HL Deb 15 October 1981 vol 424 cc522-30

91 Clause 34, leave out Clause 34 and insert the following new clause:

"Marine nature reserves.

(1) Where, in the case of any land covered (continuously or intermittently) by tidal waters or parts of the sea in or adjacent to Great Britain up to the seaward limits of territorial waters, it appears to the Secretary of State expedient, on an application made by the Nature Conservancy Council, that the land and waters covering it should be managed by the Council for the purpose of—

  1. (a) conserving marine flora or fauna or geological or physiographical features of special interest in the area; or
  2. (b) providing, under suitable conditions and control, special opportunities for the study of, and research into, matters relating to marine flora and fauna and 523 the physical conditions in which they live, or for the study of geological and physiographical features of special interest in the area,
he may by order designate the area comprising that land and those waters as a marine nature reserve; and the Council shall manage any area so designated for either or both of those purposes.

(2) An application for an order under this section shall be accompanied by—

  1. (a) a copy of the byelaws which, if an order is made, the Council propose making under section (Byelaws for protection of marine nature reserves) for the protection of the area specified in the application; and
  2. (b) a copy of any byelaws made or proposed to be made for the protection of that area by a relevant authority,
and an order made on the application shall authorise the making under that section of such of the byelaws proposed to be made by the Council as may be set out in the order with or without modifications.

(3) Byelaws the making of which is so authorised—

  1. (a) shall not require the Secretary of State's consent under subsection (1) of section (Byelaws for protection of marine nature reserves); and
  2. (b) notwithstanding anything in the provisions applied by subsection (4) of that section, shall take effect on their being made.

(4) The provisions of Schedule (Procedure in connection with orders under section (Marine nature reserves)) shall have effect as to the making, validity and date of coming into operation of orders under this section; and an order made under this section may be amended or revoked by a subsequent order so made.

(5) The powers exercisable by the Council for the purpose of managing an area designated as a marine nature reserve under this section shall include power to install markers indicating the existence and extent of the reserve.

(6) Nothing in this section or in byelaws made under section (Byelaws for protection of marine nature reserves) shall interfere with the exercise of any right of passage by a vessel other than a pleasure boat, any functions of a relevant authority any functions conferred by or under an enactment (whenever passed) or any right of any person (whenever vested).

(7) in this section and section (Byelaws for protection of marine nature reserves)— enactment" includes an enactment contained in a local Act; local authority" means—

  1. (a) in relation to England and Wales, a county council, a district council, the Greater London Council or a London borough council;
  2. (b) in relation to Scotland, a regional council, an islands council or a district council;
relevant authority" means a local authority, a water authority or any other statutory water undertakers, an internal drainage board, a navigation authority, a harbour authority, a pilotage authority, a lighthouse authority, a conservancy authority, a river purification board, a district board for a fishery district within the meaning of the Salmon Fisheries (Scotland) Act 1862, or a local fisheries committee constituted under the Sea Fisheries Regulation Act 1966; vessel" includes a hovercraft and any aircraft capable of landing on water, and "pleasure boat" shall be construed accordingly.

The Earl of Avon

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 91, and I should like to speak to Amendment No. 92 at the same time. There are also two consequential amendments, Nos. 129 and 211. I should like briefly to recall what I said when this House was debating the new clause moved by my noble friend Lord Craigton on Report. My noble friend Lord Craigton has told me how sorry he is that he cannot be here today. I criticised that clause at the time as being deficient in a number of points of detail but primarily in its failure to pay sufficient regard to the views of the broad spectrum of the users of our coastal waters. I said at the time: It is essential to take into account the views of all sectors of the community with legitimate interests in our coastal waters and to allay the fears of, for example, our fishermen. I know that those who argue the case for marine nature reserves consider that these fears are unjustified and that conservationists and fishermen should be working together in the matter, to the benefit of both. Nevertheless, the fears are genuine and it will not be helping the cause of marine nature conservation at all if the very people whose goodwill will be vital to the successful operation of the reserves are quite unnecessarily antagonised". It is the view of the Government that in Amendments Nos. 91, 92 and 211 we have succeeded in taking in these various interests. In the other place my right honourable friend the Minister of State said: The premise is that marine nature reserves can be created only by the consent of all concerned". This is an assurance that I give to one or two interested parties now in the House. The Government amendments were framed accordingly. Thus, any agreed bylaws to be made in marine nature reserve will be made by whichever body is responsible for the activity in question. The NCC will be responsible for coordinating the by-law-making proposals, but they will make the by-laws only for those matters for which other bodies are not already the by-law-making authorities. All NCC by-laws will be subject to confirmation by the Secretary of State under the new provisions; other bodies' by-laws will be subject to confirmation under their existing powers.

