HL Deb 12 February 1987 vol 484 cc744-95

3.30 p.m.

The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara)

My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(Lord Brabazon of Tara.)

Lord Simon of Glaisdale

My Lords, before a decision is made on that Question, I should like to ask the Minister how late he proposes to proceed on this Report stage. It is a most important Bill, reforming the law for the first time since 1913, and reforming the system of pilotage, which dates from long before that. There are 112 amendments listed for consideration. A number of them are of great importance; some are very lengthy, and some are very difficult to understand. Will the Minister assure us that we shall not be sitting into the early hours of the morning, or even the late hours of the night? I should like to remind your Lordships—

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, not until I have put the Question! My noble and learned friend on the Cross-Benches did not let me do so. If he wishes to speak on the Question, he must let me put it.

The Question is, That the Report be now received.

The noble and learned Lord may now proceed.

Lord Simon of Glaisdale

My Lords, may I have an answer from the noble Lord? The Bill is very lengthy with 112 amendments. Not all of us are in the full plenitude of the mental and physical powers of the noble Lord and others of your Lordships. It would be an abuse of your Lordships' use of parliamentary time if the Bill were pursued very late tonight in view of the fact that we are starting at half past three.

The Lord President of the Council (Viscount Whitelaw)

My Lords, I am sure that the House will appreciate that this was the Bill on which we tried the new procedure of a Standing Committee. I believe that I am right in saying that some 11 hours of debate took place during the Committee stage in that Standing Committee. I also remind your Lordships that this was a procedure to enable the amount of time taken on Report to be cut down. From what the noble and learned Lord, Lord Simon of Glaisdale, is saying, that does not seem necessarily to be the case. However, I am sure that we should proceed to the best of our ability. I am also sure that if, in view of the considerable time that has been taken in Committee, all noble Lords keep their remarks very short—as I am sure they will—we should make very satisfactory progress.

On Question, Motion agreed to.

Report received.

Clause 1 [Meaning of "competent harbour authority" and "harbour"]:

Lord Brabazon of Tara moved Amendment No. 1: Page 1, line 15, after ("area") insert ("or areas").

The noble Lord said: My Lords, I beg to move Amendment No. 1, with the leave of the House I wish to speak at the same time to Amendment No. 2. These are technical amendments. There are a number of harbour authorities who have responsibility for one or more additional harbours, over and above the harbour which is in an active pilotage district and by virtue of which they qualify as a competent harbour authority. There is no need for their CHA responsibilities to cover such additional harbours, and this amendment limits their responsibilities to harbours where there is an active pilotage service. I beg to move.

Lord Strathcona and Mount Royal

My Lords, I do not wish to speak to these amendments. However, as we are at Report stage I should like to make a point about the groupings.

I remind your Lordships—if that is necessary particularly after the comments that have just been made—that we are allowed to speak only once on amendments. If we group the amendments—and some of them are complex, as the noble and learned Lord has said—we run into a real danger of getting into difficulties when we reach some of the detailed amendments later. Therefore, I suggest that while we talk to them when they are introduced, it would be very helpful if they could be formally moved and then almost immediately withdrawn in case anyone wishes to make a comment later on any of the grouped amendments.

Lord Brabazon of Tara

My Lords, with the leave of the House, of course noble Lords have every right to do that, if that is what they wish, when we come to the various amendments. The groupings were agreed through the usual channels; but if a noble Lord wishes to speak on a particular amendment which was grouped with others, then, as I understand it, he has every right to do so.

Lord Shackleton

My Lords, they may have been agreed through the usual channels, but not necessarily with those who, like the noble Lord, Lord Strathcona, wish to move the amendments.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 2: Page 1, line 17, at end insert ("but, where there are two or more separate such areas, include only those areas which fall wholly or partly within an active former pilotage district").

On Question, amendment agreed to.

Clause 2 [General duties as to provision of pilotage services]:

Lord Brabazon of Tara moved Amendment No. 3: Page 3, line 28, at end insert— ("( ) Without prejudice to the generality of subsection (1) above, each competent harbour authority shall in performing its functions under that subsection have regard in particular to the hazards involved in the carriage of dangerous goods or harmful substances by ship.")

The noble Lord said: My Lords, I shall deal with this amendment very briefly. It fulfils an undertaking which I gave in Committee when discussing amendments moved by my noble friend Lord Swinfen and the noble Lord, Lord Underhill, which were spoken to by many others. It places a specific duty on competent harbour authorities to take account of the hazards presented by shipping carrying dangerous cargoes when they are considering pilotage needs in the port, including the stage to which pilotage should be made compulsory. I beg to move.

Lord Swinfen

My Lords, I welcome this amendment and I thank my noble friend for bringing it forward.

On Question, amendment agreed to.

Clause 3 [Authorisation and employment of pilots]:

Lord Brabazon of Tara moved Amendment No. 4: Page 3, line 32, leave out ("subsections (3) and (6)") and insert ("subsection (3) and section (Employment etc. of authorised pilots)").

The noble Lord said: My Lords, I beg to move Amendment No. 4, and at the same time speak to Amendments Nos. 15 and 30 in my name on the Marshalled List. I understand that it will also be convenient for noble Lords to speak to Amendments Nos. 15, 16 and 17, and Amendments Nos. 31 to 35.

Amendment No. 4 provides for the transfer of the provisions about the employment or other contractual arrangements made with pilots to a new clause proposed in Amendment No. 30. I shall briefly outline that now.

Clause 3 of the Bill as it stands at present is long and complex, and during our discussions in Committee there were understandable requests that we should consider whether it might be simplified and clarified. This amendment is the result of our efforts, and while I fear noble Lords will see that it does not shorten the Bill, I hope this part of the Bill will now be a little easier to understand.

The principal change is that, by virtue of this amendment and the associated amendments to Clause 3, the provisions concerning the employer or other contractual arrangements which a pilot has with his CHA are separated from those concerning his authorisation to do the job as pilot. It is important to bear in mind the difference between the situation under present legislation and that proposed in the Bill. At present a pilot's relationship with his authority is governed solely within the statutory provisions by his licence: in future he will have a contract agreement, whether of employment or of service, and his authorisation does not therefore play the same central role as his licence does at present. I hope the separation of these two aspects into separate clauses will help to make this clearer.

The new clause contains in subsection (1) a specific power to make arrangements for pilots' services to be provided either by contract of employment or by a contract for services, which would include arrangements with self-employed pilots. I hope this reassures noble Lords that the earlier drafting did not allow for the possibility of self-employment, despite our statements, in the White Paper and elsewhere that it was our intention to do so.

The provisions concerning the obligation on a CHA to offer employment now fall in subsections (2) to (4). I am afraid that we have not been able to find a way of simplifying them. But I think that, set against the new subsection (1) their place in the overall scheme of things is much clearer. In Committee, the noble and learned Lord, Lord Simon, suggested that the matter might be left to negotiation with the pilots' organisations, but where the intention is to give pilots a statutory right, I believe that more specific provisions of the kind in these subsections are inescapable.

I should mention two particular points on these subsections. First, the offer is now simply "to employ" rather than "to employ as a pilot", which meets Lord Simon's point about the position of those who may be employed to do other work as well. Secondly, the arrangements about who should be the relevant licence holders in pilotage districts with revised CHA's (the case in subsection (3)(b)) have been amended, as it has been pointed out that the original arrangements would have been impracticable, at least in the present London pilotage district.

Finally, Clause 3(7) of the Bill was interpreted as ruling out any possibility other than employment. As I explained in Committee when moving the amendment which added that subsection, the intention was to make it clear that, if no agreement with a pilot on his employment was reached, the CHA was not obliged to authorise him. The revised version in subsection (5) of this amendment makes clear that that also applies where no other arrangements, on some basis other than employment, have been made with the pilot. In other words, that a CHA is under no obligation to authorise—and indeed almost certainly will not authorise—any pilots with whom no arrange- ments, whether based on employment or self-employment, have been made.

I hope noble Lords will agree that the amendment is an improvement. Inevitably, the statutory right to be offered employment which we are proposing looms large in the clause, whereas there is no similar need for detailed provisions covering the various other arrangements which will be possible, and which will be arrived at by discussion between the CHA's pilots and agents. This amendment will make it plain that such other arrangements are possible. I beg to move.

Lord Underhill

My Lords, I should like to make one or two introductory remarks. It will be noted that there are a number of amendments down in my name and in the name of my noble friend Lord Carmichael of Kelvingrove. I hope that the House will accept my assurance that these are in no way party political amendments. I have been advised on these matters by the pilots' organisation who are seeking fair and equitable treatment under the new scheme. Although the Bill is very controversial, it is not politically controversial. I hope that the House will clearly understand that point because with the number of names which appear on the amendment there may be the impression that these are party political matters. Party politics does not enter into these amendments.

It may well be that some of my remarks will be disjointed. I appreciate that there must be a certain amount of grouping but I did not receive the final grouping until 1.45 p.m. As we have to do our own clerical work and research, matters may be in a bit of a mess.

Concerning Amendment No. 16, in the names of the noble and learned Lords, Lord Brightman and Lord Simon of Glaisdale, and also Amendment No. 4 which has been moved by the noble Lord, Lord Brabazon of Tara, there is no way in which the pilots' organisation can support leaving out from the Bill subsections (4), (5) and (6). That would be the position in both Amendment No. 16 and the government amendment which noble Lords have just heard. Amendment No. 16 in the names of the noble and learned Lords, Lord Brightman and Lord Simon of Glaisdale, would have the effect of allowing a competent harbour authority to vary the terms of each type of contract so as to nullify the options. Other noble Lords will be putting their own case, but as I can only speak once, I must deal with all the amendments at this stage. Amendment No. 16 would allow individual pilots to make a choice between being employed or self-employed. Such a mix in the same authority would result in administrative and operational chaos. The pilots would be unrepresentational and at the end of the day the two camps could easily be at each others throats.

Amendment No. 16 must be considered with the government amendment which would add the new clause under the government Amendment No. 30, on the employment of authorised pilots, and also amendments which appear in my name, Nos. 31 to 35. It is somewhat strange that in the Bill, the Government appear to take the view that it is right for pilots not authorised in new régimes to participate in the determination of whether or not those pilots who will continue shall be employed or self-employed. If that interpretation of what is contained in the Bill is incorrect, I hope that the Minister will put me right.

The government amendment is preferable to Amendment No. 16 provided it is amended along the lines suggested in my amendments Nos. 31 to 35. Unless that is so, then frankly we do not like Amendment No. 16, and we do not like the new clause in the government Amendment No. 13. Amendment No. 17 in my name would delete subsection (7). As drafted, that subsection is totally unacceptable. The statement made by the Minister at Committee stage that the amendment would provide a fall back is not clear. The Minister stated that the amendment would provide a fall back for pilots to be employed by the CHA.

The subsection can be interpreted as meaning that a competent harbour authority would be able to offer any terms that it may consider fit, even derisory terms, which was the phrase used by the noble Lord, Lord Walston, at col. 49 of the Hansard report of the Committee stage. The potential new pilot would be unable to accept such terms, and the CHA can be considered to have avoided a statutory duty of the obligation to offer to employ. Such treatment could not be considered fair, and would make a mockery of any local negotiations. The competent harbour authority would have total power over any pilot wishing to continue his profession under employed status.

Concerning the Government Amendment No. 30, as drafted, this new clause would allow a competent harbour authority to employ pilots on whatever terms the CHA thought appropriate. Subsection (1) states: … a competent harbour authority may make such arrangements as it considers appropriate for the provision of the services of authorised pilots.". Subsection (5) states: A competent harbour authority may refuse to authorise any person who is not willing to provide his services as a pilot in accordance with such arrangements as the authority considers appropriate under subsection (1) above.". This is precisely what is at present in subsection (7) of Clause 3 to which I have already stated objection. It can be seen from subsection (5) that a relevant licence holder—namely, a pilot presently licensed wishing to continue as a pilot—will not be authorised to do so by the CHA unless he accepts the terms and conditions of employment offered by the CHA.

It is incredible to think that the Government of this country in revoking pilots' licences by means of legislation should command that injustice by what can only be described as an act of immorality. To then introduce a clause entitled temporary procedure for resolving disputes as to terms of employment, to which we shall come to later on, adds only insult to injury. Clearly, if the primary legislation states that the terms and conditions are to be in accord with what a CHA considers appropriate, then what purpose can be served by the establishment of an arbitration panel? Primary legislation will allow a CHA to ignore its determinations.

Amendments Nos. 31 to 35 of this clause are all designed to ensure that any terms and conditions offered are reasonable, in the broadest sense of the word, and should in the event of disagreement be referred to arbitration. The drafting will not in any way inhibit the freedom of the proposed arbitration panel. Concerning subsection (5), this amendment is more in accord with industrial attitudes prevalent in the latter quarter of the 20th century than the Government's drafting. It recognises what the Minister said throughout the Committee stage about the ability and power of the pilots to negotiate. Without this amendment which I am proposing to subsection (5), there will be no real rights of negotiations and all the power in the world will be to no avail. In summary, these amendments—Nos. 31 to 35—to the Government's amendment have something to do with justice and a sense of fair play and will ensure, as well as this type of legislation can, industrial harmony. The amendments which I propose are in full accord with the desire of the pilots to agree to the reorganisation scheme, but it should be fair and equitable as has been promised three or four times by government Ministers.

Lord Simon of Glaisdale

My Lords, there were a number of objections to Clause 3 as it stands, most of which have been dealt with by the noble Lord, Lord Underhill. The most serious was that whereas at present pilots are, except in two pilotage districts, independent contractors, the clause as originally drafted and as now reported to your Lordships gives no rights to the pilots as independent contractors.

What is more, any contract given under what is now subsection (4) has no need to be, as the noble Lord, Lord Underhill, pointed out, a reasonable contract. That has been met by the noble Lord the Minister, and I desire to say that in this and a number of other respects he has gone a long way to meet views expressed in Committee. Nevertheless, I agree with the noble Lord, Lord Underhill, that the new clause the noble Lord has tabled is still unsatisfactory.

The fourth thing that was wrong with the clause as originally drafted, and is still wrong, is that although an offer of a contract of employment—which meant direct employment, master and servant—has to be offered, and need not be a reasonable one, that was subject to nullification if a majority of the relevant licence holders (those are the old pilots in question) or the relevant authorised pilots (those are the new pilots in question) decided otherwise. But there was no statement about what the alternative was. There was no statement that if they did not agree the offer of direct employment, they have the right to be self-employed as at present.

The drafting of this clause is extremely complicated—and I shall not read it out because it is a very long clause—and the definition of "relevant licence holders" is extremely difficult to understand. I have not been able to understand subsection (6) at all even after listening to the proceedings in Committee and examining it a great many times. After shaking it and holding it up to the light, I confess that I still do not understand what it means.

I hope that the noble Lord the Minister will explain what it means as it appears in the new draft, preferably without looking at the Notes on Clauses or any brief but looking, as the pilots and the Members of the harbour authorities will have to do, at the provsions of the Act as they will appear. It was for those reasons that my noble and learned friend Lord Brightman—unfortunately he has to go now, and it therefore falls to me to introduce Amendment No. 16—put down Amendment No. 16. I think your Lordships will agree that at any rate it avoids all the drafting difficulties of the clause as it appears.

