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Lords Chamber

Volume 710: debated on Tuesday 12 May 2009

House of Lords

Tuesday, 12 May 2009.

Prayers—read by the Lord Bishop of Leicester.

World War I: Veterans


Asked By

To ask Her Majesty’s Government, following the decision by the government of France to award the Légion d’Honneur to Mr Harry Patch and Mr Henry Allingham, whether they plan to grant similar recognition to these last two surviving veterans of the Great War.

My Lords, I am sure that the whole House will wish to join me in offering sincere condolences to the families and friends of Sergeant Ben Ross of 173 Provost Company, 3 Regiment, Royal Military Police; Corporal Kumar Pun of 1 Battalion, the Royal Gurkha Rifles; Corporal Sean Binnie of the Black Watch, 3 Battalion, the Royal Regiment of Scotland; and Rifleman Adrian Sheldon of 2 Battalion, the Rifles, who were killed on operations in Afghanistan on Thursday last week.

The French Government’s decision to award the Légion d’Honneur to Mr Harry Patch and Mr Henry Allingham was welcomed and my honourable friend the Under-Secretary of State for Defence was present on behalf of the MoD at the presentation. It is right that we should all remember and recognise the contribution of those individuals and their generation. The whole House will recall Remembrance Day last year, when the three remaining World War I veterans laid wreaths in that moving ceremony at the Cenotaph.

My Lords, I associate myself with the tribute paid by my noble friend to those four servicemen, and I thank her for her reply to my Question. I agree with everything that she said about remembering the contribution of that generation. I had the honour of meeting Harry Patch on a visit to Ypres last year. Does she agree that those two survivors have played an amazing part in creating understanding about warfare and conflict, and in promoting peace and reconciliation through such things as visits to schools and numerous visits to veterans in Flanders? That being so, why cannot we also offer those gentlemen some sort of official recognition? Next month, they will celebrate their 111th and 113th birthdays, which even by the standards of your Lordships' House are great ages. Will my noble friend please use her influence to see whether something can be done fairly quickly to achieve that recognition?

My Lords, I, too, had the privilege of meeting all three of those veterans last year at Remembrance Day and I certainly agree with my noble friend about their contribution to an understanding of what war was like in those days and the importance of peace. My noble friend and the whole House will know that national honours and awards are in the gift of the Sovereign and are always handled discreetly. It would be wrong to set a precedent by commenting further. I am sure that the House will also recall that a Statement was made on 27 June 2006 in another place in which the Government’s plans to honour the World War I generation were laid out. It is important to remember that work is in hand to take further that idea and other ideas of how we should recognise those contributions.

My Lords, from these Benches we also send our condolences to the families and friends of the four soldiers mentioned by the Minister who were tragically killed in Afghanistan. I turn to the Question. Whatever the Government may be planning after the death of the last of these veterans—whether it be a state funeral or something else—will they ensure that they take close soundings with the families of the veterans?

My Lords, the noble Lord is right that we have made a statement saying that, because the death of the last World War 1 veteran will be such a major milestone, there will be a memorial service, which will be an opportunity for the entire nation to remember not just that individual but the whole generation whom we are talking about. Obviously, these matters have to be dealt with extremely sensitively, and the wishes of the families have to be taken into account, which is why it might be appropriate to wait a little time following the death before holding such a service.

My Lords, while I and these Benches join in the thoughts expressed about the four soldiers who have died, would the Minister not agree that we have been very late to honour those people who have served us on active service? Will the Government undertake to look at how we honour those who survive conflict and have served the country? At the moment we are tremendously good at remembering the dead, and are starting to remember the wounded—but not those who make it through comparatively unscathed.

My Lords, a lot of work has been done recently, because of recent operations in Iraq and Afghanistan, to understand the needs of those who have been injured or who have served on operations. The service Command Paper that was published last year, and improvements in healthcare and the rights of former servicemen, take that situation a lot further, and there have been significant improvements. It is right to say that we should not forget those who survive conflicts, as well as to remember those who have died. As far as concerns about being late to acknowledge the contribution of those such as the veterans whom we were talking about, there have been many acknowledgements, and the 90th remembrance service last year was a very fitting occasion to recognise the contribution of those who had served in the First World War.

My Lords, I declare an interest as a former serving officer in the Royal Navy and a passionate advocate of defence manufacturing equipment from Britain in both the CBI and UKTI. The Minister recognised the sad loss last Thursday—I notice that one of them was a Gurkha. I would love to hear from the Government that we will honour not only these two amazing veterans of a faraway conflict, but also Bomber Command, which this and former Governments have never had the courage to acknowledge formally. Will the Minister confirm now that the Typhoon programme and the aircraft carrier construction programme will carry on? Will the Government please get behind the serving officers and men of the armed services of this fabulous country?

My Lords, I am very proud of what we have done in our equipment programme, but I do not intend to go into that in response to a Question about some very important people who have served this country well; we should spend our time acknowledging that. On the subject of awards, it is a good thing that it is not Ministers who make those decisions: we have appropriate mechanisms in place, we have so far done very well by our veterans and we should all remember their contribution.

Energy: Wind Turbines


Asked By

To ask Her Majesty’s Government what plans they have to communicate more widely the recent statement by the Rt Hon. Ed Miliband concerning the unacceptability of objecting to wind turbines.

My Lords, Her Majesty’s Government regularly communicate their support for wind generation as part of their commitment to developing renewable energy. We will reaffirm this policy in the renewable energy strategy, to be published this summer.

My Lords, I am most grateful to the Minister for that Answer. Could he confirm that, because of the intermittent nature of wind power, all wind farms need permanent back-up from conventional generating plant? Does he agree, therefore, that supporting wind farms is as socially unacceptable as sneezing in public during a flu epidemic?

No, my Lords, I do not follow the logic of the noble Lord’s argument at all. Of course, he is right to refer to the intermittent nature of wind energy, which means that there must be back-up capacity. However, as this House has frequently reminded me, that reinforces the need for a diversity of supply, which is why this Government have given their support to new nuclear and new coal under carbon capture and storage, as well as encouraging renewables. As for wind in general, we see onshore wind as having a critically important part to play in developing energy sources in this country.

My Lords, does my noble friend accept that beauty is in the eye of the beholder? I, for one, think that wind turbines are not only beautiful but practical as well.

My Lords, I could not agree more. On a recent visit to the Orkney Islands, I saw some beautiful wind farms, which I am sure enhance the landscape.

My Lords, as the noble Lord, Lord Willoughby de Broke, reminded the House, the Minister’s boss, the Secretary of State, declared that objecting to wind farms was socially unacceptable. Is the Minister aware that the distinguished scientist James Lovelock, in his recent book The Vanishing Face of Gaia, with a commendatory preface from the president of the Royal Society, no less—the noble Lord, Lord Rees—contains the most excoriating attack and demolition of the case for wind power that I have ever read and which every objector should use in every public inquiry? Does the Minister consider that Professor Lovelock is socially unacceptable?

My Lords, we welcome all contributions to this enlivening debate about the contribution that wind energy can make to the achievement of the renewable energy targets. As I said, we believe that we need a diversity of supply in future, but, unlike the professor whom the noble Lord mentioned, we believe that wind energy has an important role to play in that diversity of supply.

My Lords, last week there were two announcements—one by Siemens, stating that it was about to open a factory in Kansas employing 400 people in producing wind turbines, and one by Vestas, stating that it was likely to close its turbine plant on the Isle of Wight. Is that not an example of the failure of British government policy on renewable energy and wind power, and is it not an indication that we are falling behind the rest of the world rather than making up the space that we have already lost?

No, my Lords. Those are commercial decisions and, as I told the House last week, the factory that, regrettably, was closed made turbines for the US, not the UK market. There are very positive signs about development in this country. An announcement was made today by E.ON, which said that the first phase of the London Array project will take place later this year, which could generate power in time for the 2012 Olympics. That wind farm will involve 341 turbines, so very significant progress is being made. The renewables target is very challenging and we will need a lot of onshore and offshore wind, but I am satisfied and confident that we will achieve those targets.

My Lords, the Minister referred to the targets. Is he able to tell the House how many regions are on track to reach their targets on renewable energy? What sanctions are there to be applied to local authorities that fail to meet those targets?

My Lords, it is not a question of regional targets. In the summer we will be publishing the renewable energy strategy, which will have scenarios that embrace the developments in different areas of renewable energy that we need to see happen. Behind the right reverend Prelate’s question is the attitude of some local authorities in terms of turning down planning applications. Noble Lords will know that we have reformed planning legislation, and in the summer we will be producing a draft of the national policy statement that will relate to renewable energy. That will, I hope, have a positive impact on the role of local authorities in granting consents.

My Lords, does the Minister appreciate that the unacceptability or acceptability of these turbines depends on where they are to be sited? As one who lives in Cumbria, I have quite strong views about siting. There are places there where it would be unacceptable to site these turbines because of the great damage they would do to the environment in that county.

My Lords, the noble Lord, in common with all noble Lords, appears to have strong views on wind farms. I take his point that there are areas of the country, or specific sites, where it would not be sensible to proceed with wind farm developments. Those are factors that need to be considered by planning authorities. The point that my right honourable friend was making is that it would be wrong if there was simply a blanket assumption that no wind farm development should take place.

Wilton Park


Asked By

My Lords, following a review of Wilton Park in 2008, the Government have committed to ensuring the success of Wilton Park as a centre for the resolution of global challenges. We are reworking our strategy, including a new mission, new objectives, new financing mechanisms and new governance arrangements. The Government are also recruiting a new chief executive and chair to lead Wilton Park.

My Lords, that is very good news indeed. However, given that Wilton Park performs a valuable function, as the noble Lord has explained, can he give greater assurance that there will be continuity of funding to ensure that this programme of reorganisation and redevelopment takes place over the period that he has envisaged? Perhaps in addition—I declare a somewhat well-known interest—could he encourage the chief executive to have more conferences on Latin America?

My Lords, we have assured core Foreign Office funding for Wilton Park over the next three years. This replaces the fact that Wilton Park was going to different parts of the Foreign Office to get funding for different conferences, which had a huge labour and transactional cost to it. We hope that the provision of this core funding will allow the leadership of Wilton Park to go out and find new clients, so that it will be able to put itself on a much more stable footing for the long-term future.

My Lords, I declare an interest: my wife is a former member of the Wilton Park council. This is a very good example of soft power in British diplomacy, which the Foreign Office values a great deal but which the Treasury does not seem to understand. There are similar issues over Commonwealth scholarships and a range of other things. Can the Foreign Office have a much more constructive, broad dialogue with the Treasury about these soft-power elements in British diplomacy, which have been cut back so vigorously in recent years? Wilton Park is only one of a considerable number of immensely valuable links with other countries, providing a way of influencing the debates in those countries in a way that we have found so useful.

My Lords, the conference centre, when it works well, is an extraordinary success in today's world. In the UK we have the examples of Ditchley and Chatham House here in London, which the noble Lord also knows well, and more globally we have things such as the World Economic Forum. But to succeed in this highly competitive world, even an institution such as Wilton Park needs to find the right niche with a sharpened mission and focus in terms of the kind of conferences it seeks to attract. We are betting on its success and as we secure that success we will certainly defend it against the Treasury.

My Lords, as a former member of the council of Wilton Park, may I attest to the great value of that setting both to the people of this country and especially to those from developing countries? To put it crudely, there are very few places on this planet where people can safely go and think out aloud in trying to find solutions to immensely important problems.

My Lords, it is an extraordinarily important feature of Britain for all those who have been lucky enough to visit it, and even for us poor Labour Ministers. It is the closest we have been to a house with a moat around it.

My Lords, will the Minister accept that I have visited Wilton Park many times but have never noticed a moat? Will he also accept that we strongly support and welcome these moves to ensure the continuity of Wilton Park, which has been extremely well run? It is particularly valuable in bringing together representatives of some of the smaller nations of Europe and of the Commonwealth to discuss issues of common interest and to do that particularly valuable thing of promoting not only our own interests as a nation but also promoting the interlinking and global togetherness which will ensure stability and peace throughout the planet.

My Lords, I certainly agree with all that the noble Lord said. I think that it could even hold a few more conferences on the Commonwealth. On the issue of Britain as a nation that networks effectively between small and big nations, between NGOs and Governments, between think tanks, and in the general debate on ideas in international affairs, Wilton Park is a critical part of the soft-power architecture of what makes Britain effective in the world.

Railways: East Coast Main Line


Asked By

To ask Her Majesty’s Government what is their response to reports that National Express is in discussions about the future of the franchise for the East Coast main line.

My Lords, the Department for Transport meets all train operating companies on a regular basis and these meetings include discussion on the impact of the current economic climate.

My Lords, I am grateful to my noble friend and I am glad to hear that he often meets the train operators, but will he clarify whether there will be any circumstances in which a franchisee who fails would be allowed to renegotiate his contract into a management contract to reduce the risk? Does my noble friend not agree that, unless franchisees are excluded from renegotiating their own contracts, after the first one is done, all the other franchisees in difficulties will wish to follow the lead of the first one?

My Lords, Section 30 of the Railways Act 1993 gives the Secretary of State the duty to provide or secure rail services where,

“a franchise agreement is terminated or otherwise comes to an end”.

Management contracts are one of a number of ways that the Secretary of State can meet that obligation.

My Lords, in view of the collapse of Railtrack, the bankruptcy of Metronet and now, we are told, the imminent collapse of some railway franchises, will the Minister explain to the House the benefits of involving the private sector in the provision of railway services?

My Lords, we inherited the current arrangements in terms of the privatisation of the railways, but we do not believe that it would be in the public interest to have another period of institutional turmoil in an industry whose quality of service is systematically improving, although there is still a good way to go to improve further.

My Lords, as a former Transport Secretary, and in light of the previous question, I declare an interest and a disappointment that the Minister did not point out the enormous increase both in the number of people using the railways and in investment in the railways since they went into the private sector. Would the Minister be willing to place in the Library of the House those clauses in the National Express contract that indicate how the payment made by the operator relates to the general state of the economy and how it may rise or fall depending on the state of the economy?

My Lords, when this was debated under the previous Administration, I, along with the late Lord Peyton, felt very strongly that railways should not be privatised. In view of the current economic crisis, it is worth the Government at least looking at taking the entire rail network back under their control. Does the Minister not agree that this has merit?

No, my Lords, I will not accept that invitation, if the noble Lord will forgive me. As I said in reply to an earlier question, we see no benefit to the public in further institutional turmoil in the industry. Quality of service is improving, rates of investment are also improving and we want to see those responsible for the management of the industry in its current state get on with the job and continue to improve the service. We do not believe that hanging a sword of Damocles above their heads would serve any public good whatever.

My Lords, following on from the reference by the noble Lord, Lord Palmer, to the late Lord Peyton, can my noble friend confirm that he succeeded in moving an amendment in your Lordships’ House which gave the then British Railways Board the opportunity to run franchises in competition with the train operating companies which were bidding for them? Can he confirm also that, if franchises fail, he and the Department for Transport have an emergency plan for other operators to step in and take over?

My Lords, I wonder whether the noble Lord would be good enough to rethink his original Answer and to answer the Question on the Order Paper, which asks the Government,

“what is their response to reports that National Express is in discussions about the future of the franchise”.

As I understood, it, the noble Lord said, “We are often in a lot of discussions with rail companies”, but I did not hear him say what the conclusion was.

My Lords, these discussions are commercially sensitive and it would not be appropriate for me to give a running commentary on them. The noble Earl can be reassured, however, that we meet the railway companies frequently to discuss all matters of concern to them and to the Government.

My Lords, given the present tourist boom and the Minister’s own admirably extensive travels, can he say how many cathedrals in the United Kingdom cannot be seen from a train?

My Lords, I am trying to think of my passage around the country and how many I saw, which was quite a large number. I will undertake to write to the noble Lord with that information—unlike the earlier information requested, I do not believe that it is commercially sensitive.

My Lords, if a franchisee—a TOC—has to hand in the keys to a non-profitable franchise, is he able to retain the profitable ones?

My Lords, the department has the power to cross-default franchise operators, but we would take a decision on that in each individual case.

My Lords, is the noble Lord aware that some people will be disappointed with the dusty answers he gave the noble Lords, Lord Bradshaw and Lord Palmer, about taking the railways back into public ownership? Is this not an opportunity for the Government to honour the promise made by John Prescott before the 1997 election that he would renationalise the railways?

