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Session 2001- 02
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Marine Wildlife Conservation Bill


 

These notes refer to the Marine Wildlife Conservation Bill
as introduced in the House of Commons on 18th July 2001 [Bill 8]

Marine Wildlife Conservation Bill


EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Marine Wildlife Conservation Bill. They have been prepared in order to assist the reader in understanding the Bill. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

3.     The purpose of the Bill is to allow for the establishment, protection and management of a network of nationally important marine areas throughout the territorial waters of England and Wales. The Bill provides for:

  • Powers for nationally important marine sites of special interest to be notified and for existing notifications to be amended;

  • A duty for a register of marine sites of special interest to be established and maintained;

  • Duties on competent marine authorities to further the conservation of marine sites of special interest;

  • Powers for management schemes to be established for the management of marine sites of special interest and, where necessary, powers to ensure management scheme implementation; and

  • The application of Marine Nature Reserve byelaw-making powers to marine sites of special interest.

Clause 1

4.     Clause 1 allows for the identification, designation and modification of Marine Sites of Special Interest (MSSIs). They may be 'special' on wildlife, geological or physiographic grounds.

5.     Subsection (1) is adapted from section 28(1) of the Wildlife and Countryside Act 1981 (as amended) ("the 1981 Act"); this gives English Nature and the Countryside Council for Wales the ability to designate MSSIs where in their opinion an area is 'special' by virtue of its wildlife, geographical or physiographic features. There are two aspects to this:

  • Where the special interest is within a site already designated as a European Marine Site (or could be), then English Nature or the Countryside Council for Wales may designate that interest, but only where it is not a reason for which the European Marine Site has been designated. This is to ensure that there is no duplication of protection measures at a site. It also avoids the need for an immediate 're-designation' of existing European Marine Sites.

  • Where the special interest is not within a European Marine Site, then English Nature and the Countryside Council for Wales have a duty to designate the site as a MSSI.

6.     English Nature or the Countryside Council for Wales must notify all competent marine authorities that have functions in or adjacent to the MSSI and also, as far as possible, anyone who has property rights or other statutory rights in relation to the site (such as someone with several fisheries rights).

7.     Subsection (2) is adapted from paragraph 10 of Schedule 3 of the Harbours Act 1964, and requires the publication of the fact that an area is notified. It refers to the 'London Gazette' because the notification needs to be advertised nationally. It also just refers to 'local advertisement' and not 'local newspaper circulating in the area in which the land is situated' (see section 28(2) of the 1981 Act). Obviously there are no papers circulating in the area as such.

8.     Subsection (3) replicates section 28(3) of the 1981 Act stipulating that the notification muct include details of how representations can be made and requiring English Nature or the Countryside Council for Wales to consider them. Comments must be made within one month of the designation being announced.

9.     Subsection (4) combines section 28(4) of the 1981 Act and Regulation 33(2) of the Conservation (Natural Habitats, &c.) Regulations 1994. It requires English Nature or the Countryside Council for Wales to clearly state what it is about the site that makes it special. It requires them to include clear conservation objectives for the site and a 'conservation statement' that outlines their views concerning management. The conservation statement may include advice about activities or 'operations' that might adversely affect the interest of the site.

10.     Subsection (5) is based on section 28(5) of the 1981 Act and defines the period in which the Secretary of State (in England) and the National Assembly for Wales (in Wales) may direct English Nature and/or the Countryside Council for Wales to confirm or withdraw the notification. This must be done within six months. The original notification made by English Nature or the Countryside Council for Wales may be confirmed in a modified form. Unlike for Sites of Special Scientific Interest, English Nature and the Countryside Council for Wales require the Secretary of State and/or the National Assembly for Wales to agree that a site should be designated. This reflects the approach for Marine Nature Reserves and section 36 of the 1981 Act.

11.     Subsection (6) reflects section 28(6) of the 1981 Act. It means that if a notification is withdrawn it ceases to have effect. In addition, if after six months the notification has neither been confirmed nor withdrawn, then it also ceases to have effect. Where this happens, the Secretary of State (in England) and the National Assembly for Wales (in Wales) shall explain to English Nature or the Countryside Council for Wales why designation of the site was not confirmed.

