House of Lords
Tuesday, 19 May 2009.
Prayers—read by the Lord Bishop of Ely.
UK: Free Travel Schemes
My Lords, we do not at present have the resources to introduce reciprocal arrangements for concessionary bus passes with the devolved Administrations. However, discussions have taken place about how such cross-border concessionary travel could work.
My Lords, the noble Lord will be pleased to hear that there is no restriction on travel across the border areas: at least, none that the Welsh Assembly Government or the Scottish Executive have informed me of this morning. The noble Lord’s point is whether there could be reciprocal arrangements in border areas. Although, as I have indicated, we do not have the wherewithal to make reciprocal arrangements between whole schemes that operate in England, Wales and Scotland, a number of local authorities in the border areas have reciprocal arrangements between them, making it possible for those over 60 to travel free of charge on cross-border services. Local authorities in Wrexham, Torfaen, Cheshire, Herefordshire, the Forest of Dean, south Gloucestershire and Shropshire, for example, have reciprocal arrangements, which should go some way to meeting the noble Lord’s concern.
My Lords, speaking of reciprocal arrangements, is my noble friend prepared to discuss with the train operating companies the possibility of their accepting that local authorities’ concessionary bus passes give identical benefits to those enjoyed by holders of senior rail cards?
My Lords, mandating that bus passes should be accepted in place of rail cards would require a renegotiation of the franchise agreements, and so is not something that the Government could do unilaterally. There is, however, a lot to be said for my noble friend’s idea, and I will happily forward it to the Association of Train Operating Companies.
My Lords, will the Minister be a little more forthcoming, particularly about my own border area between Berwick-upon-Tweed and Scotland. Has his department done any research into the effects on market towns that are very close to the border? If you go down into Berwick-upon-Tweed on any day, half the people shopping there come from across the border. We have one of the lowest average wages in the country and a lot of retired people in the area. Although the local council has made some agreements on some routes, travel is still quite difficult, so I would appreciate it if the Minister could confirm that he will do a little research to see how this has affected the border towns. I declare an interest as a pass holder.
My Lords, the noble Baroness underestimates me if she thinks that I have not done research in advance of her question. Some reciprocal arrangements of the kind she has mentioned are available across the Scottish and English border; for example, the Scottish National Entitlement Card may be used on services to and from Carlisle, and to and from Berwick-upon-Tweed, from anywhere in Scotland, and other such arrangements are in place. However, far more important, I believe that I have to congratulate the noble Baroness on her birthday.
My Lords, English Heritage and the Homes and Communities Agency have provided advice and funding for the development of the Bletchley Park site. In 2008, English Heritage provided a grant of £330,000 towards buildings conservation repairs and has offered to provide a further £300,000 in funding for the area. The majority of the Homes and Communities Agency’s investment is towards the purchase and redevelopment of land on the site and related infrastructure.
My Lords, I thank my noble friend for that response. I should declare an interest in that my parents met at Bletchley Park; so, without it, I would not be here to ask my noble friend whether he is aware that the fundraising effort to restore the buildings and museum facilities is going well. Visitor numbers are rising rapidly and the business plan for Bletchley Park shows that it will be self-sufficient once the capital works are completed. But it is suffering considerable difficulty in surviving in the interim between now and those works being completed. Will he encourage his colleagues at the DCMS to reconsider their current unwillingness to support this important project?
My Lords, I am glad to hear yet another commendation of Bletchley Park, about which we hear nothing but good for its wartime record. But I had not realised it had such significance on the membership of your Lordships’ House and I am glad that my noble friend is able to ask me this Question. Support to Bletchley Park is a complex issue. The Bletchley Park Trust receives no external support, but, as I indicated in my Answer, there is substantial support for the areas of architectural and historic interest such as the mansion and several of the key huts in Bletchley Park. I assure my noble friend that, although I cannot answer in the affirmative to her particular suggestion, the department is well aware of the necessity to ensure support for such an important, historic site.
My Lords, this might not commend itself so much to the Minister: my parents met in Hut 3 at Bletchley Park, as did the parents-in-law of the noble Lord, Lord Wallace. So there are nests of Bletchley Park supporters surrounding the Minister. He has given a lukewarm reply. Is there not some form of scientific heritage funding that could be found for a short period to assure the revenue funding of Bletchley Park before it becomes financially viable? It could then turn into one of our major tourism attractions, demonstrating the full wartime history and the importance of computer science in this country.
My Lords, the Bletchley Park site is important not only for computer science but also for its record of code-breaking in the Second World War, for which it has subsequently received world recognition. English Partnerships has invested money in the core site and is putting in substantial resources. It supports the Bletchley Park Trust by contributing funds for the revised ticketing facilities, the completion of works to the new entrance and roundabout, and by financing works to some of the blocks. Along with that support the local authority, Milton Keynes Council, has put in £300,000 in recognition of the importance of the site to the locality. I would not want the House to be in any doubt about the extent to which Bletchley Park is the focus of interest of a number of funding contributors.
My Lords, is the Minister aware that the father of the noble Baroness, Lady McIntosh, was one of my bosses? When I went to Bletchley I was one of 400 people, and when I left I was one of 6,000. The place when I left was in pretty good order, and in a way that has not changed. Does the Minister agree that those people who have taken a long time using their expertise to replace the vital machinery—which, curiously, Churchill decreed should be destroyed—should have our wholehearted congratulations and thanks?
My Lords, I am happy to join the noble Baroness in offering our congratulations to those who have ensured that the machinery is preserved. Significant investment is going into the site, and this summer an exhibition will be held to which people from abroad will contribute their resources to put on displays, which will be an added dimension. Bletchley Park is often celebrated for the contribution made by outstanding women to its work and I am delighted that the noble Baroness is one of those outstanding women. I am also glad to hear that from time to time men, too, played a part.
My Lords, I declare an indirect interest in that my father was a beneficiary of the Ultra intelligence derived from the work done by the noble Baroness, Lady Trumpington, and others. To go a bit further than what other noble Lords have proposed, does the noble Lord not think that Bletchley Park should be turned into a full-scale national museum on the same terms as the Imperial War Museum or many of our other national museums? As has been alluded to, the work was of vital importance to what happened during the war and was the foundation of the entire computer industry in this country, which is now a worldwide phenomenon.
My Lords, the noble Viscount has succinctly identified the significant historical position of Bletchley Park; I want to assure the House that government departments and agencies are fully aware of this, as indeed is Milton Keynes Council. We have no plans at present to associate it with the Imperial War Museum. The House is all too well aware of the significance of designating any area in association with a museum of that rank, but I want to give an assurance that Bletchley Park will continue to develop under the resources made available to it.
My Lords, does the Minister accept that, as well as my noble friend Lady Trumpington, the noble Lord, Lord Briggs, played a key role at Bletchley Park? Will he recognise that subsequent generations believe that invaluable work was undertaken there and it was not merely a collection of the public explanation given at the time that they were gathering government statistics?
My Lords, because of the nature of the work, it was a long time before the nation appreciated what had been achieved at Bletchley Park. Plays, television programmes and general information have now become available so that all generations now appreciate it, but perhaps none more so than the one represented in this House most fully.
My Lords, given that the Freedom of Information Act was not in operation during the Second World War, would it now be possible to make inquiries about the drug invented at Bletchley Park which enabled these people to clone their staff with such success in such a short period of time?
Health: Information Prescription
My Lords, the National Cancer Action Team is working with cancer networks and cancer charities to develop an electronic delivery system that can be used by professionals to deliver information prescriptions to patients at any point during their cancer journey. Eleven tumour-specific information pathways have been developed and are being piloted across 71 sites in England. It is planned that the full system will be available and that all cancer patients will receive an information prescription as part of their consultation from 2010.
My Lords, I thank the Minister for that reply; it is welcome news. The pilot scheme is obviously taking slightly longer than anticipated; the cancer reform strategy promised the information prescription in 2009. Nevertheless, I welcome the news. Can the Minister say whether, along with the information prescription, all patients will have the assistance of a healthcare professional in helping them to understand and act on the information prescription made available?
My Lords, that is correct. The information prescription pilots are addressing, first, the concept of the dispensing of patient prescription information by a clinical nurse specialist who has all the competencies to explain the content of such prescription information. In addition, a written consultation discussion will be recorded and explained by the consultant; prescribing and dispensing information with a palliative care setting will be given; and there will be patient self-prescribing, with an explanation of what the content of that prescription means.
My Lords, I am sure the Minister is well aware that in obstetrics these information prescriptions are more appropriately referred to as patient information notes. In fact, obstetricians were the first to pioneer such notes. How do such notes help the patient-professional relationship? Should these notes record the performance of the surgeon—or the robot, as appropriate—in terms of outcome?
My Lords, the reason these are called information prescriptions rather than notes is because they contain evidence-based information. As to what this process does to the relationship between the clinician and the patients, I personally think it is transforming it from an era of paternalism into an era of partnership between the patient and the clinician.
My Lords, does my noble friend agree that specialist cancer hospitals such as the Christie in Manchester, where I am a non-executive director, already provide excellent information for specialist services, as evidenced by the fact that the hospital came first in the country in the recent in-patient survey for overall care? Does he further agree that the Christie charity provides invaluable additional support through specialist nurses and counsellors to provide disease-specific information, and that that is why the Government’s support to get compensation for the failed UK subsidiary of an Icelandic bank is so essential?
My Lords, I commend Christie’s and many specialist hospitals around the country. I work in one, the Royal Marsden, which provides services not dissimilar to the ones provided by Christie’s. I have little expertise in the banking arrangements of specialist hospitals, but I shall be more than happy to write to my noble friend about the issue.
My Lords, we are working with a large number of charities. I acknowledge the championing and pioneering impact of the work of the late Lady Clement-Jones, who introduced this concept through Cancerbackup and, more recently, Macmillan Cancer Support. We are working with CRUK, the biggest cancer charity in this country, supporting research and the evidence base for these information prescriptions. In addition, at least 32 other charities that deal with cancer are helping us with the content of such information prescriptions.
My Lords, the evaluation of the information prescription pilots suggested that PCTs needed to be given guidance about commissioning charitable and voluntary organisations to provide support to people to enable them to understand the prescription they have been given. What guidance does the Minister’s department give to PCTs about commissioning information and support services?
My Lords, we give guidance to PCTs about the information prescription. As it stands, we are running the pilots to learn more from them but, while we are doing so, we also have 25,000 patient questionnaires seeking patients’ views about the information. One thousand, two hundred and fifty patients will be part of the participating pilot while the other half will be the control group without the information prescription, and those are the comparative data on which we hope to build the system in 2010.
My Lords, I am grateful that the Minister expressed support for the concept of specialist nurses working in this important field. Specialist nurses are making an increasingly important contribution across many fields in the National Health Service, particularly in supporting and helping patients suffering from a variety of progressive diseases such as Parkinson’s, epilepsy, multiple sclerosis and many more, as well as cancer. May I have an assurance from the Minister that the development of specialist nurse services, not just in cancer but in other fields, is likely to be high on the agenda of the National Health Service?
My Lords, I agree. I can say that patients’ satisfaction and experience tremendously improved when I started to work for the specialist nurse in my colorectal team. I could not agree more; we need to develop specialist nurses and the roles that they will play, but that needs a significant mindset shift, certainly on the part of many of my nursing colleagues, as well as the development of competencies in providing that type of service.
My Lords, will the Minister tell me, for the benefit of other Members of the House also, quite simply what the information prescription will be, how it will be decided which people will get it—in the pilot, he said, half will get it and half will not—and how you will discover that you are one of the ones who will? Will it just arrive out of the blue in written form, or in another form?
My Lords, this is an academic evaluation so there is a random control trial going on. Patients will be selected at random. That is one of the pilots looking at the impact of this. Our aspiration is that every patient with cancer will receive an information prescription throughout the whole of their pathway, whether that is the referral from the general practitioner to the specialist centre, the diagnosis, the treatment, the long-term follow-up or the prognosis. We believe in empowering patients because many will say that an empowered patient will get through the cancer pathway at a speedier rate and feel much more confident in the treatment they are receiving.
My Lords, the Prime Minister released a statement on the morning of Aung San Suu Kyi’s arrest, condemning the actions of the regime. Our embassy in Rangoon registered the Government’s deep concern with the Burmese authorities immediately on receiving news of the arrest. The Foreign Secretary has worked with his counterparts in the EU to deliver a clear message to the regime, and we are talking to UN Security Council members to consider the next steps.
My Lords, I welcome what the Minister has just said. During those discussions with members of the Security Council, will a reference to the International Criminal Court be considered for some of those who have been responsible for crimes against humanity in Burma and who are responsible for putting Aung San Suu Kyi through not just 5,000 days—nearly 14 years—of house arrest but now imprisonment in Insein prison in Rangoon, which is notorious for the torture, squalor, filth and the illnesses that have occurred there? What are we doing to work with our European Union partners on targeted sanctions and to put pressure on the Government of China, who are probably in a far better position than anyone else to ensure that humanitarian concerns about Aung San Suu Kyi’s well-being are to the fore?
My Lords, as the noble Lord knows well, Burma is not a signatory to the ICC, so a reference by the Security Council would be required. Our view is that we would not secure one because some countries on the Security Council have made it clear in previous consultations that they would oppose such an action. Yesterday conversations were initiated in Brussels by my right honourable friend the Foreign Secretary, which will lead to a statement by the EU, and last year we led in pressing for sanctions to be strengthened at the European level. As the noble Lord is aware, however, when it comes to global action through the UN, we are constrained by the position of China and others which resist further isolation of the regime.
My Lords, have Her Majesty's Government had any discussions recently with Indian and Chinese Ministers regarding Aung San Suu Kyi? If not, will they do so in Hanoi next week at the Asia-Europe meeting, bearing in mind the influence that these Ministers may have on the Burmese Government through their considerable economic investments in Burma and their total disregard for any sanctions on Burma?
My Lords, there are continuous and frequent discussions at Security Council level. Last year I had occasion to talk to Ministers in both countries about this issue. Unfortunately, economic competition between India and China for a greater stake in Burma makes both of them reluctant to be parties to sanctions or further isolation of the regime.
My Lords, does the Minister agree that, whatever pressures are brought to bear on Burma by western nations, other ASEAN nations are complicit in many respects? The leader of the Shan people said to me that Burma opened its treasure chest of jade and jewels and ASEAN nations bought into it. Therefore, will Her Majesty's Government make representations to the other ASEAN nations not to allow commercial interests to undermine political pressure for the release of Aung San Suu Kyi and other political prisoners and the cessation of all human rights violations in Burma?
My Lords, following Cyclone Nargis last year ASEAN has tried to play an increasingly constructive role in the case of Burma, and a number of ASEAN leaders have come quite far out on this issue. I say again, however, that the essential dilemma in our policy on Burma is that whereas we in the West have relied on sanctions and isolation, ASEAN neighbours have preferred limited engagement. That contradiction of strategy means that the regime has survived very nicely, thank you.
My Lords, I am sure that the noble Lord will join me in welcoming the statement by the presidency of ASEAN expressing grave concern about the treatment of Aung San Suu Kyi in view of her fragile state of health. Does he think that it would be worth while asking the UN special envoy, Mr Thomas Quintana, to visit both Beijing and New Delhi to see whether China and India can be persuaded to line up behind that statement and to join the EU in imposing sanctions on the regime?
My Lords, I am glad that the noble Lord draws attention to that ASEAN statement, which confirms my point that ASEAN is moving forward on this. In fact, ASEAN leaders frequently complain to me that the Burmese compare unfavourably their openness to Western support for Aung San Suu Kyi to the position of other neighbours which are more hard-line and reluctant to come forward. As far as UN action goes, the most promising prospect is that the UN Secretary-General has made clear his intention to visit Burma in the coming months, and it now seems that the regime will accept that visit.
My Lords, the British Government discourage all such trade links. Our embassy in Rangoon does not help any British company with trade and we advise against it. We also have a number of EU-wide sanctions, particularly on arms; but, as I said, the difficulty is that it has not been possible to globalise these steps.
My Lords, will the Minister confirm that the British Government continue to have a twin-track policy of maintaining and perhaps strengthening sanctions while at the same time increasing aid to non-governmental organisations which have no connection to the Burmese regime? Is not a steady increase in that aid to non-governmental organisations one way of making it clear to Burma’s other neighbours that we are not seeking to destabilise the country or to punish the citizens of that country but merely to deal with an obnoxious regime?
My Lords, I must again thank the noble Lord, who is always able to state British policy much more elegantly than I can. He is completely right: it is a twin-track policy. It is very important to weigh against the fact that we have led the push for sanctions, and are proud of that, the fact that we are also the biggest bilateral humanitarian donor to Burma, working exclusively through NGOs and not through the Burmese Government. We think that both tracks are vitally important so that people see the sanctions for what they are—targeted at the regime and its economic interests but not intended to adversely impact the desperate lives of ordinary Burmese.
