57th Report, 2012 (Session 4): Legislative Consent Memorandum on Marine Navigation (No.2) Bill

SP Paper 232 (Web Only)

SL/S4/12/R57

57th Report, 2012 (Session 4)

Legislative Consent Memorandum on Marine Navigation (No.2) Bill

Remit and membership

Remit:

The remit of the Subordinate Legislation Committee is to consider and report on—

(a)

(i) subordinate legislation laid before the Parliament;

(ii) any Scottish Statutory Instrument not laid before the Parliament but classed as general according to its subject matter;

and, in particular, to determine whether the attention of Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation;

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Nigel Don (Convener)
Jim Eadie
Mike MacKenzie
Hanzala Malik
John Pentland
John Scott
Stewart Stevenson (Deputy Convener)

Committee Clerking Team:

Clerk to the Committee
Euan Donald

Assistant Clerk
Elizabeth White

Support Manager
Daren Pratt

Legislative Consent Memorandum on Marine Navigation (No.2) Bill

The Committee reports to the Parliament as follows—

1. At its meetings on 27 November and 4 December 2012, the Committee considered the provisions in the Marine Navigation (No.2) Bill 1(“the Bill”) that confer powers to make subordinate legislation on the Scottish Ministers.

2. This Legislative Consent Memorandum is being considered by the Committee under Rule 9B3.6. The Committee is required to consider, and may report to the lead committee on, any provision in a Bill which is subject to a legislative consent memorandum which confers power on the Scottish Ministers to make subordinate legislation.

3. The Bill was introduced in the House of Commons on 20 June 2012. It is a Private Members’ Bill in the UK Parliament, sponsored by Sheryll Murray MP.

4. The draft motion, which will be lodged by the Minister for Transport and Veterans, is:

“That the Parliament agrees that the relevant provisions of the Marine Navigation (No. 2) Bill, introduced in the House of Commons on 20 June 2012, relating to the Harbours Act 1964 and the Pilotage Act 1987, so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament.”

5. Scottish Government officials provided oral evidence to the Committee at its meeting on 4 December 2012.

Powers to make subordinate legislation

Clause 1

6. Clause 1 of the Bill amends the Pilotage Act 1987 to give Scottish Ministers the power to specify that a harbour authority is not a competent harbour authority for the purposes of the 1987 Act.

7. The explanatory notes to the Bill state as follows:

“Many harbours require ships traversing their waters to use a maritime pilot with appropriate experience, generating additional costs for shipping companies.”

8. In oral evidence the Committee sought an explanation as to why the Scottish Government believe this power is necessary. Val Ferguson, Policy Executive, Ports and Harbours Branch, Transport Scotland, explained—

“At the moment, orders providing pilotage powers to authorities can be amended or revoked. However, pilotage authorities have been around for a number of years and were not all created under the existing Pilotage Act 1987, and there is no provision to remove duties and powers relating to pilotage that are no longer required. The inclusion of the powers is simply a tidying-up measure.”2

9. At the same time, Val Ferguson suggested that it was unlikely that such a power would be used and that where it was, it would be in response to a pilotage authority seeking the removal of pilotage functions in relation to a particular harbour.

10. The Committee also sought an explanation as to why it had been determined that the laid-only procedure was appropriate in relation to orders under this clause. The Committee was advised that it was consistent with the approach taken under the Pilotage Act 1987.

11. Informed by these responses, the Committee reports that it is content with the powers conferred on the Scottish Ministers to make regulations, set out in clause 1 of the Bill, and that the regulations are to be laid only.

Clause 5

12. Clause 5 of the Bill inserts sections 40A to 40D in to the Harbours Act 1964. Section 40A confers a power on the Scottish Ministers to designate harbour authorities which may give general harbour directions to ships within, entering or leaving the harbour.

13. Section 40B sets out how harbour directions are then made by harbour authorities designated under section 40A. Section 40C makes it an offence for a master of a ship to fail to comply with a harbour direction without reasonable excuse.

14. The power to designate harbour authorities for this purpose includes the power to amend or repeal any statutory provision “of local application” which the Scottish Ministers think is inconsistent with the power to give harbour directions or unnecessary as a result of the power.

15. In England and Wales the exercise of the power is subject to the negative procedure. In Scotland no procedure is specified and by virtue of section 30(4) of the Interpretation and Legislative Reform (Scotland) Act 2010 orders will not be required to be laid before the Parliament.

16. The Committee was advised that although this approach was different from that in England and Wales, it is consistent with the approach taken in the Harbours Act 1964. Furthermore, officials suggested that the present arrangements under the Harbours Act have worked successfully in Scotland.

17. The Committee also queried the use of the expression “of local application” in identifying the class of enactments which can be modified or repealed. While recognising that Scottish statutory instruments were no longer classified by reference to whether instruments are local in their application Stuart Foubister, Divisional Solicitor ECT Division, Directorate for Legal Services in the Scottish Government, explained the intended effect of the expression—

“The words mean what they say. They relate to a statutory provision that applies to a particular area, rather than one that is applicable throughout the whole of Scotland. The prime candidate would be a harbour order, which would have effective operation only within the harbour area.”3

18. On the basis of the responses received, the Committee reports that it is content with the powers conferred on the Scottish Ministers to make regulations, set out in clause 5 of the Bill, and that the orders will neither be laid nor subject to any procedure.

