Paragraph 5: Procedure for dealing with applications for harbour orders; Paragraph 6: Procedure where harbour revision orders are made otherwise than on application and Paragraph 7: Application of paragraphs 5 and 6

1022.     Paragraphs 5 and 6 make amendments to bring the Harbours Act 1964, as it applies to England and Wales, into line with arrangements in Scotland. At present, if there are any objections to a proposed harbour order that are not frivolous in nature then a public inquiry must be held. This is so even if only a single objection was made and the objector did not request that an inquiry be held.

1023.     These paragraphs allow, in most cases, the Secretary of State to decide whether an inquiry is necessary. The exception to this is where the Welsh Ministers have raised an objection to an application for a harbour revision or empowerment order and the objection does not relate to the compulsory acquisition of land. In these cases the Secretary of State must hold an inquiry. The Secretary of State is also obliged to either hold an inquiry or give a person making an objection the opportunity of a hearing, if the person making the objection requests one and is: a local authority for an area in which the harbour (or any part of it); the relevant conservation body; or if the order will authorise the compulsory acquisition of land, any person who is entitled to be served with notice under paragraph 11 of Schedule 3 to the Harbours Act 1964; or the Welsh Ministers if their objection relates to the compulsory acquisition of land.

FINANCIAL EFFECTS OF THE BILL

1024.     Implementation of the Bill measures in the Bill will mean some costs for the public sector. The Government will incur annual costs of £8.1m for preparing and renewing plans for English and Welsh territorial waters and UK offshore waters. Licensing costs to Government, including licensing enforcement and civil sanctions are estimated to be approximately £90k annually, and there will also be one-off costs to Government of £180k of putting in place these additional licensing measures.

1025.     The Government, including Natural England and the Joint Nature Conservation Committee, will incur annual costs in identifying, selecting and designating Marine Conservation Zones in England and the UK offshore area of £2.7m. This is in addition to the one-off costs of this process which are estimated to be between £8.6m and £9.2m. Costs also fall to Government and its agencies for enforcing byelaws and the general offence in English territorial and UK offshore waters, estimated at £0.6-1m annually plus the one-off cost to the MMO for preparing and publishing penalty guidance which is estimated at £6k. The costs to Government of implementing and developing more highly protected Marine Conservation Zones in Wales are estimated at £0.2-0.6m annually, with one-off costs of £1-4.2m.

1026.     The reform of inshore fisheries management in England will place an additional financial burden on constituent local authorities of £5m per annum. There will also be one-off costs related to implementation of the reform package in England. This will be in the region of £1.8m based on recent estimates. Reform of inshore fisheries management in Wales is estimated to incur annual running costs of approximately £30k, in addition to one-off set up costs of £300k.

1027.      Establishing the new Marine Management Organisation, including the capital costs of acquiring a Geographic Information System, is estimated to cost the Government £7.2m. There will also be costs to Government of running the MMO which are estimated at £3.3m annually. Additional annual costs of the new migratory and freshwater fisheries measures in England and Wales, which will fall to the Environment Agency, are estimated to be £55.5 - 84k. One-off costs to the Environment Agency of implementing the new additional migratory and freshwater fisheries measures will be £546k.

1028.     The Government will also incur costs of establishing the coastal access corridor. These will mainly fall to Natural England, the Ministry of Defence and the Environment Agency. The total cost over 20 years is estimated to be £68m.

1029.     In detailing these costs it should be noted that the Bill will not result in any increase in public expenditure, beyond that already accounted for in Departmental Expenditure Limits.

1030.     The Bill includes some provisions which will impose a charge on individuals or organisations. These fall generally into three categories:

(a) Provisions for the imposition of civil sanctions. As with fines imposed in criminal proceedings, proceeds from administrative penalty and civil sanctions provisions will be paid into the Consolidated Fund.

(b) Provisions enabling fees to be charged for the provision of services (such as supplying copies of byelaws) or for the granting of licences or permits (for example application fees for marine licences in Part 4). Such provisions will operate on a cost-recovery basis; that is to say, the fees will be set on the basis of recovering the costs of providing the service or dealing with the application.

(c) Provisions enabling the recovery of the costs of taking enforcement or remedial action where there is a breach of a notice requiring action (see, for example, clause 91). Again, these provisions will operate on a cost-recovery basis."Further detail of the costs of provisions in the Bill can be found in both Impact Assessments, and in the Impact Assessment section below.

EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER

1031.     The Bill provides for the establishment of a new Non-Departmental Public Body (NDPB), the Marine Management Organisation (MMO). The MMO will incorporate the Marine and Fisheries Agency (an Executive Agency of Defra) whose posts will transfer to the MMO at the time of vesting. The MFA currently has around 200 staff, located in a London headquarters and 18 local coastal offices. The MMO will also take on functions currently carried out by the Department for Transport, the Department for Energy and Climate Change, and the Department for Environment, Food and Rural Affairs. Resources will be transferred to the MMO accordingly. This represents a transfer to the MMO of existing posts rather than an increase in public service manpower.

1032.     Additionally the MMO will be taking on new functions set out in the Bill for which it will need new posts. As an NDPB, it will need a strengthened corporate function and access to independent legal advice. The Impact Assessment outlines the anticipated additional staffing requirements for the MMO at around 45 new posts. Hence on current estimates the MMO will have around 240 - 250 staff, of which the Government envisages around 140-50 will be based in a headquarters office and the remainder in local offices.

1033.     Responsibility for inshore fisheries management in England will be transferred from Sea Fisheries Committees (SFCs) to newly created Inshore Fisheries and Conservation Authorities (IFCAs) through the Bill. In Wales, inshore fisheries management will become the responsibility of the Welsh Assembly Government. Around 115 existing SFC staff will be transferred to the new Authorities or to the Welsh Assembly Government. IFC Authorities are likely to recruit further staff (for example, enforcement officers) to meet their wider duties but this is a matter for the local authorities responsible for funding IFCAs.

1034.     It is also likely there will be a small number of additional staff required on a temporary basis to implement coastal access within coastal local authorities.

1035.     The Government does not expect the Bill to have any significant implications for public sector manpower apart from this.

IMPACT ASSESSMENT

1036.     An Impact Assessment of the Bill’s provisions (excluding the coastal access provisions) has been published alongside this Bill, and sets out the costs and benefits to industry, Government, and the public of the Bill. The scope of the coastal access proposals is substantially different from the marine management framework set out in the rest of the Bill and therefore a separate Impact Assessment has been prepared for these provisions and this has also been published alongside the Bill.

Marine and Coastal Access Bill [HL] Impact Assessment

1037.     The Impact Assessment begins by setting out the main policy areas in the Bill. It explains the implementation plan and the consultation and evidence gathering process for the Bill and the plans for post-implementation review and further economic and scientific research.

1038.     The second section of the Impact Assessment presents the baseline option of existing marine management arrangements, without a Bill. This provides the baseline from which the assessment of the Bill’s proposals is made.

1039.     Section three presents the costs and benefits of the Bill.

1040.     The Government and marine related industry will incur estimated average annual costs in the range of £42m-£82m due to proposals in the Bill. The total present value costs over 20 years are estimated to be in the range of £751m-£1.6bn.

1041.     The average annual benefits to Government, marine related industry and the environment are estimated to be in the range of £756m-£1.7bn. The total present value benefits over 20 years are estimated to be in the range of £8.7bn-£19.6bn.

1042.     The present value net benefit best estimate over 20 years is £13bn, based on the range £7.9bn-£18.1bn. Marine Nature Conservation provisions account for the vast majority of the costs and benefits.

1043.     Significant benefits of implementing the Bill remain non-monetised, for example, benefits from setting up the MMO and the planning system, and certain marine ecosystem services that benefit from nature conservation provisions. The non-monetised benefits are also set out in part three of the Impact Assessment.

1044.     Section four of the Impact Assessment presents sensitivity analysis alongside a discussion of the assumptions and risks of this Impact Assessment.

1045.     The fifth section concludes the Impact Assessment and indicates that the benefits of implementing the proposals in the Bill outweigh the costs of implementation. This section is followed by Annexes which give details on further specific impact tests.

Coastal Access Impact Assessment

1046.     Costs of the coastal access proposals include transitional costs over the first 10 years of £41.7m plus annual costs of £2.37m. These costs include: costs incurred by the public sector (primarily Natural England) for identification of the English coastal route and spreading room, and for implementation and maintenance of new sections of the route; costs to owners of property on the coast and users for participation in the consultation process; and some loss of production to farmers. There are some costings that it was not possible to monetise, for example, potential costs to the natural environment, and costs to local residents in some areas from increased traffic.

