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Marine and Coastal Access Bill [HL]


Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 3 — Enforcement

53

 

Civil sanctions

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

monetary penalty.

(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

section.

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

(3),

(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

penalty),

(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

subsection (5), and

(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

as to—

(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,

 
 

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 3 — Enforcement

54

 

(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

penalty.

(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

the following—

(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

90.

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

monetary penalty.

(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).

 
 

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 3 — Enforcement

55

 

(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

subsection (3),

5

(b)   

that person may make written representations and objections to the

enforcement authority in relation to the proposed imposition of the

penalty,

(c)   

after the end of the period for making such representations and

objections, the enforcement authority must decide whether to impose

10

the penalty,

(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

decision to impose it.

15

(3)   

To comply with this subsection the notice of intent must include information

as to—

(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

the penalty, and

(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

offence,

(b)   

the enforcement authority to be able to accept or reject such an

undertaking, and

(c)   

the enforcement authority to take any undertaking so accepted into

40

account in its decision.

(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.

 
 

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 4 — Delegation

56

 

(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

the following—

(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.

Chapter 4

10

Delegation

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

consent of the delegate.

(4)   

The delegate—

(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

functions;

(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);

 
 

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 4 — Delegation

57

 

(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

sanctions);

(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

security);

(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

the order.

(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

delegate;

(c)   

the persons to whom notice of an application should be published

under section 65, and the circumstances in which such notice should

not be published;

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

consulted;

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

 
 

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary

58

 

(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

the directions.

(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.

Chapter 5

Supplementary

Register

15

98      

Register

(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;

(b)   

licences granted;

(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

be prescribed.

(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—

 
 

Marine and Coastal Access Bill [HL]
Part 4 — Marine licensing
Chapter 5 — Supplementary

59

 

(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

interests.

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

excluded.

(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

section.

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

specified in the notice.

(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

the notice—

(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.

(5)   

The effects are—

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

safely.

(7)   

Except in a case falling within subsection (9), a stop notice—

 
 

 
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