My Lords, are the Government doing anything at all to try to dissuade British travellers from taking holidays in Burma? We have the trade sanctions, and the Minister has now told us about the aid sanctions through the NGOs, but many travellers are still going to Burma, and something should be done about it.
My Lords, the noble Baroness has a point. I will have a look at our FCO travel website and see what we say about Burma. I think that it makes clear the different sanctions and restrictions which are in place. For many people, however, that chance of citizen-to-citizen contact brings them home even angrier about the regime than they were when they went.
Marine and Coastal Access Bill [HL]
Report (3rd Day)
Clause 116 : Consultation before designation
113ZB: Clause 116, page 71, line 4, at end insert—
“(9A) If the appropriate authority fails to make the order before the end of the period of 12 months beginning with the date on which notice was published under subsection (2), then anything done by the appropriate authority for the purposes of complying with subsections (2) to (9) of this section is, for those purposes, to be treated as not having been done.”
My Lords, I have listened carefully to concerns raised in Committee on this matter. I know that noble Lords wanted further assurances in the Bill that the Government are indeed serious about designating marine conservation zones. So I have tabled Amendments 113ZB and 113ZC to Clause 166, which would insert a time limit for designating individual marine conservation zones. This provision will ensure that the Secretary of State must make an MCZ designation order within 12 months of publishing notice of the proposal under Clause 116(2).
These provisions will ensure that all interested parties have a clear understanding of the timescales involved in the MCZ site designation process and provide more certainty for developers and sea users. Designating authorities will be aware of the importance of keeping momentum up in the designation process. Imposing a timetable for the designation of individual marine conservation zones will help to speed up the creation of an ecologically coherent network of sites in the medium to long term. I hope that this provides the assurance that noble Lords wished to have when we debated this matter in Committee. I beg to move.
My Lords, I have a very brief speaking note but a rather important message, which is to congratulate the Minister on a very significant birthday.
On the matter in hand, these amendments follow from our debates in Committee and seem very sensible. I thank the Minister for tabling them.
My Lords, in the absence of my noble friend Lord Greaves, who is unwell today, I am afraid that I will have little to contribute to this part of the Bill with which I have not previously been involved. I add my congratulations to the noble Lord on joining the age group eligible for a bus pass and a senior citizen’s railcard. However, if he continues to work at his current rate, he will, sadly, not have much opportunity to access cheap film matinees for pensioners.
My Lords, you never know what will happen after this Bill. I thank the noble Baroness and the noble Lord for their comments. I congratulate the noble Lord on winning a gold medal at the Chelsea Flower Show yesterday. That is a very significant achievement and I offer him my warmest congratulations on it.
Amendment 113ZB agreed.
113ZC: Clause 116, page 71, line 12, at end insert “(and subsection (9A) applies accordingly)”
Amendment 113ZC agreed.
113ZD: After Clause 116, insert the following new Clause—
“Publication of orders designating MCZs
(1) This section applies where an order has been made under section 113.
(2) The appropriate authority must publish notice of the making of the order.
(3) The notice under subsection (2) must—
(a) be published in such manner as the appropriate authority thinks is most likely to bring the order to the attention of any persons who are likely to be affected by the making of it;(b) give an address at which a copy of the order may be inspected.(4) The appropriate authority must—
(a) make a copy of the order available for inspection at the address specified under subsection (3)(b) at all reasonable hours without payment;(b) provide a copy of the order to any person who requests one.(5) The appropriate authority may charge a fee, not exceeding its costs, for providing a copy under subsection (4)(b).”
My Lords, I speak also to the other government amendments in this group. The amendments result from the useful debate in Committee when the noble Duke, the Duke of Montrose, questioned the wording in subsection (2) of Clause 126. I am grateful to him for doing so. It was pointed out that the Bill requires the MMO to send a copy of a draft by-law to every person who it thinks is likely to be interested or affected by the by-law. The noble Duke suggested that that was quite some obligation. We agree that this could be read as imposing a somewhat unrealistic, disproportionate and costly burden on this public body, which was not our policy intention. In response, we have tabled a series of amendments, both in relation to Clause 126, and in relation to the notification requirements for other clauses in Part 5, which we have also reviewed in the light of the debate in Committee.
Amendments 114G to 114J, taken together, deal with this point. They impose more clearly a proportionate and workable duty on the Marine Management Organisation. This is intended to address the specific point raised by the noble Duke, the Duke of Montrose, in Committee. The amendments would require the MMO to publish notice of the making of a by-law as soon as reasonably practicable after the by-law is confirmed, and to make copies available for inspection. In practice we would also expect the MMO to send a copy of the notice to people who it considers will have a particular interest.
Amendments 114K to 114M address a similar issue and ensure consistency with the approach I have just outlined in relation to by-laws that have been made by the MMO. In similar fashion, Amendments 114N to 114Q make changes to Clauses 131 and 133, which provide powers for the Welsh Ministers to make orders to protect marine conservation zones in Wales. These orders will be similar to by-laws made by the MMO. The purpose of these amendments is to impose similar and consistent duties on the Welsh Ministers to publicise orders as are being proposed for the MMO after making a by-law.
We have also reviewed the other notification requirements in Part 5 to ensure consistency. As a result of this we have tabled Amendment 113ZD. This introduces a new clause after Clause 116, requiring Ministers to publish notice of the making of an MCZ designation order, and to make copies of the order available for inspection. It must also provide a copy of the order to any person on request. Currently, the Bill requires consultation to take place only before any decision is taken on whether to designate a marine conservation zone. However, the debate in Committee clearly underlined how important it is for people to know what decision is reached. Informing people that a site has been designated will help to ensure that the site is more effectively managed and protected, and that offences are more easily enforced.
This group of amendments will ensure that the notification arrangements throughout Part 5 are transparent, workable, proportionate and consistent. They are important to secure efficient public administration and to ensure that the public are properly informed of matters that may affect them. In due course, I shall ask the House to accept the other amendments in the group but, for now, I beg to move Amendment 113ZD.
My Lords, I particularly welcome what the Minister said about the instructions to Welsh Ministers in Amendment 114N and in the series of amendments that follow it addressing Welsh Ministers. The tidying up that is being done in terms of giving instructions to Welsh Ministers is very welcome, because it levels up the duties both in England and in Wales and clarifies that situation in particular and leaves no doubt whatever what those duties are.
113A: Clause 119, page 71, line 35, leave out subsection (1) and insert—
“( ) In order to contribute to the achievement of the objective in subsection (2), the appropriate authority must designate MCZs under section 113.”
My Lords, we spent some time in Committee debating the Government’s commitment to an ecologically coherent network of marine conservation zones, how we intend to define the network and whether this network will include wider European marine and Ramsar sites and sites of special scientific interest.
I listened carefully to those concerns, and I have tabled a number of amendments to Clause 119 which I hope meet the major points raised in Committee. The amendments seek to emphasise that we are serious about the duty to designate an ecologically coherent network and that we want the network to include a range of marine protected areas, such as European and Ramsar sites and sites of special scientific interest.
I will start by addressing my Amendment 113A, which amends the drafting of Clause 119(1) in response to the concern raised by noble Lords in Committee. We must ensure that Ministers are under a clear duty to designate a network of marine conservation zones. Indeed, the entire success of the nature conservation provisions relies on that. I have therefore tabled a new drafting for the duty to designate, as set out in Clause 119(1). This new drafting clearly requires that in order to fulfil their duty, Ministers must exercise the power to designate marine conservation zones set out in Clause 113. This new drafting also makes clear that the network must comprise multiple marine conservation zones.
The amendment builds on the legal advice that I sent noble Lords on 30 March, highlighting how Clauses 119 and 113 work together to create a duty. Let me be very clear on this point. Clause 119 imposes a duty on each appropriate authority to contribute to the achievement of a UK-wide network of conservation sites by exercising its power to designate marine conservation zones in its area. It provides that the authority must exercise the power to designate marine conservation zones in order to contribute to the achievement of the objective of a network. The word “must” clearly imposes a duty on the authority to exercise that power to bring about a particular result. The appropriate authority cannot choose not to exercise the power conferred by Clause 113(1) without automatically being in breach of the duty imposed by Clause 119(1). Failure to exercise the power is a failure to comply with the duty. I hope that that provides the reassurance required on that point.
I turn to my Amendments 113B, 114A and 114B, which I have tabled in response to our debate in Committee and the amendment proposed there by the noble Baroness, Lady Young. The clause as it stands sets out that the network will include marine conservation zones and European marine sites. These amendments would require the network to include Ramsar sites and sites of special scientific interest, as well as marine conservation zones and European marine sites. The net effect is to ensure that the Secretary of State must designate marine conservation zones so that, taken with other marine protected sites, they form a comprehensive network of sites, allowing us to ensure maximum connectivity and linkages between different MPAs. The duty on the Secretary of State to report to Parliament on progress on designating the ecologically coherent network in 2012, and at least every six years thereafter, will also include a report on the number of marine conservation zones, European sites, Ramsar sites and sites of special scientific interest.
The Secretary of State clearly will take very seriously these duties to designate and to report to Parliament. Taken together, they provide clear accountability to report on delivery. I can confirm that, in the light of our discussions, we will be looking to our statutory adviser, Natural England, to play a leading role in co-ordinating and producing the report which we have to make to Parliament on the way our duties to deliver the network of marine conservation zones have been achieved for the waters that we, the UK Government, are responsible for.
I hope noble Lords will consider that we have listened carefully to the good and interesting debate in Committee on this matter. I beg to move.
My Lords, I thank the Minister once more for bringing back amendments that clear up some of the more confusing or ambiguous drafting in this Bill. We welcome his attempts to reassure us and outside stakeholders about the duty to establish a network of marine conservation zones. He will be aware that there is a lot of interest in this subject, and I am grateful for his contributions. I shall leave any further comments on Clause 119 to my next amendment.
My Lords, I, too, welcome these amendments. They underline the Government’s commitment, already indicated, to a network of marine conservation zones, rather than a series of stand-alone MCZs. The amendment gives real substance to that commitment, particularly by linking it in with a number of our European obligations, and is very welcome in that regard.
My Lords, I add my voice of thanks and appreciation to the Minister for the way in which he has carried this matter forward and for his amendments. Can he say to what extent he is carrying with him any of the other EU countries? It would be interesting to know how far their thinking is travelling along the same road and whether their policy is developing to the same extent.
While I am on my feet, perhaps I may put a very small but illustrative point to the Minister. Other noble Lords may well have seen, as I did, a photograph which appeared some weeks ago in the Daily Telegraph of a rather remarkable golden sea horse. I recollect that the caption referred to a very rare colony of sea horses that are threatened with extinction as a consequence of leisure activity—notably sailing, boating and anchoring of sea craft. At some time, perhaps not at this juncture, will the Minister look into this question and discuss with Natural England the measures that are urgently needed to protect this rare colony?
My Lords, I spoke previously on a matter of particular interest to me that seems relevant in this context: the protection of archaeological remains on the seabed. I referred to an article in British Archaeology, a serious academic magazine, which revealed that the Ministry of Defence had sold the contents of a significant wreck recently discovered in the English Channel to an American company. I was concerned that this had been done and was not clear whether ministerial authority had been obtained for it. I subsequently wrote a letter to the Minister, not having received a reply on that point. I hope that it can be made clear that marine archaeological matters will be covered in the protected zones. If the noble Lord has not yet been able to do so, I ask him urgently to look at this magazine, which reveals certain things that seem to have gone wrong in the ministerial decision-making process. I have no doubt that he will devote his attention to this matter in his usual careful way and I hope that he will forgive me for referring to it, as I do not think that he has yet been able to reply to the personal letter that I wrote to him at the end of last week.
My Lords, it is clear that the Minister listened hard to our debates on these issues in Committee. I am heartened by references to SSSIs and Ramsar sites. I hope that the enforcement associated with this will be appropriate when the time comes. I am pleased to see that, in Amendment 114B, “Ramsar site” has the same meaning as in Section 37A of the Wildlife and Countryside Act 1981. My particular interest here is the Severn estuary, where there are a number of SSSIs and a Ramsar site. I hope that this will give sufficient muscle to the MMO when it relates to the Infrastructure Planning Commission set up under the Planning Act, as there are many sensitive areas. These amendments strengthen the Bill considerably, which is to be welcomed.
My Lords, I am most grateful to noble Lords for their general welcome of the amendments, which, as I said, reflect the fact that the Government have listened to the points of concern raised. We will talk about the definition of ecologically coherent zones when we come to the next group, so I will not comment on that now.
I am grateful to the noble Lord, Lord Eden, for his remarks. He spoke passionately in Committee about the need for protection and, in bringing forward the example of sea horses, he provides a clear illustration of why this legislation is required. Obviously, we will have to consider all these matters on a case-by-case basis, but he was right to draw our attention to that example, which reinforces the importance of this Bill and the need for us to get it on the statute book to ensure that we have proper protection of the marine environment in the overall context of sustainable development.
I am always cautious about commenting on what other European states think of what we are doing. The Bill is about a national commitment to develop a network, but all member states are bound by the marine strategy framework directive. We played a major part in negotiations on that directive, which provides for the formation of a network of protected areas, so clearly what we are doing is consistent with it. However, I think I can go further by saying that there is a very great deal of interest in many European countries about the proposal and the progress that we are making. I know that my right honourable friends in another place, the Ministers in my department who lead on these areas, are in frequent discussion with their ministerial colleagues in other European countries about these matters.
I reassure the noble Lord, Lord Bridges, that a draft response is available. Alas, it has not quite reached me but it will very soon. The matter has been discussed with the MoD. The wreck believed to be HMS “Victory” has in fact not been sold to Odyssey Marine Exploration, but I will correspond with the noble Lord in more detail on that. I understand the points that he raised. He knows that we discussed marine archaeology during our previous day on Report, and I thought that we reached a very satisfactory conclusion.
I very much welcome the support of the noble Lord, Lord Livsey, for these amendments. Ramsar sites are very important, being wetlands of international importance. Their protection, which is the point that the noble Lord was really referring to, is secured through underpinning SSSI notifications. A small number of Ramsar sites extend beyond the mean low-water mark. SSSIs receive protection through duties placed on local owners and occupiers, as well as on public authorities and statutory undertakers. These notifications set out specific operations which are considered likely to damage a site, and owners and occupiers are required to notify Natural England before carrying out those operations. Natural England also has the power to serve a management notice on an owner or occupier, requiring them to take reasonable measures to ensure that the land is managed in accordance with a management scheme for the site. I appreciated the comments of the noble Lord, Lord Wallace, too, and I think that overall we have reached a very satisfactory outcome on this issue.
Amendment 113A agreed.
113B: Clause 119, page 71, line 39, leave out “European marine sites that have been established” and insert “relevant conservation sites”
Amendment 113B agreed.
114: Clause 119, page 71, line 40, leave out “a” and insert “an ecologically coherent”
My Lords, we come finally to an amendment that we consider to be one of the most important for this part of the Bill. I alluded to it briefly when speaking to the amendment of the noble Baroness, Lady Hamwee, on highly protected sites, and it is why I was unwilling to support her on that point.
We see the overall success of marine conservation zones as depending a great deal on the effective designation of an ecologically coherent network. There will of course be many areas where a stand-alone zone should be designated outside the network. However, the vast majority of zones will relate to protecting flora and fauna, which make-up an interrelated organic ecosystem where decisions on one part of the marine environment will have a great impact on the other. The Government understand that and have tried, as the Minister has just done, to reassure us about their intentions when designating zones under Clause 119.
However, I remain concerned for a reason which we often raise in this House: no matter how good the current Minister’s intentions, there is no guarantee as to those of the next. Legislation should not be left full of loopholes for a future Government or Minister to exploit when the going gets tough. I therefore seek to tighten up the definition of what a network relates to. It must be possible for future designations to be justified on the grounds of merely involving more than one site, as is required by Clause 119(3)(c). The appropriate authority must be held to the duty of implementing a genuine scientifically based network and be seen to do so.
My amendment does not seek to do anything that this Government claim they are not already doing. It would also, I hope, address the remaining concerns of conservation bodies that, after the economic interests have received recommendations, the network will be too small and weak to make the necessary impact. Therefore, I hope that the Minister will accept the amendment. I beg to move.
My Lords, I certainly support the amendment. I know that my noble friend Lady Miller of Chilthorne Domer has spoken about this in a number of our debates. It is most important that these matters are joined up in terms of a network. I agree with the noble Lord about having a sufficient spread so that they can be joined up to an ecological mass that is meaningful in terms of protection. The principles are important to conservation and I hope that the Minister will respond positively to the amendment.
My Lords, we have had three short contributions, so one cannot be in any doubt about the importance of this debate. The noble Lord, Lord Taylor, is concerned that the definition is not as tight as he would like and that it might be possible for a future Government to slip out of the kind of commitments that we believe are implicit and explicit in the legislation. The noble Lords, Lord Livsey and Lord Greenway, support the amendment.
