Harbours Bill [HL]

– in the House of Lords at 9:08 pm on 5th March 2003.

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Photo of Lord Berkeley Lord Berkeley Labour 9:08 pm, 5th March 2003

My Lords, I beg to move that this Bill be now read a second time.

The Bill has the support of the ports industry, which has identified an anomaly in the Harbours Act 1964. The Bill is intended to remove that anomaly. It will essentially achieve a much needed degree of deregulation for the ports industry by applying the same rules to the maritime sector as are applied to other transport modes.

The background to the Bill requires some technical explanation. Sections 14 to 16 of the Harbours Act 1964 empower the Secretary of State to make harbour orders. Such orders are required, for example, to establish or reconstitute harbour authorities or to confer on existing harbour authorities additional powers to construct harbour works or to manage their harbours.

The procedure for making harbour orders is set out in Schedule 3 to the 1964 Act. Schedule 3 provides for objections to the making of a proposed harbour order to be sent to the Secretary of State within a six-week period from the time the proposal is advertised. Where such an objection is made and not withdrawn, the Secretary of State must—and I emphasise "must"—hold a public inquiry to consider the proposal unless he determines that the objection is trivial or frivolous. The result is that a public inquiry must be held even if there is only one outstanding objection, unless the Secretary of State determines that the objection is trivial or frivolous. Secretaries of State rightly rarely categorise objections as such. An objection made by a local resident who expresses a concern is unlikely to be determined to be trivial or frivolous.

In a number of cases, a single outstanding objection to an order has necessitated the holding of a public inquiry, which clearly gave rise to considerable expense and delay. I shall briefly quote two examples. The first is the Felixstowe dock and railway harbour revision order. Noble Lords will know that Felixstowe is the largest container port in the United Kingdom and the fourth largest in Europe. The port applied in October 2000 for a harbour revision order to authorise major new harbour works of considerable local and national significance. By November 2001, all but one of several objections had been withdrawn, following provision of appropriate assurances and undertakings to bodies such as the Environment Agency and the Royal Society for the Protection of Birds. As a result of a single outstanding objection, lodged and maintained by a local resident, a public inquiry took place over seven sitting days, resulting in the making of the order being delayed until October 2002, which was nearly a year later. In his decision, the Secretary of State stated:

"The project should proceed for imperative reasons of overriding public interest".

The industry's view is that if the Secretary of State had been able to deal with the objection by written representations, as provided for in the Bill, it is likely that the order could have been made in or around February 2002, avoiding considerable delay and substantial costs.

My second example is the Whitehaven harbour revision order 1996. In 1995, the Whitehaven harbour commissioners applied for a revision order to authorise the construction of a lock and other harbour works as a key part of an urgently needed scheme for the regeneration of Whitehaven town and the area. Objections were made by holders of harbour bonds, which had been issued in the 19th century to finance port expansion. The bonds had virtually no market value. By the time of the order, Whitehaven harbour was very little used and heading towards insolvency. However, the bond holders objected to the order on the ground that the effects of the work would undermine the commercial value of their bonds. Following discussions with the Whitehaven harbour commissioners, three bond holders refused to withdraw their objections, in the knowledge that their action would lead to a public inquiry, therefore resulting in a delay that would have led to the loss of European Community funding.

As a condition of withdrawing their objections, they required that their bonds should be purchased at considerably more than their minimal market value. To resolve the issue, a number of private individuals contributed money to purchase the bonds and the order was eventually made in June 1996.

In that example, the current system was used to hold to ransom a public project of considerable local economic significance. The situation would not have arisen if the Secretary of State had had the power to consider their objections by means of written representations. The port industry feels strongly that the present position is unsatisfactory and that the Harbours Act 1964 requires amendment. I understand that there is no proposal to include in the next parliamentary Session a transport Bill that could be a suitable vehicle for such an amendment. I also understand that officials have given no indication of when parliamentary time could be found for a government Bill to achieve this. Hence this Bill tonight.

