Marine (Scotland) Act 2010

2010 asp 5

An Act of the Scottish Parliament to make provision in relation to functions and activities in the Scottish marine area, including provision about marine plans, licensing of marine activities, the protection of the area and its wildlife including seals and regulation of sea fisheries; and for connected purposes.

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 4th February 2010 and received Royal Assent on 10th March 2010

Part 1The Scottish marine area

1The “Scottish marine area”

1

For the purposes of this Act, the “Scottish marine area” means the area of sea within the seaward limits of the territorial sea of the United Kingdom adjacent to Scotland and includes the bed and subsoil of the sea within that area.

2

The boundaries between the parts of the territorial sea of the United Kingdom adjacent to Scotland and the parts not so adjacent are to be determined by reference to an Order in Council made under section 126(2) of the Scotland Act 1998 (c.46) to the extent that the Order in Council is expressed to apply for the purposes of that Act.

2“Sea”

In this Act, unless the context otherwise requires, “sea” includes—

a

any area submerged at mean high water spring tide,

b

the waters of every estuary, river or channel, so far as the tide flows at mean high water spring tide.

(See section 66 for the meaning of “sea” for the purposes of Part 5.)

Part 2General duties

I13Sustainable development and protection and enhancement of the health of the Scottish marine area

In exercising any function that affects the Scottish marine area under this Act—

a

the Scottish Ministers, and

b

public authorities

must act in the way best calculated to further the achievement of sustainable development, including the protection and, where appropriate, enhancement of the health of that area, so far as is consistent with the proper exercise of that function.

I24Mitigation of and adaptation to climate change

In exercising any function that affects the Scottish marine area under this Act, the Climate Change (Scotland) Act 2009 (asp 12), or any other enactment—

a

the Scottish Ministers, and

b

public authorities,

must act in the way best calculated to mitigate, and adapt to, climate change so far as is consistent with the purpose of the function concerned.

Part 3Marine planning

Marine plans

I35National marine plan and regional marine plans

1

The Scottish Ministers must prepare and adopt in accordance with schedule 1 a national marine plan for the Scottish marine area.

2

The Scottish Ministers may prepare and adopt in accordance with that schedule a regional marine plan for any Scottish marine region (see subsection (5)).

3

A national marine plan or (as the case may be) a regional marine plan is a document which—

a

states the Scottish Ministers' policies (however expressed) for and in connection with the sustainable development of the area to which the plan applies,

b

states the Scottish Ministers' policies on the contribution of—

i

Nature Conservation MPAs (namely areas designated as such by order under section 67(1)(a)), and

ii

sites falling within section 79(4),

to the protection and enhancement of the area to which the plan applies,

c

states that it is a national marine plan or (as the case may be) a regional marine plan prepared and adopted for the purposes of this section.

4

For the purposes of preparing a national marine plan or (as the case may be) a regional marine plan, the Scottish Ministers must—

a

set—

i

economic, social and marine ecosystem objectives,

ii

objectives relating to the mitigation of, and adaptation to, climate change,

b

prepare an assessment of the condition of the Scottish marine area or, as the case may be, Scottish marine region at the time of the plan's preparation,

c

prepare a summary of significant pressures and the impact of human activity on the area or region.

5

The Scottish Ministers may by order designate any part of the Scottish marine area as a Scottish marine region; and any such order must identify the boundaries of the Scottish marine region.

6

A national marine plan or (as the case may be) a regional marine plan may also include statements or information relating to policies contained in the plan.

7

If to any extent a policy stated in a national marine plan or a regional marine plan conflicts with any other statement or information in the plan, that conflict must be resolved in favour of the policy.

I46Conformity of marine plans with other documents

1

A national marine plan and a regional marine plan must be in conformity with any marine policy statement currently in effect for the Scottish marine area, unless relevant considerations indicate otherwise.

2

A regional marine plan must be in conformity with any national marine plan currently in effect, unless relevant considerations indicate otherwise.

3

For the purposes of this Part, a marine policy statement is “currently in effect” for the Scottish marine area if—

a

the statement has been adopted by the Scottish Ministers in accordance with Schedule 5 to the 2009 Act,

b

the statement has been published in accordance with paragraph 12 of that Schedule,

c

the statement has not been replaced by a later marine policy statement (see section 45(3) of that Act),

d

the Scottish Ministers have not withdrawn from the statement in accordance with section 48 of that Act, and

e

the statement has not been withdrawn (by virtue of the withdrawal of the Secretary of State in accordance with that section).

I57Coming into effect of marine plans

A national marine plan or (as the case may be) a regional marine plan comes into effect when the plan is published by the Scottish Ministers in accordance with schedule 1.

I68Amendment of marine plans

1

A national marine plan or (as the case may be) a regional marine plan may be amended from time to time by the Scottish Ministers.

2

Any amendment of any such plan must be prepared and adopted in accordance with schedule 1.

I79Withdrawal of marine plans

1

7

In this section “delegable functions in relation to a regional marine plan” means the following functions in relation to any such plan—

a

those under sections 5, 8 or 11,

b

those under section 16 (monitoring etc. of implementation),

but excluding the excepted functions.

8

The excepted functions are the following functions in relation to any such plan—

a

deciding under paragraph 4 of schedule 1 whether to prepare and publish a statement of public participation,

b

deciding under paragraph 6 of that schedule whether to revise a statement of public participation,

c

deciding under paragraph 9 of that schedule whether to publish a consultation draft,

d

deciding under paragraph 14 of that schedule whether to publish a regional marine plan or any amendment of such a plan.

I1113Directions under section 12: supplementary provision

1

Where the Scottish Ministers give a direction under section 12, they must publish it in such manner as they consider most likely to bring it to the attention of persons likely to be interested in or affected by it.

2

For so long as any such direction remains in effect, the designated functions are exercisable by the delegate acting on behalf of the Scottish Ministers (and are not exercisable by the Scottish Ministers).

3

But subsection (2) is subject to any provision to the contrary which—

a

is made by the direction, or

b

is included in a direction under section 14.

4

A direction under section 12 may include—

a

such terms or conditions,

b

such obligations or requirements,

c

such financial provisions,

as the Scottish Ministers may determine.

5

A direction under section 12 may make different provision for different cases, different areas or different delegates.

6

The Scottish Ministers may make grants to a delegate for the exercise of the designated functions.

I1214Directions to delegates as regards performance of designated functions

1

This section applies where any functions are exercisable by a delegate by virtue of a direction given under section 12.

2

The Scottish Ministers may from time to time give directions to the delegate with respect to the performance of the functions.

3

Before giving any direction under this section, the Scottish Ministers must consult the delegate.

4

A delegate given a direction under this section must comply with the direction.

5

Where the Scottish Ministers give a direction under this section, they must publish it in such manner as they consider most likely to bring it to the attention of persons likely to be interested in or affected by it.

Decisions of public authorities affected by a marine plan

I1315Decisions of public authorities affected by marine plans

1

A public authority must take any authorisation or enforcement decision in accordance with the appropriate marine plans, unless relevant considerations indicate otherwise.

2

If a public authority makes an authorisation or enforcement decision otherwise than in accordance with the appropriate marine plans, it must state its reasons.

3

A public authority must have regard to the appropriate marine plans in making any decision—

a

which relates to the exercise by them of any function capable of affecting the whole or any part of the Scottish marine area, but

b

which is not an authorisation or enforcement decision.

4

In this section—

a

an “authorisation or enforcement decision” is any of the following—

i

the determination of any application (whenever made) for authorisation of the doing of any act which affects or might affect the whole or any part of the Scottish marine area,

ii

any decision relating to any conditions of any such authorisation,

iii

any decision about extension, replacement, variation, revocation or withdrawal of any such authorisation or any such conditions (whenever granted or imposed),

iv

any decision relating to the enforcement of any such authorisation or any such conditions,

v

any decision relating to the enforcement of any prohibition or restriction (whenever imposed) on the doing of any act, or of any act of any description, falling within sub-paragraph (i),

b

“the appropriate marine plans” are—

i

a national marine plan which is in effect,

ii

to the extent that a decision falling within subsection (1) or (3) relates to a Scottish marine region, any regional marine plan which is in effect for the region.

5

In this section—

“act” includes omission,
“authorisation” means any approval, confirmation, consent, licence, permission or other authorisation (however described), whether special or general.

Monitoring and reporting

I1416Monitoring of and periodical reporting on implementation of marine plans

1

For so long as a national marine plan or (as the case may be) a regional marine plan is in effect, the Scottish Ministers must keep under review in relation to each such plan the matters in subsection (2).

2

The matters are—

a

the effects of the policies in the plan,

b

the effectiveness of the policies in securing that the objectives for which the plan was prepared and adopted are met,

c

the progress being made towards securing the objectives,

d

the progress being made towards securing that the objectives in the regional marine plan secure the objectives in the national marine plan.

3

The Scottish Ministers must from time to time prepare and publish a report on the matters kept under review in pursuance of subsection (1).

4

After publishing a report under subsection (3), the Scottish Ministers must decide whether or not to amend or replace the national marine plan or (as the case may be) the regional marine plan.

5

The first report must be published before the expiry of 5 years beginning with the date on which the marine plan concerned was adopted.

6

After the publication of the first report, successive reports must be published at intervals of no more than 5 years following the date of publication of the previous report.

7

Any reference in this section to the replacement of a national marine plan or (as the case may be) a regional marine plan is a reference to—

ii

in directions under section 12 or 14,

which relates to the preparation, adoption or publication of a relevant document,

c

“relevant document” means—

i

a national marine plan,

ii

an amendment of a national marine plan,

iii

a regional marine plan,

iv

an amendment of a regional marine plan.

I1618Powers of the Court of Session on an application under section 17

1

This section applies in any case where an application is made to the Court of Session (“the Court”) under section 17.

2

The Court may make an interim order suspending the operation of the relevant document—

a

wholly or in part,

b

7

The powers of the Court under subsections (4) and (5) are exercisable in relation to the whole or any part of the relevant document.

Interpretation of Part 3

19Interpretation of Part 3

In this Part—

“adopted”, in the case of a national marine plan or a regional marine plan, is to be construed in accordance with section 5(1) and paragraph 14 of schedule 1; and related expressions are to be construed accordingly,
“marine policy statement” is to be construed in accordance with sections 44 and 47 of the 2009 Act,
“national marine plan” has the meaning given in section 5 (and any reference to a national marine plan includes a reference to it as amended),
“regional marine plan” has the meaning given in section 5 (and any reference to a regional marine plan includes a reference to it as amended).

Part 4Marine licensing

Requirement for licence

20Requirement for licence

1

No person may—

a

carry on a licensable marine activity, or

b

cause or permit any other person to carry on such an activity,

22Pre-application consultation: preliminary

1

The Scottish Ministers may by regulations prescribe classes or descriptions of licensable marine activity.

2

Where a licensable marine activity is of such a class or description, section 23 applies to a prospective applicant for a marine licence in respect of that activity.

