Marine and Coastal Access Bill [HL]

Before I address this group, starting with Amendment A14, I want to record again that the Committee will have to suffer from the understudy because the stars are performing in Grand Committee. I hope that the Minister will be able to respond: this is the third time that this confusion has occurred. It is mismanagement by the government managers, after the assurances that we have been given, that this should coincide. It is a curious way to secure agreement, at least from these Benches. On Clause 71 and this group of amendments, our concern is that there should be a level playing field between the criteria on which exemptions are discussed, assessed and granted with the original issues of licensing. It is important to have consistency between those two sets of decisions. So the controls and safeguards for exempted activities, with which Clause 71 is primarily concerned, seem extremely important. We believe that there should be exemptions; Clause 71 is necessary. However, the way in which it is set out in the Bill is not conducive to good management. We all understand that we want to reduce the regulatory burden—we are all in that business these days—but the Bill does not provide sufficient environmental safeguards, controls or checks in relation to the exemptions; for example, none of the requirements that we have agreed are necessary for determining applications under Clause 66 is included for determining exemptions, hence my concern about the level playing field. There is no requirement for assessing impacts prior to exemption nor description of the types of activity that can qualify for exemption, and no proper concerns are set out in the Bill to ensure that consultation on exempted activities is sufficiently strong; indeed, it is not mandatory at all. The process for exemptions set out in the Bill is vague and creates possible loopholes for environmentally damaging activities to proceed unchecked. The Minister will recall that the Government’s associated document, Managing our marine resources—licensing under the Marine Bill, which we have all considered carefully, states that they will work with stakeholders to identify where low-risk activities can be exempted from marine licensing, but this limitation to, and assessment of, those low-risk activities are simply not in the Bill. We therefore believe—and this is the common concern of many of the outside organisations considering the Bill—that there need to be amendments, hence this group. It should be mandatory, first, to ensure that any exemptions do not compromise the licensing authority’s purposes in Clause 66; that is, to protect the environment and human health and prevent interference with legitimate uses of the sea. Secondly, carrying out the appropriate environmental assessments under, for example, the strategic environmental assessment process, which assesses the Government’s proposed plan for exemptions in secondary legislation, should be a matter for consultation with stakeholders. The process is referred to in the Government’s response to recommendation 29 of the Joint Committee’s report on the draft Marine Bill under the chairmanship of the noble Lord, Lord Greenway. Additionally, how are environmental impact assessments affected by exemptions? Thirdly, we surely need a process of assessments, where appropriate, where an activity is likely to have an impact on a site protected under the birds or habitat directives. Finally, an impact assessment or, indeed, a cost-benefit analysis of each proposal should surely be carried out as stated in paragraph 26 of the impact assessment for this Bill. It is extremely important that a process for consultation and obtaining advice from experts should be in the Bill as it is for the licensing process as a whole. That, too, seems to be addressed under Clause 71(4). Taking account of the advice of those experts and the representations received for interested parties should be a matter of common practice when making any decision on whether to allow an exemption. Where such expert advice is not followed, the reasons should be published, and, where an order is granted for an exemption, the licensee must get approval and/or notify, depending on the conditions in the order, the licensing authority, so that if it repeats or carries out that activity further, it needs to be addressed, hence our desire to strengthen Clause 71(2) and (3). We believe that it is critical to monitor and review the exempted activities to ensure that conditions are being met and that unintended environmental damage is not occurring. That will be particularly important in the early years of the new legislation. In the same group, Amendments 61 and 63 address a slightly different aspect of those anxieties that we, and others, have expressed before. We continue to think that the Bill does not adequately address them. It is surely absolutely explicit—as the Bill should be—that in records of any activity exempted activities should, equally, be recorded. The same sort of regime should apply; again, it is about an even playing field. At the very least, it should be compulsory for the licensing authority to be notified each time an exempted activity is carried out and for the proposed register of licensing information to include that, which is why we refer here to Clause 98. The amendment would ensure that licensing and planning authorities could, as a minimum, base decisions on a complete record of all licensable activities—including those exempted from licensing as such—if they happen to take place in the marine area at any time. That would allow them to properly determine the cumulative effects of those activities on the marine environment. The Minister will surely recall that, in their response to taking the Marine Bill forward after the Joint Committee’s report, the Government stated that they would be consulting extensively on their approach to exemptions. Options that could be covered include requiring a licence for exemptions, removing the requirement for a licence altogether and in-between options such as a simple registration scheme. Those were in the Government’s response to recommendation 29 from the Joint Committee. My noble friends and I believe that, to ensure informed decision-making at sea and to deliver sustainable development in the marine area, a notification and registration scheme is a minimum rather than simply an optional requirement. We would like it noted that the option proposed in the Government’s response to recommendation 29, which was simply to require a licence for exemption to be potentially obsolete because Clause 71(1)(a) allows the licensing authority to specify an exemption order that a licence will not be needed, is not adequate. On Amendment 63 to Clause 98, we believe that the statement in the Bill is frankly inadequate. The statement allows exclusion of information from the licensing register on the grounds that it, ""would be unduly prejudicial to any person’s commercial interests"." The term "unduly prejudicial" is certainly not clear or adequate to its task. Indeed, in this context its meaning could be interpreted very widely. For example, there are no limitations provided on what is, or what would not be, "unduly prejudicial". We believe that it would be more appropriate to use existing language, such as that in Regulation 12(5) of the Environmental Information Regulations 2004, which states that, ""a public authority may refuse to disclose information to the extent that its disclosure would adversely affect … the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest"." That is much more definite and does not weaken the Government’s case for confidentiality; it makes it clearer. I apologise for my lengthy explanation of this group of amendments, but they are, to our mind, extremely important. They are certainly so to the alliance of organisations—professional, quango and NGO—that have been looking at this part of the Bill. As I said at the outset on this group, it is extremely important that there should be a level playing field between the consideration of criteria for the licensing process and, equally, the consideration of all exemptions. I beg to move.