Consultation outcome

Consultation Outcome Report

Updated 28 February 2022

Section 1: Introduction

The Maritime and Coastguard Agency (MCA), an executive Agency of the Department for Transport (DfT), carried out a public consultation from August to October 2021 on the proposal to make The Merchant Shipping (High Speed Craft) Regulations 2022 to incorporate recent updates to Chapter X (ten) of the International Maritime Organisation’s (IMO) Convention on Safety of Life at Sea, 1974 (“SOLAS”). The IMO is the United Nations competent body on maritime matters. The consultation was published on GOV.UK, and notifications of the consultation were sent to marine industry companies, government Departments and maritime bodies with professional and specialist functions.

At the same time, the proposal included an intention to introduce an ambulatory reference in the new Regulations to incorporate any future amendments to Chapter X of SOLAS (the detail which is of a more technical nature) into UK law by reference on an ongoing basis, instead of transposing it provision by provision as and when it comes into force internationally.

SOLAS is one of a number of maritime Conventions adopted by the IMO to which the UK is a signatory. As a signatory, the UK has an obligation to implement any amendments to them in UK law.

SOLAS sets minimum safety standards in the construction, equipment and operation of merchant ships. SOLAS Chapter X in particular sets safety standards for High Speed Craft and implements the High Speed Craft Code 1994 (mandatory for High Speed Craft built or substantially modified on or after 1 January 1996) and the High Speed Craft Code 2000 (mandatory for High Speed Craft built or substantially modified on or after 1 July 2002).

The High Speed Craft Codes are regularly amended by the IMO to improve the safety of ships and lives at sea and to reflect advances in safety technology and thinking. Each time an amendment is made to the Codes, UK legislation must be updated. The regulatory change process to update legislation takes a minimum of 12 months, and frequently a lot longer, and requires significant administrative and parliamentary time and resources.

Against a backdrop of competing priorities for limited resources within Government, a new approach to transposing international requirements into UK legislation is vital.

Section 2: Ambulatory Reference

The Deregulation Act 2015 came into force on 26 March 2015. The Act introduced a new power to make ambulatory references to international instruments by virtue of new section 306A of the Merchant Shipping Act 1995. The Merchant Shipping (High Speed Craft) Regulations 2022 will make use of this new power.

An ambulatory reference in this context is a reference in domestic legislation to an international instrument which is interpreted as a reference to the international instrument as modified from time to time (and not simply the version of the instrument that exists at the time the domestic legislation is made).

The main benefits of using ambulatory reference are simplification, clarity, cost saving for industry and the taxpayer and prompt compliance by the UK with international obligations. The UK government negotiating position in the IMO on any potential future amendments which will eventually be incorporated by ambulatory reference will be developed in conjunction with interested parties, mainly from industry and the Trades Unions.

Parliamentary control will be maintained, as the Secretary of State will always have the power to make an instrument to prevent an unwanted amendment to SOLAS Chapter X (including the Codes) from becoming UK law. Such an event is thought to be extremely unlikely as the measures are generally related to safety, are agreed internationally (with the UK government and industry involved) and will invariably be international obligations which the UK has to fulfil, and internationally applicable standards with which UK ships will have to comply regardless of whether they pass into domestic law or not. Also, the UK has the option of rejecting amendments under SOLAS, even if agreed by the broader IMO membership, in which case the international obligation to incorporate them into UK law will not arise.

Section 3: Consultation

The consultation was carried out between 12 August 2021 and 6 October 2021. The press release can be found here and the consultation here.

A total of three responses were received, one from the main representative body for UK shipowners, the UK Chamber of Shipping, one from the Law Society of Scotland, and an individual presumed to work in the industry (from the responses received) but this was not confirmed. Not all respondents answered all the questions posed. Some additional comments have been received. These have been fully considered.

Section 4: Consultation outcome

Questions posed

Questions were posed in the consultation, and these, together with the consultee comments on them and the government responses to the consultee comments, are shown in detail at Annex A. However, the main points are summarised below.

Main subject areas

4a. Policy - Application and technical content of SOLAS X and the High Speed Craft Codes 1994 and 2000

Industry consultees confirmed that they were already operating in compliance with the latest versions of SOLAS X, and the High Speed Craft Codes 1994 and 2000.

Government response:

Noted.

4b. Ambulatory Reference

All three consultees confirmed that they agreed with the proposed use of Ambulatory Reference provision in the context of SOLAS Chapter X and the HSC Codes. One consultee advised that we must ensure early engagement with the marine industry during IMO negotiations of future proposed amendments to the HSC Codes. This consultee also expressed the importance of the Secretary of State retaining the powers to legislate to prevent an unwanted amendment to SOLAS or the High Speed Craft Codes 1994 and 2000 from becoming UK law.

Government response:

It is noted that the consultees agree with the government’s proposal to introduce an Ambulatory Reference provision to help keep future UK law aligned with international maritime obligations. The MCA already engages with the maritime industry across the spectrum of IMO convention negotiations, including SOLAS and the HSC Codes, with particular engagement with a number of relevant maritime trade associations such as the UK Chamber of Shipping, International Association of Classification Societies & the International Marine Contractors Association for example. Given the UK’s good standing at the IMO, our strong policy and negotiating teams, and our wide industry engagement it is very unlikely that the UK would not wish, in future, to implement amendments to SOLAS X (the High Speed Craft Codes 1994 and 2000), that we had been engaged in developing. However, this power to not implement such changes into UK law is retained by the Secretary of State.

