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Appeals against notices under this Part
Clause 108: Appeals against notices
313. Each appropriate licensing authority is under an obligation to establish a mechanism under which people can appeal its decision to issue a statutory notice. This includes compliance, remediation, stop, and emergency safety notices.
Offences: supplementary provision
Clause 109: General defence of due diligence
314. This clause provides a defence for a person charged with an offence under this Part if that person can demonstrate they took all reasonable precautions and exercised due diligence to avoid committing that offence.
315. Subsections (2) to (6) outline some particular circumstances in which the defence is available and sets out procedures which apply to the proving of this defence.
Clause 110: Offences: jurisdiction
316. Proceedings for an offence under this Part can be taken, and the offence can for all incidental purposes be treated as having been committed, in any part of the United Kingdom. This ensures that offenders can still be tried when there is uncertainty about in which waters the offence took place.
Application to the Crown
Clause 111: Application to the Crown
317. This Part of the draft Bill applies to the Crown. While the Crown is not criminally liable for contravening any provision in this Part, certain higher courts may, on receipt of an application, declare any of its acts or failure to act unlawful.
318. The Secretary of State has the power to certify, in the interests of national security, that any specified powers of entry should not be exercised on any Crown land specified in that certificate.
Consequential and transitional provision
Clause 112: Amendments and transitional provision
319. This clause gives effect to Schedules 8 and 9.
Interpretation
Clauses 113: The appropriate licensing authority
320. This clause sets out who is the licensing authority in each part of the UK marine licensing area. This varies depending on both the area and the nature of the activity.
321. Subsections (2) and (3) relate to the offshore region adjacent to Scotland. This area is defined in clause 316. In this region the Scottish Ministers are the licensing authority unless the activity to be licensed falls within subsection (3). In respect of those activities the Secretary of State is the licensing authority. Activities licensable by the Secretary of State are those that relate to oil and gas, Part 6 of the Merchant Shipping Act and defence, where oil and gas and defence are described by that subsection. An example of the type of activities that would be licensable in this region by the Secretary of State are those relating to the abandonment of offshore oil platforms.
322. Subsections (4) and (5) relate to Wales and the Welsh inshore region. The Welsh inshore region is defined in clause 316. In this area the Welsh Ministers are the licensing authority unless the activity to be licensed falls within subsection (5). In respect of those activities the Secretary of State is the licensing authority. Activities licensable by the Secretary of State are those that relate to the exploration for, or production of, petroleum, and defence activities as defined by subsection (9). As with the Scottish offshore region, an example of the type of activities that would be licensable in this area by the Secretary of State are those relating to the abandonment of offshore oil platforms.
323. Subsections (6) and (7) relate to Northern Ireland and the Northern Ireland inshore region. The Northern Ireland inshore region is defined in clause 316. In this area the Department of the Environment Northern Ireland is the licensing authority unless the activity relates to defence of the realm, as described in subsection (7) and for which the Secretary of State is the licensing authority.
324. In all other areas falling within the UK marine licensing area (as defined in clause 66(4)) the licensing authority is the Secretary of State.
Clause 114 and 115: Meaning of “enforcement authority”; Interpretation of this Part
325. These clauses provide definitions for the key terms used in this Part.
PART 5: NATURE CONSERVATION
Chapter 1: Marine Conservation Zones
Designation of zones
Clause 116: Marine conservation zones
326. This clause provides a power for the Welsh Ministers, Scottish Ministers and the Secretary of State (hereafter referred to as “Ministers”) to designate, as the appropriate authority, areas as marine conservation zones (MCZs) by means of local orders.
327. Subsections (2) and (3) identify those areas within which an MCZ may be designated. These include English inshore waters and the offshore waters of England, Wales, and Northern Ireland (where the Secretary of State is the appropriate authority), the Welsh inshore region (where the Welsh Ministers are the appropriate authority), and the Scottish offshore region (where the Scottish Ministers are the appropriate authority). Marine nature conservation in the inshore waters of Scotland and Northern Ireland is a matter for Scottish Ministers and Northern Ireland Departments to determine through their own legislation.
328. Subsection (6) states that the Scottish Ministers may not designate an MCZ without agreement from the Secretary of State.
329. Subsection (7) provides that an MCZ designated by the Scottish Ministers under this clause is to be known as a marine protected area and that references in this Act to an MCZ designated by the Scottish Ministers should be read as a reference to a marine protected area.
