|Marine And Coastal Access Bill [HL] - continued
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378. This clause sets out the administrative and notification requirements in relation to byelaws (whether they are made urgently or not) and interim byelaws.
379. Subsections (3) and (4) provide that the MMO must make an order available for inspection and provide a copy if asked, and may charge a fee to cover its costs of doing so. It must send a copy of the byelaw to the Welsh Ministers if the byelaw may affect activity in Wales.
Orders for protection of MCZs etc: Wales
380. This clause gives the Welsh Ministers the power to make conservation orders, in order to protect MCZs in the Welsh inshore region and help further their conservation objectives.
381. Subsection (3) applies the byelaw-making provisions of subsections (3), (4) and (7) to (9) of clause 130 to conservation orders made by the Welsh Ministers. Conservation orders in Wales will work in a similar way to byelaws in England.
382. Subsection (4) enables the Welsh Ministers to issue permits authorising anything which would otherwise be unlawful under a conservation order and subsection (5) enables the Welsh Ministers to attach conditions to any such permit.
383. Subsection (6) allows the Welsh Ministers to make an order which applies to two or more MCZs.
384. Subsection (1) requires the Welsh Ministers to consult before making a conservation order, while subsections (2) and (3) require Welsh Ministers to publish notice of the making of the order and to ensure that interested individuals are aware of the publication.
385. Subsection (4) enables the Welsh Ministers to make conservation orders (under clause 134) urgently, without having to comply with the usual consultation requirements. This is only permitted where the Welsh Ministers consider there to be an urgent need to protect an MCZ.
386. This clause enables the Welsh Ministers to make interim orders to protect features where there may be reasons to designate an MCZ and where there is an urgent need to protect the feature. Orders under this section are essentially conservation orders made urgently except that they apply to areas which are not yet designated as MCZs.
387. Subsection (3) requires an interim order to identify the boundaries of the area in which the order applies.
388. Subsection (4) applies subsections (2) to (5) of clause 134 to interim orders, and consequently, an interim order will be able to make any provision which could be made in an ordinary conservation order.
389. Subsection (5) provides for an interim order to remain in force for a limited period not exceeding 12 months (unless revoked). The Welsh Ministers may further extend an order (by means of a further order) made under subsection (9), thereby allowing for continued protection of the area until its status as an MCZ is settled.
390. Interim orders, being urgent by nature, require no prior consultation, but subsection (6) requires the Welsh Ministers to publish notice of the making of an interim order in Wales and subsection (7) sets out the matters to be addressed in the notification.
391. Subsection (8) requires the Welsh Ministers to keep under review the need for an interim order to remain in force.
392. This clause sets out administrative and notification requirements in relation to Welsh conservation orders (whether made urgently or not) and interim orders.
393. Subsection (6) allows conservation and interim orders to be amended or revoked by a further order.
Clause 138: Hearings by Secretary of State or Welsh Ministers
394. This clause makes provision for the Secretary of State to hold a hearing before deciding whether to confirm a byelaw or revoke an emergency or interim byelaw. The clause also makes provision for the Welsh Ministers to hold hearings before deciding whether to make a conservation order or an interim order.
395. Subsection (3) 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 (5) requires these representations to be reported back to Ministers.
396. Subsection (4) allows Ministers to make regulations setting out the procedures to be followed, including the awarding of costs (for example where one party incurs additional costs as a result of the unreasonable behaviour of another party).
397. This clause provides that breaching any byelaw or conservation order is an offence.
398. Subsection (2) sets out the level of fine for a person guilty of an offence. A level 5 fine is a fine up to £5,000.
399. This clause sets out a general offence to catch deliberate or reckless acts of damage to designated features of an MCZ.
400. Subsection (1) set out the circumstances under which a person is guilty of the offence. Such an offence is based on intentional or reckless damage to an MCZ, including the killing or injuring of plants and animals as well as intentionally taking or removing any organism from an MCZ. Subsection (2) sets out prohibited acts.
401. Subsection (5) provides that a court determining the fine should have regard to any financial benefit the person obtained by committing the offence: the greater the gain, the higher the penalty is likely to be.
