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Parliamentary Commissioner for Administration

Selected Cases and Summaries of Completed Investigations - October 2000 to March 2001

Volume 4 - 2nd REPORT - SESSION 2001-2002

Chapter 1

DEPARTMENT OF THE ENVIRONMENT, TRANSPORT AND THE REGIONS

2. Case No. C.1794

Maritime and Coastguard Agency: failure to take effective action to resolve conflicting requirements relating to boat hire licensing

Summary

Section 38(4)(a) of the Civic Government (Scotland) Act 1982 (the 1982 Act) exempts from compliance with local authority boat hire licensing schemes those vessels in respect of which load line exemptions and other specified merchant shipping certificates have been issued. Small commercial vessel certificates are issued in the United Kingdom on behalf of the Maritime and Coastguard Agency (the Agency) under the provisions of merchant shipping legislation and in accordance with the Code of Practice for the Safety of Small Commercial Motor Vessels. The Agency consider small commercial vessel certificates equivalent in law to load line exemption certificates. In March 1998 Mr Birks sought exemption from complying with his local authority’s boat hire licensing scheme as a small commercial vessel certificate had been issued in respect of his vessel. However, the authority insisted on compliance as the certificate did not bear the title of one of those specified in section 38(4)(a) of the 1982 Act. Mr Birks complained to the Ombudsman that the Agency had failed to take effective action to resolve matters; and that insistence on compliance with the boat hire licensing scheme had restricted his commercial activity. The Ombudsman was satisfied that in March and April 1998 the Agency had tried at an early stage, albeit unsuccessfully, to resolve matters for Mr Birks. However, he criticised the Agency for not, thereafter, taking further effective action until October 1999. He also criticised the Agency for not canvassing with Mr Birks the possibility of issuing a load line exemption certificate in respect of his vessel pending amendment of the 1982 Act to exempt him from compliance. The Agency agreed proposals to prevent a recurrence of the problem encountered by Mr Birks until such time as the Scottish Parliament had considered amending the 1982 Act. They also agreed to offer Mr Birks an ex gratia payment of £2,500 in recognition of lost business as well as the time and effort spent, and the worry caused through their inactions.

Full text

2.1.Mr Birks complained that the Maritime and Coastguard Agency (the Agency), an executive agency of the Department of the Environment, Transport and the Regions (DETR), failed to take effective action on his behalf when his local council insisted that he comply with their boat hire licensing scheme. Mr Birks sought redress for business losses, time spent pursuing matters, and the adverse effects on his health of the events giving rise to the complaint.

2.2 My investigation began in May 2000 once the Ombudsman had received the comments of the Chief Executive of the Agency after the referral of the complaint by the Member. I have not put into the report every detail investigated by the Ombudsman’s staff, but I am satisfied that no matter of significance has been overlooked.

The Agency

2.3 The Agency was formed on 1 April 1998 following the merger of the Marine Safety Agency and the Coastguard Agency. For convenience, I refer to “the Agency” throughout this report. The Agency’s overall aims, which include the development, promotion and enforcement of high standards of maritime safety, contribute to the achievement of DETR’s main objectives. Those objectives include the efficient and fair delivery of regulatory and other transport services to the public and industry.

Merchant shipping legislation

2.4 The Merchant Shipping (Vessels in Commercial Use for Sport or Pleasure) Regulations 1993 (the 1993 Regulations) applied load line rules under which load line and load line exemption certificates were issued. The 1993 Regulations came into force in respect of small vessels on 1 April 1994. Regulation 16(2) exempted small vessels from compliance with load line rules and other specified merchant shipping safety regulations if they had been examined and certificated under the then Department of Transport’s Codes of Practice for the Safety of Small Commercial Motor Vessels and for the Safety of Small Commercial Sailing Vessels. The Merchant Shipping Act 1995 consolidated the Merchant Shipping Acts 1894 to 1994 which had previously provided for load line rules.

2.5 The Merchant Shipping (Vessels in Commercial Use for Sport or Pleasure) Regulations 1998 (the 1998 Regulations) revoked the 1993 Regulations but contained equivalent provision for the exemption of small vessels from compliance with load line rules if they complied with the Codes of Practice. The 1998 Regulations came into force on 16 December 1998 and introduced a Code of Practice for large vessels.

Codes of Practice

2.6 The Code of Practice for the Safety of Small Commercial Motor Vessels (to which I refer hereafter as the Code) came into force on 1 April 1994 and set standards of safety and protection for those on board. It provided in particular for a vessel’s construction, machinery, equipment and stability, and for the correct operation of a vessel so that safety standards are maintained. Certification under the Code permitted operations within one of five areas. Category 4 allowed operations up to 20 miles from a safe haven in favourable weather and in daylight. Paragraph 1.14 of the Code said that compliance with it in no way obviated the need for vessels and/or skippers to comply with local authority licensing requirements where applicable.

