Contact: Merrick Denton-Thompson, ext 6826

email: [email protected]

With the concurrence of the Chairman under Section 100(B)(4)(b) of the Local Government Act 1972, this matter is included on the agenda to enable the River Hamble Harbour Management Committee to approve the future governance of the River Hamble without delay

1. Summary

1.1 The current arrangements for the governance of the River Hamble Harbour Authority were established by the River Hamble Harbour Revision Order 1969 and the River Hamble Harbour Revision Order 1982. The internal governance arrangements within Hampshire County Council, the Municipal Port Authority, were amended as a result of the Local Government Act 2000; these were seen to be interim arrangements pending the review of Municipal Ports by the Government.

1.2 The purpose of this report is to provide a summary of the public consultation on the proposed changes to governance arrangements and to set out a recommended way forward to be considered by the County Council.

2. Corporate Strategy

2.1 The report supports Aims 1 to 5 of the Corporate Strategy (Maximising Life Opportunities, Stewardship of the Environment, Achieving Economic Prosperity, Building Strong and Safe Communities, and Improving Services) by contributing to the statutory duties entailed in the management of the River Hamble.

3. Background

3.1 The River Hamble Harbour Revision Order of 1969 (amended in 1982) established Hampshire County Council as the Harbour Authority, together with the River Hamble Harbour Management Committee. The majority of the Members of this Committee are Members of the County Council.

3.2 In 2001 the decisions to be made by the Harbour Authority moved from the Recreation and Heritage Committee, of which the River Hamble Harbour Management Committee was a sub-committee, to the Executive Member for Environment. These changes were partly as a result of the Local Government Act 2000. At the same time the River Hamble Executive Member's Group and the River Hamble Harbour Advisory
Committee were established. Their terms of reference were agreed by the Standards Committee and the County Council on 13 December 2001. These arrangements were seen to be interim pending the findings and recommendations by the Review of Municipal Ports.

3.3 In June 2003 it became evident that progress on the Review of Municipal Ports was being delayed. Meanwhile, the present arrangements were still interim only and there was a growing wish to put a permanent governance arrangement in place. As a consequence, the River Hamble Harbour Management Committee and the County Council began to consider future governance arrangements. During the autumn of 2003 a range of informal discussions took place with river users and other interested parties. A progress report was considered by the Management Committee on 17 December 2003 which resolved "That the River Hamble Harbour Management Committee supports the River Hamble Harbour Authority remaining as a Municipal Port but consider that informal consultations should also include consideration of a Trust Port".

3.4 During further informal consultation it became clear that there was a need to concentrate on modernising the governance of the Harbour Authority, making it accountable and fit for purpose in line with recommendations of the Trust Ports Review undertaken by former the Department of the Environment, Transport and the Regions, which was published in June 1999.

4. Modernising the Harbour Authority

4.1 Under the current interim arrangements, decisions of the Harbour Authority are made by the Executive Member for Environment. The Executive Member draws on the advice of the River Hamble Executive Member's Group, which itself is made up of a small group of Members from the Management Committee, including local elected Members and representatives from the Royal Yachting Association and the marine industry. The Management Committee itself meets twice a year within a couple of weeks of the River Hamble Harbour Advisory Committee. The Executive Member chairs all these meetings.

4.2 There are 61 Municipal Ports in the country, 57% report to a Committee of elected representatives, 52% report to an Executive Member (a few report to both). However, informal discussions that have taken place with the Ports Division of the Department for Transport over a number of years have concluded that the most appropriate governance arrangement for Ports, including the River Hamble, would be through a Harbour Board, and like a Trust Port the Board should be fit for purpose, open and accountable. A Board made up of between seven and nine members with all the necessary skills and experience to discharge both the Harbour Authority's statutory obligations and discretionary activities is considered by the Department for Transport as being most appropriate.

4.3 Informal consultations also pointed to a number of other weaknesses in the current interim arrangements, and included:

(i) Too many layers, with different types of meetings for `every decision'. Poor use of staff time both within the County Council and for Harbour staff; all of which is confusing for river users.

(ii) With all decisions being made by one person, there has been a general feeling by Members of the Management Committee and Executive Member's Group of being undervalued and disenfranchised from the Harbour Authority.

