Marine Navigation (No. 2) Bill
Public Bill Committee, 7 November 2012.
Roger Gale (Conservative, North Thanet)
Good afternoon. Hon. Members may remove their jackets if they are brave enough to do so. There is little to say in opening, save that due to the nature of the Bill and because I suspect that we will rip through a lot of it fairly quickly, I am perfectly happy for its promoter and the Front Benchers to make broad introductory remarks, if they wish.
Clause 1 - Power remove harbour authorities’ pilotage functions
Sheryll Murray (Conservative, South East Cornwall)
It is a pleasure to serve under your chairmanship, Sir Roger. When I looked back at the history of the Pilotage Act 1987, it was good to see that you had made a contribution on Second Reading. I express my gratitude to all hon. Members for allowing time for my Bill’s Second Reading, a little more than a fortnight ago, and I thank members of the Committee for agreeing to take part in this stage of the Bill’s progress. The Bill is broad in content but specific in nature. It seeks to invigorate, liberate and, I hope, innovate to the benefit of the maritime industry.
Jim Fitzpatrick (Labour, Poplar and Limehouse)
Sir Roger, it is a pleasure to see you preside over business this afternoon. If you allow me, I will make one or two general remarks when we move to clause 2 and the amendments. I stand now to congratulate the hon. Lady on piloting the Bill so successfully through Second Reading and bringing it to Committee today.
Peter Bottomley (Conservative, Worthing West)
Sir Roger, I want to speak mainly on clause 5, but will listen to the debate on clause 2 with interest. We should congratulate my hon. Friend the Member for South East Cornwall on bringing her Bill this far and thank the Minister for the way he dealt with it on Second Reading. As we saw on clause 1 and the other clauses, there are sometimes difficulties in getting a Bill which has general merit, through Parliament. Although it may need some adjustment, I hope that it will be possible for it to progress, not only today but in its future stages.
Stephen Hammond (Conservative, Wimbledon)
Sir Roger, may I take advantage of your stricture to say a few brief words? It is a pleasure to see you in the Chair this afternoon. Like other hon. Members, I congratulate my hon. Friend the Member for South East Cornwall on bringing the Bill to this stage. I hope that progress is relatively speedy this afternoon.
I want to reiterate a couple of the comments that I made on Second Reading. Far too many people take the maritime industry for granted, which we should never do, because not only do people undertake such work for the prosperity of the country, but in many cases they put their lives at risk. We all want to ensure that the Bill enhances their safety, rather than otherwise.
Hon. Members will want to talk about clause 2 and I am happy to enter into such discussions. I hope to give them reassurance from the Government, if it is required. My hon. Friend the Member for Worthing West raised issues about clause 5 on Second Reading, and I am sure that he will want to raise some again today, but we have had relatively constructive engagement with the Royal Yachting Association, and I hope that the Government will be able to reassure him in a similar fashion. I hope that this excellent Bill will therefore make speedy progress this afternoon.
Clause 2 - Pilotage exemption certificates: grant
Jim Fitzpatrick (Labour, Poplar and Limehouse)
I beg to move amendment 1, in clause 2, page 2, line 7, leave out—
‘a member of the crew’
and insert—
‘master, first mate or senior navigating officer’.
Roger Gale (Conservative, North Thanet)
With this it will be convenient to discuss the following:
Amendment 5, in clause 2, page 2, line 7, leave out—
‘a member of the crew’
and insert—
‘master, first mate or senior Deck Officer’.
Amendment 2, in clause 2, page 2, line 8, leave out—
‘of which he is master or first mate’
and insert—
‘master, first mate or senior navigating officer’.
Amendment 6, in clause 2, page 2, line 8, leave out—
‘of which he is master or first mate’
and insert—
‘master, first mate or senior Deck Officer’.
Amendment 3, in clause 2, page 2, line 9, leave out—
‘a member of the crew of the ship’
and insert—
‘master, first mate or senior navigating officer’.
Amendment 7, in clause 2, page 2, line 9, leave out—
‘a member of the crew of the ship’
and insert—
‘master, first mate or senior Deck Officer’.
Amendment 4, in clause 2, page 2, line 12, leave out ‘person’ and insert—
‘master, first mate or senior navigating officer’.
Amendment 8, in clause 2, page 2, line 12, leave out ‘person’ and insert—
‘master, first mate or senior Deck Officer’.
Jim Fitzpatrick (Labour, Poplar and Limehouse)
I want to associate myself with the comments of the Shipping Minister. As a former Shipping Minister, I know that shipping’s contribution to UK plc and the role it plays serving the nation do not get the profile they deserve. It is good that we have such a Bill before us to allow those comments to be made. I very much associate myself and my hon. Friends with the Minister’s remarks.
We gave the Bill support on Second Reading. I missed the introductory speech by the hon. Member for South East Cornwall because I was at the memorial service for my former colleague, Malcolm Wicks, who represented Croydon North. I was grateful to her and the Minister for indulging me so that I could pay tribute to Malcolm. None the less, I have read her speech and I know that she delivered it extremely well. She clearly outlined the essentials of the Bill. As I said in my remarks at the time, much of the Bill was promoted by the previous Labour Government, so it would be churlish of us not to support it. It contains many positive elements, and I know that the shipping sector is keen for it to make progress today.
Notwithstanding the comments made by the hon. Member for Worthing West on behalf of the Royal Yachting Association and others, the main issue for us is the pilotage exemption certificates under clause 2. My hon. Friend the Member for Ellesmere Port and Neston made a constructive contribution on Second Reading, and the Minister was able to give some strong reassurances in respect of his concerns. As I too will be raising those concerns today, my hon. Friend may well attempt to catch your eye, Sir Roger, to make many of the same points.