12.     Subsection (7) provides that when the Secretary of State (in England) or the National Assembly for Wales (in Wales) tells English Nature or the Countryside Council for Wales why a site is not to be designated, then English Nature and/or the Countryside Council for Wales are required to pass on this information to those people who were originally notified.

13.     Subsection (8) reflects section 28(8) of the 1981 Act. It aims to ensure that where a notification is confirmed in a modified form, then the notification shall have effect in its notified form in so far as the notification applies to all or part of the original area.

14.     Subsection (9) is adapted from Regulation 33(1) of the Conservation (Natural Habitats, &c.) Regulations 1994 and allows English Nature or the Countryside Council for Wales to install markers so that the designated area can be identified at sea. However, they cannot install such markers unless they first have the necessary consents, in order to ensure that navigation, in particular, is not adversely affected by the markers.

15.     Subsection (10) allows English Nature and the Countryside Council for Wales to modify any aspects of a confirmed notification at any time in the future. This could include the area designated, the reasons for which it is considered special (either added, or removing interest), to redefine the conservation objectives for the site and to amend any advice they have given in the 'conservation statement'. By virtue of section 1(12), the normal designation procedures described above apply to any modification (including consultation and confirmation by the Secretary of State and the National Assembly for Wales). Once the modification is confirmed, then the notification has effect in its modified form.

16.     Subsection (11) is similar to subsection (10) but allows English Nature or the Countryside Council for Wales to denotify all or part of the designated site where the original interest of the site has, for one reason or another, been lost. Again, by virtue of section 1(12), the normal designation procedures described above apply (including consultation and confirmation by the Secretary of State and the National Assembly for Wales).

Clause 2

17.     This clause requires English Nature and the Countryside Council for Wales to establish and maintain a register or list of the designated MSSIs and to keep the list up to date (i.e. maintain) in light of any changes made to the sites designated. The register must be freely available for inspection.

18.     This requirement reflects the duty found in Regulation 11 of the Conservation (Natural Habitats, &c.) Regulations 1994 in relation to European Marine Sites and the concept of designations being a 'local land charge' as found in section 28 of the 1981 Act. It ensures that anyone who wishes or needs to know whether a particular area is designated can do so.

Clause 3

19.     This clause defines the conservation duties of Competent Marine Authorities in relation to marine sites of special interest and specifies certain procedures that must be followed when it is proposed to carry out or permit to be carried out activities likely to damage a site. These duties reflect those given to 'statutory undertakers' on land by section 28 G, H and I of the 1981 Act.

20.     Subsection (3) is adapted from section 28G(1) and (2) of the 1981 Act and provides a strong duty on public bodies to take 'reasonable steps' to further the conservation of MSSIs so far as is consistent with the proper exercise of their existing functions. Competent marine authorities are defined in section 7 and includes ministers, all government departments and other public bodies, reflecting the definition of 'section 28G authorities' in the 1981 Act.

21.     This subsection applies additional duties on Competent marine authorities:

  • Paragraph (a) is adapted from section 28H(1) of the 1981 Act and reflects the consultation requirement found in Regulation 48(3) of the Conservation (Natural Habitats, &c.) Regulations 1994. It requires Competent marine authorities to notify English Nature or the Countryside Council for Wales when they intend to carry out, or permit the carrying out of, operations that are likely to damage MSSIs. This would not just include those activities that would take place within a site, but also any activity that might have an impact wherever it might take place. It also requires the Competent Marine Authority to take account of any advice that English Nature or the Countryside Council for Wales may provide. However, by virtue of subsection (3), a Competent Marine Authority does not have to consult English Nature or the Countryside Council for Wales if the activity they wish to carry out or permit is consistent with a management scheme for the site. This concept has been adapted from section 28E(2) and (3) of the 1981 Act. The approach has been requested by English Nature, the Countryside Council for Wales and others in order to prevent a massive number of notifications concerning inconsequential operations. It should greatly reduce bureaucracy.

  • Subsection (b) requires Competent Marine Authorities to take reasonable steps to implement a MSSI management scheme (where one exists), when exercising their functions. This would, for example, include the making of byelaws to conserve site interest and the review of existing consents if necessary.

