Clause 276: Bonds for release of vessels

690.     This clause gives the relevant authority power to enter into an agreement with the owner or charterer of the vessel (or any of the owners or charterers of the vessel) to release a vessel detained under clause 273 when a monetary security has been paid. The amount of the security will be settled by the two parties to the agreement. The relevant authority may impose conditions on the person who provides security.

691.     The security must be returned if any of the grounds for release set out in subsection (5) are met.

692.     Where the court imposes a fine, it may order that any money paid as security should be used towards the payment of the fine. If the fine imposed is less than the security that was paid, any surplus money must be returned to the person who provided the security.

Clause 277: Power of court to order repayment of bonds

693.     This is a parallel clause to clause 275 but relates to bonds. Where a bond has been paid pursuant to clause 276 (and the notice of detention withdrawn) the court may order repayment of the bond to the person who provided the security if it is satisfied that the continuation of the bond is not necessary to ensure the attendance in court of the master, owner or charterer, or that, had the bond not been placed, the court would not have ordered the detention of the vessel.

Production of equipment

Clause 278: Power to require production of certain equipment

694.     An enforcement officer can request anybody on board a fishing boat to produce any automatic recording or transmitting equipment as set out in subsection (2).

Supplementary

Clause 279: Service of notices, etc

695.     This clause specifies the means by which notices required to be served under this Chapter must be served. Such notices are to be delivered in person, left at an appropriate address or sent by post. In relation to the owner of a vessel the appropriate address is further defined by reference to the address given in the appropriate register. The clause stipulates the appropriate address for other persons, including firms and companies and unincorporated associations registered or doing business outside of the UK.

Clause 280: Conclusion of proceedings

696.     This clause establishes a means of determining when proceedings have been concluded. Where proceedings are terminated by an appealable decision, they are not to be considered as concluded until the time for making an appeal has passed, or, if an appeal is brought, until the conclusion of the appeal. This is significant for various purposes in this Chapter, for example in triggering the release of a vessel that had been detained.

Clause 281: Interpretation of this Chapter

697.     This clause provides definitions for words or terms used in this Chapter.

Chapter 5: Common Enforcement Provisions

Introductory

Clause 282: Meaning of “enforcement officer”

698.     This clause defines enforcement officer as someone who has powers under this Part of the Bill, save those who have powers by virtue of being an assistant to an officer.

Duties of enforcement officers

Clause 283: Duty to provide evidence of authority

699.     This clause obliges enforcement officers who are exercising the common enforcement powers to show evidence that they have the authority to carry out their enforcement functions, when asked to do so. The duty does not apply to Marine Enforcement Officers of the Armed Services. If the officer thinks that to comply with the request immediately would create problems, such as putting the officer in personal danger or allowing evidence of an offence to be destroyed, they may defer complying with the request until it is practicable to do so.

Clause 284: Duty to state name and purpose, etc

700.     In conjunction with clause 283, enforcement officers are also obliged to state their name, the power they are intending to use and reason for its use whenever they are requested to do so, although the officer can defer complying with the request if the immediate situation requires it (for example, if they think that the request is a delaying tactic to avoid the officer discovering an offence being committed at that moment in time). Someone assisting the enforcement officer need not give their name, but would need to say what power they were proposing to exercise and the grounds for so doing, if so requested.

Liability of enforcement officers

Clause 285: Liability of enforcement officers etc

701.     As with clauses 283 and 284, and in conjunction with relevant powers and relevant functions, enforcement officers and their assistants will be protected from liability in any civil or criminal proceedings for anything done or not done as a result of carrying out their duties under the Bill. This exemption from liability does not apply when an enforcement officer acts in bad faith, if there were no reasonable grounds for the officer to act in such manner or if it was unlawful in relation to the Human Rights Act 1998. This immunity similarly covers any person assisting an enforcement officer.

Offences in relation to enforcement officers

Clause 286: Offences in relation to enforcement officers

702.     This clause provides sanctions and penalties for anyone who fails to comply with a requirement reasonably made by an enforcement officer, or prevents any other person from so doing, or who assaults or intentionally obstructs an enforcement officer, when the officer is exercising their duties under this Part. It is an offence for anyone knowingly to provide false or misleading information in any particular form or material to an enforcement officer. This includes intentionally failing to disclose any information or materials requested by the enforcement officer. Anyone who pretends to be an enforcement officer is also guilty of an offence. Offences against enforcement officers also apply to their assistants.

703.     Subsection (2) provides that someone who was required to produce a licence under clause 251 and did not do so at the time, but complied with a requirement to produce it later, is not guilty of an offence.