It also obviates what I agree with the noble Lord, Lord Underhill, is the objectionable subsection (7) which takes away the right given on the vote. We put down the amendment after I had had the privilege of first meeting representatives of the pilots and ascertaining that they wanted to have the option of self-employment. That is the main purpose of our new provision.

I subsequently met them again in the company of the noble Lord, Lord Strathcona, who could not be present the first time. They pointed out to me the point made by the noble Lord, Lord Underhill; namely, that to have in one port or harbour some who are self-employed and some who are directly employed would be extremely difficult administratively. In fact, I think they put it that it was inviting administrative chaos.

Nevertheless, we decided to leave the amendment down because we hoped that provisions could be made by negotiation for a majority decision to be taken in each case. In other words, a majority of the pilots at any particular port who opted for direct employment would carry the whole personnel of the pilotage area, and those who opted for independent employment by a majority would similarly carry the vote.

I personally was encouraged when I saw one of the amendments to Amendment No. 30 by the noble Lord, Lord Underhill—it is Amendment No. 35—which refers to the representatives of the relevant licence holders. My only objection to that is that it involves this extremely complicated definition of "relevant licence holders". But it is something of that kind that the trade unions should negotiate on behalf of the whole body of pilots in a pilotage area, and on their behalf have the free option of either independent contractors or direct employment. It was for that reason that we maintained the amendment for your Lordships' consideration.

Like the noble Lord, Lord Underhill, I think that a lot of the objections to the original clause remain in the new clause, Amendment No. 30. In the first place, it has all the clumsy and difficult draftsmanship; and I still adhere to the view that I expressed on Second Reading that this is on the whole a well-drafted Bill and the fact that this clause is so clumsy, difficult and incongruous suggests that the draftsman has been given an impossible chore. I also think that the new subsection (5) takes away the right of choosing between being an independent contractor and being an employed pilot. If we look back to Clause 2, the competent harbour authority has to, provide such pilotage service as it considers need to be provided". Under the amendment it can then either offer a contract of employment or a contract for services. If one looks at subsection (5) of the new clause one sees that the offer need only be what the competent harbour authority considers to be appropriate. In other words, that takes away the choice that is apparently given by the earlier part of the new clause.

When we eventually consider that new clause we shall obviously have to consider very carefully the amendments of the noble Lord, Lord Underhill. At present it seems to me a most unsatisfactory clause and I hope that the Minister will have the opportunity of reconsidering it before the next stage, particularly to see whether there cannot be erected a system of consultation on the lines that I suggested which would give a real choice in each port between direct employment and the independent contractor status, which the pilots so greatly value and which operate today in all except two pilotable districts.

4 p.m.

Viscount Simon

My Lords, I have only two comments to make when we reach Amendment No. 30, but I assume from what has been said by the Minister that that will be moved in due course by him and we can deal with that matter when we come to it. In that case, on Amendment No. 4 I want to thank the Minister for having accepted the point to extend some of these provisions to cover people who are both pilots and otherwise employed as well.

Lord Strathcona and Mount Royal

My Lords, before the Minister replies I should like to make two points. This little debate has reinforced the point I was trying to make at the very beginning of this Report stage that it will be extremely important, if each of these amendments should subsequently be moved and discussed, for us to do our best to keep it as short as possible. Some of the considerations spread over a whole series of amendments and it is proper that we should be having a debate on this amendment attempting to cover many of the others. I believe we shall need to have an opportunity to discuss them one by one.

The only other thing I want to say is that I agree with almost everything that the noble Lord, Lord Underhill, said. I was lost in admiration for the way he managed to marshal all the arguments that have given us a good many misgivings about this matter.

I recognise that my noble friend the Minister is doing his best to put into the legislation what the Government say were their intentions—that it would be possible for pilots either to be employed or to be self-employed. If they were self-employed it would be possible for organisations—particularly one has in mind Trinity House—to operate on an agency basis. What has happened subsequently—one regrets that all this is happening at Report stage instead of at Committee stage—is that it has become extremely clear to the pilots that whatever the legislation may say the practicalities are that self-employment will simply not be an attractive and viable option. Unless self-employment is likely to be an option the agency concept simply will not work.

While one thanks the Government for their noble attempts to put into reality what their declared original intentions were, I believe that a number of us are expressing considerable doubts—even the great legal minds who do not totally understand what the clause means—about whether the Government have succeeded in doing what they have said they are trying to do.

Lord Brabazon of Tara

My Lords, I said when I explained Amendment No. 30 to your Lordships that it had not been easy to make it any clearer. But we have gone a great distance in making it considerably clearer, as we said at Committee we would do. Therefore I have fulfilled that wish of the Committee and I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for having said those kind words about the number of occasions on which I have met views expressed in Committee.

I take first the remarks of the noble Lord, Lord Underhill, in relation to his Amendments Nos. 31 to 35 to my Amendment No. 30. The noble Lord said first that it was unsatisfactory that pilots who were not going to be authorised should be able to determine whether the pilots who are to be authorised are to be employed or self-employed. The choice has to be made before the appointed day for practical reasons. It is therefore not possible to know whether pilots are to be authorised; therefore to allow all the existing pilots to exercise this choice is the only practical option.

The amendments are intended, as the noble Lord explained, to provide for arbitration to apply to any dispute between the pilots in a port and the CHA. From the references to relevant licensed pilots I take it that this procedure is intended only to operate in the period before the appointed day, not thereafter.

As I am sure the noble Lord will accept, for such a provision to be practicable it would need to be expanded considerably so as to indicate, for example, how the arbitrator is to be appointed and how his terms of reference are to be set. One would need to specify what constituted an offer, as mentioned in the third amendment.

To deal with the principle of these amendments, I am not at all persuaded that it is right or necessary for arbitration to apply to contracts of service as well as contracts of employment. A contract of service may be direct with self-employed pilots or it may be with an agent. I reaffirm, particularly to my noble friend Lord Strathcona, that it is our intention that the concept of self-employment or agents should be possible and we believe that in this Bill it is. A CHA may wish to go to competitive tender before placing such a contract and I find it difficult to see how arbitration on the reasonableness of the terms of such a contract would work.

As your Lordships are aware, and as the noble Lord, Lord Underhill, mentioned, we have brought forward an arbitration clause that relates to the employed situation, since we have accepted that the statutory obligation on a CHA to offer employment, if the pilots so wish, requires some such way of determining disputes about the terms on which employment should be offered. Those arrangements provide pilots with a firm assurance of equitable treatment that will form the basis on which, if they wish to pursue other options involving self-employment or employment by an agent, they will negotiate with the CHAs or the agents. If satisfactory alternatives cannot be agreed, they have the option of employment with its associated arbitration procedures to fall back on. I believe that is the right course on which we should proceed.

Turning now to Amendments Nos. 34 and 35, moved by the noble Lord, Lord Underhill, the effect of these amendments is not entirely clear to us. Subsection (5) of the new clause is intended to make clear only that, whatever arrangements are arrived at in a CHA's area, there is no obligation on a CHA to authorise anyone who is not willing to serve under either of such arrangements. I should have thought that that was fairly straightforward. How the arrangements are to be determined is covered elsewhere in the clause. They will indeed be the arrangements that the CHA thinks appropriate, but subject to the requirements of subsection (2) which may oblige them to offer employment, and subject also to the requirements of any arbitration provision. Those are important provisions which, if invoked, may well limit the options open to the CHA, but to make all arrangements subject to the pilots' agreement—as these amendments appear to be implying—would, I believe, be quite wrong.

The CHAs will, of course, wish to reach agreement with the pilots about the arrangements for the provision of their services, but at the end of the day it is the CHA which has the statutory responsibility for providing the service. It must be able, subject to the statutory provisions I have mentioned, to decide what are and what are not appropriate arrangements for the port.

The noble and learned Lord, Lord Simon of Glaisdale, in speaking to his Amendment No. 16, recognised that there were certain disadvantages to it. I am bound to say that we feel the same thing. My first worry concerns the practical implications of what is proposed. It seems to me that a CHA could find itself employing half of its pilots and entering into contracts of self-employment with the other half, which the noble Lord, Lord Underhill, suggested would be an undesirable end product to this clause. It might be possible to make such an arrangement work, but I find it difficult to envisage. It is not a very economical or practical way of organising a pilotage system. It would be possible to modify the proposed amendment so that all the pilots in a port decided by a majority vote for employment or self-employment. However, that would lead straight to the complexities in the Bill which arise from the difficulty of specifying who should vote on such an issue in each port before it is known which pilots will be authorised. The noble and learned Lords, Lord Simon and Lord Brightman, would no doubt prefer to avoid these, as I should too, if an acceptable alternative can be found.

A second point in the noble and learned Lord's amendment which concerns me is that the amendment would leave it to the pilots to choose between employment and self-employment. Our own proposals would give them the right to insist on employment if they so wished, and that is to give the pilots a fall-back position of security if they decided that they need one in the absence of the protections which they enjoy at present under the 1983 legislation. It would be tipping the balance too far in the pilots' favour, I believe, to give them an unfettered choice no matter what the port wanted.

A further point which concerns me is that the amendment proposed by the noble and learned Lord seems to rule out a contract for services with an agent which might then itself in turn employ or have contractual arrangements with the pilots. I think we have already decided that it would be a pity to rule out this possibility.

The fourth concern I have is that the amendment proposes arbitration on the reasonableness of the terms not only of a contract of employment but also of a contract for services. I find this rather a difficult concept to grasp. It is, of course, not unusual to resort to arbitration to determine whether the terms of a contract have been met or where the costs on a contract would fall. It seems to me less usual to seek arbitration on the reasonableness of the terms of a contract yet to be made. This may be because I find it more natural to think of contracts in terms of competitive rendering in the market place than as something that a third party has to decide is reasonable.

I believe that the noble and learned Lords have cut through a number of issues in a very elegant fashion in putting forward this amendment, but in doing so I think they are in danger of creating one or two further difficulties which our Bill manages to avoid, admittedly at the expense of a certain amount of elegance and brevity in the noble and learned Lords' amendment.

The noble and learned Lord, Lord Simon of Glaisdale, asked what happens if a CHA does not have to offer employment. As we have explained previously, the appropriate arrangements for pilotage are to be a matter for the competent harbour authority. The main safeguard for pilots is that they can require a CHA to offer employment. As I said when speaking to Amendment No. 30, we believe that this goes a long way to correcting any confusions which might have occurred as to whether self-employment was a viable option in the Bill. I think it goes a long way in that direction.

We shall come to Amendment No. 36—the new arbitration clause—in due course. I think that that clause too meets a good many of the concerns implied by the noble Lord, Lord Underhill, in his amendment. I believe that that is the right way to proceed. Therefore, I cannot accept these amendments.

4.15 p.m.

Lord Simon of Glaisdale

My Lords, before the Minister sits down, I do not know whether this is a convenient time to ask him to deal with the point I raised on Amendment No. 30. Perhaps I may put the point again. If one looks at Amendment No. 30, subsection (1) of the new clause appears to give the pilots the offer of either a contract of employment or a contract for services. If one looks at subsection (5), one sees that it is entirely up to the harbour authority to decide which is the appropriate contract to put forward. In other words, it takes away the choice at the option of the harbour authority.

I apologise if I did not make the point clear when I originally spoke. I should be very grateful if the noble Lord would deal with it whenever it is appropriate.

Lord Brabazon of Tara

My Lords, with the leave of the House, I will deal with it briefly. I had hoped that I had covered it in my most recent speech. Under subsection (1) it is the harbour authority's option as to whether to employ pilots or to offer contracts of service. That has always been the case since the Bill first started in your Lordships' House. Subsection (5), as I explained, merely gives the harbour authority the right to refuse any person who is not willing to provide his services under either arrangement.

The Deputy Speaker (Lord Nugent of Guildford)

My Lords, I should explain for the assistance of the House that I propose to call each amendment in turn because there are many grouped together informally for the convenience of the House. This will give any noble Lord who wishes to speak on an amendment thus included the opportunity to do so.

On Question, amendment agreed to.

Lord Swinfen moved Amendment No. 5: Page 3, line 33, after ("such") insert ("number of").

The noble Lord said: My Lords, Amendment No. 5 is grouped with all the amendments through to No. 8, but I propose to speak to Amendments Nos. 5, 6, 8, 11 and 12, because they all relate to the same subject and are necessary to achieve the same ends. I am rather surprised at the grouping that has been proposed, because at the Committee stage whoever assisted the Minister to get it right did get it right. At this stage it is different. It shows just how awkward the whole situation is.

This group of amendments is designed to ensure that pilots who are already working in a particular port authority's area will not need to take any examination or requalify to work for the new competent harbour authority in that area after this Bill becomes law. The Minister did respond to the amendments at Committee stage, but on rereading what he said, I am still not satisfied that those pilots who are qualified and working at the moment will be able to continue working in the same areas. He seemed to think that I had a wider question in mind and talked about—I must get this right—licensees from Liverpool and other places. I am thinking at the moment that if, for instance, a pilot is licensed to operate in and out of Southampton and he has been doing so for a number of years, why should he need to re-qualify in order to do exactly the same job but employed by a competent harbour authority rather than as a self-employed person? I beg to move.

Lord Underhill

My Lords, I wish to intervene in this matter only because the grouping is said to be for Amendments Nos. 5 to 8. Amendment No. 7 stands in my name and that of my noble friend, and in that amendment we are urging that an authorisation should remain in force for a period of not less than one year. This matter was considered at the Committee stage and there was a very wide measure of support for it. Under the Bill a pilotage exemption certificate may be granted to a master or a first mate. Clause 6(4) provides that such a certificate shall remain in force for one year and may be renewed annually, subject to certain conditions in carrying out the pilot's duties.

What Amendment No. 7 seeks to ensure is that precisely the same conditions as apply to a pilot's exemption certificate shall apply to a pilot's authorisation. At present a licence is renewable each year unless there is incapacity or disability. In our view there is no justification whatever for this difference of treatment between a pilotage exemption certificate and a pilot's authorisation.

At the Committee stage the noble Lord the Minister said that the Bill made no provision for periods for which an authorisation should last. He said it was possible for it to run on until revoked. However, he kindly said that there might be something good in the suggestion that there should be a fixed time for a certain period, which might be extended, if that was helpful. The noble Lord suggested that that was a possibility and that he would look at it. He recognised that a minimum period of one year would enable pilots to plan ahead.

Incidentally, on this matter, in relation to the arbitration clause I would urge that there should be some basis for appeal if the authorisation is not to be renewed after a period of one year. At this stage that point is not at all covered by the arbitration clause. That is one of the defects we shall point out when we reach that clause. Amendment No. 7, at this stage, is mainly urging that an authorisation should be for a period of not less than one year. I should like to know from the Minister whether his kind offer to look at this possibility of a period has been looked at and whether he can now accept my amendment.

Lord Mottistone

My Lords, it seems to me that all these amendments, particularly Nos. 6, 7, 8 and 12, are limiting the competent harbour authority's choice of pilot and removing its control over the number of pilots it has to employ. To that extent it is defeating the object of the Bill to make sure that the numbers that are employed satisfy the demands of a particular port. I did not get from either my noble friend Lord Swinfen or the noble Lord, Lord Underhill, the message that that was what they had in mind; but that would seem to me to be the outcome of these amendments if they were to be agreed to. Accordingly, I am against them if it comes to that point.

