Consultation outcome

Strengthening enforcement of the dangerous use of recreational and personal watercraft: consultation response summary and next steps

Updated 18 January 2023

Response summary

Personal and recreational watercraft are enjoyed by many people on a regular basis. They are, generally, used safely following appropriate training and with respect for the rights of other water users and wildlife. However, in a minority of cases, the actions of users can endanger both themselves and others. The number and severity of accidents involving personal watercraft (PWCs) has increased recently and has begun to include fatalities for the first time.

Local and harbour authorities already have a wide range of powers to introduce laws to manage PWCs and recreational watercraft usage. They are best placed to understand and respond to local conditions given significant differences in geography and usage. However, if provisions are in place, they do not extend beyond the waters they manage. It was previously thought that national legislation, under the Merchant Shipping Act 1995 (MSA 1995) and the Harbours Act 1964, was applicable to PWCs and recreational watercraft in the same manner as larger vessels but, following a court case in which one PWC user collided with another causing life-changing injuries, a Court of Appeal judgment against the original prosecution for dangerous use was successful. This has removed PWCs, and potentially other recreational watercraft, from the MSA 1995’s provisions relating to dangerous use. The result is a patchwork of local regulatory provisions with some areas having no protections in place in the event of an accident.

The Department for Transport (the department) considered these factors and concluded that new national legislation, which applied those provisions of the MSA 1995 dealing with the dangerous use of ships to PWCs and recreational watercraft, was appropriate. This would ensure that anyone who wilfully or negligently operated their PWC or recreational craft and endangered the safety of others, regardless of the location of any accident or incident, could be prosecuted.

The aim of the department in proposing the introduction of this legislation is to ensure that the victims of accidents, who have been subjected to injury and/or loss through no fault of their own, can be protected under law and, if appropriate, allow the perpetrator to be prosecuted. These measures will only be applicable in cases where wilful or negligent use can be proven and will bring PWCs and recreational watercraft into line with the provisions already applicable to ships and provide parity with similar legislation on other transport modes. In this manner there has been no change in policy. It has always been the government’s intent that PWCs and recreational watercraft should be within scope of the MSA 1995, and this legislation will restore the position thought to apply prior to the Court of Appeal’s ruling.

Please note that the draft legislation does not directly amend the MSA 1995. It applies those provisions of the MSA 1995 which are appropriate to the craft within the new definition of ‘watercraft’. The same approach is taken to the application of the powers within the Harbours Act 1964. These provisions are applicable to watercraft used in United Kingdom waters which means all waters inside the United Kingdom’s territorial waters including non-tidal and inland waters.

What the consultation asked

The department held a consultation seeking stakeholder views on a draft of the necessary legislation to bring PWCs and recreational watercraft within scope of the MSA 1995, Harbours Act 1964 and related secondary legislation between 6 September 2021 and 1 November 2021.

The consultation noted the options the department had considered to meet the policy intent and sought comments on whether new legislation was necessary, the statistics the department presented on ownership and use of watercraft were accurate and a series of questions on the draft legislation including definitions and if the application of the proposed provisions of the MSA 1995 and Harbours Act 1964 was appropriate to PWCs and recreational watercraft.

Responses received

The department received 491 responses and would like to take this opportunity to thank all of those who considered these proposals and provided comments.

The majority of responses (71%) were received from individuals (the consultation paper asked if respondents were responding as an individual or on behalf of an organisation). Local government bodies provided 8% of responses with 6% coming from maritime and associated organisations (including ports and harbours). PWC and national recreational bodies, associations and user groups were also well-represented with 8% of responses.

Responses were also received from members of Parliament, central government bodies, manufacturers, businesses, community groups, emergency services and enforcement agencies.

The following sections summarise the main themes and the responses received to the individual questions in the consultation as well as the government’s response. Please note that the themes reflect the views of consultation respondents only and are not government policy.

Summary of the main themes

Although many responses did not provide direct responses to the questions in the consultation paper, an overwhelming majority of respondents supported the need and rationale for legislation in this area.

Many felt that the draft legislation was fit for purpose and should be introduced in its consultation form. However, many others wished to see amendments to one, or more, specific elements of the draft legislation. Particular concern was expressed about the inclusion of larger unpowered watercraft (those over 2.5 metres in length) within the intended definition of ‘watercraft’.

Many responses also raised wider issues beyond the scope of the consultation including the social nuisance PWCs, in particular, can cause and the threat PWCs and other recreational watercraft can present to wildlife.

Response summary and government reply

Question 1: Is new legislation necessary in this area?

The department wished to test its view that the introduction of legislation in this area was necessary and represented a proportionate response to the issue.

