Agenda item 2 is consideration of the legislative consent memorandum on the Marine Navigation (No 2) Bill, which is United Kingdom legislation, and an opportunity for members to ask Scottish Government officials about it. I welcome to the meeting Stuart Foubister, who is a divisional solicitor in the economy and transport division of the directorate for legal services in the Scottish Government and, from Transport Scotland, Val Ferguson, who is a policy executive in the ports and harbours branch and Chris Wilcock, who is branch head in the ports and harbours branch. Good morning, one and all.
As you said, the bill is a private member’s bill. It was originally part of a much larger bill in 2008 that covered marine navigation and a number of other provisions, but which proved to be fairly contentious and was eventually dropped because it did not gain the required support. That bill contained some fairly important provisions that have been, to some extent, cherry picked. I believe that provisions relating to lighthouse authorities have been taken forward by other means, and that the provisions that we are discussing have been picked up as a hand-out bill by a member. That said, the provisions have Government support and are widely welcomed by the ports industry.
That was very helpful. Can you say in one or two sentences what the bill is trying to achieve?
To some extent, it is part of the move towards deregulation and removing burdens from the ports industry. It will also make it slightly more straightforward for port authorities to gain or relinquish powers, which at the moment they might need private acts to achieve. It is an attempt to streamline procedure.
Thank you. Mike MacKenzie will start off the questioning from members.
Good morning. Clause 1 provides the Scottish ministers with the power to remove harbour authorities’ pilotage functions. Why does the Scottish Government consider those powers to be necessary?
At the moment, orders providing pilotage powers to authorities can be amended or revoked. However, pilotage authorities have been around for a number of years and were not all created under the existing Pilotage Act 1987, and there is no provision to remove duties and powers relating to pilotage that are no longer required. The inclusion of the powers is simply a tidying-up measure. To be honest, I think that it is unlikely that they will be used frequently, but they will exist, should the need arise.
How does the Scottish Government intend to exercise the powers?
The Scottish Government will be reluctant to use the powers proactively; as I have said, it is very unlikely that it will do so. In the future, however, pilotage might no longer be required at a harbour, so it would be for the pilotage authority to come to us and say, “Business has changed. We no longer require to provide a pilotage service—or to keep one under review—so we’d like the powers to be completely removed.” Obviously an authority will make its case and carry out a supporting risk assessment.
It is worth adding that in reviewing any case we would consider navigational safety as a primary factor alongside any commercial case that a harbour authority might put to us. As we have said, we think it unlikely that there will be any such approaches, but it makes sense to take the powers, just in case circumstances change.
That sounds sensible.
The approach is consistent with other orders under the 1987 act; we saw no reason to deviate from it. Orders under that act are subject to the procedure for creating a pilotage authority, and there is no obvious case for making a change in that respect.
The same holds for orders under the Harbours Act 1964, which is the more common legislation in respect of harbours and under which powers are granted and conveyed. Orders under that legislation follow that procedure, and we saw no need for anything more onerous in respect of the bill.
I think that, on the back of the initial response about where the bill has come from, there is perhaps one question that we should ask before we go too much further. This hand-out bill from the United Kingdom Government has emerged from a bill that was introduced in 2008, so it is not directly in the gift, or part of the responsibility, of Scottish ministers. We are simply looking at the legislative consent process. The committee is interested only in subordinate legislation and not in the broader policy issues, but I wonder to what extent the Scottish Government has been involved in drafting the bill. In other words, are we asking you to account for legislation over which you have had no influence?
No. It is fair to say that we had the requisite amount of influence. We saw the bill before it was introduced and were given the opportunity to input to its drafting.
That is helpful.
You said that safety will be taken into account in examining any proposal to relinquish or remove pilotage powers in a given area. Who will be responsible for monitoring and safeguarding that safety element?
There is provision for us to consult before any order that would remove the powers is made. As with other harbours legislation, we would consult navigation authorities, including the Maritime and Coastguard Agency and other maritime experts.
I did not see that in any of the documentation. Are you speaking from your own knowledge or is that built in to the legislation?
I cannot recall exactly whether it is built in—
There is a statutory obligation to consult the harbour authority and anyone else whom the person making the order—in this case, the Scottish ministers—thinks appropriate.
Proposed new section 40A of the Harbours Act 1964, which will be inserted by clause 5, will give Scottish ministers the power to designate harbour authorities that may give general harbour directions to ships
Again, the approach is consistent with other orders that are made under the 1964 act, which are also not subject to parliamentary procedure. We saw no reason to deviate from that consistent approach.
