Marine Navigation (No 2) Bill
Agenda item 3 is a legislative consent memorandum on the Marine Navigation (No 2) Bill. Under this item, the committee is invited to consider the powers to make subordinate legislation that the bill will confer on the Scottish ministers. A briefing paper has been provided that sets out the relevant aspects of the bill and comments on their effect.
Clause 1 of the bill will amend the Pilotage Act 1987 to give the Scottish ministers the power to specify that a harbour authority is not a competent harbour authority for the purposes of the 1987 act. The bill’s explanatory notes state:
“Many harbours require ships traversing their waters to use a maritime pilot with appropriate experience, generating additional costs for shipping companies.”
It appears from that statement that the purpose of conferring the power on the Scottish ministers is to permit them to exempt particular harbour authorities from those requirements, which would otherwise be compulsory under the 1987 act.
Does the committee agree to ask the Scottish Government why the powers to remove harbour authorities’ pilotage functions are considered necessary, how it intends to exercise those powers, and why it considers that the requirements of section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010 offer an appropriate level of parliamentary scrutiny?
Members indicated agreement.
Clause 5 will insert sections 40(A) to 40(D) into the Harbours Act 1964. Section 40(A) will confer a power on the Scottish ministers to designate harbour authorities that may give general harbour directions to ships that are within, entering or leaving the harbour. Section 40(B) sets out how harbour directions will be made by harbour authorities designated under section 40(A). Section 40(C) will make it an offence for a master of a ship to fail to comply with a harbour direction without reasonable excuse.
The power to designate harbour authorities for that purpose includes the power to amend or repeal any statutory provision “of local application” that the Scottish ministers think is inconsistent with the power to give harbour directions or unnecessary as a result of the power.
In England and Wales, the exercise of the power is subject to the negative procedure. In Scotland, no procedure is specified. The Harbours Act 1964 is specified in section 30(4) of the Interpretation and Legislative Reform (Scotland) Act 2010 as an enactment to which the requirements of sections 30(1) and 30(2) of the 2010 act are disapplied. The effect is that, since no procedure is specified as applying to the exercise of the power, the order is not required to be laid before the Parliament.
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There is also a technical query on the use of the word “enactment” and the expression “of local application” in identifying the class of enactments that can be modified or repealed. The Interpretation Act 1978 will apply to provisions that are inserted into the 1964 act. In this context, the term “enactment” does not appear to include an enactment that is comprised in or made under an act of the Scottish Parliament.
Does the committee agree to ask the Scottish Government to provide an explanation of the choice of procedure that is applicable to the exercise of the power, particularly as it differs substantially from that applied in England and Wales; whether the restricted definition of “enactment” in the 1978 act is appropriate post devolution; and how the expression “of local application” is intended to operate in Scotland, given that subordinate legislation is no longer classified by reference to that definition?
Members indicated agreement.
Clause 6 will insert new sections 17A to 17F in the Harbours Act 1964. The objective of the provisions is to introduce a process for the closure of harbours by ministerial order. Such orders are not subject to parliamentary procedure and are not required to be laid before the Parliament. It is worth noting that the same aforementioned queries concerning the definition of the terms “enactment” and “of local application” arise in relation to those powers.
Section 54A of the 1964 act applies the affirmative procedure to harbour revision orders or harbour empowerment orders that relate to a national development under the national planning framework or to harbours that are specified by ministers. As the Parliament has specifically chosen to apply the affirmative procedure in relation to the creation of such a harbour, there is a query about whether the closure of such a harbour should not be subject to parliamentary procedure and why such an order is not required to be laid by virtue of section 30(4) of the Interpretation and Legislative Reform (Scotland) Act 2010.
Does the committee agree to ask the Scottish Government to provide an explanation of the choice of procedure that is applicable to the exercise of the power, particularly as it differs substantially from that applied to the creation of harbours of national importance; whether the restricted definition of “enactment” in the 1978 act is appropriate post devolution; and how the expression “of local application” is intended to operate in Scotland given that subordinate legislation is no longer classified by reference to that definition?
Members indicated agreement.
Just for clarity, would a closure be considered temporary before an order comes to the Parliament, or would it be time-restricted? Is there a time bar at all?
Judith Morrison (Legal Adviser)
No. The effect of the order would be to close the harbour.
So the issue will not go anywhere else after the ministerial decision.
That is the question that we are exploring.
Right—thank you for that.
I might be misreading, but the suggestion is that the harbour authority first has to apply for or consent to the order. Whether that is an adequate and sufficient check is another matter, but the issue is not solely up to ministers.
I am happy with that—thank you.
Finally, clause 13 gives the Scottish ministers the power to commence sections 1 to 6 of the act in relation to Scotland. In doing so, they may make provision generally, or for specified purposes, that may include
“incidental or transitional provisions (including savings)”.
It is normal for commencement orders to be subject only to the requirement in section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010 that they are laid before Parliament. It is also common for ministers to seek to be able to exercise ancillary powers in connection with the commencement of provisions. However, it is not normal for those ancillary powers to contain the power to make incidental provision. In the absence of any information generally about the intention behind the creation of the powers, the committee might wish to explore the issue further with the Scottish Government before reaching a view.
Does the committee therefore agree to ask the Scottish Government to explain why it considers a power to make incidental provision in connection with commencement is required; what the circumstances are in which such a power may be exercised; and why no parliamentary control is considered appropriate for such provision?
Members indicated agreement.
Does the committee agree to raise all those questions in oral evidence next week?
Members indicated agreement.