Marine And Coastal Access Bill [HL] - continued          House of Commons

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Clause 35: Government loans

119.     This clause enables the Secretary of State to lend money to the MMO and makes the loan subject to any appropriate repayment conditions. It requires the Secretary of State to keep an account of the amounts loaned and received, and to make this available to the Comptroller and Auditor General for audit purposes. Both the account and the auditor’s report must be laid before Parliament. In accordance with Government financial procedural requirements, the Secretary of State is required to pay into the Consolidated Fund any repayments of principal, and any payments of interest, made by the MMO.

Clause 36: Government guarantees

120.     This Clause allows the Secretary of State to guarantee loans, interest and other financial obligations of the MMO.

121.     If a guarantee is given under the clause, the Secretary of State must lay a statement before each House of Parliament.

122.     If any sum is paid out in fulfilment of such a guarantee, the Secretary of State must also lay a statement before each House of Parliament and the MMO must make such payments to the Secretary of State towards repayment of the sum, or by way of interest on the outstanding balance, as the Secretary of State may direct

Directions and guidance

123.     Whilst the MMO is intended to operate free from Ministerial interference in its day to day affairs, Ministers may need to issue guidance or directions to the MMO. Such guidance or directions are likely to change over time in order to take account of any alterations to the functions of the MMO, or changing priorities in relation to the marine environment, and may be used to ensure that the MMO does not act in a way that is inconsistent with its functions or general objective.

Clause 37: Directions by the Secretary of State

124.     This clause enables the Secretary of State to give general or specific directions to the MMO (following consultation) regarding the exercise of its functions. This includes directions in relation to international agreements to which the United Kingdom or European Union is a party, as several such agreements relate to the marine area and may be relevant to the way in which the MMO is to exercise its functions. The MMO must comply with these directions. The Secretary of State must publish notice of any directions given to the MMO. The MMO must make copies of any directions available to the public, for which it can charge a reasonable fee.

Clause 38: Guidance by the Secretary of State

125.     This clause provides for the Secretary of State to issue guidance to the MMO regarding the exercise of its functions. The MMO must have regard to any guidance issued (including guidance on its general objective under clause 2). Before issuing guidance, the Secretary of State must consult the MMO and any other body that the Secretary of State considers appropriate.

Transfer schemes etc

Clause 39: Transfer schemes

126.     This clause enables the Secretary of State to make schemes to transfer to the MMO property, rights and liabilities of Defra (including those of the Marine and Fisheries Agency), other Government Departments, Ministers and statutory bodies.

127.     This clause also allows the transfer of any property, rights and liabilities from the MMO to Ministers, Government Departments and statutory bodies.

128.     This clause allows transfers to take place when the MMO is established and when functions are transferred to it. The Secretary of State may also make schemes on other occasions to transfer property, rights or liabilities to and from the Secretary of State and the MMO it might, for example, be necessary in the future for the MMO to hold property in its own right, and a transfer scheme would be needed to transfer this property between bodies.

129.     The MMO will be undertaking new functions created by the Bill but is also taking over existing functions currently discharged by the Marine and Fisheries Agency, Defra, the Department of Energy and Climate Change and the Department for Transport. This clause enables resources (including staff) currently being deployed to discharge these functions to be transferred to the MMO.

130.     Reference is made to Schedule 3 where further provisions relating to transfer schemes are set out.

Clause 40: Interim arrangements

131.     This clause allows the Secretary of State to require a Government Department, Minister or other statutory body to make staff, premises or other facilities available to the MMO on a temporary basis. This is intended to cover any period of transition between the MMO taking on functions previously discharged by that body and any transfer scheme taking effect.


Clause 41: Exclusive economic zone

132.     This clause allows for the declaration of an Exclusive Economic Zone, and for the United Kingdom to assert its rights and assume its obligations in accordance with Part V of the 1982 United Nations Convention on the Law of the Sea. Such a declaration will remove inconsistencies in the current maritime zones claimed by the United Kingdom. It will replace the existing zones - namely the areas within British fishery limits, the Renewable Energy Zone, the Pollution Zone, and the Gas Importation and Storage Zone - with one Exclusive Economic Zone. This will simplify the management of the United Kingdom’s offshore maritime areas and bring the United Kingdom into line with accepted international good practice.

Clause 42: UK marine area

133.     This defines the geographical area referred to elsewhere in this Bill for the purposes of managing the United Kingdom’s maritime space. It includes those areas of the sea and seabed over which the United Kingdom enjoys sovereignty in addition to those offshore areas over which the United Kingdom is able to assert its sovereign rights.

