Posted: April 25th, 2024

The Role of Parliament in Shaping UK Maritime Legislation over Time

The Role of Parliament in Shaping UK Maritime Legislation over Time

2. Historical Development of UK Maritime Legislation
It can be seen that throughout these stages, UK maritime law was shaped by a variety of different internal and external influences. However, at no time has the nature of UK maritime legislation been determined solely by what would have been perceived as exclusively ‘maritime’ interests. This is in contrast to other well-established maritime nations, such as the US, where a clear distinction has often been drawn between maritime law and general civil law. The UK’s legislative approach has traditionally been to incorporate maritime-specific laws into a general legislative framework encompassing all aspects of law and commerce. This approach has been the result of an interactive process between UK parliament and shipping industry stakeholders, through which decisions were made on whether or not to apply rules specific to maritime affairs or utilize existing laws more generally.
The history of UK maritime legislation and its influence upon the development of UK maritime law can be seen to have passed through several key stages. These stages have been defined by particular influential events or periods through which the process of lawmaking received its stimulus or direction. The first stage was characterized by the influence of customary maritime law upon UK legislature. The second stage involved the introduction and assimilation of international maritime conventions, which reflected an increasingly globalized maritime industry. The third, most recent, stage has been defined by a significantly expanded level of EU involvement in UK maritime lawmaking.
2.1. Early Influences on UK Maritime Legislation
Although it is difficult to pinpoint exact periods when foreign law first began to influence English maritime law, a convenient starting point is the Norman Conquest of 1066. An example of early legislation deeply influenced by foreign law is the Ordonnance de la Marine, issued in 1215 by King John. This was largely a ratification of contemporary Mediterranean maritime statutes and embodied the king’s desire to imitate the administrative and legal institutions of the Kingdom of France, at a time when much of his continental territories had been lost. In order to secure the opening of a western front to the Hundred Years War, King Edward III later secured from his successor Vassal King David II of Scotland the release of merchant ships and goods taking passage to Gascony and Aquitaine from the threat of Scottish corsairs and reprisals on acts which were later embodied into English and Scottish legislation. Later, the revolt of the American colonies from British rule dealt a severe blow to the British mercantile economy and vested interest in colonial trade laws at that time and further contributed to the influence of foreign law, particularly American legislation, on UK maritime law.
Despite the limited capacity of medieval England’s political institutions to enact legislation and ensure its enforcement, maritime activity remained the primary means of entry for foreign influence upon English law, right up until the beginning of the 20th century. This was largely due to the fact that the English common law took almost no interest in the native law of the sea. It considered the sea as part and parcel of England and applied the same law there as on shore. Factors such as increased trade with continental Europe and the legal, social, and geographic continuity of the Kingdoms of England and Great Britain with the rest of the British Isles have resulted in a steady stream of foreign laws and practices becoming an integral part of UK maritime law. These early foreign influences, which were not restricted to legislation but also included the reception of international law and customs, have played a significant role in shaping the unique and diverse body of UK maritime legislation.
2.2. Key Maritime Acts and their Impact
The 19th and 20th centuries were the highwater mark of legislative reform in respect of the United Kingdom’s maritime interests. In its earlier stages, maritime legislation tended to be designed largely to meet a national emergency such as the threat of invasion or to develop the royal dockyards and merchant shipping, and bore little relevance to the development of a policy of benefit to the economic necessities of a developing nation. This position began to change in the mid-19th century when the mercantile marine was becoming the largest in the world, and by the middle of the 20th century, the volume of legislation had become so large that a consolidation measure became necessary. This was enacted in the form of the Merchant Shipping Act 1894 (MSA), which formed the foundation of much of the subsequent legislation and remains in force to this day subject to amendment. Unfortunately, the passage of the MSA was little more than an exercise in consolidating existing statutes, and there was no great improvement as to the approach of the legislature to future maritime legislation. This was a far cry from 1906 when the UK was host to an international conference that saw the agreement of an international code for the safety of ships. The measures intended to give effect to this code were far-reaching and influenced maritime law throughout most of the 20th century, this being a distinct/confident move to take a position as a leading maritime nation.