As I have said, the one issue of concern to us and the United Kingdom Maritime Pilots Association is the pilotage exemption certificates. The amendments that we have tabled today are supported by a number of our colleagues, and also by the UKMPA. The Minister has responded very positively. He will have seen the briefing from the Maritime Pilots Association arguing why our amendments should be accepted. Although they are probing amendments, we will revise our position in due course. The MPA says:
“The clause is based on the specific commercial requirements of a small (aggregate dredging) sector of the UK shipping industry which for operational reasons is falling foul of the Working Time regulations. The nett result of the clause will be to increase the risk of a serious maritime casualty within a UK port or approaches, seriously threatening: the safety of mariners and riparian communities, the safety of other shipping or vessels, ports' infrastructures and ability to operate efficiently, environmental protection through increased risk of pollution, certain aspects of border security.”
The MPA’s claim is that the clause is in direct contradiction to, and in some cases in contravention of, the Maritime and Coastguard Agency’s policies and guidance, the port marine safety code requirements, the International Maritime Organisation’s standards of training, certification and watchkeeping for seafarers regulations and the “Bridge Procedures Guide” by the International Chamber of Shipping.
The argument is that the Marine Accident Investigation Branch investigations into port-related incidents frequently recommend improvements to operations. Competent harbour authorities of small ports, it suggests, are
“under significant commercial influences from customers, especially where a port has a dominant customer upon which the port’s economic survival is based.”
It concludes that the recently published final report of the EU’s pilotage exemption certificate study states:
“There is no mention of junior officers being permitted to hold a PEC.”
It is fair to say—I have put this to the MPA—that it could easily be accused of self-interest, because its members’ jobs are involved. The association understands that accusation.
The Minister gave assurances to my hon. Friend the Member for Ellesmere Port and Neston on Second Reading, which we would like to be reiterated today. The problems that I have, notwithstanding the amendments, are stimulated at least partly by the pilots’ association. We received correspondence from the British Ports Association and the United Kingdom Major Ports Group last week, signed by Mr David Whitehead OBE, director of the BPA, and Richard Bird, executive director of UKMPG. They said that they
“have been giving careful consideration to the extension of PECs beyond ships’ masters and first mates. It is an extension that we have previously supported in principle, notwithstanding concerns previously expressed by the industry that to do so could compromise safety, bearing in mind the vital responsibilities that a ship’s pilot has.”
They said:
“The recent review of the Port Marine Safety Code (PMSC)—
which I mentioned earlier—
“and its emphasis on risk assessment and the importance of the role of harbour authorities in managing harbour areas has also focussed renewed attention on the extension of PECs. This has led to questions about whether an extension would be fully compatible with the principles of the Code.”
The final paragraph says:
“Discussions continue on this issue but as matters stand we cannot guarantee support from the ports industry for this change, although we accept that the authorisation of PEC holders is ultimately under the control of harbour authorities.”
For the ports industry to make comments as strong as that means that we have to stop and pay attention because the last thing the Minister and the hon. Member for South East Cornwall want to be accused of is either preventing shipping from being as efficient and effective as possible, or compromising safety. Heaven forbid that if there were an accident or a fatality, it could go back to our deliberations here.
We have tabled these amendments—certainly those that stand in my name; my hon. Friend the Member for Ellesmere Port and Neston will speak for himself—as probing amendments. We are keen to hear the Minister reiterate the Government’s view on the safeguards that they believe will exist within the system. To the hon. Member for South East Cornwall, whose Bill it is, I want to say that we are broadly supportive of the Bill and we are keen to make sure we get it right.
Andrew Miller (Labour, Ellesmere Port and Neston)
It is a pleasure to serve under your chairmanship, Sir Roger. We were on the Solent together observing the fleet review some years ago. We were not in charge of the vessels then. However, there were rather a lot of them, so it was perhaps a good job that we were not.
I have an interest in the sea. I was brought up around it and I have many years’ experience on our waterways. I am very familiar with the Solent, although, as I said, I would not regard myself as competent to take a vessel of any size through it. I also know parts of Cornwall extremely well. I have sailed in the Fal estuary on many occasions. The hon. Member for Worthing West, who has expertise as a member of the Royal Yachting Association, will know that it is one of the places in which there are really flukey winds, and it is hard to sail in—one has to be rather good at it. I have also sailed in my local waterway, the Mersey estuary. Those are three quite different areas.
One of the points I am making in introducing my amendments is to remind the Committee that these exemption certificates are specific to particular waterways. The three waterways that I described are quite different in character. They have different volumes of shipping and different mixes of pleasure, commercial and military vessels. The expertise must not be allowed to slip. The whole purpose of these amendments is around those points.
Many colleagues on both sides of the Committee, including you, Sir Roger, will have received correspondence from my constituent, Mr Barrie Youde, who is very passionate about some of the issues that have been raised, and I described them on Second Reading. He writes to me today and says that in his view—he is a lawyer—
“Clause 2 crushes the English common law as so much gravel under a steam roller. It rebuts international law altogether. It increases public risk and adds nothing to public safety. It is thus a constitutional abomination.”
The Minister made it clear on Second Reading that he does not share that view. It would be helpful if he spelled out clearly that clause 2 is not in breach of common law, if that is the Government’s view, and that it stands up to the concerns that my right hon. Friend has mentioned about safety.
Jim Fitzpatrick (Labour, Poplar and Limehouse)
Not right honourable.
