Marine Navigation (No. 2) Bill

Lord Eames Excerpts

Friday 1st February 2013 Lords Chamber

[Lord Berkeley]

My Lords, in moving this amendment to the Motion, I would like to refer the House to its wording at the bottom of grouping sheet, which has somehow been printed at the bottom of all the amendments to the Bill. This is what I am speaking to now. It is unusual to put down an amendment to a Motion such as this, but we are in slightly unusual times—as we come up to the end of the Session—because we had two days’ notice of the Committee stage today. I had a useful meeting with the noble Baroness, Lady Wilcox, and her officials on Monday, where I said it was particularly important that we should see a reply to the letter which we had all been sent from Brian Simpson MEP, chairman of the Transport Committee in the European Parliament, to the Secretary of State for Transport. I said that I needed to see that reply before we discussed it in Committee. Once I knew what the date was, I put the amendment down on Wednesday night and, miraculously, the letter appeared on Thursday morning. That was good news, but it gave us just 24 hours to consider it. As it did not answer the main question that Mr Simpson had asked, I felt it was reasonable to ask for a week’s delay to the Committee, which is what my amendment is about.

As I said, the letter did not answer the concerns that Mr Simpson raised concerning the qualification of the pilots, an issue I have discussed before. I declare an interest as chairman of the UK Maritime Pilots Association, as well as being a harbour commissioner in the port of Fowey in Cornwall. It appears from Mr Simpson’s letter to the Secretary of State, from which I will read a short bit, that it causes him and his committee in the European Parliament some concern, since,

“this clause would appear to be in contravention of the STCW regulations of the IMO which have now been enacted into EU law”.

I will show in a minute that I think those regulations are already in EU law. It seems very odd that in this Bill we have a definition of the management, qualifications and experience required for a PEC holder when there is already one in EU law, which I believe has already been transposed into UK law. I am not very sure, because I have not had time to check it, but since it started about 10 years ago I think it has.

There is also a new directive coming out. Very quickly, this refers to the standards of training, certification and watchkeeping for seafarers from 1978, which were amended on 3 August 2010 by the IMO. They cover the management and operational levels and define those two levels, while giving:

“Mandatory minimum requirements for certification of officers in charge of a navigational watch on ships of 500 gross tonnage or more”,

and the minimum knowledge. I could read the whole thing out but I am sure that noble Lords will be pleased to hear that I will not. The important thing is that this defines, under Section A-II/2, the qualifications, competence and experience that masters and first mates have to have; those have to be applied to PEC holders.

It is pretty extraordinary that we were not told about this at a previous stage of this Bill because it directly relates to the debate that we had at Second Reading, and which they had at many stages in the House of Commons, about the qualifications for pilotage. For the record, the latest reference for this is in European directive 2012/35, which was completed on 21 November last year and will be presumably be brought in by regulation within two years. However, it is already there from the last version; this was the Manila version.

It is rather sad that the Minister, Stephen Hammond, did not in his reply mention that or answer any of the questions. He ended up by saying on page two of his letter that it is for,

“the Master or First Mate”,

to decide whether a PEC holder is qualified. That seems a quite extraordinary misinterpretation of the rules. It is not up to the master to change the requirements for training or seniority of a person to allow him to become a PEC holder, because the convention we are talking about lists three specific cases in which penalties are to be applied. If the master is found to have allowed unduly qualified persons not holding the right certification, et cetera, to perform a function, he is liable to be fined, as is the company. Of course, the person concerned may also get fined.

I will be very interested to hear the Minister’s response as there seems to be a serious conflict on the management, levels and skills required for a PEC holder between the legislation that came from the IMO, through Europe, to here and what is in the Bill. Can the Minister say whether this conflict was known about? I presume that it was and I am sorry that noble Lords were not told about it earlier. I suggest that the Minister and the noble Baroness, Lady Wilcox, bring forward a suitable amendment on Report, if it can be done, to link the existing regulations in the directive with the relevant parts of Clause 2 because there will otherwise be court actions coming out of people’s ears. When people find out that they have two regulations, and that one works for them and the other does not, they will all be going to court—and the ports, the pilots and everyone else will be the losers. It is very important that this matter is resolved and I beg to move.

[Lord Eames]

My Lords, in supporting the noble Lord, Lord Berkeley, I declare an interest as a member of the Royal Yachting Association. I cannot imagine a greater recipe for the lawyers of our knowledge than the conflict that the noble Lord, Lord Berkeley, has exposed before us today. The question of qualifications, training and their wedding with experience is a very sensitive area in the maritime world. We are not dealing simply with a technical matter. We are dealing with one of the most sensitive issues, which concerns people who are transported, people within the marine industry and people with an interest in our ports. The noble Lord, Lord Berkeley, has put his finger on one of the most sensitive issues—this is not a technical attempt to restrain the legislation or prove difficult about it—which has to be given the closest possible attention because there is a conflict in places between these two edicts. The conflict, in my experience, will lead to an open charter for many months and years to come unless we are satisfied as a House that every possible examination has taken place of the difficulties between these two approaches.

I am also convinced that where there is any question of conflict, not only does it raise issues of a purely legal nature, but it puts into contempt the sort of respect that people ought to have of the whole industry. For that reason, I too will be very interested in what the Minister says about what examination has been made of this conflict. Has it been given the attention that it deserves?

I also regret the way in which the legislation has been produced today, on a Friday, with so little notice to many of us who come a great distance to attend the House. At this early stage, I ask that very serious consideration be given to the Bill by the Minister, for whom I have the highest regard and who has always been most helpful when I have raised issues with him. However, in this instance I believe that the full import of what the noble Lord, Lord Berkeley, says has yet to be realised by the Government.

