Marine Navigation (No. 2) Bill

Peter Bottomley Excerpts

Friday 30th November 2012 Commons Chamber

[Sir Peter Bottomley (Worthing West) (Con)]

I beg to move amendment 8, page 3, line 27, leave out clause 5.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

With this it will be convenient to discuss the following:

Amendment 9, page 3, line 34, in clause 5, at end insert—

‘for the purpose of promoting safety of navigation’.

Amendment 11, page 4, line 19, 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.’.

Amendment 7, page 4, line 27, at end insert—

‘(3A) Section 236(3) to (8) and section 238 of the Local Government Act 1972 apply to all harbour directions made by a designated harbour authority under section 40A and those provisions so applied have effect subject to the modification that for references to byelaws there are substituted references to harbour directions and for references to a local authority there are substituted references to a designated harbour authority.

(3B) The confirming authority for the purposes of section 236 in its application to harbour directions made under section 40A shall be the Secretary of State.’.

Government amendment 17, page 9, line 12, at end insert—

‘() the apprehension of offenders within the port constable’s police area in respect of offences committed outside that area and the transport of them to police stations outside that area;’.

Government amendment 18, page 11, line 8, leave out ‘subsection’ and insert ‘subsections (1A) and’.

Government amendment 19, page 11, line 8, at end insert—

‘(1A) Sections 5 and 6 come into force in relation to fishery harbours in Wales on such day or days as the Welsh Ministers may by order made by statutory instrument appoint.’.

[Sir Peter Bottomley]

I congratulate my hon. Friend the Member for South East Cornwall (Sheryll Murray) on promoting the Bill and recognise that there is growing interest in it. The Government have managed to accommodate the substantial points made on pilotage. I congratulate the shadow Minister, to whom the Bill is familiar, and my hon. Friend the Minister on that achievement.

I have a number of proposals, one of which is that the simplest thing to do with clause 5 is remove it, which amendment 8 would do. I ought to explain to the House that I spoke briefly in Committee—I cleared my throat—for 15 minutes. We now have 75 minutes for the Bill to make progress. Were we to have, say, two Divisions, we would have about 45 minutes. Hon. Members need to recognise that there are time limitations.

Much in the Bill is of advantage, but clause 5, which amends the Harbours Act 1964, provides that each national authority can designate harbour authorities, which means we can anticipate a larger number of harbour authorities, which can give general harbour directions to ships within or entering or leaving their harbours. That currently requires a byelaw, which requires the approval of the Department. If a Minister is not prepared to approve the byelaw, it does not happen. I believe I am right that the Minister would be advised on whether the byelaw proposed is right and rational, and on whether the authority has been rational in terms of the results of the consultation—the requirement for a consultation will remain if a harbour is designated.

It has been said that, if the Government’s proposals go through, an interested group or person can object to the decision through judicial review, but that is too big a weapon for too many people. In any case, judicial review decides whether the way in which the harbour authority went about its decision was rational. If it goes about the decision unfairly, it can be stopped, but if it does it wrongly, it cannot. The decision would then be made. In the years that my wife and I were Ministers, we never had a judicial review application against us upheld. That means not that all our decisions were right, but that how we reached them was right. That illustrates the distinction.

Proposed new section 40A of the 1964 Act deals with the designation of harbour authorities. Proposed section 40B, which governs the procedure applicable to harbour direction, states that a harbour authority is required to consult users and publicise a harbour direction before and after it is given.

Proposed new section 40C, on enforcement, creates an offence. The Royal Yachting Association, of which I have been a member for some time, has raised issues with this measure. Those with longer memories will recall that, in 2008 and later, when a Bill of this nature was in the House of Lords, there was no equivalent of clause 5, because there were problems with such a proposal.

I should tell my hon. Friend the Member for South East Cornwall and the Minister that there will be significant interest in the measure in the House of Lords, to which one anticipates the Bill going after today. I predict that the Bill will be amended if the provisions are not satisfactory—I am not threatening, but anticipating. Private Member’s Bill procedures mean that a Bill amended in the House of Lords will not be at the top of the list of priorities when it returns to the Commons, so getting the Bill right between now and when the House of Lords considers it matters.

