1.By a letter dated 7th March 2018, the Joint Committee on Statutory Instruments requested a memorandum on the following points:
Explain (i) what regulation 23(5) adds to regulation 23(3)(c) and (ii) why the Explanatory Note to this instrument does not give information about the availability of the Merchant Shipping Notice referred to in the definition of “Category A, B, C or D waters” (as S.I. 2018/68 does in relation to the Merchant Shipping Notices referred to in that instrument).
Regulations 23(3)(c) and 23(5)
2.Regulation 23(3) explains that control over foreign ships holding a valid International Load Line Certificate in United Kingdom ports may only be exercised in limited circumstances. This control is exercised by officers authorised by the Secretary of State and one of the limited circumstances under regulation 23(3) is for the purpose of determining whether a ship has been materially altered such that it is manifestly unfit to proceed to sea without danger to human life (regulation 23(3)(c)). Regulation 23(3)(c) contains a cross-reference to a list of circumstances relating to alterations in Article 19(9) of the International Convention on Load Lines, 1966 as amended (“the 1966 Convention”), which, if they occurred, would invalidate an International Load Line Certificate.
3.Regulation 23(5) provides that the only control that can be exercised by authorised officers is to prevent a ship that has been altered in one of these ways from proceeding to sea until it can do so without endangering the passengers and crew; that is, such authorised officers cannot declare a certificate issued in respect of a foreign ship to be invalid.
4.The drafting of regulation 23(3)(c) follows very closely the provisions and drafting of Article 21(1)(c) in the 1966 Convention and Article 21(2), except that an additional circumstance is included in regulation 23(3)(c) (paragraph (d) of Article 19(9)) that does not appear in the equivalent provision in Article 21(1)(c). The drafting of regulation 23(5) follows very closely the provisions and drafting of Article 21(2) in the 1966 Convention.
5.The Department’s view is that the inclusion of regulation 23(5) is therefore necessary in order to clarify the scope of the ‘control’ to be exercised under regulation 23(3)(c), and that this follows the scheme of the Convention.
Merchant Shipping Notice referred to in the definition of “Category A, B, C or D waters”
6.These Regulations only apply to ships engaged on international voyages. The definition of “Category A, B, C or D waters” is included only to distinguish these waters from the “sea”. The only other reference to “Category A, B, C or D waters” is in regulation 11(5), which is in the context of allowing for the effect of changing water density on a ship’s freeboard during passage to the sea, as provided for in regulations 11(1) to 11(4).
7.The definition of “Category A, B, C or D waters” in regulation 2 cross-refers to Merchant Shipping Notice 1837(M) Amendment 1, in which the scope of each of Category A, B, C and D waters is set out. However, it is not necessary to cross-refer to MSN 1837(M) in order for the definition of “sea” and the scope of regulation 11(5) to be understood as the Regulations contain the information needed to calculate the freeboard changes due to varying water density during the transition from a fresh water port to the sea. The more detailed information in MSN 1837 is necessary for ships engaged on domestic voyages, to which separate Regulations apply (the Merchant Shipping (Load Line) Regulations 1998 (S.I. 1998/2241)).
8.However, a reference to MSN 1837(M) Amendment 1 was nevertheless included in regulation 2 to be absolutely clear that Category A, B, C and D waters are specified in a document. A definition of “Merchant Shipping Notice” was also included in regulation 2 and is the standard definition of “Merchant Shipping Notice” that is included in all merchant shipping statutory instruments; it explains that a Merchant Shipping Notice is a notice that is issued by the Maritime and Coastguard Agency (an executive agency of the Department for Transport). It has always been assumed that because it is stated in statutory instruments that Merchant Shipping Notices are issued by the Maritime and Coastguard Agency, that it is a straightforward task to locate these notices.
9.However, the Department accepts that the better practice is to reference the availability of all documents to which cross-references are made in a statutory instrument, as now required by paragraph 3.17.4 in the new edition of Statutory Instrument Practice. It is unfortunate that S.I. 2018/68 and S.I. 2018/155 could not have been compared by the same reviewer in the Department, in which case the discrepancy would have been identified, but, as the Committee will appreciate, such coordination in the time available is simply not always possible.
10.In the light of previous correspondence with the Committee, the Department has taken steps to remind its drafting lawyers of the importance the Committee attaches to the accessibility of relevant documents and particularly the availability of hard copies for those without access to the internet. The Department will endeavour to ensure that references to the availability of all documents which are cross-referenced in statutory instruments are made in all instruments in the future.
Department for Transport
13 March 2018
Published: 22 March 2018