Marine and Coastal Access Bill [HL]

House of Commons

Session 2008 - 09
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Other Bills before Parliament

Marine and Coastal Access Bill [HL]

Marine and Coastal Access Bill [HL]
Part 7 — Fisheries
Chapter 3 — Migratory and freshwater fish
134

(b)
fish of such other description as may be specified for the
purposes of this section by order under section 40A below.
(2)
An application for an authorisation under this section must be in such
form as the Agency may specify.
(3)
An authorisation under this section must be in writing, but subject to
5
that may be in such form as the Agency may determine.
(4)
An authorisation under this section—
(a)
must be granted for a specified period of time;
(b)
may be granted to more than one person;
(c)
may be limited as to the waters in respect of which it is granted;
10
(d)
may be subject to conditions.
(5)
The Agency may at any time, on application or on its own initiative—
(a)
amend an authorisation under this section;
(b)
revoke an authorisation under this section.
(6)
In determining whether to grant, amend or revoke an authorisation the
15
Agency must consider the effect of doing so on—
(a)
fisheries in the area to which the authorisation relates; and
(b)
the aquatic or marine environment in that area.
(7)
An authorisation under this section granted to a body corporate—
(a)
may, if the authorisation so specifies, apply in relation to any
20
individual acting on behalf of that body (as well as to the body
corporate); or
(b)
may, if the authorisation so specifies, apply only in relation to
individuals named in the authorisation when acting on behalf
of the body (as well as to the body corporate).
25
(8)
The Agency may charge a fee for the grant of an authorisation under
this section.
(9)
Where the Agency determines standard fees for the grant of
authorisations of particular descriptions, it must publish them.
(10)
Where—
30
(a)
the Agency has determined a standard fee for the grant of an
authorisation of a particular description, but
(b)
the Agency considers, in any case, that special circumstances
apply to the grant of an authorisation of that description,

it may charge a fee of another amount.
35
27B
Unauthorised fishing etc
(1)
A person is guilty of an offence if, by any means other than a licensable
means of fishing, he fishes for or takes any fish in circumstances
where—
(a)
the fishing or taking may be authorised under section 27A
40
above, but
(b)
he is not authorised to fish for or take the fish under that section
(or is so authorised but the fishing or taking is in breach of any
condition of his authorisation).

Marine and Coastal Access Bill [HL]
Part 7 — Fisheries
Chapter 3 — Migratory and freshwater fish
135

(2)
A person is guilty of an offence if he has an instrument in his
possession, other than an instrument which is a licensable means of
fishing, with intent to use it to fish for or take fish in circumstances
where—
(a)
the fishing or taking may be authorised under section 27A
5
above, but
(b)
he is not authorised to fish for or take the fish under that section
(or is so authorised but the fishing or taking would be in breach
of any condition of an authorisation under that section).”
(3)
In Schedule 4 to that Act (offences), in the table in paragraph 1(2), at the end
10
insert—

“Section 27B
Unauthorised
(a) Summarily
A fine not exceeding

fishing etc

£50,000.







15

(b) On indictment
A fine.”

215
Enforcement
(1)
Part 5 of the Salmon and Freshwater Fisheries Act 1975 (c. 51) (administration
and enforcement) is amended as follows.
(2)
In section 31 (powers of search), in subsection (1)—
20
(a)
in paragraph (b), the words “in contravention of this Act” are omitted;
(b)
in paragraph (c)(i), the words “which has been caught in contravention
of this Act” are omitted;
(c)
in paragraph (d) after “fish” insert “(or a sample of any fish)”;
(d)
after paragraph (d) insert—
25
“(e)
may disable or destroy any dam, fishing weir, fishing
mill dam or fixed engine which he has reasonable cause
to suspect of having operated or been used, or of being
likely to be used, in contravention of this Act.”
(3)
In section 32 (power to enter lands), subsection (1)(ii) and the preceding “or”
30
are omitted.
(4)
In section 33 (orders and warrants to enter suspected premises), in subsection
(2), for the words from “seize” to the end substitute—
“(a)
seize any illegal net or other instrument, or any net or other
instrument suspected to have been illegally used, that may be
35
found on the premises;
(b)
seize any fish suspected to have been illegally taken or sold that
may be found on the premises; or
(c)
disable or destroy any dam, fishing weir, fishing mill dam or
fixed engine suspected to have operated or been used illegally
40
that may be found on the premises.”
(5)
In that section, in subsection (3), for “one week” substitute “three months”.
(6)
In section 34 (power to apprehend persons fishing illegally etc)—
(a)
in the heading, the words “at night” are omitted;

