Marine and Coastal Access Bill [HL]

House of Commons

Session 2008 - 09
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Marine and Coastal Access Bill [HL]

Marine and Coastal Access Bill [HL]
Part 1 — The Marine Management Organisation
Chapter 2 — Transfer of functions to the MMO
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(b)
section 36A (making declarations extinguishing etc public rights of
navigation), and
(c)
section 36B (duties in relation to navigation),

so far as relating to any generating station that meets the requirements of
subsections (3) and (4).
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(3)
The generating station must be in waters which are subject to regulation under
section 95 of the Energy Act 2004 (c. 20), other than—
(a)
any area of Scottish waters, or
(b)
any area of waters in a Scottish part of a Renewable Energy Zone.
(4)
The generating station must have a capacity such that the construction or
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extension of the generating station would not be a nationally significant
infrastructure project (within the meaning given by sections 14 and 15 of the
Planning Act 2008 (c. 29)).
(5)
In accordance with subsection (1), any reference in the following provisions to
the Secretary of State is to be read, so far as relating to the exercise of an
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electricity consent function of the Secretary of State, as a reference to the
MMO—
(a)
Schedule 8 to the Electricity Act (procedure), except paragraphs 1(3),
2(3) and 3(1), and the modifications of paragraph 4 made by paragraph
7A(5)(a)(ii) and (b), of that Schedule;
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(b)
paragraph 1(2) of Schedule 9 to that Act (preservation of amenity);
(c)
regulations 71 to 74 of the Conservation (Natural Habitats, &c)
Regulations 1994 (S.I. 1994/2716) (adaptation of planning and other
controls);
(d)
the Electricity Works (Environmental Impact Assessment) (England
25
and Wales) Regulations 2000 (S.I. 2000/1927).
(6)
Paragraph 1(4) of Schedule 8 to the Electricity Act (payment of sums into
Consolidated Fund) does not apply to sums received by the MMO by virtue of
this section.
(7)
In consequence of the provision made by this section, insert the subsection set
30
out in subsection (8)—
(a)
into section 36 of the Electricity Act, after subsection (1B) as subsection
(1C), and
(b)
into each of sections 36A and 36B of that Act, after subsection (1) as
subsection (1A).
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(8)
The subsection is—
“( )
This section is subject to section 12 of the Marine and Coastal Access
Act 2009 (which transfers certain functions of the Secretary of State to
the Marine Management Organisation).”.
(9)
In this section “the Electricity Act” means the Electricity Act 1989 (c. 29).
40
(10)
In this section, the following expressions have the same meaning as in section
95 of the Energy Act 2004—
“Renewable Energy Zone”;
“Scottish part”, in relation to a Renewable Energy Zone;
“Scottish waters”.
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Marine and Coastal Access Bill [HL]
Part 1 — The Marine Management Organisation
Chapter 2 — Transfer of functions to the MMO
9

13
Safety zones: functions under section 95 of the Energy Act 2004
(1)
The functions of the Secretary of State specified in subsection (2) are
transferred to the MMO.
(2)
Those functions are any functions of the Secretary of State under section 95 of
the Energy Act 2004 (c. 20) (safety zones around renewable energy
5
installations), so far as relating to any renewable energy installation that meets
the requirements of subsections (3) and (4).
(3)
The renewable energy installation must be in waters subject to regulation
under section 95 of the Energy Act 2004, other than—
(a)
any area of Scottish waters, or
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(b)
any area of waters in a Scottish part of a Renewable Energy Zone.
(4)
The renewable energy installation must have a capacity such that the
construction or extension of the installation would not be a nationally
significant infrastructure project (within the meaning given by sections 14 and
15 of the Planning Act 2008 (c. 29)).
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(5)
In accordance with subsection (1), any reference in the following provisions to
the Secretary of State is to be read, so far as relating to the exercise of any
function falling within subsection (2), as a reference to the MMO—
(a)
section 95 of the Energy Act 2004,
(b)
Schedule 16 to that Act (procedure for declaring safety zones),
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but this is subject to the exceptions in subsection (6).
(6)
Those exceptions are the following provisions of Schedule 16 to the Energy Act
2004 (which relate to regulations made by the Secretary of State)—
paragraph 3(2)(b);
in paragraph 4(1), the words preceding paragraph (a);
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paragraph 4(1)(b);
paragraph 4(2);
paragraph 6(2)(b) and (6).
(7)
In section 95 of the Energy Act 2004, after subsection (1) insert—
“(1A)
This section is subject to section 13 of the Marine and Coastal Access
30
Act 2009 (which transfers certain functions of the Secretary of State to
the Marine Management Organisation).”.
(8)
In this section, the following expressions have the same meaning as in section
95 of the Energy Act 2004—
“renewable energy installation”;
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“Renewable Energy Zone”;
“Scottish part”, in relation to a Renewable Energy Zone;
“Scottish waters”.

