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Marine and Coastal Access Bill [HL]

My Lords, I am sorry that the noble Lord, Lord Wallace, thinks that I was stretching credulity when we discussed this in Committee. I am ever-hopeful about our relations with the Scottish Parliament and Executive, but let me try again to respond to what is clearly a very interesting amendment. It looks reasonable, but I have taken further advice since Committee, and the amendment has serious implications that might set a legal precedent, which is enough to get my advisers worried. We are not aware of any precedent in post-devolution legislation which limits the possibility of raising an action against Scottish Ministers in the Court of Session. Even the Scotland Act and the Human Rights Act do not contain such a provision and leave the question open to the normal rules of jurisdiction. The noble Lord will understand that we do not want to take a different approach, in principle, in the Bill. Clause 59(6)(a) relates only to the English inshore and the Welsh inshore region. There is a mirror provision in the Marine (Scotland) Bill for the Scottish inshore region. As regards Clause 59(6)(b), its sole purpose is to provide that challenges relating to decisions about the offshore regions are brought in superior courts. Which superior court it is brought in will be determined by the normal rules of jurisdiction. In other words, an applicant can go to any court that comes within the description of a superior court and the court itself can decide whether it has jurisdiction or not. The Bill does not require matters to be referred to the High Court; there is no preference for the English or Welsh system over the Scottish courts. In practice, most, if not all actions that may be raised against a marine plan or the amendment of a marine plan, for an area within the Scottish offshore region, will be heard in the Court of Session. However, UK businesses operating in UK waters offshore from Scotland should, we believe, have the right to bring a case in the High Court if they consider that to be the most appropriate court. As the clause is drafted, it is left to the courts to determine where it is most appropriate for an application to be heard. I understand that that follows the normal rules of jurisdiction. Our expectation is that cases related to plans in the Scottish offshore region will go to the Court of Session and it is most likely that the High Court would decline jurisdiction over purely Scottish cases. Cases involving both UK and Scottish Ministers may be more complicated, because they relate to the Secretary of State’s actions in agreeing to the plan in the Scottish offshore region, but there is nothing in the Bill to prevent those cases being heard in the Court of Session and no court is set out as more important than another. The courts themselves will be able to decide each application on its merits and, of course, Ministers could apply to a court to decline jurisdiction if they considered the decision inappropriate. Put simply, it is better that cases are determined on a pragmatic case-by-case basis than by reference to rigid rules. However, our major concern is using this Bill to depart from current practice and precedent.