I am sure that you are correct, but can you explain the reasoning behind the choice of procedure, which we believe differs substantially from that which is to be applied in England and Wales? Why are we having a different procedure in Scotland?
The current procedure in Scotland is that orders under the Harbours Act 1964 are not routinely laid before Parliament.
Has there always been that inconsistency in approach?
There is inconsistency between the approach in Scotland and that which is taken in the rest of the UK but, as I have said, we are maintaining consistency in the Scottish approach.
I presume that that has worked well enough in the past. Would there be any benefit in having the same approach in Scotland as in England and Wales?
I do not think so. The present arrangements have worked successfully in Scotland.
The power in proposed new section 40A will allow the amendment or repeal of
The words mean what they say. They relate to a statutory provision that applies to a particular area, rather than one that is applicable throughout the whole of Scotland. The prime candidate would be a harbour order, which would have effective operation only within the harbour area.
Right. You think that something is “of local application” if it is not of universal application. In other words, it does not matter how local its application is. That is helpful.
The classification of statutory instruments in Scotland has changed. The concept of a local statutory instrument no longer exists, but I do not think that that causes any problems with the application of a test of whether a statutory provision is “of local application”. The change is simply a change in the classification of existing instruments.
Okay—we will let the lawyers worry about that. Thank you.
My attention is on the insertion into the Harbours Act 1964 of proposed new sections 17A to 17F and, in particular, the orders that would create harbours, harbour closure orders and their revision. To some extent, the answer that was given to John Scott’s question covers the issue. Leaving aside orders that relate to harbours that are of national importance, I take it that such orders have always been not subject to parliamentary procedure. Is that the case?
That question is nothing to do with the bill—you are asking about the existing arrangements for harbours of national importance.
The affirmative procedure normally applies to orders to create harbours that are considered to be of national importance. Is what I am being told in relation to the insertion into the 1964 act of proposed new sections 17A to 17F that the process will remain the same as it has always been?
Yes. A closure order would never be subject to parliamentary procedure, even if it related to the closure of a harbour of national importance.
Is that sensible in the context of a tidying-up bill? If it is necessary to establish a harbour of national importance through an order that is considered by Parliament, why has it been decided that such a harbour could be closed without consideration by Parliament? That is the essence of my question.
Harbours of national importance are usually harbours that are designated as national planning framework 2 projects, such as the Stena project. Given the scale and importance of such harbours, and the infrastructure that is associated with them, it was felt that their creation needed full parliamentary scrutiny and process.
I will suggest an example that might fall outside that, and I will pose a question.
I do not think that there is any concept of remaining on a list of national importance. Harbours get on the list by being in the national planning framework, but that is—
That is precisely my point: national planning frameworks are revised. We are heading towards NPF3, if I recall correctly, which may or may not have the same things in it as NPF2.
The next planning framework is intended to designate proposed developments. Once something is completed and built, it is no longer an NPF matter.
All right. I will be really geeky. Say a harbour is in NPF2, and is designated but not built, and NPF3 is published without its being included. If that harbour is subsequently built, does it remain of national importance, even though it is not in the current plan?
No. The test of whether a harbour would be of national importance, so as to attract affirmative procedure for the order that would create the harbour, would depend on whether, at that point, it was in the national planning framework.
Okay. That is fine. To be clear, once something is built and is of national importance, there is no parliamentary process for de-listing it, and it remains of national importance in perpetuity. That is the essence of what I am hearing. Tell me that I am wrong.
The concept of national importance relates to development. It is about saying that something is of national importance and should therefore be built and created. Once it is built and created, there is no continuing concept of national importance. In law, it is just a harbour.
I am sorry. I am not seized of this yet. It appears that there is a parliamentary process associated with harbour revision orders on harbours that were designated as being of national importance. Therefore, there is an enduring condition of national importance, otherwise they would not be caught by the provision.
If the next NPF comes out and that harbour has already been built, it will not appear in the new framework.
Are you saying, then, that a harbour that was built under the auspices of NPF2 as a harbour of national importance requires parliamentary procedure for revisions of harbour orders only until the publication of NPF3, in which that harbour no longer features?
Yes.
So, de facto, the consideration by Parliament of NPF3, which excludes something that was in NPF2, will relieve that harbour of the parliamentary process for revision orders thereafter.
Yes.
I do not want to put words in your mouth.
Yes; what you said is right.