3

The Scottish Ministers, if satisfied that a prospective applicant is applying for a marine licence in respect of a licensable marine activity—

a

which—

i

is an activity which has previously been carried on at the site to which the application relates (or at a similar site), or

ii

is similar to such an activity, and

b

for which a licence has previously been granted,

may determine that section 23 does not apply to the application.

4

Regulations under subsection (1) may also make provision—

a

as to the right of a prospective applicant for a marine licence to notify the Scottish Ministers requiring a statement from them as to whether or not, in their opinion, the activity in respect of which the licence is being sought is of such a class or description,

b

as to the manner in which—

i

notification under paragraph (a) is to be exercised, including provision as to the information that the prospective applicant is to provide,

ii

a statement under paragraph (a) is to be provided, including provision as to when a statement must be provided following receipt of sufficient information to determine the matter,

c

as to the power of the Scottish Ministers to require further information in order to determine the application,

d

as to the effect of a statement under paragraph (a),

e

as to any other matter the Scottish Ministers consider necessary or expedient for the purposes of this section.

In considering whether to give notification under subsection (6), the Scottish Ministers are to have regard to the nature, extent and location of the proposed activity, and to the likely effects at and in the vicinity of that location, of its being carried out.

24Pre-application consultation report

1

A person who, before submitting an application for a marine licence, was required to comply with section 23 and who proceeds to submit that application must prepare a report as to what has been done to effect such compliance.

2

A report under subsection (1) is to be in such form as the Scottish Ministers may by regulations prescribe.

Licences

25Application for licence

1

The Scottish Ministers may require an application for a marine licence to be—

a

4

If the Scottish Ministers in pursuance of subsection (1)(a) publish notice of an application, they may require the applicant to pay a fee towards the reasonable expenses of the publication.

5

If an applicant fails to pay a fee required by the Scottish Ministers under subsection (4), the Ministers may—

a

refuse to proceed with the application,

b

refuse to proceed with it until the failure is remedied.

6

This section does not apply in relation to an application where the Scottish Ministers consider that notice of the application should not be published.

1

The Scottish Ministers may cause an inquiry to be held in connection with their determination of an application for a marine licence.

2

Subsections (2) to (8) of section 210 of the Local Government (Scotland) Act 1973 (c.65) apply to any inquiry the Scottish Ministers may cause to be held under subsection (1) as they apply to inquiries under that section.

3

Where—

a

an inquiry is caused by the Scottish Ministers to be held under subsection (1), and

b

in the case of some other matter required or authorised to be the subject of an inquiry (“the other inquiry”), it appears to the relevant authority or authorities that the matters are so far cognate that they should be considered together,

the relevant authority or authorities may direct that the two inquiries be held concurrently or combined as one inquiry.

4

In subsection (3), “the relevant authority or authorities” means the Scottish Ministers or, where causing the other inquiry to be held is the function of some other person or body, the Scottish Ministers and that other person or body acting jointly.

The Scottish Ministers must not grant a licence to carry on any activity which is contrary to international law.

7

In subsection (4), “specified” means specified in the licence concerned.

30Variation, suspension, revocation and transfer

1

The Scottish Ministers may by notice vary, suspend or revoke a licence granted by them if it appears to them that there has been a breach of any of its provisions.

2

The Scottish Ministers may by notice vary, suspend or revoke a licence granted by them if it appears to them that—

a

in the course of the application for the licence the applicant either—

i

supplied information to them that was false or misleading, or

ii

failed to supply information that the applicant might reasonably have been expected to supply, and

b

if the correct information had been supplied—

i

they would have, or

ii

it is likely that they would have,

refused the application or granted the licence in different terms.

3

The Scottish Ministers may by notice vary, suspend or revoke a licence granted by them if it appears to them that the licence ought to be varied, suspended or revoked for any of the following reasons—

a

because of a change in circumstances relating to the environment or human health,

b

because of increased scientific knowledge relating to either of those matters,

c

in the interests of safety of navigation,

d

for any other reason that appears to the Ministers to be relevant.

4

Any suspension under subsection (1), (2) or (3) is for such period as the Scottish Ministers may specify in the notice of suspension.

5

The Scottish Ministers may by further notice extend the period of the suspension.

6

But a licence may not by virtue of this section be suspended in total for a period exceeding 18 months.

7

On an application made by a licensee, the Scottish Ministers may vary a licence if satisfied that the variation being applied for is not material.

8

On an application made by a licensee, the Scottish Ministers—

a

may transfer the licence from the licensee to another person, and

b

if they do so, must vary the licence accordingly.

9

A licence may not be transferred except in accordance with subsection (8).

ii

such procedural provisions of the Electricity Act as are specified in the order.

4

In this section—

“the Electricity Act” means the Electricity Act 1989 (c.29),
“procedural provisions” means any provisions for or in connection with the procedure for determining an application.

36Electronic communications apparatus

1

The Scottish Ministers must not issue a licence to carry out any activity which amounts to or involves the exercise of a right conferred by paragraph 11 of the electronic communications code set out in Schedule 2 to the Telecommunications Act 1984 (c.12) (works in connection with electronic communications apparatus) unless they are satisfied that adequate compensation arrangements have been made.

2

For the purposes of subsection (1), adequate compensation arrangements are adequate arrangements for compensating any persons who appear to the Scottish Ministers to be owners of interests in the tidal water or lands on, under or over which the right is to be exercised, for any loss or damage sustained by those persons in consequence of the activity being carried out.

37Submarine cables

1

This section applies where a stretch of exempt submarine cable—

a

is proposed to be laid,

b

is in the course of being laid,

c

has been laid,

beyond the seaward limits of the territorial sea.

2

The Scottish Ministers must grant any application made to them for a marine licence for the carrying on of a licensable marine activity in the course of laying any stretch of the cable in the Scottish marine area.

3

The Scottish Ministers have the same powers to attach conditions to a marine licence granted by virtue of subsection (2) as they have in relation to any other marine licence (see section 29(1) to (3)).

4

Nothing in this Part applies to anything done in the course of maintaining any stretch of the cable in the Scottish marine area.

5

For the purposes of this section a submarine cable is “exempt” unless it is a cable constructed or used in connection with any of the following—

a

the exploration of the UK sector of the continental shelf,

b

the exploitation of the natural resources of that sector,

c

the operations of artificial islands, installations and structures under the jurisdiction of the United Kingdom,

d

the prevention, reduction or control of pollution from pipelines.

6

In this section—

“natural resources” means—
1. a
  the mineral and other non-living resources of the sea bed and subsoil, together with
2. b
  living organisms belonging to sedentary species,
“living organisms belonging to sedentary species” means organisms which, at the harvestable stage, are either—
1. a
  immobile on or under the sea bed, or
2. b
  unable to move except in constant physical contact with the sea bed or the subsoil,
“UK sector of the continental shelf” means the areas for the time being designated by an Order in Council under section 1(7) of the Continental Shelf Act 1964 (c.29).

Appeals against licensing decisions

38Appeals against licensing decisions

1

The Scottish Ministers must by regulations make provision for any person who applies for a marine licence to appeal to the sheriff against a decision under section 29.

2

The regulations required by subsection (1) must come into force on the day on which this Part comes into force.

3

The regulations may include provision—

a

as to the procedure to be followed as respects an appeal,

b

for or in connection with suspending or varying any conditions subject to which the licence was granted, pending determination of the appeal,

c

as to the powers of the sheriff to whom the appeal is made.

Offences

39Breach of requirement for, or conditions of, licence

1

A person who—

a

contravenes section 20(1), or

b

fails to comply with any condition of a marine licence,

commits an offence.

2

A person who is bound by a condition of a licence by virtue of section 29(5) is not to be taken as having failed to comply with the condition unless the requirements of subsection (3) are satisfied.

3

The requirements are that—

a

the Scottish Ministers have served the person with a notice under this subsection which specifies the condition together with a period (which must be a reasonable period, in all the circumstances of the case) within which the person must comply with the condition,

b

the person has failed to comply with the condition within that period.

4

A person guilty of an offence under subsection (1) is liable—

a

on summary conviction, to a fine not exceeding £50,000,

b

on conviction on indictment, to a fine or to imprisonment for a period not exceeding 2 years, or to both.

the necessity for the activity was due to the fault of the accused or a person acting under the accused's direction or control.

41Defences: electronic communications: emergency works

1

It is a defence for a person charged with an offence under section 39(1) in relation to any activity to prove that—

require the person to take such steps as the Scottish Ministers consider appropriate to ensure that the condition in question is complied with,

c

state the period before the end of which those steps must be taken.

such purposes not falling within the preceding paragraphs as the Scottish Ministers consider appropriate in all the circumstances of the case.

a remediation notice,

commits an offence.

4

A person guilty of an offence under subsection (3) is liable—

a

on summary conviction, to a fine not exceeding £50,000,

b

on conviction on indictment, to a fine or to imprisonment for a period not exceeding 2 years, or to both.

Civil sanctions

46Fixed monetary penalties

1

The Scottish Ministers may by order make provision about the imposition of fixed monetary penalties on persons in relation to offences under this Part.

2

Provision under subsection (1) must provide that—

a

fixed monetary penalties may only be imposed where the Scottish Ministers are satisfied beyond reasonable doubt that a person has committed an offence under this Part,

b

fixed monetary penalties are to be imposed by notice,

c

the amount of the penalty which can be imposed in relation to an offence may not exceed the maximum amount of the fine that may be imposed on summary conviction for that offence.

3

For the purpose of this Part, a “fixed monetary penalty” is a requirement to pay to the Scottish Ministers a penalty of a specified amount.

4

For the purposes of this section “specified” means specified in an order made under this section.

the decision was wrong in law,

c

the decision was unreasonable.

7

In this section “specified” means specified in an order made under section 46.

48Variable monetary penalties

1

The Scottish Ministers may by order make provision about the imposition of variable monetary penalties on persons in relation to offences under this Part.

2

Provision under subsection (1) must provide that—

a

variable monetary penalties may only be imposed where the Scottish Ministers are satisfied beyond reasonable doubt that a person has committed an offence under this Part,

b

variable monetary penalties are to be imposed by notice.

3

For the purposes of this Part a “variable monetary penalty” is a penalty of such amount as the Scottish Ministers may in each case determine.

section 54(3) (making regulations regarding a register of licensing information),

l

section 61 (making regulations regarding appeals against notices issued under sections 30, 43, 44, 55 or 57).

52Orders under section 51: supplementary provisions

1

For so long as an order made under section 51 remains in force, the designated functions are exercisable by the delegate acting on behalf of the Scottish Ministers (and are not exercisable by the Scottish Ministers).

2

Subsection (1) is subject to any provision to the contrary which is included in the order.

3

An order under section 51 may include—

a

such terms or conditions,

b

such obligations or requirements,

c

such financial provisions,

as the Scottish Ministers may determine.

