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Part 8: Enforcement
1083. Part 8 establishes a common enforcement system as well as containing certain fisheries enforcement provisions. Chapter 1 sets out provisions in relation to who can appoint a marine enforcement officer. Chapters 2 and 3 set out various enforcement powers available to enforcement officers when enforcing certain sea fisheries legislation and nature conservation and the new marine licensing regime. Some of these powers engage Convention rights: Protocol 1, Article 1, Article 5 and Article 8.
1084. The powers that interfere with property rights engage Protocol 1, Article 1. These are powers to stop a vessel, marine installation (clause 240) or vehicle (clause 242) and to enter premises (clause 243) in order to inspect them, powers to stop, detain, search and examine (clause 244), a power to require the production of certain documents (clause 245), a power to direct a vessel into port (clause 253) and a power to seize items or documents (clause 246). All these powers allow the interference with a person’s property, such as a vessel or building.
1085. Article 5 may be engaged in that the crew of a vessel which is being taken into port may, in practice, be taken somewhere other than they would have gone under their own free will. And, Article 5 may also be engaged in relation to people who are stopped and detained. Article 8 is engaged in relation to the entry to a dwelling.
1086. The legitimate expectation of a person that he will be able to continue to pursue a commercial activity is capable of amounting to a possession for Protocol 1, Article 1 purposes. The act of seizing or detaining items, or directing a vessel into port, may amount to an interference with this right.
1087. The Government considers that the interference with property permitted here is proportionate to the legitimate public interest of enforcing relevant legislation. Such interference is justified on the basis that it is in accordance with the public interest that the criminal law is upheld, that any interference is proportionate and strikes a fair balance between the general interest and the individual concerned. The provisions are therefore compatible with Protocol 1 Article 1.
1088. The power to stop and detain a person under clause 244 may engage Article 5 and amount to a deprivation of liberty. The power to take a vessel to port (clause 253) will mean that any person on board the vessel will also be taken to port; whilst there is no requirement for the people on board to remain on board, in practice they have no alternative. This could be viewed as an interference with their liberty under Article 5.
1089. In the circumstances, the Government believes that such interferences do not engage Article 5 as there is no detention within the meaning of that Article.
1090. The Government believes that an interference with a private life under Article 8 by entry into a person’s home is justified in the public interest of investigating and enforcing against criminal behaviour. Any interference is temporary, proportionate and only permitted in clearly defined circumstances following submissions to a Justice. A fair balance has been struck between the rights of the individual and the public interest in investigating and enforcing against criminal behaviour. There is in the Government’s view no infringement of the Article 8 right.
1091. Chapter 4 of Part 8 concerns fisheries enforcement. The power of seizure of objects at sea, fishing gear or fish by an enforcement officer (and the forfeiture of proceeds from the sale of that fish or disposal of property) under this Chapter will in some cases amount to an interference with property rights under Protocol 1 Article 1.
1092. The Government considers that the interference is proportionate and strikes a fair balance in serving the legitimate public interest in effective enforcement of fisheries rules. As regards the detention of a vessel in connection with court proceedings, the position is the same as for the common enforcement powers with respect to the Article 5 right.
1093. In terms of the engagement of Protocol 1 Article 1, proper exercise of the powers will strike a fair balance between the public interest demands and the requirement to protect the individual’s right in his property.
1094. As regards the exclusion of liability of enforcement officers under clause 285, the Government believes that there is no incompatibility with Article 6. The clause does not seek to exclude liability altogether. It acknowledges that where an officer has exercised his powers in bad faith, no exclusion of liability should be allowed. In other cases, the officer is protected from civil suit when he exercises his functions. Access to the court is not an absolute right and may be restricted if the restriction complies with a proportionality test and has a legitimate aim. The Government considers it proportionate that such officers are protected from civil suit otherwise they would not properly be able to exercise the powers given to them under the Bill and not therefore be able to properly enforce provisions giving rise to criminal offences.
1095. Finally, the imposition of administrative penalties for fisheries offences (clause 288) is compliant with Article 6 because if the recipient of the notice wishes to have a hearing, they may do so by not paying and not discharging the liability to be convicted. By doing so, that person will have all the safeguards of the ordinary judicial process.
Part 9: Coastal Access
1096. The coastal access provisions under Part 9 may be seen in the context of Protocol 1 Article 1, Article 8, and Article 14.
1097. The provisions for approval of the long-distance route and coastal margin engage the rights of property owners under Protocol 1, Article 1. The effect of approval is that members of the public will be able to walk freely over land which has been approved, and to take part in all activities on that land which are included within the term “open-air recreation”. There will be certain restrictions upon that right. The effect of conferring the new right of access to land is to remove the existing right of the owner of that land to sue for trespass on the grounds of entry by uninvited members of the public onto the land. This can be considered as a control of use of property. Although the land in question will be subject to public access rights, the owner of the land will still be free to use it, develop it, and sell it as before. Therefore it does not amount to deprivation of that property.