Andrew Miller (Labour, Ellesmere Port and Neston)
Well, he should be right honourable. Amendments 5 to 8 are similar to those tabled by my hon. Friend, and they probe the qualifications that someone who holds an exemption certificate should have. For the reasons I have given, we must be absolutely clear that such an exemption certificate is for one particular harbour or waterway and for one particular vessel. That must be recorded formally to avoid ambiguity, so that no judge could interpret the Committee’s intention as being anything different. It must be absolutely clear that the individual granted such an exemption certificate would meet the qualifications required by that harbour authority, notwithstanding some of the definitional questions in clause 5 about harbour directions.
Although in clause 2 the Minister has continued to devolve responsibility to harbour authorities, he must give the House a formal assurance that the standards established by harbour authorities will never be allowed to compromise the safety issues that the hon. Member for South East Cornwall and my hon. Friend the Member for Poplar and Limehouse quite rightly referred to. If we can find a way forward that makes those points clear, we will have done a service to marine safety. We must not leave any ambiguity in the Bill. I hope that, in responding, the Minister can provide the kind of assurances that I, my constituent and the whole maritime industry seek.
Roger Gale (Conservative, North Thanet)
Does the Minister wish to comment?
Stephen Hammond (Conservative, Wimbledon)
If I may, Sir Roger, let me try to pick up a number of points that were raised by the hon. Members for Ellesmere Port and Neston and for Poplar and Limehouse. Clause 2 deals with pilotage exemption certificates. Clause 2(1)(a) and (b) substitute “a member of the crew” for “the master or first mate”. Amendments 1 to 8 would replace that with either “master, first mate or senior Deck Officer” or “master, first mate or senior navigating officer”. I reiterate what I said on Second Reading. There is still an obligation under section 8 of the Pilotage Act 1987, which clearly states that a competent harbour authority can issue a pilotage exemption certificate only when it is certain that the applicant’s
“skill, experience and local knowledge are sufficient for him to be capable of piloting the ship”.
I am sure that in a moment’s time the hon. Member for Poplar and Limehouse will stand up and say, “Isn’t it a shame that the language is not more modern, and it would be for any member of the crew?” I take that point, because we had that discussion on Second Reading.
However, it is quite clear that a competent harbour authority cannot issue a PEC to unqualified individuals. It would not be in the authority’s interests to do so and clearly it would not be in the interests of safety for it to do so. More importantly, however, because of the law that is in place at the moment, which is not changing, and because harbour authorities are still subject to that law, they will only be empowered under this Bill to award PECs to those who have the
“skill, experience and local knowledge”
sufficient to pilot the named ship to which the PEC applies.
I hope that I can reassure both hon. Gentlemen. First, there is still an obligation under other law; this Bill does not change that. And competent harbour authorities cannot issue PECs to anyone they choose. They are still subject to that existing law and I do not believe that any competent harbour authority would want to endanger the safety of sailors.
Secondly, if one looks at the obligation that that law places on the harbour authority, clearly it also places an obligation upon the ship and the people that might be proposed for a PEC, for the sheer test of
“skill, experience and local knowledge”
would limit the number of mariners who could hold a PEC, and only those who have been regularly tasked with the navigation of a ship could meet those requirements. Therefore, in terms of seeking greater flexibility or some limited flexibility about who might have that exemption, it is not being suggested that PECs are available to all crew members and it is certainly not being suggested that they should be available to crew members who are not regularly tasked with the navigation of their ship. I want to put that on record.
Thirdly, there has been an issue about where a PEC would apply, which has been raised by the hon. Member for Ellesmere Port and Neston. Let me reiterate what we said on Second Reading. It is absolutely clear that this Bill only extends a PEC to a qualified member of the crew, as I have just stated, and it would only exist for that ship; a specific certificate is needed for that ship and for that navigable harbour. It is not a general PEC and if a member of the crew wanted to take a different ship into a different harbour, they would require a different PEC from a different competent harbour authority. So, for each individual instance where a PEC was applied for, it would be for that particular ship and that piece of navigable harbour. I hope that those points reassure the hon. Gentlemen.
I am sympathetic to the spirit of the amendments, because I think they are trying to ensure that the people who might be applying for an exemption, although they might come from a wider range of people, are qualified. However, I am also slightly concerned, and I hope that the hon. Gentlemen will reflect on this point when they consider what to do with their amendments, that, as I said on Second Reading, one of the other purposes of the clause is that, although it will strengthen the ability of the harbour authority to give PECs to other members of the crew if they can prove themselves to be competent, it will of course allow harbour authorities to withdraw the exemption more speedily if necessary.
I am slightly concerned that there may be some issues regarding the ability to withdraw the exemption and I am also concerned that the conditions may be slightly restrictive, in that there may well be qualified competent individuals who can show the local knowledge that is required but who may not come under the relatively subjective qualification of “senior”; I ask the hon. Gentlemen to think about that point, and what it might mean in practice.
Finally, I have obviously listened carefully to the remarks of David Whitehead of the BPA and Richard Bird of the UKMPG, both of whom I have met in the last month, and I have to confess that they did not raise these concerns with me then. None the less, it is important that they have raised them. What is crucial in their letter, if I understood it correctly, is that they have not yet removed, or do not intend to remove, their support in principle. They do not believe at the moment that the proposals are incompatible; they want to check their compatibility. Were they to tell me that they thought they were incompatible, I would be seriously concerned, but I do not think that is the line they are taking. I think they are still assuring themselves.
The port marine safety code and the MCA guidance are based on existing law, so by its very nature the Bill could not contravene them. I am reasonably certain that were I to have another meeting in the near future with Mr Whitehead and Mr Bird, I could tell them that what is in the Bill cannot be in contravention of that code, because that code is based on law. I would not be standing here supporting the clause today if that were not the case.
