Q1: The EM says that the consultation ran from 21 December 2017 to 2 February 2018. This is six weeks but included the Christmas and New Year holiday. Would it not have been more practical to run the exercise from early January to mid-February to give stakeholders more time to respond?
A1: Although the consultation was run over the Christmas period, the Marine Management Organisation (MMO) made every endeavour to ensure that stakeholders were aware that the consultation was open and actively sought views, this included both e-mail and mail shot exercises prior to and during the exercise. This resulted in 76 responses, which is favourable compared to the 2014 SI consultation which ran for an 8-week period and received 32 responses.
Q2: The outcome of the consultation which concluded in February was only published in June of this year, and the instrument laid in July. Is there a reason why it took this time to publish the outcomes of the consultation and to lay the instrument?
A2: Preparation of the Government response to the consultation was delayed as it took longer than originally anticipated to analyse the consultation responses in conjunction with the MMO. The planned changes (post-consultation) were subsequently agreed by Ministers at the end of April 2018. The formal Government response to the consultation was then drafted. Two recess periods in May then caused further delay to securing clearance of the response document. Ministers’ agreement to publication of the Government response and to seeking write round clearance of publication was secured on 14 June 2018. We secured confirmation of write round clearance on the 29 June 2018. The Government response to the consultation was then published.
The date agreed with Parliamentary Business and Legislation Committee for making and laying the Statutory Instrument was 18 July 2018. With agreement, and in response to a request from Ministers, we were able to lay the SI two days early on 16 July.
Q3: The consultation response suggests that some respondents called for a cap on Band 3 fees but there doesn’t seem to be anything in the Department’s response regarding why it was decided not to apply such a cap. Is there a reason why the suggestion for a Band 3 cap was not accepted?
A3: Marine licence applications that fall within the Band 3 category have a project value of at least £1m or anything upwards of that figure and / or are considered extremely complex due to the often unique characteristics in terms of their scope and proposed location; resulting in the need for bespoke consideration of the proposed activity and its potential impact on the marine environment. The determination of these marine licence applications may therefore require significant investment of time and resources by the MMO commensurate with the complexity of the proposed activity.
The introduction of a cap on fees for a Band 3 marine licence may result in a constraint on the MMO in terms of its ability to fully recover the costs incurred in the determination of individual marine licence applications. As a consequence any shortfall in recovered costs would need to be met by the UK tax-payer. This would be inconsistent with current guidelines.
Furthermore, because of the nature of Band 3 marine licence applications it is very difficult to try to predict the scope and range of future Band 3 marine licence applications–the basis upon which a potential cap might be calculated. Any attempt to set a cap on fees for Band 3 marine licence application might therefore result in some applicants being required to pay full costs, whilst others only partial costs, with the remainder subsidised by the UK tax-payer–dependent on what level the caps on fees was set. This would introduce an inequality into the arrangements.
The planned arrangements with no cap on fees for Band 3 marine licence applications simply means that the applicant will be required to meet the full cost of the determination of their marine licence application. The applicant who benefits from the marine licence paying for the cost of the service received.
As set out on its website, the MMO agrees an estimate of likely costs in advance with applicants, which the applicant must agree prior to work commencing on their application, and renegotiates this should the need for additional unanticipated costs become apparent. Alongside this, potential applicants are able to seek pre-application advice from the MMO, and have opportunity to raise the matter of anticipated costs at this stage should this be a specific concern.