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Marine and Coastal Access Bill [HL]

Volume 710: debated on Tuesday 12 May 2009

Report (2nd Day)(Continued)

Amendment 110B

Moved by

110B: Clause 113, page 68, line 32, at end insert—

“(7A) An order designating any areas as an MCZ in so far as it restricts exploitation of fisheries resources shall not come into effect until agreement has been reached that any such restriction will apply to vessels from all member states of the European Union.”

My Lords, the effect of this amendment would be that any order made under the Bill designating an area as a marine conservation zone, in so far as the order includes provision to restrict exploitation of fisheries resources, should not take effect until it had been agreed that the restriction would apply to vessels from all member states of the European Union.

As your Lordships will recall, we touched on this issue in Committee. Indeed, an amendment moved by the noble Duke, the Duke of Montrose, facilitated a debate on it, and it attracted interest from many parts of the Chamber. With regard to fishing resources beyond the six-mile limit, there is a requirement that things take place under the common fisheries policy. Therefore, any restriction or anything that interferes with or controls fishing in that area would require the agreement of the European Union before it could apply. However, the Minister indicated that of course it is possible for Ministers to put tighter restrictions on UK-registered vessels but not on other EU vessels which may well have long-standing, historic fishing rights within that area. That gives rise to the concern that it will lead to strong feelings of resentment among those who ply their trade in British fishing vessels, if they were to see their opportunities restricted where vessels from France, Spain, the Netherlands or Ireland were, in the very same waters, able to continue fishing.

If the overall purposes of this Bill are to be effective, it is generally important that all those with an interest in the marine life of the nation are part of those who subscribe to what happens under the Bill. First, if an important sector of the marine community—namely, the fishing industry—feels alienated by what happens under the Bill it could go a long way to undermine its effect, not just in respect of marine conservation zones but more generally. Secondly, if we do not subject other European nations’ vessels to the same restrictions, any conservation benefit that might accrue through restrictions on UK vessels could readily be undone by the fact that non-UK registered vessels would be able to carry on with no such restrictions. Therefore, the conservation effect would be diluted.

It is clear that the Government share these concerns, as has been said, but also that they have no way of ensuring that consent will be given or that other member states will subscribe to agreeing to these restrictions. In a letter to me on 23 March, the noble Lord, Lord Hunt of Kings Heath, stated:

“The UK Government cannot guarantee the agreement of other Member States to its proposals for restrictions beyond 6 nautical miles”.

He went on to observe, quite fairly:

“Yet, the commitment in Europe under the Marine Strategy Framework Directive will influence the restriction of fishing where necessary and help ensure adequate levels of protection for a network of marine protected areas. Other Member States will therefore also need to provide adequate protection for their protected areas if they are to meet their legal obligations. So there will perhaps be a mutual interest in adopting a more supportive stance towards marine nature conservation in the future”.

That is obviously a hope and an expectation; nevertheless, as the Minister himself said, there is no way in which there can be a guarantee. It would be very unfair to our fishing industry to subject it to restrictions that do not apply to other countries’ fishing vessels. The purpose of this amendment would almost be as a goad, as it were, to pressure the Government to ensure that they secure agreement, because that is in the interests of not only our fishermen but of conservation. I beg to move.

My Lords, I am most grateful to the noble Lord, Lord Wallace of Tankerness, for bringing us back to this topic, because a great deal needs to be settled and it will cause great anxiety among the people that he mentioned. I shall also speak to Amendments 119 and 120, both in the name of my noble friend Lord Taylor. This group of amendments refers to an issue that was labelled in Committee as the whale in the Jacuzzi. The Minister tried his best to answer our concerns but, as is so often the case where EU or international law is concerned, he was reduced in the last resort to saying, “We just don’t have the power”.

The amendment from the noble Lord, Lord Wallace, returns us to the uncomfortable fact that the network of marine conservation zones from six nautical miles to the outer limits will be ineffective without EU approval. Not only will any marine conservation zone outside that six-mile limit be unable to achieve its objectives, since no restrictions can be imposed on foreign fishermen that breach the fisheries agreement, but it is likely that—somewhat as the noble Lord, Lord Wallace, was explaining—they will instead put UK vessels at a disadvantage compared to their EU colleagues. They will also have to bear a disproportionate amount of the burden of restoring our fish stocks.

The Minister and his officials, in their draft strategy which at the moment applies to waters adjacent to England and Wales, have given us a very useful update on how EU and UK negotiations are progressing. Can he tell us how many UK representatives are involved in those negotiations and how they are dealing with devolved issues? Is it a requirement that the UK should draw up the EU zones according to the rules, which I gather are laid down and well understood, and submit them for acceptance by the European Community or do we expect the Community to designate further zones? Although I cannot entirely follow the exact wording of the amendment, because of my concerns about the ineffectiveness within the offshore zones, I do not think the inshore zones should wait for the very slow wheels of the EU to turn. I would appreciate any information which the Minister can give the House about how long he expects the current situation to stand. I would particularly welcome a rough idea of how long it will take to get zones between the six and 12-nautical-mile boundaries agreed under Council Regulation 2371/2002, which we discussed in Committee.

We also tabled Amendment 119 to probe a little further what the Minister said in Committee about the extent of sea fishing defence. I understand from the debates in Hansard that the defence covers only legal sea fishing and that subsection (3)(b) would kick in and disallow any use of that defence if the common fisheries policy were ever changed to allow for sea fishing outside the 12-nautical-mile limit to be restricted at a national level.

Amendment 120 raises the concern from the Royal Yachting Association, which felt that the Government were being rather timid in their interpretation of the United Nations Convention on the Law of the Sea. Its interpretation of Articles 56 and 58 would suggest that we are able to regulate all vessels, not just UK registered ones, for the purpose of conservation or preservation of the environment as long as such regulations do not impact on navigation. I hope that the Minister has looked very carefully since Committee stage at this point and will be able to respond more favourably this time.