My Lords, as I have said repeatedly this afternoon, we see no public interest being served at all in creating further institutional turmoil in the railway industry.

My Lords, during the noble Lord’s recent travels, it was noted in Wales that he did not visit Wales. Will he include Wales in his next itinerary?

My Lords, that is a vile falsehood. As the noble Lord will know better than anyone, the train from Shrewsbury to Chester passes through Wrexham.

Access to Parliament

Private Notice Question

Asked by

To ask Her Majesty’s Government why the police did not ensure free passage for peers and MPs to Parliament on Monday 11 May 2009.

My Lords, the Metropolitan Police have a duty to secure access to Parliament. Police tactics and decisions on managing demonstrations are an operational matter for the independent judgment of chief officers of police. On some occasions, entry to Parliament has been limited to one of several access points. This may have led to some inconvenience. However, the police have kept the House authorities closely informed when access points have been restricted and when advance warning has been possible.

My Lords, I am grateful to the Minister for that Answer, so far as it goes. This is the second time—the previous time being 20 April—that the police have been totally hoodwinked and outwitted by the demonstrators and freedom of access through the front door has therefore been denied to both Peers and Members of Parliament. This is not only a total denial of freedom of access, but a major security risk, with people sitting in front of Carriage Gates. What action will be taken to ensure that this never happens again?

My Lords, I am sure that we have all witnessed the ebb and flow of smaller and very large numbers over the past few days. On some days the numbers have been very few; on some days they have been very large indeed. On the whole, however, these protests have been peaceful and well managed by police and the organisers.

There is an important point of principle here. As the Joint Committee on Human Rights says, while protests may be disruptive or inconvenient, the presumption should be in favour of protests taking place without state interference. These are very difficult things to handle. In controlling demonstrations, the police have to facilitate that lawful process, preserve the peace, uphold the law and prevent the commission of offences.

Clearly, it is not right that access here should be limited—it is absolutely wrong. However, the police have a difficult balancing act to perform and, so far, they have been doing that well. As I have said, it is a matter for the chief officers of police.

My Lords, am I not right in thinking that sessional orders are in operation when Parliament is sitting? If that is the case, why are they being flouted in this way?

My Lords, the noble Baroness is absolutely right that sessional orders are in operation, but they are not being flouted. The police are handling this as well as they are able. There has always been at least one access point available, if not more. I agree that it is difficult and unfortunate, but the police are handling a sensitive and difficult situation. There are 250,000 in the Tamil community, most of whom are in London. At least 30,000 could be available for a demonstration at very short notice.

We have actually had a fairly well natured demonstration. They have made their point and been able to demonstrate. When they have broken the law, the police have acted; something like 45 or 46 were arrested yesterday when they blocked the roadway and some other accesses, and some went on to Westminster Abbey. The police are handling it well. It is a matter for the Metropolitan Police Service and the chief police officers.

My Lords, I congratulate my noble friend. Will he pass on my congratulations to the police for the way in which they controlled this demonstration without using masks and batons, or covering up their numbers and other things which they did at the G20 protests?

I certainly got here without any problem at all, by cycling down the road, walking along the pavement and showing my pass. Maybe other noble Lords would like to try the bicycle.

My Lords, my noble friend highlights some of the problems that our police force has. A number of things are being investigated as a result of the G20 demonstrations. The police always have this difficult balance. As I say, at the moment they have been handling this well. It is extremely unfortunate and wrong that access to this place should have been blocked, but the police are dealing with it as best they can under the circumstances. I am sure that there may well be other arrests, but that is an issue for the chief police officers involved within the Metropolitan Police Service.

My Lords, we all know the difficult time that the police have, and I admire what they have done, but how long do we have to have Parliament Square blocked by people who are of a foreign nationality and who are complaining about problems in their country? They go on and on, and in so doing disrupt the democratic effects of our country.

My Lords, as I said, it is important that we facilitate lawful process—and this is a lawful process—and I have no doubt that we all need to work to bring the conflict in Sri Lanka to an end in a way that minimises further civilian casualties there. The quicker it is finished, the better it will be for everyone.

My Lords, while not allowing the protesters to take over to the extent that they did yesterday, will the Minister make clear that this particular failure by the police will not be used to renege on the promise to repeal unreasonable restrictions on Parliament Square protesters?

My Lords, I do not accept that there has been a failure by the police at all. It was wrong and inappropriate that we did not have access to the Palace of Westminster but, bearing in mind the circumstances, I think that they have handled that particular demonstration extremely well.

In answer to the question about SOCPA, it makes no change whatever, and the intended changes will probably happen within a matter of weeks. As a matter of interest, a group of Tamils did ask permission for a demonstration of about 50 people within the area. Clearly, those numbers and everything else have been rather overtaken by events, and that shows that SOCPA did not achieve its aim anyway.

My Lords, while acknowledging the very proper concern about access to this place made by the noble Lord, Lord Naseby, and the point made by the noble Earl, Lord Ferrers, with which I wholly agree, my experience yesterday was different.

I proceeded from Westminster Tube station along my usual route towards the Peers’ Entrance. Across the pavement there were a number of tapes or ribbons. Most of them were raised for me by very helpful police officers so that I could duck underneath them. Far from my access being impeded, it was actually easier than usual because there were fewer people on the pavement.

My Lords, I thank the noble Lord for that comment. What it shows is that the incident had a different impact on many of us. However, I am sure all of us would agree that we should have free and unimpeded access to the House but, under very difficult circumstances, the Metropolitan Police Service has been handling the demonstration extremely well.

My Lords, is my noble friend aware that, in terms of world standards of dealing with demonstrations, on this occasion the police have shown great tact?

There has been a traumatic period during which the Ceylon Tamils have seen their families back home in great difficulty. I think that the goodwill in the Tamil community has been increased by the way the situation has been dealt with—and that in no way removes the validity of the Question of the noble Lord, Lord Naseby.

My Lords, my noble friend has gone into a little more of what is causing the demonstration. It seems to me that, while they have a lawful right to demonstrate, we have made huge efforts in this country to try to bring an end to fighting in Sri Lanka. I think we should be proud of that and I hope that the Tamils can see and understand that as well, because we have bent over backwards and done very well in trying to end the fighting there. However, they have a right to demonstrate and it is being handled well.

My Lords, is the Minister aware that it is not just access to Westminster itself but to Parliament Square that is one of the main problems? It is not caused by the police but by the ridiculous roadworks at the end of Victoria Street and into Parliament Square. That, together with the Tamils, has made the problem a million times worse than it would otherwise have been.

My Lords, if I got into the problems of roadworks and moving around London, the debate could go on for another 10 minutes, so I do not think I will open that one up.

My Lords, is not the real problem that Parliament is the embodiment of freedom of speech in this country and that if access to Parliament is limited, however worthy the demonstrators’ cause, that undermines the fact that they, too, have freedom of speech? The fact is that, if we cannot get to Parliament, freedom of speech is fundamentally undermined.

My Lords, as I said earlier, we have always had access to, and been able to get into, Parliament. I accept that that access has not been untrammelled and that that is not good enough, but we have been able to get in. I go back to what I said: this is a very sensitive and difficult situation, and pragmatically I think that it has been handled extremely well. No doubt people who have broken the law will be charged and so on because, as I said, that is part of the police’s job. They have to control demonstrations, facilitate lawful process, preserve the peace, uphold the law and prevent the commission of offences. If people do commit offences, the police take them to court.

Perpetuities and Accumulations Bill [HL]

Committed to a Special Public Bill Committee

Moved By

Motion agreed.

Disabled Persons (Independent Living) Bill [HL]

Third Reading

A privilege amendment was made.

Bill passed and sent to the Commons.

Health Bill [HL]

Third Reading

Clause 1 : NHS Constitution

Amendment 1

Moved by

1: Clause 1, page 1, line 9, at end insert “or (Other revisions of NHS Constitution)”

My Lords, I shall speak also to Amendments 2 to 10. On Report, the noble Earl, Lord Howe, tabled an amendment to ensure that Parliament is given an opportunity to scrutinise any changes to the guiding principles set out in the NHS Constitution. In the government amendments that I bring forward now, we have accepted the principle of the amendment but suggest an alternative form of wording to ensure that it fits with the existing clauses. These amendments require the Secretary of State to make regulations, under the negative resolution procedure, to address any changes to the guiding principles set out in the NHS Constitution.

Although they may look extensive, the amendments are minor and technical. They make it clear that regulations must be laid whether principles are changed as a result of the 10-yearly review of the constitution or as a result of more periodic revisions. To achieve that, they make clearer the distinction between a review and a revision, and correct cross-references.

Any changes to the guiding principles in the future would already require consultation, as we set out in the Bill from the start. However, I have listened to the concerns of the House about the role of Parliament in determining the guiding principles, and the amendments address those concerns. I hope that noble Lords are content with these amendments and I beg to move.

My Lords, I very much appreciate the Government’s acceptance of the underlying principle of the amendment carried by your Lordships on Report, and of course I accept the reformulation proposed by the Minister.

The fear that some people had that an amendment of this kind might open the floodgates to litigation against the NHS was never one that I considered to be well founded. I still do not believe that. It would have validity if the scope of these amendments were to extend more widely than they do—if, for example, they were to embrace specific rights. However, in so far as the guiding principles are already underpinned by existing primary legislation, there cannot reasonably be a fear that, by linking the constitution directly to the parliamentary process, we will be creating the potential for a lawyers’ charter.

As I said, I am most grateful to the Minister for having given this matter his close consideration and for having brought forward these amendments. I hope that they will be accepted.

My Lords, I strongly support what has been said. It is extremely good that the Minister has felt able to modify the Bill in this way. A lawyers’ charter is not a particularly fearsome prospect for me. However, the best protection against lawyers’ charters is clear drafting, and these amendments are clearly drafted.

Amendment 1 agreed.

Clause 2: Core principles

Amendment 2

Moved by

2: Clause 2, leave out Clause 2

Amendment 2 agreed.

Clause 4: Availability, review and revision of NHS Constitution

Amendments 3 to 7

Moved by

3: Clause 4, page 3, line 9, leave out subsections (2) and (3)

4: Clause 4, page 3, line 15, after “Constitution (” insert “referred to in this Chapter as”

5: Clause 4, page 3, line 25, at end insert—

“( ) The guiding principles may not be revised as a result of a 10 year review, except in accordance with regulations made by the Secretary of State setting out the revision to be made.”

6: Clause 4, page 3, line 26, at end insert “made as a result of a 10 year review”

7: Clause 4, page 3, line 29, at end insert—

““the guiding principles” means—

(a) the 7 principles described in the NHS Constitution published on 21 January 2009 as “the principles that guide the NHS”, or(b) any revised version of those principles set out in the NHS Constitution published under this section or section (Other revisions of NHS Constitution);”

Amendments 3 to 7 agreed.

Amendment 8

Moved by

8: After Clause 4, insert the following new Clause—

“Other revisions of NHS Constitution

(1) This section applies to any revision of the NHS Constitution made other than as a result of a 10 year review (including any such revision which revises the guiding principles).

(2) Before any revision the Secretary of State must undertake appropriate consultation about the proposed revision.

(3) The persons consulted must include such patients, staff, members of the public and other persons as appear to the Secretary of State to be affected by the proposed revision.

(4) The guiding principles may not be revised, except in accordance with regulations made by the Secretary of State setting out the revision to be made.

(5) The Secretary of State must publish the NHS Constitution after any revision.”

Amendment 8 agreed.

Clause 5: Availability, review and revision of Handbook

Amendment 9

Moved by

9: Clause 5, page 4, line 12, at end insert “(whether made as a result of a review under this section or otherwise)”

Amendment 9 agreed.

Amendment 10

Moved by

10: After Clause 6, insert the following new Clause—

“Regulations under section 4 or (Other revisions of NHS Constitution)

(1) The power to make regulations under section 4 or (Other revisions of NHS Constitution) is exercisable by statutory instrument.

(2) A statutory instrument containing regulations under either of those sections is subject to annulment in pursuance of a resolution of either House of Parliament.”

Amendment 10 agreed.

Clause 10: Direct payments for health care

Amendment 11

Moved by

11: Clause 10, page 7, line 33, at end insert—

“( ) as to arrangements to be made by the Secretary of State or the Primary Care Trust for providing patients, payees or their representatives with information, advice or other support in connection with direct payments;( ) for such support to be treated to any prescribed extent as a service in respect of which direct payments may be made.”

My Lords, these amendments clarify our intentions around supporting patients and reviewing the pilot schemes. Having listened to the excellent debates on Report and in Grand Committee, I promised to consider these issues further, and I have consulted the noble Baroness, Lady Barker. I hope these amendments address noble Lords’ concerns.

Amendment 11 would make it more explicit on the face of the Bill that the NHS should make arrangements to ensure that patients, or people receiving direct payments on someone else’s behalf, are able to access advice, information, and other support. As I have said in earlier debates, having proper support in place is vital for the success of this policy, and support could be delivered in many ways. The pilot proposals we have received contain a range of innovative ideas. We want to allow for flexibility rather than prescribe a particular approach.

The amendment will allow our regulations to be broad enough to allow innovation to flourish, while ensuring that people are well supported. It will also allow patients to buy support services using their direct payments. Some people have suggested that PCTs should commission and pay for support services centrally. Others have proposed including an element within the personal health budget to allow patients to choose the support that is right for them. It is likely that different approaches will work in different circumstances, and this amendment gives us the flexibility to test both.

Amendment 12 clarifies how we intend to evaluate direct payments. The first part highlights our objective to commission and publish an independent evaluation. Noble Lords may know that the department recently published a detailed invitation to tender for the evaluation of the personal health budgets pilot programme. We hope to have a team of independent researchers in place by the summer.

I emphasise that every pilot site will be involved in the evaluation. In practice, it is likely that a representative subset of the pilots, chosen by the evaluation team, will be examined in great detail, while the other sites contribute information. This will give both breadth and depth to the analysis.

The evaluation will, of course, specifically consider the effect of direct payments as a mechanism for delivering personal health budgets. The findings of the evaluation will be published. Moreover, before the Government can extend direct payments more widely, each House of Parliament must give its express approval, through the affirmative resolution procedure.

The second proposed new subsection in the amendment allows the Government to specify in regulations some of the issues the review should address. These include reviewing the administration of the schemes, the effect of direct payments on the cost or quality of care, and the impact on the behaviour of patients, carers and providers.

I know that the noble Baroness, Lady Barker, is particularly concerned about the potential effect of personal budgets on other services, particularly the effect on smaller specialised service providers. The amendment is deliberately worded in a general way to emphasise that we intend to examine the effect of direct payments both on the people who receive them and on those who do not. Our invitation to tender makes that clear.

Amendment 13 is a technical amendment, reflecting the addition of these paragraphs in new Section 12C. We have listened to the points raised in the debate and I believe that these government amendments respond to them. They provide explicit reassurance that we intend there to be a proper support in place for people receiving direct payments, and that the evaluation should be rigorous and independent. I commend these amendments to the House. I beg to move.

My Lords, I thank the noble Lord, Lord Darzi, for tabling these amendments. They are the product of intense discussions between the department and myself. I am most grateful that we have achieved a resolution of matters which although technical and boring are of great importance to the working of this policy. I am delighted to be able to do so in the presence of the noble Baroness, Lady Campbell, because those who sat through our discussions will see her hand in this amendment in the inclusion of the word “support”. She took me to task on my original proposals and she made them better. I am therefore pleased that this represents a victory for her, too.

I do not want to restate the arguments we had during previous stages. I am pleased that the noble Lord has seen the importance of requiring primary care trusts to pay attention to the provision of these services, not least because in the department’s own advice and guidance to commissioners, it talks about reliance on existing services such as the CAB. When these pilots take place, those services will be going through a great deal of upheaval and may not be readily accessible to people.

As regards the review, I thank the Minister for his explanation and for sharing with me the detailed spec for the review process. However, I seek clarification from him on one point. He talked about the wording of the amendment, enabling the research to focus not only on those patients who receive direct payments, but also on those who do not. I would welcome his confirmation that the wording of the amendment is such that it would not be a matter of looking only at those patients who do or do not receive direct payments for the same service, but looking at the impact of a service which is funded by direct payment on other parts of the health service. That is the point that I have been trying to make for the past week.