22.     English Nature and the Countryside Council for Wales have a duty to produce an annual report on the exercise and performance of their functions to that date. Subsection (4) ensures that the annual report includes details of the designation, protection and management of MSSIs as well.

Clause 4

23.     This clause provides for the establishment of management schemes for marine sites of special interest. It reflects Regulation 34 of the Conservation (Natural Habitats, &c.) Regulations 1994.

24.     Under the terms of subsection (1), any Relevant Marine Authority may, along with any other Relevant Marine Authority and in consultation with English Nature and/or the Countryside Council for Wales, establish a management scheme (reflecting Regulation 34(1) of the Conservation (Natural Habitats, &c.) Regulations 1994). Under such a management scheme, those Relevant Marine Authorities who developed it shall exercise their functions (including any byelaw making powers they may have) so as to secure the conservation objectives for the MSSI. Relevant Marine Authorities are defined in section 7 as all competent marine authorities except Government Ministers and departments and the National Assembly for Wales.

25.     Subsection (2) reflects Regulation 34(2) of the Conservation (Natural Habitats, &c.) Regulations 1994 and means that in relation to a MSSI, only one management scheme may be developed. Individual Relevant Marine Authorities cannot each develop their own management schemes; rather, they must work together to develop one scheme that will represent a consensus view concerning management of the site.

26.     Subsection (3) aims to avoid unnecessary duplication and overlap between the management of different of nature conservation designations. MSSI management schemes cannot be developed for areas where a management scheme has been (or will be) developed for a European Marine Site.

27.     Subsection (4) reflects Regulation 34(3) of the Conservation (Natural Habitats, &c.) Regulations 1994 and simply requires any management scheme established to be reviewed and if necessary amended from time to time. It requires the Relevant Marine Authorities to monitor the effectiveness of the scheme and whether it is achieving the conservation objectives of the site.

28.     Subsection (5) requires the Relevant Marine Authorities who developed the scheme to ensure English Nature or the Countryside Council for Wales have a copy (or amended copy as the case may be), since it is possible for a management scheme to be established without the full involvement of either English Nature or the Countryside Council for Wales (although under subsection (1) they must be consulted). This reflects Regulation 34(4) of the Conservation (Natural Habitats, &c.) Regulations 1994.

Clause 5

29.     Clause 5 provides the Secretary of State and the National Assembly for Wales with certain powers to direct the development and implementation of a management scheme for a MSSI, where it is felt not enough is being done to secure the protection and management of the site. It reflects Regulation 35 of the Conservation (Natural Habitats, &c.) Regulations 1994.

30.     Subsection (1) reflects Regulation 35(1) of the Conservation (Natural Habitats, &c.) Regulations 1994 and gives the Secretary of State (in England) and the National Assembly for Wales (in Wales) the power to direct any or all of the Relevant Marine Authorities in relation to a management scheme for a MSSI. Such a direction may require Relevant Marine Authorities to establish a management scheme, or for a particular Relevant Marine Authority to become involved. It may direct for certain actions to be included in a management scheme or for certain actions to be carried out. Where a direction is not followed, then the only recourse would be a mandatory order (formerly writ of mandamus).

31.     Whilst a direction made under subsection (1) may cover anything in relation to a management scheme for a MSSI, subsection (2) provides clarification on what a direction may specifically require. A direction can require certain conservation measures to be included in the management scheme, appoint a Relevant Marine Authority to co-ordinate the production of a scheme (particularly important where there are a number of Relevant Marine Authorities involved) and to require actions to be carried out by a specific time. These reflect some of the matters covered by Regulation 35(2) of the Conservation (Natural Habitats, &c.) Regulations 1994.

32.     Reflecting Regulation 35(3) of the Conservation (Natural Habitats, &c.) Regulations 1994, subsection (3) provides that when a management scheme is not adequately giving effect to the conservation objectives of a MSSI, the Secretary of State (in England), or the National Assembly for Wales (in Wales) may also direct Relevant Marine Authorities to amend a scheme of management for a MSSI. The direction may be a simple requirement to amend the scheme, or it may specify in detail how a scheme should be amended.

33.     Subsection (6) requires the Secretary of State (in England) and the National Assembly for Wales (in Wales) to make directions in writing and allows them to amend or vary existing directions by issuing a further direction (see Regulation 35(4) of the Conservation (Natural Habitats, &c.) Regulations 1994).

