Chapter 2: Transfer of Functions to the MMO

49.     This Chapter provides for the transfer of a number of existing functions to the MMO.

Sea Fish (Conservation) Act 1967

50.     This Act and orders made under it regulate fishing for, and landing of, sea fish and the commercial use of sea fish.

Clause 4: Licensing of fishing boats

51.     Section 4 of the Sea Fish (Conservation) Act 1967 and legislation made under that section prohibits fishing boats from fishing for sea fish in certain areas within British fishery limits without a licence. These clauses transfer to the MMO the function of the Secretary of State in relation to the granting of licences. The function transferred includes the administration (granting, variation, revocation, suspension) of licences. These clauses also ensure that licences previously issued by the Secretary of State are treated as though they were issued by the MMO. The Secretary of State may decide that the function of granting certain licences under s4 (for example, licences relating to English fishing boats operating out of Scottish ports) should not transfer to the MMO. Subsection (8) of this clause provides the flexibility for this and allows the Secretary of State to make an order specifying which licences this exception applies to.

Clause 5: Restrictions on time spent at sea: appeals

52.     Section 4AA of the Sea Fish (Conservation) Act 1967 establishes the Sea Fish Licence Tribunal. It provides for an appeal to this tribunal in relation to certain provisions in fishing boat licences that restrict the amount of time that a vessel may spend at sea. The fishing boat licence must be varied to give effect to any decision of the tribunal. Clause 5 provides for the MMO to be subject to this duty to vary a licence in respect of licences that it granted, or that the Secretary of State granted.

Clause 6: Trans-shipment licences for vessels

53.     Section 4A of the Sea Fish (Conservation) Act 1967 and legislation made under that section prohibit a vessel within British fishery limits (except the Scottish zone) from receiving fish that is trans-shipped from another vessel without a licence. This clause transfers to the MMO the functions of the Secretary of State in licensing vessels involved in the trans-shipment of fish.

Clause 7: Regulations supplementary to sections 4 and 4A

54.     This clause is supplementary to clauses 4 and 6 and flows from the transfer of functions of granting fishing boat licences from the Secretary of State to the MMO. Where secondary legislation has been made to set out the procedure for granting licences, any references to the Secretary of State in that legislation are to be treated as references to the MMO.

Clause 8: Exemptions for operations for scientific and other purposes

55.     Section 1 of the Sea Fish (Conservation) Act 1967 prohibits the landing of certain descriptions of sea fish below a certain size. Section 9 of that Act creates an exemption to this prohibition in the case of fish landed for the purposes of scientific investigation.

56.     This clause transfers to the MMO the functions of the Secretary of State relating to the authorisation of fishing operations that are conducted for these purposes.

Nature conservation

57.     The Conservation of Seals Act 1970 provides for the protection and conservation of seals in Great Britain and the adjacent territorial waters.

Clause 9: Licences to kill or take seals

58.     This Act makes it an offence to kill or take seals during the close season or in an area specified in a conservation order without a licence granted by the Secretary of State (currently exercised in England by Natural England). This clause transfers to the MMO the functions of the Secretary of State in granting licences in England and the English inshore region. (In a small number of cases each year it is necessary to issue licences to kill or take seals in freshwaters; the MMO will transfer this function to Natural England using the flexible administrative arrangements provided under clause 15).

Wildlife and Countryside Act 1981

59.     This Act applies both terrestrially and at sea out to 12 nautical miles to protect wild birds, animals and plants.

Clause 10: Wildlife and Countryside Act 1981

60.     Sections 1, 3, 5, 6(1), (2) and (3), 7 and 8 of the Act create offences related to the protection of birds including an offence of killing or injuring wild birds. Sections 9(1), (2), (4), (4A) and (5) and 11(1), (2) and (3C)(a) create offences related to the protection of animals including offences of killing or injuring any wild animal or destroying any place of shelter of any wild animal. Section 13(1) and (2) creates offences related to the protection of wild plants including intentionally picking or selling any wild plant specified in the Act. Sections 14 and 14ZA create offences related to the introduction of new species into the wild and the sale of invasive non-native species.

61.     The Act includes powers under section 16 for the Secretary of State and Natural England to issue licences to authorise these activities in certain circumstances (for example, in the case of some of the activities, if they are done for scientific, research or educational purposes). Where a licence has been granted and the activity is carried out in accordance with the terms of the licence, no offence is committed.

62.     This clause provides that the powers under sections 16(1), (2), (3) and (4) to grant such licences are to be exercised by the MMO, instead of the Secretary of State or Natural England, in the case of any such activities in the sea adjacent to England that lies seaward of mean low water mark out to 12 nautical miles.