I am under no illusion that it will be an extremely complex piece of research. The noble Lord, Lord Darzi, talked about the need to research the cost of direct payments, but to research the cost-effectiveness of direct payments will require a level of monitoring and accountancy, and sophistication in those, which is as yet unseen. We need properly to be able to answer the question, “Does the move towards direct payments and individual budgets not only benefit patients in terms of the outcomes of those services, but decrease reliance on other services in the NHS?”. That is a critical part of the issue. From what the Minister has said, I believe that he will be able to give me a satisfactory answer. With that in mind, I thank him very much for the work that he has done to get us to this point.

My Lords, these amendments immensely strengthen this part of the Bill, and reflect a key part of the concerns raised at earlier stages from all parts of the House, including mine. Like the noble Baroness, I very much welcome all these amendments, especially Amendment 11, which seems to address an aspect of the direct payment scheme that is likely to prove central to its uptake and success, namely the provision of,

“information, advice or other support”,

for those who decide to try that scheme. I hope that these amendments will be accepted.

My Lords, I am grateful for the support that these amendments have received. To clarify the issue raised by the noble Baroness, Lady Barker, the tender for the evaluation is based on five broad areas: the effects on individual outcomes, including carers and informal carers; the behavioural change on both individuals and NHS staff; finances and cost-effectiveness; system effects, including impact on staff and other existing services, and how personal budgets have been implemented. It covers a wide range of services, so I very much hope to have reassured the noble Baroness.

Amendment 11 agreed.

Amendments 12 and 13

Moved by

12: Clause 10, page 8, line 29, at end insert—

“( ) Provision as to the review of a pilot scheme may in particular include provision—

(a) for a review to be carried out by an independent person;(b) for publication of the findings of a review;(c) as to matters to be considered on a review.( ) Those matters may in particular include any of the following—

(a) the administration of the scheme;(b) the effect of direct payments on the cost or quality of care received by patients;(c) the effect of direct payments on the behaviour of patients, carers or persons providing services in respect of which direct payments are made.”

13: Clause 10, page 8, line 30, leave out “carrying out”

Amendments 12 and 13 agreed.

Clause 13 : Innovation prizes

Amendment 14

Moved by

14: Clause 13, page 10, line 1, after “to” insert “—

(a) work at any stage of innovation (including research);(b) ”

My Lords, on Report, the noble Lords, Lord Walton and Lord Patel, and the noble Baroness, Lady Finlay, tabled an important amendment that sought to make it clear that innovation prizes would encompass research. It has always been our intention that prizes would include research; innovation is a broad concept, of which research is a vital part. The purpose of the innovation challenge prizes is to recognise and promote excellence in innovation, including research. I am grateful to the noble Lords for our useful discussions on the matter and hope that this amendment puts that important point beyond doubt. I beg to move.

My Lords, I am very grateful to the Minister for that, and for the opportunity that he gave us to meet him and members of the Bill team last Thursday. I was concerned to express the fact at Second Reading—and again in Committee and on Report—that the responsibility of the National Health Service for the education and training of healthcare professionals was not formally acknowledged in the Bill. However, after our discussions I am sufficiently reassured that any revision of the NHS Constitution and other issues would take full account of the needs and concerns of those involved in such education and training. In the light of those assurances, then, the amendment that we had considered tabling for Third Reading has proved unnecessary.

At the same time, I expressed the concern that had been conveyed to me—not least, by the Medical Research Council, the Wellcome Trust and the Association of Medical Research Charities—that the word “research” did not formally appear in the Bill. All innovation is, in many respects, dependent on research. Whether the innovation is physical, social, behavioural, scientific, or whatever its nature, achieving it depends on a background of inquiry and research. For that reason, I believe that the amendment meets our concerns precisely, and I am delighted to see it now come into the Bill.

My Lords, I do not wish to reiterate the words of my noble friend Lord Walton, except to add my thanks to the Minister for having listened so attentively and worked with us to make sure that “research” appears in the Bill. For the record, I also thank him for his recognition that research might originate outside England—for example, in Wales—but result in excellent innovation in England, and that Welsh researchers would not be denied credit simply because their research was done on the other side of Offa’s Dyke.

As we have come to the end of the government amendments to the Bill, I take this opportunity, on behalf of all patients waiting for transplants and on behalf of their families who struggle with the difficulties of transplants, to thank the Minister and the Bill team most sincerely. Although not directly relevant to the amendment, the guidance on the preferential donation principle, which I introduced earlier, is now being taken forward. I have had the privilege of being able to comment on the confidential draft guidance and it looks satisfactory. When linked to the training of transplant co-ordinators, I think it will greatly improve donation rates. I hope that those families with the rare situation which I outlined will ensure that the wishes of the person who died are respected. I am most grateful to the Minister and his team.

Amendment 14 agreed.

Amendment 15

Moved by

15: After Clause 32, insert the following new Clause—

“Private health care

(1) The National Health Service Act 2006 (c. 41) is amended as follows.

(2) In section 44 (private health care), after subsection (4) insert—

“(4A) The Secretary of State may by regulations make provision for exceptions to be permitted to the restriction mentioned in subsection (2) subject to the principle that any such exception must in all the circumstances be in the interests of the National Health Service.

(4B) The regulations may specify such other principles and conditions as the Secretary of State may consider appropriate.””

My Lords, Amendment 15 seeks to enable health trusts to develop private health services outside the private patient cap on condition that they are, in all the circumstances, in the interests of the National Health Service. I must declare an interest as the chair of a mental health foundation trust in east London and I make it clear that my own trust will not plan any changes in its own practice whether or not this amendment becomes law.

The new clause leaves the private patient cap in place, although I believe that as soon as possible it needs to be replaced by a new framework. As we debated in Committee and on Report, the cap varies from one trust to another. I shall not repeat our earlier debates; suffice it to say that the cap is well recognised to be illogical and unhelpful. By providing for exceptions, the amendment opens up an opportunity for rational decision-making as long as the interests of the NHS are served. Introducing that one principle into the Bill is something to which all sides of the House would subscribe.

I hope that proposed new subsection (4B) in the amendment will enable Ministers to introduce regulations which will extend important principles to all private patient service developments, and not only to services developed over and above the level allowed by the cap. Examples would include the principle that private patient services will not be subsidised by the NHS and the principle that those services will not dilute or adversely affect the core values of the NHS. In my view, both are crucial principles but they are absent from the 2006 Act.

A further powerful argument in favour of the amendment is that it will enable the NHS to benefit from the considerable export opportunities provided by our highly respected NHS clinicians. We can ill afford to squander that opportunity. The amendment would protect the NHS, while increasing flexibility. I beg to move.

My Lords, I cannot add very much to what the noble Baroness has said. The virtue of this amendment, as drafted, is that it would allow the Government to make changes to the rules governing the private patient income cap at a time entirely of their choosing. It would not tie the Government down and it would allow Ministers to reformulate these rules in whatever way they decide, as long as any changes conform to the key principle spelt out in the amendment. In the absence of any likely legislative vehicle for making a change of this kind, at least in the near future, I hope that the amendment will be considered seriously by the Government.

My Lords, I very much hope that my noble friend will reject this amendment for the reasons which were very carefully put by a number of us in Committee. These are incredibly sensitive matters for the House of Commons. When the original legislation went through, undertakings were clearly given by Ministers in the Commons to our Back-Benchers which enabled them to vote for the whole principle enshrined in foundation trust status. I hope that my noble friend is not tempted in any way to re-enter that discussion. If these matters are to be considered, it should be on the back of primary legislation which starts in the House of Commons, where Members can then consider them in Committee and they can be dealt with comprehensively before they enter this place. I hope that my noble friend will not take this opportunity to amend the law in any way in this area.

My Lords, I support the amendment, to which I have put my name. I declare two interests. I was the Minister who moved the offending clause in the 2003 Act in this House. As I said on Report, I repent my sins. I do so again. I will explain why I differ from my noble friend Lord Campbell-Savours. First, I must declare an interest as an adviser to the General Healthcare Group, which is a private hospital. It is in no way asking me to support this amendment; I have had no conversations with the General Healthcare Group about it. I am doing this because I think that the legislation, as framed, is wrong and detrimental to the NHS.

Why do I think that? First, the world has moved on since we passed the legislation in 2003. There was a different set of circumstances then. We now know that foundation trusts are an important part of the NHS landscape. They have proved very successful. If you look at the Healthcare Commission’s ratings, foundation trusts are in many ways extremely successful because of the excellence of their services and their management of financial resources. There were, if we are honest, doubts about foundation trusts at the time that this legislation was passed. Some of those doubts were expressed in the issue of a private patient cap. That is no longer the context in which we are dealing with this.

The cap itself has been arbitrary. It chooses a base year when people were in different positions in terms of their private incomes. The consequence of that definition has been that whether particular trusts are caught by the cap is almost random. I do not make a major claim about this, but it has in a few cases prevented an NHS trust getting foundation trust status because its business case depended—partly because of its international reputation—on growing private practice, usually from overseas earnings that would benefit the NHS. Legislation that is supposed to protect the NHS is, in my view, damaging it. We are moving into a financial climate where the NHS—if I may put it as gently as this—will need every penny that it can get to meet public expectations, which always continue to rise in our modern world, and some of the demographic challenges that it will face. It seems a bit of an own goal to restrict the ability of NHS trusts to marshal their activities, without detriment to NHS patients, so that they can generate some income from this.

My noble friends have said that the case is now under judicial review at the High Court, so it is difficult to deal with this; we should wait for the judgments and then move the legislation that may need to be put in place. I have always found that the courts welcome clarity from the Executive about what their policy intents are. This is not to prejudge the case that is before the High Court, and which was, as I recall, taken apart by UNISON. However, it would be helpful for the Government to be absolutely clear about where they stand on this issue. The issue seems to be one of making it very clear that there is a public acceptance that the present cap is arbitrary and unfair; and that there is a willingness on the part of the Government, at an appropriate time, to make changes that will make it fairer and will not stop the NHS benefiting from raising income from private patients—without detriment to NHS patients—which could provide extra income to develop NHS services. I would like much more clarity on this issue because the worst of all worlds would be a judicial judgment which is more restrictive than what we have at the moment, and that cannot be beyond peradventure. We need to be clear about the Government’s position so that we do not end up with an even more restrictive cap and no legislative opportunity to change things back, even to where we thought they were in 2003.

That is why I support the amendment. I hope that we will have some reassurance from the Government on this issue.

My Lords, during our earlier deliberations I had a great deal of sympathy with the position put forward by the noble Lord, Lord Campbell-Savours. My name is on the amendment and the reason for that is very simple. We could debate how foundation trusts operate in great detail and at considerable length—as we did during the passage of the legislation to which the noble Lord, Lord Warner, has just referred—but, ultimately, proposed new subsection (4A) contains the key point, that any private-patient work must be in the interests of the NHS. However long we continue to debate this issue in great detail, I am persuaded that that is the critical point, and the fact that we have agreement across the House on it is important. Another important point is the arbitrary nature of the way in which the cap is working and the problems that it creates for mental health trusts in particular. Those two factors alone were sufficient to convince me that this is a move forward in the right direction.

My Lords, does the noble Baroness accept that this relates not only to mental health trusts? This is a Trojan horse that could be used by a future Government to completely undermine whole areas of the National Health Service. I am astonished to find her name on this amendment.

My Lords, I support the amendment because, as the noble Lord, Lord Warner, said, we are in a very changing world. I shall refer only to the area of cross-border healthcare. The present amendments are opening up our thinking to the changes happening in health services. At the moment we have a minimal cross-border healthcare system but the European Union and the Commission are looking at developing it and that will be an added complication. Anything that frees up health trusts’ ability to think through the provision of alternative ways of developing their services would be helpful. I therefore support the amendment.

My Lords, I, too, strongly support the amendment. My attitude may be coloured by my personal experience, but I look back to the time when Mrs Castle, later Baroness Castle, attempted to remove all private beds from all National Health Service hospitals. I was a whole-time NHS consultant with a personal chair and I had a major research unit studying neuromuscular diseases in Newcastle-upon-Tyne. In that city there were three major hospitals, each of which had one private bed. The result, to my great regret, was that I could not admit to hospital patients who were referred to me from other countries—patients from Australia, and even two from the United States—to take advantage of my unit’s facilities for research and investigation. There were no private beds to which I could admit them and no private hospital in that city had anything like the facilities necessary for that particular purpose.

This cap was based on private income in hospitals in 2003, but the world has moved on since then. Particularly within our foundation hospitals, but also within our university departments, there are professorial units with innovative procedures and treatments that are being rapidly developed and could prove to be not only extremely important for patients—after all, let us not forget the large number of patients in the UK who are insured for private medical care—but also a very attractive possibility for patients coming to this country from overseas who must by law be private patients if they are admitted to hospitals in the National Health Service.

The present cap is proving to be outdated, illogical and detrimental to processes which could benefit the NHS by bringing in substantial additional finance to support its work. The amendment is cleverly phrased to indicate that:

“The Secretary of State may by regulations make provision for exceptions”.

It rests with the Secretary of State,

“subject to the principle that any such exception must in all the circumstances be in the interests of the National Health Service”.

That is a very satisfactory way to frame the amendment and I support it strongly.

My Lords, I would like to ask a question because of what the noble Lord, Lord Campbell-Savours, said. Are there not very strong safeguards in this amendment to protect the National Health Service? I travelled back from Mauritius once with a young child whose face was covered with a terrible cancer. Would it not benefit that sort of patient to be given treatment in our hospitals, because their countries do not have the facilities? We must be a humane country.

My Lords, Amendment 15, tabled by the noble Baroness, Lady Meacher, and supported by the noble Baroness, Lady Barker, the noble Lord, Lord Warner, and the noble Earl, Lord Howe, seeks to maintain the existing rules governing the private patient income cap for NHS foundation trusts. The amendment would allow the Secretary of State to make regulations to permit exceptions to the general rule. An exception could be permitted only if it was in the interests of the NHS to do so. The regulations can specify other conditions and principles on which such exemptions may be permitted.

The Government recognise the concerns which have been presented to us. We have also listened carefully to the views expressed in debate, not least that caps set by reference to historical income levels appear increasingly arbitrary. The Government sympathise with and understand the intention and spirit behind today’s amendment.

In our previous debates on this issue I made clear the Government’s desire for a wider debate on the cap. Following the outcome of the judicial review on the current legislation, it is our intention to begin a review to address precisely how to strike the right balance between protecting NHS services for NHS patients and allowing NHS foundation trusts the flexibility they need to operate effectively in the best interests of patients. This would mean a review of the cap and appropriate action to follow.

I turn to the specifics of the amendment. It is quite right that to change the cap would require primary legislation. However, I have genuine concerns about the approach that the amendment takes and about rushing into any quick legislative fix. I would like to take a few moments to set out some of the issues raised by the amendment and explain why a broader review following a clear process would be a better and more practical route to take and be in the best interests of the NHS.

As your Lordships know, this is a complex policy area. The fact that we have already discussed it twice, in Grand Committee and on Report, highlights both the range of views that need to be taken into account and the difficulty of crafting legislation.

The amendment would enable the Secretary of State to make exceptions to the current cap. However, it would not remove the cap’s underlying principle that the private income of a foundation trust should be restricted according to levels set in 2002-03. The Secretary of State would be able to use regulations under the amendment to create exemptions to the cap; for example, to allow mental health foundation trusts to carry out private patient work. However, legal advice is that those regulations could not be used to such an extent that the effect of the underpinning primary legislation was nullified. In short, we could not use exemptions to get rid of the underlying rule. The level playing field which was described in Committee by the noble Baroness, Lady Meacher, with a new system having an equal impact on both NHS and foundation trusts, would not be achieved.

As noble Lords will be aware, a judicial review is currently considering what income counts towards the cap. The Government are an interested party in the legal proceedings, so I will not comment on the interpretation of the current provisions. However, noble Lords will wish to be made aware that, even if this amendment were accepted, there would still be the issue of what income counts towards the cap. The court will give a judgment on that issue.

We might best describe this as a quick-fix solution, and I understand why people would be tempted by it, but it would not address the issues and underlying problems with the cap that we have discussed. We need a wholesale review of the underlying rule. The Government believe that the best way to reform the cap would be to create a new test or set of principles that would apply equally to all foundation trusts, reforming the rules so that they are clear, logical and work well. We are keen not to replicate the current situation with the cap from the 2003 Act by bringing in new primary legislation without first discussing and testing it thoroughly with the NHS—the people who will put the new arrangements into practice.