Andrew Miller (Labour, Ellesmere Port and Neston)
For absolute clarity, could the Minister confirm that the Bill will not supersede the existing law?
Stephen Hammond (Conservative, Wimbledon)
I am sorry, I did not catch that.
Andrew Miller (Labour, Ellesmere Port and Neston)
Will the Minister be absolutely clear that nothing in the Bill will weaken the existing legislation? Is that what he is saying?
Stephen Hammond (Conservative, Wimbledon)
That is exactly what I am saying. The Bill is subject to existing law. That still applies. We are not changing that; we are just slightly widening the scope. The port marine safety code and the MCA guidance are based on existing law, and we are not changing them, so the Bill is not in contravention of either UK law, the port marine safety code or the MCA guidance.
I hope that the hon. Member for Poplar and Limehouse will accept my reassurance that the clear advice I have received is that the clause does not contravene those guidelines or the EU guidelines; nor does it crush UK common law. Although I understand, and have received the same e-mail from, the constituent of the hon. Member for Ellesmere Port and Neston, I am clear from the guidance and the Government’s legal advice that the clause does not have the purpose that the gentleman thinks it has.
Peter Bottomley (Conservative, Worthing West)
The hon. Members for Ellesmere Port and Neston, and for Poplar and Limehouse, have rightly raised concerns that have been put to all members of the Committee. I take the view that the Minister could have made his point even more firmly. Clause 2 is an amendment to the Pilotage Act 1987. There is no change other than the one in the clause, and therefore it is impossible for a certificate to be issued to someone who is not competent. That is probably the assurance that the pilots, passengers, and others using the seas and harbours would want.
Sheryll Murray (Conservative, South East Cornwall)
I am grateful to hon. Members for explaining the problem that their amendments seek to address. They will be pleased to learn that I have sympathy with their argument. Everyone knows that I am deeply concerned to ensure that we maintain maritime safety. That is why the Bill contains three balanced clauses specifically relating to pilotage exemption certificates. I firmly believe that competent harbour authorities would not issue PECs to unqualified individuals. It is not in their interest to do so.
Peter Bottomley (Conservative, Worthing West)
Surely it goes even further than that; they cannot by law issue a certificate to someone who is not qualified.
Sheryll Murray (Conservative, South East Cornwall)
My hon. Friend is exactly right. As things stand, the Bill empowered harbour authorities to award PECs only to those who had sufficient skill, experience and knowledge to pilot the named ship or ships to which the PEC applied.
In practice, the skills, experience and knowledge required would, as the Minister rightly said, limit the number of mariners holding a PEC. Only those who are regularly tasked with the navigation of a ship could demonstrate those requirements. Furthermore, my understanding of the industry’s requirement for greater flexibility is that it is not seeking PECs for crew members who are not regularly tasked with the navigation of the ship. I declare a small interest, as my daughter is a navigation officer in the Royal Navy. I am certain that she would not expect her ship to come under the navigation authority of someone who was, say, a weapons engineer. That would simply not be practical.
I am sympathetic to the amendments, but I am not yet convinced that the terminology would extend the range of PEC holders in quite the right way. It is important that any definitions used are endowed with clarity, so that the ports and shipping industry can understand immediately who is entitled to a PEC; ideally, definitions used in international maritime agreements, such as the international convention on standards of training, certification and watchkeeping for seafarers, would be adopted.
I will reflect, along with my hon. Friend the Minister, on what definition could be used that would provide the flexibility and clarity required by the industry, to see if we can bring forward a suitably drafted set of amendments at a later stage. With that assurance, I hope that the hon. Member for Poplar and Limehouse will be prepared to withdraw his amendment.
Andrew Miller (Labour, Ellesmere Port and Neston)
I have listened carefully to the Minister and the hon. Lady. The Minister, who is an honourable man, has access to considerable legal expertise in the field of maritime law, so I welcome the fact that he has put his assurances on the record. That is the point at which I would like to leave the matter, but I add that if some of the language can be improved, as the hon. Lady indicated, I would welcome it. I reserve my position in respect of what might happen on Third Reading, but I welcome the assurance given by the Minister.
Jim Fitzpatrick (Labour, Poplar and Limehouse)
I reiterate the comments of my hon. Friend. The hon. Member for South East Cornwall’s connection to the sea, via family and constituency, is well known. Everyone recognises that her motivation in putting the Bill forward is to improve maritime safety and the efficiency of the industry. We would not question her motives; when she says that her prime motivation is to ensure the safety of mariners, we fully accept that. We are grateful to the Minister for reiterating the reassurances that he gave on Second Reading, and especially for his comments about the Associated British Ports and the UKMPG, and about being prepared to ensure that they are satisfied. If the industry says something, that is entirely different from just the Maritime Pilots Association saying it; it broadens the matter out, and shows that this is a serious matter, and we want to get it right.
The hon. Member for Worthing West brought the cavalry to support the Minister. I do not know if that was a negotiating ploy for clause 5; perhaps he is trading something for what is coming later. Notwithstanding that, Back Benchers and Front Benchers are united with the sponsor of the Bill. I concur with my hon. Friend the Member for Ellesmere Port and Neston, and I beg to ask leave to withdraw the amendment. However, we may return to this discussion on Third Reading.
Roger Gale (Conservative, North Thanet)
With the leave of the Committee, I will put clauses 3 and 4 together.