402. Subsection (6) states that an offence can be tried in any part of the UK.
403. This section sets out the circumstances in which a person will not be guilty of an offence under clause 139 or 140.
404. Exceptions include acts in the interests of national security or for the prevention or detection of crime as well as any act where a permit has been issued allowing an exception, for example in the case of scientific investigation. This subsection also exempts any person damaging a feature of an MCZ when acting to save a life.
405. Subsection (3) provides that a person is not also guilty of contravening byelaws or orders if he is found guilty of the general offence.
406. Subsection (4) provides a defence to the general offence under clause 140 where the accused person can prove that he was sea-fishing and the damage could not reasonably have been avoided. If damage were caused for example by the use of illegal fishing gear where it would not have been so caused had legal fishing gear been used, then this defence would not be available. Such damage could reasonably have been avoided by using legal fishing gear, and therefore the person would not have met the condition in subsection (4)(b).
407. Under the UN Convention on the Law of the Sea, the UK may restrict the activities of certain vessels in order to protect the environment. If the UK has not declared an exclusive economic zone (EEZ) under the Convention, restrictions may be applied only to UK and other EU vessels. Once an EEZ has been declared, restrictions may apply to all countries vessels. Subsection (5) recognises this, by ensuring that the application to third country vessels will only take place once an EEZ has been declared under clause 41 of the Bill.
Clause 142: Fixed monetary penalties
408. This clause enables the Secretary of State or the Welsh Ministers to make an order which confers a power on an enforcement authority to issue fixed monetary penalties for the breach of byelaws or conservation orders.
409. The appropriate enforcement authority may only impose a fixed monetary penalty when satisfied beyond reasonable doubt that the person has committed the relevant offence.
410. Subsection (4) provides for the maximum fixed financial penalty, which will be £200 (based on the current amount of a level 1 fine). A level 1 fine on the standard scale cannot exceed £200. A fixed monetary penalty may differ in amount according to whether the person liable is an individual or part of a corporate body. This level of fine reflects the nature of the likely offences, which will tend to be minor breaches of byelaws or conservation orders by an individual.
411. This clause specifies certain minimum requirements that must be included in any fixed monetary penalty regime. In particular, when imposing the penalty, the enforcing authority must issue a notice of intent to the person setting out the information specified in subsection (3) of this clause, and provide the person with an opportunity to discharge his liability by payment of a prescribed sum which will be lower or equal to the amount of the penalty. If the sum is not paid, a person can make representations to the authority setting out the reasons why he does not think he was guilty of the offence. Having considered those representations, the authority will come to a decision on whether to impose a fixed monetary penalty (final notice) setting out the information specified in subsection (5). A person on whom a final notice is served has a right of appeal.
412. Subsection (6) provides that an order allowing an enforcement authority to impose fixed monetary penalties must provide for the grounds for appeal set out in that subsection.
413. This clause gives effect to the further provisions about fixed monetary penalties at Schedule 10.
Clause 145: Application to the Crown
414. This clause provides that the provisions set out in Chapter 1 of Part 5 apply to the Crown.
415. This clause gives effect to the consequential and transitional amendments contained in Schedules 11 and 12.
416. Definitions are provided for words or expressions used in this Part.
Clause 148: Marine boundaries of SSSIs and national nature reserves
417. This clause gives effect to Schedule 13 which amends the Wildlife and Countryside Act 1981 (c. 69).
Chapter 1: Inshore Fisheries and Conservation Authorities
418. This Part provides for the establishment of inshore fisheries and conservation districts (IFC districts) and inshore fisheries and conservation authorities (IFC authorities) in England. The main duty of IFC authorities is to manage the exploitation of sea fisheries resources occurring in their districts in a sustainable way. IFC authorities have powers to make and enforce byelaws in pursuance of their main duty. The Sea Fisheries Regulation Act 1966, which relates to the inshore sea fisheries of England and Wales and provides for the establishment of sea fisheries districts and sea fisheries committees, will be repealed.
Inshore fisheries and conservation districts and authorities
419. This clause provides for the Secretary of State to establish IFC districts. Such districts are to be established by order and will consist of one or more local authority areas that have a seashore. The seaward extent of a district will be determined in the order establishing that district. The term seashore is defined in clause 181.
