|
| |
|
| |
90 | Fixed monetary penalties |
| |
(1) | The appropriate licensing authority for any area may by order make provision |
| |
to confer on the appropriate enforcement authority for that area the power by |
| |
notice to impose on a person in relation to an offence under this Part a fixed |
| 5 |
| |
(2) | Provision under this section may only confer such a power in relation to a case |
| |
where the enforcement authority is satisfied beyond reasonable doubt that the |
| |
person has committed the offence. |
| |
(3) | For the purposes of this Part a “fixed monetary penalty” is a requirement to pay |
| 10 |
to the enforcement authority a penalty of a prescribed amount. |
| |
(4) | The amount of the fixed monetary penalty that may be imposed in relation to |
| |
an offence may not exceed the maximum amount of the fine that may be |
| |
imposed on summary conviction for that offence. |
| |
(5) | In this section “prescribed” means prescribed in an order made under this |
| 15 |
| |
91 | Fixed monetary penalties: procedure |
| |
(1) | Provision under section 90 must secure the results in subsection (2). |
| |
(2) | Those results are that— |
| |
(a) | where the enforcement authority proposes to impose a fixed monetary |
| 20 |
penalty on a person, the authority must serve on that person a notice of |
| |
what is proposed (a “notice of intent”) which complies with subsection |
| |
| |
(b) | the notice of intent also offers the person the opportunity to discharge |
| |
the person’s liability for the fixed monetary penalty by payment of a |
| 25 |
prescribed sum (which must be less than or equal to the amount of the |
| |
| |
(c) | if the person does not so discharge liability— |
| |
(i) | the person may make written representations and objections to |
| |
the enforcement authority in relation to the proposed |
| 30 |
imposition of the fixed monetary penalty, and |
| |
(ii) | the enforcement authority must at the end of the period for |
| |
making representations and objections decide whether to |
| |
impose the fixed monetary penalty, |
| |
(d) | where the enforcement authority decides to impose the fixed monetary |
| 35 |
penalty, the notice imposing it (“the final notice”) complies with |
| |
| |
(e) | the person on whom a fixed monetary penalty is imposed may appeal |
| |
against the decision to impose it. |
| |
(3) | To comply with this subsection the notice of intent must include information |
| 40 |
| |
(a) | the grounds for the proposal to impose the fixed monetary penalty, |
| |
(b) | the effect of payment of the sum referred to in subsection (2)(b), |
| |
(c) | the right to make representations and objections, |
| |
|
| |
|
| |
|
(d) | the circumstances in which the enforcement authority may not impose |
| |
the fixed monetary penalty, |
| |
(e) | the period within which liability to the fixed monetary penalty may be |
| |
discharged, which must not exceed the period of 28 days beginning |
| |
with the day on which the notice of intent was received, and |
| 5 |
(f) | the period within which representations and objections may be made, |
| |
which must not exceed the period of 28 days beginning with the day on |
| |
which the notice of intent was received. |
| |
(4) | Provision pursuant to subsection (2)(c)(ii)— |
| |
(a) | must secure that the enforcement authority may not decide to impose a |
| 10 |
fixed monetary penalty on a person where the authority is satisfied that |
| |
the person would not, by reason of any defence, be liable to be |
| |
convicted of the offence in relation to which it was imposed, and |
| |
(b) | may include provision for other circumstances in which the |
| |
enforcement authority may not decide to impose a fixed monetary |
| 15 |
| |
(5) | To comply with this subsection the final notice referred to in subsection (2)(d) |
| |
must include information as to— |
| |
(a) | the grounds for imposing the penalty, |
| |
(b) | how payment may be made, |
| 20 |
(c) | the period within which payment must be made, |
| |
(d) | any early payment discounts or late payment penalties, |
| |
(e) | rights of appeal, and |
| |
(f) | the consequences of non-payment. |
| |
(6) | Provision pursuant to subsection (2)(e) must secure that the grounds on which |
| 25 |
a person may appeal against a decision of the enforcement authority include |
| |
| |
(a) | that the decision was based on an error of fact; |
| |
(b) | that the decision was wrong in law; |
| |
(c) | that the decision was unreasonable. |
| 30 |
(7) | In this section “prescribed” means prescribed in an order made under section |
| |
| |
92 | Variable monetary penalties |
| |
