HL Deb 16 May 2003 vol 648 cc478-86

1.46 p.m.

Read a third Time.

Clause 1 [Amendment of procedure for dealing with applications for harbour orders]:

[Amendment No. 1 not moved.]

Clause 2 [Amendment of procedure where harbour revision orders are made by the Secretary of State of his own motion]:

[Amendment No. 2 not moved.]

Lord Brooke of Sutton Mandeville moved Amendment No. 3: Page 3, line 18, at end insert— ( ) After section 14(2)(b) (Ministers' powers, on application of harbour authorities, or others, to make orders for securing harbour efficiency, &c) of the 1964 Act, insert "and (c) unless the appropriate Minister is satisfied that the making of the order will not prejudice the conservation of natural beauty, flora, fauna, geological or physiographic features and all other natural features."

The noble Lord said: My Lords, I declare an interest as vice-chairman of the All-Party Parliamentary Group on Conservation and Wildlife. That declaration applies to my speeches on the subsequent groupings. I owe an explanation to the House as to why I did not move Amendments Nos. 1 and 2. The RSPB's general support for the principle of the Bill was quoted by the noble Lord, Lord Berkeley, at Second Reading on 5th March, as reported at col. 916 of Hansard. He quoted from a briefing document of the RSPB dated February 2003. But the document ran to three pages. The RSPB had subsidiary concerns that are reflected in these amendments.

While wishing to see the Bill streamlined, the RSPB believes that the balance was perhaps tilted too far towards the interests of the ports. The first two amendments were intended as paving amendments for the remaining four that I shall move. I am grateful to the noble and learned Lord, Lord Lloyd of Berwick, for a letter that I received yesterday evening about an analogous case in which he was interested, and that had not been quoted in earlier debates on this Bill. I was, and am, persuaded that the first two amendments were—I seek language as neutral as I can manage—inimical to the purposes of the Bill. I therefore did not feel that I could move them as paving amendments. But the concern about imbalance in the Bill that they sought to imply remains and underlies the remaining amendments. I hope that some reassurances can be expressed in responses on behalf of the promoters to the three remaining groups.

The RSPB had the opportunity to meet the promoters of the Bill during the recent Recess to discuss their concerns. But the Recess was not the easiest time during which to organise amendments for Report, which took place immediately after our return.

Amendment No. 3 would allow the Secretary of State to make a harbour revision order for the purposes of furthering the conservation of marine wildlife and the wider marine environment. The current situation, in brief, is that the Harbours Act 1964 allows the Secretary of State to give duties and powers to harbour authorities in relation to the environment. But, in practice, the Secretary of State can do so only if these relate to economic considerations. It is therefore very difficult to employ the environmental duties, and that is what my amendment seeks to address.

In my view, the making of a harbour revision order with the purpose of furthering the conservation of marine wildlife and the wider marine environment need not be incompatible with making such an order in relation to economic considerations. I hope that I might be reassured that the Government recognise that this is the case and will look sympathetically on harbour revision orders which can deliver wide benefits in the future.

The rationale for Amendment No. 4 to facilitate the making of a harbour empowerment order for environment and nature conservation purposes is exactly the same as that behind Amendment No. 3 which related to harbour revision orders. I beg to move.

Lord McIntosh of Haringey

My Lords, I remind the House of the Long Title of the Bill. It is a Bill to, Amend the procedure for dealing with applications for orders under section 14 or 16 of the Harbours Act 1964 and for making orders under section 15 of that Act; and for connected purposes". These amendments have been drafted and redrafted in such a way that formally and technically they cannot be excluded from consideration by your Lordships' House. In the view of the Government, they are not in their intention—as explained by the noble Lord, Lord Brooke—relevant to the Bill before us and should not have been introduced. In particular, the amendments should not have been introduced at Third Reading.

The amendment is not connected with the procedure for dealing with applications for harbour orders in its intention, as explained. Amendment No. 3 to Section 14 addresses the difficulty but still seeks to widen the scope of a Bill entirely about procedures by introducing policy considerations. I do not believe that it is necessary, nor does it fit well.