The fundamental change in approach came in the late 20th century with the implementation of the EEC policy that affected all of the member states’ maritime legislation. This began with the giving of assent by the UK to the European Communities Act 1972, which bestowed domestic effect on EC Regulations and Directives and implied that no future Act would be deemed to be inconsistent with EC law. This had far-reaching consequences since that date and culminated in the radical restructuring of the UK’s maritime safety law and the UK becoming party to the UNCLOS with two distinct Acts that came about with a view to causing long-term improvements in the UK’s maritime policy.
2.3. Evolution of Parliamentary Involvement in Maritime Legislation
Initially, all laws had to have the consent of the monarch. However, the first statute still in force today was the repealing of the need for Royal Assent in 1547 (1 Edw. 6 c.12) on the grounds that too many bad laws were being passed. This did not immediately result in increased parliamentary involvement. During the early 17th century, the increase in trade and shipping activities during the reign of James I led to an increase in negotiations with other states to agree on laws for the regulation of sea and shipping activities. These agreements were negotiated by the king in council and took the form of treaties, still bypassing parliamentary involvement.
To examine the history of maritime law in the UK, it is not only necessary to consider the early influences and key maritime legislation, but also how these laws were created and enforced. It is widely acknowledged that the UK’s legal system has come a long way since its original compilation in early statutes such as the Black Book of the Admiralty. Primarily, it is the changes in the political system and a move towards increased parliamentary involvement in law-making that have had the most impact on the UK’s maritime law.
3. Contemporary Influence of Parliament on UK Maritime Legislation
Contemporary parliamentary procedure is a network of activities with overlapping functions crucial to the implementation of legislation. At each stage, the concepts of legislation, scrutiny, and representation are evident but with different priority and purpose for the topic, hence the same activity will fall under a different political function depending on the stage of procedure for a specific issue. To understand how modern Parliament represents a maritime constituency and its interests, one must first assess its ability to shape legislation and its understanding of the impact of that legislation on the constituency. In theory, modern MPs are more executive in that they engage with the legislation and seek to influence it, rather than purely being reactive to specific concerns of the constituency. The process of engaging with legislation involves MPs presenting persuasive arguments to ministers to attempt to change policy, however, the main method of influencing legislation is through the use of raising its concerns with an early day motion.
Parliamentary and legislative theory has evolved significantly over the past decade, leading to a more democratic and inclusive parliamentary process. Contemporary parliamentary procedure idealists believe that Parliament is more effective in fulfilling its three political functions consisting of legislative, scrutiny, and representation. To assess the validity of this statement in regard to maritime legislation, one must understand the contemporary procedures present within Parliament. The following discussion will examine the roles of the two broader political functions of ‘scrutiny’ and ‘representation’ in the context of contemporary parliamentary procedure and assess the effectiveness of Parliament in representing the interests of the British electorate and influence of their maritime legislation.
3.1. Parliamentary Committees and their Role
A further example of scrutiny committees looking at maritime legislation is seen through the work of the Merits of Statutory Instruments Committee, looking at an order for the training and certification of seafarers and relating it to the political agreement on the Directive “Maritime Labour Market”. This form of investigation is detailed and focuses on the implementation of the SI and its proposed effects on the associated policy.
The UK’s practice of involving itself in international conventions by ratifying and implementing them into domestic legislation has meant that much of UK maritime legislation is made by statutory instrument and not primary legislation. Statutory instruments (SIs) do still pass through parliament and have the highest form of scrutiny when compared to other forms of legislation. SIs are usually scrutinised by scrutiny committees. Examples of maritime-related SIs that have gone through this process include the transport and European communities measures concerning seafarers. This SI was scrutinised by the Joint Committee on Statutory Instruments and the European Union Committee. The process involved active scrutiny of the SI, which would include writing to the minister with jurisdiction and laying a report to both houses. This highlights the detailed work of the modern parliamentary committee and its effect on maritime legislation.
