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Marine and Coastal Access Bill [HL]

Volume 710: debated on Tuesday 5 May 2009

Report (1st Day) (Continued)

Amendment 62

Moved by

62: After Clause 45, insert the following new Clause—

“Suspension pending review

(1) This section applies if a policy authority thinks that the condition in subsection (2) or (3) is met.

(2) The condition is that—

(a) since the time when an MPS was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the MPS was decided; (b) the change was not anticipated at that time; and(c) if the change had been anticipated at that time, any of the policy set out in the MPS would have been materially different.(3) The condition is that—

(a) since the time when part of an MPS (“the relevant part”) was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the relevant part was decided;(b) the change was not anticipated at the time; and(c) if the change had been anticipated at that time, any of the policy set out in the relevant part would have been materially different.(4) In the case of an MPS prepared by the Secretary of State acting alone, the Secretary of State, or in any other case the policy authorities in question, may suspend the operation of all or any part of the MPS until a review of the statement or the relevant part has been completed.

(5) In the event of suspension under subsection (4) the designation of an MPS of the statement or (as the case may be) the part of the statement that has been suspended is treated as having been withdrawn and the provisions of section 46 shall apply.”

My Lords, in moving Amendment 62, I shall also speak to Amendments 74, 75, 81, 87 and 88.

The first of these amendments is similar to an amendment to which I spoke in Committee, so I will not explain the detail of the clause, but I will say, as I said then, that it is lifted from Section 11 of the Planning Act, which provides for a suspension of the policy statement in the event of an unanticipated change in circumstances.

In Committee, the noble Lord, Lord Davies of Oldham, said that there was a distinction between the marine policy statement and the national policy statements in that national policy statements are to be used primarily by a single body, the IPC indeed, primarily, but not exclusively, in decisions on a small number of projects. I accept the differences in those circumstances, but it is important to have a mechanism for suspension as well as for review, so I could not resist putting down Amendments 62 and 81, which would apply to marine plans in order to cover—I am sorry, but no pun is intended here—all the ground.

In Committee, the Minister was rightly concerned about certainty for everyone who is involved in the process, including applicants, and in terrestrial planning. We have always acknowledged that that is important, but should certainty prevail if it is the wrong certainty—in other words, if circumstances have changed and made it the wrong certainty?

My Amendments 74, 75, 87 and 88 are about the criteria that apply to decisions; criteria for departing from a policy. We debated at some length “material considerations”—the term that is used in terrestrial planning—and I am grateful for the Minister’s letter, which I received after Committee and which deals with what the Government consider to be an equivalent provision: “relevant considerations” the term that is used in the Bill.

I appreciate that there will be guidance, as the Minister’s letter was careful to explain, on what the relevant considerations will be and which considerations should or should not be regarded as relevant. Guidance cannot alter primary legislation, however, so my concern that something that can be relevant but not significant has not been allayed.

The Minister’s letter says that the context would make matters clear, and goes on:

“I believe that it is clear from the drafting that insignificant or trivial matters will not be sufficient to override the general principle of decisions being taken ‘in accordance with’ the MPS/plan: the considerations before the decision-maker must actively indicate that the decision should not be taken in accordance with the plan. I would not consider it sufficient simply to say, for example, that there was ‘another option available’”.

I think that was dealing with some of the drafting in my amendment in Committee. He said:

“The guidance we produce will obviously make this very clear”.

I am not reassured by that; Clause 49(5) requires “conformity”, which I assume is general and not a strict conformity. How, therefore, can guidance shift the emphasis as he suggests?

I thought that the next paragraph of his letter rather made my point for me. It said:

“We will aim as far as possible to give an indication in that guidance of the relative weight that should be given to different kinds of considerations. However, as the debate recognised, this will not always be possible because the ‘relevance’ and significance of different considerations will depend to a large extent on the decision in question, the site affected, and the potential impact of the ‘relevant consideration’ on both the project in question and the future possibility of achieving the plan’s objectives. The consequences of the departure from the plan will also need to be borne in mind as a ‘relevant consideration’ in their own right”.

He ended by referring to having enough “flexibility” for the real world. I want that too, but not so much flexibility that we lose the prize of certainty. I remain concerned that there will be too much reliance on guidance getting it right when, if there is a crunch, reference will be made to the primary legislation. Guidance will be referred to, but will not override what is said in what will be the Marine and Coastal Access Act. I beg to move.