1047.     The average annual benefits of the coastal access proposals are estimated at £12.35m. These primarily represent the benefits to users from new rights of access to the English coast and associated access improvements on up to 2,300km of coast. The user benefits are assumed to increase over time and by year 20 are estimated at £25.8m per annum.

1048.     Benefits that remain unmonetised include benefits to local economies from increased public sector and visitor spending, the ability to align the access corridor to avoid sensitive environments and the ability to roll back the access route where the coast is subject to significant erosion.

1049.     The present value net benefits range is -£49m to +£254m with the best estimate of £89m.

1050.     The costs and benefits of the coastal access proposals are appraised over a 20 year period. This is the time necessary for visitor behaviour to adjust to the changes in access.

1051.     The cost and benefit figures are based on an independent assessment carried out by Asken: “Appraisal of Options to Improve Access to the English Coast” (May 2007).

1052.     Both Impact Assessments are available for Peers in the Printed Paper Office, for Members in the Vote Office and to the public on the Defra website at .

CARBON IMPACT

1053.     The Impact Assessment outlines the provisions in the Bill that will aid reduction of carbon emissions and help the UK Government and devolved administrations meet targets to limit greenhouse gas emissions.

1054.     The carbon impact was estimated on the basis of offshore renewable projects being brought forward one year due to provisions in the Bill such as licensing, creation of the MMO and planning. The net value of the carbon savings brought forward every year from the reduced time required in the licensing application stage, was estimated using the shadow price of carbon and the present value of the net annual benefits (over 20 years) is given at £79.5million. More detail can be found in the Impact Assessment.

1055.     The coastal access IA provides an illustrative example of the value of changes in greenhouse gas emissions that may arise from the estimated additional visits to the coast. Using average fuel efficiency figures provided by Department for Transport and the current shadow price of carbon, the additional carbon impact has been quantified and valued. The net present value of this impact is estimated at £317k. More information on the assessment can be found at Annex 3 of the IA.

EUROPEAN CONVENTION ON HUMAN RIGHTS

1056.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The statement has to be made before second reading. The Secretary of State for Environment, Food and Rural Affairs, Hilary Benn MP, has made the following statement:

“In my view the provisions of the Marine and Coastal Access Bill are compatible with the Convention rights.”

1057.     In this section of the explanatory notes, “Article” refers to an Article of the European Convention on Human Rights 1950.

1058.     The Bill contains a number of provisions which engage Convention rights, in particular Article 6 (right to a fair trial), Article 8 (right to respect for family and private life etc, here in the context of private life) and Protocol 1, Article 1 (right to property). Many of the provisions in the Bill will be carried out by public authorities in the context of section 6(1) of the Human Rights Act 1998 (“the 1998 Act”), and they are accordingly required to act in ways which are compatible with Convention rights.

Part 1: Marine Management Organisation

1059.     Part 1 makes provision for a transfer scheme to transfer property, rights or liabilities from a Minister, Government Department or statutory body to the MMO (or vice versa). The Government considers that this might engage Protocol 1, Article 1, in relation to property rights of individuals. However since Schedule 3 includes provision for compensation payments, the Government is of the view that a fair balance between public and private interests is achieved and therefore that the scheme is compatible with that right. Furthermore, should an individual not be satisfied with such compensation, judicial review would be a remedy open to them, in fulfilment of the right under Article 6, and therefore the Government believes that this Part is compatible with the Convention rights.

Part 3: Marine Planning

1060.     Part 3 allows for the making of Marine Policy Statements and marine plans. The Government does not believe that it is likely either will engage Convention rights.

Part 4: Marine Licensing

1061.     Part 4 establishes a system of marine licensing. Under the licensing system, “marine licensing activities” can be considered in the context of Protocol 1 Article 1 as economic interests which amount to property rights, and that any restriction of an activity under that system may constitute an interference with that right. To be justifiable, such an interference must be in accordance with the law and proportionate as between the private interest affected and the public interest of protecting the environment, human health and preventing interference with legitimate uses of the sea. The Government believes both of these are met, that the imposition of a licensing system as a whole (including its detailed provisions) strikes a fair balance, and is compatible with the Convention right.

