Marine Navigation (No. 2) Bill

Lord Berkeley gives notice of his intention to oppose the Question that Clause 2 stand part of the Bill.

Page 3, line 32, after “directions” insert “for the purpose of promoting safety of navigation”

Page 4, line 14, at end insert “or which impacts on the exercise of the public right of navigation”

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.”

Page 4, line 24, leave out from “must” to end of line 26 and insert “comply with the requirements of Schedule (Code of Conduct on Harbour Directions)

Page 4, line 26, at end insert—

“( ) All parties shall follow the Code of Conduct on Harbour Directions as set out in Schedule (Code of Conduct on Harbour Directions)

Page 4, line 29, 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.”

Page 4, line 39, at end insert—

“40BA Appeals against harbour directions

(1) Any representative organisation whose members may be affected by a harbour direction made pursuant to section 40A may appeal against the making of that harbour direction to a single arbitrator to be agreed between the harbour authority and the appealing organisation.

(2) An appeal under this section must be commenced by notice of appeal given by the appellant to the harbour authority within the period of 42 days beginning with the day on which notice of the harbour direction is published in accordance with section 40B(6).

(3) On an appeal under this section, an arbitrator may—

(a) dismiss the appeal,

(b) revoke the harbour direction,

(c) substitute for the harbour direction a differently worded harbour direction, or

(d) remit the case to the harbour authority to dispose of it in accordance with the direction of the arbitrator,

and may make such order as to costs as it thinks fit.”

Page 5, line 25, at end insert—

“(4) After Schedule 4 to the Harbours Act 1964 insert (Procedure for giving general directions) to this Act.”

Lord Berkeley gives notice of his intention to oppose the Question that Clause 5 stand part of the Bill.

Insert the following new Schedule—

“SCHEDULE New Schedule 4A to the Harbours Act 1964

In the Harbours Act 1964, after Schedule 4 insert—

“Schedule 4A Code of conduct on harbour directions Introduction

1 This Code arises out of the Marine Navigation Act 2013 (“the Act”) and sets out procedures in connection with the granting of the power to make Harbour Directions to individual harbour authorities and the way in which those Directions might be formulated and handled.

2 The Code also covers the setting up of a National Directions Panel (NDP) which will oversee the use of Harbour Directions.

3 The Code is only applicable to those Harbour Directions made under powers granted under the Act, although it is also hoped that it will be viewed as being of relevance to and capable of adoption by harbour authorities with existing powers to give general directions.

4 Before making an order designating a Harbour Authority as having Harbour Direction powers, the Harbour Authority will provide an assurance that it will abide by the Code to the Secretary of State (or Welsh or Scottish Ministers).

National Directions Panel (NDP)

5 (1) The NDP will, as a minimum, consist of representatives from the British Ports Association, the UK Major Ports Group, the UK Chamber of Shipping, the Royal Yachting Association and the relevant fisheries organisations.

(2) The NDP will keep its membership under continual review to ensure that it is fit for purpose and properly reflective of those likely to be affected by Harbour Directions.

(3) It is important that the NDP is of a manageable size.

(4) A chair of and the secretariat for the NDP will be drawn from the members.

(5) It will be expected to meet once a year, or more if the circumstances arise.

6 (1) The NDP will act as a focal point for issues arising from the granting and use of Harbour Direction powers.

(2) Although it will not have the power to intervene in harbour operations or in individual dispute resolution procedures, it will oversee and make recommendations on the conduct expected of harbour authorities using the powers.

(3) These recommendations will be highly persuasive, providing guidance both to harbour authorities and Port User Groups (PUGs).

7 (1) The NDP will be responsible for the preparation of Model Harbour Directions and any relevant accompanying guidance.

(2) These will be promulgated to all ports using powers under the Act and all those ports will be expected to factor them into their decision making.

(3) The NDP should keep under review what other guidance it might offer.

8 The NDP will keep the procedure for dispute resolution under review.

Port User Group (PUG)

9 (1) Any Harbour Authority using Harbour Direction powers under the Act should set up a PUG; this must include representatives of harbour users as extensively as possible, but in a way which keeps the PUG to a manageable size.

(2) In many cases, such a user group already exists, in which case, it would be appropriate for that group to take on the duties of a PUG bearing in mind its role as set out in this Code.

10 (1) A PUG should be able to—

(a) appoint its chairman and secretariat from amongst its members;

(b) adopt its own rules of procedure;

(c) agree its own agenda for meetings; and

(d) determine the frequency of its meetings.

(2) The Harbour Authority should provide a venue for meetings of the PUG and be represented at its meetings but the Harbour Authority should not be a member of the PUG.

11 Although the representatives on the PUG would have a remit from those they represent and a responsibility to protect their interests, members of the PUG also have a responsibility to understand and protect the overall interests of the harbour.

12 Any organisation that is a member of the NDP should be invited to be a member of each PUG.

13 (1) PUGs will have an opportunity to consider proposed Harbour Directions at least 14 days before the formal 28 day consultation period.

(2) PUGs will play a particularly important role in the event of unresolved objections.

(3) PUGs will have a responsibility to seek to achieve resolution at a local level whenever possible.

14 Issues arising out of an individual PUG which may be of national interest should be communicated to the NDP for the benefit of the NDP and other PUGs.

Dispute Resolution Procedure

15 (1) The procedure is—

(a) a proposed Harbour Direction (HD) published for public consultation and at least 28 days given for responses.

(b) if there is an objection, or objections, these are to be subject to discussion between the Harbour Authority and the objector, or objectors, to share views and explore whether, for example, the intended objective of the HD can be met in other ways.