Peter Bottomley (Conservative, Worthing West)
Although the Minister may not be able to give this assurance, it may be sensible to suggest that when the Bill reaches the statute book, assuming that it does, the relevant Acts of Parliament are consolidated, so that the various provisions of this Bill and the Pilotage Act 1987 come together. People would then be able to read them together and actually understand what is going on without having to refer to other Acts.
Clause 5 - Harbour directions
Peter Bottomley (Conservative, Worthing West)
I am grateful to you, Sir Roger, and to the Committee for letting me raise some of the issues that were aired on Second Reading. It is clear that the Bill, including clause 5, has quite a history, and the issues will be familiar to those who were Shipping Ministers before the change of Government in 2010.
I again thank my hon. Friend the Member for South East Cornwall for bringing the Bill to Parliament, and I hope that it will make progress. I cannot think of any occasion when a majority would vote it down, but we all know that Bills, however welcome they are, face occasional difficulties, and it is sometimes worth while trying to seek agreement.
In effect, clause 5 gets the Department for Transport out of the way of orders on navigation powers and orders that may be made by ports and harbours. The number of ports and harbours is a matter of definition; one might say that there are some 80 major ones and another 300 or so minor ones. I speak for not just the Royal Yachting Association, of which, as I have declared, I am an insignificant member, but the fishing industry and other commercial interests, which may regard as unreasonable a possible proposal for an order to control their activities. If such interests put forward considerations that were heard but not acted on, and were treated in a way that they regard as unreasonable, is there sufficient protection for those interests? A port authority may say, “We have heard you, but we don’t agree and we’re not going to do it.” It may be right or wrong; it may be reasonable or unreasonable.
My point, which I have a mind to make on Report and Third Reading, was, I think, in the minds of those who put forward a similar Bill in the other place a year or so back, when it was agreed that clause 5 should come out completely. The RYA has made it plain that that is its preference. I want to take a minimalist position. I know that the British Ports Association, my hon. Friend the Member for South East Cornwall, and the Minister and his advisers had discussions recently, but I encourage the British Ports Association to have a meeting with the RYA and anyone else who would like to be present, including the Minister’s and my hon. Friend’s advisers, to see what form of words could be put into legislation that would not take away the clause’s purpose, but would ensure that it could only be used reasonably.
One way forward—it is not the only way—would be to have a back-up power, so that, in a significant case, if the port authority does not listen to genuine concerns, there is a way of referring the issue to an independent group, which could deem the issue sufficiently serious to be referred to the Department for Transport or some other authority. There ought to be better protection than just leaving the power with the port or harbour authorities, especially when some of them have made few such orders in the past, and will perhaps think that if they have the power, they can use it as though they were a party manager or Whip in the House of Commons or the House of Lords—someone who is used to making decisions. Better protection is what I will argue for.
I suspect that the British Ports Association, which I have not spoken to directly—I have tried to stay slightly back and to encourage the right things to happen—may have spoken to the RYA, but it may not have had the time or inclination to hold serious talks. I invite it to. There is much in this Bill which the British Ports Association will welcome. It would be quite a good idea if it could get what it welcomes this year, rather than in some future year. People might think that the association has waited a long time for most of the provisions in this Bill, most of which are uncontroversial, welcome and useful; some, for example, those in the following clause, are important.
I suspect that my hon. Friend the Member for South East Cornwall will learn about what kind of approach helps to get Bills through Parliament, and I wish her well with that. I know that my hon. Friend the Minister is the kind of person who would like to find a solution. I doubt that he would be advised by his officials, to whom I pay tribute, that they need to go this far in order to find a formula that the RYA can live with reasonably cheerfully; they may not give the RYA everything that it wants, but they can get close. I encourage my hon. Friend the Minister to have another go before this clause returns to the Floor of the House. I have not put down an amendment because I think it is an issue to be decided on the Floor, and if, for some reason, an amendment cannot be considered on Report, the Bill’s Third Reading may become rather more extended. I am not going to challenge some of my colleagues, who find more to say on some Bills than I think is necessary, but I could always try if I had to.
I meant to start by saying that, as well as being a member of the RYA, I am the honorary president of the British International Freight Association. That is a matter for the record, as it is not relevant to this particular provision. I am reminded that it is 10 years since HMS Nottingham ran aground on the well-charted Wolf rock, off Queensland, and 100 years since my great aunt, aged 11, wrote a letter on the RMS Titanic, describing how it had collided with the Oceanic, because the movement of the Titanic had snapped the Oceanic’s mooring lines. Those incidents remind us that moving big vessels around can be difficult. When I used to sail my Mirror dinghy up through the mouth of Portsmouth harbour with a hunter-killer submarine coming in behind me, I could see the powers of the harbourmaster, with a naval pinnace coming out to tell me that I could more conveniently be on the other side of the harbour mouth.
I will not go into the discussions between the Department, my hon. Friend the Member for South East Cornwall and the RYA. They will know about those, as they were there; I was not. I will instead go through what the issues are, in what I hope is a reasonably clear way. Some of these remarks will overlap with my speech on Second Reading, but they are all on clause 5. As highlighted on Second Reading, the RYA has deep-seated concerns about clause 5, on harbour directions. Its position is that it would like to see the clause removed. If that does not happen, it would like to see the power, under the clause, to make general directions made subject to the RYA’s preferred adjudication procedure, with provision for the Secretary of State or for Welsh or Scottish Ministers, as the case may be, to produce model general directions and guidance as to their use.
Clause 5, as we know, will enable harbour authorities, if designated by the Secretary of State or Welsh or Scottish Ministers, to give general directions to ships, including recreational craft. The power as expressed will apply to ships within or entering or leaving harbours, in relation to movement, mooring, equipment and manning. A pre-consultation requirement is included, requiring the harbour authority to consult such representatives and users of the harbour as it thinks appropriate. Contravention of a general direction would be a criminal offence.