1062.     The variation and revocation of licences under clause 72 is relevant for the purposes of Protocol 1 Article 1 and Article 6. Whilst the licence may amount to a property right based on the licence holder’s reasonable expectation that he will continue the licensable activity, this expectation can only exist to the extent that the conditions are fulfilled. Even in circumstances where a licence is varied or revoked due to a change in circumstances relating to the environment or human health (for example increased scientific knowledge), the Government considers that this provision is in accordance with the law and the general interest, and strikes a fair balance. The same is true for transfers of licences under clause 72, and compliance and remediation notices under clauses 90 and 91.

1063.     A marine licence could also amount to a civil right within the meaning of Article 6(1), in that it encompasses the ability to engage in commercial activity, with a refusal, variation or revocation being a determination of that right, which could lead to a dispute for the purposes of that Article. Since clause 73 requires the licensing authority to make legislative provision for an appeals mechanism for licensing determinations, this requirement is capable of being exercised compatibly with the Convention right in accordance with the 1998 Act.

1064.     In addition, the determination of a licensing application will require a mix of policy and factual issues, requiring the use of specialist advice. Such determinations therefore involve a policy judgement and therefore judicial review is a sufficient mechanism to review any such determination for the purposes of Article 6.

1065.     As for the offence provisions under Part 4, it is an offence under clause 85 to contravene the licence requirement or to breach a licence condition. The offence is subject to defences in relation to action taken in an emergency (clause 86) and in a case of due diligence (clause 109). These make it clear that a reverse burden of proof is required. In the event of a prosecution for a breach, the Government considers a reverse burden of proof to be appropriate as the defence is likely to relate to something that is within the defence’s knowledge but not the prosecution’s. The level of punishment for the offence is within the range of sentences where a reverse legal burden would be upheld. The Government believes these arrangements are accordingly compatible with Article 6.

1066.     Clause 101 obliges each marine licensing authority to maintain a register of licensing information. The register must include particulars (set out by the licensing authority in regulations) relating to applications, licences granted, variations, revocations and various other matters and must be publicly available. Information must not appear on the register if the appropriate authority determines it would be contrary to the interests of national security or adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate commercial interest.

1067.     These provisions have been considered in light of Article 8, with particular reference to personal data. It is noted that a person’s name and address, without more, may be regarded as part of the data subject’s private life. There is some argument that a licence holder subjects himself voluntarily to the scheme; however there is still an element of compulsion in that a licence holder has to provide the information to gain a licence. There is therefore potentially interference with Article 8.

1068.     The Government considers that the protection of the environment, human health, and the preservation of the legitimate use of the sea are legitimate purposes: a public register is important in ensuring effective operation and enforcement of the licensing system, and the ready identification of those who are operating under licence is necessary to achieve the aims of that system. In some cases this may mean the inclusion and publication of personal data.

1069.     It is also relevant in balancing the public interest against that of individuals under Article 8(2), that those whose personal data may be made public have applied for licences. They have participated in the system of licensing in the awareness that personal data may be published. The Government considers that if the provision is an interference, it is justifiable on the grounds that it is in the public interest as part of the operation of the licensing system, and that the data was voluntarily supplied. Accordingly it is compatible with the Convention right.

1070.     The Government does not consider that the lack of criminal liability of the Crown under clause 111 denies a person of Article 6 rights since a licensing authority may pursue other remedies, whilst any person may bring a civil claim.

Part 5: Marine Conservation Zones

1071.     Under Part 5 of the Bill, marine conservation zones can be designated. This will impose duties on public authorities. As a result of designation, certain applications for permissions for uses of areas will be assessed in accordance with conservation objectives and principles laid down in the relevant MCZ designation (made in subordinate legislation). The conservation objectives will reflect the public interest. The Government’s view is that this use of legislation (compatible with Convention rights under the 1998 Act), and application of the fair balance test, justify any interference with property rights under Protocol 1 Article 1.

1072.     Once MCZs have been designated, byelaws, emergency byelaws and interim byelaws can be made to protect them. In the Government’s view, the power to make byelaws and interim byelaws, with no entitlement to an inquiry but subject to confirmation and thereafter open to challenge by judicial review, is compatible with Article 6 as it would allow for scrutiny in relation to the protection of any applicant’s Article 1 Protocol 1 right.

