Joint Committee on the Draft Marine Bill First Report


3  The Marine Management Organisation

Objectives of the MMO

36. The draft Bill begins by setting out the legal framework for establishing a non-departmental public body (NDPB), the Marine Management Organisation (MMO), whose purpose is to deliver various planning, licensing, fisheries management and marine enforcement functions in the waters around England, and in offshore areas for functions to the UK Government. Defra told us that the MMO is intended to be the Government's "primary delivery body in the marine area" that "will take the lead and overview in managing the seas".[55] Many of the MMO's aims and objectives, particularly with regard to preparation of marine plans, will be determined by a UK Marine Policy Statement, which we discuss in paragraphs 76 to 91.

37. The role and effectiveness of the MMO lies at the heart of the draft Bill and what it is seeking to achieve. The Environment Agency boldly stated that the MMO should be a "champion of the UK seas",[56] and Mr Gooding, the Chief Executive of the Marine and Fisheries Agency, which is to be the basis on which the new organisation is to be built, agreed that there was a "real opportunity for the MMO to be "the champion of the seas"".[57] Defra put it more judiciously: the MMO "will be the Government's primary delivery body in the marine area. We do want it to take a lead and overview in managing the seas. We do want it to have a strong representation both across UK stakeholders and indeed further afield […] It will have the teeth it needs".[58]

38. But for others this was less clear. The MMO's general objective is put thus: "to carry out its functions with the objective of making a contribution to the achievement of sustainable development".[59] Mr Gooding suggested that the objectives of the new organisation should generally be left to secondary legislation, as opposed to its duties, which should be in the Bill.[60] For many, however the provisions in the draft Bill are "weak", unclear and should set out a stronger, more proactive duty, for example to "further sustainable development" or "a duty to deliver sustainable development".[61] The Joint Nature Conservation Committee (JNCC) said "[sustainable development] has many meanings to many people".[62] This was confirmed by the evidence we received: many of the sectors utilising marine areas have different interpretations of what such sustainable development would entail.[63] The JNCC accordingly wanted the definition tightened and also sought explicit reference to the "ecosystem approach" in the MMO's objectives.[64] Wildlife and Countryside Link thought that there should also be reference to the UK Sustainable Development Strategy.[65] The Environment Agency argued that the MMO should have a duty to further conservation of marine flora and fauna and to secure compliance with the Water Framework Directive requirements and objectives in transitional and coastal waters.[66] British Energy highlighted the need for "a clear remit for the Marine Management Organisation set by government […] so that the organisation has some clear objectives and is well-informed from scientific evidence from all sides and from its own resources before coming to decisions, taking account of these competing needs".[67]

39. We have no doubt, from the weight of the evidence received, that the statement of purpose of the MMO is ambiguous both in terms of the draft Bill and in the policy framework which the Government envisages. We would like to assist in the resolution of that ambiguity. In our view the MMO should be, and be seen to be from the outset, the owner of the public interest in the UK marine environment.

40. Beyond this high-level objective, we also consider that clear duties should be set out on the face of the Bill to ensure that the new organisation works to meet the aspirations which Parliament has set for it. We recommend that these include a duty to further sustainable development and we suggest that this be based on the ecosystem approach to managing the marine environment.

41. The draft Bill refers to 'sustainable development' in the context of (a) the objective of the MMO, the content of the marine policy statement and the marine plans.[68] However, having introduced this term, the draft Bill then fails to define it. As a result the draft Bill leaves undefined a core ethos, by which it proposes that the marine environment be managed. There is no single definition of sustainable development; as mentioned in paragraph 39, different stakeholders have differing views on what this term may mean. The Shared UK Principles of Sustainable Development set out an approach to balancing nature conservation and economic development by using sound science responsibly to provide the evidence base for decision making.[69]

42. The lack of a definition of 'sustainable development' creates uncertainty. Just one example may be found in the explanatory notes to clause 40, which state that the marine policy statement (MPS) will "provide a long term framework for managing sustainable development in the UK marine area by setting out a UK vision and objectives for the marine area and its uses, incorporating economic, social, cultural and environmental priorities".[70] [Italics ours]. It is not clear what 'cultural' might mean in the context of sustainable development: whether it refers to the cultural aspects incorporated in the Government's 'well-being indicators' or the historic cultural heritage encompassing ancient geological landscapes beneath the sea and other artefacts (e.g. shipwrecks) that comprise the accepted marine cultural heritage.

