Marine and Coastal Access Bill [HL]

House of Lords

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

Marine and Coastal Access Bill [HL]
Part 8 — Enforcement
Chapter 5 — Common enforcement provisions
168

Liability of enforcement officers
281
Liability of enforcement officers etc
(1)
A person within subsection (2) is not to be liable in any civil or criminal
proceedings for anything done (or omitted to be done) in, or in connection
with, the discharge or purported discharge of the person’s functions under this
5
Act.
(2)
The persons are—
(a)
any enforcement officer;
(b)
any person assisting an enforcement officer by virtue of section 250.
(3)
Subsection (1) does not apply—
10
(a)
if the act or omission is shown to have been in bad faith,
(b)
if there were no reasonable grounds for the act or omission, or
(c)
so as to prevent an award of damages in respect of the act or omission
on the ground that it was unlawful as a result of section 6(1) of the
Human Rights Act 1998 (c. 42) (acts of public authorities incompatible
15
with Convention rights).
Offences in relation to enforcement officers
282
Offences in relation to enforcement officers
(1)
A person is guilty of an offence if—
(a)
the person fails without reasonable excuse to comply with a
20
requirement reasonably made, or a direction reasonably given, by an
enforcement officer in the exercise of any power conferred by this Act,
or
(b)
the person prevents any other person from complying with any such
requirement or direction.
25
(2)
A person is not guilty of an offence by reason of a failure to comply with a
requirement made under subsection (1) of section 247 if the person complies
with subsection (2) of that section.
(3)
A person who provides information in pursuance of a requirement reasonably
made by an enforcement officer in the exercise of the power conferred by
30
section 253 is guilty of an offence if—
(a)
the information is false in a material particular, and the person knows
that it is or is reckless as to whether it is, or
(b)
the person intentionally fails to disclose any material particular.
(4)
A person who intentionally obstructs an enforcement officer in the
35
performance of any of the officer’s functions under this Act is guilty of an
offence.
(5)
A person who assaults an enforcement officer in the performance of any of the
officer’s functions under this Act is guilty of an offence.
(6)
A person who, with intent to deceive, falsely pretends to be an enforcement
40
officer is guilty of an offence.
(7)
A person who is guilty of an offence under subsection (1), (3) or (6) is liable—

Marine and Coastal Access Bill [HL]
Part 8 — Enforcement
Chapter 6 — Miscellaneous and supplementary
169

(a)
on summary conviction, to a fine not exceeding the statutory
maximum;
(b)
on conviction on indictment, to a fine.
(8)
A person who is guilty of an offence under subsection (4) is liable on summary
conviction to a fine not exceeding £20,000.
5
(9)
A person who is guilty of an offence under subsection (5) is liable on summary
conviction to a fine not exceeding £50,000.
(10)
Proceedings for an offence under this section may be taken, and the offence
may for all incidental purposes be treated as having been committed, in any
part of the United Kingdom.
10
(11)
In this section any reference to an enforcement officer includes a reference to a
person assisting an enforcement officer by virtue of section 250.
Chapter 6
Miscellaneous and supplementary
Enforcement of Community rules
15
283
Enforcement of Community rules
(1)
Section 30 of the Fisheries Act 1981 (c. 29) (enforcement of Community rules)
is amended as follows.
(2)
In subsection (1)—
(a)
after “enforceable Community restrictions” insert “, and enforceable
20
Community obligations,”;
(b)
for paragraph (a) substitute—
“(a)
if any fishing boat within British fishery limits—
(i)
fishes in contravention of any such restriction, or
(ii)
fails to comply with any such obligation,
25

the master, the owner and the charterer (if any) are each
guilty of an offence;”;
(c)
after paragraph (a) insert—
“(aa)
if any English or Welsh fishing boat outside British
fishery limits—
30
(i)
fishes in contravention of any such restriction, or
(ii)
fails to comply with any such obligation,

the master, the owner and the charterer (if any) are each
guilty of an offence;
(ab)
if any person in England or Wales—
35
(i)
fishes in contravention of any such restriction, or
(ii)
fails to comply with any such obligation,

that person is guilty of an offence;”;
(d)
in paragraph (b), for “such offences” substitute “offences under
paragraph (a), (aa) or (ab) of this subsection”;
40
(e)
in paragraph (c), after “restrictions” insert “and obligations”.