I have to say that we have a problem in accepting an amendment, which although extremely well meant, has drafting issues that are genuinely difficult to accept in the Bill. I hope that in saying that, I can convince noble Lords that there is no disagreement between us in principle, and that the Government have some ideas on how to reassure noble Lords on this point. The House has accepted the amendment in the previous group, which I set out and which seeks to ensure absolute clarity in the duty to designate. In having the duty to designate marine conservation zones, it is clearly necessary to set out as far as we can what constitutes the network.
We have included within Clause 119(3) three core principles based on the definition of ecological coherence developed for the Convention for the Protection of the Marine Environment of the North-East Atlantic—OSPAR. The conditions require that the network should contribute to the conservation of the marine environment, protect sites that represent a range of features present in the UK marine area and reflect the fact that conservation of a feature may require more than one site to be designated. We want to ensure that our network is based on the OSPAR principles that are right for the UK network.
OSPAR ultimately provides a number of guiding principles for member state countries to use in determining what is best for their own waters and biodiversity. The problem is that OSPAR does not offer concrete outcomes that we can simply transpose into this Bill without our own research into how the UK ecologically coherent network should look. We must ensure that the network principles are right as they will underpin the entire success of the nature conservation provisions. The Bill must have the flexibility to allow us to provide the necessary levels of protection in the medium and long term. We cannot bind ourselves to terms that will evolve and could become out of date.
Much though the marine environment is beloved of noble Lords who have taken part in our debates, no one could say with confidence that this is an area that we are likely to legislate on frequently. Inevitably, we are legislating for a long time ahead. I realise that there is tension there; in a sense, the noble Lord, Lord Taylor, is saying that because of that, he wants greater certainty now. My problem is that, if we tie this up too far, we will not have the flexibility to deal with evolving situations. That is why the Government think that Clause 119(3) as it now stands is as far as we can go in referencing the term “ecological coherence” in the Bill.
My Lords, I can readily understand the point that the Minister is making about a phrase that will no doubt get a technical interpretation and be stuck with it, but, equally, the point made about putting something in the Bill to underpin the commitment beyond what is already there is important. I wonder whether it is still possible for the Government to see whether there is anything more that could be put into the Bill that would meet those concerns without hamstringing future generations.
My Lords, that is a fair intervention. I hope that I can satisfy the noble Lord on that point, but I must say that we have looked very carefully at whether we can go further in terms of what is in the Bill. The firm advice that I have received as of today is that that presents us with great problems. We think that the provisions already in the Bill, alongside the requirement to satisfy European and international commitments and the redrafted duty to designate marine conservation zones, effectively ensure that the Government will deliver on both defining and designating an ecologically coherent network.
To come to the point raised by the noble Lord, Lord Wallace, of course I know that noble Lords feel strongly about this matter; I do too. There would be no point in taking the Bill through the House unless we were satisfied that at the end of it we would have the kind of ecologically coherent network that we all want.
In the light of our debate, I can offer to amend the Explanatory Notes to highlight that Clause 119(3) sets out what the network of marine conservation zones should achieve, listing three core principles based on the definition of an ecologically coherent network developed for the Convention for the Protection of the Marine Environment of the North-East Atlantic. It is worth pointing out that the Explanatory Notes issued with an Act of Parliament are used to inform cases of doubt in court, as they give further advice and information on the intent behind the provisions. The amendment to the Explanatory Notes will reference ecological coherence, while allowing flexibility to respect evolving definitions of ecological coherence in years to come.
Although we believe that we are constrained by what we can put in legislation, of course we have much more freedom to set out what we mean in other documents, because they can evolve over time. The draft strategy, Delivering Marine Conservation Zones and European Marine Sites, published on 20 April for consultation, sets out the principles that we believe we should use in creating the UK's ecologically coherent network.
We also intend to issue guidance to the regional projects responsible for recommending potential marine conservation zones to the Secretary of State. We revised the draft guidance, which we originally published this time last year. The guidance gives us the opportunity to provide further detail about what the Government mean and understand by the various principles that underpin ecological coherence, and provides clear advice to the regional projects that will identify the network to use those principles. These include, for example, connectivity, which is an important issue for several noble Lords who have spoken on this matter. Clearly, the network should maximise and enhance the linkages that individual marine protected areas will bring, using the best available science. For certain species, that will mean that sites with suitable habitat will need to be chosen so that they allow the movement of key life stages from one place to another. That can all be made clear.
I know that I am asking noble Lords to put a lot of trust in guidance on the selection of marine conservation zones. I have already outlined that this is partly to allow such guidance to adapt to circumstances over time. I also accept that the Government need to be clear about setting the framework for the overall guiding principles for the selection of marine conservation zones to ensure that these sites, and other types of marine protected area, deliver an ecologically coherent network, based—as I have said—on our current understanding of that concept.
In addition—and I am finally answering the noble Lord, Lord Wallace—I am considering whether to table an amendment at Third Reading that would include a requirement on Ministers to lay a statement before Parliament or the relevant legislature setting out how we intend to use the principles of ecological coherence to deliver a network. The statement might outline the design principles that would be used to deliver ecological coherence as we currently understand it, and how we intend to implement these principles through stakeholder-led regional projects. I have already referred to the guidance that will be given to those taking the regional projects forward. Of course, they will be key in implementing the principles of ecological coherence, but there will also be an independent science advisory panel that will ensure that the network selected by the regional projects delivers to these principles.
I said that I am minded to introduce an amendment at Third Reading. I say that because I still need to discuss this with colleagues in the devolved Administrations. I would welcome the opportunity to bring this back at Third Reading, so that we can have another debate about it. I hope then to bring forward an amendment. At heart, I do not disagree with any of the points that noble Lords have raised, but there is a genuine difficulty in having so tight a definition that it may not meet the needs of the marine environment, as our learning, understanding and experience of creating marine conservation zones evolve in the future. I hope that the guidance that will be given to the various bodies that need to take this forward, and my undertaking to do everything that I can to bring back an amendment on the basis that I have already mentioned at Third Reading, will reassure noble Lords that we take this seriously. I am also happy to discuss this further with noble Lords before Third Reading.
My Lords, it would be churlish not to acknowledge the Minister’s response to the amendment and the good faith in which he has demonstrated his commitment to an ecologically coherent network. However, I hope he will accept that there is a strong body of opinion in the House that it is very important to make it quite clear that an ecologically coherent network must be part and parcel of the method of marine conservation that the Bill sets up. I hope to avoid coming back to this at Third Reading, but to be able to debate government amendments on this subject would be extremely satisfactory. Should we have the Minister’s proposed solution, I hope he will note that laying a statement before Parliament so that Parliament can distrust its nature is an important part of the process. Given that we have had a very favourable response from the Minister, I beg leave to withdraw the amendment.
Amendment 114 withdrawn.
Amendments 114A and 114B
114A: Clause 119, page 72, line 8, at end insert—
“( ) For the purposes of subsection (2), the following are “relevant conservation sites”—
(a) any European marine site;(b) the whole or part of any SSSI;(c) the whole or part of any Ramsar site.”
114B: Clause 119, page 72, line 21, at end insert—
““Ramsar site” has the same meaning as in section 37A of the Wildlife and Countryside Act 1981 (c. 69);
“SSSI” means a site of special scientific interest, within the meaning of Part 2 of that Act.”
Amendments 114A and 114B agreed.
Clause 121 : General duties of public authorities in relation to MCZs
114C: Clause 121, page 73, line 31, leave out “the exercise of any of its functions” and insert “any of its functions is such that the exercise of the function”
My Lords, Amendments 114C to 114F address a significant burden that the Bill as drafted places on public authorities.
Clause 121 places a duty on public authorities to inform the statutory conservation bodies when they think that the exercise of their functions might significantly hinder the achievement of conservation objectives for a marine conservation zone. It is clearly right that a public authority should assess the likely impact of its functions on marine conservation zones, and if it thinks that exercising those functions might have an adverse effect it should seek the advice of the relevant statutory conservation body. Such advice would help it to fulfil its duty best to further, or least hinder, the achievement of a marine conservation zone’s conservation objectives.
On further consideration, however, we have concluded that the duty as drafted applies not only to the general exercise of functions, which is our intention, but to each occasion on which a public authority carries out functions in its own right, even for routine and well understood activities, such as Trinity House laying buoys for the safety of navigation or a harbour authority dredging a channel that has been silted up by a storm. It is disproportionate and impractical to require public authorities to inform the statutory conservation body every time they wish to carry out a core function for which Parliament may have given powers or imposed duties in legislation. We do not wish the Bill to have that effect, and the Government’s amendments address this problem accordingly.
Amendment 114D contains substantive provisions to the effect that if statutory conservation bodies issue standing advice or guidance to public authorities, those authorities are not required to inform the statutory conservation bodies each time an activity is carried out, provided that the activity is within the scope of the standing advice or guidance. If, for example, the statutory conservation body had issued guidance on the precautions that need to be taken to avoid damage to marine conservation zones when navigational buoys are being laid, an authority such as Trinity House would not need to seek advice each time it laid a buoy.
Where there is no relevant standing advice, the amendment establishes a time limit of 28 days for the statutory conservation bodies to give any advice necessary, after which public authorities may decide whether to go ahead as planned. This is to give the statutory conservation body a reasonable period during which to provide advice—this is comparable with Clause 122—and to avoid the authority being unnecessarily prevented from carrying out its duty by delays in the statutory conservation body issuing advice. The amendment also makes provision for the 28-day rule to be disapplied when the public authority considers its work to be urgent. For example, a navigational buoy might come adrift from its moorings and need replacing. The amendment would allow authorities to carry out their essential duties at short notice, if required.
Those are the substantial parts of the amendments. Amendments 114C, 114E and 114F are consequential drafting amendments. Amendment 114C clarifies wording that would become unclear as a result of our amendment. Amendments 114E and 114F merely rearrange definitions as a consequence of the new drafting. Accordingly, I hope noble Lords will support the amendments and I beg to move.
My Lords, I welcome what the Minister has said regarding the work of Trinity House. I must declare an interest as an elder brother of that organisation. We discussed this on the previous day on Report. I am very glad that the Government have seen fit to bring forward these amendments.
My Lords, I am grateful for those supportive remarks. I shall merely add that I hope other public authorities in addition to Trinity House will express similar commendation for the Government’s amendments, but I am particularly grateful given the significance of Trinity House with regard to our marine affairs.
Amendment 114C agreed.
Amendments 114D to 114F
114D: Clause 121, page 73, line 34, at end insert—
“(3A) Subject to subsection (3C), subsection (3B) applies in any case where a public authority intends to do an act which is capable of affecting (other than insignificantly)—
(a) the protected features of an MCZ;(b) any ecological or geomorphological process on which the conservation of any protected feature of an MCZ is (wholly or in part) dependent.(3B) If the authority believes that there is or may be a significant risk of the act hindering the achievement of the conservation objectives stated for the MCZ, the authority must notify the appropriate statutory conservation body of that fact.
(3C) Subsection (3B) does not apply where—
(a) the appropriate statutory conservation body has given the authority advice or guidance under section 123 in relation to acts of a particular description,(b) the act which the authority intends to do is an act of that description, and(c) the advice or guidance has not ceased to apply. (3D) Where the authority has given notification under subsection (3B), it must wait until the expiry of the period of 28 days beginning with the date of the notification before deciding whether to do the act.
(3E) Subsection (3D) does not apply where—
(a) the appropriate statutory conservation body notifies the authority that it need not wait until the end of the period referred to in that subsection, or(b) the authority thinks that there is an urgent need to do the act.”
114E: Clause 121, page 73, line 40, leave out “or omission”
114F: Clause 121, page 74, line 9, leave out subsection (8) and insert—
“( ) In this section—
“act” includes omission;
“public authority” does not include a Northern Ireland Minister or Northern Ireland department.”
Amendments 114D to 114F agreed.
Clause 125 : Byelaws for protection of MCZs in England
114FA: Clause 125, page 76, line 29, leave out “recreational” and insert “any”
My Lords, we come back to by-laws governing the restriction of vessels from entering MCZs. Under the Bill, only recreational vessels are subject to this restriction, which I queried in Committee. In his response, the Minister said that recreational vessels had to be singled out because the Government were under international obligations not to restrict entry for any other vessel, which includes shipping. It has since become clear that the UN Convention on the Law of the Sea allows the Government to restrict entry to or passage through marine conservation zones to all vessels, not just recreational ones. In the light of that, I wonder whether the Government have had a chance to rethink in terms of it being inequitable to single out recreational vessels when they have the power to restrict all vessels. I beg to move.
My Lords, I have a great deal of sympathy with the noble Lord’s amendment. Given the encouraging reception another RYA amendment received when debated earlier, I hope that we can find a similarly constructive way forward here too. The noble Lord, Lord Greenway, is right to defend recreational vehicles from unfair discrimination. Ensuring that MCZs can, if necessary, be defended from damage by excessive recreational use is desirable, but deliberately exempting other vehicles from similar restrictions even though they too cause damage would be counterproductive.
Earlier, the Minister rightly raised a concern about ensuring that the regulation this Bill produces does not result in an unreasonable burden on industry. This cuts two ways. Care also needs to be taken that the burden is not instead laid entirely on recreational vessels. I hope that the Minister will consider carefully before building into primary legislation a distinction between which sorts of vehicles are to be burdened. There are of course international law ramifications, but the Government’s initial reading of what we can do has already been seen to be perhaps rather hesitant.
My Lords, I support the amendment as well, but two things about it occur to me. The first is the potential difficulty of enforcement given that the purpose for which a particular vessel is being used at any given time may not be obvious. Secondly, since we must be subject to the provisions referred to by the noble Lord, Lord Greenway, if this clause is to be as effective as it should be, surely we should be dealing with all vessels that we are able to prohibit, having regard to other relevant regulations. I am not clear on how the hierarchy is dealt with in this sense, but this cannot be the only occasion when one has had to deal with that hierarchy.
My Lords, I am grateful to the noble Lord. I note that he has powerful friends since he has been supported by both Front Benches in his amendment. He will appreciate that the Government are keen to ensure that protection in the marine conservation zones is as effective as possible and that we enable by-laws to be applied to all vessels to the extent that we can under the United Nations Convention on the Law of the Sea and other legislation. In response to the combined ranks of those noble Lords who supported the amendment, I can be brief. I want to take the amendment back and consider it further before Report. On that understanding, I hope the noble Lord will withdraw it.
My Lords, I am most grateful to the Minister. One further thought has come to me courtesy of the noble and gallant Lord, Lord Boyce, who is chairman of that august body, the Royal National Lifeboat Institution. When the Minister and his department look at this, could they consider the possible position with regard to the lifesaving activities of the RNLI? I see that he is nodding. If that could be taken on board, I would be happy to withdraw the amendment.
My Lords, that is exactly the point. We want to consider this further. This is an important amendment and the noble Lord, Lord Greenway, has raised an additional point with regard to the RNLI. We shall take that into consideration and think in terms of bringing forward a government amendment to deal with the issue at Third Reading.
Amendment 114FA withdrawn.
Clause 126 : Byelaws: procedure
Amendments 114G to 114J
114G: Clause 126, page 77, line 15, leave out “(2)” and insert “(3)”
114H: Clause 126, page 77, line 17, leave out subsection (2)
114J: Clause 126, page 77, line 43, at end insert—
“(9A) As soon as is reasonably practicable after the confirmation of a byelaw made under section 125, the MMO must publish notice of the making of the byelaw.
(9B) The notice under subsection (9A) must—
(a) be published in such manner as the MMO thinks is most likely to bring the byelaw to the attention of any persons who are likely to be affected by the making of it;(b) state that a copy of the byelaw may be inspected at the offices of the MMO.”
Amendments 114G to 114J agreed.
Clause 129 : Further provisions as to byelaws
Amendments 114K to 114M
114K: Clause 129, page 79, line 41, leave out subsection (3)
114L: Clause 129, page 80, line 1, leave out “the byelaw” and insert “a byelaw to which this section applies”
114M: Clause 129, page 80, line 10, leave out “(3) to” and insert “(4) and”
Amendments 114K to 114M agreed.
Clause 131 : Consultation etc regarding orders under section 130
Amendments 114N and 114P
114N: Clause 131, page 80, line 33, at end insert—
“(1A) The Welsh Ministers must publish notice of the making of an order under section 130.
(1B) The notice under subsection (1A) must—
(a) be published in such manner as the Welsh Ministers think is most likely to bring the order to the attention of any persons who are likely to be affected by the making of it;(b) give an address at which a copy of the order may be inspected.”
114P: Clause 131, page 80, line 37, leave out from beginning to end of line 6 on page 81 and insert—
“(b) the notice under subsection (1A) must also state that any person affected by the making of the order may make representations to the Welsh Ministers.”
Amendments 114N and 114P agreed.
Clause 133 : Further provision as to orders made under section 130 or 132
114Q: Clause 133, page 81, line 42, leave out from “State” to end of line 2 on page 82
Amendment 114Q agreed.
