Marine Licensing (Licence Application Appeals) Regulations 2011

Lord Henley Excerpts

Wednesday 16th March 2011 Grand Committee

Moved By

[Lord Henley]

That the Grand Committee do report to the House that it has considered the Marine Licensing (Licence Application Appeals) Regulations 2011.

Relevant document: 16th Report from the Joint Committee on Statutory Instruments.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley)]

My Lords, the Committee will be aware that my honourable friend the Parliamentary Under-Secretary for Natural Environment and Fisheries presented these statutory instruments in another place on 7 March, where they were fully supported and passed with relatively little debate. The regulations form part of the new streamlined and transparent marine licensing system, to be introduced in April this year under Part 4 of the Marine and Coastal Access Act 2009, which we all remember. The Act was broadly welcomed by all parties when it was debated in both Houses, although it took some time.

The new system replaces two out-of-date and overlapping pieces of primary legislation—Part 2 of the Food and Environment Protection Act 1985 and Part 2 of the Coast Protection Act 1949—and establishes a single system for approving most projects at sea. The Marine Management Organisation, established in April last year, will carry out most of the Secretary of State’s licensing and enforcement functions. The Secretary of State for Energy and Climate Change will license oil and gas-related activities. One feature of a modern, more transparent and accountable licensing system is the right to challenge a decision made by a regulator. The regulations before the Committee today establish two rights of appeal.

First, the Marine Licensing (Licence Application Appeals) Regulations 2011 are made under Section 73 of the Marine and Coastal Access Act. These allow an applicant to appeal to an independent body within six months of a decision on their marine licence application. These appeals will be handled by the Planning Inspectorate. The regulations set out what an applicant must do to appeal against a decision, as well as the responsibilities of the licensing authority and the appeals body. The Planning Inspectorate will decide whether the appeal is to be heard by means of written representations, a hearing or—in the larger cases—an inquiry, based on the complexity of the case, as in all other planning matters. The rules that apply to each type of process are set out in the regulations and have been aligned, in general, with similar regulatory regimes.

The draft Marine Licensing (Notices Appeals) Regulations 2011 are made under Section 108 of the Act. The Act makes provision for a range of notices to enable a more proportionate approach to enforcement in the marine environment, designed to bring people into compliance. The regulations before the Committee set out a right of appeal against certain notices to the independent First-tier Tribunal, which was set up under the Tribunals, Courts and Enforcement Act 2007, specifically to hear civil enforcement appeals. The instrument sets out the powers of the tribunal in relation to appeals against notices and the notices that can be appealed. Appeals will follow the rules and procedures of the First-tier Tribunal General Regulatory Chamber, which are set out in secondary legislation that came into force in 2009.

I give an assurance that the Government consulted on both sets of regulations in the summer of 2010. Respondents broadly welcomed the introduction of both the appeals mechanisms and the detailed proposals. The devolved Administrations in Scotland, Wales and Northern Ireland are licensing authorities under Part 4 of the Marine and Coastal Access Act and are each making their own regulations under Sections 73 and 108 of the Act. Therefore, what we are talking about today relates purely to England.

I hope that the Committee will agree that the proposals set out in these regulations provide the level of transparency and accountability that the public have come to expect from modern regulators and I hope that the Committee will join me in supporting this measure. I beg to move.

--- Later in debate ---

[Baroness Quin]

My Lords, I, too, welcome these regulations. I thank the Minister for bringing them forward today and for the way in which he spoke to them. As he pointed out, they have already been considered in the other place, where they were generally supported. Indeed, as the noble Lord, Lord Tyler, recognised, they are supplementary provisions to the Marine and Coastal Access Act 2009, which, as he and the Minister pointed out, commanded strong cross-party support in both Houses of Parliament.

These regulations deal with licensing and enforcement issues. Under them, the Marine Management Organisation takes over most of the licensing and enforcement functions of the Secretary of State. We agree that the MMO is the suitable body to carry out these functions. We very much support the aims of making the system clear and transparent, which was one of the points that the noble Lord, Lord Tyler, stressed. We also support the fact that these two instruments, which are obviously linked, are being taken together in this debate, but perhaps I could ask one or two questions relating to the instruments separately, arising from reading the documentation in front of us.

