Joint Committee on the Draft Marine Bill First Report


1  Introduction

1. The draft Marine Bill was published on 3 April, accompanied by a Regulatory Impact Assessment.[1] The document also contained a policy paper, the consultation period for which closed on 26 June. On 14 May, the Prime Minister announced that the published Bill would be included in the Government's legislative programme for the next Parliamentary Session (2008-09).[2]

2. The Joint Committee was appointed on 13 May 2008 to "consider and report on the draft Marine Bill presented to both Houses on 3 April 2008" by 22 July 2008. We held eight public evidence sessions, hearing from 22 sets of witnesses representing 38 organisations. Ministers from the Department for Business, Enterprise and Regulatory Reform and the Department for the Environment, Food and Rural Affairs also gave evidence, as did officials from the Ministry of Defence, the European Commission and the Secretary of State for the Environment, Food and Rural Affairs. We received over 100 written memoranda. We have also been assisted by our Specialist Advisers, Dr Susan Gubbay, Professor Laurence Mee and Captain Dennis Barber, to whom we record our gratitude. We are very grateful to those who have taken the time to contribute to our inquiry.

3. The House of Commons Environment, Food and Rural Affairs (EFRA) Select Committee has also carried out pre-legislative scrutiny on the draft Marine Bill, concentrating entirely on the coastal access provisions contained in Part 9 of the Bill. The Committee published its Report on 22 July.[3] We sought not to duplicate the work done by the EFRA Committee, and we are glad that the draft Bill has benefited from such thorough Parliamentary scrutiny.

4. There was a gap of almost six weeks between publication of the draft Bill and the establishment of this Committee. This delay meant that we had only nine sitting weeks to carry out pre-legislative scrutiny of a lengthy and complex piece of draft legislation, which led to a very tight timetable for taking evidence and consideration of this Report. This falls some way below the three month minimum period for a pre-legislative inquiry set out in the Cabinet Office Guide to Legislative Procedure, to which the Government, we understand, "remains committed".[4] There was no clear reason for the lengthy interval between publication and appointment and the pressure on our timetable inevitably meant that we were not able to give the draft Bill the full scrutiny we would have liked. Serious and productive pre-legislative scrutiny ideally requires at least 12 sitting weeks, and more if possible, and we recommend that the Government commit itself to providing this in future when publishing draft Bills and establishing ad-hoc Joint Committees.

Call for evidence

5. On 16 May 2008, we issued a call for evidence on the following issues:

i)  The challenge of assessing whether the legislative framework for marine spatial planning set out is fit for purpose in the absence of the government setting out what the objectives for the planning system are (the Marine Policy Statement).

ii)  How well the regulatory framework proposed will operate, given the wide range of responsibilities involved.

iii)  The proposed powers, structure and regulatory role of the Marine Management Organisation.

iv)  How well the provisions of the Bill will fit with the aims and policies of the devolved assemblies.

v)  Whether the system proposed would be sufficient to meet the requirements of the forthcoming European Marine Strategy Directive and achieve 'good environmental status' defined under the Directive.

vi)  Whether the proposed Marine Spatial Plans will be based on adequate scientific data and provide certainty about where activities and developments will be permitted in a given time frame.

vii)  Whether improvements to the management and enforcement of inshore marine fisheries can deliver required conservation and sustainable development objectives.

viii)  Should there be a statutory requirement on a UK body to ensure that the network of Marine Conservation Zones is created?

ix)  Is there sufficient biological data to identify a potential network of Marine Conservation Zones, especially in offshore areas, and what data will be required to measure their effectiveness? What proportion should be highly protected?

x)  Should socio-economic criteria as well as scientific criteria be used in identifying areas to be Marine Conservation Zones? What lessons on the designation of protected areas can be learned from existing SACs and Marine Nature Reserves?

xi)  Will the Government's 35GW renewable electricity target[5] create a demand for marine sites that have potential as conservation areas?

xii)  The suitability of including regulatory issues concerning inland waters within the Marine Bill.

xiii)  The appropriateness of the measures contained in the draft Bill aimed at creating an English coastal route.