420. Subsection (3) requires the Secretary of State to consult certain people and organisations before making an order establishing an IFC district.
421. This clause requires there to be an IFC authority for every IFC district and provides for the IFC authority to comprise a committee, or a joint committee (in the case of more than one local authority), of the local authority or authorities falling within the district.
422. Subsection (1) requires that an order establishing an IFC district must provide for the membership of the IFC authority for that district. The membership must comprise members of constituent local authorities, persons appointed by the MMO according to the criteria in subsection (2) and other persons.
423. Subsection (3) provides for the Secretary of State to amend by order the descriptions of persons appointed as members of an IFC authority. Provision is also made for any consequential amendments to be made to this clause as appear to the Secretary of State to be necessary. The order may only add further descriptions of persons appointed as members of an IFC authority, or vary or remove descriptions so added. The descriptions currently set out in subsection (2) may not be varied or removed.
424. Subsections (4) and (5) require the order establishing an IFC district to specify the total number of members of the IFC authority for the district. The order must also specify the number of members to be appointed from each constituent local authority and the number of members appointed by the MMO. The order must also set out the number of members to be appointed in the category other persons and by whom they are to be appointed.
425. An order establishing an IFC district may include the provision set out in subsection (6) as to the membership and procedures of the IFC authority for that district, for example provision as to how the chair of the IFC authority is to be appointed.
426. Subsection (7) lists certain enactments that concern the proceedings of local authority committees or joint committees. These will apply to an IFC authority subject to any provision made by the order establishing the district.
427. Subsection (8) provides definitions for the terms the fishing community and marine environmental matters.
428. Subsection (9) provides for the reference to the MMO in subsection (1)(b) to be read as the Secretary of State until the MMO comes into being, at which point anybody appointed to the IFC authority by the Secretary of State would be treated as if appointed by the MMO.
429. This clause allows the Secretary of State to amend or revoke an order that established an IFC district. Certain persons and organisations must be consulted before an order is amended or revoked, including any likely to be affected by the amendment or revocation.
Clause 153: Management of inshore fisheries
430. This clause places a duty on each IFC authority to manage the exploitation of sea fisheries resources in its district. Subsection (2) sets out the key elements of each IFC authoritys duty. These are seeking to ensure sustainable exploitation of fisheries, balancing socio-economic benefits with the protection, or the promotion of the recovery of, the marine environment from past and present exploitation, taking steps to contribute to the achievement of sustainable development and balancing the needs of all persons exploiting the districts fisheries.
431. IFC authorities will be able to apply precautionary measures and use an ecosystem-based approach in order to fulfil their main duty. Precautionary measures in this context means that the absence of adequate scientific information should not be used as a reason for postponing or failing to take management measures to conserve target species, associated or dependent species and non-target species and their environment. The ecosystem-based approach in this context means that the capacity of the aquatic ecosystems to produce food, revenues, employment and, more generally, other essential services and livelihood, is maintained indefinitely for the benefit of present and future generations.
432. Subsections (3) to (9) make provision in respect of guidance issued by the Secretary of State to IFC authorities. The Secretary of State must give guidance to IFC authorities as to how they are to contribute to the achievement of sustainable development and must publish such guidance. The Secretary of State also may give guidance as to the performance of IFC authorities duty under subsection (1). Each IFC authority, in performing its duty, must have regard to any guidance issued by the Secretary of State. Before issuing such guidance, the Secretary of State must consult IFC authorities and other relevant people and organisations and must take into account IFC authority functions, the functions of other bodies exercisable in the IFC district and the resources available to IFC authorities.
433. The term sea fisheries resources is defined at subsections (10) and (11). Certain fish are specifically excluded from that term and therefore from IFC authority competence because the Environment Agency is responsible for regulating fisheries for those kinds of fish. However, IFC authorities are still able to regulate the exploitation of sea fisheries resources in order to provide protection for the fish listed in subsection (11).
434. The activities to which the main duties and powers of an IFC authority apply are set out at subsection (12). These activities include activities relating to cultivated fisheries such as aquaculture and mariculture as well as all recreational fishing activities. Mariculture is the cultivation of marine organisms in their natural habitats, usually for commercial purposes.