The strategy applied by Parliamentary Committees in scrutinising and amending legislation provides an in-depth analysis of how UK maritime legislation has been influenced over time. The term scrutiny is generally taken to mean a searching investigation or inquiry. In this context, it is achieved through the study of legislation, policy, and administration with the goal of improving efficiency, effectiveness, and accountability.
3.2. Debates and Discussions in the House of Commons
During debate in the House of Commons, the merits of specific policies and developing legislation may be seriously scrutinized by a small but expert group of MPs. The maritime interest is not confined to those MPs whose constituencies are directly involved with the sea. The large number of islands, the extent of the coastline, the considerable port industry, and the fact that 90% of UK imports by volume and 75% by value are carried by sea mean that the state of British maritime policy and the potential implications of governmental inland policies on the maritime industry are of considerable importance to a great number of MPs. Also, it should be noted that there are currently over 30 All Party Parliamentary Groups (APPGs) concerned with maritime, and over 100 MPs are members of these groups. This means that there is a strong representative body actively pushing for its interests in parliament and that many influential parliamentarians are relatively well informed of the state of UK maritime policy. This is an ideal situation for those wishing to advance an informed debate on the maritime industry and its associated legislation.
3.3. Scrutiny and Amendments of Maritime Bills
With the agreement of both houses, the final outcome of an act is whatever was decided at the last reading in the House of Commons. This is put in place so that the Act of Parliament reflects what the majority of MPs were looking for. If it’s different from what was decided in the House of Commons, then the Lords Amendments take priority and are taken through to the House of Commons, and the process then begins all over again for the House of Lords versions.
After the bill has been through the Committee Stage, it has its report stage. At this stage, some time is allocated for debate and it’s the last chance to make amendments (excluding MNC’s that the Committee sees fit to take evidence on), and is usually taken on the floor of the house. The bill is then proofread and amendments are considered. After this, the bill will have its final reading and no further amendments are allowed at this point. This is to ensure that the bill, at its final reading, is the most up to date, which is just the report stage. Then, after its time given, if it’s the most suitable or not. With a bill that has been passed through all of these stages, when it then goes to the Lords, it is much more likely for it to be adopted.
4. Future Prospects for Parliamentary Influence on UK Maritime Legislation
These proposed changes raise important issues about the future role of Parliament in shaping UK maritime legislation and the likely implications for longer-term policy objectives. Some commentators have suggested that UK maritime legislation is now heavily influenced by international treaty obligations and EU directives and regulations, and that often there is a lack of coherent national policy and over-reliance on secondary legislation. The ‘gold plating’ of EU measures has been a particular bone of contention within the UK shipping industry. This is where the UK implements an EU directive by primary legislation and then adds ‘stricter’ regulatory conditions to give the impression (to other EU Member States and within the UK electorate) that the UK is taking a lead on a particular issue. This can deter investment in UK maritime activities and may sometimes be contrary to the UK’s national interest. An example would be the implementation of a directive to improve safety standards on board roll-on roll-off ferries, where the UK incurred substantial costs in ensuring that its regulatory regime went further than what was required by the directive. In this scenario, it is difficult to argue that such legislation is consistent with the interests of the UK shipping industry or makes a meaningful contribution to maritime safety. A change to the current process of legislation may address these issues, and there may be scope for more flexible regulatory measures and ‘self-regulatory’ strategies, particularly in areas where there is already a strong safety and environmental ethos within the industry.
UK maritime legislation has evolved from a single sector, protectionist policy to a complex web of international conventions and UK national regulations governing a wide variety of maritime activities. This change has reflected parliamentary directives and changes in the perception of the UK maritime industry, particularly with the UK’s joining of the European Economic Community in 1973 and the subsequent re-emergence of free market economic ideology in the 1980s. Whilst maritime legislation is becoming increasingly technical and international in nature, and UK maritime industries are now only a shadow of their former selves, Parliament still remains the supreme policy-making body in the UK and has a powerful influence on maritime legislation. However, in today’s context, it is not always advantageous for the UK maritime industry for Parliament to be directly translating its policy preferences into maritime legislation. With the globalization of the industry and the increasing importance of EU legislation, some UK maritime policymakers are calling for a fundamental shift in the way UK maritime legislation is made and are pressing for more deregulatory measures to help British shipping regain a competitive edge.