My Lords, I have some sympathy with Amendment 62, proposed by the noble Baroness. If something in the marine policy statement is going to lead to bad decisions, and if that is then recognised, as things stand the mechanism is that there will be a review to try and update it. I think that this amendment is trying to say, “All applications must be suspended until we’ve got this right. Because we don’t want the applications in the pipeline to be based on those bad decisions, let’s suspend part or all of the MPS until the review has taken place and the right framework is put in place”. I support this amendment; there has to be some sort of mechanism for getting this right, either in the Bill or within guidance. I will be interested to know how the Minister proposes to deal with this.

My Lords, as the noble Baroness and the noble Earl have suggested, this group of amendments covers two interrelated issues. First, it covers the test for when a marine plan need not be in conformity with a marine policy statement or a decision may be taken other than in accordance with the MPS or a marine plan. There is also the question of suspending the MPS or plan while it is reviewed. I recognise that we debated these matters in Committee; I shall deal first with Amendments 62 and 81, which would introduce new powers to suspend the operation of all or part of the MPS or a plan while it is reviewed.

The noble Lords have again raised a question that we discussed in Committee, of the contrast between how this is dealt with in the context of national policy statements under the Planning Act, and how we would deal with these matters under the MPS or plans. I know the noble Baroness thinks that, under the MPS, we ought to have the power of suspension in the circumstances that she and the noble Earl have described.

Our problem is the impact and the number of public authorities and decision-makers which would be affected by a suspension of the MPS or marine plan. We think that it would be vast in comparison with the effect on the IPC, a single body, of suspending a national policy statement. Our worry is that it would be unreasonable to expect such a wide range of public authorities, including local authorities, coastal regulators, enforcement bodies and others, to keep a constant check on which parts of a plan or policy statement were in effect at any given time. We do not accept that it is necessary formally to suspend part of a policy statement or plan in order to review or amend it, even if, as the noble Earl, Lord Cathcart, has suggested, we are aware that it has shortcomings.

In that situation, we would expect the policy authority or marine plan authority to make it known to the relevant decision-makers that their policy on a certain matter had moved on or was being reviewed. This would constitute a relevant consideration for decision-makers and marine users without the need to suspend any part of the document. It also places the emphasis on the policy or plan authority to ensure that affected decision-makers are aware, rather than expect all decision-makers to keep constant vigilance.

It might be helpful if I explain the difference we envisage between a review of a national policy statement and a review of the marine policy statement, which is directly linked to the question of suspension. The Planning Act contains detailed provisions on the review of national policy statements. Before beginning the review, the Secretary of State must consider whether circumstances have changed since the adoption of the policy statement in a way which was not anticipated at the time and whether the policy set out in the document may have been different had that change been foreseen. Following the review, the Secretary of State must make a decision on whether to replace or amend the national policy statement or to do nothing.

In contrast, under this Bill, there is no formality connected with the review of the MPS. Therefore, the policy authorities are under a duty to review the MPS when they consider it to be appropriate, which essentially gives more flexibility. In practice, we would expect the review of the MPS to be a continuing activity for all the policy authorities to ensure that the MPS remains up to date and that the policies within it continue to contribute to the achievement of sustainable development in the UK marine area. This mechanism also enables the MPS to stay fully in effect while an amendment is being prepared. The progress of the preparation of that amendment will also be a relevant consideration, enabling decision-makers to take greater account of the emerging new policy as it moves towards finalisation and adoption.

It certainly is not the case that we would expect flawed policy to continue to be applied without question, which brings me to the other amendments in this group relating to the relevant considerations test. In Committee, we discussed the circumstances under which decision-makers and planners might cite relevant considerations, and we found some common ground on the kinds of things which were likely to be relevant considerations.

I also appreciate the noble Baroness's concerns that the word “relevant” does not equate to “significant”. But we have problems with her amendments which we believe would impose a higher threshold under this Bill than has been used successfully for many years in terrestrial planning legislation. Let me be clear: the existence of other considerations which may be relevant to the decision at hand is not the end of the test. Those considerations must also indicate that a course of action other than that indicated by the MPS or plan is, in this case, more appropriate. What is more, the consequences of not following the policy statement or plan should also be considered as relevant in their own right.

Again, I fully accept that the noble Baroness is right when she says that something may be relevant without being important. If that is the case, it would not be sufficient to indicate that the MPS or plan should not be followed. Decision-makers departing from the MPS or plans must give their reasons. I assure noble Lords that we will want to monitor this flexibility closely to ensure that it is being used and not abused. I give an assurance from the Dispatch Box that this matter will be closely monitored. I also make it clear that insignificant or trivial matters will not be enough to override the clear general principle that decisions should be taken in accordance with the MPS, or that plans should conform to the MPS.

