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Marine and Coastal Access Bill [HL]


Marine and Coastal Access Bill [HL]
Schedule 9 — Licensing: transitional provision relating to Part 4
Part 4 — Miscellaneous

265

 

Channel Islands and British overseas territories

8     (1)  

In this paragraph “relevant territory” means any of the following—

(a)   

any of the Channel Islands;

(b)   

any British overseas territory.

      (2)  

An Order in Council under section 26 of FEPA which is in force immediately

5

before the commencement date remains in force, and may be revoked,

amended or re-enacted, as if that section had not been repealed.

      (3)  

If it appears to Her Majesty—

(a)   

that provision with respect to the licensing of marine activities has

been made in the law of any relevant territory, and

10

(b)   

that that provision was made otherwise than by virtue of an Order in

Council under section 318 extending provisions of this Act,

           

Her Majesty may by Order in Council repeal any provisions of Part 2 or 4 of

FEPA as they have effect as part of the law of that territory.

Part 4

15

Miscellaneous

Dredging

9     (1)  

During the relevant transitional period, section 65 does not apply in respect

of the carrying on by a person of a dredging operation—

(a)   

which falls within item 9 in section 66(1) of this Act, but

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(b)   

which meets the conditions in sub-paragraph (2).

      (2)  

The conditions are that the dredging operation—

(a)   

does not fall within section 34 of the CPA,

(b)   

is not an activity for which a licence is required under Part 2 of FEPA,

and

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(c)   

is not excluded from this paragraph by virtue of an order under

section 315.

      (3)  

The references in sub-paragraph (2) to section 34 of the CPA and Part 2 of

FEPA are references to those provisions as they would apply but for this Act.

      (4)  

The “relevant transitional period”, in the case of any person and any

30

dredging operation,—

(a)   

is the period of one year beginning with the commencement date,

but

(b)   

if a marine licence which authorises the carrying on of the dredging

operation by the person comes into force (or has come into force) at

35

any time before the end of that period, the transitional period ends

with the coming into force of that licence.

Water Resources Act 1991

10         

The amendment made by section 82 of this Act applies to any application for

consent under section 109 of the Water Resources Act 1991 (c. 57) which is

40

submitted, but not determined or withdrawn, before the date on which that

section comes into force (as well as to any application submitted after that

date).

 
 

Marine and Coastal Access Bill [HL]
Schedule 9 — Licensing: transitional provision relating to Part 4
Part 4 — Miscellaneous

266

 

Electronic Communications Code: England and Wales

11    (1)  

In this paragraph—

(a)   

“the Code” means the Electronic Communications Code set out in

Schedule 2 to the Telecommunications Act 1984 (c. 12);

(b)   

“communications approval” means an approval under paragraph 11

5

of the Code;

(c)   

“transitional date” means the date on which the repeals made in

paragraph 11 of the Code by this Act take effect in relation to

England and Wales.

      (2)  

Subsections (3) to (5) apply to any communications approval (a “qualifying

10

approval”)—

(a)   

which is in effect immediately before the transitional date, and

(b)   

which relates to any works, falling within sub-paragraph (3) or (4) of

paragraph 11 of the Code, the execution of which on or after that date

is a licensable marine activity.

15

      (3)  

A qualifying approval has effect on and after the transitional date as if it

were a marine licence granted by the appropriate licensing authority in

relation to the licensable marine activity (a “deemed marine licence”).

      (4)  

If the qualifying approval was given for a specified period, the deemed

marine licence is to remain in force (subject to the provisions of this Part of

20

this Act) for so much of that period as falls after the transitional date.

      (5)  

If, by virtue of paragraph 11(5) of the Code, the qualifying approval was

given subject to a condition, the deemed marine licence has effect as if the

condition were a condition attached to the deemed marine licence.

      (6)  

Any application for a communications approval—

25

(a)   

which was submitted before the transitional date, and

(b)   

which relates to an activity which, on or after that date, is a licensable

marine activity,

           

has effect on and after that date as if it were an application for a marine

licence made to the appropriate licensing authority in relation to that

30

activity.

