Law Drafting Instructions – Ramp Permits
Amendments to Harbours (Administration) ( Jersey ) Law 1961 and Harbours ( Jersey ) Regulations 1962
Background Advice
· Current legislation may to be too limited for the purpose of controlling market access to passenger services, where Island policy rather than port-related reasons are behind the controls sought.
· It is restricted solely to control of vehicular use of the ramps.
· Service Level Agreements are not currently legally enforceable as part of the ramp permit permission process.
Political Authority
The request to the Law Draftsman to prepare the necessary changes is supported by the attached Ministerial Decision.
The item is listed in the 2007 Legislation Programme as no. 16 and noted as “Highly Desirable.” The programme was endorsed by the States as part of the Annual Business Plan (P92/2006), on 12 September 2006.
Principles to be achieved
The legal ability of the Minister, and where appropriate the Harbour Master on behalf of the Minister, to issue, refuse, revoke or change the terms of a permit, must be crystal clear – there should be absolute confidence that there is firm legal ground to make decisions, whether that ground is operational or related to wider Island public policy needs.
In this regard, the Minister’s powers and the Harbour Master’s operational duties need to be more clearly delineated.
Law Changes
1. Primary Law – Vires - Preamble and Article 4(1)
Preamble -
“A LAW with regard to the policing, control and administration of the harbours of Jersey”
Article 4 (1) –
“ ….. The States may make Regulations for the policing, control, safety and administration of the harbours and territorial waters.”
- The Law Draftsman is requested to ensure the vires is widened so that Regulations may be made to grant or withhold permission and set terms and conditions, on Island public policy grounds, for commercial port or shipping services to use the port.
- This is to be additional to retaining the power to make Regulations “for the policing, control, safety and administration of the harbours …….”
2. Limitations on Ramp Permits - Article 4(2)(a) and Regulation 3(1)
Article 4(2)(a) limits, by the word “vehicles,” the restrictions that can be imposed on the use of a ramp. The reference to a ramp also implies that the scope of the subordinate legislation is to be limited to ramps and not other berths or port operations.
Subordinate Regulation 3, in acting on the powers granted under Article 4, restricts control to ramps and vehicles alone.
- The Law Draftsman is requested to remove these limitations so that the Minister has the power to require all or any commercial port or shipping services to have a permit to operate.
- This will include, but is not to be restricted to, the loading/unloading of freight and vehicles and embarking/disembarking passengers in a harbour or territorial waters of Jersey. Other commercial services, such as stevedoring, could be regulated in this way.
- The requirement for a permit, as referred to in Article 4(2)(a), and Regulation 3(1) should be flexible so that the Minister is not bound to require a permit (nor the Harbour Master to issue one) for all services. It is intended that a sea transport policy would define the type of services and berths requiring a permit.
3. Presumption of an ‘open port policy’ and the Harbour Master’s role
Article 4(2) refers to the Minister. It is intended that the Harbour Master would issue any required permits. This would be subject to the direction of the Minister and in accordance with any States sea transport policy and any specific directions from the Minister. Directions could include, inter alia, those made under article 18 of the Competition (Jersey) Law 2005.
- The Law Draftsman is requested to remove the reference to the Minister in Article 4(2) and again in Article 4(3)(a).
- The title of Regulation 3 of the Regulations should be modified. “Permits for commercial port and shipping services” is suggested.
- The word “Minister” in Regulation 3 subparagraphs (1), (2), (3), (4), (6), (7) & (8) should be replaced with “Harbour Master.”
Regulation 3(3) is silent as to the grounds for refusal, variation, suspension or revocation of a permit. However, it allows very broad grounds for the setting of terms and conditions to be attached.
It is intended that the Harbour Master will refuse, issue, vary, revoke or suspend a permit and impose terms and conditions either (a) on legitimate policing, control and operational safety grounds or (b) in accordance with any relevant States sea transport policy and any specific directions given in writing by the Minister for Economic Development.
(The policy grounds would be wide and would be stipulated, not as part of the Law but within the States sea transport policy or Ministerial directions – reference here should be made to the Sea transport policy and Ministerial Directions section at the end of this paper).
In the absence of a specific direction or policy statement the Harbour Master is to have the specific duty to operate an open port for any commercial port service or shipping operation that meets the required safety and security standards. In such a case, a permit should either not be required or if required should not be unreasonably refused.