2.7 Following an amendment to the load line rules, on 1 April 2000 the Merchant Shipping (Vessels in Commercial Use for Sport or Pleasure) (Amendment) Regulations 2000 introduced the Code of Practice for the Safety of Small Vessels in Commercial Use for Sport or Pleasure Operating from a Nominated Departure Point in respect of small vessels operating to sea within 20 miles of a nominated departure point. The new Code is complementary to the Codes of Practice to which I referred in paragraph 2.4 and I refer hereafter to it as the Nominated Departure Point Code. The Nominated Departure Point Code says that a certificate issued under it is a legal alternative to a load line certificate for small seagoing vessels in commercial use for sport or pleasure. However, a certificate issued under the Nominated Departure Point Code does not bear the title of, or refer to its equivalence to, a load line certificate. Paragraph 1.8 says that any local authority requirements in respect of a vessel’s condition and safety equipment, and the competence of its crew, are to be waived for those vessels in respect of which a valid merchant shipping certificate, such as a load line or load line exemption certificate, or an acceptable Code of Practice certificate as an equivalent, can be presented to the relevant authority.

Local authority licensing

2.8 Section 94 of the Public Health Acts Amendment Act 1907 (the 1907 Act) permits local authorities in England, Wales and Northern Ireland to license pleasure boats and vessels let for hire or used for carrying passengers for hire. Under section 94(4), such a licence is not required for any boat or vessel duly licensed by, or under regulations of, the Board of Trade. Section 38 of the Civic Government (Scotland) Act 1982 (the 1982 Act) requires local authorities in Scotland to issue boat hire licences in respect of vessels let out for hire or carrying for reward 12 or fewer passengers. Section 38(4)(a) stipulates that such a licence is not required for vessels for which there is in force a passenger certificate, a load line certificate or a load line exemption certificate. Appeals against Scottish local authority decisions on boat hire licences issued under the 1982 Act are made to a sheriff court.

Jurisdiction

2.9 The Ombudsman may only investigate complaints of maladministration on the part of those central government departments and other bodies which are listed in Schedule 2 to the Parliamentary Commissioner Act 1967 as being within his jurisdiction. The district councils and the Office of the Solicitor to the Scottish Executive are not so listed. In this report I refer to their actions and decisions only to put into context the actions of the Agency to which my investigation has been confined.

Investigation

2.10 For convenience, I refer hereafter to Mr Birks’ district council boat hire licence as the boat hire licence and to his small commercial vessel certificate as the certificate, unless clarity requires otherwise. I refer in full to other certificates issued under merchant shipping legislation.

2.11 1995-1997 On 7 April 1995 Mr Birks’ former district council issued, under section 38 of the 1982 Act and subject to standard council conditions, a boat hire licence valid until 6 April 1998 permitting the carriage aboard Mr Birks’ boat of 12 persons, including the person in charge and crew, within a 15 mile radius of a point which I refer to as G and 3 miles off shore. Following the amalgamation of a number of district councils, including Mr Birks’, a new council was formed. I refer to that body as the council. The Agency told the Ombudsman’s staff that prior to its formation, only the district council local office relevant to Mr Birks’ case had exercised boat licensing powers within the council’s jurisdiction.

2.12 1998 On 17 February 1998 the Royal Yachting Association (the yachting association), acting on behalf of the Agency, issued under the Code a small commercial vessel certificate, valid until 9 February 2003, in respect of Mr Birks’ boat. The certificate permitted the carriage aboard the boat of 14 persons, but not more than 12 passengers, within 20 miles of a safe haven.

2.13 Mr Birks gave the account contained within this paragraph to the Ombudsman’s staff from his recollection of events and diary. On 3 March Mr Birks’ wife telephoned the council’s local licensing officer saying that they did not intend to renew the boat hire licence as the yachting association had issued a small commercial vessel certificate in respect of the boat. The licensing officer said that a boat hire licence was still required. On 4 March Mr Birks telephoned the licensing officer who reiterated that a boat hire licence was required. Shortly thereafter, he recounted events to the yachting association. They disagreed with the council’s position and said that similar problems had arisen with other councils, citing an example. In that case, the council had backed down following intervention and clarification by the Agency. On 5 March Mr Birks telephoned the Agency asking them to contact the licensing officer. The Agency told him that it would be more appropriate for the licensing officer to telephone them, which she did, at Mr Birks’ request. The Agency subsequently told him that the licensing officer had conceded that there was a conflict between the relevant regulations – the Code and the 1982 Act – and had said that the council’s licensing sub-committee would remove the conditions imposed on the licence.

