Marine and Coastal Access Bill [HL]

My Lords, in moving Amendment 62, I shall also speak to Amendments 74, 75, 81, 87 and 88. The first of these amendments is similar to an amendment to which I spoke in Committee, so I will not explain the detail of the clause, but I will say, as I said then, that it is lifted from Section 11 of the Planning Act, which provides for a suspension of the policy statement in the event of an unanticipated change in circumstances. In Committee, the noble Lord, Lord Davies of Oldham, said that there was a distinction between the marine policy statement and the national policy statements in that national policy statements are to be used primarily by a single body, the IPC: and indeed primarily, but not I think exclusively, in decisions on a small number of projects. I accept the differences in those circumstances, but it is important to have a mechanism for suspension as well as for review, so I could not resist putting down Amendments 62 and 81, which would apply to marine plans in order to cover—I am sorry, but no pun is intended here—all the ground. In Committee, the Minister was rightly concerned about certainty for everyone who is involved in the process, including applicants, and in terrestrial planning. We have always acknowledged that that is important, but should certainty prevail if it is the wrong certainty—in other words, if circumstances have changed and made it the wrong certainty? My Amendments 74, 75, 87 and 88 are about the criteria that apply to decisions: criteria for departing from a policy. We debated at some length "material considerations"—the term that is used in terrestrial planning—and I am grateful for the Minister’s letter, which I received after Committee and which deals with what the Government consider to be an equivalent provision, "relevant considerations": the term that is used in the Bill. I appreciate that there will be guidance, as the Minister’s letter was careful to explain, on what the relevant considerations will be and which considerations should or should not be regarded as relevant. Guidance cannot alter primary legislation, however, so my concern that something that can be relevant but not significant has not been allayed. The Minister’s letter says that the context would make matters clear, and goes on: ""I believe that it is clear from the drafting that insignificant or trivial matters will not be sufficient to override the general principle of decisions being taken ‘in accordance with’ the MPS/plan: the considerations before the decision-maker must actively indicate that the decision should not be taken in accordance with the plan. I would not consider it sufficient simply to say, for example, that there was ‘another option available’"." I think that was dealing with some of the drafting in my amendment in Committee. He said: ""The guidance we produce will obviously make this very clear"." I am not reassured by that; Clause 49(5) requires "conformity", which I assume is general and not a strict conformity. How, therefore, can guidance shift the emphasis as he suggests? I thought that the next paragraph of his letter rather made my point for me. It said: ""We will aim as far as possible to give an indication in that guidance of the relative weight that should be given to different kinds of considerations. However, as the debate recognised, this will not always be possible because the ‘relevance’ and significance of different considerations will depend to a large extent on the decision in question, the site affected, and the potential impact of the ‘relevant consideration’ on both the project in question and the future possibility of achieving the plan’s objectives. The consequences of the departure from the plan will also need to be borne in mind as a ‘relevant consideration’ in their own right"." He ended by referring to having enough "flexibility" for the real world. I want that too, but not so much flexibility that we lose the prize of certainty. I remain concerned that there will be too much reliance on guidance getting it right when, if there is a crunch, reference will be made to the primary legislation. Guidance will be referred to, but will not override what is said in what will be the Marine and Coastal Access Act. I beg to move.