Clause 219: Byelaws: emergency procedures

580.     This clause inserts a new Schedule 27 into the Water Resources Act 1991. Schedule 27 sets out the circumstances in which the Environment Agency can make emergency byelaws and the procedure for making such byelaws. Unlike byelaws made under Schedule 25 to the 1991 Act, there is no requirement for statutory public consultation or for confirmation by the appropriate national authority. Instead, emergency byelaws are time-limited and the appropriate national authority has a duty to repeal an emergency byelaw where it appears the criteria for making it no longer apply, or to amend it where it considers it appropriate.

Clause 220: Byelaws: enforcement

581.     Section 211 of the Water Resources Act 1991 sets the levels of fines for contravening byelaws made by virtue of Schedule 25 to that Act. This clause raises the fine from one not exceeding level 4 on the standard scale (currently £2,500) to £50,000.

Clause 221: Byelaws: compensation

582.     This clause replaces the duty in section 212 of the Water Resources Act 1991 to pay compensation to a fishery owner or occupier whose fishery is injuriously affected by a byelaw with a power to do so.

Supplementary

Clause 222: Theft of fish from private fisheries etc

583.     This clause raises the penalty for committing the offence of taking or destroying fish under paragraph 2 of Schedule 1 to the Theft Act 1968 to £5,000. Previously, it was £200 for an offence committed during the day and £1,000 for an offence committed at night to £5,000. It also omits the requirement for the offence to have taken place during the hours between sunset and sunrise, removes the custodial element of the penalty, and removes the link to a previous conviction.

Clause 223: Handling fish

584.     Section 32 of the Salmon Act 1986 makes it an offence to handle salmon or sea trout in suspicious circumstances. A person is guilty of the offence if, at a time when he believes or it would be reasonable for him to suspect that an offence involving taking, killing or landing a salmon or sea trout has been committed, he receives the salmon or sea trout, or undertakes or assists in its retention, removal or disposal by or for the benefit of another person, or if he arranges to do so.

585.     This clause extends the offence to eels, lampreys, smelt, freshwater fish, and other specified fish (by order under section 40A of the Salmon and Freshwater Fisheries Act 1975). Salmon, trout, eel, smelt, fish and freshwater fish are given the same meaning as in section 41(1) of that Act.

586.     Subsection (3)(c) removes the requirement for the undertaking or assisting to have been “for the benefit of another person”. The effect is that a person commits an offence if he undertakes, for instance, the disposal of fish for his own benefit and knows or suspects that the fish was unlawfully taken.

587.     Subsection (5) adds the sale of fish to the list of offences relevant to the commission of an offence under section 32. This means it becomes an offence to handle a fish sold in contravention of, for example, byelaws.

Clause 224: Duties of the Environment Agency

588.     Section 6(6) of the Environment Act 1995 requires the Environment Agency to maintain, improve and develop salmon fisheries, trout fisheries, freshwater fisheries and eel fisheries.

589.     This clause extends the duty to lampreys and smelt fisheries, and fisheries of other specified fish (by order under section 40A of the Salmon and Freshwater Fisheries Act 1975).

Clause 225: Tweed and Esk fisheries

590.     Historically, English legislation on salmon and freshwater fisheries has applied to the Scottish as well as the English River Esk and its tributaries. Conversely, Scottish legislation has applied to the English as well as the Scottish Tweed. Section 111 of the Scotland Act 1998 allows this position to be maintained post-devolution by means of an Order in Council. Currently such orders may only relate to salmon, trout, eels and freshwater fish.

591.     Subsection (2) amends section 111 to extend the scope of the order-making power to eels, lampreys and smelt. Section 111(4) defines “conservation “in relation to salmon, trout, eels and freshwater fish to include the protection of the environment. Subsection (3) extends this definition to the protection of the environment of lampreys, smelt and shad. Subsection (4) allows the Order in Council to amend section 111(1) to add or remove any species of fish listed and to which the order-making power applies.