4

The provision that may be made under subsection (3) includes, in particular, provision (where appropriate) as to—

a

the manner in which the delegate is to exercise any of the functions,

b

the form and manner in which licence applications must be made to the delegate,

c

the persons to whom notice of an application should be published under section 26, and the circumstances in which such notice should not be published,

d

matters (in addition to those set out in section 27) to which the delegate must have regard in determining applications for licences,

e

the circumstances in which the delegate must exercise the power to consult under section 27(4), and the persons who must or may be consulted,

f

the form and content of any licence granted,

g

appeals from any decision of the delegate (whether to the Scottish Ministers, a court, tribunal or (as the case may be) person to which, or whom, the appeal is made),

h

any other provision that may be made by virtue of section 27(7).

5

An order under section 51 may make different provision for different cases or different delegates.

6

Where an order has been made under section 51 that a delegate is to grant licences—

a

the delegate may (in accordance with subsections (1) to (3) and (8) of section 30) vary, suspend, revoke or transfer a licence granted before making the order, and

b

any reference in those subsections to a licence granted by the Scottish Ministers includes a reference to a licence granted by the delegate.

7

The Scottish Ministers may make grants to a delegate for the exercise of the designated functions.

53Directions to delegates as regards the performance of the marine licensing designated functions

on conviction on indictment, to a fine or to imprisonment for a period not exceeding 2 years, or both.

may require the person to take such steps as the Scottish Ministers consider appropriate to ensure that compliance with the requirements takes place safely.

58Further provision as to emergency safety notices

c

interference with legitimate uses of the sea.

the accused is not, without leave of the court, entitled to rely on the defence unless the requirement in subsection (5) is satisfied.

5

The requirement is that—

a

at least 7 clear days before the hearing, and

b

if the accused has previously appeared before a court in connection with the alleged offence, within one month of the first such appearance,

the accused has served on the prosecutor a notice giving such information identifying or assisting in the identification of the other person as was then in the accused's possession.

Power by order to provide marine fish farming is not “development”

63Power by order to provide marine fish farming is not “development”

1

The Town and Country Planning (Scotland) Act 1997 (c.8) is amended as follows.

2

In section 26(1) (meaning of “development”), after “section” where it first occurs insert “ and to section 26AB ”.

3

After section 26AA, insert—

26ABPower by order to provide marine fish farming is not “development”
1
The Scottish Ministers may by order provide that—
a
section 26(6) does not apply as respects the placing or assembly of equipment for the purpose of fish farming in waters identified in the order (the “relevant waters”),
b
section 26(6AA) does not apply as respects any material change in the use of equipment so placed or assembled for that purpose, and
c
the operation of a marine fish farm in the relevant waters in the circumstances specified in section 26AA is not “development” for the purposes of this Act.
2
An order under subsection (1) may be made only with the agreement of the planning authority (or planning authorities) for the relevant waters; and in this subsection the “planning authority” means the planning authority specified in an order under section 26(6D).

4

In section 275 (regulations and orders)—

a

in subsection (4), after “26(2)(f), (6A) and (6C),” insert “ 26AB(1), ”,

b

in subsection (5A), after “26(6A) or (6C)” insert “ or 26AB(1) ”.

Interpretation of Part 4

64Interpretation of Part 4

1

In this Part—

“marine licence” means a licence granted under this Part,
“vessel” includes—
1. a
  hovercraft,
2. b
  any other craft capable of travelling on, in or under water, whether or not self propelled.

2

In this Part any reference to the environment includes a reference to any site (including any site comprising, or comprising the remains of, any vessel, aircraft or marine structure) which is of historical or archaeological interest.

Part 5Marine protection and enhancement: the Scottish marine protection area

The Scottish marine protection area

65The Scottish marine protection area

1

For the purposes of this Act, the “Scottish marine protection area” means the Scottish marine area, excluding any waters upstream of the fresh-water limit of estuarial waters.

2

In this Part, “estuarial waters” means any waters within the limits of transitional waters, within the meaning of Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy (as amended from time to time).

66“Sea” for the purposes of this Part

For the purposes of this Part, “sea” has the meaning given in section 2, except that it does not include any waters upstream of the fresh-water limit of estuarial waters.

Designation of marine protected areas

I1767Marine protected areas

b

the conservation objectives for,

the Nature Conservation MPA.

4

Before designating an area as a Nature Conservation MPA, the Scottish Ministers must have regard to the extent to which the designation of the area would contribute towards the development of a network of conservation sites (namely a network referred to in section 79(2)).

5

For the purposes of subsection (1)(a), conserving marine flora or fauna includes (in particular) conserving any species that is rare or threatened because of—

a

the limited number of individuals of that species,

b

the limited number of locations in which that species is present.

6

For the purposes of subsection (1)(a) and (b)(i), conserving marine flora or fauna, or (as the case may be) marine habitat or types of such habitat includes conserving the diversity of such flora or fauna or (as the case may be) such habitats or types of such habitats, whether or not any or all of them are rare or threatened.

7

In considering whether to designate an area, the Scottish Ministers may have regard to the extent to which doing so will contribute to the mitigation of climate change.

8

In considering whether it is desirable to designate an area as a Nature Conservation MPA, the Scottish Ministers may have regard to any social or economic consequences of designation.

9

In considering whether to designate an area, the Scottish Ministers may have regard in particular to the views of any relevant delegate as to the desirability of conserving—

a

marine flora or fauna,

b

marine habitats or types of such habitat,

c

features of geological or geomorphological interest,

in the area.

10

In considering whether to designate a Nature Conservation MPA for a purpose referred to in subsection (1)(b), the matters to which the Scottish Ministers may have regard include the degree to which a marine habitat or type of such habitat or (as the case may be) a feature of geological or geomorphological interest is representative of its type.

11

For the purposes of—

a

this section, conserving a thing includes—

i

assisting in its conservation,

ii

enabling or facilitating its recovery or increase,

b

subsection (9), a “relevant delegate” means any delegate designated in a direction under section 12(1)(b) to exercise functions in relation to a regional marine plan for the Scottish marine region in which any part of the proposed Nature Conservation MPA lies.

have regard to any social or economic consequences of designation.

4

For the purposes of subsection (3)(a), a “relevant delegate” means any delegate designated in a direction under section 12(1)(b) to exercise functions in relation to a regional marine plan for the Scottish marine region in which any part of the proposed Demonstration and Research MPA lies.

I2272Demonstration and Research MPAs: further provision

f

a deposit or artefact (whether or not formerly part of a cargo of a ship) or any other thing which evidences, or groups of things which evidence, previous human activity.

Amendment or revocation of designation orders

I2474Amendment or revocation of designation orders

A designation order may be amended or revoked by a further such order.

Consultation, urgent designation, representations etc.

I2575Publicity and consultation etc. before designation

1

Before making a designation order (or an order amending or revoking any such order), the Scottish Ministers must (except where section 77 provides otherwise)—

a

publish notice of their proposal to make the order,

b

consult such persons as they consider are likely to be interested in or affected by the making of the order—

i

including, in particular, any local authority whose area is adjacent to the likely boundaries of the area proposed to be designated,

ii

including those specified by virtue of section 27(4)(a).

2

Notice under subsection (1)(a) must—

a

be published in such manner as the Scottish Ministers consider is most likely to bring the proposal to the attention of any persons likely to be affected by the making of the order,

b

contain a statement of the terms of the proposed order,

c

indicate where a plan or chart identifying the area's boundaries can be obtained or inspected.

I2676Publicity in relation to designation orders

1

This section applies where the Scottish Ministers have made a designation order (or an order amending or revoking any such order).

2

The Scottish Ministers must publish notice of the making of the order.

3

The notice under subsection (2) must—

a

be published in such a manner as the Scottish Ministers consider is most likely to bring the order to the attention of any persons likely to be affected by the making of it,

b

give an address at which a copy of the order may be inspected.

4

The Scottish Ministers must—

a

make a copy of the order available for inspection at the address specified under subsection (3)(b) at all reasonable hours,

b

provide a copy of the order to any person who requests one.

5

The Scottish Ministers may charge a fee, not exceeding their expenses, for providing a copy under subsection (4)(b).

I2777Urgent designation

1

In any case where the Scottish Ministers consider there is an urgent need to protect the area proposed to be designated or (as the case may be) to protect a marine historic asset within the area (and so an urgent need to make a designation order)—

a

they need not publish notice of their proposals under section 75(1)(a) or consult under section 75(1)(b),

b

the order remains in force for such period, not exceeding 2 years, as is specified in it (but any order that specifies a period in excess of 6 months must be reviewed by the Scottish Ministers after 6 months has elapsed to assess whether it is still required).

2

Upon expiration of the order, the Scottish Ministers may not re-designate the area (or any part of it) without—

a

publishing notice of their proposals under section 75(1)(a),

b

consulting under section 75(1)(b).

I2878Representations and hearing in relation to proposed designation order

7

A statement prepared by the Scottish Ministers under this section may also set out other matters relating to the achievement of that objective which they intend to take into account when complying with the duty imposed by subsection (1).

8

The Scottish Ministers must—

a

keep under review any statement they have prepared under this section, and,

b

if they consider it appropriate in consequence of a review, prepare a revised statement of the principles referred to in subsection (6)(a) and lay a copy of it before the Parliament.

9

In this section—

“European offshore marine site” means any site within the meaning of the Offshore Marine Conservation (Natural Habitats, &c) Regulations 2007 (S.I. 2007/1842),
“feature” means—
1. a
  marine flora or fauna,
2. b
  marine habitats or types of such habitat,
3. c
  features of geological or geomorphological interest,
“Ramsar site” has the same meaning as in section 37A of the Wildlife and Countryside Act 1981 (c.69),
“site of special scientific interest” includes a site within the meaning of Part 2 of the Wildlife and Countryside Act 1981.

Advice etc. as regards protection of certain marine areas

I3080Advice etc. by Scottish Natural Heritage as regards Nature Conservation MPAs and Demonstration and Research MPAs

1

Scottish Natural Heritage may give advice and guidance as to—

a

the matters which are capable of damaging or otherwise affecting any protected feature (or the protected features) of a Nature Conservation MPA or (as the case may be) a stated purpose for a Demonstration and Research MPA,

b

the matters which are capable of affecting any ecological or geomorphological process on which the conservation of any such protected feature or features or (as the case may be) any such stated purpose is (wholly or in part) dependent,

c

how any stated conservation objectives for a Nature Conservation MPA or any stated purpose for a Demonstration and Research MPA may be furthered, or how the achievement of any such objectives or purpose may be hindered,

d

how the effect of any activity or activities on any Nature Conservation MPA, Demonstration and Research MPA or such marine protected areas generally may be mitigated,

e

which activities are, or are not, of equivalent environmental benefit (for the purposes of section 83(4)(b)(iii) (public authorities authorising certain acts)) to any particular damage to the environment (within the meaning of that provision).

2

Advice or guidance as to any of the matters in paragraphs (a) to (e) of subsection (1) may be given—

a

in relation to—

i

a particular Nature Conservation MPA or Demonstration and Research MPA,

ii

each such category of marine protected area, or all such marine protected areas, generally,

b

in relation to a particular public authority or public authorities generally.