1098. Such an interference with property rights is in accordance with the law and the general interest. It strikes a fair balance between, on the one hand, the rights of the property holder and, on the other, the public interest in ensuring access to the coast (see clause 291(2)).
1099. There is no provision for payment of compensation to landowners whose land will become access land. This is consistent with the interference being a control on use rather than a deprivation of property.
1100. The justifiability of any interference with Protocol 1, Article 1 rights will to some extent be affected by a consideration of the type of land which is subject to the interference. The specification of types of land that may be specified as “coastal margin” is to be achieved by order. Land excepted from public access will include gardens, the curtilage of buildings and developed land. The Order, being secondary legislation, must itself be compatible with Convention rights under the 1998 Act. In this way, the provisions of Part 9 are compatible with Convention rights.
1101. The Bill was amended at Report stage in the House of Lords to insert a new Schedule 1A to the National Parks and Access to the Countryside Act 1949 which provides a process in which objections to Natural England’s coastal access proposals by a person with a relevant interest in affected land may be referred to an appointed person (who it is envisaged will be an inspector from the Planning Inspectorate). The appointed person may hold a hearing or inquiry, and make recommendations to the Secretary of State. The objection to Natural England’s proposals for the route must be made on the grounds that the proposals do not strike a fair balance within the meaning of clause 291(3) in so far as they relate to any of a list of particular matters, including the position of the route. The Secretary of State will make a determination under section 52(1) of the 1949 Act on Natural England’s coastal access report having regard to any objections that may have been made; Natural England’s comments on them; any representations forwarded to the appointed person and the recommendation of the appointed person. This intermediate process, together with the availability of judicial review to challenge the Secretary of State’s decision, reinforce the view that Part 9 of the Bill is fully compliant with Article 6.
1102. There are two ways in which the provisions may engage Article 8 rights. First, the private lives of individuals may be affected where the route is designated close to or across private land. Second, there is the question of the right to respect for the homes of individuals. Provision as to which type of land may be included within “coastal margin” is to be made by order. Again, such an order will be made compatibly with Convention rights under the 1998 Act.
1103. Also, Article 14 is not engaged because the proposed provisions do not bring about any difference of treatment between categories of person on grounds of their status. Although it might be possible to argue that, so far as the payment of compensation is concerned, owners of coastal land are being treated differently from owners of land further inland which is subject to a public path creation order, any difference in treatment is not a difference of treatment, on the grounds of the status of the landowners.
Part 10: Miscellaneous
1104. Two aspects of the provisions of Part 10 relating to harbour orders are relevant in the context of Convention rights. The first amends procedure for inquiries on harbours orders. Similar issues are raised as under conservation and IFCA byelaws. Again, the Government considers that the removal of the entitlement to an inquiry is compatible with Article 6.
1105. The second arises in the light of Protocol 1, Article 1 in respect of provisions to amend the Harbours Act 1964 to authorise the compulsory acquisition of rights in land (which presently can only be provided for by way of a separate order under the Transport and Works Act 1992). Procedural safeguards for compulsory acquisition including compensation are provided for in the 1964 Act, and compensation is payable where an order authorises the acquisition of such rights. This satisfies the requirement for any deprivation to be in the public interest and subject to conditions provided for by law. The Government believes there is no incompatibility with Protocol 1 Article 1.
TERRITORIAL EXTENT
1106. The Bill extends to England and Wales, whilst various provisions also extend to Scotland and Northern Ireland. The Bill also in certain cases allows for orders to be made in respect of Channel Islands, the Isle of Man, or overseas territories. Detail on the territorial extent of each Part of the Bill is given in clause 317.
1107. Part 1 (the Marine Management Organisation) provisions extend to the whole UK. However the functions of the MMO are for the most part not exercisable in relation to the territorial waters adjacent to Scotland.
1108. Part 2 allows for the designation of a UK EEZ and defines the UK marine area. It also provides for the designation of a Welsh zone. This Part extends to the whole of the UK.
1109. Marine Planning (Part 3) extends to the whole of the UK, with responsibilities for each of the Secretary of State, the Welsh Ministers, the Scottish Ministers and the Department of the Environment (Northern Ireland). Functions relating to marine plans do not apply in relation to the Scottish inshore region or the Northern Ireland inshore region.
1110. Licensing (Part 4) extends to the whole of the UK. It applies in all areas except territorial waters adjacent to Scotland, although provisions apply in different ways in different areas, in line with the existing devolution settlement.