Lord Greenway

My Lords, I supported the principle behind the amendment of the noble Lord, Lord Underhill, at the Committee stage and, very briefly, I should like to say that I do so again. As I see it, it removes yet another obstacle against the self-employment of pilots.

Lord Brabazon of Tara

My Lords, my noble friend Lord Swinfen, as he said, moved identical amendments at the Committee stage and at that time I gave my reasons for not accepting them. Therefore I shall be as brief as I can now in, I am afraid, giving the same reasons. Incidentally, we had originally suggested that Amendments Nos. 11 and 12 should be grouped together with these amendments, but that suggestion was rejected by noble Lords opposite and we bowed to their wishes. So there is co-operation, and I am very happy to answer now the points made in connection with Amendments Nos. 11 and 12.

As I have said, these amendments are identical to those which were put down at the Committee stage. These amendments would have the effect of relieving existing licensed pilots of the need to meet any qualifications set by the CHA for the authorisation of pilots under the new arrangements. The first three amendments would relieve such pilots only if they already worked in the district concerned, but Amendments Nos. 11 and 12 would also relieve former licensed pilots transferring from another port of any need to satisfy the CHA of their abilities. As I pointed out in Committee, one effect of the amendments might be that where there was a vacancy a CHA might have no option but to accept any former licensed pilot who applied.

Of course there is a special case for special treatment of existing pilots who could be expected to know the port at least as well as anyone else. The Bill recognises this special case by providing for CHAs to set different qualifications for former licensed pilots. In many cases I am sure the possession of a licence will be enough to satisfy a CHA that a pilot should be authorised. However, I cannot agree that they should not have the right to go further if they think it is necessary and require the applicant to demonstrate that he can meet any necessary qualifications.

In Committee, my noble friend Lord Swinfen suggested that was totally unfair to pilots, but I believe it would be unfair to the CHAs who are to carry the responsibility for safe pilotage in the port, as my noble friend Lord Mottistone pointed out, if they were not to retain the right to satisfy themselves as to the abilities of those they are authorising.

Lord Strathcona and Mount Royal

My Lords, may I interrupt the noble Lord for one second? Surely the implication of that is to say that the pilots who are doing the job at the moment are not capable of doing it. Either they are capable of doing it now and capable of going on doing it, or else they are not capable of doing it now—in which case they are not adequate to do it in the future.

Lord Brabazon of Tara

Not at all, my Lords. I said that obviously most of the existing pilots, if not nearly all of them, will continue working in the same places as they are now and they will not need to have any special qualifications.

Turning to the amendment in the name of the noble Lord, Lord Underhill, and others, as I said in Committee, I cannot accept that authorisation should be renewed automatically. A CHA must have the right to terminate an authorisation in the circumstances which are described in Clause 3(9). On the suggestion that there should be a minimum period for which the authorisation should last, I agreed in Committee to take the point away for consideration. On reflection, I am afraid I do not think that this would be desirable. In future a pilot's security about his future must rest on the terms of his agreement with the CHA. He will be employed either with the obligations that places on the employer in the way of notice and so on, or under some kind of arrangement in which such matters will be determined by the particular terms of the contract or agreement.

To apply conditions of this sort also to an authorisation issued by a CHA seems to be unnecessary and confusing. It amounts to additional employment protection which I cannot see anything in the circumstances of pilots to warrant. Moreover, a fixed period of, say a year might well cause practical difficulties at the outset of the new regime by making it difficult for a CHA to release pilots who would otherwise be prepared to leave in order to make way for someone from another port. That is a very important point and one which I do not think noble Lords would want to interefere with, shall I say? So for those reasons I cannot accept these amendments.

4.30 p.m.

Lord Swinfen

My Lords, I have listened with care to what my noble friend has said. I am inclined to agree with the comments of my noble friend Lord Strathcona and Mount Royal. I should like to take the matter away and read carefully what the Minister and other noble Lords have said with a view possibly to coming back at the next stage with a different amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

Lord Underhill moved Amendment No. 7: Page 3, line 38, at end insert— ("( ) An authorisation under this section shall remain in force for such period, being not less than one year, as the competent harbour authority may prescribe and shall at the expiry of that period be renewed; provided that such obligation to renew shall not apply in the case of a pilot suffering from an incapacity.").

The noble Lord said: My Lords, I have spoken to this. Frankly the Minister's reply is not satisfactory. He said that this is a matter for negotiation. This means that in one harbour authority an agreement could last for one year and in another there could be none at all because of local negotiation. If we want pilots who are experienced to stay in the job and not say that they will get out, there ought to be a minimum period. I think it is not asking too much to suggest that the minimum period be one year.

It is a point of principle, I think, that this should be a matter not just for negotiation in each competent harbour authority but laid down in legislation. The authorisation should last for a period of one year to give the pilot something to look forward to in that one-year period. I beg to move.

Viscount Simon

My Lords, as I understood the argument of the Minister, he objects to the suggestion that there should be an automatic renewal. I do not know whether the noble Lord, Lord Underhill, would be prepared to modify the amendment to withdraw that proposal. There would then be a period of one year with no obligation to renew.

Lord Underhill

My Lords, with the leave of the House, I can see that that is a problem. Perhaps the Minister would be prepared to accept the period of one year. I agree that automatic renewal presents certain problems. We have said that it should be renewed, provided that such obligation to renew shall not apply in the case of a pilot suffering from an incapacity". I appreciate that there could be other circumstances. If the Minister says that he is prepared to consider an amendment to cover a period of one year and we can look at the other matter later, I shall be happy to withdraw the amendment. If that is not the case, it will be better to vote on the amendment and have the matter corrected on Third Reading.

Lord Brabazon of Tara

My Lords, I am afraid that I could not give the assurance which the noble Lord seeks, as I thought I had explained in answer to the amendment. I also pointed out one considerable difficulty to which the amendment gives rise. I think that we shall have to take the opinion of the House.

Lord Strathcona and Mount Royal

My Lords, may I ask the noble Lord two questions? Will he consider the possibility that an amendment along these lines might apply to existing pilots in the changeover period, as opposed to what happens thereafter, as he has said that the future employment terms will be subject to arbitration? I think that we can all accept that one could argue about the subject then. Some of us are concerned apparently to be taking away something from pilots that they now have. Therefore, we are in a slight muddle. May I ask whether this is something that would be covered by the arbitration clauses in the transitional period? If so, it may well be that this meets the case.

Lord Brabazon of Tara

My Lords, that is exactly the sort of thing at which I imagine the arbitration will look. The arbitration process is for the transition of pilots from the present arrangements into future arrangements.

Lord Underhill

My Lords, is the Minister giving a categoric assurance that Clause 36, the arbitration clause, will cover the question of a minimum period for the first authorisation? If that is the case and it will be written into the record, I shall be happy.

Lord Brabazon of Tara

My Lords, with the leave of the House, I was hoping to deal with the matter more fully when we reach the arbitration clause. The pilots and ports are already talking to us about what will be within the purview of the arbitration procedures. I cannot give a cast-iron guarantee that this will be included, but I very much expect that it will be.

Lord Broxbourne

My Lords, surely my noble friend appreciates that the only reference to an arbitration clause is in the new clause proposed by Amendment No. 36. The matters that will be subject to arbitration are there specified. There is rather surprisingly no provision for arbitration in the Bill as originally drafted. Surely my noble friend is not saying that the specific terms of reference prescribed in the statute can be varied by these sorts of discussions and bargaining?

Lord Brabazon of Tara

My Lords, with the leave of the House, the arbitration clause deals specifically with the terms of any provision of any contract of employment to be entered into between the parties; that is, the pilot and the port. As authorisation is the equivalent of employment or self-employment, and it would be covered by that.

Lord Underhill

My Lords, with the leave of the House, in the light of what the Minister said—and we shall read carefully what he said—and of any debate we may have on the new clause proposed in Amendment No. 36, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Lord Brabazon of Tara moved Amendment No. 9: Page 3, line 44, at end insert (", time-expired apprentice pilots or recognised assistant pilots").

The noble Lord said: My Lords, with this I speak to Amendments Nos. 13 and 29.

These amendments fulfil the commitment I gave in Committee to give pilot apprentices and Manchester Ship Canal helmsmen a second level of priority for authorisation as pilots once the supply of applications from former licensed pilots has dried up. This priority, like the licensed pilot's own priority, will last for four years after the appointed date. We thought it preferable in drafting terms to refer to the Manchester Ship Canal helmsmen as "recognised assistant pilots" rather than by name, but the definition covers their position. I beg to move.

Lord Swinfen

My Lords, the Minister said that he was speaking to Amendments Nos. 13 and 29. Was he speaking to Amendment No. 28 also?

Lord Underhill

My Lords, it may help the Minister if I tell him that I have Amendments Nos. 9, 13, 28 and 29.

Lord Brabazon of Tara

My Lords, I apologise. I was meant to be speaking to Amendment No. 28 also, which is purely a drafting amendment.

On Question, amendment agreed to.

Lord Kirkhill moved Amendment No. 10: Page 3, line 45, leave out ("four") and insert ("two")

The noble Lord said: My Lords, in moving Amendment No. 10, I speak to Amendment No. 14 also.

I recognise that the emphasis lying behind the amendments is against the thrust of this part of the Bill. I return to comments and views which I expressed at the Committee stage.

I was not of course myself a member of the Committee and I confess as an aside that I felt somewhat disadvantaged in speaking from behind the seated members of the Committee, although from their point of view they may well have regarded that as being something of a blessing in disguise. However, at this point of the Bill there is an alternative argument and it is one which I think should be expressed and one to which your Lordships should give your consideration.

The guidance notes presented to Parliament by the Secretary of State for Transport, Marine Pilotage: Legislative Proposals, at the introduction on page 1 open with these words: In recent years there has been growing concern about the costs of using British ports, in particular compared with those on the Continent, and the Government is anxious to seek ways of helping to reduce these costs".

While none of us would dispute the urgent need to reorganise pilotage in the United Kingdom, which is the purpose of the Bill—and certainly one of the principle aims of the Bill is to reduce pilotage costs—the Minister should accept that in general there is only scope for reducing costs in ports which have a surplus of pilots. That seems to me to be self-evident. I believe we should keep in mind that all ports do not have surplus pilots and most British ports already have the correct number of pilots for current requirements. This is unlikely to change significantly as a consequence of any change in compulsory pilotage arising from the consultations and investigations very properly required under Clause 5(4) of the Bill before us.

The Minister is no doubt aware, because I pointed this out to him at the Committee stage, that in Scotland there are probably only two ports—the Forth and the Clyde—where there is a surplus of pilots. Clearly then in most ports the numbers of pilots has been properly and sensibly regulated over the years, and contrary to the view expressed at an earlier stage by the Minister a very large number of the members of the British Ports Association to which he then referred are dissatisfied with the proposed arrangements for compulsory transfer of pilots to fill future vacancies.

And what of the ports which already employ pilots—ports such as Shetland, Orkney, Montrose and others? They already enjoy the very situation which this Bill seeks to create and yet they too will be subjected to what I consider to be an unfair restraint. Why should they not continue to exercise their present right—the right to choose the best man for the job? The best man may in many if not most cases be an experienced pilot transferred from another district. But from time to time candidates with better experience and specialised local knowledge will offer, and they should have the opportunity of putting their expertise and specialised local knowledge to good use.

In considering the pilots who may become surplus to the future needs of some pilotage districts, your Lordships should not ignore the very large number of master mariners with specialist ship handling skills who, through no fault of their own, are also surplus to requirements because of the ever-declining merchant fleet. They too are deserving of some consideration and ought not to be denied opportunities of employment during the long four years provided by the Bill.

Nor should it be assumed that a local review of compulsory pilotage will significantly reduce the number of pilots in many of the ports. Pilots provide their service in the interests of safety. The duties of the pilot have tended to change over the years and, while they continue to fulfil their primary function of giving guidance to ship masters as to local conditions and safe navigational requirements, it is surprising that not much has been said so far on the increasingly important role that pilots now play as a consequence of reducing manning on merchant ships.

Indeed, I am informed that it is not unusual nowadays to find only the master and a helmsman on a ship's bridge when entering or leaving port, and in some instances the master not only has to con his ship into the harbour but also has to steer the ship—sometimes with remote control gear. As a consequence, the pilot forms a very effective part of the bridge team, effectively a unit in the ship's crew for the purposes of entering and leaving the harbour. This is a factor which undoubtedly will be considered by the competent harbour authorities in their deliberations before issuing pilotage directions and this may well detract from further reduction in the need for pilots.

Since the safety of navigation must be the foremost consideration, it is incumbent upon competent harbour authorities to appoint the very best man for the job. It may very well be that in many ports a pilot transferred to a comparable district would be the most suitable candidate, and clearly wherever possible priority must be accorded to the employment of qualified pilots from other comparable districts wherever this is sensible, feasible and in the interests of safety.

But the noble Lord, Lord Swinfen, at the Committee stage said that he believed the problem of reducing the period for compulsory transfers from four years to one year—the proposal which I then had before the Committee—would be resolved more quickly than I realised. At col. 28 of the Official Report of the Public Bill Committee on 9th December, the noble Lord, Lord Swinfen, said that he was, led to believe that in order to have enough pilots in two years we really ought to start recruiting now to make certain that they are trained". Assuming the vesting date on which the Bill when enacted becomes operative to be 1st January 1988, then we are really saying that the compulsory transfers must continue in force until 1st January 1992.

As the noble Lord, Lord Swinfen, indicated, many pilots will have retired by that time and this is surely an argument for reducing the period of time during which the restriction is operative; hence my proposal before your Lordships' House that it be one or two years. When I raised this issue at the Committee stage the noble Lord, Lord Gray of Contin, suggested just this compromise of two years which is now before the House. This would take us to 1st January 1990.

If I may turn now to Amendment No. 14, because these two amendments very properly are grouped together, and having particular regard to the necessity in the interests of safety that a competent harbour authority should always appoint the best man for the job, it seems to me that my proposed amendment in that light is not unreasonable. When at some future date a competent harbour authority is recruiting pilots to fill vacancies, priority of consideration, as I emphasised a moment ago, must be given to surplus pilots from elsewhere. No one would dispute such a sensible principle.

The Minister at an earlier stage gave it as his opinion that basic skills are the same and that there is no reason to give local people priority over licensed pilots from whatever port. I argued at that stage that I thought that local expertise was a factor which a competent harbour authority must take into consideration. I consider that the statement of the Minister was somewhat misleading. I do not put it more strongly than that.

Pilots in some districts have little ship manoeuvring to undertake and their function is largely to conduct ships from the pilot station to the point at which a docking pilot takes over. In some districts—and I used Milford Haven as an example at Committee stage—pilots are experienced in the handling of ultra-large vessels with vast open spaces and very specialised needs for berthing at tanker terminals and so on. Conversely, other ports are small, very intensively utilised and subject to widely varying weather conditions.