Summary of responses

Of those who expressed a preference, an overwhelming majority of respondents agreed that new legislation was necessary in this area. The most common reasons cited were:

• for the protection of users and maintenance of safety
• to close the gap created by the Court of Appeal’s judgment
• to ensure consistency of application of the legislative regime to all ships, fishing vessels and watercraft
• to provide national legislation to complement existing local provision and cover areas which are not in otherwise managed waters
• to provide consistent national enforcement provision
• to enable prosecution of those who risk others’ lives by using watercraft in a dangerous manner
• to act as a deterrent for the prevention of accidents and counter the rising numbers of reports of dangerous use incidents involving watercraft
• to bring legislation in line with the expectation of most watercraft users who already believe these provisions already apply to them and act sensibly and safely
• to provide additional protection for ships, fishing vessels and other water users

The small minority of respondents (2%) who were opposed, on principle, to the introduction of any new legislation in this area noted that:

• the number of incidents and serious accidents involving personal and recreational craft were low
• powers already existed for local and harbour authorities to prosecute dangerous use
• it may create a potential barrier to new entrants to water-based recreation through the introduction of additional administration and costs

They also expressed concerns that it might be the first step in the introduction of further, more onerous, regulation for personal and recreational watercraft users.

Government reply

The department notes the overwhelming support for its proposals to introduce new legislation in this area and intends to proceed subject to the amendments to the draft legislation it has made following consideration of consultation responses on some of the other questions noted below.

The department recognises the concerns expressed by those who do not believe that additional legislation is necessary in this area. However, it notes that there has been no change in government policy in this respect – the MSA 1995 was thought to apply to watercraft prior to the Court of Appeal’s judgement and the proposed legislation will restore that position.

The department has highlighted that the number and severity of incidents involving watercraft is increasing and the fact that the original court case was brought forward in 2005 demonstrates the need to provide protection for the victims of accidents caused by the reckless and dangerous use of watercraft by others.

The key elements of the legislation will only be applicable in cases where an accident or serious incident has already occurred and responses to the consultation have not been able to identify any significant additional costs or regulatory barriers which might prevent new entrants to the watercraft sector – indeed many respondents highlighted that the converse may be true if overall safety improves as a result and the number of incidents and accidents reduces.

The department is not intending to introduce any further regulation in this sector but, should it decide that this may be necessary in future, that legislation will need to be justified and public consultation on draft material undertaken prior to its introduction.

Question 2: Are the personal watercraft ownership and accident figures quoted above an accurate representation?

The department worked with a broad range of organisations to find figures and evidence as to the size and scale of the personal and recreational watercraft sector. This question was included to test the information supplied with stakeholders and seek to refine the department’s understanding with additional information.

Summary of responses

Of those who expressed a preference, a majority noted that the figures appeared to be accurate and confirmed these were from the best-known sources available. Others noted that the figures related to PWCs only and that there were no numbers provided for wider recreational watercraft or unpowered watercraft over 2.5 metres.

Many respondents agreed that limited and unreliable figures were commonplace in this sector and that it was difficult to confirm the validity of statistics or other information. Some thought that the numbers quoted were higher than expected but did not indicate whether they had access to other sources of information.

Ports, harbours and local authorities, in particular, reported significant, and rising, numbers of offences against byelaws and harbour directions. They also noted that there had been many more reports which either could not be investigated, were about issues such as social nuisance or noise or concerned incidents which occurred outside of their managed waters.

Many watercraft users noted that there was likely to be significant under-reporting. Many graphic eye-witness examples of near misses or close quarter incidents, speeding, obstructing vessels which are constrained by their draught and excessive wash were reported with PWCs noted as the worst culprits.

Some respondents continued to report such incidents to the relevant authorities, but many had taken the decision not to do so in cases where no immediate damage was caused. The reason cited was due to the difficulties in enforcing such incidents especially in cases where these were off the coast and in waters which are not directly managed. However, it was recognised that luck had played a significant part in many incidents which, under slightly different circumstances, could have resulted in more serious consequences.

Many respondents noted that, in their view, the COVID-19 pandemic had significantly increased the number of people visiting coast and buying/hiring watercraft with a resulting increase in incidents where, perhaps, appropriate training had not been undertaken.

Many praised the role of harbour patrols as a deterrent against dangerous and anti-social behaviour, educating users on the rules and preventing reoccurrence.

Government reply

The department recognises that the available statistics are limited, and this question sought to ascertain whether stakeholders had access to any more accurate, or additional, information about this sector. It is acknowledged that the number of incidents and, potentially, accidents is likely to be significantly higher than those which have been confirmed as reported to the relevant authorities for the reasons stakeholder have given above.