Marine and Coastal Access Bill [HL]
Part 8 — Enforcement
Chapter 6 — Miscellaneous and supplementary
170

(3)
After subsection (2) insert—
“(2ZA)
The provision that may be made by an order made under subsection (2)
by the Secretary of State includes—
(a)
provision applying to English or Welsh fishing boats outside
British fishery limits;
5
(b)
provision applying to persons of a specified description on
board any fishing boat, other than a Scottish or Northern
Ireland fishing boat, outside British fishery limits.

In this subsection “specified” means specified in the order.”
(4)
After subsection (2A) insert—
10
“(2B)
Her Majesty may by Order in Council provide for subsection (1) or (2)
above to apply, with or without modifications, to any fishing boat
within subsection (2C) below that is outside British fishery limits as it
applies to any English or Welsh fishing boat outside those limits.
(2C)
A fishing boat is within this subsection if—
15
(a)
it is registered under the law of the Isle of Man or any of the
Channel Islands; or
(b)
it is wholly owned by persons qualified for the purposes of the
law relating to the registration of vessels in the Isle of Man or
any of the Channel Islands to own fishing vessels which are
20
entitled to be registered as such under that law.”
(5)
In subsection (3), insert at the appropriate places the following definitions—
““English fishing boat” means—
(a)
a fishing boat which is registered in the United
Kingdom under Part 2 of the Merchant Shipping Act
25
1995 and whose entry in the register specifies a port in
England as the port to which the boat is to be treated as
belonging; or
(b)
a fishing boat which is wholly owned by persons
qualified to own British ships for the purposes of that
30
Part, other than—
(i)
a Welsh, Scottish or Northern Ireland fishing
boat,
(ii)
a fishing boat within subsection (2C) above, or
(iii)
a fishing boat registered in any country or
35
territory other than the United Kingdom, the Isle
of Man or any of the Channel Islands;”;
““Northern Ireland fishing boat” means a fishing boat which is
registered in the United Kingdom under Part 2 of the Merchant
Shipping Act 1995 and whose entry in the register specifies a
40
port in Northern Ireland as the port to which the boat is to be
treated as belonging;”;
““Scottish fishing boat” means a fishing boat which is registered in
the United Kingdom under Part 2 of that Act and whose entry
in the register specifies a port in Scotland as the port to which
45
the boat is to be treated as belonging;”;
““Welsh fishing boat” means a fishing boat which is registered in
the United Kingdom under Part 2 of that Act and whose entry

Marine and Coastal Access Bill [HL]
Part 8 — Enforcement
Chapter 6 — Miscellaneous and supplementary
171

in the register specifies a port in Wales as the port to which the
boat is to be treated as belonging.”
Administrative penalty schemes
284
Administrative penalty schemes
(1)
The appropriate national authority for any area may by order make provision
5
to confer on any enforcement authority for that area the power to issue penalty
notices for offences within subsection (2).
(2)
The offences referred to in subsection (1) are offences relating to sea fishing,
other than—
(a)
an offence under section 30 of the Fisheries Act 1981 (c. 29) or any order
10
made under that section;
(b)
an offence under regulations made under section 2(2) of the European
Communities Act 1972 (c. 68).
(3)
A penalty notice is a notice offering the opportunity, by payment of a specified
sum of money, to discharge any liability to be convicted of the offence to which
15
the notice relates.
(4)
The provision that may be made by an order under subsection (1) includes—
(a)
provision prescribing the offences in relation to which penalty notices
may be issued;
(b)
provision as to circumstances in which penalty notices may be issued;
20
(c)
provision as to the content and form of penalty notices;
(d)
provision as to how the amount of any penalty that may be specified in
a penalty notice is to be determined;
(e)
provision for the issuing of guidance by the appropriate national
authority as to matters to be taken into account when making such a
25
determination;
(f)
provision prescribing the minimum or maximum amount of any
penalty;
(g)
provision about the payment of penalties, including provision as to the
period within which any penalty must be paid;
30
(h)
provision for and in connection with the withdrawal of penalty notices;
(i)
provision as to circumstances in which proceedings for an offence may
be commenced after the payment of a penalty in relation to that offence.
(5)
An order under subsection (1) may apply in relation to—
(a)
England;
35
(b)
Wales;
(c)
any vessels in waters within British fishery limits, other than—
(i)
the Scottish zone,
(ii)
the Northern Ireland zone, and
(iii)
the territorial sea adjacent to the Isle of Man, Jersey and
40
Guernsey;
(d)
any English or Welsh fishing boats, wherever they may be.
(6)
Her Majesty may by Order in Council provide for this section to apply, with or
without modifications, to any fishing boat within subsection (7) that is outside