Clause 226: Keeping, introduction and removal of fish

592.     This clause allows the appropriate national authority to make regulations to prohibit persons from keeping any fish, introducing any fish into inland waters or removing any fish from inland waters without prior authorisation.

593.     Section 30 of the Salmon and Freshwater Fisheries Act 1975 prohibits the introduction of fish into inland waters unless the person introducing the fish has the prior consent in writing of the Agency. Regulations made under clause 222 may make consequential amendments to legislation, which would allow section 30 to be replaced by any such regulations.

Clause 227: Consequential and supplementary amendments

594.     This clause omits sections 4(2), 23 and 24 of the Salmon and Freshwater Fisheries Act 1975.

595.     Section 4 of the 1975 Act makes it an offence to allow any liquids or solid matter into waters that cause those waters to be poisonous or injurious to fish, spawning grounds, spawn or food of fish. Section 4(2) disapplies this offence in relation to those exercising any lawful rights, or continuing a method in use in connection with the same premises before 18 July 1923.

596.     As water pollution legislation (from Rivers Prevention of Pollution Act 1951 through to Water Resources Act 1991) has removed any right to pollute without the prior consent of the Environment Agency, the disapplication under section 4 no longer applies.

597.     Section 23 of the 1975 Act prohibits the export of unclean salmon or trout or any salmon or trout caught during a period when the sale of salmon or trout is prohibited. It also sets conditions on the export of salmon or trout between 31 August and the following 1 May. These provisions serve no useful purpose.

598.     Section 24 of the 1975 Act requires consignments or packages containing salmon and trout to be so marked. The requirement to carry a consignment note under Council Regulation (EC) 1/2005 on the Protection of Animals During Transport and Related Operations makes this section redundant.

Chapter 4: Obsolete Fisheries Enactments

Clause 228: Repeal of spent or obsolete enactments

599.     This clause repeals six redundant Acts of Parliament relating to sea fisheries and part of one further such Act. All of this legislation is approximately 100 years or more old. These Acts are repealed as part of a wider Government commitment to reduce regulatory burdens on the private, public and voluntary sectors through the Davidson Review ¹³. The Davidson Review identified a series of fisheries Acts to consider for repeal. At the present time the Government has been able to identify six Acts and part of a seventh as suitable for immediate repeal. This clause also repeals sections 86, 87 and 163 of the Port of London Act 1968.

PART 8: ENFORCEMENT

Chapter 1: Enforcement Officers

Marine Enforcement Officers

600.     These clauses enable the MMO and the Welsh Ministers to appoint enforcement officers for the purpose of enforcing marine licensing, nature conservation and sea fisheries legislation. Such officers are called marine enforcement officers, or MEOs. On appointment, an MEO is automatically a British sea-fishery officer (see clause 233). A commissioned officer of the Royal Navy, and any person in charge of an aircraft or hovercraft of the Armed Services, are also MEOs.

601.     The clauses also enable the Department of the Environment in Northern Ireland to appoint officers with the common enforcement powers to enforce licensing and the Scottish Ministers to appoint officers with the common enforcement powers to enforce licensing and nature conservation legislation. For areas where the new enforcement officer powers do not apply, existing enforcement powers will remain in place.

602.     Enforcement of sea fisheries, licensing and nature conservation in the marine area is currently performed by British sea-fishery officers under legislation such as the Sea Fisheries (Conservation) Act 1967, Sea Fisheries Act 1968, Fishery Limits Act 1976 and the Fisheries Act 1981; officers appointed under the Sea Fisheries Regulation Act 1966; officers appointed under the Food and Environment Protection Act 1985; officers appointed under the Wildlife and Countryside Act 1981 and the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007. Enforcement powers in these Acts and Regulations are consolidated here.

603.     Where the MMO takes on responsibility for enforcement of regulations which are not otherwise covered by the Bill, the regulations will be amended to enable enforcement officers to exercise Chapter 2 powers (common powers) and Chapter 3 powers (other powers), for example the Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (England and Northern Ireland) Regulations 2007, the Fisheries and Aquaculture Structures (Grants) (England) Regulations 2001 and the Grants for Fishing and Aquaculture Industries Regulations 2007.