My submission then and now is that the basic skills are quite different and that pilots experienced in one type of skill could not readily adapt as easily as the master of a ship who holds a pilotage exemption certificate and who is already experienced in that size and type of vessel in that location. The examples which I used at an earlier stage were Milford Haven on the one hand and Aberdeen, of which I know something, on the other.

The Minister said in replying to that point at Committee stage that if there were no applications from previously licensed pilots from other ports offering their services, it would be an option to recruit locally. I found that helpful because I had not been able to infer that that was an application of the Bill at that point. Therefore, his remark was helpful to me at the time.

Nevertheless, while training can be given, there is an obvious advantage in ports where specialised conditions exist in recruiting a master of a ship who has already held a pilotage exemption certificate for that port and who is familiar with constraints imposed by local weather conditions, confined spaces and the employment of manoeuvring aids such as dynamic positioning systems and thrusters.

Quite simply, in the interests of safety, the best man must be employed for the job. During Committee stage my noble friend Lord Carmichael of Kelvingrove wisely drew the attention of the Minister to the question of training transferred pilots and the assessment as to when a pilot has acquired sufficient local knowledge. I consider that this is a real problem in ports where specialised local conditions exist.

A pilot transferred in spring or summer could well have gained basic familiarity with fair weather conditions. He may not encounter storm or ice conditions for six months or so and, having been granted a local licence and the cost burden of his training having been terminated by his original port, he could then be faced with conditions which he has never before experienced. Is he the better man to safely conduct a ship to a safe berth, or is the better man a ship master who for years has operated in and out of the port in all weathers and who has a pilotage exemption certificate?

I commend these two amendments for your Lordships' consideration. Their effect, if they are carried into the Bill, will be, first, to reduce the time limit to two years instead of imposing constraints for four years, by which time a problem of imbalance of ages could be created. Secondly, new employment opportunities would not be confined to a few pilots, necessary though it is to give them a priority, but would be afforded to certain experienced master mariners in our declining merchant fleet who, like pilots, also have ship handling skills and, in the case of holders of local pilotage exemption certificates, have superior local knowledge compared with pilots transferred from districts where conditions are quite dissimilar. Thirdly, in those ports where there is already a correct number of pilots, including those who already employ pilots, the position would not be worsened or constrained. It is in the light of those arguments, which I believe to be relevant (although I accept that they are against the major thrust of the Bill), that I move Amendment No. 10. I beg to move.

Lord Brabazon of Tara

My Lords, I congratulate the noble Lord, Lord Kirkhill, on having come back again at this second stage of the Bill. Admittedly he has moved from one year to two; however, I fear I have to tell your Lordships that even with that I shall not be any friendlier towards the amendments than I was at Committee stage. Nonetheless, I shall attempt to be brief.

Lord Kirkhill

Hear, hear!

Lord Brabazon of Tara

Subsection (3) of Clause 3 is aimed at ensuring as far as possible that existing licensed pilots shall be given every opportunity to continue in their profession under the new regime. I think that that will be welcomed in all quarters of the House. However, I should like to give two reasons why we do not accept that the two-year period would allow sufficient time, first, for harbour authorities to decide on the number of pilots they will eventually need once the initial wrinkles in the pilotage service they wish to provide have been smoothed out, and, secondly, to allow a reasonable period of time for those who wish to carry on in pilotage to find a new berth. We hope there will be cases of ports where there is no surplus of pilots and where volunteers will be prepared to take early retirement, so creating vacancies for surplus pilots from elsewhere. All this takes time, and I cannot accept that the first amendment will give everyone long enough.

Nor can I accept the second amendment. I accept the point that there are wide differences between harbour areas and that a pilot moving from one port to another may have a great deal to learn about the local conditions. But there would also be a period of learning for a master with a pilot exemption certificate, or for a master of a ship regularly trading into the port, before he is able to deal safely with the variety of vessels which use the port. There seems to me not much difference between a CHA taking an existing pilot from another district, who would have to familiarise himself with the local conditions, and recruiting a master with local knowledge and experience who is not sufficiently competent to pilot all types of vessels. There is of course no question of CHAs being obliged to take on pilots from elsewhere without satisfying themselves as to their suitability. Transfers will not be compulsory. A CHA will have the right to turn down anyone, former licensed pilot or not, who does not have the required qualifications even within the four years. Therefore, the question of safety which the noble Lord, Lord Kirkhill, has mentioned does not, in our opinion, arise.

Given that pilotage and in particular the number of pilots is a national problem, it does not seem to me to be too much to ask of authorities which are in the position of needing additional pilots that they should look long and hard before turning down experienced pilots from other ports.

These provisions have been discussed at great length in the preparation of the Bill between the British Ports Association and the pilots. I certainly have not heard that, as the noble Lord, Lord Kirkhill, suggested, there are large numbers of those in the BPA who are dissatisfied with this provision. Therefore, I cannot accept these amendments.

Lord Kirkhill

My Lords, detecting a wide measure of support for my position in your Lordships' House, and ever the skilful parliamentarian as I believe myself to be, the Minister will no doubt be relieved to know that I shall not be pressing my point to a Division. However, I want to say one thing to him before I resume my seat. At the point to which I make reference, this is another example of a Bill drawn in United Kingdom terms which has great significance for Trinity House and others but has little or no significance for the more remote geographical areas of the United Kingdom.

Lord Brabazon of Tara

My Lords, with the leave of the House, the noble Lord himself said that the Bill has significance possibly in the Clyde and the Forth; and that so far as I am concerned is pretty remote from here.

Amendment, by leave, withdrawn.

[Amendments Nos. 11 and 12 not moved.]

5 p.m.

Lord Brabazon of Tara moved Amendment No. 13: Page 4, line 2, at end insert— ("( ) If at any time during that perod there is such a shortfall, the competent harbour authority shall not authorise any person who was not immediately before that day a time-expired apprentice pilot or a recognised assistant pilot unless the number of such apprentice and assistant pilots applying to be authorised who have the required qualifications also falls short of that number.").

The noble Lord said: My Lords, I spoke to this with Amendment No. 9. I beg to move.

On Question, amendment agreed to.

[Amendment No. 14 not moved.]

Lord Brabazon of Tara moved Amendment No. 15: Page 4, line 3, leave out subsections (4) to (8).

The noble Lord said: My Lords, I spoke to this with Amendment No. 4. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 16 and 17 not moved.]

Lord Underhill had given notice of his intention to move Amendment No. 18: Page 4, line 42, leave out ("may") and insert ("shall in the absence of other commensurable arrangements")

The noble Lord said: My Lords, subsection (8) provides that a harbour authority, may pay into any pilots' benefit fund … such contributions as may be required by the rules governing that fund". That deals with the Pilots' National Pension Fund. At the Committee stage an amendment was proposed to substitute "shall" for "may". This amendment brings in that essential change and also introduces this qualification. At present, self-employed pilots contribute to the Pilots' National Pension Fund—

Lord Brabazon of Tara

My Lords, I wonder whether the noble Lord will give way for a moment. We have just passed Amendment No. 15 in my name which struck out subsections (4) to (8).

Lord Underhill

My Lords, unfortunately the Minister is correct. This shows the difficulty of hasty grouping. I would have referred to the position of the pension fund, because it is a vital issue affecting the pilots. We shall now have to see how we can bring that in at Third Reading.

[Amendments Nos. 18 and 19 not moved.]

Lord Strathcona and Mount Royal moved Amendment No. 20: Page 4, line 46, at end insert— ("( ) Where by virtue of subsection (4) above a competent harbour authority has to offer a contract of employment to a "relevant licence holder" as a "new pilot", the terms of that contract shall include a provision ensuring that the "new pilot's" remuneration exclusive of any contribution that may have to be made into any pilots' benefit fund by virtue of subsection (8) above will be no less than that which he would have been entitled to as a "relevant licence holder" in or in the approaches to the harbour of the competent harbour authority at that time.").

The noble Lord said: My Lords, this amendment is important. It concerns a broad issue which we have already addressed and which we shall be addressing several times later this afternoon. I refer to giving legal effect to the Government's undertakings to treat continuing pilots fairly. I am practically quoting the words of the Prime Minister in saying that. I have a feeling that the Minister will say that his amendment on arbitration has everything to do with this amendment, but there is one major uncertainty in his amendment.

What we seek could be achieved by the Minister giving us an undertaking that words to the effect of this amendment, which says that the earnings of continuing pilots should be equivalent to what they are earning now, might be within the terms of reference for arbitration. If he says that, as I hope he will, it occurs to me that there would be no objection to putting in this amendment anyway. Then we would have a belt and braces position. We would be certain that the the Government accept this provision as being a statement of one of the aspects of what any reasonable person would regard as the meaning of the undertakings about fairness for continuing pilots which have been so often repeated by the Government.

I hope that the noble Lord will be able to accept this amendment and will also be able to give us the assurances which are associated with subsequent amendments. I beg to move.

Viscount Simon

My Lords, I should like very warmly to support the spirit behind the amendment of the noble Lord, Lord Strathcona, but I am bound to say that I do not think it works. The amendment begins with the words: Where by virtue of subsection (4)". Subsection (4) has been removed from the Bill. If the Minister could indicate agreement in principle with what the noble Lord, Lord Strathcona, is getting at, it would be a great help to all of us.

Lord Mottistone

My Lords, I am sorry to sound again a damp note on this, but it seems to me that this is an attempt to guarantee a pilot's level of earnings under the new arrangements. The amendment disregards other aspects of conditions such as volume of work, hours or work, nature of work, area of work and so on. It also ignores the fact that sometimes earning levels have been brought up much too highly by ill thought-out rate setting by existing pilotage authorities. Therefore I doubt whether the amendment should be supported. We debated it in Committee and I think it should be rejected.

Lord Underhill

My Lords, perhaps I may also support the principle of the amendment and what the noble Lord, Lord Mottistone, has said. It may well be that in the negotiations locally the question of hours and other matters of work conditions will be discussed, but what is important is that the negotiations will be on a local basis between a port authority and the pilots in that area. National negotiations are going by the board. The pilots have declared their full support for a scheme or reorganisation as the Bill proposes. Having declared their support, and having had on at least three or four occasions assurances from Ministers and from the Prime Minister that they will be given fair and equitable treatment if negotiations on earnings are to be left to local negotiations, the pilots are frightened that some of them could find themselves in an adverse position. That is why they are endeavouring to lay down in the amendment moved by the noble Lord, Lord Srathcona, some guarantee that their earnings will not be less than is at present provided on a negotiated basis.

Lord Simon of Glaisdale

My Lords, on the drafting point that was made by the noble Viscount, Lord Simon, that there is a reference to subsection (4), which has been removed, perhaps I may make two points. First of all, I very much agree with the noble Lord, Lord Underhill, about the excessive grouping that we have had. We have got into a mess over Clause 3 and will, I think, continue in that way.

So far as concerns subsection (4), it is true that it has been removed in terms. However, there is a similar subsection in the Minister's new clause that in effect has replaced most of Clause 3. I should have thought that there would not be any difficulty if your Lordships choose to add the provision, and the reference to subsection (4) can be tidied up at the next stage of the Bill. I suggest that there is every advantage in not being deterred by a purely drafting point and for this matter to be decided on its merits.

Lord Brabazon of Tara

My Lords, perhaps I may say first to the noble and learned Lord, Lord Simon of Glaisdale, that the new clause of Amendment No. 30 has been tabled for a week, and indeed the noble Lord, Lord Underhill, put down some amendments to it. I cannot accept therefore that people have not had an opportunity to look carefully at it.

Turning to this specific amendment, it is of course similar to one that was put forward at Committee stage. But, as my noble friend has explained, the purpose of the present amendment is to require CHAs which are obliged to offer employment to licensed pilots, to provide them with at least the same level of remuneration as that to which licensed pilots in the ports concerned are entitled before the harbour authorities assume their responsibility for pilotage. I fear that after very careful consideration I regard this amendment, as I regarded the amendment that was brought forward in Committee, as imposing too much of a straitjacket on the harbour authorities.

I recognise that in the past legislation on some occasions has provided for the level of earnings of employees being transferred by legislation from one employer to another to be preserved; and indeed that is what we are proposing in this Bill for the employees of pilotage authorities. However, most of the pilots are classified as self-employed. Pilotage charges are set at levels whch are expected to yield particular levels of earnings for the pilots in each district, but what they actually earn depends on the volume of shipping using the ports. After implementation of this Bill, where pilots become employees of the harbour authorities, their earnings are likely to be much less dependent on fluctuating volumes of shipping than they are at present. I believe that to be an important consideration which argues against guaranteeing employed pilots in the future levels of earnings to which they were entitled as self-employed pilots. Their levels of earnings as employees of the harbour authorities are likely to be more secure.

I suggest that it is also relevant to bear in mind that the ports have not been party to the national agreements on pilots' pay, which, though no longer in operation, still largely underlie pilots' earnings, nor were the ports party to the way in which pilots earnings have been determined locally in the various districts.

During the debate in Committee on the corresponding amendment, some noble Lords—for example the noble Viscount, Lord Simon and my noble friend Lord Strathcona and Mount Royal—argued that the Government would be going back on their assurances that pilots remaining in the industry will receive fair and equitable treatment. Indeed some noble Lords seemed to argue that fair and equitable treatment and the guaranteeing of present levels were synonymous. I cannot accept that. The earnings to which the pilots are at present entitled as self-employed persons reflect their availability for service at all hours of the day and night, at weekends, on bank holidays, at Christmas and so on, which I think was the point that my noble friend Lord Mottistone was driving at.

The Select Committee on Transport in another place referred to a number of localities in which there was prima facie evidence of low productivity, and the noble Lord, Lord Underhill, accepted that point in debate in Committee. I suggest that in some cases earnings levels may well not reflect those low levels of productivity. Should we now guarantee pilots, if they enter employment, those same levels of income, it will be open for the pilots in negotiations with the harbour authorities to argue for additional payments for overtime and for working during unsocial hours, at weekends, on bank holidays and so on. Where productivity is low and the earnings to which pilots locally are entitled do not reflect that fact, it would be open to the pilots to argue for increased payments to reflect increased productivity.

I believe therefore that if we were to legislate to guarantee pilots who are to be employed by harbour authorities the levels of earnings to which they are now entitled as licensed pilots, we should be going much further than giving them the fair and equitable treatment to which they are entitled; indeed we should be placing on the harbour authorities an imposition which would still be both unfair and inequitable, and that would feed through into costs to users of our ports which would be higher than they should be. I hope that noble Lords will agree that this is not the best way to proceed.

However I have put down an amendment on arbitration to this effect which we shall have an opportunity of debating later. This amendment proposes to include in the Bill an arbitration procedure under which a panel will be set up to consider disputes on pay and conditions of service that are referred to it either by a harbour authority or by the pilots. Its recommendations will be binding unless the two parties to a dispute agree otherwise. It will have powers in all cases where pilots are employed by CHAs, and not only where pilots insist on employment, as would be the case with the amendment proposed by my noble friend.

The amendment which I have put down also provides for my right honourable friend the Secretary of State to lay down guidelines which the arbitration panel will be required to take into account. As I said earlier, my officials have already started discussions with representatives of the ports and the pilots about the content of these guidelines, and I am sure that they will need to include a reference to the levels of earnings to which licensed pilots are at present entitled.