Marine and Coastal Access Bill [HL]
Part 8 — Enforcement
Chapter 6 — Miscellaneous and supplementary
172

British fishery limits as it applies to any English or Welsh fishing boat outside
those limits.
(7)
A fishing boat is within this subsection if—
(a)
it is registered under the law of the Isle of Man or any of the Channel
Islands, or
5
(b)
it is wholly owned by persons qualified for the purposes of the law
relating to the registration of vessels in the Isle of Man or any of the
Channel Islands to own fishing vessels which are entitled to be
registered as such under that law.
(8)
In this section—
10
“appropriate national authority” means—
(a)
in relation to Wales or vessels within the Welsh zone, the Welsh
Ministers;
(b)
in relation to England or vessels outside the Welsh zone, the
Secretary of State;
15
“enforcement authority” means, in relation to any area, any authority
which has a function (whether or not statutory) of taking any action
with a view to or in connection with the imposition of any sanction,
criminal or otherwise, in a case where an offence within subsection (2)
is committed in that area;
20
“England” includes the English inshore region;
“English fishing boat” means—
(a)
a fishing boat which is registered in the United Kingdom under
Part 2 of the Merchant Shipping Act 1995 (c. 21) and whose
entry in the register specifies a port in England as the port to
25
which the boat is to be treated as belonging, or
(b)
a fishing boat which is wholly owned by persons qualified to
own British ships for the purposes of that Part, other than—
(i)
a Welsh, Scottish or Northern Ireland fishing boat,
(ii)
a fishing boat within subsection (7) above, or
30
(iii)
a fishing boat registered in any country or territory other
than the United Kingdom, the Isle of Man or any of the
Channel Islands;
“fishing boat” means any vessel that is being used for fishing or for any
activity relating to fishing;
35
“Northern Ireland fishing boat” means a fishing boat which is registered
in the United Kingdom under Part 2 of the Merchant Shipping Act 1995
and whose entry in the register specifies a port in Northern Ireland as
the port to which the boat is to be treated as belonging;
“Scottish fishing boat” means a fishing boat which is registered in the
40
United Kingdom under Part 2 of the Merchant Shipping Act 1995 and
whose entry in the register specifies a port in Scotland as the port to
which the boat is to be treated as belonging;
“sea fishing” includes fishing for or taking shellfish;
“shellfish” includes crustaceans and molluscs of any kind;
45
“vessel” includes any ship or boat or any description of vessel used in
navigation;
“Wales” includes the Welsh inshore region;
“Welsh fishing boat” means a fishing boat which is registered in the
United Kingdom under Part 2 of the Merchant Shipping Act 1995 and
50

Marine and Coastal Access Bill [HL]
Part 9 — Coastal access
173

whose entry in the register specifies a port in Wales as the port to which
the boat is to be treated as belonging.
Crown application
285
Application to the Crown
(1)
The provisions of Chapters 1 to 5 of this Part are binding on the Crown.
5

