 House of Commons |
Session 2008 - 09 Publications on the internet General Committee Debates Marine and Coastal Access Bill [Lords] |
The Committee consisted of the following Members:†
Irranca-Davies,
Huw (Parliamentary Under-Secretary of State for Environment, Food
and Rural Affairs) Chris
Shaw, Committee Clerk †
attended the Committee Public Bill CommitteeTuesday 7 July 2009[Mr. Roger Gale in the Chair]Marine and Coastal Access Bill [Lords]Clause 197Power
to make orders as to fisheries for
shellfish Amendment
moved (this day): 56, in
clause 197, page 124, leave out from
beginning of line 11 to ‘subsection’ in line 12 and
insert— ‘(1) Section 1 of
the Sea Fisheries (Shellfish) Act 1967 (c. 83) (power to make
orders as to fisheries for shellfish) is amended as set out in
subsections (1A) and (1B). (1A)
In’. .—(Huw
Irranca-Davies.) See
Member’s explanatory statement for amendment
57. 4
pm
The
Chairman: I remind the Committee that with this
we are discussing the following: Government amendments 57
and
58. Government
new clause 5—Variation etc of orders as a result of
development. Government
amendment
62.
The
Parliamentary Under-Secretary of State for Environment, Food and Rural
Affairs (Huw Irranca-Davies): I am glad to return to the
Committee to pick up where we left off this morning on shellfisheries.
It might be helpful at this juncture to pick up on one point raised
about the timeline. A genuine concern was aired about the nature and
extent of the discussion and dialogue. Not many of us had a lot of time
to see the word-by-word detail of the amendments, but the fundamentals
of what is being proposed have been around for some time, and I will
sketch them out
briefly. The
Shellfish Association of Great Britain was working in 2007 on a
memorandum of understanding with the Crown estates that featured most
of the elements now contained in these clauses. The association has had
a lot of opportunity, with my officials and others, to shape the
proposals that have ended up in the Bill. Officials from the Department
for Environment, Food and Rural Affairs have met on numerous occasions
to discuss potential solutions to the Crown estate problem. However, it
was only with the resolution of a court action, which concluded on 14
May, that negotiations could commence in earnest and in detail with
interested parties, in particular the Crown and the shellfish industry.
After that point, we could move from the entrenched positions that had
had to be adopted while the court case
proceeded. The
solutions proposed in the Bill—I shall turn to them in a moment,
as I want to explain in detail how the package works—aim to put
the relationship between the shellfish industry and landowners on a
more commercial footing that is based on agreements, with mechanisms
for developments to take place, but with compensation and the removal
of consent, which everybody has wanted.
Those proposals all come from the industry. If the Committee will bear
with me, I will sketch exactly how the process will work in
practice. Government
amendments 56, 57 and 62 will amend the Sea Fisheries (Shellfish) Act
1967 to remove the need for consent of the Crown estate or the duchies
to be given before an order affecting any part of the sea shore on
their land can be granted. Removing that requirement will give the
Secretary of State the power to grant shellfish orders without Crown
consent, removing a potential obstacle to granting new orders. Such a
measure is sought by all parties, and I hope that it will be welcomed
by all parties.
The removal
of that procedure, which all parties consider to be outdated, will thus
allow us to overcome the current impasse, in which a number of several
and regulating orders are not being given. At the moment,
shellfisheries cannot obtain certainty for long-term investment,
despite the best efforts and good will of all parties. The amendments
will allow us to overcome the impasse and start granting new several
and regulating orders. Both the Crown estate and the shellfish industry
support the
proposal. As
the amendments all link together and come as a package, I will turn to
amendment 58, which requires the appropriate Minister, when considering
an application for a several and regulating order, to have regard to
the powers and duties of the Crown Estate Commissioners. That is
important because those powers and duties come from the Crown Estate
Act 1961. The Sea Fisheries (Shellfish) Act 1967 already contains a
statutory duty to consult the commissioners as land owners when
considering an application for an order that will affect Crown
land.