4.1. Emerging Challenges and Opportunities
With the establishment of the European Union, a large percentage of UK maritime legislation is now derived from European Community law. The volume of EU law is such that in many cases it is not known or understood by the current industry. For the UK to effectively legislate in the interests of the maritime industry and UK plc, Parliament with industry consultation must be proactive at an EU level in the formulation of European legislation, to ensure that national and international law are aligned. This has not been the case to date, with Parliament often having to accommodate its legislative programme to comply with EU regulation. The Merchant Shipping Act 1988 (an update from the 1894 act) was the last major piece of UK maritime legislation, much of which was derived from EU Directives and International Maritime Organisation conventions. The implementation of Part II of the European Communities Act 1972 bound the UK to give effect to EU directives and regulations, meaning that future primary legislation in these areas may be minimal. This leaves Parliament with the task of overseeing the transposition of EU law and monitoring through secondary legislation, the effectiveness of various rules and regulations on the UK industry.
The evolving nature of both the shipping industry and the functioning of the Westminster Parliament suggest that maritime legislation in the UK is a continually fluctuating concept. Maritime legislation as a responsibility for Parliament was somewhat unclear until the mid-twentieth century, where an increase in ship safety and the new codification of international maritime law saw Parliament take a more active role. In the contemporary climate, new challenges and opportunities emerging from both the European Union and devolution of power to Scotland, Wales, and Northern Ireland offer a critical assessment of the future prospects of parliamentary influence on maritime legislation.
4.2. Potential Reforms and Policy Considerations
The shipping industry itself has accepted this and understands that future policy change is something which may require them to re-evaluate where the UK is a good location for business. This has in turn prompted the SMI to keep a closer track of maritime legislation and RBR developments with the UK government and various political groups. This is positive because as the RMTU have demonstrated, more industry involvement in discussions and clearer parliament-constituency links on specific maritime policies are likely to bring a greater level of parliamentary scrutiny to the future legislations. This will effectively ensure more of a link between laws in the maritime sector and their representation the UK populace.
The first phase of the risk-based regime (RBR) was the introduction of the tonnage tax in the Finance Act 2000 which became effective from the 1st of January 2000. The tonnage tax faced opposition from both the European Commission and some sectors of the UK shipping industry. The European Commission argued that the proposed tax regime constituted illegal state aid in favour of the shipping industry and therefore was not compatible with Articles 87 and 88 of the EC Treaty. Although the UK had received clearance from the EC on an earlier informal tonnage tax scheme, it was not granted the specific clearance needed to ensure immunity from future state aid recovery action. This prompted the UK to bring the case before the ECJ to try and protect its shipping industry. An inter-party conference followed a preliminary ruling by the European Court that found the specific clearance for immunity from state aid recovery should have been granted. During these proceedings, the shipping industry found the support of the RMTU who were able to use the extensive case as an example for how parliamentary debate and the opinion of its members may be required on future maritime policies. The case concluded in December 2003 when the UK and European Commission reached an agreement in principle providing specific clearance for the tax and immunity from state aid recovery. The subsequent tonnage tax regime proved the success of parliamentary involvement in maritime legislation. However, it also serves as an example of how future policy changes in areas such as the RBR are likely to require further parliamentary input. The tax will be subject to further discussions on EU state aid rules with a long-term aim to secure better terms and immunity from future changes in EU state aid guidelines. This may require alterations to the Finance Act 2000 and further explicit clearance from the European Commission. Such changes or any future laws on RBR could have a significant impact on the shipping industry and how the UK controls it. Therefore there is a need for increased awareness amongst MPs and peers on the workings of RBR and its possible future changes, given that it is likely they will be subject to further motions and discussions in parliament.