Made | 19th March 2007 | ||
Laid before Parliament | 23rd March 2007 | ||
Coming into force | 20th April 2007 |
1. | Citation and commencement |
2. | Extent and application |
3. | Interpretation |
4. | Establishment of management periods for English fishing boats |
5. | Deeming provisions in respect of certain management periods notified in the early period of 2007 |
6. | Offences in relation to management periods |
7. | Allocation of days for fishing in the Cod Recovery Zone and Sole Recovery Zone |
8. | Allocation of days – pair trawling |
9. | Adjustment of the allocation of days |
10. | Fishing in the early period of 2007, notification requirement and adjustment of allocation of days |
11. | Offences in relation to allocation of days and other restrictions on presence in the Cod Recovery Zone and Sole Recovery Zone |
12. | Transfer of days |
13. | Offence in relation to transfers of days |
14. | Offences in relation to fishing gears |
15. | Maintenance of logbooks requirements and related offence |
16. | Interpretation of Part 3 |
17. | Penalties and defence |
18. | Recovery of fines |
19. | Powers of British sea-fishery officers in relation to fishing boats |
20. | Powers of British sea-fishery officers on land |
21. | Warrants to enter premises |
22. | Powers of British sea-fishery officers to seize fish and fishing gear |
23. | Protection of officers |
24. | Obstruction of officers |
25. | Offences by corporate bodies |
26. | Admissibility of documents in evidence |
27. | Amendment |
Extent and application
2.
—(1) This Order extends to England and Wales only.
(2) This Order applies—
(3) In this article—
Interpretation
3.
—(1) In this Order—
(2) In this Order, "English fishing boat" means—
which is owned wholly by persons qualified to own British ships for the purposes of Part II of that Act.
(3) In paragraph (2)—
(4) Expressions in this Order which are not defined in this Order and which appear in the Cod Annex or the Sole Annex have the same meaning in this Order as they have in those Annexes.
(5) Any information notified for the purpose of any provision of this Order must be treated as notified for the purposes of any equivalent provision.
and, subject to paragraph (2), the management period is established on that notification in respect of that period and the regulated gear group or groups.
(2) Where point 5.2 of the Cod Annex or point 4.2 of the Sole Annex applies, the management period is established only on receipt of confirmation in writing from the Secretary of State.
(3) The obligation to provide notification in paragraph (1) constitutes an obligation to serve the required information on the Secretary of State by post.
Deeming provisions in respect of certain management periods notified in the early period of 2007
5.
—(1) Where a person in charge of an English fishing boat has, during the early period of 2007, notified to the Secretary of State in writing a management period within the meaning of point 9 of the Cod Annex or point 8 of the Sole Annex, which includes any period before this Order comes into force and continues beyond that date—
(2) Any management period deemed established under paragraph (1) must be treated as beginning on the date that this Order comes into force and ending on the date notified, and the allocation of days must be calculated and adjusted accordingly.
Offences in relation to management periods
6.
—(1) Subject to paragraph (2), a person in charge of an English fishing boat or a Welsh fishing boat is guilty of an offence if, at any time during the 2007 regulated period, the fishing boat is absent from port in the Cod Recovery Zone, the Sole Recovery Zone or a combination of both zones carrying regulated gear unless a management period—
exists in respect of that fishing boat and that regulated gear at that time.
(2) Paragraph (1) does not apply to—
(3) Where, in respect of the restrictions or obligations referred to in paragraph (2)(a) and (b), there is an obligation to supply information, the Secretary of State is the person to whom the information must be supplied.
(4) In this article, "the 2007 regulated period" means the period commencing on the day this Order comes into force and ending on 31st January 2008.
Allocation of days for fishing in the Cod Recovery Zone and Sole Recovery Zone
7.
—(1) In this article—
(2) The allocation of days for an English fishing boat must be calculated in accordance with this article subject to adjustment in accordance with article 9, 10 or 12.
(3) If the English fishing boat is absent from port but is present in only one of the Cod Recovery Zone areas during a management period, the allocation of days is as follows—
(4) If the English fishing boat is present in more than one of the areas in the Cod Recovery Zone but not in the Sole Recovery Zone during the management period, the allocation of days is the highest of the allocations for each area calculated in accordance with paragraph (3).