My Lords, perhaps the Minister could check—I do not expect an answer during this debate—on the status of foreign registered or EU registered boats which operate out of British ports. A few years ago, if my memory serves me correctly, about eight Spanish boats were based in Milford Haven and brought fish back to the port. That appeared to be a loophole in the EU regulations. I am not sure whether that still continues.

My Lords, this is an interesting set of amendments. I say to the noble Lord, Lord Wallace, that I understand the resentment which might be felt by the fishing sector. I hope that it will have confidence in this legislation. We shall do everything we can to ensure that it gets the relevant information. I well understand the sentiment which lies behind Amendment 110B. He is right, of course, that under the common fisheries policy we have scope to set conditions unilaterally for UK vessels. It is possible that we can use that power to further marine sustainability goals. Indeed, some noble Lords would welcome that possibility. It is true that on rare occasions we have done so and it is entirely possible that we might want to do the same to show environmental leadership and increase our chances of persuading other member states of the EU to do likewise. We will not rush into doing so, but it would not be right simply to remove that instrument as a result of the amendment. Were we to remove such an ability, it should be done in the context of reform of the Common Fisheries Policy more generally. I will come to our approach to reform of the CFP a little later in my response.

Of course, one has to recognise, as the noble Lord did, that there are areas where only UK vessels fish within the nought-to-six-mile zone and parts of the six-to-12-mile zone. The amendment would make our ability to regulate those exclusively UK fisheries subject to agreement in Brussels. We would be very wary of limiting our national powers in this respect.

On Amendment 119, I have acknowledged that there are concerns over the effect of Clause 137(3). It provides a defence to the general offence in Clause 136 for people engaged in sea fishing. This is, of course, an important economic activity and an important part of our maritime culture. Where people are engaged in it legitimately, they should not be penalised for the damage that it causes. When we authorise such types of fishing as beam trawling, we have to accept that a certain amount of damage will occur. It might include breaking fragile organisms, such as corals and sea fans, or uprooting plants such as sea grass. Clause 137(3) therefore acknowledges this by providing a defence for sea fishing.

However, of course, this part of the Bill is about the conservation of the natural environment. Obviously, we want to do everything that we can to maximise the protection that we give to marine conservation zones. In this, I agree with the noble Duke that we do not want those who are fishing illegally to benefit from this defence. I make it clear that to benefit from the defence, the conditions in both limbs must be met. The second limb requires that the damage caused could reasonably have been avoided. If a fisherman is using the wrong gear and, as a result, cause greater damage than necessary, or if he is fishing in a place where certain or all types of fishing are prohibited, he will not be able to claim that the damage could not reasonably have been avoided. The damage could patently have been avoided by complying with the relevant legislation. Therefore, he would, on my understanding, be guilty of an offence under Clause 136.

This is not a theoretical situation. Where the evidence makes a strong case for them, there will be restrictions on fishing activity. In the nought-to-six-mile zone, where the UK has greatest control, inshore fisheries and conservation authorities will put appropriate by-laws in place. Between six and 12 miles from shore, we will seek agreement for appropriate restrictions from the European Commission and those EU member states that have historic fishing rights under Council Regulation (EC) No 2371/2002. Beyond 12 miles, as noble Lords are aware, we cannot act unilaterally to regulate fishing. We must seek protection for our marine conservation zones through the Common Fisheries Policy. While securing protection through this mechanism is dependent on the agreement of other member states, which we cannot take for granted, we will, of course, do everything that we can to do that.

On the questions raised by the noble Duke about the nature of the EU negotiations, the number of people involved and the agreed timing for zones, I do not have the information to hand. I have not been able to get hold of it during our debates and I am afraid I shall have to offer to write to the noble Duke on those matters.

My Lords, on the Minister’s earlier point, do I understand that certainly by-laws will be the method used and that the only thing we will be able to govern is whether the gear is appropriate? So certain areas will have to be zoned and the gear appropriate to those zones will have to be covered. If someone is found holding the wrong gear, that will be cause for instituting a charge against them. It is in the nature of trawling in the sea that by the time the damage is found the people who carried it out will be miles away and no one will have any idea who it was.

My Lords, that is a consideration. Clearly we will want to make this process as vigorous as possible for the reasons that the noble Duke has mentioned. I hope it will not be a situation where enforcement is weak or we are unable to detect who the perpetrators are. It is our intention to have a rigorous system in place.

We will of course use our best endeavours to seek the agreement of other member states to the measures we require. Obviously we are hopeful that we will be able to get appropriate agreement within the EU. Of course, one has to accept that the context in which we discuss these matters is the common fisheries policy. My colleague, Mr Irranca-Davies, the Minister for fisheries, has written to Commissioner Joe Borg on that matter to press the case for the reform of the common fisheries policy. Noble Lords may have seen the recent reference in the media to the commissioner’s views on what I thought were deemed to be acknowledged problems and failures with the CFP as it is. I was encouraged by those remarks. Commissioner Borg has replied to my colleague to say that he shares the Government’s view that the future common fisheries policy needs to take fully into account the wider integrated approach. He also wrote that the CFP needs to become an effective tool in the management of fisheries in the context of marine protection.

Clearly these are early days in the reform process, but that is an encouraging start. However, all those who have been involved in negotiations with the EU, particularly over the common fisheries policy, will know that there is a very long way to go before we have a successful outcome. None the less, we start from a more encouraging base than we have had for many a long year.

On Amendment 120, we want to provide the most effective protection we can for marine conservation. We want to be able to protect marine conservation zones from third country vessels as well as those of the European Union and, on that point, there is merit in the argument put forward by the noble Duke. We will reflect on it further and it is to be hoped that we will come back with something on Third Reading.

On the concerns raised by the noble Lord, Livsey, I shall take the opportunity to check and write to him further. My initial understanding of the point is that they are bound by the rules of the member state in which they are registered. I am not sure that that is a loophole but, as with other matters in relation to fishing, the noble Lord has identified one of the challenges that we have with this.