4c. Cost and benefit assessment

No consultee disagreed with the assumption made in the Impact Assessment that any associated costs had already been incurred by affected shipowners due to the need to comply when operating internationally.

Government response:

Noted.

4d. Offences and Penalties

Whilst all consultees agreed with the offences and penalties, one consultee requested that we raise awareness of these to those working in the sector, particularly about the criminal offences.

Government response:

Broader government policy is that offences and penalties should be no more than necessary to achieve effective deterrent and enforcement. As commercial craft, the offences and penalties for breaching these regulations are well understood by operators.

4e. Guidance

Only one consultee answered this, who agreed that the format or content of the guidance provided in the draft Marine Guidance Note (MGN) was clear.

Government response:

Noted.

Section 5: Next Steps

The government will finalise the Regulations with a view to bringing them into force during 2022.

Annex A - Consultation questions and answers

Consultation Questions, Consultee Answers and Government Responses to the Answers

The Response form was Section 5 of the Consultation Document

Question	Summary of consultee views	Government response
1. Do you maintain your vessel in line with the post-2015 version of the international HSC Codes or latest international standards already?	The two industry consultees confirmed yes, the third did not respond.	The government has noted the comments.
2. Is the assumption that industry is already compliant with the latest IMO standards accurate?	The two industry consultees confirmed yes, the third did not respond.	The government has noted the comments.
3. When carrying out the safety drills relating to entry and rescue in enclosed spaces onboard vessels how many crew are involved?	Only one consultee responded to this question, reporting that 30 to 35 crew were involved.	The government has noted the comments - although for many high speed craft, they are likely to have a crew compliment much fewer than 30. This is taken to mean essentially a “whole crew response”.
4. Do you agree that any costs of additional drills and record keeping are already being incurred by HSC operators and they are already compliant?	The two Industry consultees agreed with the government’s interpretation on this, the third did not respond.	The government has noted the comments.
5. For operators that are not already compliant, do the estimated cost ranges provided in the Table at paragraph 2.5.4 of the consultation document reflect the cost of the safety drill relating to entry and rescue in enclosed spaces onboard?	Only one consultee responded, and they confirmed that the cost ranges were accurate.	The government has noted the comments.
6. Is the assumption that most of industry is already familiar with the requirements set out within the IMO Convention accurate? (Consultees are asked to provide evidence if familiarisation with the new regulations will take a significant amount of time away from business-as-usual operations.)	Two consultees responded, and both confirmed they are already familiar with their requirements under the IMO Convention	The government has noted the comments.
7. Do you agree with the use of Ambulatory Reference in the context of SOLAS Chapter X and the HSC Codes?	All three consultees confirmed that they agreed with the use of Ambulatory Reference in the context of SOLAS Chapter X and the HSC Codes. One consultee advised that we must ensure early engagements with the marine industry during IMO negotiations of future proposed amendments to the HSC Codes. This consultee also expressed the importance of the Secretary of State retaining the powers to make regulations to prevent an unwanted amendment to SOLAS or the High Speed Craft Codes 1994 and 2000 from becoming UK law, recognising, however, that the measures concerned will be international legal obligations with which UK ships are required to comply regardless of the amendments not taking effect in UK law. It is important that these obligations are respected and that in the event of divergence, steps are taken to raise awareness of the situation within the sector.	The government has noted the comments. The MCA already engages well with the maritime industry across the spectrum of IMO convention negotiations, including SOLAS and the HSC Codes, with particular engagement with a number of relevant maritime trade associations such as the UK Chamber of Shipping, International Association of Classification Societies & the International Marine Contractors Association for example. Given the UK’s good standing at the IMO, our strong policy and negotiating teams, our wide industry engagement it is very unlikely that the UK would not wish, in future, to implement amendments to SOLAS X (including the High Speed Codes 1994 and 2000), that we had been engaged in developing. However, this power to not implement such changes into UK law is retained by the Secretary of State.
8. Do you agree that the draft Marine Guidance Note (MGN) is clear?	Only one of the respondents answered this query with “Yes” and no further comments.	The government has noted the comments.
9. Do you have any additional comments to add to the response	One consultee commented on the IMO’s formula for the determination of whether a vessel should be defined as a High Speed Craft, and requested whether this calculation could be simplified, so that operators can more easily determine whether they are operating a High Speed Craft, and offered some alternative suggestions. In addition, the consultee agreed the offences and penalties proposed, and with the policy intention to pursue civil sanctions whenever possible before using criminal offences but requested that we ensure that we undertake suitable awareness-raising to ensure those operating in the sector are aware of these regulations, and in particular, the criminal offences.	The government has noted the comments and advises firstly that the calculation for determining whether a vessel is a High Speed Craft in accordance with the 1994 and 2000 codes is an IMO agreed calculation. Furthermore, all operators will know to which code their vessel was constructed, and to which code it is currently certified to, so this is not an issue. As commercial craft, the offences and penalties for breaching these regulations are well understood by operators.