HC Deb 15 March 2002 vol 381 cc1155-64

'(1) A person is guilty of an offence if he—

  1. (a) intentionally or recklessly damages or destroys any of the flora, fauna, or geological or physiographical features by reason of which a marine area is a marine site of special interest; and
  2. (b) knew that what he damaged or destroyed was within a marine site of special interest.

(2) Subsection (1) does not have effect in relation to a competent marine authority acting in the exercise of its functions.

(3) It is a defence for a person charged with an offence under subsection (1) to prove that the damage or destruction was the incidental result of a lawful operation and could not reasonably have been avoided.

(4) A person guilty of an offence under this section is liable—

  1. (a) on summary conviction, to a fine not exceeding £20,000;
  2. (b) on conviction on indictment, to a fine.

(5) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to that person in consequence of the offence.

(6) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

  1. (a) any director, manager, secretary or other similar officer of the body corporate; or
  2. (b) any person who was purporting to act in any such capacity,

he, as well, as the body corporate, is guilty of the offence and is liable to be proceeded against and punished accordingly.

(7) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(8) An offence under this section is for the purposes of conferring jurisdiction to be deemed to have been committed in any place where the offender is found or to which he is first brought after the commission of the offence.'.—[Mr. Meacher.]

Brought up and read the first time

Mr. Meacher

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this it will be convenient to discuss Government amendments Nos. 26 to 29.

Mr. Meacher

The Bill provides for no offences and the Government felt that that was an important omission. New clause 3 introduces a new offence of intentionally damaging or destroying the flora, fauna or geological or physiographical features of a marine site of special interest that make it of special interest, or being reckless as to whether the special interest would be destroyed or damaged. An offence is committed only if a person or body other than the competent marine authority damages or destroys the special feature, knowing that it is within an MSSI. The matter was raised by my hon. Friend the Member for Cleethorpes (Shona McIsaac) during the previous debate. We have fixed the fine at the level of £20,000. I did not say then that this is a new offence of intentionally damaging or destroying or being reckless. That is important. An offence would not be committed in other circumstances.

Examples of offences under the provision would include intentional reckless damage to or destruction of the special feature of an MSSI through the collection of material or direct impact by divers, the digging up of sea grass beds to put down moorings or breaking off and removing sea fans where the person knew that what he damaged or destroyed was within an MSSI. I hope that that reassures those who think that they may unwittingly and inadvertently fall foul of the Bill. We are talking about deliberate, reckless action.

Mr. Swayne

I take the Minister's point and congratulate him on the new clause, but I remind him that the provision includes a defence. What is the reason for that?

Mr. Meacher

That is a good point. I shall come to that thread of my speech a little later—in fact, now.

Subsection (3) of the new clause would provide a defence where the person can show that the activity that caused the damage was the incidental result of a lawful operation and could not reasonably have been avoided. The defence is intended to protect someone who acts without malice or recklessness and is carrying out a lawful operation, but as a result may incidentally cause the relevant effects.

Mr. Swayne

If the offence is reckless or with intent, how can it be a defence to say that it was not carried out with malice?

Mr. Meacher

If it is intentional action to damage or destroy flora or fauna, or if it is reckless, the defence will not apply. It is intended to protect people who do not fall into that category.

There is nothing new in the provision. It is consistent with the defence contained in section 4(2)(c) of the Wildlife and Countryside Act 1981—passed by a Conservative Government, whom we support in that respect—relating to the protection of birds and section 10(3)(c), which concerns the protection of schedule 5 wild animals.

The penalties in subsection (4) are consistent with the SSSI provisions. Other parts of the new clause are more technical. For instance, it explains what happens where an offence is committed by a corporate body with the consent, or owing to the neglect, of an officer of the body, and confers jurisdiction on the courts in the place where an offender is found or first brought to after the offence has been committed.

The precedent that we had in mind for the offence was section 28P(6) of the Wildlife and Countryside Act 1981 concerning SSSIs. That section was framed primarily to discourage actions, mainly by persons other than owners or occupiers of land, which were causing damage. A similar disincentive is required for marine sites.

I am aware of concerns that activities carried out in pursuit of the public rights of navigation and fishing would be assessed against the provisions of the new offence. However, I stress that the offence is committed only where a person intends to damage or recklessly damages the protected features of an MSSI. The person must have known that what he damaged was in an MSSI. The defence that I described applies where a member of the public is carrying out a lawful activity such as navigation, and damage to an MSSI-protected feature is the incidental result. However, he could not avail himself of the defence had there been reasonable steps that he could have taken to avoid the damage, but he did not take them. Ultimately, the court must make a judgment on the matter.

