|Marine And Coastal Access Bill [HL] - continued||House of Commons|
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899. This paragraph requires that, where the licensing authority makes an order enabling the imposition of fixed or variable monetary penalties, the enforcement authority should prepare and publish guidance regarding the manner in which the offence to which the power relates is enforced (Enforcement Policy).
900. An enforcement authority will be able to revise and publish its guidance periodically. The enforcement authority will be required to consult with all persons it considers appropriate before publishing or revising its guidance.
901. Any order made under clauses 93 and 95 establishing a civil sanction regime must make provision for the publication of certain information relating to its enforcement actions. Those particulars are listed in sub-paragraphs (2) to (4).
902. Any monies received by the enforcement authority in pursuant of its enforcement functions under clauses 93 and 95 must be paid into the relevant consolidated fund as determined by sub-paragraph (2).
903. This paragraph permits those listed in sub-paragraph (2) to disclose information to an enforcement authority that has had the new sanctioning powers conferred upon it. Information may only be disclosed where the enforcement authority has an enforcement function in relation to a criminal offence and for the purposes of the enforcement authority exercising one of the new powers relating to the issue of fixed and variable monetary penalties.
904. Part 1 of this Schedule makes a number of consequential amendments to the Coast Protection Act 1949, the Food and Environment Protection Act 1985, the Government of Wales Act 2006 and the Planning Act 2008.
905. These two paragraphs insert an equivalent provision to clauses 80 and 87 of this Bill into the Food and Environment Protection Act 1985 as it will continue to apply to the Scottish inshore region.
906. This paragraph introduces two new order making powers into the Petroleum Act 1998. The first power in sub-paragraph (2) provides for the Secretary of State to be able to disapply Part 3 of the Petroleum Act 1998 to any pipelines specified in that order. This can apply to individual pipelines or more generic descriptions of pipelines. On commencement of any such order, pipelines no longer regulated under Part 3 of the Petroleum Act 1998 will become fully licensable under the Marine and Coastal Access Bill [HL] by virtue of clause 66.
907. The second power, in sub-paragraph (3), provides for the Secretary of State to apply Part 3 of the Petroleum Act 1998 to pipelines not currently subject to regulation under that Act. It can only be used to include pipelines used in the connection with exploration for, exploitation of, petroleum, or the importation of petroleum into the UK.
908. This paragraph amends the definition of submarine pipelines in Part 4 of the Petroleum Act 1998. It prevents any pipeline specified in an order made under sub-paragraph (2) of paragraph 7 being captured by Part 4 of that Act Abandonment of offshore installations.
Parts 2 and 3: Coast Protection Act 1949; Food and Environment Protection Act 1985
909. These two Parts provide that all consents under the Coast Protection Act 1949 and FEPA licences issued before the commencement of the marine licensing provisions are to be considered as marine licences as if they were granted under the Marine and Coastal Access Bill [HL]. Additionally, applications for CPA consent and FEPA licences currently under consideration by the licensing authority at the time of commencement of the marine licensing provisions are to be considered by the licensing authority as applications for a marine licence. No additional fees will be required.
910. This paragraph provides that an Order in Council under section 26 of FEPA that was in force before the commencement date will remain in force, and may be revoked, amended or re-enacted, as if that section had not been repealed. In addition, if it appears that provision with respect to the licensing of marine activities has been made in the law of any Channel Islands or British overseas territory, and that that provision was made otherwise than by virtue of an Order in Council under section 317 of the Bill extending provisions of the Bill, any provisions of Part 2 or 4 of FEPA as they have effect as part of the law of that territory may be repealed by Order in Council.
911. Dredging that involves moving sediment around the sea (as opposed to lifting it out of the sea and taking it to a deposition site) was not licensable under FEPA or the Coast Protection Act 1949. Plough and hydrodynamic dredging are two examples of this. Under the Bill these types of dredging need a marine licence. This paragraph delays the requirement for a marine licence for such dredging activities by one year from the date of commencement of the marine licensing functions of the Bill. Any order made under clause 314 that making further transitional arrangements can specify additional types of dredging activity that are subject to the one-year grace period.
912. This paragraph provides that clause 82 applies to any application for consent under section 109 of the Water Resources Act 1991 made, but not determined, by the time of commencement of the marine licensing provisions of the Bill.