[Jim Fitzpatrick]

Just to reinforce the hon. Gentleman’s point, I do not anticipate that the question of pilotage is over and done with either. I am sure that noble Lords in the other place will want to go through exactly the same discussion that we have had in recent months, just in the way that he is describing for clause 5.

[Sir Peter Bottomley]

I could go on at great length, but I will spare the House. Trying to create good will while being very clear and determined is probably the most useful way forward. I will certainly listen with interest to what my hon. Friend the Member for South East Cornwall has to say, and, if I may say so, to my hon. Friend the Minister when he responds to the amendments.

It has been suggested that the process that was started—I would say started a bit late—between the port authorities, with the help of the Department and the yachting interests, could lead to a code of practice. Only one draft code of practice has been put forward, by the Royal Yachting Association. I understand that in the middle of December there is to be a meeting between the various bodies. It will be interesting to hear—now if the Minister can, but certainly by then—whether the draft code of practice and the methods put forward for consideration for agreement are likely to be agreed in substance or completely.

The next question is what the Minister will say about designating harbour authorities—I do not anticipate that he will be able to speak for the other national authorities other than those for England, but he could indicate whether others may do the same—and whether he will bear in mind the commitment to adhere to an agreed code of practice, and that that commitment, which will not be onerous, and no one is trying to suggest something that would cause more bureaucracy, will be a factor when considering designation. That is one of the crucial issues on which the Minister can address the House. [Interruption.] Is he addressing the House now?

[Stephen Hammond]

I tried, on Second Reading and in Committee, to be as helpful as possible as early as possible so that there was no cause for confusion. 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.

[Sir Peter Bottomley]

I am sure that what the Minister said will be helpful. The question of whether it is sufficiently helpful will be a second test, but I am grateful to my hon. Friend and I will take that into account.

Mr Deputy Speaker, the selection of amendments to other clauses in the same debate is, if I may say so, generous to the promoter of the Bill, because it allows for fewer debates than would otherwise happen. I do not make any criticism—I just note that.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

I am sure there is no criticism of the Chair.

[Sir Peter Bottomley]

I do not propose to speak to the amendments on the other clauses, as a way of bowing with respect to my hon. Friend the Member for South East Cornwall.

Amendment 9 would insert, on page 3, line 34, the words:

“for the purpose of promoting safety of navigation”.

That is an essential point. My hon. Friend the Minister says that that is not necessary, although when I was having a discussion with my hon. Friend the Member for South East Cornwall I saw references to lobster pots and fishing lines and wondered whether the navigation point had been slightly lost, but that was a letter to her rather than a letter from her, so perhaps we can pass on from that.

The alternative or additional way is to look at amendment 11, which, at the end of line 19, would insert the words:

“(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.”

My hon. Friend the Minister has made a comment on that, as far as he is able to, and we cannot expect him to speak for Welsh or Scottish Ministers, but I think they would be irrational if they did not have the same intention in mind.

Finally, amendment 7 would insert proposed new subsection (3A):

“Section 236(3) to (8) and section 238 of the Local Government Act 1972 apply to all harbour directions made by a designated harbour authority under section 40A and those provisions so applied have effect subject to the modification that for references to byelaws there are substituted references to harbour directions and for references to a local authority there are substituted references to a designated harbour authority.”

It would also insert proposed new subsection (3B):

“The confirming authority for the purposes of section 236 in its application to harbour directions made under section 40A shall be the Secretary of State.”

The point is this: clause 5 will potentially give, not just to existing designated harbour authorities, but to many, many others, the power of creating criminal offences.

[Sheryll Murray]

Will my hon. Friend name any specific prosecutions brought in relation to the 30% of harbour authorities that already have powers of general direction?

--- Later in debate ---

[Sir Peter Bottomley]

I shall think out loud, rather than direct my comments directly to my hon. Friend. If we have three times as many harbour authorities with 100% less experience taking advice from people who will not be the Secretary of State’s advisers, we can anticipate problems.

[Sheryll Murray]

rose—

[Sir Peter Bottomley]

The Bill has to clear in about 60 minutes, so let us pretend that this exchange has concluded there.