Clause 136 : Offence of damaging etc protected features of MCZs
115: Clause 136, page 83, line 22, after “intentionally” insert “or recklessly”
My Lords, Amendment 115 is grouped with Amendment 116, which I will not press. I tabled these amendments to raise again our concern that the offence of damaging a marine conservation zone does not cover reckless behaviour. I was very pleased to see that the Minister has added his name to many of my amendments, improving the drafting where appropriate. I thank him for accepting our point. I beg to move.
My Lords, Amendment 118A contains an extremely useful provision. It states that,
“it is immaterial whether the person knew, or ought to have known, that the feature was a protected feature”.
I look upon this as a no-escape clause. If someone pretends that they did not know about it, that is no excuse. It is a useful part of the amendment. We on the Liberal Democrat Benches have supported such provision. The word “reckless” is extremely important in this context, as a great deal of damage has been done. Indeed, there is now photographic evidence that many things have gone awry. We therefore very much support these amendments.
My Lords, we had a lively debate on this matter in Committee, when the case for widening the scope of the general offence in Clause 136 to include reckless acts was very well made. I am therefore grateful to the noble Lord, Lord Taylor, for tabling Amendments 115 to 118, which will extend the scope of the offence to include reckless acts. The Government support his Amendments 115, 117 and 118 without reservation. They will ensure that the reckless killing or injuring of animals which are protected features of a marine conservation zone, the reckless taking of things and the reckless destruction or damage of habitats or features will all constitute an offence. It is entirely right that the features are protected from people who know about a marine conservation zone but simply do not care whether they damage it.
In relation to the picking, collection, cutting, uprooting or destruction of plants, the Government have tabled their own Amendment 116A, which provides an alternative form of words to that proposed in Amendment 116, which the noble Lord, Lord Taylor, has already intimated he does not intend to move. The reason we have tabled a different amendment is that we share the concern to see plants protected in the same way as other types of feature. I should like to reassure the House that the purpose of Amendment 116A is not to reduce the level of protection. The different wording proposed is intended simply to take account of the fact that the act of picking or collecting a plant must by definition always be an intentional act and therefore cannot be the result of recklessness. In contrast, it is conceivable that the act of cutting or uprooting a plant may or may not be intentional, and where it is unintended it could indeed result from recklessness, and the wording contained in Amendment 116A simply reflects this distinction.
The point raised by the noble Lord, Lord Livsey, takes us back to the contribution made by the noble Baroness, Lady Young, when she spoke about the difficulties facing prosecution authorities in proving how much knowledge an offender possessed. We have carefully reflected on the points she raised because she speaks with a great deal of experience of pursuing offenders in her previous role. That is why we have tabled Amendment 118A, where we seek to clarify the level of knowledge that a person must have in order to be guilty of an offence.
We still think that it is an appropriate requirement for a person to know that a feature was within or formed part of a marine conservation zone, or that the person should reasonably have been expected to know this fact. If details of a site are displayed on a notice board or on widely used charts, these facts may help to establish that the person ought reasonably, at the very least, to have been aware. But—and this is the point to which the noble Baroness drew our attention—proving that a person had even more detailed knowledge about which particular species or habitats are listed as protected features on the designation order, or that they had the skill or knowledge to be able to differentiate between protected and unprotected features which might be similar in appearance, would be an awful lot more difficult to prove. That was not our intention and we have tabled Amendment 118A to make it clear that a person does not need to know that the feature was a protected feature of the site; it will be sufficient to prove that they knew or should have known that the feature was in the boundaries of a marine conservation zone. I think that that is the point that the noble Lord, Lord Livsey, was making. This is a sensible amendment to make.
My Lords, this creates a slight problem. The Minister said that the area would be marked on a chart or on a notice board on the beach. We discussed at earlier stages of the Bill that certain especially highly protected sites may need to be marked in another, more visual way, with buoys or some such, because someone coming down from the middle of England with a jet-ski or something like that would not necessarily have a chart or have read the right magazines. There needs to be some other way of marking these areas.
My Lords, I remember the noble Lord making that point in Committee. He has raised an entirely sensible point, but it would not be reasonable to expect that all marine conservation zones were extensively buoyed. There will have to be a sensible case-by-case approach. Sometimes signs may well be put up on the appropriate jetties. Divers should be expected to find out details about marine conservation zones from notice boards in diving clubs or yachting clubs. We are trying to achieve a sensible balance in the way that enforcement is approached. I fully accept what he says, but I cannot see that it is possible to legislate for. We are going to have to rely on a sensible case-by-case approach.
Amendment 115 agreed.
Amendment 116 not moved.
116A: Clause 136, page 83, line 24, leave out “collects,” and insert “or collects, or intentionally or recklessly”
Amendment 116A agreed.
Amendments 117 and 118
117: Clause 136, page 83, line 26, after “intentionally” insert “or recklessly”
118: Clause 136, page 83, line 28, after “intentionally” insert “or recklessly”
Amendments 117 and 118 agreed.
118A: Clause 136, page 83, line 29, at end insert—
“( ) For the purposes of determining whether anything done by a person in relation to a protected feature is a prohibited act for the purposes of subsection (1), it is immaterial whether the person knew, or ought to have known, that the feature was a protected feature.”
Amendment 118A agreed.
Clause 137 : Exceptions to offences under section 135 or 136
118B: Clause 137, page 84, line 9, leave out from “vessel,” to end of line 11 and insert “aircraft or marine installation;”
My Lords, this amendment and the others in this group address a significant inconsistency in the Bill. At present, it provides a defence to those who intentionally damage a marine conservation zone for a broader range of activities than under the marine licensing system set out in Part 4. In that part, in Clause 83(1)(a), a person has a defence when taking action in an emergency to secure the safety of a vessel, aircraft or structure or to save human life. In Clause 137(1)(e) in Part 5, by contrast, a person benefits from a defence under these same conditions but also if he is taking action to prevent damage to a cargo or vessel.
We have emphasised numerous times during our debates our intention to provide the best protection that we can for those areas of the sea that we consider environmentally valuable. These amendments therefore seek to raise the level of protection for marine conservation zones to the same level in Part 5 as we have in Part 4.
Amendment 118B does two things: first, it narrows the scope of Clause 137(1)(e) to actions taken to secure the safety of a vessel; secondly, it then applies the defence to actions taken to secure the safety of a marine installation or aircraft, which makes it comparable with Part 4.
Amendment 118C inserts a new subsection into Clause 137 to say that where the action taken to secure the safety of a vessel, marine installation or aircraft was necessary only due to the fault of the person taking the action or of someone in his control, the defence does not apply. Again, we are making this part of the Bill comparable with Part 4 in Clause 83.
Amendment 120B is a consequential amendment that provides a definition of “marine installation”, a term that is introduced by Amendment 118B. “Marine installation” is a term also used in Clause 252 in Part 8 of the Bill.
I beg to move Amendment 118B and hope that noble Lords will support the other two amendments when we reach them.
Amendment 118B agreed.
118C: Clause 137, page 84, line 12, at end insert—
“( ) Subsection (1)(e) does not apply where the necessity was due to the fault of the person or of some other person acting under the person’s direction or control.”
Amendment 118C agreed.
Amendments 119 and 120 not moved.
Clause 143 : Interpretation of this Chapter
120A: Clause 143, page 87, line 7, at end insert—
““animal” includes any egg, larva, pupa, or other immature stage of an animal;”
My Lords, this is a minor amendment. Following debate in Committee, we suggested that the definition of “animal” in the Bill included invertebrates, eggs and larvae. Such a definition is included in Part 8, at Clause 240(10), but is not currently in Part 5. We apologise for this inaccuracy and inconsistency. I reassure the House that we are merely correcting this discrepancy with this amendment.
We want to make sure that the definition is clear and delivers our policy. It is important that, where appropriate, we give protection to all stages in the lifecycle of marine animals. It would be most unfortunate if we were to protect the adults of a species but failed to help the population because of adverse impacts of some activities on its immature stages. I am therefore moving Amendment 120A in response to the amendment in Committee of the noble Baroness, Lady Miller, which emphasised the importance of including those small things at the bottom of the food chain in the definition of an animal.
This amendment to Clause 143, on interpretation of Part 5, will ensure that “animal” will have the same wide definition as in Part 8. I hope therefore that the House will see the value of the amendment and appreciate the contribution in Committee of the noble Baroness, Lady Miller, and others in pointing out this issue. I beg to move.
My Lords, I am sure that the noble Baroness, Lady Miller, will be grateful for the recognition that the Minister has just given, particularly in acknowledging that the immature of a species are very important. Immature larvae and pupae also provide invaluable feed for fish species in both marine and freshwater areas. Any disturbance of an immature species, or putting it in peril through destruction, has serious consequences for the whole ecology of areas of our seas. I thank the Minister for including them by way of this amendment.
My Lords, I am grateful for that contribution. Given the progress that we are making, perhaps I may illustrate just a little further the necessity for the amendment. The new drafting will ensure that a greater range of animals can be protected. For example, sea fans are colonies of tiny creatures which are often used by dogfish to anchor their egg cases containing their young. It is clear that ability to protect pink sea fans and the egg cases of dogfish will ensure that we can boost populations of those organisms, which might not otherwise have been covered by the definition of “animal” currently in the Bill. Such ability will ensure that any deliberate damage to a pink sea fan and accompanying dogfish egg cases in a marine conservation zone where they are protected is liable to prosecution under the general offence in Clause 136. That is the burden of the amendment.
Amendment 120A agreed.
120B: Clause 143, page 87, line 23, at end insert—
““marine installation” means any artificial island, installation or structure;”
Amendment 120B agreed.
Clause 149 : Management of inshore fisheries
120C: Clause 149, page 91, line 19, at end insert—
“( ) seek to balance the social and economic benefits of exploiting the sea fisheries’ resources of the district in that way with the protection of the marine environment from, and the promotion of its recovery from, the effects of such exploitation including past exploitation,( ) seek to further the conservation and recovery of marine flora and fauna in the district,”
My Lords, noble Lords will remember that we had a number of debates in Committee on the establishment of the inshore fisheries and conservation authorities, and the importance of ensuring not only their constitution but their duties as new bodies. A reasonable consensus emerged on the importance of integrating environmental considerations alongside fisheries management.
However, there is some wish to see these duties strengthened if we are to bring about a different culture than has been the case until now. The amendment’s purpose is to enhance the current duty as set out in Clause 149 by also ensuring that the protection of the marine environment, particularly the promotion of its recovery, is not only from current exploitation of sea fisheries resources but also relates to past such exploitation. Moreover, it would introduce a duty to further the conservation and recovery of marine flora and fauna, taking the Bill beyond the more limited wording that is already there. It is also arguable that the reference to marine flora and fauna goes further than the definition of sea fisheries resources in Clause 149(6).
However, the general thrust of the amendment is that fisheries management and environmental protection can go hand in hand. Those who are engaged in fisheries are undoubtedly likely to benefit further if they are fishing in a healthy marine environment. It strikes the right balance and the duty implicit in this amendment would help both those concerned with fisheries and those concerned with marine environment protection. I beg to move.
My Lords, I have an amendment in this group which broadly endorses what the noble Lord, Lord Wallace, has just said. My particular concern is with Clause 149(2)(b), which, roughly, seeks to balance the social and economic benefits of exploiting the sea fishery resources with the need to protect the marine environment.
My amendment would add to Clause 149(2)(b) the expression,
“in a way which is consistent with sustainable development”.
That is because the present text could lead to a situation in which the social and economic benefits of exploiting the sea played a stronger part in the mind of the decision-maker than the need to protect the marine environment. In other words, we need to put some spin on the subsection to ensure that, where there is a conflict, the principle of sustainable development prevails.
I saw the Minister’s face express a degree of pain at my last statement. Nevertheless, he will understand where I am coming from.
My Lords, my amendments in this group do not follow the same line as that of the noble Lord, Lord Wallace of Tankerness, but are instead, we hope, a way forward that will address many of his concerns. Although we have great sympathy with the conservation groups’ concerns that IFCAs genuinely understand and support their new conservation duties, we appreciate the Minister’s alarm that the careful balance that they are trying to strike will be thrown off kilter. We have therefore sought a wording that will reassure stakeholders that the balance will be met, and so have fallen back on “sustainable development”, which is fast becoming the automatic answer to all questions. I think we can agree that sustainable development is—as much for IFCAs as for the MMO—the desired end result. Users of the sea cannot be allowed to exploit the marine environment unrestrained, nor can conservation bodies demand that all development be stopped. This is widely accepted.
This group of amendments tries to make it clear that the balance will be struck within the boundaries of sustainable development. The multiple nature of the amendments in my name represents the development of our thoughts and the very welcome involvement of the Minister, his officials and parliamentary counsel half way through, which resulted in Amendments 121ZA, 121ZB and 121ZC. The more detailed amendments include the very useful requirement that sustainable development is defined by guidance which is to be made publicly available.
We therefore hope that the three amendments in this group standing in my name and that of the Minister will satisfy all concerns. I thank the Minister and his officials for being so helpful in this matter. I pay especial tribute to my noble friend Lord Kingsland, who first struck upon the answer of tying the IFCA duty into sustainable development.
My Lords, I apologise to the noble Lord, Lord Kingsland; I looked pained as I had hoped that the amendments tabled by his noble friend would meet the point that he raised. Like the noble Lord, Lord Taylor, I entirely accept that the debate in Committee was very valid. The Government have clearly reflected on that. That is why we are supporting the three amendments spoken to by the noble Lord, Lord Taylor, to ensure that we have the right balance.
We do not like the wording of the amendment of the noble Lord, Lord Kingsland, because we realise that—I think this is clear from our support of the amendments of the noble Lord, Lord Taylor—an explicit reference to sustainable development in the clause would aid consistency and clarity. The problem we have with the noble Lord’s amendment is that it would be inconsistent with wording elsewhere in the Bill, particularly in Clause 2. We seek to have consistency as far as possible.
Amendment 121 states,
“in a way which is consistent with sustainable development”.
The wording in Clauses 2 and 42 is,
“contributing to the achievement of sustainable development”.
We might be dancing on the head of a pin as regards ascertaining the difference between those wordings. However, I am advised that, although in practice the wordings may not be very different, using different wordings may cause confusion. That is the reason for the grimace; it was nothing more substantive than that.
I strongly support Amendments 121ZA, 121ZB and 121ZC in the name of the noble Lord, Lord Taylor, and appreciate the discussions that took place on them. Amendment 121ZA places in the Bill a requirement for IFCAs to take necessary steps,
“for the purpose of making a contribution to the achievement of sustainable development”.
This requirement is consistent with the change that we have already made to Clause 2. Amendment 121ZB makes explicit the Secretary of State’s power to give IFCAs guidance on how they are to perform their duty under subsection (1). In addition, the amendment requires the Secretary of State to give IFCAs guidance on how they are to perform their duty under subsection (1),
“so as to make a contribution to the achievement of sustainable development”.
Again, the wording of the amendment is consistent with the change that has been made to Clause 2. However, it is appropriate to have separate IFCA guidance as IFCAs will be different types of organisation from the Marine Management Organisation, and it would be difficult to write guidance that was appropriately tailored to both IFCAs and the MMO. However, clearly we wish the guidance to IFCAs as far as possible to be consistent with and based on the MMO guidance.
Amendment 121ZC requires the Secretary of State to publish the sustainable development guidance given to IFCAs and it requires IFCAs to provide copies of the guidance to anyone who asks for it. The wording of the amendment is consistent with the change made to Clause 2, and the Government support that amendment.
Amendment 120C, moved by the noble Lord, Lord Wallace, is an interesting amendment and has a number of elements. I will turn first to what might be described as the more technical parts of the amendment. It refers to the protection of the marine environment and the promotion of its recovery, so that, in every case, social and economic benefits must be balanced against this protection and promotion. However, I hope I can reassure the noble Lord that the reason why the clause as drafted says,
“need to protect … or promote”,
is that it will not always be the case that the need is both to protect the environment and to promote its recovery.
For example, in deciding whether to allow the continued dredging of the seabed for scallops, where as a result of such dredging the seabed is in fact barren, the duty would require IFCAs to balance the social and economic benefits of allowing scallop fishing with the need to promote the recovery of the marine environment. Protection of the seabed perhaps does not come into it, because there is nothing worth protecting. Likewise, in considering whether to allow fishing in a pristine marine environment, it is the need to protect that environment that is relevant, not the need to promote its recovery.
Here is the assurance. None of this means that the two elements are mutually exclusive; in some circumstances both will be applicable. The fact that the word “or” is used does not alter the fact that IFCAs will need to take both factors into account in performing their duty under subsection (2)(b). My understanding is that legal drafting in these circumstances requires use of the word “or” to mean “and/or”. However, to ensure that there is clarity on this point, I will amend the Explanatory Notes to make that clear. I hope that this will address the issue raised.