Most authorities rigorously enforce their byelaws and harbour directions. They have supplied evidence of examples where PWC and recreational watercraft users have successfully been prosecuted for infringements and how they are taking action to raise awareness or the rules and the mutually beneficial partnerships they have created with local user groups. However, they have also noted the significant additional challenges that the marine element presents to effective enforcement and the resources which are required to ensure the safety of all users.

It should be noted that the increasing severity of accidents has led the Marine Accident Investigation Branch to investigate several serious incidents involving PWCs and recreational watercraft. Where investigations have been completed and reports published, these have added valuable insights into the causes of accidents particularly in shared use waters and offer recommendations to prevent reoccurrence.

Question 3: Does the proposed definition of ‘watercraft’ meets the intended aim of bringing all PWCs, recreational and other watercraft within scope of safety and misuse requirements? Are the intended exclusions appropriate?

The department’s proposed definition of ‘watercraft’ was based on precedents used in other maritime legislation. It included, amongst other issues, exclusions based on minimum and maximum craft length. In doing so, the department wished to ensure that existing legislation and enforcement regimes, which are already well understood by users, were promulgated and that it was clear which craft would be within scope. The proposal also dovetailed with other applicable legislation such as the provisions for registration in the UK’s Ship Registry.

Summary of responses

Of those respondents who expressed a preference, 29% supported the original definition. However, more (67%) wished this to be amended to exclude all unpowered watercraft. Responses indicated that the current safety record of these, larger, types of unpowered watercraft (which would include, for example, most sea kayaks) was excellent and that there was no safety case for the application of the dangerous use provisions of the MSA 1995. They also argued that the 2.5-meter length distinction for unpowered vessels was arbitrary for this sector with many different classes and models of watercraft used for the same purpose being both above and below this length limit.

Government reply

The department has considered the evidence supplied by respondents and agrees that its intent could be achieved without placing length limits within the definition of ‘watercraft’.

It has noted that this approach could lead to unintended impacts such as manufacturers replacing longer models in their ranges with shorter versions which are, for example, less stable or are designed only for the use of experienced practitioners. Given that the key source of risk and implications for the severity of an accident is speed, the department has decided to alter the definition to any watercraft which is ‘capable of moving under its own mechanical power’.

Essentially, this brings any craft which has any form of engine fitted into scope but also recognises that many craft, such as yachts, whilst having engines installed, spend most of their time – and generally achieve their fastest speeds – under sail power. The department believes this definition brings additional regulatory clarity, enables those smaller craft into which engines (particularly electric motors) are now being installed to be captured and is tailored to the key source of risk.

It should be remembered that application of these provisions does not, as some respondents believed, amount to an additional restriction on use. They will only be applicable if a serious incident or accident were to occur and the party causing the consequences can be demonstrated to have been using their watercraft dangerously or there is negligence on the part of the owner or operator, for example through a lack of maintenance.

The legislation is, therefore, designed to protect the innocent victims of accidents in the same way that this protection already exists on other forms of transport. The department acknowledges that, for users of unpowered watercraft which will be excluded from scope, the same level of protection will not exist. The safety record of unpowered watercraft will be kept under review to ensure that this legislation remains an effective and proportionate response to the safety risk.

Question 4: Should the UK Ship Register should be open on a voluntary basis to watercraft owners?

The department’s proposal would allow the owners of watercraft to legally register them within the UK’s Ship Register on a voluntary basis.

Summary of responses

Of those respondents who expressed a preference, the vast majority agreed that it should be possible for owners to voluntarily register their watercraft in the UK Ship Register to allow them to access the benefits this brings.

Some respondents commented that registration of all watercraft should be mandatory and that this would assist, for example, enforcement by ensuring a registration number was visible on watercraft for identification purposes allowing the owner to be traced.

Ports and harbours also noted that this approach might also increase recovery of derelict vessels as it would allow them to trace ownership and recover any associated removal and disposal costs.

A small number of respondents were in favour of the introduction of a wider, national, licensing regime encompassing mandatory age limits, training, insurance, an MOT equivalent and other requirements. Still others noted that any provision for licensing of watercraft was unnecessary since, for the purposes of safety, it was the competence of the user which was the critical factor and that insurance, if purchased, was usually related to the individual undertaking the activity and not a specific watercraft.

Government reply

The department has considered these arguments and, whilst it will maintain these provisions under review, does not believe there is currently a case for the mandatory registration of all watercraft. It would not be fair, for example, to penalise majority of watercraft users who conduct themselves both sensibly and safely through the imposition of the costs of registration.

