Consultation on a draft UK Marine Bill

Terminology and subdivisions in the Marine Area

The marine area around the UK can be divided into a number of geographical areas. Throughout this note references are made to the following:

• the territorial sea – this extends to a maximum of 12 nautical miles from the baseline (normally the coast);

• the UK continental shelf – extends from the edge of the territorial sea to 200 nautical miles from the baseline (N.B. any reference to "offshore area" in this note is a reference to the UK continental shelf);

• British Fisheries Limits – largely matches the area of the continental shelf, but in some places extends beyond it. Scotland and Northern Ireland have their own areas within the British Fishery Limits, known as the Scottish and Northern Ireland Zones.

To which countries will the Bill apply?

It was originally proposed that the Bill would apply to England, Wales, Scotland and Northern Ireland. However, discussions are currently ongoing regarding the extent to which each devolved administration will be involved in each of the areas of the Bill. The Bill does cover all UK administrations, but to varying degrees. Due to the complex issue of control of Scotland's seas, Scotland has already confirmed that it will be producing its own draft marine bill with a consultation on this planned for the near future. Similarly, in Northern Ireland, management of activities in the marine area falls within a complex mix of devolved and reserved powers. As a result, Northern Ireland is expected to retain the UK Bill for those matters which are reserved but legislate separately for devolved matters. As for Wales, in general, the majority of the proposals for England also apply to Wales.

The Position in England

Background

The findings of a number of reviews and reports dating from 2002 and 2003 recommended that a new approach to managing marine activities was needed and legislation required to implement it. On 8 December 2004, the Government launched Defra's five year strategy which included plans for a new Marine Bill and there have been a number of subsequent manifesto commitments concerning a Marine Bill. The main events leading to the draft Bill were as follows:

• Marine Bill forums took place in 2005 and 2006 to promote an exchange of views between stakeholders;

• A Marine Bill consultation document was published by Defra on 29th March 2006 explaining the areas likely to be covered by a Marine Bill and asking for views on specific questions. A summary of responses was published on 18th October 2006;

• The Environmental Audit Committee launched a brief inquiry into what should be included in a new Marine Bill, publishing its report on proposals for a draft Marine Bill on 25th July 2006;

• The Marine Bill White Paper, entitled "A Sea Change", was published on 15th March 2007. A Summary of Responses to that was published on 17th October 2007.

This led to a draft Marine Bill being published, for consultation, on 3rd April 2008. The deadline for comments being submitted was 26th June 2008.

Key Areas Covered by the Marine Bill

• Marine Planning;

• Marine Management Organisation;

• Marine Licensing;

• Marine Nature Conservation;

• Managing Marine Fisheries;

• Freshwater and Migratory Fisheries;

• Modernisation and Streamlining of Enforcement Powers;

• Administrative Penalties Scheme for domestic fisheries offences; and

• Coastal Access.

1.  Marine Planning

The first stage of the marine planning system will be the creation of a Marine Policy Statement (MPS). This will set both short-term and longer-term objectives for sustainable use of the marine environment, creating a more integrated approach to marine management. The intention is that the UK Government, the Welsh Assembly and the Northern Ireland Assembly will work together on the statement and agree it jointly. Note that the MPS is restricted in content and impact in Scotland and that Scottish Ministers will not take part in this process; instead Scotland is progressing with its own Scottish Marine Bill (see more on this below).

The second stage will be the creation of a number of marine plans, which will implement the MPS in specific areas, using information about uses and needs in those areas. The intention is that public authorities will, going forward, have to have regard to the MPS and marine plans when making decisions which are capable of affecting the UK marine area. The provisions contained in the Bill relating to marine planning apply to all UK waters apart from the territorial waters of Scotland and Northern Ireland, who will take forward marine planning in their own territorial waters through their own separate legislative process.

