Marine and Coastal Access Bill [HL]

My Lords, in moving Amendment 84A, I will speak also to Amendment 84B, because I see them very much as alternative amendments. Amendment 84B is in the same terms as the amendment that I proposed in Committee. I indicated then that it was, in essence, a probing amendment to try to identify the extent—if any—to which the Scottish Parliament had a power to legislate to impose a duty of biodiversity on public bodies in the same manner as it had for issues in terrestrial Scotland and the seaward limit up to 12 nautical miles. Could it do so for what we have come to know, lovingly, as the offshore region, which extends from 12 to 200 nautical miles? It was clear from that debate that the current devolution settlement did not provide for the Scottish Parliament to be able to do that; nor, indeed, did the agreement that was reached between the United Kingdom Government and all the devolved Administrations on how to proceed with regard to marine management. The structure, which we have now discussed many times, is one of executive devolution, rather than legislative devolution, hence the very specific power that would be given under Amendment 84B. It would give the Scottish Parliament a power—if it wished to exercise it—that would allow Ministers to incorporate a general duty of biodiversity on public bodies when bringing forward the marine plan for the Scottish offshore region. It is recognised, too, by the Scottish Government that their competence is limited in this. The Scottish Cabinet Secretary for Rural Affairs and the Environment, Richard Lochhead, said as much to the Liberal Democrat spokesman on marine issues, Liam McArthur, when the matter of the legislative consent motion was before the relevant committee of the Scottish Parliament in January of this year. Marine Scotland is the executive arm of Scottish Ministers and has responsibility for marine science, planning, policy development and management. Amendment 84A would enable the United Kingdom Parliament to confer on public bodies a responsibility for biodiversity. Amendment 84B would enable Marine Scotland, in taking forward its responsibilities, to have that power if the Scottish Parliament so wished. The wording used is in the Nature Conservation (Scotland) Act 2004, which, as I have indicated, extends at the moment only up to the 12-mile limit. It is clear that executive devolution will not confer powers on Scottish Ministers, but imposing this duty on public bodies has certainly been supported in Scotland. Under the previous Administration in the Scottish Parliament, the Advisory Group on Marine and Coastal Strategy was set up to look at the whole issue of the marine environment and it published its report in March 2007. It had a number of working groups and work streams and, in its contribution to the report, the work stream relating to marine nature conservation said: ""From the marine nature conservation perspective, the main requirement is that measures relating to nature conservation can easily be integrated across administrative boundaries, including the boundary currently placed at 12 nautical miles … and that these can be integrated into measures for the wider regional seas (however these are defined)"." It went on to recognise that because the devolution settlement is as it is, that would require Westminster legislation; that it was not at the hand of Scottish Ministers. In its concluding paragraph, the report of the work stream states: ""While it is not specifically a Scottish competence, and thus outwith the remit of AGMACS, we also support the proposal to extend species protection measures equivalent to those in the Wildlife & Countryside Act 1981, as amended by the Nature Conservation (Scotland) Act 2004, into the zone from 12 to 200 nautical miles"—" I understand that that has been done under subsequent regulations— ""and to extend the ‘biodiversity duty’ on all public bodies and office holders into this zone, and would commend the definition of that duty in the Nature Conservation (Scotland) Act"." So there has been a recommendation that the duty should be extended into the offshore. The Scottish Government, in their consultation White Paper, Sustainable Seas for All, indicated that they wished to see the biodiversity duty on all public bodies. The paper states: ""If Scottish Ministers achieve further devolution of nature conservation in the offshore beyond 12nm, the Scottish Ministers would propose extending the scope of the duty to apply to all public bodies exercising functions in the offshore area. If further devolution cannot be agreed we would discuss with the UK Government how best to take forward this proposal"." It is clear that only a limited devolution has been agreed which does not allow Scottish Ministers to do this. The amendments offer the House a choice: we can either devolve that power to the Scottish Parliament or, because it is stated in the devolved settlement that this Parliament would take the lead in this area, we can, perfectly properly, legislate to impose that duty, which quite clearly enjoys support north of the border. When the matter was debated on 23 February, the Minister stated in his reply: ""On biodiversity, the simple and straightforward answer is that, although we do not use the wording used by the noble Lord, we believe that we have covered the matter in the Bill. In Clause 121, there is a duty on public bodies, including those in the Scottish offshore area, to further the conservation objectives of designated sites. Moreover, public authorities must have regard to advice from the statutory conservation body, which, for the offshore region, is the Joint Nature Conservation Committee".—[Official Report, 23/2/09; cols. 15-16.]" The point is that the duty is not solely for designated sites; it is a general duty for public bodies when exercising functions in relation to the offshore area which is set out in more detail in the Nature Conservation (Scotland) Act and incorporated by reference in the amendment. Scottish Environment LINK told me recently that it does not believe that the present legislation goes far enough, nor is it competent for the Scottish legislation to cover it. It is concerned that there is a gap in the arrangements which it is the purpose of this amendment to bridge. I hope that the amendment will commend itself to your Lordships’ House. Both Governments are keen to ensure a marine ecosystem where nature conservation is taken forward. A gap has been identified; I do not believe that this legislation addresses it; and the purpose of my amendment is to ensure that a proper biodiversity duty is put on public bodies so that the boundary line at 12 nautical miles becomes meaningless. It seems a nonsense that a duty exists up to a certain point but not at 12.5 miles from the coast. The amendment seeks consistency right up to the 200-mile limit. Therefore, I beg to move.