Chapter 2: Transfer of Functions to the MMO

52.     This Chapter provides for the transfer of a number of existing functions to the MMO.

Sea Fish (Conservation) Act 1967

53.     This Act and orders made under it regulate fishing for, and landing of, sea fish and the commercial use of sea fish.

Clause 4: Licensing of fishing boats

54.     Section 4 of the Sea Fish (Conservation) Act 1967 and legislation made under that section prohibits fishing boats from fishing for sea fish in certain areas within British fishery limits without a licence. These clauses transfer to the MMO the function of the Secretary of State in relation to the granting of licences. The function transferred includes the administration (granting, variation, revocation, suspension) of licences. These clauses also ensure that licences previously issued by the Secretary of State are treated as though they were issued by the MMO.

55.     Section 4 also provides for the MMO and the Scottish Ministers to make arrangements to exercise functions on each other’s behalf. This is limited to licensing functions under section 4 of the Sea Fish (Conservation) Act 1967.

Clause 5: Restrictions on time spent at sea: appeals

56.     Section 4AA of the Sea Fish (Conservation) Act 1967 establishes the Sea Fish Licence Tribunal. It provides for an appeal to this tribunal in relation to certain provisions in fishing boat licences that restrict the amount of time that a vessel may spend at sea. The fishing boat licence must be varied to give effect to any decision of the tribunal. Clause 5 provides for the MMO to be subject to this duty to vary a licence in respect of licences that it granted, or that the Secretary of State granted.

Clause 6: Trans-shipment licences for vessels

57.     Section 4A of the Sea Fish (Conservation) Act 1967 and legislation made under that section prohibit a vessel within British fishery limits (except the Scottish zone) from receiving, without a license, fish that is trans-shipped from another vessel. This clause transfers to the MMO the functions of the Secretary of State in licensing vessels involved in the trans-shipment of fish.

Clause 7: Regulations supplementary to sections 4 and 4A

58.     This clause is supplementary to clauses 4 and 6 and flows from the transfer of functions of granting fishing boat licences from the Secretary of State to the MMO. Where secondary legislation has been made to set out the procedure for granting licences, any existing references to the Secretary of State in that legislation are to be treated as references to the MMO.

Clause 8: Exemptions for operations for scientific and other purposes

59.     Section 1 of the Sea Fish (Conservation) Act 1967 prohibits the landing of certain descriptions of sea fish below a certain size. Section 9 of that Act creates an exemption to this prohibition in the case of fish landed for the purposes of scientific investigation.

60.     This clause transfers to the MMO the functions of the Secretary of State relating to the authorisation of fishing operations that are conducted for these purposes.

Nature conservation

Clause 9: Licences to kill or take seals

61.     The Conservation of Seals Act 1970 provides for the protection and conservation of seals in Great Britain and the adjacent territorial waters. This Act makes it an offence to kill or take seals during the close season or in an area specified in a conservation order without a licence granted by the Secretary of State (currently exercised in England by Natural England).

62.     This clause transfers to the MMO the functions of the Secretary of State in granting licences in England and the English inshore region. (In a small number of cases each year it is necessary to issue licences to kill or take seals in freshwaters; the MMO will transfer this function to Natural England using the flexible administrative arrangements provided under clause 15).

Clause 10: Wildlife and Countryside Act 1981

63.     This Act applies both terrestrially and at sea out to 12 nautical miles to protect wild birds, animals and plants.

64.     Sections 1, 3, 5, 6(1), (2) and (3), 7 and 8 of the Act create offences related to the protection of birds, including an offence of killing or injuring wild birds.

65.     Sections 9(1), (2), (4), (4A) and (5) and 11(1), (2) and (3C)(a) create offences related to the protection of animals including offences of killing or injuring any wild animal or destroying any place of shelter of any wild animal.

66.     Section 13(1) and (2) creates offences related to the protection of wild plants, including intentionally picking or selling any wild plant specified in the Act.

67.     Sections 14 and 14ZA create offences related to the introduction of new species into the wild and the sale of invasive non-native species.

68.     The Act includes powers under section 16 for the Secretary of State and Natural England to issue licences to authorise these activities in certain circumstances (for example, in the case of some of the activities, if they are done for scientific, research or educational purposes). Where a licence has been granted and the activity is carried out in accordance with the terms of the licence, no offence is committed.

69.     This clause provides that the powers under sections 16(1), (2), (3) and (4) to grant such licences are to be exercised by the MMO, instead of the Secretary of State or Natural England, in the case of any such activities in the sea adjacent to England that lies seaward of mean low water mark out to 12 nautical miles.