Sea Fisheries (Wildlife Conservation) Act 1992

63.     This Act places the Secretary of State under a duty when discharging any sea fisheries functions to “have regard to the conservation of marine flora and fauna” and to try to achieve a reasonable balance between this consideration and any other considerations to which he is required to have regard.

Clause 11: Sea Fisheries (Wildlife Conservation) Act 1992

64.     This clause places the MMO under the same duty as the Secretary of State under this Act; when discharging any sea fisheries functions the MMO must “have regard to the conservation of marine flora and fauna” and to try to achieve a reasonable balance between this consideration and any other considerations to which it is required to have regard.

Generating and renewable energy installations

Clause 12: Certain consents under Electricity Act 1989

65.     This clause transfers to the MMO certain of the functions of the Secretary of State in issuing consents under section 36 of the Electricity Act 1989.

66.     The functions transferred are listed in subsections (2) and (4) and relate to the construction, extension and use of offshore generating stations and the subsequent enforcement of any consents issued.

67.     The MMO will assume the Secretary of State’s responsibility as competent authority for assessing environmental impacts on protected European Sites (subsection (4)(c)) and for satisfying requirements relating to environmental impact assessments (subsection (4)(d)).

68.     The MMO will only exercise these functions for offshore generating stations that are not, or in the case of extensions, would not be after the extension has taken place, nationally significant infrastructure projects. Nationally significant infrastructure projects are defined by sections 14 and 15 of, and are regulated by, the Planning Act 2008. The MMO will also not exercise these functions in Scottish inshore waters or in the Scottish part of the renewable energy zone where Scottish Ministers will continue to perform that role.

Clause 13: Safety zones: functions under section 95 of the Energy Act 2004

69.     Under clause 12 the MMO will be responsible for issuing consents under section 36 of the Electricity Act 1989 for certain offshore generating stations. By virtue of clause 13 it will also be able to issue notices under section 95 of the Energy Act 2004 declaring safety zones around those offshore generating stations (here described as renewable energy installations) for which it issues those consents.

70.     The MMO will be able to declare safety zones for any purpose given in section 95 of the Energy Act 2004. But it will not have the power to do this in respect of renewable energy installations located in Scottish inshore waters or in the Scottish part of the renewable energy zone.

71.     Where any part of a safety zone that the MMO is declaring is in Scottish waters, by virtue of subsection (5) of section 95 of the Energy Act 2004 the MMO will have to consult the Scottish Ministers before issuing a safety notice.

Chapter 3: Flexible Administrative Arrangements involving the MMO

72.     Chapter 3 enables marine functions to be transferred by the Secretary of State administratively to the MMO, or by the MMO to any “eligible body”.

Power to enter into agreements

Clause 14: Agreements between the Secretary of State and the MMO

73.     This clause allows the Secretary of State to enter into agreements with the MMO authorising the MMO to perform marine functions currently performed by the Secretary of State. The type of functions that these agreements would cover includes work currently undertaken by the Marine and Fisheries Agency under the Common Fisheries Policy and/or under EU Regulations which are directly applicable in the UK. Over time the MMO may need to take on new functions and this clause also provides the necessary flexibility in relation to any future functions to enable Ministers to delegate these to the MMO. The functions that the MMO can be authorised to perform in the context of the Marine and Coastal Access Bill are limited to marine functions. The MMO may be authorised to carry out a particular function generally or only in specified cases or areas.

74.     Any agreement between the Secretary of State and the MMO does not prevent the Secretary of State continuing to exercise his power in relation to the function that has been delegated, and the Secretary of State can cancel the agreement at any time.

Clause 15: Agreement between the MMO and eligible bodies

75.     This clause enables the MMO, with the approval of the Secretary of State, to make agreements with bodies listed in clause 16 authorising those bodies to perform the MMO’s functions on its behalf. This is to enable the MMO to make arrangements for the most effective discharge of its functions as these bodies may be better placed (due to their resources, expertise or other such reason) to carry out the MMO’s function in a particular area.

76.     Under such an agreement a body may be authorised to carry out the function generally or only in specified cases or areas. Any such agreements can be altered only by agreement between the MMO and the relevant body, and with the approval of the Secretary of State.

77.     The Secretary of State must review any agreements between the MMO and eligible bodies every 5 years and may, if appropriate, cancel the agreement. Clause 21 also provides that any agreement under clause 15 must be in writing and published in order to bring it to the attention of people likely to be affected by it.