Marine and Coastal Access Bill [HL]
Part 1 — The Marine Management Organisation
Chapter 3 — Agreements involving the MMO for the exercise of functions
10

Chapter 3
Agreements involving the MMO for the exercise of functions
Powers to enter into agreements
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Agreements between the Secretary of State and the MMO
(1)
The Secretary of State may enter into an agreement with the MMO authorising
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the MMO to perform any marine function of the Secretary of State—
(a)
either in relation to the UK marine area or in relation to specified parts
of that area;
(b)
subject to paragraph (a), either generally or in specified cases.

“Specified” means specified in the agreement.
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(2)
For the purposes of this Chapter, a “marine function” is any function which
relates to, or whose exercise is capable of affecting, the whole or any part of the
UK marine area.
(3)
For the purposes of this Chapter, any reference to a marine function of the
Secretary of State includes a reference to a marine function exercisable by a
15
person—
(a)
authorised or appointed by the Secretary of State, or
(b)
employed in the civil service of the State (but see subsection (4)).
(4)
For the purposes of subsection (3)(b), a person is not to be regarded as
employed in the civil service of the State to the extent that the person is any of
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the following—
(a)
the holder of an office in the Scottish Administration which is not a
ministerial office (within the meaning of section 51 of the Scotland Act
1998 (c. 46));
(b)
a member of the staff of the Scottish Administration (within the
25
meaning of that section);
(c)
a member of the staff of the Welsh Assembly Government (within the
meaning of section 52 of the Government of Wales Act 2006 (c. 32)).
(5)
An agreement under this section—
(a)
may be cancelled by the Secretary of State at any time, and
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(b)
does not prevent the Secretary of State from performing a function to
which the agreement relates.
(6)
This section is subject to sections 17 and 18 (non-delegable functions and
maximum duration of agreement).
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Agreements between the MMO and eligible bodies
35
(1)
The MMO may, with the approval of the Secretary of State, enter into an
agreement with an eligible body authorising the eligible body to perform any
function of the MMO—
(a)
either in relation to the UK marine area or in relation to specified parts
of that area;
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(b)
subject to paragraph (a), either generally or in specified cases.

“Specified” means specified in the agreement.

Marine and Coastal Access Bill [HL]
Part 1 — The Marine Management Organisation
Chapter 3 — Agreements involving the MMO for the exercise of functions
11