Clause 229: Marine enforcement officers

604.     This clause allows the MMO and the Welsh Ministers to appoint marine enforcement officers (“MEOs”). The appointment of such officers can be restricted, so that they do not have the ability to use all the powers officers would otherwise have on appointment: for example, limitations to the geographical area within which an officer can use the powers. Commissioned officers of the Royal Navy and anyone in the Royal Navy, Army or RAF in charge of an aircraft or hovercraft are automatically MEOs. Subsection (3) is a transitional provision allowing the Secretary of State to appoint MEOs in advance of the establishment of the MMO, which will then appoint MEOs in England.

Clause 230: Enforcement of marine licensing regime

605.     This clause sets out the areas in which and the vessels and installations in relation to which an MEO may exercise his enforcement powers for the purposes of enforcing the marine licensing regime set out in Part 4 of the Bill. The enforcement powers that can be exercised by an MEO for enforcing licensing legislation are the common enforcement powers in Chapter 2 and the specific powers relating to requirements for information about certain substances and objects (clause 257) in Chapter 3.

606.     The area where enforcement powers can be used is set out in subsection (9) as the relevant enforcement area. However, by virtue of subsection (3)(d), MEOs may also exercise their powers in Scotland and the Scottish inshore region where they are investigating an offence suspected of being committed within the relevant enforcement area. They can use their powers in the Scottish offshore region only if they are in “domestic hot pursuit”.

607.      “Domestic hot pursuit” is similar to the international agreement under UNCLOS for pursuit of a vessel, by allowing pursuit of a vessel, marine installation or aircraft across national jurisdictions within the UK. Domestic hot pursuit is triggered if the officer has given a signal to stop which is ignored and the vessel leaves the relevant enforcement area and travels into an area where the officer would not otherwise be able to exercise his powers, such as the Scottish offshore region. Pursuit must be continuous although the pursuing officer, vessel, etc. may change. It allows the officer to use powers under the Bill in another jurisdiction within the UK, if the officer does not otherwise have powers in that area. This power does not affect any powers the officer might have under international law.

608.     The clause provides that MEOs may not use their powers to enforce the marine licensing regime to the extent that it relates to any activity in Wales or the Welsh inshore region concerning or arising from the exploration for, or production of, petroleum or anything done in the course of taking installation abandonment measures in any other part of the relevant enforcement area.

609.     Only an officer of the Armed Services may exercise enforcement powers in relation to a warship.

610.     Outside the UK marine area, the powers can be exercised in relation to any British vessel, aircraft or marine structure or against any vessel which was loaded within the relevant enforcement area.

Clause 231: Enforcement of nature conservation legislation

611.     This clause sets out the areas in which and the vessels and installations in relation to which an MEO may exercise his enforcement powers for the purposes of enforcing legislation relating to nature conservation. It also sets out the legislation that an MEO can enforce. The enforcement powers that can be exercised are the common enforcement powers in Chapter 2.

612.     Within the UK and its marine area there are some restrictions as to where MEOs can exercise their powers for enforcing nature conservation legislation. MEOs have jurisdiction in the relevant enforcement area as defined in clause 231(13). If an MEO is investigating an offence suspected of being committed within the relevant enforcement area, they can exercise their powers in Northern Ireland and Scotland and in the territorial waters around Northern Ireland or Scotland by virtue of subsection (3)(c). In the Scottish offshore region they may exercise their powers only if in domestic hot pursuit (see explanatory note to clause 230).

613.     Outside the UK marine area, an MEO can exercise the powers in relation to any British vessel or marine installation.

Clause 232: Enforcement of fisheries legislation

614.     This clause sets out the areas in which and the vessels and installations in relation to which an MEO may exercise his enforcement powers for the purposes of enforcing sea fisheries legislation. The enforcement powers that can be exercised are both the common enforcement powers in Chapter 2 and fisheries specific powers in Chapter 3 relating to: the inspection and seizure of objects at sea (clause 258); seizing fish or fishing gear for the purpose of forfeiture (clauses 262 and 263); detention of vessels in connection with court proceedings (clause 273); and production of certain equipment (clause 278).