Clause 6

19. Clause 6 of the Bill inserts sections 17A to 17F in to the Harbours Act 1964. The objective of these provisions is to introduce a process for the closure of harbours by ministerial order. Such orders are not subject to parliamentary procedure and are not required to be laid before the Parliament.

20. The Committee observed that under the 1964 Act the procedure for orders which create harbours differs depending on whether or not the harbour is a “national development” under the National Planning Framework, or is otherwise specified by Ministers.

21. As the Parliament has specifically chosen to apply the affirmative procedure in relation to the creation of such a harbour the Committee queried why the closure of such a harbour should not be subject to any parliamentary procedure or that such an order is not required to be laid before the Parliament. Chris Wilcock, Branch Head, Ports and Harbours Branch, Transport Scotland, explained the approach adopted in relation to these closure orders—

“Harbours of national importance are usually harbours that are designated as national planning framework 2 projects, such as the Stena project. Given the scale and importance of such harbours, and the infrastructure that is associated with them, it was felt that their creation needed full parliamentary scrutiny and process.

Any case for closure would be the opposite of that in that, by definition, it would have to be accompanied by an argument that the harbour was no longer of use or importance. In other words, it would be at the opposite end of the scale. I suggest that it is unlikely that we will see many cases along those lines. It is particularly unlikely that any project that has been designated as being of national importance will come forward for closure at any point in the near or foreseeable future.”4

22. Not all Members were persuaded by the responses provided as regards to why no procedure is to be applied to orders providing for the closure of harbours of national significance.

23. Although Members recognised that the closure of such a harbour would not necessarily result in a harbour ceasing to operate in any form, and that a harbour can operate without a formal harbour authority, some Members expressed concern that this could be the effect of a harbour closure order and that there could be a detrimental impact on the local community. With that in mind, and given the policy implications of such decisions some Members expressed trepidation about allowing harbour closure orders to be made without any parliamentary scrutiny. It is suggested that the lead Committee may wish to explore this issue with the Minister.

24. That said, the Committee reports that, for its interests, it is content with the powers conferred on the Scottish Ministers to make orders, set out in clause 6 of the Bill. And, furthermore, that it is content that orders are not subject to parliamentary procedure and are not required to be laid before the Parliament

Clause 13

25. Clause 13 of the Bill gives the Scottish Ministers the power to commence sections 1 to 6 in relation to Scotland. In doing so they may make provision generally, or for specified purposes, which may include “incidental or transitional provisions (including savings)”. It is normal for commencement orders to be subject only to the requirement that they are laid before the Parliament. It is also common for Ministers to seek to be able to exercise powers to make transitional, transitory and savings provision in connection with commencement. Since commencement orders are not usually subject to parliamentary procedure the Committee consider the grant of ancillary powers in this context carefully. The Committee noted that in this case the ancillary powers sought contain the power to make incidental provision.

26. Incidental provision allows for provision to be made which is additional to the Act but connected to the Act which is required in order to make the provisions of the Act operate as intended. The Committee would normally expect such provision to be subject to parliamentary procedure.

27. The Committee asked Scottish Government officials why such an approach had been adopted. Stuart Foubister conceded that it was not normal for ancillary powers to contain the power to make incidental provision—

“I think that the drafting is not necessarily in line with standard practice in the Scottish Parliament. We would normally attach to commencement order powers the power to make a transitional or transitory provision, including savings. This is a Westminster bill, of course, and what is here includes the power to make incidental provision. I do not imagine that we would make use of that, but we did not consider it essential to go to the extent of disapplying it for Scotland, which we would have had to do if it was not to remain in the bill.”5

28. Stuart Foubister further advised the Committee that the Scottish Government could have asked for the power to make incidental provision that is in the commencement provisions not to be extended to Scotland, but it was considered that was unnecessary as it was of little consequence.

29. The Committee considers that it is appropriate for the Scottish Ministers to be given the power to commence sections 1 to 6 in relation to Scotland. The Committee contends, however, that it is unusual for ancillary powers to contain the power to make incidental provision.

30. The Committee notes the Scottish Government’s intimation that it would be unlikely to make use of the power to make incidental provision. The Committee is not entirely reassured, however, by this response. As previously stated, the Committee notes that it is not normal for commencement powers to contain the power to make incidental provision and is unsure as to why the Scottish Government did not take the opportunity afforded to it to disapply this power to Scotland.

31. The Committee invites the lead committee to explore this matter further with the Scottish Government in order to better understand why the power to make incidental provision has been retained if it could have been disapplied.


Footnotes:

1 The Marine Navigation (No.2) Bill can be found here: http://services.parliament.uk/bills/2012-13/marinenavigationno2.html

2 Scottish Parliament Subordinate Legislation Committee, Official Report, 4 December 2012, Col 640.

3 Scottish Parliament Subordinate Legislation Committee, Official Report, 4 December 2012, Col 643.

4 Scottish Parliament Subordinate Legislation Committee, Official Report, 4 December 2012, Col 644.

5 Scottish Parliament Subordinate Legislation Committee, Official Report, 4 December 2012, Col 648.

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