Chapter 6: Miscellaneous and Supplementary

Enforcement of Community rules

Clause 287: Enforcement of Community rules

704.     This clause amends section 30 of the Fisheries Act 1981.

705.     Section 30(1) is amended so that it applies both to enforceable Community restrictions and enforceable Community obligations. These restrictions and obligations are directly applicable and enforceable against all fishing boats within British Fishery Limits, and also English and Welsh boats outside those limits and persons in England and Wales.

706.     The general power in section 30(2) for the Secretary of State to make by order provision to enforce Community obligations and restrictions is extended to English and Welsh fishing boats anywhere in the world and to persons of a specified description (specified within the order) on board fishing boats anywhere in the world. Persons on board Scottish or Northern Ireland fishing boats are excluded.

707.     Section 30 is further amended so that an Order in Council may be made extending the application of section 30(1) and (2) to any Isle of Man or Channel Islands fishing boat outside British Fishery Limits.

Administrative penalty schemes

Clause 288: Administrative penalty schemes

708.     This clause introduces powers for the Secretary of State (in relation to England or vessels outside the Welsh zone) or the Welsh Ministers (in relation to Wales or vessels within the Welsh Zone) to apply Fixed Administrative Penalties (FAPs) to domestic fisheries offences, namely offences which do not originate in Community law. The vast majority of fisheries offences are breaches of Community law for which FAPs are available using existing powers made under section 30(2) of the Fisheries Act 1981.

709.     The FAP scheme will complement the existing criminal system rather than replace it, as a person will be under no obligation to pay the penalty if he wishes to have the matter dealt with in court in the usual way. The scheme will be used to address fisheries offences such as offences under the Sea Fisheries Act 1868, the Sea Fish (Conservation) Act 1967, the Sea Fisheries Act 1968, the Fishery Limits Act 1976 and the British Fishing Boats Act 1983, including any offences in any of the orders made under these Acts. An order to make provision to apply FAPs may apply in relation to England and Wales, any vessels within British Fishery Limits other than the Scottish zone, Northern Ireland zone and the territorial sea adjacent to the Isle of Man, Jersey and Guernsey, and any English or Welsh fishing boats wherever they may be. Subsection (6) also provides that Her Majesty may by Order in Council provide for this scheme to apply to any Isle of Man or Channel Islands fishing boats which are outside British Fishery Limits.

710.     The clause sets out detail of the provision which may be made in the order, including the content of the penalty notice, who may issue a notice, the minimum and maximum amount of the penalty and matters as to payment.

Crown application

Clause 289: Application to the Crown

711.     The provisions in Chapters 1 to 5 of this Part apply to the Crown. Contravention of any provision of Chapter 5 will not make the Crown criminally liable.

PART 9: COASTAL ACCESS

The coastal access duty

Clause 290: The coastal access duty

712.     This clause imposes a duty (described by subsection (4)(a) as the “coastal access duty”) on the Secretary of State and Natural England. Subsections (2) and (3) describe the duty by reference to two objectives.

713.     Subsection (2) contains the first objective, which is that there is a route around the whole of the English coast consisting of one or more long-distance routes and available to the public for recreational journeys on foot or by ferry (“the English coastal route”).

714.     Subsection (3) contains the second objective, which is that there is a margin of land along the length of the coast which the public can enjoy. It requires a margin to exist “in association with” the route, and provides that, subject to the exception mentioned below, the margin of land is to be “accessible to the public for the purposes of its enjoyment by them in conjunction with that route or otherwise”. This makes it clear that the route and the margin are linked objectives, but also that the margin does not have to be accessed directly from the route. It may be accessed from another part of the margin (for example by walking along the foreshore to reach an isolated beach) or using a right of access under other legislation, such as a public right of way, or by other means. The exception to the requirement for the margin to be accessible to the public is the case where the land falls within any category of “excepted land” listed in Schedule 1 to the Countryside and Rights of Way Act 2000 (“the CROW Act”), other than a category of land which is accessible to the public by virtue of any enactment or rule of law (as to which see the note to subsection (5)(c)). This formulation enables the margin to be proposed and established without the need to describe individually every area which is not accessible to the public. This is because Schedule 1 to the CROW Act (which may be amended by an order under section 3A of that Act to be inserted by this Bill) sets out general categories of land to which there is no access.

715.     Subsection (4)(b) allows Natural England and the Secretary of State to fulfil the duty in stages over a number of years. This means that the duty can be fulfilled on certain parts of the coast before other parts, and there is no set time limit for completion of the duty.