We did not restrict our inquiry to these issues.

Policy background

6. The draft Marine Bill has had a lengthy evolution. In 2001, the then Prime Minister announced that the UK would introduce new measures to improve marine conservation. This was followed in 2002 by Safeguarding Our Seas, a joint publication from the UK Government and devolved administrations, which promised an "ecosystem-based management approach" to marine management. The first mention of the Government's intention to legislate in a Marine Bill came in 2004, when the Department for the Environment, Food and Rural Affairs (Defra) launched its five-year strategy.[6] In 2005, Defra and the devolved administrations published State of our Seas - Charting Progress: an integrated assessment of the state of UK seas.[7] This collected the results of marine monitoring programmes to provide an assessment of the waters around the UK shore.

7. In March 2006, a consultation was launched seeking comments on the strategic direction a Marine Bill should take.[8] The consultation received 1233 responses.[9] The consultation paper was also the subject of an inquiry by the House of Commons Environmental Audit Committee.[10] The Committee praised Defra for the efforts made to consult and inform stakeholders and the public in the preparation of a draft Marine Bill, and urged that the Bill be introduced by the 2007-08 Parliamentary session.[11] A year later, the Marine Bill White Paper A Sea Change, and a partial Regulatory Impact Assessment, were published,[12] which received 8519 responses.[13] The consultation paper now published alongside the draft Bill is therefore the third in three years.

Domestic and international commitments

DEVOLVED ADMINISTRATIONS

8. The draft Bill covers the United Kingdom, but in line with the devolution settlement, certain areas will be the responsibility of the devolved administrations. In the case of Scotland, substantial policy areas are devolved, and the Scottish Government has announced that it will produce its own Marine Bill in the near future; a consultation document was published on 14 July 2008.[14] The Scottish Marine Bill will include the establishment of a Scottish Marine Management Organisation. The Welsh Assembly Government and the Northern Ireland Government have both indicated that they are supportive of the policies in the Bill.

9. There are already quite complex arrangements between the national and devolved governments of the UK for administering the UK's marine areas, which will be added to by the measures contained in the Bill, as illustrated in Table 1. There are also some particular differences between the approaches adopted by devolved administrations for the offshore and onshore regions.

Table 1: Responsibilities across the devolved administrations under the provisions of the Bill[15]
Region Marine Planning Authority/ Implementation Licensing Authority Fisheries Authority/ Implementation Environ-mental Protection Authority/ Implement-ation
Great Britain Offshore regionEnglish Offshore SoS/MMOSoS EU Council of Ministers/ EU Fisheries Agency & Defra SoS advised by JNCC (MMO role unclear)
Welsh Offshore EU Council of Ministers/ EU Fisheries Agency & Defra (proposed Welsh ministerial resp)
Scottish Offshore Scottish Ministers EU Council of Ministers/ EU Fisheries Agency & SFPA
Northern Irish Offshore SoS and NI Dept. of Environment SoS EU Council of Ministers/ EU Fisheries Agency & Defra
Inshore regions [territorial seas] EnglishSoS/MMO SoSSoS Environment Agency/Sea Fisheries Committees SoS/ NE as "statutory conservation body" plus MMO with exceptions
Scottish Scottish Ministers Scottish Ministers Scottish Ministers Scottish Ministers
Welsh Welsh Ministers Welsh Ministers SoS through IFCAs/ Welsh Ministers as "appointment authority" Welsh Ministers/ CCW
Northern Irish NI Ministers DoE in N. Ireland NI Ministers NI Ministers
Isle of ManOutside Marine Bill Jurisdiction
Channel IslesOutside Marine Bill Jurisdiction

Bold titles indicate Marine Areas specified in the Bill

Shaded boxes are areas/provisions outside the Draft Bill

INTERNATIONAL AND EU OBLIGATIONS

10. The United Kingdom has entered into a number of international agreements which regulate activities within its territorial waters. These cover jurisdiction (the UN Convention on the Law of the Sea), shipping (obligations deriving from the UK's membership of the International Maritime Organisation), fishing (through the Common Fisheries Policy of the European Union) and environmental conservation (through EU and international obligations). For the purposes of the draft Bill the specific obligations in respect of fishing and the environment are the most relevant, and the current obligations to which the UK is a party are set out in Table 2 below.

