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Paragraph 9: Compensation
833. This paragraph allows the Secretary of State to include in a transfer scheme provision for the payment of compensation to any person adversely affected by that scheme.
Paragraph 10: Validity
834. This paragraph ensures anything done by the transferor before the time of transfer is still valid after transfer. An example of this might be where the transferor has signed the lease on a building. This paragraph ensures the lease remains valid after transfer to the MMO.
Paragraph 11: Continuity
835. This paragraph ensures anything done by the transferor in relation to something being transferred is treated as though it had been done by the MMO (the transferee). The MMO may also continue anything started by the transferor before transfer. For example, if an enforcement action were being taken against someone by the transferor, this paragraph can enable this action to be continued by the MMO. Similarly, where an employee had brought an action against their employer (the transferor), their case would continue against the MMO after the transfer.
Paragraph 12: Documents
836. This paragraph ensures that any reference to the transferor in any document relating to anything transferred under a scheme is to be read as a reference to the MMO. This saves having to change the wording in documents such as leases.
Paragraph 13: Remedies
837. This paragraph means that the rights, powers and remedies which were available to the transferor are available to the MMO - in relation to any right or liability that it assumes on transfer - in exactly the same way as they could have been relied upon by the transferring organisation.
Paragraph 14: Interim arrangements
838. This paragraph allows a transfer scheme to include interim arrangements whereby the transferor makes available to the MMO premises, facilities and staff for the period between the making of the scheme and the date of transfer.
Paragraph 15: Retrospective modification of schemes
839. This paragraph allows the Secretary of State to modify a transfer scheme and for any changes to take effect from a nominated date. The power might be used to remedy any mistake made in a transfer scheme and the ability to nominate a date would avoid any adverse affects on matters such as continuity of service.
Paragraph 16: Incidental, consequential, supplemental, or transitional provision or savings
840. This paragraph allows for transfer schemes to include additional provisions designed to ensure a smooth and efficient transition to the new arrangements.
SCHEDULE 4: EXCLUSIVE ECONOMIC ZONE AND WELSH ZONE: CONSEQUENTIAL AMENDMENTS
841. This sets out the necessary amendments required to previous legislation that defined the United Kingdom's offshore maritime zones. It will redefine the boundaries of these zones such that they are consistent with the boundaries of any declared Exclusive Economic Zone. The amendments relating to the Exclusive Economic Zone are in Part 1 of the Schedule. Part 2 contains amendments to the Fishery Limits Act 1976 and the Government of Wales Act 2006 consequential on the creation of the Welsh zone.
SCHEDULE 5: PREPARATION OF AN MPS OR OF AMENDMENTS OF AN MPS
842. This Schedule sets out the procedure which must be followed when preparing or amending a marine policy statement (an “MPS”).
843. Paragraph 2 defines certain terms used in this Schedule.
844. Under the Northern Ireland devolution settlement, functions are conferred upon departments, rather than the administration as a whole, or Ministers. Therefore paragraph 3 requires that the Department of Environment in Northern Ireland consult with the other relevant Northern Ireland departments at certain points during the preparation or amendment of an MPS.
845. Paragraphs 4 to 6 concern the preparation and publication of a ‘Statement of Public Participation’ (“SPP”) by the policy authorities engaged in preparing or amending the MPS. This must set out how and when the policy authorities intend to involve “interested persons” in the process (“interested persons” is defined in paragraph 4(4)).
846. The SPP must contain a timetable for the various stages of preparing the MPS or amendments, including how and when representations about the consultation draft (defined in paragraph 8) should be made. Since the draft MPS must be laid before the legislatures of the policy authorities involved in its preparation, the SPP must also set out the length of time the legislatures will have to consider the MPS and make any resolutions or recommendations about it.
847. Policy authorities must allow a reasonable period of time for each of the stages of the timetable.
848. Policy authorities must keep the SPP under review, and must amend it when necessary to address any problems with it and keep it up to date. They must then re-publish it as amended. They are obliged to take all reasonable steps to comply with the SPP.
849. Paragraph 7 requires that the policy authorities carry out a sustainability appraisal of the policies proposed for inclusion in the MPS. Subparagraph (2) makes clear that the results of the appraisals are to influence which proposals the policy authorities take forward - they may only proceed with proposals if the results of the appraisals indicate that it is “appropriate” to do so. Subparagraph (3) requires the policy authorities to produce a report of the results of these appraisals, and subparagraph (4) requires that the sustainability appraisal report is published at the same time as the consultation draft. Marine plans are also subject to sustainability appraisal (see the notes on Schedule 6, paragraph 10 below).