2.14 On 6 March Mr Birks faxed a copy of his small commercial vessel certificate to the licensing officer asking for an amended boat hire licence allowing 13 persons to be carried aboard his boat. (The council’s then policy was to permit on board a maximum of 13 passengers, including crew but excluding the person in charge.) That same day the council issued an amended licence, valid until 6 April and subject to standard council conditions, permitting Mr Birks’ vessel to carry 13 people, including the person in charge and other crew, within a 15 mile radius of G and 3 miles off shore. On 10 March Mr Birks completed an application to renew his boat hire licence asking the council to bring its conditions in line with those of his small commercial vessel certificate, to which he referred to as a passenger certificate. That same day he wrote to the council area solicitor enclosing a copy of his certificate and asking for the number of persons permitted aboard his boat to be increased to 12 passengers and two crew. He said that the licensing officer had told him that he was required to hold a boat hire licence despite the certificate. According to advice from the yachting association and the Agency, the conditions of his licence, if required at all, should at least accord with those of his certificate. Otherwise, boat operators in the local area would be disadvantaged. Neither the yachting association nor the Agency knew of other local authorities in the United Kingdom applying conditions at variance with those of the Agency. The Agency had asked to be kept informed. That same day Mr Birks faxed a copy of that letter to the council’s legal department. Mr Birks’ letter and fax of 10 March were passed for reply to the council area administrator responsible for boat hire licensing in Mr Birks’ area.

2.15 On 16 March Mr Birks faxed the area administrator saying that the Agency had told him that the Merchant Shipping Act 1995, an international convention and the 1993 Regulations had brought the Code into force; and that his “passenger certificate” was a valid passenger certificate equivalent in law to a load line exemption certificate. He was therefore exempt under the 1982 Act from the requirement to hold a boat hire licence. On 20 March the licensing officer replied to that fax and Mr Birks’ application to renew the boat hire licence saying that the small commercial vessel certificate, which Mr Birks contended was equivalent to a passenger certificate or a load line exemption certificate, certified compliance with the Code. However, section 1.14 of the Code said that compliance with the Code in no way obviated the need for compliance with local authority licensing requirements. He was therefore required to hold a licence. The council was reviewing policy and conditions in respect of all its licensing schemes, including boat hire licences. However, as matters stood, a boat hire licence was required if he wished to continue operations from any point of departure within the local area. Alternatively, he could apply for a load line exemption certificate which would exempt him from licensing requirements. Following further representations to the council, on 23 March Mr Birks faxed to the Agency his small commercial vessel certificate and the 6 March boat hire licence asking them to take legal advice on the matter. He also asked whether the council had power under the 1982 Act to reduce the maximum number of persons permitted aboard his boat. An undated hand-written note appears on the Agency’s copy of Mr Birks’ fax cover sheet. It says “NFA [no further action] for time being. Spoke to [the licensing officer] and Ian Birks. [Local authority] will accept his application for 12 [passengers] and 2 crew for consideration if supported by DOT [Department of Transport] code cert for 14 persons on board”. On 30 March the licensing officer wrote explaining to Mr Birks that his application to renew his boat hire licence would be referred to the council’s licensing sub-committee. If they refused his application or restricted his licence, he could appeal.

2.16 On 23 April the Agency wrote to the licensing officer saying that the Professional Boatmen’s Association (the boatmen’s association) had passed them her letter to Mr Birks of 20 March as the association were concerned about the requirement for two licences in respect of the same commercial enterprise. They said that Mr Birks’ small commercial vessel certificate was equivalent to a load line exemption certificate. The Codes of Practice for small commercial motor and sail vessels provided an equivalence in law to all the requirements of merchant shipping legislation for vessels under 24 metres in length used commercially for sport or pleasure. If Mr Birks asked the Agency for a load line exemption certificate, his vessel would be surveyed against the standards in the Code. Section 1.14 of the Code covered non-safety matters that might require a licence, of which they gave examples. The Agency was keen to ensure that all vessels operated safely at the lowest cost to operators and the requirement for dual licensing did not help to that end. They hoped the council could agree to vessels with small commercial vessel certificates operating in a similar manner to those with load line exemption certificates. (Mr Birks told the Ombudsman’s staff that in his view the Agency had not worded the letter sufficiently strongly. They should have set out forcefully that vessels issued with Code of Practice certificates were exempt from local authority licensing schemes. The Agency should also have directed their letter at an appropriate level within the council, for example the head of legal services, rather than to the licensing officer.) On 29 April the Agency faxed a copy of that letter to the boatmen’s association asking to be kept informed if Mr Birks contacted them. They said that they would consider what further action they could take if matters remained unresolved.

2.17 On 19 May the council referred Mr Birks’ application to renew his boat hire licence to a licensing sub-committee hearing to be held on 5 June. They said that legal advice was that Mr Birks’ small commercial vessel certificate was not one of those to which section 38(4) of the 1982 Act referred. A licence would therefore be required until such time as the 1982 Act was amended. However, there was no reason to restrict the crew to one member. Two might be safer. On 2 June the boatmen’s association faxed a note to the Agency following a telephone conversation between them that day. They said that even if the council agreed to licence Mr Birks’ boat for 12 passengers and two crew, such a licence would still restrict his operations to within 15 miles of G and 3 miles off shore. Mr Birks’ Code of Practice certificate allowed him to operate up to 20 miles from a safe haven and he had business demand out to that limit. The problem could affect some 200 other vessels in Scotland. If the Agency could persuade the council to adopt the Agency’s standards, restrictions on the businesses of the boatmen’s association’s membership would be removed until such time as the Agency updated the relevant legislation. The Agency replied by fax that same day. They said that Mr Birks held a category 4 certificate that was equivalent to a load line exemption certificate and allowed him to operate out to 20 miles. They were content for him to operate within the limits specified in the certificate. The “anomaly” in Mr Birks’ case appeared to stem from the wording of the 1982 Act which did not cover Code of Practice certificates. They had written explaining to the council that such certificates were equivalent to load line exemption certificates and hoped that the licensing sub-committee meeting would resolve matters for Mr Birks. On 17 June the council issued a three year licence, subject to standard council conditions, permitting Mr Birks’ boat to carry 12 passengers and two crew within a 20 mile radius of G.