We are debating how precise the situation should be and how much flexibility should be left in guidelines. I know that the noble Baroness is worried about the guidance. We are committed to consulting and providing guidance on the issue. As I said in my letter, we will attempt, as far as possible, to address the relative weight that is to be given to potential relevant considerations. The problem is that the noble Baroness would much prefer this to be in the Bill but that is very difficult to do. There will always be case-by- case decisions. The relative weight of a consideration will depend as much on the circumstances of the case as the question of what is relevant in the first place. That is why I said that we would attempt to give some general principles and broad priorities in so far as they are not already set out in the MPS or plan.

The matters that have been raised are very legitimate. I doubt that we can give the precision that the noble Baroness seeks, but I hope she will accept my assurance that this will be monitored to make sure that trivial reasons are not used in the way that is feared. Also, there is a significant difference between the MPS and the NPS as regards suspensions. The MPS is, in essence, a more flexible mechanism, which will allow changes to be made more quickly than they would be in relation to the NPS. I hope the noble Baroness and the noble Earl will accept that, in resisting the amendments, I very much understand the points that they are making. I hope I have given some reassurance.

My Lords, of course I accept the Minister’s reassurance. My concern is whether it is adequate. That is not at all to be pejorative of the Minister; I am sure that he will understand that. It is a question of the relative status of legislation and guidance. As regards suspension, a review and possible alteration will inevitably take time, not least because of consultation. If consultation means anything, it means that there must be at least two options, otherwise what is there to consult on? There must be the option of doing something and of not doing something. That is in the context of suspension as a measure that might have to be applied, pending review.

Of course, we will read what the Minister has said about relevant considerations because the detail in that is very important. I am pleased to have it on the record, because others may need to make reference to it. I am not immediately wholly convinced, but I feel more comfortable than I did an hour ago. I beg leave to withdraw the amendment.

Amendment 62 withdrawn.

Schedule 5: Preparation of an MPS or of amendments to an MPS

Amendment 63 not moved.

Amendment 64

Moved by

64: Schedule 5, page 228, line 23, leave out from “be” to “paragraph” in line 24 and insert “allocated for legislative scrutiny of the consultation draft under”

My Lords, I shall also speak to the other government amendments in this group, but I shall hold my fire until the Opposition have had the opportunity to present their amendment before I respond to it. It would be unfortunate if I pre-empted what are cogent arguments on the Government’s side before we had heard the Opposition’s case, so I shall not comment on Amendment 83 at this point; rather I will concentrate on the government amendments, which I am sure will find favour.

Amendment 68 is the crucial one in the group. It reflects the fact that, when we debated an amendment tabled by the noble Lord, Lord Taylor of Holbeach, in Committee, it became clear that there was some ambiguity in the wording of the Bill on the timescale available to the legislatures to scrutinise the marine policy statement. We explained then that it was not our intention to curtail the time that the legislatures would have to consider the marine policy statement to just the public consultation period and we promised that we would look at this again.

Amendment 68 and the other related amendments are a reflection of that further consideration. We have proposed amendments to Schedule 5 to make it clear that the period allocated to an appropriate legislative body or appropriate legislative committee for legislative scrutiny of the consultation draft will be specified by the policy authority. Amendments 67 and 69 make consequential changes to paragraph 9, while Amendment 64 makes a similar change to paragraph 5, as it sets out that the statement of public participation must state the period allocated for legislative scrutiny. I beg to move.

My Lords, I have tabled Amendment 83 in this group, but I feel that I may be letting everyone down because, having seen the government amendments, I do not have great arguments to put forward. My amendment spells out the devolution arrangements, but it is a matter for the legislative bodies in each of the four jurisdictions how they deal with them. As long as we are assured that nothing in the legislation would prevent the arrangements as spelt out in my amendment, I suppose that I am content and I dare say that the Minister can say that the noble Baroness is right.

My Lords, I thank the Minister for these amendments, which address the concerns that we raised in Committee. It is always reassuring to see an area of confusion cleared up and I thank him for that.

My Lords, when the Minister comes to respond, will he clarify whether the government amendments pick up the point made in the amendment tabled by my noble friend Lady Hamwee? Subsection (1) in her amendment indicates that there would be an opportunity for the appropriate body to have regard to a proposal to withdraw a marine plan. In the Bill as it stands, the relevant authorities can go through a long process of agreeing a marine plan, but the following day one of them could withdraw by simply putting a notice in the London Gazette or the Edinburgh Gazette. I am certain that my noble friend’s amendment would make provision for the appropriate legislative body to carry out some scrutiny if there was a proposal to withdraw a marine plan and I wonder whether the proposals being brought forward in the government amendments also provide for scrutiny in the circumstances of withdrawal.