850. Paragraph 8 requires the policy authorities to prepare a “consultation draft” of the MPS (or amendments) and publish it so that “interested persons” are aware of it and may make representations about it. “Interested persons” is defined in sub-paragraph (4).
851. Paragraph 9 permits any person to make representations about the consultation draft, but requires that such representations must be made in accordance with the SPP (see paragraph 5). If any representations are made, the policy authorities are required to consider them in the course of finalising the text of the MPS.
852. Paragraph 10 sets out the procedure for laying the draft MPS before the legislatures of the administrations involved in its preparation. If any of the legislatures make resolutions or recommendations about the MPS, the relevant policy authority must respond to those resolutions or recommendations (and lay the response before the legislature).
853. If the policy authorities make any changes to the MPS or amendments between publishing the consultation draft and adopting the final text, paragraph 11 requires that they publish a summary of those changes and the reasons for them alongside the final text.
854. Paragraph 12 establishes that the policy authorities adopt the final text by deciding that that text should be published as the MPS, and then notifying the other policy authorities of their decision. As soon as possible after all the policy authorities have adopted the final text, they must jointly publish it. Sub-paragraph (4) provides
that policy authorities which have not yet adopted the final text must be given a “reasonable interval” in which to do so before the MPS is published.
855. Paragraph 13 provides that an MPS is still valid even if it is not adopted by all the policy authorities which were engaged in preparing it.
SCHEDULE 6: MARINE PLANS: PREPARATION AND ADOPTION
856. This schedule sets out the procedure which must be followed when preparing marine plans under clause 51.
857. Paragraphs 1 to 3 relate to co-operation, consultation and consistency in planning arrangements made by the different marine plan authorities.
858. Paragraph 1 places duties on marine plan authorities when they decide to prepare a plan to notify “related” planning authorities of their intention to plan. (“Related planning authorities” include the Secretary of State (unless he is the marine plan authority), terrestrial local and regional planning bodies, and other marine plan authorities.)
859. This is so that the other related authorities can consider how they might want to be involved in the planning process and make arrangements for their involvement.
860. Paragraph 2 sets out what must go in a notice to the Secretary of State under paragraph 1. The notice must state whether the marine plan authority (if it is a devolved administration) intends the plan to include provision relating to “retained functions” (defined in clause 60 - that is, matters which are not within its devolved competence). If the devolved marine plan authority intends to prepare a plan which is not in conformity with any marine policy statement which governs planning for the marine plan area, they must also state this in their notice to the Secretary of State.
861. The duty to notify the Secretary of State continues whilst a marine plan is being prepared. Subparagraph (4) provides that, if the marine plan authority’s intentions change whilst it is preparing the plan, it must send a new notice to the Secretary of State.
862. Paragraph 3 provides that the marine plan authority must also take all reasonable steps to secure compatibility between the new marine plan and other existing marine or terrestrial development plans for “related” areas (that is, areas which adjoin or are adjacent to the area of the proposed marine plan, or which affect, or might be affected by, the area of the proposed marine plan).
863. Paragraph 4 places a duty on the Department of the Environment in Northern Ireland to consult other relevant Northern Ireland departments at key stages of the plan preparation process. (See also the note on paragraph 3 of Schedule 5 above.)
864. Paragraphs 5 to 7 then set out the process and requirements relating to the preparation and publication by the marine plan authority of a “Statement of Public Participation” (“SPP”) for the plan. As for the MPS, the SPP must set out how and when the policy authorities intend to involve “interested persons” in the planning process (“interested persons” is defined in paragraph 5(8)). In addition, an SPP for a plan must also make clear the area which is to be planned for, and must invite people to make representations on what the plan should include.
865. An SPP for a plan in the Welsh, Scottish or Northern Ireland offshore regions, or the Welsh inshore region, must state whether the plan is intended to include provision relating to “retained functions” (defined in clause 60). If the plan is intended to include such provision, the Secretary of State must be notified and the marine plan authority may not publish the SPP without his consent.
866. If a marine plan authority which had previously proposed to plan without including provision in relation to “retained functions” decides after publication of the SPP that it does want to plan for those matters, it must notify the Secretary of State, revise the SPP (because more “interested persons” will then have an interest), and must then seek the Secretary of State’s agreement before publishing the revised SPP.
867. Again, as for the MPS, an SPP for a plan must contain a timetable for the various stages of preparing the plan, and must also set out how and when representations about the content of the plan or the consultation draft (defined in paragraph 11) should be made.