3

Scottish Natural Heritage must give such advice to a public authority if the authority requests it.

I3181Advice and guidance by the Scottish Ministers as regards MPAs

d

13

For the purposes of subsections (3), (5) and (10) it is appropriate to inform Scottish Natural Heritage where the exercise of the public authority's functions or the act or omission in question relates to a Nature Conservation MPA or a Demonstration and Research MPA.

10

In this section—

“act” includes omission,
“authorisation” means any approval, confirmation, consent, licence, permission or other authorisation (however described), whether special or general,
“damage” includes the prevention of an improvement.

I3484Failure to comply with duties

1

In relation to a Nature Conservation MPA or a Demonstration and Research MPA if, in the opinion of Scottish Natural Heritage, a public authority has failed—

a

to act in accordance with advice or guidance given by Scottish Natural Heritage under section 80,

b

to comply with any of its duties under section 82(2) or 83(3) or (4),

Scottish Natural Heritage may request from the authority an explanation in writing for the failure.

2

Scottish Natural Heritage must send a copy of a request by it under subsection (1) to the Scottish Ministers.

3

On receiving a request under this subsection (1), the public authority must—

a

provide Scottish Natural Heritage with the requested explanation for the failure,

b

send a copy of the explanation to the Scottish Ministers.

4

If, in the opinion of the Scottish Ministers, a public authority has failed to act in accordance with advice or guidance given by them under section 81, they may request from the authority an explanation in writing of the failure, and the authority must provide them with it.

5

In relation to a Historic MPA if, in the opinion of the Scottish Ministers, a public authority has failed to comply with any of its duties under section 82(2) or 83(3) or (4), the Ministers may request from the authority an explanation in writing for the failure, and the authority must provide them with it.

Marine conservation orders

I3585Marine conservation orders

1

The Scottish Ministers may make one or more orders (“marine conservation orders”) for any or all of the following purposes—

a

that of furthering the stated conservation objectives for a Nature Conservation MPA,

b

that of furthering a stated purpose for a Demonstration and Research MPA,

c

that of furthering the stated preservation objectives for a Historic MPA,

d

where any such marine protected area—

i

includes all or part of (or is included in whole or part in) a European marine site, or

ii

c

“specified” means specified in the order.

include provision prohibiting or restricting entry into, or any movement or other activity on, any part of the seashore that adjoins the protected area by persons, animals or vehicles.

3

For the purposes of subsection (1)(a), the reference to works or activities includes reference to—

a

the use of equipment (or types of equipment),

b

surveying or exploring a site (whether or not by intrusive methods),

c

fixing or attaching anything to the seabed or (if appropriate) the seashore.

I3787Procedure for marine conservation orders

1

Before making a marine conservation order (or an order amending or revoking any such order), the Scottish Ministers must comply with subsections (2) to (7) (except where section 88 provides otherwise).

2

The Scottish Ministers must send a copy of a draft of the order to any persons the Ministers consider are likely to be interested in or affected by the making of the order.

3

The Scottish Ministers must place a copy of the draft of a marine conservation order or (as the case may be) the draft of an order amending or revoking any such order in such place or places as they consider is or are likely to be most convenient for the purpose of enabling it to be inspected by persons likely to be affected by the making of the order.

4

The Scottish Ministers—

a

must provide a copy of a draft of an order to any person who requests one,

b

may charge a fee, not exceeding their expenses in doing so, for providing a copy under this subsection,

5

Where the proposed order would apply to an area any part of which is land, the Scottish Ministers must provide a copy of a draft to the planning authority in whose district the land is situated.

6

The Scottish Ministers must publish notice of their proposal to make an order.

7

The notice must—

a

be published in such manner as the Scottish Ministers consider is most likely to bring the proposal to the attention of any persons who are likely to be affected by the making of it,

b

state where the copy or copies of the draft order have been placed by the Scottish Ministers in accordance with subsection (3),

c

state the time within which representations about the draft order must be made to the Scottish Ministers.

8

In subsection (5), “planning authority” and “the district” of a planning authority have the same meaning as in section 1(1) of the Town and Country Planning (Scotland) Act 1997 (c.8).

1

The Scottish Ministers must send a copy of any order mentioned in subsection (2) to any persons they consider are likely to be interested in or affected by the order.

2

The orders are—

a

a marine conservation order (whether made in accordance with section 87 or an urgent marine conservation order made in accordance with section 88),

b

an order amending or revoking a marine conservation order,

c

an urgent continuation order.

3

The Scottish Ministers must—

a

make a copy of any order referred to in subsection (2) available for inspection at one of their offices at all reasonable hours,

b

provide a copy of any such order to any person who requests one.

4

The Scottish Ministers may charge a fee, not exceeding their expenses, for providing a copy under subsection (3)(b).

I4090Representations and hearings in relation to proposed marine conservation orders etc.

1

The Scottish Ministers may, before deciding to do any of the following—

a

make a marine conservation order (whether in accordance with section 87 or an urgent marine conservation order in accordance with section 88),

b

amend a marine conservation order,

c

revoke a marine conservation order,

give any person the opportunity of making oral or written representations to them or to any person appointed by them for that purpose at a hearing.

2

The Scottish Ministers may make regulations providing for the procedure to be followed (including decisions as to expenses) at any hearing held under subsection (1).

I4191Duty to assess impact of prohibition or restriction of activities

b

by direction issued generally to authorise the doing by any person of any thing or category of thing specified in the order which would, apart from the direction, be unlawful under the order.

4

A direction under subsection (3) may attach to any authorisation given by it any condition which the Scottish Ministers consider appropriate.

5

Any provision in a marine conservation order of the kind referred to in this section may include provision for the procedure to apply in relation to the making of applications, and the determination of applications, for such permits or authorisations.

I4393Delegation of issuing permits or authorisations

1

A marine conservation order may provide for the Scottish Ministers by direction to delegate to any person (or group of persons) specified in the direction the issuing of permits of the kind described in section 92(1), or such permits in relation to such things (or such things in such circumstances) as are specified in the order.

2

A marine conservation order may, in so far as it applies to a Historic MPA, provide for the Scottish Ministers by direction to delegate to any person (or group of persons) specified in the direction the issuing of authorisations of the kind described in section 92(3), or such authorisations in relation to such things (or things in such circumstances) as are specified in the order.

Offences

I4494Offences: contravening a marine conservation order

1

A person who contravenes a marine conservation order commits an offence.

2

A person who is guilty of an offence under this section is liable—

a

on summary conviction, to a fine not exceeding £50,000,

b

on conviction on indictment, to a fine.

3

In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to the person in consequence of the offence.

4

In this section “contravene” includes fail to comply.

on summary conviction, to a fine not exceeding £50,000,

b

on conviction on indictment, to a fine.

on summary conviction, to a fine not exceeding £50,000,

b

on conviction on indictment, to a fine.

the effect of the act on the protected feature or (as the case may be) the marine historic asset in question could not have reasonably been avoided.

3

The Scottish Ministers may by order amend this section so as to remove, or restrict the application of, the defence provided by subsection (2).

4

For the purposes of this section, “act” includes omission.

I4898Prohibited act taken in an emergency

ii

includes all or part of, or

iii

adjoins,

a Nature Conservation MPA or a Demonstration and Research MPA.

2

A marine management scheme is a scheme under which the relevant authority's (or authorities') functions must be exercised for the purpose of furthering any or all of the following—

a

the stated conservation objectives for any Nature Conservation MPA to which the scheme applies,

b

the stated purposes for any Demonstration and Research MPA to which the scheme applies,

c

the protection of any European marine site to which the scheme applies.

3

A marine management scheme may also impose the same requirement in relation to the exercise of any functions of the relevant authority (or authorities) which are not exercisable within the area (or areas) to which the scheme applies but the exercise of which may have an impact on the protection of that area (or those areas).

4

A marine management scheme may be made for a period of time specified in it.

5

The relevant authority (or authorities) making a marine management scheme may amend it from time to time.

6

In this section and sections 100 to 102, a “relevant authority” means—

a

any public authority exercising functions in the Scottish marine protection area, or

b

the Scottish Ministers.

I50100Review of schemes

1

A marine management scheme which is in effect at the end of a period mentioned in subsection (2) must be reviewed and updated by the relevant authority or authorities concerned by the end of that period.

2

The periods are—

a

the period of 5 years beginning with the date on which it was made,

b

each subsequent period of 5 years.

I51101Marine management schemes: consultation etc.

1

Before making or amending a marine management scheme, the relevant authority (or authorities acting together) must consult Scottish Natural Heritage.

2

Where a relevant authority (or authorities) has (or have) made or amended a marine management scheme, they must forthwith send a copy of the scheme as made or amended to the Scottish Ministers and Scottish Natural Heritage.

I52102Directions as to making, amending or revocation of schemes

1

The Scottish Ministers may give directions to a relevant authority (or any 2 or more such authorities) as to the making of marine management schemes.

2

A direction under subsection (1) may in particular—

a

require one or more schemes to be made,

b

require conservation or other measures specified in the direction to be included in a scheme,

c

where a scheme is to be made by more than one relevant authority acting together, appoint one such authority to co-ordinate the making of it,

d

set time limits within which any steps in relation to the making of a scheme are to be taken,

e

require the approval of the Scottish Ministers before a scheme is made,

f

require any relevant authority to give to the Scottish Ministers such information relating to the making of a scheme as may be specified in the direction.

3

The Scottish Ministers may give directions (whether general or specific) to a relevant authority (or any 2 or more such authorities) as to the amendment of a marine management scheme.

4

The Scottish Ministers may revoke a marine management scheme by a direction given by them to the relevant authority (or authorities) which made the scheme.

5

A direction under this section must be in writing.

6

A relevant authority given a direction under subsection (1) or (3) must comply with it.

Reports to Parliament

I53103Reports to Parliament

1

Before the end of each relevant period, the Scottish Ministers must lay before the Parliament a report setting out the information mentioned in subsection (3).

2

A report under subsection (1) may be in the form of a report combined with a report under section 124 of the 2009 Act.

3

The information referred to in subsection (1) is—

a

the number of—

i

Nature Conservation MPAs,

ii

Demonstration and Research MPAs,

iii

i

permits of the kind described in section 92(1),

ii

authorisations of the kind described in section 92(3),

has been sought during the relevant period,

h

information about any marine conservation order or urgent continuation order made, or any amendment of any such order, during the relevant period,

i

information about any marine management scheme made, or any amendment of any such scheme, during the relevant period,

j

the extent to which in the opinion of the Scottish Ministers the exercise by them of the power in section 67(1)(a) to designate Nature Conservation MPAs contributes to the objective in section 79(2).

4

In this section “the relevant period” means—

a

the period beginning on the date on which this section comes into force and ending on 31 December 2012,

b

each subsequent period of 6 years.

Licences granted under Wildlife and Countryside Act 1981

I54104Grant of certain licences under Wildlife and Countryside Act 1981

1

Section 16 of the Wildlife and Countryside Act 1981 (c.69) (power to grant licences) is amended as follows.