Under the amendments there is no arbitrary limit on the extent of a reserve. There is the practical seaward limit of territorial waters and the natural landward limit of high-water mark. Here I should mention the wording of the main clause. It reads: Where, in the case of any land covered (continuously or intermittently) by tidal waters or parts of the sea". I fear that this formula could embrace occasionally flooded areas. I wish now to make it clear—just as it was made clear in the other place—that there is absolutely no intention of having a marine nature reserve extend above high-water mark.

But to return to the general question of the extent of a reserve, although there is no arbitrary limit on the extent, any proposal for the creation of a reserve will be subject to the right of objection; and objections can be made on the grounds of the proposed size of a reserve just as they can be made for any other reason.

Your Lordships, in considering these amendments, will doubtless be concerned above all about how they will work in practice. In the first place there will be precise procedural instructions. All power to create a reserve will vest in the Secretary of State. The full case and the full text of all by-laws must be presented to the Secretary of State by the NCC. The NCC must satisfy the Secretary of State that they have consulted all authorities involved and other appropriate responsible bodies before submitting the case. Not all by-laws will come from the NCC. Others, it might be agreed, should be made by such authorities as, say, the local sea fisheries committee under their own powers.

I should like to stress two very important points. First, the package—the description of the proposed reserve and the texts of all relevant by-laws—must be presented as a coherent whole so that anyone or any organisation who might be in any way affected by the creation of a reserve is able to see right from the start what restrictions are likely to be applied. Secondly, the Secretary of State must be persuaded that there is a good case for establishing the reserve. He will need also to be satisfied that the NCC have carried out full informal consultation with, for example, the local harbour, conservancy and other concerned authorities such as sea fisheries committees and with the appropriate sporting interests and I should add leisure interests; and that they have, where necessary, obtained advice from such expert bodies as the Natural Environment Research Council and the marine biological associations. Only if the Secretary of State is satisfied on all these counts, and that any important differences of opinion have been resolved, will he allow publication.

It would be unrealistic of me to sit down now without referring to the Government's consultation paper on marine nature reserves which was issued on 3rd February and which originally called for replies by 3rd August—though the closing date was later put back to the end of August following a letter to one of my ministerial colleagues. There was some feeling that the present inclusion of a marine nature reserve provision in the Bill had pre-empted the results of the consultation. However, the early replies helped to influence the wording of the clauses we now have before us; and when the full analysis of views is completed, it will be available to the Secretary of State to assist him in reaching his decision on individual proposals. I should like to take this opportunity of thanking all those who responded to our paper for their constructive suggestions.

It is the Government's opinion that we have responded in a meaningful way to all of the points raised in the Commons where these could be seen to improve the effectiveness of the marine nature reserve provision. I think noble Lords in this House will be equally satisfied on the response to their debates here. A provision which sought to override all other interests in the marine environment would have been worthless. Difficulties of policing and enforcement would have been so great that no worthwhile protection would have been secured. By setting out the framework within which all interests can work together we have provided the means for the successful creation of marine nature reserves which will really achieve what they set out to do. In matters such as this one cannot hope to satisfy everyone completely, but I do not believe anyone should now find the clauses unacceptable. I commend them to the House.

