Marine and Coastal Access Bill [HL]

This has been a useful exploration of this part of the Bill. I say to the noble Lord, Lord Taylor, that I have also read a number of letters on these points from statutory conservation bodies. I hear what the noble Lord says about their fears that, once the first phase of the work has been carried out, they will no longer be listened to by the public authorities. I hope I can allay those fears. Clearly, we believe that the statutory conservation bodies have a vital role to play and I pay tribute to their work. By way of introduction, Clauses 121, 122 and 123 set out the roles and functions of public authorities and statutory conservation bodies. There is a different aspect in each clause. It is important to draw the distinctions between them, because these answer some of the points raised by the noble Lord. The purpose of Clause 121 is to place a general duty on each public authority to exercise its functions in a way that best furthers the conservation objectives for a marine conservation zone. Where the public authority thinks that exercising its functions is likely to conflict with its duty to further site objectives, it must inform the statutory conservation body. Clause 122 is more specific. It sets out that where a public authority thinks that an individual activity may significantly hinder the conservation objectives for a marine conservation zone, it must notify the statutory conservation body, which will then have 28 days to provide its advice. This clause essentially deals with matters on a case-by-case basis. I make it clear that a statutory conservation body need not wait to be asked for its advice. It can give it at any time under Clause 123(2) and all public authorities are required to have regard to that advice. My experience of the statutory conservation bodies, from my time at Defra, suggests that statutory conservation bodies are well able and well prepared to give such advice. Turning to the proposed amendments, I start with Amendments A167, A173 and A174. These concern the duty placed on public authorities to carry out their functions in a manner that best furthers, or least hinders, the conservation objectives for a marine conservation zone. Subsection (2)(b) of Clause 121 recognises that, from time to time, public authorities will be unable to carry out their functions in a way that furthers that conservation objective. In such circumstances, the most that we can ask is for those authorities to least hinder the objectives. We cannot ask public authorities to do what is impossible. Furthermore, paragraph (b) makes clear to public authorities that if they cannot further the conservation objectives, they must still carry out their functions so as to do least harm. One example might be a case where the Environment Agency does work to build or maintain coastal flood defences. While it may not be possible for the agency to further the conservation objectives of a marine conservation zone, it may be able to choose not to carry out its operations at the time of year when there are large populations of migrating birds, or during fish-spawning. Building on this, Amendments A173 and A174 seek to relax the protection for a marine conservation zone by allowing a public authority to permit a potentially damaging act when the public benefit outweighs the risk of environmental damage. I accept that these are probing amendments, but there is a risk here. This part of Clause 122 says that once a site has been protected, the hurdle that needs to be jumped before permitting damaging activities is much higher than elsewhere. If an area is precious, we may permit damaging activity, but only if there are no alternatives; it is clearly for the greater public good; and we secure equivalent environmental benefit elsewhere. It is important to have that kind of safeguard. Amendments A168, A169, A170 and A172 focus on the relationship between public authorities and statutory conservation bodies. Essentially, the changes proposed by the amendments would require public authorities to wait for the advice of the statutory conservation body before carrying out any of their functions that might hinder the achievement of conservation objectives. We want public authorities in the marine environment to work closely and co-operatively with the statutory conservation bodies, but we are wary of introducing very bureaucratic procedures unless there is a good reason to do so. The clause is designed to ensure that if a body thinks that exercising its functions in general will cause problems for the marine conservation zones, it must inform the statutory conservation body. In effect, it must start a conversation about the problem. It gives the statutory conservation body the chance to address the problem and provide its advice. If the problems are difficult to resolve, this will take much longer than the 28 days foreseen in the amendment. One can envisage circumstances in which problems might be very difficult to resolve, given some of our previous debates on some of the tensions that are inevitable in such designation. The risk is that such advice might then be of limited value. However, this will not leave the statutory conservation bodies without a proper role in specific cases, or leave conservation zones unprotected. That is why we have Clause 122. Where, for instance, specific activities raise a problem, the relevant public authority must inform the statutory conservation body and give it 28 days to respond before taking a decision. Where the problem is defined and discrete, and specific countermeasures can be taken, the statutory conservation body has ample opportunity to provide its advice. That is why we draw a distinction between the two clauses and why 28 days is appropriate in one case but not the other. Amendment A172 would remove the significance test from the requirement to inform the statutory conservation body. I would argue that it should remain. The significance threshold performs a vital role in ensuring that public authorities and the statutory conservation bodies are not overwhelmed with notifications. Requiring the public authority to wait 28 days before authorising all applications would be an unnecessary level of caution and bureaucracy, and would not be proportionate. As I have said, the Bill already allows the statutory conservation bodies to provide advice and guidance where they have concerns about the collective effect of a number of insignificant activities. Clause 123(1) provides for conservation bodies to give advice and guidance, which public authorities are required to have regard in exercising their functions. The conservation bodies may choose to target their advice as they see fit, perhaps to specific sectors or issues and to the points where it will have the greatest influence possible. We think this provision is important; we do not want to lose this flexibility; we think that Amendment A178 might risk that by seeking to oblige statutory conservation bodies to give advice and guidance on all matters listed in Clause 123(1), either in relation to a particular marine conservation zone or marine conservation zones generally. It is likely that that advice will normally cover the range of subjects listed in subsection (1), but it will clearly not be necessary to address all possible matters in every case. It is sensible to retain flexibility and to rely on the judgment of the statutory conservation bodies as to the need for and content of a particular piece of advice and guidance. The record of statutory conservation bodies would give me confidence that this flexibility was sensible. Amendment A171 would mean that public authorities notified only the statutory conservation body, not the MMO or Scottish or Welsh Ministers, where appropriate, when a criminal offence had occurred that might or would significantly hinder the conservation objectives for a marine conservation zone. However, it is important that these bodies, which are responsible for enforcement, are made aware of damaging acts so that they can take any enforcement action necessary. There is a persuasive argument for retaining paragraph (a) of subsection (4). I say to the noble Baroness, Lady Miller, that it is also vital that the statutory conservation bodies report to the Secretary of State on any results from monitoring marine conservation zones. Those bodies are already required to give advice to the Government, so the Secretary of State can report to Parliament on progress on designating a network under Clause 120(1)(a). Therefore, I understand the reason for the amendment, but we think that the issue is already covered. Amendment A175 is on the definition of damage relating to the roles of public authorities and statutory conservation bodies. "Damage" is already defined in Clause 122 as including, ""the prevention of an improvement"." What could "improvement" mean in the context of a zone’s objectives other than movement towards or reaching them? That is certainly how we understand the word "improvement", so we think that we have covered the concerns addressed by this amendment. I hope that I have given some assurance to noble Lords. I certainly want to reiterate the point raised by the noble Lord, Lord Taylor, at the beginning of this debate that this is not a situation whereby the statutory conservation bodies will be heavily involved in the process of designation but will not be seen to have a continuing role. They will have such a role, and it will be an important one.