Electronic Communications Code: Scotland

12    (1)  

In this paragraph—

(a)   

“the Code” means the Electronic Communications Code set out in

Schedule 2 to the Telecommunications Act 1984;

35

(b)   

“communications approval” means an approval under paragraph 11

of the Code;

(c)   

“Scottish transitional date” means the date on which the repeals

made in paragraph 11 of the Code by this Act take effect in relation

to Scotland.

40

      (2)  

Sub-paragraphs (3) to (5) apply to any communications approval (a

“qualifying Scottish approval”)—

(a)   

which is in effect immediately before the Scottish transitional date,

and

 
 

Marine and Coastal Access Bill [HL]
Schedule 9 — Licensing: transitional provision relating to Part 4
Part 4 — Miscellaneous

267

 

(b)   

which relates to any works, falling within sub-paragraph (3) or (4) of

paragraph 11 of the Code, the execution of which on or after that date

needs a licence under section 5 or 6 of FEPA.

      (3)  

A qualifying Scottish approval has effect on and after the Scottish

transitional date as if it were a licence granted under section 5 or 6 (as the

5

case may be) of FEPA by the licensing authority in relation to the activity (a

“deemed FEPA licence”).

      (4)  

If the qualifying Scottish approval was given for a specified period, the

deemed FEPA licence is to remain in force (subject to the provisions of

FEPA) for so much of that period as falls after the Scottish transitional date.

10

      (5)  

If, by virtue of paragraph 11(5) of the Code, the qualifying Scottish approval

was given subject to a condition, the deemed FEPA licence has effect as if the

condition were a condition attached to the deemed FEPA licence.

      (6)  

Any application for a communications approval—

(a)   

which was submitted before the transitional date, and

15

(b)   

which relates to an activity which, on or after that date, needs a

licence under section 5 or 6 of FEPA,

           

has effect on and after that date as if it were an application for a licence under

the section in question made to the licensing authority in relation to that

activity.

20

Direction under section 58(1)(c) of the Government of Wales Act 2006

13    (1)  

To the extent that they relate to the abandonment of an offshore installation,

any functions exercisable under the provisions of this Part of this Act

specified in sub-paragraph (2) are exercisable in relation to Welsh controlled

waters by a Minister of the Crown only after consultation with the Welsh

25

Ministers.

      (2)  

The provisions are—

(a)   

sections 67(1) to (5), 69(1), (3) and (4), 71(1) to (3) and 72(1) to (3)

(marine licences), so far as relating to items 1 to 6 and 11 to 13 in

section 66(1) (licensable marine activities);

30

(b)   

section 106 (power to take remedial action).

      (3)  

In this paragraph—

“offshore installation” has the meaning given by section 44 of the

Petroleum Act 1998 (c. 17);

“Welsh controlled waters” has the same meaning as in paragraph 4 of

35

Schedule 3 to the Government of Wales Act 2006 (c. 32).

      (4)  

The provision made by the preceding provisions of this paragraph has effect

as if it were a direction made by Order in Council under section 58(1)(c) of

the Government of Wales Act 2006 made by virtue of paragraph 4(1)(c) of

Schedule 3 to that Act and may accordingly be amended, modified or

40

repealed by any such Order in Council.

 
 

Marine and Coastal Access Bill [HL]
Schedule 10 — Further provision about fixed monetary penalties under section 142

268

 

Schedule 10

Section 144

 

Further provision about fixed monetary penalties under section 142

Fixed monetary penalties: other sanctions

1     (1)  

Provision under section 142 must secure that, in a case where a notice of

intent referred to in section 143(2)(a) is served on a person—

5

(a)   

no criminal proceedings for the offence to which the notice relates

may be instituted against the person in respect of the act or omission

to which the notice relates before the end of the period in which the

person may discharge liability to the fixed monetary penalty

pursuant to section 143(2)(b), and

10

(b)   

if the person so discharges liability, the person may not at any time

be convicted of the offence to which the notice relates in relation to

that act or omission.