This is subject to subsection (2).
(2)
No contravention by the Crown of any provision of Chapter 5 is to make the
Crown criminally liable; but the High Court or, in Scotland, the Court of
Session may declare unlawful any act or omission of the Crown which
constitutes such a contravention.
10
(3)
Despite subsection (2), the provisions of Chapters 1 to 5 of this Part apply to
persons in the public service of the Crown as they apply to other persons.
Part 9
Coastal access
The coastal access duty
15
286
The coastal access duty
(1)
Natural England and the Secretary of State must exercise the relevant functions
in order to secure the following objectives.
(2)
The first objective is that there is a route for the whole of the English coast
which—
20
(a)
consists of one or more long-distance routes along which the public are
enabled to make recreational journeys on foot or by ferry, and
(b)
(except to the extent that it is completed by ferry) passes over land
which is accessible to the public.
(3)
The second objective is that, in association with that route (“the English coastal
25
route”), a margin of land along the length of the English coast is accessible to
the public for the purposes of its enjoyment by them in conjunction with that
route or otherwise, except to the extent that the margin of land is relevant
excepted land.
(4)
The duty imposed on Natural England and the Secretary of State by subsection
30
(1)—
(a)
is referred to in this Part as the coastal access duty, and
(b)
is to be discharged by them in such stages and within such period as
appear to them to be appropriate.
(5)
For the purposes of this section, land is accessible to the public if it is—
35
(a)
land which is available to the public for the purposes of open-air
recreation, by virtue of provision made under section 3A of the CROW
Act and subject to any exclusions or restrictions imposed by or under
Part 1 of that Act (access to the countryside),

Marine and Coastal Access Bill [HL]
Part 9 — Coastal access
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(b)
land in England which, for the purposes of section 1(1) of that Act, is
treated by section 15(1) of that Act as being accessible to the public
apart from that Act, or
(c)
excepted land in England which is accessible to the public by virtue of
any enactment or rule of law (other than a military lands byelaw).
5
(6)
Nothing in this section requires Natural England or the Secretary of State, in
discharging the coastal access duty so far as it relates to the objective in
subsection (3), to exercise functions so as to secure that any land becomes land
within subsection (5)(b) or (c).
(7)
For the purposes of the coastal access duty, a person is to be regarded as
10
enabled to make a journey by ferry even if that journey can be made at certain
times, or during certain periods, only.
(8)
In this section—
“the 1949 Act” means the National Parks and Access to the Countryside
Act 1949 (c. 97);
15
“the CROW Act” means the Countryside and Rights of Way Act 2000
(c. 37);
“excepted land” has the same meaning as in Part 1 of the CROW Act;
“military lands byelaw” means a byelaw under section 14 of the Military
Lands Act 1892 (c. 43) or section 2 of the Military Lands Act 1900 (c. 56);
20
“relevant excepted land” means excepted land other than land within
subsection (5)(c);
“the relevant functions” means—
(a)
in relation to Natural England—
(i)
its functions under this Part, Part 4 of the 1949 Act (long-
25
distance routes) and Part 1 of the CROW Act (access to
the countryside), and
(ii)
such of its other functions as it considers it appropriate
to exercise for the purpose of securing the objectives in
subsections (2) and (3), and
30
(b)
in relation to the Secretary of State—
(i)
the Secretary of State’s functions under this Part, Part 4
of the 1949 Act and Part 1 of the CROW Act, and
(ii)
such of the Secretary of State’s other functions as the
Secretary of State considers it appropriate to exercise for
35
the purpose of securing the objectives in subsections (2)
and (3).
287
General provision about the coastal access duty
(1)
In discharging the coastal access duty, Natural England and the Secretary of
State must comply with the requirements of this section.
40
(2)
They must have regard to—
(a)
the safety and convenience of those using the English coastal route,
(b)
the desirability of that route adhering to the periphery of the coast and
providing views of the sea, and
(c)
the desirability of ensuring that so far as reasonably practicable
45
interruptions to that route are kept to a minimum.