43. The Department for Culture, Media and Sport's current draft Heritage Protection Bill, which, amongst other issues is concerned with the protection of marine cultural heritage, does not invoke sustainable development as a guiding principle. Equally, the Government has 68 National Indicators, including 20 Framework Indicators, on issues within the framework of sustainable development but nowhere is there a clear definition of cultural issues.[71] If 'cultural' considerations are to be included in the definition of 'sustainable development' then this will be relevant not only to the MPS but also to the objectives of the MMO and to the content of marine plans. It is unsatisfactory to have such major initiatives dependent upon 'sustainable development' when that term remains undefined. A definition of 'sustainable development' should be included on the face of the Bill. Defra should also set out, in policy documents and guidance, associated sustainable development metrics against which progress in managing the marine environment might be judged.

Statutory status of the MMO

44. Schedule 1 sets out the detailed arrangements for the establishment of the Marine Management Organisation as a NDPB. The MMO will have a Chair and Board appointed by the Secretary of State. The Secretary of State will also approve the appointment of the first chief executive. Defra justifies NDPB status on the basis that the MMO will be delivering functions on behalf of the Government as whole and that it is in line with the status of Natural England and the Environment Agency, which undertake similar environmental regulatory roles. It is intended that the MMO will be accountable to Parliament through Defra Ministers, who will be advised by a cross-Government sponsorship group.

45. Its annual corporate plan will be approved by Defra Ministers after taking advice from the sponsorship group. The Public and Commercial Services Union argued against the MMO becoming an NDPB, but particularly against the existing MFA staff losing civil service status. It noted that staff in other NDPBs such as the Advisory, Conciliation and Arbitration Service have retained civil service status and suggested that Marine and Fisheries Agency staff should also do so.[72] We did not examine this issue in any detail, but we regard it as vital that the new organisation is able to get up and running quickly (a shadow body such as that established for the Committee on Climate Change could be helpful) and that it is able to attract and retain the quality of staff it needs to perform its functions effectively. Relevant analogies appear to us to be the Food Standards Agency and the Environment Agency, and we encourage the Government to consider whether there are lessons to be drawn from the constitution of those organisations which might inform the establishment of the MMO.

Composition of the MMO board

46. The Bill provides for between six and nine board members, including the Chair, all appointed by the Secretary of State. There is no specification as to the ordinary members' skills and expertise, only that the Secretary of State "must have regard to the desirability of appointing a person who has experience of, and has shown some capacity in, some matter relevant to the exercise of the MMO's functions, and of securing that a variety of skills and experience is available among the members".[73] Not surprisingly, relevant sectors wanted their interests to be represented on the board,[74] and some argued for specific sectoral representation or nomination rights.[75] The Government's intention is that "board members will be sought with experience and expertise across all three 'pillars' of sustainable development: economic; environmental; and social",[76] but it argues that "it is not practical to have […] sectoral rights of representation on the Board. It would be too big and too unwieldy".[77] The Government intends the MMO to establish a stakeholder advisory committee and other committees and subcommittees to ensure all relevant interests are heard in the decision-making process.[78]

47. We agree with our witnesses that it is necessary for the MMO to be able to access appropriate expert and specialist advice, in particular scientific advice, and for interested sectors to be represented in the MMO's decision-making processes. However, we understand the Government's position that it is impractical to include sectoral rights of representation on the MMO board and we do not think it is necessary to prescribe the make-up of the board in the Bill. We recommend that the requirement for the Secretary of State to 'have regard to the desirability' of ensuring a variety of skills and expertise on the MMO board be strengthened to reflect the necessity of including skills and expertise from the 'three pillars' of sustainable development.

Functions, capacity and resources of the MMO

48. The Government intends that the MMO will be based on the existing Marine and Fisheries Agency, an Executive Agency of Defra, staffed by civil servants, which is directly answerable to a Minister. The earliest date that the MMO could be established is April 2010. The Minister of State confirmed that "the Government is moving civil servants to the MMO; civil servants from DfT, from BERR as well and Defra staff are moving to the MMO, and Defra staff are moving to the MFA now. We are beefing up the MFA because it is a vital organisation that needs to be able to continue its effective operation from when the MMO goes live. We hope that will be 2010".[79] The Government intends that the MMO will develop its role and responsibilities incrementally following its establishment.