The amendment requires the appropriate Minister to be satisfied that an order under Section 14 of the 1964 Act will not prejudice conservation and related interests. Schedule 2 to the 1964 Act lists over 20 purposes for making these orders—some could not conceivably prejudice conservation. One, indeed, expressly refers to an order conferring additional conservation functions on a harbour authority. Others relate, for example, to the procedures of a harbour authority committee or the authority's power to levy charges.

There are substantial environmental constraints on port development—for example, in the Habitats and Environmental Impact Directives. Section 14 already requires the appropriate Minister to be satisfied that, the making of the order is desirable in the interests of securing the improvement, maintenance or management of the harbour". That test allows all the interests mentioned in the amendments to be addressed, but in a balanced way, along with other factors such as the future viability of a port, its trade and its local community. That is how sustainable development policy works. It takes full account of economic, social and environmental considerations. The Government are fully committed to their conservation obligations, but it would not help to unbalance decisions on harbour orders—as these amendments would—at the expense of other important considerations.

Lord Faulkner of Worcester

My Lords, I am most grateful to the noble Lord, Lord Brooke of Sutton Mandeville, for not moving Amendments Nos. 1 and 2. Had he done so, I would have had to say to your Lordships that these would have effectively wrecked the Bill in its entirety and would have defeated the main purpose that lies behind it, as explained by my noble friend Lord McIntosh.

It has denied me the opportunity of sharing with your Lordships the story of the Whitehaven harbour commissioners and the bond-holders. But my noble friend Lord Berkeley referred to that at Second Reading and, indeed, it was one of the reasons for the introduction of the Bill; namely, the ability of a tiny number of objectors effectively to hold to ransom a desirable planning application.

I have not had the opportunity to speak to my noble friend Lord Berkeley about what the noble Lord, Lord Brooke of Sutton Mandeville, said in terms of the RSPB briefing for Second Reading. But I have looked again at the paragraph to which the noble Lord referred. My noble friend Lord Berkeley said: 'The RSPB has no objection to mounting strong opposition to port development proposals where we believe that the environmental damage which they will cause cannot be justified, but equally we have no wish to see unnecessary constraints and costs imposed upon the ports industry. That is why we support the Harbours Bill"".—[Official Report, 5/3/03; col. 916.] As I say, I cannot put to the noble Lord the allegation that that is perhaps slightly selective reporting, but those words are in direct quotes. Certainly, I believe that my noble friend said those words in good faith at Second Reading.

I cannot add to what my noble friend Lord McIntosh said about whether Amendments Nos. 3 and 4 come within the scope of the Bill. My advice is that they fall outside and are not appropriate for this very narrow piece of legislation. I therefore hope that the noble Lord, Lord Brooke of Sutton Mandeville, will be willing to withdraw the amendment.

Lord Brooke of Sutton Mandeville

My Lords, I thank the Minister and the noble Lord, Lord Faulkner, for the manner in which they have responded to these amendments. I was seeking to indicate at the beginning that all my amendments are of a probing nature. We have received a very comprehensive reply from the Government. I am grateful to the noble Lord, Lord Faulkner, for what he said.

I take the points that the Minister made about these issues being perhaps outside the spirit of the Act, although he was kind enough to say that they were within the letter of the Bill in terms of consideration by your Lordships' House. In that respect we have had the opportunity of learning both the attitude of the Government and that of the promoters. I should, of course, say that I was not in any way seeking to suggest that the noble Lord, Lord Berkeley, had been selective in his quotation. I was alluding to the source of the quotation because it was a much larger document than the particular paragraph quoted. It indicated that the RSPB had concerns. I am, of course, sorry that those concerns have only been raised at Third Reading. But that was the first opportunity that I was able to raise them. In the light of what has been said and in line with earlier assurances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

Lord Brooke of Sutton Mandeville moved Amendment No. 5: Page 3, line 18, at end insert— ( ) After section 48A of the 1964 Act (environmental duties of harbour authorities) there shall be inserted—

"48B CONTRIBU11NC TO SUSTAINABLE DEVELOPMENT ( ) In the exercise of any function under section 15 of this Act, the appropriate Minister must have regard to the desirability of contributing to the achievement of sustainable development.".