Clause 16: Eligible bodies

78.     Bodies listed in this clause are those with which the MMO can enter into agreement. The MMO will need the ability to delegate certain activities to eligible bodies where, for example, such bodies would be better placed (due to their resources, expertise or other such reason) to carry out the MMO’s function in a particular area. Examples of functions the MMO might want to transfer to these bodies are as follows.

• The MMO is taking over the licensing function under the Conservation of Seals Act 1970, but there are a few applications each year relating to seals in freshwaters. Those applications will be dealt with by Natural England and the function will therefore need to be delegated to that body by the MMO using the flexible arrangements provided in clause 14.

• The Environment Agency will be responsible for freshwater fisheries and migratory species out to 6 nautical miles, as it is now. IFCAs will be responsible for marine species management out to 6 nautical miles - as Sea Fisheries Committees (SFCs) are now - with the addition of estuaries as far as the tide flows. The MMO will be responsible for enforcement of marine nature conservation and national and EU fisheries provisions out to 200 nautical miles and for British vessels on the high seas. The MMO will take action in the inshore area where national measures are required and in cases where nature conservation is at risk from non-fisheries threats, and it may be that the MMO will wish to delegate certain functions in this area to IFCAs and/or the Environment Agency.

79.     The Secretary of State can add a body or description of a body to the list by Order, and can also remove such bodies. The list is likely to change over time to take account of bodies being created, merged or disbanded, or to reflect a change of name. An example of such a change is that local fisheries committees (commonly known as Sea Fisheries Committees (SFCs)) will need to be removed from the list of bodies once IFCAs have been established; however, SFCs still need to be included in the list to cover the period between Royal Assent of the Bill and the establishment of IFCAs. As the MMO evolves in future and takes on additional functions, further bodies may need to be added to the list.

80.     The Secretary of State must be satisfied that a body which is to be added to the list has at least one purpose or function relating to or connected with, a marine function. The power to add bodies to the list is not limited to public bodies because private bodies may be better placed to provide some functions and/or provide better value for money.

Clause 17: Non-delegable functions

81.     This clause sets out functions that cannot be delegated to others either by the Secretary of State or the MMO.

Clause 18: Maximum duration of agreement

82.     The maximum amount of time that an agreement between the Secretary of State and the MMO or an agreement between the MMO and an eligible body can last is 20 years.

Supplementary provisions

Clause 19: Particular powers

83.     Subsection (3) of this clause provides for various cases where the body being authorised to carry out a function under an agreement is already involved with the function in some way. It may, for example, be a consultee or it may be required to give its consent to the exercise of the function or it may already exercise the function jointly with the body delegating the functions. This clause provides that an agreement can still be entered into with that body.

84.     Subsection (6) ensures that the lack of a specific power to carry out a function will not prevent a body performing it if that body has been authorised so to do under an agreement. It also provides that the body can delegate performance to a specially-formed body corporate or to a committee, sub-committee, member, officer or employee of the body (except in certain local authority cases, and/or if the agreement itself prohibits this). However, subsection (8) provides that delegation of the performance of the function to anyone else is generally not permitted.

Clause 20: Agreements with local authorities

85.     This clause makes additional provision in relation to agreements with harbour authorities, where those harbour authorities are local authorities. Local authorities require this provision due to the legislative streamlining of local government decision-making under the Local Government Act 2000. Under that Act and subordinate legislation each function of a principal local authority is administered either directly by the full council or through executive arrangements, depending on the function. Detailed arrangements for the performance of the functions are specified in Regulations made under section 13 of the 2000 Act. Where, by agreement, a function is to be discharged on behalf of the MMO by a local authority exercising the functions of a harbour authority, the existing allocation of responsibility for the performance of that type of function under the 2000 Act and subordinate legislation (whether full council or executive) will apply. The full council (or executive, as applicable) of that authority may use various usual powers of delegation (for example to committees and officers of that same authority) to perform the function.

Clause 21: Supplementary provisions with respect to agreements

86.     Subsection (1) of this clause requires agreements and approvals for them to be made in writing and subsection (2) states that any such agreements must be published.

87.     Subsection (3) provides that no power of a Minister of the Crown (under the Bill or any other legislation) to give directions to a statutory body can be used to require that body to enter into an agreement or to prohibit it from doing so.

88.     Subsection (4) applies Schedule 15 of the Deregulation and Contracting Out Act 1994 (relating to the disclosure of information) to bodies exercising functions through an agreement under this clause. This is to make clear to each contracting body how to handle confidential information and the situations where sharing of information between the contracting bodies is permitted.

Clause 22: Interpretation

Chapter 4: Miscellaneous, General and Supplemental Provisions

89.     This Chapter gives the MMO general powers and duties, makes financial provisions for the MMO and sets out how the Secretary of State may give it guidance and directions. It also provides for the transfer of property, rights and liabilities to the MMO.