Clause 11: Sea Fisheries (Wildlife Conservation) Act 1992

70.     This Act places the Secretary of State under a duty when discharging any sea fisheries functions to “have regard to the conservation of marine flora and fauna” and to try to achieve a reasonable balance between this consideration and any other considerations to which he is required to have regard.

71.     This clause places the MMO under the same duty as the Secretary of State under this Act; when discharging any sea fisheries functions the MMO must “have regard to the conservation of marine flora and fauna” and to try to achieve a reasonable balance between this consideration and any other considerations to which it is required to have regard.

Generating and renewable energy installations

Clause 12: Certain consents under section 36 of the Electricity Act 1989

72.     This clause transfers to the MMO certain of the functions of the Secretary of State in issuing consents under section 36 of the Electricity Act 1989.

73.     The functions transferred are listed in subsections (2) to (5) and relate to the construction, extension and use of offshore generating stations and the subsequent enforcement of any consents issued.

74.     The MMO will assume the Secretary of State’s responsibility as competent authority for assessing environmental impacts on protected European Sites (subsection (5)(c)) and for satisfying requirements relating to environmental impact assessments (subsection 5(d)).

75.     The MMO will only exercise these functions for offshore generating stations that are not, or in the case of extensions, would not be after the extension has taken place, nationally significant infrastructure projects. Sections 14 and 15 of the Planning Act 2008 define offshore generating stations as nationally significant infrastructure projects if they have a generating capacity over 100 megawatts. The MMO will also not exercise these functions in Scottish waters or in the Scottish part of the renewable energy zone, where Scottish Ministers will continue to perform that role. “Scottish waters”, “Scottish part” and “renewable energy zone” are defined in section 95 of the Energy Act 2004.

Clause 13: Safety zones: functions under section 95 of the Energy Act 2004

76.     Under clause 12 the MMO will be responsible for issuing consents under section 36 of the Electricity Act 1989 for certain offshore generating stations. By virtue of clause 13 it will also be able to issue notices under section 95 of the Energy Act 2004 declaring safety zones around those offshore generating stations (here described as renewable energy installations) for which it issues those consents.

77.     The MMO will be able to declare safety zones for any purpose given in section 95 of the Energy Act 2004. But it will not have the power to do this in respect of renewable energy installations located in Scottish waters or in the Scottish part of the renewable energy zone.

78.     Where any part of a safety zone that the MMO is declaring is in Scottish waters, by virtue of subsection (5) of section 95 of the Energy Act 2004, the MMO will have to consult the Scottish Ministers before issuing a safety notice.

Chapter 3: Flexible Administrative Arrangements involving the MMO

Power to enter into agreements

Clause 14: Agreements between the Secretary of State and the MMO

79.     This clause allows the Secretary of State to enter into agreements with the MMO authorising the MMO to perform marine functions currently performed by the Secretary of State.

80.     The type of functions that these agreements would cover includes work currently undertaken by the Marine and Fisheries Agency under the Common Fisheries Policy or under EU Regulations which are directly applicable in the UK.

81.     Over time the MMO may need to take on new functions and this clause also provides the necessary flexibility in relation to any future functions to enable Ministers to delegate these to the MMO.

82.     The functions that the MMO can be authorised to perform in the context of the Bill are limited to marine functions. The MMO may be authorised to carry out a particular function generally or only in specified cases or areas.

83.     The existence of an agreement between the Secretary of State and the MMO does not prevent the Secretary of State continuing to exercise the function that has been delegated. The Secretary of State may cancel the agreement at any time.

Clause 15: Agreement between the MMO and eligible bodies

84.     This clause enables the MMO, with the approval of the Secretary of State, to make agreements with bodies listed in clause 16 authorising those bodies to perform the MMO’s functions on its behalf. This is to enable the MMO to make arrangements for the most effective discharge of its functions as these bodies may be better placed (due to their resources, expertise or other such reason) to carry out the MMO’s function in a particular area.

85.     Under such an agreement a body may be authorised to carry out the function generally or only in specified cases or areas. Any such agreements can be altered only by agreement between the MMO and the relevant body, and with the approval of the Secretary of State.

86.     The Secretary of State must review any agreements between the MMO and eligible bodies every 5 years and may, if appropriate, cancel the agreement. Clause 21 also provides that any agreement under clause 15 must be in writing and published in order to bring it to the attention of people likely to be affected by it.

