Lords Amendment: In page 10, line 25, at end insert:
( ) Without prejudice to the exercise of the functions of a river purification authority in relation to any discharge of an effluent from a vessel, in a case where the provisions of the Oil in Navigable Waters Acts 1955 and 1963 apply to restrict such a discharge, no proceedings for an offence against this Act or against the principal Act shall lie in respect of that discharge.
§ 10.15 p.m.
§ The Under-Secretary of State for Scotland (Dr. J. Dickson Mabon)
I beg to move, That this House doth agree with the Lords in the said Amendment.
Hon. Members will recollect that, during the Committee and Report stages—[Interruption]—I resisted, on behalf of the Government, Amendments in the name of—
§ Mr. Speaker
Order. We cannot prevent the pollution of Scottish rivers unless hon. Members be more quiet.
§ Dr. Mabon
As I was saying, Sir, I resisted Amendments in the name of the noble Lord the Member for Edinburgh, North (The Earl of Dalkeith) which would have provided that nothing in Clause 1 of the Bill or in Section 22 of the principal Act as applied to tidal waters would apply to discharges of oil which were subject to the Oil in Navigable Waters Acts, 1955 and 1963.
I resisted the Amendments on the ground that Parliament clearly intended that both the 1951 and the 1955 Acts should apply to polluting discharges—this is Section 24 of the 1955 Act—and that river purification authorities had a general duty under Section 17 of the Rivers (Prevention of Pollution) (Scotland) Act, 1951, to promote the cleanliness of the rivers and tidal waters in their areas.
However, hon. Members will recollect that I undertook to have conversations with the Lord Advocate and that I recognised that there were difficulties in relation to criminal prosecution in Scot- 1300 land, despite my reference to the Interpretation Act, 1883. I sought the advice of the Lord Advocate and, during the Report stage, I read out his proposal that an instruction would be issued by him to procurators fiscal that all cases of alleged contravention of the Oil in Navigable Waters Acts or the Rivers (Prevention of Pollution) Acts in respect of oil discharges from vessels be reported to the Crown Office for consideration by Crown Counsel so as to make certain that prosecutions proceeded under the appropriate code.
None the less, after further consideration in another place, the Government decided to adopt this present proposal in the Bill and so allay any further apprehensions of ship masters against whom proceedings might be taken for discharging effluent at sea by providing that, if the provisions of the Oil in Navigable Waters Acts apply to a discharge of effluent from a vessel, no proceedings will be taken under the Rivers (Prevention of Pollution) Acts.
The Amendment agreed to in another place provides, therefore, that no proceedings for offences will lie under the Rivers (Prevention of Pollution) (Scotland) Act, 1951, or the Bill, where the provisions of the Oil in Navigable Waters Acts of 1935 and 1963 apply to restrict discharges of effluent from vessels. The special defences in the Oil in Navigable Waters Acts, 1955 and 1963, continue to be available to owners or masters of vessels.
The Amendment ensures at the same time—this is the point I made when resisting the Amendment originally moved by the noble Lord the Member for Edinburgh, North and this is the compromise—that the exercise of the functions of river purification authorities is not prejudiced, having regard to their general duty to promote the cleanliness of our tidal waters, in relation to any discharge of effluent from vessels.
I commend the Amendment to the House. I suggest that hon. Members on both sides may be satisfied by the other place having sought to strike a balance between the difficult propositions which we discussed in Committee and on Report. I hope that those of my hon. Friends who were most anxious that I should stand my ground in resisting the noble Lord's Amendment will recognise 1301 that we have in this way managed to maintain without prejudice the position of river purification authorities and, at the same time, as an earnest of their good intentions, the Government have sought still further to meet the point raised quite legitimately by the noble Lord and those of his hon. Friends who supported him.
§ Mr. Gordon Campbell (Moray and Nairn)
As the hon. Gentleman has said, during the passage of the Bill through this House we raised the point about overlapping between two sets of legislation—the Oil in Navigable Waters Acts and the legislation concerning pollution of rivers and tidal waters to which the Bill will add.
We realised that when the Bill became an Act a ship which discharged oil might be prosecuted under the Act. We thought it better that the Oil in Navigable Waters Acts should apply instead. One of our reasons was that the penalties under that legislation would be greater. We also thought that the dubiety should be removed so that it was clear that, if a ship fell within the law under the Oil in Navigable Waters Acts, it would be charged under that legislation.