      (2)  

Provision under section 142 must also secure that, in a case where a fixed

monetary penalty is imposed on a person, that person may not at any time

15

be convicted of the offence in relation to which the penalty is imposed in

respect of the act or omission giving rise to the penalty.

Monetary penalties

2     (1)  

An order under section 142 which confers power on an enforcement

authority to require a person to pay a fixed monetary penalty may include

20

provision—

(a)   

for early payment discounts;

(b)   

for the payment of interest or other financial penalties for late

payment of the penalty, such interest or other financial penalties not

in total to exceed the amount of that penalty;

25

(c)   

for enforcement of the penalty.

      (2)  

Provision under sub-paragraph (1)(c) may include—

(a)   

provision for the enforcement authority to recover the penalty, and

any interest or other financial penalty for late payment, as a civil

debt;

30

(b)   

provision for the penalty, and any interest or other financial penalty

for late payment, to be recoverable, on the order of a court, as if

payable under a court order.

Appeals

3     (1)  

An order under section 142 may not provide for the making of an appeal

35

other than to—

(a)   

the First-tier Tribunal, or

(b)   

another tribunal created under an enactment.

      (2)  

In sub-paragraph (1)(b) “tribunal” does not include an ordinary court of law.

      (3)  

An order under section 142 which makes provision for an appeal in relation

40

to the imposition of any requirement or service of any notice may include—

(a)   

provision suspending the requirement or notice pending

determination of the appeal;

 
 

Marine and Coastal Access Bill [HL]
Schedule 10 — Further provision about fixed monetary penalties under section 142

269

 

(b)   

provision as to the powers of the tribunal to which the appeal is

made;

(c)   

provision as to how any sum payable in pursuance of a decision of

that person is to be recoverable.

      (4)  

The provision referred to in sub-paragraph (3)(b) includes provision

5

conferring on the tribunal to which the appeal is made power—

(a)   

to withdraw the requirement or notice;

(b)   

to confirm the requirement or notice;

(c)   

to take such steps as the enforcement authority could take in relation

to the act or omission giving rise to the requirement or notice;

10

(d)   

to remit the decision whether to confirm the requirement or notice,

or any matter relating to that decision, to the enforcement authority;

(e)   

to award costs.

Consultation

4     (1)  

Before making an order under section 142, the appropriate authority must

15

consult the following—

(a)   

the enforcement authority to which the order relates,

(b)   

such organisations as appear to the appropriate authority to be

representative of persons substantially affected by the proposals,

and

20

(c)   

such other persons as the appropriate authority considers

appropriate.

      (2)  

If, as a result of any consultation required by sub-paragraph (1), it appears

to the authority that it is appropriate substantially to change the whole or

any part of the proposals, the authority must undertake such further

25

consultation with respect to the changes as it considers appropriate.

      (3)  

If, before the day on which this Schedule comes into force, any consultation

was undertaken which, had it been undertaken after that day, would to any

extent have satisfied the requirements of this paragraph, those requirements

may to that extent be taken to have been satisfied.

30

Guidance as to use of fixed monetary penalties

5     (1)  

Where power is conferred on an enforcement authority under section 142 to

impose a fixed monetary penalty in relation to an offence, the provision

conferring the power must secure the results in sub-paragraph (2).

      (2)  

Those results are that—

35

(a)   

the enforcement authority must publish guidance about its use of the

penalty,

(b)   

the guidance must contain the relevant information,

(c)   

the enforcement authority must revise the guidance where

appropriate,

40

(d)   

the enforcement authority must consult such persons as the

provision may specify before publishing any guidance or revised

guidance, and

(e)   

the enforcement authority must have regard to the guidance or

revised guidance in exercising its functions.