We have heard in our discussions the wide range of views on the issue. Key stakeholder organisations inside and outside the NHS should be given the opportunity to contribute to a debate on the design of the new framework which should begin as soon as the judicial review is complete. We should not try to reach a consensus quickly on what the future framework should look like without consulting foundation trusts from the outset. The reform of rules that impact directly on them, in the context of an evolving health policy framework, needs to be considered in the round.

We agree that private patient activity should not lead to a poorer service for NHS patients and that private income should subsidise NHS care and, therefore, be used to improve and widen NHS services. We also agree that NHS foundation trusts must above all preserve and promote the values of the NHS. We therefore need to go through a clear, fair, practical process to develop fully the best policy solution before we legislate—which we will of course do at the first opportunity once the approach has been agreed.

I repeat our commitment to take forward a review following the outcome of the current judicial review. This is the most sensible way of making sure that any new approach reflects the views of those affected and enables us to test those practical solutions. With this assurance in mind, and with thanks to noble Lords for the valuable contributions they have made to the discussion, I hope that the noble Baroness will withdraw the amendment.

My Lords, I thank the Minister for her comments. I recognise that the amendment does not answer all the problems that the cap poses for the NHS—that is inevitable. However, the amendment does enable—quickly—some opportunities for rational decision-making that are not there at the moment.

The amendment clearly places in the Bill a principle that has the support of all sides of the House. I have been given assurances that there are people in the Government who do not have a problem with it, because it is going in the direction that the noble Baroness, Lady Thornton, indicated the Government want to go in. We are saying, “Let us take a step forward in the direction that the Government want to go”.

When the Government are able to institute a review, we would all hope to be involved in it, contribute to it and support it. Then, if possible, a consensus can be found through a good consultation process in which all the issues can be resolved, and a set of principles wider than we are able to deal with today can be put into a future Bill. However, that is all for the future. There is no upcoming health Bill, and the issues are too important to leave for an unspecified opportunity in the future. NHS foundation trusts up and down the country are struggling with this. In my view, having the principle in the Bill will affect how people operate. We have boards of governors and members councils out there that will be watching this and will know that the principle is in the Bill—if we can get it in the Bill. Personally, as somebody who passionately believes in the NHS and NHS patients, I want—and we want—that principle in the Bill. Therefore, I wish to test the opinion of the House.

A privilege amendment was made.

Bill passed and sent to the Commons.

Marine and Coastal Access Bill [HL]

Report (2nd Day)

Clause 49 : Marine plans for marine plan areas

Amendment 75A

Moved by

75A: Clause 49, page 25, line 17, leave out “section 57” and insert “sections 57 and (Meaning of “retained functions” etc)”

My Lords, I will speak to other government amendments in this group as well. The amendments appear complex, but I reassure this House that nothing in them changes whether a function is devolved, or on whom it is conferred. The only effect is to classify functions as either “retained” or “devolved” for the purposes of this part of the Bill and, in particular, for deciding when the marine policy statement should influence public authority decision-making.

Since additional procedural requirements will apply to any devolved marine plan which is intended to affect “retained”—in other words, “non-devolved” functions, it is important that we get the definitions right, and that they are capable of adjusting to the nuances of the different devolution settlements. Otherwise the risk is that we may find that plans could be prepared which affect UK functions without having gone through the correct procedure, or, alternatively, that we are inappropriately constraining the exercise of functions which have been devolved.

The policy which lies behind the amendments is straightforward and is unchanged from the Bill as published in draft and as introduced. If the marine policy statement has been adopted by the policy authority for a marine planning region, then it will be a “relevant marine policy document” for all decisions made by any public authority in relation to that region. Similarly, if a marine plan has been adopted for an area and the plan meets the conditions set out in Clause 57(4), then that plan will also be a “relevant marine plan document” for all decisions in relation to that area. However, the devolution settlements are different for each devolved Administration and use different terminology, which must be properly used to ensure that this Bill has the right effect in practice.

Clause 57(5) presently sets out the effect of the marine policy statement on different decisions. Amendments 91A to 91F amend the present Clause 57(5) to clarify it and insert the new terminology of “secondary” devolved functions and so on, which are used in the new clause inserted by Amendment 91N.

At the same time, Amendment 91G removes the present definition of “retained functions” in Clause 57(7) and (8). Amendment 91N inserts a new clause which defines “retained functions” by providing that all functions are “retained” unless they fall within the classes listed in subsection (1). The subsequent subsections in the new clause provide further detail as to the scope of each of the classes listed in subsection (1). In particular, neither “secondary devolved functions” nor “relevant ancillary functions” can be considered “devolved” if the UK Government still have substantive functions in relation to them.

Finally, Amendments 91H to 91M and 126B update or insert a number of definitions as a result of the changes to Clause 57 and the insertion of the new clause, while Amendments 75A, 77A and 99A update the cross-references to “retained functions” throughout the Bill to refer to the new clause.

I am confident that this drafting delivers the right result and properly respects both UK “retained” functions and the competence of the devolved Administrations. I beg to move.

My Lords, I shall respond to what the Minister says, first in relation to Wales. The amendments are complex and appear to be complicated, but I have read them thoroughly and, speaking specifically about Wales, I am satisfied that he has covered what I regard as the important points.

Amendments 75A and 77A are welcome, in that they spell out clearly the meaning of “retained functions” in relation to devolved authorities and legislatures. Amendment 91A would define what happens if a devolved policy authority adopts an MPS. There then follows a series of consequential amendments, Amendments 91B to 91G. Amendment 91H rightly describes the Counsel General to the Welsh Assembly Government, as he or she is the most senior legal officer in the Assembly and Government of Wales.

Amendment 91K defines the description of the First Minister in the Government of Wales Act 2006. Prior to that, between 1999 and 2006, the title of First Minister was not entirely secure in legislative terms. It also separates out a non-departmental government authority from Welsh Ministers and the legal officer.

The group follows on in Amendment 91M to define exactly what a primary devolved authority is in relation to a devolved policy authority. This gives clarity to the legislation as far as Wales is concerned. Amendment 91N is helpful in defining the retained functions for Wales. It spells out where the Welsh ministerial functions lie, and also in relation to joint functions, an interesting aspect of the Minister’s amendment.

Given that the Marine and Coastal Access Bill includes matters that directly impact upon Wales, the Welsh Assembly Government and the National Assembly for Wales, Amendment 91 is particularly helpful in defining the parameters which I am sure that the devolved bodies in Wales will absorb. Amendments 99A and 126B give further clarification, Amendment 126B on town and country planning legislation. On the whole, having looked at the detail of Minister’s amendments, I think that I can make sense of them.

My Lords, I remember, during the passage of the Scotland Act through this House, the late Lord Mackay, who was on the Front Bench for us, saying that the lopsided type of devolution that we were adopting would lead to great complexity in legislation. He said that we might well end up with a federal system simply to get the simplicity. That is probably not what we want.

This is a perfect example of what lopsided and uneven devolution brings about in legislation. The Bill is getting fatter and fatter. Quite honestly, it is becoming pretty confused as we go along. I am sure that these amendments are necessary but, unlike the noble Lord, Lord Livsey, I cannot comment on them in detail; I dare say that my noble friend on the Front Bench may do so. However, one day, we will have to simplify all this. Quite honestly, one definition leads to the need for another. It is pretty confusing.

I trust that the Government have got it right and that, if somebody spots further faults here, they will be put right in the other place. In the mean time, however, I support the amendments.

My Lords, I thank the Minister for the extremely helpful letter that was sent to Peers showing, in language that was not that much easier but in more narrative form, the effect of these amendments. I congratulate him on the final paragraph in the annexe dealing with this suite of amendments. He repeated the first sentence of it about his confidence that,

“this drafting delivers the right result”.

Yet I cannot resist sharing with the House the second sentence, which reads:

“Whilst it will never be possible to draft for every eventuality, it must be remembered that the duty to act in accordance with the MPS and plans permits public authorities to take other ‘relevant considerations’ into account, which enables flexibility in the future to adapt to unforeseen circumstances”.

I thought that was masterly.

My Lords, I also wish to thank the Minister for explaining his amendments in such a succinct fashion, especially on the back of the very comprehensive briefing that he gave us, which I picked up in my post yesterday afternoon. I am also grateful to him for admitting that it is a complex group, but I am glad to respond because it touches on an area that has exercised my mind since we first began considering the Bill. How far are we aware of what powers are devolved to which Administration, and will all the authorities find clear definition of where they are allowed to exercise authority in the future? Certainly, this group of amendments is a good attempt to address that.

Amendment 75A, which is put in more or less as a consequential amendment, is pretty far-reaching. Every marine authority drawing up its plan will have to state where it sees retained functions being involved. Will that be subject to review by the Secretary of State as part of the approval process? Will the list be confined to retained functions within marine legislation, FEPA legislation and renewable energy legislation or will it have to take in the overarching areas of retained functions such as defence, marine shipping and minerals?

It is very appropriate that this area should be subject to fairly detailed clarification in the Bill, as most of those who have spoken have mentioned. I am glad that it has been in the hands of proper parliamentary draftsmen, as I am not sure anyone else could have battled their way through all the different bits of devolved legislation that are necessarily hard for us to follow. Perhaps once these provisions are in the Bill, those with a sharper brain than mine will see whether there are areas that need tidying up.

I am glad that the Government have addressed the question of where the powers lie for any authority that withdraws from a marine policy statement. I think the Minister is aware of my misgivings about the possibility that an authority might not bother to withdraw but simply ignores the directions that are contained within the relevant marine plan. He tried to reassure me about that in Committee. Otherwise, I am much encouraged by the group of amendments.

My Lords, first, I am grateful for the general welcome there has been for this group of government amendments. Let me reiterate that it is extremely complex and I am very grateful for the tolerance shown by noble Lords in this debate.

I welcome the comments of the noble Lord, Lord Livsey, about clarity. I thought that his analysis from a Welsh point of view was impeccable. The noble Baroness, Lady Carnegy, reminded us of the riveting debates on the Scottish Bill as it went through your Lordships’ House. We all of course recall Lord Mackay and the contribution he made to those debates and that legislation. He is still very much missed in your Lordships’ House.

I do not quite agree that we have lopsided legislation—

My Lords, lopsided devolution was the phrase; it is not a rude term but a statement of what we have. Legislation is not even between different parts of the country. We have legislated differently for different areas. That is why we referred to it at that time as lopsided devolution.

My Lords, I am grateful, but one person’s lopsidedness is another person’s flexibility in meeting the circumstances of each devolved Administration.

My Lords, the noble Baroness, Lady Carnegy, is not a lone voice in this. The situation in Wales is not satisfactory. We should much prefer to have the kind of settlement that Scotland has had; if we did, we would not have such complex legislation in front of us today.

My Lords, although it is very tempting to debate particular aspects of devolution in relation to Scotland and Wales, I had better desist from doing so. However, I say to the noble Baroness, Lady Carnegy, that I very much hope that the end result is not a federal system of government. On the 10th anniversary of the establishment of the Scottish Parliament, the polling showed up some very interesting results, which were encouraging for those of us who believe that the Union has much for which to commend itself. However, I realise that the more I speak, the more I tempt noble Lords to debate devolution in general.

Regarding the specifics of my amendments, noble Lords may ask why it has taken until now for the Government to provide the clarity required. The short answer is that the final discussions between the devolved Administrations and the UK Government that took place in the autumn—which led to the confidence that I have stated in this House before that we can make this work from the UK’s point of view—meant that a lot of work then had to be done to ensure that the Bill was up to scratch in relation to the devolution settlement. We have been working very closely with counterparts in Scotland, Wales and Northern Ireland and with parliamentary counsel in going through the detail of this revised clause. Of course, the framework of responsibilities within the devolution settlement is extremely complex, but I am confident that we now have it as right as it can be. I say to the noble Baroness, Lady Carnegy, that if we spot further changes that need to be made, there will be another opportunity to do so. I hope that that will not be necessary but, as a result of these amendments, we now have the support of all the devolved Administrations regarding the definitions that we are proposing.

I am grateful to the noble Baroness, Lady Hamwee, for her comments on my extremely lengthy letter. She is right to say that I left a caveat in the penultimate sentence, but that is just a sensible precaution and I do not think that anything more should be read into it.

In Committee, the noble Duke raised his concern that this is a very complex area. Although we are confident that we have it right, and the UK Government and devolved Administrations understand their respective responsibilities, ensuring that that is communicated to all the people who will be affected by this legislation in the future is a considerable challenge. He is right about that, and we will have to think very carefully, as will the other Administrations, about how that is to be done.

Regarding the noble Duke’s specific question, my understanding is that the public authorities already know which functions are devolved and which are retained, so we do not think that that is particularly an issue. I reiterate, as I have done on many occasions, that Part 3 does not affect the devolution settlement, however much the noble Lord, Lord Livsey, wishes that it does.

Amendment 75A agreed.

Amendments 76 and 77 not moved.

Schedule 6 : Marine plans: preparation and adoption

Amendment 77A

Moved by

77A: Schedule 6, page 231, line 32, leave out “section 57” and insert “sections 57 and (Meaning of “retained functions” etc)”

Amendment 77A agreed.

Amendment 78

Moved by

78: Schedule 6, page 232, line 5, at end insert—

“( ) the Scottish inshore region,”

My Lords, I beg to move Amendment 78 and will speak also to Amendment 79, but not at any length on either. I will probably demonstrate that, helpful as I have found the Minister’s letter, I have still not got to grips with the devolution aspects of the Bill.

The first of my amendments is to paragraph 3(2) of Schedule 6, where we are told that:

“The marine plan authority for –

(a) the English inshore region, or

(b) the Welsh inshore region,

must also take all reasonable steps to secure that any marine plan for a marine plan area … is compatible with the relevant Planning Act plan for any area in England, Wales or Scotland”.

My amendment would add a further reference to Scotland, because I seek to understand how this paragraph works. I am certainly not trying to interfere with the devolution settlement. I wrote down a number of possibilities as to what it might mean, and I have crossed out most of them in my notes; I do not want to demonstrate my ignorance absolutely and totally. I wondered whether it was because of the reference to adjoining and adjacent areas in the next sub-paragraph, but I would be grateful if the Minister explains how paragraph 3(2) operates as regards Scotland.

Amendment 79 would take out the words “all reasonable steps”. Taking all reasonable steps to ensure compatibility, by definition, raises the issue of conflict and begs the question: what if they are not compatible?

My Lords, I may be wrong, but it seems that Amendment 78 is not appropriate. Under Clause 48(1)(a), the Scottish inshore region is not applicable in the Bill. One cannot legislate for it in this Bill.

The way the waters of Scotland are now dealt with in the Bill is somewhat confusing. I do not think there is any way round it and the Scottish Parliament is quite happy about this. The Scottish inshore waters are being legislated for in the Scots Parliament; it is busy getting on with that now. The offshore waters are the mixture of one parliament responsible for some things, and another for others. How the boats sailing between the two will cope remains to be seen, but this is the arrangement we have. I do not think I could support Amendment 78, because I do not think it is applicable.

My Lords, I welcome the probing nature of my noble friend Lady Hamwee’s amendment, and her reassurance that she does not intend to impede on the devolution settlement. It raises and helps to focus on an issue which arises out of the boundary between the south-west of Scotland and the north-west of England in the Solway Firth. There were amendments in Committee which I and the Government brought forward to address this.

Since then I have received representations from Mr Gordon Mann of the Solway Firth Partnership about concerns which the partnership has about the future of marine conservation in the Solway Firth. That partnership was established in the early 1990s in response to the growing issue of integrated coastal zone management. In the Solway Firth a particular need was identified to have well joined-up integrated coastal zone management, not least because of the national boundary that goes though it. That boundary inevitably increases the number of agencies involved, operating under different legal systems north and south of the border, and different cultures north and south of the border can lead to different management arrangements. Therefore, I understand that the partnership has been worth while in bringing people together from the Scottish and English sides of the Solway Firth to identify issues and actions that are necessary to secure an environmentally sustainable future of that sea.

The concern now being expressed is that there is no likelihood of sufficient consistency and co-ordination between the MMO, which will be established under this legislation, and the work done by Marine Scotland, which has already been established as an executive agency of the Scottish Government and which will operate under the Marine (Scotland) Bill that is currently before the Scottish Parliament. Assurances have been given, but they have no statutory foundation. It is believed that here is a real need for joint planning. Having been born and brought up in Annan in Dumfriesshire on the Solway Firth, I know only too well that here we have an ecosystem that does not recognise a national boundary. Therefore, it is important that there is some kind of shared responsibility.