913. The Bill repeals the requirement for operators to seek approval under the Electronic Communications Code for tidal works (see Part 2 of the Repeals Schedule). These paragraphs provide that approvals granted under paragraph 11 of the Electronic Communications Code before that repeal are to be considered as marine licences, in England and Wales, and FEPA licences, in Scotland. Additionally, applications for approval currently under consideration by the licensing authority at the time of the repeal are to be considered by the licensing authority as applications for a marine licence, in England and Wales, and FEPA licences, in Scotland.
914. This paragraph provides that before the Secretary of State exercises his or her functions under any of the clauses in sub-paragraph (2) in Welsh controlled waters - as defined by paragraph 4 of Schedule 3 to the Government of Wales Act 2006 - then the Secretary of State must consult the Welsh Ministers. This provision can be amended, modified or repealed by any further Order in Council made under section 58(1)(c) of the Government of Wales Act 2006.
915. This Schedule sets out the further provisions about fixed monetary penalties. Paragraph 1 provides that an order allowing the imposition of fixed monetary penalties must provide that, where a fixed monetary penalty is imposed on a person, that person must not also be liable to criminal prosecution in respect of the relevant offence.
916. Paragraph 2 states that such an order may provide for discounts for early payment or interest 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.
917. This paragraph also provides for the enforcement of unpaid penalties (and any interest or late payment charges) through the civil courts.
918. Paragraph 3 makes provision for appeals.
919. Paragraph 4 requires the appropriate authority (the Secretary of State or the Welsh Ministers) proposing to make an order allowing the use of fixed monetary penalties to consult with the enforcement authority and such other persons the authority considers appropriate. The relevant authority will also be required to consult with relevant organisations it considers represent the interests of persons substantially affected by the proposals.
920. If there are, as a result of this, 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.
921. Paragraph 5 provides that an order enabling the imposition of fixed monetary penalties or acceptance of enforcement undertakings must also require that the enforcement authority publishes guidance in relation to the use of these powers (Penalty Guidance). The enforcement authority must revise the Penalty Guidance where appropriate and must consult specific persons before publishing or revising the Penalty Guidance. The order must also state that the enforcement authority should have regard to the Penalty Guidance when exercising its functions.
922. The Penalty Guidance must contain information about the circumstances in which a sanction is likely to be imposed, the amount of the penalty and the persons right of appeal.
923. Paragraph 6 requires that where the Secretary of State or the Welsh Ministers make an order enabling the imposition of fixed monetary penalties or acceptance of enforcement undertakings in relation to an offence, the enforcement authority must prepare and publish guidance regarding the manner in which the offence is enforced (Enforcement Policy). The Enforcement Policy must set out the sanctions for committing an offence, the action the enforcement authority may take and the circumstances in which the enforcement authority is likely to take such action. The Enforcement Policy, in contrast to Penalty Guidance, is focused on how particular offences are enforced.
924. Paragraph 7 provides that any order must require an enforcement authority to publish information concerning its use of those powers in cases where either a fixed monetary penalty has been imposed (but not overturned on appeal) or liability to a penalty has been discharged by payment of a prescribed sum.
925. Paragraph 8 provides that all payments made in relation to civil sanctions are to be paid into either the Consolidated Fund or the Welsh Consolidated Fund as appropriate.
926. Paragraph 9 permits those listed in sub-paragraph (2) to disclose information to an enforcement authority that has had the new enforcement powers conferred on it. Information may only be disclosed where the person listed has an enforcement function in relation to offences and for the purposes of the enforcement authority exercising one of the new powers. The police will not have access to the new enforcement powers but if, for example, they have begun a criminal investigation but think that it no longer merits a criminal prosecution, this provision would allow them to pass information to the enforcement authority to determine whether to issue an alternative sanction.
927. This Schedule amends a number of Acts to take account of the provisions proposed in this Bill.
928. Paragraph 1 amends the Conservation of Seals Act 1970 (section 10) so that the power to grant licences is in relation to MCZs rather than marine nature reserves.
929. Paragraph 2 amends the Wildlife and Countryside Act 1981 to omit sections 36 and 37 and update section 34A as a result of the creation of MCZs.
930. The amendment to the Water Resources Act 1991 (c.57) made by paragraph 3 ensures that byelaws made by the Marine Management Organisation and orders made by the Welsh Ministers to protect Marine Conservation Zones are not affected by byelaws made by the Environment Agency for flood defence and drainage purposes under that Act. This exception currently only applies to byelaws made by navigation authorities, harbour authorities and conservancy authorities under that Act.