(2)
For the purposes of this Chapter, any reference to a function of the MMO
includes a reference to a function exercisable by a person authorised,
appointed or employed by the MMO.
(3)
The Secretary of State’s approval may be given—
(a)
in relation to a particular agreement or in relation to a description of
5
agreements;
(b)
unconditionally or subject to conditions specified in the approval.
(4)
Subject to subsection (6), the Secretary of State—
(a)
must review an agreement under this section no later than the end of
the period of 5 years beginning with the date on which the agreement
10
was entered into or was last reviewed by the Secretary of State, and
(b)
if it appears appropriate to do so in the light of the review, may cancel
the agreement.
(5)
Subject to subsection (6), an agreement under this section may not be varied
except—
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(a)
by agreement between the MMO and the eligible body, and
(b)
with the approval of the Secretary of State.
(6)
An approval given under subsection (1) may provide that subsection (4) or (5)
does not apply (or that both of them do not apply).
(7)
This section is subject to sections 17 and 18 (non-delegable functions and
20
maximum duration of agreement).
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Eligible bodies
(1)
In this Chapter “eligible body” means any body in the following list—
(a)
the Environment Agency;
(b)
Natural England;
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(c)
any inshore fisheries and conservation authority;
(d)
any local fisheries committee constituted by an order made, or having
effect as if made, under section 1 of the Sea Fisheries Regulation Act
1966 (c. 38);
(e)
any harbour authority.
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(2)
The Secretary of State may by order amend subsection (1) so as to—
(a)
add any body or description of body to the list, or
(b)
remove any body or description of body from it.
(3)
The Secretary of State may not exercise the power conferred by subsection
(2)(a) unless satisfied that at least one of the purposes or functions of the body,
35
or bodies of the description, to be added to the list is, or is related to or
connected with, a marine function.
(4)
A body to be added to the list need not be a public body.
17
Non-delegable functions
(1)
An agreement may not authorise a body to which this section applies to
40
perform a non-delegable function.
(2)
The bodies are—

Marine and Coastal Access Bill [HL]
Part 1 — The Marine Management Organisation
Chapter 3 — Agreements involving the MMO for the exercise of functions
12

(a)
the MMO;
(b)
an eligible body.
(3)
The non-delegable functions are—
(a)
any function whose performance by the body would be incompatible
with the purposes for which the body was established;
5
(b)
any power of a Minister of the Crown to make or terminate
appointments, other than appointments of persons for the purpose of
enforcing any legislation other than this Act or subordinate legislation
made under it;
(c)
any power of a Minister of the Crown to lay reports or accounts;
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(d)
any power to make subordinate legislation, give directions or guidance
or issue codes of practice (or to vary or revoke any of those things);
(e)
any power to fix fees or charges, other than a power prescribed for the
purposes of this section by an order made by the Secretary of State;
(f)
any function of an accounting officer acting in that capacity;
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(g)
except in relation to an agreement authorising a public body to perform
functions—
(i)
any power to enter, inspect, take samples or seize anything, and
(ii)
any other power exercisable in connection with suspected
offences;
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(h)
any function of the Secretary of State under the Water Industry Act
1991 (c. 56) or under any subordinate legislation made under that Act.
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Maximum duration of agreement
The maximum period for which an agreement may authorise the MMO or an
eligible body to perform a function is 20 years.
25
Supplementary provisions
19
Particular powers
(1)
The fact that a function is conferred by or under this Act or an Act passed after
the passing of this Act does not prevent it from being the subject of an
agreement.
30
(2)
In subsection (3)—
“A” means the Secretary of State or the MMO;
“B” means—
(a)
the MMO, if A is the Secretary of State;
(b)
an eligible body, if A is the MMO.
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(3)
A may, under an agreement, authorise B to perform a function even though,
under the enactment or subordinate legislation conferring that function on
A,—
(a)
the function is conferred on A by reference to specified circumstances
or cases and the same type of function is conferred on B in different
40
specified circumstances or cases,
(b)
the function is exercisable by A and B jointly,
(c)
B is required to be, or may be, consulted about the function (whether
generally or in specified circumstances), or