Regulation 5(2) of the licence application appeals regulations mentions that the instrument,

“may provide for payment to be made to the appointed person”.

However, it was not clear to me what kind of payment this was. Obviously, we are talking about an appeals system and we want people to feel that they are able to appeal if they believe that a decision has not been correct. I simply wanted to ask what kind of payment, if any, might be involved in that process. I may have misread it, but I would be grateful for clarification from the Minister.

The Minister will not be surprised to hear me question whether the MMO has the staffing and resources necessary to undertake these functions. Page 2 of the impact assessment mentions the cost to the MMO in terms of training, new forms that have to be produced, changes to the IT systems and so on. I hope that the Minister can reassure us that the staffing and resources are there to be able to carry out these tasks.

I note that for the licence appeals system there will be a review in three years, but under the notices regulations the review will be two years after the introduction of the system of new monetary penalties and notices. I am not quite sure what date that means for the notices system, but I wondered, given how linked the two things are, whether the review period should be more or less the same for both.

The notices regulations introduce a,

“more flexible toolkit of enforcement options”.

We support that. As the Minister said, these provisions apply only where the Secretary of State is the appropriate licensing authority, so we are talking about England. I wondered, however, whether the devolved Administrations will have a similar or even the same system and in particular, in terms of monetary penalties, whether the devolved Administrations will have systems that are very much aligned with the one that will be introduced in England.

I found the impact assessment generally very helpful. However, I refer the Minister to paragraph 61 on page 21, which talks about the cost of familiarisation with guidance. It says:

“It is assumed that 20% of those holding FEPA licence will each spend 40% of a working day familiarising themselves with the guidance”.

To me, that somewhat begs the question: what about the other 80 per cent? Perhaps the answer is elsewhere in the document; if I have simply misunderstood it, perhaps the Minister can put me right on that point, either now or in writing.

As my colleague William Bain noted in the other House, these regulations comply with the Hampton recommendations on taking unnecessary matters out of the courts. As the noble Lord, Lord Tyler, said, they introduce a reasonable system, so I am happy to support these additional measures, which complement and supplement the 2009 Act.

[Lord Henley]

My Lords, I am very grateful to the noble Baroness and to my noble friend Lord Taylor for their remarks. I will join my noble friend Lord Tyler in paying tribute to the previous Government—it is only occasionally that we do such things—for the passage of the Marine and Coastal Access Bill. I would also add how sorry we are that the noble Lord, Lord Greaves, who spent so much time on that particular Bill, as my noble friend Lord Taylor remembers it, is not able to be here today.

As regards how this legislation works, my noble friend Lord Tyler said that the proof of the pudding will be in the eating, and he referred to the problem in terms of the definition of “complexity”. I can give some sort of assurance from my ancient memories as a pupil at the planning bar—a very, very long time ago—that this is well understood in planning law. In terms of transposing—perhaps I may use that EU expression—these matters on to general planning law, there will be a great problem. Obviously, there will be questions of fact and degree as to where something lies and whether it should be undertaken by written representation, by some other appeal or by general public inquiry. However, these matters have previously been dealt with without too much problem.

The noble Baroness, Lady Quin, first asked about payments. I understand that a salary or fee will be paid by the planning inspectorate to any appointed inspector, as has always been the case. That is what happens with terrestrial planning systems—they are paid for the work they do, as is right and appropriate. She also asked about staffing, saying that I would not be surprised by her question on whether the MMO would be able to meet its commitments. We have certainly taken advice from the MMO enforcement team on the level of resource required for this activity. It is perfectly happy that it has budgeted accordingly and will be able to deal with everything that it needs, as set out in the impact assessment.

I shall turn to the noble Baroness’s complicated question—I am not sure whether I have got it right—about the different review timescales we have set out for two different things. One is of three years and the other two years. I understand that we are committed to monitoring and reviewing the use of notices after two years. Obviously, appeals on that system are different. However, if I have not quite understood her exact concern, I will certainly write to her and set out a proper response.

I am grateful that there is general agreement on both these two orders and the fact that they should be agreed. If I have failed to answer any of the concerns expressed by the noble Baroness and the noble Lord, Lord Tyler, I will obviously do so in writing. In the mean time, I commend the regulations to the Committee.

Motion agreed.