Marine and Coastal Access Bill [HL]

My Lords, this is an important amendment. I want to preface my introduction by saying that there has been considerable comment in the Commons about the extent to which this House played a full part in the scrutiny of the Bill. We had the benefit of the Joint Committee on pre-legislative scrutiny, but when this House got down to the real task of examining the measures before us there was real and constructive scrutiny. Our colleagues in the other place were appreciative of the work done at this end. It was at times suggested that our debates had been somewhat protracted, and I remember that at times 11 days in Committee seemed rather protracted and that one or two contributions may have been a little lengthier than they needed to be. However, we presented to the other House a Bill that had been carefully scrutinised and that assisted their deliberations and made them more succinct. It helps us in considering their amendments because they are focused on issues that we considered fully and their views are of the greatest moment. There was considerable debate about the relationship between marine conservation and commercial fishing. We all know the importance of that debate. I know that it is several months since we were at full tilt on the issues, but we gave them much consideration. This area was one on which the other place focused and played a significant part in considering. The Government amended the Bill to future-proof it in anticipation of reform of the common fisheries policy. Of course we need to do that. I commend Amendment 4 and Amendment 17, to which I am also speaking, because that is their purpose. The principal amendment adds a new subsection (4A) after Clause 141(4). The new provision gives a power to the Secretary of State to restrict or remove the sea fisheries defence in Clause 141(4). We cannot at present remove the sea fishing defence because to do so would leave us in clear breach of our European obligations under the common fisheries policy. However, we wish stronger recognition of our environmental objectives to emerge from the forthcoming reform of the common fisheries policy. The amendment sets us up to be able to take advantage of that as and when it occurs. It gives us the necessary flexibility to deal with potential changes to the common fisheries policy. The amendment enables us to restrict or remove the sea fishing defence. An important feature is that it is a one-way ratchet. Once restricted, we could not then broaden the defence again. The Secretary of State, who is responsible on behalf of the UK for negotiations in Europe on fisheries matters, will exercise the power. However, as the Parliamentary Under-Secretary of State said at Report in the Commons, "““any exercise of the new power would be made in close consultation with Scottish and Welsh Ministers, the industry, the MMO, inshore fisheries and conservation authorities and many others””.—[Official Report, Commons, 26/10/09; col. 113.]" The 13th report of Session 2008-09 from the Delegated Powers and Regulatory Reform Committee of this House highlighted the amendment so that the House might seek the Government’s explanation for the delegation of a power to remove or restrict a statutory defence to a criminal offence. I acknowledge that it is unusual to take a power to remove a defence at a future date, but the circumstances we find ourselves in are unusual. There are certain instances where criminal offences have been created through secondary legislation, not least in implementing European legislation. The Government have considered the options available to address the concerns that have been raised in the debate. We need a flexible mechanism that allows us to deal with the unpredictable outcomes of the next and future reforms of the common fisheries policy. We need that flexibility. We believe that the amendment is the most straightforward way to ensure that we can refine the defence following any reform, and meet the concerns that have been raised. The alternative would be no amendment to the Bill and the necessity to use future primary legislation to restrict or remove the sea fisheries defence. It is unclear whether and when such an opportunity might arise. Of course, we are quite clear as to when any opportunity for such primary legislation would occur, so it is prudent that we build into this Bill the necessary flexibility to take account of changes to the common fisheries policy. I hope that the House will be reassured by the associated amendment, Amendment 17, to Clause 310(7). This ensures that the power will be exercised by means of a statutory instrument subject to affirmative resolution. Clearly, that power is important, and should therefore be exercised only through the affirmative resolution procedure, after being considered by both Houses. It is important that the exercise of that power is subject to debate in both Houses because its effect would be to amend primary legislation to expand the scope of what is criminal activity. That mechanism guarantees that the determination of what is criminal activity, which is of course more usually a matter for primary legislation, will be done only with proper parliamentary scrutiny both in the other place and in this House. I hope the House will recognise that we have been concerned to meet the necessary future flexibility against changes in the common fisheries policy to which future Governments are bound to be committed, in circumstances where we all know why the common fisheries policy will need changes. I hope it will be recognised that we are seeking flexibility, but flexibility governed by the affirmative resolution procedure, so that any changes effected will be considered by both Houses of Parliament. Accordingly, I beg to move.