(1) | The appropriate licensing authority for any area may by order make provision |
| |
to confer on the appropriate enforcement authority for that area the power by |
| 35 |
notice to impose on a person in relation to an offence under this Part a variable |
| |
| |
(2) | Provision under this section may only confer such a power in relation to a case |
| |
where the enforcement authority is satisfied beyond reasonable doubt that the |
| |
person has committed the offence. |
| 40 |
(3) | For the purposes of this Part a “variable monetary penalty” is a penalty of such |
| |
amount as the enforcement authority may in each case determine. |
| |
93 | Variable monetary penalties: procedure |
| |
(1) | Provision under section 92 must secure the results in subsection (2). |
| |
|
| |
|
| |
|
(2) | Those results are that— |
| |
(a) | where the enforcement authority proposes to impose a variable |
| |
monetary penalty on a person, the enforcement authority must serve on |
| |
that person a notice (a “notice of intent”) which complies with |
| |
| 5 |
(b) | that person may make written representations and objections to the |
| |
enforcement authority in relation to the proposed imposition of the |
| |
| |
(c) | after the end of the period for making such representations and |
| |
objections, the enforcement authority must decide whether to impose |
| 10 |
| |
(d) | where the enforcement authority decides to impose a penalty, the |
| |
notice imposing it (the “final notice”) complies with subsection (6), and |
| |
(e) | the person on whom a penalty is imposed may appeal against the |
| |
| 15 |
(3) | To comply with this subsection the notice of intent must include information |
| |
| |
(a) | the grounds for the proposal to impose the penalty, |
| |
(b) | the right to make representations and objections, |
| |
(c) | the circumstances in which the enforcement authority may not impose |
| 20 |
| |
(d) | the period within which representations and objections may be made, |
| |
which may not be less than the period of 28 days beginning with the |
| |
day on which the notice of intent is received. |
| |
(4) | Provision pursuant to subsection (2)(c)— |
| 25 |
(a) | must secure that the enforcement authority may not decide to impose a |
| |
penalty on a person where the enforcement authority is satisfied that |
| |
the person would not, by reason of any defence raised by that person, |
| |
be liable to be convicted of the offence in relation to which the penalty |
| |
is proposed to be imposed, and |
| 30 |
(b) | may include provision for other circumstances in which the |
| |
enforcement authority may not decide to impose a penalty. |
| |
(5) | Provision under subsection (2)(c) must also include provision for— |
| |
(a) | the person on whom the notice of intent is served to be able to offer an |
| |
undertaking as to action to be taken by that person (including the |
| 35 |
payment of a sum of money) to benefit any person affected by the |
| |
| |
(b) | the enforcement authority to be able to accept or reject such an |
| |
| |
(c) | the enforcement authority to take any undertaking so accepted into |
| 40 |
| |
(6) | To comply with this subsection the final notice referred to in subsection (2)(d) |
| |
must include information as to— |
| |
(a) | the grounds for imposing the penalty, |
| |
(b) | how payment may be made, |
| 45 |
(c) | the period within which payment must be made, |
| |
(d) | any early payment discounts or late payment penalties, |
| |
(e) | rights of appeal, and |
| |
(f) | the consequences of non-payment. |
| |
|
| |
|
| |
|
(7) | Provision pursuant to subsection (2)(e) must secure that the grounds on which |
| |
a person may appeal against a decision of the enforcement authority include |
| |
| |
(a) | that the decision was based on an error of fact; |
| |
(b) | that the decision was wrong in law; |
| 5 |
(c) | that the amount of the penalty is unreasonable; |
| |
(d) | that the decision was unreasonable for any other reason. |
| |
94 | Further provision about civil sanctions |
| |
| Schedule 7 (which makes further provision about civil sanctions) has effect. |
| |
| 10 |
| |
95 | Delegation of functions relating to marine licensing |
| |
(1) | The appropriate licensing authority for an area may make an order which— |
| |
(a) | designates any of the delegable marine licensing functions which |
| |
would (apart from any order under this section) be exercisable by or in |
| 15 |
relation to the appropriate licensing authority or the appropriate |
| |
enforcement authority for that area, and |
| |
(b) | provides that those functions, instead of being so exercisable, are to be |
| |