However, at the same time, the department does not believe that the owners of watercraft should be excluded from the benefits of registration, especially since many take their watercraft overseas where proof of ownership and nationality is often required to secure berths and other harbour services.

For the same reasons, the department does not believe there is currently any justification for the introduction of a bespoke national licensing system for PWCs or recreational watercraft.

Where there are concerns, local and harbour authorities already have significant powers to introduce measures, such as launch permits and other schemes, to control watercraft in the waters they manage. These will be further enhanced by this legislation which will provide not only another potential enforcement route but also enable those harbour authorities which have previously been unable to use harbour directions to control PWC and recreational watercraft use to do so in future. This is vital since most watercraft will be launched from slipways and other facilities which are controlled by these authorities.

The department will continue to encourage local and harbour authorities to review the measures they have in place to ensure they are up to date and are responsive to the challenges in delivering safety on the waters they manage. They have a challenging role and the department will continue to assist in the education of users to ensure they are aware of the benefits of training, are familiar with the use of safety equipment, their wider responsibilities and potential impacts on other water users.

Question 5: Should the provisions of section 58 of the MSA 1995 be applied to watercraft and, if so, which ones?

The department wished to understand stakeholder views on the application of the MSA 1995 provisions and offences relating to conduct endangering other ships and watercraft, structures and individuals to watercraft. There are a number of provisions and respondents’ views were requested on the appropriateness of their application to watercraft.

Summary of responses

Of those who expressed a preference, there was general agreement that all provisions of section 58 of the MSA 1995 should be applied. However, many respondents agreed only with the caveat that unpowered watercraft were removed from scope noting that these posed little or no threat to commercial shipping or other types of PWC or recreational watercraft. Some called for additional penalties which are outside the scope of the MSA 1995 including, for example, new offences for social nuisance and intimidation of other water users.

The consultation paper questioned whether the provisions of section 58 relating to an individual deliberately damaging their own watercraft should be applicable to watercraft. Of those respondents who expressed a preference, a majority indicated that they should be included to provide consistency across the sector and that the application of related offences would also be appropriate for watercraft.

Although most respondents supported their inclusion given precedents in other applicable legislation, some questioned the terms ‘user’ and ‘operator’ noting that these were imprecise and suggesting alternative terms such as ‘person in charge’. The key concern expressed was that these terms were, potentially, too wide and might bring, for example, passengers within scope.

A small number suggested that exemptions from these penalties should be available for those who had undertaken approved training as an incentive to enhance their competence.

Government reply

The department has considered the responses and has inserted the provisions of section 58(2)(b)(i) of the MSA 1995 which relate to a duty to ensure a person does not omit to do anything required to preserve their watercraft, its machinery, navigation equipment or safety equipment from being lost, destroyed or seriously damaged into the draft legislation. This will ensure that all offences applied to larger ships are equally applicable to watercraft providing consistency and ensuring equality of treatment in similar circumstances.

The department recognises that some areas experience nuisance, through noise and anti-social behaviour, and intimidation of other water users by watercraft. In making this legislation, the department has been clear that it can only apply those provisions which already exist in the MSA 1995 to watercraft. Although the creation of new duties of care and other responsibilities are outside of the scope of the current exercise, the strong legislative framework already in place allows local and harbour authorities to introduce measures to deal with these issues.

The application of this legislation will allow those authorities which have not previously had the power to introduce these measures to consider their introduction in consultation with local stakeholders. These include a range of measures from launch permits to training, insurance, geographic and temporal separation schemes and curfews.

The department recognises the intent behind suggestions that those users who are trained should receive exemptions from the offences as an incentive. The department advocates training as the best way of increasing understanding of how watercraft should be operated, the hazards and risks as well as knowledge of the wider rules of the sea. However, should a trained user cause an accident, the department believes that they should still be called to account for their actions.

The department has considered the terms ‘user’ and ‘operator’ in the intended context and has concluded that they are appropriate for their intended use. In particular, the hierarchy of responsibility and decision making which defines life on larger ships, does not generally apply on watercraft.

There are many instances where it is the actions of passengers, often in defiance of the ‘person in charge’ who has issued repeated instructions, that have caused incidents and accidents. The department considers that there is a significant element of personal responsibility attached to watercraft use and that any activity on water is a dangerous undertaking. There are many examples of accidents where it is the passenger’s behaviour which has been the causal factor and the department believes it is right that they should also be held responsible for their actions.

The department also notes that the rules of the sea require any vessel of any size to give way to another vessel, including watercraft, that they may encounter depending on circumstances. Once this legislation is in force, these rules will be the same for all ships and watercraft as will the offences which will be applied for contravention or should the actions of one party result in a significant incident or accident.