The next part of the amendment would require the duty of IFCAs to protect the marine environment from, and promote its recovery from, the effects of such exploitation, to include the effects of past exploitation. I can again reassure the noble Lord that that is our policy intent, and we are clear that IFCAs will be under a duty to do exactly that under the current wording in the Bill. We are clear from the reference to promoting recovery from the effects of exploitation that exploitation must include that which has already occurred.
Again, the scallop dredging example is relevant here: should IFCAs allow exploitation to continue, given the effects that such exploitation has had in the past on the seabed? It must be the past exploitation that is relevant. Again, I will make this clear in the Explanatory Notes, so that there is no doubt.
On the second part of the amendment, in relation to the recovery of marine flora and fauna, the Bill already requires IFCAs to do exactly that. The duty placed on them includes in Clause 149(2)(b) a duty to protect the marine environment from, or promote its recovery from, the effects of exploitation when managing sea fishery resources within their district. The marine environment is defined in Clause 177 and includes flora and fauna which are dependent on, or associated with, a marine or coastal environment. As such, the clause as drafted requires IFCAs to promote recovery of marine flora and fauna. If a habitat has been damaged in the past by fishing but is still able to recover, the authority will have to weigh that in the balance when considering appropriate controls on fishing. It cannot take as a baseline the condition of the district from a certain date and ignore what it was like in the past.
In terms of a duty to further conservation, I know there are those who think that such a duty should be added to help to drive the transformation of sea fisheries committees into inshore fisheries and conservation authorities. The Government do not agree. We discussed in Committee the conservation duties of IFCAs as set out in Clause 150. Our problem is that placing an explicit duty on IFCAs to further the conservation of the marine environment outside marine conservation zones would fundamentally alter and unbalance their primary duty to manage the exploitation of sea fisheries resources in a sustainable way. There is no question that IFCAs will have to balance the social and economic benefits of exploiting sea fishery resources with the need to protect the marine environment.
In a sense, the discussion on the previous amendments was all about how we achieved that balance and whether we have the wording right in the Bill. All of these are pillars of sustainable development and are important considerations. The problem is that the noble Lord would be introducing a hierarchy; that is where we have the problem. Our position is consistent with that of the MMOs and is in line with Government’s wider commitment to the principles of sustainable development.
In marine conservation zones, the duty to ensure that the conservation objectives are furthered will ensure that these sensitive areas are protected. However, it is fair to say that in other areas, it is fundamental that IFCAs are required to balance all the different aspects of sustainable development. That is why we have the problem with that part of the noble Lord’s amendment.
In Committee, the noble Lords, Lord Wallace and Lord Greaves, tabled Amendment A234B to ensure that IFCAs would be able to make provision in by-laws to compel fishermen to use particular technologies which seek to reduce or prevent by-catch. During the discussion, I confirmed that the Bill as drafted gives IFCAs the ability to propose by-laws of that type. Clauses 151 and 152 provide IFCAs with the power to make any by-laws which are required for them to meet their duty of managing the exploitation of sea fishery resources in their districts.
As I said to the noble Lord, Lord Wallace on two other occasions, I appreciate the desire to make clear that by-laws can be introduced to prevent or reduce by-catch. We will amend the Explanatory Notes to make sure that that is absolutely clear. Although I cannot agree with the noble Lord on the third substantive point of his amendments, I hope that on his other points I have reassured him that the Bill meets the purpose which he seeks.
My Lords, I am very grateful to the Minister for that very constructive reply to my amendment and, indeed, the amendments of the noble Lords, Lord Kingsland and Lord Taylor. I acknowledge his detailed comments on a number of aspects of my amendment and his willingness to amend the Explanatory Notes to clarify any lingering, lasting and remaining doubt. I also thank him for offering to clarify the Explanatory Notes on an amendment which I have not moved at Report stage, but to which I spoke in Committee. The spirit of that is recognition of the willingness on all sides of the House to try to ensure that these new authorities work in a productive way to balance the interests of fisheries and conservation.
Obviously, the Minister is not willing to agree with the amendment in so far as it aims to “further” conservation, but it is fair to say that by accepting and agreeing to the amendment of the noble Lord, Lord Taylor, the Bill as it leaves Report stage is in a better position than it was when it came to Report, in terms of trying to place a coherent set of duties on the IFCAs. I beg leave to withdraw the amendment.
Amendment 120C withdrawn.
121: Clause 149, page 91, line 23, after “exploitation,” insert “in a way which is consistent with sustainable development,”
My Lords, I apologise to the Minister for misinterpreting the expression on his face when I spoke on this matter earlier. I accept that, given the way in which “sustainable development” has been defined in other parts of the Bill, the wording of Amendment 121 is inappropriate. I was extremely pleased to hear him speak to the amendment that he tabled in conjunction with my noble friend Lord Taylor, which I accept meets, in substance, my concern.
Amendment 121 not moved.
Amendments 121ZA to 121ZC
121ZA: Clause 149, page 91, line 23, at end insert—
“( ) take any other steps which in the authority’s opinion are necessary or expedient for the purpose of making a contribution to the achievement of sustainable development, and”
121ZB: Clause 149, page 91, line 25, at end insert—
“(2A) The Secretary of State may give guidance to the authority for an IFC district with respect to the performance of its duty under subsection (1).
(2B) The Secretary of State must give every IFC authority guidance as to how the authority is to perform its duty under subsection (1) so as to make a contribution to the achievement of sustainable development.”
121ZC: Clause 149, page 91, line 39, at end insert—
“(5A) The Secretary of State must publish, in such manner as the Secretary of State may determine, any guidance given to IFC authorities by virtue of subsection (2B).
(5B) An IFC authority that has been given any such guidance must provide any person on request with a copy of the whole or any part of any such guidance.”
Amendments 121ZA to 121ZC agreed.
121A: Clause 149, page 92, line 4, after ““salmon”” insert “, “smelt””
My Lords, I am introducing government Amendments 121A, 122A, 122B, 122C, 122D, 122E, 122F, 126C and 130 to correct drafting errors. These are all minor and technical amendments.
Amendments 121A, 122A, 122C, 122D and 122F ensure that references to smelt are restricted to the migratory species of smelt—in other words, European smelt—and not the marine species, or sand smelt.
Amendment 122B ensures that the terminology in Schedule 27 to the Water Resources Act 1991 mirrors that used in Schedule 25. Schedule 27 gives the Environment Agency the power to introduce by-laws quickly in response to emergency situations. Schedule 25 sets out how the agency may use its ordinary by-law-making powers. I am enormously grateful to the noble Lord, Lord Greaves, who queried in Committee the use of the terms “physiographical” and “geomorphological”. I have written to him setting out the reasons why the terminology is necessarily different in the various parts of the Bill.
Amendment 122E ensures that “conservation”, which is defined in Section 111(4) of the Scotland Act 1998, includes the protection of the environment not only of salmon, trout, eels and freshwater fish but also of lampreys, smelt and shad.
Amendments 126C and 130 amend Clause 313 to clarify that amendments to the British Fishery Limits Act 1976 arising from the creation of the exclusive economic zone do not extend to the Crown dependencies and that changes to that Act arising from the creation of the Welsh zone apply to the same extent as the Act. I beg to move.
My Lords, I thank the Minister for tabling these amendments to ensure that smelt are properly covered and for the useful letter explaining the intention behind them. I am pleased that the forensic examination of the detail of this legislation in Committee and the amendments that were tabled, if not debated, on individual species were not wasted. I give my full support to any clarification of the varieties of smelt and the duties of the Environment Agency with regard to them.
My Lords, I welcome this amendment and those associated with it. I suppose we could say that one is the smelt amendment and the other is the shad amendment.
Speaking as someone who fishes regularly, I believe it is extremely important that smelt, or smelts as they are called in some parts of the British Isles, are protected. There is no doubt that, particularly with electrical generation through turbines, a large proportion of smelts have been wiped out when travelling downstream. This is a very serious matter because they never come back to fresh water if some of their number are slaughtered at that stage. This indicates that fish pass technology needs to be improved tremendously. It is easy to say, “Oh well, we’ll put something in the estuary of this river and the fish pass will go in”, but that is not good enough. The mature salmon may be able to get upstream sometimes but on the way back the small smelts, which after all are the seed-corn of the next generation of salmon, are destroyed. Therefore, it is particularly important to include this provision in the Bill.
I am very familiar with the River Wye and the River Usk. The shad is an important and rare species, not only in the British Isles but in Europe, and it needs protection. Lampreys, which are extraordinary fish—they look like eels but have flat noses—also need protection. Indeed, the lamprey is an extremely important species in the Severn, Wye and Usk. I think that that illustrates the importance of these amendments—in particular, to migratory species.
My Lords, I thank the noble Earl and the noble Lord for their support for the amendment. The noble Lord, Lord Livsey, made some very important points. We are limiting references to smelt in the Bill to European smelt because of their different migratory habits. The European smelt is migratory and is, we think, properly included under the Environment Agency’s duties and responsibilities, while the sand smelt is an inshore marine fish. It does not occupy freshwater habitats in England and Wales and should therefore remain outside the Environment Agency’s remit. However, sand smelt can be found in freshwater habitats further south in Europe. Should the situation change in England and Wales, we could consider using the order-making power in Section 40A of the Salmon and Freshwater Fisheries Act 1975, as inserted by Clause 211 of the Bill, to extend migratory freshwater fisheries legislation to sand smelt. It may also be worth pointing out that the smoult is a young salmon and is a completely different species from the smelt. I am sure that all noble Lords were aware of that.
Amendment 121A agreed.
121B: After Clause 180, insert the following new Clause—
“Duties of Welsh Ministers in relation to management of inshore fisheries
The Welsh Ministers shall manage the exploitation of inshore fisheries in Wales to ensure that the exploitation of inshore fisheries’ resources is carried out in a sustainable way.”
My Lords, I am very pleased to put forward this amendment, which incorporates the duties of Welsh Ministers in relation to the management of inshore fisheries. It is important that it is spelt out in the Bill that:
“Welsh Ministers shall manage the exploitation of inshore fisheries in Wales to ensure that the exploitation of inshore fisheries’ resources is carried out in a sustainable way”.
The amendment is a directive to Welsh Ministers to ensure that this is carried out sensitively. Indeed, there are very sensitive fish stocks in the Welsh inshore area. On the previous amendment, I mentioned migratory fish as well as native marine species. When fish species are rare, sparse or under threat, the sustainable management of inshore fisheries is vital.
I do not believe that this will be difficult for Welsh Minister to absorb. I was involved in the other place in the passage of the Government of Wales Act 1998, when sustainability was written into the legislation, and it is incorporated into all the environmental duties of the Welsh Assembly. This merely underlines that. I am sure that, if it is included in the Bill, Welsh Ministers will carry out this duty. I beg to move.
My Lords, once again we return to the question of whether devolved legislatures and Executives share the concerns and priorities that have been established here in Westminster. I have no expertise in drafting, but it is a good idea that Welsh Ministers are given rather more direction on their duties. However, I wonder whether a new clause is needed or whether there is scope to include that in Clause 180 itself. I share with the noble Lord, Lord Livsey, the concern that such management will be effective and not inconsistent with the neighbouring IFCAs in English offshore waters. I support the amendment.
My Lords, I shall speak to this amendment and the government amendments in the group, which are relatively minor compared with the important issue raised by the noble Lord, Lord Livsey, in Amendment 121B, which is the main subject of the debate.
The amendment, as identified by the noble Lord, would put a duty on Welsh Ministers,
“to ensure that the exploitation of inshore fisheries’ resources is carried out in a sustainable way”.
I say at the outset that Welsh Ministers have decided to take direct responsibility for all sea fisheries management in Wales, which in practical terms means a consistent approach to fisheries’ management throughout Welsh coastal waters. I know that the noble Lord, Lord Livsey, will welcome that intention.
We discussed a similar amendment in Committee when it was explained that Welsh Ministers have a statutory duty under Section 79 of the Government of Wales Act to make a sustainable development scheme. The scheme must set out how the Welsh Ministers propose to promote sustainable development in the exercise of their functions, and they are under an obligation to report each year publicly on progress in implementing its provisions. Welsh Ministers are committed to embedding sustainable development within all their functions to ensure that it is at the heart of the Assembly Government’s work. I understand that later this week they will publish a revised scheme confirming that sustainable development is a central organising principle of the Welsh Assembly Government and that that commitment is underpinned with specific actions to ensure that sustainability is part and parcel of their work.
We also said in Committee that the Welsh Ministers are subject to the requirements of Section 1 of the Sea Fish (Conservation) Act 1992, which requires that while discharging their functions under the Sea Fisheries Acts they must have regard to the conservation of marine flora and fauna and endeavour to achieve a reasonable balance between that consideration and any other consideration to which they are required to have regard.
The House may also note that the Welsh fisheries strategy already includes a commitment to take an ecosystem approach to fisheries management. In recognition of those duties, the Welsh Ministers have signalled their desire to manage all fisheries sustainably, rather than single out the inshore region. Welsh Ministers also made a commitment that the Welsh Assembly Government single enforcement team, which will include staff from the current sea fisheries committees, will undertake fisheries and marine enforcement jointly. That is in direct response to what I think is the noble Lord’s objective, to the need to take an ecosystem approach to fisheries management, and to the expectation and need to manage the wider sea fishery resources given by the Bill.
I hope that I have explained why the Government believe that there is no need for a duty of sustainability in the terms proposed, because the Welsh Ministers have those obligations and are freely and openly stating, including in a statement this week, their commitment to sustainability and the development of an ecosystem approach to fisheries management, rendering the amendment unnecessary.
During Committee, the noble Lord, Lord Livsey, moved an amendment that would require Welsh Ministers to co-operate with adjoining inshore fisheries and conservation authorities. We said that we would look to accept the intention behind the amendment. We have looked at that matter with considerable care. It is apparent that a duty to co-operate would be difficult to apply in practice, due to the interplay between Part 6 and existing powers. As the noble Lord will know, Welsh Ministers already exercise a range of IFCA-equivalent functions without a duty to co-operate with those who exercise similar duties in England. Clause 180 merely tops up those functions where they do not already have them.
The Government do not want to change the terms of the Welsh settlement by imposing new duties on Welsh Ministers’ existing functions, nor would it be sensible to impose a duty to co-operate only on their new functions, which are more limited than their existing obligations. However, I give the noble Lord this assurance, because I know the intent behind his contribution in Committee and his amendment today. I confirm that Welsh Ministers are actively considering cross-border working arrangements and have made a statement to the Assembly giving the assurance that Welsh Ministers will seek memoranda of understanding with the inshore fisheries conservation authorities that border Wales and the Marine Management Organisation to facilitate joined-up management.
I can also confirm that Welsh Ministers have asked the stakeholder advisory committee to develop options for the appropriate reporting levels to maintain the transparency of fisheries management. I hope that that offers reassurances on the point. We said that we would respond to the noble Lord’s amendment. On further inquiry and having examined the issues in Wales closely, we have reassured ourselves that his objectives are already subscribed to by Welsh Ministers and the Assembly.
I turn to a slightly different but related matter. Government Amendments 121C and 121D would ensure that Welsh Ministers had the same powers and functions to regulate inshore fisheries as inshore fisheries and conservation authorities will have in England, to make it four-square in those terms. Amendment 121D is at the heart of that. It would insert a new provision into Section 27(1)(c) of the Wildlife and Countryside Act 1981. Its effect would be to enable Welsh Ministers to appoint authorised persons under Section 27 in the same way as the Bill will give inshore fisheries and conservation authorities the power of appointment. That is a simple matter of maintaining parity of powers and functions for the two authorities, which will be required to carry out exactly the same job. Under Section 27, authorised persons may kill birds for purposes relating to fisheries or fishing.
Amendment 121C is a simple consequential amendment because of the insertion of the new provision. I hope the noble Lord will appreciate that I am not going so far as to accept his amendment because the intent behind it is already substantially subscribed to by the Welsh Assembly and Welsh Ministers. They will give effect to this in statements that they will make this week. I hope, therefore, that the noble Lord will feel able to withdraw his amendment with confidence and that, in due course, the government amendments will be supported.
My Lords, I thank the Minister for that substantial statement, which has clarified several issues—in particular, that the intent of Welsh Ministers is clearly to sharpen up considerably the necessary protection. The second point concerned the memoranda of understanding. I hope that the Government will spell out in due course what the parameters of these will be. Although I wanted to test the Government’s commitment to sustainability, the Minister has certainly proved that this is the intent of Welsh Ministers. I am confident, because of what is in the Government of Wales Act about sustainability, that this will be carried out. I beg leave to withdraw the amendment.
Amendment 121B withdrawn.
Clause 184: Coast protection boards in Wales
Amendments 121C and 121D
121C: Clause 184, page 107, line 6, leave out “follows” and insert “set out in subsections (2) and (3)”
121D: Clause 184, page 107, line 11, at end insert—
“( ) In section 27(1) of the Wildlife and Countryside Act 1981 (c. 69) (interpretation of Part 1), in paragraph (c) of the definition of “authorised person”, for “by any” substitute “by—
(a) the Welsh Ministers, in relation to things done for purposes relating to fishing or fisheries in the Welsh inshore region (within the meaning of the Marine and Coastal Access Act 2009);(b) any”.”