49. The Bill transfers to the MMO existing sea fisheries, marine consents and nature conservation functions (including functions currently with Natural England, the MFA, BERR and DfT), including the power to grant various licences. It will make decisions on applications, set and monitor conditions on marine developments such as tidal and wave power projects, jetties, moorings, aggregate extraction and dredging. It will also administer Harbour Orders and license exemptions from nature conservation legislation. Further, the Secretary of State can agree with the MMO that it will fulfil "any marine function", and the MMO itself can designate, via 'agreement', any functions to other bodies including the Environment Agency, the Inshore Fisheries Committee Authorities (IFCAs) or harbour authorities.[80] The explanatory notes to the draft Bill state that

    "Not all functions we intend the MMO to have will be given to it [by directly transferring functions through the primary legislation]. Other clauses of the draft Bill make new or existing marine functions delegable by direction or by order. This enables Ministers to use these mechanisms to give these functions to the MMO. Where functions that the MMO is to undertake are currently set out in secondary legislation, we will amend that legislation directly, rather than in the draft Bill".[81]

50. As the Bill stands, there will be no direct role for the MMO in oil and gas licensing, renewable energy developments over 100MW, major port infrastructure (such as wharves), carbon capture and storage (CCS), bridges, tidal barrages and fishing by foreign national vessels beyond 6 nautical miles. Blaise Bullimore, a conservation scientist, said

    "the creation of the new MMO is one of the most positive single proposals contained in the document; but only if it is genuinely and fully multi-sectoral. Clearly it will not be. The exclusion of several key government departments' marine interests and the lack of involvement by the devolved administrations can only compromise the MMO's considerable potential".[82]

Several submissions expressed concern that the exclusion of these key sectors "runs the risk of establishing a weak and ineffective marine planning system from its inception" and contradicts the Government's Better Regulation agenda.[83] The Renewable Energy Association expressed surprise that, as the owner of the seabed, the Crown Estate was not more involved than any other marine stakeholder or consultee in formulation of the Marine Bill, and thought that it would have been more helpful to developers if the marine licensing system and seabed leasing arrangements could have been integrated in the Marine Bill.[84]

51. Others were concerned that the functions that the MMO will actually undertake are unclear. The Crown Estate felt that

    "The draft Bill does not adequately define the MMO's actual or potential delivery functions, including key objectives, external relationships, consultation arrangements, approach to risk, and relationships with devolved government amongst other issues. On the one hand Defra has made it clear in policy documents how it intends the Secretary of State to use some mechanisms in favour of the MMO but on the other hand it is not clear how the Secretary of State will use other mechanisms […] We have concerns about the evolving nature and increase in the MMO's catalogue of functions by virtue of subsequent primary and secondary legislation and the significant amount of discretion for the MMO".[85]

BWEA stated that "greater clarification of the objectives and character of this organisation is required",[86] and agreed with Oil and Gas UK that the lack of clarity around the role of the MMO and whether it will have sufficient resources could itself reduce the confidence of investors in marine developments.[87] Associated British Ports noted that the shape of the MMO was dependent on whether it takes over or simply overlaps with existing regulatory roles in the marine environment.[88]

52. Clause 15 of the draft Bill enables the MMO, with the approval of the Secretary of State, to authorise a 'designated body' to perform any of its functions. There is a short list of such bodies in the draft Bill but more can be added by order of the Secretary of State. Apart from a clear indication that they can be local authorities it is not clear what others may be added to that list. There is no requirement for them to be public bodies, which widens considerably the pool of potential organisations for designation.[89] The Secretary of State needs only to be satisfied that the body in question has at least one purpose or function that "is, or is related to or connected with, a marine function" of the Secretary of State.[90]

53. Overall, it is clear that the Secretary of State will have a large amount of discretion over what may be added to the existing list of designated bodies in the draft Bill. It is surprising that additions are not subject to the draft affirmative procedure and that there is no obligation on the Secretary of State at least to consult a prospective 'designated body' before adding it to the list. It is also clear that Clause 15, despite the approval role for the Secretary of State, provides a significant power to the MMO. The explanatory notes state that Clause 15 "is to enable the MMO to make arrangements for the most effective discharge of its functions".[91] This lack of clarity about which bodies may be added to the list and what the scope of the authority designated to them may be (and therefore who may end up exercising the MMO's functions) makes the uncertainty amongst marine stakeholders understandable. Defra should provide, in a policy document, a clear and full justification for both the Secretary of State's powers to add 'designated bodies' to the list in the draft Bill and the powers of the MMO under Clause 15, including examples of the expected use of these powers.

54. The Government intends to retain as much flexibility as possible, and as such, it is difficult to know whether the allocated resources are likely to be sufficient. Without designation of specific regulatory functions on the face of the Bill proper scrutiny of the ability of the MMO to meet its responsibilities will not be possible, either by Parliament when the Bill is introduced, or by the public. We think this will undermine the Government's intention that the MMO should be an open and transparent organisation which commands public confidence. The Government should reflect on its approach further, with a view to providing greater clarity in the Bill of the intended functions of the MMO.