exercisable by or in relation to such person, acting on behalf of the |
| |
licensing authority or (as the case may be) the enforcement authority, |
| 20 |
as is designated in the order. |
| |
(2) | The power to make an order under this section includes power to make |
| |
provision in the order conferring on the person designated (“the delegate”), so |
| |
far as acting on behalf of an enforcement authority, any power which the |
| |
appropriate licensing authority may confer on an enforcement authority by an |
| 25 |
order under section 90 or 92 (fixed or variable monetary penalties). |
| |
(3) | An authority which makes an order under this section may do so only with the |
| |
| |
| |
(a) | must comply with the order, and |
| 30 |
(b) | is to be taken to have all the powers necessary to do so. |
| |
(5) | In this section “delegable marine licensing functions” means— |
| |
(a) | functions of a licensing authority under this Part, other than excepted |
| |
| |
(b) | functions of an enforcement authority under this Part. |
| 35 |
(6) | The excepted functions are functions under— |
| |
(a) | section 63(3) (altering the list of licensable marine activities); |
| |
(b) | section 64(2) (making regulations regarding the fee for an application); |
| |
(c) | section 66(6) (making regulations as to the procedure for applications); |
| |
(d) | section 71(1) and (4) (making orders specifying activities which do not |
| 40 |
require a marine licence and consulting in relation to such orders); |
| |
|
| |
|
| |
|
(e) | sections 75(2) and 76(2) (making orders providing for special |
| |
procedures for certain applications); |
| |
(f) | sections 90 and 92 (making orders conferring powers to impose civil |
| |
| |
(g) | this section and section 97; |
| 5 |
(h) | section 98(3) and (5)(a) (making regulations regarding the register and |
| |
determining questions of non-disclosure on the grounds of national |
| |
| |
(i) | section 105 (making regulations regarding appeals against notices |
| |
issued under sections 87, 88 and 99). |
| 10 |
96 | Orders under section 95: supplementary provisions |
| |
(1) | For so long as an order made under section 95 remains in force, the designated |
| |
functions are exercisable by or in relation to the delegate acting on behalf of the |
| |
licensing authority or, as the case may be, the enforcement authority (and are |
| |
not exercisable by or in relation to the authority). |
| 15 |
(2) | Subsection (1) is subject to any provision to the contrary which is included in |
| |
| |
(3) | An order under section 95 may include— |
| |
(a) | such terms or conditions, |
| |
(b) | such obligations or requirements, |
| 20 |
(c) | such financial provisions, |
| |
| as the authority making the order may determine. |
| |
(4) | The provision that may be made under subsection (3) includes, in particular, |
| |
provision (where appropriate) as to— |
| |
(a) | the manner in which the delegate is to exercise any of the functions; |
| 25 |
(b) | the form and manner in which licence applications must be made to the |
| |
| |
(c) | the persons to whom notice of an application should be published |
| |
under section 65, and the circumstances in which such notice should |
| |
| 30 |
(d) | matters (in addition to those set out in section 66) to which the delegate |
| |
must have regard in determining applications for licences; |
| |
(e) | the circumstances in which the delegate must exercise the power to |
| |
consult under section 66(4), and the persons who must or may be |
| |
| 35 |
(f) | the form and content of any licence granted; |
| |
(g) | appeals from any decision of the delegate (whether to the licensing |
| |
authority or any other person); |
| |
(h) | any other provision that may be made by virtue of section 66(6). |
| |
(5) | An order under section 95 may make different provision for different cases, |
| 40 |
different areas or different persons. |
| |
(6) | Where an order has been made under section 95 that a person other than the |
| |
appropriate licensing authority is to grant licences— |
| |
(a) | that other person may (in accordance with subsections (1) to (3) and (7) |
| |
of section 69) vary, suspend, revoke or transfer a licence granted before |
| 45 |
the making of the order, and |
| |
|
| |
|
| |
|
(b) | any reference in those subsections to a licence granted by a licensing |
| |
authority includes a reference to a licence granted by that other person. |
| |
97 | Directions to persons as regards performance of delegated functions |
| |
(1) | This section applies where any functions are exercisable by or in relation to a |
| |
