Marine and Coastal Access Bill [HL]

My Lords, as the noble Baroness and the noble Earl have suggested, this group of amendments covers two interrelated issues. First, it covers the test for when a marine plan need not be in conformity with a marine policy statement or a decision may be taken other than in accordance with the MPS or a marine plan. There is also the question of suspending the MPS or plan while it is reviewed. I recognise that we debated these matters in Committee; I shall deal first with Amendments 62 and 81, which would introduce new powers to suspend the operation of all or part of the MPS or a plan while it is reviewed. The noble Lords have again raised a question that we discussed in Committee, of the contrast between how this is dealt with in the context of national policy statements under the Planning Act, and how we would deal with these matters under the MPS or plans. I know the noble Baroness thinks that, under the MPS, we ought to have the power of suspension in the circumstances that she and the noble Earl have described. Our problem is the impact and the number of public authorities and decision-makers which would be affected by a suspension of the MPS or marine plan. We think that it would be vast in comparison with the effect on the IPC, a single body, of suspending a national policy statement. Our worry is that it would be unreasonable to expect such a wide range of public authorities, including local authorities, coastal regulators, enforcement bodies and others, to keep a constant check on which parts of a plan or policy statement were in effect at any given time. We do not accept that it is necessary formally to suspend part of a policy statement or plan in order to review or amend it, even if, as the noble Earl, Lord Cathcart, has suggested, we are aware that it has shortcomings. In that situation, we would expect the policy authority or marine plan authority to make it known to the relevant decision-makers that their policy on a certain matter had moved on or was being reviewed. This would constitute a relevant consideration for decision-makers and marine users without the need to suspend any part of the document. It also places the emphasis on the policy or plan authority to ensure that affected decision-makers are aware, rather than expect all decision-makers to keep constant vigilance. It might be helpful if I explain the difference we envisage between a review of a national policy statement and a review of the marine policy statement, which is directly linked to the question of suspension. The Planning Act contains detailed provisions on the review of national policy statements. Before beginning the review, the Secretary of State must consider whether circumstances have changed since the adoption of the policy statement in a way which was not anticipated at the time and whether the policy set out in the document may have been different had that change been foreseen. Following the review, the Secretary of State must make a decision on whether to replace or amend the national policy statement or to do nothing. In contrast, under this Bill, there is no formality connected with the review of the MPS. Therefore, the policy authorities are under a duty to review the MPS when they consider it to be appropriate, which essentially gives more flexibility. In practice, we would expect the review of the MPS to be a continuing activity for all the policy authorities to ensure that the MPS remains up to date and that the policies within it continue to contribute to the achievement of sustainable development in the UK marine area. This mechanism also enables the MPS to stay fully in effect while an amendment is being prepared. The progress of the preparation of that amendment will also be a relevant consideration, enabling decision-makers to take greater account of the emerging new policy as it moves towards finalisation and adoption. It certainly is not the case that we would expect flawed policy to continue to be applied without question, which brings me to the other amendments in this group relating to the relevant considerations test. In Committee, we discussed the circumstances under which decision-makers and planners might cite relevant considerations, and we found some common ground on the kinds of things which were likely to be relevant considerations. I also appreciate the noble Baroness's concerns that the word "relevant" does not equate to "significant". But we have problems with her amendments which we believe would impose a higher threshold under this Bill than has been used successfully for many years in terrestrial planning legislation. Let me be clear: the existence of other considerations which may be relevant to the decision at hand is not the end of the test. Those considerations must also indicate that a course of action other than that indicated by the MPS or plan is, in this case, more appropriate. What is more, the consequences of not following the policy statement or plan should also be considered as relevant in their own right. Again, I fully accept that the noble Baroness is right when she says that something may be relevant without being important. If that is the case, it would not be sufficient to indicate that the MPS or plan should not be followed. Decision-makers departing from the MPS or plans must give their reasons. I assure noble Lords that we will want to monitor this flexibility closely to ensure that it is being used and not abused. I give an assurance from the Dispatch Box that this matter will be closely monitored. I also make it clear that insignificant or trivial matters will not be enough to override the clear general principle that decisions should be taken in accordance with the MPS, or that plans should conform to the MPS. We are debating how precise the situation should be and how much flexibility should be left in guidelines. I know that the noble Baroness is worried about the guidance. We are committed to consulting and providing guidance on the issue. As I said in my letter, we will attempt, as far as possible, to address the relative weight that is to be given to potential relevant considerations. The problem is that the noble Baroness would much prefer this to be in the Bill but that is very difficult to do. There will always be case-by- case decisions. The relative weight of a consideration will depend as much on the circumstances of the case as the question of what is relevant in the first place. That is why I said that we would attempt to give some general principles and broad priorities in so far as they are not already set out in the MPS or plan. The matters that have been raised are very legitimate. I doubt that we can give the precision that the noble Baroness seeks, but I hope she will accept my assurance that this will be monitored to make sure that trivial reasons are not used in the way that is feared. Also, there is a significant difference between the MPS and the NPS as regards suspensions. The MPS is, in essence, a more flexible mechanism, which will allow changes to be made more quickly than they would be in relation to the NPS. I hope the noble Baroness and the noble Earl will accept that, in resisting the amendments, I very much understand the points that they are making. I hope I have given some reassurance.