868. Marine plan authorities must allow a reasonable period of time for each of the stages in the timetable.
869. Marine plan authorities must keep the SPP under review, and must amend it when necessary to address any problems with it and keep it up to date. They must then re-publish it as amended (after securing the Secretary of State’s agreement if they intend to include in a plan provision relating to retained functions ).
870. Marine plan authorities are obliged to take all reasonable steps to comply with the SPP.
871. Paragraph 8 concerns the provision of advice and assistance to the marine plan authority. Sub-paragraph (1) enables the marine plan authority to seek advice and assistance from any body or individual with relevant expertise, whilst sub-paragraph (2) makes clear that the marine plan authority may convene “advisory and consultative groups” to assist it in developing and consulting on a draft marine plan.
The marine plan authority would be able to establish new groups, or make use of any existing groups which met its needs.
872. Paragraph 9 sets out a non-exhaustive list of matters to which the marine plan authority must have regard in preparing a marine plan. These include:
- the requirement that the plan be in conformity with any MPS which governs marine planning for the area;
- the duties in relation to compatibility with other plans;
- the likely effect of the marine plan on any area (marine or terrestrial) which is related to the area covered by the plan;
- the results of the marine plan authority’s review of matters likely to affect the exercise of their functions (see clause 54);
- any representations made in response to the SPP about the content of the plan;
- Any advice received from experts or “advisory and consultative groups”;
- any other plan prepared by a public or local authority in connection with the management of marine or coastal resources (for example, River Basin Management Plans prepared under the Water Framework Directive 15, Shoreline Management Plans).
- the powers and duties of the Crown Estate Commissioners.
873. Existing obligations under the Strategic Environmental Assessment Directive require that an assessment is made of the environmental impacts of a proposed plan. In addition to this environmental impact assessment, paragraph 10 requires that the marine plan authority carry out a sustainability appraisal of the policies proposed for inclusion in the plan. Sub-paragraph (2) makes clear that the results of the appraisals are to influence which proposals the marine plan authority takes forward - it may proceed with proposals only if the results of the appraisals indicate that it is ‘appropriate’ to do so. Subparagraph (3) requires the marine plan authority to produce a report of the results of these appraisals, and subparagraph (4) requires that the sustainability appraisal report is published at the same time as the consultation draft.
874. Paragraph 11 sets out the requirements for publication of the “consultation draft” of a marine plan. It must be published by the marine plan authority in a way that brings it to the attention of interested persons. If a plan prepared by one of the devolved marine plan authorities includes provision relating to “retained functions”, the consultation draft can only be published with the agreement of the Secretary of State.
875. Paragraph 12 provides that anybody may make representations about the draft plan, in accordance with the SPP. If any representations are made, the marine plan authority must consider them in the course of finalising the text of the plan.
876. Paragraph 13 requires a marine plan authority to consider holding an independent investigation into the draft plan, to look in more detail at the proposals or the responses received to the consultation on the proposals. Sub-paragraph (2) sets out the factors to which the authority should have regard in deciding whether to hold an independent investigation, and sub-paragraph (3) requires the investigator to make recommendations and give his reasons for them. Subparagraph (4) requires the marine plan authority to publish the recommendations and reasons given by the investigator.
877. Paragraph 14 sets out some of the matters a marine plan authority must consider before deciding to adopt a marine plan, including the recommendations and reasoning given by any independent investigator that they appointed.
878. Paragraph 15 sets out the process for adopting and publishing a marine plan in its final form. A marine plan authority “adopts” a marine plan by making the decision to publish it.
879. Sub-paragraphs (2) and (3) require that plans for the Welsh, Scottish and Northern Ireland offshore areas must be agreed by the Secretary of State before they can be adopted by the marine plan authority. (The requirement for the Secretary of State’s agreement to the adoption of a marine plan does not apply to a plan for the Welsh inshore region which does not include provision relating to retained matters.)
880. Under sub-paragraph (4) the conferral on the Welsh or Scottish Ministers, or the Department of the Environment (Northern Ireland) of marine planning powers which are subject to agreement by the Secretary of State does not affect the exercise or effect of any functions they have, or may acquire, apart from those under the marine planning part of the Bill.
881. Sub-paragraph (6) enables the marine plan authority to make changes to the draft marine plan before it adopts it, and sub-paragraph (7) requires that it should publish the plan as soon as possible after adoption, along with details of any changes and the reasons for them. If an independent investigation has been carried out, but the marine plan authority has not implemented some of the recommendations made by the investigator, it must also publish its reasons for not implementing the recommendations.