It is
important that we recognise that the Crown Estate Commissioners have
specific powers and duties that require them to act in a particular
way. I must make it clear that the amendment does not grant the
commissioners any extra powers, nor does it give them anything with
regard to shellfish orders that they do not currently have. Having
regard to the Crown estate’s powers and duties simply means that
we must take account of them when arriving at a decision on whether to
grant an order. We are not bound to accept any objection that they
raise, just as we are not bound to accept any objection from any other
landowner. The commissioners are constrained in what they can do with
regard to the Crown estate in a way that other landowners are not. Our
proposal merely acknowledges that
difference. Mr.
David Jones (Clwyd, West) (Con): Before I put my question,
I declare an interest: by an extraordinary coincidence, the legal firm
of which I am a director represents one of the parties in the Menai
strait action to which the Minister referred. I understand the thrust
of his proposed solution to this difficulty, but the amendment states
that Ministers
should “have
regard to the powers and
duties”. Will
he expand on that? To which powers and duties should they have regard,
and how will they have regard to them? What will they do when they have
regard to
them?
Huw
Irranca-Davies: I shall return to that very pertinent
question in a moment, but first I want to flesh out the other parts of
the proposal.
New clause 5
will insert powers to vary shellfish orders, which is important because
it acknowledges the fact that landowners cannot always foresee what
development opportunities might arise over the lifetime of an order,
which is potentially 60 years. The new clause will allow an order to be
varied when landowners, including the duchies and the Crown estate,
want to develop land on which an order is in place and when that
development would make it impossible, or impracticable, to exercise the
right conferred on the fishery. The power to vary an order reflects our
desire to put the relationship between the grantee and the landowner on
a more commercial footing, with the use of commercial contracts or
memorandums of understanding clearly to define the relationship and the
system for dealing with future developments. In earlier discussions
with the Government, both the Shellfish Association of Great Britain
and the Crown estate supported such a
measure. Clause
69 sets out the issues to which the licensing authority must have
regard in determining applications for marine licences. Under
subsection 1(c), those issues
include “the
need to prevent interference with legitimate uses of the
sea”, which
in turn include fishing and shellfisheries. Thus the licensing
authority is well able to have regard to fisheries’ interests
and to reach a balanced view on the merits of an application.
We do not
intend to interfere with this marine planning process by insisting that
fishing interests should automatically override all other needs or uses
of the sea. If the order is varied, the landowner could be liable to
pay compensation to the grantee of a several order for the loss of
part, or all, of the order. It will be open for the grantees and
landowners to agree a level of compensation, either when the order is
varied or right from the outset. We believe that the ability to
consider such outcomes at the outset of the making of an order will
help to put the relationship between the two parties on a much more
commercial footing. It will also make the agreements more transparent.
That idea was previously supported by the shellfish industry as well as
the Crown estate. The new clause will provide certainty to grantees of
shellfish orders and landowners and signal a new relationship allowing
the industry to develop and move
forward. The
hon. Member for Clwyd, West asked about Crown powers. Those powers will
be as set out in the Crown Estates Act, section 1(3) of which states
that the commissioners will have a duty “to maintain and
enhance” the value of the estate
“but with due
regard to...good
management.” A
letter from DEFRA to the Shellfish Association of Great Britain dated
26 June
stated: “Having
regard to the CE’s powers and duties simply means that we must
take account of them in arriving at a decision as to whether to grant
an Order. It does not mean that if the CE object to the creation of an
Order that we are bound to accept their objection as valid and reject
any applications to grant an Order in these circumstances. But it would
be open to the CE to challenge the SoS as to how their view has been
taken account of in our decision making
process.” It
is important that I read this next part into the
record: “Similarly,
we would be bound to explain to any consultee how their view has been
taken account of in our decision making processes; the difference is
that the CE have explicit statutory
powers and duties and our proposal reflects that point. If as you hinted
you have legal or other advice which contradicts this view, I would be
grateful if you could share it or summarise it”.