615.     MEOs are able to use the common powers in circumstances as described in subsection (4). MEOs may use these powers in the relevant enforcement area as defined by clause 232(10). MEOs cannot use their powers in Scotland or Northern Ireland or their waters unless in domestic hot pursuit (see explanatory note to clause 230) or if they are using them in relation to a British fishing boat which is not a Scottish or Northern Ireland fishing boat. However, the effect of clause 233 is that they will retain British sea-fishery officer powers where they do not have MEO powers.

616.     Only an officer of the Armed Services may exercise enforcement powers in relation to a warship.

617.     Outside British fishery limits, an MEO can exercise their powers in relation to any British vessel or marine installation, other than a Scottish or Northern Ireland fishing boat.

Clause 233: Marine enforcement officers as British sea-fishery officers

618.     Section 7 of the Sea Fisheries Act 1968 provides for the appointment of British sea-fishery officers (BSFOs). This clause makes MEOs automatically BSFOs on appointment but provides that where MEOs are able to exercise common enforcement powers under the Bill, they cannot use their BSFO powers. Thus MEOs can use BSFO powers where their MEO powers are not available to them (for example, in enforcing against a Scottish boat in Scottish waters which an MEO had not pursued under clause 231(4)).

Other enforcement officers

Clause 234: Marine licensing: oil and gas and other reserved matters

619.     The Secretary of State will be able to appoint persons to enforce Part 4 of the Bill, to the extent that it relates to the licensing of activities relating to various reserved matters. The range of activities in respect of which such persons will be able to exercise enforcement powers differs depending on that part of the UK marine licensing area in which the activities take place. In the Scottish offshore region these activities are limited to those that relate to oil and gas, defence and the prevention of pollution (see subsection (1)(a)). In the Welsh inshore region these activities are limited to those that relate to the exploration for, or production of petroleum (as described in subsection (1)(b)). In all other parts of the UK marine licensing area, except the Northern Ireland inshore region, the activities are limited to installation abandonment measures as described in subsection (1)(c) and defined in subsection (6). No other enforcement officers appointed under this Part will be able to enforce marine licences in relation to these matters in the areas described. These Secretary of State appointed enforcement officers will have no functions in relation to oil and gas activities in Northern Ireland inshore waters, unless they were investigating an offence suspected of having taken place in their area of jurisdiction.

620.     Secretary of State appointed officers will have access to the common enforcement powers in Chapter 2 of this Part and the specific power for requiring certain information relating to licensing in Chapter 3. They will have similar powers to other officers appointed under this Part for pursuing offenders across national and international boundaries.

Clause 235: Marine licensing: Northern Ireland

621.     This clause allows the Department of the Environment in Northern Ireland to appoint persons for the purpose of enforcing Part 4 of the Bill (marine licensing). Such an enforcement officer can exercise enforcement powers in England, Wales and Northern Ireland and in relation to any vessel, aircraft or marine installation within the UK marine licensing area other than the Scottish offshore region. If such an officer is investigating an offence suspected of being committed within their area of jurisdiction, they can use enforcement powers in Scotland and in the Scottish inshore region. However, they can only use their powers in the Scottish offshore region if they are in “domestic hot pursuit” (see explanation to clause 230).

622.     In relation to oil and gas activities, they may use their powers only in Northern Ireland and the Northern Ireland inshore region, unless they are investigating an offence suspected of having taken place in their area of jurisdiction, in which case they may use powers elsewhere in the UK (under domestic hot pursuit in the Scottish offshore region).

Clause 236: Marine licensing: enforcement in Scottish offshore region

623.     This clause enables Scottish Ministers to appoint persons for the purposes of enforcing licensing under Part 4 of this Bill in the offshore area adjacent to Scotland. Such officers will have access to the common enforcement powers in Chapter 2 of this Part and the specific power for requiring certain information relating to licensing in Chapter 3. These officers may not exercise their powers to enforce Part 4 so far as it relates to a limited range of reserved matters, such as oil and gas related activities (see clause 234).