- The Law Draftsman is asked to modify the absolute discretion given in Regulation 3(3)(b) and consider how to clarify the remainder of Regulation 3(3) to give effect to these points.
4. Sanctions - Interim measures and changes in existing penalties
Regulation 3(9) offers a single criminal sanction for failure to obtain a permit or of breach of the provisions in a permit.
- Additionally, a legal basis is sought for there to be a duty (in accordance with any States sea transport policy and any specific directions from the Minister), that the Harbour Master will put in writing details of suspected or actual breaches and draw these to the attention of the Minister and the person thought to be in breach. It is requested that a new sub-paragraph be added that makes this explicit, prior to Regulation 3(9).
(The frequency and trigger points for such a written notice from the Harbour Master would be defined in the sea transport policy or any specific directions from the Minister. There would be an expectation that the operator would respond to such a warning with specific proposals as to how he would overcome the shortcomings).
Regulation 3(9) limits the penalty to a maximum of a level 4 (£5,000) fine. This may have been appropriate for certain breaches of the terms of a permit under the existing regime. However, these changes widen the remit within which a permit may be issued or refused. It is felt that a failure to operate without a permit or in breach of its terms could be a major safety or security risk or cause substantial economic damage.
- The Law Draftsman is asked to replace the penalty with an unlimited fine. The Attorney General will be asked to approve this change and it may be necessary to split the offences up so that minor breaches remain subject only to a level 4 fine.
Sea transport policy and Ministerial Directions
NB - This section does not form part of the Law Drafting Instructions.
It is included as background for the Law Officers and Law Draftsman to comment. It is vital that the Minister should have confidence that the matters listed here can legally be included as grounds for the issue, or refusal, setting of terms and conditions, variation, suspension or revoking a permit.
In effect, the Service Level Agreement concept will be incorporated into the terms and conditions attached to a permit.
Aim – to secure year round, long-term, reliable, robust and reasonably priced services of sufficient quality and frequency.
1. Issue of a permit - According to the market and/or route, the policy would be able to stipulate either specifically or in general terms:
a. Service frequency and schedules;
b. ship capacity;
c. ship type;
d. service quality and accessibility including specific customer care requirements;
e. operational reserve capacity (for peak seasons and breakdown);
f. recovery response times following cancellation or reduced services due to mechanical failure or weather.
However, the Minister would not be bound to impose any or all of these.
2. Grounds for refusal of a permit - The grounds for refusal could, inter alia, include policy matters such as:
a. ensuring the sustainability of a year-round service;
b. preventing a predatory entry which may result in price wars and the possibility of damage to or loss of the service;
c. quality and accessibility of the service being proposed; and
d. the economic well-being of the Island and its residents.
It should not be necessary for the Minister to prove these matters, merely that he has reasonable grounds for believing that sustainability is at risk, the service may be damaged or that economic damage may occur.
3. Grounds for revoking or suspending a permit or altering its terms
The grounds for revoking or suspending or altering the terms of a permit should, inter alia, include:
(i) a breach of one or more of the terms and conditions;
(ii) behaviour of the operator that implies or could be reasonably be taken to imply that one or more of the following is likely to occur if the licence is not suspended or revoked:
a. the year-round service will not be maintained;
b. there is a likelihood of price wars and the possibility of damage to or loss of the service;
c. a failure in the anticipated quality and/or accessibility of the service; or
d. the operator owes harbour dues and other charges.
4. Effect of Part 3 (Abuse of a dominant Position) of the Competition ( Jersey ) Law 2005
The Harbour Master may need reassurance that the exercise of the powers is not in conflict with the Competition Law. There are scenarios where Ministerial Direction will be important, such as:
(i) suspending or changing the terms and conditions of an incumbent operator as a result of the entry into the market of a new operator;
(ii) refusal of an operator to enter the market or allowing entry on different terms than may already be in place for an incumbent.
The relationship between these matters and the application of Part 3 of the Competition Law need to be the subject of advice from the Law Officers and JCRA.
______________________________________________________________________________
In summary, the issues raised above would be spelled out in the States sea transport policy or as required in directions issued by the Minister to the Harbour Master. This would allow the Harbour Master to operate a commercial and open port as far as it met appropriate safety standards and was in accordance with Island public policy. It would also provide a public and transparent basis on which decisions would be reached and service levels stipulated.
PGHB
Maritime Compliance/Strategy Manager
16 January 2007
gov.je