Table 2: Existing EU measures that have an impact on the management of our marine environment
Area Measure
Industry Common Fisheries Policy

EU Renewables Directive

Legislation on marine shipping fuel

Conservation Birds Directive

Habitats Directive

Water Quality and Inputs Bathing Waters Directive

Habitats Directive

Shellfish Waters Directive

Urban Waste Water Treatment Directive

Water Framework Directive

Assessment Environment Impact Assessment Directive

Strategic Environmental Assessment Directive

11. Key international maritime conventions to which the UK is a signatory include the commitment under the World Summit on Sustainable Development[16] and the Convention on Biological Diversity[17] to achieve a significant reduction in biodiversity loss by 2010, to encourage the application of the ecosystem approach of marine managements, to establish a network of marine protected areas by 2012 and to restore depleted fish stocks by 2015 if possible.

12. The UK also has a commitment under the Oslo-Paris Convention for Protection of the Marine Environment of the North East Atlantic (OSPAR)[18] to develop ecological quality objectives for the North Sea, and to designate areas of the UK's seas as "marine protected areas" as part of an "ecologically coherent" network of well managed sites.

13. Within the EU context the newest initiative, and the one which has the greatest bearing on the provisions in the draft Bill, is the European Marine Strategy Directive (MSD), which was agreed in May 2008 and must be transposed into domestic legislation by 15 July 2010. It now provides the overriding framework for EU action in the field of marine environmental policy. Though the Government intends to transpose the Directive in secondary legislation under the European Communities Act 1972, one of its purposes in bringing forward the Bill is to enable those EU obligations properly to be given effect.[19]

14. In October 2007, the European Commission produced a policy document, known as a "Blue Book", An Integrated Maritime Policy for the European Union.[20] The Blue Book sets out the framework that recognises "the challenges of globalisation and competitiveness, climate change, degradation of the marine environment, maritime safety and security, and energy security and sustainability".[21]

Implementation

15. The Bill involves commitment from and coordination between different parts of Whitehall as well as Defra. Defra told us that the following departmental policy interests were engaged in the marine area:

Table 3: Whitehall involvement in the marine environment
Department Policy Interest
Environment, Food and Rural Affairs Fisheries, marine nature conservation, integrated coastal management, flood and coastal erosion risk management and the marine environment, marine aggregates
Business, Enterprise and Regulatory Reform Energy generation: oil, gas and renewables
Transport Maritime safety and counter-pollution, search and rescue, shipping, ports, harbours
Communities and Local Government Interaction with terrestrial planning system and local authority responsibilities
Culture, Media & Sport Marine heritage, recreation, tourism
Ministry of Defence Defence activities in the marine area

16. We took evidence from the Minister for Energy from the Department for Business, Enterprise and Regulatory Reform (BERR) on marine planning and offshore renewables, and from the Ministry of Defence (MoD) on coastal access and enforcement. While both sets of witnesses welcomed the Bill, they also noted the complexity of the departmental interests involved. For example, the Director of Safety and Claims and Business Continuity from MoD told us that negotiations with Defra were "ongoing" with regard to the precise role of Royal Navy personnel in enforcement.[22] The Minister for Energy commented that "I think it is quite a test for government to make sure we are properly joined up on this, as I know we are, in terms of the policy".[23] We note and agree with the Minister for Energy's comments that implementing a Marine Act will take significant effort from across Whitehall. It is vital that Defra gets other departments 'on board' with its proposals.