(iii) There is an apparent lack of clarity with respect to the framework within which individual decisions are made by the Executive Member for Environment and how those decisions relate to the functions of the Management Committee. The statutory obligation of the County Council as Harbour Authority has never been fully delegated to the Management Committee; in effect the Management Committee has always been an advisory body. The only change in 2001 was a shift of final decision-making powers from the old Recreation and Heritage Committee to the Executive Member for Environment. However, this reflects the fact that, under the current Harbour Revision Order, decision making responsibility is given to the County Council, with the Management Committee as an advisory, not executive, body.

(iv) There is an overall weakness in the current arrangements where all the committees and groups are chaired by the same person who makes all the decisions.

(v) There is no clear scheme of delegation to Harbour staff for day-to-day decision making.

4.4 It became clear during informal discussions that, should a major change to the governance of the Harbour Authority be contemplated, there was little understanding of the various options, in particular of the differences between a Municipal Port and a Trust Port. Marine Enforcement Limited was commissioned by the County Council to set out a foundation document or Discussion Paper that would enable people to make informed judgements during the formal stages of consultation. This Discussion Paper was prepared during the spring and summer of 2004 and published in July 2004.

5. Proposed Changes to the Governance of the River Hamble Harbour Authority

5.1 Marine Enforcement Limited demonstrated that the key challenge was to establish a fit for purpose, open and accountable Harbour Board. If that could be achieved there would in practice be very little difference between a Municipal or Trust Port. The following proposed reorganisation of the existing Municipal Port has been stimulated from informal discussions with a number of key stakeholders and after careful consideration of the returns from the formal consultation exercise:

(i) Harbour Board

To establish a River Hamble Harbour Board which takes full responsibility for all decisions associated with the functions of the Harbour Authority.

(ii) Skilled Board Members

To ensure that the River Hamble Harbour Board is fit for purpose by attracting members who are knowledgeable and experienced in the function of the Harbour Authority, including: recreational sailing; marine industry; business development; environmental matters (preferably with estuarine management experience); community development; and community capacity building.

(iii) Accountable and Transparent

A Harbour Board that publishes an annual report accounting for the delivery of services over the previous 12 months, along with its final accounts, and publishes its Service Plan with its draft budget for the next 12 months of activity and expenditure. A Harbour Board that publishes its scheme of delegation. A Harbour Board that ensures that before making decisions those who need to be consulted are consulted. A Harbour Board that is accessible and accountable to the users of the River Hamble.

(iv) Harbour Board consisting of Seven Board Members

In accordance with the informal advice from the Ports Division of the Department for Transport, a decision-making Board of seven individuals is favoured. The Board would consist of:

(a) Chairman appointed by the County Council;

(b) The County Council's Marine Director for the River Hamble;

(c) Independent person skilled and experienced in recreational sailing;

(d) Independent person skilled and experienced in the marine industry and business development;

(e) Independent person skilled and experienced in environmental management; and

(f) Two elected members skilled in community development and community capacity building - one appointed from the seven County Councillors within the area of Eastleigh Borough and one appointed from the six County Members from the area of Fareham Borough.

(v) Appointments Panel

The County Council to establish a Harbour Authority Appointments Panel to include the Chairman of the Harbour Board and representatives of: The Royal Yachting Association, the British Marine Federation, English Nature and Hamble Parish Council. The Panel to be advised by an Human Resources specialist from either Eastleigh or Fareham Borough Councils.

(vi) Initial Selection and Term of Office

Initial appointment of the Board members, other than the Chairman and Marine Director, would be by the Selection Panel after open competition. Each member of the Harbour Board (with the exception of the Marine Director) will serve a four year term which could be renewed once with the agreement of the Appointment Panel but a third term could only be achieved in competition with applicants from an open advertisement. The Chairman and the County Councillors would serve from the date (or soon after) of the County Council election. The three other Board members' term of office, expiry and renewal dates would be mid term between consecutive County Council elections to provide some continuity on the Board through times of change.

6. Formal Consultation

6.1 Marine Enforcement Limited was instructed to prepare a questionnaire, to make available the Discussion Paper, to set up a dedicated website and to analyse the results. Emphasis was to be given to seeking views on modernising the current arrangements to secure a `fit for purpose' harbour authority. Marine Enforcement Limited produced its report of analysis during the first week of December 2004, with a statistical analysis of the answers to the questionnaire and these are set out as Appendices 1 and 2 of this report.

6.2 The Executive Member for Environment wrote to all stakeholder groups, individual mooring holders and to all those with an address within 1kilometre of the banks of the River Hamble. A total of 5,700 letters and questionnaires were mailed out and the letter, questionnaire and the Discussion Paper were also available on the dedicated website.

