I indicated here that the consultation proposals for banning smoking on ships and boats are unworkable as they are presented. Now the cracks start to open.
"The Government intends to implement restrictions on smoking on board all vessels coming within the scope of the Merchant Shipping Act (MSA) 1995, including fishing and inland waterway vessels, calling at ports in England and within the 12-mile territorial limit, regardless of which flag they are registered with (that is, regardless of which country regulates them)."The Secretary of State's power to make regulations under the Act is given by s.85 - Safety and Health on Ships. Under s.85(1)(a) he may make provisions for protecting the health of persons on board United Kingdom ships. He also has the power under s.85(1)(c) to make provision for securing the safety of other ships and persons on them while in UK national waters. The Merchant Shipping and Maritime Security Act 1998 amended s.85(1)(c) to include health measures, but not when the ship is only making passage (unless part of an international convention). The definition of a ship is given in s.170 of the MSA95 as meaning any sea-going vessel or sea-borne craft of any type whatsoever. Now, looking at the proposal above it appears that
1. Inland waterways vessels are not covered by the definition if they are not sea-going or sea-borne. Inland waterways and the licensing of vessels on them are generally the responsibility of the Environment Agency. Without amending the MSA, the SoS has no power under it to make regulations for inland waterways vessels.
2. The SoS cannot make regulations for foreign vessels exercising the right of innocent passage through UK national waters. Innocent passage includes anchoring. And when do the restrictions on foreign vessels bound for English ports start? When the ship crosses the 12 mile limit? When it enters port? As it passes another foreign vessel at anchor where smoking is not prohibited? And what if a vessel on innocent passage decides to enter an English port?
3. The MSA makes no distinction between English, Welsh or Scottish ships. To give effect to the consultation intention to apply the restrictions to vessels calling at ports in England only, but to all vessels within the 12 mile UK limit (and there is no such thing as a 12 mile English limit), the regulations would have to exempt vessels from the restrictions when they enter a Scottish or Welsh port. Ports have a particular meaning; there are about 100 ports in the UK. A Scottish marina where a charter fishing boat may be based will not be a port. This section is too muddled to make legislative sense.
More later. This makes my brain ache.
Oh what a tangled web they weave ....
Looking at the inland waterways powers under the MSA95, it appears that the DfT believe they have powers to make regulations because (deep breath) SI 2001 No.54 amended SI 1997 N0.2962 by removing from it a reference to inland waterways vessels being covered by SI 1992 No.2051. They say " The first amendment implements recommendations 27.35 and 27.36 in the Interim Report which called for the rationalisation of health and safety legislation in relation to non-seagoing ships. The effect of the amendment is to apply merchant shipping health and safety legislation to non-seagoing ships, thereby allowing effective enforcement by the Maritime and Coastguard Agency"
Any lawyers out there?