|
| |
|
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amended or re-enacted, as if that section had not been repealed.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. |
| |
| 15 |
| |
| |
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 |
| 20 |
(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, |
| |
| 25 |
(c) | is not excluded from this paragraph by virtue of an order under |
| |
| |
(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 |
| |
(a) | is the period of one year beginning with the commencement date, |
| |
| |
(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. |
| |
| |
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submitted, but not determined or withdrawn, before the date on which that |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 |
| |
| |
|
| |
|
| |
|
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 |
| |
(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 |
| |
| |
(2) | Subsections (3) to (5) apply to any communications approval (a “qualifying |
| 10 |
| |
(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 |
| |
| |
| 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 |
| |
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 |
| |
| |
(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 |
| |
| 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, |
| |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| 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 |
| |
| |
(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). |
| |
| |
“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. |
| |
|
| |
|
| |
|
| |
| |
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 |
| |
| |
(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. |
| |
| |
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 |
| |
(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 |
| |
| 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. |
| |
| |
3 (1) | An order under section 142 may not provide for the making of an appeal |
| 35 |
| |
(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; |
| |
|
| |
|
| |
|
(b) | provision as to the powers of the tribunal to which the appeal is |
| |
| |
(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; |
| |
| |
| |
4 (1) | Before making an order under section 142, the appropriate authority must |
| 15 |
| |
(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, |
| |
| 20 |
(c) | such other persons as the appropriate authority considers |
| |
| |
(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 |
| |
| |
(b) | the guidance must contain the relevant information, |
| |
(c) | the enforcement authority must revise the guidance where |
| |
| 40 |
(d) | the enforcement authority must consult such persons as the |
| |
provision may specify before publishing any guidance or revised |
| |
| |
(e) | the enforcement authority must have regard to the guidance or |
| |
revised guidance in exercising its functions. |
| 45 |
|
| |
|
| |
|
(3) | The relevant information referred to in sub-paragraph (2)(b) is information |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| 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 |
| |
| 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 |
| |
| 30 |
(2) | That result is that the enforcement authority must from time to time publish |
| |
| |
(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. |
| |
|
| |
|
| |
|
Payment of penalties into Consolidated Fund etc |
| |
8 (1) | Where pursuant to any provision made under section 142 an enforcement |
| |
| |
(a) | a fixed monetary penalty, or |
| |
(b) | any interest or other financial penalty for late payment of such a |
| 5 |
| |
| 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. |
| |
| 20 |
(a) | the Crown Prosecution Service, |
| |
(b) | a member of a police force in England or Wales, |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
|
| |
|