My Lords, I am grateful to the Minister for his constructive response to this amendment and that put forward by the noble Duke, the Duke of Montrose. If the amendment were passed into law, it would perform the important function of keeping pressure on the Government to try secure agreement. I do not think that there is any doubt that the Government recognise what the issue is and that they would like to see a proper resolution to it. It was therefore important to take an opportunity to remind them in case they were showing any signs of doubt. I have no doubt that, when the Bill is enacted and marine conservation zones come forward, this issue will regularly appear. As I have said, to keep the pressure on to try to secure agreement at a European level is essential not only in terms of fairness but for effective conservation. Against that background, I beg leave to withdraw the amendment.

Amendment 110B withdrawn.

Clause 114 : Grounds for designation of MCZs

Amendment 110C

Moved by

110C: Clause 114, page 69, line 2, at end insert—

“( ) an area of sea, including estuaries, as a national seascape, by virtue of the special qualities arising from its wildlife, natural beauty, cultural heritage or from its relationship with the land, or any combination of these reasons.”

My Lords, we return to the proposal to perfect the Bill by introducing to the process of designation of marine conservation zones the notion of seascapes. We had a useful discussion in Committee on two slightly different amendments, since when the Minister has kindly arranged a meeting with officials from the various departments concerned and other organisations involved. Our discussions there certainly reassured me that the issue is being taken seriously by the department—I am happy to place that on record.

One basis of my previous argument was that such an amendment is necessary to enable the Government to fulfil their obligations under the European Landscape Convention. I understand that the convention does not refer specifically to seascapes, although it extends out to sea to the 12-mile limit. The Minister wrote to explain his department’s thinking on how the United Kingdom already complies with the convention. That was appreciated, but it did not go quite far enough. I understand that this is an area where thinking is developing. I also understand that both Natural England and English Heritage have plans for implementing the convention which would include historic seascapes assessment, so that the characterisation work carried out by English Heritage in Liverpool Bay and other places will not be lost.

While I have been reassured by the fact that work and thinking on this subject are ongoing, it will nevertheless be up to us to ensure, if the amendment is not accepted, that the issue is followed up and made clear in primary legislation when a suitable vehicle is presented—that will possibly be the heritage protection Bill if it ever sees the light of day.

I have also noted the part to be played by the recently published, high-level marine objectives document, Our seas–a shared resource, which will, I understand, inform the marine policy statement and marine planning. The document defines “seascape” as follows:

“An area of sea, coastline and land, whose character results from the actions and interactions of land with sea, by natural and/or human factors”.

This definition will be very helpful for the future and is certainly a first step.

As the ministerial policy statement process may be the next opportunity to deal in a suitably flexible manner with the developing thinking on seascapes, I would appreciate it if the Minister would give us comfort on four points: the recognition of the importance of seascapes; support for further work on defining what they are, and the identification of nationally important seascapes; confirmation that the marine policy statement will specifically address seascapes and include recognition that nationally important areas may be so defined in future; and confirmation that these areas will be a material consideration in the marine consenting process.

I know that a number of noble Lords wished to speak in support of the amendment, but have found it impossible to be here today. However, I am delighted that my co-signatories to the amendment are here and able to participate. I beg to move.

My Lords, I meant to put my name to the amendment, but I missed the deadline. I support the amendment and the spirit behind it. I ask the Minister to consider the fact that we are talking about the grounds for the designation of MCZs. If the grounds for designation can be features of geological or geomorphological interest, which are in the list, it is strange—as the noble Baroness, Lady Hooper, explained so well when she talked about the interaction between sea and land—that things other than those of geological or geomorphological interest seem to be excluded. Seascapes are about the totality of the picture.

I recognise, as does the noble Baroness, Lady Hooper, that this is an evolving issue. It is crucial because it is in these areas, between the mean high water mark and the mean low water mark, that local authorities and MMOs will have to work closely together on planning issues. Those issues will be very real to people: they will concern the coast that they see, love and look at. It is critical, as the high-level objectives are worked towards—whether in the forthcoming heritage Bill or guidance that goes out to local authorities and the MMO—that this matter is developed with all speed.

My Lords, I thank my noble friend Lady Hooper for tabling the amendment. We had a good debate on this in Committee, where noble Lords widely accepted the concept of special areas of coast that are of exceptional beauty. We know that beauty is in the eye of the beholder. My favourite maritime view, of the Wash from Shep Whites, may be too strong on the horizontal to suit all tastes. However, my noble friend has drawn our attention to an important aspect of our coastal heritage.

There are two ways of looking at seascapes. Is it the prospect of the sea from the land, or of the shore from the sea? Perhaps both are equally important. What can be accepted without argument is the need to ensure that, on land or at sea, there is a requirement to observe the context and to seek to maintain the natural beauty of place. We cannot doubt that this area will develop and become more, rather than less, important. I expect that the Minister will assure us that the planning system and the Bill seek to ensure that this will happen. I hope that he can make that clear in his reply to this important amendment.

My Lords, I express the concern of the trade association representing boating interests and the commercial boating people. They are worried about this particular development. As the noble Lord, Lord Taylor, has just said, people enjoy seascapes from the sea, which implies from a boat. The boating authorities are worried that moves at this stage on seascapes might inhibit their activities, which would also rebound on those countless millions of people who go to sea for leisure activities in the course of the year in this country. This is much too broad, at this stage. I appreciate that the Government are looking at this in the longer term, but seascapes are something that we did not look at in the pre-legislative scrutiny committee and it is too early to get too involved in this at this moment in time.

My Lords, I am grateful to noble Lords who have spoken on this amendment and to the noble Baroness, Lady Hooper, for having proposed it. As the noble Lord, Lord Taylor, indicated, there was an interesting and wide-ranging debate in Committee on these issues, which clearly showed a range of opinions and the interest in the issue. I have borne in mind the point of the noble Lord, Lord Greenway, when he emphasised the fact that the seascape could be enjoyed by looking from the sea to the land as well as from the land to the sea. I always recall that individual who, in that most attractive of lakeside views in the north Italian lakes, admired so much a monastery on a little island in the centre of the lake that he moved from his side to the monastery when a property became available. Never again did he have as good a view as he had from the land, looking at the house that he had bought. Therefore, we have to bear in mind the question of seascapes, which has a certain subjective quality, as well as the issue of whether one is looking at them from the land or from the sea.