I very much hope that noble Lords will agree that, with the compensation terms for pilots leaving the service which my right honourable friend the Secretary of State has already announced, the restrictions on recruitment from outside the industry that are already in the Bill and the pilot's ability to insist on employment, for which we are also legislating, this provision for settling disputes between pilots and the harbour authorities gives pilots the assurance of fair treatment, which they are entitled to expect. Therefore I hope that in the light of that explanation my noble friend will not feel the need to press this amendment.

5.15 p.m.

Lord Swinfen

My Lords, before my noble friend sits down, may I point out that he mentioned fair and equitable treatment? Where in the Bill are the guarantees that Government have been promising for so long?

Lord Brabazon of Tara

My Lords, we have not yet come to that point. We shall reach it when we deal with Amendment No. 36, among other measures on arbitration.

Lord Broxbourne

My Lords, the Minister has criticised the amendment of my noble friend as putting things into a straitjacket. Surely it would be a more respectful and perhaps more accurate way of stating the proposition to say that it has the virtue of clarity and certainty, which the alternative procedure adumbrated by him probably will not have.

Lord Brabazon of Tara

My Lords, with the leave of the House, perhaps I may say that is does indeed make things abundantly clear, but unfortunately it makes them clear beyond what we think they should be.

Lord Strathcona and Mount Royal

My Lords, I am extremely grateful to my noble friend who is sitting behind me because I feel that he has flushed out from my party in government a rather embarrassing state of mind. Most of the early part of his reply struck me as essentially irrelevant, if I may say so.

As for the remarks of the noble Lord, Lord Mottistone, about ill thought-out rate setting, the answer is that it simply demonstrates that some of the people who will be handed total authority appear to be incompetent in their jobs, which gives no comfort at all. The question of present levels of earnings and so on, and in particular the very unrespectable argument about self-employment, are essentially irrelevant. The real question, which the Minister quite fairly put, is: what do most of us understand by "fairness"? I believe that my noble friend behind me was supporting me when he said that this is what the ordinary man understands as the meaning of fairness.

The noble Lord then dealt with some complicated questions about how pilots' entitlements had been calculated in the past. That is an extremely complicated point from which I suggest we try to stay away. If he is saying that that is the principal impediment, I dare say we could find a different form of words which would talk about present entitlements as opposed to remuneration, if that would help him. He has said that he does not want to give that undertaking. The trouble about that is that he has not yet laid down the guidelines to which we shall come in Amendment No. 36.

I am made extremely apprehensive about those guidelines by what the noble Lord has now said. He has said, "Our idea of what should be in the guidelines is extremely different from yours". Until he said that, I was in the mood to say that we would tackle this point when we reach the arbitration clauses, withdraw this amendment and return to it on Third Reading if we cannot have satisfactory guidelines. When he expresses his view of what is fair in the way that he has, he makes me apprehensive about what the guidelines will contain. I feel tempted to press the amendment. I think that the Minister looks pregnant for the fourth time during this Report stage, and before I sit down he may care to make a further contribution.

Lord Brabazon of Tara

My Lords, with the leave of the House, my noble friend has completely misinterpreted what I said about the guidelines for the arbitration procedure. I shall repeat the phrase, which he will be able to read tomorrow in Hansard. I said that my officials have already started discussions with representatives of the ports and the pilots about the content of the guidelines. I am sure that they will need to include a reference to the level of earnings to which licensed pilots are at present entitled. I could not be much clearer than that.

Lord Strathcona and Mount Royal

My Lords, I am grateful to my noble friend. He has said that the guidelines will refer to the pilots' present entitlement. He did not say what sort of a reference it would be. He said, "I do not like the present entitlement". That leads me to suppose that the guidance will say that the arbitration should take no cognisance of present earnings levels even if it addresses the general problem of earnings levels.

I am sure that the Minister intends to meet some of those arguments later. I have no wish to provoke him into an uncooperative mood, and so I am prepared to withdraw the amendment at this juncture.

Amendment, by leave, withdrawn.

Lord Brabazon of Tara moved Amendment No. 21: Page 5, line 4, at end insert— ("(aa) that the authorised person has ceased to have the qualifications required from persons applying for authorisation by it under this section or has failed to provide evidence that he continues to have those qualifications").

The noble Lord said: My Lords, Amendment No. 21 fulfils a commitment that I gave in Committee to bring forward an amendment which will allow an authorisation to be suspended or revoked if the pilot concerned no longer meets the qualifications required by the CHA. That was a suggestion made by the noble Viscount, Lord Simon, for which we are grateful. It is of course principally directed at the question of health and fitness for the job, where there may in certain cases be a need, in the interests of safety, to take a pilot off pilotage duties straight away without of course affecting his rights under a contract of employment or other agreement. I beg to move.

Viscount Simon

My Lords, I am obliged to the noble Lord. I am not surprised that he has brought forward an amendment as he undertook to do.

On Question, amendment agreed to.

Lord Underhill moved Amendment No. 22: Page 5, leave out lines 5 to 10.

The noble Lord said: My Lords, it has been suggested, and it seems sensible, that Amendments Nos. 22, 23 and 24 should be taken together. The pilots are concerned that this clause could enable a CHA to circumvent Section 54 of the Employment Protection (Consolidation) Act 1978 which relates to the right of an employee not to be unfairly dismissed and Section 59 which relates to dismissal on grounds of redundancy.

Subsection (9) (c) relates to agency self-employed pilots and subsection (9) (b) relates to the employee and is totally unnecessary but on completely different grounds. A CHA will have contracted an agency to provide pilotage services on its behalf. It is envisaged that it would be for an annual lump sum. That being so, surely it is up to the agency to decide how best to manage its affairs. There are a number of ways by which it could cope with reduced revenue. The removal of an authorisation by a harbour authority need not be one of them. Any such action would reduce flexibility. The pilots feel that those two paragraphs illustrate the fact that the Bill does not help them. They feel aggrieved by it.

Amendment No. 23 proposes to leave out "(a)" which appears in subsection (10), which states: Before suspending or revoking an authorisation under subsection (9)(a) above, a competent harbour authority shall give written notice … and shall give [the person] a reasonable opportunity of making representations". Subsection (9)(a) relates to a person being guilty of incompetence or misconduct. The amendment, by deleting "(a)", would give the right to have a written notice and to make representations to those persons covered by paragaphs (b) and (c).

Paragraph (b) provides: that the number of persons for the time being authorised by it under this section exceeds the number required to be authorised"; and paragraph (c) provides: that it is appropriate to do so by virtue of any alteration in or the termination of any contract or other arrangement". We now have paragraph (aa) as a result of Amendment No. 21, to which the Minister has referred. It is unfair that a pilot who is to have his authorisation revoked or withdrawn on grounds of incompetence or misconduct will have the right to have a written notice and to make representations, while those who come under paragraphs (b), (c) and now (aa) will not have that right.

We debated that matter in Committee. I cannot see the argument against giving all categories the right to written notice and to make representations. We were told by the noble Lord, Lord Gray of Contin, in Committee that it would remove a management ability. The point that was made in reply to that was that we have surely reached a stage in industrial relations that persons who are affected by paragraphs (b), (c) and (aa) should have the same right to a written notice and to make representations as those persons who have had their authorisation revoked or suspended because of incompetence or misconduct. There is no rhyme or reason why that should not apply to everyone affected by subsection (9), as now amended. That is the substance of Amendment No. 24.

5.30 p.m.

Lord Brabazon of Tara

My Lords, as the noble Lord, Lord Underhill, has explained, the amendment would deprive a CHA of the power to suspend or revoke an authorisation other than on grounds of incompetence or misconduct. I am not yet persuaded that the powers to remove an authorsation on the grounds specified in paragraphs (b) and (c) can reasonably be dispensed with.

It can of course be argued that it is the cost of pilotage that matters to the ports and their customers and that the number of pilots is a secondary consideration. In logic that may be true, but all past experience shows that if there are more pilots than are necessary, then costs will be related to those numbers. That is after all the root of the difficulties that have caused this new legislation to be necessary.

The powers to suspend or revoke are of course discretionary, and there is nothing to prevent a CHA agreeing with the pilots how many of them are to be authorised and agreeing with them to maintain that number even if trade declines and the demand for pilots' services and the available income decline. That may well be an attractive arrangement where self-employment is to be the basis on which pilotage services are to be provided. I certainly take note of that point which the noble Lord, Lord Underhill, made.

I believe that any such arrangement must be for the CHA to agree with pilots on a port-by-port basis. To write in a statutory provision that authorisation must, except for cases involving misconduct or incompetence, run on indefinitely would remove one of the central provisions which a CHA needs to have available if we are to achieve the Bill's objective of maintaining the cost effectiveness of pilotage services. It is a provision which we hope will not need to be called on very extensively, but it would be irresponsible to remove it, at least without providing some adequate replacement.

Turning to Amendment No. 23, as the noble Lord said, we discussed a similar amendment at some length in Committee, and I made it clear that in our view a pilot's rights in such matters as employment protection should be attached to his contract of employment or other agreement under which he carries out pilotage for the CHA. It is inappropriate to attach them to his authorisation, which merely enables him to carry out his duties under that contract or agreement.

The noble Lord, Lord Underhill, suggested that the same argument could be applied even to cases where a pilot's competence or conduct were in question, under subsection (9)(a). I am tempted to agree—but I do not—and accept that subsection (10) could be dispensed with altogether. But that would be going too far.

However, I feel fairly strongly that it should not be applicable with regard to paragraphs (b) and (c). Nor can I agree that an appeal procedure of this kind can be justified. As I have said before, a pilot will have his contract of employment or other arrangement with the CHA and if there is any question of unfair dismissal or breach of contract his remedies will be clear. If he wishes to appeal because he disagrees with the judgments that the CHA has made about the number of pilots needed in the port or whether the pilotage is to be provided by directly employed pilots, by an agency or by some other arrangement, then those seem to be the matters entirely within the CHA's areas of responsibility in which it would be inappropriate for the Secretary of State to be given a role.

The noble Lord queried whether two sections of the employment Act were applicable in these circumstances. I said at the Committee stage that pilots who took employment under the new arrangements, and who had a contract of employment, would be covered by the employment protection Act. I shall look again at the points which the noble Lord, Lord Underhill, has raised, but further than that I cannot go.

Lord Strathcona and Mount Royal

My Lords, I should like to support the noble Lord, Lord Underhill. Amendment No. 23 does not apply if we agree to Amendment No. 22; but that is purely a procedural question.

The Bill refers to "the number required". One must assume that the noble Lord is implying that the body who will decide how many are required is the CHA itself although it does not say so. I should have thought that that was a fair presumption. The next question which arises is this. Supposing one has an agency and the agency decided to employ all part-time pilots—that is not an inconceivable scenario, is it?—one would need a great many more pilots in that situation than if one had full-time pilots. Supposing then the CHA decides how many pilots it thinks it needs on a full-time employed basis, what is the agency to do if it wants to employ different kinds of people on a different kind of basis? The CHA might be prepared to agree to the proposal by the agency but there is nothing in the Bill which says that it has to do so.

The second point was referred to just now by the noble Lord. What happens if for some reason an authorisation is removed? Somewhere in the Bill it says that one cannot have a person purporting to be a pilot on the bridge of a ship if he is not authorised to do so. One then has the situation where an authorisation has been removed and, ipso facto, the man can no longer be employed. Is that a reason we would wish to give for his losing his job? If so, is he able to claim unfair dismissal, for example? I do not know the two sections of the Act to which the noble Lord was referring but I should have thought that one of the provisions which we need to write into the Bill in some way is that authorisation cannot be removed in such a way as to take away a man's job. Otherwise, one simply says, "We want to get rid of this fellow. What we shall do is to take away his authorisation and then he automatically loses his job." That must be an unsatisfactory state of affairs.

When I first considered this I thought it raised an outrageous issue of principle: that when the perceived demand for the services of a given profession—be it school teachers, doctors or lawyers—drops below the market requirement, one takes away their right to practise, because that is what the authorisation is about. I then started to consider that although in principle it is highly objectionable, in practice it may be acceptable. They will not be offered a job if they are not needed by the CHA. It therefore does not matter if it has taken away their authorisation. But if one looks at it the other way round, it seems to me that one must somehow provide sufficient flexibility for an agency arrangement whereby the numbers can be determined other than directly by the CHA. One must also ensure that the loss of authorisation cannot be used as a device to get rid of somebody whom one does not wish to employ. For those reasons, unless the Government can come up with a better idea, I believe that we ought to accept this amendment.

Lord Carmichael of Kelvingrove

My Lords, the Minister may recall that I moved the equivalent of Amendment No. 23 at the Committee stage. I listened to his reply which he repeated in large substance a few minutes ago. I feel much the same. It is asking a great deal, where someone has been dismissed because he has been guilty of incompetence or misconduct affecting his capability as a pilot, that he should be given a notice in writing stating why.

The Government Amendment No. 21 says that the authorised person has ceased to have the qualifications", in the opinion of the competent harbour authority. If it was merely considered by the harbour authority that they have ceased to have qualifications—whatever these qualifications were—they would have no protection by having a statement in writing. The only people who would have a statement in writing and a right to appeal would be those who were dismissed because they have been guilty of incompetence or misconduct affecting their capability as a pilot.

One of the points made at the Committee stage was this. There are certainly situations in which a pilot may, in his expert and technical judgment, not satisfy the competent harbour authority in its commercial judgment. There may be a very definite difference of opinion here. It may be that the employment Acts would not give protection. The pilot may say that in his judgment it would be wrong to take in a ship in those conditions, or that it would be dangerous because of the cargo to take in a ship in those conditions. If a pilot had the reputation within a CHA of being over-cautious—although he might have perfectly good reasons for being so—he would have no entitlement under the Bill as it stands to be given any security at all or any explanation in writing.

I therefore ask the House to consider accepting Amendment No. 23, which leaves out "(a)". The subsection would then read: Before suspending or revoking an authorisation under subsection (9) above, a competent harbour authority shall give written notice of its intention to do so to the authorised person.". That would mean that every pilot who was dismissed for whatever reason, including the reason given in the Government's new Amendment No. 21, would be given notice in writing as to why he was being dismissed. In a responsible job such as pilotage where there could be a conflict of commercial and expert technical judgment, it is little more than merely a dismissal under the Employment Act. Therefore, if the Minister will not accept this amendment, I shall want to test the House on Amendment No. 23. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 23: Page 5, line 12, leave out ("(a)").

The Deputy Speaker (Lord Aylestone)

My Lords, the Question is that Amendment No. 23 be agreed to? As many as are of that opinion will say, "Content"—

Lord Mottistone

My Lords, if Amendment No. 22 is withdrawn then the point of Amendment No. 23 is lost because it is not leaving out paragraph (a), it is just leaving out "(a)". Amendment No. 23 is consequential on Amendment No. 22.

Lord Underhill

My Lords, if the noble Lord will permit me, leaving out "(a)" refers to (9)(a) which appears in subsection (10). Therefore, by leaving out "(a)" all the categories to which my noble friend referred will be covered.

5.43 p.m.

On Question, Whether the said amendment (No. 23) shall be agreed to?

Their Lordships divided: Contents, 64; Not-Contents, 74.