Moved, That this House doth agree with the Commons in the said amendment. (The Earl of Avon.)

As an amendment to Amendment No. 91:

Subsection (6), line 3, leave out from first ("of") to first ("any") in line 4.

9.20 p.m.

Lord Stanley of Alderley

My Lords, with your Lordships' permission, I should like to speak to Amendments Nos. 91A, 91D, 91E, 92A, 92B and 92C. I apologise for that long list. Originally I had down only one amendment, but parliamentary draftsmen thought otherwise. First, I should like to thank my noble friend Lord Avon for the preface he has made to this clause and his statement that it was the Govern ment's intention to listen to all the interested parties. Clause 34 as it stands affects pleasure craft, which include sailing boats. The three main effects on pleasure craft are as follows. First, it discriminates against them as opposed to fishing craft and commercial vessels. Secondly, it prevents their ancient right of passage. Thirdly, it adds a hazard to their safety at sea.

First, your Lordships will note that the Bill can forbid pleasure craft to enter a marine nature reserve but cannot do likewise to fishing craft or, indeed, commercial vessels. That is so despite earlier assurances in another place and, indeed, in letters to, among others, the Royal Yachting Association. There are no powers whatever to control fishing or commercial vessels entering a marine nature reserve. To give—and I hope that I am not out of order—the Department of the Environment the benefit of the doubt, which, as your Lordships know, is not really in my character, I think that the department misled themselves as well as me, the Royal Yachting Association and, indeed, their Minister on this particular point, because, like me, I think they found that Acts of Parliament are somewhat difficult to interpret.

Secondly, this clause prevents our ancient right of freedom of passage, but does not do likewise to fishing and commercial vessels, which can, I think, even anchor in a marine nature reserve. Let me make it clear that I am not asking for these craft also to be prevented from entering: I believe in freedom of passage for all, including sailing boats, which, after all, were here before motor-driven fishing craft or turbo-driven passenger palaces.

Thirdly—and I apologise to your Lordships if I sound like the parson at a marriage ceremony—although Clause 34(3)(a) ensures the right to enter a marine nature reserve in the interests of safety, it does not quite cover it, for the very existence of a marine nature reserve causing a diversion must delay passage, and safe passage, particularly in a sailing boat, is more often than not consistent with speed and timeliness. As an example, I hear rumours that there are plans to make a marine nature reserve off the South Stack and Llanddwyn Island in Anglesey. Any restrictions on rights of passage in those two areas would be outright dangerous, and no one wants to see unnecessary calls on our lifeboat, if only for the reason that there is no more room on our coxswain's chest for medals.

I hope that I have explained why I, in company with small boat sailors, am concerned over this clause. However, I am happy, very happy to tell your Lordships that a measure of agreement has been reached between all parties due to the help of the NCC but in particular to my noble friend Lord Avon, whose patient, careful and, indeed, painstaking listening to my at times somewhat basic use of the English language has been in keeping with what I believe your Lordships have come to expect of my noble friend throughout this Bill.

I am sorry to delay your Lordships, but I must now explain briefly the individual amendments in my name. Amendment No. 91A removes the yachtsman's objection to subsection (6), that it discriminates unfairly against the public right of navigation of pleasure craft only. As it stands, subsection (6), read in conjunction with subsection (2)(a)(i) of Amendment No. 92, would enable by-laws to be made and confirmed excluding pleasure craft only—not, for example, small commercial fishing craft—from a marine nature reserve. Amendments Nos. 91D and 91E are drafting amendments and relate only to interpretation. They are merely incidental to the other amendments.

After Clause 34, Amendment No. 92A affords an acceptable compromise.

Lord Melchett

My Lords, I am trying very hard to follow the noble Lord through all these As, Bs, and Cs. Am I right in thinking that Amendments Nos. 91A and B are the same amendment put in different ways, and that the noble Lord will be moving one of them but not the other'?