1073.     In addition, the power to make emergency byelaws (without subsequent confirmation) is to safeguard an MCZ in an emergency. The Secretary of State has power to revoke an emergency byelaw and must keep the need for it under review. Whilst there is no public hearing into this, the Government believes that, given the consultative procedure in the course of which representations may be made, the fact that it is a legislative rather than a determinative process, and that judicial review, and the courts’ powers to stay the application of the byelaw and grant interim relief, is available, the provisions are compatible with Article 6.

Part 6: Inshore Fisheries and Conservation Authorities

1074.     Under Part 6, the making of IFCA byelaws is a power capable of being exercised compatibly with Convention rights under the 1998 Act. As is the position under Part 5, the Government believes that the processes concerning the making and confirmation of byelaws, and the making of emergency byelaws, being subject to judicial review, are compatible with Article 6.

Part 7: Fisheries

1075.     Chapter 2 of Part 7 amends the Sea Fisheries (Shellfish) Act 1967, in particular in relation to the making of shellfish orders. Again, as with nature conservation and IFC authority byelaws, the making of shellfish orders may well determine a person’s civil right to property in the form of a commercial interest in fishing for shellfish. The Government again believes that, as with byelaws, the lack of a public hearing does not render the process incompatible with the Article 6 right.

1076.     As with the register under Part 4, the maintenance of a register of shellfishery licences may engage rights under Article 8. But the Government believes that it is necessary in a democratic society for the protection of the rights and freedoms of others (namely the public) for this information to be available to them. It is also considered necessary for public safety, the prevention of crime and the protection of health that individuals know who holds a licence. Anyone fishing in breach of the regulations and any licence conditions is guilty of an offence. However, without a public register, those fishing from a vessel cannot check to see whether that vessel is licensed or who holds the licence they are apparently relying on to fish. Additionally, the information is not provided for onward transmission for commercial purposes. The Government therefore takes the view that the register provisions are compatible with Article 8.

1077.     Part 7 also contains provisions for management of migratory and freshwater fisheries. By virtue of clause 211(6) the Environment Agency may impose conditions on the use of an “historic installation.” The Government accepts that the right to fish by virtue of an historic fixed installation is a possession for the purposes of Protocol 1, Article 1, but that the imposition of restrictions is a control on use of that possession rather than an outright deprivation. The interference with Convention rights is in accordance with the law and the general interest, and strikes a fair balance between the rights of the fisher and the public interest in the existence of sustainable and usable fisheries. The Government considers that the provisions are compatible with that Convention right.

1078.     The Bill also has the effect of removing various provisions which currently allow certain activities to be carried out in a fishery during close times, with the written permission of the owner or occupier of the fishery. The repeal of these provisions amounts to an interference with the rights of the owner of a fishery over that fishery. This is a control on use, and the Government believes that the control on use is justifiable under Protocol 1, Article1 in that it is in accordance with the law and reflects a fair balance between the rights of the fisher and the public interest in the existence of sustainable and usable fisheries.

1079.     Similarly, in the context of the power to make and confirm a limitation order, where a livelihood may in certain cases be a possession for the purposes of Protocol 1 Article 1, the Environment Agency (and subsequently the Secretary of State or the Welsh Ministers) are obliged to act compatibly with Convention rights under the 1998 Act. In practice it is highly unlikely that a limitation order would have the effect of removing a person’s livelihood.

1080.     But there is a power vested in the Agency to pay compensation in situations where (1) the fisher is wholly dependent for his livelihood on fishing by virtue of the order, and (2) the making of the order has the effect of depriving him of that livelihood (clause 212(5)). The Government believes that the provision is justifiable and compatible with the Convention right.

1081.     By virtue of clause 219, the Environment Agency may make emergency fisheries byelaws. The Secretary of State has obligations to amend and revoke an emergency byelaw and the Government considers that the procedure is compatible with Article 6.

1082.     Finally under Part 7, clause 226 empowers the appropriate national authority to make regulations regarding live fish movements, which may establish licensing requirements in respect of certain activities. In the context of Protocol 1, Article 1 and Article 6, the power to make regulations is capable of being exercised compatibly with Convention rights under the 1998 Act.