Legal view

OPLAC asked a lawyer about whether a Harbour Revision Order could amend an Act of Parliament without having to go through Parliament.

His initial reaction, like eveyone else's, was 'of course not, this cannot go through without being debated in the Commons'.  However he looked into it further and was amazed to discover it can, below is what he told us:

    " I am about to demonstrate as much humility as a lawyer can reasonably be expected to show...  The Harbours Act 1964 (as amended) does seem to allow for subordinate legislation (in the shape of an HRO) to amend the Port of London Act. The offending provision is Section 14, which conferred powers by statutury order to make provisions:

 "for repealing or amending any statutury provision of local application affecting the harbour to which the order relates".

 I am not 100% sure, but I do not think that the PLA legislation can be regarded as "local legislation" as opposed to a set of Public General Acts of Parliament.

 However Section 14 was amended by the Transport and Works Act 1992 (Schedule 3 para 1 (4) (c)) to read:

 "for excluding or modifying any provision of any Act or of any instrument made under any Act (including this Act) and for repealing or amending any statutory provision of local application affecting the harbour to which the order relates".

 You will appreciate the distinction.  The power to amend has been completely opened wide to "any Act".  It is there in black and white but all I can say as a lawyer is that I am appalled.  I have never seen this before.  It is not what I was taught in my Constitutional Law classes all those years ago!  It is certainly not what was the intention of the original Harbours Act, with its references to "local laws".  Someone has engineered this one through under the slipscreen and it would be interesting to look through Hansard for the debates on the 1992 Transport and Works Act."

OPLAC have located the Hansard debate here. To his credit Labour MP Nigel Spearing got up to object (but to no avail):

"I take exception to that provision, because it transgresses the principle that an Act of Parliament should be amended only by another Act of Parliament. If it is contentious, it should be debated as an Act and not smuggled through in a statutory instrument, still less one that has no powers of annulment and is not even subject to an affirmative resolution."

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