Question 6: Should the power of detention be available to enforcement officials to ensure dangerously unsafe watercraft are not used on the water?

These provisions were proposed for application to watercraft to ensure consistency with the same powers available to the enforcement authority to detain a dangerously unsafe ship.

Summary of responses

Of those responses which expressed a preference, there was overwhelming support for the application of these powers to watercraft. It was noted that their disapplication would lead to inconsistency with ships and fishing vessels and, potentially, a significant gap where the enforcement authority was unable to prevent a dangerously unsafe watercraft from being used.

Some questions were received about what might constitute a ‘dangerously unsafe’ watercraft and practicalities about how, for example, a personal watercraft could be detained in practice. Concerns were also expressed about an instance where detention might occur on a watercraft which was a person’s home.

Government reply

For the same reasons as these powers appear in the MSA 1995 and are applicable to ships, the department believes that their application to watercraft is also vital. It would be inconceivable for the enforcement authority to identify a dangerously unsafe watercraft and not to have the power to prevent its use as, by definition, it would present a potential threat to life for either the user or other people.

The use of these powers would only be in these extreme circumstances and the MSA 1995 already contains a definition of “unsafe” with significant guidance already available to enforcement authority officers which explains that high threshold.

The department has considered the circumstances in which the watercraft in question could be a person’s home. This is, in many instances, no different from the professional mariners on a ship which may be detained and it should be remembered that the enforcement authority would only be taking this action in order to protect those individuals as well as the wider public.

The department notes that, in many areas such as inland waterways, the provisions in place through licensing regimes and the conditions of use, for example certificates under the Boat Safety Scheme, will require the watercraft to be safe for operation and comply with, for example, relevant standards for construction already mean that watercraft which are deemed unsafe will not be authorised for use. Requirements for mandatory insurance are also in place and, again, watercraft could not be used without evidence that this requirement, which normally includes a provision for the watercraft’s safety to be demonstrated and independently assessed, has been fulfilled.

However, the department acknowledges the concerns expressed should circumstances arise where detention of a watercraft which is a person’s primary abode occur and will work with the enforcement authority to ensure that, in instances where this may require consideration, these powers are applied proportionately.

Question 7: Should the provisions of section 100 of the MSA 1995 be applied to the owners of watercraft and, if so, which ones?

These provisions were included in recognition of the fact that there should also be an onus on the owner of the watercraft to provide that they must take all reasonable steps to ensure safe operation. These duties, and related offences, are important since many PWCs and recreational watercraft are available for hire.

Summary of responses

Of those who expressed a preference, a significant majority of responses supported the inclusion of these powers. They recognised the importance of placing obligations on the legal owner and that there should be appropriate offences if reasonable steps are not taken and this omission results in an accident. Many responses noted that those businesses which hired out watercraft already had to meet stringent requirements as a condition of their public liability and other insurance.

Some responses supported inclusion but only if unpowered watercraft were removed from scope. Others suggested that offences should be applied only to the user on the basis that it is likely to be their actions which result in an accident and that guidance should be available to determine what might constitute ‘safe’ operation.

Government reply

The department has considered the responses and has retained the provisions and offences relating to the owner of the watercraft.

These provisions exist in the MSA 1995 since there is recognition that the owner of a ship has a responsibility to ensure that it is used in a safe manner and is liable if this is not the case. That responsibility cannot wholly be abrogated simply because the ship or watercraft is being used by another person, regardless of whether there is any payment for that use. In cases where a watercraft is available for hire, there should be an onus on the owner to ensure that those who are hiring the watercraft should receive, for example, a safety briefing.

Question 8: Should the provisions of sections 85 and 86 of the MSA 1995 be applied to watercraft and, if so, which ones?

These provisions have been included in the draft legislation to ensure that the Secretary of State for Transport can make subsequent regulations which relate specifically to the health and safety of persons on board both ships (as presently) and watercraft (once the new legislation is in force).

Summary of responses

Of those who expressed a preference, a significant majority of responses supported the inclusion of these powers. Again, some respondents caveated their responses by noting that their support was conditional that all unpowered craft were removed from scope.

Others noted the importance of ensuring consistency with powers available to the Secretary of State in relation to ships under the same legislation and that it was conceivable that such regulations may be necessary in future given the significant increase in participation and the size, power and speed of watercraft.

One respondent noted that not all of the examples of areas where the regulation-making power would be available to the Secretary of State might be applicable to all watercraft and that care would need to be taken to ensure there were no unintended consequences.