Mr. Randall

When we start talking about legal niceties it is as well for me to keep out of it, but I presume that if someone was warned that their action would be reckless and they carried on, there would be no defence.

Mr. Meacher

Yes. That would be regarded as an intent recklessly to damage, having been warned that such an action would be contrary to the provisions.

I should emphasise that the main purpose of the offence is to act as a deterrent. A fine of £20,000 should be a significant deterrent to individual acts of irresponsibility that result in deliberate or reckless damage or destruction.

I shall deal with the enforcement of the provision. I appreciate that the enforcement of nature conservation legislation in the marine environment is a difficult issue, especially as no one body is responsible for it. It is clear that the enforcement of marine offences requires clarification. That is why the Partnership for Action against Wildlife Crime, sometimes known as PAW, which is co-chaired by my Department, is setting up a sub-group to consider how marine enforcement can be improved. The Bill is not an appropriate vehicle to address that wider issue, and I take the point made by the hon. Member for Uxbridge (Mr. Randall).

In its interim report published last year, the review of marine nature conservation recommended that the Government should commission an exercise to identify best practice in marine enforcement both here and abroad. That will examine available methods of enforcement and common approaches concerning the relationship between regulators and sea users. The results of the review will be taken into account when looking more closely at the enforcement of the Bill's provisions.

Amendments Nos. 26 to 29 are principally designed to clarify the byelaw-making procedures in clause 6. Amendment No. 26 provides that the consent of the Secretary of State, or the National Assembly for Wales in respect of Wales, is needed for a nature conservation agency to make byelaws for the protection of MSSIs. That is consistent with section 37(1) of the Wildlife and Countryside Act 1981. The power to make byelaws will be a useful tool for agencies to use in trying to modify behaviour where it is causing damage to features of acknowledged importance. It will draw on the examination of enforcement in the marine environment to which I referred.

We thought it would be helpful to rectify this omission in the Bill. I commend the new clause and amendments to the House.

Mr. Randall

I thank the Minister for including the new clause. It would not have been appropriate for me to include measures such as fines in a private Member's Bill. I am grateful to the Government for dealing with that, because without proper deterrence such legislation is not necessarily worth the paper it is written on.

12 noon

Mr. Swayne

I merely want to dwell on the content of my intervention. I acknowledge that the Minister has done a service to the Bill by introducing the new clause, but I am concerned about the defence. I accept that my concern might be due to my limitations in understanding such legal matters, but it is worth reinforcing the point.

The offence is clear—it is intentionally or recklessly to damage or destroy flora or fauna if the defendant knows that what he has damaged or destroyed is within a marine site of special interest. It follows logically from that that the defence would be that the defendant did not know he was within a designated area or that he was not intentionally reckless in his activities. However, to include a defence that that might be an incidental consequence of an otherwise lawful activity undermines the nature of the offence.

Given that my experience of the sort of activities that we are talking about is limited and my expertise does not extend to maritime matters, it would be helpful if the Minister could provide examples to which the defence might apply. Perhaps he could give some examples of the activities that might destroy the maritime flora and fauna, but would otherwise be lawful and provide an adequate defence under the Bill. The new clause seems to let people off the hook.

People are annoyed and frustrated about damage to SSSIs on land when they see designation of those sites being completely ignored by developers or landowners and there is insufficient penalty to provide a disincentive. In framing the new clause, the Minister has dealt with that: he has provided an adequate disincentive through a fine. I should hate to see that undermined by this defence. I think that my argument has force, and I note from the body language of Labour Members with greater legal experience than I have that that view is not confined to me. I would certainly welcome greater clarification from the Minister.

Mr. Dismore

I should like to follow the points made by the hon. Member for New Forest, West (Mr. Swayne), because I suspect that my right hon. Friend the Minister has his mens rea jumbled up in this new clause.

Subsection (1) of the new clause sets out a clear offence of intentionally or recklessly causing damage, but I am concerned about the defence, which seems more appropriate to damage caused negligently. The new clause provides an unnecessary defence. Let us suppose, for example, that a ship was in distress at sea in a storm and the ship's captain dropped anchor. I presume that that would be a lawful operation. If it caused damage, it could be said that the damage could not reasonably have been avoided. When the ship's captain dropped anchor, he was not intentionally trying to destroy the flora or fauna under the sea bed, but was trying to save the lives of the people on the ship; nor was he acting recklessly.

