I am writing as Chairman of the Secondary Legislation Scrutiny Committee which this week considered the Merchant Shipping (Prevention of Pollution from Noxious Liquid Substances in Bulk) Regulations 2018 and the Merchant Shipping (International Load Line Convention)(Amendment) Regulations 2018, and reported them to the House on the ground of policy interest.
Both sets of Regulations implement part of a considerable backlog of international maritime conventions. Although we have been assured that the deficiencies in relation to these particular Regulations are comparatively minor, the Committee would be grateful if you could give an indication of the following:
We note that for future changes these Regulations enable use of the ambulatory reference mechanism (under section I 06 of the Deregulation Act 2015). The Committee notes that this is the first use of this mechanism and would welcome an explanation why there has been such a long delay in using this mechanism to remedy deficiencies that your department was aware of in 2014.
The Committee would be grateful to receive your response to these concerns by Monday 5 March.
27 February 2018
Thank you for your letter of 27 February.
I share your desire to see the situation regularised and the backlog tackled. Generally, I am reassured that the backlog does not have any material impact on ship safety- this is a stable, mature sector with a strong international network of complementary intergovernmental and state regulators. But you raise three specific points: the extent and impact of the backlog; the timetable for remedying the situation; and the delay in making use of the ambulatory reference mechanism.
The global nature of the maritime sector results in a complex and extensive set of international obligations emanating predominantly from the International Maritime Organization (IMO) and the International Labour Organization (ILO). There is also an extensive programme of EU legislation on maritime matters which the UK has been required to transpose, although many of these duplicate, at least in part, the content of international Conventions, e.g., the Port State Control and Port Waste Reception Facilities Directives. Given the long history of maritime regulation, many regulatory changes are incremental.
To understand the extent of the UK’s compliance with maritime international convention amendments, my department commissioned ChartCo Training & Consultancy to undertake a gap analysis to compare IMO conventions amendments with that of UK domestic legislation and identify where UK legislation is out of step with international obligations. This extensive package of work, which concluded in May 2017, identified that of 10 International conventions considered, a total of 381 amendments had been introduced with 43% of those not yet introduced into UK law.
Whilst this seems a significant number, the impact is far more limited in practice. Many amendments to international instruments are simply clarifications, explanations, improvements to outdated drafting and incremental improvements to reflect technological advances. A significant number apply only to “new build” ships, and those which are retrospective are only ones which can be accommodated in the design of existing ships.
The international nature of shipping means that, even if a change is more significant in nature, it is generally adhered to by ship builders as ships are not constructed or equipped so they can be registered on only one flag - this would limit the market for builders - and port State Control inspections which international ships undergo when visiting foreign ports ensure that standards are consistently applied across the globe, even if some nations have not fully kept pace in their domestic law with the latest amendments. But despite the incremental nature of many of the amendments, they are important steps and have the cumulative effect of improving safety over a period of time. This does not mean that delay in implementation is desirable or acceptable, but it does mitigate the risk.
Whilst we are seeking to reduce the backlog as quickly as practical, we are also mindful of the hard deadline of the International Maritime Organization (IMO) flag State administration audit, which is expected to take place in 2020 at the latest. The IMO has put in place a programme of audits of flag States who are IMO members, including the UK. This is known as the “IMO Instruments Implementation Code” audit or “Triple I” audit. Therefore, the conventions which are part of the “Triple I” programme have been prioritised.
The main international conventions which form part of the “Triple I” regime are:
a) the International Convention on Load lines 1966, as amended by its
1988 Protocol (1 SI);
b) the International Convention on the Safety of Life at Sea 1974
(SOLAS) and its 1998 Protocol (potentially 12 Sis);
c) the International Convention for the Prevention of Pollution from Ships
1973 (MARPOL) as modified by Protocols of 1978 and 1997 (6 Sis);
d) the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) (1 SI);
e) the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREGS) (1 SI); and,
f) the International Convention on Tonnage Measurement of Ships, 1969 (1 SI).
In order to implement the full backlog of outstanding amendments for all of these “Triple I” conventions, it is estimated that 22 Sis will be required (the number of Sis which are expected to be required for each Convention are indicated after the name of the Convention on the above list). Of these 22 SIs, two have been laid in Parliament, two are awaiting pre-consultation write-round (SOLAS chapter V, the Merchant Shipping (Safety of Navigation) Regulations, and MARPOL Annex I the Merchant Shipping (Prevention of Oil Pollution) Regulations), and a further five are in various stages of progress, leaving a further 13.