I understand that under the Scottish Bill, Marine Scotland will have the power to delegate the preparation of a local plan. That power of delegation is not available to the MMO. Defra has responded to representations that there will be an obligation to consult, but that is not believed to be sufficient. The amendment raises the issue of whether there is an interaction between the responsibility of Scottish Ministers and the inshore plan which directly impinges on an English inshore plan. Perhaps the Minister will indicate a willingness to engage with those who have an interest in the ecosystem and the management of the Solway Firth, so that when the Bill arrives in another place further consideration will have been given to identify whether there are sufficient mechanisms in place to address important issues and underpin the work that has been done since the early 1990s in trying to get a co-ordinated approach to coastal management in the Solway Firth.

My Lords, I was enjoying my noble friend’s response to a question about the difficulties of the devolution settlement, thinking that I had a rather straightforward amendment to deal with. But I am now faced with the situation in which the noble Baroness, Lady Hamwee, wants clarification; the noble Baroness, Lady Carnegy, thinks that the amendment has nothing to do with the Bill; and the noble Lord, Lord Wallace, is asking about the boundary of the Solway Firth. I am in deep waters here, my Lords—I am not sure how deep the Solway Firth is, but I am going to struggle.

Let me begin with the relatively sunny uplands before I get to the deep waters of the Solway Firth. Let me say—

My Lords, we know all about treacherous waters, don’t we? Let me say to the noble Baroness, Lady Hamwee, that I have little to add to what the noble Baroness, Lady Carnegy, said. Clause 48 sets out the marine plan authorities, and it does not include a marine plan authority for the Scottish inshore region because the Marine (Scotland) Bill, now being considered by the Scottish Parliament, covers planning for the Scottish inshore region. As there is no marine plan authority under this Bill for the Scottish inshore region, we cannot place obligations on something that does not exist. The valid point made by noble Lords will need to be considered in the context of that Bill when the Scottish Parliament is considering it, and we will of course draw its attention to the issues raised today. But this is very much a matter for that Bill and its consideration, and without grievously affecting the devolution arrangements we could not in this Bill legislate in that context for Scotland. That is why we do not propose to do so, and therefore I hope that the noble Baroness will regard her Amendment 78 as a probing one and will feel that she has received a satisfactory answer.

Amendment 79 is different. It would remove the wording relating to “reasonable steps”; in effect, that would make full compatibility mandatory and take away any reference to what is reasonable in the circumstances. Let me begin by reiterating that compatibility between terrestrial plans is extremely important. We want to see a seamless, integrated approach at the coast—not least on the Solway Firth, which the noble Lord, Lord Wallace, identified. We included paragraph 3 in the Bill to acknowledge the Joint Committee’s recommendation that we needed to make that very clear. Yet ensuring absolute compatibility—rather than working towards as much compatibility as we can achieve—is not something that we can guarantee without disproportionate cost.

The resources required by a maritime plan authority under an absolute duty to ensure compatibility with any related terrestrial plans, not just those adjoining or adjacent to the marine plan area in question, would be absolutely enormous. Beyond doing everything reasonable to ensure that plans are compatible, it could require the marine planners to imagine and work through every possible combination of potential development, location and circumstances to identify any situation in which the two plans might conflict.

In our earlier debates on the need for consistency between the marine policy statement and national policy statements, the noble Baroness herself acknowledged the near impossibility of eliminating all potential conflict, particularly between “two sets of statements” that may have,

“developed at different times, with slightly different considerations”. —[Official Report, 5/5/09; col. 509.]

That is how she expressed the problem. She also described the absence of any conflict as,

“the best of all worlds”.—[Official Report, 28/1/09; col. 330.]

That burden of ensuring total compatibility would not and could not fall only on the marine plan authority, which would necessarily need to work closely with the terrestrial plan authorities to ensure a shared understanding of how terrestrial planning policies were expected to be interpreted and how they would relate to marine policies.

With no limit of what is reasonable, this process could go on indefinitely, delaying the implementation of any marine planning and increasing the cost of the exercise for both terrestrial and marine authorities. That would obviously make it difficult to achieve our goal of preparing effective and, as far as we can obtain them, compatible plans for the whole inshore region in reasonable time. For the reasons that I have identified, an absolute duty is, as I am sure that all those in the House would recognise, an obligation that we could not put into the Bill.

We have drafted an equal arrangement, which we think will assist planning authorities both on land and at sea to reach meaningful agreement on how their plans should work together. We cannot ask the marine plan authorities to do more than is reasonable or to throw unlimited resources at what might be a well-nigh impossible goal of eliminating any potential for conflict. We will strive for full compatibility; that is the philosophy behind the Bill. Compatibility is in everyone’s interests, but it has to be within the bounds of what is reasonable and practical, both in terms of resources and time.

There are safeguards in place. Both the marine and terrestrial plans are subject to extensive public scrutiny, providing as many eyes and minds as possible to help identify and eliminate any potential incompatibilities. This is not about picking and choosing whether to be compatible with terrestrial plans, but the duty is clear: to do everything reasonable to ensure that marine plans are compatible with them. If plans were incompatible without good reason they would, of course, be open to challenge.

Every time marine or terrestrial plans are updated, each always having regard to the other, they will become more closely and effectively integrated. In reality, we think the potential for significant conflict is low, but to imagine that it could be taken out altogether is not sensible. As we said last week, planners are expert at integrating and reconciling government policies when making their decisions, and we should acknowledge that level of expertise.

I am confident that the mechanism we have proposed, by which marine planning authorities must take all reasonable steps to ensure compatibility with terrestrial plans and, in return, terrestrial planning authorities will have regard to national policies, including the MPS and marine plans, is the right balance. It is not the function of this legislation to set an impossible task for the marine planning authorities, as I hope the noble Baroness will recognise. Decision-makers may always take into account other relevant matters, such as contradictory plans. Of course, it is a decision-maker’s job to be good at resolving such situations. We should trust them to do so within the framework of the legislation which, clearly, indicates that compatibility should be striven for, but not to the point where it becomes an absolute goal which is unrealisable.

I say to the noble Lord, Lord Wallace, that I struggled with the Solway Firth. He will have to give me a little more time to think about that issue. He will appreciate fully that we await the progress of the Scottish Bill for the arrangements which will be made for Scotland. I am all too well aware that in all legislation of this kind the issue with regard to a boundary is always of importance and the boundary which involves a fluctuating ecosystem is particularly difficult. I shall write to the noble Lord on that point as I do not have an answer with that level of detail. I hope that he will accept that the framework of the Bill, in the context of the areas that it covers as far as England and Wales are concerned, strives to assert that there will be the necessary reconciliation of interest. That will apply as much to England and Scotland as to other parts.

My Lords, I am grateful that the Minister will write to me. I did not expect a detailed answer. Will he also give an indication of the willingness of his officials to engage with those of us on both sides of the Solway Firth to see whether things can be done to ensure that the two legislatures can dovetail to find a solution which he would be willing to engage with as the Bill proceeds to another place?

My Lords, as regards the Scottish counterpart, before this legislation was drafted there was a substantial exchange of views. As this Bill and the Scottish position develop, there will be an opportunity for full consultation. I am happy to give him that assurance. I prefaced my remarks in response to this amendment by indicating that, as regards England, it will be necessary to search for agreement and compatibility, in the context of this Bill. When the boundary of England and Scotland is involved, exactly the same principles must obtain.

My Lords, I should know better than to try to table probing amendments seeking to understand what the legislation means. I thought that if I took out the words “or Scotland” I would draw opprobrium. That would have been another way of approaching it. I was not seeking support for either amendment, but if my noble friend would like me to table another dumb amendment—to which he might not want to put his name—at a later stage, to allow the Solway Firth to be debated further, I would be happy to help.

I am not sure that I am any wiser about the second amendment. The only words that the Minister used that answered my question were “open to challenge”. My problem is that I do not know if this needs further discussion, but I can see that it will not happen this afternoon. I beg leave to withdraw the amendment.

Amendment 78 withdrawn.

Amendment 79 not moved.

Amendment 80

Moved by

80: Schedule 6, page 236, line 20, at end insert—

“(c) the extent to which matters raised in representations have been resolved,”

My Lords, Amendment 80 is on a different subject. It follows a debate in Committee about whether there should always be an independent investigator. In resisting that amendment, the Minister said:

“Our aim is to ensure that the plans prepared have the support of the local community as well as the various industries, interest groups and regulators who, in one way or another, will be using the plan or subject to it. It is clearly in everyone’s interest to ensure that issues are resolved and consensus reached where possible”.

The Minister went on, understandably:

“It will inevitably not be possible to please all of the interests all of the time”.—[Official Report, 23/2/09; col. 25.]

My amendment simply adds consideration of the extent to which matters raised in representations have been resolved. I have simply aimed to encapsulate the Minister’s explanation and to pin the matter down a little more. That is the quite straightforward purpose of Amendment 80, unless somebody tells me that it means something completely different. I beg to move.

My Lords, last time I did not satisfy the noble Baroness with my response to her amendment, although I spoke at some length. I have a reasonably lengthy reply to this amendment, but the note from my officials also says, “This amendment seems sensible and we should consider it”. We will.

Amendment 80 withdrawn.

Amendment 81 not moved.

Clause 52: Duty to keep relevant matters under review

Amendment 82

Moved by

82: Clause 52, page 27, line 6, at end insert—

“( ) The reference in subsection (2)(a) to the cultural characteristics of the authority’s region includes a reference to characteristics of that region which are of a historic or archaeological nature.”

Amendment 82 agreed.

Amendment 83 not moved.

Amendment 84 not moved.

Amendment 84A

Moved by

84A: After Clause 52, insert the following new Clause—

“Duty to further the conservation of biodiversity in the Scottish Offshore Region

(1) It is the duty of every public body and office-holder, in exercising any functions in the Scottish offshore region, to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions.

(2) In complying with the duty imposed by subsection (1) a body or office-holder must have regard to—

(a) any strategy designated under section 2(1) of the Nature Conservation (Scotland) Act 2004 (asp 6), and(b) the United Nations Environmental Programme Convention on Biological Diversity of 5 June 1992 as amended from time to time (or any United Nations Convention replacing that Convention).”

My Lords, in moving Amendment 84A, I will speak also to Amendment 84B, because I see them very much as alternative amendments. Amendment 84B is in the same terms as the amendment that I proposed in Committee. I indicated then that it was, in essence, a probing amendment to try to identify the extent—if any—to which the Scottish Parliament had a power to legislate to impose a duty of biodiversity on public bodies in the same manner as it had for issues in terrestrial Scotland and the seaward limit up to 12 nautical miles. Could it do so for what we have come to know, lovingly, as the offshore region, which extends from 12 to 200 nautical miles?

It was clear from that debate that the current devolution settlement did not provide for the Scottish Parliament to be able to do that; nor, indeed, did the agreement that was reached between the United Kingdom Government and all the devolved Administrations on how to proceed with regard to marine management. The structure, which we have now discussed many times, is one of executive devolution, rather than legislative devolution, hence the very specific power that would be given under Amendment 84B. It would give the Scottish Parliament a power—if it wished to exercise it—that would allow Ministers to incorporate a general duty of biodiversity on public bodies when bringing forward the marine plan for the Scottish offshore region.

It is recognised, too, by the Scottish Government that their competence is limited in this. The Scottish Cabinet Secretary for Rural Affairs and the Environment, Richard Lochhead, said as much to the Liberal Democrat spokesman on marine issues, Liam McArthur, when the matter of the legislative consent motion was before the relevant committee of the Scottish Parliament in January of this year.

Marine Scotland is the executive arm of Scottish Ministers and has responsibility for marine science, planning, policy development and management. Amendment 84A would enable the United Kingdom Parliament to confer on public bodies a responsibility for biodiversity. Amendment 84B would enable Marine Scotland, in taking forward its responsibilities, to have that power if the Scottish Parliament so wished. The wording used is in the Nature Conservation (Scotland) Act 2004, which, as I have indicated, extends at the moment only up to the 12-mile limit.

It is clear that executive devolution will not confer powers on Scottish Ministers, but imposing this duty on public bodies has certainly been supported in Scotland. Under the previous Administration in the Scottish Parliament, the Advisory Group on Marine and Coastal Strategy was set up to look at the whole issue of the marine environment and it published its report in March 2007. It had a number of working groups and work streams and, in its contribution to the report, the work stream relating to marine nature conservation said:

“From the marine nature conservation perspective, the main requirement is that measures relating to nature conservation can easily be integrated across administrative boundaries, including the boundary currently placed at 12 nautical miles … and that these can be integrated into measures for the wider regional seas (however these are defined)”.

It went on to recognise that because the devolution settlement is as it is, that would require Westminster legislation; that it was not at the hand of Scottish Ministers.

In its concluding paragraph, the report of the work stream states:

“While it is not specifically a Scottish competence, and thus outwith the remit of AGMACS, we also support the proposal to extend species protection measures equivalent to those in the Wildlife & Countryside Act 1981, as amended by the Nature Conservation (Scotland) Act 2004, into the zone from 12 to 200 nautical miles”—

I understand that that has been done under subsequent regulations—

“and to extend the ‘biodiversity duty’ on all public bodies and office holders into this zone, and would commend the definition of that duty in the Nature Conservation (Scotland) Act”.

So there has been a recommendation that the duty should be extended into the offshore.

The Scottish Government, in their consultation White Paper, Sustainable Seas for All, indicated that they wished to see the biodiversity duty on all public bodies. The paper states:

“If Scottish Ministers achieve further devolution of nature conservation in the offshore beyond 12nm, the Scottish Ministers would propose extending the scope of the duty to apply to all public bodies exercising functions in the offshore area. If further devolution cannot be agreed we would discuss with the UK Government how best to take forward this proposal”.

It is clear that only a limited devolution has been agreed which does not allow Scottish Ministers to do this. The amendments offer the House a choice: we can either devolve that power to the Scottish Parliament or, because it is stated in the devolved settlement that this Parliament would take the lead in this area, we can, perfectly properly, legislate to impose that duty, which quite clearly enjoys support north of the border.

When the matter was debated on 23 February, the Minister stated in his reply:

“On biodiversity, the simple and straightforward answer is that, although we do not use the wording used by the noble Lord, we believe that we have covered the matter in the Bill. In Clause 121, there is a duty on public bodies, including those in the Scottish offshore area, to further the conservation objectives of designated sites. Moreover, public authorities must have regard to advice from the statutory conservation body, which, for the offshore region, is the Joint Nature Conservation Committee”.—[Official Report, 23/2/09; cols. 15-16.]

The point is that the duty is not solely for designated sites; it is a general duty for public bodies when exercising functions in relation to the offshore area which is set out in more detail in the Nature Conservation (Scotland) Act and incorporated by reference in the amendment. Scottish Environment LINK told me recently that it does not believe that the present legislation goes far enough, nor is it competent for the Scottish legislation to cover it. It is concerned that there is a gap in the arrangements which it is the purpose of this amendment to bridge.

I hope that the amendment will commend itself to your Lordships’ House. Both Governments are keen to ensure a marine ecosystem where nature conservation is taken forward. A gap has been identified; I do not believe that this legislation addresses it; and the purpose of my amendment is to ensure that a proper biodiversity duty is put on public bodies so that the boundary line at 12 nautical miles becomes meaningless. It seems a nonsense that a duty exists up to a certain point but not at 12.5 miles from the coast. The amendment seeks consistency right up to the 200-mile limit. Therefore, I beg to move.

My Lords, I thank the noble Lord, Lord Wallace, for tabling the amendments and probing the whole question of biodiversity and conservation, which we are concerned with in all areas of the United Kingdom as much as in Scotland. Many amendments have been tabled at all stages of the Bill which show the level of concern about the difficulties that could arise from the various approaches to conservation that different authorities may take.

I do not envy the Minister in responding to these concerns. Not only are devolution arrangements impossibly complicated but the system of agreement means that the effect of a change in one arm is not readily apparent in another. The Government claim to be covering one element of the concerns of the noble Lord, Lord Wallace, by devolving responsibility for the implementation of the EC wild birds and habitats directives to the Scottish Executive for offshore waters adjacent to Scotland. How and when will that take place?

The Bill mentions sustainable development as one of its aims. Including biodiversity places a constraint on that concept. The Government have provided a draft strategy for marine protected areas, which most noble Lords here today will probably have recently received. In it, the Government emphasise biodiversity for England and Wales, but I do not think that biodiversity is mentioned in the Bill. Too strict an interpretation of biodiversity could create a problem if some new species or organisms were introduced that were detrimental to other elements of current biodiversity. Introducing a species increases biodiversity, but there is a choice to be made as to whether it is beneficial.

