Considered in Grand Committee
My Lords, these draft regulations will be made under the powers conferred by the European Union (Withdrawal) Act 2018. The regulations make appropriate amendments to ship and port security legislation following the conversion of EU Regulation 725/2004 into domestic law on exit day.
The UK maritime sector is thriving. We are one of the largest flag states, have one of the largest ports industries and attract significant investment. We lead the world in many areas of maritime business services, education and research. These regulations will make necessary and appropriate amendments to existing ship and port security legislation so that the current regime of protective security on board ships and at UK ports continues to operate effectively following the United Kingdom’s withdrawal from the European Union.
International agreements and European legislation form the bedrock of the well-established regime of ship and port security which currently exists in the UK. The UK is a contracting party to the IMO’s Safety of Life at Sea (SOLAS) Convention. In response to the perceived threats to ships and port facilities following 9/11, the International Ship and Port Facility Security (ISPS) code was adopted under SOLAS. This code established a range of protective security measures which are required to be put into practice on ships and at ports, to protect vital infrastructure and people from acts of terrorism or violence.
The code is set out in two parts. Part A includes a number of mandatory provisions for signature states. Part B contains measures which were intended as guidance for states to consider implementing, aimed at enhancing the security of ships and port facilities. In 2004 the convention and code were given a basis in EU law by Regulation (EC) 725/2004. This regulation provided for the harmonised implementation of the convention and ISPS code both within and across EU member states. It made the provisions of Part A and certain specific elements of Part B of the ISPS code mandatory for implementation within all EU member states. That EU regulation is directly applicable in UK law but was further implemented, in so far as it was necessary to do so, in domestic legislation by the Ship and Port Facility (Security) Regulations 2004.
The 2005 ports security directive further complements the security measures introduced by the EU regulation by expanding the area of a port which is subject to a protective security regime. The directive was transposed into UK law by the Port Security Regulations 2009 and 33 separate designation orders which define the boundaries of ports across the UK. The existing legislative regime ensures that proportionate security measures are in place on board ships and at the UK’s maritime ports.
On withdrawal day, the regulation will be converted into UK legislation. To ensure that the retained EU law functions effectively, a number of changes are required to the text of Regulation (EC) 725/2004, the Ship and Port Facility (Security) Regulations 2004 and the Port Security Regulations 2009. The changes are being made to ensure that the existing regulatory framework of ship and port security continues to operate. The policy behind these changes is that in the UK there should be no practical change to, or noticeable impact on, how the industry operates an effective protective security regime on a day-to-day basis.
Most of the changes which are being made are relatively minor. Some involve the restatement of retained EU law in a clearer or more accessible way to make it fit for purpose within domestic legislation. These draft regulations remove from the legislation inappropriate language or phrases, such as “Member State” or “the Commission”, which will no longer be appropriate, and they also remove obligations placed on the UK by virtue of it being a member of the EU—for example, to provide particular information to the Commission.
The draft regulations also revoke Regulation (EC) 324/2008 which established procedures across the EU for the Commission to conduct inspections of UK ships and ports. Inspections of UK ships and ports by Commission inspectors will be neither required nor appropriate following EU withdrawal, when the Department for Transport and the Maritime and Coastguard Agency will continue to deliver the well-established programme of ship and port inspections to ensure that the required security standards are being met.
The draft regulations also include provision for three more detailed but equally necessary corrections to the existing legislation. First, they amend Article 3 of Regulation (EC) 725/2004 in relation to domestic vessels. The amendment remedies a deficiency and makes the law more accessible by including a specific reference to the categories of domestic vessel that fall within the scope of the EU regulation. This does not alter or impact on current administrative practice or the categories of domestic vessel to which the legislation currently applies or on how the vessels are required to comply with this legislation.
Secondly, the draft SI includes a provision to enable the direct application of future amendments made to the ISPS code. That will allow the legislation to keep in step with future changes and ensure that the UK meets its international obligations. The current text of Regulation (EC) 725/2004 already allows for the legislation to remain in step with any changes that are made at the international level to SOLAS and the ISPS code. The purpose of the amendments made by this draft SI is to allow the retained EU legislation to continue to remain in step with the UK legal framework.
However, as part of this provision, the Secretary of State will have the power to exclude any such change relating to international shipping by the making of regulations—something that is currently done by the Commission—if it is determined that there is a manifest risk that implementation would lower the standards of the UK’s maritime security regime. Any future regulations made in this regard by the Secretary of State would be subject to the negative parliamentary procedure.
Finally, the Port Security Regulations 2009 contain references to Section 2(2) of the European Communities Act 1972, which will no longer be in force on exit day. To fix this deficiency in the legislation and to ensure that the Secretary of State can continue under that legislation to define or amend the boundaries of particular ports, these draft regulations rely on powers within the European Union (Withdrawal) Act to confer on the Secretary of State powers to continue to update or amend that existing suite of legislation. This power would be used, for example, when a port boundary changed or new ports came into existence.
The amendments made to the Port Security Regulations 2009 will ensure that the Secretary of State can continue to discharge all his statutory duties. Not conferring this power on the Secretary of State would effectively create a situation where the existing legislative regime would be frozen in time and any required updates could not be made because the current legislation only provides for this to be done through an order made under Section 2(2) of the 1972 Act.