2.18 The Agency told the Ombudsman’s staff that around September they had tried to arrange a meeting with officials from the Home, Welsh, Scottish and Northern Ireland Offices to air the matter and discuss the way forward as the 1982 Act had to be amended if Scottish councils insisted upon direct reference in it to Code of Practice certificates. However, the meeting had been abandoned in the light of a poor response: only one Welsh Office official had been prepared to attend. On 17 September the Agency replied to a letter from the council dated 8 September (which I have not seen) saying that some councils were reluctant to accept Code of Practice certificates although the Secretary of State of DETR considered them an acceptable equivalent to load line exemption certificates. They were therefore anxious to amend the 1907 and 1982 Acts to recognise Code of Practice certificates. They suggested wording for an amendment.

2.19 On 3 December the council wrote to Mr Birks saying that as a result of their review of civic government licensing, they had reviewed the [standard] conditions applied to boat hire licences. If they decided to apply revised conditions, they would replace the conditions of his licence with the revised conditions, a copy of which they enclosed. They invited Mr Birks to a committee meeting on 18 December which would discuss matters but said that he could send written representations to arrive by 9 December. On 9 December Mr Birks wrote to the Agency recounting the conditions of his amended licence and the council’s intention to apply further conditions, some of which, he said, conflicted directly with the provisions of the Code. For example, amending the conditions as intended would result in no seal surveys, no bird colony landings on islands, and no island walks landed via shore as he would no longer be able to embark/disembark other than from slipways, piers and jetties in good and sufficient order and repair. Also, all buoys and life jackets would require lights whereas there was no such requirement under the Code. The council intended to apply the rules throughout their area and required all operators, Code of Practice certificates notwithstanding, to hold a licence specifying operations within the 15 and 3 mile limits from a named starting point. The council continued to challenge the Agency’s legal authority to certify his vessel when such authority exempted him from the council’s licensing scheme. Mr Birks concluded by asking whether the Nominated Departure Point Code would resolve matters when it came into force. On 10 December Mr Birks faxed the Agency asking them to become directly involved, preferably by attending the 18 December meeting. (In the event, the Agency did not attend.)

2.20 On 15 December Mr Birks faxed the Agency asking, on his legal advisers’ behalf, for details of the legislative background to the Code and the equivalence in law of his small commercial vessel certificate to a load line exemption certificate. He explained that his legal insurers had accepted a claim. That same day the Agency replied by fax saying that the 1993 Regulations had given force to the Code as an alternative to load line and other legislation that would otherwise apply to vessels used commercially at sea. Regulations to be introduced in the near future would not affect Mr Birks as they covered only vessels over 24 metres in length (by which they presumably meant the Code of Practice for large vessels). On 17 December, the Agency faxed to Mr Birks’ legal advisers a copy of the 1998 Regulations which, they said, had replaced the 1993 Regulations but achieved the same outcome in a different form of words. Despite representations from Mr Birks’ legal advisers at the 18 December meeting, the council imposed revised standard conditions on his licence. (Mr Birks told the Ombudsman’s staff that the chairman had told him at the meeting that the Agency’s marine office (marine office A) had approved the proposed standard conditions. In his view, marine office A should have passed the matter to the Agency’s headquarters.) On 29 December Mr Birks faxed the Agency asking them to take further action as nothing substantive had changed.

2.21 1999 On 25 January 1999 Mr Birks wrote to the Agency saying that his legal insurers had agreed to fund an appeal. While private court action might represent an economic and effective solution for the Agency, they ought to become directly involved as a matter of principle. (I found no evidence that the Agency replied, although they had received the letter on 28 January.) On 20 May Mr Birks wrote to the Agency saying that the council had failed to attend the appeal hearing on 6 May. The appeal had been adjourned to July. According to Mr Birks, the court subsequently held that he could challenge only the specific conditions of the licence rather than its legal status. His appeal failed.