931. Paragraph 4 amends the Conservation (Natural Habitats &c) Regulations 1994 so that MMO byelaws and equivalent orders by the Welsh Ministers protecting European marine sites can be made under Part 5 of the Bill rather than under section 37 of the Wildlife and Countryside Act 1981 (which will be repealed by the Bill). Provisions are slightly different for European marine sites as different designation criteria apply to them: they will not have the same conservation objectives as MCZs.
932. This Schedule makes transitional provision relating to the coming into force of the provisions about MCZs in Part 5.
933. Paragraph 2 provides that, from the date when Marine Nature Reserves are abolished and replaced by MCZs, any existing Marine Nature Reserve is to be treated as an MCZ. Lundy and Skomer will therefore become MCZs following the commencement of the Act. For as long as conservation objectives for these MCZs remain the same as they were for the former MNRs, no further consultation will be required. If, however, changes are proposed to the conservation objectives for the former MNRs, consultation will be required to agree the conservation objectives for the site.
Sites of special scientific interest
934. Paragraph 2 amends section 28 of the Wildlife and Countryside Act 1981 in order to define the circumstances in which Sites of Special Scientific Interest (SSSIs) may extend below mean low water mark.
935. Statutory nature conservation bodies (Natural England, and the Countryside Council for Wales) will be able to notify any land as a SSSI where it lies above mean low water mark, where it is covered by estuarial waters, or where it adjoins an existing SSSI and has relevant interrelations with that site.
936. Paragraph 5 amends section 28B of the Wildlife and Countryside Act 1981. This paragraph will provide for land lying above the mean low water mark, land covered by estuarial waters or land which adjoins an existing SSSI and has relevant interrelations with that site to be notified under that section.
937. Paragraph 6 amends section 28C of the Wildlife and Countryside Act 1981. This paragraph will provide for land lying above the mean low water mark, land covered by estuarial waters or land where it adjoins an existing SSSI and has relevant interrelations with that site to be notified under that section.
938. Paragraph 7 inserts a new section 28CA into the Wildlife and Countryside Act 1981 to enable Ministers to provide guidance to Natural England or the Countryside Council for Wales regarding subtidal SSSIs.
939. Paragraph 8 inserts a new section 28CB into the Wildlife and Countryside Act 1981, giving Ministers the power to make directions in connection with the notification of SSSIs in the sub-tidal area (where the land lies below mean low water mark and outside estuarial waters).
940. Paragraph 9 amends section 28D of the Wildlife and Countryside Act 1981 which allows Natural England to denotify areas of land as a SSSI. The amendment made by sub-paragraph (2) will allow the conservation bodies to denotify land where it is of the opinion that the land should no longer be notified because it has instead been designated as (or as part of) an MCZ.
National nature reserves
941. Paragraph 10 amends section 35 of the Wildlife and Countryside Act 1981 in order to specify the circumstances in which National Nature Reserves (NNRs) may extend beyond mean low water mark or estuarial waters. It clarifies the existing power of declaration with respect to land lying below mean low water mark.
942. Paragraph 11 inserts new section 35A into the Wildlife and Countryside Act 1981 to give Ministers the power to direct the conservation bodies on whether or not any of the area beyond the mean low water mark or estuarial waters should be included within the NNR if declared. Ministers can also leave the decision to the discretion of the conservation body.
943. Schedule 14 contains minor and consequential amendments to various Acts.
944. Schedule 15 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).
945. Paragraph 2 omits section 3 of the Salmon and Freshwater Fisheries Act 1975, which regulates the use of nets in certain waters. Such use will be regulated by conditions issued as part of a licence or authorisation.
946. Section 5 of the Salmon and Freshwater Fisheries Act 1975 makes it an offence to use any explosive substance, any poison or other noxious substance, or any electrical device with the intent to take or destroy fish. The Environment Agency may permit their use for scientific or fisheries management purposes. Paragraph 3(3) clarifies that the Agency may charge for such permission. Paragraph 3(4) excludes activities that have been authorised under section 27A from the offence.
947. Paragraphs 4 to 6 omit sections 6 to 8 and 16 and 17 of the Salmon and Freshwater Fisheries Act 1975. These sections place restrictions on the operation of fixed nets and traps. The Environment Agency will include relevant operating conditions within the conditions of licences and authorisations.
948. Paragraph 7 removes a cross-reference to section 17 of the Salmon and Freshwater Fisheries Act 1975, which has been repealed.