624.     If an officer appointed by Scottish Ministers to enforce licensing is investigating an offence suspected of being committed within the Scottish offshore region, they can use their powers to investigate on land and in inshore waters elsewhere in the UK. To enforce in the offshore area other than in offshore Scotland, they will need to use powers under domestic hot pursuit rules (see explanatory note to clause 230).

Clause 237: Enforcement of MCZs in Scottish offshore region

625.     This clause enables Scottish Ministers to appoint officers with the common powers for the purpose of enforcing clause 140 in the Scottish offshore region which relates to the offence of damaging etc protected features of MCZs. Officers appointed by Scottish Ministers to enforce MCZs, investigating an offence suspected of being committed within the Scottish offshore region Scotland, may exercise their powers to investigate on land and in inshore waters elsewhere in the UK. They will need to use domestic hot pursuit to pursue offenders from the Scottish offshore region to other offshore areas within the UK marine area.

626.     Subsections (4), (5) and (6) set out the circumstances in which a vessel is subject to hot pursuit (see explanatory note to clause 230). They require that the vessel is in the Scottish offshore region, that an audible or visible signal is given for the offending vessel to stop and that the pursuit of the vessel is not interrupted.

627.     Subsection (8) provides that persons appointed under this clause may not exercise their powers in relation to British warships.

Interpretation

Clause 238: Interpretation of this Chapter

628.     This clause provides definitions for the key terms used in this Chapter of the Bill.

Chapter 2: Common Enforcement Powers

Introductory

629.     This Chapter sets out various enforcement powers that are considered to be the core set of powers necessary for officers to carry out their enforcement functions in the marine area effectively. The powers are based on those in a number of pieces of existing legislation for sea fisheries, marine licensing and marine nature conservation.

Clause 239: Common enforcement powers

630.     This clause introduces the purpose of the chapter, which is to set out the powers available to MEOs, and defines key terms. Subsection (3) provides that the powers available to enforcement officers under this Chapter do not limit their ability to act under other legislation.

Entry, search and seizure

Clause 240: Power to board and inspect vessels and marine installations

631.     The powers in this clause enable enforcement officers to board and inspect any vessels and marine installations (subject to the need for a warrant pursuant to clause 243 if the vessel or installation is a dwelling) to carry out their functions. Enforcement officers may require the vessel or marine installation to stop or do anything else that would assist them in boarding or disembarking and in carrying out their enforcement duties. The power extends to things which may be under the control of someone on the vessel or installation, such as a vessel under tow. Marine installations that can move under their own power include jack-up rigs and work platforms. The powers also allow officers to require assistance from someone present who has some control over the situation.

Clause 241: Power to enter and inspect premises

632.     The powers in this clause enable enforcement officers to enter and inspect any premises (subject to the need for a warrant pursuant to clause 243 if the premises are a dwelling) to carry out any relevant functions. “Premises” includes land but does not include a vehicle, vessel or marine installation. Entry must be at a reasonable time unless the officer believes that, by waiting for that reasonable time, the purpose for requiring entry and inspection may be thwarted. The officer also has the power to request assistance from people who have some control in the situation. This may be needed for instance in unlocking a door or opening a container. Where the premises are a dwelling, a warrant is needed before the power of entry may be exercised. Provisions regarding warrants are set out in clause 243.

Clause 242: Power to enter and inspect vehicles

633.     This clause enables enforcement officers to enter and inspect any vehicle at any time (subject to the need for a warrant pursuant to clause 243 if the vehicle is a dwelling). An officer can also require the vehicle to be taken to an appropriate place to be inspected. The power also enables them to require assistance as necessary from people in the vehicle or the registered keeper.

634.     The powers conferred by this clause may be exercised wherever and whenever it is necessary, although subject to a warrant if it was necessary to enter a dwelling. For this clause only, the term “vehicle” does not include vehicles at sea, namely vessels and marine installations (which are covered under clause 239).