Lord Stanley of Alderley

My Lords, no. I am not moving Amendments Nos. 91B and 91C. I am talking to Amendment No. 91A, which is the one I referred to at the beginning of my remarks. To put the noble Lord's mind at rest, I am not moving Amendments Nos. 91B or 91C. I am now going on to deal with the next amendment, which is No. 92A. This amendment affords an acceptable compromise on the pleasure boat navigation issue, the right of passage. The new subsection (3)(a) continues to preserve the navigation rights of commercial vessels. Subsection (3)(b) enables by-laws to prohibit entry of pleasure boats into a marine nature reserve, but only as to particular parts of the reserve at particular times of the year. This could be a material inroad into the public right of navigation, but it preserves the ability of the Nature Conservancy Council, by by-laws, to exclude pleasure boats to the extent essential to the marine nature reserve and demonstrable to the Secretary of State, as confirming authority for the by-laws.

The last amendment, No. 92B—subsection (3), line 6—removes altogether a serious discrimination against pleasure boats, in that, under the Bill at present, by-laws could prohibit the discharge of substances from these boats alone. It is now agreed that existing legislation is best left to deal with any problems of this nature, notably the Control of Pollution Act. I must point out that there is no wish on the part of the Yachting Association to allow unnecessary discharges of waste. This cannot be done anyhow; it is quite pointless to put it into this Bill.

I am sorry to have taken rather longer than I normally take, but I hope that my noble friend will be able to assure me on how he envisages the by-laws working. In particular, although I accept that there is a comprehensive appeal procedure, going to appeal is expensive and, indeed, time-consuming. I hope that he can confirm that there will be very few of these marine nature reserves. For if my rumour of two in Anglesey is correct and if my sums are correct, which no doubt they are not, it would mean over 200 in Great Britain. I hope that my amendments commend themselves to your Lordships.

Moved, That this House doth agree with the said amendment to the Commons Amendment No. 91.—(Lord Stanley of Alderley.)

Lord Melchett

My Lords, I am most grateful to the noble Lord for putting me right as to which of the No. 91As, Bs and Cs he was going to move, and I now understand that. I assume that there should not be a full stop after the word "made" in Amendment No. 92A, because it should read straight on: Nothing in byelaws so made"— which is at the end of Amendment No. 92A, and then you go up to the top of page 18 on the Marshalled List: shall make unlawful (a) (b) and (c). Perhaps the noble Lord could think about that, and perhaps the noble Earl could confirm that I am right in my understanding of it.

I should like to ask the noble Earl, Lord Avon, a couple of questions about the amendment and perhaps also about the Government's amendments. Can he confirm—because it would be useful to have the Government's assurance—what the noble Lord, Lord Stanley, said, that it will be possible under existing legislation, to control discharges from pleasure boats? My understanding, from looking at debates in another place and at the consultations that went on, was that discharges from pleasure boats were mentioned in the Government amendment introduced in another place only because there was no existing legislation which covered discharges from pleasure boats. The noble Lord, Lord Stanley, said that is wrong, they are covered. Can the noble Earl confirm that for us?

On the more general point about marine reserves, I am sure that Lord Stanley's arithmetic is right, but that the conclusions he draws from a rather simple calculation are quite wrong. The North Wales coast is one of the very important areas in this country so far as marine conservation is concerned, and it is not possible to do a simple calculation on the basis of what might happen in North Wales and suggest that that is going to happen all over the rest of the country. It just is not the case.

I wish that the Government were planning to create 200 nature reserves in the next, however long they have in office, year or so, but I doubt whether we shall be lucky enough to see that. More seriously, I should like to ask the noble Earl what progress he thinks the Government will be able to make in the next 12 months. What plans have they to set up marine reserves, and could the noble Earl give us some indication of the sort of progress that will be made? I suspect that it is more likely to be one or two over the whole country, but I hope he could give me an estimate that would be a bit more optimistic than mine while being a good deal more pessimistic than Lord Stanley's.