My Lords, I am grateful to the noble Baroness for agreeing that the government amendments meet the main objective of Amendment 83 and of the discussion that we had in Committee on this matter. On that basis, of course, the Government are pleased that the amendments will be supported and that it is felt that Amendment 83 is not essential.

The noble Lord, Lord Wallace, will recognise that the government amendments relate to scrutiny of the marine plans; that is the area that we are considering. It will be appreciated that the government amendments fulfil the concern that was expressed about the time that legislatures would have for this effective scrutiny. The original drafting of the Bill looked to have unduly curtailed that time and we have now made provision to go beyond the public consultation period and for the authorities to make up their own minds on the amount of time that they need for effective scrutiny. I hope that the noble Lord, Lord Wallace, will recognise the fact that that is the framework within which the government amendments have been tabled; they are a response to that debate in Committee.

I should make it clear that we are talking about the scrutiny of the marine policy statement. That is where the legislatures will have sufficient time for proper consideration of the statement. We never intended to restrict that. It was pointed out to us that the way in which the Bill was framed produced a restriction on the time; we are taking that away. The legislatures will make up their own minds about the scrutiny process and the time that they require. I hope therefore that the noble Lord, Lord Wallace, will recognise that these amendments have responded to what was the heart of the debate in Committee.

Amendment 64 agreed.

Amendment 65

Moved by

65: Schedule 5, page 228, line 33, at end insert—

“Sustainability appraisal6A (1) The relevant authorities must carry out an appraisal of the sustainability of their proposals for inclusion in the relevant document.

(2) The relevant authorities may proceed with those proposals only if they consider that the results of the appraisal indicate that it is appropriate to do so.

(3) The relevant authorities must publish a report of the results of the appraisal.

(4) The report is to be published when the relevant authorities publish the consultation draft under paragraph 7.”

My Lords, this group relates to an issue that was considered at some length in Committee. Amendment 66, in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, would require that an appraisal of sustainability be carried out on the marine policy statement and that this should be incorporated within the requirements of the strategic environmental assessment directive and other relevant directives.

We said in previous debates that appraisal of sustainability is inherent in the production of the marine policy statement. However, in recognition of the concerns expressed by noble Lords on this matter, our amendment will place a requirement on the authorities to carry out an appraisal of sustainability of the marine policy statement. My Amendment 65 requires that the relevant authorities carry out an appraisal of the sustainability of proposals for inclusion in the marine policy statement, that they should proceed only if the results of the appraisal indicate that it is appropriate to do so and that they should publish a report of the results alongside the consultation draft. The wording is the same as in Schedule 6 on marine plans.

Whether or not the SEA directive or another directive, such as the birds and habitats directive, applies will depend primarily on the content of the marine policy statement and the extent to which it contains site-specific policies that could be identified as likely to have an impact on environmental features. We are committed to complying with these directives should they apply, but we do not think that an explicit reference to them in the Bill is necessary. If the directives apply, we already have a legal obligation to comply with them and it is therefore not necessary to duplicate that in the Bill. I hope that noble Lords will feel that Amendment 65 goes some considerable way towards meeting the concerns expressed in Committee. I beg to move.

My Lords, the Minister referred to our Amendment 66. He used two slightly different phrases, one of which was the one that, when he used it at a previous stage, led to the wording in sub-paragraph (2). He pointed out that the Government would follow the law in the case of this particular directive or of any other. I am glad that he confirmed that just now when he said that the Government were committed to complying. That sounds more like a political commitment than a legal one, although obviously one wants both. I am glad that he has confirmed the legal commitment. He also pointed out in Committee that the directive might be changed or replaced and there might be other directives. That was one of the bases on which our amendment was criticised and it is why I worded sub-paragraph (2) in this way. I recognise the step that the Government have taken in their Amendment 65.

My Lords, once again I thank the Minister for listening to the concerns of this House and bringing back an amendment to ensure that the relevant authorities must carry out an appraisal of sustainability in the MPS, and for setting out the Government’s legal obligation to comply with the directives.

Amendment 65 agreed.

Amendment 66 not moved.

Amendments 67 to 69

Moved by

67: Schedule 5, page 229, line 22, leave out “relevant period” and insert “period allocated to it for legislative scrutiny of the consultation draft”

68: Schedule 5, page 229, line 31, leave out sub-paragraph (6) and insert—

“(6) The period allocated to an appropriate legislative body or appropriate legislative committee for legislative scrutiny of the consultation draft is such period as the policy authority may specify.”

69: Schedule 5, page 229, line 33, leave out “relevant period in relation to” and insert “period allocated for legislative scrutiny of”

Amendments 67 to 69 agreed.