134.     Subsection (3) describes the landward limit of the marine area. Subsection (4) adds further detail to the meaning of subsection (3)(a) by providing that areas that would be open to the regular action of the tide and apart from the fact that they are generally isolated from it by an artificial barrier such as closed lock gates, but where seawater may flow or be caused to flow (as, for example, by pumping), are part of the UK marine area. Such areas include harbour basins that are never or rarely open to the tide, such as at Bristol Harbour, but which contain seawater.

Clause 43: Welsh zone

135.     This clause amends section 158(1) of the Government of Wales Act 2006 to insert a definition of the Welsh zone. The first part of the definition establishes that the Welsh zone goes out as far as the British fishery limits - to the west of Wales, this is the median line between Wales and Ireland set by virtue of the Fishery Limits Act 1976. An order will have to be made to set the boundaries of the zone by specifying its co-ordinates, in particular so as to define its southern boundary. That provision could be included in an order made under section 158(3) (as substituted) or in an Order in Council under section 58 of the 2006 Act.

136.     This clause also introduces Schedule 4. Paragraph 9(3) of that Schedule makes it clear that functions of the Minister of the Crown that are exercisable in relation to the area of the Welsh zone beyond the seaward boundary of the territorial sea may be transferred to the Welsh Ministers if they are connected with fishing, fisheries or fish health. Such functions may be transferred by means of an Order in Council (commonly referred to as a “Transfer of Functions Order”) under section 58 of the 2006 Act. Schedule 4 makes other amendments to other sections of the same Act relating to the establishment of the Welsh zone.


Chapter 1: Marine Policy Statement

Statements of policy for UK marine area

Clause 44: Marine policy statement

137.      This clause describes what is meant by a “marine policy statement” (MPS). Subsection (1) defines the MPS as a document that is prepared and adopted by the policy authorities, in accordance with the process laid down in Schedule 5, and which sets out their policies for contributing to the sustainable development of the UK marine area.

138.     Subsections (2) and (3) state that the MPS may include additional supporting information and statements about the policies it includes. They set out what happens in the event of an apparent conflict between policy and any supporting information or statements, by ensuring that the policy always takes precedence. For example, the MPS may contain a policy to increase extraction of marine minerals by 10%, supported by figures showing that this would represent an increase of 10,000 tonnes per year. If this figure of 10,000 tonnes were wrong or became inaccurate over time, subsection (3) provides clarity that the policy of a “10% increase” is the figure which must be applied, not “10,000 tonnes”, which was only supporting information.

139.     Subsection (4) identifies the “policy authorities” who may prepare and adopt an MPS, and subsection (5) defines what is meant by “adoption”.

Clause 45: Preparation and coming into effect of statement

140.     This clause enables the policy authorities to prepare an MPS by acting jointly. In order to ensure that an MPS can be adopted under any circumstances, subsection (1) provides that an MPS may also be adopted by the Secretary of State acting jointly with only one or two of the other policy authorities, or alone if necessary.

141.     Subsection (2) ensures that the Secretary of State must invite the other policy authorities to participate in preparing an MPS before he takes any decision to prepare one by himself.

142.     Subsection (3) ensures that a new MPS will always replace an older one, even if the new one is prepared and adopted by a different group of policy authorities. This ensures that there is only ever one MPS in effect at any time. (See clause 47 for separate provisions on amending an existing MPS without replacing it.)

143.     Subsection (4) specifies that the MPS comes into effect when it has been adopted by the policy authorities in accordance with the process in Schedule 5. Once an MPS comes into effect, it affects the taking of certain decisions as set out in clauses 58 to 60.

Clause 46: Review of statement

144.     This clause requires policy authorities to review the MPS whenever they consider it appropriate to do so. The effect of the MPS does not change during a review under this clause, although the review might lead to a policy authority deciding that the MPS should be amended or perhaps even withdrawn. (See clauses 47 and 48 below).

145.     Review might be required because circumstances have changed since the MPS was adopted, or because the policy authority becomes aware that the MPS is not having the desired effects (either because decision-makers are taking decisions falling within clause 58 which depart from the MPS, or as a result of the marine plan authorities monitoring and reporting activities under clause 61).

Clause 47: Amendment of statement

146.     This clause enables an MPS to be amended. Only the policy authorities which originally prepared and adopted an MPS may amend it.

147.     An amendment to an MPS must be prepared and adopted in accordance with Schedule 5 in exactly the same way as the original MPS. Amendments to an MPS come into effect when they have been adopted and published.