It is difficult to imagine circumstances in which someone intentionally or recklessly damages the sea bed or anything appertaining to it, yet at the same time is engaging in a lawful operation that could not reasonably have been avoided.

Further to the point made by the hon. Member for Uxbridge (Mr. Randall), a warning would be wholly irrelevant. One could issue a warning that what someone was about to do would intentionally or recklessly cause damage and that person could knowingly go ahead and do it, but he would still have a defence under new clause 3(3). Thus any warning becomes otiose. My right hon. Friend the Minister should consider whether subsection (3) is needed. I believe that it would be needed only if the offence were intentionally, recklessly or negligently to damage the sea bed. In those circumstances, I see a need for the defence, but as matters stand it drives a potential coach and horses through the offence.

I refer now to the corporate liability. I am pleased to see that we are lifting the corporate veil and going to the directors, managers and secretaries of a company if they are behind the game. As the Minister knows, I have been keen on this concept in respect of corporate killing, on which I have yet to win the argument. However, it is important. I am concerned about the reference to neglect on the part of the director, manager, secretary or so forth, because we have the mens rea of neglect while the offence itself has the mens rea of intention or reckless behaviour. That seems to be contradictory. If a manager intentionally or recklessly consents to or connives in the offence being committed, so be it, but why should a negligent director face a greater risk of penalty than the person causing the offence?

We must have another look at this provision and either make the offence one that includes negligence with knowledge, which it would be easy to do, in which case the defence would stand, or remove the defence and redraft the director's liability to bring it more in line with the offence.

There is a series of different interlocking issues which do not quite add up and which I regret to say would probably provide a field day for my professional colleagues, were I still practising as a solicitor. I still have a practising certificate, but I am pleased to say that I am not taking cases now. I have more important things to do.

Mr. Heath

The hon. Member for Hendon (Mr. Dismore) has covered some of the ground that I intended to cover. There are internal contradictions in the offences laid out in new clause 3. I welcome the fact that the Government have introduced the new clause, but it needs a little revision, because is hard to reconcile the offence in subsection (1) with the defence in subsection (3).

I suppose that it is conceivable that somebody might find himself with a snagged net and believe that to retrieve the net he must cause intentional damage, which might however be held to be incidental to a legal operation.

Mr. Dismore

rose —

Mr. Heath

I am about to be interrupted by a member of the legal profession, who will tell me why I am wrong.

Mr. Dismore

In those circumstances, the motivating factor behind the act would be not to cause damage but to release the net. One could not say, therefore, that the intent would be to cause damage. It would also he difficult to bring the action within the definition of recklessness, so I am not entirely with the hon. Gentleman on that point.

Mr. Heath

I am grateful to the hon. Gentleman, who has more experience of such matters than I have. I was merely suggesting that I could conceive of a circumstance in which that might apply. I agree with the hon. Gentleman's basic hypothesis that, given that the offence is termed intentional or reckless damage, the prosecuting authority must establish that the damage was intentional or reckless in order to achieve a prosecution. Clearly, any action that is accidental or incidental does not fall within that category.

My concern is almost the reverse: the provision under subsection (1)(b) and the need for the prosecuting authority to establish that the defendant knew that the damage or destruction was within a marine site of special interest. That is difficult to prove to the satisfaction of a court. Unless a specific notification has been given, it is hard to prove that the person at that time knew that he was in an MSSI.

We have had similar debates in other capacities, and I have always preferred the absolute offence against mitigating factors, rather than the requirement that the burden of proof be put on the prosecuting authorities to establish not only that the damage was intentional or reckless but that the person knew about it. Had the provision been phrased in such a way that the person might reasonably have been expected to know that he or she was in an MSSI, that would be a different matter, because there would not be an absolute need to prove that the person was in possession of that fact when the offence was committed.

The issue of whether the wording is right is a minor quibble, although it will need to be tested at some stage, and may be tested in another place. I broadly agree with the Minister's proposals.

I also agree with the point made by the hon. Member for Hendon about negligence by a body corporate. If such a body has simply not given clear enough instructions to its staff, why should it necessarily be guilty of an offence? If an instruction has not been issued, that does not constitute a deliberate act of intentional or reckless damage or destruction.