Of course, the Government have considered the issues a great deal since Committee. I was grateful to the noble Baroness, Lady Hooper, for indicating that the meeting that took place with officials advanced the cause somewhat further. There was no difference between the Government and noble Lords about the value of seascapes and the extent to which this Bill would not reach its objectives if it did not take them into account. However, our problem is the issue of definition. The Government published the high-level marine objectives on 20 April, and there are a number of references in that document to seascapes. It highlights the fact that the Government have a clear commitment on this issue. The objectives also contain a high-level definition of what might be considered a seascape, which is inevitably very wide—even to the point, noble Lords may think, of vagueness. But we have all struggled with the issue of definition, and we all recognise how difficult it is.

The definition refers to:

“An area of sea, coastline and land, whose character results from the actions and interactions of land with sea, by natural and/or human factors”.

This is the Government’s commitment to seascapes. We have a working definition; I am all too well aware of the fact that my noble friend Lord Howarth seeks to participate in this debate and might be a little scathing about the limited dimension of the objective and the vagueness of the definition. We were under pressure from the committee to recognise the issue of seascapes and produce some definition, which is what we have done. I appreciate the work that the noble Baroness, Lady Hooper, and my noble friend Lord Howarth have done in seeking a definition, but there is a great deal of work still to be done.

We need to develop our understanding of the nature of seascapes. That is why, inevitably, the Government are somewhat nervous about enshrining the current position in legislation. Legislation, after all, has some degree of permanence to it and a great deal of work still needs to be done on definition. It is difficult to set out what we mean by a valued seascape and, consequently, one that deserves special protection. Our ideas are bound to evolve over time as we understand these issues more. I hope noble Lords will appreciate the extent to which the Government have wrestled with this issue and the fact that we are making some progress. I say to the noble Baroness and to all noble Lords who supported her—although the noble Lord, Lord Greenway, entered his caveat—that there are sufficient difficulties about this issue for us to have anxieties about how we express them in legislation.

English Heritage is looking at the characteristics of historic landscapes in parts of the marine environment where aggregate dredging takes place, and Natural England recognises the importance of seascapes. Its landscape policies explicitly encompass seascapes and, as a statutory adviser on the natural environment, the advice it gives takes into account all relevant impacts on landscapes and seascapes. It has recognised in its action plan, the European Landscape Convention to which the noble Baroness referred in her opening remarks, the need to develop a seascape characterisation of the English coastline to help inform planning and management decisions. So work is going on.

We cannot accept a definition in the Bill, but there is clear recognition in the high-level objectives—which will feed into the marine policy statement and, in turn, inform the marine plans—of a commitment. As the plans are drawn up under the widespread consultation mechanism we have defined clearly in the Bill, the regionally important seascapes of whatever formulation —views from or towards the land, or precious coastal environments—can and will be identified. Decisions on licensing and consenting developments which then follow will need to take account of these matters. This may not be a designation process, as such, because we have some problems with that concept, but nothing may be deposited or built in the sea, and so affect a seascape, without a licence to do so. So there is protection with regard to our valued perspectives.

I want to reassure the House that we do not have to wait for marine plans to be in place for seascapes to be taken into account. We are already able to consider them through consultation on current development applications, which are handled by the department. English Heritage and Natural England advise strongly on cultural and conservation matters, and decisions are influenced accordingly. We try to obtain consensus through amending proposals where we can, and we have, for example, moved the siting of wind farms further offshore after representations. If the marine plan conflicted with local consensus on a view which should be protected, we would not automatically expect one to trump the other. Decisions will be taken on a case-by-case basis. One of the reasons for allowing “relevant considerations” to be taken into account by marine plan authorities such as the MMO is precisely because of the kind of issue to which the noble Baroness has given voice with her amendment.

My Lords, the Minister said that if a marine plan conflicted with the local consensus about the seascape, it would not automatically go through. Surely the marine plan should have taken account of such things in advance and, therefore, local sensitivities about the seascape should be incorporated within the marine plan before it is adopted.

My Lords, that is absolutely right. We hope that that will obtain in the vast majority of cases. I am just anticipating circumstances where it is felt that the marine plan has not been sensitive enough to a local position or where the consensus has been established that what is suggested in the marine plan conflicts with other views. I am merely indicating, within that framework, that the issue of the seascape could provide an important part of the necessary discussion. The noble Lord is right: this is to reflect what we hope will be a minority of positions where the marine plan has not evolved on the basis of a sufficient consensus to have taken those factors into account and obviated the anxieties that he identified.

The nature conservation mechanism has been designed to address scientific evidence rather than what we are discussing here, which are more subjective and esoteric considerations of the aesthetic value of our seas. I am not denying the importance of the concept, but merely seeking to indicate—I am sure that all parts of the House appreciate this—that it is more difficult for us to give categorical evaluation with regard to scientific evidence on certain parts of the development of marine plans. This is a more difficult concept to wrestle with. That is why we are seeking to identify that the Government have been persuaded of the importance of this issue. We will take these factors into account. We do not expect marine plans to evolve without consideration of this matter and we have agencies that will advance the cause, but the marine planning system is a powerful tool. It will certainly provide the protection that noble Lords are seeking through this amendment, but we cannot constrain the planners quite in the way that the amendment suggests by attempting a definition on the face of the Bill which, at the present time, still lacks a unifying consensus and raises difficult issues.

I hope that the Government will be given credit for wrestling with the issue and making progress and that the noble Baroness will feel that that is a basis on which she can withdraw her amendment. I hope that my noble friend Lord Howarth agrees with her.