Marine and Coastal Access Bill [HL]
Part 7 — Fisheries
Chapter 3 — Migratory and freshwater fish
136

(b)
the words from “between the end” to “following morning” are omitted.
(7)
In section 35 (power to require production of fishing licences), in subsection
(1)—
(a)
for “being about to” substitute “intending to”;
(b)
for “to have within the preceding half hour” substitute “of having
5
recently”;
(c)
after “in any area,” insert “in circumstances where the fishing would
require a licence or authorisation under this Act or a licence under
section 16 of the Wildlife and Countryside Act 1981,”.
(8)
In that section, subsection (2) is omitted.
10
(9)
In Schedule 4 (offences), in paragraph 1(2), in the fourth column of the table, in
the entry relating to section 5(1), for “The prescribed sum” substitute “£50,000”.
216
Power to specify fish
(1)
After section 40 of the Salmon and Freshwater Fisheries Act 1975 (c. 51)
insert—
15
“40A
Power to specify fish
The appropriate national authority may by order specify fish of any
description for the purposes of any or all of the following—
(a)
section 1, 2, 25 or 27A above;
(b)
section 32 of the Salmon Act 1986;
20
(c)
paragraph 6 of Schedule 25 to the Water Resources Act 1991;
(d)
section 6(6) of the Environment Act 1995.”
(2)
In section 41 of that Act (interpretation), in subsection (1), after the definition
of “the Agency” insert—
““the appropriate national authority” means—
25
(a)
the Secretary of State, except in relation to Wales (within
the meaning of the Government of Wales Act 2006);
(b)
in relation to Wales (within that meaning), the Welsh
Ministers;”.
217
Order-making powers: supplementary
30
After section 40A of the Salmon and Freshwater Fisheries Act 1975 (as inserted
by section 216 above) insert—
“40B
Orders: supplementary
(1)
An order under section 1, 25 or 40A above may make different
provision for different purposes (and, in particular, different provision
35
in relation to different areas or waters).
(2)
Such an order is to be made by statutory instrument.
(3)
A statutory instrument containing such an order is subject to
annulment in pursuance of a resolution of—
(a)
either House of Parliament, in the case of an order made by the
40
Secretary of State;

Marine and Coastal Access Bill [HL]
Part 7 — Fisheries
Chapter 3 — Migratory and freshwater fish
137