Amendment 70

Moved by

70: After Clause 46, insert the following new Clause—

“Report on MPS

(1) Each policy authority must, no later than 31 March each year, lay before the appropriate legislature a report setting out—

(a) how, in the opinion of the authority, the MPS has been carried into effect; (b) any further steps which, in the opinion of the authority, are required to be taken in order to contribute to MPS being carried into effect.(2) The report must also contain the following information—

(a) information about any amendments which the policy authority has made to the MPS;(b) an assessment of the effectiveness of the MPS; and(c) any further steps which, in the opinion of the policy authority, are required to be taken in relation to any MPS in order to achieve its objectives.(3) In this section “the appropriate legislature” means—

(a) in relation to the Secretary of State, Parliament;(b) in relation to the Welsh Ministers, the National Assembly for Wales;(c) in relation to the Scottish Ministers, the Scottish Parliament; and(d) in relation to the Department of the Environment in Northern Ireland, the Northern Ireland Assembly.”

My Lords, I shall speak also to Amendment 84. Amendment 70 seeks parliamentary scrutiny through a report being made to Parliament on the marine policy statements. The parallel provision in Amendment 84 relates to parliamentary scrutiny based on reports on the marine plan.

To pick up on the debate two sets of amendments ago, the steps that have been taken, which the Minister referred to, are very welcome. Perhaps there was some confusion—my noble friend’s amendment in that grouping related more to the marine plan than to the MPS—but some of the points remain relevant. Here we are seeking that there should be a report to the appropriate legislatures on an annual basis in connection with the marine policy statement and with regard to the marine plan, so that the appropriate authorities have an opportunity to set out the extent to which the MPS or the marine plan has been carried into effect and to say whether they believe that it is adequate, whether further steps are needed to ensure effective execution of a plan or whether more is required to give substance to the marine policy statement.

Much of what we have discussed in these debates, both in Committee and today, relates to work that will be done principally by Secretaries of State, Scottish Ministers, the devolved Administrations in Northern Ireland and Wales or public bodies such as the MMO. It is important that we remember the parliamentary dimension to this, especially given the length of time that we have devoted to these subjects, which are clearly of considerable importance; I do not think that anyone who has taken part would doubt that. That is why it is important that Parliament should have a regular opportunity to examine whether the mechanics and the framework that we are putting into place in the legislation are bearing the fruit, having the oversight and carrying forward the approach to marine conservation and the treatment of our marine resource in the way in which we as parliamentarians would wish them to.

I say that also in the context of agreement with the devolved Administrations. It is very much to be welcomed that, in an area of considerable complexity, an agreement was reached. That shows that that can be done where good will applies. It was 10 years ago this week that we elected a Scottish Parliament and, indeed, a Welsh Assembly. We had executive devolution before then in the guise of the Scottish Office and the Welsh Office. What the people of Scotland and Wales voted for was some democratic oversight of that devolution. These amendments would at least give an entrée for the respective Parliament and Assembly to have oversight as to what Ministers are doing in pursuance of either an MPS or a marine plan.

Following the precedent set earlier by the noble Lord, Lord Davies, I will not prejudge Amendment 92 in the group, which seeks a report on a three-yearly and, in some cases, a six-yearly basis. I think that it would be better to have it yearly. However, I note that Amendment 92 says:

“see subsections (3) to (7) … see subsections (8) to (11)”.

That is a novel form of drafting. I cannot remember seeing that previously in a Bill. It may be something to be welcomed. I am all in favour of trying to put things into more readable English, rather than saying “subject to”, “notwithstanding” or whatever. Perhaps he could explain whether this is a novel departure that we should perhaps be welcoming. I beg to move.

My Lords, the amendments of the noble Lord, Lord Wallace, have reopened an area about which, judging from the other amendments in the group, the Government have had concerns. I should like to thank the Law Society of Scotland for putting this forward; I believe I received a prompt from it on that score. The amendment tabled looks so much neater than the raft included in the six tabled by the Government.

I differ from the noble Lord only in that I think the Government in their Amendment 93 are really proposing a much more practical approach where the reports are spaced out as up to three years. There is always a great danger in allowing politicians to meddle too much with organisations that are trying to evolve and carry out consistent policies.

My Lords, I do not think that there is any disagreement in principle; it is really a question of the years. I am grateful to the noble Lord, Lord Wallace, for his commendation. I would not like to claim that it is an entirely novel approach, but I certainly agree with him that it is very helpful to us trying to find our way through legislation. It is an example that one would like to see followed in the future.