Right. The appropriate policy committee may wish to pursue that a little further, because it seems to me to be a little irrational. The Subordinate Legislation Committee does not engage directly on policy.
The NPF2 designation covers the particular works and the projects that are included in NPF2.
Do you mean any works requiring a harbour order?
I mean works requiring a harbour order—a marine licence or anything along those lines.
A marine licence would not require a harbour order.
No. Sorry.
Are we still on the bill at this point?
Has Stewart Stevenson finished?
Well, he has gone as far as he feels able to go. Whether he has finished might be another matter.
I may have missed the point in all of this, but I seek an explanation of why the choice of procedure—a ministerial order—is appropriate for the exercise of the power to close harbours. Why is a ministerial order appropriate for the closure of harbours that are not of national importance? Why have you chosen a ministerial order as the power? Can you justify or explain that? You may already have done so, and I may have missed it.
That would be in line with the normal harbour order procedure in Scotland for projects that do not go down the NPF2 route of full parliamentary scrutiny. It would be in line with the normal procedures for the making of harbour revisions—
It has aye been thus.
That is the normal procedure. Given that the procedures are in place to empower or create harbours and that this is a less significant process, whereby we would be looking at harbours that were no longer required and for which there was not a case, we did not feel that a more onerous or complex procedure was required.
That is fine. Thank you.
There is an element of unwritten rules being applied, which is why clarity is missing. People in the know may understand and appreciate the norm that is being applied, but the legislation does not state it clearly. Therefore, there is confusion for the layperson. A little more clarity might be helpful.
It is about applying common sense, as far as I can see. I understand entirely why an order is required when Parliament must pass something to create something, but it would be a pretty perverse Government that decided to follow that route to close a harbour when it currently can do that by ministerial order without bringing the matter before Parliament. In the circumstances, it would create completely unnecessary bureaucracy to bring the matter back to Parliament. For any Government that was closing a harbour for whatever reason and in whatever circumstances, that would be a perverse decision and against any natural outcome. Let us be relaxed and not build in so much bureaucracy that we start to cause problems for people.
Thank you, Bruce.
Can I ask a geeky question?
Let us deal with question 8 first. I return to the expression “of local application” and the power to amend. It appears that this particular case is slightly different because the word “enactment” is used. In the aforementioned context, that may refer only to UK parliamentary legislation and not to an act of the Scottish Parliament, which would not be an enactment in that context. Has that been considered, and does that cause any problems?
“Enactment” includes an act of the Scottish Parliament. Section 57(1) of the Harbours Act 1964 has a specific definition of “enactment” that includes acts of the Scottish Parliament.
Thank you for that clarification.
My question is on clause 13 and commencement issues. The legislative consent memorandum will give the Scottish ministers the power to commence sections 1 and 6 in relation to Scotland. Commencement powers are not normal—they are probably a bit unusual in making incidental provisions. Why does the Government consider that a power to make ancillary provisions in connection with commencement is required in this case? More specifically, why does the Scottish Government think incidental provision might be required? It would be useful for us to understand that. As I understand matters, that is not the normal way.
It is not. I think that the drafting is not necessarily in line with standard practice in the Scottish Parliament. We would normally attach to commencement order powers the power to make a transitional or transitory provision, including savings. This is a Westminster bill, of course, and what is here includes the power to make incidental provision. I do not imagine that we would make use of that, but we did not consider it essential to go to the extent of disapplying it for Scotland, which we would have had to do if it was not to remain in the bill.
Would that have meant that we would have lost all the other so-called gains because we would have had to reject the LCM?
No. When the bill was being drafted, we could have specifically requested that the power to make incidental provision that is in the commencement provisions should not extend to Scotland, but it did not seem necessary to do that.
It is inconsequential.
Yes.
I have a tiny question. I take it that it is perfectly legal for harbours to exist and operate without any harbour orders of any kind that would be caught by the bill.
That depends what you mean by “operate”. To do the sorts of things that harbour authorities need to do—to regulate traffic and charge—
I was making the simpler point that a harbour does not necessarily need to have a harbour authority.
I think that there are examples of harbours that have no formal harbour authority.
That is all I wanted.
Would that be subject to parliamentary control?
Do you mean running a harbour without a harbour authority?
No. I beg your pardon. I was referring to Bruce Crawford’s question about the commencement powers.
The commencement order that will be made under that power would be laid before the Scottish Parliament.
If members have no further questions, I thank the witnesses and suspend the meeting briefly to allow them to go.