I should like to ask the noble Earl one specific question on what he said were the Government's intentions concerning the way they will make these clauses work. They are of course entirely discretionary. It is up the Secretary of State as to whether or not he approves a marine nature reserve. I think the noble Earl said that the Secretary of State would not take any action unless everyone was agreed and any outstanding difficulties had been resolved by the Nature Conservancy Council. Does that mean that if one of the interests involved, however minor, let us say a particular water-skiing club, objected—a water skier would not think that was a minor interest, but it might affect only a small part of a proposed reserve, or be in the middle of a much larger proposed reserve where all the other interests, sea fisheries and so on, were happy with it—the one objection from the interest of that sort would prevent the NCC taking the proposal to the Secretary of State, and prevent the Secretary of State from considering it? That seemed to be the implication of the wording he used.

I should have thought it would effectively stymie the possibility of our having any statutory marine nature reserves except in the one or two areas where there are existing voluntary reserves at the moment. I would hope thst the Secretary of State would have some discretion with the Nature Conservancy Council to take forward proposals even if there were minor irreconcilable differences outstanding, and allow the Secretary of State to make a judgment on whether those were sufficiently important to prevent a reserve being set up or not.

9.33 p.m.

The Earl of Avon

My Lords, may I start by answering the question about the discharge of waste. If this is deleted from the Bill it would still leave discharges from pleasure boats liable, as in the case of all other craft, to control under existing primary legislation, in particular the Prevention of Oil Pollution Act 1971 and the Dumping at Sea Act 1974. With regard to the question of the rate of progress, I think that that is a slightly fast ball when we are still trying to turn the Bill into an Act, but to a certain extent it will of course depend on the Nature Conservancy Council's resources. In so saying, as the noble Lord, Lord Melchett, knows there are some marine nature reserves which are virtually of international importance, which I am sure will be covered as soon as is speedily possible.

May I come back to what I actually said. If the Secretary of State is satisfied on all these counts and that important differences of opinion have been resolved, then he will allow publication. Therefore, I do not think the situation is as gloomy as the noble Lord said, but it does leave it to the Secretary of State finally to decide that he is satisfied that everybody has been consulted, not necessarily that everyone is 100 per cent. happy. My noble friend Lord Stanley asked me to give some assurances, but I think in my opening remarks on the subject I covered the points that I think he had in mind, and I hope that on reflection he will agree with me on that point. Therefore, I am happy to move my amendment, if I may.

Lord Stanley of Alderley

My Lords, if the noble Lord, Lord Melchett, is asking me why it is so drafted, I hope he will forgive me if I repeat my original statement, namely, that my original amendments were Nos. 91B and 91C and the parliamentary draftsmen decided they did not quite like it that way and made a rather larger affair of it. I am afraid I have to admit that I do not really understand the ins and outs of the minds of the parliamentary draftsmen, but no doubt Lord Melchett does. I have the same details of the reply concerning the Oil Pollution Act as my noble friend. I am delighted that the noble Lord, Lord Melchett, likes the North Wales coast; we can at least agree on something in the Bill. I appreciate that this matter has taken a great deal of the time of my noble friend and of the Nature Conservancy Council, who have been extremely helpful in this matter.

On Question, amendment to the amendment agreed to.

[Amendments Nos. 91B and 91C to the amendment not moved.]

As an amendment to Amendment No. 91:

91D* Subsection (7), line 1, leave out from first ("section") to end of line 2.

Lord Stanley of Alderley

I beg to move, my Lords.

Moved, That this House doth agree to the said amendment to the Commons Amendment No. 91.—(Lord Stanley of Alderley.)

On Question, amendment to the amendment agreed to.

As an amendment to Amendment No. 91:

91E* Subsection (7), leave out lines 20 to 22.

Lord Stanley of Alderley

My Lords, I beg to move.

Moved, That this House doth agree to the said amendment to the Commons Amendment No. 91.—(Lord Stanley of Alderley.)

On Question, amendment to the amendment agreed to.

On Question, Motion, as amended, agreed to.