AMENDMENT OF HARBOURS ACT 1964 (Hansard, 20 February 1992)

§ Mr. Spearing
I beg to move amendment No. 122, in page 38, leave out lines 32 and 33.
Schedule 3 hangs on clause 59 and relates to an entirely different matter. We have shifted from tramways and railways to the much more ancient travel facility—the harbour. There are about 600 of them around our coast and many are relatively small. Most harbours were important to their regions years ago, but the change in shipping techniques has often left them to inshore fishing or perhaps leisure use.
The powers with which I am concerned are contained in schedule 3. The Bill transforms section 14 of the Harbours Act 1964, which enabled the then Minister of Transport to change harbour constitutions. Many of those harbours were entreched in Acts of Parliament of long ago. Some small ports obtained their own Acts of Parliament, many of them unique and highly localised, with a good deal of local loyalty and concern.
There was some contoversy over the passing of section 14 because it allowed the then Minister to change the constitution of those harbour boards by statutory instrument, even when those harbours had been established by an Act of Parliament. The provision was not confined to small harbours. The constitution of the Port of London Authority engaged the House in many debates between 1906 and 1910. Two or three long Second Reading debates took place on the establishment of the Port of London Authority. Its constitution was changed more or less in secret overnight by a statutory instrument. Therefore, in the past, harbour revision orders have not been used just for small ports.
Schedule 3 changes those powers. It is legislation by reference to section 14 and it enables the Secretary of State to issue a statutory instrument that closes part of the harbour, reduces the facilities available in a harbour, or disposes of property not required for the purposes of a harbour. As I said in Committee, closure of part of a harbour could mean the closure of as much as 80 or 90 per cent. It could effectively close 100 per cent. of a harbour.
568 Indeed, it could do much more, because schedule 3, paragraph 1(4)(c) states: for the words 'repealing and amending' there shall be substituted the words 'excluding or modifying any provision of any Act or of any instrument made under any Act (including this Act) and for repealing'.". In other words, it gives the Minister the power to modify not just harbour Acts but any Act for any purpose and, in this respect, it is related to a harbour.
I take exception to that provision, because it transgresses the principle that an Act of Parliament should be amended only by another Act of Parliament. If it is contentious, it should be debated as art Act and not smuggled through in a statutory instrument, still less one that has no powers of annulment and is not even subject to an affirmative resolution. Here, we have that in extenso.
Amendment No. 122 seeks to delete the power to dispose of property that is not required for the purpose of the harbour. As the Minister has powers to close virtually all the harbour—there is no limitation on his power in that respect—he also has the power to dispose of property around the harbour. Such places are often of considerable scenic beauty and local amenity, are much prized and of high value. I do not object to the fact that the provision includes the power to change the facilities in a harbour for vessels that are not just sea-going ships, which is the original definition. Subsection (2) says: there shall be added the words 'or in the interests of the recreational use of sea-going ships' Although those small harbours can be closed, they can also be changed to function as marinas. As you, Mr. Speaker, know, as you were in the House at the time, marinas can sometimes be controversial. I remember the legislation on the Brighton marina, which surged to and fro through the Chamber like a wave for two or three Sessions, and provoked highly controversial and emotional speeches.
I do not say that the powers will be given to 600 Brighton marinas, but they will be given to about that many small ports and harbours throughout the country. People believe that the rights and usages of such harbours —usually of high civic value—are entrenched in Acts. If enacted, the Bill will sweep those away and give the Secretary of State enormous powers that I do not believe he should have. Therefore, I hope that he will explain why he wants that power, which I do not believe the House should give him.

§ Mr. McLoughlin
The hon. Member for Newham, South (Mr. Spearing) dealt partly with the next two groups of amendments, to which I shall come shortly. I do not believe that his argument is as weighty as he might imagine.
As I said in Committee, an order cannot provide for the complete closure of an harbour or enable the authority to get rid of its statutory function. The Minister must be convinced that he ought to give powers to dispose of the land in the interests of the harbour. The Bill changes nothing in principle, and I ask the hon. Gentleman to withdraw the amendment, which would merely leave the 1964 Act in its present confusing state, which would not benefit anyone.
Mr. Spearing: I accept that my speech strayed on to amendment No. 123, but I do not accept the Minister's explanation. He said that he cannot complete the closure of a harbour, but I never said that he could. I said that the Bill virtually gave him the powers to do so if he so chose.
569 We all know that harbours are viable only if certain facilities are available and fully used. I cannot withdraw the amendment, but no doubt the Minister will try to negative it on the voice.

§ Mr. Spearing
I beg to move amendment No. 123, in page 38, leave out lines 41 to 43.

§ Mr. Speaker
With this it will be convenient to take amendment No. 124, in page 39, line 8, leave out sub-paragraph (3).

§ Mr. Spearing
I have already partly covered this point, as it related to amendment No. 122. However, the amendment also covers an equally stringent provision contained in paragraph 2(3) of schedule 3 where, in relation to the original legislation—the ports and harbours orders— after the words 'any other enactment' there shall be inserted the words 'and provisions for excluding or modifying any provision of any Act or of any instrument made under any Act (including this Act)". For the reasons I gave a few moments ago, I cannot believe that it is right. Therefore, I hope that the Minister will give us an explanation for the inclusion of paragraphs I (4)(c) and 2(3) in schedule 3. I do not believe that he should have those powers.

§ Mr. Cryer
Why does the word "excluding" replace "repealing" and the word "modifying" replace "amending"? I suppose that the power will no longer enable the Minister to repeal a section of an Act, but he will be able to exclude a section of an Act from an order that he is making. It is not very clear. I think that paragraph 1(4)(c) of schedule 3 means that his powers will be slightly reduced. Will the Minister confirm that, and state why the section is being retained?

§ Mr. McLoughlin
Section 14(3) of the Harbours Act 1964 provides for inclusion of provisions repealing or amending provisions in local Acts. Paragraph 1(4)(b) widens the power to enable the order to disapply or modify the application of general statutes but not to repeal or amend them. Harbour revision orders, unlike private Bills, cannot be used to modify or disapply provisions in general Acts or subordinate legislation of general application except in special cases such as section 43(3) of the Docks and Harbours Act 1966.
570 Paragraph 2 makes similar provision for harbour empowerment orders under section 16 of the 1964 Act. Section 16 did not, however, provide for the repeal of the amending of local Acts that section 14 did. Because it is by nature a harbour empowerments order, it sets up a harbour authority for an area where there was previously no harbour authority and no local legislation relating to harbours.
The commonest example of this application of general statutory provisions in private Acts relating to harbours is the disapplication of General Development Orders. Similarly, for the purposes of harbour revision orders it may be preferable to deal with planning authorities about the development as a whole instead of relying on GDOs for part of the planning permission or orders.
The effects of paragraphs 1 and 2 will be to give greater flexibility, especially where part of the proposed development is subject to normal planning permission. I hope that that reassures the hon. Gentleman.