RESOURCES

55. The National Trust, JNCC, UK Major Ports Group and British Ports Association all emphasised the importance of adequate funding for the MMO and those providing advice to the MMO.[92] The Marine and Fisheries Agency stated that the creation of the MMO would require 40 additional staff to be added to its existing 180 staff.[93] There was widespread scepticism that this level of resource was sufficient.[94] The Local Government Association felt that 40 people could not possibly deliver the level of marine planning required, particularly given the "intimate nature" of estuary planning.[95] The Environment Agency concurred, stating that "we, likewise, believe that the 40 additional resources is not adequate, particularly when you think of the interaction and consultation that will be needed with a wide range of stakeholders".[96] The British Marine Aggregate Producers Association (BMAPA) stated that the MMO would need to be adequately resourced to meet its wide-ranging functions and responsibilities, both in terms of the number of personnel and their respective skill set.[97] While the Minister told us that he was assured that "we have adequate resources to implement what we need to within the law and, hopefully, go beyond",[98] we are not convinced that a net addition of 40 staff to those allocated to the MFA will be sufficient to enable the MMO to deliver even the duties set out in the Bill, in particular the requirement to implement an entirely new system of marine planning, let alone to meet the aspirations which we and the Government share to create a strong advocate for the UK's marine area. The Government should revisit its staff planning for the MMO and we recommend that, before the Bill is introduced, it should subject its analysis of the number of extra staff required to independent audit and make the findings public to inform the scrutiny of the Bill as it passes through Parliament.

GOVERNANCE ISSUES

56. The British Wind Energy Association (BWEA) noted that the MMO's dual role in policy and decision-making was a potential source of conflict, particularly given the requirement of independence in decision-making under Article 6 of the European Convention on Human Rights.[99] Given the considerable uncertainty about exactly what the MMO's full range of roles will be, it is difficult to assess the actual conflict between them. The policy paper attached to the Bill states that the MMO will "make decisions according to the Marine Policy Statement and marine plans".[100] Defra made it clear to us that the Government would remain responsible for marine policy.[101] If this is indeed the case, the MMO would not be making decisions on its own policies; however, the policy paper also states that the "MMO will prepare a series of marine plans to articulate what this policy statement means for different areas of the sea and coast".[102] We draw the Government's attention to the potential for conflict between the MMO's policy and decision-making roles, but note that it is difficult properly to scrutinise the interaction of those roles due to the lack of clarity in the draft Bill as to what those roles will be in practice.

57. The licensing regime set out in Part 3 of the draft Bill gives the 'appropriate licensing authority', for England, the Secretary of State, and for Wales, the Welsh Ministers, most licensing-related powers: in England they are largely to be delegated to the MMO.[103] We heard some criticism of the lack of provision for an appeals mechanism against MMO licensing decisions.[104] The policy paper indicates that an appeals mechanism to an independent tribunal is expected,[105] but this is not provided for in the Bill; if this situation were to continue, judicial review would be the only option. Several factors make the lack of appeal mechanism particularly significant: there are currently no statutory time limits proposed in the draft Bill on the MMO's licensing decisions, as for example are provided in the Planning Bill,[106] and the 'catch-all' nature of clause 66(3)(d), which allows a licensing authority to revoke a licence for 'any other reason that appears relevant' which will have a detrimental effect on the confidence of investors in the marine renewable energy sector.[107] We recommend that the Bill provide a clear mechanism for appealing licensing decisions of the appropriate licensing authority, whether to the Secretary of State or the Marine Management Organisation, and that a timeframe for decision-making is set out in the Bill.

Relationship between the MMO and other bodies

58. The MMO's success will depend on its effective interaction with many other public bodies, including Defra, the Environment Agency, Joint Nature Conservation Committee, Natural England, the Infrastructure Planning Commission, BERR, the Marine Science Coordinating Committee, IFCAs, the Crown Estate, local authorities, harbour authorities and Cefas. It will also have to work with its equivalents for Wales, Scotland and Northern Ireland. It is unclear what the relationships between the MMO and all of these bodies will be, particularly since many of the MMO's functions will be transferred to it using powers provided in the draft Bill or secondary legislation, and the MMO will in turn be able to delegate many of those functions.