2

After subsection (8A) (inserted by section 10(2) of the 2009 Act) insert—

8B
In this section, in the case of a licence under any of subsections (1) to (4), so far as relating to the Scottish marine area, “the appropriate authority” means the Scottish Ministers.

3

In subsection (9) (meaning of appropriate authority), at the beginning insert “ Except as provided by subsection (8B) ”

4

After subsection (9) insert—

9ZA
The Scottish Ministers may by direction delegate their power to grant licences in relation to the Scottish marine area under any of subsections (1) to (4) to Scottish Natural Heritage.
9ZB
Delegation under subsection (9ZA) may be—
a
in relation to a specific case,
b
in relation to specific species of animal,
c
in relation to a particular type of licence,
d
in relation to a particular area.
9ZC
A direction under subsection (9ZA) must be in writing.

5

After subsection (12) (inserted by section 10(4) of the 2009 Act), add—

13
In this section, the “Scottish marine area” has the meaning given by section 1(1) of the Marine (Scotland) Act 2010 (asp 5).

Penalties in regulations implementing Habitats Directive

I55105Penalties in regulations implementing the Habitats Directive for the Scottish marine area

Regulations under section 2(2) of the European Communities Act 1972 (c.68) for the purpose of implementing the Habitats Directive in relation to the Scottish marine area may, despite paragraph 1(1)(d) of Schedule 2 to that Act (which limits the penalties which may be imposed for criminal offences), create offences punishable—

a

on summary conviction, with a fine not exceeding £50,000,

b

on conviction on indictment, with an unlimited fine.

Interpretation of Part 5

106Interpretation of Part 5

In this Part—

“animal” includes any egg, larva, pupa or other immature stage of an animal,
“protected feature”, in relation to a Nature Conservation MPA or proposed Nature Conservation MPA, means any flora, fauna, habitat or feature which is sought to be conserved by the making of the order designating the area,
“seashore” means—
1. a
  the foreshore, that is to say, land which is covered and uncovered by the ordinary movement of the tide, and
2. b
  any land, whether or not covered intermittently by water, which is in apparent continuity (determined by reference to the physical characteristics of the land) with the foreshore, as far landward as any natural or artificial break in that continuity,
“stated conservation objectives” for a Nature Conservation MPA means the conservation objectives stated (in the designation order designating the area) as the conservation objectives for the area,
“stated preservation objectives” for a Historic MPA means the preservation objectives stated (in the designation order designating the area) as the preservation objectives for the area,
“stated purpose” for a Demonstration and Research MPA means a purpose stated (in the designation order designating the area) as a purpose for which the order is made,
“urgent marine conservation order” is to be construed in accordance with section 88 (being a marine conservation order made in accordance with that section, instead of section 87),
“vehicle” includes—
1. a
  a bicycle and other non-motorised form of transport,
2. b
  hovercraft,
“vessel” includes—
1. a
  hovercraft,
2. b
  aircraft capable of landing on water,
3. c
  any other craft capable of travelling on, in or under water, whether or not capable of carrying any person.

Part 6Conservation of seals

Offence: killing, injuring or taking seals

107Offence: killing, injuring or taking seals

Killing, injuring or taking a live seal (intentionally or recklessly) is an offence.

b

the effectiveness of non-lethal alternative methods of preventing seal damage to the fishery or fish farm concerned or to any other fishery or fish farm which is in the vicinity of, or which is of a similar type to, the fishery or fish farm concerned.

3

The Scottish Ministers may require an applicant for a seal licence under subsection (1)(g) to provide them with such information about the matters mentioned in paragraphs (a) or (b) of subsection (2) as they reasonably require for the purposes of assisting them to decide whether to grant the seal licence.

I90111Methods of killing or taking seals under seal licence

1

A seal licence must specify the method which the licensee must use to kill or take seals.

2

The Scottish Ministers must not grant a seal licence authorising a person to kill seals by shooting unless they are satisfied that the person has adequate skills and experience in using firearms.

3

A seal licence must not authorise a person to do anything which would contravene regulation 41 of the Conservation (Natural Habitats, &c.) Regulations. This subsection does not restrict the things for which a licence may be granted under regulation 44 of those Regulations.

any period during which seals may not be killed or taken, for example, when females of the species of seal for which the licence has been issued are likely to be in an advanced stage of pregnancy or have dependent pups.

5

Failure to comply with a condition imposed is an offence.

6

In any proceedings for such an offence, it is a defence for the person charged to prove that the person took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

113Seal licence reports

1

A person to whom a seal licence is granted must send a seal licence report to the Scottish Ministers within 10 days of the end of each reporting period.

2

A seal licence report is a report which—

a

states how many seals have, during the reporting period concerned, been—

i

killed in accordance with the seal licence,

ii

taken in accordance with the seal licence,

iii

killed when attempting to take them in accordance with the seal licence,

iv

injured when attempting to kill or take them in accordance with the seal licence, or

b

where no seals have been so killed, taken or injured during the reporting period concerned, states that fact.

3

A reporting period is—

a

in the case of a seal licence which has effect for 3 months or longer—

i

each period of 3 months following the granting of the seal licence, and

ii

any shorter period beginning at the end of such a 3 month period and ending when the seal licence is revoked or otherwise ceases to have effect,

b

in the case of a seal licence which has effect for fewer than 3 months, the period for which the seal licence has effect.

4

Failure, without reasonable excuse, to send a seal licence report in accordance with subsection (1) is an offence.

I92114Variation or revocation of seal licence

A seal licence may be varied or revoked at any time.

I93115Seal licence fees

1

The Scottish Ministers may require an application for a seal licence or a variation of a seal licence to be accompanied by such fee as may be determined by, or in accordance with, regulations made by them.

2

Regulations may provide for different fees for different descriptions of applications.

I94116Consultation and consent

1

The Scottish Ministers must consult the Natural Environment Research Council before granting or varying a seal licence.

2

The Scottish Ministers must obtain the consent of Scottish Natural Heritage before granting or varying a seal licence authorising the killing or taking of seals in a protected area for a purpose mentioned in any of paragraphs (b) to (e) of section 110(1).

“protected area” means—

a
a Nature Conservation MPA,
b
a Demonstration and Research MPA,
c
a Historic MPA,
d
a site of special scientific interest,
e
an area in respect of which a nature conservation order or land management order made under Part 2 of the Nature Conservation (Scotland) Act 2004 (asp 6) has effect,
f
a nature reserve (within the meaning of Part 3 of the National Parks and Access to the Countryside Act 1949 (c.97)), or
g
a European site (within the meaning of regulation 10 of the Conservation (Natural Habitats, &c.) Regulations).

Protection at haul-out sites

117Offence: harassment at haul-out sites

Harassing a seal (intentionally or recklessly) at a haul-out site is an offence.

“haul-out site” means any place which the Scottish Ministers, after consulting the Natural Environment Research Council, by order designate as such for the purposes of this section.

Seal conservation areas

118Seal conservation areas

b

the period (of no more than 8 weeks) during which the land may be entered.

4

An authorisation may be conditional.

121Power to enter land to protect fisheries or fish farms from seals

1

The Scottish Ministers may, after consulting the Natural Environment Research Council, authorise a person to enter land in order to kill or take seals in accordance with a seal licence granted for the purpose of preventing them from causing serious damage to fisheries or fish farms.

2

Before granting such an authorisation, the Scottish Ministers must—

a

give notice to the occupier of the land—

i

setting out their intention to grant the authorisation, and

ii

informing the occupier of the right to make representations to the Scottish Ministers within 28 days of the notice, and

b

have regard to any timeous representations made by the occupier.

3

An authorisation must specify—

a

the land to be entered, and

b

the period (of no more than 8 weeks) during which the land may be entered, and

c

the number and species of seals that may be killed or taken.

4

An authorisation may be conditional.

5

Any seals killed or taken in pursuance of an authorisation belong to the Scottish Ministers (and may be disposed of as they think fit).

A person doing anything authorised under section 120 or 121 must produce evidence of the person's authority if asked to do so.

I98124Obstructing an authorised person

Preventing or obstructing a person from doing anything which the person is authorised to do under section 120 or 121 (intentionally or recklessly) is an offence.

Supplementary

I99125Advice on seal population

The Scottish Ministers must have regard to any advice about the management of seal populations which is given to them by the Natural Environment Research Council.

126Police powers: search and seizure

A constable may stop any person who the constable suspects with reasonable cause of committing an offence under this Part and may—

a

any byelaws made by virtue of regulation 36 of those Regulations.

3

Subject to subsections (4) and (5), the powers which a marine enforcement officer has for the purposes of enforcing the marine protection and nature conservation legislation may be exercised in the Scottish marine area and in any other part of Scotland.

4

The powers which a marine enforcement officer has for the purposes of enforcing the marine protection and nature conservation legislation may not be exercised in relation to a British warship.

5

Any of those powers may also not be exercised in relation to any vessel mentioned in subsection (6) unless, in the case of a third country vessel (other than a vessel falling within paragraph (b) or (c) of that subsection), the United Kingdom is entitled under international law to exercise those powers without the consent of the flag state.

6

The vessels are—

a

a third country vessel,

b

a warship that is being used by the government of a State other than the United Kingdom,

c

any other vessel that is being used by such a government for any non-commercial purpose.

7

In this section—

“flag state”, in relation to a vessel, is the State whose flag the vessel is flying or is entitled to fly,
“third country vessel” means a vessel which—
1. a
  is flying the flag of, or is registered in, any State or territory (other than Gibraltar) which is not a member State, and
2. b
  is not registered in a member State,
“vessel” does not include aircraft.

The common enforcement powers

133The “common enforcement powers”

In this Part, the “common enforcement powers” means the powers under sections 134 to 149.

Common enforcement powers of entry, search and seizure

I58134Power to board and inspect vessels and marine installations

1

For the purposes of carrying out any relevant functions, a marine enforcement officer may at any time board and inspect a vessel or marine installation. This is subject to section 137 (which provides that a warrant is necessary to enter a dwelling).

2

For the purposes of exercising the power conferred by subsection (1), the officer may require a vessel or marine installation—

a

to stop,

b

to do anything else that will facilitate the boarding of that or any other vessel or marine installation.

3

A marine enforcement officer who has boarded a vessel or marine installation may, for the purposes of disembarking from the vessel or installation, require that or any other vessel or marine installation—

a

to stop,

b

to do anything else that will enable the officer, and any person accompanying the officer, to disembark from the vessel or installation.

4

A marine enforcement officer may require any person on board a vessel or marine installation to afford such facilities and assistance with respect to matters under that person's control as the officer considers would facilitate the exercise of any power conferred by this section.

I59135Power to enter and inspect premises

1

For the purposes of carrying out any relevant functions, a marine enforcement officer may enter and inspect any premises. This is subject to section 137 (which provides that a warrant is necessary to enter a dwelling).