45

 
 

Marine and Coastal Access Bill [HL]
Schedule 10 — Further provision about fixed monetary penalties under section 142

270

 

      (3)  

The relevant information referred to in sub-paragraph (2)(b) is information

as to—

(a)   

the circumstances in which the penalty is likely to be imposed,

(b)   

the circumstances in which it may not be imposed,

(c)   

the amount of the penalty,

5

(d)   

how liability for the penalty may be discharged and the effect of

discharge, and

(e)   

rights to make representations and objections and rights of appeal.

Guidance as to enforcement of offences

6     (1)  

Where power is conferred on an enforcement authority under section 142 to

10

impose a fixed monetary penalty in relation to an offence, the enforcement

authority must prepare and publish guidance about how the offence is

enforced.

      (2)  

The guidance must include guidance as to—

(a)   

the sanctions (including criminal sanctions) to which a person who

15

commits the offence may be liable,

(b)   

the action which the enforcement authority may take to enforce the

offence, whether by virtue of section 142 or otherwise, and

(c)   

the circumstances in which the enforcement authority is likely to

take any such action.

20

      (3)  

The enforcement authority may from time to time revise guidance published

by it under this paragraph and publish the revised guidance.

      (4)  

The enforcement authority must consult such persons as it considers

appropriate before publishing any guidance or revised guidance under this

paragraph.

25

Publication of enforcement action

7     (1)  

Where power is conferred on an enforcement authority under section 142 to

impose a fixed monetary penalty in relation to an offence, the provision

conferring the power must, subject to this paragraph, secure the result in

sub-paragraph (2).

30

      (2)  

That result is that the enforcement authority must from time to time publish

reports specifying—

(a)   

the cases in which a fixed monetary penalty has been imposed, and

(b)   

the cases in which liability to the penalty has been discharged

pursuant to section 143(2)(b).

35

      (3)  

In sub-paragraph (2)(a), the reference to cases in which a fixed monetary

penalty has been imposed does not include cases where a penalty has been

imposed but overturned on appeal.

      (4)  

The provision conferring the power need not secure the result in sub-

paragraph (2) in cases where the appropriate authority considers that it

40

would be inappropriate to do so.

 
 

Marine and Coastal Access Bill [HL]
Schedule 10 — Further provision about fixed monetary penalties under section 142

271

 

Payment of penalties into Consolidated Fund etc

8     (1)  

Where pursuant to any provision made under section 142 an enforcement

authority receives—

(a)   

a fixed monetary penalty, or

(b)   

any interest or other financial penalty for late payment of such a

5

penalty,

           

the authority must pay it into the relevant Fund.

      (2)  

In sub-paragraph (1) “the relevant Fund” means—

(a)   

in a case where the authority has functions only in relation to Wales,

the Welsh Consolidated Fund;

10

(b)   

in any other case, the Consolidated Fund.

Disclosure of information

9     (1)  

Information held by or on behalf of a person mentioned in sub-paragraph (2)

may be disclosed to an enforcement authority on whom powers are

conferred under section 142 where—

15

(a)   

the person has an enforcement function in relation to an offence, and

(b)   

the information is disclosed for the purpose of the exercise by the

enforcement authority of any powers conferred on it under that

section in relation to that offence.

      (2)  

The persons are—

20

(a)   

the Crown Prosecution Service,

(b)   

a member of a police force in England or Wales,

(c)   

a Procurator Fiscal,

(d)   

a constable of a police force in Scotland,

(e)   

the Public Prosecution Service for Northern Ireland, or

25

(f)   

a member of the Police Service of Northern Ireland.

      (3)  

It is immaterial for the purposes of sub-paragraph (1) whether the

information was obtained before or after the coming into force of this

paragraph.

      (4)  

A disclosure under this paragraph is not to be taken to breach any restriction

30

on the disclosure of information (however imposed).

      (5)  

Nothing in this paragraph authorises the making of a disclosure in

contravention of—

(a)   

the Data Protection Act 1998 (c. 29), or

(b)   

Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23).

35

      (6)  

This paragraph does not affect a power to disclose which exists apart from

this paragraph.

 
 

 
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