Clause 117: Grounds for designation of MCZs
330. This clause sets out the circumstances in which Ministers may designate an MCZ. This must be for the purpose of conserving species of marine flora and fauna particularly if they are rare or threatened or for conserving or protecting marine habitats or features of geological or geomorphological interest. An MCZ may also be designated for the purpose of conserving the diversity of marine flora or fauna or habitat, whether or not they are considered rare or threatened (subsections (1) to (5)).
331. In this Bill, the terms “geomorphological” (used in Parts 5 and 9) and “physiographical” (used in Parts 6 and 7) have the same meaning. Each term is consistent with the previous legislation in the relevant field.
332. Subsection (7) allows Ministers to take account of the economic or social consequences of designation. This ensures MCZs can be designated in such a way as to conserve biodiversity and ecosystems whilst minimising any economic and social impacts. Where an area contains features that are rare, threatened or declining, or forms a biodiversity hotspot, greater weight is likely to be attached to ecological considerations. Where there is a choice of alternative areas which are equally suitable on ecological grounds, socio-economic factors could be more significant in deciding which areas may be designated as an MCZ.
333. Subsection (8) clarifies that the reference to “social” consequences of designating an MCZ includes any consequences of doing so for sites of historic or archaeological interest likely to result from the MCZ designation.
Clause 118: Further provision as to orders designating MCZs
334. This clause sets out further requirements for MCZ designations, including the requirement to specify the boundaries of the designated area.
335. Subsection (3) provides for the inclusion in an MCZ of any island regardless of whether the land lies above mean high water spring tide. This will be particularly relevant where there are numerous small islands, transient sand banks or rocky outcrops (which would be impracticable to exclude individually). Islands which should be excluded from an MCZ can be identified in the designation order.
336. Subsections (4) and (5) allow Ministers to extend the boundary of an MCZ to include an additional adjacent area of seashore above mean high water spring tide if certain conditions apply. These conditions include the requirement that the feature(s) which comprise the grounds for designating the MCZ are also present in the extended area. This may be appropriate where a threatened species is also present in the area of land above mean high water spring tide and protection depends on extending the boundary of the MCZ.
337. Subsection (6) requires that an MCZ includes land whether or not it is covered by water (which will include the sea bed and foreshore) and in the case of an area within the seaward limits of the territorial sea or the exclusive economic zone, may include the water covering it (which includes the water column at sea, estuarial/transitional waters, pools and lagoons).
Clause 119: Consultation before designation
338. This clause requires Ministers to carry out public consultation before designating an MCZ. Subsections (2) and (3) require notice of a proposed designation order to be published. This enables parties likely to be affected by a proposed order to have the opportunity to have their interests taken into account.
339. Subsections (5), (6), (7), (8) and (9) provide for consultation between the Ministers so that each has the opportunity to comment if their respective waters might be affected by the making of a designation order.
340. Subsection (10) requires the appropriate authority to make a decision regarding designation of an individual MCZ within 12 months of publishing the notice. Failure to designate a site within that time will mean that the process will need to begin again before an area can be designated as an MCZ.
341. Subsections (11) and (12) provide an exemption from the general consultation requirement if there is an urgent need to designate an MCZ, though Ministers would still be required to consult each other. In such cases, an urgent order can only remain in force for up to two years before the end of which consultation in accordance with sub-sections (2) to (4) will be required for an order confirming the designation.
Clause 120: Publication of orders designating MCZs
342. This clause makes provision for Ministers to publish notice of the making of an order. The clause requires that interested individuals are made aware of the publication and provided with a copy if they ask for one. The authority may charge a fee for providing a copy.
Clause 121: Hearings by appropriate authority
343. This clause allows Ministers to hold hearings before deciding whether to make an order under clause 116 to designate an MCZ.
344. Subsection (2) gives Ministers discretion to give any person the opportunity of being heard by an inspector or other appointed person, either orally or in writing. Subsection (4) requires these representations to be reported back to the authority.
Clause 122: Amendment, revocation and review of orders designating MCZs
345. This clause allows an order designating an MCZ to be amended or revoked by a further order. Subsection (2) requires the appropriate authority to review any order if asked to by another appropriate authority or the Department of the Environment in Northern Ireland.
Duties relating to network
Clause 123: Duty to establish network of conservation sites
346. This clause places a duty on the appropriate authority to designate MCZs so as to contribute to the creation of an ecologically coherent network. Subsections (1) and (2) set out the duty to designate MCZs and the objective for such designation. Subsection (3) sets out what the network of MCZs should achieve, listing three conditions. These are based on the definition of an ecologically coherent network developed for the Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR). The conditions require that the network should contribute to the conservation of the marine environment, protect features that represent a range of features present in the UK marine area and reflect the fact that conservation of a feature may require more than one site to be designated.
