Marine and Coastal Access Bill [HL]

I am pleased to follow the noble Baroness, Lady Hooper, who has so cogently introduced this group of amendments standing in her name as well as mine and other noble Lords in all parts of the House. Our purpose in tabling these amendments is to tighten up the language of the Bill, removing ambiguities and making it clear that the legislation is intended to protect the marine historic environment as well as the marine natural environment. I am grateful to the Minister, my noble friend Lord Hunt, for meeting the noble Baroness, Lady Hooper, and myself and for the helpful discussion we had about that general issue and about these amendments in particular. Amendment 89L to Clause 52 clarifies that, in determining what are relevant matters for a marine plan authority to keep under review, the term cultural includes historic and archaeological. My noble friend may say, as has been said before in proceedings on this Bill, that the Government eschew lists which can be interpreted as excluding other matters that are not specifically included in them. I understand the force of that point generally, but it is not the point here. Here we are simply seeking elucidation of terms to clarify that the legislation is intended to protect the marine historic environment. If you were Neptune or Venus arising from the waves and reading the Bill as drafted for the first time, you would not be at all sure of that. The occasional references to cultural, historic and archaeological interest seem like an afterthought and not integral to the conception of the Bill. Similarly Amendment 106CB amends Clause 114 to state forthrightly that an authority may designate a marine conservation zone for the purpose of conserving historic and cultural heritage. Without this amendment, it is by no means clear in the Bill that an authority could do so. Amendment 107A clarifies that the authority, in considering whether it is desirable to designate an area as a marine conservation zone, may have regard to the historic and archaeological consequences of doing so. Clause 114 as drafted as far as subsection (6) is exclusively concerned with the natural heritage. The addition in subsection (7) of permission to have regard to economic or social consequences of designation fails to indicate that the authority may also have regard to the consequences for the marine historic environment. The Bill should explicitly require a balanced concern for the various aspects of the environment, historic as well as natural. The Bill should also point the way towards reconciling the tensions that there could sometimes be between the needs of different important aspects of the environment. Amendment 101BZAA to Clause 66 and Amendment 107D to Clause 116 are designed to make clear that bodies charged with a duty to advise the Government on relevant matters and to undertake relevant executive functions on their behalf must be consulted during those processes of taking decisions that will have important consequences for the marine historic environment. Amendment 101BZAA clarifies that in determining an application for a marine licence the licensing authority must have regard to representations not only from, "““any person having an interest in the outcome of the application””," but also specifically from statutory consultees. Consulting the wider public of people who are interested is right and proper, but we need to make a distinction between that and consultation with organisations that have relevant duties under statute. Amendment 107D similarly clarifies that before designating a marine conservation zone an authority must consult statutory consultees as well as any other persons likely to be interested. Persons ““likely to be interested””, in the wording of the Bill, is an odd way to refer to statutory bodies which have clear responsibilities in this area—as English Heritage has in relation to the marine historical environment. Politically it will be helpful to the Government to make it an avowed principle to consult the relevant non-departmental public bodies. They are different from non-governmental organisations. They are set up by government as independent and expert bodies. A legally binding and clear obligation to consult with them will help to persuade the interested public that the Government genuinely wish to get their decisions right. Such consultation provides a form of audit and accountability. My noble friend may say that there is no such thing as a statutory consultee and that it is not a term recognised in government. While it may not be an elegant term, it precisely describes something that matters, so why do we not coin it as a useful legislative term? If he really does not like it, we could perhaps use instead the terminology of ““partner authorities”” that the Government themselves are using in the Local Democracy, Economic Development and Construction Bill. My noble friend may otherwise say that the amendments are unnecessary since by definition statutory consultees must be consulted. That is true in theory, but busy people do not always remember to consult everyone they ought to consult, or appreciate the status of the responses they receive. Bureaucratic jealousies do occur and co-operation between departments can be less than perfect. I readily accept that Defra Ministers and officials are working with DCMS and English Heritage at present. Defra is a signatory to English Heritage’s funding agreement and has, I understand, commissioned English Heritage to prepare a position statement on marine development control. Defra, DCMS and English Heritage work together very well on the Aggregates Levy Sustainability Fund. English Heritage is a fundholder under this Defra scheme, which supports much archaeological work, including the examination of ““Dogger Land”” under the North Sea and the use of new survey technology to study shipwreck sites on the Goodwin Sands. I am not at all saying, therefore, that there is not at present good co-operation. Ministers are, however, birds of passage. I have watched with admiration how my noble friend Lord Hunt has swooped from one portfolio to another. Civil servants, despite the mythology, are not permanent, and the institutional memory in Whitehall can be amnesiac. There are pressures on Defra to subordinate its concern for the marine historic environment arising, for example, from the international agreement to deliver an ecological network of marine protected areas by, I think, 2012. Nature conservation NGOs are pushing hard for ecological and biodiversity interests alone in this network, and that makes it hard for the archaeology NGOs to play their part in achieving co-ordinated action for the benefit of conservation overall. The terms of this major legislation should make it unambiguously clear that duties to conserve are duties to conserve the historic as well as the natural environment. We understand why my noble friend Lord Hunt does not intend to attempt a definition of ““sustainable”” in the Bill, but I do ask the Government to state, in lapidary terms, on the record in Hansard, that when they speak of sustainability and when they legislate on sustainability and conservation, they intend that these terms and these duties embrace the historic as well as the natural environment. Successor officials, and, indeed, the courts, must have no doubt of this. I have noticed that Defra’s document, A Strategy for Promoting an Integrated Approach to the Management of Coastal Areas in England, while emphatic on the need for a joined-up approach, and while acknowledging the historic environment in its vision, is, like this Bill, overwhelmingly focused on the natural environment. That is appropriate in a Bill originating from Defra. What causes me concern in that document, however, is the account of what the Government intend in the UK marine policy statement. It says: "““The statement will bring together social, economic and environmental policies””." It makes no reference to policies for the cultural and historic heritage. Yet the national policy statement will, on behalf of the Government as a whole, set the terms of reference for marine planning and conservation. I ask my noble friend to state that the MPS will set out the policy of the Government to safeguard the marine historic environment. I also ask him to make clear on the face of the Bill at the crucial points the Government’s commitment to the cultural and historic marine heritage. We must not fluff this legislation, as has happened too often in the past. The Protection of Wrecks Act 1973 was, I have been told, a narrowly-intended emergency measure originating as a Private Member’s Bill. It is incapable of bearing the load that we may hope to place upon it. It is doubtful, for example, whether its provisions will help us in relation to the discovery the other day by a commercial salvage firm of divers of the remains of the first HMS ““Victory””, yet the extent of the media coverage and intensity of public interest in that ship show that there is a demand that the Government and the public agencies should be competent and determined to act in the public interest in conserving the marine historic environment. The 2002 legislation, also introduced as a Private Member’s Bill, though it drew on a previous government Bill that had not been enacted, was similarly insufficiently comprehensive. The Government’s heritage protection Bill, though not a wreck, has not surfaced in this Session. I believe that the Secretary of State is trying to navigate it into port, but he has not got there yet. Meanwhile, we have this Bill. I do not suggest that it should not primarily be about the marine natural environment, or that it should be made to substitute for the heritage protection Bill, but I would argue that it should very clearly create a part of the legislative structure that we need for the conservation of the marine historic environment.