Marine and Coastal Access Bill [HL]

That is why I did not want to fall into any traps. I am not saying that the noble Lord, Lord Tyler, was setting a trap for me, but I did not want to endorse the example that he gave, because we can all look to different examples to support our arguments. Our view, which informs the Bill’s provisions, is that, given the nature and importance of these matters, they are for Ministers to decide. Later on in our debate we will be talking about the hierarchy of decision-making. The debate is about information and how it comes to the Ministers who make decisions. The effect of Amendment A125 would be to require the appropriate authority to be sure that it is desirable to designate a site, rather than enabling it to do so when it thinks that it is desirable. That would impose an objective test, as opposed to the current test in the Bill, which is based on expert judgment and which gives more discretion to the designating authority. The reason for having discretion is that otherwise, the bar for designation might be raised too high. In earlier debates, we were taken to task over marine nature reserves. Only two have been established since 1981. Arguably, one reason is that very high hurdles were set for such designation. The purpose of Part 5 of the Bill is to provide the tools to protect areas so that they can recover their diversity and thereby enrich our seas. Some areas may represent a significant proportion of our network of sites. In those cases, it may not be realistic to require the appropriate authority to be sure that designation will contribute to conservation. We want the appropriate authority to be able to designate a site when it has good reason for thinking that the site should be designated. Amendments A142 and A144 concern consultation over the designation of sites. The provisions in Clause 116 have been designed to ensure, so far as reasonably practicable, that every interested person is consulted before a designation order is made. Clearly, public consultation requires a degree of judgment by the appropriate authority, because in practice it cannot always be certain that it has consulted in the best way. My department follows best practice on public consultation, and my department will be carrying out this consultation. It is important that the wording of the Bill enables the Secretary of State to reflect this objective. On rare occasions, an area may need urgent protection through immediate designation. Clause 116(10) and (11) therefore allow designation to take place on an interim basis without public consultation. Amendment A147 might restrict the power to designate urgently, so that it could be exercised only where there was definitely an urgent need. Paradoxically, this could weaken the protection of vulnerable and threatened sites, because the appropriate authority could only act when it was sure that the designation was urgently required. We have heard much in previous debates about the need to reflect the precautionary principle. One risk of the amendment is that it might leave the Secretary of State with too strict a test to operate to secure the urgent protection needed for an environment when information is incomplete. Clearly, the Secretary of State will not act lightly. He will need to take advice on the site from nature conservation bodies and from the MMO, and be clear in his mind that there is an urgent need to protect it. By the time enough evidence for certainty is produced, the features of the site might already have been damaged or destroyed. That is the reason that we want to allow the appropriate authority—in this case, the Secretary of State—to exercise some judgment. Amendments A187 to A192, and Amendments A194, A195 and A197, remove the words "the MMO thinks" from Clauses 126 to 129, which relate to the making of by-laws, emergency by-laws and interim by-laws. These words acknowledge that the MMO will need to exercise its expert judgment in deciding how best to publish them. The aim is to ensure, as far as is reasonably possible, that the details come to the attention of all interested parties. There may be different opinions on how best to achieve that, and we think it right for the Bill to reflect this. I assure the House that the MMO will operate best practice on consultation and on publication of its intentions; that the guidance that the Secretary of State issues to the MMO will be clear about this; and that the MMO must then do what it thinks is best. I hope that, in responding to these amendments, I have explained why the Bill is worded to allow certain subjective judgments, either by the Secretary of State or by the MMO. It does not give the appropriate authorities and the MMO complete freedom. They will need to act reasonably, and can be legally challenged through judicial review if they fail to carry out their functions in a reasonable way. That is sufficient protection against any arbitrary decision-making. I hope that I have made it clear to the noble Lord, Lord Taylor, that the MMO will have a valuable role in this process; and also that, as far as concerns decisions by the authority, it is right that Ministers should take them.