Ashfords Solicitors - Summary of the Government's White Paper on the Marine Bill

The Bill promises to be the shake-up of marine legislation that the Labour Government promised in their last election manifesto. The philosophy behind the bill is reorganisation of the current disjointed, and often confusing, legislation. The Bill is a long term plan with a 20 year timeline from Royal Assent to the implementation of all of its proposals.

The Bill will focus on five key, but linked, themes:

a new Marine Management Organisation (MMO);
a new system of marine planning;
a more efficient marine licensing system;
a new system to supplement existing marine conservation measures; and,
a restructuring of inshore fisheries.

A Marine Management Organisation (MMO)

It would not be possible to implement and manage the substantial changes that the Government wish to introduce without putting in place a body to administer it. This body will be the Marine Management Organisation (MMO). As yet the precise structure of the MMO is unknown, however, it is clear that management will be broken down into steering groups that will advise the MMO. These steering groups will be comprised of those organisations that currently regulate activities in the marine environment such as local and port authorities, the Crown Estate, the Environment Agency, advisory bodies such as Natural England, and the Sea Fisheries Committees. This list is not exhaustive and the White Paper makes it clear that the composition and operational structure of the MMO is not yet decided.

Strategic Marine Planning

This will be a function of the Secretary of State.

The marine environment faces ever-increasing pressures from climate change and competing marine industries. The Government now acknowledges that a shift to a more integrated approach with regards to managing marine ecosystems is necessary and states that the evidence for this is now compelling. One of the failures in the past of being able to deal with these pressures is the absence of a clear statement of policy for UK waters. To this end the White Paper proposes a simple 2 stage approach to planning (quoted from the White Paper):

The creation of a UK marine policy statement, agreed by all UK Government departments and the devolved administrations, which will articulate our joint vision and objectives for the marine environment and its uses; and
The creation of a series of marine plans, which will implement the policy statement in specific areas, using information about spatial uses and needs in those areas.

The Government hopes that this 2 stage approach will lead to a more forward-thinking approach to planning in the marine sector and may alleviate the reactive use of Environmental Impact Assessments and Strategic Environmental Assessments.

Development control and Licensing in the Marine Environment

The Marine Management Organisation is intended to become the one stop shop for all development control and licensing consents. The White Paper sells the Marine Bill to industry by offering the following benefits:

reduction in the need to apply for multiple licences for single developments;
reduction in the number of separate regimes that a business working in the marine area must deal with;
reduction of costs, modernisation and acceleration of the licensing process;
rationalisation of the number of regulatory bodies that businesses interface with; and,
increased regulatory certainty.

While energy companies generally welcome the benefits listed above they have raised concerns in the Financial Times over the potential for the new systems to add delays to much needed investments in the energy infrastructure.

The White Paper proposes the creation of a reformed marine licensing system based on the consolidation of Part II of the Food and Environment Protection Act 1985 (FEPA) and the Coast Protection Act 1949 (CPA) and may allow ministers to introduce new rules to regulate Carbon Capture and Storage (CCS). In the past, dredging has been a contentious subject for marine operators and developers, now all forms of dredging will be regulated in the reformed regime. Overlaps in port and harbour legislation will be removed, as well as redundant laws on cable laying.

The focus of the overhaul of the licensing regime is to create a streamlined approach to consents, the white paper makes a specific reference to the licensing of offshore renewable energy installations in this context.

The White Paper enables Government ministers to establish timescales set up by the reformed licensing regime and to exempt some activities from the need for licensing. For larger coastal projects, that under the current system would require several different licenses, the White Paper will give ministers the power to issue licences for extended programmes of linked activities to save developers from having to make multiple applications, a so-called one project:one [sic] license approach.

Marine Nature Conservation

The Government is concerned about the balance between adverse impacts on the marine environment and the benefits that we derive from the coastal and marine zone. To quote the White Paper; "in some cases these impacts are damaging marine species and habitats and having a negative influence on the capacity of marine ecosystems to support the goods and services they currently provide".

European Legislation (The Habitats Directive) has already allowed for the designation of Special Areas of Conservation (SAC) and Special Protection Areas (SPA). These European sites only protect those habitats and species of European importance. The White Paper puts forward a proposal to introduce Marine Conservation Zones (MCZ). MCZ will provide a way of protecting those nationally important features that cannot be protected by European law.

For those activities where the MCZ cannot introduce measures to manage their impact, the Government have introduced new by-law making powers. These powers are intended to be used to regulate the impact on marine biodiversity from, for example, recreational and tourist activities. Interim protection measures will be available while the lengthy by-law making process is undertaken. In the past it has been difficult to enforce conservation legislation. Enforcers, such as the Environment Agency, will be given new updated powers and a comprehensive set of tools to ensure compliance.

Non-statutory marine biodiversity objectives will be introduced in the form of Marine Ecosystem Objectives. While these objectives will be less formal than the statutory obligations they will feed into the overriding objectives of the Marine Strategy Directive.

Fisheries Management

The English Sea Fisheries Committees (SFC) will be modernised and given clearer purpose and duties. The SFC's evidence-based decision-making will be improved along with their by-law making and enforcement powers. With these increased powers and duties the SFC will also receive an increase in funding.

The use of Several and Regulating Orders to manage Shellfisheries will be encouraged. The White Paper suggests that this can be done through the removal of disincentives to regulate shellfisheries with Several or Regulating Orders. For information: a Several Order removes the public right to fish for named species within a certain area; and, a Regulating Order allows a wide range of controls to be placed over a public fishery. It is hoped that this will make Several and Regulating Orders a more practical way to manage shellfisheries.

Regulated and unregulated fishing activities will be managed by the introduction of new powers to charge for a rod licence. Catch limits for, and the regulation of, fishing undertaken from the shore will also be introduced.

In general the management and regulation of fishing will be modernised. The current enforcement powers to tackle Illegal, Unreported and Unregulated (IUU) fishing will be updated and strengthened. A system of administrative penalties for minor offences in the commercial sector will be introduced. Vessel licence charging powers will be changed to allow an easier and more flexible recovery of the costs of licence administration.

Consultation

The deadline for comments on the White Paper is 8 June 2007. For details of where to send comments on the White Paper and to find out more information, including viewing the White Paper, visit the Department for the Environment and Rural Affairs website at http://www.defra.gov.uk. In light of the number of administrative changes proposed, this should be done sooner, rather than later.

Ashfords is one of the very few legal practices outside major international centres, with a well established marine department. The firm's clients include major shipbuilding yards, ship repair and conversion yards, ship owners, charterers, marine insurers, harbour authorities, salvors, ship managers and ship agents, brokers and surveyors, freight forwarders, cargo insurers, average adjusters, reinsurers, offshore installation operators, and companies involved in offshore energy industries.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

16th March 2007

Key Contacts

Summary of the Government's White Paper on the Marine Bill

Introduction