Marine and Coastal Access Bill [HL]
Part 1 — The Marine Management Organisation
Chapter 3 — Agreements involving the MMO for the exercise of functions
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(d)
B is required to consent to the exercise of the function (whether
generally or in specified circumstances).
(4)
An agreement may provide—
(a)
for the performance of a function to be subject to the fulfilment of
conditions;
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(b)
for payments to be made in respect of the performance of the function.
(5)
In the following provisions of this section “relevant body” means—
(a)
the MMO;
(b)
any eligible body.
(6)
A relevant body which is authorised under an agreement to perform a
10
function—
(a)
is to be treated as having power to do so;
(b)
may, unless (or except to the extent that) the agreement provides for
this paragraph not to apply,—
(i)
authorise a committee, sub-committee, member, officer or
15
employee of the body to perform the function on its behalf;
(ii)
form a body corporate and authorise that body to perform the
function on its behalf.
(7)
Where the eligible body is a harbour authority which is a local authority—
(a)
subsection (6)(a) is subject to section 20(5), and
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(b)
section 20 applies in place of subsection (6)(b).
(8)
Subject to subsection (6)(b) and section 20, a relevant body which is authorised
under an agreement to perform a function may not authorise any other body
or person to perform that function.
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Agreements with certain harbour authorities
25
(1)
This section applies where a harbour authority which is a local authority is
authorised under an agreement to perform a function.
(2)
Subject to subsections (5) to (7), the function that the local authority is
authorised to perform is to be treated as a function of the local authority for the
purposes of—
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(a)
any power of a local authority to arrange for the discharge of the
function jointly with another local authority (but only to the extent that
each of the authorities is a harbour authority),
(b)
any power of a local authority to arrange for the discharge of the
function by any person mentioned in subsection (3), and
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(c)
any power of a person mentioned in subsection (3) to arrange for the
discharge of a function by any other person mentioned there.
(3)
The persons are any committee, sub-committee, member, officer or employee
of the local authority.
(4)
In subsection (3)—
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(a)
“committee” includes a joint committee of two or more local authorities
which are harbour authorities and which include the local authority
mentioned in subsection (1);
(b)
“sub-committee” includes a sub-committee of any such joint
committee;
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Marine and Coastal Access Bill [HL]
Part 1 — The Marine Management Organisation
Chapter 3 — Agreements involving the MMO for the exercise of functions
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(c)
the reference to a member, officer or employee of the local authority
includes a reference to a member, officer or employee of any local
authority, or any of the local authorities, with which the local authority
may have entered into arrangements for the joint discharge of functions
which consist of or include functions which the local authority is
5
authorised under an agreement to perform.
(5)
If the local authority is operating executive    arrangements, the function is to be
treated as a function of the local authority for the purposes of section 13 of the
Local Government Act 2000 (c. 22) (provision for determining which functions
of the authority are to be the responsibility of the executive and which are not).
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(6)
If, in a case where the local authority is operating executive arrangements, the
function is to any extent the responsibility of the executive of the local
authority, then to that extent—
(a)
subsection (2) does not apply, but
(b)
the provisions mentioned in subsection (7) have effect.
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(7)
The provisions are—
(a)
sections 14 to 16 of the Local Government Act 2000 (discharge of
functions in the case of different types of executive arrangements);
(b)
any regulations under section 17 or 18 of that Act (discharge of
functions by executive of a type prescribed under section 11(5) of that
20
Act, and discharge of functions by area committees);
(c)
so far as relating to arrangements (including the appointment of joint
committees) under section 101(5) of the Local Government Act 1972
(c. 70) which involve another local authority which is a harbour
authority, any regulations under section 20 of the Local Government
25
Act 2000 (joint exercise of functions).
(8)
“Executive arrangements” and “executive” have the same meaning as in Part 2
of the Local Government Act 2000.
(9)
An agreement may provide that the provisions of subsection (2) or those
mentioned in subsection (7) do not apply (or do not apply to a specified extent).
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21
Supplementary provisions with respect to agreements
(1)
An agreement, and any approval given by the Secretary of State under section
15, must be in writing.
(2)
The Secretary of State must arrange for a copy of an agreement to be published
in a way that the Secretary of State thinks is suitable for bringing it to the
35
attention of persons likely to be affected by it.
(3)
No power of a Minister of the Crown under any enactment to give directions
to a statutory body extends to giving a direction—
(a)
requiring it to enter into an agreement;
(b)
prohibiting it from entering into an agreement;
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(c)
requiring it to include, or prohibiting it from including, particular
terms in an agreement;
(d)
requiring it to negotiate, or prohibiting it from negotiating, a variation
or termination of an agreement.
(4)
Schedule 15 to the Deregulation and Contracting Out Act 1994 (c. 40)
45
(restrictions on disclosure of information) applies in relation to an