Clause 6

34.     Clause 6 allows English Nature and the Countryside Council for Wales to introduce byelaws for the protection and management of MSSIs, where other Relevant marine authorities are unable to act due to statute constraining the making of byelaws themselves. The byelaws are made under section 37 of the 1981 Act and may not interfere with the exercise of any Competent Marine Authority's functions or affect the rights of anybody else. The section is a copy of Regulation 36 of the Conservation (Natural Habitats, &c.) Regulations 1994.

35.     Subsection (1) is based on Regulation 36(1) of the Conservation (Natural Habitats, &c.) Regulations 1994. It allows English Nature and the Countryside Council for Wales to make byelaws for the protection and management of a MSSI using the byelaw making powers afforded to them under section 37 of the 1981 Act. Under section 37, English Nature and the Countryside Council for Wales require the consent of the Secretary of State and/or the National Assembly for Wales before making any byelaw.

36.     Subsection (2) is taken from Regulation 36(2) of the Conservation (Natural Habitats, &c.) Regulations 1994. This applies section 37(2) to 37(11) of the 1981 Act to the making of byelaws for MSSIs and amongst other things:

  • Defines the reasons for which byelaws may be made. This includes the prohibiting or restricting of entry into and movement within a MSSI, the killing, taking, destruction, disturbance, etc. of any of the interest or the doing of anything that may interfere with the seabed, and the deposit of rubbish. Byelaws may provide for permits which allow activities that would otherwise be unlawful. There would be constraints on what byelaws can restrict in terms of rights of navigation; they could not make unlawful discharges from ships or anything done more than thirty metres below the seabed;

  • Applies the provisions of the Local Government Act 1972 to the procedures for making byelaws; and

  • Allows the Secretary of State to make amendments to byelaws and to revoke byelaws.

37.     Subsection (3) comes from Regulation 36(3) of the Conservation (Natural Habitats, &c.) Regulations 1994. This ensures that byelaws made for the protection and management of MSSIs do not interfere with Competent marine authorities going about their functions and duties. They also cannot interfere with the rights of any person. However, this does not mean that third party activities exercised as a right (e.g., fishing, navigation) cannot be regulated for MSSI conservation purposes. Such activities where appropriate should be managed by the appropriate Relevant Marine Authority through a management scheme.

Clause 7

38.     Clause 7 provides for the necessary definitions:

  • The Bill refers to European Marine Sites in a number of places (e.g. 1(1)(a) and 4(3)). The definition reflects that given in Regulation 2(1) of the Conservation (Natural Habitats, &c.) Regulations 1994.

  • The Bill refers to marine areas being those areas where MSSIs may be designated. The definition closely reflects the definition given to 'marine area' in Regulation 2(1) of the Conservation (Natural Habitats, &c.) Regulations 1994, but with one important difference. In the Bill, a marine area is restricted to areas seaward of the mean low water mark of ordinary tides. The key reason for this is to avoid any major overlap with the existing Sites of Special Scientific Interest system established under section 28 of the 1981 Act.

  • "Competent marine authorities" are defined widely. The definition provided is that also given under section 28 of the 1981 Act as 'section 28G authorities'.

  • "Relevant marine authorities" are a subset of the competent marine authorities. In effect, they are all competent marine authorities except Government ministers and departments and the National Assembly for Wales, and are those authorities who may be involved in MSSI management schemes and who the Secretary of State and the National Assembly for Wales may direct to do something in respect of a MSSI.

  • "Appropriate nature conservation body" is defined as English Nature (in England) and the Countryside Council for Wales (in Wales).

Clause 8

39.     The Bill only applies to the territorial waters of England and Wales. Implementation of the new legislation will require additional guidance to be developed. For example, guidance will need to be provided to English Nature and the Countryside Council for Wales on their new functions, duties and powers in relation to marine areas and MSSIs. Both English Nature and the Countryside Council for Wales will need to develop MSSI selection guidelines. Therefore, the Bill provides for its commencement by statutory instrument at such time that the Secretary of State (in England) and the National Assembly for Wales (in Wales) feel appropriate.

 
 
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Prepared: 24 October 2001