I agree wholeheartedly with the principle of building in a parliamentary dimension. The noble Lord, Lord Wallace, and the noble Duke are right to suggest that the debates we have had on the Bill show that there is intense parliamentary interest in the marine environment and ensuring that the provisions of the Bill are enacted appropriately. I have no doubt whatever that there will continue to be great interest. Therefore, we need to make sure that Parliament has opportunities to monitor effectively. Given the amount of secondary legislation that will come forward, there will be ample opportunities over the next year or two for Parliament to be kept appraised of the way in which the legislation will unfold.

In relation to these particular amendments, we think that this is an important matter. My Amendments 92 to 97 build on a proposal put forward in Committee by the noble Baroness, Lady Young. That would have required, as the other amendments in this group do, annual reporting to Parliament on the implementation of marine planning. It was suggested that would place marine planning authorities’ activities under greater scrutiny and act as a gentle spur. We accept that point. It will make legislators and the public more aware of progress on marine planning and allow them to apply pressure if they consider it falls short.

Amendments 70 and 84, tabled by the noble Lords, Lord Wallace and Greaves, also introduce reporting requirements on how the marine policy statement of each marine plan respectively has been carried into effect, amendments made and further steps to be taken. The issue of the timing is this: we expect that a single marine plan and the marine policy statement will take around two years to prepare. The concern that we have on annual reporting is that it might be too onerous and not particularly helpful because of the cycle in the production of marine plan and marine policy statement. The noble Duke, the Duke of Montrose, referred to that too. That is why we have come up with our own six-yearly reporting, which we think meets the cycle. It will enable these reports to be combined with those required on progress made in implementing the programme of measures required for each region under the marine strategy framework directive. Recognising, from my time of speaking on constitutional affairs at the Ministry of Justice, some benefits in legislation ceasing to operate after a certain time, we have also suggested this duty cease in 2030, by which time we will expect marine planning to be established. Having a sunset clause of this type ensures that the reporting duty does not continue indefinitely, if, for instance, the marine strategy framework directive is amended or revoked.

At heart there is no disagreement on this. It is a question of whether the reporting mechanism is right. For the reasons stated, we think that annual reporting is just too onerous, which is why I hope that the House will accept my amendments.

My Lords, at heart here, as was echoed by the noble Duke, the Duke of Montrose, is the key principle of parliamentary oversight and scrutiny. That principle is well established and agreed among the parties. We could debate the length of time; I hear what the Minister says. It would certainly not be my intention, the principle having been established, to test the will of the House on one, three or six years. However, it is important and I welcome the amendment on the Government’s part that there will be that kind of reporting and parliamentary scrutiny, for which some of us were calling in Committee. In these circumstances, I beg leave to withdraw the amendment.

Amendment 70 withdrawn.

Clause 49: Marine plans for marine plan areas

Amendment 71

Moved by

71: Clause 49, page 24, line 29, leave out “may” and insert “must”

My Lords, this amendment takes us to the clause about marine plans for marine plan areas. It must be the time of night, but when I read that a moment ago I wondered where else they would be for. In Committee, your Lordships rejected a requirement that marine plans must be in place by 2012. We thought that the noble Lord, Lord Taylor, who moved the amendment in Committee, was right about the requirement for plans but that 2012 was over ambitious. My Amendment 71 changes “may” to “must”. One day I will understand why “may” meaning “must” is the right term. I have not yet.

The linchpin of the Bill seems to be marine plans. It is counterintuitive, at any rate to me, that Clause 49 is permissive and not mandatory. We see plans not simply as restrictive but as establishing what can be done where, taking into account the sometimes competing or incompatible potential activities. It is important that there are plans, not least to establish the extent, if there is any extent, of an activity to which some people may object and object very strongly—for example, wind farms. It is all a matter of balance, which we discussed at the previous stage. It is not obvious to me how there can be a balance if there are gaps in the patchwork of plans.

We have not included a long-stop date. However, to anticipate a possible argument from the Government, we do not regard that as making the amendment meaningless because there must come a point, which probably depends on circumstances, at which a marine plan authority, which has dragged its feet for so long in not producing a plan, is in breach. I believe that a court would see it that way. I suppose that is the test that one must always have in mind.

Amendment 73, which states that,

“A marine authority must create a marine plan or plans for the whole of its marine planning region”,

is a little stronger than Amendment 72 in the name of the noble Lord, Lord Taylor of Holbeach, who uses the words “seek to ensure”. It is not an absolute obligation. Amendment 73 goes further. A moment ago I referred to a patchwork and this would ensure blanket coverage. Amendments 71 and 73 go hand in hand.

At the previous stage, in response to my noble friends Lord Greaves and Lady Miller, who had been chipping in on this debate, the noble Lord, Lord Davies of Oldham, said:

“Until we start to create plans we cannot be sure how extensive the coverage will need to be, so it is better not to prejudge the issue in legislation by requiring total coverage”.