Clause 16: Eligible bodies

87.     Bodies listed in this clause are those with which the MMO can enter into an agreement. The MMO will need the ability to delegate certain activities to eligible bodies where, for example, such bodies would be better placed (due to their resources, expertise or other such reason) to carry out the MMO’s function in a particular area. Examples of functions the MMO might want these bodies to carry out are as follows.

• The MMO is taking over the licensing function under the Conservation of Seals Act 1970, but there are a few applications each year relating to seals in freshwaters. Those applications will be dealt with by Natural England and the function will therefore need to be delegated to that body by the MMO by agreement under clause 15.

• The Environment Agency will be responsible for freshwater fisheries and migratory species out to 6 nautical miles, as it is now. IFCAs will be responsible for marine species management out to 6 nautical miles - as Sea Fisheries Committees (SFCs) are now - with the addition of estuaries as far as the tide flows. The MMO will be responsible for enforcement of marine nature conservation and national and EU fisheries provisions out to 200 nautical miles and for British vessels on the high seas. The MMO will take action in the inshore area where national measures are required and in cases where nature conservation is at risk from non-fisheries threats, and it may be that the MMO will wish to delegate certain functions in this area to IFCAs or the Environment Agency.

88.     The Secretary of State can add a body, or a description of a body to the list by Order, and can also remove bodies or descriptions of bodies from the list. The list is likely to change over time to take account of bodies being created, merged or disbanded, or to reflect a change of name. An example of such a change is that local fisheries committees (commonly known as Sea Fisheries Committees (SFCs)) will need to be removed from the list of bodies once IFCAs have been established; however, SFCs still need to be included in the list to cover the period between Royal Assent and the establishment of IFCAs. As the MMO evolves in future and takes on additional functions, further bodies may need to be added to the list.

89.     The Secretary of State must be satisfied that a body which is to be added to the list has at least one purpose or function relating to or connected with a marine function. The power to add bodies to the list is not limited to public bodies because private bodies may be better placed to provide some functions or provide better value for money.

Clause 17: Non-delegable functions

90.     This clause sets out functions that the MMO or an eligible body may not be authorised to perform under an agreement.

Clause 18: Maximum duration of agreement

91.     The maximum amount of time that an agreement between the Secretary of State and the MMO or an agreement between the MMO and an eligible body can last is 20 years.

Supplementary provisions

Clause 19: Particular powers

92.     Subsection (3) of this clause provides for various cases where the body being authorised to carry out a function under an agreement is already involved with the function in some way. It may, for example, be a consultee or it may be required to give its consent to the exercise of the function or it may already exercise the function jointly with the body delegating the functions. This clause provides that an agreement can still be entered into with that body.

93.     Subsection (6) ensures that the lack of a specific power to carry out a function will not prevent a body performing the function if that body has been authorised to do so under an agreement. It also provides that the body can delegate performance to a specially-formed body corporate or to a committee, sub-committee, member, officer or employee (except if the agreement itself prohibits this). However, subsection (8) provides that delegation of the performance of the function to anyone else is generally not permitted.

Clause 20: Agreements with certain harbour authorities

94.     This clause makes additional provision in relation to agreements with harbour authorities which are local authorities. This provision is consequent upon the changes made to local government decision-making under the Local Government Act 2000.

95.     Under that Act and subordinate legislation each function of a principal local authority is administered either directly by the full council or through executive arrangements, depending on the function. Detailed arrangements for the performance of the functions are specified in Regulations made under section 13 of the 2000 Act.

96.     Where, by agreement, a function is to be discharged on behalf of the MMO by a local authority exercising the functions of a harbour authority, the allocation of responsibility for the performance of that type of function under the 2000 Act and subordinate legislation (whether full council or executive) will apply. The full council (or executive, as applicable) of that authority may use various usual powers of delegation (for example to committees and officers of that same authority) to perform the function.

97.     This clause also enables local authorities which are also harbour authorities to work together jointly to carry out functions delegated to them by the MMO.

Clause 21: Supplementary provisions with respect to agreements

98.     Subsection (1) of this clause requires agreements, and approvals for them, to be in writing and subsection (2) states that any such agreements must be published.

99.     Subsection (3) provides that no power of a Minister of the Crown (under the Bill or any other legislation) to give directions to a statutory body can be used to require that body to enter into an agreement or to prohibit it from doing so.

100.     Subsection (4) applies Schedule 15 to the Deregulation and Contracting Out Act 1994 (relating to the disclosure of information) to bodies exercising functions through an agreement. This is to make clear to each contracting body how to handle confidential information and the situations where sharing of information between the contracting bodies is permitted.