(c) if an objection, or objections, are unresolved, there is a referral to the local PUG.

(d) the PUG to use its best endeavours to resolve an objection, or objections, on a local basis.

(2) If there is no resolution within a reasonable time, the PUG might consider the use of a “cooling off” period, its length to be decided by the PUG, during which time the Harbour Direction is implemented and then reviewed.

(3) If this is not an acceptable approach to the PUG or to an objector who is a national organisation representing harbour users, and no other means of reaching a resolution is identified, the objection will be resolved by referral to an independent person to be agreed between the Harbour Authority and the PUG or objector (as appropriate) or, failing agreement, appointed on application by the NDP.

(4) The independent person will invite the views of the parties and produce a report of his conclusions, which will be made available to all parties.

(5) This should be considered a last resort, and every effort should be made to find a local resolution.

(6) The Harbour Authority will, in the light of the PUG’s discussions and the views of the independent person, decide whether to exercise the power to give or amend the disputed Harbour Direction.

(7) Once it has so decided, the Harbour Authority must give notice in writing to the PUG and the objector of its decision and of the reasons for that decision.

(8) If the Harbour Authority decides to make a significant amendment to a Harbour Direction, it should be treated as being a new direction and consulted on accordingly.

(9) The process is then concluded.””

Insert the following new Schedule—

“SCHEDULE New Schedule 4B to the Harbours Act 1964

In the Harbours Act 1964, after Schedule 4 insert—

“Schedule 4B Procedure for giving general directions

1 Subject to paragraph 7, if a harbour authority proposes to give or amend a harbour direction, it must—

(a) give notice in writing of the proposal to any national representative organisation whose members may be affected by the proposed harbour direction and to such other bodies (if any) as the harbour authority thinks appropriate for the purposes of the application of this provision (the “designated consultees”);

(b) consult with the designated consultees upon the proposal, including allowing not less than six weeks from the date notice has been given by it to those consultees for each of them to make written representations to the harbour authority on the proposal;

(c) have regard to any representations made by the designated consultees during that consultation;

(d) give notice in writing to the designated consultees, following the consultation provided for under this subsection, as to whether it proposes to proceed with the proposal and, if so, specifying whether it is making any modifications to the proposal and its reasons for so doing; and

(e) if it proposes to proceed to give or amend the harbour direction and any of the designated consultees has made representations against the proposal, invite each such consultee who has made such representations, within 28 days from the date of the notice given to it under paragraph (d) or such longer period as may be specified in that notice, to confirm in writing if it maintains an objection to the proposal.

2 Subject to paragraph 3, where the harbour authority has complied with the requirements of paragraph 1 in relation to a proposal to give or amend a harbour direction, it may proceed to give or amend the harbour direction if—

(a) none of the designated consultees consulted under paragraph 1 has made representations against the proposal;

(b) none of the designated consultees, having made representations against the proposal, gives notice to the harbour authority under paragraph 1(e) maintaining an objection to the proposal; or

(c) it has complied with the further requirements of paragraph 3.

3 Where any designated consultee has given notice to the harbour authority under paragraph (2)(e) that it maintains an objection to the proposal, the following procedure applies—

(a) the issue must be referred to an independent person (the “moderator”) to be agreed between the harbour authority and each of the designated consultees maintaining an objection to the proposal or, failing agreement, appointed on the application of any such party by the President of the London Maritime Arbitrators Association;

(b) the moderator must, so far as is reasonably practicable within three months of the referral, first provide a reasonable opportunity for each of the parties to make representations to or be heard by the moderator and then make a report in writing to the harbour authority with findings and reasoned recommendations on the issue, a copy of which must also be provided by the moderator to each of the other parties;

(c) the harbour authority must decide whether to exercise the power to give or amend the harbour direction having regard to the report and recommendations contained in the report of the moderator (but shall not be bound to give effect to the recommendations) and, once it has so decided, it must give notice in writing to the designated consultees of its decision and of the reasons for that decision.

4 If the harbour authority wishes to exercise the power to give or amend a harbour direction in a form materially different from both the form notified to the parties under paragraph 1(d) and that recommended by the moderator under paragraph 3(b), it must proceed, unless the designated consultees otherwise agree in writing, as if the proposal is a new proposal to which paragraph 1 applies.

5 Except as otherwise provided for in paragraph 3, a moderator appointed under that subsection may determine the procedure for the making of representations and the conduct of any hearing under that subsection.

6 The costs incurred by the moderator and by each of the parties on any referral under paragraph 3 are to be paid by such one or more of the parties to the referral as the moderator may direct.

7 Paragraphs 1 to 6 do not apply where the harbour authority proposes in the interests of navigational safety to give or amend a harbour direction—

(a) in an emergency; or

(b) for the purpose of making temporary provision for an intended activity or operation in the harbour which is expected to commence less than three months after the harbour authority is notified of or otherwise becomes aware of it and to last not more than 28 days and for which the harbour authority considers it appropriate, after taking into account other activities and operations in the harbour which may be affected by it, to make such provision.

8 Where pursuant to paragraph 7 the harbour authority proceeds to give or amend a harbour direction without complying with paragraphs 1 to 6, it must—

(a) give notice of the harbour direction or amendment as soon as is practicable to those persons who would otherwise have been designated consultees had paragraph 1(a) applied;

(b) in the case of any harbour direction or amendment of a harbour direction which is to take effect or may continue to have effect after three months, apply the procedures specified under paragraphs 1(b) to (e) and 2 to 6 to the retention of the harbour direction or amendment of the harbour direction as they apply under those provisions to a proposal to give or amend a harbour direction.””