We concur
with that
view. Andrew
George (St. Ives) (LD): So that I can better understand
the background, I would be grateful if the Minister could clarify that
the Crown estate is answerable to the Treasury and to Parliament and
that, under the 1961 Act, one of its primary objectives is to produce a
surplus for the Treasury. Does that not create a potential conflict
between two separate Government Departments, one of which is there to
create financial surpluses for the Government, while the other surely
seeks to maintain the responsible management of the marine resource?
There is a clear conflict between two Government Departments, and I do
not understand how the Minister’s proposals are going to resolve
it.
Huw
Irranca-Davies: As I pointed out, the amendments have been
subject to long discussions. They have been supported by the Shellfish
Association of Great Britain and the Crown estate, and they resolve
that situation. There will always be a question of the need to resolve
different interests across Whitehall. There needs to be close dialogue,
whether one is thinking of the Infrastructure Planning Commission,
marine planning or most aspects of Government.
It
might be worth explaining how the Crown estate works. As the hon.
Gentleman rightly points out, the Crown estate manages Crown land on
behalf of the Government, and the surplus revenue goes to the Treasury.
In return, the monarch receives a fixed annual payment—the civil
list. The Crown estate is responsible to Parliament, but is run
independently of the Government by a board of appointees. Let me give a
brief history lesson of why we have got to where we are today. In 1955,
a Government committee under the chairmanship of Sir Malcolm Trustram
Eve recommended that to avoid confusion between Government property and
Crown land, the latter should be
renamed—[Interruption.] I am sorry,
Mr. Gale, I have been slightly distracted by the hon. Member
for Broxbourne bringing what seems to be a weapon into the
Committee.
To
avoid the confusion between Government property and the Crown, the
latter was to be renamed the Crown estate and managed by an independent
board. Those recommendations were implemented by the Crown Estate Acts
1956 and 1961. Under the 1961 Act, the estate is managed by a board,
which has a duty to maintain and enhance the value of the estate and
the return obtained from it, but with due regard, as I pointed out
earlier, to the requirements of good management. The Crown estate must
report to Parliament once a year, providing accounts and information
about Crown estate activities for the year, including future
activities.
In
England and Wales, the legal presumption is that the sea bed and the
foreshore are owned by the Crown, and that presumption extends to the
bed of all tidal rivers and to all islands in tidal rivers and coastal
waters. The presumption also applies in the absence of any evidence of
a grant by the Crown to any private individual. It is estimated that
the Crown estate owns about 50 per cent. of the UK
foreshore.
4.15
pm We
cannot use the Marine and Coastal Access Bill to ride roughshod over
the Crown estate’s rights as set out in the Crown Estate Acts.
To say that shellfisheries, for example, are more important than the
Crown estate’s duty is not an argument that would make the
running, and it would be very hard to get cross-Government agreement to
amend either the Crown Estate Acts or this Bill in a way that would
limit its rights.
Does the
group of amendments deliver emphatically what everybody wants? The
amendments contain the fundamentals of the discussions that have gone
on for a long time to resolve problems, especially those between the
Shellfish Association of Great Britain and the Crown estate. We have
taken the fundamental areas of agreement in principle with those
parties and incorporated them into five amendments that work
together—not separately. As was debated to some extent in the
other place, by considering the amendments today as a
package—not one by one—we have a golden opportunity to
have several and regulating orders back up and running, to give
certainty to the shellfisheries industry, to recognise the rightful
regard that we must also have to the Crown estate, to recognise
variance where it is needed in long contracts, and to recognise that in
some situations there might also be a need for
compensation. The
amendments do all those things, and although I appreciate that their
details have not been seen for long by many people, their fundamentals
have been discussed ad nauseam in meetings with my officials, with me,
and with many other people, including representatives of the Shellfish
Association of Great Britain and the Crown estate. There is good will
to make this happen, and I urge Committee members to take the
opportunity.
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