Marine and Coastal Access Bill [HL]

My Lords, in moving Amendment 102B I shall speak also to the amendments grouped with it. When we debated Clauses 88 and 103 in Committee, there was concern that the clause as drafted would not enable the environment to be restored to the condition it had been in before the harm or interference had been caused. If this interpretation were correct, it would mean that the clauses would not achieve the intention that we had agreed was appropriate, which was that people should be made to put right the harms that they have caused. I agreed to look at these clauses and have tabled these amendments to ensure that harm or interference can be properly addressed. Clause 88 enables the enforcement authority to issue a remediation notice to make someone remediate the harm they have caused where they have carried out a licensable activity and that activity has involved the commission of an offence under Clause 82(1). Perhaps the person breached the conditions of their licence and so damaged the environment, or perhaps they did not have a licence at all when they should have had. Clause 103 gives the licensing authority power to take remedial action. It enables the authority to carry out any works, whether these are to protect the environment or human health, or to prevent interference with legitimate uses of the sea, where a licensable activity has been undertaken without a licence. This power already exists under Schedule 10 of the Food and Environment Protection Act. My amendments amend Clause 88 to allow restoration of the environment under a remediation notice as well as providing for compensatory steps elsewhere if remediation at the site of harm itself is not reasonably practical. In my aims on enforcement under the Bill, I have been clear that enforcement action should be proportionate to the offence. Remediation notices should be proportionate to the scale of the harm to the environment, human health or interference to other legitimate uses of the sea. Financial gain by an offence should not be targeted by use of a remediation notice—other provisions under this part, such as variable monetary penalties, allow such gain to be addressed. In some cases, the costs of restoration to the condition the environment was in prior to the harm or interference, even if technically possible, may be disproportionate to the benefits to be achieved. The ability to order remedial steps not directly connected to the harm itself reduces the likelihood of remediation notices being successfully challenged, on the basis that they are unreasonable according to all the circumstances of the case. I have also tabled Amendments 108A and 108B to Clause 103. This clause uses the same sort of wording as in Clause 88 and suffers from a similar risk of being interpreted in a narrow sense—that the authority may only carry out works to protect what is left of the site, if anything, after the harm has been caused, rather than allowing it to put right the damage, or to prevent further harm, as intended. In addition to being able to take steps to protect what is left of the site of damage, I want authorities to be able to carry out remedial works for the purpose of preventing or minimising, or remedying or mitigating, the effects of harm to the environment or human health, or interference with legitimate uses of the sea. Clearly, the ability to prevent further harm is a desirable objective, which, while it is unlikely to have frequent application, would be a noticeable gap in our provisions if we did not seek to plug it. The power to take protective or preventive works may be needed at the site of damage or elsewhere, such as in an area to where contaminated material has been transported. However, I have not extended the power to take compensatory steps away from damaged sites. We anticipate that the enforcement authority will need to use the power under Clause 103 instead of Clause 88 only where there is a particular need to do so; for example, where the offender cannot be readily identified. The extended nature of Clause 88 as amended is not needed for Clause 103, since we would expect the enforcement authority to use Clause 103 to take positive steps to address the harm caused, rather than to seek to compensate for it. I hope that noble Lords will accept that we have listened carefully to the debate in Committee and that my amendment meets the main points and concerns that were raised. I beg to move.