2.  Marine Management Organisation

A Marine Management Organisation (MMO) will be created to deliver marine functions for the UK Government. The MMO will be an independent, non-departmental public body. Its work will include preparing marine plans, licensing marine development, fisheries management, furthering Marine Conservation Zone objectives (more on which later) and enforcing fisheries, nature conservation and licensing legislation. The MMO will operate from a network of coastal offices, and will be a vital link in the chain from planning through to enforcement. The MMO will only carry out these functions in the waters around England and in the "offshore area" (i.e. the UK continental shelf or from 12 to 200 nautical miles around the UK) for matters that are not devolved.
                                                  
3.  Marine Licensing

The proposals in the draft Bill will simplify the system for licensing activities in the sea so that, as far as possible and in relation to those parts of the sea to which it relates, there will be a "one stop shop" for each project. The reforms are designed to allow the MMO to look at applications in the round, to consider all the costs and benefits at the same time, and make better, faster decisions.

The major change to the licensing regime will be the consolidation and modernisation of two existing Acts – the Food and Environment Protection Act 1985 (FEPA) and the Coast Protection Act 1949 (CPA). By consolidating these, and making links with other pieces of relevant legislation relating to flood risk, land drainage, electricity works and harbour works, the process of obtaining a licence will be much simplified and streamlined. The following are some examples of this more simplified process:

• In cases where an activity requires a licence under the draft Bill and would also require a consent under section 109 of the Water Resources Act 1991, the MMO can, with the Environment Agency's consent, remove the need for separate consent under the WRA and place any conditions necessary to protect against flooding in the Marine Act licence.

• In cases where an activity requires both a licence under the Marine Bill and a consent under either section 36 or 37 of the Electricity Act 1989, the Secretary of State may, by order, provide that the procedure under the draft Bill is not to apply and that the application will instead be dealt with under the Electricity Act procedures. As a result, the Bill will simplify the consenting of wind, wave and tidal projects of 100MW or less by ensuring that only one administrative process is used to consider all the elements of an application. However, depending on how much electricity a project is expected to produce, two bodies will still be responsible for decisions on offshore energy projects. This is because the Infrastructure Planning Commission (a body proposed by the Planning Bill) will take the ultimate decision on applications for renewables above a threshold of 100 MW generating capacity (under advisement from the MMO).

• Port and harbour developments currently present some of the most complex licensing and environmental challenges. Again, the Secretary of State may, by order, provide that, where an activity requires both a licence under the draft Bill and either a Harbour Revision or Empowerment Order, the application will be dealt with under Harbour Act procedures as opposed to those under the Marine Bill. This type of approach again takes different licences and consents together and puts them through a single consenting process, thereby making it easier to plan harbour developments.

Note that the reforms to marine licensing are intended to apply across the UK apart from the territorial waters of Scotland but amendments to harbours legislation do not apply in Scotland or Northern Ireland.

4.  Marine Nature Conservation

A new type of marine protected area – "Marine Conservation Zones" – are provided for in the draft Bill. They will replace Marine Nature Reserves, allowing habitats and species considered to be of national importance to be protected more effectively.

Varying levels of protection will be given to individual sites, from restricting certain activities, to "Highly Protected Marine Reserves", where no damaging activities will be allowed. Defra has asked Natural England, the Joint Nature Conservation Committee and the Countryside Council for Wales to work towards establishing the MCZs by 2012.The new MCZs will exist alongside European sites (Special Areas of Conservation and Special Protection Areas) to form a marine protected areas network.

These new marine nature conservation arrangements apply in all UK waters apart from the territorial waters of Scotland and Northern Ireland.

5.  Managing Marine Fisheries

The Bill includes measures to strengthen fisheries and environmental management arrangements. As a result, it is hoped that more effective action can be taken to conserve marine ecosystems and that a sustainable and profitable fisheries sector can be achieved.

The Bill will reform inshore fisheries management, replacing Sea Fisheries Committees with newly created Inshore Fisheries and Conservation Authorities (IFCAs) who will have a duty to manage the exploitation of sea fisheries resources in its district, including fishing for, landing, transporting and selling those resources. It will do this by, for example, making byelaws which must be observed in its district. These powers and a number of other powers contained in the Bill will also allow improvements to be made to shellfish management and conservation controls to be extended to previously unregulated fishing activities.

Existing powers to charge for commercial fishing licences will be modified so that such charges can be introduced more flexibly in the future.

