Memorandum from the Royal Yachting Association
(RYA) (DMNB 08)
INTRODUCTION
1. The RYA is the national body for all
forms of recreational and competitive boating. It represents dinghy
and yacht racing, motor and sail cruising, RIBs and sportsboats,
powerboat racing, windsurfing, inland cruising and personal watercraft.
2. The RYA is recognised by all Government
offices as being the negotiating body for the activities it represents.
The RYA currently has over 100,000 personal members, the majority
of whom choose to go afloat for purely recreational non-competitive
pleasure on coastal and inland waters. There are an estimated
further 500,000 boat owners nationally who are members of over
1,500 RYA affiliated clubs and class associations.
3. The RYA also sets and maintains an international
standard for recreational boat training through a network of over
2,200 RYA Recognised Training Centres in 20 countries. On average,
approximately 160,000 people per year complete RYA training courses.
4. The RYA invites the Committee to consider
the following submission. The RYA anticipates that the views expressed
below will form the basis of the RYA's detailed submission to
the Department for Transport in response to the Department's consultation.
EXECUTIVE SUMMARY
5. In general, the RYA supports both the
underlying objective of the draft Bill, being to improve marine
and port safety, and the Department's desire to improve the management
of the UK's ports and harbours.
6. However, the RYA has a particular concern
to ensure that the public right of navigation over tidal waters
is preserved wherever practicable. To that end, it resists any
interference with the public right of navigation and any proposals
for regulation which, in either case, unjustifiably interfere
with the exercise of that right. The RYA is also concerned to
ensure that the right of innocent passage through the UK's territorial
waters (pursuant to Article 17 of the 1982 United Nations Convention
on the Law of the Sea) is not adversely affected by the proposals
in the draft Bill.
7. The RYA's primary concern is with the
proposal for designated harbour authorities to be granted an essentially
unfettered power to make general directions.
8. The RYA has developed proposals for independent
adjudication of proposed general directions that would guarantee
an appropriate degree of consultation; would allow very speedy
implementation of non-contentious measures; would provide a fast-track
basis for adjudicating upon objections (whilst securing that they
are given a fair hearing) and it would reserve to the harbour
authority the final decision, maintaining the principle of local
control.
DETAILED COMMENTS
9. The RYA considers that the proposal for
designated harbour authorities to be granted an essentially unfettered
power to make general directions could result in unnecessary and
burdensome controls being introduced by harbour authorities on
a piecemeal basis and in an arbitrary fashion. It will also mean
a whole new range of criminal offences being created since breach
of a general direction will be a criminal offence.
10. Harbour authorities generally are not
law-making bodies nor are they well-placed or usually adequately
resourced to frame controls introducing new criminal offences.
The proposed power of general direction would effectively render
a harbour authority a law-making body with the power to create
criminal offences, in its own terms and without any of the safeguards
usually imposed in relation to such matters.
11. The apparent rationale for this is to
do away with the need to seek confirmation by the Secretary of
State of byelaws for this purpose. However, whilst the confirmation
procedure brings with it safeguards by way of checks and balances,
the proposed power to issue directions does not.
12. Although the Consultation Paper claims
that byelaw-making powers are inflexible and take too long to
implement and that the objection process on a byelaw confirmation
can be a lengthy one, such considerations do not provide justification
for having no process at all in place to help secure that wide-ranging
powers are only exercised with due regard to legitimate interests
and to ensure that, where those directly affected express real
concerns, the need for such powers and their justification in
the public interest are appropriately tested.
13. In practice, it would seem that the
reason for the confirmation of byelaws becoming cumbersome and
prone to delay is essentially a resourcing issue rather than an
inherent fault in the byelaw-making process itself. If properly
resourced, confirmation should be capable of being achieved very
speedily in all but the occasional highly contested case. Whilst
there may nevertheless be good reason for substituting a different
process, this again is not a sound basis for removing all checks
and balances which are necessary to help ensure that wide-ranging
powers are only exercised appropriately and with necessary consideration
for and safeguards to protect the interests of those affected.
Such safeguards are particularly necessary where, as here, the
proposals in question involve the introduction of new criminal
sanctions against individuals exercising otherwise lawful rights.
14. Although the proposal in the draft Bill
provides for a consultation process before a designated harbour
authority makes harbour directions, paragraph 3.4 (p 85) of the
accompanying Impact Assessment reads "General directions
can be introduced within days of their being advertised and consulted
on; they do not have to be confirmed by the Secretary of State".
This suggests that the real intention is that harbour directions
will be introduced within days even if stakeholders profoundly
and with good reason object.