The power to make regulations conferred on the Secretary of State in the draft regulation will maintain the effectiveness and operability of the current ship and port security legislation following EU withdrawal. The power will ensure the continued discharge of the Secretary of State’s existing obligations as set out in the Port Security Regulations 2009, and will be exercisable in the same manner and subject to the same conditions as prior to EU withdrawal.
Changes which are made to this legislation will be subject to the negative parliamentary procedure as they were before when the changes were made under Section 2(2) of the European Communities Act 1972. The consequence of not having this power is that the existing port security regime will cease to operate effectively following EU withdrawal, which could present risks to security.
In conclusion, the draft regulations are intended to make changes which will ensure that the current legislative regime for ships and ports is able to operate effectively and continues to meet the UK’s maritime security requirements following EU withdrawal. I beg to move.
I thank the Minister for her explanation. The EU regulations behind this provide a standardised regime of protective security for port facilities and the surrounding area, and this SI also covers inspections. It replaces the EU system with a UK system that mirrors the EU one, and in doing so, there is one crucial change: it removes the obligation to provide information to the European Commission. I am sorry to ask again: how will we co-ordinate and share information with the Commission in the future?
The SI says that the MCA will continue to carry out inspections to ensure that ships and ports meet required security standards. Can the Minister say who will set down those standards and require them in the future and how we will align them internationally so that our standards are as good as those of the rest of the world? Since this is an attempt to mirror the EU, how will the Government adapt to changes that the EU makes so that we do not put ourselves at a disadvantage with our current EU partners?
Can the Minister also say what liaison there has been with the devolved Administrations on this? It is not clear from the Explanatory Memorandum. The devolved Administrations have an important role in port administration. We do not want to confuse people totally; the idea that you would have a very different set of standards if you put into the port of Holyhead rather than the port of Liverpool would be deeply unsatisfactory and confusing. The SI gives the Secretary of State power to amend port security regulations by the negative procedure, and the Minister drew attention to that. However, perhaps I did not hear correctly or fully; could she say why the affirmative procedure is not being considered?
The EU can block amendments to the ISPS code if they might lower maritime security standards. This power is now given, in this SI, to the Secretary of State, once again by the negative procedure. We do not want to see lower standards. I am concerned about the danger that we might get out of step with the EU on the highest standards which are set by it and that we might do so simply by default. That is because the Secretary of State would exercise the power through the negative procedure and we would not be given the opportunity to scrutinise it.
This is a serious issue as regards safety and it is important that we are given the opportunity to scrutinise it. I personally would prefer the affirmative procedure, but I will listen carefully to what the Minister has to say.
My Lords, once again I thank the noble Baroness for introducing this instrument. I have subjected it to my standard test: is it the minimum policy change required? I also have to admit that I did not understand the overall framework, but that is my fault. I know about aeroplanes and trains, but the sea is a mystery to me. What I have picked up from the instrument is that SOLAS with its ISPS code is an international convention. Is it the case that the international body hands down specifications and requirements that it has previously put through the EU and in the future will make directly to the UK? Are such directions and recommendations mandatory for the UK except as excepted by this instrument?
My Lords, I thank noble Lords once again for their consideration. As with all of these SIs, our EU exit is not going to mean that co-operation with EU member states on matters of national security will cease. We will continue to work with the EU and our international partners where appropriate on all matters relating to maritime security.
As regards the devolved Administrations, port and ship security is not a devolved matter, but as the noble Baroness has pointed out, there are ports across the United Kingdom so we have engaged with the devolved authorities in Scotland, Wales and Northern Ireland on the proposals in this draft SI and they have been supportive of them.
I turn now to SOLAS and the ISPS code. The UK is a contracting party to the Safety of Life at Sea convention, which is an international convention. The International Ship and Port Facility Security code was adopted under SOLAS. That code has established a range of protective security measures which should be put into practice at ports. Following that, the EU regulation made the provisions in Part A and specific elements in Part B mandatory for all member states, which I went through in my opening speech. Following the conversion of EU law into UK law, they will be directly applicable.
Perhaps I may ask a question as a point of clarity. I have some trouble in seeing what the role of the EU is now if SOLAS hands down a set of rules and we are a contracting state. Are we not required to do that by virtue of being a contracting state whether the EU is there or not? The only role that emerges from this is the ability to reject a rule if it comes under the conditions set out. That was previously exercised by the EU but in future it will be exercised by the Secretary of State. I do not see, other than in a role of co-operation, what the EU’s role is now. I do not see what “taking it away” actually means.
I suppose the role of the EU is that we currently implement the requirements under EU law. Following the withdrawal Act we will implement them under UK law rather than EU regulation. The standards will stay the same: the international standards will automatically go through legislation. We will accept the standards apart from the exception that the noble Lord pointed out.
The noble Baroness asked about negative and affirmative procedures. The negative one is appropriate because the regulations can be made only to prevent standards of security being lowered by the international amendment.
The existing legislative regime for the security of ships in ports, as I said, was based on UK regulation and the EU regulation-implemented parts of ISPS and the SOLAS convention. After withdrawal, all existing European legislation that is currently applicable will become part of the UK statute book.
I hope that I have managed to address the points made by noble Lords but if have failed to do so I will follow up in writing. Perhaps I will follow up in writing just to set out more clearly the exact relationship between the SOLAS convention and the UK and further to clarify the negative procedure point.
The current legislative and protective security regimes operate effectively and the draft regulations will simply make appropriate changes that will become the retained suite of protective ship and port security legislation when the UK exits the European Union. I hope that noble Lords will join me in supporting these regulations. I beg to move.