My Lords, I am delighted to be a co-signatory to this amendment. The case for it was laid out very well by the noble Baronesses, Lady Hooper and Lady Miller of Chilthorne Domer, so I thought that I would wait to see what my noble friend the Minister had to say before offering any thoughts of my own. Like the noble Baroness, Lady Hooper, I enormously welcome the serious thought and care that the Government have taken in addressing this issue. We were very grateful for the meeting that was recently held under Defra auspices with the participation of a number of other bodies such as Natural England and English Heritage. It was particularly pleasing to learn about the work that Natural England—

My Lords, do I understand that the noble Lord is wishing to speak after the Minister, who has sat down?

My Lords, I understood that it was in order. If I am incorrect in that, I will sit down. I have not previously spoken in the debate, but if I am in breach of the conventions then of course I will refrain from speaking.

My Lords, if my noble friend can keep his remarks reasonably brief and within the context of “before I have sat down”, I have not yet sat down.

My Lords, I am most grateful to my noble friend the Minister, who is the most adept of politicians, Ministers and friends. I am also grateful to the House for its tolerance. I will of course be brief.

Yes, we recognise that there are definitional difficulties. There are definitional difficulties in defining an area of outstanding natural beauty, but the planning system has learnt to do that. The evolution of policy legislation and marine planning practice should lead us to a capacity to designate seascapes in due course. But I also recognise that a considerable amount of work is needed before we get to that point. It is good to know that the need for that work is being taken seriously by the relevant agencies.

I was particularly appreciative of what my noble friend had to say about the marine policy statement. Developing that statement will be an evolutionary process, but when we have it, that statement will, at least for the time being, be an authoritative statement. It will be a policy that creates the context within which those responsible for the marine planning system, and decisions taken under it, will have to do their work. The assurance that the Minister has given that the high-level objectives stated in the recently published document will feed through to the marine policy statement and the indication he gave that the commitment to seascapes will be a material planning consideration give us a great deal of reassurance.

On that basis, I am very grateful to the Minister and the department for the seriousness with which they are addressing this issue. This has been a valuable debate, but we should probably be content with what the Government have said this evening.

My Lords, I am most grateful to those who have supported this amendment and I say to the noble Lord, Lord Greenway, that we do not want to spoil anybody’s pleasure in recreational activities on the sea or in the sea. It is a question of getting the right balance and not forgetting that those who are enjoying the pleasures of the sea are not ruining somebody else’s enjoyment of a beautiful seascape.

I did not hear the Minister, in his remarks, specifically answer the four points that I raised about the marine policy statement, although he was able to give some new reassurance about it and about the proposed functioning of the marine planning system. I do not fully understand why a definition of “seascape” is so difficult, especially when there is a perfectly adequate one in the high-level objectives document I quoted. Nevertheless, I appreciate that this is a very complex area and we want to get it absolutely right. Since we are aware that work is ongoing in getting it right, I will live in hopes of another opportunity to see this enshrined in primary legislation. In the mean time, I beg leave to withdraw the amendment.

Amendment 110C withdrawn.

Amendment 110D

Moved by

110D: Clause 114, page 69, line 20, leave out subsection (7)

My Lords, this feels a bit like Groundhog Day again; we have debated the socio-economic requirement in the designation of marine conservation zones on several previous occasions. I must confess that I tabled my amendment at a time when I predicted that there would be another amendment which would strengthen the requirement so that it would not just say that in designating marine conservation zones, account “could be taken” of the socio-economic issues, but that account “must be” taken of the socio-economic conditions. So I tabled my amendment in order to counteract that opposing tendency and to toughen up the need to take the socio-economic conditions into account, but I have been rather wrong-footed by the fact that no such amendment is now on the Marshalled List. Nevertheless, needless to say, in the spirit of soldiering on in a lost cause, I shall continue to make the point. First, I thank the Minister for all the additional information that we have had in the last few days about the designation, the draft strategy for marine protected areas, the quaintly-noted “Note 1” draft guidance on selection and designation of marine conservation zones and indeed the briefing note on Part 5 of the Bill.

I quote from that briefing note, because it goes some way towards reassuring me that socio-economic factors are indeed, as it says, optional, secondary considerations. It says that it is implicit that the appropriate authority must make such a decision—that is, the decision to designate a particular area as a marine conservation zone—based primarily on scientific evidence; it would not otherwise be exercising its duty in a reasonable way. It goes on to say:

“We believe this underlying scientific foundation is the correct approach … The consideration of social and economic factors should be an option open to the appropriate authority and not a compulsory part of the process”.

I suppose that the least that I might get tonight is for the Minister to say that he does indeed endorse his own briefing note, and have that in Hansard for perpetuity as opposed to on a piece of paper that has been circulated to us and which nobody will remember existed in a year’s time. I thank the Minister for those statements in the guidance. I hope he will endorse it and that the briefing note is indeed right.

I should briefly state why I would prefer it if the socio-economic requirement were stated in a completely different way; that is, that it was not possible to reduce the power of the scientific evidence that ought to underpin marine conservation zones by tempering it in the initial stages with socio-economic issues. The evidence is exactly as I stated in Committee and at Second Reading. We have been struggling for 25 years to get protected areas in the marine environment but we have hardly any at all. We have three small sites, mainly because every other site that was ever raised fell foul of socio-economic pressures.

There are other mechanisms in the Bill and assurances from the Government about the pace of creating a network and the need to create an ecologically coherent network, and other issues that we will discuss under other amendments. In a way, perhaps the Government have nowhere to hide on this. We cannot face another 25 years of socio-economic conditions getting in the way of the designation of marine conservation zones, or at least I hope not.

On several successive occasions I have raised another argument about the fact that socio-economic conditions should not be taken into account in the initial designation. It has not been an impediment with the terrestrial environment, where socio-economic conditions have not been taken into account in European legislation on protected areas under the European Natura 2000 network or in the selection of sites of special scientific interest. They are designated entirely on the basis of the intrinsic merits of their importance to nature conservation, which is how it should be.