DIVISION NO. 1
CONTENTS
Airedale, L. Llewelyn-Davies of Hastoe, B.
Aldenham, L. Longford, E.
Ardwick, L. Lovell-Davis, L.
Aylestone, L. Meston, L.
Blease, L. Monson, L.
Bonham-Carter, L. Morris, L.
Brockway, L. Mulley, L.
Bruce of Donington, L. Nicol, B.
Buckmaster, V. Norfolk, D.
Carmichael of Kelvingrove, L. Phillips, B.
David, B. Pitt of Hampstead, L.
Dean of Beswick, L. [Teller.] Prys-Davies, L.
Diamond, L. Ritchie of Dundee, L.
Elwyn-Jones, L. Rugby, L.
Ewart-Biggs, B. Seear, B.
Gallacher, L. [Teller.] Shackleton, L.
Geddes, L. Simon, V.
Graham of Edmonton, L. Stallard, L.
Gray, L. Stedman, B.
Greenway, L. Stewart of Fulham, L.
Gregson, L. Strabolgi, L.
Grey, E. Strathcona and Mount Royal, L.
Hanworth, V.
Houghton of Sowerby, L. Swinfen, L.
Irving of Dartford, L. Underhill, L.
Jeger, B. Wallace of Coslany, L.
Jenkins of Putney, L. Wells-Pestell, L.
John-Mackie, L. Wigoder, L.
Kagan, L. Wilson of Rievaulx, L.
Kennet, L. Winchilsea and Nottingham, E.
Kilbracken, L.
Kirkhill, L. Winterbottom, L.
Liverpool, E. Ypres, E.
NOT-CONTENTS
Abinger, L. Gainford, L.
Ampthill, L. Gardner of Parkes, B.
Auckland, L. Glanusk, L.
Bauer, L. Gormanston, V.
Beaverbrook, L. Hesketh, L.
Belstead, L. Hives, L.
Bessborough, E. Home of the Hirsel, L.
Boardman, L. Hooper, B. [Teller.]
Boyd-Carpenter, L. Hylton-Foster, B.
Brabazon of Tara, L. Inchcape, E.
Brougham and Vaux, L. Killearn, L.
Broxbourne, L. King of Wartnaby, L.
Butterworth, L. Lane-Fox, B.
Caithness, E. Lauderdale, E.
Cameron of Lochbroom, L. Layton, L.
Carnegy of Lour, B. Long, V.
Carnock, L. Lyell, L.
Cathcart, E. McAlpine of West Green, L.
Coleraine, L. Macleod of Borve, B.
Cork and Orrery, E. Marley, L.
Cox, B. Maude of Stratford-upon-Avon, L.
Craigavon, V.
Cullen of Ashbourne, L. Merrivale, L.
Davidson, V. [Teller.] Mersey, V.
Denham, L. Molson, L.
Dilhorne, V. Mottistone, L.
Dundee, E. Munster, E.
Ferrier, L. Murton of Lindisfarne, L.
Fraser of Kilmorack, L. Orr-Ewing, L.
Pender, L. Sudeley, L.
Penrhyn, L. Teynham, L.
Polwarth, L. Trumpington, B.
Portland, D. Vickers, B.
Rankeillour, L. Vivian, L.
Sanderson of Bowden, L. Whitelaw, V.
Sandford, L. Wise, L.
Shannon, E. Young of Graffham, L.
Skelmersdale, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.50 p.m.

[Amendment No. 24 no moved.]

Lord Underhill moved Amendment No. 25:

Page 5, line 15, at end insert— ("( ) Any person who was before the appointed day a holder of a full licence and who is subsequently employed by a competent harbour authoritiy may by notice in writing to the authority require it to employ him on terms which deem his period of employment to be reckoned as from the date when he was first licensed.").

The noble Lord said: My Lords, for convenience, I should also like to speak to Amendment No. 95A in the name of the noble Lord, Lord Swinfen, which partly covers the same point; namely, the back-dating of a pilot's employment. Through this Bill the Government will make a number of self-employed pilots take the form of employees. The amendment ensures that as employees they will enjoy legal employment rights which they would not otherwise have. This principle is enshrined for pilotage authority personnel in Clause 23(5) of the Bill and has been agreed informally between representatives of the ports and pilots. As the Government are initiating change, it is up to them either to provide a legislative guarantee by inserting that in the Bill and agreeing to the amendment, or to say that they agree with the principle and bring forward their own amendment.

At Committee stage, in col. 38 of Hansard, the Minister said that he does not consider that this is a matter for legislation. There are currently discussions going on between pilots and the ports. However, I am informed that the latest views put forward by the Department of Transport who take part in these discussions are that guidelines only would be sufficient for discussion between the two parties. Guidelines are not enough.

It is generally acknowledged, as was made absolutely clear at Committee stage, that the British Ports Association cannot commit its members. It cannot say, "We agree with this" and therefore every harbour authority falls into line. That does not happen. The general council of the TUC can come to certain decisions, but they are not binding, in most cases, upon the different trade unions. The trade unions can say: "We shall take no notice, we shall go on". The BPA can come to an agreement with the pilots, which would not necessarily be binding on all port authorities. To be fair, a legislative guarantee is required. What is asked is that the period of employment before this Bill comes into effect should be reckoned as their period of employment for benefits and entitlements under the Bill. I beg to move.

Lord Swinfen

My Lords, I must support the noble Lord, Lord Underhill, in this amendment. If this amendment is agreed to I shall not move my Amendment No. 95A because both are in the same terms.

We have a situation where a number of independent individuals who are self-employed, have been press-ganged, or are being press-ganged for the most part, into employment. As the Bill is drafted, it will be extremely difficult for the majority of those individuals to insist in their negotiations with the competent harbour authorities that they remain self-employed.

Let us take, for example, a number of very senior, highly-qualified accountants in the City of London who, in any one year, probably earn far more than three noble Lords put together. Let us suppose that they are moved to the Treasury to sort out its problems. This is much needed, but that is beside the point. They are treated as if they have come straight out of school, recently qualified, and have no seniority and experience. It is absolutely right that pilots with 25 or more years' experience, and a long time before that at sea for many years, should be treated in a responsible manner. I am all in favour of the amendment.

Lord Strathcona and Mount Royal

My Lords, I should like briefly to add my support to the amendment. It goes back to the definition of what is meant by fairness. It is perfectly clear that the period of service prior to the change in the nature and the terms of employment should be reckonable. It is one of the four conditions which to me relate to the question of the Government's good faith in being prepared to write into the legislation the undertakings of fairness that they have so often repeated.

Lord Brabazon of Tara

My Lords, these amendments propose that the Bill should deal for employment protection purposes with the previous service of pilots to be employed by CHA's in the same way as it deals with the previous service of the employees of pilotage authorities. The difference is of course that the pilots' previous service is as self-employed pilots, and there has been absolutely no exception to the principle that such self-employed service should not count towards a period of service for the purposes of rights under the 1978 employment protection legislation. I do not believe that it would be right to make an exception in this case. That legislation is about employment and employees and I hope that noble Lords will agree that it would be quite wrong to extend its provisions to periods of self-employed service.

The noble Lord Lord Underhill, mentioned that discussions which are going on under the chairmanship of my department's officials between representatives of the ports and of the pilots about the drawing up of national guidelines within which negotiations between harbour authorities and pilots might take place at local level.

The port's representatives have said that they are prepared to see such guidelines state that, in the event of redundancies becoming necessary after what we have called the shake-down period, the terms offered to the pilots will be no less favourable than those which would have been payable under statutory requirements if previous service as a licensed pilot counted as employment. That seems to me to be a very important concession to the pilots, especially when it is seen in the light of the statutory arbitration procedure which we propose to set up. Any dispute which arises about redundancy terms between a harbour authority and the pilots will of course be capable of being referred to the procedure, and clearly the arbitration panel will expect to take account of the national guidelines such as I have referred to and which have been agreed between representatives of the ports and of the pilots. I believe that that takes care of the point raised by the noble Lord, Lord Underhill, about whether or not these national talks between the ports and the pilots would go down to the local level. This seems to me to be the right way to deal with this issue. The pilots will be able to appeal to the arbitration panel and to point to the national guidelines if an individual harbour authority decides to ignore their periods of self-employed service; but I believe we should avoid making a nonsense of the 1978 employment protection legislation, which we should be doing if we tried to relate it to periods of self-employment.

My Lords, I hope with the assurances that I have given that noble Lords will not feel that the pilots are now being hard done by and that the mechanism we propose will be just as effective as the way that the noble Lord tries to put it in the amendment.

Lord Shackleton

My Lords, perhaps I may ask the noble Lord whether he can find any parallel situation to the pilots of a kind that would make a nonsense of the 1978 Act. The noble Lord seems to be opposing this major undertaking that we hope the Government would honour on the grounds that technically it would do damage to other legislation. Are there other comparable examples where a self-employed group such as the pilots is being specially provided for? Does this create a nonsense of the Act? What the noble Lord said sounded reasonable, but I am not satisfied with his reason.

Lord Brabazon of Tara

My Lords, I cannot give an example offhand of any other case to which this might apply. Of course it might set a future precedent, which would be undesirable as well. But I think that the alternative that I have offered is a fair one.

Lord Underhill

My Lords, I do not know that the Minister has really offered an alternative. He has referred to quidelines. But is it not a fact that Associated British Ports have broken away from the British Ports Association? If that is the case, then where stands any agreement that may be reached by the BPA?

It is already recognised that it cannot be binding. It will make it an even worse position that Associated British Ports have broken away from the ports authority body conducting negotiations. Could it not mean that we have one port authority which says, "We will not recognise the past service of previously self-employed pilots" and another port authority, not too far away, saying, "We will recognise"? Surely that is not simplifying the matter but creating more bitterness among pilots. The last thing we want in this Bill is to create bitterness among the pilots who want to be ready participants in this reorganisation scheme, and yet this lays the foundation for bitterness and controversy.

I have not consulted the TUC as to their view of the 1978 protection Act but, as my noble friend Lord Shackleton made clear, this is a unique occupation. A great majority of the pilots have been self-employed. It has been a different occupation altogether. We do not know where the guidelines are going to be. We cannot reinforce the guidelines. The Minister says that these could be covered by the arbitration machinery. When we come to Amendment No. 36 we shall have to have a long discussion to see exactly what will be covered by the arbitration machinery and what will not.

This is a vital principle. Men who have given years of devoted service to the safety of British shipping should be safeguarded in this legislation, not by casual guidelines, so that their past service will rank when the new regime takes over. Unless the Minister can give me something far stronger than he has given so far, this is another issue on which, for the fair, equitable and honest treatment of the pilots, the House should declare a view.

Lord Brabazon of Tara

My Lords, with the leave of the House, I would say that Associated British Ports while not a member of the BPA, are participants in these discussions, and they will of course be part of the national guidelines to which I referred. The noble Lord obviously does not feel that what I have said is fair, but what I said was that these national guidelines would be taken into account by the arbitration panel. Therefore, if a port outside tried to go against them they would almost certainly lose when they went before the arbitrators.

Lord Underhill

My Lords, before the noble Lord sits down, if he believes that this is something that ought to be in the guidelines, and if he believes that therefore the arbitration machinery to be set up should take cognisance of the guidelines, why is there hesitancy to write this into the legislation so that there is not the slightest doubt whatever as to what the Government and the country want?

Lord Brabazon of Tara

My Lords, it is for the reasons that I have already given in my original reply.

6.5 p.m.

On Question, Whether the said amendment (No. 25) shall be agreed to?

Their Lordships divided: Contents, 61; Not-Contents, 71.

DIVISION NO. 2
CONTENTS
Airedale, L. Craigavon, V.
Aldenham, L. David, B.
Ardwick, L. Dean of Beswick, L.
Aylestone, L. Diamond, L.
Bessborough, E. Elwyn-Jones, L.
Blease, L. Ewart-Biggs, B.
Brockway, L. Gallacher, L.
Bruce of Donington, L. Graham of Edmonton, L. [Teller.]
Buckmaster, V.
Carmichael of Kelvingrove, L. Gray, L.
Cathcart, E. Greenway, L.
Gregson, L. Ponsonby of Shulbrede, L. [Teller.]
Grey, E.
Hanworth, V. Ritchie of Dundee, L.
Hatch of Lusby, L. Russell of Liverpool, L.
Irving of Dartford, L. Seear, B.
Jeger, B. Shackleton, L.
John-Mackie, L. Simon, V.
Kagan, L. Stallard, L.
Kinnoull, L. Stewart of Fulham, L.
Lawrence, L. Strathcona and Mount Royal, L.
Llewelyn-Davies of Hastoe, B.
Longford, E. Swinfen, L.
Meston, L. Tordoff, L.
Monson, L. Underhill, L.
Morris, L. Wallace of Coslany, L.
Mulley, L. Wells-Pestell, L.
Newall, L. Wilson of Rievaulx, L.
Nicol, B. Winchilsea and Nottingham, E.
Norfolk, D.
Perry of Walton, L. Winterbottom, L.
Phillips, B. Ypres, E.
Pitt of Hampstead, L.
NOT-CONTENTS
Abinger, L. Inchcape, E.
Ampthill, L. Killearn, L.
Auckland, L. Lane-Fox, B.
Bauer, L. Lauderdale, E.
Beaverbrook, L. Lindsey and Abingdon, E.
Belstead, L. Long, V.
Boardman, L. Lyell, L.
Boyd-Carpenter, L. Macleod of Borve, B.
Brabazon of Tara, L. Marley, L.
Brougham and Vaux, L. Maude of Stratford-upon-Avon, L.
Broxbourne, L.
Butterworth, L. Merrivale, L.
Caithness, E. Mersey, V.
Cameron of Lochbroom, L. Molson, L.
Campbell of Alloway, L. Mottistone, L.
Carnegy of Lour, B. Mountevans, L.
Carnock, L. Munster, E.
Coleraine, L. Murton of Lindisfarne, L.
Cork and Orrery, E. Orr-Ewing, L.
Cox, B. Pender, L.
Davidson, V. [Teller.] Penrhyn, L.
Denham, L. Polwarth, L.
Dilhorne, V. Portland, D.
Dundee, E. Rankeillour, L.
Ferrier, L. Sanderson of Bowden, L.
Fraser of Kilmorack, L. Sandford, L.
Gainford, L. Shannon, E.
Glanusk, L. Skelmersdale, L.
Gormanston, V. Strathclyde, L.
Halsbury, E. Sudeley, L.
Henderson of Brompton, L. Teynham, L.
Hesketh, L. Trefgarne, L.
Hives, L. Trumpington, B.
Home of the Hirsel, L. Vickers, B.
Hooper, B. [Teller.] Vivian, L.
Hylton-Foster, B. Whitelaw, V.

Resolved in the negative, and amendment disagreed to accordingly.

6.15 p.m.