A framework Bill?

17. In its current form the Bill is—and is only intended to be—a piece of framework legislation, leaving the Government to decide exactly how or what it envisages doing with the powers set out in it. Much of the practical information necessary to implement the Bill is to be contained only in guidance. The absence of that guidance at this time makes it very difficult to understand the impact, or intended impact, of the draft Bill, let alone subject the policy to detailed scrutiny. Many witnesses raised this issue with us. Over the course of our inquiry, we did receive some draft guidance notes, and from these it is clear to us that the guidance will be key to the success of the measures in the Bill.[24] While this meant that we were unable to examine much of the detail, given the time and resources we had available, it also led us to question whether the draft Bill has the balance right between what is on its face and what will be in non-statutory guidance. This is likely to be a matter to which both Houses will wish to return when the Bill is eventually published next Session and fuller explanatory material is available than was disclosed to us. But we recommend that the Government re-examine the amount of detail contained in guidance in advance of publication and consider moving material currently contained in or planned for guidance into the Bill itself on the grounds of transparency and simplicity.

18. Owing to the framework nature of the Bill, it is 'light' on duties and often fails to specify which body will bear responsibility for particular actions. Many of the duties that are included in the Bill are placed on the Secretary of State and are delegable as he wishes. Clearly this makes it difficult to make an assessment of the feasibility of these duties and the consequent level of resources allocated to responsible bodies. We asked the Secretary of State about this and he told us that "I am fine with duties as long as they are for a clear purpose".[25] We are concerned that the Bill places very few statutory duties on the Secretary of State or other bodies. We recommend that the Government make more explicit which organisations it expects to implement the Bill, and that the Bill should impose appropriate duties.

Funding

19. Whether the programme of work intended to be delivered by the Bill has been properly costed, and whether adequate funding will be made available to ensure that the Bill's provisions can be applied properly, has been a frequent cause of scepticism from witnesses. There are several large initiatives, specifically the creation of the Marine Management Organisation, the development of marine plans, the operation of Inshore Fisheries and Conservation Authorities and the development of the coastal path, which will require significant resources in order to be successfully implemented. Although we received assurances from the Secretary of State that funding will not be a problem, we remain to be convinced that funding has been considered adequately in the preparation of the Bill or that the levels of funds currently envisaged will be sufficient.[26] We are concerned that proposed funding provision for the Marine Management Organisation, the development of marine plans, the operation of Inshore Fisheries Conservation Authorities and the development of the coastal path appears inadequate. Defra must ensure it is able to allocate funding to these initiatives and tasks on a scale that will enable them to be realised successfully. A detailed analysis of the requirements and arrangements for the proposals contained in the Bill should be published alongside the Bill.

Regulatory Impact Assessment

20. We commissioned a detailed analysis (annexed to this report) of the Regulatory Impact Assessment (RIA) attached to the draft Bill.[27] The RIA notes that it "relies on many assumptions and implementation scenarios […] as the draft Bill does not specify all the parameters necessary to facilitate detailed analysis".[28] Our analysis suggests that the high degree of uncertainty in present proposals means that the net benefits set out in the RIA could vary by a factor of ten.[29] Defra is committed to updating the RIA "prior to introduction of the final Marine Bill to Parliament", and "prior to the introduction of secondary legislation and accompanying guidance".[30] Whilst accepting that this is standard practice for RIAs published with draft legislation, in this case there is the potential for considerable change, and without much more clarity of the policy intentions of the Bill we suspect that even a revised RIA may be of little practical utility. There is, by the Government's own admission, a great degree of uncertainty in the Regulatory Impact Assessment. We welcome the commitment to publish a revised RIA when the Bill is introduced, but are concerned that the true costs and benefits may not be available for Parliament to scrutinise at the same time as the Bill itself.