Anyway, having now made the same points for the third time, in a Groundhog Day sort of way, I will give up because I know that I have no general support from other Benches. Nevertheless, before I sit down and ask the Minister to endorse his own briefing note, I will comment on Amendment 113ZA, which is grouped with my amendment. I look forward to hearing about the intention of the noble Lord, Lord Taylor of Holbeach, in this amendment. I must admit that I was a bit bemused by his definition of “science”, which included “opinions”. Not being a scientist myself, I could not definitively say that science cannot include opinions; but I suspect that if other noble Lords who were steeped in science were in the Chamber, they may well think that “opinions” is perhaps pushing the boundary of science slightly too far.

My Lords, there is some support around the House regarding the fact that the noble Baroness, Lady Young, has raised this issue as a potential Achilles heel for marine conservation zones. The Minister will no doubt say that it is a developing area and that the noble Baroness quoted from one set of guidance. I have the draft guidance on the selection and designation of marine conservation zones. Paragraph 5.14 states:

“Where areas contain features which are rare, threatened or declining, or form biodiversity hotspots, ecological considerations are likely to carry greater weight in considering the area’s suitability for designation”.

Given all those features—“rare, threatened or declining”—the ecological considerations should carry greater weight. I feel that this Achilles heel still exists and might damage the very concept of marine conservation zones. I am very grateful to the noble Baroness for enabling us to have this discussion and for giving the Minister an opportunity to say where the Government sit on this issue.

My Lords, the noble Baroness has a very serious argument and it is perfectly fair to bring it before the House again. Yet, I also point out that, if her amendment were to be accepted, the hard-won protection that we have achieved for the marine historic environment would be lost.

My Lords, we return again to a matter that caused a great deal of controversy in Committee when we tabled a few amendments seeking to ensure that the successful designation of a network marine conservation zone did not fall at the last hurdle or be overridden by social and economic interests. That debate was lengthy and represented a wide variety of views. The Minister responded at length about the balance the Government were trying to find between conservation bodies, seeking the complete acceptance of their recommendations, and groups representing social and economic interest, which were concerned that zones would be designated without any regard for their impact on other legitimate users of the sea.

As a result of those debates, I find that I cannot agree with the amendment of the noble Baroness but that does not devalue the amendment and the discussion we are having because of it. We have always held that designation of zones will be meaningless if they cannot be implemented and enforced properly. The proper consideration of the pressures that will be placed on them and the genuine attempts to relieve those pressures without damaging their conservation objectives will be essential if the part is to work.

The Government’s own document, which we have recently received, points out that we should not belittle how much is already covered: 9 per cent of the inland coastal waters and 2 per cent of the continental shelf are covered under mature conservation regimes. It shows that in embryo there is already a strong conservation movement in marine conservation, from which I imagine much has been learnt about the efficacy of MCZ designation.

We have tabled Amendment 112, which seeks to ensure that the appropriate authority seeks the advice of the body that will be making the decisions that will result in the achievement of the zone’s objectives. The drafting is rather clumsy because the appropriate authority is the national body of the multi-nation United Kingdom. It is clumsy owing to the difficulties of the devolution aspects of the Bill, but essentially the amendment would ensure that the Secretary of State will consult the MMO before designating a zone in the area.

My noble friend Lord Kingsland has tabled an amendment to which I have added my name, which would further require the appropriate authority to base his decision to designate zones on scientific evidence. He will no doubt speak to his amendment in detail; I look forward to listening to what he has to say.

However, I should like to add that much of the debate on this controversial subsection (7) results from the belief by one set of stakeholders that the Secretary of State will come under unfair pressure from another set and that he will be tempted to make unfair decisions on the basis of money or political expediency. Therefore, I strongly support my noble friend’s efforts to ensure that the decision is made on science, just as we succeeded in ensuring in Clause 2, and I hope that the Minister will look favourably on the two Conservative amendments in this group.

My Lords, I shall speak to my Amendment 113ZA, which is included in this group. Before I do so, I would like to express sympathy for the amendment tabled by the noble Baroness, Lady Young, as a number of your Lordships have done.

I presume that the Government are able to include Clause 114(7) in the Bill only because European Community law in the context of MCZs is not as demanding as in the case of land-based SLAs.

I turn to my own amendment, which would add a further subsection to Clause 114 as follows:

“In considering whether it is desirable to designate an area as an MCZ, the appropriate authority must take account of all relevant scientific evidence. ‘Evidence’ includes predictions and other opinions resulting from the consideration of evidence by any person”.

In promoting this amendment, I respectfully adopt the analysis made in the speech that my noble friend Lord Taylor of Holbeach has just concluded. I just want to underline the real fear that, without an express reference to science in Clause 114, the decision-maker will indeed be susceptible to the pressures to which he rightly alluded.

I am puzzled that, whereas the Government felt it appropriate to include a similar—indeed, an identically—worded provision in Clause 2, laying down the general objective to be pursued by the MMO, they nevertheless, for reasons which I am anxious to hear, did not feel it necessary to have the same reference to scientific evidence for the appropriate authority making decisions under Clause 114.

The noble Baroness, Lady Young, raised a question about the word “opinions” in my amendment. This matter was referred to in our debate on Clause 2 at this stage of the Bill. For my part, I found the Minister’s explanation as to why “opinions” was appropriate entirely satisfactory. He may well wish to repeat what he said at that stage of the Bill or explain it in a different way. However, scientific evidence can give rise to different opinions about its implications; and that is the framework in which the word appears in the amendment.

My Lords, I wanted to delay speaking on this group until I had heard the speeches on the two Conservative amendments so that I could understand the reasoning behind them. Having heard them, it seems to me that Amendment 113ZA in the name of the noble Lord, Lord Kingsland, while probably not strictly necessary under the sort of argument that the Government usually use—that it is covered anyway—nevertheless would be useful because it would, in particular, underline the conservation basis of marine conservation zones, as opposed to their social and economic aspects. For that reason, if no other, I think it would be a useful amendment.

I do not quite understand the purpose of Amendment 112, from the noble Lord, Lord Taylor of Holbeach. Already, under Clause 116, there are substantial requirements for consultation and public advertisement on proposals for MCZs. The noble Lord’s amendment seems to refer specifically to organisations or bodies which have had functions delegated to them by the MMO, and not to others. I am not sure what the justification for that was. He may say that, earlier and under a different context, I said that local authorities should have a special status in consultation, but I explained that that was because local authorities are very different organisations from others, being democratically elected, representative bodies. It seems inconceivable that bodies that had delegated functions in relation to MCZs would not be consulted about their designation.