Lord Swinfen moved Amendment No. 26:

Page 5, line 15, at end insert— ("(10A) The competent harbour authority by which a pilot's authorisation is revoked under paragraph (b) or (c) of subsection (9) above shall pay compensation to the pilot for the loss of that authorisation; and the amount of that compensation shall be determined in accordance with regulations made by the Secretary of State. (10B) Regulations under subsection (10A) above shall require the amount of the compensation in any case to be calculated by reference to the number of years the pilot has worked as a pilot in waters which include the authority's harbour or its approaches, whether before or after the appointed day and whether as an employee or otherwise; and provision may be made in the regulations for reducing the amount of compensation to which the pilot may be entitled (apart from any such provision) under subsection (10A) above by the amount of any compensation to which he is otherwise entitled by reason of the revocation of the authorisation.").

The noble Lord said: My Lords, I apologise to your Lordships that originally I made some mistakes in the draft of this amendment—some of you may have been misled by them—before I corrected them in time for the Marshalled List.

At the Committee stage of the Bill, my noble friend the Minister said: If the authorisation is revoked, the pilot will still have the protections contained in his contract of employment safeguarded by employment legislation".—[Official Report, Public Bill Committee, 10/12/86; col. 70].

This amendment deals with the compensation payable to pilots for loss of their jobs on redundancy within the four-year period. As the Bill stands a pilot of, say, 30 years standing can be transferred from being self-employed to being employed by one of the competent harbour authorities and, because of changing circumstances in the area and the business to and from his port, can lose his job within the four-year period through no fault of his own. If there is a general run-down of trade to the nation as a whole there may be nowhere else for him to go within that line of business.

My noble friend has been emphasising the fairness with which the Government propose to treat pilots throughout this Bill. For example, let us take a pilot aged 59 with 20 years' service as a pilot, for two of which he has been employed by the competent harbour authority. Under the Bill he will be entitled to compensation for redundancy as though he had been employed for only two years. I have with me a pamphlet produced by the Department of Employment in 1986, pamphlet PL808. According to the table in the pamphlet this pilot would get three weeks' redundancy money. However if my amendment were accepted—I think the terms of it can only be construed as fair treatment—he would get 29 weeks' redundancy money.

Let us take another example of a much younger man aged 35, employed for the same length of time by the competent harbour authority. He would get two weeks' redundancy money. If he had been a pilot for a total of eight years he would get eight weeks' redundancy money. This problem becomes more serious as the pilot becomes older. I have a strong suspicion that it would be the older pilots who would get redundancy first because they do not have the length of service to give to the competent harbour authority.

My noble friend the Minister, who has been emphasising all the way along the fairness with which the Government are proposing to deal with the pilots, should accept this amendment. I know he will say that it can be dealt with by arbitration. Pilots are not in a particularly strong position at the moment. The competent harbour authorities will take them on. They will then decide how many pilots they need. They are really like the Christmas walnut in the crackers. They have nowhere to go. I beg to move.

Lord Brabazon of Tara

My Lords, this is a similar amendment to the one that the House has just decided upon. Indeed, it is identical to an amendment my noble friend moved in Committee. Whether it satisfies my noble friend or not, this amendment would give the pilots an entitlement to compensation over and above the employment protection provisions to which they will be entitled by virtue of their contracts of employment or other contractual arrangements.

As noble Lords are aware, and as I have said before, we are shortly bringing forward amendments which will introduce the arbitration procedure that will, among other matters, be able to deal with the question of the terms that will apply on subsequent redundancy. That, I believe, is the proper way forward in this matter. My noble friend suggested that the pilots are in a weak position. I do not believe that is the case. When we reach the arbitration amendment, they will have a good case there. My noble friend also suggested that the pilots had nowhere to go. The ports will still need pilots. Furthermore, for the first four years they are obliged to offer jobs first and foremost to existing pilots. I think the pilots are in a pretty strong position.

Lord Underhill

My Lords, before the noble Lord sits down, may I raise one point? When we come to the arbitration clause, surely this only takes effect for three years and then it will be out. What is going to be the position on the point which the noble Lord, Lord Swinfen, raised with regard to pilots who will be covered by the particular amendment he has moved after the arbitration clause has ceased to take effect? That is the important part of the amendment of the noble Lord, Lord Swinfen.

Lord Strathcona and Mount Royal

My Lords, that seems to be a very good question. The noble Lord has taken refuge in what to me is not a very respectable point, and we have mentioned this before. He fell back on the self-employed argument being the reason why this period of service should not be counted. He overlooks, I think, a letter—which has very often been quoted—from the Prime Minister, which said that she recognised that the terms of service of pilots had few of the characteristics of self-employment. I think I am quoting her actual words; I do not have the letter with me.

I really do not believe that it is a very respectable argument to take shelter behind the fact that they were pseudo self-employed before the Government made these radical changes to the working conditions in which pilots find themselves. While I am perfectly prepared to agree that potentially the arbitration clause may cover the first three years of their service—indeed, one would hope that they will have a chance to negotiate terms which will cover subsequent service thereafter—the fact remains that we still do not know what considerations the arbitrators are going to be told to take into account. Every time the noble Lord, as we see it, resiles from the Government's undertaking about fairness, so we become more and more nervous as to what those guidelines may say. This is the fair warning one has to give him as to what is in front of us.

Lord Shackleton

My Lords, I must say that the more I hear of this debate the more confused I become. Is the Minister saying that they will automatically apply the guidelines of the arbitration procedure? There will be no discretion. Will they be arbitrating? If it is a matter of interpreting the guidelines, one can see that there may be some scope, but one hopes the guidelines will be quite clear, that they will provide adequately in accordance with the Government's previous promises; in which case why the need to arbitrate? This matter seems to me to be very difficult.

Some of my trade union colleagues may be able to comment more on how an arbitration procedure takes place, but it seems to me that they would not automatically be applying the guidelines; they would in fact be trying to work out some sort of compromise between what the ports may say and what the individual pilot may say. I think the Minister really has got himself into an intellectually indefensible position on this matter.

I must say at this time that I wish more of your Lordships were here to hear this debate. Gradually, if more noble Lords were here, the Government's majority would be whittled away.

Lord Mottistone

My Lords, I rather think that the noble Lord, Lord Shackleton—for whom I have the highest opinion, having started off in your Lordships' House under his leadership—is over-exaggerating this situation. My noble friend has been sniping from behind. It is all fair for the Opposition. I can remember being in Opposition and producing just the sort of arguments that the Opposition are now producing—"We must have the guidelines" and "It is no good going to this stage of the Bill without the guidelines". It is a common thing to do.

In taking up the point made by the noble Lord, Lord Shackleton, if you look at Amendment No. 36, what subsection (3) says is quite clear: In making a determination under subsection (1) above the arbitration panel shall have regard to any general guidance issued by the Secretary of State as to the matters to be considered by them. That seems to me to be quite straightforward. Of course it would be nice to know now what the guidance points will be, but as I understand it from my noble friend his department and the interested parties are in constant discussion at the moment. No doubt they will agree something, perhaps before this Bill has got through another place.

However, I do not think it is altogether reasonable at this stage to press my noble friend to come out suddenly with all sorts of guarantees when the whole matter is under discussion. It would seem to me that there is quite enough flexibility to cover an awful lot of these amendments, and I really think that noble Lords are pressing things much too hard and quite unreasonably.

Lord Shackleton

My Lords, although I am not entitled to speak again, with the leave of the House I am entitled to correct a misstatement. We are not fighting this matter on party lines. That has been made very clear. The noble Lord knows that he has colleagues round that side, and it is a pity that he introduced a party point.

Lord Brabazon of Tara

My Lords, with the leave of the House, I shall pick up a couple of points. I am grateful to my noble friend Lord Mottistone for his contribution. I have already said on a number of occasions that among those guidelines for the arbitration, or indeed if one of the parties wished, redundancy payments certainly would be one of the matters to be taken into consideration.

I must also correct another point which was made about the arbitration procedure lasting only for three years. Under subsection (7) of the new arbitration clause, that is the minimum period it would last. The subsection goes on to say: no such order shall affect the terms of any contract continuing in force at that date. Once they have made that contract, that goes on beyond the arbitration timetable.

Lord Swinfen

My Lords, I am not sure about the Minister's comments that because the arbitration does not go on beyond three years that should not have any effect on the contract that goes on beyond that term. Contracts can be made for a period longer than three years, longer indeed than the four years when a pilot comes in. It is a total red herring. I can see absolutely no reason why the Minister should not accept this amendment. He is hiding behind very nebulous guidelines of which very little indication has been given. He himself, other Ministers, the Prime Minister herself having talked all the way through about the way in which pilots are going to be treated fairly, I feel quite honestly that I have no alternative but to ask the opinion of the House.

6.28 p.m.

On Question, Whether the said amendment (No. 26) shall be agreed to?

Their Lordships divided: Contents, 55; Not-Contents, 60.

DIVISION NO. 3
CONTENTS
Airedale, L. McGregor of Durris, L.
Aldenham, L. Meston, L.
Aylestone, L. Monson, L.
Broadbridge, L. Morris, L.
Brockway, L. Mulley, L.
Bruce of Donington, L. Nicol, B.
Buckmaster, V. Norfolk, D.
Carmichael of Kelvingrove, L. [Teller.] Perry of Walton, L.
Phillips, B.
Cathcart, E. Pitt of Hampstead, L.
David, B. Ponsonby of Shulbrede, L.
Dean of Beswick, L. Russell of Liverpool, L.
Diamond, L. Seear, B.
Ewart-Biggs, B. Shackleton, L.
Gallacher, L. Simon, V.
Graham of Edmonton, L. Simon of Glaisdale, L.
Gray, L. Stallard, L.
Greenway, L. Stewart of Fulham, L.
Grey, E. Strathcona and Mount Royal, L.
Hanworth, V.
Hatch of Lusby, L. Swinfen, L. [Teller.]
Houghton of Sowerby, L. Tordoff, L.
Hylton-Foster, B. Underhill, L.
Irving of Dartford, L. Wells-Pestell, L.
Jeger, B. Wilson of Rievaulx, L.
Kennet, L. Winchilsea and Nottingham, E.
Lawrence, L.
Liverpool, E. Winterbottom, L.
Llewelyn-Davies of Hastoe, B. Ypres, E.
NOT-CONTENTS
Abinger, L. Hives, L.
Ampthill, L. Home of the Hirsel, L.
Bauer, L. Hooper, B. [Teller.]
Beaverbrook, L. Inchcape, E.
Beloff, L. Lane-Fox, B.
Belstead, L. Lauderdale, E.
Bessborough, E. Layton, L.
Birdwood, L. Long, V.
Boardman, L. Lyell, L.
Boyd-Carpenter, L. Macleod of Borve, B.
Brabazon of Tara, L. Marley, L.
Brougham and Vaux, L. Maude of Stratford-upon-Avon, L.
Butterworth, L.
Caithness, E. Merrivale, L.
Cameron of Lochbroom, L. Mersey, V.
Campbell of Alloway, L. Molson, L.
Carnegy of Lour, B. Mottistone, L.
Carnock, L. Mountevans, L.
Cox, B. Munster, E.
Craigavon, V. Murton of Lindisfarne, L.
Craigmyle, L. Penrhyn, L.
Davidson, V. [Teller.] Polwarth, L.
Denham, L. Portland, D.
Dundee, E. Rankeillour, L.
Ferrier, L. Shannon, E.
Fraser of Kilmorack, L. Skelmersdale, L.
Gainford, L. Sudeley, L.
Glanusk, L. Trefgarne, L.
Gormanston, V. Trumpington, B.
Henderson of Brompton, L. Vivian, L.
Hesketh, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.36 p.m.

Lord Mottistone moved Amendment No. 27: Page 5, line 27, at end insert ("but he shall not take part in any proceedings relating to any question affecting himself personally").

The noble Lord said: My Lords, it gives me great pleasure to move my own amendment instead of resisting what I believe to be ridiculous amendments from other people. This amendment seeks, in the case of competent harbour authorities which are also local authorities, to protect pilots from being misunderstood if they happen to sit on committees which deal with matters affecting their own terms and conditions.

At Committee stage my noble friend Lord Harvington, in moving Amendment No. 30 on my behalf, sought to remove the whole of what is now subsection (1). My noble friend the Minister said, among other things, that the object of that subsection was to allow a pilot's technical knowledge and experience to be called upon as necessary. With that I would not quarrel in any way whatsoever. Therefore, in order to provide this protection of their good name, which is the object of the amendment, I have proposed here to add a small sentence at the end of subsection (12).

I am advised that the wording follows fairly closely a similar provision in the Gloucester Pilotage Order, which shows that there is some basis for it; but of course I shall fully understand if my noble friend says that in primary legislation it has to be worded in another way. However, I do think that something along these lines ought to be in the Bill; and I beg to move.

Lord Carmichael of Kelvingrove

My Lords, I have a great deal of sympathy with the amendment tabled by the noble Lord, Lord Mottistone, except that I think it is unfair that it should apply only in the case of pilots. For a long time now I have been rather concerned about the whole question of declaring an interest, because in your Lordships' House and in the other place if one has merely said, "I have an interest in this" one can go on talking and taking a full part in the debate that follows. I have never checked this, but I am sure that noble Lords on all sides of the House have frequently taken part in a debate, having declared an interest in just as few words as that, and then voted.

I think that the noble Lord has a very strong point here and, if this were the beginning of a revision and a new look at the whole question of interest and involvement, I should be happy to take it further. We are coming on to something which is dear to my own heart fairly soon, and some time in March we shall be discussing what we call in Scotland the poll tax, the alternative to rates. Every single Member of your Lordships' House, particularly if he is a Scottish Member, is bound to gain by it. There is not the slightest doubt that he will gain by it; yet it would be ridiculous for a Member not to take part unless we changed the whole basis of matters. That may be correct but I think it could get us into great difficulties.

That is the basic reason why I feel it is wrong just to take out pilots as being the only people who are affected. I certainly agree with the principle of the amendment and would support it, except that it is too specific and perhaps slightly punitive towards one small section of the population.

Viscount Simon

My Lords, like the noble Lord who has just spoken, I was rather surprised that the noble Lord, Lord Mottistone, put this forward. After all, of all the places in the United Kingdom, the House of Lords is a place where we have an immense amount of expertise on all sorts of subjects and, provided people declare an interest, we welcome their taking part in discussions and bringing that expertise to bear.

If a pilot happened to be a member of a local authority and the discussion concerned pilotage, it would be well for him to declare his interest—everybody would know it in any case—formally take part in the discussion and to offer his advice. If the noble Lord had said that he should not vote, I would understand that. That is quite possible. However, to say that he must not take part in any discussion on the subject about which he knows seems to me extraordinary.

Lord Mottistone

My Lords, I did not say that.

Viscount Simon

The noble Lord tells me that he did not say that. I thought he said that such a pilot was not to take part in the discussion.

Lord Mottistone

I shall reply when I come to wind up.

Viscount Simon

My Lords, I do not think that we should vote against the amendment, but I am surprised, and I wonder whether the noble Lord when he winds up will give a little more explanation of what is in his mind.

Lord Simon of Glaisdale

My Lords, I support the amendment, subject to the drafting, any question affecting himself personally". This seems to me much too broad. I thought that the Minister was convincing in Committee when he argued against the rejection of the whole of the subsection. When it comes to taking part, and particularly voting on a matter of personal interest, provided that personal interest is more narrowly drawn than here, I think that the noble Lord, Lord Mottistone, is on a valid point. It is most unsatisfactory in local government that persons who have an interest in a transaction should take part in it.