[Sheryll Murray]

Will my hon. Friend just accept that there has not been one prosecution to date?

[Sir Peter Bottomley]

I am prepared to accept anything that my hon. Friend says; I just wish she would do the same with me.

[Richard Ottaway (Croydon South) (Con)]

If, as my hon. Friend the Member for South East Cornwall (Sheryll Murray), who is promoting the Bill very successfully, has said, there have been no prosecutions, presumably she will have no trouble with the deletion of clause 5 altogether, as it clearly is not necessary.

[Sir Peter Bottomley]

Or perhaps just deleting new section 40C—the enforcement element—would suffice. Nevertheless, my hon. Friend cheerfully makes the point, and the deletion of clause 5 would have been accepted in another place on another time—but this is a different House and a different year.

I will conclude my remarks for now—although with the leave of the House, or even without it, I might make a comment towards the end of the debate—by saying that in essence the test is: will the genuine concerns, which were recognised in the past, be recognised this time?

I say to my hon. Friend the Minister that if the Bill passes today—there are many good, uncontroversial elements to it—that code of practice, with people signing up to and agreeing it, will make a significant difference. I will not put it more boldly than that, but I hope that the message has clearly got through.

--- Later in debate ---

[Richard Ottaway]

I have to say to my hon. Friend that I suspect that the vast majority of boat movements around the south coast of Britain on any given weekend are undertaken by boats that are not carrying a radio. The fact that she is unaware of that gives me huge cause for alarm.

[Sir Peter Bottomley]

I should like to give the House an anecdote. When our daughter, then aged 11, sailed an Optimist from Priory bay on the Isle of Wight to Chichester harbour and then over to Portsmouth harbour, there was hardly room on board to carry food for the day, let alone a radio. My hon. Friend is illustrating the potential for a naive, newly designated harbour authority to do something impractical, and we need to pay attention to that.

[Richard Ottaway]

I am grateful to my hon. Friend for confirming that point.

Another scenario could involve a stipulation that all ships, including sailing and motorised dinghies and other small craft used in navigation, must carry specified equipment such as anchors. I do not know whether my hon. Friend the Member for South East Cornwall believes that every boat carries an anchor, but I can assure her that the vast majority do not do so. It could be decreed, however, that they must do so in a tideway so that they could get out of the way and drop anchor. Another possibility could be a requirement that fairways must be avoided by recreational craft, irrespective of whether other shipping is present.

Further possibilities include unjustifiable prohibitions from navigating within a specified distance of environmental features, and prohibitions from anchoring for recreational purposes. Indeed, there is a major dispute at the moment between yachtsmen in the Solent and the National Trust over anchoring in Osborne bay on the Isle of Wight, close to the home of Queen Victoria. The National Trust appears to have exceeded its powers in demanding that yachtsmen should not anchor in the bay adjacent to Osborne house. That is yet another illustration of how unelected authorities can impose a regulation, without having the power to do so or, indeed, without any thought for competing interests. Even if a harbour authority exercises its discretion not to prosecute the skipper of a recreational craft for infringing a harbour direction, the mere existence of that direction may be sufficient to invalidate the vessel’s insurance policy under section 41 of the Marine Insurance Act 1906.

Such general powers of direction have been attained over the years by a number of individual harbour authorities, starting with the Port of London Authority in 1968 and have then gradually taken the place of byelaws, which, unlike harbour directions, have to be confirmed by the Secretary of State and are subject to clear checks and balances. That is why I hope I can persuade the Bill’s promoter to accept amendment 7.

The Royal Yachting Association has become increasingly concerned in recent years at the potential for such powers to give harbour directions to be exercised indiscriminately in a manner that is unnecessary and harmful to the lawful exercise of recreational and other navigational rights. There are instances—quite a number of them—of harbour authorities routinely disregarding the views of their statutory advisory committees. For example, the Saundersfoot harbour commissioners have ignored the views of their statutory advisers, while the Wells harbour commissioners have purported to issue harbour directions despite not having the lawful authority to do so. Those examples do not give me confidence that the power contained in clause 5 would be exercised rationally and with due regard for the interests of all harbour users.