(b)
the National Assembly for Wales, in the case of an order made
by the Welsh Ministers.”
218
Definitions relating to fish
(1)
In section 41 of the Salmon and Freshwater Fisheries Act 1975 (c. 51)
(interpretation), subsection (1) is amended as follows.
5
(2)
For the definition of “eels” substitute—
““eels” means any fish of the species Anguilla anguilla, and
includes elvers and the fry of eels;”.
(3)
After that definition insert—
““fish” includes crustaceans and molluscs;”.
10
(4)
After the definition of “foreshore” insert—
““freshwater crayfish” means any freshwater decapod crustacean
of the Families Astacidae, Cambaridae or Parastacidae;”.
(5)
For the definition of “freshwater fish” substitute—
““freshwater fish” means any fish habitually living in fresh water,
15
exclusive of—
(a)
salmon, trout, eels, lampreys, smelt and any other fish of
a kind which migrates from fresh to salt water, or from
salt to fresh water, in order to spawn;
(b)
any kind of crustacean other than freshwater crayfish
20
and Chinese mitten crabs (Eriocheir sinensis); and
(c)
any kind of mollusc;”.
(6)
After the definition of “screen” insert—
““smelt” means any fish of the species Osmerus eperlanus;”.
Byelaws
25
219
Power to make byelaws
(1)
In Schedule 25 to the Water Resources Act 1991 (c. 57) (byelaw-making powers
of the Agency), paragraph 6 (byelaws for purposes of fisheries functions) is
amended as follows.
(2)
In sub-paragraph (1), in paragraph (b), for the words from “salmon fisheries”
30
to the end substitute “fisheries of fish to which this paragraph applies.”
(3)
After that sub-paragraph insert—
   “(1A)
This paragraph applies to—
(a)
salmon, trout, eels, lampreys, smelt, shad and freshwater
fish; and
35
(b)
fish of such other description as may be specified for the
purposes of this paragraph by order under section 40A of the
Salmon and Freshwater Fisheries Act 1975.”
(4)
In sub-paragraph (2), after paragraph (a) insert—
“(aa)
specifying close seasons or times for the taking
40
of any fish to which this paragraph applies by

Marine and Coastal Access Bill [HL]
Part 7 — Fisheries
Chapter 3 — Migratory and freshwater fish
138

such means as may be prescribed by the
byelaws;”.
(5)
In that sub-paragraph, in paragraph (b)(i), after “size” insert “greater or”.
(6)
In that sub-paragraph, in paragraph (e) at the end insert “(including requiring
fixed engines during close seasons or times to be removed or made incapable
5
of taking or obstructing the passage of fish)”.
(7)
Sub-paragraph (3) is omitted.
(8)
Sub-paragraph (4) is omitted.
(9)
After sub-paragraph (5) insert—
   “(5A)
A byelaw under this paragraph does not apply to a person (including
10
an employee or agent of the Agency) to the extent that he is acting—
(a)
with the written authority of the Agency; and
(b)
in accordance with any conditions imposed by the Agency in
relation to that authority.
     (5B)
For the avoidance of doubt, a byelaw under this paragraph may
15
apply to an historic installation as to any other fixed engine.”
(10)
Any byelaw made by the Environment Agency under paragraph 6(3) of that
Schedule and in force immediately before the coming into force of subsection
(7) above shall in relation to any period after the coming into force of that
subsection be regarded as having been made under paragraph 6(2) of that
20
Schedule, as amended by this section.
220
Byelaws: emergency procedures
(1)
In the Water Resources Act 1991 (c. 57), in section 210 (byelaw-making powers
of the Agency) at the end insert—
“(3)
Schedule 27 to this Act (emergency fisheries byelaws) shall have effect.”
25
(2)
In that Act, after Schedule 26 insert—
“Schedule 27
Section 210(3)

Emergency fisheries byelaws
Emergency fisheries byelaws
1     (1)
In this Schedule, “emergency fisheries byelaw” means a byelaw
30
made under paragraph 6 of Schedule 25 to this Act (fisheries) in the
circumstances in sub-paragraph (2) below.
      (2)
The circumstances are that—
(a)
the Agency considers that, because of any event or likely
event, harm is occurring or is likely to occur to—
35
(i)
any fish to which paragraph 6 of Schedule 25 to this
Act applies or to the spawn, gametes or food of any
such fish, or
(ii)
the marine or coastal, or aquatic or waterside,
environment,
40

Marine and Coastal Access Bill [HL]
Part 7 — Fisheries
Chapter 3 — Migratory and freshwater fish
139

