Marine and Coastal Access Bill [HL]

This carries on our debate about whether we have the balance right and whether there are sufficient sanctions contained in the Bill to ensure that we do everything we can to prevent damaging or reckless behaviour. I fully accept the importance of this. I will start with the amendment tabled by the noble Baroness, Lady Young. Essentially, it widens the scope of the general offence by removing the defences in Clause 136(1). I understand where she is coming from and why she is concerned about the effect of the defences. If we were to go down the route that she suggests, the problem is that the person would be deemed to have committed an offence even if they could not have been expected to know that a feature was protected, and even where no significant harm occurred. Our concern is to get the balance right. We clearly want there to be deterrents so that there are sufficient sanctions and sufficient confidence that when prosecutions are taken, they will be successful if the evidence is there. We are concerned about well-intentioned and responsible people finding themselves unwittingly in breach of the law. That is the reason for the defences as they are set out. We do not want to criminalise people whose behaviour is unlikely to have discernable conservation impact. Giving examples is dangerous, as I have already discovered tonight. Clause 136(1)(b) is an important matter and states: ""at the time of doing the act, the person knows, or ought to have known, that the feature to which the act relates is in, or forms part of, an MCZ"." This part of the clause relies on what a person actually knows or what it is reasonable to expect the person to know in the light of the activity they are carrying out. If the person knows that a feature is part of a marine conservation zone and intentionally damages it, clearly they should be guilty of the offence. In other cases, it may well be that a responsible person would take certain steps to inform themselves about any restrictions on any activities they wish to pursue in an area. It is reasonable, for example, to expect a person to inform themselves about the conditions of a marine licence under which they are operating. It would also be reasonable for a person who was diving to collect shellfish to check whether there were any restrictions on what shellfish might be collected from the seabed in an area. This is not a carte-blanche defence. It is entirely reasonable to expect a responsible person to take steps to inform themselves. An example of what might not be caught by this defence might be damage caused because relevant information was not readily available, although it was sought about protected features or restrictions on activities in appropriate places. On the question of reckless damage, I find myself in sympathy with the point the noble Baroness raised, which is fortunate since I used that word perhaps unguardedly a moment or two ago—indeed recklessly. I agree that people who know about a marine conservation zone but simply do not care if they damage it should be subject to this offence. I will take the amendment away and give serious consideration to it before Report because I think the point has been well and truly made. Amendment A203 extends the general offence to include intentional disturbance of animals. This is an important amendment linked to Amendment A222, which provides a definition of disturbance. I do not disagree with the point put forward by the noble Lord, Lord Taylor: the question is how to deal with it. The Government’s approach is that because the kind of activity that might cause disturbance will differ between sites, it is better dealt with on a case-by-case basis. The Bill allows for potentially disturbing activities to be controlled through by-laws, which have the advantage of being easier to enforce and provide greater clarity for sea users. Disturbance might be caused, for example, by people straying too close to a group of animals through innocent curiosity or as part of an organised wild-life watching trip, or perhaps through using machinery which emits a loud noise or is fast-moving, such as our favoured jet skis. Where a site is considered vulnerable to such disturbance, the Bill allows for by-laws to be made. We believe that these can control the doing of anything which will disturb any object, animal or plant within a marine conservation zone. Why do we look to by-laws? Because they can be readily adapted to deal with a specific threat and will often be a more effective means of protecting a site than a general offence. For example, where a community of seabirds is vulnerable to disturbance during a particular time of the year, a by-law could prohibit particular activities in a specific area during that time of the year. In that way, restrictions will be kept to the minimum necessary. They will be expressed in ways which are clearly understood by everyone and it should be clear whether or not an offence has occurred. The definition of disturbance proposed in the noble Lord’s amendment would make it difficult to prosecute offenders. The measure of noise which may disturb a plant or an animal, or the extent to which an organism has been stressed by it, can be difficult to prove. There are other aspects to disturbance which we think make it better controlled through by-laws. A single act of disturbance is likely to have a temporary impact and . may become a problem only when combined with other sources of disturbance over a period of time. Therefore disturbance is different in character from the kind of intentional damage that we consider merits the introduction of a general offence. That is why it is probably better approached through by-laws, which can be much more specific and almost on a case-by-case basis. I recognise that this is very important but we think that we have got the hierarchy right. We understand the point about recklessness and that we need some defences, but we do not intend these defences to be used in a way that enables wrongdoers to get off, if I can put it that way. I hope it is clear, from the way I have explained the paragraph (b) part of the defence, that it is not good enough to plead simple ignorance. There are expectations that go alongside that defence.