My noble friend Lord Greaves quite rightly came back with the comment that,

“the plans deal with the issues to a greater or lesser degree of detail according to the circumstances in their area. That is not to argue against having a plan for an area; it is just that there is not as much in that plan”.—[Official Report, 10/2/09; cols. 1074-75.]

My noble friend was absolutely right. I hope that the Government will not resort to that argument again. I beg to move.

My Lords, as the noble Baroness, Lady Hamwee, has pointed out, my amendment in this group follows on from the debates in Committee. As the noble Baroness has told the House, at that stage we voted, but unfortunately lost an amendment to the Bill which would have inserted a duty and timetable to roll out marine plans over the whole marine area. Therefore, this is about our ambition for the Bill and our wish that the Government share that ambition. The Minister made several objections to our amendments, one of which was that there were limits to what duties he could place on the marine authorities. In bringing back this weaker amendment, we have listened to that concern and seek to insert only a requirement to acknowledge the desirability of covering the whole of marine planning regions with a plan.

Despite the efforts made by everyone to prevent unnecessary repetition on Report, following our very extensive debates on this part in Committee, many of the organisations involved in these proceedings have again raised their concerns about this point: not only the voluntary organisations which are members of the Wildlife and Countryside Link group and the Wildlife Trusts and the RSPB, but also the Countryside Council for Wales, the British Wind Energy Association and the Environment Agency. This is not surprising: marine plans are the key to delivering the policy of sustainable development. We have all spoken in support of an ecosystem approach. Comprehensive planning is the only way to deliver this. We have also all spoken in favour of pursuing a clear and consistent approach to marine management. Indeed, it is in the list of the MMO’s core duties and is the reason that the joint MPS is so important. With no consistency clarified by comprehensive marine plans, what certainty is available to companies wishing to make the high levels of investment needed to meet our renewable energy targets? Of course, the success of the marine conservation zones also depends on universal marine plans. Not only are they areas that will require more detailed plans than any others, they are to be established on a national basis. Decisions must be made consistently across the network if they are to succeed.

The Government have tabled amendments in this area in response to related points we raised in Committee and we are very grateful to them for doing so. Their amendments will ensure that there is greater transparency, which is always a good thing. The ongoing reporting on marine planning might provide an incentive for authorities to produce marine plans, as the noble Baroness, Lady Miller of Chilthorne Domer, suggested in Committee, but this incentive would be better spelt out in primary legislation.

My Lords, I support all three of these amendments, but yet again I incline more towards those tabled by noble Lords on the Liberal Democrat Benches. I am afraid that I am a great disappointment to the noble Lord, Lord Taylor of Holbeach, and to the noble Earl. Noble Lords have said it all but I simply add that marine plans need to cover the whole UK marine area or cherry-picking will arise with the licensing system. Since a large part of a marine plan comprises establishing the database and the baseline on which future decisions can be made, which will help to track the environmental quality of the area, it would be remiss not to opt for a fairly fast process of covering the whole marine area. Therefore, I support the amendments.

My Lords, we debated these matters extensively in Committee and I recognise the strength of feeling about them in the House. However, the Government see difficulties with the amendments we are debating. Amendment 71 would create a duty to plan. In Committee I said that there were difficulties associated with imposing a legal duty to prepare marine plans. For example, if the marine plan authority withdraws from the marine policy statement, or if the marine policy statement is withdrawn by the Secretary of State, or the Secretary of State does not agree to a devolved Administration’s plan, the marine plan authority will be unable to fulfil its duty to plan. In addition, if adopting a marine policy statement brings with it a duty to plan, it could be argued that it might deter some policy authorities from adopting marine policy statements. Therefore, there are genuine difficulties here. I question whether prescribing such detail in the legislation is the right course of action.

Amendments 72 and 73 would lay down that plans should be prepared for the whole of the marine planning region where the marine policy statement governs marine planning. I know that the noble Lord, Lord Taylor, said that his measure is supported by many organisations. However, I am not sure that there is unanimity of view on this matter. Many stakeholders have told the Government that they agree that the system needs to evolve and that we need to learn lessons as we go along. Until we start to create plans, we cannot be sure how extensive the coverage will need to be. We are worried about prejudging the situation by putting this into legislation and by requiring total coverage, whether by a single plan or several.

As there are different planning authorities around the UK, it is for each of them to decide where and when plans are needed and whether they entail full coverage of their planning area. We think that the most important consideration would be to plan the most appropriate way for the area concerned. That would almost certainly involve plans of different scales and sizes containing more or less detail depending on the data available, the needs of the area and the levels of activity requiring management and consideration. There is a question of proportion. There must be a question of how much value would be added by an obligation to prepare plans for the whole of the UK marine area, or even the whole of a marine planning region, particularly in the far reaches of the offshore regions.