The Bill would bring the procedure for the making of harbour orders into line with the procedures for the making of highways or transport and works orders. The Secretary of State would retain a discretion to hold public inquiries in all cases. Where an objection was made by a relevant local authority or by a person whose land was proposed to be compulsorily acquired and who requested a hearing, the Secretary of State would be required to hold either a public inquiry or a public hearing. In other cases, the Secretary of State would have the discretion, instead of holding a public inquiry or public hearing, to deal with the objection by written representations.

Neither the Highways Acts nor the Transport and Works Act 1992 expressly provide that, where objections have been made and sustained and where the Secretary of State has decided to proceed without an inquiry or hearing, he must deal with those objections by means of written representations. However, both those Acts provide that, in such circumstances, the Secretary of State must consider those objections. As a matter of practice, the Secretary of State will consider any further written representations made by the objectors and the applicant to the order when those representations are volunteered or made at his invitation. A similar procedure for written representations would follow on the enactment of the Bill when read with paragraph 19(1)(d) of Schedule 3 to the Harbours Act 1964, which provides that the Secretary of State must consider any objections which are made and not withdrawn.

On the matter of consultation, the RSPB generally supports the Bill, which is most welcome. Its briefing states:

"The RSPB has no objection to mounting strong opposition to port development proposals where we believe that the environmental damage which they will cause cannot be justified, but equally we have no wish to see unnecessary constraints and costs imposed upon the ports industry. That is why we support the Harbours Bill".

The ports authorities welcome that objective view from the RSPB.

Before closing, there are two matters that I should mention. First, the Bill is consistent with the provisions of the Human Rights Act 1998, because it will apply similar measures to other legislation. In the case of a landowner whose land is to be subject to compulsory acquisition by means of a harbour order, his right to require a public inquiry will be maintained.

Secondly, the Bill would appear to extend to Scotland. However, that cannot be so. After the passing of the Scotland Act 1998, harbour matters in Scotland, such as the subject matter of this Bill, no longer fall within the competence of the Westminster Parliament but must be dealt with in the Scottish Parliament. If the Bill is given a Second Reading, an amendment will be proposed in Committee to make it clear that the Bill does not extend to Scotland.

In conclusion, if the Bill is enacted, it will enable the Secretary of State to exercise his discretion in appropriate circumstances to speed up the process for making orders under the Harbours Act. It will reduce red tape and will be welcomed by the ports industry. I ask your Lordships to give the Bill a Second Reading. I commend the Bill to the House.

Moved, that the Bill be now read a second time.—(Lord Berkeley.)

Photo of Lord Greenway Lord Greenway Crossbench 9:17 pm, 5th March 2003

My Lords, I wish to support the noble Lord, Lord Berkeley, in the aims behind this admirably short Bill. I should declare an interest, having worked as a consultant in the ports business for some 12 years, although I have not worked in any UK port in the past two years. As a result of that work, I am fully aware of the frustrations that some ports have had over the years in relation to objections with their harbour revision orders.

The Bill is concise in its aims and will simplify procedures for ports. I hope that its use of alternative ways in which to deal with objections, through public hearings or written representations, will get round the ridiculous situation of having to have enormously costly and lengthy inquiries for even one objector.

I recall that some years ago, with another Bill relating to ports, the objections came more from another place. That Bill was held up for a considerable time by Members filibustering in another place all night and even, at one stage, imitating bird calls to each other.

As the noble Lord said, Felixstowe is a major container port. It has been extremely successful, but it might not have been as successful if your Lordships had not thrown out a Bill in 1979 which would have brought it into the dock labour scheme. It survived without union labour and went from strength to strength. Your Lordships played some part in the success of Felixstowe.

The trade associations in the port industry are very much behind the Bill. I wish it well and sincerely hope that the Government give it a fair wind.