347. Subsection (4) provides that the network of relevant conservation sites may include European Sites notified under the Wild Birds and Habitats Directives, Sites of Special Scientific Interest and wetland sites designated under the Ramsar Convention.
348. Subsection (5) requires the appropriate authority to have regard to relevant obligations under EU and international law.
349. Subsection (6) requires the appropriate authority to prepare a statement setting out the principles which it will apply in designating MCZs to help create the UK network. It is a requirement to lay the statement before the appropriate legislature and must be reviewed, and if necessary updated, periodically.
Clause 124: Report
350. This clause sets out the requirements on the Secretary of State, the Welsh Ministers and the Scottish Ministers to report to Parliament, the Welsh Assembly and the Scottish Parliament, as appropriate, on progress in designating a network of MCZs. The purpose of the report is to outline the extent to which the MCZs that each authority has designated in their respective areas contribute to the achievement of an ecologically coherent network of marine protected areas, and any further steps necessary to help meet that objective.
351. Subsection (1) states that the appropriate authority must report to Parliament on the extent to which the objective of establishing an MCZ network has been met as well as any further steps that the authority believes should be taken.
352. Subsection (2) sets out the information that must appear in the report. This includes the number of MCZs designated during the relevant period, information about amendments and the extent to which the authority believes that the conservation objectives for each MCZ have been achieved. Subsection (2)(c) requires Ministers to report on the number of sites with a high level of protection and therefore where licensable marine activities, fishing and the taking of animals or plants has been restricted or prohibited. Subsection (3) provides for the Secretary of State, the Welsh Ministers and the Scottish Ministers to direct the appropriate statutory nature conservation body to carry out monitoring of MCZs.
Duties of public authorities
Clause 125: General duties of public authorities in relation to MCZs
353. This clause places a general duty on public authorities (defined in clause 316) to carry out their functions in the manner that they consider best furthers - or least hinders - the conservation objectives set for MCZs. This duty only applies so far as is consistent with the proper exercise of a public authority’s functions and only where such functions may have a significant effect on the MCZ.
354. If a public authority thinks that the exercise of its functions will or might significantly hinder the conservation objectives of an MCZ, it has to notify the appropriate statutory nature conservation body (Natural England, the Joint Nature Conservation Committee, or the Countryside Council for Wales, depending on where the MCZ is).
355. Subsections (4) to (7) provide that a public authority must inform the appropriate statutory nature conservation body if it intends to carry out an activity which might significantly hinder the conservation objectives for an MCZ. This duty does not apply if standing advice from the relevant statutory nature conservation body applies. This means that statutory nature conservation bodies can issue standing guidance on routine activities (such as harbour works) and that public authorities do not have to notify them every time they plan to carry out such activities. Where a public authority has notified the appropriate statutory conservation body under subsection (5), the statutory nature conservation body has 28 days to provide any advice after which public authorities may decide to go ahead as planned. However, this 28-day rule does not apply if the body notifies the authority that it need not wait or if the situation is urgent.
356. Subsection (12) requires public authorities to have regard to any advice issued by the statutory conservation bodies under clause 127.
Clause 126: Duty of public authorities in relation to certain decisions
357. This clause applies to all public authorities with responsibility for authorising applications for certain activities (such as proposed infrastructure development or a dredge) capable of affecting a protected feature of an MCZ or any geological or geomorphological processes on which the conservation of a feature is partially or wholly dependent. It does not apply where the effect is insignificant, in order to avoid capturing very minor matters. The duty applies to all types of consent (however described), including licences granted by the MMO under Part 1 of the Bill and planning permissions granted by local planning authorities.
358. Subsection (2) requires public authorities to inform the relevant statutory nature conservation body if it believes a proposed activity will hinder the achievement of the conservation objectives of an MCZ. Subsection (3) states that no authorisation may be granted until either 28 days have passed since such notice or the appropriate statutory conservation body provides that the authority does not need to wait 28 days.
359. Subsections (5), (6) and (7) impose a duty on an authority not to grant authorisation unless it is satisfied that there is no significant risk that the activity will hinder the achievement of the conservation objectives or if certain conditions in subsection (7) are met. These conditions are: (i) the act cannot be carried out in any other way; (ii) the benefit of the act to the public clearly outweighs the risk of environmental damage; and (iii) the person seeking authorisation will take measures of equivalent environmental benefit to the damage that will be, or is likely to be, caused.
360. Subsection (10) requires public authorities to have regard to any advice or guidance given by the appropriate statutory conservation body.