6.3 The consultation period ran from 13 September to 7 November 2004; however a large number (in excess of 100) came in to the County Council in the last few days and a number that came in up to 2 weeks late were accepted for analysis.

6.4 A total of 1,627 questionnaires were returned; a response rate of 29%.

7. Summary of Results

7.1 A detailed breakdown of who responded, by type, is set out in Appendix 2. Of those who responded 80% were residents and 42% were boat owners. By amalgamating those who either strongly agreed or agreed as answers to the questions the following is a summary of the results:

(i) Constitution

87% agree that the one Local County Councillor with executive responsibility should be replaced by a Harbour Board;

84% agree Hampshire County Council should continue to have a role in the governance of the River Hamble;

89% agree the Board should be `fit for purpose', open and accountable;

83% agree the Board should be a mixture of Councillors and experts;

81% agree Board members should act solely in the interests of the Harbour Authority and not sit on the Board as representatives of another organisation, group or body.

(ii) Meetings

82% agree to public Board meetings;

78% agree to Board meetings close to the river.

(iii) Independent Panel

74% agree the Board should seek advice and liaise with an independent Panel;

80% agree all interested persons and groups should be invited to take part in an independent Panel;

79% agree the independent Panel should run itself and elect its own Chairman;

88% agree the Chairman of the independent Panel should report to the Board.

(iv) Funding

23% agree the Harbour Authority should not rely on funding from Hampshire County Council;

63% agree Hampshire County Council should provide practical support and accommodation to the Harbour Authority;

84% are content revenue comes from boats;

76% agree the Harbour Authority should undertake activities in line with what it can afford.

(v) Timing and Funding of Change

80% agree new arrangements should be put in place as soon as possible;

53% indicated the tax payer should fund any change in the law;

41% indicated the users of the river should fund any change in the law.

7.2 Of the responses received, 16 were from representatives of, or on behalf of, groups, bodies or clubs. Of the 16:

(i) 5 were in favour of a Trust Port;

(ii) 1 did not want a continuation of a Municipal Port but offered no alternative;

(iii) 8 supported the continuation of the Municipal Port;

(iv) 1 supported the continued involvement by the County Council in the governance but not with overall control; and

(v) 1 was silent on whether the County Council should continue but supported the Harbour Board being made up of Councillors and experts. Of the 16, 12 supported the make up of the Harbour Board to include a mixture of elected Members and experts. Further information is set out in section 3.2 of Appendix 1.

7.3 Where respondents favoured a Trust Port for the future administration of the River Hamble Harbour Authority, the reasons for change are listed below:

(i) absence of party politics;

(ii) decision-making by a Board of experts;

(iii) independence - Board members appointed because of their fitness for purpose;

(iv) financial transparency and accountability;

(v) commitment and application by the Board to the needs and responsibilities of the river;

(vi) improved access to the Board;

(vii) increased frequency of Board meetings; and

(viii) the Board would be able to convene specialist panels or working groups as needed.

8. Analysis and a Way Forward

8.1 On balance there is overwhelming support for modernising the River Hamble Harbour Authority in line with Section 4 of this report and doing so as soon as possible. A similar level of support exists for the County Council to continue to have a role in the governance of the River Hamble. However, it is important to examine closely the reasons given for change to a Trust Port from those individuals and organisations which proposed it as an alternative. All of the reasons given are attributes that should apply to either a Municipal or Trust Port. The particular reference to `Absence of party politics' needs closer examination. Records of the decision making by the County Council and recommendations made by the River Hamble Harbour Management Committee have proved that decisions and recommendations are very rarely, if ever, made on party lines.

8.2 Had there been compelling reasons to seek to change the entire administration to a Trust Port then the County Council would have had to consider the disadvantages of such a way forward before making a final decision. Issues such as what should happen to the existing staff, how the harbour staff would be accommodated, who would maintain the buildings, how the Harbour Authority should be insured, who would provide all the support services (personnel, secretariat, financial and accounting, planning, legal, estates advice, etc) would all need to be resolved. The lease of the bed of the river would need to be reviewed. The advantages to the Harbour Authority of having direct links with major programmes directly related to its functions, such as: transport; regeneration of older urban areas; coastal capital programme; European funding; etc would potentially be lost. The future of the capital resources the County Council has made available may need to be reconsidered and the question of who should fund the Harbour Revision Order that would be required for such a change would need to be considered.