59. The Government has said that the detail of relationships with other bodies will be set out in memoranda of understanding.[108] Understandably, this was not sufficient for many of our witnesses. Evidence from Welsh and Scottish organisations argues for formalised working arrangements within the Bill to ensure UK-wide coordination.[109] Several submissions noted that in Wales the Welsh Assembly Government intended to assume functions to be performed by the MMO in England. However, the MMO having some responsibility for non-devolved activities in Wales will "result in a complicated mix of reserved and devolved functions in Welsh waters" and that it is therefore essential that the marine governance arrangements in Wales are well coordinated with the MMO.[110] The Wales Coastal and Maritime Partnership commented that, although it is "difficult to legislate for individuals and organisations to cooperate and integrate their activities", there is a need for the draft Bill to consider the role of stakeholder groups such as coastal partnerships in the MMO's consultation processes, as legislative force would "help the process of integration".[111] Commercial bodies also wanted a statutory consultation footing[112] and locally-focused organisations were concerned that local needs should not be marginalised,[113] with local authorities arguing that the MMO should have a statutory duty to cooperate with them in the planning and licensing areas, and estuary management.[114] A number of conservation interests argued that statutory nature conservation agencies should have a mandatory rather than discretionary function advising the MMO as experts on environmental issues.[115] In her response to the Government's consultation, Professor Lynda Warren referred to the number of organisations which will be required (either by the primary legislation or secondary legislation) to provide advice to the MMO and asked that the impact of such advisory obligations on their resources be remembered.[116] "If the nature conservation agencies are to be put under a duty to provide advice to public authorities some boundaries must be set as to the scope of this advice otherwise there is a danger that the agencies will not cope. The resource issues implied by this clause should not be under-estimated".[117] We recommend that the Government create statutory consultees where appropriate for decisions to be made by the Marine Management Organisation. We believe that this would assist effective cooperation with the many bodies with which the MMO will need to work, and streamline potentially difficult decision-making processes.

Role of science and access to data

60. Many witnesses considered scientific capacity integral to the functioning of the MMO.[118] Clause 23 of the Bill requires the MMO to keep abreast of all matters relating to its purpose and allows it to research relevant matters, either by itself or in association with others, to commission research (alone or jointly) or fund or otherwise support research undertaken by others, and to make the results of research available on request.

61. The main source of in-house marine scientific advice to Defra at the moment is Cefas. It stated "there is a strong expectation that [we] will play a central role in providing a broad range of marine science and advisory services to the MMO…we aim to put in place partnership agreements that build on our extensive current interactions with MFA and UK Government Departments that will enable long term continuity of services and advisory support as responsibilities move into the MMO".[119] The Secretary of State put this in a wider context:

    "The MMO will have its own knowledge and expertise but it will also draw on a lot of other peoples'. Since an important part of what the Marine Bill is seeking to do is to better bring together a lot of knowledge, a lot of expertise, a lot of views and a lot of opinions about what should be happening, for me the question is: have you got the right structure to enable you to bring all that together so that you have, in the case of your question, sufficient scientific expertise, so the JNCC and Natural England and Cefas, and others, and the MMO will need to have people who have got the ability to interpret that scientific information in order to inform the decisions that it makes. I think if you have got the network right and you have got the communications right, and people are talking to each other (going back to the original question about this being an open, approachable organisation that is in conversation all the time with all of the other bodies and organisations that have a lot of knowledge), that is the best way of ensuring that the MMO can do its job effectively".[120]

62. The Scottish Association of Marine Science highlighted that long-term data sets and sustained observation are fundamental to managing the marine environment.[121] Dr Matthew Frost, of the UK Marine Biological Association stated "the aspirations of the MMO to be a conduit to gather data and disseminate to the wider research community I think are very laudable and I see no reason why this should not happen—they coincide with a lot of international efforts to do the same thing".[122] Mr Richardson described how within the EU the European Marine Observation and Data Network (EMODNET) is aiming to develop a collective system of data which is available to everyone, using the same level of detail to allow a co-ordinated approach to marine planning and conservation.[123] For him, access to science and new data will be critical to make informed decisions that balance environmental and social considerations.[124]

63. An important question is therefore how the MMO will be able to access, analyse, and where necessary commission the sort of data and scientific information it requires. The Royal Society of Edinburgh, in its response to the Government's consultation, said that "neither Defra nor the proposed MMO will have sufficient resources to sponsor all of the marine science that they need to support the functions set out in the Bill. The levels of resource required to fulfil the ambitions set out in the Draft Bill are well beyond current expenditures".[125] The National Centre for Ocean Forecasting suggested that it was difficult to discern the level of scientific expertise that would be within the Marine Management Organisation,[126] and the Plymouth Marine Laboratory queried how within the MMO the links were going to be made between marine spatial planning and scientific input, which would be key to its success.[127] The National Environment Research Council (NERC) and the JNCC suggested that the MMO will need to be suitably equipped to be an intelligent customer for science, able to interpret science information for both scientists and policymakers.[128] The Marine Biological Association stated that "the issue of MMO activities being based on scientific evidence is also important in ensuring that the best available conservation science is used to make decisions about protection of species and habitats and that nature conservation, as one of the duties of the Marine Management Organisation (MMO), is supported by conservation scientists within that organisation",[129] but that "if you look at the actual Bill, there is a lot of emphasis on the need for research […] but not a lot on the mechanisms. Another possibility […] is having an expert advisory panel made up of scientists. I would like to see somebody within the MMO itself who took on this responsibility for ensuring the engagement with the research community".[130] The RSPB suggested that when assessing applications it should be mandatory for experts to be consulted, as did Wildlife and Countryside Link.[131]

64. The MMO must have sufficient high-level in-house scientific capacity to ensure it can commission research effectively and be an intelligent interpreter of other bodies' research. We consider that scientific input is of sufficient importance to be reflected explicitly in the Bill. The MMO should establish a scientific advisory panel to examine the quality of science used by the MMO and to ensure that it is making best use of available information and technology. The panel should report to the MMO board. The MMO should also have a statutory duty to play a strategic role in defining marine science through mechanisms such as the Marine Science Coordinating Committee.