I thought that the noble Lord, Lord Carmichael, had a valid point when he asked, why only pilots—to which I think the answer is that we are legislating about pilots. I think he is quite right that the matter ought to be considered in a wider context. While we are legislating about pilots and specifically giving them immunity in this subsection, it seems to me that the noble Lord, Lord Mottistone, is justified in taking the line that he does.

Lord Swinfen

My Lord, despite my noble friend's unflattering reference to the past two amendments, I support the principle behind this amendment. Like the noble and learned Lord, Lord Simon of Glaisdale, I have a feeling that barrack-room lawyers in particular might draw the word "personally" too broad. The question of the discussion of a pilot's hours on duty could be considered to be personal to one particular pilot among others. If the noble Lord is willing to take this back and redraft it to include some declaration of interest, that would be better.

Lord Underhill

My Lords, when the noble Lord, Lord Mottistone, replies to the points that have been made, will he indicate whether he believes that this provision should apply to any person on the committee with shipping interests? It seems a little unfair to say that, because the clause deals with pilots, we will debar pilots in the way suggested by the noble Lord. There could easily be shipping interests on the committee. Does he propose on Third Reading to come forward with an amendment to deal with those?

Lord Brabazon of Tara

My Lords, we have had an interesting little debate on the amendment, which I think is sensible. I am glad to say that I think it is unnecessary since it is already made clear under Section 94 of the Local Government Act 1972, which regulates the membership and proceedings of local authority committees, that committee member shall not take part in proceedings that affect them personally. That section will continue to apply, notwithstanding any of the provisions in the Bill.

The debate has gone somewhat wider than the Bill. I suggest that this is not an appropriate moment to try to reform the local government Acts.

Lord Swinfen

My Lords, will all the competent harbour authorities be local authorities as well? Otherwise surely they would be excluded.

Lord Brabazon of Tara

My noble friend has not studied the Bill with the care that I hoped he had and pretends to have done in other respects. This part of the Bill applies only to those competent harbour authorities that are local authority harbours, which is a fairly small number in the country.

Lord Mottistone

My Lords, it was a happy little debate. Perhaps I may answer quickly because we must not waste time. We have wasted too much time already on unnecessary Divisions.

Noble Lords

No.

6.45 p.m.

Lord Mottistone

To take the point of the noble Viscount, Lord Simon, my noble friend the Minister said in Committee that we want the expert knowledge and experience of pilots in the areas in which they can be useful, and I said that that was absolutely right. The object of the amendment is to make sure that they are not involved in discussions on their pay and other conditions. In that respect, the shipping interests as such would not be affected. The representatives of the shipping industry would not be talking about that sort of thing. That answers the noble Lord, Lord Underhill.

The noble Lord, Lord Carmichael, had a point in what he said. As my noble friend said—of course one should have known this—it is already covered in the local government legislation.

I am glad that my amendment is unnecessary. I should have thought that in your Lordships' House, when one declares an interest in talking in a broad sense about a subject of which one has knowledge perhaps because one is being paid to be observant of it, that is all right, provided the debate and legislation do not affect one's pay and conditions personally. That is the real issue of which one must steer clear always, on which one must not vote and about which one must not even talk in an assembly such as this. When it comes to the poll tax, that will be rather fun, will it not?

Lord Carmichael of Kelvingrove

Indeed.

Lord Mottistone

Yes, it will. However, in another place they vote on their own pay from time to time. The buck must stop somewhere, and perhaps Parliament is the place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Brabazon of Tara moved Amendment No. 28: Page 5, line 28, leave out ("subsection (12) above") and insert ("this section").

The noble Lord said: My Lords, I spoke to this with Amendment No. 9. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 29:

Page 5, line 33, at end insert— (""time-expired apprentice pilot" means a person who has served the full term of his apprenticeship as a pilot but is not the holder of a licence under section 12 of the Pilotage Act 1983; recognised assistant pilot" means a person who acts as an assistant to pilots in a pilotage district and is recognised as such an assistant by the pilotage authority for the district but is not the holder of such a licence.").

The noble Lord said: My Lords, I spoke to this with Amendment No. 9. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 30: After Clause 3, insert the following new clause:

("Employment etc. of authorised pilots.

.—(1) Subject to the following provisions of this section, a competent harbour authority may make such arrangements as it considers appropriate for the provision of the services of authorised pilots in the area in relation to which its duty under section 2(1) above is exercisable (whether under a contract of employment or a contract for services).

(2) A competent harbour authority shall offer to employ under a contract of employment any person it authorises under section 3 above ("the new pilot") unless—

  1. (a) a majority of the relevant licence holders have agreed during the period beginning six months and ending three months before the appointed day that this subsection shall not apply; or
  2. (b) a majority of the relevant authorised pilots have agreed on or after that day that this subsection shall not apply.

(3) For the purposes of subsection (2) above—"relevant licence holders" means—

  1. (a) in the case of a competent harbour authority whose harbour falls within more than one former pilotage district, the persons who at the time of the agreement were holders of full licences (within the meaning of section 3(3) above) for the pilotage district in which the area for which the new pilot is authorised falls;
  2. (b) in the case of a competent harbour authority whose harbour falls within a former pilotage district in which another such authority's harbour also falls, the persons who at that time were holders of such licences for that district and, in the opinion of the Pilotage Commission, were then regularly providing their services as pilots within the part of the district in which the first-mentioned authority's harbour is situated;
  3. (c) in any other case, all the persons who at that time were the holders of such licences for the former pilotage district in which the competent harbour authority's harbour falls; and "relevant authorised pilots" means—
    1. (i) in the case mentioned in paragraph (a) above, the persons who at the time of the agreement are authorised pilots for the area for which the new pilot has been authorised; and
    2. (ii) in any other case the persons who at that time are authorised pilots for the harbour of the authority.

(4) Where by virtue of subsection (2) above a competent harbour authority is obliged to offer to employ persons it authorises under this section for part of its harbour but not persons it authorises for another part, it shall not authorise any person for any area falling within both those parts unless it offers to employ him throughout that area.

(5) A competent harbour authority may refuse to authorise any person who is not willing to provide his services as a pilot in accordance with such arrangements as the authority considers appropriate under subsection (1) above.

(6) A competent harbour authority may pay into any pilots' benefit fund established under paragraph (i) of section 15(1) of the Pilotage Act 1983 such contributions as may be required by the rules governing that fund in respect of any authorised pilot providing his services under such arrangements as mentioned in subsection (1) above.").

The noble Lord said: My Lords, I spoke to this with Amendment No. 4. I beg to move.

Lord Underhill moved, as an amendment to Amendment No. 30, Amendment No. 31: Subsection (1), line 2, leave out ("such arrangements as it considers appropriate") and insert ("reasonable arrangements").

The noble Lord said: My Lords, I referred to the five amendments, Nos. 30, 31, 32, 33, 34 and 35, in my name, but in view of the breadth of the grouping there was not sufficient opportunity to get to grips with what was proposed, particularly in Amendment No. 31.

The new clause which the Government have put forward says: a competent harbour authority may make such arrangements as it considers appropriate for the provision of the services of authorised pilots". My amendment proposes to change the words, such arrangements as it considers appropriate to "reasonable arrangements". Here I shall be guided by such persons as the noble and learned Lord, Lord Simon of Glaisdale, because I am certain that when the arbitration panel, to which considerable reference has been made in the course of our debates, comes to consider matters it will surely take cognisance of whether "reasonable arrangements" are rather different from, such arrangements as it considers appropriate".

Therefore it seems to me that the adoption of the words that I am suggesting in Amendment No. 31 could be vital when we come to the consideration by the arbitration panel, if eventually we get the arbitration panel. In any case, although we have said that the period could be extended beyond three years, it may not be. It seems to me that Amendment No. 31 is very reasonable and I do not know whether the Government can find a reasonable argument for not putting in the words "reasonable arrangements". It seems to me very difficult to argue against it. I beg to move.

Lord Simon of Glaisdale

My Lords, I support this amendment. Naturally I am attracted by the word "reasonable" in this connection, because my noble and learned friend Lord Brightman and I used a similar expression when we tried to frame a short amendment to take the place of this clause. But I am particularly anxious to get rid of the words, such arrangements as it considers appropriate". I am afraid that the noble Lord the Minister must be getting bored rigid by the point that I make; namely, that subsection (5) of his new clause takes away the option of either self-employment or employment—a contract for services or a contract of employment—that is apparently given by subsection (1) of his new clause. Obviously, the noble Lord the Minister is satisfied that that point is not good, but as my mind still is obscure on the point I would ask him once again to try to clear it.

The point is that the competent harbour authority has to make such arrangements as it considers appropriate for carrying on the pilotage business, whether under a contract of employment or a contract for services. On the face of that, that gives what the Bill does not give and what we have all clamoured for; namely, the preservation of the right of self-employment by pilots. But when one turns to subsection (5) it says: A competent harbour authority may refuse to authorise any person who is not willing to provide his services as a pilot", and then come the crucial words, in accordance with such arrangements as the authority considers appropriate". So that what the competent harbour authority may do, notwithstanding that the majority of pilots may wish to be self-employed, is consider it appropriate to go under the first limb of the "whether" and offer a contract of employment and not a contract for services. If that is refused the competent harbour authority may refuse to authorise because a pilot has not accepted the arrangements that the CHA considers appropriate.

I know that the noble Lord the Minister says that subsection (5) only applies if the pilot refuses either the offer of a contract of employment or a contract for services, but I am afraid that I simply cannot read that into the subsection. It is for that reason, as well as for the reason given by the noble Lord, Lord Underhill, that it seems this amendment justifies acceptance. In any case, I should be very grateful if the noble Lord the Minister would clear my mind on that subject, if it is still a mind capable of being cleared.

Lord Mottistone

My Lords, speaking strictly at this stage to Amendment No. 31 only, and with great trepidation crossing swords with the noble and learned Lord, I am advised that the use of the word "reasonable" could expose a competent harbour authority to challenge in the courts on the grounds that the arrangements made were not reasonable. It is also unquestionably the case that Amendment No. 31 would greatly weaken the ability of the competent harbour authority to determine the nature of the services to be provided. But the problem of being challenged in the courts is a rather more important one.

Lord Brabazon of Tara

My Lords, my noble friend Lord Mottistone makes an interesting point. I thought I had already answered Amendment No. 31, in the name of the noble Lord, Lord Underhill, when I spoke to Amendment No. 30, and I also thought that the noble Lord had already spoken to Amendment No. 31. May I try to clarify the mind of the noble and learned Lord, Lord Simon of Glaisdale? I feel nervous about trying to do so, because if a legal brain such as his cannot understand the point then I feel rather doubtful whether I shall be able to explain it to him.

As he said, all subsection (5) does is this. A competent harbour authority may refuse to authorise any person who is not willing to provide his services as a pilot under either option; that is to say, employment or self-employment—

Lord Simon of Glaisdale

My Lords, I am so sorry to interrupt, but where does the noble Lord get those words?

Lord Brabazon of Tara

My Lords, I am paraphrasing the subsection, which is perhaps a mistake when replying to the noble and learned Lord. Subsection (1) of the new clause is really very little different from what used to be in the old clause, except that we refer to a "contract for services". It is primarily the competent harbour authority that decides whether it wishes to employ pilots or to make other arrangements under a contract—either self-employment or through an agency. That is the best I can do to explain the position to the noble and learned Lord. I do not know whether he is any clearer about it now.

Lord Underhill

My Lords, I wonder whether the explanation that we have just been given is one which I as a layman can understand. I gather that there is provision for the pilots to take votes as to whether they all wish to be employed or self-employed. Therefore I gather that it is not solely in the hands of the competent harbour authority to decide.

I have listened to the arguments put forward by the noble and learned Lord, Lord Simon of Glaisdale, that the use of the word "reasonable" is very important. As a complete and utter layman on matters of law, I have nevertheless been long enough in your Lordships' House to hear long arguments from Ministers as to why the word "reasonable" should be used. It seems to me that this is a case where the inclusion of the words, "reasonable arrangements", rather than, "such arrangements as it considers appropriate", is a reasonable request.

In the light of the support which we have received from such an eminent legal mind as that of the noble and learned Lord, and in light of the fact that the Government say that they cannot accept what is said, I believe that the House ought to accept the amendment. We can deal with the principle of subsection (5) when we come to my Amendment No. 35. I wish to put this to the House.

7.1 p.m.

On Question, Whether the said amendment (No. 31) shall be agreed to?

Their Lordships divided: Contents, 42; Not-Contents, 57.

DIVISION NO. 4
CONTENTS
Ailesbury, M. Llewelyn-Davies of Hastoe, B.
Airedale, L. McGregor of Durris, L.
Attlee, E. Monson, L.
Broadbridge, L. Mountevans, L.
Brockway, L. Newall, L.
Carmichael of Kelvingrove, L. Nicol, B.
Craigavon, V. Perry of Walton, L.
David, B. Pitt of Hampstead, L.
Dean of Beswick, L. Ponsonby of Shulbrede, L. [Teller.]
Diamond, L.
Donoughue, L. Seear, B.
Ewart-Biggs, B. Shackleton, L.
Gallacher, L. Simon, V.
Graham of Edmonton, L. [Teller.] Simon of Glaisdale, L.
Stallard, L.
Greenway, L. Stewart of Fulham, L.
Grey, E. Strathcona and Mount Royal, L.
Hanworth, V.
Houghton of Sowerby, L. Tordoff, L.
Irving of Dartford, L. Underhill, L.
Jeger, B. Wilson of Rievaulx, L.
Kennet, L. Ypres, E.
Lawrence, L.
NOT-CONTENTS
Abinger, L. Cameron of Lochbroom, L.
Aldenham, L. Carnock, L.
Ampthill, L. Cathcart, E.
Bauer, L. Coleraine, L.
Beaverbrook, L. Cowley, E.
Belstead, L. Cox, B.
Bessborough, E. Craigmyle, L.
Boardman, L. Davidson, V. [Teller.]
Boyd-Carpenter, L. Denham, L. [Teller.]
Brabazon of Tara, L. Dundee, E.
Brougham and Vaux, L. Ferrier, L.
Caithness, E. Gainford, L.
Gray, L. Maude of Stratford-upon Avon, L.
Halsbury, E.
Hesketh, L. Merrivale, L.
Hives, L. Mersey, V.
Home of the Hirsel, L. Molson, L.
Hooper, B. Morris, L.
Hylton-Foster, B. Mottistone, L.
Inchcape, E. Murton of Lindisfarne, L.
Lane-Fox, B. Norfolk, D.
Lauderdale, E. Penrhyn, L.
Layton, L. Polwarth, L.
Lindsey and Abingdon, E. Rankeillour, L.
Liverpool, E. Shannon, E.
Long, V. Skelmersdale, L.
Lyell, L. Strathclyde, L.
Macleod of Borve, B. Trefgarne, L.
Marley, L. Trumpington, B.

Resolved in the negative, and amendment to Amendment No. 30 disagreed to accordingly.

Viscount Long

My Lords, I beg to move that further consideration on Report be now adjourned. For the convenience of the House, we shall not return to consideration of this Bill until eight o'clock.

Moved accordingly, and, on Question, Motion agreed to.