The noble Lord said: My Lords, enshrining the objective of sustainable development within legislation is an increasingly common goal, and this amendment would do so by requiring the Secretary of State to have regard to that objective when considering applications for harbour revision orders. I appreciate what the Minister said about sustainable development and the answer that he gave to the earlier grouping.

Section 48A of the Harbours Act 1964 gives harbour authorities a duty to have regard to the conservation of the natural beauty of the countryside and of flora, fauna and geological or physiographical features of special interest. They also have a duty to take into account any effect their proposals may have on the aforementioned features. However, no similar duty applies to the Secretary of State when considering applications for harbour revision orders. This amendment was intended to address that. I support the drive to put sustainable development objectives at the heart of legislation.

During the consideration of the Marine Wildlife Conservation Bill, supported by Mr John Randall MP, marine industry interests supported the inclusion of a clause that would require any functions under that Bill to be exercised with regard to the objective of sustainable development. If it is deemed appropriate for a Bill relating to marine nature conservation to have regard to sustainable development, it might be regarded as appropriate to require decisions concerning marine development also to have regard to the same concept. I beg to move.

2 p.m.

Lord McIntosh of Haringey

My Lords, this amendment would place on the Secretary of State a duty to have regard to the desirability of contributing to the achievement of sustainable development in exercising any function under Section 15 of the Harbours Act 1964.

Let me explain what Section 15 is about. The usual procedure for making harbour orders requires someone to apply for one, usually the harbour authority. However, Section 15 allows the Secretary of State to make a harbour order on his own initiative, not, as the noble Lord, Lord Brooke, has just said, in response to an application. A Section 15 order is for strictly limited purposes and is not used to authorise port development. The power is occasionally used, for example, to reconstitute a harbour authority. The duty proposed in this amendment does not fit within Section 15 of the 1964 Act and, because it should not be in that place, is seriously defective.

If the issue here is sustainable development, the Government's ports policy paper, Modern Ports, is quite clear. It states: The Government and the devolved administrations will work with the industry, its users and other interests, to achieve four key objectives". The fourth of those objectives is, to maintain a balanced policy on development which aims to make the best use of existing and former operational land, secures high environmental standards, but supports sustainable projects for which there is a clear need", So sustainable development is certainly a policy consideration in relation to the consents required for any harbour development. This is important to our obligations under the environmental impact assessment and habitats directives, and more generally. The amendment is wrong and it should be withdrawn.

Lord Roper

My Lords, on these Benches general sympathy is expressed for any amendment which includes the words "sustainable development". Therefore, when we saw Amendment No. 5, we had a natural sympathy for it. Having listened to the explanation from the Minister, however, we do not feel it would be appropriate to add our support were the matter to be pressed to a vote.

Lord Faulkner of Worcester

My Lords, there is little I can add to what has been said by my noble friend Lord McIntosh of Haringey. The promoters feel that this amendment falls outside the scope of the Bill, as did the earlier one, and therefore should not be considered for this piece of legislation. I hope that the noble Lord will agree to withdraw it.

Lord Brooke of Sutton Mandeville

My Lords, I am grateful to the Minister and to the noble Lords, Lord Roper and Lord Faulkner, for their responses to the amendment which again was of a probing nature. The probe has produced an extremely clear response, in particular from the Minister. Again, in line with the assurances given prior to these debates, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Brooke of Sutton Mandeville moved Amendment No. 6: After Clause 2, insert the following new clause— Rules in connection with objections (1) Schedule 3 to the 1964 Act shall be amended as follows. (2) After paragraph 18 there shall be inserted— Rules in connection with objections 18A (1) The Secretary of State may make rules as to—

  1. (a) the making of objections to an application for orders under section 14 or 16 or the making of orders under section 15;
  2. (b) the information to be comprised within or submitted with an objection;
  3. (c) the submission by the person making the application of written representations or information in relation to objections;
    4. 484
  4. (d) the submission of further written representations or information;
  5. (e) such other matters relating to the consideration of objections as appear to the Secretary of State to be appropriate.
(2) The Secretary of State shall not make a determination under paragraph 19 to make an order without first taking into consideration the grounds of any objection in respect of which rules under this section have been complied with."