I consider the powers to give harbour directions, in the form proposed in the Bill, to be generally unmerited for a variety of reasons. The making of harbour 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 for law-making bodies. I say to the Minister in all sincerity that granting an unelected harbour authority law-making powers that are not subject to democratic checks and balances and full transparency runs counter to the Government’s own localism policy.

Harbour 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 possible alternatives. They could be used to impose very significant and potentially burdensome restrictions on the navigation and use of recreational craft. It is worth noting, as I described earlier in relation to the Southampton harbour authority, that many harbour authorities have jurisdiction over substantial areas going out to sea, and not just over partially enclosed harbour areas.

Prior consultation is an inadequate safeguard, not least because—notwithstanding that prior consultation—inappropriate or flawed decisions often still follow, as experience across the public and private sector generally shows. Furthermore, as my hon. Friend the Member for Worthing West (Sir Peter Bottomley) pointed out, judicial review is not an adequate remedy against an objectionable direction where, as here, powers are expressed without meaningful limitations. There is unlikely ever to be any procedural or substantive illegality to provide a course of action.

The RYA has expressed its concerns over a number of years to representatives of the port industry and to the Government, including in a response to a Government consultation on the draft Marine Navigation Bill of 2008, which contained an equivalent provision to that set out in clause 5. As my hon. Friend the Member for Worthing West said, a meeting between the RYA, the Member in charge of the Bill and the Minister has now taken place, but the RYA understands that those behind the Bill do not propose to drop the provision or amend it in any way to meet the RYA’s concerns. I have to say that that gives me cause for concern. [Interruption.]

I beg the Minister’s pardon. I thought at that point that his body language was moving towards the Dispatch Box.

--- Later in debate ---

Amendment 17 is a sensible amendment on the ability to drive down the cost to business and provide effective and efficient policing for ports. Amendments 18 and 19 effectively give powers to commence provisions in the Bill immediately following Royal Assent. The important point about amendments 18 and 19 is that they replicate the arrangements for Welsh Ministers. Again, that is sensible. I hope that my hon. Friend the Member for Worthing West will feel able to withdraw the amendment, and I look forward to the Bill’s making progress.

[Sir Peter Bottomley]

We are grateful to the promoter and the Minister for speaking clearly and relatively briefly, which was important. They could have said much more.

The Minister’s clarity and commitment are welcome. We trust that those who come to the meeting in December will reach agreement on the draft code of conduct. I am not saying that no word can be changed, but having a system of review and, if necessary, arbitration, will make a difference. I emphasise that that is not just for those who go to sea in small boats. My open canoe will not carry an anchor or much heavy equipment, besides me, unless I lose a bit of weight. It affects commercial shipping, the ferry companies, the fishing industry and other harbour users.

I also want to make it plain that no one will defend unsafe use of our waters. Collisions will happen, but not to learn the lessons from things that go wrong would be to fail to honour the memory of those who have suffered at sea.

I am grateful for the Minister’s comments and for the co-operation of those who advise him. On the basis of what he has said, I do not intend to press any of my amendments to a Division. I cannot say that I withdraw the amendment happily—I should have preferred a different way—but I will withdraw it.

The Minister’s amendments are worth supporting. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7

Port Constables: Extension of Jurisdiction in England and Wales

Amendment made: 17, page 9, line 12, at end insert—

‘() the apprehension of offenders within the port constable’s police area in respect of offences committed outside that area and the transport of them to police stations outside that area;’.—(Stephen Hammond.)

Clause 13

Commencement

Amendments made: 18, page 11, line 8, leave out ‘subsection’ and insert ‘subsections (1A) and’.

Amendment 19, page 11, line 8, at end insert—

‘(1A) Sections 5 and 6 come into force in relation to fishery harbours in Wales on such day or days as the Welsh Ministers may by order made by statutory instrument appoint.’.—(Stephen Hammond.)

Third Reading

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[Sir Peter Bottomley]

In anticipation of the hon. Member for Poplar and Limehouse (Jim Fitzpatrick), and after our hon. Friend the Member for South East Cornwall (Sheryll Murray), the Bill should probably be known as the Murray-Fitzpatrick Bill, and if it becomes an Act, they can share the credit.