15. In local government, the RYA acknowledges
that a small step has been taken to move away from traditional
byelaw confirmation. Section 129 of the Local Government and Public
Involvement in Health Act 2007 has introduced a new and as yet
un-tried alternative procedure, which is limited in its ambit
to byelaws of a class to be prescribed by the Secretary of State.
It provides for additional consultation requirements to be introduced
and requires the implementing regulations to be approved by each
House of Parliament. The Act does not, however, provide for the
substitution for byelaw confirmation of anything so sweeping and
potentially arbitrary as the power to issue general directions
proposed in the draft Bill.
16. Under the draft Bill an un-elected designated
harbour authority would arguably have greater powers to criminalise
otherwise lawful activity than does a democratically elected Local
Authority.
17. The proposed unfettered power to make
general directions:
(a) could be used to restrict or remove the
public right of navigation within a harbour and for purposes unconnected
with navigation and port or marine safety;
(b) creates a series of criminal offences,
punishable with a fine not exceeding level 4 on the standard scale;
(c) would enable the designated harbour authority
in creating such criminal offences, to set the precise terms of
the criminal offences without any outside guidance, endorsement
or supervision;
(d) will result in circumstances where the
insurance applicable to vessels is liable to be rendered invalid
(ie due to exemptions in insurance policies for activities declared
unlawful); and
(e) avoids the need to make byelaws and have
these confirmed by the Secretary of State, a procedure that allows
bodies such as the RYA to object and to be heard at a public inquiry
with the Inspector then reporting to the Secretary of State before
a final decision is made by the Secretary of State.
18. The proposed new powers are of general
application and could be applied to all categories of vessel,
for an indefinite duration, irrespective of the actual circumstances
on the water and, at least in part, for reasons that are unconnected
with the safety or convenience of navigation.
19. Such powers are very wide-ranging indeed
and, the RYA suspects, are un-matched in other equivalent regulatory
spheres.
20. The potential impact of such powers
is not only theoretical but very real. Thus, for example, it would
be possible for the power to be exercised to make general directions:
(a) to require some or all recreational craft
to use or to refrain from using any part of the harbour (including
fairways and traditional anchoring spots) at all or at certain
times;
(b) by that means to create exclusion zones
for purposes unrelated to navigation or port or marine safety;
(c) otherwise to limit the times when any
part of the harbour can be used by some or all vessels;
(d) to impose moving exclusion zones around
particular vessels;
(e) to introduce speed limits;
(f) to require the use of engines, signalling
and telecommunications systems or other equipment;
(g) to prohibit navigation during times of
poor visibility;
(h) to require masters of vessels to provide
information to and for that purpose to report to the Harbour Master.
21. The RYA has developed proposals for
independent adjudication specifically to address the concerns
which the RYA and its members have increasingly had as to the
application without such safeguards of the powers in question
by designated harbour authorities.
22. In summary, the RYA's proposals for
independent adjudication provide that, where the harbour authority
decides after consultation to proceed with a proposed direction
and an institutional consultee (ie not a private individual) gives
notice to the harbour authority that it objects to the proposed
general direction, the following procedure shall apply:
(a) the issue must be referred to an independent
person (the "adjudicator") to be agreed between the
harbour authority and each of the consultees maintaining an objection
to the proposal;
(b) the adjudicator must provide a reasonable
opportunity for each of the parties to make representations to
or be heard by the adjudicator before making a report in writing
to the harbour authority with findings and reasoned recommendations
on the issue;
(c) the harbour authority must decide whether
to make or amend the harbour direction having regard to the report
of the adjudicator and, once it has done so, must notify the adjudicator
and the other parties of its decision and of the reasons for that
decision;
(d) where the harbour authority must proceed
in an emergency to make or amend any harbour direction, the harbour
authority shall inform the consultees as soon as practicable of
its proposals for maintaining the harbour direction and the above
adjudication provisions then apply to those proposals.
23. Under these arrangements, referral to
the Secretary of State is avoided and the final decision is still
left with the harbour authority but, importantly in a contested
case, the decision to proceed can only be made after receipt and
consideration by the harbour authority of an independent report
on the subject. This will ensure that in contentious cases a fair
hearing is given to matters of concern and that the decision to
proceed is only made after reasoned consideration.
24. At one time, the application of powers
to make general directions was less commonplace and their practical
impact on recreational uses as opposed to commercial uses very
limited. That however is now changing and, if the Bill is enacted,
such powers will be seen by designated harbour authorities as
the main basis for regulation generally. This gives rise to the
need for clear safeguards which the proposals developed by the
RYA provide.
