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Marine and Coastal Access Bill [HL]


Marine and Coastal Access Bill [HL]
Schedule 7 — Further provision about civil sanctions under Part 4

249

 

Fixed monetary penalties: other sanctions

2     (1)  

Provision under section 93 must secure that, in a case where a notice of intent

referred to in section 94(2)(a) is served on a person—

(a)   

no criminal proceedings for the offence to which the notice relates

may be instituted against the person in respect of the act or omission

5

to which the notice relates before the end of the period in which the

person may discharge liability to the fixed monetary penalty

pursuant to section 94(2)(b), and

(b)   

if the person so discharges liability, the person may not at any time

be convicted of the offence to which the notice relates in relation to

10

that act or omission.

      (2)  

Provision under section 93 must also secure that, in a case where a fixed

monetary penalty is imposed on a person—

(a)   

that person may not at any time be convicted of the offence in

relation to which the penalty is imposed in respect of the act or

15

omission giving rise to the penalty;

(b)   

the enforcement authority may not issue a compliance notice or a

remediation notice to that person in respect of the act or omission

giving rise to the penalty.

Variable monetary penalties: other sanctions

20

3          

Provision under section 95 must secure that, in a case where a variable

monetary penalty is imposed on a person—

(a)   

that person may not at any time be convicted of the offence in

relation to which the penalty is imposed in respect of the act or

omission giving rise to the penalty;

25

(b)   

the enforcement authority may not issue a compliance notice to that

person in respect of the act or omission giving rise to the penalty.

Combination of sanctions

4     (1)  

Provision may not be made under section 93 and section 95 conferring

powers on an enforcement authority in relation to the same offence unless it

30

secures that—

(a)   

the authority may not serve a notice of intent referred to in section

94(2)(a) on a person in relation to any act or omission where a

variable monetary penalty has been imposed on that person in

relation to that act or omission, and

35

(b)   

the authority may not serve a notice of intent referred to in section

96(2)(a) on a person in relation to any act or omission where—

(i)   

a fixed monetary penalty has been imposed on that person in

relation to that act or omission, or

(ii)   

the person has discharged liability to a fixed monetary

40

penalty in relation to that act or omission pursuant to section

94(2)(b).

      (2)  

Provision under section 93 which results in an enforcement authority having

power to impose a fixed monetary penalty or to issue a stop notice in relation

to the same offence must secure that—

45

(a)   

the authority may not serve a notice of intent referred to in section

94(2)(a) on a person in relation to any act or omission where a stop

 
 

Marine and Coastal Access Bill [HL]
Schedule 7 — Further provision about civil sanctions under Part 4

250

 

notice has been served on that person in relation to that act or

omission, and

(b)   

the authority may not serve a stop notice on a person in relation to

any act or omission where—

(i)   

a fixed monetary penalty has been imposed on that person in

5

relation to that act or omission, or

(ii)   

the person has discharged liability to a fixed monetary

penalty in relation to that act or omission pursuant to section

94(2)(b).

Monetary penalties

10

5     (1)  

An order under section 93 or 95 which confers power on an enforcement

authority to require a person to pay a fixed monetary penalty or a variable

monetary penalty may include provision—

(a)   

for early payment discounts;

(b)   

for the payment of interest or other financial penalties for late

15

payment of the penalty, such interest or other financial penalties not

in total to exceed the amount of that penalty;

(c)   

for enforcement of the penalty.

      (2)  

Provision under sub-paragraph (1)(c) may include—

(a)   

provision for the enforcement authority to recover the penalty, and

20

any interest or other financial penalty for late payment, as a civil

debt;

(b)   

provision for the penalty, and any interest or other financial penalty

for late payment, to be recoverable, on the order of a court, as if

payable under a court order.

25

Costs recovery

6     (1)  

Provision under section 95 may include provision for an enforcement

authority, by notice, to require a person on whom a variable monetary

penalty is imposed to pay the costs incurred by the enforcement authority in

relation to the imposition of the penalty up to the time of its imposition.

30

      (2)  

In sub-paragraph (1) the references to costs include in particular—

(a)   

investigation costs;

(b)   

administration costs;

(c)   

costs of obtaining expert advice (including legal advice).