Clause 48: Withdrawal of, or from, statement

148.     If any one of the policy authorities which originally adopted an MPS comes to the conclusion that the MPS no longer reflects their policy, and that authority does not want to, or cannot, correct the problem by making an amendment to the MPS, this clause enables the authority to withdraw from the MPS. This is done by first notifying the other policy authorities of their intention, and then placing a notice in the London, Belfast and Edinburgh Gazettes.

149.     The policy authority withdrawing from the MPS must also bring the withdrawal to the attention of “interested persons”. They are defined as being anyone the policy authority thinks is likely to be interested in, or affected by, the withdrawal (for example the regulators that have been using it in their decision-making in relation to devolved matters) and the general public.

150.     The withdrawal takes effect once the notice is published in the Gazettes.

151.     Subsection (8) ensures that the withdrawal of an MPS does not change the effect or validity of any existing marine plans which have been prepared in order to implement the MPS, or the way in which such plans should be construed.

152.     Once a devolved policy authority has withdrawn from an MPS, the MPS ceases to have any further effect on decisions which relate to matters within the authority’s devolved competence. If the Secretary of State withdraws from the MPS, it ceases to have effect at all.

Chapter 2: Marine Plans

Clause 49: Marine planning regions

153.     This clause identifies each of the component “regions” within the UK marine area for the purposes of identifying who will be responsible for planning in that region.

Clause 50: Marine plan authorities

154.     This clause sets out which marine plan authorities are to have responsibility for the different regions of the UK marine area, as defined in clause 49.

155.     There is no marine plan authority under the Bill for the Scottish inshore region or the Northern Irish inshore region. That is because Scotland and Northern Ireland will be making their own provision for marine planning in those regions under their devolved legislative powers.

Clause 51: Marine plans for marine plan areas

156.     This clause provides for the creation of marine plans, and sets out certain basic requirements as to their content and the way in which they are to be prepared.

157.     Subsection (1) allows a marine plan authority to prepare marine plans for “marine plan areas” within its region.

158.     Subsection (2) places a duty on marine plan authorities to seek to ensure that marine plans are prepared for all parts of regions where the MPS “governs marine planning” (see paragraph 158 below).

159.     Subsection (3) defines a marine plan. Like the definition of an MPS in clause 44, marine plans are defined by reference to who creates them, the process they must follow, and the content. Subsection (3) requires that marine plans must:

  • be prepared and adopted by the marine plan authority for the marine planning region in which the marine plan area lies;

  • be prepared in accordance with the process set out in Schedule 6; and

  • state the marine plan authority’s policies for contributing to the sustainable development of the marine plan area.

160.     Subsection (5) requires that a marine plan must identify the area to which it applies - this may be through a map or chart, or by other means.

161.     Subsection (6) specifies that a marine plan must be in conformity with any MPS which “governs marine planning” for that marine plan area, unless relevant considerations indicate otherwise. Marine plans are intended to set out how the policies and objectives outlined in the MPS apply at the local level, based on information about specific activities and processes taking place in that area. This ensures that there is a close link between the general policy in the MPS and how it is applied to specific situations in plans.

162.     Subsection (7) explains when an MPS “governs marine planning”. The MPS must have been adopted by the policy authority which is also the marine plan authority for the marine planning region which includes the area of the plan, must not have been replaced or withdrawn and that policy authority must not have withdrawn from the plan.

163.     Subsection (8) requires a marine plan prepared by a devolved administration to state whether it includes provision relating to “retained functions” (that is, powers and duties which have not been devolved: see clause 60 for the meaning of these terms).

164.     Subsection (9) provides that a marine plan may also contain supporting statements and information, and subsection (10) provides for any conflict between the policies in the marine plan and any supporting information to be resolved in favour of the plan. See the notes on clause 44 above for further explanation.

165.     Subsection (11) states that a marine plan comes into effect when it has been adopted and published in accordance with Schedule 6. Once a marine plan comes into effect in this way, it has a legal effect on decisions which affect the UK marine area (see clauses 58 to 60).

Clause 52: Amendment of marine plan

166.     This clause enables a marine plan authority to amend a marine plan. An amendment to a marine plan must be prepared and adopted in accordance with Schedule 6 in exactly the same way as the original plan. Where a marine plan is amended, subsection (2) provides that any reference in the Bill to a marine plan include a reference to a marine plan as amended.

Clause 53: Withdrawal of marine plan

167.     Like an MPS, if the marine plan authority comes to the conclusion that there is a problem with the plan which it does not want to, or cannot, rectify by making an amendment - for instance if it decides that the plan must cease effect immediately - a marine plan may be withdrawn.

