General directions by harbour authorities - Clause 6

36. Clause 6 would amend the Harbours Act 1964 to grant the Secretary of State (and Ministers in Wales and Scotland) the power to designate certain harbour authorities, which would then have the power to issue "general harbour directions" to ships within their jurisdiction. Through local byelaws, some harbours already have this power, but the amendment is intended to standardise provisions and procedures across ports.[50]

37. Ports representatives as well as trade unions have indicated that this is a welcome provision.[51] However, one organisation which had serious reservations about Clause 6 is the Royal Yachting Association. The RYA argued that granting harbour authorities the right to issue general directions could give an "un-elected designated harbour authority […] greater powers to criminalise otherwise lawful activity than [has] a democratically elected Local Authority." This extension of powers could, according to the RYA, result in unnecessary and burdensome controls being introduced by harbour authorities on a piecemeal basis and in an arbitrary fashion, without any proper safeguards.[52] The RYA said that:

The proposed new powers are of general application and could be applied to all categories of vessel, for an indefinite duration, irrespective of the actual circumstances on the water and, at least in part, for reasons that are unconnected with the safety or convenience of navigation.[53]

As a remedy, the RYA proposed that a process for independent adjudication be built into the Bill. An independent adjudicator, appointed in agreement between the parties, would hear evidence from both parties and submit an opinion and recommendation to the Harbour Authority. The Harbour Authority would then make the final decision, having regard to the opinion of the adjudicator.[54]

38. Mr Bracewell of the Local Government Association countered the RYA's arguments, indicating that general directions should never be made without consultation. He said that he could not imagine cases where agreement could not be established.[55] The draft Bill requires a harbour authority, before giving harbour directions, to "consult such representatives of users of the harbour as the authority think appropriate".[56]

39. The UK Major Ports Group supported the provision in Clause 6 in principle, but suggested that conferring the power on all commercial ports automatically would be "a more efficient legal route and save administrative cost for ports and the Department."[57] We support the provision in Clause 6 for harbour authorities to be able to issue general directions. However, we see no reason why this power cannot be extended to all competent harbour authorities, creating a uniformity of powers and avoiding bureaucracy.

Closure of Harbours - Clause 9

40. The Harbours, Docks and Piers Clauses Act 1847 includes a provision that places a duty on a harbour authority to keep the harbour open to all persons for the shipping and unshipping of goods, and the embarking and landing of passengers, subject to payment of harbour dues.[58] Currently, a harbour authority that wishes to rid itself of its functions and duties must either promote a private Bill in Parliament or find someone willing to take the harbour over. The Government proposes to give the Secretary of State a power to permit (or require) a harbour authority to cease maintaining a harbour (if, for instance, it is in financial difficulties) and thereby effectively allow that harbour to close. The Government says that the power would usually be exercisable upon application made to the Secretary of State in writing by the harbour authority for the harbour in question.

41. This Clause attracted few comments, though both the Chamber of Shipping and Nautilus were concerned that the Secretary of State should not act simply on the request of Harbour Authorities themselves. Nautilus was concerned that it should be possible for the Secretary of State to close a port against the will of the Harbour Authority in cases where "it is unwilling to implement safety measures. Whilst the proposal is not so relevant for major ports, it may certainly be of importance in the case of isolated wharves and smaller harbours."[59] The Chamber of Shipping viewed the clause from a very different angle, arguing that unwillingness on the part of a Harbour Authority to maintain a port and fulfil its obligations should not be a reason to close a port. The Chamber argues that:

the power should be limited so that it can be used only when there is no current or foreseeable demand for the port from ships, and not simply when the harbour authority no longer wishes to maintain it and prefers to sell it for redevelopment.[60]

42. We accept the need occasionally to close a harbour which is no longer used, and agree with the powers conferred on the Secretary of State by Clause 9 of the draft Bill. It is important that this power is exercised with caution, allowing the closure of a port only where it is genuinely no longer needed, and where there is no prospect of a revival. The Secretary of State must consult potential users of a port before agreeing to its closure.

51   Ev 34 [British Ports Association]; Ev 35 [UK Major Ports Group]; Ev 39 [Broads Authority]; Ev 41 [Nautilus UK] Back

52   Ev 48 Back

53   Ev 49 Back

54   Ev 49-50 Back

55   Q5 [Mr Bracewell, Local Government Association] Back

56   New section 40B proposed to be inserted by Clause 6. Back

57   Ev 35 [UK Major Ports Group] Back

58   1847 (c. 27), s. 33 (Harbour, dock, and pier free to the public on payment of rate) Back

59   Ev 42 [Nautilus UK] Back

60   Ev 52 [Chamber of Shipping] Back