2.22 On 4 October the Agency replied to a letter from Mr Birks dated 25 September (which I have not seen). They said that they were disappointed that he was still experiencing difficulties especially after his legal action for which they had provided advice for his legal advisers. (I have seen no record of such advice.) They would seek legal advice on local authority boat hire licensing powers to establish whether the Agency could influence advice given to local authorities in England and Scotland. The Agency had no control over local authorities’ statutory power to licence. That same day the Agency wrote asking DETR’s legal branch for advice and inviting them to a meeting to discuss matters. They said that the introduction of the Nominated Departure Point Code on 1 April 2000 would exacerbate matters. On 6 October the Member wrote asking a Parliamentary Under-Secretary of State at DETR to consider matters. On 19 October the boatmen’s association wrote asking the Agency a number of specific questions, including whether Mr Birks’ case set a precedent and the implications for the implementation of the Nominated Departure Point Code. They concluded by asking for matters to be resolved as quickly as possible because many of their members could be affected. On 21 October DETR’s legal group faxed the Agency outlining, for discussion at a meeting the following day, the need to amend the 1907 and 1982 Acts to recognise the provisions of Code of Practice certificates. Regarding a similar problem elsewhere, they said that section 38(4)(a) of the 1982 Act unambiguously required a passenger certificate, a load line certificate or a load line exemption certificate. The need to amend the 1982 Act was therefore more pressing than for the 1907 Act. On 28 October DETR’s legal group faxed the Office of the Solicitor to the Advocate General for Scotland (which is part of the Scotland Office and advises UK departments on matters of Scots law) outlining the statutory overlap between local authority boat hire licensing and the provisions of merchant shipping legislation. They cited Mr Birks’ case by way of example in Scotland and asked to discuss amending the 1982 Act.

2.23 On 17 November the Parliamentary Under-Secretary of State at DETR responsible for shipping replied to the Member’s letter of 6 October. He said that the problem in Mr Birks’ case had arisen from the way in which the council drew its powers to issue boat hire licences. Local authorities were allowed under the 1982 Act to issue such licences but not where the owner produced evidence that the vessel had been surveyed and certificated by the Agency or agents acting on their behalf. The 1982 Act prescribed such evidence as a passenger ship certificate, a load line certificate, or a load line exemption certificate. Mr Birks’ vessel had been surveyed and issued a Code of Practice certificate, equivalent in law under the 1998 Regulations to a load line exemption certificate. While the Agency had informed the council that Mr Birks’ small commercial vessel certificate was so equivalent, the council would not accept it as it did not bear the title of one the certificates stipulated under the 1982 Act. They therefore required Mr Birks to comply with their boat hire licensing scheme. The Agency had asked DETR’s legal advisers to investigate how best to resolve such conflict. The Solicitor to the Advocate General for Scotland had to be approached to resolve matters in Scotland, for example, by amending the 1982 Act. Similar action might also be necessary in relation to equivalent provisions in England, Wales and Northern Ireland (by which he presumably meant the 1907 Act). Legal advisers were considering whether an amendment to the title of Code of Practice certificates would provide an effective remedy.

2.24 On 9 December the Agency faxed DETR’s legal group asking whether they had received a reply to their 28 October fax to the Office of the Solicitor to the Advocate General for Scotland (paragraph 2.22). They said that several local authorities had asked about the issue in respect of the Nominated Departure Point Code that would come into force on 1 April 2000.

2.25 On 23 February 2000 the Member referred the complaint to the Ombudsman.

The Agency’s comments on the complaint

2.26 The Agency’s Chief Executive told the Ombudsman that, while sympathetic to Mr Birks’ difficulties, the Agency considered the situation an exception rather than the rule. Mr Birks’ predicament had arisen from the council’s refusal to accept certification under the Code as an equivalence to a load line exemption certificate. The Agency had tried to resolve matters, at least in the short-term, by means of correspondence between the council and Mr Birks. However, by October 1999 it had become evident that matters could not be solved in that way and they had, with the assistance of DETR’s legal group, forwarded proposals to the Solicitor to the Advocate General for Scotland.

Further developments

2.27 On 28 February 2000 DETR’s legal group replied by fax to the Agency’s fax of 9 December 1999 saying that, despite chasing on a number of occasions, they had not received a reply to their letter of 28 October. However, they recorded that they ought to press on with “ploughing [their] own furrow” in relation to England, Wales and Northern Ireland, but keeping Scotland informed. To that end, they raised a number of issues and enclosed draft regulations (which I have not seen) to remedy matters in England, Wales and Northern Ireland. On 22 May DETR’s legal group faxed the Office of the Solicitor to the Advocate General for Scotland saying that they had not received a reply to their 28 October letter. It was difficult to progress matters in England, Wales and Northern Ireland without taking into account what was to be done in Scotland. That same day the Office of the Solicitor to the Advocate General replied saying that they had discussed matters on the telephone with DETR’s legal group on a number of occasions and that they had both agreed that there was every likelihood that an amendment to primary legislation was required. They conceded that they had not replied to DETR’s legal group’s letter of 28 October but explained that they had forwarded it to the Office of the Solicitor to the Scottish Executive for their views. Despite pursuing the matter, they had not received a reply.