Government reply

The department has considered the responses and, given the significant levels of support, has retained these provisions. The department notes that, were these to be used in future, public consultation would be necessary to inform the development of draft legislation and those affected would have the opportunity to comment on the proposals.

Question 9: Should the same definition of ‘watercraft’ be used for the purposes of the Harbours Act 1964?

The department noted that the Harbours Act 1964 contained a materially similar definition of “ship” as the MSA 1995 and that the same issues concerning the Court of Appeal’s judgment were equally applicable. The department sought stakeholder views on whether the same definition of ‘watercraft’ should be applicable across both acts.

Summary of responses

Most respondents who expressed a preference agreed that the application of the Harbours Act 1964 should be consistent with the MSA 1995.

The primary reason cited was the importance of consistency across the legislative framework and the need to prevent the creation of new gaps between different regimes. Many respondents noted that it was only when the legislation under which they operated dovetailed seamlessly that it was possible to ensure effective management of safety across boundaries. A common scope would also remove any ambiguity concerning the application of measures introduced under either the MSA 1995 or the Harbours Act 1964.

Responses from several ports and harbours noted that this approach would also have a major benefit by unlocking their ability to use harbour directions to introduce measures to control PWCs and recreational watercraft.

The use of a materially identical definition of “ship” in both the MSA 1995 and the Harbours Act 1964 current means that the Court of Appeal ruling is equally applicable to the latter. In practical terms, this has resulted in many ports and harbours being unable to use the harbour direction process (introduced into the Harbours Act 1964 by the Marine Navigation Act 2013) and other measures introduced under this legislation for these purposes. Their only alternative at present is the creation of new byelaws which, they noted, was a bureaucratic process which takes a significant amount of time and resource to implement.

Amending the Harbours Act 1964 in the same manner as the MSA 1995 would give ports and harbours to option to use harbour directions to be more responsive to local challenges and address emerging concerns at an earlier juncture resulting in greater safety for all users.

Some respondents indicated they would support the provisions but only on the basis that unpowered vessels were removed from the definition of ‘watercraft’. Others wished to see a wider definition used for the purposes of the Harbours Act 1964 which incorporated all possible watercraft that harbours might need to manage including small, unpowered, watercraft.

Government reply

The department has noted the significant support for ensuring consistency between regulatory regimes, especially amongst those who operate directly under this legislation, and the significant benefits that this will bring for harbours which manage their waters primarily through harbour directions.

While the department notes that some stakeholders have called for a wider definition of watercraft for use within the Harbours Act 1964, this is not within scope of the current exercise and would require further consultation. The statutory powers that ports and harbours currently possess are largely a function of their establishing legislation and there are already other mechanisms available for them to modify these to ensure they have the necessary powers to ensure they can manage their waters effectively.

The department has, therefore, included provisions to ensure that the new definition of ‘watercraft’ – which excludes unpowered craft – is equally applicable under the Harbours Act 1964.

Question 10: Should these modifications to incorporate watercraft within related merchant shipping legislation be made?

Given the large amount of secondary legislation (statutory instruments) which have been made under the MSA 1995 since its enactment, the department wished to ensure that any provisions which were applicable to watercraft, with appropriate modification, were reflected. These include provisions under the:

• Merchant Shipping (Distress Signals & Prevention of Collisions) Regulations 1996
• Merchant Shipping (EPIRB Registration) Regulations 2000
• Merchant Shipping (Marine Equipment) Regulations 2016

Summary of responses

Of those who expressed a preference, a significant majority supported the inclusion of all provisions under the above legislation. Again, some of this support was caveated on the basis that unpowered watercraft were removed from scope.

Many thought the application of the Merchant Shipping (Distress Signals & Prevention of Collisions) Regulations 1996 (known colloquially as ‘COLREGs’) was the most important provision since it was a matter of concern that many watercraft users were, in their view, unaware of the rules of the sea. Knowledge of these provisions was thought by many to be the absolute basic requirement underpinning safety with many close quarters incidents and accidents occurring due to a lack of understanding of what should happen when vessels encounter one another.

A number of respondents expressed concerns about the application of the Merchant Shipping (Marine Equipment) Regulations 2016. They noted that they may not be applicable to certain types of watercraft or that compliance, which is only required where safety equipment is provided, may have unintended consequences.

This was largely since the legislation was written with safety equipment designed for use on larger vessels, and not watercraft, in mind and sets requirements for design, construction and performance accordingly.

Life jackets were one of the examples given where, if present, they would need to comply with the requirements of the International Convention for the Safety of Life at Sea (SOLAS). These are large and bulky and designed primarily for the use of passengers on large vessels should there be an incident or accident requiring them to abandon ship. They are not designed for the purposes of those using personal or recreational watercraft and their use for these activities may potentially impede effective operation.

