Marine and Coastal Access Bill [HL]

My Lords, I apologise to the noble Lord, Lord Kingsland; I looked pained as I had hoped that the amendments tabled by his noble friend would meet the point that he raised. Like the noble Lord, Lord Taylor, I entirely accept that the debate in Committee was very valid. The Government have clearly reflected on that. That is why we are supporting the three amendments spoken to by the noble Lord, Lord Taylor, to ensure that we have the right balance. We do not like the wording of the amendment of the noble Lord, Lord Kingsland, because we realise that—I think this is clear from our support of the amendments of the noble Lord, Lord Taylor—an explicit reference to sustainable development in the clause would aid consistency and clarity. The problem we have with the noble Lord’s amendment is that it would be inconsistent with wording elsewhere in the Bill, particularly in Clause 2. We seek to have consistency as far as possible. Amendment 121 states, ""in a way which is consistent with sustainable development"." The wording in Clauses 2 and 42 is, ""contributing to the achievement of sustainable development"." We might be dancing on the head of a pin as regards ascertaining the difference between those wordings. However, I am advised that, although in practice the wordings may not be very different, using different wordings may cause confusion. That is the reason for the grimace; it was nothing more substantive than that. I strongly support Amendments 121ZA, 121ZB and 121ZC in the name of the noble Lord, Lord Taylor, and appreciate the discussions that took place on them. Amendment 121ZA places in the Bill a requirement for IFCAs to take necessary steps, ""for the purpose of making a contribution to the achievement of sustainable development"." This requirement is consistent with the change that we have already made to Clause 2. Amendment 121ZB makes explicit the Secretary of State’s power to give IFCAs guidance on how they are to perform their duty under subsection (1). In addition, the amendment requires the Secretary of State to give IFCAs guidance on how they are to perform their duty under subsection (1), ""so as to make a contribution to the achievement of sustainable development"." Again, the wording of the amendment is consistent with the change that has been made to Clause 2. However, it is appropriate to have separate IFCA guidance as IFCAs will be different types of organisation from the Marine Management Organisation, and it would be difficult to write guidance that was appropriately tailored to both IFCAs and the MMO. However, clearly we wish the guidance to IFCAs as far as possible to be consistent with and based on the MMO guidance. Amendment 121ZC requires the Secretary of State to publish the sustainable development guidance given to IFCAs and it requires IFCAs to provide copies of the guidance to anyone who asks for it. The wording of the amendment is consistent with the change made to Clause 2, and the Government support that amendment. Amendment 120C, moved by the noble Lord, Lord Wallace, is an interesting amendment and has a number of elements. I will turn first to what might be described as the more technical parts of the amendment. It refers to the protection of the marine environment and the promotion of its recovery, so that, in every case, social and economic benefits must be balanced against this protection and promotion. However, I hope I can reassure the noble Lord that the reason why the clause as drafted says, ""need to protect … or promote"," is that it will not always be the case that the need is both to protect the environment and to promote its recovery. For example, in deciding whether to allow the continued dredging of the seabed for scallops, where as a result of such dredging the seabed is in fact barren, the duty would require IFCAs to balance the social and economic benefits of allowing scallop fishing with the need to promote the recovery of the marine environment. Protection of the seabed perhaps does not come into it, because there is nothing worth protecting. Likewise, in considering whether to allow fishing in a pristine marine environment, it is the need to protect that environment that is relevant, not the need to promote its recovery. Here is the assurance. None of this means that the two elements are mutually exclusive; in some circumstances both will be applicable. The fact that the word "or" is used does not alter the fact that IFCAs will need to take both factors into account in performing their duty under subsection (2)(b). My understanding is that legal drafting in these circumstances requires use of the word "or" to mean "and/or". However, to ensure that there is clarity on this point, I will amend the Explanatory Notes to make that clear. I hope that this will address the issue raised. The next part of the amendment would require the duty of IFCAs to protect the marine environment from, and promote its recovery from, the effects of such exploitation, to include the effects of past exploitation. I can again reassure the noble Lord that that is our policy intent, and we are clear that IFCAs will be under a duty to do exactly that under the current wording in the Bill. We are clear from the reference to promoting recovery from the effects of exploitation that exploitation must include that which has already occurred. Again, the scallop dredging example is relevant here: should IFCAs allow exploitation to continue, given the effects that such exploitation has had in the past on the seabed? It must be the past exploitation that is relevant. Again, I will make this clear in the Explanatory Notes, so that there is no doubt. On the second part of the amendment, in relation to the recovery of marine flora and fauna, the Bill already requires IFCAs to do exactly that. The duty placed on them includes in Clause 149(2)(b) a duty to protect the marine environment from, or promote its recovery from, the effects of exploitation when managing sea fishery resources within their district. The marine environment is defined in Clause 177 and includes flora and fauna which are dependent on, or associated with, a marine or coastal environment. As such, the clause as drafted requires IFCAs to promote recovery of marine flora and fauna. If a habitat has been damaged in the past by fishing but is still able to recover, the authority will have to weigh that in the balance when considering appropriate controls on fishing. It cannot take as a baseline the condition of the district from a certain date and ignore what it was like in the past. In terms of a duty to further conservation, I know there are those who think that such a duty should be added to help to drive the transformation of sea fisheries committees into inshore fisheries and conservation authorities. The Government do not agree. We discussed in Committee the conservation duties of IFCAs as set out in Clause 150. Our problem is that placing an explicit duty on IFCAs to further the conservation of the marine environment outside marine conservation zones would fundamentally alter and unbalance their primary duty to manage the exploitation of sea fisheries resources in a sustainable way. There is no question that IFCAs will have to balance the social and economic benefits of exploiting sea fishery resources with the need to protect the marine environment. In a sense, the discussion on the previous amendments was all about how we achieved that balance and whether we have the wording right in the Bill. All of these are pillars of sustainable development and are important considerations. The problem is that the noble Lord would be introducing a hierarchy; that is where we have the problem. Our position is consistent with that of the MMOs and is in line with Government’s wider commitment to the principles of sustainable development. In marine conservation zones, the duty to ensure that the conservation objectives are furthered will ensure that these sensitive areas are protected. However, it is fair to say that in other areas, it is fundamental that IFCAs are required to balance all the different aspects of sustainable development. That is why we have the problem with that part of the noble Lord’s amendment. In Committee, the noble Lords, Lord Wallace and Lord Greaves, tabled Amendment A234B to ensure that IFCAs would be able to make provision in by-laws to compel fishermen to use particular technologies which seek to reduce or prevent by-catch. During the discussion, I confirmed that the Bill as drafted gives IFCAs the ability to propose by-laws of that type. Clauses 151 and 152 provide IFCAs with the power to make any by-laws which are required for them to meet their duty of managing the exploitation of sea fishery resources in their districts. As I said to the noble Lord, Lord Wallace on two other occasions, I appreciate the desire to make clear that by-laws can be introduced to prevent or reduce by-catch. We will amend the Explanatory Notes to make sure that that is absolutely clear. Although I cannot agree with the noble Lord on the third substantive point of his amendments, I hope that on his other points I have reassured him that the Bill meets the purpose which he seeks.