Marine and Coastal Access Bill [HL]

In moving Amendment A201, I shall speak also to Amendments A202 to A206. These refer to the clause about offences of causing damage to the protected features of MCZs. I look forward to reading Hansard tomorrow because I thought that it was a slightly Freudian moment when the Minister talked about reckless damage to the features of an MCZ. It may be a Freudian slip that indicates that he is willing to accept some of the amendments being put forward today. I shall speak first to Amendment A201. We should welcome the idea of a general offence of causing damage to the protected features of MCZs, but as drafted you would need to prove all three elements beyond reasonable doubt. That is going to be a pretty tall order. Did the person actually commit the prohibited act without lawful excuse? Did he know or should he have known that the feature to which the act relates is part of an MCZ, and has the act significantly hindered or will hinder the achievement of the MCZ conservation objectives? There are two difficulties here. It is going to be hard enough trying to prove that someone committed the act out at sea, and you also have to prove that he knew or ought to have known that the feature was in an MCZ. That will be extremely difficult because the zones will not have notices erected at their entrances stating, "You are entering an MCZ". I cannot think of legislation governing any other walk of life that I have had experience of where ignorance of a particular protection or designation is a suitable defence. Under many other pieces of legislation, to say, "I am sorry, but I didn’t know it was against the law", would on many occasions have both the lawyers and the police laughing as you said it. That is a real stumbling block. Equally difficult is the provision that it has to be demonstrated beyond reasonable doubt that the act has significantly hindered or will hinder achievement of the conservation objectives. The reality of the marine environment is that, if you wait long enough, there is a strong possibility that what is wrong in it will ultimately recover. There are some examples where that is not the case, such as the Newfoundland cod stocks, but we could see hours of legal argument as people try to demonstrate that, in the long run, the conservation objectives would be met and therefore their act has not significantly hindered them. I am concerned that we are putting three tests into place that will make it almost impossible to prove a case beyond reasonable doubt. My other amendments are Amendments A202 to A206, and I am delighted to be joined by the noble Lord, Lord Taylor of Holbeach, on these. We ought to learn from a history of failure in the protection of SSSIs in terrestrial conservation. The offence as currently drafted applies only to deliberate damage, which was the approach of the Wildlife and Countryside Act 1981—indeed, this Bill is threatening to come perilously close to being almost as long in terms of our debates. The reality was that very few prosecutions were brought under the Act because it was abominably difficult to prove deliberate damage. You have to get inside someone’s head and prove intention, which is notoriously difficult, and sites continued to be damaged. The Countryside and Rights of Way Act 2000 changed all that by strengthening the provisions for SSSIs to cover reckless damage and indeed disturbance, which is the point of Amendment A203. Disturbance can be a real cause of damage both in the short and the long run for wildlife. So far as SSSIs were concerned, the Natural Environment and Rural Communities Act 2006 also strengthened the protections by removing the requirement to prove that a person who caused the damage to an SSSI knew that it was so designated, reflecting the provisions in Amendment A201, which talk about knowing when you are in an MCZ and causing damage. We have ample evidence from the terrestrial environment that an offence that will apply only to deliberate damage, which does not include disturbance, and will exempt people from blame if they can demonstrate that they did not know that it was an MCZ will be a pretty weak element in the Bill. Since the protected features of MCZs are the absolute fundamentals of the conservation elements of this Bill, I believe that the Government need to strengthen these provisions considerably. I beg to move.