January 15th, 2004 by JCB
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UKMPA Chairman Norman McKinney Retires
UKMPA Chairman Norman McKinney stood down as Chairman in November at the Liverpool Conference following a sixyear term at the helm. He is replaced by Les Cate who was duly elected unopposed at the Conference. It is appropriate here to pay tribute to Norman’s achievements as Chairman during a term that has probably seen more problems and upheavals than any other period in our association’s history. In November 1997 when Norman was elected, the public image of pilots was at rock bottom following the negative press coverage over the Sea Empress grounding. He was thrown into the deep end by the new Labour Government’s decision to undertake a review of the 1987 Pilotage Act which resulted directly from the Sea Empress disaster. During the next three years Norman gained the respect of the DfT and this was reflected by the considerable influence that the UKMPA was able to have over the production of the Port Marine Safety Code. However, despite this respect, many pilots will have forgotten how, during the drafting process, other interested parties attempted to water down the safety and accountability content of the Code. Reviewing all these drafts with their subtle amendments provided hours of painstaking reading by all the Section committee but it was Norman’s refusal to be brow beaten that provided the necessary stimulus to all those involved. Unfortunately, possibly as a result of industry lobbying, the government apeared to lose interest in underpinning the PMSC with legislation after its publication and Norman suffered the frustration of seeing much valuable work on pilot standards, training and qualifications sidelined with the demise of the British Ports Industry Training (BPIT) group. The Humber dispute provided a double challenge for Norman’s leadership. Despite the dispute initially being handled internally by HPL members, it immediately set the DfT against the UKMPA whose support for HPL resulted in an overt support for the employers position by the supposedly neutral DfT officials. Regrettably the subsequent requirement for full T&G and UKMPA involvement on behalf of HPL caused a total breach in contact with the Department. Despite this hostile atmosphere Norman realised the importance of maintaining relations with the DfT and sought meetings with them and the shipping minister in order that other outstanding items could be dealt with. It is a credit to Norman that after two difficult years, contact with the Minister and DfT has been re-established and the UKMPA is now in a position to move forward on amending the 1987 Act under the leadership of Les Cate.
As if this was not sufficient turmoil for a Chairman, Norman also had to deal with the EU Ports Directive which, by considering pilotage as a commercial operation, was set to introduce competition into pilotage. The intense lobbying of MEPs by Norman, Simon Davey and Les Cate in support of the EMPA opposition campaign eventually led to the Directive being rejected by the European Parliament. This was a significant victory since it represented the first occasion whereby a directive had been totally thrown out in the history of the EU.
All these were the major battles dealt with by Norman during his Chairmanship
but excludes the considerable everyday, behind the scenes dealings, which although largely unacknowledged have served to raise the profile of the UKMPA and enhance its reputation as a professional organisation. I am sure that you will all join me in wishing Norman a long, happy and relaxing retirement.
October 15th, 2003 by JCB
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One of the lessons learned by pilots following the 1987 Pilotage Act is that wording is all important in drawing up legislation and if the text is not exact then an ambiguity can arise that can effectively render the legislation worthless. Since 1987 there have been many examples of how such ambiguity has worked against pilots’ interests and the Port Marine Safety Code was introduced to provide some form of acountability of CHAs to the Secretary of State. Whilst undertaking the Review of the 1987 Act the DfT recognised the need to draw up a new Pilotage Act to provide this missing accountability and to underpin the PMSC.
Regrettably the proposed legislation is not planned for this Parliament and seems to have been quietly dropped from the Government’s agenda. However, changes have been made to the 1987 Act in order to bring the Act into compliance with EU legislation on recognition of qualifications. This amendment was incorporated into the Act on 30th May this year and whilst on the surface it appears to be a straightforward administrative amendment upon closer scrutiny it appears to grant CHAs the powers to recruit non UK pilots from the EU without any formal qualifications whatsoever! It takes a legal mind to analyse such documents and the implications of the amendments have been brought to my attention by Kevin Austin, ex Humber Pilot and now of City law firm Constant & Constant. In Kevin’s opinion the new amendment not only opens the door for recruitment of cheap pilotage personnel from the enlarged EU but also grants CHAs the right to employ unqualified pilots from the EU but not from the UK!! The final irony is that the legislation would now appear to grant the right of appeal to the Secretary of State to an unqualified EU pilot applicant whose application is rejected by a CHA on the grounds that he is insufficiently qualified. There is no right of appeal available to qualified UK serving pilots even if they are de-authorised by a CHA! The statement that “imperfect legislation generates legal nihilism” is most appropriate!
Kevin Austin’s legal interpretation is reproduced below John Clandillon-Baker
LEGAL OPINION: The Pilotage (Recognition of Qualifications and Experience) Regulations 2003
Statutory Instrument 2003/1230 establishes a framework for the recognition of European pilots qualifications and experience by UK Competent Harbour Authorities (CHAs), by amendment of the Pilotage Act 1987. A new schedule (A1) appears in the Pilotage Act which explains the procedure to be adopted by CHAs in determining whether an applicant for appointment as a UK pilot has the relevant qualifications and/or experience.
Qualified Applicants – Applicants’ rights, CHAs discretion
Section 2 applies where a CHA has determined a requirement for its pilots to have some formal qualification (for example a UK Master’s Certificate of Competency). As this is the case in practically all CHAs, section 2 is likely to be the most commonly relied upon provision. Under this section a CHA is required to compare an applicant’s European qualification against the Authority’s UK qualification benchmark. Section ((2(2)) is uncontroversial and deals with the case where the applicant’s qualifications correspond to or exceed the required level. In these circumstances the CHA is prevented from refusing to authorise the applicant, (or refusing to consider his application) simply on the basis that he does not hold the required formal qualifications. Simply stated, and with the advent of STCW, somewhat obviously, a CHA has to recognise a Class 1 Certificate issued in any European country as being equivalent to the UK version. The applicant may, however, still be refused authorisation by the relevant CHA if he fails to complete the required training programme, is unsuccessful in the examinations or is otherwise deemed by the CHA not to be suitably qualified to act as a pilot. Section 2(3) is rather more contentious, providing that where the applicant’s formal qualifications show a level of knowledge and skill substantially below the level required by the authority (say a Class 2 rather than a Class 1), the CHA is required to allow the applicant to undergo an adaptation period or an aptitude test to demonstrate that he has acquired the knowledge and skills which were lacking. The following points are of note:
_ The Schedule uses mandatory not discretionary language (“shall” not “may”) granting the applicant a
right to an adaptation period/test.
_ The Schedule does not specify a minimum or maximum period for adaptation, and one must assume
that it is for the CHA to determine under their statutory
powers conferred by Section 3 of the Pilotage Act. _ This Section’s reference to the applicant’s level of
knowledge and skill being “substantially” below that required by the authority implies that there is no
minimum standard of qualification envisaged.
_ The Schedule only appears to require a CHA to facilitate adaptation or a test. No doubt the CHAs will
have noticed there is nothing in the Schedule, which imposes a requirement for them to pay for these
facilities.
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