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Clause 160: Byelaws: procedure
449. This clause allows the Secretary of State to make regulations about the procedure to be followed by an IFC authority when making byelaws (including emergency byelaws).
Clause 161: Inquiries
450. This clause applies, with modifications, subsections (2) to (5) of section 250 of the Local Government Act 1972 to any inquiry under clause 155(5) or 159(3).
Clause 162: Evidence of byelaws
451. This clause provides that the production of a signed copy of a byelaw is conclusive evidence of the byelaw. An emergency byelaw must be signed by an officer or member of the relevant IFC authority. Other byelaws must be signed by or on behalf of the Secretary of State.
Offences
Clause 163: Offences
452. This clause establishes offences and penalties. A person is guilty of an offence if he contravenes any byelaw made by an IFC authority. Where a vessel is used in contravention of a byelaw the master, owner and charterer (if any) will each be guilty of an offence. A person guilty of an offence under subsection (1) is liable upon summary conviction to a maximum fine of £50,000. Subsection (4) ensures that magistrates’ courts have jurisdiction over byelaw offences that are committed at sea, by treating them as having been committed in any part of England and Wales.
Clause 164: Powers of court following conviction
453. This clause provides that where a person is convicted of an offence, the court may order forfeiture of any fishing gear used in the commission of the offence or any fish in respect of which an offence was committed. If the fish are in a container, the container may also be forfeited. As an alternative, the court may order that person to pay a sum of money representing the value of the fishing gear or fish. Where there has been a breach of the conditions of a permit granted by an IFC authority, the court may suspend the permit or disqualify the person from holding or obtaining any IFC authority permit relating to any activity to which that permit related. A permit can be suspended or disqualified for such period as the court sees fit.
Enforcement
Clause 165: Inshore fisheries and conservation officers
454. This clause provides that inshore fisheries and conservation officers (“IFC officers”) may be appointed by IFC authorities. Such appointments may be subject to any limitations specified by the IFC authority making that appointment.
Clause 166 : Powers of IFC officers
455. Enforcement powers are listed in Part 8 of the Bill. This clause sets out the powers from that list which are available to an IFC officer and the legislation in
respect of which they may be exercised. The geographical area in relation to which an IFC officer may exercise his enforcement powers is set out at subsection (4).
456. Subsections (5) to (8) make provision for an IFC officer to engage in hot pursuit of a vessel or vehicle from the IFC district for which he has been appointed. Hot pursuit applies only in relation to any vessel or vehicle in Scotland or the Scottish Zone which has been pursued there in accordance with subsection (5).
457. Subsection (2) allows the Secretary of State to amend subsection (1) of this clause (the list of legislation in respect of which enforcement powers may be exercised).
Other powers and duties of IFC authorities
Clause 167: Development, etc of fisheries
458. This clause provides for an IFC authority to take such measures as it considers necessary in order to develop any fishery for sea fisheries resources in its district. This includes the power to stock or re-stock a public fishery for any sea fisheries resources.
Clause 168: Provision of services by IFC authorities
459. This clause provides for IFC authorities to enter into arrangements, with or without charge, with another person or body for the provision of services by the IFC authority to that person or body. This can include an IFC authority making arrangements with the holder of a right of private fishery in connection with the enforcement of that right.
Clause 169: Duty of co-operation
460. This clause requires an IFC authority to take such steps as it considers appropriate to co-operate with certain other public organisations that have functions relating to the regulation and enforcement of activities in any part of the sea within the IFC district (for example, the MMO) and to co-operate with other IFC authorities that share a boundary with the IFC authority.
Clause 170: Information
461. This clause requires IFC authorities to collect certain information and to provide certain information to the Secretary of State.
Clause 171: Accounts
462. IFC authorities must keep proper accounts and proper records in relation to those accounts. The accounts of an IFC authority comprising more than one constituent council must be made up yearly to 31st March.
Clause 172: Annual plan
463. This clause requires every IFC authority to make and publish a plan setting out the authority’s main objectives and priorities for the year. The plan must be published
before the beginning of each financial year. An IFC authority must send a copy of its plan to the Secretary of State.
Clause 173: Annual report
464. This clause requires every IFC authority, as soon as is reasonably practicable after the end of each financial year, to publish a report on its activities in that year. Subsections (2) and (3) enable the Secretary of State to impose requirements on IFC authorities relating to the form, contents and distribution of the report.
Clause 174: Supplementary powers
465. This clause sets out the miscellaneous powers of an IFC authority. These include matters necessary for the exercise of any of its other functions and the acquisition or disposal of land or other property but the clause prevents an IFC authority from borrowing money. An IFC authority may enter into arrangements with other IFC authorities for the establishment of a body to co-ordinate their activities.