(b)
the Agency considers that the byelaw would prevent or limit
that harm, or would be reasonably likely to do so,
(c)
the Agency considers that for that purpose there is a need for
the byelaw to come into force as a matter of urgency, and
(d)
the event or the likelihood of the event could not reasonably
5
have been foreseen.
      (3)
Schedule 26 to this Act (procedure relating to byelaws made by the
Agency) does not apply in relation to an emergency fisheries byelaw.
      (4)
In sub-paragraph (2)(a), the reference to harm to the marine or
coastal, or aquatic or waterside, environment is to—
10
(a)
harm to the natural beauty or amenity of marine or coastal, or
aquatic or waterside, areas (including their geological or
physiographical features) or to any features of archaeological
or historic interest in such areas, or
(b)
harm to flora or fauna which are dependent on or associated
15
with the marine or coastal, or aquatic or waterside,
environment.
Commencement
2
An emergency fisheries byelaw comes into force—
(a)
on the date specified in the byelaw, or
20
(b)
if no date is so specified, on the day after that on which it is
made.
Notification of the appropriate national authority
3
The Agency must, within 24 hours of making an emergency fisheries
byelaw—
25
(a)
send a copy of the byelaw to the appropriate national
authority, and
(b)
explain to the appropriate national authority why the byelaw
is being made as an emergency fisheries byelaw.
Publication
30
4
The Agency must publish notice of the making of an emergency
fisheries byelaw (including a copy of the byelaw)—
(a)
in the London Gazette;
(b)
where the byelaw has effect in Wales, in the Welsh language
in such manner as the Agency thinks appropriate;
35
(c)
in such other manner as it thinks appropriate for the purpose
of bringing the byelaw to the attention of persons likely to be
affected by it.
Amendment and revocation
5     (1)
If at any time the appropriate national authority is satisfied that an
40
emergency fisheries byelaw would better serve to prevent or limit
the harm referred to in paragraph 1(2)(a) above if it were amended,
the authority must amend it accordingly.

Marine and Coastal Access Bill [HL]
Part 7 — Fisheries
Chapter 3 — Migratory and freshwater fish
140

      (2)
If at any time the appropriate national authority is satisfied that an
emergency fisheries byelaw is no longer needed in order to prevent
or limit the harm referred to in paragraph 1(2)(a) above, the authority
must revoke it.
      (3)
The Agency must publish notice of an amendment or revocation
5
under this paragraph as specified in paragraph 4(a) to (c) above.
Expiry and extension
6     (1)
Subject to paragraph 7 below, an emergency fisheries byelaw expires
(unless earlier revoked)—
(a)
in accordance with provision made by the byelaw, or
10
(b)
if the byelaw does not contain provision for its expiry, at the
end of the period of twelve months beginning with the day
on which it comes into force.
      (2)
A byelaw may not under sub-paragraph (1)(a) above remain in force
for longer than the period of twelve months beginning with the day
15
on which it comes into force.
7     (1)
The Agency may, at any time before an emergency fisheries byelaw
expires, apply to the appropriate national authority for it to be
extended.
      (2)
On such an application, the appropriate national authority may
20
extend the byelaw at any time before its expiry, provided the
authority is satisfied that—
(a)
the byelaw is still needed to prevent or limit the harm
referred to in paragraph 1(2)(a) above, and
(b)
the need for the extension could not reasonably have been
25
avoided by the Agency.
      (3)
A byelaw may be extended under sub-paragraph (2) above for such
period not exceeding six months as the appropriate national
authority may specify.
      (4)
A byelaw may not be extended under sub-paragraph (2) above on
30
more than one occasion.
Availability
8     (1)
Every emergency fisheries byelaw shall be printed and deposited at
one or more of the offices of the Agency, including (if there is one) at
an office in the area to which the byelaw applies; and copies of the
35
byelaw shall be available at those offices, at all reasonable times, for
inspection by the public free of charge.
      (2)
Every person shall be entitled, on application to the Agency and on
payment of such reasonable sum as the Agency may determine, to be
furnished with a copy of any emergency fisheries byelaw so
40
deposited by the Agency.