I suspect, although it is normal for opposition parties generally to want more in Bills rather than less, that the Government are trying to be minimalist about what is in it. Nevertheless, I am not sure why the Conservative amendment is necessary.

The amendment of the noble Baroness, Lady Young of Old Scone is important and substantive. She said there was not general support here, but I think the noble Lord, Lord Taylor, said that there was lots of sympathy—or perhaps it was the noble Lord, Lord Kingsland; it was. That is true, and the noble Baroness will ask what the use of tea and sympathy is when she wants noble Lords to join her in the Lobbies.

There is a great deal to be said for the noble Baroness’s amendment in relation to some marine conservation zones. We were not able to persuade the Government that there should be high-level marine conservation zones, where activities other than those related to conservation were effectively banned, as was proposed by my noble friend Lady Miller of Chilthorne Domer, but in relation to those particular zones the noble Baroness is 100 per cent right. Under those circumstances, social and economic factors are irrelevant. It has to be based on the facts on the ground, or under the sea, and on the science.

We hope that lots of marine conservation zones will be set up. I suppose I should not refer to the bottom of the scale, especially in relation to the sea; however, as you go along the spectrum, there will be MCZs that increasingly depend on fewer important aspects, in relation to that site, where there is a choice.

I have said how grateful I was, and have praised these documents which we have had recently. Note 1 of the draft guidance on selection and designation, which people have poked fun at, is a very important document, but I do not think it is yet 100 per cent right. Indeed, it is a draft for discussion and consultation, and it is right that that should happen. In section 4, the principles for design of the marine protected area network are important, because one of the important principles, and the first listed, is representation. It may be—it almost certainly will—that some of the areas where it will be necessary to declare MCZs for representative reasons are areas where, in the real world, there will be a choice between different sites. In the highly protected ones, however we describe them, there will not be, but in many there will. Where there is a choice, it is unrealistic to say that social and economic factors should not come into the equation in making the decision.

On the other hand, the draft guidance, in section 5, sets out the principles for the identification and selection of MCZs, and it sounds pretty high-level. It talks about:

“The range of marine biodiversity … Rare or threatened habitats … Globally or regionally significant areas for geographically restricted habitats or species … Important aggregations or communities of marine species”,

and so forth. Reading this, there is no sense of the kind of gradation or hierarchy which the Government talked about previously. I am not sure that the document has completely got to grips with that. The part of it that comes under the heading “Taking account of social and economic factors in site selection” contains a lot of on-the-one-hand/on-the-other-hand type of arguments. However, I do not think that it has really got to grips with the factors that will result in the decision being made. For example, referring to what we would call high-level sites, it states:

“The existence of socio-economic interests will not preclude consideration of an area for designation of an MCZ, nor compromise the setting of appropriate conservation objectives”.

I do not think that you can have both of those. It says that such interests will not preclude consideration of an area, but they will not compromise the setting of appropriate conservation objectives. There are going to be compromises, not in what we would call the high-level ones, perhaps, but there will be compromises and the guidance does not set out how they will be resolved.

I will not read out any more of this section because I would be detaining the House, but paragraphs 5.13, 5.14 and 5.15 provide an interesting and important discussion of the issues we are trying to grapple with here. However, I do not think that it is the end of the road; I think that it is the beginning of getting to grips with those issues.

So I would like to support the amendment tabled by the noble Baroness, Lady Young of Old Scone. I cannot support it as it stands, but I very much support it in relation to the high-end, high-level MCZs, however we describe them, that we hope to see established. The compromises and the way in which the choices will be made on those which are not high level and are being chosen particularly because they are representative is one of the fundamental, interesting questions here.

The final comment I make is in referring back to a discussion we had in Committee when I was debating with the Minister, the noble Lord, Lord Davies of Oldham. I was saying that when the 1949 Act was passed, there was a clear vision for national parks, and the pattern and system that we would have, based on the Hobhouse reports and the wide-ranging public consensus that existed. I was complaining that the Government did not have that sort of vision when it came to marine conservation zones. Well, I think that the documents that the Government are producing are evidence of the fact that they are beginning to develop a kind of vision of the system and network they want. I do not believe that they, or we, are there yet, but I believe that the work is now taking place. I think that if that continues to take place, with the kind of commitment set out in these documents, we might well get there.

My Lords, this highly important debate is probably an appropriate one on which to conclude this evening. I am grateful to the noble Lord, Lord Greaves; I know that there have been concerns, at various stages of debating its different aspects, that the language of the Bill does not, perhaps, reflect our vision. We dealt with that on our first day on Report, particularly in the debates on Clause 2. I acknowledge what the noble Lord, Lord Greaves, said about the documents that we produce, which he thinks are an emerging vision. Clearly, a lot of that is work in progress and many of those are draft documents. I hope that they are, indeed, helping to convince stakeholders that the Government are serious, which we are about taking this forward when it comes to MCZs. We see the contribution of MCZs as being very important to the health of our marine environment.

Amendment 112, on the designation process, requires “the appropriate authority” to “consult any public body”. We believe that is covered by Clause 116(4), which sets out that:

“The appropriate authority must consult any persons … likely to be interested in, or affected by, the making of”,

an order. Any public body exercising a marine plan function will clearly have an interest in a site designation, as it affects the marine plan and must be factored into planning. I hope that I can reassure the noble Lord on that point.

I turn to Amendment 113ZA, tabled by the noble Lords, Lord Kingsland and Lord Taylor, which seeks to strengthen the reference to science and, most importantly, scientific evidence in the designation of marine conservation zones. Science is clearly important in determining where we will designate sites. Clause 114(1) ensures that scientific criteria form the basis of site proposals, setting out specific grounds for designating marine conservation zones, including the number and diversity of,

“marine flora or fauna … marine habitats … and features of geological or geomorphologic interest”.