DATA ACCESS

65. A number of witnesses made a broader point about the potential role of the MMO in promoting access to marine data. The British Marine Aggregate Producers Association suggested that the present approach to marine data acquisition in the UK is not particularly integrated, and thought that there was an opportunity to provide the Marine Management Organisation with a formal duty to be responsible for marine mapping and marine data acquisition.[132] The Marine Biological Association stated that "data availability is sparse for marine ecosystems and some data is quite old" and that "the Marine Bill must acknowledge the need to continue to build and supplement our evidence base to underpin and improve our understanding, and give levels of certainty or confidence to our scientific advice". [133] To facilitate this, the RSPB, Environment Agency and Wales Coastal Partnership argued that the MMO should have a lead role in co-ordinating the provision of marine data and research across different organisations and scientific establishments, acting as a hub for marine expertise, knowledge and data, identifying strategic data gaps and playing a role in the 'free flow' of data in the context of science and research.[134] It was suggested that without research and data management being specified as a requirement in the Bill the necessary financial backing might come under threat.[135] In response to concerns about the high cost of data, the Secretary of State said

    "I think we have got a fair amount of information to get to work already, and we are beginning to plan ahead in relation to specific areas. We have put some money aside in relation to this to support the gathering of more data, and for each of the regional plans that are going to be drawn up there is going to be money put in as part of that for further data gathering. There will be some gaps and there are some things we do not yet know. The truth is that the more we do find out as this process continues the better position we will be in to take the right decisions on the basis of the information. Adding the right data is going to be really important for the process of managing what happens in the seas and the work of the MMO. It is also, of course, going to be hugely important in taking decisions about the designation of Marine Conservation Zones. I think we are in a reasonable place on that but it will be work in progress—that is the truth".[136]

The MMO should have a duty under the Bill to promote the publicly-funded production of marine data, to collect such data and to make them publicly available. In order to do this it will need to have the right levels of scientific expertise to be able both to commission research from other organisations and to be an intelligent interpreter of scientific evidence.

DATA CHARGES

66. Sharing data is currently inhibited by the charges which are made even for access to publicly-funded data. The JNCC suggested that the relatively high cost of obtaining marine scientific data from government agencies significantly impairs the research community's capacity to build and share knowledge.[137] The NERC said that the current funding models regarding existing data, for example those held by trading funds such as the UK Hydrographic Office, would necessitate charging to release data to the MMO.[138] The National Environment Research Council noted that the Impact Assessment of the Draft Bill did not indicate the intention to provide funding for the MMO for the commissioning or purchase of research.[139] The MMO will need to be funded adequately to enable it to access privately owned and public data alike, on the current public funding models. Alternatively, and for us preferably, the MMO should be empowered to collect data on a cost-free basis from any public body. The Bill also empowers (but does not require) the MMO to charge for sharing the results of research it undertakes or commissions itself. It follows that we think it inappropriate for any recharges to be made by the MMO for such research other than for the marginal costs involved in retrieving and reproducing the information.

67. The MMO will not represent the UK in negotiation of marine policy in international fora.[140] However, as the principal competent authority for the Marine Strategy Directive, it will have to engage with the competent authorities of other Member States for functions such as regional sea marine spatial planning and to share relevant data. The National Centre for Ocean Forecasting stated that

    "One of the functions that the MSCC intends to fulfil is to have a working group which would coordinate this sort of international engagement, at least with the inter-governmental groups like ICES and OSPAR and also the International Oceanographic Commission. I would very much hope that the MMO would be part of that working group. There is other much less formal scientific international engagement, for example the global ocean data assimilation experiment, of which I happen to be part".[141]

In order to integrate the MMO into the wider international network of marine policy, we recommend that an MMO representative be included on the UK delegation to the Intergovernmental Oceanographic Commission.