949. Paragraph 8 omits sections 19 to 21 of the Salmon and Freshwater Fisheries Act 1975. Section 19 contains offences in relation to close seasons and close times. Section 20 sets out requirements in relation to operation of fixed engines and obstructions during close seasons and close times, and section 21 sets out similar requirements in relation to eel baskets. Close seasons and close times will be regulated through licence conditions, authorisations and byelaws. Penalties for breaching byelaws are in section 211 of the Water Resources Act 1991.
950. Paragraph 9 amends references to instruments in section 25 of the Salmon and Freshwater Fisheries to means of fishing to bring it in line with other amendments to that section. Section 25 extends the licensing system to means of fishing which are not instruments.
951. Paragraph 11 amends section 27 of the Salmon and Freshwater Fisheries Act 1975 (unlicensed fishing) in consequence of new provisions on fishing authorisations (see clause 213).
952. Paragraph 12 amends section 33 of the Salmon and Freshwater Fisheries Act 1975 which enables enforcement officers to enter lands situated on or near to any waters where they suspect an offence under that Act is being committed or likely to be committed. Officers first need to apply to a justice of the peace. This power has been extended so that officers have the power when the offence has been committed in relation to any kind of fish.
953. Section 34 of the Salmon and Freshwater Fisheries Act 1975 enables enforcement officers to seize without warrant any person who has illegally taken or killed salmon, trout, freshwater fish and eels, or is found on or near any waters with the intent so to do during night-time. Paragraph 13 replaces references to particular species with any fish where the taking or killing constitutes an offence under that Act.
954. Paragraph 15 omits Schedule 1 to the Salmon and Freshwater Fisheries Act 1975, which makes provision in relation to close times. These will be set in byelaws (see clause 218).
955. Paragraph 16 amends Schedule 2 to the Salmon and Freshwater Fisheries Act 1975.Under Schedule 2, the Environment Agency may, in special cases, exempt a person from paying a licence duty fixed under that Schedule. Paragraph 16(2) removes the requirement for special cases and allows the exemption in cases where the Agency considers it appropriate.
956. Paragraph 16(3) allows different licence duties to be charged for the different descriptions of licences the Environment Agency can introduce under clause 211(2).
957. Amendments to section 25 of the Salmon and Freshwater Fisheries extend the licensing system to means of fishing which are not instruments. Paragraph 16(4), (7), (8), (10), (11)) and (12) amends other references to instruments in Schedule 2 accordingly.
958. Paragraph 16(9) ensures that names can be removed from a licence as well as being entered.
959. Paragraph 17 amends Schedule 4 to the Salmon and Freshwater Fisheries Act 1975. This Schedule sets out the penalties for offences under that Act. Paragraph 17 makes consequential amendments (including, in particular, the repeal of references to sections 19 and 21.
960. Those who operate fish farms are exempt from offences listed in Part 1 of Schedule 4 to the Fisheries Act 1981: for example, offences of killing unclean or immature fish, or killing fish during close seasons. Paragraph 18 updates this list to ensure it makes correct reference to the (amended) offences under the Water Resources Act 1991.
961. Paragraph 19 omits section 32(6)(a) of the Salmon Act 1986, which is redundant following amendments to section 31(1)(b) of the Salmon and Freshwater Fisheries Act 1975 made by clause 214.
962. Amendments to Schedule 25 to the Water Resources Act 1991 extend the Environment Agencys byelaw making powers to salmon, trout, lampreys, smelt, shad, eels, freshwater fish and other specified fish (by order under new section 40A of the Salmon and Freshwater Fisheries Act 1975). Paragraphs 23 and 24 amend other references to fish species in Schedule 25 and section 212 accordingly.
963. Paragraph 25 omits paragraph 7 of Schedule 25 to the 1991 Act. Paragraph 7(1) requires that when making byelaws within the district of a Sea Fisheries Committee the Environment Agency must seek its consent. Sea Fisheries Committees are to be replaced with Inshore Fisheries and Conservation Authorities; the relationship between the two jurisdictions will be managed administratively rather than through statutory limitations.
964. Paragraph 7(2) prohibits the Environment Agency from making byelaws which would prejudice any powers of a sewerage undertaker to discharge sewage which is permitted under any other Act.
965. Paragraph 26 amends the references to fish made in section 13 of the Environment Act 1995, which requires the Environment Agency to create regional and local fisheries advisory committees.
966. This Schedule sets out the procedure for applying for a warrant for an enforcement officer to enter a dwelling, rules about executing the warrant and other safeguards. It is based on the provisions in the Police and Criminal Evidence Act 1984.
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