Powers of general direction have been obtained over the years by a number of individual harbour authorities, starting with the Port of London authority in 1968. They are gradually taking the place of byelaws, which, unlike general directions, have to be confirmed by the Secretary of State and are subject to clear checks and balances. I should say that it is the checks and balances that we are after; we are not saying it is important that the Secretary of State should have to approve every change of direction.
The Royal Yachting Association has become increasingly concerned in recent years at the potential for such powers of general direction to be exercised indiscriminately, or, to put it more gently, without reasonable cause—or not paying attention to reasonable objections—and in a manner that is unnecessary and harmful to the lawful exercise of recreational and other navigational rights. The reasons why the RYA considers that the powers of general direction in the form proposed in the Bill are generally unmerited are as follows. Making general directions involves the creation of new criminal offences, which many local harbour authorities are not equipped to do. Even democratically elected local authorities do not have such powers, and the Bill contains none of the supervisory safeguards usually imposed in relation to law-making bodies. The powers of general direction run counter to the Government’s localism policy to grant an unelected harbour authority law-making powers that are not subject to democratic checks and balances, and full transparency.
General directions could be made under the power over wide areas used by recreational craft in a disproportionate manner, without proper risk assessment or consideration of the full implications and the possible alternatives. They could be used to impose very significant and potentially burdensome restrictions on the navigation and use of recreational craft. We know that many harbour authorities have jurisdiction over substantial areas going out to sea, and not only partially enclosed harbour areas.
Prior consultation is an inadequate safeguard not least because, as experience shows across the public and private sector generally, inappropriate or flawed decisions often still follow. We basically want prior consultation, responses considered and those with merit adopted so that modifications can be made. We do not want only to go through a consultation process, it being said that the responses have been heard and the process stopped. Judicial review is not an adequate remedy against an objectionable direction whereas, under the clause, powers are expressed without significant limitations. There is unlikely ever to be procedural or substantive illegality to provide a cause for action. I hope that I shall not hear again about there being an opportunity for judicial review. It is just too big a weapon with too many small people considering it with small ports making directions that, to them, are just useful but, to others, are very challenging.
The RYA has expressed its worries for several years to representatives of the port industry and to the Government, including in response to the Government’s consultation on the draft Marine Navigation Bill in 2008. The RYA wrote to my hon. Friend the Under-Secretary on 12 October to reiterate its worries. It proposed that the Bill include reference either to an adjudication procedure that would enable interested people to require in limited circumstances the harbour authority to obtain an independent report on a disputed direction before deciding to proceed, or an arbitration procedure, which would enable interested people to appeal against a disputed direction to an arbitrator. What those limited circumstances might be is a matter for debate, but agreement can be reached on that relatively easily.
I referred to a meeting that has now taken place between the RYA, the Minister and my hon. Friend the Member for South East Cornwall. It has not led to those backing the Bill to drop the provision or yet to agree to amend it so that, in some way at least, it meets the RYA’s worries. I repeat my invitation that, after today’s proceedings, that might be tried again, please. It has been suggested to the RYA that it is sufficient to establish a non-statutory industry and user working party to provide advice on the use of the power and to act as a discussion forum between interested parties. Such an arrangement no doubt has the advantage from the Department’s point of view that it avoids the Department taking responsibility for the matter or having to give resources to it.
While I understand that the RYA would be happy to participate, such a working group offers no real safeguards against the misuse of the proposed new powers. It would also ignore various facts, such as that the Department will remain responsible overall for navigational safety and continue to issue policy directions, for example, updates to the port marine safety code that ports and harbours must take into account. The making of directions is the exercise of a subordinate legislative power and involves the creation of new criminal offences. The Committee will recognise that I have made that point twice before.
Many individual ports and harbours, with or without consultative or working party arrangements for users, do not have the skills or resources to exercise the power. There will remain no checks and balances to govern the exercise of the power by individual port and harbour authorities, and no practical recourse or remedy for the review of inappropriate and unjustified directions. I anticipate that most directions will be justified, will be accepted and that people will be perfectly happy. It is a question of when matters go beyond that.
Harbour authorities, as represented by the British Ports Association, are keen to be given an unlimited power—to put it more gently, an untrammelled power—to issue harbour directions in place of the burdensome business of making byelaws and seeking their confirmation by the Secretary of State. I suspect that both the Department and Parliament would be pleased to reach that situation if it can be agreed. That is understandable on the part of the BPA. The question should be posed as to whether that is really sensible, especially when such an untrammelled power has not been given to others—democratically elected local authorities in place of their byelaw-making powers—and when the exercise of important freedoms, including the right to navigate, are at stake. It looks to the RYA, and perhaps to some others—this is a strong way of putting it—as little more than an abandonment of responsibility by the Department and one where there remains good reason for Government to continue to exercise supervisory jurisdiction and to hold the balance between competing and sometimes conflicting interests.
Although there is an innate attraction in avoiding amendments to a private Member’s Bill, doing so when the proposed powers are completely absent of appropriate checks and balances neither makes good sense nor accords with wider policy considerations. I have not heard a good reason yet for not adopting the RYA’s proposed checks and balances, which have been crafted to ensure that, as with the Bill’s proposals, harbour authorities do retain the ultimate decision-making role in relation to directions.
I understand the RYA has been told that its proposals are too long and complex to be adopted now. Clause 5 as drafted is too short and unconstrained to justify being enacted. Getting the balance right is what is required. It is probably best if the Department and my hon. Friend the Member for South East Cornwall reach an agreement on how to amend the Bill. Not only recreational yachtsmen will be affected by the making of harbour directions; commercial shipping, ferry companies, the fishing industry and all harbour users will be affected.