2.28 On 6 June DETR’s legal group wrote to the Office of the Solicitor to the Advocate General for Scotland saying that, while it would not have been appropriate for the Agency to have intervened directly in Mr Birks’ dispute, it might be argued that they should have done more to resolve the conflict between merchant shipping legislation and the 1982 Act. On 13 June the Office of the Solicitor to the Advocate General for Scotland telephoned DETR’s legal group saying that in their view the Scottish Executive would need to amend the 1982 Act. They had not received the views of the Scottish Executive’s solicitors. On 14 June the Office of the Solicitor to the Advocate General for Scotland replied to DETR’s legal group’s letter of 6 June agreeing that the Agency might have done more to air the question of the statutory overlap. On 27 June DETR’s legal group wrote to the Office of the Solicitor to the Scottish Executive. Regarding Mr Birks’ complaint as put to the Ombudsman, they said that DETR had queried whether the Agency had been responsible for resolving the legal inconsistency that had arisen; and if so, whether they, rather than Mr Birks, should have taken corrective action. Legal group’s view was that it would have been inappropriate for the Agency to have intervened directly in Mr Birks’ dispute with the council. However, it could be argued that they should have done more to resolve the conflict between merchant shipping legislation and the 1982 Act. Section 292 of the Merchant Shipping Act 1995 provided that “the Secretary of State shall continue to have the general superintendence of all matters relating to merchant shipping and seamen and is authorised to carry in to execution the provisions of this Act and of all Acts relating to merchant shipping and seamen for the time being in force, except where otherwise provided or so far as relating to revenue”. In practice, the Secretary of State was that for DETR, and the Agency was an executive agency of his department. The legal group said that they did not know which minister would generally have been responsible for the 1982 Act and for making necessary amendments to it between April 1998 and autumn 1999. It was unlikely to have been the Secretary of State for DETR. The Agency’s comments to the Ombudsman on Mr Birks’ complaint had not clarified the point. Legal group concluded by asking whether there had been progress on replying to the issue of amending the 1982 Act. That same day they faxed the Agency explaining that they and the Office of the Solicitor to the Advocate General for Scotland had agreed that it was for the Scottish Executive, rather than the Westminster Parliament, to amend the 1982 Act. They asked for a reply to their 28 February note, in particular regarding the draft regulations.

Further enquiries

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Findings

2.35 Through no fault of his own, Mr Birks fell foul of a conflict between the interpretation of the provisions of the Code and the 1982 Act. The Ombudsman is unable to comment on the interpretation of such legislation as its content and the need for amendment are matters for the relevant territorial legislative body to consider. However, he can examine the steps taken to resolve the problem experienced by Mr Birks once the conflict in interpretation had come to light, and assess what disadvantage, if any, Mr Birks suffered as a result. The Ombudsman may also examine whether matters have been adequately resolved in the broader context of boat operators.

2.36 In March and April 1998 the Agency took action following representations from Mr Birks in an attempt to resolve matters quickly and informally for him. In September they tried to arrange an inter-departmental meeting to air the matter and wrote unilaterally to the council suggesting an amendment to the 1982 Act. Following further representations from Mr Birks after his appeal had failed, in October 1999 the Agency consulted DETR’s lawyers on how to resolve matters and active consideration was then given to amending the 1907 and 1982 Acts. I have to consider whether the Agency’s own actions, as well as the whole chain of events, represented a reasonable response by the Agency to the situation in which Mr Birks found himself; and if not, the effect of that for Mr Birks.

2.37 I turn first to March and April 1998. Following representations from Mr Birks in early March, the Agency’s discussion with the licensing officer appeared to have resolved matters at an early stage (paragraph 2.15). However, following the boatmen’s association’s intervention in the face of the council’s continuing insistence that Mr Birks comply with their licensing scheme, the Agency wrote to the licensing officer clarifying matters further on 23 April 1998 (paragraph 2.16). Mr Birks complained to the Ombudsman’s staff that the Agency’s letter had not outlined the position in sufficient force; and that they should have addressed the letter to an officer more senior than the licensing officer. I find no fault with the tone of the letter as it clarified the Agency’s view that Mr Birks’ small commercial vessel certificate was equivalent in law to a load line exemption certificate and that he was therefore exempt from the council’s licensing scheme. Additionally, I find no fault with the Agency having written to the licensing officer rather than a more senior officer. In that context I note that Mr Birks’ own correspondence to the area administrator and the legal department was passed to the licensing officer for reply. I consider the Agency’s letter a pragmatic, albeit unsuccessful, approach to remedy matters quickly for Mr Birks.