Clause 22: Interpretation of the Chapter

101.     This clause sets out how certain terms used within chapter three of part 1 should be interpreted.

Chapter 4: Miscellaneous, General and Supplemental Provisions

102.     This Chapter gives the MMO general powers and duties, makes financial provisions for the MMO and sets out how the Secretary of State may give it guidance and directions. It also provides for the transfer of property, rights and liabilities to the MMO.

Clause 23: MMO’s role in relation to applications for development consent

103.     This clause amends certain sections of the Planning Act 2008 to set out the MMO’s role in relation to development consents. It inserts a reference to the MMO into section 42 of the Planning Act 2008 as a body that must be consulted in any case where the proposed development would affect, or would be likely to affect, any of the areas where the MMO operates and where the Infrastructure Planning Commission (IPC) also operates. The areas in question are waters in or adjacent to England and waters in the renewable energy zone, the exclusive economic zone or continental shelf (but not where Scottish Ministers have functions).

104.     This clause also inserts references to the MMO into section 56 of the Planning Act 2008 as a body that must be notified, and into section 102 of that Act as an interested party, for any case where an application has been accepted by the IPC for a development that involves an activity in the areas where the MMO operates and where the IPC also operates. This ensures that the MMO is notified of accepted applications and can then be involved throughout the examination of those applications.

105.     Subsection (7) places a duty on the Secretary of State to issue guidance to the MMO on the kind of representations it can make in the cases above.

General Powers and Duties

Clause 24: Research

106.     This clause gives the MMO powers to undertake research on matters relevant to its functions or its general objective, either by itself or in association with others, and to commission or support others to undertake such research. The MMO must make the results of this research available on request, unless it is the kind of information that could be withheld under the Freedom of Information Act 2000, the Environmental Information Regulations 2004 or any other legislation.

Clause 25: Advice, assistance and training facilities

107.     This clause specifies the MMO’s duties and powers to provide advice and assistance, and the use of training facilities to the Secretary of State, public bodies and any other person.

Clause 26: Provision of information etc

108.     This clause enables the MMO to publish documents and provide information about anything relating to its general objective or any of its functions.

Clause 27: Power to charge for services

109.     This clause enables the MMO to make a reasonable charge for any services it provides (on a cost-recovery basis). Subsection (2) makes specific provision for the MMO to charge fees in respect of functions it might exercise on behalf of the Welsh Ministers or a Northern Ireland department. Examples of the other types of service for which the MMO may charge are set out in subsection (3).

Clause 28: Provision of information by the MMO to the Secretary of State

110.     The MMO will be accountable to the Secretary of State, who will from time to time require, in writing, information from the MMO relating to the performance of its functions. This includes information which the MMO may reasonably be required to obtain from others. Subsection (1) of this clause places the MMO under an obligation to provide the Secretary of State with this information.

Clause 29: Power to bring proceedings

111.     The MMO will have responsibilities for enforcement in the marine area, including bringing prosecutions where appropriate. This clause makes provision with respect to the powers of the MMO to pursue criminal proceedings and proceedings for the recovery of monetary penalties imposed under this Bill.

112.     This clause also allows the MMO to designate non-legally qualified staff to conduct certain types of litigation in magistrates’ courts and to exercise certain rights of audience in magistrates’ court proceedings.

Clause 30: Continuation of certain existing prosecutions

113.     This clause allows the MMO to continue prosecutions that have already been started by the Secretary of State (including prosecutions started by the Marine and Fisheries Agency) where those prosecutions are for offences related to functions transferred to the MMO or are for offences under fisheries legislation.

Clause 31: Incidental Powers

114.     This clause allows the MMO to take action which will help it to exercise its functions and meet its general objective. The clause sets out some of the particular activities that the MMO may need to undertake such as borrowing money, holding property, and investing money.

Financial Provisions

115.     These clauses put in place the financial arrangements needed to enable the MMO to carry out its responsibilities.

Clause 32: Grants

116.     This clause enables the Secretary of State to make the appropriate funds available to the MMO by way of grant.

Clause 33: Borrowing powers

117.     This clause allows the MMO to borrow money as necessary to enable it to carry out its functions. The money may be borrowed from the Secretary of State or from others with the agreement of the Secretary of State. The Secretary of State may make his agreement conditional on, for example, the MMO repaying the loan by a certain date.

Clause 34: Limit on borrowing

118.     This clause limits the MMO’s ability to borrow to £20 million, although the Secretary of State may increase this (up to £80 million) by order, subject to prior approval by the House of Commons.