Amendments 121C and 121D agreed.
Clause 186: Regulation of nets and other fishing gear
122: Clause 186, page 108, line 25, at end insert—
“( ) An order under this section may require the use of equipment, methods or material, the purpose of which is to seek to prevent or reduce bycatch.”
My Lords, this amendment was previously tabled in Committee. The Minister gave us many assurances that current legislation would certainly allow for the enforcement of certain methods and equipment, and that these powers would be exercised to reduce by-catch. I tabled the amendment in order to probe the Government’s policy on by-catch a little further. I am afraid that I will raise again the ever-present spectre of EU legislation, which is why I did not raise this point in Committee but, instead, left it for the less drawn-out Report stage.
What are the Government doing at the European level to make the necessary changes to reduce the shocking number of fish that are thrown back, dead or dying, to meet quota requirements that limit only the amount of fish landed, not the amount of fish caught? It has to be at the European level, if it is to have any effect. The discard figures are truly shocking. What is worse, according to figures provided last November to my honourable friend in another place, they are not improving. Over 80 per cent of the cod caught by Scottish-registered vessels was discarded in 2007. The figures are not much better for other species. Rather confusingly, however, they appear to be a little better—only 40 per cent—in English and Welsh-registered vessels. If the Minister has any information to explain this discrepancy I would be very glad to hear it.
Even 40 per cent is deeply disappointing, but the high figures are not surprising. On an extremely useful visit to the research vessel “Cefas Endeavour” a few weeks ago, we saw how a simple change in the way that nets were strung could significantly impact on the ability of small fish to slip through and escape. We were also shown a chart that showed how fish of different species are a similar size at different stages of their lives, so that young cod—which are too small to meet the quota requirements—are caught in nets designed to catch adult haddock. The obvious solution for fishermen struggling to sustain their living and to meet the quota requirements is to catch everything and throw back what they cannot sell. This is not acceptable. The quota is there to protect and restore fish stocks, not to limit fishermen’s income. If it is not achieving the former, it is achieving nothing.
The Conservative Party has come up with a proposal that would improve our knowledge of just how many fish are caught and discarded and stop the wasteful practice of dumping dead fish back into the sea. We propose establishing a pilot scheme whereby all fish that were caught would be landed. Fishermen would receive a share of the commercial value of the by-catch, a proportion of which would be dependent on the sustainability of their equipment and fishing methods in order to reward good practice.
This would not solve the problem overnight, but as has been made clear over the past months, one of the great obstacles to the effective implementation of a sustainable marine policy is the lack of accurate information about so much in our seas. By-catch is no exception; the figures that have been published are subject to all sorts of health warnings due to the expense of monitoring fish catches accurately. Our proposal would mean much less distortion of the figures and therefore a better chance of accurately calculating how many fish remain. It would also prevent waste. Under the current system, these fish are being killed anyway; they are being poured back into the sea to rot.
I do not expect the Minister to come back with an amendment that resolves this issue—that clearly is impossible—but I hope that he will be able to come back with more information on what the Government are doing about the problem and what chance he thinks there is of meaningful reform of the quota requirements in the near future. I beg to move.
My Lords, I support the amendment in the name of my noble friend Lord Taylor of Holbeach. As your Lordships’ House will know, I come from the fishing industry, and I know exactly what he is talking about from having seen it done on my own boats. The problem is that the fish are dead anyway. If we bring them back exactly as he has described, we will know what is happening.
My noble friend did not mention, although he could have done, that his proposal is not new; Norway has been doing this for a very long time. It knows exactly what fish are being caught in its waters and exactly who is catching it. Given that we are not allowed to police other countries of the European Union that also have a quota which they are fishing out in the waters around this island, and given that 80 per cent of the fish left in the European Community are fished out of the waters surrounding this island, if we adopted my noble friend’s proposal we would at least have some idea of the amount of fish that is being dumped at sea. There is no reason why science cannot measure that, too. I urge the Minister to consider, if at all possible, Norway’s method of attacking this problem and to support my noble friend’s suggestion.
My Lords, I note the terms of the noble Lord’s amendment, but I had some engagement with the fishing industry when I was a Member of the other place and I am not sure whether an amendment such as this is needed to require different mesh sizes or to introduce square-mesh panels; I seem to recall that it happened anyway as a result of attempts in times past to try to reduce the size of by-catches and to ensure that smaller fish swam through the nets rather than getting caught up in them.
Nevertheless, the noble Lord does the House a service by raising the more general issue of fisheries conservation as well as the important issue of how one reduces discards. The reduction of discards has been widely discussed over many years and seems to bring everyone together in principle. Fishermen say that they do not like throwing fish back into the sea, and conservationists and politicians say that they think it is a complete waste, too. As yet, however, no one seems to have come up with a very satisfactory way of dealing with this.
It is incumbent that all with an interest in sustainable fisheries in the seas around this country direct their attention to scientific and technical means, and, if necessary, legislative means, to engage the industry and scientists in devising a way forward. There are suggestions that under the common fisheries regime there is an incentive for fishermen to throw fish back into the sea if they feel that they can land larger catches or better-sized fish. That is a consequence of the common fisheries policy, which undoubtedly needs to be looked at.
There are a number of dimensions to this. Certainly, the engagement of the regional advisory councils on fisheries, which involves the industry as well as science, communities and politicians, is an important way forward too. I do not think that this amendment is necessary, but it raises an important issue. I look forward with considerable interest to the Minister’s response.
My Lords, I am very glad to respond to this debate. I agree with the noble Lord, Lord Wallace, that the amendment is not necessary, but I suspect that the noble Lord, Lord Taylor, put it down to allow for a wider debate on the joys of the common fisheries policy and the interesting questions raised by noble Lords. I know that behind the amendment is concern about the conservation powers available to us. Doubt was raised as to whether we have powers to require the use of certain types of fishing gear.
Section 3(1) of the Sea Fish (Conservation) Act 1967 states:
“The Ministers may make an order for securing that the nets and other fishing gear carried in any relevant British fishing boat registered in the United Kingdom comply with such requirements as to construction, design, material, or size, including, in the case of nets, size of mesh, as may be prescribed by the order”.
The section continues with provisions which provide even more flexibility in the use of these powers. The powers more than adequately cover the use of equipment, methods and material, with the purpose of seeking to prevent or reduce the by-catch of non-target species. If powers are required to regulate fishing gear to prevent or reduce marine environmental by-catch—for example, dolphins and porpoises—we can use the combined powers available under Sections 3, 5 and 5A of the Act, which provide for restrictions on fishing for marine environmental purposes. These powers can clearly be used in a way that requires the use of certain types of fishing gear when fishing for a particular species or in a particular area.
The problem with the amendment is that it could have serious consequences by casting doubt on the legality of any existing use of these wide-ranging powers. I understand why noble Lords are concerned about the whole issue of by-catch and why they are seeking to know what the Government are doing about it and what the result of discussions in Europe are likely to be. We are funding a range of work in collaboration with the industry to look at the marketing of less commercially valuable species, which are often discarded, as well as making the respective fishing activity more selective in terms of species or size. We will continue to encourage the industry to use such gear modifications as prove successful on, for example, vessels that have been allocated additional days at sea under the cod recovery programme.
In June 2008 the European Commission published a non-paper containing proposals to address the problem of discard. It acknowledged that a number of instruments are needed to reduce by-catch and eliminate discards effectively and that they will vary from fishery to fishery. These proposals were discussed by member states during 2008. Although legislative proposals are yet to come forth from the Commission, my understanding is that the fisheries Commissioner, Joe Borg, has made clear that the issue is high on his agenda.
The non-paper proposed experimenting with the application of maximum allowable by-catch limits set at levels significantly below that which is currently understood to be discarded. The onus would then be on fishermen to reduce significantly the by-catch from current levels and they will only be permitted to land by-catch within the maximum allowable limits. Under the proposal, by-catch within the MABL will be given or sold to a body designated by the member state, although the Commission was not specific on what use could be made of the by-catch and whether the MABL would count against quota. If by-catch caught is above the MABL, quota adjustments are then made for the following year depending on the overshoot, although we have expressed our concern to the Commission about the implications for quota management of those aspects of the proposal.
We see logic behind the suggestion that fishermen should keep all the catch instead of dumping a significant part of it into the sea, and we support the principle of targets for allowable by-catch to achieve rapid reductions in discarding where current discard levels are high. However, we have to be realistic about the fishing industry and what it can achieve without threatening its long-term viability. I do not believe that anyone thinks that there are any easy answers to this.
During last year’s EU-Norway discussions, a high-grading ban was introduced for 2009 in the North Sea and eastern Channel. This ban prevents the discarding of fish caught which are within quota and over the legal minimum landing size. The signs are that the EU-Norway agreement is capitalising on management measures to address the issue of discarding in a practical way. I agree with the noble Lord, Lord Taylor, that, on our visit to the “Cefas Endeavour” on the Thames, it was interesting to discuss with the scientists some of the measures that can be taken.
Our shared objective as responsible fisheries managers is to minimise and eventually eliminate discarding as an issue. I do not think that there is any doubt or disagreement between us about the importance of this matter. Whether a discard ban would help to achieve this in EU fisheries is part of the debate on common fisheries policy reform and obviously will need to be considered carefully in association with the progress we are making more generally on resolving the discard issue. The EU committed to a ban on high grading through the EU-Norway agreement and the TAC quota regulation. We think of the high-grading ban as having a positive influence on fishers’ behaviour. While some parts of the EU legislation have to be revised to remove conflicting regulations, we think that this sends a positive signal that fishermen cannot discard fish based on their perceived commercial value. The message is that if it is legal, it should be landed.
The UK has been at the forefront of cod recovery measures to reduce discards of cod by implementing a number of spawning and real-time closures through both the Scottish conservation credits scheme and the England and Northern Ireland equivalents. In 2009, this scheme has been accelerated with mandatory closures in operation throughout the cod recovery zone and incentives for the uptake of selectivity measures to reduce discard mortality on cod stocks.
There is always a question about the national powers available to ban discards and our view is that it is much more effective to tackle this problem under the common fisheries policy as discards occur in Community waters where a number of member states’ vessels fish. National powers under the Sea Fish (Conservation) Act 1967 cannot be used to weaken any provisions under the common fisheries policy, such as allowing fish which do not meet CFP size requirements or allowing fishermen to land outside set quota limits. We are in discussion about whether we can reform the CFP. Let me say that my colleague Huw Irranca-Davies, the Minister with responsibility for fisheries and the marine environment, and the manager of this Bill, wrote to Commissioner Borg to press the case for reform of the CFP to deliver a much closer integration and broader marine environmental policy. Commissioner Borg has said that he shares the Government’s view that,
“the future CFP needs to take into account the wider integrated approach”,
and that the CFP needs to become,
“an effective tool for the management of fisheries in the context of marine protection”.
These are early days in the journey of reform to the CFP but we have to take that response as an encouragement. I certainly do not underestimate the task that lies ahead of us, but that is entirely how we wish to see the CFP reformed.
On the point raised by the noble Baroness in relation to the Norwegian issue, we think that the ban is worth looking at, although it may not be appropriate for all fisheries. The benefit is that the Norwegian authorities have provided the Commission with their experience of operating a discard ban. The expectation and hope is that the Commission will use that experience to draw up further initiatives in this area. Of course, the circumstances of fisheries in EU waters are different. The situation in mixed fisheries pursued by vessels from a number of states is different from Norwegian fisheries which tend to be directed more towards single species. We are not clear whether measures used in Norway would be as effective within the Community. We need to look at that matter very carefully.
A ban in itself does not prevent by-catch; the fish are still caught but they are not returned to the sea at the point of capture. There is also the question of what happens to the non-discarded fish, especially if they are undersize. We do not wish this to lead to the development of a market for juvenile fish. So although it is not a simple solution to discarding, our preference has been to avoid by-catch in the first place by making fishing activity more selective.
This brings me back to the issue of a much more fundamental reform of the CFP. The signals coming out of Brussels have been positive, not only in the sense of what Commissioner Borg has written but in the general sentiments that have been expressed about the CFP simply not working at the moment.
I hope that I have at least convinced noble Lords that we understand the importance of dealing with by-catch and discards. We believe that we have to work within Europe. We think that the Norwegian experience is relevant and we expect the European Commission to use that example in framing its own measures. Fundamentally, we have to go to the core of what the CFP is all about. I have no doubt that there is a challenging time ahead of us on that issue, but the signals are probably more positive now than they have been for some years.
My Lords, I thank the Minister for that response, which contained some encouragement. Certainly there is encouragement in the fact that in Commissioner Borg we have someone who is sympathetic to the challenge of seeking to reform the CFP and dealing with the huge problems that it currently presents to both the regulatory authorities and, more importantly, to the fishing industry and fishermen and their livelihoods.
The risk, of course, is that we have had a health check on the common agricultural policy and we know how disappointing that has proved to be. The contrast between the aspirations of Members of your Lordships’ House and the return on the CAP shows that the health check was a bitter disappointment. However, there are certainly signs that the Government appreciate the difficulties caused by the CFP. Let us hope that there is drive and continued pressure from Her Majesty’s Government on the European institutions to make sure that the reform of the CFP takes on board the issue of discard. The problem has not just arisen; it has been around for some time. It serves neither the viability of the fishing industry nor fish conservation and it needs to be reformed. I beg leave to withdraw the amendment.
Amendment 122 withdrawn.
Clause 193 : Power to make orders as to fisheries for shellfish
122ZA: Clause 193, page 112, line 10, at end insert—
“( ) In section 1 of the Sea Fisheries (Shellfish) Act 1967 (c. 83) (power to make orders as to fisheries for shellfish), subsection (4) is omitted.”
My Lords, this amendment returns us to an issue that we discussed in great detail in Committee: how the unsatisfactory position has arisen whereby the shellfish industry, in the Menai Strait in particular but now along the whole of our coastline, is effectively on hold and no new shellfish fishery will be begun because of the unacceptable uncertainty that now hangs over any new investment as the result of a legal challenge. I have retabled the amendment today because there have been some developments since we met in Committee and I want to give the Minister an opportunity to inform us of what they are and his department’s reaction to them.
The most significant development has been that the House of Lords in its judicial capacity has rejected the petition that the Crown Estate took on this issue to overturn the appeal. The situation threatens one of our most important exporting industries; its shellfish are very sought-after and it supports many of our coastal rural communities, which, as the Minister will know, are some of those that are most in need of economic investment. For all those reasons, while the Crown Estate was within its duty to take its petition, now that that is out of the way, the situation needs to be resolved as speedily as possible.
I hope that the Minister will outline the issues that were discussed by the Crown Estate, the shellfish industry and Defra at the meeting that they held. I understand that general agreement was reached on a way forward and that all three parties agreed that primary legislation was needed to amend the Crown Estate Act to relieve the Crown Estate of the power to make the orders for the shellfish fisheries, while reserving appropriate powers as a landowner. If indeed all three parties are in agreement, which I hope the Minister will be able to confirm, given how infrequently marine legislation comes along, it is imperative that the Government are able to table amendments in another place when the Bill goes there to resolve this situation, otherwise it may stay unresolved for years and the industry will suffer enormously. I hope that the Minister will confirm that amendments will be tabled to separate the statutory process from the exercise of landowner rights, a relatively simple thing for parliamentary draftsmen to draft. I beg to move.
My Lords, I support the amendment of the noble Baroness, Lady Miller of Chilthorne Domer. I apologise to the House; I thought my name was on this amendment but it is not, so obviously I have not gone through the right channels, probably in my enthusiasm to get all the information I could before I stood up.
The noble Baroness has more than likely covered everything that needs to be said, which restrains me from becoming too emotional about the entire subject. That said, I shall still remind noble Lords, anyone who is listening from the Gallery or on the radio, and anyone here today who is writing for the news, what we are talking about. The Crown Estate is answerable only to the Treasury and controls 55 per cent of our coastline. These regulating orders are ancient; they have been given out over 100 years. It is their choice that they do not charge fishermen for a licence to grow shellfish in these areas. They would have been happy to pay had it been asked for. The Treasury now insists that the maximum value is taken for these areas. People who have been fishing for many years, building up delicate oyster and mussel beds—it takes a very long time—are now told that their order has been withdrawn and there is no appeal. This is supposed to be a democracy, the Mother of all Parliaments; this is supposed to be the place where you really can stand up and object. But to this alone you cannot object.
I know for a fact that Ministers are afraid of the Treasury. Well, I stand on the Back Benches today in opposition; we are not at this moment Her Majesty's Government and, therefore, I can say these things. I have no doubt that my Front Bench cannot support me, because they, too, would be afraid to worry the Treasury. It cannot be right or fair that people in this country cannot earn their living, cannot grow their food and cannot appeal against it. I support the amendment, and hope that the Minister on his birthday will give us a wonderful present.