These new marine fisheries provisions apply in England and Wales and out to British Fishery Limits but excluding the Scottish Zone and the Northern Ireland Zone.

6.  Freshwater and Migratory Fisheries

One of the aims of the Bill is to reduce the exploitation of freshwater fish stocks and allow greater flexibility when dealing with fisheries management issues. The Bill therefore contains provisions to reform the licensing system of fishing activities. It also provides for the introduction of byelaws in emergency situations and creates an authorisation scheme (policed by the Environment Agency) for the movement of live fish. These freshwater and migratory fisheries provisions only apply in England and Wales.

7.  Modernisation and Streamlining of Enforcement Powers

Effective enforcement is seen as one of the essential components of the proposals contained in the Bill, to ensure that regulations and rules are implemented fairly. For example, the Bill introduces the following enforcement notices which can be issued in relation to licence breaches or harmful activity:

• Compliance Notice – enforcement officers will be entitled to issue a compliance notice where licence conditions have been breached but no or little harm has occurred, as could happen for example with a technical breach;

• Remediation Notice – once served, this requires a person who is breaching a condition of their licence or carrying out an activity without a licence to either put right any damage caused by their activity or to undertake work elsewhere in compensation for the damage caused. A Remediation Notice can only be issued in cases where serious harm has been or is likely to be caused; and

• Stop Notice – this allows the enforcing authority to put an immediate halt to a seriously harmful activity or one which will imminently cause serious harm and then requires the operator to put right the damage caused.

These enforcement notices, like the licensing provisions themselves, are intended to apply across the UK apart from the territorial waters of Scotland.

The draft Bill also introduces a set of common enforcement powers for officers enforcing marine licensing, fisheries and nature conservation. These include the power to board and inspect vessels and premises, powers to search, powers of seizure and retention of items and power to use reasonable force. Again, these powers are intended to be exercisable across the UK except the territorial waters of Scotland.

8.  Administrative Penalties Scheme for domestic fisheries offences

The Bill also introduces financial administrative penalties for domestic fisheries offences (which apply in England and Wales and out to British Fishery Limits but excluding the Scottish Zone and the Northern Ireland Zone) and a civil sanctions scheme (including fixed and variable monetary penalties) for licensing and nature conservation offences. The civil sanctions scheme is intended to apply throughout the UK apart from the territorial seas of Scotland. With enforcement tools ranging from advice to prosecution, the aim is that enforcement officers will, going forward, have the tools to deal with offences in a proportionate, flexible and risk-based manner.

9.  Coastal Access

The draft Bill places a duty on the Secretary of State and Natural England to secure a long distance route – "the English coastal route" – to improve access to the coast for all. The public will also have access to coastal land alongside the route, such as beaches, cliffs, rocks and dunes for open-air recreation on foot. However, there will be some areas where access is excluded, such as developed land, most MoD land, railways and quarries. As the name of the route suggests, provisions to improve access to coastal land only apply in England.

What happens now?

The two Houses of Parliament have established a Joint Committee on the draft Marine Bill, with their remit being to consider the draft Bill and report on it to both Houses by 22 July 2008. The Committee have invited written submissions to assist in its scrutiny of the draft Bill, to be received by 16th June 2008. The draft Bill will then be amended as necessary and introduced to Parliament in the next session of Parliament this autumn.

Although the general powers which are to become available to the UK Government and the various new regulatory authorities are contained in the draft Bill, those powers will have to be further detailed and implemented through both secondary legislation and guidance. This implementation will take place over several years and will include consultation on individual implementing measures.

The Position in Scotland

Introduction

As noted above, the Bill is extremely complicated because it covers all four UK administrations to varying degrees. For example, Scottish Ministers will not be taking part in the preparation of the MPS for the UK. Scotland will instead draw up its own Marine Bill, with a consultation on this due to take place shortly.