1111. The provisions of Chapter 1 of Part 5 (provisions relating to marine conservation zones) (other than Schedules 11 and 12 relating to consequential amendments and transitional provisions for MCZs) extend to the whole of the UK but are of no application in relation to the Scottish inshore region and the Northern Ireland inshore region, where the relevant administrations intend to bring forward provisions under their own legislation.
1112. Part 6 (inshore fisheries) extends to England and Wales, although inshore fisheries and conservation districts may only be established in England. The clauses on the powers of IFC officers etc (clauses 165, 166 and 181) also extend to Scotland.
1113. Part 7 (fisheries) extends to England and Wales, although clauses 206 and 207 (crabs and lobsters) and 225 (keeping, introduction and removal of fish) also extend to Scotland. Measures to manage migratory and freshwater fisheries in that Part (Chapter 3) apply in England and Wales, the River Esk in Scotland but not the River Tweed in England. Clause 226 applies to England and Wales and the catchment area of the Esk in Scotland.
1114. In Part 8 (enforcement measures) Chapters 1 to 5 and clause 289 (Application to the Crown) extend to the whole of the UK. Measures will apply in different areas in different ways in line with the existing devolution settlement and agreements between the different administrations.
1115. Coastal access provisions (Part 9) extend to England and Wales but in general apply in relation to England only. However this Part also provides framework powers for the National Assembly for Wales to designate a coastal route in Wales.
1116. Part 10 (Miscellaneous) extends to the whole of the UK. The clauses relating to Natural England under Part 10 (clauses 305 and 306) apply in England only. The clause relating to the Countryside Council for Wales (clause 307) applies in Wales only. The clause relating to navigation (clause 308) applies in all UK waters with the exception of the Scottish inshore region, though it does provide for the Secretary of State to extend these provisions by order to the Scottish inshore region. The clause relating to harbours (clause 309) applies in England and Wales.
1117. Finally, the supplementary provisions of the Bill (Part 11) extend to the whole of the UK with the exception of the provisions relating to repeals (clause 315 and Schedule 22) which generally have the same extent as the provisions being repealed.
1118. The Scottish Parliament's consent is being sought for the provisions in the Bill that trigger the Sewel Convention. The Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. Where there are provisions relating to such matters which trigger the Convention, the consent of the Scottish Parliament has been sought for them. The relevant provisions are found in Parts 3, 4, 5, 7 and 8.
1119. By similar convention, the consent of the Northern Ireland Assembly has been sought where required. This is in relation to Parts 3, 4, 7 and 8.
TERRITORIAL APPLICATION: WALES
1120. The Bill confers some new functions on the Welsh Ministers.
1121. Part 2 extends the geographical area in which the Welsh Ministers can exercise their fisheries functions.
1122. The Welsh Ministers are the planning authority in the Welsh inshore and Welsh offshore regions under Part 3 and one of the policy authorities for the purposes of preparing and adopting a Marine Policy Statement.
1123. They are the licensing authority for most functions in territorial waters adjacent to Wales under Part 4.
1124. They are the appropriate authority for the designation of Marine Conservation Zones in the territorial waters adjacent to Wales under Part 5, and for making of Welsh conservation orders (including interim and urgent orders).
1125. They will have powers for inshore fisheries management in Wales under Chapter 3 of Part 6.
1126. Chapters 1 and 2 of Part 7 amend the Sea Fish (Conservation) Act 1967 and the Sea Fisheries (Shellfish) Act 1967, which will affect the exercise by the Welsh Ministers of certain of their functions under those Acts. Under Chapter 3 (migratory and freshwater fisheries provisions) the Welsh Ministers are the appropriate national authority for Wales.
1127. The Welsh Ministers may appoint Marine Enforcement Officers to act in Wales and Welsh waters and in relevant enforcement areas and other areas and situations as set out in Part 8;
1128. They are the licensing authority for fisheries harbours in Wales (as at present under the Harbours Act 1964).
1129. The National Assembly for Wales is given the ability to make provision for establishment and maintenance of a route (or routes) for the coast and to secure public access for purpose of open air recreation to land either at the coast, used in association with land at the coast or used in association with the route (or routes) under Part 9.
COMMENCEMENT
1130. The provisions of the Bill will come into force as outlined in clause 318. Part 3, certain parts of Parts 5 and 6, and Part 9 will come into force 2 months after the Bill achieves Royal Assent. Other Parts of the Bill will come into effect on a specific date, which will be set out in an order made by the Secretary of State or, in the case of certain provisions to the extent they relate to Wales, the Welsh Ministers. However, Ministers will be able to make orders under the Bill from the date of Royal Assent.
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