SCHEDULE 7: FURTHER PROVISION ABOUT CIVIL SANCTIONS UNDER PART 4
882. Like the clauses on civil sanctions, these provisions are based on those contained in the Regulatory and Enforcement Sanctions Act 2008.
Paragraph 1: Interpretation
883. This defines the scope of provisions contained in this Schedule. “Civil sanctions” include fixed and variable monetary penalties.
Paragraph 2: Fixed monetary penalties: other sanctions
884. Imposition of a fixed monetary penalty removes the person's liability to criminal prosecution for the relevant offence in respect of the act of non-compliance in question. Liability to criminal prosecution is also removed if the person has discharged their liability to a fixed monetary penalty within a set time period under subsection (2)(b) of clause 94.
885. The enforcement authority cannot issue either a compliance or remediation notice as well as a fixed monetary penalty to a person for the same offence.
Paragraph 3: Variable monetary penalties: other sanctions
886. Imposition of a variable monetary penalty removes the person's liability to criminal prosecution for the relevant offence in respect of the act of non-compliance in question.
887. The enforcement authority cannot issue a compliance notice and a variable monetary penalty for the same offence.
Paragraph 4: Combination of sanctions
888. The enforcement authority can only combine sanctions for the same offence in certain ways. In addition to the combinations prohibited in Paragraphs 2 and 3, it cannot take the following action in relation to the same offence:
a) Impose a fixed monetary penalty where a variable monetary penalty has been imposed;
b) Impose a variable monetary penalty where a fixed monetary penalty has been imposed;
c) Impose a variable monetary penalty or stop notice where the person has discharged liability for a fixed monetary penalty under subsection (2)(b) of clause 94;
d) Impose a fixed monetary penalty where a stop notice has been issued;
e) Issue a stop notice where a fixed monetary penalty has been imposed.
889. All other permutations are possible.
Paragraph 5: Monetary penalties
890. This paragraph allows an order made under clauses 93 and 95 to make provision for discounts for early payment of a monetary penalty and for the payment of interest or a financial penalty for late payment of the original penalty. The total amount of any late payment penalty must not exceed the total amount of the penalty imposed.
891. This paragraph also provides for the enforcement of unpaid penalties (and any interest or late payment charges) through the civil courts. It also allows an order to create a process of recovery by treating the penalty as if it were payable under a court order.
Paragraph 6: Costs recovery
892. An order made under clause 95 can require a person on whom a variable monetary penalty has been imposed to pay the costs the enforcement authority has incurred up to the point of imposing that penalty. Such costs may include investigation costs; administration costs; and costs of obtaining expert advice. A person receiving a notice for payment may appeal against its imposition and the amount required to be paid.
Paragraph 7: Appeals
893. This paragraph outlines the provisions that orders made under clauses 93 or 95 can and cannot make in respects of appeals against fixed or variable monetary penalties. For example, an order may contain provision as to the powers granted to any person conducting an appeal and may require suspension of any requirement or notice until an appeal hearing has concluded.
894. Appropriate tribunals are limited in all cases, except in the case of an order made by Scottish Ministers, to the First Tier Tribunal established under the Tribunals, Courts and Enforcement Act 2007 or any other tribunal established under relevant primary or secondary legislation.
Paragraph 8: Consultation
895. This requires the licensing authority proposing to make an order under clause 93 or 95 to consult with the enforcement authority that will be the recipient of the powers to be granted by the order and such other persons the authority considers appropriate. The authority will also be required to consult with relevant organisations that it considers represent the interests of persons substantially affected by the proposals.
896. If, as a result of this consultation exercise, there are substantial changes to any part of the proposals, the authority will be required to undertake further consultation on the revised proposals as it considers appropriate.
Paragraph 9: Guidance as to use of civil sanctions
897. The licensing authority may not make an order enabling the imposition of fixed or variable monetary penalties, unless it secures that the enforcement authority will publish guidance in relation to the use of these powers ("Penalty Guidance"). The enforcement authority may be required to consult specified persons before publishing or revising the Penalty Guidance. The Penalty Guidance must also be revised by the enforcement authority when appropriate, for example, when there has been a change in the rules. The authority should publish the revised guidance. The order must also stipulate that the enforcement authority has regard to the Penalty Guidance when exercising its functions.
898. The Penalty Guidance must contain information about the circumstances in which a sanction is likely to be imposed or may not be imposed (for example, if undertakings and/or payment of a sum of money are accepted by the enforcement authority once a notice of intent for a monetary penalty has been issued); and the person's rights of appeal.
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