You have been very kind, Sir Roger. I have cleared my throat, so I will not go through the rest of my speech; I might keep that for another occasion. I think I have made my point. More progress can and should be made and I invite my hon. Friend and the Minister to make it not necessarily today but in the days to come.
Andrew Miller (Labour, Ellesmere Port and Neston)
I fully endorse the remarks of the hon. Member for Worthing West. When he was taking his Mirror dinghy out of Portsmouth, he might have bumped into me in my canoe surfing the wakes of liners, which is not a sport I would recommend to anyone in terms of safety. Such was our youth.
The measure gives cause for concern. I refer to it in connection with clause 2. We are assuming that everyone is as reasonable as the people in this room and that people will act in a sensible manner. In his opening remarks prior to the discussion on clause 5, the hon. Gentleman referred to the need to consolidate parts of the legislation. Shipping legislation is enormously complicated. I am sure the Minister could argue that subsection (6) of proposed new section 40A states:
“A harbour authority may not give a harbour direction which conflicts with an enactment.”
Although that is true, the proof of that gets into all sort of complicated legal arguments and we immediately create a payday for lawyers in an unnecessary manner. Both in terms of issues raised by the RYA and to reinforce the issues that we discussed around clause 2, it is necessary to phrase clause 5 in a slightly different way.
Ideally, I would argue in favour of a consolidation Act, but clearly we are not going to have that and address this in a reasonable period of time. In the absence of that, the RYA solution would be helpful. It would help the Committee if the Minister expressed in his clear and succinct manner the case for maintaining clause 5 at it is. I will reserve my position on the clause in respect of Third Reading along with the hon. Member for Worthing West.
Stephen Hammond (Conservative, Wimbledon)
I confess that I was slightly surprised as I listened to the speech by my hon. Friend the Member for Worthing West. Some of the points he made today were similar to those that he made on Second Reading. I was slightly surprised both by his speech today and the guidance issued by the RYA, given the long meeting that we had yesterday. I will put on the record my slight surprise. I am expressing surprise at his opening contention that the RYA would like to see the clause removed from the Bill, because the RYA and the legal director said to us yesterday that they understood the intent of the Bill. They said that they were happy that the Bill puts in place pre-consultation and a wide-ranging duty on harbour authorities and ports to consult those they think appropriate. They were happy that the Department will issue guidance on what should be consulted on. They were happy with the list of people that should be consulted and recognised that it was extensive. As my hon. Friend the Member for Worthing West has said, they were happy that in almost all cases, these measures were fair and reasonable and done in the interests of safety.
We got down to the specific point of what would happen if one particular group disagreed with the order being made. I tried to reassure the RYA about a number of things. First, there will be an industry group—a group of interested parties—where the first stage of negotiation could be taken, if there was dispute. Secondly, there is still the prospect of referral to the Secretary of State of the ability to make an order.
I have to confess that I did not make progress with the RYA. It did not think that the provision was a suitable way forward. I place it on the record, however, that we made substantial progress through the RYA meeting us. I am surprised to hear the question of the clause being dropped even being raised.
We are talking about a small part of the clause. There is only one case in principle that has so far arisen that could be used if the order was challenged. Dare I say it, the Medway Ports Authority Act 1973, which put a similar situation in place to that proposed in the Bill, has been in place for 40 years and there has not been one challenge under it. We are, dare I say it, talking about a very small issue with the clause, as far as I understand it. My hon. Friend the Member for Worthing West may wish to reopen the issues about the clause again on Third Reading. I have no doubt that his eloquence will allow us to discuss it all morning—as he mentioned.
My hon. Friend made a number of points. First, he raised some general issues on the creation of a criminal offence. If someone abuses an order such that can be put in place now, they would technically commit a criminal offence. The Bill does not create a new criminal offence. We discussed whether the abuse of an order could become a civil offence, but for all sorts of good legal reasons both sides agreed that that would not be so.
Secondly, my hon. Friend made a point about the wide area and the disproportionate manner, and the power to insist on prior consultation with as many bodies as appropriate—that is a wide wording—reduces those concerns. Although I hear his comment about a judicial review, that is not the issue that the RYA is most concerned about. Judicial review is concerned only with process, not with the making of an order or whether the order conflicts with the intention. The RYA understands why there is the option of judicial review, but that option is for a port or harbour authority that fails to comply with the process, not for one that disagrees with the decision that is come to. It is a relevant protection still to have in place, notwithstanding that it is an expensive way forward. I am slightly perplexed because we offered yesterday to consider any wording that the RYA put forward today in terms of an amendment.
Peter Bottomley (Conservative, Worthing West)
I had hoped to listen to my hon. Friend without interrupting him, in the same way that he courteously listened to me and the other members of the Committee. If the discussions had taken place yesterday, the opportunity to table a manuscript amendment by this morning would have been rather limited. So he will allow me not to take that—
Stephen Hammond (Conservative, Wimbledon)
Yes, although I would now have been able to stand up to say that this whole discussion had been ruled unnecessary because the hon. Gentlemen had come forward with that idea, I was willing to accept it and we would have ensured that it was introduced in an appropriate way. Although I obviously bow to my hon. Friend’s experience, if a suitable proposal—or even any proposal—came back, the Government and my hon. Friend the Member for South East Cornwall would certainly have considered it. That has not happened.