716.     Subsection (5) establishes that land will only be considered accessible to the public (as specified in the objectives) if it is accessible in certain ways. Subsection (5)(a) provides that one way in which it will be considered accessible to the public is if it is accessible by virtue of section 3A of the CROW Act. This means that, for land to be accessible to the public under subsection (5)(a), access must be available under the right of access conferred by section 2(1) of the CROW Act, and this must be by virtue of it being coastal margin as defined in the new section 3A of the CROW Act (see clause 297). So land which is accessible under the CROW Act but which is not coastal margin will not fulfil the duty. The reason for this distinction is that certain aspects of the management regime for access land under the CROW Act may differ according to whether the land is coastal margin or other access land. Subsection (5)(a) goes on to say that this is subject to any exclusions or restrictions imposed by or under Part 1 of the CROW Act. Part 1 of the CROW Act deals with access to the countryside, and allows relevant authorities to make directions excluding the right of access or restricting it in certain ways (for instance the right might be exercisable only along certain routes). So subsection (5)(a) makes it clear that such exclusions or restrictions can be disregarded for the purpose of deciding whether the route passes over land which is accessible to the public and there is a margin of land which is accessible to the public.

717.     Subsection (5)(b) is another category of land which is considered accessible to the public for the purposes of this section. This is land which falls under any of the enactments or instruments specified in section 15 of the CROW Act. These enactments and instruments all provide for public access on foot and in some cases provide higher rights of access, for example on horseback. An example of this is section 193 of the Law of Property Act 1925, which regulates certain commons and has been held by the High Court in the case of R v Secretary of State for the Environment ex parte Billson ¹⁴ to provide rights on horseback.

718.     Subsection (5)(c) provides that land will be considered accessible to the public where it is excepted land under the CROW Act (certain types of land set out in Schedule 1 to that Act), but only where it is accessible to the public by virtue of any other enactment or rule of law. The most common situation where this may apply is where the coastal route goes along a public highway. In order to avoid having two different access regimes applying to public highways, it is expected that the public highways will become a category of excepted land under the CROW Act as far as the coastal margin is concerned. Subsection (5)(c) therefore allows the English coastal route to follow a public highway, for example through built-up areas. However this does not apply to land which is accessible to the public by virtue of a military lands byelaw as defined in subsection (8) (one of the categories of excepted land) and such land can therefore never form part of the route.

719.     Subsection (6) makes it clear that the duty of Natural England and the Secretary of State to exercise their relevant functions regarding the second objective (making available a margin of land along the length of the English coast) refers to making land accessible to the public by means of section 3A of the CROW Act, as described in subsection (5)(a). Land within the margin may be accessible to the public under the mechanisms described in subsections (5)(b) and (c). However, if land is not accessible to the public, the only mechanism which Natural England and the Secretary of State are required to use to make it so accessible is the mechanism described in subsection (5)(a), (provision under section 3A of the CROW Act), although they may decide to use other mechanisms. This reflects the fact that the legislation envisages that so far as any new right of access needs to be created to provide the coastal margin, the principal means of creating it is by way of an order under section 3A of the CROW Act (as inserted by clause 297 of the Bill).

720.     Subsection (7) sets out what constitutes a journey by ferry for the purposes of the first objective, and makes it clear that the ferry does not have to be operating at all times of the day or year.

Clause 291: General provisions about the coastal access duty

721.     This clause sets out the requirements imposed on Natural England and the Secretary of State as regards considerations that they have to take into account in discharging the coastal access duty. Subsections (2) and (3) set out these considerations.

722.     Subsection (2) provides that they must have regard to:

a)     the safety and convenience of those using the English coastal route;

b)     the desirability of that route adhering to the periphery of the coast and providing views of the sea; and

c)     the desirability of ensuring that so far as reasonably practicable interruptions to that route are kept to a minimum.

723.     Subsection (3) provides that they must aim to strike a fair balance between the interests of the public in having rights of access over land and the interests of any person with a relevant interest in the land.

724.     Subsection (4) sets out which people are treated as having a “relevant interest in land” for the purposes of subsection (3) (with the intention of striking a fair balance between the interests of the public and those with a relevant interest in land). It says that a person has a relevant interest in land if the person-

a)     holds an estate in fee simple absolute;

b)     holds a term of years absolute in the land; or

c)     is in lawful occupation of the land.

Clause 292: The coastal access scheme

725.     This clause requires Natural England to draw up a scheme setting out the approach it will take when discharging its coastal access duty, and makes provision regarding this scheme, including provision for its approval by the Secretary of State. Subsection (5) requires Natural England to set out in the scheme (and any revised scheme) the approach it will take when deciding whether it would be appropriate for an access authority to carry out any preliminary activity, which is defined in clause 296. Subsection (6) requires the Secretary of State to lay before Parliament a copy of the scheme or a revised scheme. The clause also makes provision for Natural England to revise the scheme, with the approval of the Secretary of State, and to publish the scheme or a revised scheme as soon as is reasonably practicable and in such manner as it considers appropriate. Subsection (9) provides that Natural England must act in accordance with an approved scheme in discharging its coastal access duty. Subsection (10) provides that Natural England cannot prepare or submit proposals for a long-distance route pursuant to the coastal access duty until there is an approved scheme. Subsection (11) enables Natural England to survey land in preparation for preparing or submitting a report before there is an approved scheme, which means that Natural England can do some preparatory work in advance of the scheme being finalised and approved.