Miscellaneous and supplemental
Clause 175: Expenses of IFC authorities
466. This clause establishes the funding arrangements for IFC authorities. The constituent council or councils must pay the expenses of the IFC authority for their area. It allows a majority of the local authority members to veto the total annual budget for that IFC authority (subsection (4)).
467. Subsection (2) explains that where there is more than one council for a district, each council must fund the IFC authority in accordance with the order establishing that district. The order may provide for the portion of funding falling to each council to be calculated by reference to any circumstances whatsoever (for example, according to the length of coastline of each council).
468. Subsection (3) provides that section 103 of the Local Government Act 1972 concerning expenses of joint committees does not apply in relation to an IFC authority since the matter is dealt with at subsection (2).
Clause 176: IFC authority as party to proceedings
469. An IFC authority may bring proceedings under this Act in its own name as well as bringing or defending any other proceedings in its own name.
Clause 177: Exemption from liability
470. This clause provides that no member or employee of an IFC authority acting in good faith shall be liable for anything done in connection with the discharge of the authority’s functions. An IFC officer benefits from the corresponding exemption in clause 285.
Clause 178: Report by Secretary of State
471. This clause requires the Secretary of State to lay a report before Parliament on the conduct and operation of IFC authorities. This report must be laid every four years starting from the date the first IFC authority was established.
Clause 179: Minor and consequential amendments
472. This clause introduces Schedule 14. This Schedule makes amendments to primary legislation consequent upon the repeal of the Sea Fisheries Regulation Act 1966 and the establishment of IFC authorities to replace the existing sea fisheries committees in England. In addition, IFC authorities are added to Schedule 7 to the Natural Environment and Rural Communities Act 2006. The Secretary of State may enter into an agreement with designated bodies listed in Schedule 7 for that body to perform a Defra function in the whole or part of England.
Clause 180: Application to the Crown
473. This clause binds the provisions of this Chapter on the Crown and applies in relation to Crown land subject to subsection (2). Crown land is defined in subsection (4). Subsection (3) applies this Chapter to persons in the public service of the Crown.
Clause 181: Interpretation of this Chapter
474. This clause defines certain terms used in this Part of the Bill. For the purposes of the Bill, the terms “geomorphological” (used in Parts 5 and 9) and “physiographical” (used in Parts 6 and 7) have the same meaning.
Chapter 2: Local Fisheries Committees
Clause 182: Abolition of local fisheries committees
475. This clause repeals the Sea Fisheries Regulation Act 1966.
Clause 183: Power to make consequential or transitional provision, etc
476. Subsection (1) provides for the appropriate national authority to make any provision necessary as a consequence of the repeal of the Sea Fisheries Regulation Act 1966. This includes any transitional, consequential, incidental or supplemental provision or savings.
Chapter 3: Inshore Fisheries in Wales
Clause 184: Power of Welsh Ministers in relation to fisheries in Wales
477. Clause 184(1) provides that, subject to subsection (2), the Welsh Ministers may by order make any provision which IFC authorities may make by byelaw under clause 155. Subsection (2) provides that, to the extent that the Welsh Ministers already have the power to make such provision, subsection (1) does not apply. In other words, clause 184 confers power on the Welsh Ministers to make any provision
by order which the IFC authorities may make by byelaw, but only to the extent that the Welsh Ministers do not already have the power to make such provision.
478. The Welsh Ministers’ power to make orders under clause 184 will be exercisable by statutory instrument (clause 310(3)) and such orders will be subject to annulment in pursuance of a resolution of the National Assembly for Wales (clause 310(8) and (10)), that is, negative resolution procedure.
Clause 185: Offences
479. Clause 185 provides that it is an offence for a person or vessel to contravene any provision of an order made under clause 184. The maximum penalties for contravening an order made under clause 184 are, on summary conviction, a fine not exceeding £50,000.
Clause 186: Powers of court following conviction
480. Clause 186 confers various powers on the court following conviction of a person for an offence under clause 185.
481. More particularly, clause 186 enables the court, following conviction, to:
- order the forfeiture of -
a) any fishing gear used in the commission of the offence,
b) any sea fisheries resources (including any container in which they are kept) in respect of which the offence was committed; or
- order the offender to pay a sum of money representing the value of such fishing gear or resources.
482. Where there has been a breach of the conditions of a permit granted by the Welsh Ministers, the court may suspend the permit or disqualify the person from holding or obtaining any such permit relating to any activity to which that permit related. A permit can be suspended or disqualified for such period as the court sees fit.