Transitional arrangements

68. The creation of the MMO will require the transfer of functions from the Marine and Fisheries Agency and other bodies. In the interim, it is necessary that all those functions currently performed continue to be so, and that there is as seamless a transition as possible. The Government suggests that "as the MMO is a new organisation, there will be few transitional arrangements associated with setting it up. However, some transitional clauses will be needed to ensure continuity in functions being transferred to the MMO from the MFA and other bodies".[142]

69. Provision for such transition is difficult to assess given that the full functions of the MMO are unknown at this stage. However, it is clear that important development and conservations decisions will be taken in the marine area in the interim period before the MMO is a functioning entity, potentially including the designation of Marine Conservation Zones and the granting of consents to build renewable energy installations. There will also be ongoing regulatory functions to perform, such as Harbour Revision Orders.[143] The Crown Estate wants provision for transitional arrangements on the face of the Bill to "prevent uncertainty during the move";[144] the British Ports Association raised concerns about the transitional arrangements for the development of the MMO and how that sits alongside the development of the Infrastructure Planning Commission.[145] For commercial interests it is particularly important to establish predictability and stability. We therefore invite the Government to set out its timetable for the handover of specific functions in the transition to the MMO, to ensure that there is minimal disruption to developments, either existing or about to enter the licensing system.

70. Witnesses from the energy industry in particular expressed concern about the potential for delays in the new planning and licensing system affecting developer confidence and investment. Mr Carcas from Pelamis Wave Power Limited said "the danger is that additional bureaucracy is introduced that could slow down that process, particularly while things like the marine planning statement and zones are being identified. People may say, "You'll have to wait until we have done all of this first before things can proceed". It is clearly a concern".[146] BWEA spoke of the transition period between now and when the planning framework is in place as potentially a "big bun fight" between different interested parties trying to "gazump'" the framework and secure their area of the seabed.[147] They noted that the Crown Estate has very recently announced areas for which it will develop wind farms, while the process of stakeholder consultation in MCZ designation has already begun. The BWEA argued that there "needs to be a transitionary process which manages that and avoids [it]".[148] It would be counter-productive if the result of this scrutiny process, the consultation periods and the establishment of the planning system was a rush of pre-emptive developments, or informal designation processes. This would undermine the intention of the Government and the policy of sustainable development. We believe it is critical that the Government put in place guidelines for all relevant departments and licensing bodies as soon as possible, from now until the functioning of the new planning and licensing systems, in order to ensure the integrity of the process and outcomes.

71. In cases where the Bill creates open-ended powers by which the MMO may come to exercise functions (in particular clauses 14 and 35(2)) Defra should set out a clear and full justification for such powers, including examples of their expected use. The Government should also explain how it envisages secondary legislation being used to augment the powers of the MMO. This could be done by means of a list, to be revised on an ongoing basis, setting out the types of 'marine function' that may be the subject of a clause 14 agreement.

72. There is a particular issue about licensing of marine dredging, much of which is not currently subject to regulation. Although this activity will be subject to the new marine licensing regime, the policy intention, which was broadly welcomed, is that most will be exempted at a later stage.[149] The Government envisages working with harbour authorities, dredgers and others over the next few years "to establish a sound evidence base on which to exempt the vast majority of such cases from marine licensing".[150] However it also states that it will "take time" to exempt those dredging activities and in the transition period operators would have to apply for a licence.[151] This situation could create a problem in the transitional period, which is of concern to the British Marine Federation and the British Marine Aggregate Producers Association. They suggested that the influx of licence applications from operators who have not had to be licensed until the implementation of the Bill might overwhelm the MMO and that industry would suffer from resulting delays.[152] Industry was also anxious that subsequent applications for exemptions which might be required could be dealt with promptly. Dredging is an unglamorous but very necessary activity and we recommend that the concern of the industry is given due consideration by the Government. It may be that timescales for licensing decision-making should be built into the Bill to ensure industry is not disadvantaged by the increased administrative burden of applying for licences for previously unlicensed activity, and subsequently then applying for exemptions.

Maritime and Coastguard Agency

73. The Maritime and Coastguard Agency (MCA) is an executive agency of the Department for Transport, responsible for implementing the UK Government's maritime safety policy. Defra said that "careful consideration has been given to the relationship between the MMO and the MCA in preparing the Marine Bill, as there will be considerable overlap between the geographic area of operation of the two organisations".[153] The Government considered and rejected the idea of merging the MCA and the MMO because they have "discrete and very different functions" and "it is important to maintain the MCA as a separate organisation with a clear, single focus on shipping and maritime safety".[154] The MMO will

    "consult and work with the MCA whenever its activities are likely to impinge on issues of maritime safety, including the preparation of marine plans, marine licensing decisions that have a potential impact on navigation, the designation of Marine Conservation Zones, and the exercise of enforcement powers […] Similarly the MCA will ensure that the MMO is involved in any of the Agency's activities which might have implications for the MMO's responsibilities. For example, we expect the MMO (as MFA currently does) to attend the Fishing Industry Safety Group (FISG), which advises DfT through the MCA".[155]

The Government expects a Memorandum of Understanding between the MMO and MCA, as with other bodies.[156] We recommend that the Government formalise in the Bill the consultation requirements between the Maritime and Coastguard Agency and the Marine Management Organisation.