I have heard scientists explain recently that we may find as we progress into the future that ecosystem evaluations are of greater importance than biodiversity evaluations—the Government talk in their draft strategy about ecosystem service provision. If powers are to be given to the Scottish Parliament, it may be highly restrictive if they are to be limited to biodiversity.

Amendment 84B would place a duty on Scottish bodies that is not placed on others. I shall therefore listen to the Minister’s response with much interest.

My Lords, the noble Lord, Lord Wallace, said that there was a gap, and he is perfectly right. This is one of the strangest parts of the Bill. Ministers in the Scots Parliament decide things and Westminster legislates, as I understand it—that is the problem. One has to realise that, when you move out into offshore waters away from Scotland, you come to areas where energy comes into it—where actual and potential oil fields exist. There could be a conflict of interest between, say, the excavation of a potential oil field and the need to protect natural diversity at sea. It is very important that the same legislature should be legislating for those two things. As it stands, it is the Westminster Parliament.

We must be very careful about this. Already the Scots Parliament and Ministers are referring to offshore as well as inshore waters as “Scottish waters”—they are blurring the distinction. If we blur it further, we may be in trouble. For the United Kingdom, oil is a very different matter from biodiversity in those parts of the sea. It is a very important issue that could affect devolution and whether Scotland one day might become independent. We have got to be very careful about this. I can understand that this may be a solution to the gap, but I am afraid that the gap must continue to exist, inelegant though it is in the context of arrangements in the Bill.

My Lords, once again the noble Baroness has put her finger on some general principles. I will start by making it clear that under the existing devolution settlement, the Scottish Parliament has legislative competence in the offshore area for commercial fishing and for the extraction of marine aggregates. In addition, it has executive responsibility for marine licensing and renewable energy. The UK Government currently retain sole responsibility for defence, oil, gas exploration and exploitation, shipping and nature conservation. Assuming that the Bill receives Royal Assent in its current form, the Scottish Government will be given executive responsibility for designating marine conservation zones in the offshore area, subject to the agreement of the UK Government. The Bill will also give the Scottish Government executive responsibility for marine planning in the offshore area—again subject to the agreement of the UK Government.

The Scottish Government will retain the other functions that it already enjoys, but I say to the noble Baroness that the UK Government will retain sole responsibility for defence, oil and gas exploration and exploitation, and shipping. The exercise of such functions will, however, be subject to any relevant marine plan, provided that Scottish Ministers have adopted the marine policy statement.

My Lords, I thank the Minister for giving way. Am I completely out of the picture when I say that the reservation of energy reserves includes coal?

My Lords, we will come to the question of coal later. As I am struggling to find the flag that I have used to identify the issue in my notes, would the noble Duke be content if I answered the point later? I knew that he would raise the issue of coal: alas, I thought that it would be later. I assure him that I have a satisfactory answer on that point.

My Lords, my noble friend says that it is worth waiting for. I do not think that I would put it quite as highly as that. As far as executive devolution is concerned, outside this Bill the Government have agreed in principle to devolve to Scottish Ministers the executive functions in these regulations that relate to offshore waters adjacent to Scotland. Scottish Ministers will become responsible for enforcement of nature conservation under the Bill and the 2007 regulations. The intention is that enforcement officers will have seamless access to the full suite of enforcement powers that they need for enforcing all nature conservation regulations. We are currently in the process of agreeing with the Scottish Executive how the new arrangements will work to ensure continued efficient administration of reserved functions and the protection of UK national interests in these waters.

Before I come on to the issues raised under the noble Lord’s very interesting amendments, I should say that we are looking with great interest at the progress of the Marine (Scotland) Bill. Of course, as the UK Bill continues to go through the UK Parliament, we shall work very hard to ensure compatibility across the two Bills. The noble Lord raised a point in that regard under the last group of amendments. It is entirely relevant to the general discussion that we are having about how we make the devolution settlement work in the marine area.

The noble Lord’s amendments raise two fundamental issues. There is the question, first, of the Scottish Parliament’s competence and, secondly, of whether it is desirable to create a new duty to further diversity in the offshore area. As I have said—and as the noble Lord has said—the Scottish Parliament does not have the competence to legislate on biodiversity in the offshore zone. That is why the noble Lord wants to move this amendment in this House. However, we consider that Scottish Ministers have the ability through the various powers that they have under the Bill to achieve the practical effect of the amendments that he is aiming at. He has already quoted what I was going to say; in Clause 121, there is a duty on public bodies, including those in the Scottish offshore area, to further the conservation objectives in marine conservation zones. Those objectives are aimed in part at furthering biodiversity. The noble Lord made a general point about how the objectives relate to only the designated zones, but it is those zones with which we are most particularly concerned.

What is more, any public authority operating in the Scottish region will have to do so within the terms of the marine plans to be prepared by Scottish Ministers and the marine policy statement, since, under the Bill, we are devolving to Scottish Ministers the responsibility for nature conservation in the Scottish offshore region. They will be able to include in their plans provisions in relation to conservation or furthering biodiversity. In that sense, they will be accountable to the Scottish Parliament for their decisions, which is another point that the noble Lord has made in a number of our debates.

Scottish marine plans for the offshore region will have to be agreed by the Secretary of State but, having given Scottish Ministers executive responsibility for designating marine conservation zones, we see no reason to object to a plan on the grounds that it contained a duty such as that set out in subsection (1) of Amendment 84B, provided that it was consistent with this Bill and the marine policy statement. I hope that the noble Lord finds that comforting. We believe that Scottish Ministers already have the power under this Bill to include a duty to further biodiversity in marine plans, if they see fit.

Amendment 84A seeks to insert a duty to further the conservation of biodiversity within the offshore region adjacent to Scotland. The first question is whether that duty is necessary, and we are not convinced that it is. All UK Administrations have emphasised the importance of consistency across the UK, while respecting the rights of each legislature. We have no such separate, explicit duty to further biodiversity in other UK offshore areas and we do not think that it is necessary. We already have a number of provisions in this Bill and in wider European legislation that allow us to further biodiversity conservation in the offshore area. We, and the Scottish Executive, will be able to consider biodiversity out to 200 nautical miles where MCZs have been designated. Furthermore, the statutory nature conservation bodies will be able to give advice relating to biodiversity under the provision set out in Clause 123. Public authorities are required to have regard to such advice, ensuring that biodiversity is effectively considered. As I have suggested already, our marine planning system provides the opportunity to drive the way that decisions are made in the direction of further biodiversity.

The noble Duke, the Duke of Montrose, raised the question of the birds and habitats directive, matters which are still under discussion with the Scottish Executive. Although they fall outside the Bill, another form of executive devolution is being considered in relation to them. I hope we can have constructive discussions with the Scottish Administration on those matters.

My Lords, does devolving the EC wild birds directive give the Scottish Parliament any legislative competence in carrying it out, or is it purely executive devolution?

My Lords, it would be executive devolution because we cannot do anything that goes outwith the devolution settlement. However, these are early days and I hope we will have a constructive engagement.

Some inspiration has reached me on the issue of coal, so I shall test the patience of the House, if I may. Noble Lords will probably know that the Coal Industry Act 1994 regulates coal mining throughout Great Britain. The exclusive right to authorise coal-mining operations, or operations carried out for the purpose of searching and boring for coal in the terrestrial sea and on the UK continental shelf, is vested in the Coal Authority under the Coal Industry Act. Therefore, any coal-mining operation in the UK—except the Northern Ireland inshore region, which has its own legislation—will need authorisation from the Coal Authority under the Coal Industry Act 1994. A marine licence is only needed for the removal of substances from the seabed, not under the seabed. Therefore, mining operations that extract coal using tunnels dug from the shore would not need a marine licence. The noble Duke has been asking for an explanation on this for some time and I hope that we have finally come up with something that is close to satisfactory.

My Lords, I did not mean to suggest that it is not. However, in the unlikely event of an open-cast operation extracting coal from the surface of the seabed—who knows where technology may take us?—the operation would need a marine licence, and in the Scottish offshore zone, this would be for Scottish Ministers.

I sympathise with what the noble Lord, Lord Wallace, is trying to do here. We do not think the Bill is the right vehicle for further legislative devolution, but I hope that what I said earlier about the power that Scottish Ministers have under the Bill to include a duty to further biodiversity in marine plans if they see fit will provide him with some reassurance that we can get to where he wishes to be.

My Lords, I am grateful to the Minister for his reply and to other noble Lords and the noble Baroness, Lady Carnegy of Lour, who have taken part. The noble Duke, the Duke of Montrose, made a number of important points, not least about the birds and habitats directive. As we heard, there is currently a discussion about trying to make sure that that is extended by way of executive devolution. I rather thought, when the Minister was considering coal, that the idea of tunnelling out to 12 miles plus would challenge, but, as he said, one never knows quite where technology will take us in generations to come.

The noble Baroness, Lady Carnegy, made the important point that decisions regarding the oil and gas extraction industry are made here and, therefore, the decision regarding biodiversity ought to be made here as well. Indeed, the purpose of one of the alternative amendments I put down was that it would be this Parliament that would legislate for it and it would come under the same legislature.

I recognise that a settlement has been made with the devolved Administrations. Although I was minded to push this matter further, I was certainly encouraged by what the Minister said in his reply—specifically the point he made in winding up, that if the biodiversity duty set out in these amendments were to be incorporated in a marine plan in relation to marine conservation zones, the Government would look favourably on them. In many respects, that puts the ball into the court of Scottish Ministers. I do not want to underestimate the significance of what the Minister said. It was helpful, and in those circumstances I beg leave to withdraw the amendment.

Amendment 84A withdrawn.

Amendment 84B not moved.

Clause 53 : Delegation of functions relating to marine plans

Amendment 85

Moved by

85: Clause 53, page 27, line 16, after “body” insert “other than a statutory undertaker”

My Lords, a government amendment is grouped with this amendment, and I will not attempt to pre-empt that.

Clause 53 provides for the delegation of functions relating to marine plans. A direction can be given to delegate the functions by a public body. My concern is that a public body as defined in the Bill includes statutory undertakers. Most statutory undertakers are not public: they are private, albeit subject to particular regulation. I query whether it is proper or appropriate to delegate marine plan functions—preparing a plan, identifying the plan area and so forth—to the private sector, even with the Secretary of State's long-stop powers. That is not to say that a marine plan authority should not be working with or consulting statutory undertakers along with other bodies that fall within the normal definition of a public body: of course they should work together. Statutory undertakers will have a role because they have knowledge and views, but to give them the delegation of functions is quite a different matter. Therefore, my amendment would exclude statutory undertakers from the definition of public bodies used in the clause. I beg to move.

My Lords, the noble Baroness's amendment is entirely understandable. I hope to reassure her on this. I agree entirely with her that it is unlikely that it would be appropriate for these functions to be carried out by many statutory undertakers, particularly by the large number which are utility and transport providers. I want to put on record that we are not considering any delegation of marine planning functions to public bodies of that type. The issue that we have is that the definition of statutory undertaker in Clause 312, which points further to that definition given in the relevant terrestrial planning legislation—which the noble Baroness will know better than I do—is wider than simply the utility and transport companies. It includes,

“persons authorised by any enactment to carry on any …water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking, or any undertaking for the supply of, or hydraulic power”.

That rather wide definition could include a number of public bodies with functions relevant to marine planning, including the Environment Agency and some harbour authorities. While we are committed to delegating our marine planning functions in relation to the English inshore and offshore regions to the Marine Management Organisation, we should not restrict other plan authorities, whom we have considered in some detail in our earlier discussions, from delegating their marine planning functions to public bodies such as harbour authorities or the Environment Agency which happen to be statutory undertakers. I hope that I have reassured the noble Baroness sufficiently on that.

I turn to my Amendment 86, which reorganises the drafting of subsections (6) and (7) of this clause. Subsection (6) lists those functions of marine plan authorities which are excepted from the list of delegable functions and so cannot be delegated under this clause. However, many of the functions presently listed in subsection (6) are not, in fact, functions of marine plan authorities, but of the Secretary of State in his own capacity. These functions would not, therefore, be delegable functions to begin with and are more properly listed in subsection (7), along with other non-delegable functions of the Secretary of State. My speaking note says that the amendment is minor and technical and does not affect the powers of marine plan authorities to delegate their planning functions.

My Lords, I thought I would be tempting providence if I said, in opening, that Amendment 86 looked like a technical drafting amendment. I am full of admiration for the people who must be reading this Bill over and over again looking for matters such as this, to ensure that they are correct. I am reassured as to the Government’s intentions; I accept that they will not be the only player in this, by any means. I am reassured by what the Minister had to say on my amendment. I beg leave to withdraw the amendment.

Amendment 85 withdrawn.

Amendment 86

Moved by

86: Clause 53, page 27, line 27, leave out subsections (6) and (7) and insert—

“(6) The “excepted functions” are the following functions of a marine plan authority—

(a) deciding under paragraph 15 of Schedule 6 whether to publish a marine plan or any amendment of a marine plan;(b) deciding under section 51 whether to withdraw a marine plan.(7) No direction may be given under this section in respect of any of the following functions of the Secretary of State—

(a) deciding under paragraph 5 of Schedule 6 whether to give agreement to a statement of public participation;(b) deciding under paragraph 7 of that Schedule whether to give agreement to a revised statement of public participation;(c) deciding under paragraph 11 of that Schedule whether to give agreement to a consultation draft;(d) deciding under paragraph 15 of that Schedule whether to give agreement to a marine plan;(e) deciding under section 51 whether to withdraw agreement previously given under that paragraph to a marine plan.”

Amendment 86 agreed.

Clause 56 : Decisions affected by marine policy documents

Amendments 87 to 90 not moved.

Amendment 91

Moved by

91: Clause 56, page 29, line 20, leave out “relating to” and insert “in relation to”

Amendment 91 agreed.

Clause 57 : The appropriate marine policy documents

Amendments 91A to 91N

Moved by

91A: Clause 57, page 30, line 13, at end insert—

“( ) if a devolved policy authority has adopted the MPS, the devolved policy authority and any primary devolved authority related to it;”

91B: Clause 57, page 30, line 14, after “any” insert “non-departmental”

91C: Clause 57, page 30, line 16, after “any” insert “non-departmental”

91D: Clause 57, page 30, line 18, leave out paragraph (e)

91E: Clause 57, page 30, line 19, after “any” insert “non-departmental”

91F: Clause 57, page 30, line 19, after “out” insert “secondary”

91G: Clause 57, page 30, line 28, leave out subsections (7) and (8)

91H: Clause 57, page 31, line 3, at end insert—

““Counsel General” means the Counsel General to the Welsh Assembly Government;”

91J: Clause 57, page 31, leave out lines 4 and 5

91K: Clause 57, page 31, line 13, at end insert—

““First Minister” has the same meaning as in the Government of Wales Act 2006 (c. 32);

“non-departmental public authority” means any public authority other than—

(a) a Minister of the Crown or government department;(b) the Scottish Ministers;(c) the Welsh Ministers, the First Minister or the Counsel General;(d) a Northern Ireland Minister or a Northern Ireland department;“Northern Ireland Minister”—

(a) has the same meaning as in the Northern Ireland Act 1998 (c. 47), but(b) includes a reference to the First Minister and the deputy First Minister, within the meaning of that Act;”

91L: Clause 57, page 31, leave out lines 14 to 30

91M: Clause 57, page 31, line 30, at end insert—

““primary devolved authority”, in relation to a devolved policy authority, means—

(a) in the case of the Welsh Ministers, the First Minister or the Counsel General;(b) in the case of the Department of the Environment in Northern Ireland, a Northern Ireland Minister or a Northern Ireland department;“retained functions” is defined for the purposes of this Part in section (Meaning of “retained functions” etc);

“secondary devolved functions” has the same meaning as in section (Meaning of “retained functions” etc).”