Photo of Lord Bradshaw Lord Bradshaw Liberal Democrat 9:19 pm, 5th March 2003

My Lords, I support the Bill. I think that it is a useful and necessary deregulatory move and am pleased to associate these Benches with it. The opportunities available to objectors of a minor nature, or who simply use various ruses to delay very necessary works after exhausting the normal democratic channels, need to be expunged as much as possible from the statute book. Very many schemes, not just in ports, suffer from the problem.

I am pleased to support the Bill and will support other moves to allow the overruling of individuals or small groups of objectors to harbours and other schemes that have clear public benefits and have gone through the normal democratic channels.

Photo of Lord Luke Lord Luke Conservative 9:20 pm, 5th March 2003

My Lords, we are very grateful to the noble Lord, Lord Berkeley, for sponsoring the Bill on behalf of the British Ports Authority and the United Kingdom Major Ports Group. As he said, the aim of the Bill is to streamline procedures for handling objections to orders concerning harbour works. It is a technical measure designed to give the Secretary of State more discretion in deciding whether to hold a public inquiry when objections to a particular scheme are made, or whether to allow a hearing or receive written representations instead.

The Bill is designed to bring harbour procedures into line with more recent arrangements under the planning system, namely the Town and Country Planning Act 1990 and the Transport and Works Act 1992. Those allow hearings and written representations as alternatives to a public inquiry. That avoids unnecessary formality and expense, unless of course the Secretary of State feels a public inquiry to be the appropriate way forward. Here I should like to ask the noble Lord, Lord McIntosh, whether the Government believe that the proposed changes in the Bill are likely to be compatible with the forthcoming planning Bill.

I have a few more questions for the noble Lord, Lord McIntosh. I am very glad to hear from the noble Lord, Lord Berkeley, that the RSPB is happy with the Bill as it stands. Have any other agencies concerned with the environment expressed views on the Bill? I am thinking of CCW, CADW and English Nature. As I am sure that the Minister is aware, environmental issues affecting estuaries and harbours have been the cause of great concern in the recent past. I would like to be reassured that they will always be taken into account when harbour orders are in contemplation.

The comments of the noble Lord, Lord Berkeley, indicate that he is aware of the position with regards to Scotland. As the Scottish Parliament now has responsibility for these matters, is the Scottish Parliament about to introduce a Bill to bring the situation there into line with the one that will prevail in England and Wales when this Bill is passed?

We on these Benches believe that the Bill is sensible and will make procedures for harbour orders more efficient and probably more cost effective. We therefore support it.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords) 9:23 pm, 5th March 2003

My Lords, I congratulate my noble friend Lord Berkeley on introducing this modest Bill and on the universal approval that he has gained for it. The Government support the Bill's objective. That objective is to streamline the procedure for handling objections to harbour orders. It is a simple technical measure which will bring harbour order procedures into line with more recent arrangements—for example, under the planning system.

Harbours in this country are managed by harbour authorities, which act as statutory undertakers, with powers conferred originally by private Acts of Parliament. The powers have been used to authorise the original construction of the port and to enable the harbour authority to regulate the safe and efficient use of its facilities. Harbour authorities are, of course, subject to a body of general legislation but their local powers remain important to the operation of our ports.

The harbour authorities need to be able to revise their powers from time to time to keep them up to date and to meet new needs. It may be appropriate to change the constitution of a harbour authority, or to move the harbour limit, or to update the powers it has to make by-laws and other local regulations.

New powers are also needed to authorise harbour works—mainly because works in tidal waters interfere with rights of navigation; and because the authority's regulatory powers have to be statutorily extended to any new facilities. A harbour empowerment order is occasionally proposed to create a new harbour authority.

Until 1964, a harbour authority's statutory powers could be revised only by private Act. The Harbours Act 1964 created a procedure to make harbour orders. These are statutory instruments made by the Department for Transport. The 1964 Act may have seemed modern in its day, but it has been overtaken on best procedural practice—notably by the Transport and Works Act 1992. This Bill would bring it up to date.