My hon. Friend the Member for Worthing West made remarks about untrammelled powers and burdensome responsibilities being lifted from the Department; they are burdens of cost on the whole process. One of the things that this excellent clause tries to do is to produce agreement and a spirit of co-operation. He will also recognise that that spirit of co-operation and agreement would be much better than clunky prescription.
The Bill is putting in place a non-statutory code of practice; it is putting in place some of the agreed processes for consultation; and it is also putting in place what could be an agreed process for negotiation, were there to be any dispute. My concern about the arbitration route is that it would be another statutory burden at a time when this Bill is trying to take away statutory burdens. None the less, and notwithstanding the substantial commitment that I made yesterday about the Department’s tea, coffee, biscuits etc., I will make a further substantial investment in our biscuits and coffee, and I will invite parties to another meeting to try to ensure that before we come to Third Reading we can reach some agreement on this issue. I wish to place on the record my hope that when we come to that meeting there will be a spirit of both sides working together to find a solution about this relatively small part of the clause that was raised with us yesterday.
Jim Fitzpatrick (Labour, Poplar and Limehouse)
I just want to make a very brief apology to the two hon. Gentlemen opposite, having allowed my cynicism to show earlier that perhaps the comments by the hon. Member for Worthing West in support of the Government, and the stance of the hon. Member for South East Cornwall opposing our amendments, were some kind of trade-off. They have reassured me that they are still in disagreement over clause 5. I am very happy to see that discussion continue, and I look forward to hearing more of it in the future.
Sheryll Murray (Conservative, South East Cornwall)
I am not going to repeat what the Minister said, but I want to point out to my hon. Friend the Member for Worthing West just a couple of things from my own experience in the past.
First, I do not know if Members have heard about the Sea Safety Group. That group was formulated a number of years ago to prevent collisions between the fishing industry and merchant vessels in the channel. It was formulated to include all users of the sea: yachtsmen, fishermen, merchant seamen, Royal Navy officers and the Royal National Lifeboat Institution. It is the best example of how we can get an agreement without the need for top-down, heavy legislation, and it works extremely well. It is in that spirit that I will be absolutely delighted to participate in a meeting with the RYA once again, because I hope that we will hear from it some very positive ideas about how we can make clause 5 work.
Secondly, my hon. Friend mentioned that it is not just leisure users but the fishing industries, ferry companies and what-have-you that are affected. Again, I just want to point out from personal experience that it is difficult if someone is sailing a vessel and there is a harbourmaster that wants to move another vessel from one side of the harbour to another. They are very vulnerable and clause 5 allows a harbourmaster to say to the person that is moving a heavy vessel from one mooring to another, “You do it in this way,” so that we protect the leisure users from any vulnerability or accidents.
Perhaps people have looked at clause 5 as a measure to inconvenience people who sail and those who use motor vessels, but we have to look also at the fact that if competent harbourmasters applied to the Secretary of State for general rules of direction and he agreed, it would be for the protection of our sailors and leisure users as well.
Finally, I say that this measure is what we need because I have been on board a fishing vessel that was coming into the harbour and I heard other fishermen shouting at leisure craft in the harbour because they were going across their bows. There is a lot of congestion and we really need clause 5 to protect those vital sailors who support coastal communities, such as mine, as well as the economy. I hope that we can come to a conclusion and will not have to talk too much on Report.
Peter Bottomley (Conservative, Worthing West)
I wonder, Sir Roger, whether you and the Committee will allow me to respond briefly to what my hon. Friend and the Minister said, in their pleasant ways? The number of orders has been slightly restricted by the present process. We can anticipate more orders—I am not saying a great flood is coming, but more. I suspect that, as the Minister said, people may say, “Because Medway had something 30 years ago, what’s the big worry?” I guess that people not as competent or as big as in Medway might have bright ideas of their own, and they may say, “Let’s have a direction that affects leisure or recreational craft. If it saves only one life, it is worth while.” Incidentally, I thank the Minister for coming to the meeting that I was involved in yesterday.
The issue falls into the proposed new section 40B(2), which says:
“Before giving harbour directions a harbour authority must consult such representatives of users of the harbour as the authority think appropriate.”
Beyond that, with the exception of proposed new section 40A(6), which says:
“A harbour authority may not give a harbour direction which conflicts with an enactment”,
there is no other limitation. In the two or three times that I have read through clause 5, I have not found anything that restricts what the harbour authority does, having consulted such representatives as it thinks fit. That is the problem. It is a solvable problem; I hope that it is solved, and that next time we meet our proceedings can be shorter.
Roger Gale (Conservative, North Thanet)
Without wishing either to editorialise or to compromise the impartiality of the chair, I feel obliged to point out that, had an amendment been tabled this morning, it would have been a starred amendment or manuscript amendment and might well, therefore, not have been selected. I hope that a further investment of tea, coffee and ministerial biscuits may lead to a satisfactory compromise before—
Andrew Miller (Labour, Ellesmere Port and Neston)
It is the ministerial spirits that I am interested in.
Roger Gale (Conservative, North Thanet)
I think the hon. Gentleman will find that rum is now off the menu.
Roger Gale (Conservative, North Thanet)
Because there are no tabled amendments, I will now call the clauses and, unless anyone intervenes, I shall put the whole lot together. If someone wishes to stop me, we will have a clause stand part debate.
Peter Bottomley (Conservative, Worthing West)
May I congratulate the Minister and my hon. Friend the Member for South East Cornwall, who promoted the Bill, on the way in which they have brought it this far? I will be happy, if it is possible, for this Bill to be taken all the way through. The Bill is a result of a lot of work by a lot of people. It tidies up a number of important points, whether closures, marking wrecks or others. In general, it will be greatly welcomed.