Some guidance on byelaws would be of assistance. I strongly support a legal framework for the protection of MSSIs, but it must be fair to all those who might be affected. Prior consultation on the substance of the byelaws with particular regard for the interests of those who use the seas for various purposes is important. We should consider not only the needs of the fishing industry at large—which are important—but the way that byelaws might affect low-impact fishing methods: for example, the mackerel handliners, bass longliners, cove shell fishermen or even the few remaining mudhorse fishermen on the mudflats of Bridgwater bay.

Those activities would not have a significant effect on conservation areas but could be caught by byelaws that were unintentionally framed too widely. I hope that proper regard will be paid to those interests in the drawing up and confirming of byelaws.

Mrs. Helen Clark (Peterborough)

My remarks will cover some familiar issues, but as it is important that these views are fully recorded, I beg the indulgence of the House if some of my points have already been made.

I am pleased to be able to contribute to the debate on this important Bill. I spoke in favour of it on Second Reading and had the honour of serving as a member of the Standing Committee that considered it. It is clear from the many new clauses and amendments that have been tabled that my right hon. Friend the Minister for the Environment and the hon. Member for Uxbridge (Mr. Randall)—the Bill's promoter—have worked extremely closely together since those proceedings, and I congratulate them on their constructive approach.

I also want to highlight the wide support for the Bill throughout the country. Anyone who thinks that this is a side issue is not living in the real world. Many Members on both sides of the House have received letters from constituents, whether our constituencies are land or sea-bound—Peterborough is certainly not sea-boundߞasking us to support the Bill. That demonstrates once again the deep concern for the marine environment.

I was pleased to receive a letter from the Wildlife and Countryside Link—its representatives might be in the House today—which is an umbrella organisation for environmental groups that express support for the successful consideration of the Bill.

Government new clause 3 is a very welcome addition, as we have stressed. It will mean that anyone found intentionally or recklessly damaging or destroying any of the interests of an MSSI, when they knew that what they had damaged or destroyed lay within such a site, could be guilty of an offence. However, I hope that my right hon. Friend will be able to clarify a few issues in relation to the new offence.

In making my first point, I am traversing familiar ground. The Government propose to add a defence, but, like the hon. Member for New Forest, West (Mr. Swayne), I am concerned about that. The provision states that, where the damage or disturbance was the incidental result of an otherwise lawful activity, the person causing the damage would not be guilty of an offence. The SSSI protection measures provided under the Wildlife and Countryside Act 1981—to which my right hon. Friend referred—do not provide that defence because fishing is a lawful activity. There is a public right to fish and we should protect it. It is unclear why such a defence is needed for marine SSIs or how it will work in practice in the marine environment.

12.15 pm

The marine environment is subject to the exercise of public rights—more so than on land. One example is the public right to fish. It is possible that the exercise of such rights could result in intentional or reckless damage to a marine SSI; for example, weighing anchor within a lophelia coral reef—although I have never tried that. Will my right hon. Friend clarify whether damage from the exercise of such public rights would be considered an incidental result of an otherwise lawful activity, even if the person carrying out the activity had been informed that it was damaging a site? Will he also confirm whether someone who exercised a public right, but had been informed that in doing so they were damaging, or would damage, a marine SSI, could not then rely on the incidental result of a lawful operation defence to escape censure?

I shall now cover some new ground. The second difference between the offence in the 1981 Act and new clause 3 is that the Act refers not only to intentional and reckless damage or destruction but also to disturbance of notified fauna. The issue of reckless disturbance of marine wildlife is close to my heart, as hon. Members on both sides of the House are aware. In February 2000, I introduced the Marine Wildlife Protection Bill—with the able support of the Whale and Dolphin Conservation Society and other non-governmental organisations—to tackle the problems of harassment of, and disturbance to, marine wildlife by motorised marine leisure vessels and jet-skis.

My Bill would not only have enabled local authorities to protect marine wildlife and promote safety by prohibiting the use of motorised marine leisure vessels in coastal areas, but would have made it an offence to disturb marine wildlife recklessly or intentionally. Since then, the Government have passed the Countryside and Rights of Way Act 2000, with which I was proud to be involved. The Act was a significant and welcome step forward for nature conservation. As a result of it, there is an offence of intentional or reckless disturbance of whales, dolphins, porpoises and basking sharks—something which my Bill also sought to address. That was an important change, on which the Government can build in this Bill by extending that provision to other wildlife.

One of my major concerns when I introduced my Bill was the level of hidden disturbance, and indeed persecution, of marine wildlife. I had hoped that this Bill would face up to those problems and tackle them head on. Therefore, I respectfully ask the Minister to clarify why, as a departure from the offence in the Wildlife and Countryside Act, disturbance of fauna is not included in the offence proposed by new clause 3.