2

The officer may exercise the power conferred by this section only at a reasonable time, unless it appears to the officer that there are grounds for suspecting that the purpose of entering the premises may be frustrated if the officer seeks to enter at a reasonable time.

3

A marine enforcement officer may require any person in or on the premises to afford such facilities and assistance with respect to matters under that person's control as the officer considers would facilitate the exercise of the power conferred by this section.

I60136Power to enter and inspect vehicles

1

For the purposes of carrying out any relevant functions, a marine enforcement officer may at any time—

a

enter and inspect any vehicle,

b

stop and detain any vehicle for the purposes of entering and inspecting it.

This is subject to section 137 (which provides that a warrant is necessary to enter a dwelling).

2

Where a marine enforcement officer—

a

has stopped a vehicle under this section, and

b

considers that it would be impracticable to inspect the vehicle in the place where it has stopped,

the officer may require the vehicle to be taken to such place as the officer directs to enable the vehicle to be inspected.

3

A marine enforcement officer may require—

a

any person travelling in a vehicle,

b

the registered keeper of a vehicle,

to afford such facilities and assistance with respect to matters under that person's control as the officer considers would facilitate the exercise of any power conferred by this section.

4

The powers conferred by this section may be exercised in any place (whether or not it is a place to which the public has access).

5

In this section “vehicle” does not include a vessel.

I61137Dwellings

1

A marine enforcement officer may not by virtue of section 134, 135 or 136 enter a dwelling unless a justice has issued a warrant authorising the officer to enter it.

2

A justice may issue such a warrant only if, on an application by the officer, the justice is satisfied—

a

that the officer has reasonable grounds for believing that there is material in the dwelling which for the purposes of carrying out any relevant functions the officer wishes to inspect, examine or seize, and

b

that any of the following conditions is satisfied—

i

that it is not practicable to communicate with any person entitled to grant entry to the dwelling,

ii

that it is not practicable to communicate with any person entitled to grant access to the material,

iii

that entry to the dwelling is unlikely to be granted unless a warrant is produced,

iv

the purposes of entry may be frustrated or seriously prejudiced unless a marine enforcement officer arriving at the dwelling can secure immediate entry to it.

3

Schedule 3 contains further provision about warrants issued under this section.

I62138Powers of search, examination, etc.

1

to the extent that it consists of images (for example photographs, pictures, maps, plans or drawings), it can be seen with the naked eye.

I64140Powers of seizure, etc.

1

A marine enforcement officer who is exercising a power of inspection conferred by section 134, 135 or 136 may—

a

seize and detain or remove any item found on the relevant premises,

b

take copies of or extracts from any document or record found on the relevant premises.

2

Where a marine enforcement officer reasonably believes that a person is or has been carrying on a relevant activity, the officer may seize and detain or remove any item which appears to be in the person's possession or control.

3

A marine enforcement officer to whom any document or record has been produced in accordance with a requirement imposed under section 139(2) may—

a

seize and detain or remove the document or record,

b

take copies or extracts from the document or record.

In this subsection, “document” includes anything falling within paragraph (a) or (b) of section 139(3).

4

The powers conferred by this section may be exercised only—

a

for the purposes of determining whether a relevant offence has been committed, or

b

in relation to an item which a marine enforcement officer reasonably believes to be evidence of the commission of a relevant offence.

5

Subject to subsection (6), a marine enforcement officer who is exercising a power of inspection conferred by section 134, 135 or 136 may not remove from the relevant premises any item which is required by law to be kept on the relevant premises.

6

A marine enforcement officer may remove such an item from a vessel while it is being detained in a port.

7

Nothing in this section confers power on a marine enforcement officer to seize an item which the officer has reasonable grounds to believe would in legal proceedings be protected from disclosure on grounds of confidentiality of communications.

I65141Further provision about seizure

1

Where—

a

any items which a marine enforcement officer wishes to seize and remove are in a container, and

b

the officer reasonably considers that it would facilitate the seizure and removal of the items if they remained in the container for that purpose,

any power to seize and remove the items conferred by section 140 includes power to seize and remove the container.

2

Where—

a

any items which a marine enforcement officer wishes to seize and remove are not in a container, and

b

the officer reasonably considers that it would facilitate the seizure and removal of the items if they were placed in a container suitable for that purpose,

the officer may require the items to be placed into such a container.

3

If, in the opinion of a marine enforcement officer, it is not for the time being practicable for the officer to seize and remove any item, the officer may require—

a

the person from whom the item is being seized, or

b

where the officer is exercising a power of inspection conferred by section 134, 135 or 136, any person in or on the relevant premises,

to secure that the item is not removed or otherwise interfered with until such time as the officer may seize and remove it.

4

Where a marine enforcement officer is exercising a power of inspection conferred by section 134, 135 or 136, the officer may require any person in or on the relevant premises to afford such facilities and assistance with respect to matters under that person's control as the officer considers would facilitate the exercise of any power conferred by section 140 or this section.

5

Where a marine enforcement officer reasonably believes that a person is or has been carrying on a relevant activity, the officer may require that person to afford such facilities and assistance with respect to matters under that person's control as the officer considers would facilitate the exercise in relation to that person of any power conferred by section 140 or this section.

6

In Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 (c.16) (powers of seizure to which section 50 applies), after paragraph 73L (inserted by section 253(7) of the 2009 Act) insert—

73MMarine (Scotland) Act 2010 (asp 5)
Each of the powers of seizure conferred by section 140(1) and (3) of the Marine (Scotland) Act 2010.

I66142Retention of seized items

1

This section applies to any item seized in the exercise of a power conferred by section 140.

2

The item may be retained so long as is necessary in all the circumstances and in particular—

a

for use as evidence at a trial for a relevant offence,

b

for forensic examination or for investigation in connection with a relevant offence.

3

No item may be retained for either of the purposes mentioned in subsection (2) if a photograph or a copy would be sufficient for that purpose.

Miscellaneous and ancillary common enforcement powers

I67143Power to record evidence of offences

1

A marine enforcement officer may use any device for the purpose of taking visual images of anything which the officer believes is evidence of the commission of a relevant offence.

2

The power conferred by this section is exercisable in relation to anything that—

a

is in or on,

b

is attached to or otherwise forms part of,

c

is controlled from,

any vessel, marine installation, premises or vehicle.

3

The officer may require any person in or on the vessel, marine installation, premises or vehicle to afford such facilities and assistance with respect to matters under the person's control as the officer considers would facilitate the exercise of the power conferred by this section.

I68144Power to require name and address

Where a marine enforcement officer reasonably believes that a person has committed a relevant offence, the officer may require the person to provide the person's name and address.

I69145Power to require production of licence, etc.

1

Where a marine enforcement officer reasonably believes that—

a

a person is or has been carrying on a relevant activity, and

b

the person requires a licence or other authority to carry on the activity,

the officer may require the person to produce the licence or other authority.

2

If the person is unable to produce the licence or other authority when required to do so, the person must produce it at such place, and within such period of time, as the officer may specify.

I70146Power to require attendance of certain persons

1

Where a marine enforcement officer has—

a

boarded a vessel or marine installation,

b

entered any premises,

for the purpose of carrying out any relevant functions, the officer may require the attendance of any of the persons mentioned in subsection (2).

2

The persons are—

When the vessel or marine installation has been taken to a port, the officer may—

a

detain it there,

to give details of any substance or objects on board a vehicle, vessel, aircraft or marine structure,

b

to give information concerning any substances or objects lost from a vehicle, vessel, aircraft or marine structure.

2

A statement made by a person in response to a requirement made under this section may not be used against the person in criminal proceedings in which the person is charged with an offence to which this subsection applies.

3

Subsection (2) applies to any offence other than an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39) (statements made otherwise than on oath).

4

In this section, “vessel” has the same meaning as in section 64(1).

Duties of marine enforcement officers

I74151Duty to provide evidence of authority where a person is present

1

Where one or more persons are present at the time a marine enforcement officer intends to exercise a power conferred by this Part, the officer may exercise the power only after complying with subsection (2) or, as the case may be, (3).

2

Where one person is present at that time, the officer must produce to the person evidence that the officer is authorised to exercise the power.

3

Where more than one person is present at that time, the officer must produce such evidence to the person who appears to the officer to have the greatest interest of those present in the exercise of the power, and is not required to produce it to any other person present.

I75152Duty to state name and purpose, etc.

10

In this section, any reference to a marine enforcement officer includes a reference to a person assisting a marine enforcement officer by virtue of section 148.

General

I79156General

The powers conferred on a marine enforcement officer by this Part are without prejudice to any powers exercisable by the officer apart from the Part.

Interpretation of Part 7

157Interpretation of Part 7

1

In this Part—

“justice” means a sheriff, stipendiary magistrate or justice of the peace,
“marine enforcement officer” means a person appointed as such an officer by the Scottish Ministers,
“premises” includes land, but does not include any vehicle, vessel or marine installation,
“relevant activity” in relation to a marine enforcement officer, means any activity in respect of which the officer has functions,
“relevant function” in relation to a marine enforcement officer, means any function of the officer,
“relevant offence” in relation to such an officer, means any offence in respect of which the officer has functions,
“the relevant premises”, in relation to such an officer exercising a power of inspection conferred by section 134, 135 or 136, means the vessel, marine installation, premises or vehicle in relation to which the power is being exercised.

2

In this Part, except where otherwise provided, any reference to a vessel includes a reference to—

a

any ship or boat or any other description of vessel used in navigation,

b

any hovercraft, submersible craft or other floating craft,

c

any aircraft,

but does not include a reference to anything that permanently rests on, or is permanently attached to, the seabed.

Part 8Sea fisheries

158Extension of modifications relating to Sea Fish (Conservation) Act 1967

1

The modifications to the Sea Fish (Conservation) Act 1967 (c.84) made by Chapter 1 of Part 7 of, and Schedules 15 and 22 to, the 2009 Act, except those mentioned in subsection (2), extend to Scotland.

2

The modifications made by sections 194(4) and (5), 196 and 198(3) of, and paragraph 1(4) of Schedule 15 to, the 2009 Act do not extend to Scotland.

159Modification of section 22A of Sea Fish (Conservation) Act 1967

1

Section 22A (application to Scotland) of the Sea Fish (Conservation) Act 1967 is modified as follows.

2

In subsection (2) after “sections” insert “ 1(3B) and (9), 5(8), ”.