The noble Lord said: My Lords, the amendment, entitled "Rules in connection with objections", seeks to cast light into an area where clarity has not always been easy to obtain. It would ensure that the Secretary of State publishes rules to clarify how objections to harbour revision orders and harbour empowerment orders are to be made and how they may be dealt with. Perhaps I may interpolate at this point the fact that, in line with the Bill, the opportunity for these matters to be settled by written representations underlines the need to make certain that there are rules which those submitting representations in writing can follow.

The RSPB has advised me that it has experienced problems on, for example, recent orders for Dibden Bay in Hampshire and Shellhaven in Essex, with a lack of written procedures to follow in the event of an objection. This simple amendment would make things clearer for everyone and could deliver benefits for harbour authorities as well as for conservation organisations such as the RSPB. Of course it may be that the Secretary of State can already make such rules under the Tribunals and Inquiries Act 1992, although some clarification would be welcome. If that is the case, I would be grateful for any undertaking that the Minister can give that the Government intend to develop such rules with respect to harbour revision orders and harbour empowerment orders made under the Harbours Act 1964. I beg to move.

Lord McIntosh of Haringey

My Lords, unlike the amendments that we have been considering so far, this amendment does fit in with the Long Title of the Bill. However, it is unnecessary. The amendment proposes to empower the Secretary of State to make rules not for the conduct of any public inquiry into a harbour order, but in relation to the making of objections and representations. I acknowledge that it is modelled on a provision in Section 10 of the Transport and Works Act 1992, but the Bill itself already contains all the rules needed for the making of objections. Indeed, the text of the Bill is modelled on the very rules that have been made under Section 10 of the Transport and Works Act.

I do not see what other rules are required for the making of objections and representations. The House would not wish to be unduly prescriptive about the way that ordinary citizens go about making their case. The provisions in the Bill are entirely sufficient without this amendment.

The noble Lord, Lord Brooke, spoke of the relevance of inquiry rules. He suggested that the Bill might make provision for inquiry rules for harbour orders. There are such rules for planning cases and for Transport and Works Act orders, but not at present for harbour orders. This has never caused any difficulty. In several recent cases there has also been a planning application or a Transport and Works Act order, and those rules have been adopted for the inquiry as a whole. In other cases the planning rules have been adopted by analogy.

If there are any real difficulties we would like to hear about them. We would be willing to discuss with the industry and other interests whether there should be harbour rules and what they should say. But there is no need to amend the Bill to give the power to make them. The power is already found in Section 9 of the Tribunals and Inquiries Act 1992.

Lord Faulkner of Worcester

My Lords, I am in the curious position of again having little to add to what has been said by my noble friend on the Front Bench, except to make one point. If this amendment were accepted, it would have the perverse effect of making life more difficult for objectors rather than making it easier. That is because if more rigid rules of procedure are adopted, then that might well have the effect of invalidating what might otherwise be perfectly appropriate objections. I cannot believe that that is the aim lying behind the amendment.

I should have thought that the noble Lord, Lord Brooke, would feel that the offer just made by the Minister to hold discussions with the industry over the question of harbour rules goes all the way to meeting the requests he made in moving the amendment. For that reason and for the other reasons given by my noble friend, I hope that he will agree to withdraw the amendment.

Lord Brooke of Sutton Mandeville

My Lords, I again thank the Minister and the noble Lord, Lord Faulkner, for their responses. I appreciate and welcome the constructive suggestion made by the Minister in the context or any problems that may exist.

The RSPB's advice that it had experienced problems with recent orders at Dibden Bay in Hampshire and at Shellhaven in Essex implies that there are at least pieces of grit in the shoe which need addressing. The RSPB will have had the opportunity of hearing the Minister and will be able to read what he said in the debate. The opportunity will be available to take up the Minister's offer, if that would be helpful and desirable in the light of previous experience.

In other regards, I accept what the Minister has said and the quite clearly genuinely intended to be helpful advice of the noble Lord, Lord Faulkner. As on previous occasions, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Faulkner of Worcester

My Lords. I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Lord Faulkner of Worcester.)

On Question, Bill passed, and sent to the Commons.

House adjourned at tell minutes past two o'clock.