      (3)  

Provision under this paragraph must secure that, in any case where a notice

35

requiring payment of costs is served—

(a)   

the notice specifies the amount required to be paid;

(b)   

the enforcement authority may be required to provide a detailed

breakdown of that amount;

(c)   

the person required to pay costs is not liable to pay any costs shown

40

by the person to have been unnecessarily incurred;

(d)   

the person required to pay costs may appeal against—

(i)   

the decision of the enforcement authority to impose the

requirement to pay costs;

(ii)   

the decision of the enforcement authority as to the amount of

45

those costs.

 
 

Marine and Coastal Access Bill [HL]
Schedule 7 — Further provision about civil sanctions under Part 4

251

 

      (4)  

Provision under this paragraph may include the provision referred to in

sub-paragraphs (1)(b) and (c) and (2) of paragraph 5.

      (5)  

Provision under this paragraph must secure that an enforcement authority

is required to publish guidance about how it will exercise the power

conferred by the provision.

5

Appeals

7     (1)  

An order under section 93 or 95 may not provide for the making of an appeal

other than to—

(a)   

the First-Tier Tribunal, or

(b)   

another tribunal created under an enactment.

10

           

This sub-paragraph does not apply in the case of an order made by the

Scottish Ministers.

      (2)  

In sub-paragraph (1)(b)—

“enactment” includes an enactment contained in, or in an instrument

made under, Northern Ireland legislation;

15

“tribunal” does not include an ordinary court of law.

      (3)  

An order under section 93 or 95 which makes provision for an appeal in

relation to the imposition of any requirement or service of any notice may

include—

(a)   

provision suspending the requirement or notice pending

20

determination of the appeal;

(b)   

provision as to the powers of any person to whom the appeal is

made;

(c)   

provision as to how any sum payable in pursuance of a decision of

that person is to be recoverable.

25

      (4)  

The provision referred to in sub-paragraph (3)(b) includes provision

conferring on the person to whom the appeal is made power—

(a)   

to withdraw the requirement or notice;

(b)   

to confirm the requirement or notice;

(c)   

to take such steps as the enforcement authority could take in relation

30

to the act or omission giving rise to the requirement or notice;

(d)   

to remit the decision whether to confirm the requirement or notice,

or any matter relating to that decision, to the enforcement authority;

(e)   

to award costs.

Consultation

35

8     (1)  

Before making an order under section 93 or 95, the appropriate licensing

authority must consult the following (in addition to any persons who must

be consulted under paragraph 9)—

(a)   

the enforcement authority to which the order relates,

(b)   

such organisations as appear to the licensing authority to be

40

representative of persons substantially affected by the proposals,

and

(c)   

such other persons as the licensing authority considers appropriate.

      (2)  

If, as a result of any consultation required by sub-paragraph (1), it appears

to the licensing authority that it is appropriate substantially to change the

45

 
 

Marine and Coastal Access Bill [HL]
Schedule 7 — Further provision about civil sanctions under Part 4

252

 

whole or any part of the proposals, the licensing authority must undertake

such further consultation with respect to the changes as it considers

appropriate.

      (3)  

If, before the day on which this Schedule comes into force, any consultation

was undertaken which, had it been undertaken after that day, would to any

5

extent have satisfied the requirements of this paragraph, those requirements

may to that extent be taken to have been satisfied.

Guidance as to use of civil sanctions

9     (1)  

Where power is conferred on an enforcement authority under section 93 or

95 to impose a civil sanction in relation to an offence the provision conferring

10

the power must secure the results in sub-paragraph (2).

      (2)  

Those results are that—

(a)   

the enforcement authority must publish guidance about its use of the

sanction,

(b)   

in the case of guidance relating to a fixed monetary penalty or a

15

variable monetary penalty, the guidance must contain the relevant

information,

(c)   

the enforcement authority must revise the guidance where

appropriate,

(d)   

the enforcement authority must consult such persons as the

20

provision may specify before publishing any guidance or revised

guidance, and

(e)   

the enforcement authority must have regard to the guidance or

revised guidance in exercising its functions.