The procedure for making a harbour order begins with an application from the harbour authority, or would-be harbour authority in the case of an empowerment order. Applications are advertised so that people have a chance to object or make representations. That is important, particularly in the light of the question put by the noble Lord, Lord Luke, as to who has been consulted. It is entirely right that there should be this opportunity; and that it should be accessible.

The 1964 Act makes provision for a public inquiry. It states that an inquiry has to be held if there is just one outstanding objection, unless that objection is frivolous or trivial.

Inquiries are, however, disproportionate in some cases. Harbour authorities can be deterred from making changes by the delay, uncertainty and cost. It is hard to plan a proposal without knowing whether just one objection might lead to an inquiry.

Inquiries are inaccessible to some objectors—especially ordinary members of the public, who would often find a hearing or written representations less daunting. Only highly organised and well resourced objectors can afford expert representation—although that is not always a good use of their funds. If the promoter is a large enterprise, there is a risk of lack of balance in the way opposing cases are presented. Even when objectors are well resourced and able to afford representation, it is not necessarily a good use of their money.

The Town and Country Planning Act and the Transport and Works Act allow hearings and written representations as an alternative to an inquiry. I acknowledge the point made by the noble Lord, Lord Bradshaw, that this does not always work as quickly, efficiently and fairly as it should do. But these procedures give objectors a full right to be properly heard, but without the formality and expense of an inquiry where that is not appropriate. I am pleased to see that the Bill preserves the right to an inquiry where land is compulsorily acquired or when the objector is a relevant local authority. That is what the Transport and Works Act does. It is very important in terms of satisfying the Human Rights Act.

A preliminary regulatory impact assessment shows that the change would cost nothing and would benefit ports (and objectors) of all sizes. We now have to move with the noble Lord, Lord Berkeley, to work up a full regulatory impact assessment and, from that, move on to a wider consultation exercise—not with the objective of delaying matters but because there are other bodies apart from the Royal Society for the Protection of Birds which may have a general interest in these matters. A wider consultation exercise would include the bodies to which he referred.

I can assure the House that the Secretary of State would not use the new discretion to avoid inquiries where they need to be held. There are plenty of precedents from the planning system to guide us on when discretion should be exercised. I see no reason why the proposed planning Bill should make any change to that or cause any difficulty.

So far as concerns Scotland, the noble Lord, Lord Berkeley, has made it clear that he will withdraw any potential references to Scotland. I do not know what the Scottish Executive will seek to do and, strictly speaking, it is not for me to answer. But we recognise that the Bill would make a useful contribution to our policy of streamlining planning and related procedures, and we wish the Bill well.

Photo of Lord Berkeley Lord Berkeley Labour 9:29 pm, 5th March 2003

My Lords, I am grateful to all noble Lords who have spoken and welcomed the Bill. I am particularly grateful to my noble friend Lord McIntosh for his demonstration of government support which is most welcome.

I shall not be drawn into discussing the dock labour scheme at Felixstowe of some 25 years ago. I agree with the comment of the noble Lord, Lord Bradshaw, that people may delay projects. Nevertheless, consultation is still necessary.

I cannot comment on the Transport and Works Act 1992 as regards Scotland, but certainly it does not apply to railways in Scotland, and I do not think that it applies to anything else. If one wants a railway in England, one usually builds it according to the provisions of the Transport and Works Act. However, in Scotland the first private railway Bill has been introduced for the Stirling and Menstrie line. I think I am correct in that regard. However, as I said in my opening speech, I intend to table an amendment to remove any reference to Scotland for the reasons I gave.

I am grateful for the comments of my noble friend Lord McIntosh about the regulatory impact assessment and the fact that the Government are moving quickly towards a full assessment. I certainly agree that there needs to be wide consultation with the organisations that will be interested in the matter and will wish to participate, along with the ports bodies, in consultation to ensure that everyone agrees that the Bill is worth pursuing. As I say, I am grateful for the support of noble Lords who have spoken. I commend the Bill to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

House adjourned at twenty-eight minutes before ten o'clock.