In Committee, the noble Lord, Lord Taylor, said that,

“plans must be made in a proportionate manner, varying with regard to the amount of information available and the necessary detail. This would mean that there could be comprehensive plans across the whole marine area, without taking up too much unnecessary time or effort for plans that will remain less detailed”.—[Official Report, 10/2/09; col. 1068.]

That point was made again tonight. It is deceptively inviting to go down that route. While I agree that planning must be proportionate, I am not sure that it is right that one could in certain parts of the marine area be much less detailed. The marine planning process is necessarily intensive and detailed, involving extensive public consultation and consideration of data and evidence. We cannot shortcut this process, which is set out clearly in Schedule 6, without undermining the quality of the plans being prepared and risking losing the confidence of those using the area and the plans. What is more, it is hard to see how such “light touch” plans containing little detail for large areas would be of any benefit for marine users and decision-makers above and beyond the policies already set out in the MPS. To that extent, the MPS can be seen as a strategic-level marine plan for the whole UK marine area. The MPS thus ensures that there is certainly no danger of there being areas of the sea which lack any kind of strategic approach to marine management.

In practice, we expect that planning will be of most value in the inshore area, and I am happy to commit to ensure that we draw up plans to cover the English inshore region. We will put this requirement in the direction on planning that we give to the Marine Management Organisation, with which it is under a legal obligation to comply. The Welsh Assembly Government intend to develop a plan for the entire Welsh inshore region. That should give sufficient reassurance of our intentions on the matter. We have, of course, just debated our proposal to insert a new duty on a marine plan authority to report on the plans it has prepared and its intention regarding their amendment and the preparation of any further plans.

In conclusion, I hope that noble Lords will understand that there is no lack of commitment in taking the legislation forward and wishing to see appropriate plans in place. Although my response has been technical to some degree, there is substance and legitimate reasons behind why I would caution the House against going down the route of these amendments. I hope that the assurance I can give regarding the inshore region of England and our assurance from the Welsh Assembly Government go some way to providing the reassurance that noble Lords would require.

My Lords, I am grateful to the Minister for giving way. Do I understand his reservation to be that he does not see that the whole of the inshore area will be covered by the marine plans; or is it just the fact that this will take time and therefore he wants to have the freedom to make it in bits rather than the whole? Clearly, if one makes it in bits, surely the overall marine plan itself would not be as strong as if it had been made as a complete plan throughout the area.

My Lords, what I have said is that I can give the assurance that we will commit to ensuring that we draw up plans to cover the English inshore region. We can certainly commit to saying that, as the work goes forward, there will be a point where the whole of the English inshore region is covered. My concern goes wider than that. The implication, particularly of the amendment tabled by the noble Lord, Lord Taylor, is that if one goes across the whole area that can be covered by plans, perhaps some of the outer areas can be covered by a plan, because you do not have to do a lot of detailed work.

The point that I am making is that, none the less, you have to go through the process as set out in Schedule 6, which could involve you in a lot of work indeed. We would rather see how this goes and then make further judgments as to how far the plan should extend.

My Lords, I thank the Minister for the explanations. I am not sure that I am wholly persuaded on the issue of coverage by his saying essentially that the process might prove to be a waste of time. I am putting that in quite simplistic language. The process may lead to something that is not very detailed; we are not prescribing detail in the amendments, but really seeking consistency of approach. I remain a bit worried that having no plan rather undermines the Bill for the areas for which there is no plan.

On the issue of it not being possible to have a plan because of withdrawal, for instance, it seems to me that the Government should be looking for a way to ensure that the duty to have a plan produces the desired outcome of having a plan, rather than arguing that there might be reasons for an authority not to be able to produce a plan. I had better not try to draft on the hoof on that. It is my failing not to have anticipated the argument and produced an amendment that might have gone some way to meet it. However, given the time of night—

My Lords, I must give notice to the House that, if the noble Baroness withdraws her amendment, I intend to test the opinion of the House on my amendment.

My Lords, then I am perfectly happy to test it on my amendment. I beg leave to test the opinion of the House.

Amendment 72

Moved by

72: Clause 49, page 24, line 30, at end insert—

“( ) A marine plan authority must seek to ensure that a marine plan is or plans are prepared for the whole of its marine planning region where an MPS governs marine planning for the region.”

Amendments 73 to 75 not moved.

Consideration on Report adjourned.

House adjourned at 9.56 pm.