(5) If the English fishing boat is present in both the Cod Recovery Zone and the Sole Recovery Zone or in the Sole Recovery Zone only during the management period, the allocation of days is 16 multiplied by the number of calendar months in the management period.
Allocation of days – pair trawling
8.
Where on any day during a management period any regulated gear is at any time affixed to a fishing boat which is absent from port and present in the Cod Recovery Zone (whether or not it is carried by that fishing boat) at the same time as being affixed to another fishing boat, that day must be counted as a day in which each fishing boat is present in the zone for the purposes of this Order.
Adjustment of the allocation of days
9.
—(1) The Secretary of State may adjust the allocation of days that applies in respect of an English fishing boat by adding further days —
(2) Where, in respect of previous management periods established in respect of an English fishing boat, the number of days in any allocation of days calculated in accordance with article 7 would have resulted in fractions of days had paragraph (1)(d) of that article not required the rounding down of fractions, the Secretary of State may add any whole days amounting from the sum of any such fractions.
(3) Where an English fishing boat is absent from port carrying notified gear in the Cod Recovery Zone or the Sole Recovery Zone or a combination of both zones in excess of its allocation of days, the Secretary of State must deduct from any subsequent allocation of days the number of days during which the boat was so absent from port in excess of the relevant allocation.
(4) Where a person in charge of an English fishing boat contravenes article 6(1), the Secretary of State must deduct from any subsequent allocation of days the number of days during which the boat was absent from port carrying regulated gear without having established a management period in respect of that period and that gear.
(5) Any adjustment made under this article takes effect when it is served by post on a person in charge of the fishing boat by the Secretary of State.
Fishing in the early period of 2007, notification requirement and adjustment of allocation of days
10.
—(1) This article applies where, in the early period of 2007, an English fishing boat was—
for more than the number of days that would have been allocated in respect of the fishing boat had this Order been in force in respect of that period and had a person in charge notified a three month management period in respect of the early period of 2007.
(2) A person in charge of the boat must notify to the Secretary of State, within 28 days of the date that this Order comes into force, the number of days during which the boat was absent from port and present in the Cod Recovery Zone, the Sole Recovery Sole or a combination of both zones carrying regulated gear during the early period of 2007.
(3) The Secretary of State must adjust the allocation of days that applies in respect of the boat to reflect those additional days present in the zones during the early period of 2007.
(4) The person in charge of the boat is guilty of an offence if he fails to comply with paragraph (2).
(5) The obligation to notify information in paragraph (2) constitutes an obligation to serve the required information on the Secretary of State by post.
Offences in relation to allocation of days and other restrictions on presence in the Cod Recovery Zone and Sole Recovery Zone
11.
—(1) In this article, "day" means a continuous period of 24 hours which begins the moment a fishing boat enters either the Cod Recovery Zone or the Sole Recovery Zone.
(2) Any subsequent re-entry into the Cod Recovery Zone or Sole Recovery Zone during that period does not trigger a new day.
(3) Where the fishing boat in question is present in either the Cod Recovery Zone or the Sole Recovery Zone at the end of a day, the next day begins at the moment the previous day expires and so on for any contiguous 24–hour periods.
(4) Any time which a fishing boat spends within the Cod Recovery Zone, the Sole Recovery Zone or a combination of both zones during a day is to be counted as a whole day for the purpose of calculating the number of days spent absent from port and present in the Cod Recovery Zone, the Sole Recovery Zone or a combination of both zones.
(5) A person in charge of an English fishing boat or a Welsh fishing boat is guilty of an offence if the fishing boat is absent from port carrying regulated gear in the Cod Recovery Zone, the Sole Recovery Zone or a combination of both zones for more days than—
(6) Notwithstanding an allocation of days under article 7(3) or an equivalent provision, a person in charge of an English fishing boat or a Welsh fishing boat is guilty of an offence if there are two or more groups of notified gear and a gear group is used from the fishing boat during more days than the number of days that would apply in respect of that gear group alone for that management period, calculated respectively either in accordance with article 7(3)(a) or an equivalent provision.