My Lords, where does fear of the Treasury come from? We always regard the Treasury as our good friend and colleague who is ever eager to seek constructive solutions to the little challenges that we face.
I am grateful to the noble Baronesses, Lady Miller and Lady Wilcox, for bringing this matter back. I fully acknowledge that this is a very important issue to the shellfish industry. I also fully acknowledge the importance of this industry to the UK and that it is important that this matter is resolved.
Noble Baronesses are right: the decision on 14 May by the House of Lords not to accept the petition from the Crown Estate and Isle of Anglesey County Council to have their case heard is a fact. In the light of that, I hope that a solution will be found to which all parties can agree.
It is clear that the current system for granting orders cannot continue and must be changed. We are doing everything that we can to help the parties reach agreement. We are working closely with the Shellfish Association of Great Britain and the Crown Estate. My colleague, Huw Irranca-Davies, has met shellfish industry representatives and the Crown Estate to move the issue forward.
The Crown Estate manages Crown land on behalf of the Government. The noble Baroness is right in suggesting that surplus revenue goes to the Treasury, in return for which the monarch receives a fixed annual payment known as the Civil List. The Crown Estate is accountable to Parliament, but is run independently of the Government by a board of appointees. Under the Crown Estate Act 1961, the board has a duty to maintain and enhance the value of the estate and return obtained from it, but with due regard to the requirements of good management. The Crown Estate must report to Parliament once a year, providing accounts and information about its activities for the year, including future activities.
It is important to note that, in England and Wales, the legal presumption is that the seabed and foreshore are in the ownership of the Crown. The presumption extends to the bed of all tidal rivers. It extends also to all islands in tidal rivers and coastal waters. The presumption applies in the absence of any evidence of a grant by the Crown to any private individual. It is estimated that the Crown Estate owns around 55 per cent of the UK foreshore, so it is an important player in these matters.
The most recent meeting of officials with the Shellfish Association of Great Britain and Crown Estate was at the end of April, where there was agreement on all sides to work together. The use of commercial contracts, with leasing and compensation arrangements between the industry and the Crown Estate based around a memorandum of understanding, is a viable solution to which all sides will be able to agree. We are arranging to meet the parties again urgently to attempt to reach formal agreement to such an approach.
We are clear, and we think that the Lords recent decision does not change this, that simply removing the consent clause in the Act will not resolve the problems that we face in granting orders. It does not give the industry the security that it wants to develop economically viable shellfisheries and is likely to jeopardise the development of an approach based on consensus being reached between the Crown Estate and the industry.
Although the recent court case leaves some questions unanswered about the operation of the current clause in several and regulating orders, which seek to preserve the rights of the Crown Estate, it is indisputable that the Crown Estate continues to have rights as a landowner. We have to work with those rights in reaching a solution. We also need to have discussions with the Duchies, which have similar rights under the legislation.
An additional problem is that the amendment would result in significant costs to the industry, because it is likely that the Crown Estate and possibly other landowners with similar rights would use other means to contest attempts to grant orders against their will. In any event, as part of the application process for an order, the Secretary of State could not ignore representations and objections made by the Crown Estate in reaching a reasonable decision whether to grant an order, especially given its landowner rights. This process would involve the Secretary of State having to call a public inquiry, with all the implications in terms of expense for the applicant for an order. That is our problem with the amendment.
It has been suggested that these issues could be resolved by provisions in the legislation to protect the rights of the Crown Estate and other landowners. Our view is that it would be extremely difficult to place such a savings clause in favour of the Crown Estate in primary legislation that would be satisfactory to all sides. The decision of the Judicial Committee to reject the Crown Estate’s appeal undoubtedly means that there are uncertainties over what rights it would have in a savings clause.
We are committed to resolving this issue. We think that putting the relationship between applicants for orders and the Crown Estate on a more commercial footing offers a much better, long-term solution, and that removing the consent clause or inserting a savings clause will not help resolve this situation. I am clear that we need to move quickly, and we shall work urgently with the key parties to seek a sustainable solution. If it requires changes in primary legislation, we will consider the most appropriate route, including possible changes to the Bill. I know that the noble Baroness, Lady Miller, says that drafting legislation could be done quickly. Alas, that is not my experience, but I fully take her point. If legislative solution is the way forward, this Bill would seem to offer the most appropriate opportunity. The noble Baroness said that it was unlikely that we will get another chance in relation to the marine environment for some time—I agree with that. I assure noble Lords that if we believed that primary legislation was necessary, we would look to introducing it during the passage of the Bill, probably in another place. However, it may not be necessary. It seems abundantly clear that, above all, we need the parties to work through a solution that is satisfactory to all of them. That, the Government will undoubtedly seek to encourage.
My Lords, perhaps I may wish the Minister a happy birthday and thank him warmly for that reply. Given the energy with which both he and his colleague, Huw Irranca-Davies, have addressed this issue since it was brought to their attention, I feel reassured that there is the will at ministerial level to drive through a solution. I accept, as the Minister said, that the solution may be commercial, with MOUs. I am relieved by his assurance that if it appears that primary legislation is needed while the Bill is still going through the other place, which will be for several months yet, the opportunity to table it will not be missed.
In conclusion, I am extremely happy with the Minister’s comments. Before we leave the issue, he may like to note that in my discussions with the Crown Estate it became apparent that, of all their commissioners, there is not one whose particular interest and responsibility is marine issues. As the Minister said, the Crown Estate owns 55 per cent of the foreshore and has a primary interest in the sea bed. I would have thought it appropriate, particularly after the Bill has gone through, when it comes to reappoint a commissioner, that it does so with particular regard to the need for that expertise. It would make a big difference to this sort of situation. I thank the Minister again for the energy that he has put into this issue, and beg leave to withdraw the amendment.
Amendment 122ZA withdrawn.
Clause 213 : Definitions relating to fish
122A: Clause 213, page 124, line 1, at end insert—
“( ) After the definition of “screen” insert—
““smelt” means any fish of the species Osmerus eperlanus;”.”
Amendment 122A agreed.
Clause 215 : Byelaws: emergency procedures
122B: Clause 215, page 125, line 32, leave out “physiological” and insert “physiographical”
Amendment 122B agreed.
Clause 219 : Handling fish
122C: Clause 219, page 129, line 13, after ““eels”,” insert ““smelt”,”
Amendment 122C agreed.
Clause 220 : Duties of the Environment Agency
122D: Clause 220, page 129, line 26, after ““eels”,” insert ““smelt”,”
Amendment 122D agreed.
Clause 221 : Tweed and Esk fisheries
Amendments 122E and 122F
122E: Clause 221, page 129, line 33, at end insert—
“( ) In subsection (4), in the definition of “conservation”, for “salmon, trout, eels and freshwater fish,” substitute “salmon, trout, eels, lampreys, smelt, shad and freshwater fish,”.”
122F: Clause 221, page 129, line 36, at end insert—
“(aa) after “salmon” insert “, “smelt””;”
Amendments 122E and 122F agreed.
Clause 239 : Dwellings
123: Clause 239, page 146, line 26, after “sheriff” insert “or”
My Lords, I will not detain the House. This is a simple amendment, the effect of which would be to delete “justice of the peace” from the list of those who can give warrants to enforcement officers under Chapter 2 of Part 8 of the Bill in respect of warrants issued in Scotland.
Chapter 2 of Part 8 sets out various powers: powers to board and inspect vessels and marine installations; to enter and inspect premises; and to enter and inspect vehicles. However, it has an important further provision in Clause 239, that an enforcement officer may not, by virtue of the powers to which I have just referred, enter any dwelling place unless a justice has issued a warrant authorising the officer to do so. In Scotland, “justice” is defined as a sheriff, a stipendiary magistrate or a justice of the peace. Given the importance of a warrant to enter a dwelling house, and the fact that in issues like that nowadays rights under Article 8 of the European Convention on Human Rights can be an issue, there is a view that this should be done by a sheriff or stipendiary magistrate.
Anticipating the Minister’s response to this, I am sure that he will point out that, in England and Wales, “justice” means a justice of the peace and, in Northern Ireland, a lay magistrate, and then ask why Scotland should be different. I merely note that the origin of this amendment was the concern expressed by the Law Society of Scotland. That should give the Minister some cause for reflection. He should have regard to the fact that that body, with intimate knowledge of the working of Scots law, expresses that concern.
I also note that Schedule 17, relating to warrants issued under Section 239, states in paragraph 2(2) that:
“An application for a warrant must be made without notice and must be supported by an information in writing or, in Scotland, evidence on oath”.
The Bill itself makes different provision for Scotland in terms of application for a warrant from other parts of the United Kingdom. The Bill itself therefore concedes that some distinction can be made, and I just seek a further distinction. I beg to move.
My Lords, considering that this amendment has been supported by the Law Society of Scotland and moved by the noble Lord, Lord Wallace of Tankerness, and that between them they have many more legal credentials than those to which I could ever aspire, and that both think that the amendment’s wording is appropriate, I should like to offer my support.
My Lords, there is nothing worse than a noble Lord moving an amendment saying that it is simple, straightforward and backed by the Law Society of Scotland. That makes my knees knock right from the start as I have no legal background.
I am also awaiting someone who would be much better qualified to address this issue, my noble and learned friend Lord Davidson, but he will be here for the next business, which is also of great import. It therefore falls to me to respond to the noble Lord. We in the department did not think that this was a simple amendment at all. In fact, we thought that it raised some pretty significant issues. My reply may therefore not satisfy the noble Lord, particularly as I note his additional point that Bill does, in its subtle way, recognise differences in Scotland from time to time. However, we will seek to convince the noble Lord that the Bill should remain as it is and that the amendment should not be carried.
The amendments have the effect of removing a justice of the peace from the court officials who are able to authorise a warrant in Scotland. Clause 122 of the Marine (Scotland) Bill contains similar provisions to Clause 239 of the Marine and Coastal Access Bill and provides that a justice may issue a warrant to search dwellings. “Justice” is defined in Clause 141 as,
“a sheriff, stipendiary magistrate or justice of the peace".
So it has been considered appropriate for stipendiary magistrates and justices of the peace to have the power to grant warrants for the search of dwellings for the equivalent Scottish provisions. Our own provisions at Clause 239(5)(c) have of course been agreed by the Scottish Executive. It seems a strange discrepancy to remove “justice of the peace” from our provisions when the Scottish Executive is content for this to be reflected in this Bill, and for such officials to issue warrants in Scottish legislation.
I recognise that there is a distinction between the Scottish Executive and the Scottish law courts, but the noble Lord will appreciate that throughout the Bill we sought to emphasise the extent to which we are taking the different parts of the United Kingdom into account, particularly the work that Scotland is still doing on its Marine Bill. That is evidenced by how we have approached this issue.
Additionally, the Scottish Executive could see no justification for restricting the issue of warrants in Scotland only to sheriffs and stipendiary magistrates. The Scottish Executive have confirmed that in Scotland, justices of the peace are trained in the issue of warrants and indeed are already used to issuing them for the purposes of entering dwellings under other legislation; for example, under Section 125 of the Immigration and Asylum Act 1999; under regulation 4 of the Zoonoses (Monitoring)(Scotland) Regulations 2007, which I have no doubt are well known to the House; and under paragraph 2 of Schedule 4 to the Building (Scotland) Act 2003, among other legislation. I am also mindful of the fact that justices of the peace in Scotland, who are lay members advised by a legally qualified clerk, have considerable responsibility, being able to impose up to 60 days’ imprisonment and fines of up to £2,500.
The power for justices of the peace to issue search warrants is clearly not new. Similar provisions exist in the legislation from which the enforcement powers of the Bill have been consolidated. For example, in Schedule 2 to the Food and Environment Protection Act 1985, paragraph 7(3)(b) enables a justice of the peace in England and Wales, or a sheriff, stipendiary magistrate or justice of the peace in Scotland, to issue a warrant to search a dwelling. This is the same that we have provided for in Clause 239. Section 12 of the Sea Fisheries Regulation Act allows a justice of the peace to issue a search warrant. Section 19 of the Wildlife and Countryside Act 1981 enables a justice of the peace to issue a warrant to enter and search any premises.
We have looked at similar legislation relevant to the Bill before the House today. More recent legislation, both in England and in Scotland, has followed the line of allowing justices of the peace to issue warrants to search dwellings. Section 12 of the Animal Health and Welfare (Scotland) Act 2006 permits JPs to issue warrants to enter any premises, as does the Health and Social Care Act 2008 and Section 29H of the Racial and Religious Hatred Act 2006, which applies in both England and Scotland. Very recently, the Aquatic Animal Health (Scotland) Regulations 2009—a lively issue which the House will recall—permitted JPs to do this. There are many other examples from new and old legislation with which I could entertain the House. So we are not creating anything novel here; we are simply following precedent for the ability of justices of the peace to issue warrants for officers to enter and search.
If we remove the ability for justices of the peace to issue warrants for entering and searching dwellings in Scotland, we may set a precedent that will go far wider than this Bill. It is not the intention of the Bill to alter legal precedent in relation to powers of lay magistrates in Scotland. That is far outside the compass of the Bill. I am not sure that the Law Society of Scotland would thank us if we set such a precedent within the framework of this measure. As there is no desire from the Scottish authorities to pursue this amendment, I hope that the noble Lord will withdraw it. If he does not wish to do so, he will see that I now have a powerful ally at my side in the shape of the noble and learned Lord the Advocate-General, whose expertise in Scottish law I would not hesitate to deploy. However, I am backed by the Scottish authorities who believe that the amendment should be withdrawn, and I hope that the noble Lord will do so.
My Lords, before the noble Lord sits down, is he aware that there is a very considerable programme of training and education for justices of the peace which was initiated when the noble Lord, Lord Wallace, was a Minister of Justice in Scotland? Does he agree with me that this programme, which was initiated by the noble Lord, means that justices of the peace are now much better trained than they were at one time?
My Lords, I certainly take that point on board. I was only too delighted to put in motion that training programme. In no way was this amendment intended to reflect on the integrity of justices of the peace in Scotland. With all due respect to the noble and learned Lord the Advocate-General for Scotland, the noble Lord, Lord Davies, delivered his response in a very eloquent and learned way and with the panache with which we have come to associate him. He put forward a very compelling case. However, the part I found least compelling concerned authority and the approval of the current Scottish Executive. That to me is not necessarily the most compelling argument to use. Moreover, it is important to point out that the Scottish Marine Bill was published only in the past two or three weeks, so it has not yet been subjected to parliamentary scrutiny. The Scottish Parliament may take a different view from the Scottish Executive on whether justices of the peace should be given this power. I have no doubt—unless, having read what the noble Lord has said, the Law Society of Scotland chooses to revise its position—that Mr Michael Clancy, who is ever diligent in these matters on behalf of the Law Society of Scotland, will suggest amendments, which will find their way on to the desks or into the inboxes of umpteen Members of the Scottish Parliament. We may well find that the Scottish Parliament comes to a different view from that expressed by the Scottish Government in their Bill. Nevertheless, the noble Lord has made a good case for us not to press the matter at the moment. As he says, precedents are always dangerous and to introduce one in Clause 239 of the Marine and Coastal Access Bill is probably not the best way to start the revolution. I beg leave to withdraw the amendment.
Amendment 123 withdrawn.
Amendment 124 not moved.
Clause 255 : Reports of inspections under section 254
124A: Clause 255, page 154, line 20, at end insert—
“( ) In a case where the officer, after taking reasonable steps to do so, is unable to identify any person as owning the object, the officer must take such steps as the officer thinks fit to bring the contents of the report to the attention of persons likely to be interested in it.”
My Lords, after the dizzy heights of Scottish law we enter the rather more prosaic elements of government Amendments 124A and 124B. These amend Clause 255 to place a duty on individual officers as well as the relevant authority to bring the contents of an inspection report to the attention of any persons likely to be interested in it when objects are inspected at sea. Amendment 124C simply corrects an incorrect reference to “authority” rather than “officer” in Clause 260(5). Amendment 124D clarifies the person to whom the proceeds of sales of seized fish must be returned when the enforcement authority decides not to take proceedings or proceedings are concluded without an order for forfeiture being made.
Amendment 124E to Clause 282 replaces the word “Act” with “Part” in subsection (1)(a). This has the effect of restricting the offence of not complying with an enforcement officer's requirement to powers exerted under Part 8 rather than the Act itself. The amendment is needed to ensure that there is no chance that not complying with a statutory notice under Part 4 could also be an offence of not complying with an officer's requirement under Part 8. The offences under Clauses 89, 100 and 102 in Part 4, carry a higher penalty than that under Clause 282(1)(a) reflecting possible harm that can result from a licensing offence. We do not wish there to be ambiguity in the penalties that someone might face and so have tabled this amendment to remove any overlap. I hope that noble Lords will see merit in these amendments. I beg to move.
Amendment 124A agreed.
124B: Clause 255, page 154, line 38, after “requirement” insert “for the authority”
Amendment 124B agreed.