25. The RYA proposals are fully consistent
with relevant public policy considerations, including:
(a) the principles of Better Regulation as
now enunciated by the Better Regulation Executive; in particular
the need only to regulate where necessary and where the benefits
justify the costs and entail the minimum burden compatible with
achieving the desired regulatory objective;
(b) the importance placed on prior and comprehensive
consultation with stakeholders;
(c) the principles of the current Ports Policy
Review: nothing in the Review predicates that wider powers to
issue general directions should be granted than are currently
precedented or that safeguards of the sort proposed by the RYA
should not be incorporated; and
(d) the limited application of Section 129
of the Local Government and Public Involvement in Health Act 2007.
26. We consider that provision for referral
to, and a report by, an independent person provides a key element
which affords the principal safeguard. In particular, it should
be noted that:
(a) this would ensure that, in a contested
case, the designated harbour authority's case for the exercise
of the power (and any recreational interests concerns about it)
have to be fully explained and documented and are subject to independent
and objective examination;
(b) the designated harbour authority would
nevertheless retain ultimate discretion and authority to proceed
with the proposed directions having considered the independent
person's report;
(c) a decision by them to do so would only
be open to legal challenge if it was patently perverse so to proceed;
and
(d) the fact that their concerns had been
given a fair hearing and the cost of formal legal proceedings
would also act as a powerful spur to persuade the RYA and other
stakeholder interests to accept the decision reached.
27. This process proposed by the RYA would
have many advantages. It would guarantee an appropriate degree
of consultation; it would allow very speedy implementation of
non-contentious measures; it would provide a fast-track basis
for adjudicating upon objections (whilst securing that they are
given a fair hearing) and it would reserve to the harbour authority
the final decision, maintaining the principle of local control.
It would also avoid the perceived deficiencies of the byelaw-making
process with its advertising requirements, potential public local
inquiry and referral to the Secretary of State.
28. It should be noted that, in the ordinary
course, the RYA would not expect difficulties to ensue with proposals
for the making general directions but would rather hope and expect
relations between the designated harbour authority and relevant
stakeholders such as the RYA to be open, considerate and constructive,
resulting in no disagreement about the need for, scope or form
of a proposed direction. However, as with the imposition of statutory
safeguards generally, the RYA's proposals are necessary not for
times when relationships are good and all stakeholders are in
agreement with proposed actions but rather to help preclude circumstances
arising where this is not the case and to deal with those unfortunate
occasions when that happens. In such circumstances, mere consultation
and liaison is insufficient.
29. The current draft of the Broads Bill
now includes an equivalent provision to that proposed by the RYA
for inclusion in the draft Bill.
30. The adjudication process which the RYA
proposes could be limited to the RYA and such other national representative
organisations (eg the Chamber of Shipping) as may be appropriate.
This is to avoid the need for that process to be engaged simply
because some unrepresentative, irrelevant or vexatious objection
is entered. Any organisation to whom the provision applies would
also have to think carefully before triggering the adjudication
process, given the demands which that would impose and, if so
provided for, the risk of some award of costs.
31. The RYA is particularly disappointed
that, despite the Department being aware of the RYA's views, in
particular in relation to outstanding objections by the RYA to
a number of outstanding Harbour Revision Orders sought by individual
harbour authorities, no reference is made to these in the Consultation
Document or to the possibility of limiting the powers along the
lines proposed by the RYA. Furthermore, although the Consultation
Document contains an Impact Assessment on the draft Bill, there
is no reference in it to potential impacts on the recreational
boating sector and it appears that these have not been the subject
of any investigation. New impositions on the use of recreational
vessels, particularly those imposed on a local basis, can have
significant impacts not only on recreational users themselves
but on local and other businesses who supply or service boats
or otherwise operate in the marine recreation and more general
tourism markets. The RYA would therefore have expected some consideration
to this to have been given in the Consultation Document and the
Impact Assessment.
32. In light of its concerns as here expressed,
the RYA considers that the proposed section 40A to be inserted
into the Harbours Act 1964 by clause 6 of the Bill should be amended
so that general directions can only be given in the interests
of facilitating navigation or otherwise in the interests of port
or marine safety and not for other purposes.
33. The RYA also wishes to see the proposed
section 40B to be inserted into the Harbour Act 1964 by clause
6 of the draft Bill replaced with provisions allowing for independent
adjudication in cases of dispute along the lines proposed by the
RYA.
34. The RYA would be happy to provide additional
evidence if that would be of assistance to the Committee.
May 2008
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