Clause 293: Review of the coastal access scheme

726.     This clause provides for Natural England to review the coastal access scheme (which has been approved by the Secretary of State under clause 292) from time to time. Subsection (2) requires Natural England to complete the first review of the scheme within three years of the date of approval of the scheme by the Secretary of State. Subsection (3) requires Natural England to publish a report of each review as soon as reasonably practical after it has completed the review.

Clause 294: The English coast

727.     The coastal access duty (clause 290) relates to the English coast. This clause defines the English coast, for the purposes of this Part of the Bill, by reference to its adjacency to the sea. It provides that the coast includes the coast of islands unless they are excluded.

728.     Subsection (2) explains what an excluded island is. It says that islands are excluded unless they are “accessible islands” or they are specified by the Secretary of State by order. Subsection (3) sets out what constitutes an “accessible island”. This is an island to which it is possible to walk from the mainland of England or from another island (other than an excluded island) across the foreshore or by means of a bridge, tunnel or causeway. Subsection (4) provides that, for this purpose, it is possible to walk to an island even if it is possible at certain times, or during certain periods, only. Subsection (5) puts a condition on the Secretary of State’s power to specify an island by order. This is that the coast of the island must be sufficiently long to enable the public to make an extensive journey on foot (the language used in relation to long- distance routes by section 51 of the National Parks and Access to the Countryside Act 1949).

729.     Subsection (6) provides that the means of access to an accessible island (for example a bridge, tunnel or a causeway or the foreshore) is to be considered to be part of the English coast for the purposes of the first objective (the duty to secure the English coastal route). This is so that the English coastal route includes the means of access.

730.     Subsection (7) provides that this section is subject to clause 301 which makes provision about the application of this Part to the Isles of Scilly.

Clause 295: River estuaries

731.     Subsection (1) provides that this clause applies where the coast is interrupted by a river.

732.     Subsection (2) provides that Natural England may treat the relevant upstream waters of any river as if they were the sea. Clause 303 says that “the sea”, in this Part of the Bill, does not include any part of a river which is upstream of the seaward limit of the river’s estuarial waters; however this clause allows Natural England to treat relevant upstream waters as if they were the sea. This is necessary because clause 294 defines the English coast as being the coast of England adjacent to the sea and clause 290 relates the coastal access duty to the English coast.

733.     Subsection (3) defines the relevant upstream waters (which Natural England may treat as if they were the sea) as estuarial waters of the river upstream of the seaward limit of estuarial waters either (subsection (3)(a)) to the first bridge or tunnel by means of which the public may cross the river on foot (“the first public foot crossing” which is defined in subsection (8)), or (subsection (3)(b)) to some point it specifies before (downstream of) the first public foot crossing. Any decision to treat estuarial waters as if they were the sea under either subsection (3)(a) or subsection (3)(b) is subject to the general provisions about the coastal access duty set out in clause 291. This is clarified in subsection (5).

734.     Subsection (4) sets out certain matters to which Natural England must have regard, in addition to the matters to which it must have regard in applying subsections (2) or (3) of clause 291 (general provisions about the coastal access duty). These are (a) the nature of the land, for instance whether it bears a greater resemblance to either typical coastal land or typical riverine land; (b) the topography of the shoreline for instance how indented it is and hence how awkward a journey might result from including it in the route; (c) the width of the river, which again would contribute to whether it is closer to typically coastal or to typically riverine land; (d) the recreational benefit to the public of including land; (e) the extent of potential excepted land (the presence of a large expanse of excepted land could influence the decision as to whether to include that part of the estuary in the coastal margin or not); (f) the desirability of continuing the route to a particular feature (for instance to an intersection with a footpath or road, or car park) or viewpoint, and (g) the existence of a ferry by which the public may cross the river. This list is not exhaustive. As well as having regard to the matters in clause 291(2), Natural England must also comply with clause 291(3).

735.     Subsection (6) gives the Secretary of State powers corresponding to those given to Natural England as set out in subsections (1) to (5).

736.     Subsection (7) makes it clear that the Secretary of State’s decisions under subsection (2), and compliance with the requirements set out in clause 291 are independent of any decision taken by Natural England. This means that the Secretary of State may make a different decision about whether waters of a river are to be treated as part of the sea.