91N: After Clause 57, insert the following new Clause—

“Meaning of “retained functions” etc

(1) For the purposes of this Part, the functions of a public authority which are “retained functions” as respects any marine planning region are those functions of the public authority which, as respects that region, are not any of the following—

(a) Scottish Ministerial functions (see subsection (2));(b) Welsh Ministerial functions (see subsection (2));(c) Northern Ireland government functions (see subsection (2));(d) secondary devolved functions (see subsection (3));(e) relevant ancillary functions (see subsection (5)).(2) In this section—

“Northern Ireland government functions” means—

(a) any functions exercisable by a Northern Ireland Minister or a Northern Ireland department, other than joint functions and concurrent functions (see subsection (9));(b) any concurrent functions, so far as exercised by a Northern Ireland Minister or a Northern Ireland department;(c) the function exercised by a Northern Ireland Minister or a Northern Ireland department when exercising a joint function;“Scottish Ministerial functions” means—

(a) any functions exercisable by the Scottish Ministers, other than joint functions and concurrent functions;(b) any concurrent functions, so far as exercised by the Scottish Ministers;(c) the function exercised by the Scottish Ministers when exercising a joint function;“Welsh Ministerial functions” means—

(a) any functions exercisable by the Welsh Ministers, the First Minister or the Counsel General, other than joint functions and concurrent functions; (b) any concurrent functions, so far as exercised by the Welsh Ministers, the First Minister or the Counsel General;(c) the function exercised by the Welsh Ministers, the First Minister or the Counsel General when exercising a joint function.(3) “Secondary devolved functions” means—

(a) as respects the Scottish inshore region or the Scottish offshore region, any secondary devolved Scottish functions;(b) as respects the Welsh inshore region or the Welsh offshore region, any secondary devolved Welsh functions;(c) as respects the Northern Ireland inshore region or the Northern Ireland offshore region, any secondary devolved Northern Ireland functions.See subsection (4) for the definition of each of those descriptions of secondary devolved functions.(4) In this section—

“secondary devolved Northern Ireland functions” means any of the following—

(a) any functions exercisable by a Northern Ireland non-departmental public authority;(b) any functions exercisable by any other non-departmental public authority, so far as relating to transferred or reserved matters (within the meaning of the Northern Ireland Act 1998 (c. 47));“secondary devolved Scottish functions” means any of the following—

(a) any functions exercisable by a Scottish non-departmental public authority;(b) any functions exercisable by any other non-departmental public authority, so far as not relating to reserved matters (within the meaning of the Scotland Act 1998 (c. 46));“secondary devolved Welsh functions” means any of the following—

(a) any functions exercisable by a Welsh non-departmental public authority;(b) any functions conferred or imposed on a non-departmental public authority by or under a Measure or Act of the National Assembly for Wales;(c) any functions exercisable by a non-departmental public authority, so far as relating to matters within the legislative competence of the National Assembly for Wales;but the definitions in this subsection are subject to subsection (6) (which excludes certain functions in relation to which functions are exercisable by a Minister of the Crown or government department).(5) “Relevant ancillary functions” means any functions exercisable by a non-departmental public authority in relation to any of the following—

(a) a Scottish Ministerial function;(b) a Welsh Ministerial function;(c) a Northern Ireland government function;(d) a secondary devolved function;but this subsection is subject to subsection (6).(6) Where functions are exercisable by a Minister of the Crown or government department in relation to a function of a non-departmental public authority, the function of the non-departmental public authority is not—

(a) a secondary devolved Scottish function;(b) a secondary devolved Welsh function;(c) a secondary devolved Northern Ireland function;(d) a relevant ancillary function;but this subsection is subject to subsection (7). (7) Functions are not to be regarded as exercisable by a Minister of the Crown or government department in relation to functions of a non-departmental public authority merely because—

(a) the agreement of a Minister of the Crown or government department is required to the exercise of a function of the non-departmental public authority;(b) a Minister of the Crown or government department must be consulted by the non-departmental public authority, or by a primary devolved authority, about the exercise of a function of the non-departmental public authority;(c) a Minister of the Crown or government department may exercise functions falling within subsection (8) in relation to functions of the non-departmental public authority.(8) The functions mentioned in subsection (7)(c) are—

(a) functions under section 2(2) of the European Communities Act 1972 (c. 68);(b) functions by virtue of section 57(1) of the Scotland Act 1998 (c. 46) (Community obligations) or under section 58 of that Act (international obligations);(c) functions under section 26 or 27 of the Northern Ireland Act 1998 (c. 47) (international obligations and quotas for international obligations);(d) functions by virtue of section 80(3) of, or paragraph 5 of Schedule 3 to, the Government of Wales Act 2006 (c. 32) (Community obligations) or under section 82 of that Act (international obligations etc);(e) functions under section 152 of that Act (intervention in case of functions relating to water etc).(9) In this section—

“concurrent function” means a function exercisable concurrently with a Minister of the Crown or government department;

“Counsel General” means the Counsel General to the Welsh Assembly Government;

“devolved policy authority” means—

(a) the Scottish Ministers;(b) the Welsh Ministers;(c) the Department of the Environment in Northern Ireland;“First Minister” has the same meaning as in the Government of Wales Act 2006 (c. 32);

“joint function” means a function exercisable jointly with a Minister of the Crown or government department;

“non-departmental public authority” has the same meaning as in section 57;

“Northern Ireland Minister”—

(a) has the same meaning as in the Northern Ireland Act 1998 (c. 47), but(b) includes a reference to the First Minister and the deputy First Minister, within the meaning of that Act;“Northern Ireland non-departmental public authority” means any non-departmental public authority so far as exercising functions in relation to which functions are exercisable by a Northern Ireland Minister or a Northern Ireland department;

“primary devolved authority” means any of the following—

(a) the Scottish Ministers;(b) the Welsh Ministers, the First Minister or the Counsel General;(c) a Northern Ireland Minister or a Northern Ireland department;“Scottish non-departmental public authority” means any non-departmental public authority so far as exercising functions in relation to which functions are exercisable by the Scottish Ministers;

“Welsh non-departmental public authority” means any non-departmental public authority so far as exercising functions in relation to which functions are exercisable by the Welsh Ministers, the First Minister or the Counsel General.”

Amendments 91A to 91N agreed.

Clause 58 : Monitoring of, and periodical reporting on, implementation

Amendments 92 to 97

Moved by

92: Clause 58, page 31, line 32, at end insert—

“( ) This section makes provision for and in connection with imposing the following duties on a marine plan authority—

(a) where it has prepared and adopted a marine plan, a duty to keep the matters specified in subsection (2) under review for so long as the marine plan is in effect (see subsections (1) and (2));(b) in any such case, a duty to prepare and publish, and lay a copy of, a report on those matters at intervals of not more than 3 years (see subsections (3) to (7));(c) in any case, a duty to prepare, and lay, at intervals of not more than 6 years ending before 1st January 2030, a report on—(i) any marine plans it has prepared and adopted,(ii) its intentions for their amendment, and(iii) its intentions for the preparation and adoption of any further marine plans,(see subsections (8) to (11)).”

93: Clause 58, page 31, line 44, at end insert—

“( ) Where the marine plan authority publishes a report under subsection (3), the authority must lay a copy of the report before the appropriate legislature.”

94: Clause 58, page 32, line 3, after “report” insert “under subsection (3)”

95: Clause 58, page 32, line 5, leave out “report, successive reports” and insert “report under subsection (3), successive reports under that subsection”

96: Clause 58, page 32, line 14, at end insert—

“(8) Each marine plan authority must from time to time prepare and lay before the appropriate legislature a report which—

(a) identifies any marine plans which the authority has prepared and adopted;(b) describes any intentions the authority may have for the amendment of any marine plans which it has prepared and adopted;(c) describes any intentions the authority may have for the preparation and adoption of any further marine plans.(9) The first report prepared under subsection (8) by each marine plan authority must be laid before the appropriate legislature before the expiration of the period of 6 years beginning with the date of the passing of this Act.

(10) After a marine plan authority has prepared and laid its first report under subsection (8), it must prepare and lay successive reports under that subsection at intervals of no more than 6 years following the laying of the previous report.

(11) No report under subsection (8) is required to be laid in a case where the period of 6 years following the laying of the previous report ends on or after 1st January 2030.”

97: Clause 58, page 32, line 14, at end insert—

“( ) For the purposes of this section, the “appropriate legislature” is—

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

Amendments 92 to 97 agreed.

Clause 59 : Validity of marine policy statements and marine plans

Amendment 98

Moved by

98: Clause 59, page 32, line 38, at end insert—

“( ) the Court of Session, if the relevant document is a marine plan or an amendment of a marine plan for an area within the Scottish offshore plan;”

My Lords, I do not wish to detain the House long on this. I wish to pursue again with the Minister a point which I raised in Committee which relates to the courts’ jurisdiction if a person should wish to challenge relevant documents in relation to the Scottish offshore region. As the Bill stands, it would be possible to raise an action in either the Court of Session or the High Court. I cannot understand, and I am not aware of a precedent, why a matter relating exclusively to Scottish waters—almost certainly an action where the respondent would be Scottish Ministers—would find its way to the High Court when the Court of Session is perfectly competent, both legally and actually, to deal with the matter.

I remember when this was dealt with before; the Minister seemed to indicate that it was part of the general overall agreement with Scottish Ministers as to how the Bill would proceed. It struck me as very interesting that Ministers from the Scottish National Party should concede the jurisdiction of the Court of Session to the High Court. We perhaps need a slightly more detailed explanation than that one, which stretches credibility. Nevertheless, stranger things have happened.

If a matter relates exclusively to the Scottish offshore region, where the respondents, almost inevitably, would be Scottish Ministers, I cannot see how the High Court could in any way be an appropriate court for that to be heard. By all means, if the matter relates to the English inshore or offshore region, the High Court seems the obvious place. Indeed, if I understand the Bill, such a matter could end up in the Court of Session, which seems to me to be as perverse in the opposite direction.

It is quite a simple point, but an important one. Through 300 years since the Act of Union, we have jealously guarded our distinctive legal system and we do not, even by some means not intended for that purpose, want to see it eroded. I beg to move.

My Lords, I am grateful to the noble Lord, Lord Wallace, for moving this amendment. We are all anxious that the legislation should be proper for the devolved powers under the Bill and this reflects some of the worries of the Law Society of Scotland. I wonder again whether this part of the Bill applies to Scotland—whether Scotland has to be included. It would appear that the Government’s view has been that the phrase,

“any superior court in the United Kingdom”

should be sufficient. The other side of the coin is whether there are courts in Wales or Northern Ireland that would serve in this context. I am very interested to hear the Minister’s reply.

My Lords, I am sorry that the noble Lord, Lord Wallace, thinks that I was stretching credulity when we discussed this in Committee. I am ever-hopeful about our relations with the Scottish Parliament and Executive, but let me try again to respond to what is clearly a very interesting amendment. It looks reasonable, but I have taken further advice since Committee, and the amendment has serious implications that might set a legal precedent, which is enough to get my advisers worried. We are not aware of any precedent in post-devolution legislation which limits the possibility of raising an action against Scottish Ministers in the Court of Session. Even the Scotland Act and the Human Rights Act do not contain such a provision and leave the question open to the normal rules of jurisdiction. The noble Lord will understand that we do not want to take a different approach, in principle, in the Bill.

Clause 59(6)(a) relates only to the English inshore and the Welsh inshore region. There is a mirror provision in the Marine (Scotland) Bill for the Scottish inshore region. As regards Clause 59(6)(b), its sole purpose is to provide that challenges relating to decisions about the offshore regions are brought in superior courts. Which superior court it is brought in will be determined by the normal rules of jurisdiction. In other words, an applicant can go to any court that comes within the description of a superior court and the court itself can decide whether it has jurisdiction or not. The Bill does not require matters to be referred to the High Court; there is no preference for the English or Welsh system over the Scottish courts. In practice, most, if not all actions that may be raised against a marine plan or the amendment of a marine plan, for an area within the Scottish offshore region, will be heard in the Court of Session. However, UK businesses operating in UK waters offshore from Scotland should, we believe, have the right to bring a case in the High Court if they consider that to be the most appropriate court.

As the clause is drafted, it is left to the courts to determine where it is most appropriate for an application to be heard. I understand that that follows the normal rules of jurisdiction. Our expectation is that cases related to plans in the Scottish offshore region will go to the Court of Session and it is most likely that the High Court would decline jurisdiction over purely Scottish cases. Cases involving both UK and Scottish Ministers may be more complicated, because they relate to the Secretary of State’s actions in agreeing to the plan in the Scottish offshore region, but there is nothing in the Bill to prevent those cases being heard in the Court of Session and no court is set out as more important than another. The courts themselves will be able to decide each application on its merits and, of course, Ministers could apply to a court to decline jurisdiction if they considered the decision inappropriate. Put simply, it is better that cases are determined on a pragmatic case-by-case basis than by reference to rigid rules. However, our major concern is using this Bill to depart from current practice and precedent.

My Lords, I am grateful for that explanation, which is slightly fuller than the one we got in Committee. I am still not sure what the precedents are for cases which involve Scottish Ministers and Acts relating to Scotland, either territorially or at sea, being heard in the High Court. However, I take the Minister’s point that there could be circumstances in which the Secretary of State might be involved, and the action could involve other marine plans, where there might be some sense in bringing them all together in one court.

I will carefully consider what the Minister has said. It is not an issue that I want to push at the moment, but we must always be rather careful. I think that it is probably a precedent in one direction, and he sees it as a precedent in another. However, that is probably sufficient for us to go back and look at this again. I beg leave to withdraw the amendment.

Amendment 98 withdrawn.

Amendment 99 not moved.

Amendment 99A

Moved by

99A: Clause 61, page 34, line 19, leave out “57” and insert “(Meaning of “retained functions” etc)”

Amendment 99A agreed.

Clause 65 : Notice of Applications

Amendment 99B

Moved by

99B: Clause 65, page 37, line 10, at end insert—

“(2A) In subsection (2) “persons likely to be interested” includes each principal local authority whose area includes or is adjacent to a location or an area or part of an area that is the subject of the application.”

My Lords, we are now leaving Part 3, on planning, and moving on to Part 4, on licensing, so we are making some progress on the Bill. I pay tribute and give my thanks to my noble friend Lady Hamwee for the tremendous work she did, with her great expertise in terrestrial planning, on the planning parts of the Bill. It has been a great help to me and to our party and I believe that it has helped the House. The Government’s positive response on planning issues and some of the government amendments have been very helpful indeed. I thank them for that.

We move on to licensing. The purpose of this amendment is specifically to insert principal local authorities as consultees on marine licensing applications. In Committee I moved a rather complex amendment setting out what principal local authorities were and so on. We all know what they are; they are county councils, district and borough councils and unitary authorities. The Government said in Committee that they did not want lists to appear in this part of the Bill. I have specifically tabled this amendment so that it is not a list but a specific reference to local authorities. In a moment I shall explain why it should be in the Bill.

This amendment is not as wide as the amendments I moved in Committee, which concerned a general duty to consult local authorities about everything. The Government, not unreasonably, said that that was too wide and that specific local authorities that were specifically relevant to particular applications would obviously be consulted. The amendment would apply to relevant applications in the area of a local authority or adjacent to it.

We return to the relationship of the MMO and the new marine regulatory system with territorial decision-makers, with coastal communities—which we discussed in some detail last time—and, particularly, with local authorities. It has been said that we do not want to put any further administrative burdens on the MMO. I do not believe that we are doing that at all by putting local authorities on the face of the Bill if the Government are saying that the relevant authorities will get consulted in practice anyhow. I suspect that that is what the Minister is about to tell me. The marine licensing functions include planning functions and a range of other functions that could impact on what I would call local authority interests—the decision-making processes of local authorities representing their local communities.

I had another look at this interesting document called A Strategy for Promoting an Integrated Approach to the Management of Coastal Areas in England, which we received some time ago, just to see what the involvement of local authorities is within that strategy. I have to say that I was disappointed. Under “Marine Licensing” there is a little flow chart, a simple one that I can understand, with “Licensing decisions” in the middle. The feed-in to that is “Marine Policy Statement”, “National Policy Statements”—which I find slightly interesting but will not pursue now—“Marine Plan” and “Stakeholders”, which has now forced me to say that word. I assume that local authorities are simply included among the stakeholders. I think that that is very unsatisfactory. As for marine licensing, as far as I can see, there is no other specific reference in this document to “local authorities”, which seems to be a mistake.

On page 25 of the document there is an interesting panel setting out what it calls a “desk study” to explore the practical implications of proposals for marine planning licensing and the Marine Management Organisation in coastal areas. The word “licensing” does not appear here but the word “planning” appears several times. It says:

“A number of key messages emerged from both case studies”—

there was one in the Thames estuary and one in south-west England, or relating to those places—

“including stakeholder engagement across all levels from as early as possible was very important”.