2.38 The Agency then took no further meaningful action until September. Unfortunately, their attempts to discuss inter-departmentally the need for amending the 1907 and 1982 Acts bore no fruit (paragraph 2.18). I accept that such attempts were made in good faith, but find it surprising and regrettable first, that they did not take action earlier, and secondly that they did not bring matters to the attention of DETR or invite DETR officials to the meeting. Given the Secretary of State’s role and that of his department in merchant shipping matters (paragraphs 2.3 and 2.28), they should have done so. Thereafter the question of the need for amending the legislation drifted for a further 12 months. It was not until October 1999 that the Agency finally consulted DETR’s legal advisers following further representations from Mr Birks (paragraph 2.22). That was some 20 months after Mr Birks had first raised matters with the Agency in March 1998. I accept that, in the short-term, earlier advice from DETR’s legal group would not have resolved matters for Mr Birks, but the ball would have started rolling towards amending the 1982 Act at a much earlier stage. Additionally, in their comments on Mr Birks’ complaint, the Agency did not clarify who was responsible for resolving the legislative issue complained about (paragraphs 2.26 and 2.28). If the Agency were not responsible for resolving matters, they should have immediately brought it to the attention of those who were. Their failure to do so merits my criticism. I note that Mr Birks asked the Agency to intervene directly in his dispute with the council (paragraphs 2.19 and 2.21). I find it disappointing that the Agency apparently failed to reply to his direct appeal of 25 January 1999 for intervention. More so because the solution to render Mr Birks’ court action redundant was in the Agency’s own hands (see paragraph 2.39). I have found no evidence that the Agency actively considered whether to contribute, especially in the earlier stages when a useful clarification of a point of law was at issue. Those inactions merit my criticism.

2.39 Mr Birks complained to the Ombudsman’s staff that the Code of Practice certificates should have been drafted in such a way as to avoid the problems that had arisen in his case. The Agency told the Ombudsman’s staff that when introducing the Codes of Practice they would have relied on legal advice on the need for amending primary legislation; and that, in their view, the Codes of Practice provided for certificates that were implicitly (my emphasis) equivalent to a load line exemption certificate. While that may be so, in my view, refusal by the council to exempt Mr Birks under section 38(4)(a) of the 1982 Act on the ground that his small commercial vessel certificate did not bear a relevant title was not a matter that Mr Birks could resolve himself and had obvious implications for not only Mr Birks but for small vessel operators across Scotland. Subsequent events proved that to be so. The Agency told the Ombudsman’s staff that at the time when matters had come to their attention, their view had been that a load line exemption certificate could have been issued to Mr Birks at his request to circumvent the necessity for dual licensing and the attendant restrictions. However, I found no evidence to support that contention or that they put such a course of action to Mr Birks. In my view, they should have done so as early as September 1998, if not sooner. It seemed to me that their failure to at least raise the possibility with Mr Birks had deprived him of the opportunity of asking for a load line exemption certificate which would have allowed him to operate commercially within the full limits of his small commercial vessel certificate. That was maladministrative and merits my criticism. I therefore invited the Chief Executive to consider whether that could now be rectified and a load line exemption certificate issued in respect of Mr Birks’ boat. I also asked the Chief Executive to agree that similar action should be taken in respect of any future cases such as Mr Birks’ that arise until such time as the 1982 and 1907 Acts have been amended or other solution found, and for him to instruct marine offices accordingly.

2.40 In reply, the Chief Executive said that according to legal advice he had received on the matter Mr Birks could not under the provisions of the 1998 Regulations simultaneously hold a load line exemption certificate and a small commercial vessel certificate. However, the Agency would grant load line exemption certificates to those in Scotland who found themselves in a similar situation to that of Mr Birks and who surrendered their small commercial vessel certificates. The load line exemption certificates would stipulate that the operators comply with the relevant Code of Practice. He had given instructions for the dissemination of that policy to all marine offices. The Chief Executive went on to say that, according to advice from the Office of the Solicitor to the Advocate General for Scotland, section 9 of the 1982 Act provides the machinery for local councils to decide whether to adopt a licensing scheme as well as leeway in deciding the exact structure of the scheme. The Agency would therefore pursue with the Scottish Executive the possibility of encouraging councils to rely on section 9 of the 1982 Act to vary resolutions on boat hire licensing schemes with a view to ensuring that Code of Practice certificates are acceptable to local councils pending amendment of the 1982 Act.

2.41 I turn now to the Nominated Departure Point Code (paragraph 2.7). Mr Birks asked the Agency whether that Code would resolve matters; and told the Ombudsman’s staff that the Agency had advised him that it would. While I have found no evidence of such advice, the Agency did raise concerns about the introduction of the Nominated Departure Point Code with DETR’s legal advisers. I noted that while the Nominated Departure Point Code says that a certificate issued under that Code is considered equivalent to a load line certificate, as with the small commercial vessel certificate, it does not bear the title of, or refer to its equivalence to, a load line certificate. It therefore seemed to me that a similar problem to that experienced by Mr Birks might well occur in respect of operators issued with a certificate under the Nominated Departure Point Code. I therefore invited the Chief Executive to consider how the Agency might resolve such cases if they arose and to instruct marine offices accordingly. In reply he said the Agency would consider requests for load line certification from vessel owners surrendering certificates issued under the Nominated Departure Point Code in the same manner outlined in paragraph 2.40 in respect of small commercial vessel certificates.