      (3)  

In the case of guidance relating to a fixed monetary penalty, the relevant

25

information referred to in sub-paragraph (2)(b) is information as to—

(a)   

the circumstances in which the penalty is likely to be imposed,

(b)   

the circumstances in which it may not be imposed,

(c)   

the amount of the penalty,

(d)   

how liability for the penalty may be discharged and the effect of

30

discharge, and

(e)   

rights to make representations and objections and rights of appeal.

      (4)  

In the case of guidance relating to a variable monetary penalty, the relevant

information referred to in sub-paragraph (2)(b) is information as to—

(a)   

the circumstances in which the penalty is likely to be imposed,

35

(b)   

the circumstances in which it may not be imposed,

(c)   

the matters likely to be taken into account by the enforcement

authority in determining the amount of the penalty (including,

where relevant, any discounts for voluntary reporting of non-

compliance), and

40

(d)   

rights to make representations and objections and rights of appeal.

Guidance as to enforcement of offences

10    (1)  

Where power is conferred on an enforcement authority under section 93 or

95 to impose a civil sanction in relation to an offence the enforcement

authority must prepare and publish guidance about how the offence is

45

enforced.

 
 

Marine and Coastal Access Bill [HL]
Schedule 7 — Further provision about civil sanctions under Part 4

253

 

      (2)  

The guidance must include guidance as to—

(a)   

the sanctions (including criminal sanctions) to which a person who

commits the offence may be liable,

(b)   

the action which the enforcement authority may take to enforce the

offence, whether by virtue of section 93 or 95 or otherwise, and

5

(c)   

the circumstances in which the enforcement authority is likely to

take any such action.

      (3)  

An enforcement authority may from time to time revise guidance published

by it under this paragraph and publish the revised guidance.

      (4)  

The enforcement authority must consult such persons as it considers

10

appropriate before publishing any guidance or revised guidance under this

paragraph.

Publication of enforcement action

11    (1)  

Where power is conferred on an enforcement authority under section 93 or

95 to impose a civil sanction in relation to an offence, the provision

15

conferring the power must, subject to this paragraph, secure the result in

sub-paragraph (2).

      (2)  

That result is that the enforcement authority must from time to time publish

reports specifying—

(a)   

the cases in which the civil sanction has been imposed,

20

(b)   

where the civil sanction is a fixed monetary penalty, the cases in

which liability to the penalty has been discharged pursuant to

section 94(2)(b), and

(c)   

where the civil sanction is a variable monetary penalty, the cases in

which an undertaking referred to in section 96(5) is accepted from

25

such a person.

      (3)  

In sub-paragraph (2)(a), the reference to cases in which the civil sanction has

been imposed does not include cases where the sanction has been imposed

but overturned on appeal.

      (4)  

The provision conferring the power need not secure the result in sub-

30

paragraph (2) in cases where the appropriate licensing authority considers

that it would be inappropriate to do so.

Payment of penalties into Consolidated Fund etc

12    (1)  

Where pursuant to any provision made under section 93 or 95 an

enforcement authority receives—

35

(a)   

a fixed monetary penalty or a variable monetary penalty, or

(b)   

any interest or other financial penalty for late payment of such a

penalty,

           

the authority must pay it into the relevant Fund.

      (2)  

In sub-paragraph (1) “the relevant Fund” means—

40

(a)   

in a case where the authority has functions only in relation to Wales,

the Welsh Consolidated Fund;

(b)   

in a case where the authority has functions only in relation to

Scotland, the Scottish Consolidated Fund;

 
 

Marine and Coastal Access Bill [HL]
Schedule 8 — Licensing: minor and consequential amendments
Part 1 — Consequential amendments

254

 

(c)   

in a case where the authority has functions only in relation to

Northern Ireland, the Consolidated Fund of Northern Ireland;

(d)   

in any other case, the Consolidated Fund.

Disclosure of information

13    (1)  

Information held by or on behalf of a person mentioned in sub-paragraph (2)

5

may be disclosed to an enforcement authority on whom powers are

conferred under section 93 or 95 where—

(a)   

the person has an enforcement function in relation to an offence, and

(b)   

the information is disclosed for the purpose of the exercise by the

enforcement authority of any powers conferred on it under any of

10

those sections in relation to that offence.