For these reasons, the application of these regulations to watercraft safety equipment was considered to be potentially problematic.

Government reply

The department has noted the significant support for its proposals to apply wider relevant legislation to watercraft. It intends to take forward the application of the Merchant Shipping (Distress Signals & Prevention of Collisions) Regulations 1996 and the Merchant Shipping (EPIRB Registration) Regulations 2000 to watercraft.

The department considers that many of these requirements, such as those relating to EPIRBs, are a critical part of how these devices are used in practice to guide search and rescue efforts following an accident. It is, therefore, important that watercraft users adhere to the same frameworks as other maritime craft if these devices are present to ensure their full potential is realised in these challenging circumstances.

It does not anticipate that the application of these provisions to watercraft represent any significant new costs or burdens for watercraft owners (which has been confirmed by responses to Question 11.

The department has noted the concerns raised about the Merchant Shipping (Marine Equipment) Regulations 2016 and has reconsidered the merits of its application to watercraft.

It accepts that this may potentially act as a disincentive to provide equipment and that, if equipment is provided, that it may not be fit for its intended purpose. Both outcomes have the potential to reduce safety and, in addition to the significant amount of advice which is already available from organisations such as the Personal Watercraft Partnership and the Royal Yachting Association on appropriate safety equipment for specific types of watercraft, the department has concluded that this requirement should be removed from the order.

Question 11: Are there any significant new costs or administrative burdens which might be created as a result of the introduction of this legislation? What is your assessment of these?

Following an assessment, the department was unable to identify any significant new costs or administrative burdens which might be imposed due to the introduction of the draft legislation. This question sought stakeholder views on that assessment.

Summary of responses

There were few direct responses to this question but, of those who expressed a preference, many noted that there were no significant new costs or administrative burdens that could be identified.

The fact that this legislation was already thought to apply to watercraft was a major factor and many noted that the main provisions of the draft legislation would only be applicable in the event of a serious incident or accident.

A handful of responses noted that there may be some additional costs for the Maritime and Coastguard Agency, as the relevant enforcement authority, in prosecuting cases but that these could, potentially, be recoverable following a successful prosecution.

Responses from the ports and harbours sector indicated that there may well be (unquantified) cost savings for them. These were thought to arise from both the perceived deterrent effect of the new legislation and the fact that those which currently lack powers to deal with local issues would be able, in future, to introduce harbour directions and reduce instances of misuse and the time and resource necessary to investigate complaints.

Some responses from the sector noted that there would be costs arising from the need to review existing byelaws or harbour directions or create new ones. However, many also noted that such reviews are business as usual in their efforts to ensure safety as well as being a recommended requirement under the Port Marine Safety Code.

Some respondents suggested that additional costs may be incurred by users and clubs were larger unpowered vessels included.

It was not clear from these responses where those costs might fall but the department considered this may be an allusion to, for example, insurance should current provision not be sufficient to indemnify a club which hired out watercraft for training purposes.

Government reply

The department has considered these responses and concluded that the draft legislation does not create any significant new costs or burdens on any of the sectors to which it applies and is, therefore, cost neutral.

The department recognises that there will be an additional burden on the public purse through the Maritime and Coastguard Agency, as the relevant prosecution authority, but that these will be small given the draft legislation will provide an extension of their regulatory powers to watercraft and enable prosecutions of PWC and recreational craft users.

However, it also notes that any costs can be recovered following successful prosecutions although the ideal position would be that no instances of dangerous use or accidents involving watercraft were to occur. The removal of unpowered watercraft from the definition removes any suggestion of additional costs or regulatory burdens for clubs which use larger watercraft for training purposes.

The department accepts that, as with any new legislation, there will be some familiarisation costs although it anticipates these will, again, be minimal since the relevant provisions were already thought to be applicable.

Question 12: What, if any, documentary evidence are you able to supply that alcohol or drug use among recreational mariners is leading to safety concerns or an increased number of accidents or incidents? Are you aware of any recent prosecutions for related offences?

Given the application of offences relating to alcohol and drug use within the proposed draft legislation, the department wished to use the opportunity presented by the consultation to assess stakeholder views on the impact of these substances on safety in the sector.

Given that there is no national alcohol limit for recreational mariners in the United Kingdom, and that the department’s policy position is to maintain this position under review, stakeholder comments were requested on the current position on the ground.