2.42 I noted the Agency’s response to Mr Birks’ complaint that the Agency’s marine office A should have passed to their headquarters the council’s request for clearance of the standard conditions intended for boat hire licences (paragraph 2.31). I asked the Chief Executive to clarify whether he was satisfied that marine office A had dealt with the matter or whether they should have passed the matter to the Agency’s headquarters. In reply he said that marine office A had been unable to find a request from the council for assistance. However, according to the council’s notes of the meeting that had taken place on 18 December 1998 (paragraph 2.20), the council had consulted the relevant agencies, which they interpreted to be the police and fire services, rather than the Maritime and Coastguard Agency. The Chief Executive said that he was satisfied that marine office A was, and remains, fully competent to deal with any such requests. Decisions to refer requests to the Agency’s headquarters for advice were taken on a case by case basis.

2.9 What has been the effect of all this for Mr Birks? The view taken by the Ombudsman is that those who have suffered an unremedied injustice as a result of maladministration should be put back in the position they would have been in had the maladministration not occurred. Has Mr Birks suffered an unremedied injustice as a result of maladministration by the Agency? I have found the Agency’s failure to at least canvas the possibility of a load line exemption certificate with Mr Birks to be maladministrative. That omission deprived him of the opportunity of a remedy for the situation while the legislative niceties over which he had no control were resolved. If the Agency had issued a load line exemption certificate in respect of Mr Birks’ vessel, he would not have had to go to the trouble of seeking legal advice and representation for either the 18 December 1998 council meeting or his appeal, and it would have exempted him from the council’s licensing scheme, thereby allowing him to operate commercially within the full range permitted by his small commercial vessel certificate. In the event, he was restricted to operating within the jurisdiction of the local authority boat hire licence. I note that Mr Birks told the Ombudsman’s staff that he was unable to quantify the loss of income his business had suffered. However, I am satisfied that he was restricted from operating his business at full capacity, thereby restricting the generation of income. I therefore invited the Chief Executive to consider offering Mr Birks an ex gratia payment in recognition of his business losses, including those suffered through the need to attend the May 1999 appeal hearing. Further, while I note that Mr Birks did not incur legal fees, he nevertheless had to put a significant amount of time and effort into seeking a resolution to a problem which was of the Agency’s, rather than his own, making. In addition, while I accept that there is no medical evidence regarding the effects of all this on Mr Birks’ health, there can be little doubt that he must have found his position extremely worrying, and the apparent lack of urgency on the Agency’s part to resolve matters can only have increased his concern. I therefore invited the Chief Executive to include in that offer a sum in recognition of the time, trouble, expense and worry to which Mr Birks was put in pursuing matters.

2.10 In reply the Chief Executive said that the Agency did not accept that the problems Mr Birks experienced were solely of their making. While the Agency did not doubt that Mr Birks had spent time, effort and worry in trying to resolve matters, a resolution had been available as early as March 1998 when the council had written explaining to Mr Birks that he could apply for a load line exemption certificate. Following Mr Birks’ decision to question the validity of the boat hire licence, the Agency had done all they could to convince the council that Mr Birks’ small commercial vessel certificate was equivalent to a load line exemption certificate. When it had become clear that the Agency were unable to resolve matters, they had sought to deal with the legal inconsistencies. However, in the circumstances of the case, the Chief Executive agreed to offer Mr Birks an ex gratia payment of £2,500 in recognition of lost business as well as time, effort, worry and expense suffered by Mr Birks. In my view, that offer, which I welcome, adequately compensates Mr Birks for the effects of the maladministration identified in my report.

The Chief Executive also told me that Scottish Ministers had set up a Task Group, due to report by the end of 2001, to review the licensing provisions of the 1982 Act. Additionally, the Scottish Executive intended to consult Scottish licensing authorities over amending section 38 of the 1982 Act, to ensure that amendments would not interfere with, conflict with or cut across their ability to regulate boat hire within their jurisdictions. That would include a request for feedback on difficulties experienced in respect of the conflict between the provisions of the Code and section 38 of the 1982 Act. The Chief Executive said that he would continue to work with the Scottish administration to identify the most suitable way forward to ensure that the Scottish Parliament considered matters as soon as possible.

Conclusion

I criticised the Agency for failure to take effective action once it had become clear that their initial actions had failed to persuade the council that Mr Birks’ small commercial vessel certificate exempted him from complying with the council’s boat hire licensing scheme. I also criticised the Agency’s failure to canvas with Mr Birks at an early stage the opportunity of applying for a load line exemption certificate. Their failure to do so denied him the opportunity of remedying the situation and, as a result, he was restricted from operating his business at full capacity. The Chief Executive agreed to offer Mr Birks an ex gratia payment of £2,500 in recognition of lost business as well as the time, effort, worry and expense that the Agency’s inaction had undoubtedly caused. He also made proposals to ensure that similar problems do not recur pending amendment of the 1982 Act. I regard that as a satisfactory outcome to Mr Birks’ justified complaint.

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Last updated: 4 April 2005