8.3 Can the proposed modernisation of the River Hamble Harbour Authority be achieved without the need for a Harbour Revision Order? Informally the Ports Division of the Department for Transport did express a view that modernisation could be achieved within the provision of the existing Harbour Revision Order and this is also the view of Marine Enforcements Limited. The County Council's Head of Legal Practice is also of the view that it is possible to achieve the changes set out in section 4 through changes to the County Council's Constitution, although it will be necessary for the County Council to be persuaded by the case for change.

8.4 In summary, it would be necessary for the Council to agree that its functions as harbour authority should no longer be discharged by the Executive, but instead be delegated to a new committee established for this purpose (the new "Board"). Once established, meetings of the Board would be in public, and follow the same procedures for advance publication of agendas as other committees. The Council would need to agree unanimously that normal rules regarding the allocation of seats in accordance with political proportionality should not apply in this case. Those members of the Board who are not County Council elected members would have the status of co-opted members. While co-opted members would not normally have voting rights, advantage would be taken of a provision in legislation which states that voting rights will apply where the committee is established exclusively for the purpose of discharging harbour authority functions.

8.5 Changes to the Council's Constitution would not, however, affect the continuation in force of the existing Harbour Revision Order. This means that the existing River Hamble Harbour Management Committee would remain in place. It would however become a sub-committee of the Board. Article 12 of the Harbour Revision Order provides that "all matters relating to the discharge of the powers, functions and obligations [of the Board] shall stand referred to the Management Committee". Before exercising any such powers, functions and obligations, the Board would be required, except in the case of an emergency, to consider a report of the Management Committee with respect to the matter. Thought needs to be given to how this may operate in the context of the workings of the proposed Board. The role of the Management Committee could be to meet twice yearly to approve a general policy framework, within the context of which actual decisions are then made by the Board (the approval of the general policy framework being deemed to be "the report of the Management Committee" with respect to the particular matter before the Board for decision). This would be consistent with the desire to avoid having different layers of decision-making. The Management Committee would concentrate on strategic issues, and this would avoid a situation where each individual report coming to the Board for decision had to be considered in advance by the Management Committee. Consideration could also be given to the Council designating the Management Committee as an overview and scrutiny committee further to the Local Government Act 2000. This would give it powers to review, scrutinise and call-in decisions of the Board, and to require members of the Board to attend before it to answer questions.

8.6 The proposed arrangements are very much in line with the recommendations to other Ports from the Review of Trust Ports by the Government. However, the details set out in this proposal would `break new ground' and it would be important to review the success of any new arrangements to ensure objectives are being met. It should also be recognised that an advantage of the proposals is that the new framework could be created by internal decisions of the County Council, relatively speedily and at minimal cost, provided that County Councillors are persuaded by the case for change. If it is not possible to proceed on this basis, consideration would need to be given to the formal amendment of the existing Harbour Revision Order, if revised governance arrangements are to be put in place. This would require a statutory process to be followed that could lead to a public inquiry. That process would take much longer, and the outcome would be uncertain. Consideration would also need to be given to how the costs of that process would be met by the Harbour Authority.

9. Conclusions

9.1 A large number of individuals and organisations have given a great deal of thought and time to assist the County Council in deciding on the future governance arrangements for the River Hamble. There is support for modernising the Harbour Authority and to do it as soon as reasonably possible. The County Council should consider carefully the need to achieve the desired outcomes of modernising the Harbour Authority so that it is fit for purpose, transparent, accountable and accessible in the way set out in this report. A change in the County Council's Constitution will be needed to modernise the Harbour Authority within the confines of the existing Harbour Revision Order and this will need to be considered by the Cabinet of the County Council. It is also recommended that the County Council gives a commitment to review after two years any new arrangements to ensure the objectives of the changes are being met.

9.2 The County Council may consider putting in place these new arrangements to come into force immediately after the County Council elections in May 2005.

Recommendation

That the River Hamble Harbour Management Committee:

(i) considers the results of the formal consultation on the future Governance of the River Hamble;

(ii) supports the proposed new arrangements set out in section 5 of this report for a Harbour Board having full delegated powers to discharge the functions and obligations of the Harbour Authority;

(iii) agrees with the proposed new arrangements for the River Hamble Harbour Management Committee; and

(iv) recommends to the County Council a review of any new arrangements after two years.

9116/MDT