Background

In the summer of 2007, the Scottish Government asked Fisheries Research Services (FRS), the Scottish Environment Protection Agency (SEPA) and Scottish Natural Heritage (SNH) to start work on assessing the state of Scotland's seas. On 3rd January 2008, the membership of a new national stakeholder group – the Sustainable Seas Task Force – was announced, its remit being to help develop proposals for legislation and form the basis for a consultation. On 9th April 2008, the document "Scotland's Seas – Towards Understanding their State" was published, having been jointly produced by FRS, SEPA and SNH. This document is an initial summary of the data available on the marine environment and will form the basis for the development of a Marine Bill for Scotland.

Territorial Extent

One of the most difficult issues is that of who rules Scotland's seas. The Scottish Government has devolved powers in relation to Scotland's territorial waters (i.e. from 0-12 nautical miles) whilst controls over fishing extend out to 200 nautical miles. The Scottish Parliament has backed demands by the Scottish Government, the fishing industry and conservationists that control of the marine environment from 12 to 200 miles off-shore be devolved to Scotland in all areas. As it stands, the UK Marine Bill proposes that control over issues such as nature conservation and planning, while devolved to Scotland up to 12 nautical miles, will be reserved to Westminster beyond that, i.e. between 12 and 200 nautical miles. It remains to be seen how this issue will be resolved and what will be contained in the consultation document on the Scottish Marine Bill when it is published.

The Position in Northern Ireland

Northern Ireland is fully committed to the policy aims behind the UK Marine Bill. However, similarly to Scotland, management of activities in the marine area falls within a complex mix of devolved and reserved powers. As a result, Northern Ireland is expected to retain the UK Bill for those matters which are reserved and where it would be appropriate to do so but also legislate separately for those matters which are devolved or which are reserved but where it would be more appropriate to legislate in Northern Ireland. No separate Northern Irish legislation has been produced as yet.

The Position in Wales

In general, where changes are being made or new powers are being created in England, similar changes or powers will be created for Wales, i.e. the majority of the proposals for England also apply to Wales. In areas where these changes are the responsibility of Welsh Ministers, it will be up to them to decide how the powers will be used.

A summary of the current applicability of the provisions of the UK Marine Bill to the devolved administrations

• The Marine Policy Statement covers the whole of the UK's waters but is restricted in content and impact in Scotland. Scottish Ministers have confirmed that they will not take part in the production of the MPS;

• The MMO will deliver planning, licensing, fisheries management and enforcement functions in the waters around England and in the "offshore area" (i.e. from 12 to 200 nautical miles around the UK) for matters that are not devolved;

• Marine planning applies in all UK waters apart from the territorial waters of Scotland and Northern Ireland;

• Reforms to marine licensing apply across the UK apart from the territorial waters of Scotland. Amendments to harbours legislation do not apply in Scotland or Northern Ireland;

• New marine nature conservation arrangements apply in all UK waters apart from the territorial waters of Scotland and Northern Ireland;

• Marine fisheries provisions apply in England and Wales and out to British Fishery Limits excluding the Scottish Zone and the Northern Ireland Zone;

• Migratory and freshwater fisheries provisions only apply in England and Wales;

• Enforcement Powers – enforcement notices are intended to apply across the UK apart from the territorial waters of Scotland; the common enforcement powers are intended to be exercisable across the UK except the territorial waters of Scotland; the administrative penalties scheme will apply in England and Wales and out to British Fishery Limits but excluding the Scottish Zone and the Northern Ireland Zone;  the civil sanctions scheme is intended to apply throughout the UK apart from the territorial seas of Scotland; and

• Provisions to improve access to coastal land only apply in England.

McGrigors LLP: UK Environmental Team

Jennifer Ballantyne Partner Planning & Environment Tel. +44 (0)141 567 9355 jennifer.ballantyne @mcgrigors.com

Donna Brown Senior Solicitor Real Estate/Planning & Environment Tel. +44 (0)141 567 9431 donna.brown@mcgrigors.com

© 2008 McGrigors LLP. All rights reserved. The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation. Neither this nor any other communication is intended to be, or should be construed as, an invitation or inducement (direct or indirect) to any person to engage in investment activity. McGrigors is regulated by the Law Society of Scotland. McGrigors London is regulated by the Law Society of England and Wales.