Marine Navigation (No. 2) Bill

Debate between Stephen Hammond and Richard Ottaway

Friday 30th November 2012 Commons Chamber

[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.

[Stephen Hammond]

I shall move slowly in the direction of the Dispatch Box.

It was somewhat frustrating that in some of the discussions we thought that we had moved to certain places, and then found two hours later that we had not. Let me gently say that it would be helpful if both sides were prepared to concede some points, so that we could proceed towards the establishment of a non-statutory code of conduct.

[Richard Ottaway]

I hope that that is right, but, as we have only 45 minutes left, it would be of great assistance if the Minister told us now that there would be some movement in that regard.

[Stephen Hammond]

There has been.

--- Later in debate ---

[Richard Ottaway]

I was not present during the discussions, but those who were have told me that there has not been movement. If the Minister is able to confirm that there has been, and that he can agree to the code of conduct that is being proposed, his throat can then dry up and we can all move on, quite satisfactorily.

It has been suggested to the RYA that a non-statutory process should be established to ensure that the powers to make harbour directions under clause 5 are used appropriately. That might include a code of conduct setting out how harbour authorities would use their powers to make harbour directions and providing for levels of consultation, a dispute resolution process if objections cannot be resolved, and an arbitration process if the code of conduct has not been adhered to. Model harbour directions would also be developed.

While, from the Department’s point of view, such a non-statutory process no doubt has the advantage of enabling the Department to avoid taking any responsibility for the matter or expending any resources, it would offer no real safeguards against the misuse of the proposed new powers unless all harbour authorities were required by the Secretary of State to commit themselves to the code of conduct as a prerequisite to being designated under clause 5. Given that elected local authorities are subject to such a requirement, why should it not apply to unelected harbour authorities?

[Stephen Hammond]

I said on Second Reading and in Committee that the Department would issue guidelines on the competence of harbour authorities to make directions, and I have already given my hon. Friend the Member for Worthing West (Sir Peter Bottomley) the reassurance that my hon. Friend has just sought.

[Richard Ottaway]

I am grateful to the Minister, but he has yet to explain why local authorities, Transport for London and the Civil Aviation Authority should be treated differently from unelected harbour authorities.

I had many more points to make, but it might be sensible for me to allow the Minister to set out in some depth exactly what his reaction will be. As my hon. Friend the Member for Worthing West pointed out, the Bill still has to pass through the other place. There is a substantial shipping lobby there, which will take a close interest in the Bill. If the Minister can give us some assurances, I imagine that the Bill will be given a speedy passage through both Houses.