Tenth Report Contents

Tenth Report

Seafarers’ Wages Bill [HL]

1.This Bill was introduced in the House of Lords on 6 July and had its Second Reading on 20 July.

2.The Bill contains 15 clauses. According to the Explanatory Notes, “The purpose of the Bill is to grant protection to seafarers working on ships that regularly (at least once every 72 hours) use UK ports by ensuring that they are paid at least an equivalent rate to the UK National Minimum Wage while in UK waters, irrespective of the nationality of the seafarer or flag of the vessel”.1

3.The Bill allows a harbour authority2 to request that an operator of a service for the carriage of persons or goods by ship between a place outside the UK and a place in the UK3 provides a “national minimum wage equivalence declaration” (a “NMWE declaration”)4 in respect of that service. This is a declaration that, in a specified period—

4.Where an operator fails to provide such a declaration, the Bill gives the harbour authority power to impose a surcharge on the operator on any occasion when a ship providing the service in question enters its harbour.5 Where a surcharge is due, but not paid, the harbour authority may refuse access to its harbour to a ship providing the service in question.6

5.The Department for Transport has provided a Delegated Powers Memorandum (“the Memorandum”)7 for the Bill.

6.We draw two powers to the attention of the House.

Clause 3(4)(a): power of the Secretary of State to restrict the circumstances in which a harbour authority may exercise its power under clause 3(1) to request that an operator of a shipping service provides a national minimum wage equivalence declaration

7.Clause 3(1) gives a harbour authority power to request that an operator of a shipping service to which the Bill applies provides a NMWE declaration in respect of that service.

8.Clause 3(4) gives the Secretary of State power to make regulations that make provision—

Such regulations are subject to the negative procedure.

9.The Memorandum describes this as a power to make provision for “administrative and procedural detail”.8 It states that “the circumstances in which NMWE declarations may be requested, their form and the manner in which they are provided are procedural matters”.9

10.We agree that provision as to the form of NMWE declarations or as to the manner in which they are to be provided might fairly be described as “administrative” or “procedural”.

11.However, we consider that restricting the circumstances in which a harbour authority may exercise its power to request a NMWE declaration cannot reasonably be described as a “procedural matter”. This is, in effect, a power to modify clause 3(1) of the Bill by regulations subject only to the negative procedure. Indeed, as the measures in the Bill that are designed to secure that seafarers are paid at least an equivalent rate to the UK national minimum wage all flow from the exercise by harbour authorities of their power to request a NMWE declaration, regulations that limit the circumstances in which such declarations can be requested would correspondingly limit the effect of the entire Bill.

12.The power in clause 3(4)(a) to restrict the circumstances in which harbour authorities may require operators of shipping services to provide national minimum wage equivalence declarations is an open-ended power that, in effect, allows the Bill to be modified by regulations subject only to the negative procedure—and in a way that would limit the effect of the entire Bill. We consider that the Government have failed to justify the inclusion of this power in the Bill and that, even if its inclusion could be justified, the exercise of such a power merits affirmative procedure scrutiny.

Clause 11(2): power of the Secretary of State to give directions to harbour authorities

13.Clause 11(2) gives the Secretary of State power to give directions to one or more harbour authorities requiring them—

14.Such directions may, for example, require a harbour authority—

15.It is an offence for a harbour authority to fail to comply with a direction given under clause 11.11

16.Directions under clause 11 must be published in such manner as the Secretary of State thinks fit12 but they are not subject to any form of parliamentary scrutiny.

17.The Memorandum seeks to justify this power on the basis that it is “necessary to have a back-up power for the Secretary of State to issue directions to harbour authorities in the event that they do not exercise their powers or that they exercise them in a way that is inconsistent with the wider policy intention”.13

18.The element of the power that we find most surprising is that it allows the Secretary of State to require a harbour authority not to exercise powers conferred by the Bill.

19.The explanation given in the Memorandum for this is that it “may be needed where, for example, the Secretary of State is aware of certain circumstances that would make it inappropriate to refuse access to a harbour under clause 9,14 but which circumstances are outside the scope of the exceptions in clause 9(3) (which sets out the circumstances in which a harbour authority may not refuse access to a harbour)”.15

20.However, we consider this to be quite a startling power—

21.According to the Memorandum—

22.We find this unconvincing. We consider that the Government have failed to justify the inclusion in the Bill of a completely open-ended power to, in effect, modify the entire Bill by directions subject to no form of parliamentary scrutiny. Accordingly, we consider that clause 11(2) should be removed from the Bill.


1 See para 2 of the Explanatory Notes to the Bill.

2 “Harbour authority” means any person in whom are vested under the Harbours Act 1964, or by or under another Act, functions of improving, maintaining or managing a harbour.

3 See clause 1.

4 This term is defined in clause 4.

5 See clause 7.

6 See clause 9.

7 Department for Transport, Delegated Powers Memorandum, undated.

8 At para 11.

9 At para 12.

10 See clause 11(3).

11 See clause 11(7).

12 See clause 11(5).

13 See para 62 of the Memorandum.

14 Clause 9 allows a harbour authority to refuse access to its harbour to a ship providing a service to which the Bill applies where the harbour authority has imposed a surcharge on the operator of the service and the operator has failed to pay it.

15 See para 65 of the Memorandum.

16 See para 66 of the Memorandum.

17 See para 69 of the Memorandum.




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