Clause 127: Advice and guidance by conservation bodies
361. This clause confers powers and duties on the statutory nature conservation bodies (Natural England, the Joint Nature Conservation Committee and the Countryside Council for Wales) to give advice or guidance to public authorities in respect of MCZs. Public authorities are required to have regard to this advice or guidance when carrying out their duties under clauses 125 and 126. This clause does not limit or restrict the matters on which the conservation bodies can advise (in accordance with their existing functions) but identifies the types of MCZ-related advice and guidance to which other provisions in this part of the Bill apply (namely the duties on public authorities).
362. Subsections (1) and (2) specify the issues on which advice or guidance can be given, and allows it to be issued in respect of one or more sites, and to one or more authorities. Advice and guidance can also be issued more generally on MCZs.
Clause 128: Failure to comply with duties etc
363. This clause enables the statutory nature conservation bodies to obtain an explanation if it thinks a public authority has failed to exercise its functions to further, (or where permissible, least hinder), the conservation objectives of an MCZ, failed to notify the appropriate conservation body where it believes that an act requiring authorisation may have a significant risk of hindering the achievement of the conservation objectives of an MCZ or failed to act in accordance with the guidance provided by the statutory nature conservation body. This clause has effect even when the public authority did not initially request the advice or guidance. This clause is analogous to section 4(2) to (5) of the Natural Environment and Rural Communities Act 2006 (c. 16), but is not limited to England.
Byelaws for protection of MCZs etc: England
Clause 129: Byelaws for protection of MCZs in England
364. This clause gives the MMO the power to make byelaws to protect MCZs in the English inshore region and help further their conservation objectives. There is no power to make byelaws in the offshore region. Separate arrangements for Wales are detailed in clause 134.
365. Subsection (3) sets out the activities which can be controlled through the making of byelaws. These are primarily activities which are not otherwise controlled (for example under the new licensing system). Research has shown that unregulated activities can threaten biodiversity, and that those of highest risk are motorised recreation (such as the use of speed boats and jet-skis), wildlife watching (which may also disturb sensitive species), and land-based recreation. The powers are drafted widely in order to allow the MMO to regulate these, and any other activities likely to threaten a site’s conservation objectives.
366. Subsection (4) allows regulators to control specific activities on the seashore adjacent to an MCZ, for the purposes of protection (for example to control noise disturbance from vehicles or music).
367. Subsections (5) and (6) enable the MMO to issue permits (with whatever conditions they feel appropriate) to authorise activities which would otherwise be unlawful under the byelaw.
Clause 130: Byelaws: procedure
368. This clause requires the MMO to carry out public consultation before making a byelaw. It must publicise its intention to make a byelaw and provide a copy of the draft byelaw if asked, for which it may charge a fee to cover the cost of doing so.
369. Byelaws must be confirmed by the Secretary of State before they come into force. Once made, byelaws must also be publicised.
Clause 131: Emergency byelaws
370. This clause enables the MMO to make byelaws (under clause 129) urgently, without having to comply with the usual consultation and publication requirements and without confirmation by the Secretary of State. This is only permitted where the MMO considers there to be an urgent need to protect an MCZ.
371. A notice that the emergency byelaw has been made must be published (subsection (3)). Those likely to be affected can then make representations to the Secretary of State - who has the power to revoke an emergency byelaw.
372. The MMO must keep the emergency byelaw under review. Under subsection (2), emergency byelaws remain in force for a maximum of 12 months (although they can be extended by up to a further six months by the MMO (subsections (7) to (9)).
Clause 132: Interim byelaws
373. This clause enables the MMO to make interim byelaws to protect features in an area where the MMO considers there may be reasons for the Secretary of State to designate an MCZ, and where there is an urgent need for protection. Delay in providing protection through a byelaw could otherwise result in harm to the site. Byelaws under this section are essentially the same as emergency byelaws made by virtue of clause 131 except that they apply to areas which are not yet designated as MCZs.
374. As there will be no MCZ designated in these cases, subsection (3) requires that the interim byelaw clearly states the boundaries to which it will apply.
375. As with emergency byelaws, subsection (4) exempts interim byelaws from consultation (although the MMO must publish notice of them), and the MMO must keep the need for them under review.
376. Subsection (5) provides for an interim byelaw to remain in force for up to a maximum of 12 months, unless revoked by the Secretary of State. In cases where the period specified in the byelaw is under 12 months, it can be subsequently extended by the MMO (under subsection (10)) - but the byelaw cannot remain in force for more than 12 months in total in any event.
377. If, while an interim byelaw is in place, the Secretary of State gives notice of a proposal to make an order (under clause 116) to designate any part of the area as an MCZ, the interim order will remain in place until he decides not to make the order or until the order takes effect.
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