435. Each IFC authority must exercise its powers to seek to ensure that the conservation objectives of any MCZ in their district are furthered. This requirement will not be affected by anything set out in clause 153 about how IFC authorities perform their duty.
Clause 155: Power to make byelaws
436. This clause provides a power for an IFC authority to make byelaws which must be observed in its district. Byelaws, apart from emergency byelaws, do not take effect until confirmed by the Secretary of State. The Secretary of State may cause a local inquiry to be held before confirming a byelaw. A byelaw may be confirmed with modifications, which must be agreed with the IFC authority that made it.
437. This clause sets out a non-exhaustive list of the types of activities for which IFC authorities may make byelaws (including emergency byelaws) to manage sea fisheries resources in their district.
438. Subsection (3) enables byelaws to be made prohibiting or restricting the exploitation of sea fisheries resources in specified areas or periods or limiting the amount of resources that may be exploited or the amount of time a person or vessel can spend exploiting fisheries resources in a specified period.
439. Subsection (4) allows IFC authorities to prohibit or restrict the exploitation of sea fisheries resources within their district without a permit. IFC authorities will be able to recover the costs of administering and enforcing a permit scheme, attach conditions to permits and limit the number of permits they issue under a particular scheme.
440. Subsection (5) allows IFC authorities to prohibit or restrict the use of vessels of specified descriptions and any method of exploiting sea fisheries resources. The possession, use and transportation of specified items or types of items used in the exploitation of sea fisheries resources may also be prohibited or restricted. This would enable an IFC authority to require the use of a particular method of sea fishing or an item used in sea fishing (for example to reduce by-catch) by means of a prohibition on the use of other methods and items.
441. Subsection (6) provides for the protection and regulation of shellfisheries including, but not limited to, requirements for shellfish to be re-deposited in specified places and for the protection of shellfish laid down for breeding purposes and culch which is the substrate/material on which the spat or young of shellfish can attach and grow. This subsection provides for a district of oyster cultivation to be established, so that the IFC authority can prohibit the sale of oysters between certain dates, and allows IFC authorities to disapply the defence concerning the taking and sale of certain crabs and lobsters as set out in section 17(2) of the Sea Fisheries (Shellfish) Act 1967.
442. Subsection (7) allows IFC authorities to make provision in byelaws for monitoring the exploitation of sea fisheries resources. This includes requirements as to the fitting of particular equipment, the carriage of onboard observers and the marking or tagging of items used in the exploitation of sea fisheries resources.
443. Subsection (8) allows IFC authorities to require people involved in the exploitation of sea fisheries resources in their district to provide them with specified information so that it is an offence if certain information is not provided.
444. This clause allows an IFC authority to make an emergency byelaw which takes effect without first being confirmed by the Secretary of State. Subsection (2) prescribes the circumstances in which an emergency byelaw may be made.
445. Subsection (3) provides when an emergency byelaw will come into force and for how long, subject to a maximum of 12 months duration. Subsections (4) and (5) allow an IFC authority to extend an emergency byelaw once for a period of up to 6 months with the written approval of the Secretary of State. That approval may only be given in accordance with the terms set out at subsection (6).
446. Subsections (1) and (2) clarify that byelaw-making powers include powers to make byelaws for different cases or circumstances and that a byelaw may cease to have effect after a specified period.
447. Subsection (3) provides for IFC authorities to introduce a byelaw that prohibits, restricts, or otherwise interferes with the exercise of any right of a several or private fishery as set out in subsection (4). If the byelaw would prohibit, or significantly restrict or interfere with, the exercise of that right, IFC authorities will require consent from the person who enjoys the right of private fishery, unless part or whole of that fishery falls within an MCZ, a European Marine Site, a Site of Special Scientific Interest (SSSI), a Ramsar site or a National Nature Reserve (NNR).
448. This clause allows the Secretary of State to revoke or restrict the application of any byelaw made by an IFC authority where it appears to the Secretary of State that the byelaw is unnecessary, inadequate or disproportionate. Before doing so the Secretary of State must follow the requirements of subsection (2) about notifying the IFC authority and considering objections.
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|Prepared: 10 June 2009