person by virtue of an order made under section 95 by a licensing authority. |
| 5 |
(2) | The authority may from time to time give directions to the person with respect |
| |
to the performance of the functions. |
| |
(3) | A person to whom directions are given under this section must comply with |
| |
| |
(4) | An authority which gives a direction under this section must publish the |
| 10 |
direction in a manner likely to bring the direction to the attention of persons |
| |
likely to be affected by it. |
| |
| |
| |
| 15 |
| |
(1) | Each licensing authority must maintain, as respects activities in relation to |
| |
which it is the appropriate licensing authority and licences for those activities, |
| |
a register of licensing information. |
| |
(2) | The register must contain prescribed particulars of or relating to— |
| 20 |
(a) | applications for licences; |
| |
| |
(c) | variations of licences; |
| |
(d) | revocations of licences; |
| |
(e) | information supplied in connection with any licence in pursuance of |
| 25 |
any provision of this Part; |
| |
(f) | convictions for any offence under this Part; |
| |
(g) | any other action taken to enforce any provision of this Part; |
| |
(h) | occasions on which any remedial action has been taken; |
| |
(i) | such other matters relating to licences or the licensable activities as may |
| 30 |
| |
(3) | The register must be maintained in accordance with regulations made by the |
| |
appropriate licensing authority. |
| |
(4) | Each licensing authority must make arrangements— |
| |
(a) | for its register to be available for inspection at all reasonable times by |
| 35 |
members of the public free of charge; |
| |
(b) | for copies of entries in its register to be supplied, on request, to |
| |
members of the public on payment of a reasonable charge. |
| |
(5) | Information must not appear in the register if— |
| |
|
| |
|
| |
|
(a) | the Secretary of State determines that its disclosure in the register |
| |
would be contrary to the interests of national security, or |
| |
(b) | the appropriate licensing authority determines that its disclosure in the |
| |
register would be unduly prejudicial to any person’s commercial |
| |
| 5 |
(6) | The appropriate licensing authority must review a determination to exclude |
| |
information under subsection (5)(b) every four years. |
| |
(7) | On a review under subsection (6) the authority must include the information |
| |
in the register unless, on the application of any person to whom the |
| |
information relates, the authority determines that it should continue to be |
| 10 |
| |
(8) | Where information of any description is excluded from a register by virtue of |
| |
subsection (5)(b), a statement must be entered in the register indicating the |
| |
existence of information of that description. |
| |
(9) | In this section “prescribed” means prescribed in regulations made under this |
| 15 |
| |
Stop notices and emergency safety notices |
| |
99 | Notice to stop activity causing serious harm etc |
| |
(1) | If it appears to the appropriate enforcement authority that subsections (3) and |
| |
(4) are satisfied in relation to a person carrying on an activity in its area, it may |
| 20 |
issue a stop notice to that person. |
| |
(2) | A stop notice is a notice prohibiting a person from carrying on an activity |
| |
| |
(3) | This subsection is satisfied if a person is carrying on, or is likely to carry on, a |
| |
licensable marine activity (whether or not in accordance with a marine licence). |
| 25 |
(4) | This subsection is satisfied if the carrying on of the activity to be specified in |
| |
| |
(a) | is causing or will cause any of the effects in subsection (5), or |
| |
(b) | is creating or will create an imminent risk of any of those effects. |
| |
| 30 |
(a) | serious harm to the environment; |
| |
(b) | serious harm to human health; |
| |
(c) | serious interference with legitimate uses of the sea. |
| |
(6) | A stop notice (in addition to specifying the activity to which it relates)— |
| |
(a) | must state the enforcement authority’s grounds for believing that |
| 35 |
subsections (3) and (4) are satisfied; |
| |
(b) | must state the date and time from which the prohibition is to take effect |
| |
(which may be a time on the date of the notice but must allow a period |
| |
for compliance which is reasonable in all the circumstances of the case); |
| |
(c) | may require the person to take such steps as the authority considers |
| 40 |
appropriate to ensure that the cessation of the activity takes place |
| |
| |
(7) | Except in a case falling within subsection (9), a stop notice— |
| |
|
| |
|