Post-legislative scrutiny

21. The House of Commons Liaison Committee has recently endorsed the Government's suggestion that post-legislative scrutiny be routinely carried out on Acts of Parliament.[31] Each government department will supply a memorandum on each of its Acts to the relevant departmental select committee, between three and five years after the Act is passed. The select committee will then decide whether or not to carry out scrutiny of the legislation. The Government intends that post-implementation reviews will be conducted for some of the proposals in the Marine Bill three years after Royal Assent, for inshore fisheries and conservation authorities after four years, and for marine planning, marine licensing and marine biodiversity proposals approximately 5-10 years after Royal Assent.

22. Given the framework nature of the draft Marine Bill, and the absence on the face of the legislation of many measurable objectives, we welcome the prospect of post-legislative scrutiny on the Bill. Given the issues we have identified, including the lack of statutory duties in the Bill and the incomplete nature of the draft Regulatory Impact Assessment, it will be helpful to see which policy objectives the Government considers to be most useful in measuring the success of the legislation, and it is a good opportunity for further Parliamentary scrutiny once the content of the Bill is clearer.


1   Draft Marine Bill, 3 April 2008, Cm 7351 (hereafter Cm 7351) Back

2   Preparing Britain for the future: the Government's draft legislative programme 2008-09, 14 May 2008, Cm 7372 Back

3   Environment, Food and Rural Affairs Committee, Ninth Report of Session 2007-08, Draft Marine Bill: Coastal Access Provisions, HC 656 (hereafter HC 656) Back

4   Government Response to the House of Lords Constitution Committee Report on Pre-legislative Scrutiny in the 2006-07 Session, printed in Constitution Committee, 8th Report 2007-08, HL Paper 129 Back

5   UK Renewable Energy Strategy Consultation, Department for Business, Enterprise and Regulatory reform, 2008 Back

6   Defra Five Year Strategy: http://www.defra.gov.uk.environment/water/marine/uk/policy/marine-bill/here.htm Back

7   State of our Seas - Charting Progress: an integrated assessment of the state of UK seas, Defra, March 2005 Back

8   A Marine Bill: a consultation document, Defra, March 2006 Back

9   Cm 7351, p 17 Back

10   Proposals for a draft Marine Bill, Environmental Audit Select Committee, Eighth Report of Session 2005-06, HC 1323 (hereafter HC 1323) Back

11   HC 1323, paras 19 and 29 Back

12   A Sea Change: a Marine Bill White Paper, March 2007, Cm 7047 Back

13   Cm 7351, p 17 Back

14   Sustainable Seas for All - a consultation on Scotland's first marine bill, Scottish Government, 14 July 2008 Back

15   Note that this does not include the Oil and Gas sector which is a UK responsibility exercised by the Secretary of State for Business, Enterprise and Regulatory Reform. EU competence applies in the six to twelve mile zone with respect to some foreign fishing, and beyond the twelve mile zone to the limits of UK territorial waters.  Back

16   Johannesburg Declaration on Sustainable Development, 4 September 2002 Back

17   The Convention on Biological Diversity was signed in 1992 at the Rio Earth Summit, and in April 2002 signatories committed themselves to achieve a significant reduction of biodiversity loss by 2010 Back

18   Convention for the Protection of the Marine Environment at the North-East Atlantic entered into force on 25 March 1998. It replaced the Oslo and Paris Conventions. Back

19   Q646 Back

20   An integrated Maritime Policy for the European Union, COM (2007) 575 Back

21   COM (2007) 575 Back

22   Q255 Back

23   Q417 Back

24   Four are appended to this Report: DMB 106, DMB 107, DMB 108, DMB 109 Back

25   Q664 Back

26   Qq671-2 Back

27   Annex 3 Back

28   Draft Marine Bill Impact Assessment, April 2008, p4 (hereafter 'Impact Assessment') Back

29   Annex 3, table 1 Back

30   Impact Assessment, paras 23-24 Back

31   Liaison Committee, Third Report of Session 2007-08, The work of committees in 2007, HC 427, para 64 Back


 
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