Fair enough. One assumes that local authorities might be included there. The third bullet point says that,

“participants believed that marine planning would improve integration between decision-making bodies on land and at sea, and could provide coastal decision makers with the certainty they needed to make more informed decisions”.

In a further flow chart it defines local authorities as being decision-makers—so there is something there. Then, it says that,

“the planning process should be set out clearly, be transparent and democratically accountable”.

I am not quite sure what “democratically accountable” means for the marine environment and the issuing of marine licences, including those on planning matters, unless it includes the democratic representatives of the coastal areas; in other words, the principal local authorities.

On page 26, we have an astonishingly complicated flow diagram which I have great difficulty understanding. I could not work out whether it reminded me of one of those integrated circuit boards that I never understood or whether it is a complicated version of the Tube map. It has 23 different types of organisations, statements or whatever in it, with arrows going in all sorts of directions. It includes one blob labelled “Local authority”, with an asterisk on it saying that this “indicates decision-making organisation”. However, the local authority and the local strategic partnership and one or two things connected with it seem to be in a little whirlpool—or perhaps it is an eddy—at the bottom of the chart, and not really related to its main functions. “Coastal stakeholders” all appear completely isolated at the bottom and only relate to the marine policy statement and plan and national policy statements. I do not quite understand how that works.

The impression I get from looking at that is that local authorities are not regarded as the very special and rather different bodies which I believe that they are. They are special and different for two reasons. First, they have a lot of statutory responsibilities which interact and overlap with those of the Marine Management Organisation. That is particularly the case in the inshore areas, especially along the foreshore and the coast itself. They include fairly obvious ones such as planning, plan-making, development control; economic development functions, which are ever more important among local authorities; highways and transport, tourism and recreation functions, which are crucial on the coast; and environmental responsibilities whether environmental health, food hygiene or litter, and other such amenity issues. There are other responsibilities which noble Lords will readily bring to mind. As they have these important statutory responsibilities which will be affected by the MMO’s decisions, the Bill should state that local authorities are at the very least statutory consultees.

The second reason why local authorities are different is that they are democratically elected bodies representing the people who live along the coast. For that reason alone they ought to be set aside as something different from all the other consultees. It seems fairly clear to me that acceptable wording could be arrived at to do what I am asking to do. I ask the Government, at this late stage of the Bill in this House, nevertheless to consider this again. I beg to move.

My Lords, I support this amendment in its general objectives. It follows one moved in Committee by the noble Baroness, Lady Hamwee. In a subsequent debate we probed the degree to which local authorities were to be consulted on licence applications, and the noble Lord, Lord Greaves, has done so again today. Indeed, we believe that local authorities’ participation in decision-making is highly desirable. I recollect that I came away from the previous debate assured by the Minister that this would be part of the procedure. I hope he can give us that assurance today.

My Lords, I was already quailing in front of the noble Lord, Lord Greaves, in his assertions on this amendment, which we did discuss in Committee. Obviously I did not give him sufficient assurances then. As he has now been joined by the noble Lord, Lord Taylor, I can feel the pressure of force majeure.

Clause 65 places on the licensing authority an obligation to publish, or require the applicant to publish, an application for a marine licence in a manner that is,

“best calculated to bring the application to the attention of any persons likely to be interested in it”.

It is the Government’s view that that would in all circumstances encompass local authorities whose areas are likely to be affected by the application without a specific reference in the Bill to do so. Other legislation uses exactly that phrase without further qualifying it in the way that the amendment seeks to do.

We think that that is the right approach and that is why we resisted the amendment in Committee. However, I have listened to the strength of feeling expressed by the two noble Lords who have spoken today and it is clear that the assurances we gave in Committee are not sufficient. Therefore, we will look further at this issue between now and Third Reading. On that basis, I hope that the noble Lord will think that he has pressed the Government far enough today.

My Lords, I was looking forward to a bit of exercise but the Minister has just persuaded me that we should not have it. I congratulate him on that and thank him for it. If the Government were to look at terrestrial legislation they would see that under planning legislation it is very often written down that appropriate planning authorities, for example, need to be consulted on planning applications. Indeed, parish councils have a right to be consulted on such applications. In the whole of the plan-making process there is a complex system of formal consultation which is set out in the legislation. I accept that we are talking about licences, but I suspect that if we looked at licensing legislation as well we might find that the same things applied. I am not an expert on that, but certainly planning legislation on planning applications, for example, clearly sets out that local authorities are statutory consultees if they are not the authority to which the application has been made. However, I heard what the Minister said and I thank him for it. I hope he can find a way of putting it in the Bill at Third Reading. As I say, local authorities are different in kind from all the other authorities that exist, because they are the democratically elected representatives of the local people. On that basis, I beg leave to withdraw the amendment.

Amendment 99B withdrawn.

Clause 71 : Exemptions specified by order

Amendment 100

Moved by

100: Clause 71, page 41, line 17, at end insert—

“( ) The appropriate licensing authority for an area may only issue an order under subsection (1) where that order does not compromise the requirements under section 66.”

My Lords, I have tabled Amendment 100 in order to draw the Minister out a little further on something he said in Committee. Indeed, one hopes it will meet with similar success. He gave the impression that the power to make an exemption under Clause 71 was subject to the criteria under Clause 66; the appropriate authority has to have regard to protecting the environment and so on.

I would welcome a little more clarification on how that is to happen. The two chapters appear to have been drafted completely separately with no obvious crossover. Obviously, we would want to be certain that no exemptions are granted that would have a significant environmental impact. Clause 71 seems to give authorities the power to exempt a damaging activity on the quiet in the hope of avoiding having to register it and admit to the damage they had permitted.

Amendments 101 and 107 relate to the noting of exempted licences on the register. I understand that the Government are consulting on the matter, and quite rightly. They are concerned that planning a burden of registering activities that are exempted precisely because they are harmless and very small scale could place a disproportionate burden on some very small businesses.

While we would certainly not want to increase the regulatory burden and are very pleased at the harmonisation that is happening in the Bill, if exemptions are used irresponsibly by the appropriate authority, the register could end up with some very worrying holes.

Will there be any sort of assessment by the authority as to whether it would be wise to include an exempted activity on the register? It is not just the possibility of exempting environmentally damaging activities, which I covered in talking to my first amendment, it is also the possibility of exempting activities which would have an impact on another activity where it would be wise to keep tabs on what is happening in the environment.

I would welcome any reassurances the Minister can give us that exemptions will be used wisely and that there will be some check on their abuse. I beg to move.

My Lords, the noble Lord, Lord Taylor, did mention the drawbacks concerned with some minor activities and I would like to reinforce that point.

I think his amendments are too widely drawn in many ways. There are day-to-day activities that go on. For instance, Trinity House might need to lay buoys or ships might need to anchor and other things like that. They should not have to be put on to a register every time they happen.

My Lords, I am grateful to the noble Lord for raising these issues again.

On Amendment 100, we certainly agree that it is important that in the use of the exemption-making power under Clause 71 the licensing authority must adhere to the requirements outlined in Clause 66. They are factors that should be taken into account when determining what activities are appropriate to provide an exemption for, and whether that exemption is a blanket exemption or is to be given conditionally. It is reasonable to expect the licensing authorities to use the same fundamental principles that will be used to determine the impact of individual licence applications when making decisions on what activities are appropriate to be carried out without the need for a licence. We do not believe that there is a problem in relation to the Bill, but I have listened to the noble Lord and am prepared to give this matter further consideration. If I believe that we need to make a change, I will bring back an amendment at Third Reading to deal with the issue that the noble Lord has raised.

So far as concerns Amendments 101 and 107, I hope that I can give reassurance in the way that the noble Lord has suggested. Placing exempted activities on the licensing register where appropriate provides transparency for those operating in the marine environment and allows each licensing authority to take into account the potential cumulative effects of both exempt and licensed activities undertaken in its area. We would expect many exempted activities to be registered in this way, and we have provided a clear mechanism in the Bill for that to happen.

As I said in Committee, our concern is that a blanket requirement in the Bill would mean that some extremely minor, low-risk activities which would be exempted by order and would have a negligible impact on the marine environment would have to be listed. Examples of the kinds of activities that might fall into this category are already listed in the Food and Environment Protection Act 1985 (FEPA) exemptions order and the Deposits in the Sea (Exemptions) Order 1985. I think that it is a question of proportionality. Would it be proportionate for those launching a vessel, dropping an anchor in port or, as the noble Lord, Lord Greenway, suggested, depositing a buoy around a hazard to be under a statutory duty to notify the licensing authority each time that they carried out such an activity? We would be concerned about significant and unnecessary additional burdens being placed on many industries, not least the fishing and shipping industries. Our approach to using the exemption orders will achieve the same aims that the amendments are striving for—the ability to monitor cumulative impacts and ensure protection of the environment—but without the unnecessary additional burdens on already challenged industries.

The public consultation on the exemptions order that we are soon to launch will canvass public views on whether each activity that we propose to exempt should be required to be notified to the licensing authority and then be placed on the licensing register. We would prefer to leave some discretion until we have seen the outcome of that public consultation. However, I reassure the noble Lord that our clear intent is to ensure that we can monitor activities which may have a cumulative impact on the environment.

The noble Lord asked whether the exemptions would be used in an inappropriate way, but of course that is not our intention. I hope that I have been able to give him the reassurance that he requires.

My Lords, I thank the Minister for that response and particularly for his very positive reply on Amendment 100. I hope that it will be possible to tie in the two principal clauses to make the matter clearer and indeed to make the Government’s intention clear in the Bill.

I understand the Minister’s argument regarding exemptions. Indeed, the noble Lord, Lord Greenway, reinforced the need to avoid pettifogging, bureaucratic processes. However, somehow or another, we need to find a way of ensuring that repeated activity can be properly monitored so that environmental damage can be noted. If that is the purpose of the consultation, we are very happy, and I beg leave to withdraw the amendment.

Amendment 100 withdrawn.

Amendment 101 not moved.

Clause 73 : Dredging in the Scottish zone

Amendment 102

Moved by

102: Clause 73, page 42, line 16, leave out from “by” to end of line 17 and insert “the Scottish Ministers”

My Lords, Amendment 102, together with the majority of the amendments in this group, is largely technical, and the two amendments of substance are Amendments 108 and 103B.

Amendment 108 has been tabled in response to the eloquent case made in Committee by the noble Lord, Lord Tyler. I was going to lavish great praise on him from this Dispatch Box today but, as he has withdrawn to other pursuits, he will have to be content with the fact that the Government are responding to the case that he made. I have no doubt that the noble Lord, Lord Greaves, will carry back the good news as though it came from Ghent to Aix.

In Committee, the noble Lord, Lord Tyler, sought to change the test that the licensing authority would apply when deciding whether information pertaining to a licence application should be withheld from the licensing register. The wording suggested by the noble Lord was that used in the Environmental Information Regulations 2004, which he commended to the Committee. It would have provided that the disclosure of information could be withheld from the register only to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality was provided by law to protect a legitimate economic interest.

We revisited the wording used in Clause 98(5)(b) and, in the light of the arguments presented by the noble Lord, Lord Tyler, I have now tabled Amendment 108. This amendment would replace the test currently in the Bill with wording equivalent to that in the Environmental Information Regulations 2004, which the noble Lord brought to our attention.

Amendment 103B—the other substantive amendment in this group—removes the requirement that appeals against monetary penalties issued by Scottish Ministers in relation to licensing breaches in the Scottish offshore region must be directed to either the First-tier Tribunal or another tribunal. This change is being made at the request of the Scottish Executive and will enable determination of what is considered to be the appropriate appellate body. I am sure that the House will see the advantage of complying with the Scottish Executive’s request in these terms.

As I said, the other amendments in this group are all minor and technical. Accordingly, I beg to move.

My Lords, on the second of the amendments that refer to Scottish matters, I think that I have just been given the nod by my noble friend Lord Wallace of Tankerness that it is okay and that we can let it through. On the first amendment, concerning confidentiality, I thank the Minister for looking at this matter again and for effectively doing what my noble friend Lord Tyler asked him to do. It is sensible and much clearer, and I think that it is better legislation.

Last week, I called in on the Grand Committee of the Political Parties and Elections Bill to keep an eye on my noble friend Lord Tyler, and I can say that he is doing sterling work. If the Government respond to his work there in the way that they have done here, then two Bills will be substantially improved. For the moment, I thank the Minister.

My Lords, from this Dispatch Box, I thank the Minister for explaining the very varied amendments in this group. They indicate the complexities of drafting legislation dealing with devolution, and I am very glad that the Minister’s officials have caught the inconsistencies in the Bill and dealt with the necessary requirements.

Amendment 102 concerns dredging in the North Sea and, if I am not mistaken, we have now found the slot in which the Minister was going to bring forward something about coal. However, I am still slightly puzzled. Considering that in Section D3 under Schedule 5 to the Scotland Act, headed “Coal”, deep and opencast coal mining and coal mining subsidence are reserved matters, why would opencast mining under the sea be a devolved matter, as stated earlier by the Minister? If that is true, when was this power devolved?

My Lords, the position is that if the opencast operation extracting coal from the surface of the seabed is taken out, it will need a marine licence. The authority to issue the marine licence in this inshore position is the Scottish authority. That is why we have the arrangements the way we have.

Amendment 102 agreed.

Clause 78: Submarine cables on the continental shelf

Amendment 102A

Moved by

102A: Clause 78, page 47, line 6, leave out “must” and insert “may”

My Lords, I move this amendment on behalf of my noble friend Lord Taylor of Holbeach. Clause 78 takes us into a strange field. It says that “nothing in this Part”—which I take to mean the section on the permitting or granting of licences—

“applies to anything done in the course of laying or maintaining an offshore … cable”,

and that the,

“authority must grant any application”

once it comes inshore. What is the position currently if the Scottish Government exercise their power to place a wind farm or a wave generator in the offshore area and then want to lay a cable to the shore? Surely, at the moment, there are powers that allow that to happen.

The Minister will be aware that power over interconnectors was devolved to Scotland a little while ago. Does the definition of an interconnector not extend to the Scottish offshore area? How will this measure interact with that provision? The current wording of subsection (2) states that the authority,

“must grant any application … for the carrying on of a licensable marine activity”.

At this stage none of us can know what might be argued as falling within that description. The inshore area is likely to be an area with great sensitivity to disruption or degradation. Possible routes for the cable might be various within the area, or they might be better in a neighbouring area. So the phrase “must grant” is too rigid a power to place in the hands of what will really be the developer, let alone anyone else. I would be glad to hear the Minister defend this term.

My Lords, I hope I can reassure the noble Duke on this matter, although I readily agree with him that it is complex. It has to be read alongside the United Nations Convention on the Law of the Sea, which I think adds to the complexity of the general issue.

A coastal state’s ability to regulate submarine cables is tightly defined by the UN Convention on the Law of the Sea. Articles 58, 77 and 79 of UNCLOS, as it is popularly known, do not permit a coastal state to delineate the route of cables or regulate operations associated with the freedom to lay or maintain cables, on the continental shelf or in an exclusive economic zone, that are not involved in the exploration or exploitation of natural resources, or connected to an artificial island, installation or other structure.

This means that there are four scenarios for which we have to cater. First, the rights given to the laying and maintaining of submarine cables under UNCLOS do not extend, as I said, to those cables that are involved in the exploration or exploitation of natural resources, or those connected to an artificial island, installation or other structure. To answer the noble Duke’s question, these cables—such as those running to or from offshore wind farms—will require a marine licence, just like any other marine licensable activity, from the appropriate licensing authority as defined in Clause 110. This is regardless of whether they are in the territorial sea or the continental shelf.

The second scenario is that the rights given under UNCLOS do not extend to any cable that is entirely within the territorial sea. Again, these cables will require a marine licence from the appropriate authority as defined in Clause 110.

The third is that activities relating to the laying and maintaining of cables that are not connected with the exploration or exploitation of natural resources, or connected to an artificial island, installation or other structure, no part of which is in the territorial sea, are fully protected under UNCLOS and are therefore not licensable at all by coastal states. They tend to be telecommunications cables.

The fourth scenario is activities relating to the laying and maintaining of those cables that are not connected with the exploration or exploitation of natural resources, or connected to an artificial island, installation or other structure, but parts of which are in the territorial sea. These sets of cables are covered by the amendment to which the noble Duke has just spoken. Under UNCLOS, a coastal state cannot apply any regulatory control over that part of these cables that lies outside of the territorial sea.

For that part of these cables that lies inside the territoria