Marine and Coastal Access Bill [HL]

This is a very interesting debate. I shall start by describing how the Government see the two clauses and then come on to deal with the substantive points of the argument in the debate. I readily acknowledge that it is complex but it is consistent with the approach we have taken to give proportionate powers to the enforcement authority. Clause 88 enables the enforcement authority to issue a remediation notice to make someone put right the harm they have caused where they have carried out a licensable activity. The person might have breached the conditions of their licence and so damaged the environment or they might not have had a licence at all. We want to make sure that they can be made to remediate that harm to the environment or human health or the interference they have caused to other legitimate uses of the sea. Clause 103 provides the power of the licensing authority to take remedial action. It enables the authority to carry out any works, whether they are for the purpose of protecting the environment or human health, or for preventing interference with legitimate uses of the sea, where a licensable activity has been undertaken without a licence. This is not a new power; it already exists under the Food and Environment Protection Act. Both FEPA and the Bill make provision for costs to be recovered. The difference is that under this Bill, the mechanism by which this is achieved is the service of a remediation notice, requiring the person on whom it is served to pay the costs of work undertaken under Clause 103. I understand that the power under FEPA is rarely used, but the Marine and Fisheries Agency tells me that it has found the threat of taking remedial action a useful tool in previous years. As I said earlier, we are modernising the enforcement sanctions available for marine licensing offences under this Bill. The currently limited range of sanctions available—advice, warnings or prosecution—leads to what is considered to be a compliance gap where the licensing authority may have clear evidence that an offence has been committed but the seriousness of the case is such that it is judged not to be proportionate to prosecute it in the criminal courts. While the licensing authority works hard to ensure that the further harm or interference caused can be avoided or removed, this gap is unfair to the operators who abide by the law. They bear the costs of keeping to licence conditions while those competitors who do not save those costs. The aim is for the enforcement authority to issue a remediation notice to make sure that those who hope to profit by acting illegally can be made to put right the wrongs they have caused. I will come on to the practicality of putting right everything that has been wrong; I accept that it is a very important point. Amendments A49, A50 and A51, which we have already discussed, remove the word "serious" from the test for issue of a remediation notice. That is important because it means that the enforcement authority will be able to issue a remediation notice where the lack of a licence or a breach has caused harm to the environment and human health or caused interference to other legitimate uses of the sea, not just when serious harms have been caused. This enacts a commitment that the Government made following pre-legislative scrutiny. Through Amendment A104, we have stipulated that only a licensing authority, and not an enforcement officer, will be able to issue a remediation notice. This is a safeguard, because it means that consideration of the measure, which might be required, will need to be carefully assessed. We would expect the enforcement authority to consult other expert bodies and those affected by the harm as to what actions might be required for remediation. We accept that this is an important issue. We want to be able to address offences proportionately. There may be instances where an operator has inadvertently breached their licence, caused harm or interference, and is keen to work with the enforcement authority to put right that harm or interference. We want to encourage that, and we think that issuing a remediation notice detailing the steps that need to be undertaken might be all that is needed to bring the operator back into compliance. As to what sort of remedial steps might be necessary, it very much depends on the case. That is why it is difficult to be precise. It might simply be a case of undoing what has been done, such as, for instance, removing a jetty that had been built without a licence. It might be impossible to undo what has been done. I readily accept that in some circumstances, it might not be possible to put right what has been damaged by such action. For example, if a habitat has been damaged or aquatic life killed, habitat construction or fish stocking elsewhere might be the appropriate remediation. It depends on the circumstances of the case. We would expect the enforcement authority, with expert advice, to assess whether the work has been done to a satisfactory level. If the offender was not capable of undertaking the work, the enforcement authority could use a remediation notice to recover the cost of the work. Remediation notices are intended as a proportionate way to get someone who has caused harm to put that right. I emphasise that the enforcement authority would look at all the circumstances of the case, and only after detailed examination of the case—with consultation with interested parties, including the offender—would it finalise the steps to be taken under the notice. The licensing authority will need to publish its enforcement policy, and its development of this policy will have to consider the nature of the offence and what it is appropriate to take into account about the offender when deciding to issue a notice. If the licensing authority decides that the behaviour of the operator is so poor that the business operation is called into question, it will have other methods at its disposal. It could, for instance, suspend, vary or revoke the licence. It could issue a variable monetary penalty and prosecute the offence if that was proportionate enforcement action in that case. As for costs, which noble Lords mentioned, remediation measures might entail, as I said, undoing what has been done. If a structure was built without a licence, it would be straightforward to require that the structure be taken down in a sensible and sensitive way. As the noble Lord, Lord Kingsland, pointed out, restorative action might simply not be possible in some cases. In such cases, remediation works designed to compensate for the damage may be ordered. I have already referred to the possibility of fish stocks being developed elsewhere. I am also advised that remediation might mean, for instance, running an education campaign to inform the public about a protected area. I readily accept that we have little experience of the costs of restoration of marine diversity damage in the UK. There is an example of work that has been undertaken to mitigate the impact of human activities on marine ecology in the development of codes of conduct. The estimated cost of one code of conduct, aimed at the full range of activities in a bay, was about £150,000. That included developing the code; publishing it on sign boards, laminated cards and leaflets; and reporting and monitoring over a five-year period. There is some experience of creating artificial reefs, whereby a structure fulfilling the functions of a natural reef is deployed on the sea bed. I understand that this is one strategy used to promote fishery enhancement, create new habitat or restore damaged habitat. There are examples where this has been done in the UK, including in Poole Bay, where the estimated cost was £200,000. There are other examples. In Plymouth, a wreck was deployed as an interest feature for recreational divers at a cost of £600,000. Remediation will ideally mean that what has been put wrong is put right. In some cases, as the noble Lord, Lord Kingsland, in particular, pointed out, other remediation steps might be taken. I turn to subsections (8) and (9). In particular, subsection (9) needs to be seen in the context of Clause 66, which sets out the general principles for determining an application. As far as possible, remediation means putting right what has been done wrong. But if that is not possible, it means doing other things that will at least make amends for what has happened.