(7) Notwithstanding the allocation of days under article 7(4) or an equivalent provision, a person in charge of an English fishing boat or a Welsh fishing boat that is present in more than one of the areas in the Cod Recovery Zone during a management period established in accordance with this Order or an equivalent provision, is guilty of an offence if—
(8) Notwithstanding the allocation of days under article 7(5) or an equivalent provision, a person in charge of an English fishing boat or a Welsh fishing boat that is present in both the Cod Recovery Zone and the Sole Recovery Zone during a management period established in accordance with this Order or an equivalent provision, is guilty of an offence if—
Transfer of days
12.
—(1) In this article—
(c) "foreign fishing boat" means a fishing boat which is not a British fishing boat.
(2) Unused days within an allocation of days established in accordance with this Order may be transferred from an allocation relating to one English fishing boat ("the donor") to an allocation relating to another British fishing boat ("the recipient") in the circumstances permitted by, and subject to, the conditions in point 14 of the Cod Annex and point 11 of the Sole Annex.
(3) A transfer under paragraph (2) is only effective if a written notification of transfer containing the particulars in paragraph (4), signed by the owner of the donor or the owner's agent, is sent to the Secretary of State before the end of the management period in relation to which the transfer is to take effect.
(4) The particulars are—
(b) the calendar months in the management period and the notified gear to which the transfer relates;
(c) the number of days transferred to each recipient;
(d) a declaration to the effect that the donor is entitled to make the transfer; and
(e) the date of signature.
(5) On written application from a person in charge of an English fishing boat, the Secretary of State may transfer unused days that apply in respect of that fishing boat to a foreign fishing boat subject to the conditions in point 15 of the Cod Annex or point 12 of the Sole Annex.
(6) Any such transfer takes effect when notice of it is served by post on the person in charge of the fishing boat by the Secretary of State.
Offence in relation to transfers of days
13.
A person is guilty of an offence if he makes a false declaration in a notification made in respect of a transfer pursuant to article 12.
Offences in relation to fishing gears
14.
—(1) A person in charge of a fishing boat in respect of which point 17 or 18 of the Cod Annex applies, is guilty of an offence if he fails to comply with the obligations imposed by either of those points.
(2) Where, in respect of the obligations referred to in paragraph (1), there is an obligation to supply information, the Secretary of State is the person to whom the information must be supplied.
(3) Subject to paragraph (4) and notwithstanding the derogation in point 19.2 of the Cod Annex, a person in charge of an English fishing boat is guilty of an offence if the English fishing boat carries any regulated gear in contravention of point 19.1 of the Cod Annex.
(4) The derogation in point 19.2 of the Cod Annex applies to a person in charge of an English fishing boat which is outside British fishery limits.
Maintenance of logbooks requirements and related offence
15.
—(1) A person in charge of a fishing boat is guilty of an offence if he fails to comply with the requirements in this article.
(2) Where a fishing boat is absent from port carrying regulated gear in the Cod Recovery Zone, the Sole Recovery Zone or a combination of both zones on any day where the logbook requirements in Article 6 of Regulation 2847/93 read with Regulation 2807/83 do not apply, a logbook entry stating the gear carried must be made as though that Article did apply.
(3) The logbook entry referred to in paragraph (2)—
(b) must be handed over and dispatched as if landing were made at the time of the fishing boat's arrival in port.
(4) In this article, "day" has the meaning given in article 11(1).
Penalties and defence
17.
—(1) A person found guilty of a relevant offence, is liable—
(2) The court by or before which a person is convicted of any relevant offence may also order—
(b) a fine not exceeding the value of the fish caught at any time in the period during which the offence was committed.
(3) In any proceedings for an offence under article 11, it is a defence for a person to show that the number of days absent from port carrying regulated gear in excess of its allocation of days is no greater than the number of days purportedly but not validly transferred to that person's fishing boat's allocation of days under article 12 and that he did not know and had no reasonable cause to suspect that the owner of the donor, within the meaning given in article 12(2), was not entitled to transfer the days.
Recovery of fines
18.
Where a magistrates' court imposes a fine on a person convicted under this Order or any equivalent provision, the court may—
for the purpose of levying the amount of the fine; and
(b) order that the boat and its gear and catch be detained until—
whichever occurs first.
(2) Subsection 1 of section 77 (postponement of issue of warrant) and section 78 (defect in distress warrant and irregularity in its execution) of the Magistrates' Courts Act 1980[14] apply to a warrant of distress issued under this article as they apply to a warrant of distress issued under Part III of that Act.