3

After subsection (2) insert—

2A
In section 1—
a
for subsections (3) and (3A) substitute—
3B
Sea fish of any description which do not meet the requirements as to size prescribed in relation to sea fish of that description by an order of the Scottish Ministers must not be carried, whether within or outside the Scottish zone, on a Scottish fishing boat; and an order under this subsection may prohibit the carrying by a relevant British fishing boat or a foreign vessel in the Scottish zone of sea fish of any description prescribed by the order which do not meet the requirements as to size so prescribed in relation to sea fish of that description.
b
in subsection (8) for “(3)” substitute “ (3B) ”,
c
for subsection (9) substitute—
9
In this section—
“foreign vessel” means any vessel other than a relevant British fishing boat or a Scottish fishing boat,
“relevant British fishing boat” means a vessel, other than a Scottish fishing boat, which—
a
is registered in the United Kingdom under Part 2 of the Merchant Shipping Act 1995 (c.21), or
b
is owned wholly by persons qualified to own British ships for the purposes of that Part of that Act.
2B
In section 3—
a
in subsection (2A) for “adjacent to England and Wales” substitute “ of the United Kingdom adjacent to Scotland ”,
b
for subsection (2B) substitute—
2B
In subsection (2A) above—
a
the Scottish Ministers are “the appropriate national authority”,
b
the boundaries between the parts of the territorial sea of the United Kingdom adjacent to Scotland and the parts not so adjacent are to be determined by reference to an Order in Council made under section 126(2) of the Scotland Act 1998 (c.46) to the extent that the Order in Council is expressed to apply for the purposes of that Act.

4

For subsection (6) substitute—

6
In section 5—
a
in subsection (1), for “appropriate national authority” substitute “ Scottish Ministers ”,
b
for subsection (8) substitute—
8
An order under this section may make provision—
a
applying to Scottish fishing boats whether within or outside the Scottish zone,
b
in any other case, applying to fishing boats within the Scottish zone.

5

After subsection (9) insert—

9A
In section 11(1)(a), for “4(3), (6) or (9A)” substitute “4(3) or (6)

160Modifications relating to Sea Fisheries (Shellfish) Act 1967: orders as to fisheries for shellfish

1

In section 1 of the Sea Fisheries (Shellfish) Act 1967 (c.83) (“the 1967 Act”) (power to make orders as to fisheries for shellfish), omit subsection (4).

2

The modifications made to that section by section 203 of the 2009 Act (variation etc. of orders as a result of development) extend to Scotland.

3

In paragraph 6 of schedule 1 to the 1967 Act—

a

the existing provision is renumbered as sub-paragraph (1), and

b

after that sub-paragraph insert—

2
Where the proposed order relates to any portion of the sea shore belonging to Her Majesty in right of the Crown, the appropriate Minister must also have regard to the powers and duties of the Crown Estate Commissioners under the Crown Estate Act 1961 (c.55).

161Further modifications relating to Sea Fisheries (Shellfish) Act 1967

1

The modifications to the Sea Fisheries (Shellfish) Act 1967 (c.83) (“the 1967 Act”) made by the following provisions of the 2009 Act extend to Scotland—

a

section 204 (purposes for which tolls from regulated fisheries may be applied),

b

section 206 (liability of master, etc where vessel used in commission of offence),

c

section 207 (restrictions imposed by grantees in relation to regulated fisheries),

d

section 209 (register of licences in relation to regulated fisheries),

e

section 210 (protection of private shellfish beds),

f

section 211(1) and (3) (use of implements of fishing),

g

section 214 (power to appoint inspector before making orders as to fisheries for shellfish),

h

Part 5(A) of Schedule 22 (repeals).

2

In section 1 of the 1967 Act (power to make orders as to fisheries for shellfish), after subsection (14) insert—

14A
Subsection (14) above has effect in relation to Scotland as if the reference to the Town and Country Planning Act 1990 were a reference to section 26 of the Town and Country Planning (Scotland) Act 1997 (c.8).

3

In section 7 of the 1967 Act (protection of fisheries), in subsection (4), for “level 3 on the standard scale” substitute “ £50,000 ”.

4

The modifications to the 1967 Act made by section 214 (power to appoint inspector before making orders as to fisheries for shellfish) of the 2009 Act, other than those made by subsection (2)(b), extend to Scotland.

5

In paragraph 4(2) of Schedule 1 to the 1967 Act (provisions with respect to making orders as to fisheries for shellfish), for “The appropriate Minister shall” substitute “ The Scottish Ministers may, and in the case of receiving an objection raising a material concern under paragraph 3 above, must ”.

Part 9General provisions

I80162Crown application

1

This Act binds the Crown and applies in relation to Crown land as it applies in relation to any other land.

2

Nothing in Part 4 is to be taken as in any way affecting Her Majesty in her private capacity.

3

The modifications made by schedule 4 bind the Crown to the extent that the enactments modified bind the Crown.

4

No contravention by the Crown of any provision made by or under this Act makes the Crown criminally liable.

5

But the Court of Session may, on the application of the Scottish Ministers or any public body or office-holder having responsibility for enforcing the provision, declare unlawful any act or omission of the Crown which constitutes such a contravention.

6

Despite subsection (4), any provision made by or under the provisions of this Act applies to persons in the public service of the Crown as it applies to other persons.

where the affairs of the body are managed by its members, the members,

b

in relation to a Scottish partnership, a partner,

c

in relation to an unincorporated association other than a Scottish partnership, a person who is concerned in the management or control of the association.

I82164Ancillary provision

1

The Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes, or in consequence, of, or for giving full effect to, this Act or any provision of it.

2

An order under this section may modify any enactment, instrument or document.

165Orders and regulations

1

Any power of the Scottish Ministers to make orders or regulations under this Act—

a

may be exercised so as to make different provision for different purposes,

b

includes power to make such incidental, consequential, supplemental, transitional, transitory or saving provision as the Scottish Ministers consider appropriate.

2

Any power of the Scottish Ministers to make orders or regulations under this Act must be exercised by statutory instrument.

3

But subsection (2) does not apply to an order made under section 67(1) (order designating a Nature Conservation MPA, a Demonstration and Research MPA or a Historic MPA).

4

A statutory instrument containing an order or regulations made under this Act (except an order made under section 168(1)) is (except where subsection (5) provides otherwise) subject to annulment in pursuance of a resolution of the Parliament.

5

A statutory instrument containing—

a

an order under section 5(5), 21(3) or 32(1),

b

regulations under section 33(1) or 38(1),

c

an order under section 46(1), 48(1) or 51(1),

d

regulations under section 61(1),

e

an order under section 97(3),

f

an order under section 164(1) containing provisions which add to, replace or omit any part of the text of an Act,

is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.

166Interpretation: general

1

In this Act—

“the 2009 Act” means the Marine and Coastal Access Act 2009 (c.23),
“the Conservation (Natural Habitats, &c.) Regulations” means the Conservation (Natural Habitats, &c.) Regulations 1994 (S.I. 1994/2716),
“European marine site” has the same meaning as in regulation 2(1) of the Conservation (Natural Habitats, &c.) Regulations,
“fish farm” means a place where fish or shellfish (including any kind of crustacean or mollusc) are bred, reared or kept,
“the Habitats Directive” means Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna or flora (as amended from time to time),
“marine installation” means any artificial island, installation or structure (other than a vessel),
“marine structure” means a platform or other artificial structure at sea, other than a pipeline,
“UK marine area” has the meaning given in section 42 of the 2009 Act,
“the Wild Birds Directive” means Council Directive 79/409/EEC on the conservation of wild birds (as amended from time to time).

2

The expressions listed in schedule 5 are defined or otherwise explained for the purposes of this Act by the provisions indicated in the schedule.

I83167Consequential modifications

Schedule 4 makes modifications consequential on the provisions of this Act.

168Commencement and short title

1

The provisions of this Act, except this section and sections 1, 2, 19, 64, 65, 66, 106, 133, 157, 165 and 166, come into force on such day as the Scottish Ministers may by order appoint.

2

This Act may be cited as the Marine (Scotland) Act 2010.

SCHEDULE 1Preparation, adoption etc. of marine plans or any amendment

(introduced by sections 5(1) and 8(2))

Scottish Ministers to notify decision to prepare any marine plan

1

Where the Scottish Ministers decide to prepare a national marine plan they must, before beginning to prepare the plan, give notice of their intention to do so—

a

to any planning authority the district of which adjoins the Scottish marine area,

b

to the Secretary of State,

c

to the Department of the Environment in Northern Ireland.

2

Where the Scottish Ministers decide to prepare a regional marine plan they must, before beginning to prepare the plan, give notice of their intention to do so—

a

to any planning authority the district of which adjoins the Scottish marine region to which the plan is to apply,

b

where the Scottish marine region to which the plan is to apply adjoins the area of sea within the seaward limits of the territorial sea of the United Kingdom adjacent to England, to the Secretary of State,

c

where the Scottish marine region to which the plan is to apply adjoins the area of sea within the seaward limits of the territorial sea of the United Kingdom adjacent to Northern Ireland, to the Department of the Environment in Northern Ireland.

3

In this paragraph—

“adjacent to England” and “adjacent to Northern Ireland”, in relation to areas of sea within the seaward limits of the territorial sea of the United Kingdom, are to be construed in accordance with subsections (4) to (9) of section 322 of the 2009 Act,
“planning authority” and “the district” of a planning authority have the same meaning as in section 1(1) of the Town and Country Planning (Scotland) Act 1997 (c.8).

Interpretation

2

In this schedule—

“consultation draft” is to be read in accordance with paragraph 9,
“interested persons” means—
1. a
  any persons appearing to the Scottish Ministers to be likely to be interested in, or affected by, policies proposed to be included in the national marine plan or (as the case may be) the regional marine plan,
2. b
  members of the general public,
“SPP” means a statement of public participation under paragraph 4 and includes an SPP revised under paragraph 6.

Regional marine plans to be compatible with certain other plans

3

1

In preparing or amending a regional marine plan for a Scottish marine region (“area A”), the Scottish Ministers must take all reasonable steps to secure that the plan is compatible with any regional marine plan for any Scottish marine region which adjoins area A.

2

They must also take all reasonable steps to secure that any regional marine plan is compatible with the development plan for any area which adjoins area A.

3

In this paragraph, “development plan” is to be read in accordance with section 24 of the Town and Country Planning (Scotland) Act 1997.

Statement of public participation

4

1

Before preparing a national marine plan or a regional marine plan, the Scottish Ministers must prepare and publish a statement of public participation in relation to each such category of plan (an “SPP”).

2

An SPP is a statement of the policies settled by the Scottish Ministers as to when consultation is likely to take place and with whom, its likely form, and the steps to be taken to involve the general public in the stages of preparation or review of the proposed national marine plan or (as the case may be) the proposed regional marine plan.

3

An SPP must invite the making of representations in accordance with it as to matters to be included in the proposed marine plan.

4

The Scottish Ministers must publish an SPP in such manner as they consider is most likely to bring it to the attention of interested persons.

5

The Scottish Ministers must take all reasonable steps to comply with an SPP.

Further provision about content of an SPP

5

1

An SPP must include a proposed timetable.

b

consultation in connection with such proposals,

include the convening of groups of persons for such purposes and in such manner as the Scottish Ministers consider appropriate.

Matters to which Scottish Ministers to have regard in preparing marine plans

8

1

The matters to which the Scottish Ministers are to have regard in preparing—

a

a national marine plan include the matters in sub-paragraph (2),

b

a regional marine plan include the matters in sub-paragraph (3).