Summary of responses

Of those who responded to this question, the majority had witnessed alcohol use by recreational mariners and, although resulting accidents could not be fully attributed to this cause, a strong correlation between the availability of alcohol and drugs and a significant increase in near-misses, anti-social behaviour and nuisance in many areas was drawn.

Many respondents also highlighted the wealth of scientific evidence about the adverse impacts and impairment of even small amounts of these substances in a person’s bloodstream, that most other countries had introduced national alcohol and drug limits for recreational mariners and that the UK was now an outlier since it did not have any legislation in place.

Many local and harbour authorities which did not already have their own local provisions indicated they were considering adding alcohol and drug offences to their byelaws or harbour directions for these reasons and supported the introduction of national alcohol and drug limits.

They noted that limits were in place on almost all other forms of transport and suggested this was a significant loophole given that the recreational maritime community, which could easily impact on the professional maritime community and other water users, was not subject to the same requirements in this respect.

It was noted that a lack of legislation made confirmation of alcohol or drug use problematic and prosecutions difficult citing the same increase in the number of accidents and near misses where alcohol or drug use was suspected but could not be proven.

It was noted that there were a number of recent Marine Accident Investigation Branch repots into accidents where there had been tragic fatalities as a result of alcohol or drug use clearly demonstrating the dangers in a maritime environment. All responses from this sector strongly supported the introduction of national legislation to define alcohol and drug limits for recreational mariners and many suggested that these should be the same as those for professional mariners.

Manufacturers noted that the guidance provided to owners clearly stated that watercraft should never be operated when under the influence of alcohol or drugs. They indicated that the use of alcohol or drugs, singly or in combination, impedes judgment, impairs vision and inhibits a person’s ability to operate safely. They also noted that they recognised this issue and had supported initiatives, such as the Responsible Rider Programme, to ensure users were educated about the dangers.

Many replies received direct from personal and recreational watercraft users also suggested that, given the link between alcohol and drug use and impairment, common sense alone suggested that limits should be introduced.

Again, many instances of suspected alcohol or drug inebriation had been witnessed and some users were concerned that these could have resulted in far more serious consequences to both the perpetrator, themselves or other water users if circumstances had been only slightly different.

The above views contrasted sharply with those of organisations representing recreational mariners. Some felt that the inclusion of the question itself was inappropriate in the context of the subject matter of the consultation and indicated concerns that there was no evidence to suggest that a national limit for alcohol or drug use for recreational mariners was necessary.

Government reply

The department has noted the strong views on both sides of this debate. Its intent, given the presence of alcohol and drug offences in the draft legislation, was to seek additional advice and evidence about the current situation on the ground.

While the lack of national legislation leads to a chicken and egg situation where the precise scale of the problem cannot be accurately determined since there is no basis for prosecutions, it is clear from the evidence supplied that there has been an increase in the number of reports of incidents, accidents and near misses where alcohol and drug use is strongly suspected.

The department will continue to discuss this matter with key stakeholders to increase its understanding of the concerns expressed and maintain the position under review.

Other matters raised beyond the scope of the consultation

Some respondents used the opportunity to highlight other issues and concerns which went beyond the scope of the consultation in their replies.

These primarily focussed on the impact that PWCs and recreational watercraft, including those which are unpowered, can have on wildlife. Many instances where powered watercraft, and particularly PWCs, had been misused to disturb or injure wildlife were noted.

Although it is not possible, given the legal powers available, for amendments to be made to either the MSA 1995 or the Harbours Act 1964 to introduce new measures to deal with these issues under maritime legislation, the department notes that there are already applicable offences under the Wildlife and Countryside Act 1981.

However, the department acknowledges that many PWC and recreational watercraft users may be unaware of the impacts they have on wildlife and is committed to working with the Department for the Environment, Food and Rural Affairs (DEFRA) to continue its programme of education for these users and developing advice and guidance on how best users can avoid any conflicts or disturbance.

We anticipate this will be published during 2023 and note that guidance on the simple steps PWC users and, by extension, recreational watercraft users can take is already available from the Personal Watercraft Partnership and other representative bodies.

The department recommends that all watercraft users should check and pay particularly attention to local wildlife issues in the areas in which they are intending to use their watercraft before heading out remembering that there can be different risks at different times of year. Our marine environment has always been a truly shared space for both humans and other animals, and it is everybody’s duty to protect and maintain it for future generations.

Next steps

Subject to the amendments made to the draft legislation published for consultation noted above, the department intends to introduce this new legislation as soon as possible.

There will be a short period of time between the new rules being laid in Parliament and coming into force. This is to ensure that anyone who may be affected by this legislation is familiar with it ahead of the start of the season. We will update relevant guidance and other supporting material in line with our standard review cycles.