(3) Where in relation to a fine in respect of any offence under this Order or any equivalent provision, an order under article 95 of the Magistrates' Courts (Northern Ireland) Order 1981[15] or section 222 of the Criminal Procedure (Scotland) Act 1995[16] (both of which deal with transfer of fines from one jurisdiction to another) specifies a petty sessions area in England, this article applies as if the fine were imposed by a court within that petty sessions area.
Powers of British sea-fishery officers in relation to fishing boats
19.
—(1) For the purpose of enforcing this Order, or any equivalent provision, or to operate or facilitate the operation of any monitoring deriving from point 25 of the Sole Annex, any British sea-fishery officer may exercise the powers conferred by this article.
(2) He may go on board the boat, with or without persons assigned to assist him in his duties, and may require the boat to stop and do anything else which will facilitate either the boarding of, or the disembarkation from, the boat.
(3) He may require the attendance of the master and other persons on board the boat and may make any examination and inquiry which appears to him to be necessary for the purposes mentioned in paragraph (1) and, in particular—
(4) Where it appears to a British sea-fishery officer that an offence under article 6, 11, 14 or 15, or under any equivalent provision, has at any time been committed in respect of a fishing boat, he may—
and where such an officer detains or requires the detention of the boat he must serve on the master a notice in writing stating that the boat is (or is required to be) detained until the notice is withdrawn by the service on the master of a further notice in writing signed by a British sea-fishery officer.
Powers of British sea-fishery officers on land
20.
—(1) For the purpose of enforcing this Order or any equivalent provision, or to operate or facilitate the operation of any monitoring deriving from point 25 of the Sole Annex, any British sea-fishery officer may—
(2) The provisions of paragraph (1) also apply in relation to any land used in connection with any of the activities described in paragraph (1)(a), or in respect of any vehicle which a British sea-fishery officer has reasonable cause to believe is being used to transport fish or fisheries products, as they apply in relation to premises and, in the case of a vehicle, include power to require the vehicle to stop at any time and, if necessary, direct the vehicle to some other place to facilitate the inspection.
Warrants to enter premises
21.
—(1) If a justice of the peace on sworn information in writing is satisfied that the circumstances in paragraph (2) apply, he may issue a warrant authorising a British sea-fishery officer to enter any premises, if necessary using reasonable force, and to take with him such persons as appear to be necessary.
(2) The circumstances are that—
Powers of British sea-fishery officers to seize fish and fishing gear
22.
A British sea-fishery officer may seize—
Protection of officers
23.
—(1) An officer is not liable in any civil or criminal proceedings for anything done or omitted to be done in the purported exercise of the powers conferred by article 19, 20 or 22 if the court is satisfied that—
(2) In this article, "officer" means—
Obstruction of officers
24.
—(1) A person is guilty of an offence if—
(2) A person guilty of an offence under paragraph (1) is liable—
Offences by corporate bodies
25.
—(1) If a relevant offence committed by a body corporate is shown—
the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(2) If the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body.
(3) In this article "officer" in relation to a body corporate, means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.
Admissibility of documents in evidence
26.
—(1) In any proceedings in respect of an offence under this Order or any equivalent provision, any—
of Council Regulation 2847/93 is evidence of the matters stated in the logbook, declaration, effort report, sales note or document, as the case may be.
(2) For the purpose of paragraph (1), "required information" means the following information as communicated via a satellite-based boat monitoring system established under Article 3.1 of Regulation 2847/93—
Amendment
27.