55   Q651 Back

56   DMB 76 Back

57   Q65 Back

58   Qq651-652 Back

59   Clause 2(1) Back

60   Q55 Back

61   Q604, DMB 43, DMB 20, DMB 22, DMB 47, DMB 17, DMB 81 Back

62   Q55 Back

63   Q604, Q361, Q196, Q223, Q228, Q55, DMB17, DMB78 Back

64   DMB 17 (The comprehensive integrated management of human activities, based on the best available scientific knowledge about the ecosystem and its dynamics, in order to identify and take action on influences which are critical to the health of marine ecosystems, thereby achieving sustainable use of ecosystem goods and services and maintenance of ecosystem integrity). Back

65   DMB 102 Back

66   DMB 10; others also supported this call for a duty to further the Water Framework Directive objectives, eg DMB 27 Back

67   Q377 Back

68   Clauses, 2, 40 and 46 Back

69   http://www.sustainable-development.gov.uk/what/principles.htm Back

70   Cm 7351, explanatory notes, p 60, para 100 Back

71   http://www.sustainable-development.gov.uk/progress/national/index.htm Back

72   DMB 93 Back

73   Schedule 1, para 5 Back

74   For example, the Chamber of Shipping and the United Kingdom Major Ports Group thought a maritime professional from the shipping or ports sector should be on the board: DMB 34 and DMB 31 Back

75   DMB 53, DMB 83 Back

76   Cm 7351, p28 Back

77   Q648 Back

78   Q648  Back

79   Q675 Back

80   Part I, Chapter III Back

81   Cm 7351, explanatory notes, p 28, para 41 Back

82   DMB 60 Back

83   DMB 21, DMB 25, DMB 11 Back

84   DMB 98 Back

85   DMB 64 Back

86   DMB 36 Back

87   Qq361-2, DMB 36 Back

88   Q96 Back

89   Clause 16(4) Back

90   Clause 16 Back

91   Cm 7351, explanatory notes p 40, para 65 Back

92   DMB 21, DMB 17, DMB 31, DMB 32 Back

93   Q71 Back

94   Q181, DMB 31, DMB 34, DMB 35, DMB 89 Back

95   Q4 Back

96   Q5 Back

97   DMB 35 Back

98   Q672 Back

99   DMB 36 Back

100   Cm 7351, p26 Back

101   DMB 109 Back

102   Cm 7351, p70 Back

103   The policy paper says 'Ministers expect to makes use of their powers in the Bill to delegate their [licensing] functions to the MMO within a couple of years of the Bill receiving Royal Assent,' Cm 7351, p73. Back

104   DMB 78, DMB 86 Back

105   Cm 7351, p73 Back

106   DMB 31 Back

107   DMB 89 Back

108   Cm 7351, p29 Back

109   DMB 43 Back

110   DMB 47, DMB 24, DMB 25, DMB 11 Back

111   DMB 47 Back

112   DMB 34 Back

113   DMB 39 Back

114   For example, DMB 40 Back

115   DMB 16, DMB 20, DMB 22 Back

116   DMB 112 Back

117   DMB 112 Back

118   For example, the Plymouth Marine Laboratory thought science "must be at the heart" of the MMO: DMB 87. Back

119   DMB 58 Back

120   Q667 Back

121   Q472 Back

122   Q516 Back

123   Q578 Back

124   Q589 Back

125   DMB 111 Back

126   Q509 Back

127   Q510 Back

128   Q551, DMB 17 Back

129   DMB 85 Back

130   Q471 Back

131   DMB 20, DMB 22 Back

132   Q142 Back

133   DMB 87 Back

134   DMB 20, DMB 76, DMB 47  Back

135   DMB 47 Back

136   Q666 Back

137   DMB 94 Qq61-62 Back

138   DMB 62 Back

139   Q552 Back

140   Q660 Back

141   Q523 Back

142   Cm 7351, p53 Back

143   DMB 32 Back

144   DMB 64 Back

145   Q86, DMB 79 Back

146   Q440 Back

147   Q378 Back

148   Q378 Back

149   Clause 67 Back

150   Cm 7351, p38 Back

151   Cm 7351, p73 Back

152   DMB 46, DMB 35 Back

153   DMB 107 Back

154   Ibid. Back

155   Ibid. Back

156   Ibid. Back


 
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