Our “Roadmap” for the immediate future is to implement the outstanding amendments to the following conventions into UK law, using cross-referencing of convention requirements and ambulatory reference to the fullest extent possible to enable future amendments to be implemented into UK law automatically:
SOLAS Chapter V (Safety of Navigation)
MARPOL Annex I (Prevention of Pollution by Oil)
SOLAS Chapter Ill (Life-Saving Appliances)
MARPOL Annex V (Prevention of Pollution from Garbage from Ships)
MARPOL Annex IV (Prevention of Pollution from Sewage from Ships)
SOLAS Chapter IV (Radio Installations)
SOLAS Chapter 11-2 (Construction: Fire Protection, Detection and Extinction)
SOLAS Chapter 11-1 (Construction: Structure, Subdivisions and Stability, Machinery and Electrical Installations
The delay in making use of the ambulatory reference mechanism in 2014, through the Red Tape Challenge process, my Department took the opportunity to identify an alternative, more agile and responsive solution to delivering international obligations and therefore, in March 2015 introduced primary powers that would allow the use of ambulatory reference for subsequent technical changes to international conventions. Since then we have been working through a steady implementation process which is now coming to fruition.
The Department quickly identified a suitable ongoing project that could test limited initial use of ambulatory reference: the Convention on Limitation of Liability for Maritime Claims (LLMC). The use of ambulatory reference was limited to only future increases to liability limits agreed at the international level but provided the Department with valuable feedback on their approach to ambulatory reference, most notably that following the inclusion of an ambulatory reference provision in an SI, any subsequent changes to the international convention would be required to follow the principles of Better Regulation. This SI, the Merchant Shipping Act 1995 (Amendment) Order 2016, came into effect on 30 November 2016.
In October 2015, my Department’s Maritime and Coastguard Agency established a small team dedicated to developing a long term radical programme to restructure maritime legislation to provide a legislative framework that is responsive to change and reflects the latest requirements, whilst adhering to the principles of Better Regulation.
Throughout 2016 the team identified a roadmap of long term projects and commenced a further three pilot projects suitable to fully test ambulatory reference. They also worked with the Better Regulation Executive to develop a streamlined and robust process that all future changes implemented pursuant to ambulatory reference provisions would need to comply with.
Inevitably, the introduction of novel approaches to introducing statutory requirements rightly invites an additional level of interest and scrutiny and the maritime ambulatory reference programme has been no exception. My Department has been, and continues to be, challenged throughout the process of this programme, most recently to ensure that Parliamentary sight is still maintained for future changes, which has prompted my Department, working with the Cabinet Office, to agree the introduction of a Ministerial Statement to announce agreement to amendments to international conventions ahead of their ‘in force’ date and implementation into domestic law by way of ambulatory reference.
Traditional transposition of conventions into UK law takes a long time and is very resource intensive, involving many public servants in government and Parliament. Ambulatory references have the potential to make the process much more efficient for future amendments, ensuring the UK does not fall behind in its international obligations to keep domestic legislation in step with the international requirements, and provide industry with “one version of the truth” which is available immediately, instead of having to wait for two years or more for domestic legislation to be produced and to undergo the normal stages to pass into law.
It has been necessary to adapt existing processes to ensure that any international amendments which may pass into UK law as a result of an ambulatory reference provision are appropriately scrutinised with industry and unions, sufficiently notified to Parliament, published to the public, and that a mechanism is present to ensure that in the unlikely event that any amendment agreed internationally is deemed undesirable for UK, it can be prevented from coming into UK law.
The pilot projects are intended to pave the way for ambulatory reference to be rolled out across the full scope of international conventions. During the lifetime of the MCA’s Ambulatory Reference Team, several other ambulatory reference Sis have been started, but these are not at such an advanced stage as the three pilot projects. Additionally, the Regulations implementing the latest amendments to MARPOL Annex II, the Merchant Shipping (Prevention of Pollution from Noxious Liquid Substances in Bulk) Regulations 2018, which were originally progressing as a traditional transposition SI, have had an element of ambulatory reference introduced into them, and were laid in Parliament on 15 February 2018, at the same as the Merchant Shipping (International Load Line Convention) (Amendment) Regulations 2018.
1 March 2018