In the Sea Fishing (Restriction on Days at Sea) (Monitoring, Inspection and Surveillance) Order 2006[17], omit—
Ben Bradshaw
Minister of State Department for Environment, Food and Rural Affairs
19th March 2007
David Cairns
Parliamentary Under Secretary of State Northern Ireland Office
17th March 2007
[2] References to sections in this footnote are to sections of the Fisheries Act 1981 (c. 29.) unless otherwise stated. Scotland: section 30(5) was inserted by the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820), article 4 and Schedule 2, Part I, paragraph 68(1), 5(b) (made under section 115 of, and paragraphs 1, 2 and 3 of Schedule 7 to, the Scotland Act 1998 (c. 46)). Section 30(5) provides that the definition of "the Ministers" in section 30(3) is amended so that, insofar as section 30(2) has effect in relation to Scotland, "the Ministers" means "the Scottish Ministers." The Scotland Act 1998 (Concurrent Functions) Order 1999 (S.I. 1999/1592), article 3(1) and Schedule 1, provide for the function exercisable under section 30(2) to be exercised by the Ministers concurrently with the Scottish Ministers in relation to, firstly, British fishing boats (other than Scottish ones) within the Scottish zone, and, secondly, Scottish fishing boats within British fishery limits but outside the Scottish zone. Wales: by virtue of the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672), article 2(a) and Schedule 1, the function exercisable under section 30(2) was transferred to the National Assembly insofar as exercisable in relation to Wales. "Wales" is defined in section 155(1) of the Government of Wales Act 1998 (c.38) as including "the sea adjacent to Wales out as far as the seaward boundary of the territorial sea". Northern Ireland: by virtue of the Sea Fisheries (Northern Ireland) Order 2002 (S.I. 2002/790), article 3(2) Schedule 2, paragraph (3) (made, in this respect, under section 86(3)(b) of the Northern Ireland Act 1998 (c. 47)) the function conferred by section 30(2) within the Northern Ireland zone and outside that zone in relation to Northern Ireland fishing boats is transferred to the Department of Agriculture and Rural Development (of Northern Ireland). By virtue of the Transfer of Functions (Agriculture and Fisheries) Order 2000 (S.I. 2000/1812), article 2(1), the remaining functions of the Secretaries of State for Scotland and Wales under section 30(2) relevant to this Order were transferred to the Minister of Agriculture, Fisheries and Food. The functions of the Minister of Agriculture, Fisheries and Food and one or more named Secretaries of State (however described) acting jointly were transferred to the Secretary of State for Environment, Food and Rural Affairs and the one or more Secretaries of State acting jointly by virtue of the Ministry of Agriculture, Fisheries and Food (Dissolution) Order 2002 (S.I. 2002/794), article 2(5).back
[3] See section 155(1) of the Government of Wales Act 1998 (c. 38).back
[4] 1976 c.86. See also S.I 1997/1750 and S.I. 1999/1741.back
[7] OJ No L 15, 20.1.2007, p1, as amended by corrigendum OJ No L18, 25.1.2007, p.11back
[8] Section 30(2A) was inserted by the Scotland Act 1998 (Consequential Modifications)(No.2) Order 1999, S.I. 1999/1820, art. 4 and Part I of Schedule 2, paragraph 68(1) and (5).back
[9] OJ No L 276, 10.10.83, p.1, as amended by Commission Regulation (EEC) No 473/89 of 24 February 1989, Commission Regulation (EEC) No 2945/95 of 20 December 1995, Commission Regulation (EC) No 395/98 of 19 February 1998, Commission Regulation (EC) No 1488/98 of 13 July 1998, Commission Regulation (EC) No 2737/1999 of 21 December 1999, Commission Regulation (EC) No 1965/2001 of 8 October 2001 and Commission Regulation (EC) No 1804/20005 of 3 November 2005.back
[10] OJ No L 261, 20.10.93, p1, as amended by Council Regulation (EC) No 2870/95, Council Decision 95/528/EC of 5 December 1995, Council Regulation (EC) No 2489/96 of 20 December 1996, Council Regulation (EC) No 686/97 of 14 April 1997, Council Regulation (EC) No 2205/97 of 30 October 1997, Council Regulation (EC) No 2635/97 of 18 December 1997, Council Regulation (EC) No 2846/98 of 17 December 1998, Council Regulation (EC) No 806/2003 of 14 April 2003 and Commission Regulation (EC) 768/2005 of 26 April 2005.back
[12] S.I 1993/3138, amended by S.I. 1999/3206; there are other amending instruments, but none is relevant.back
[13] 1968 c.77; section 7 is amended by sections 26(1) and 46(2) of, and Schedule 5, Part II of, the Fisheries Act 1981 (c. 29). There are other amendments but none is relevant.back
[14] 1980 c.43; section 78 was amended by the Courts Act 2003 (c.39), section 109(1) and Schedule 8 paragraph 219(a).back
[15] S.I. 1981/1675 (NI 26).back