Clause 260 : Procedure in relation to seizure under section 258 or 259
124C: Clause 260, page 158, line 24, leave out “authority” and insert “officer”
Amendment 124C agreed.
Clause 263 : Power of relevant authority to sell seized fish in its possession
124D: Clause 263, page 159, line 43, leave out from “authority” to end of line 44 and insert “to have been the owner, or one of the owners, of the fish at the time of the seizure of the fish.”
Amendment 124D agreed.
Amendment 124DA had been retabled as Amendment 124U.
Clause 282 : Offences in relation to enforcement officers
124E: Clause 282, page 168, line 22, leave out “Act” and insert “Part”
Amendment 124E agreed.
Consideration on Report adjourned.
Scotland Act 1998 (Modification of Schedule 4) Order 2009
Motion to Approve
My Lords, this order was approved by the other place last week. The purpose of the order is to amend Schedule 4 to the Scotland Act 1998. This will enable the Scottish Parliament to create a time limit for proceedings brought under the Scotland Act, where the proceedings allege that Scottish Ministers or a Member of the Scottish Executive have acted in breach of convention rights similar to that which exists in relation to such claims brought under the Human Rights Act 1998. By doing so we will achieve a pragmatic solution to an issue highlighted in the Somerville case before the Judicial Committee of this House.
The Secretary of State for Scotland and the First Minister jointly announced on 19 March this year that this order would be introduced before Parliament and the Scottish Parliament. As required, the order has been laid in draft before both Houses of this Parliament and the Scottish Parliament. This order is made under Section 30(2) of the Scotland Act, which specifically provides a mechanism by which amendments may be made to Schedules 4 and 5 to the Scotland Act. Such orders can be used to adjust the boundaries of the Scottish Parliament's legislative competence by adjusting existing reservations or their exceptions, or by removing or adding matters from the list of reserved issues and protected enactments.
This power has, of course, been used before. Since 1999, nine orders have been made under Section 30(2) of the Scotland Act. These orders demonstrate a pragmatic approach to the devolution settlement and the flexibility contained within the Scotland Act. Each case was examined on its merits to ensure that the functions are exercised at the appropriate level.
This is a technical and relatively complex issue, and I hope I may explain the background. Under Section 6(1) of the Human Rights Act, it is unlawful for a public authority to act in a way which is incompatible with a convention right. If a person claims that a public authority has acted, or proposes to act, in a way which is made unlawful by Section 6(1), they may bring proceedings against the public authority under the Human Rights Act in the appropriate court or tribunal. A person is permitted to do so only if they are, or would be, a victim of the unlawful act. A “public authority” includes the Members of the Scottish Executive. The Human Rights Act thus represents the principal positive means by which legal protection is given to convention rights in our domestic law and by which individuals may seek redress for the breach of their rights.
The Scotland Act, like the other devolution Acts for Northern Ireland and Wales, provides an additional route for claims to be brought. Convention obligations were written into the devolution Acts during the passage of the legislation through this Parliament. As a result, the Scottish Ministers, as with all devolved Ministers, must at all times act compatibly with convention rights.
Section 100 of the Scotland Act states that proceedings under the Act against incompatible acts cannot be brought by a person unless they fall within the class entitled to bring proceedings under the Human Rights Act. It also limits any damages by reference to the Human Rights Act. The Human Rights Act requires that proceedings must generally be brought within one year from the date of the alleged breach, unless a stricter time limit applies to the proceedings in question. A court or tribunal may permit proceedings beyond this time limit if it considers it equitable, having regard to all the circumstances. The Scotland Act, however, makes no such provision. In the case of Somerville, this House ruled that those bringing their claim under the Scotland Act, notwithstanding the fact that the claim is identical in all other respects to a Human Rights Act claim, are not subject to the one-year limitation period under the Act. Such claims are subject only to general prescription and limitation principles under Scots law. In effect, this allows a longer period within which to raise proceedings pursuant to the Scotland Act.
As I have said, Her Majesty’s Government and the Scottish Ministers worked together on this issue. The joint aim was to reach a pragmatic solution that allows an equivalent time limit to be put in place for claims brought under either the Scotland Act or the Human Rights Act. Following discussions between officials, agreement was announced on 19 March by the Secretary of State for Scotland and the First Minister. It was agreed to work together to facilitate a one-year time limit in Scotland by the summer. Her Majesty’s Government will seek the support of this Parliament to bring forward a comprehensive solution extending the same provision to the devolved Administrations in Wales and Northern Ireland, putting all the devolution settlements on a consistent footing and consolidating the changes to the Scotland Act, as soon as legislative time becomes available. The Scottish Parliament approved the order last week. Noble Lords may also wish to note that we sought the views of the Commission on Scottish Devolution—also known as the Calman Commission—which I understand supports this approach.
This order therefore will enable the Scottish Parliament to pass legislation to provide for a time limit within the Scotland Act similar to that in the Human Rights Act, so that certain convention-based claims brought against the Scottish Ministers or a Member of the Scottish Executive, which may be based on the same facts and the same alleged unlawful act, are subject to the same time limit pursued under whichever Act.
As a general rule, prescription and limitation periods in relation to claims brought in civil courts in Scotland are a devolved area of law. However, this matter requires modification of the Scotland Act to introduce the proposed time limit. Paragraph 4(1) of Schedule 4 to the Scotland Act provides that an Act of the Scottish Parliament may not modify, or confer power by subordinate legislation to modify, the Scotland Act itself. There are certain exceptions to this rule, and paragraph 4(2) of Schedule 4 lists those provisions in the Scotland Act which may be modified by the Scottish Parliament.
This order inserts a new paragraph 4A into Schedule 4 to enable the Scottish Parliament to provide for a time limit for claims brought under the Scotland Act alleging breach of convention rights arising from certain acts of the Scottish Ministers or a Member of the Scottish Executive. It provides that any legislation enacted by the Scottish Parliament must provide for proceedings to be brought within a period of one year, beginning with the date on which the act complained of took place, or such longer period as a court may consider equitable. This is similar in effect to Section 7(1)(a) and Section 7(5) of the Human Rights Act. The limitation period is without prejudice to any shorter period applicable to the specific procedure and will not apply to claims about the making of legislation. The limitation period will also not apply to bringing of proceedings under the Scotland Act brought by myself as Advocate-General for Scotland or indeed any of the other law officers.
The joint aim of Her Majesty’s Government and the Scottish Ministers is to protect the wider public interest. The measure seeks some consistency in the application of human rights legislation in the UK. This order and the anticipated legislation in the Scottish Parliament will substantially create a harmonised position between the Scotland Act and the Human Rights Act. I commend the order to the House.
My Lords, I thank the noble and learned Lord for that very full explanation of all the ins and outs of this rather complicated area. It is useful that the House has been brought up to date with the considerable importance of this matter. Perhaps I am revealing my age a bit too well when I say that, as I understand it, the 2007 ruling on the Somerville case was to do with slopping out in Scottish prisons and similar things. In my house, we go back to the time when there was slopping out in the house, let alone in various other places that one had come across. In fact, some of the furniture that is scattered around the place is the old-fashioned commode which belonged to that era.
There is a point for serious consideration. Even though the Minister informed the House that the measure was agreed by Scottish Ministers on 15 March, that is now only eight weeks ago. The measure was introduced to this Parliament with rather less notice. I wonder whether the noble and learned Lord could explain in what way the Government considered it appropriate to put aside the proper Cabinet Office guidelines, which say that legislation should be out for consultation for a 12-week period. Perhaps the noble and learned Lord could say, because when the measure was taken in another place it was still not quite the date when it was due to be approved by the Scottish Parliament. Perhaps that has already taken place, and that would be of interest.
Also, for the record, can the noble and learned Lord say how many claims have occurred so far that extend beyond the one year that would be allowed if this legislation were in place? What difference will this legislation make to those numbers? Can he say whether some appeals may be disallowed? It would be of interest to know what sums the Scottish Government have already paid in the past year and what possible level is estimated that they will be likely to be paying in the future for the want of this legislation, which we hope will be a success.
My Lords, I, too, thank the noble and learned Lord the Advocate-General for Scotland for introducing this order and for his explanation of it. I declare an interest as a member of the Commission on Scottish Devolution, the Calman Commission, to which the noble and learned Lord referred, and which recommended—I think the request came from the Secretary of State for Scotland—to him that a course of action similar to what we now have before us should be followed.
It is a welcome step to bring into line with human rights legislation the position in Scotland for those who are seeking to raise actions against public authorities—at least on grounds of breaches of human rights; the specific point is that it is not being done under human rights legislation but under the Scotland Act—by making the time limit the same. It is my understanding that the time limit of one year was introduced somewhat late in the day when the Human Rights Act 1998 was going through Parliament. Although the then Scotland Bill was running in parallel, no one seems to have picked up the potential for different time limits to apply. It makes some sense now to bring both into line.
The noble Duke, the Duke of Montrose, raised a question about the usual timescale for issuing Cabinet Office guidelines for legislation not being followed. There is certainly a degree of urgency here, given the sums of money involved. That in itself raises a number of questions. It is my understanding that this order paves the way for the Scottish Parliament to take forward legislation, possibly emergency legislation. Perhaps the Advocate-General can confirm that that is the case.
It is also my understanding—indeed, it was indicated by the Scottish Justice Secretary Kenny MacAskill on 11 March this year—that on the day after the Somerville judgment was issued he wrote to the Lord Chancellor setting out the case for change and seeking urgent action. That was on 25 October 2007, almost 19 months ago. The Lord Chancellor agreed that this was an important issue and that he and his colleagues were engaged constructively on it. However, in December last year the Lord Chancellor told Scottish Ministers that the United Kingdom Government were not persuaded of the case for action. It is very welcome that within less than three months they were persuaded. Perhaps the Advocate-General could shed some light as to why some 14 months went past, with comings and goings that led to the United Kingdom Government not being persuaded, only to change their minds within two or three months. It is a welcome change of mind and there should be some rejoicing over the sinner that repents. Some explanation for the delay would be very welcome.
The Law Society of Scotland has issued some concern about lack of consultation. That is certainly understood, given the pressing need and urgency which has been described in the Scottish Parliament. It is important also to recognise that, if subsequent legislation passes through the Scottish Parliament, this order will affect not only the slopping-out cases to which the noble Duke referred and that all human rights cases will be subject to this time limit. Perhaps the Advocate-General can confirm that the time limit of one year is longer than the six-month time limit required for cases going to the European Court of Human rights in Strasbourg.
Finally, what is the position of those who already have an action in court in respect of an alleged breach which took place more than a year ago? Are actions currently in court covered by any legislation which subsequently brings the time limit into line with the two jurisdictions?
My Lords, it is always good to get the Scotland Act out and to blow the dust off it, but I do not think that we are blowing hard enough.
I am content with this mild and sensible measure which gives permission to the Scottish Parliament to act on its own behalf. However, I am not content with this parliamentary and statutory procedure. It is unnecessary and fundamentally patronising. After 10 years of successfully reinstated national government, is it not time to complete the Scottish democracy project? Is it really the Government’s intention to keep the people of Scotland in a semi-democracy which is a condition similar to requiring a teenager never to grow up?
Will the noble and learned Lord agree that Scotland in particular and the United Kingdom in general need a constitutional overhaul leading to either a properly constituted federal state, which would please my noble friends, or, even better, to a confederal state, which would please not only those who seek full Scottish democracy, but lead the United Kingdom back to its origins, as achieved in 1603?
My Lords, I thank all noble Lords who have spoken on this short order. In response to the noble Duke, the Duke of Montrose, perhaps I may note one or two points. In relation to the approach to consultation, it was as a result of an urgency perceived by Scottish Ministers that the sums of money which were potentially at risk were so large that relatively speedy action was required. In particular, they see this as a means whereby contingency sums may be freed up—some £50 million—in order that that might be, in their view, put in other directions.
As regards the number of claims, so far as I am aware from the Scottish Ministers, they assess that there are 28,000 potential claims, and it was for that purpose that the Ministers required to set aside this not insignificant sum. The sums of compensation that have, in fact, been paid to date amount to £7.9 million, according to Scottish Executive figures, with an additional figure in respect of legal expenses that takes the total to £11.3 million.
I turn to the points raised by the noble Lord, Lord Wallace. I very much welcome his support for this order, and I immediately confirm that its purpose is to pave matters as a way forward for the Scottish Parliament. The noble Lord raised a point about delay and the fact that the Cabinet Secretary for Justice sent his letter on 25 October 2007. That was probably the day after the Judicial Committee’s decision. It may seem that the period that has elapsed is more than perhaps the noble Lord would have chosen However, one was looking at the interplay between the Human Rights Act and the Scotland Act. While one view might perceive this as a mere anomaly, for the reasons the noble Lord suggested, there is also a question of whether there is some constitutional issue which might not be perceived as quite so straightforward. In the result, discussions produced an agreement as to a way forward and any perceived constitutional difficulties were overcome and put to one side.
On the effect of what the Scottish Parliament may do under its Acts in relation to existing cases, there is no intention, and it probably would not be lawful, for any such effect in any way to remove an existing right.
The noble Earl, Lord Mar and Kellie, asks that perhaps I might afford him some pleasure by way of moving to a federal state or a confederal state. I regret to say that I must deny him that pleasure.
Unless there are any further points, I commend this order to the House.
Motion to Adjourn
Industry and Exports (Financial Support) Bill
My Lords, the Government have introduced this Bill, certified as a money Bill, to make two small but important amendments to the law: one to the Industrial Development Act and one to the Export and Investment Guarantees Act. These amendments will provide the framework for supporting business through the downturn and accelerating our economic recovery. I shall deal with each in turn.
The first clause in the Bill increases the cumulative limit on financial assistance that may be provided under Section 8 of the Industrial Development Act 1982. Section 8 lays down the basis for providing financial assistance to industry and specifies the limit allowed in law. The criteria for such assistance are also set out in the Act and include promoting the development, modernisation or efficiency of an industry and encouraging the growth of an industry or the arrangements for ensuring an orderly contraction of an industry.
The scope of the power under Section 8 of the Act is wide, but it does not in itself authorise any actual expenditure. The Act provides for parliamentary oversight of expenditure through the need for the Government to secure a Commons resolution whenever assistance for one business or project is likely to exceed £10 million. The 1982 Act set the limit of available support at £1.9 billion, with a further increase to £2.7 billion possible using affirmative orders. The Industrial Development (Financial Assistance) Act 2003 raised the limit to £3.7 billion, extendable by orders to £6.1 billion. All the orders permitted under that Act have now been made.
Since 1982, the legislation has paved the way for essential support to business, including: the enterprise fund products, such as the small firms loan guarantee scheme; enterprise capital funding; the Phoenix fund; support for the post office network; and, most recently, programmes of assistance such as the enterprise finance guarantee scheme, capital for enterprise and support to the automotive sector.
Financial assistance under these programmes from 1982 until the end of March 2009 amounted to around £3.8 billion. I should stress that the financial assistance covers both actual expenditure—for example, grants—and the full amount of potential liabilities, such as loans or loan guarantees. This means that, if the Government support credit by issuing a loan guarantee of £1 million, the full £1 million would be counted against the financial limit even if the guarantee was never invoked and no expenditure incurred. This matters because, in the current climate, credit is at the core of the economic difficulties that we face and is therefore the focus of our response. It also means that we rapidly consume Section 8 headroom even though the actual taxpayer cost of the intervention, in terms of eventual defaults, is much smaller.
Current estimates for potential additional liabilities for the proposed schemes under Section 8 stand at £7 billion. This includes £5 billion for the new trade credit insurance scheme, which has been given a broad welcome by business groups.
The greater emphasis on support through loans, loan guarantees and equity schemes, as well as the new trade credit insurance scheme, provides the sort of real help that business needs in this financial climate. At the same time, such schemes offer better value for money to the taxpayer with the prospect of repayment over time and only a proportion of the guarantees needing to be met. These schemes are based on calculations of risk and default rates and are designed to reduce risk to the taxpayer. Such provisions were set out by the Chancellor of the Exchequer in the Budget and the Pre-Budget Report.
However, because the full amount secured against the public finances counts against the Section 8 total, this reduces the amount of headroom available. The higher limit of £12 billion, increasable to £16 billion through four orders, will relieve that pressure and lay the legislative basis for further assistance to business, should it be necessary.
I now turn to the second clause of the Bill, which amends the Export and Investment Guarantees Act 1991. The Act governs the work of the Export Credits Guarantee Department, a government department reporting to the Secretary of State for Business, Enterprise and Regulatory Reform. The ECGD helps exporters by providing insurance against non-payment for goods or services, or, more commonly, by issuing guarantees to banks offering loans to foreign buyers and project sponsors to purchase British exports. The ECGD supports capital and semi-capital exports where typically contracts are worth tens, and sometimes hundreds, of millions of pounds. The costs are such that buyers and project sponsors require extended credit terms to pay for them.
The proposed amendment is small but important and is intended to solve a difficulty with the wording of the 1991 Act. Section 1 states:
“The Secretary of State may make arrangements under this section wit