      (2)  

The persons are—

(a)   

the Crown Prosecution Service,

(b)   

a member of a police force in England or Wales,

(c)   

a Procurator Fiscal,

15

(d)   

a constable of a police force in Scotland,

(e)   

the Public Prosecution Service for Northern Ireland, or

(f)   

a member of the Police Service of Northern Ireland.

      (3)  

It is immaterial for the purposes of sub-paragraph (1) whether the

information was obtained before or after the coming into force of this

20

paragraph.

      (4)  

A disclosure under this paragraph is not to be taken to breach any restriction

on the disclosure of information (however imposed).

      (5)  

Nothing in this paragraph authorises the making of a disclosure in

contravention of—

25

(a)   

the Data Protection Act 1998 (c. 29), or

(b)   

Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23).

      (6)  

This paragraph does not affect a power to disclose which exists apart from

this paragraph.

Schedule 8

30

Section 112(1)

 

Licensing: minor and consequential amendments

Part 1

Consequential amendments

The Coast Protection Act 1949

1     (1)  

The Coast Protection Act 1949 (c. 74) is amended as follows.

35

      (2)  

Omit Part 2 (provisions for safety of navigation).

      (3)  

In section 49(1) (interpretation), in the definitions of “sea” and “seashore”,

for “subsections (2) and (2A)” substitute “subsection (2)”.

 
 

Marine and Coastal Access Bill [HL]
Schedule 8 — Licensing: minor and consequential amendments
Part 1 — Consequential amendments

255

 

The Food and Environment Protection Act 1985

2     (1)  

The Food and Environment Protection Act 1985 (c. 48) is amended as

follows.

      (2)  

In section 5 (requirement for licences)—

(a)   

in paragraph (a), for “United Kingdom waters or United Kingdom

5

controlled waters” substitute “the Scottish inshore region”;

(b)   

omit paragraph (b);

(c)   

in paragraph (e)(i), for “United Kingdom waters or United Kingdom

controlled waters” substitute “the Scottish inshore region”;

(d)   

omit paragraph (e)(ii) and the preceding “or”;

10

(e)   

in paragraph (f), for “the United Kingdom or United Kingdom

waters” substitute “Scotland or the Scottish inshore region”;

(f)   

in paragraph (g), for “the United Kingdom” substitute “Scotland”;

(g)   

in paragraph (h), for “the United Kingdom or United Kingdom

waters” substitute “Scotland or the Scottish inshore region”.

15

      (3)  

In section 6(1) (requirements for licences for incineration at sea etc)—

(a)   

in paragraph (a)(i), for “United Kingdom waters or United Kingdom

controlled waters” substitute “the Scottish inshore region”;

(b)   

omit paragraph (a)(ii) and the preceding “or”;

(c)   

in paragraph (b), for “the United Kingdom or United Kingdom

20

waters” substitute “Scotland or the Scottish inshore region”.

      (4)  

In section 7A (exclusion of Part 2 for certain purposes)—

(a)   

in subsection (4), for paragraphs (a) and (b) substitute “the Scottish

inshore region.”;

(b)   

omit subsection (5).

25

      (5)  

In section 8 (licences)—

(a)   

in subsection (4)(b), for “United Kingdom waters” substitute “the

Scottish inshore region”;

(b)   

in subsection (6), omit “evidence, and in Scotland”.

      (6)  

In section 9 (licensing offences)—

30

(a)   

in subsection (1) (which is expressed to be subject to subsections (3)

to (7)) for “to (7)” substitute “, (4)”;

(b)   

omit subsections (5) to (7).

      (7)  

In section 11 (enforcement powers)—

(a)   

in subsection (2)—

35

(i)   

in paragraph (a), for “the United Kingdom” substitute

“Scotland”;

(ii)   

for paragraphs (b) and (c) substitute—

“(b)   

vessels, aircraft, hovercraft and marine structures in

Scotland or within the Scottish inshore region,”;

40

(b)   

in subsection (3), for paragraphs (a) and (b) substitute “any vessel

within the Scottish inshore region”.

      (8)  

In section 21 (offences) omit subsection (8).

      (9)  

In section 24(1) (interpretation)—

(a)   

omit the definition of “adjacent to Scotland”;

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