by an employment judge alone, completes some of the work outstanding from the Gibbons review, and is welcomed on these Benches.
It has been 10 years since the last updating of this kind. Do the Government envisage any further changes to the rules on employment tribunal composition in the next few years? If the Government have in mind areas where this power might be used again in future, will they guarantee that a full and comprehensive consultation will again be carried out before any such proposals are brought to the House for consideration?
My honourable friend the Member for Solihull raised concerns in another place about the initial decision on whether a full tribunal is necessary, and whether the decision can be reversed if a case appears more complex than was first thought. The guidance from the Minister suggests that the judge will take the decision, taking into account the views of both parties. Will the Government issue any guidance to employment judges to assist them in coming to a decision when one party prefers a full tribunal and the other prefers a single judge? As the Minister has indicated, there is a danger that the party against whom such a decision goes could feel aggrieved, particularly if they had sought a full tribunal and a lone judge was eventually selected. That could have damaging consequences for the rest of the tribunal hearing. We hope that such situations could be avoided as far as possible. If the Minister can reassure us on these matters, we shall be happy to support the measure.