Clause 187: Power to provide services for purposes of enforcement
483. This clause provides for the Welsh Ministers to enter into arrangements, with or without charge, with third parties (private fishery owners and grantees of several and regulating orders) for MEOs to undertake enforcement activities within those third party fisheries.
Clause 188: Miscellaneous amendments
484. This clause amends the Coast Protection Act 1949 to include the Welsh Ministers as representatives on Coast Protection Boards in relation to any powers or duties that they have in relation to fishing and fisheries in Wales.
PART 7: FISHERIES
Chapter 1: The Sea Fish (Conservation) Act 1967
Clause 189: Size limits for sea fish
485. Section 1 of the Sea Fish (Conservation) Act 1967 enables the Ministers (now the Secretary of State and the devolved administrations) to make an order to set minimum size limits for sea fish. Orders under this section may prohibit any person from landing sea fish below a specified size; prohibit the sale of sea fish below a specified size; and prohibit the carriage by a relevant British fishing boat of sea fish below the specified size. Orders under this section may set different limits for different areas, for fish of different sexes and may restrict the landing by any person of parts of fish below the size limit set for that species.
486. Section 1 does not currently allow for a maximum size limit or for a size range to be set by an order or for the carriage restrictions to apply to a vessel not covered by the definition of a relevant British fishing boat. Clause 189 provides for all the current powers available under orders made under section 1 to apply to any requirements as to size, rather than minimum size limits only, and for the prohibition on carriage to apply to all relevant British vessels. The effect of these amendments is to allow Ministers to make an order setting a minimum or a maximum size limit for sea fish or a size range outside which no fish may be landed, sold or carried.
487. The amendments made by this clause extend to England and Wales only and the powers to make orders on the basis of these amendments would be exercisable by the Secretary of State as regards England and the Welsh Ministers as regards Wales. Since this clause does not extend to Northern Ireland, amendments have been made to remove Northern Ireland fishing boats from the coverage of certain of the measures.
Clause 190: Regulation of nets and other fishing gear
488. Section 3 of the Sea Fish (Conservation) Act 1967 enables the Ministers (now the Secretary of State and the devolved administrations) to make an order in relation to relevant British fishing boats registered in the UK applying restrictions to nets and other fishing gear in respect of their construction, design, material and size. An order under this section may be made so as to apply only in relation to fishing for specified descriptions of sea fish, specified methods of fishing, and specified areas or periods.
489. Section 3(2) provides that an order may be made to extend to nets and fishing gear carried within British fishery limits (excluding the Scottish zone) by Scottish fishing boats, fishing boats registered outside the UK and unregistered boats. In addition to other matters, section 3(3) and (4) provide for exemptions from the restrictions imposed by orders under this section to be made in relation to fishing boats. Section 3(5) creates offences for fishing in contravention of any orders made under this section.
490. Section 3 does not allow restrictions to apply equally to persons fishing from the shore as to persons fishing from a boat. Clause 190 amends section 3 so that restrictions of this type can be made by order in respect of persons fishing from the shore of England and Wales. This clause also creates new offences for any person fishing from the shore in contravention of any such restrictions and allows for orders to exempt persons from the restrictions imposed. The power to make orders using the new provisions would be exercisable by the Secretary of State as regards England and the Welsh Ministers as regards Wales.
Clause 191: Charging for commercial fishing licences
491. This clause adds a new subsection (4A) to section 4 of the Sea Fish (Conservation) Act 1967. Section 4 gives powers to charge for commercial sea fishing vessel licences. Subsection (4A) enables the Ministers to specify the amount of the charge in the order, to make provision in the order as to how the charge should be determined or to provide that in specified circumstances no charge will be payable. The new subsection clarifies the existing power for the Ministers to vary the amount of charge for different classes of licence. An amendment to section 22 of the Act provides that “class” may relate to any circumstances whatsoever, including, for example, vessel length, vessel tonnage or gear type. The amendments made by this clause extend to England and Wales only.
Clause 192: Grant of licences subject to conditions imposed for environmental purposes
492. Section 4 of the Sea Fish (Conservation) Act 1967 provides powers to prohibit fishing by fishing boats in any specified area without authorisation by a licence. Section 4(6) provides that licences may authorise fishing subject to certain conditions. Clause 192 adds to these conditions to allow the imposition of conditions for marine environmental purposes, as defined.