I want to make it clear that Clause 114 has been drafted so that science must, by necessity, form the basis of site proposals. I am certain that the number or diversity of marine fauna and flora could not be determined without scientific advice; I have had categorical advice on that point. I do not believe, then, that Clause 114 needs to include a specific reference to science.

However, the noble Lord, Lord Kingsland, has invited me to come to his support on the use of “opinion”—and I feel that I must, because we debated this on our first day on Report and, as I said then, the use of “opinion” is not deemed to be any old opinion. It is simply a reflection that, on many scientific matters, there will be varying opinions, all of which may very well be valid and need to be considered. Although I do not agree with the noble Lord’s amendment, the use of “opinion” is entirely acceptable.

We then come to Amendment 110D, in the name of the noble Baroness, Lady Young. She said, at the beginning, that she proposed this anticipating another amendment that she thought might come, seeking to strengthen subsection (7). Although that has not come, it reflects a continuing debate about the balance to be drawn around MCZs between conservation needs and relevant socio-economic interests. That balance runs through many parts of the Bill. We are all trying to get the balance right.

I thought the noble Lord, Lord Taylor, was absolutely right: while it is perfectly possible to disagree with the noble Baroness, the debate is very important. I reassure the noble Baroness that the fundamental basis for designating marine conservation zones will be the science supporting conservation. The Bill allows us to factor in the impacts of designation on other interests at a slightly earlier stage in the process. It ensures that we have a flexible system which gives us the best chance of delivering conservation policies in the context of our wider marine policies. We wish to provide significant protection for some areas of our seas.

I have just set out how the drafting of Clause 114 specifically requires marine conservation zones to be proposed based on scientific evidence, and science will clearly be important in decisions regarding the designation of the network. The science will be the first consideration in all designations. In some cases the need for conservation must prevail but, at the very least, we should take decisions in the knowledge of the likely impacts. That is why, in implementing the Bill, Ministers will expect an impact assessment to accompany each proposal for designation.

In some cases we will have more options. In designating a representative site, for example, we will often have more choice of potential locations and we will need to consider the size and shape of a marine conservation zone. In such circumstances, it would be sensible to take account of socio-economic considerations in deciding where a site, or group of sites, should be designated. Such considerations will be relevant. We are establishing regional and national project groups, involving interested parties to make recommendations on proposed sites. We also want all those with an interest to feed in their views. That will ensure that we take account of all the relevant considerations when designating sites and setting their conservation objectives.

The noble Baroness invited me to endorse my own briefing note on Part 5. I have given agonising consideration to that matter and I am glad to confirm that I endorse it. It is implicit that the appropriate authority must make such a decision based primarily on scientific evidence; otherwise, it would not be exercising its duty in a reasonable way. Social and economic factors are optional secondary considerations. I believe that that is reflected in the drafting of the Bill. I hope that noble Lords will accept that we have reached a very sensible balanced outcome.

My Lords, I thank noble Lords for their sympathy, if not their votes. I apologise to the noble Lord, Lord Howarth, for inadvertently threatening to sink Amendment 111 on the historical or archaeological significance of sites. I also thank the noble Baroness, Lady Miller of Chilthorne Domer, for quite rightly pointing out that the draft guidance is couched in rather more weasel tones than the briefing notes, which the Minister has just endorsed. I am grateful to him for endorsing the briefing notes and I shall continue to remind him of that endorsement for many years to come.

I look forward to hearing the opinions of any person, as outlined in his support, if not for the amendment, for the sentiment by the Minister. I am sure that many people will want to give opinions. Indeed, the process that the Minister described of regional and national groups involving all interests and bringing forward proposals for marine conservation zones—

My Lords, I am glad to intervene. It is very risky for me to lend support to the wording of the noble Lord, Lord Kingsland, in an amendment that I do not agree with. To be fair, we discussed this on our first day on Report. I reiterate that we are not talking about any old opinion. We are talking about legitimate opinion, which I take to be based on consideration of the evidence.

My Lords, I am sure that the noble Lord is right to say that any old opinion would not be satisfactory, and I am comforted by that. Indeed, there are occasions when even scientists disagree with each other.

My point is that involving interest groups set up nationally and regionally—with a wide variety of interests on them and the back door wide open to having socio-economic issues that could overcome the scientific requirements prayed in aid—will make designating marine conservation zones a very difficult process by which to reach conclusions on MCZ proposals. I hope that we can, from time to time, remind the Minister of his endorsement of his own briefing note when the process gets into the difficulty that I predict it will get into. I beg leave to withdraw the amendment.

Amendment 110D withdrawn.

Amendment 111

Moved by

111: Clause 114, page 69, line 22, at end insert—

“( ) The reference in subsection (7) to any social consequences of designating an area as an MCZ includes a reference to any consequences of doing so for any sites in that area (including any sites comprising, or comprising the remains of, any vessel, aircraft or marine installation) which are of historic or archaeological interest.”

Amendment 111 agreed.

Amendment 112 not moved.

Amendment 113 had been withdrawn from the Marshalled List.

Amendment 113ZA

Tabled by

113ZA: Clause 114, page 69, line 22, at end insert—

“( ) In considering whether it is desirable to designate an area as an MCZ, the appropriate authority must take account of all relevant scientific evidence. “Evidence” includes predictions and other opinions resulting from the consideration of evidence by any person.”

My Lords, I speak to this amendment only to respond to the Minister’s observations in the course of the debate that we have recently undertaken.

Given the very firm way in which the Minister stated that Clause 114(1) ineluctably required the contents of my amendment to be respected, I am surprised that he is not prepared to make that crystal clear in the Bill. However, given his statement, I recognise that were there to be any doubts raised about that, and were litigation to be ensued, the statements that the Minister has made in your Lordships’ House this evening would clearly be admissible under the doctrine of Pepper v Hart. I am comforted by that reflection.

Amendment 113ZA not moved.

Consideration on Report adjourned.

House adjourned at 10.03 pm.