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Moved by

[Lord Eames]

1: Clause 5, page 4, line 21, at end insert—
“(8) An order designating a harbour authority shall not be made unless the Welsh Ministers, the Secretary of State or the Scottish Ministers, as the case may be, are satisfied that the harbour authority has in place appropriate procedures for resolving any disputes that may arise in relation to a proposed harbour direction.”

[Lord Eames]

My Lords, I have tabled this amendment to reflect the concerns that were expressed in the debate in another place on this aspect of the Bill. I again refer to my indication of interest as a member of the RYA.

As articulated in the debate in the other place, under Clause 5 of the Bill an unelected “designated harbour authority” would have greater power to create new criminal offences than a democratically elected local authority. Secondly, harbour authorities are generally not well placed or adequately resourced to create new criminal offences, and the proposed power to create new criminal offences contains none of the supervisory safeguards usually imposed in relation to lawmaking bodies in a democratic society.

It is a key principle of the Government’s localism policy that power should be placed back in the hands of individuals, communities and councils, and where such power is to be exercised by local institutions such institutions should be subject to the democratic checks and balances enabled by full transparency. However, many harbour authorities are not democratically accountable and are not subject to the Freedom of Information Act 2000. It would run counter to basic democratic principles and the Government’s own localism policy to grant an unelected designated harbour authority lawmaking powers that are not subject to democratic checks and balances and full transparency.

Shortly after tabling this amendment, I learnt of the discussions that took place no later than yesterday on the whole question of a code of conduct on harbour directions. That discussion was greatly welcomed by those who were telling me of their concerns, and the RYA would like it placed on the record that it felt this had moved the whole problem a long way. On behalf of the RYA, I pay a very warm tribute to the two Ministers involved for the way in which they facilitated that development in the past 48 hours.

However, in moving this amendment, I still have to ask certain questions regarding the code of conduct. First, are the Government prepared to implement this code of conduct and to make provision for it in ways that can be seen, heard and recognised across the marine industry as constituting acceptance by the Government? Those who attended the discussions to which I have referred welcomed the attendance of representatives of the department, but they seek an assurance on the record—and what I do with my amendment will be dependent on the answers that the Minister may be able to give me—that the Government are concerned to implement the code of conduct to which I have referred.

Secondly, if the code of conduct is in existence and there is general agreement on how it should be implemented, which is the reason for my first question to the Minister on whether that assurance can be given, what consequences does he envisage there being for any denial of that code of conduct, disobedience to it or even neglect of what it says? Does he see this as something that in the sense of what I referred to earlier might open the door to vast legal consequences? Will this code of conduct that was produced yesterday be sufficiently strong in the eyes of the Government to be implemented in terms that the courts can recognise and accept? In my experience of public life, I have often seen codes of conduct produced, not least on how we operate our work as this House, but it is one thing to have a code of conduct that people can feel warm about but quite another if that code of conduct is not given the wings of legal backing.

If I can be reassured on these points, I will be happy to withdraw this amendment, which is really a probing amendment to give the Minister the opportunity to assure the House, for the record, that the code of conduct points the way forward. I beg to move.

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[Earl Attlee]

My Lords, I am grateful to the noble and right reverend Lord, Lord Eames, for explaining the reason behind this amendment. I was terrified that he would not move his amendment because he observed that there was good news. When a similar amendment was debated in another place, the Shipping Minister was able to announce an initial agreement between port operators and users to develop a code of conduct on harbour directions. The intention was that this would provide a mechanism for resolving disputes. The Shipping Minister said:

“It is my expectation and the expectation of the Department for Transport that, when applying for a designation, a harbour authority would sign up to the code of practice”.—[Official Report, Commons, 30/11/2012; col. 542.]

I am happy to say that since then, there have been very productive meetings between the Royal Yachting Association, the British Ports Association and the UK Major Ports Group, chaired by the UK Chamber of Shipping, to develop that code. At their meeting yesterday, agreement was reached on the terms of that code and I have personally laid a copy in the Library of the House. I was not prepared to fall into the trap of some noble Lord going into the Library and not finding the code of practice.

As expected, the code describes the establishment of a National Directions Panel to maintain the code, produce a set of model harbour directions that designated harbours can adopt as appropriate for their local circumstances, and consider how the power of the harbour directions is being used. The code also sets out how harbour directions should be consulted on with harbour users and how disputes can be resolved. The focus of the code is on resolution locally by the port and its users, but with the possibility of referral to an independent arbiter if agreement cannot be reached.

I believe that this is an excellent example of the benefits of non-statutory arrangements complementing legislation. I think that this is the right approach as we seek to reduce bureaucratic and inflexible central regulation and open up local decision-making. We do not want to gold-plate legislation, especially as there are already a number of safeguards in the Bill aimed at ensuring that the power of harbour directions is used responsibly.

In answer to the noble and right reverend Lord, Lord Eames, I repeat the Shipping Minister’s assurance that the Government would expect any harbour authority applying for designation to have agreed to the code of conduct. I do not anticipate that the code of conduct would be ignored in future years; furthermore, the designation order would be kept under review and a harbour authority could be de-designated if that were warranted.

The noble Lord, Lord Berkeley, asked whether the harbour authority would have to be a fit and proper person. The noble Lord will know that Ministers always take into consideration whether a person is a fit and proper person. Having said that, I hope that the noble and right reverend Lord, Lord Eames, will feel able to withdraw his amendment.

[Lord Eames]

My Lords, I thank the Minister for his sympathetic response; I feel that we have the assurances that I sought on the record. I therefore beg leave to withdraw the amendment.

Amendment 1 withdrawn.