Clause 193: Power to restrict fishing for sea fish
493. Section 5 of the Sea Fish (Conservation) Act 1967 enables the Ministers (now the Secretary of State and the devolved administrations) to make an order restricting fishing for sea fish of any description and by any method specified for any period and creates an offence where any fishing boat is used in contravention of such an order. The order can apply to any fishing boat within relevant British fishery limits. Outside those limits, the order can apply only to a relevant British fishing boat registered in the UK, or where an order relates to fishing for salmon or migratory trout, to any fishing boat which is British-owned but not registered under the Merchant Shipping Act 1995. Any fish caught in contravention of a restriction of an order made under this section must be returned immediately to the sea.
494. Orders made under this section apply only to fishing boats and not to persons fishing from the shore. Clause 193 amends section 5 powers so that orders may be
made in relation to such persons. Offences are also created in respect of persons fishing in contravention of an order.
495. The amendments also provide for restrictions to be made in an order to place limits on how much fish a person or a fishing boat may take in any given period. Any fish caught in excess of this limit must be returned to the sea. The order may provide that any sea fish caught during the relevant period but returned to the sea as soon as the limit is exceeded do not count towards the limit imposed by the order in question. In addition, the amendments provide that an order which prohibits fishing for sea fish, or fishing for sea fish by any specified method, may require the stowage of fishing gear.
496. The powers to make orders using the new provisions would be exercisable by the Secretary of State as regards England and the Welsh Ministers as regards Wales. Since this clause does not extend to Northern Ireland, amendments have been made to remove Northern Ireland fishing boats from the coverage of certain of the measures.
Clause 194: Penalties for offences
497. Section 11 of the Sea Fish (Conservation) Act 1967 sets the levels of fine applicable for persons found guilty of offences under specified sections of the Act. Offences under sections 3, 4(9A) or 5(6) attract a fine not exceeding £5,000 on summary conviction or an unlimited fine on conviction on indictment. Offences under sections 1, 2 or 6(5) attract a fine not exceeding the statutory maximum on summary conviction or an unlimited fine on conviction on indictment. Clause 194 increases the level of fine for offences under these sections on summary conviction to a maximum of £50,000 or on indictment to an unlimited fine.
498. Section 15 of the Act provides penalties for certain offences relating to the enforcement of orders under the Act by British sea-fishery officers. Clause 194 replaces paragraph (b) of subsection (2C) with two new subsections which provide for maximum fines on summary conviction for the offences of obstructing or assaulting an enforcement officer in the exercise of his duties under section 15 of £20,000 and £50,000 respectively.
499. Section 16 of the Act provides for the enforcement of section 2 and orders made under section 1 of the Act. Clause 194 replaces subsection (1A) with two new subsections which provide for maximum fines on summary conviction for the offences of obstructing or assaulting an enforcement officer in the exercise of his powers under subsection (1) of £20,000 and £50,000 respectively.
Clause 195: Offences by directors, partners, etc
500. Clause 195 replaces section 12 of the Sea Fish (Conservation) Act 1967 and provides that where offences under section 1 to 6 of the Act have been committed by a body corporate, then any officer, as defined, of the body corporate can be found to be guilty of that offence and liable to proceedings and fines. Officers will be liable in this way only where the offence has been committed with their consent or connivance or through their neglect. Similar provision is made in respect of offences committed by Scottish firms.
Clause 196: Minor and consequential amendments
501. Clause 196 introduces Schedule 15, which contains minor and consequential amendments to sections 1, 3, 5 and 11 of the Sea Fish (Conservation) Act 1967 and Schedule 4 to the Fisheries Act 1981 (c.29).
Chapter 2: The Sea Fisheries (Shellfish) Act 1967
502. For the purpose of establishing or improving, and of maintaining and regulating, shellfisheries, the Secretary of State and the Welsh Ministers may make several and regulating orders under the Sea Fisheries (Shellfish) Act 1967 (“the Act”). The Act allows for orders to be made, in the name of a person or body of persons whether corporate or unincorporated, to restrict the right of fishing in a defined area of the sea to that person. An order will relate to a named species of shellfish and will be granted for a set period of up to 60 years.
503. Several orders grant exclusive rights to deposit, propagate, dredge, fish for and take specified shellfish. Grantees may cultivate and manage the fishery by preparing the ground, often by bringing in new seed stocks to grow on the fishery.
504. Regulating orders grant powers to enable grantees to better manage and conserve specified shellfish stocks in a designated area. Specifically, orders may enable grantees to introduce quotas for shellfish stocks and a system of licensing to restrict the number of persons authorised to exploit the fishery.
505. Hybrid orders may also be made which combine several and regulating provisions. Where such an order is made, it sets up a regulated fishery that has within its boundaries one or more areas designated as several fisheries.
506. Parts of the Act extend to private shellfisheries which have been established under Acts of Parliament. Such shellfisheries are normally in respect of oyster fisheries and establish private rights in much the same way as with several orders.
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