2

The matters, as regards a national marine plan, are—

a

the requirement under section 6(1) for a national marine plan to be in conformity with any marine policy statement currently in effect for the Scottish marine area unless relevant considerations indicate otherwise,

b

the effect which any proposal for inclusion in the plan is likely to have on any area which adjoins the Scottish marine area,

c

the results of the review required by section 11,

d

the SPP relating to preparation of the plan,

e

any representations made in response to the invitation issued in pursuance of paragraph 4(3),

f

any advice received in pursuance of paragraph 7(1),

g

any plan (not falling within paragraph 3(1) or (2)) prepared by a public or local authority in connection with the management or use of the sea or the coast or of marine or coastal resources, in the Scottish marine area or in any adjoining or adjacent area in the United Kingdom or the UK marine area,

h

the powers and duties of the Crown Estate Commissioners under the Crown Estate Act 1961 (c.55),

F6ha

the powers and duties of a relevant person,

i

such other matters as the Scottish Ministers consider relevant.

3

The matters, as regards a regional marine plan, are—

a

the requirement under section 6(1) for a regional marine plan to be in conformity with any marine policy statement currently in effect for the Scottish marine area unless relevant considerations indicate otherwise,

b

the requirement under section 6(2) for a regional marine plan to be in conformity with any national marine plan currently in effect, unless relevant considerations indicate otherwise,

c

the effect which any proposal for inclusion in the plan is likely to have on any area which adjoins the Scottish marine region to which the plan is to apply,

d

the results of the review required by section 11,

e

the SPP relating to the plan,

f

any representations made in response to the invitation issued in pursuance of paragraph 4(3),

g

any advice received under paragraph 7(1),

h

any plan (not falling within paragraph 3(1) or (2)) prepared by a public or local authority in connection with the management or use of the sea or the coast, or of marine or coastal resources, in the Scottish marine region to which the plan is to apply or in any adjoining or adjacent area in the United Kingdom or the UK marine area,

i

the powers and duties of the Crown Estate Commissioners under the Crown Estate Act 1961,

F5ia

the powers and duties of a relevant person,

j

such other matters as Scottish Ministers consider relevant.

F74

In this paragraph, “relevant person”, in relation to any property, rights or interests to which section 90B(5) of the Scotland Act 1998 applies, means the person who manages that property or those rights or interests.

Preparation and publication of a consultation draft

9

1

The Scottish Ministers must publish in such manner as they consider appropriate a draft containing their proposals for inclusion in a national marine plan or (as the case may be) a regional marine plan (a “consultation draft”).

2

The Scottish Ministers must also take such steps as they consider appropriate to secure that the proposals contained in a consultation draft are brought to the attention of interested persons.

Representations about a consultation draft

10

1

Any person may make representations about a consultation draft.

2

Any such representations are to be made in accordance with the SPP applicable to the draft.

3

If any representations are made about a consultation draft, the Scottish Ministers must consider them in the course of settling the text of the national marine plan or (as the case may be) the regional marine plan with a view to adoption and publication under paragraph 14.

Independent investigation

11

1

Where the Scottish Ministers have published a consultation draft in accordance with paragraph 9, they must consider appointing an independent person to investigate the proposals contained in the draft and to report on them.

2

In deciding whether to appoint such a person, the Scottish Ministers must have regard to—

a

any representations received about the matters to be included in the proposed national marine plan or (as the case may be) the proposed regional marine plan in response to the invitation issued in pursuance of paragraph 4(3),

b

any representations received about the proposals published in the consultation draft,

c

such other matters as Scottish Ministers consider relevant.

3

The person so appointed must—

a

make recommendations,

b

give reasons for the recommendations.

4

The Scottish Ministers must publish the recommendations and the reasons given for them in the report.

Matters to which Scottish Ministers are to have regard in settling text with a view to adoption etc.

5

The Scottish Ministers must lay a copy of the adopted national marine plan before the Parliament as soon as is reasonably practicable after the plan's adoption.

C1SCHEDULE 2Further provision about civil sanctions under Part 4 (marine licensing)

(introduced by section 50)

Annotations:

Modifications etc. (not altering text)

Sch. 2 applied (9.11.2020) by The Marine Licensing (Exempted Activities) (Scottish Inshore Region) Amendment Order 2020 (S.S.I. 2020/316), arts. 1, 14

Interpretation

F21

In this schedule—

“ civil sanction ” means a fixed monetary penalty or a variable monetary penalty,
“ fixed penalty notice ” means a fixed penalty notice under section 25(1) of the Aquaculture and Fisheries (Scotland) Act 2007,
“ fixed penalty officer ” has the meaning given in section 25(3) of that Act.

Fixed monetary penalties: other sanctions

2

1

Provision under section 46 must secure that, in a case where a notice of intent referred to in section 47(2)(a) is served on a person—

a

no criminal proceedings for the offence to which the notice relates may be instituted against the person in respect of the act or omission to which the notice relates before the end of the period in which the person may discharge liability to the fixed monetary penalty pursuant to section 47(2)(b),

b

if the person so discharges liability, the person may not at any time be convicted of the offence to which the notice relates in relation to that act or omission.

2

Provision under section 46 must also secure that, in a case where a fixed monetary penalty is imposed on a person—

a

the person may not at any time be convicted of the offence in relation to which the penalty is imposed in respect of the act or omission giving rise to the penalty,

b

the Scottish Ministers may not issue a compliance notice or a remediation notice to that person in respect of the act or omission giving rise to the penalty.

F3c

a fixed penalty officer may not issue a fixed penalty notice to the person in respect of the act or omission giving rise to the fixed monetary penalty.

Variable monetary penalties: other sanctions

SCHEDULE 3Warrants issued under section 137

(introduced by section 137(3))

An application for a warrant must be made without notice and must be supported by evidence on oath.

3

The officer must answer on oath any question that the justice hearing the application asks the officer.

Safeguards in connection with power of entry conferred by warrant

3

A warrant authorises entry on one occasion only.

4

1

A warrant must specify—

a

the name of the person who applies for it,

b

the date on which it is issued,

c

the enactment under which it is issued,

d

the dwelling to be entered.

2

A warrant must identify, so far as is practicable, the purpose for which entry is desired.

5

1

2 copies are to be made of a warrant.

2

The copies must be clearly certified as copies.

Execution of warrants

a

the occupier must be told the officer's name,

b

SCHEDULE 4Consequential modifications

(introduced by section 167)

Part 1Marine licensing

Coast Protection Act 1949 (c.74)

1

In the Coast Protection Act 1949—

a

Part II is repealed,

b

in section 49, subsection (2A) is repealed.

Merchant Shipping Act 1988 (c.12)

2

Section 36 of the Merchant Shipping Act 1988 is repealed.

Energy Act 2004 (c.20)

3

In section 99 of the Energy Act 2004, subsections (4) and (5) are repealed.

Part 2Marine protection and enhancement: the Scottish marine protection area

Protection of Wrecks Act 1973 (c.33)

4

Section 1 of the Protection of Wrecks Act 1973 is repealed.

Wildlife and Countryside Act 1981 (c.69)

I845

In the Wildlife and Countryside Act 1981—

a

in the italic heading immediately preceding section 34A, the words “, marine nature reserves” are repealed,

b

sections 36 and 37 are repealed,

c

in section 67, in subsection (2), the words “, 36” are repealed,

d

Schedule 12 is repealed.

Territorial Sea Act 1987 (c.49)

I856

In the Territorial Sea Act 1987—

a

in section 3, in subsection (2), paragraph (b) is repealed,

b

in Schedule 1, paragraph 6 is repealed.

Local Government (Wales) Act 1994 (c.19)

I867

In the Local Government (Wales) Act 1994, in Schedule 16, in paragraph 65, sub-paragraphs (4) and (10) are repealed.

Local Government etc.(Scotland) Act 1994 (c.39)

I878

In the Local Government etc. (Scotland) Act 1994, in Schedule 13, in paragraph 125, sub-paragraph (3) is repealed.

Water Industry (Scotland) Act 2002 (asp 3)

I889

In the Water Industry (Scotland) Act 2002, in schedule 7, in paragraph 11, sub-paragraph (3) is repealed.

Part 3

Sea fisheries

Sea Fisheries Act 1968

10

In the Sea Fisheries Act 1968 (c.77), in section 15 (amendments of Sea Fisheries (Shellfish) Act 1967), subsection (2A) is repealed.

Fisheries Act 1981

11

1

The Fisheries Act 1981 (c.29) is modified as follows.

2

The following provisions are repealed—

a

section 19(2)(c),

b

section 22(2)(a) and (3),

c

section 28.

3

In paragraph 33 of Part 2 of Schedule 4 (offences to which section 33(5) applies)—

a

for “Sea Fisheries (Conservation) Act 1967” substitute “ Sea Fish (Conservation) Act 1967 ”,

b

for “smaller than the prescribed size” substitute “ which do not meet the prescribed size requirements ”.

Sea Fish (Conservation) Act 1992

12

In the Sea Fish (Conservation) Act 1992 (c.60), paragraph (b) of section 5 is repealed.

Criminal Justice and Public Order Act 1994

13

In the Criminal Justice and Public Order Act 1994 (c.33), in Part 1 of Schedule 8 (increase in penalties), the entry relating to section 7(4) of the Sea Fisheries (Shellfish) Act 1967 is repealed.

SCHEDULE 5Index

(introduced by section 166(2))

Expression	Interpretation provision
the 2009 Act	Section 166(1)
common enforcement powers	Section 133
compliance notice	Section 43
the Conservation (Natural Habitats, &c.) Regulations	Section 166(1)
Demonstration and Research MPA	Section 67(1)
designation order	Section 67(1)
emergency safety notice	Section 57
European marine site	Section 166(1)
fish farm	Section 166(1)
fixed monetary penalty	Section 46(3)
the Habitats Directive	Section 166(1)
Historic MPA	Section 67(1)
licensable marine activity	Section 21(1)
marine conservation order	Section 85
marine enforcement officer	Section 157(1)
marine historic asset	Section 73(5)
marine installation	Section 166(1)
marine licence	Section 64(1)
marine management scheme	Section 99
marine policy statement	Section 19
marine structure	Section 166(1)
national marine plan	Section 19 (see also section 5)
Nature Conservation MPA	Section 67(1)
protected feature, in relation to a Nature Conservation MPA	Section 106
regional marine plan	Section 19 (see also section 5)
remediation notice	Section 44
Scottish marine area	Section 1(1)
Scottish marine protection area	Section 65(1)
Scottish marine region	Section 5(5)
sea	Section 2 (for Part 5 section 66)
seal conservation area	Section 118(1)
seal licence	Section 110
stated conservation objectives for a Nature Conservation MPA	Section 106
stated preservation objectives for a Historic MPA	Section 106
stated purpose for a Demonstration and Research MPA	Section 106
stop notice	Section 55
UK marine area	Section 166(1)
urgent continuation order	Section 88(6)
urgent marine conservation order	Section 106 (see also section 88)
variable monetary penalty	Section 48(3)
the Wild Birds Directive	Section 166(1)