General Powers and Duties

Clause 23: Research

90.     This clause gives the MMO powers to undertake research on matters relevant to its functions or its general objective, either by itself or in association with others, and to commission or support others to undertake such research. The MMO must make the results of this research available on request.

Clause 24: Advice, assistance and training facilities

91.     This clause specifies the MMO’s duties and powers to provide advice and assistance to the Secretary of State, and to provide advice to public authorities and others in relation to its general objective or any of its functions.

Clause 25: Provision of information etc

92.     This clause enables the MMO to publish documents and provide information about anything relating to its general objective or any of its functions.

Clause 26: Power to charge for services

93.     This clause enables the MMO to make a reasonable charge for any services it provides (the intention here is that this should be on a cost-recovery basis). Subsection (2) makes specific provision for the MMO to charge fees in respect of functions it might exercise on behalf of Welsh Ministers or a Northern Ireland department under section 37. Examples of the other types of service for which the MMO may charge are set out in subsection (3).

Clause 27: Provision of information by the MMO to the Secretary of State

94.     The MMO will be accountable to the Secretary of State who will from time to time require, in writing, information from the MMO relating to the performance of its functions. This includes information which the MMO may reasonably be required to obtain from others.

Clause 28: Power to bring proceedings

95.     The MMO will have responsibilities for enforcement in the marine area, including bringing prosecutions where appropriate. This clause allows the MMO to pursue criminal proceedings and proceedings for the recovery of monetary penalties imposed under this Bill. This clause allows simple cases to be prosecuted by non-legally qualified staff of the MMO.

Clause 29: Incidental Powers

96.     This clause allows the MMO to take action which will help it to exercise its functions and meet its general objective. The clause sets out some of the particular activities that the MMO may need to undertake such as borrowing money, holding property, and investing money.

Financial Provisions

97.     These clauses put in place the financial arrangements needed to enable the MMO to carry out its responsibilities.

Clause 30: Grants

98.     This clause enables the Secretary of State to make the appropriate funds available to the MMO by way of grant.

Clause 31: Borrowing powers

99.     This clause allows the MMO to borrow money as necessary to enable it to carry out its functions. The money may be borrowed from the Secretary of State or from others with the agreement of the Secretary of State. The Secretary of State may make his agreement conditional on, for example, the MMO repaying the loan by a certain date.

Clause 32: Limit on borrowing

100.     This clause limits the MMO’s ability to borrow to £20 million, although the Secretary of State may increase this (up to £80 million) by order, subject to prior approval by the House of Commons.

Clause 33: Government loans

101.     This clause enables the MMO to borrow money within the specified limits from the Secretary of State, subject to any appropriate repayment conditions. It requires the Secretary of State to keep an account of the amounts loaned and received, and to make this available to the Comptroller and Auditor General for audit purposes. Both the account and the auditor’s report must be laid before Parliament. In accordance with Government financial procedural requirements, the Secretary of State is required to pay any monies repaid by the MMO to the Consolidated Fund.

Clause 34: Government guarantees

102.     This clause provides that the repayment of any money borrowed by the MMO (and the resultant interest) may be guaranteed by the Secretary of State, subject to any appropriate conditions. If the Secretary of State makes such a guarantee (and where any sum is paid out in fulfilment of that guarantee) he must lay a statement before Parliament. The MMO must repay any such sums, together with interest, as directed by the Secretary of State.

Directions and guidance

Clauses 35 & 36: Directions by the Secretary of State; Guidance by the Secretary of State

103.     Whilst the MMO is intended to operate free from Ministerial interference in its day to day affairs, Ministers may need to issue guidance or directions to the MMO. Such guidance or directions are likely to change over time in order to take account of any alterations to the functions of the MMO, or changing priorities in relation to the marine environment, and may be used to ensure that the MMO does not act in a way that is inconsistent with its functions or general objective.

104.     These clauses give the Secretary of State power to give general or specific directions and guidance to the MMO regarding the exercise of its functions, and require the MMO to comply with any such direction and to have regard to any guidance issued. This includes the guidance given to the MMO on its general objective under clause 2.

105.      The Secretary of State must publish notice of any directions that they give to the MMO in the London Gazette. The MMO must make copies of any directions available to the public, for which it can charge a reasonable fee.

106.     Specific reference is made in clause 35 to the ability of the Secretary of State to give directions to the MMO in relation to international agreements to which the United Kingdom or European Union is a party. This is because several such agreements relate to the marine area and may be relevant to the way in which the MMO is to exercise its functions.