168.     When a marine plan authority decides to withdraw a marine plan, it must publish a notice in the appropriate Gazette(s). For plans in the English or Welsh inshore regions, this is the London Gazette. For all offshore plans, notices must be published in the London, Edinburgh and Belfast Gazettes.

169.     This section also allows the Secretary of State to withdraw his agreement to a plan prepared by any of the other marine plan authorities (if his agreement was required to the plan’s adoption). If he decides to withdraw his agreement to the plan, he must give notice to the marine plan authority, which then has 7 days to withdraw the plan (by publishing a notice in the appropriate Gazette(s)).

170.     The marine plan authority must also bring the withdrawal to the attention of anyone likely to be interested in or affected by, it, as well as members of the general public.

Clause 54: Duty to keep relevant matters under review

171.     This clause requires the marine plan authorities to keep under review matters which may affect their functions of identifying marine plan areas, and preparing plans for them. This is to ensure that marine plan authorities stay up-to-date with what is happening in their region of the marine area, and which they ought to know about in order to make effective planning decisions in their region.

172.     Subsection (2) sets out a non-exhaustive list of the kinds of things which a marine plan authority ought to keep under review.

173.     Subsection (3) requires an authority, on a review, to consider how the matters described in subsection (2) might be expected to change, and the effect that any such changes might have on the authority’s region and its sustainable development.

174.     Subsection (4) makes clear that the reference in subsection (1) to “cultural” includes “historical and archaeological” characteristics.

Chapter 3: Delegation of Functions Relating to Marine Plans

Clause 55: Delegation of functions relating to marine plans

175.     This clause enables a marine plan authority to direct another public body to carry out some of its marine planning functions, by giving it a direction. The Government’s intention is that this power will be used to delegate functions of the Secretary of State to the Marine Management Organisation.

176.      Subsection (3) requires the marine plan authority to obtain the public body’s consent before making the direction. Since public bodies may generally only do things that they have specific powers to do, subsection (4) compels the public body to comply with the direction and states that it is taken to have any necessary powers to carry out the functions delegated to it.

177.     Subsections (5) to (7) set out which functions may be delegated in this way. A marine plan authority may delegate any of the functions in Chapter 2 (apart from the “excepted functions”) and the duty to monitor and report on the effects and effectiveness of marine plans in clause 61. The functions in Chapter 2 which may be delegated include:

  • preparing a marine plan for a marine plan area in accordance with the procedure in Schedule 6 (clause 51);

  • amending a marine plan (clause 52); and

  • keeping relevant matters under review (clause 54).

178.     The “excepted functions” which must be carried out by the marine plan authority and may not be delegated are:

  • adopting a marine plan (paragraph 15 of Schedule 6); and

  • withdrawing a marine plan, or withdrawing agreement to a marine plan (clause 53).

  • functions of the Secretary of State in his own capacity (subsection (7)) including agreeing to the publication of Statements of Public Participation and consultation drafts by the devolved administrations, and for agreeing, or withdrawing agreement, to the adoption of their final marine plans.

Clause 56: Directions under section 55: supplementary provisions

179.     This clause contains a number of additional rules about directions issued under clause 55.

180.     Subsection (1) requires the authority to publish the direction in a way that will bring it to the attention of anyone likely to be interested in or affected by it.

181.     Unless the marine plan authority has specified otherwise in the direction, subsection (2) prevents the authority from exercising the functions it has delegated, for as long as the direction is in force. Subsection (3) sets out how the marine plan authority may make exceptions to this rule.

182.     Subsection (4) enables a marine plan authority to impose terms, conditions, obligations or requirements on the way a public body exercises any marine planning functions delegated to it, and also enables the terms of the delegation to make financial provisions (for example to enable the public body to receive funding for carrying out the functions).

183.     Subsection (5) enables a marine plan authority to delegate its functions differently for different areas or cases or to different bodies.

Clause 57: Directions to public bodies as regards performance of delegated functions

184.     This clause applies where a marine plan authority has delegated some of its planning functions by directions under clause 55. It enables the marine plan authority to give further directions to a public body to which it has delegated functions, setting out how those functions should be performed.

185.     Subsection (3) requires the marine plan authority to consult the public body before giving any directions under this section. Subsection (4) requires the public body to comply with any directions given to it, which must also be published by the marine plan authority in accordance with subsection (5).

Chapter 4: Implementation and Effect

Decisions affected by an MPS or marine plan

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Prepared: 10 June 2009