Mr. Meacher

There are some concerns about the new clause, although I hope to allay them and obviously we shall consider further what has been said. First, the hon. Member for Oxbridge—[Laughter.] That was a Freudian slip. The hon. Member for Uxbridge said that he was grateful for the Government's avidity; I thank him for that.

The hon. Member for New Forest, West (Mr. Swayne) discussed further the concerns that he adumbrated earlier and asked for examples of where the defence might apply and why it was necessary. During preparation of the Bill, various persons and organisations have asked us what its impact would be in terms of the commission of offences. The most obvious examples are the fisheries industry and the public engaging in recreational navigation. We believe that it is useful for a defence to be made explicit in the Bill because it assures those persons and organisations of its parameters.

I entirely understand the point made by my hon. Friend the Member for Hendon (Mr. Dismore) that it would be otiose to make the defence explicit. The hon. Member for Somerton and Frome (Mr. Heath) said that either an offence is committed under subsection (1) or it is not, and asked why, if it is not, we need a defence, because the defence would be that no offence had been committed under subsection (1). I also understand that argument. However, the fact that we were approached by the fisheries industry and some others for assurance persuaded us that the inclusion of the defence was justified.

I explained how the defence would operate. Perhaps I should add that if a person were charged, they would certainly need to prove that the defence was available to them in those circumstances, but I repeat that the clause is consistent with provisions in other nature conservation legislation, which, as far as I am aware, operates without problems. However, I am sure that further clarification of the provisions of the clause will be made in the guidance that we intend to introduce; I am glad to give the hon. Member for Somerton and Frome an assurance on that point.

My hon. Friend the Member for Hendon raised the issue of corporate liability and the negligence of directors. Directors are liable alongside the corporation only when, in the management of the corporation, they have consented to the offence, connived in committing the offence or been neglectful about whether the corporation committed the offence. The negligence of directors can lead to their becoming criminally liable along with the corporation, where it leads to the corporation's committing a criminal offence. I believe that I heard the hon. Member for Somerton and Frome say that he wanted us to consider again whether we should include negligence with knowledge. Perhaps I should discuss the matter further with him afterwards. I am quite prepared to consider the matter in the light of what he says.

I pay tribute to my hon. Friend the Member for Peterborough (Mrs. Clark) for introducing a Bill on a similar subject and for her long-term commitment to the marine environment. She asked whether the right of anchorage of vessels would be removed by the clause. The customary right of anchoring would of course be subject to the provisions of the clause in the same way as the public rights of fishing and navigation would. I do not see why a person who drops anchor knowing that he or she is in an MSSI and intentionally or recklessly damages a special feature by reason of which it has been notified—such as a coral reef, which she mentioned—should be immune from prosecution. Of course the defence in subsection (3) would be available, where the criteria for the defence were met, but I would obviously expect the defence to apply where it was necessary for a vessel to drop anchor because of force majeure, as was stated in the debate, or because it was in distress, or for the purpose of rendering assistance to persons or ships in danger or distress.

My hon. Friend also asked whether we could extend the provisions to include the disturbance of wildlife, which was the thrust of her Bill. Of course, this is a private Member's Bill, not a Government Bill. Although the disturbance of wildlife is a relevant and interesting phenomenon, it raises further, considerable issues, such as how it should be defined, and I do not think that the Bill represents the channel to deal with them.

Finally, my hon. Friend asked why disturbance of fauna is not included in the offence under the Bill. I should point out, as I have already, that the Bill is promoted by the hon. Member for Uxbridge. Given the amount of Government involvement, hon. Members might think that it has become a quasi-Government Bill, but it is a private Member's Bill.

As I said earlier, the Government feel strongly that a criminal offence of intentional or reckless damage should be incorporated to strengthen the protection offered by the Bill, and that that offence should be relevant and proportionate to the marine environment. Similar provisions were introduced in the Wildlife and Countryside Act 1981 and apply when a specific threat is posed by disturbance of certain species. Disturbance of marine species is more relevant to species-protection legislation rather than to site-based mechanisms in the Bill. My hon. Friend correctly drew attention to a gap that remains, but I do not think that we can resolve the issue in considering the Bill. Again, on that basis, I hope that, although there are doubts about the operation of the defence, those legal provisions will be acceptable to the House. They seem to have general support.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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