As the hon. Gentleman has also said, he told us at a later stage about the direction which the Lord Advocate intended to give to procurators-fiscal. This went some way to meet our point because we hoped that interpretation of this would be in accordance with what we were putting forward. We now find that, in another place, the arguments which were again put strongly seem to have had effect and that the Government have had further thoughts on the matter, bringing forward this Amendment.
I have noted the point that the Amendment, besides making it clear which legislation is to apply, safeguards the position of the purification authorities in dealing with pollution within the waters for which they are responsible. Therefore, when the hon. Gentleman speaks of a compromise, it is not so much a compromise as that two points are covered in the Amendment. We felt sure that something on these lines should be drafted when we were arguing our case before. Our view has been confirmed and we welcome the Amendment.
The Earl of Dalkeith (Edinburgh, North)
I, too, express my appreciation to the Under-Secretary of State for having produced this compromise solution and also congratulate his noble Friend in another place who has co-operated with him in producing a sensible answer. Perhaps the process of argument and stalling might have been short-circuited a little if we had had the good fortune to have the Lord Advocate in this place.
Nevertheless, I thank the hon. Gentleman, but now that he has gone so far he might perhaps have gone a little further. Never mind! Perhaps most people are happy. It is said that one cannot please all the people all the time but only some of the people some of the time. But I think that, in this instance, the hon. Gentleman has got very near pleasing all the people all the time.
I want to make it clear that, at no time during the process of putting forward this Amendment at an earlier stage, was I ever approached by shipping authorities. It was suggested by some hon. Members opposite that I was being subjected to pressure from shipping Interests. At no time did I have any approach from any shipping representatives about the Amendment. I thank the hon. Gentleman for going as far as he has.
§ Mr. Forbes Hendry (Aberdeenshire, West)
Like my hon. Friends, I welcome the Amendment, although I wish that it had come earlier. I welcome it for another reason besides that brought up by my hon. Friend the Member for Moray and Nairn (Mr. G. Campbell). The law as originally proposed in the Bill would have been in breach of certain international conventions which contained provisions concerning prosecution under the Oil in Navigable Waters Acts. It is well that we should record the fact tonight that those provisions were included in international conventions and I am glad this point has been brought up.
It is amazing to think back to the speeches made by the Under-Secretary of State when he described the enormous difficulties of putting into effect an Amendment of this sort. It would be wrong for me to quote from the Report of the Committee stage, but I remember him using the words "immense task" in describing the task which confronts the authorities in separating a pollution of an 1303 oily nature under the Oil in Navigable Waters Acts from an oily pollution coming from some land-based installation. I am extremely glad that he has discovered that these difficulties are not so immense after all.
§ Mr. Edward M. Taylor (Glasgow, Cathcart)
Although my hon. Friends have indicated that the Amendment clears up dubiety on this matter, there is one small point on which I think dubiety still remains. It is true that there was need for some action to clear up a very difficult situation. We were presented with a situation in which it was not clear under which law an offender might be acted against. A shipowner coming into tidal water could be acted against under one or perhaps another of the laws. The whole point of the Amendment which we moved in Committee was to remove this doubt, and I am still not certain that the Amendment now under consideration removes that doubt entirely, because one of the points with which I was concerned was the question of the defences available to a shipowner who emitted oil.
We appreciate that the essential differences between the Oil in Navigable Waters Acts and the Rivers (Prevention of Pollution) (Scotland) Bill was, first, that there was a substantial difference in penalties. The penalties under the former Act were greater. But another difference concerned the defences available to someone who had contravened one of the laws by discharging oil. Section 2(1) of the Oil in Navigable Waters Act, 1963, reads:Provided that it shall be a defence to prove that by reason of special circumstances it was impracticable or unreasonable to retain the oil or mixture in the ship.Under the Rivers (Prevention of Pollution) (Scotland) Bill there was no such defence, and even if a person on board ship could prove beyond the shadow of a doubt that he had no practicable alternative but to discharge the oil, this was no defence. For that reason my personal view was that the Oil in Navigable Waters Act should apply.
1304 The Under-Secretary of State has said that the Amendment now before us removes the doubt entirely. I feel that if the words "to restrict such a discharge" were removed from the Amendment there would be no doubt, because it would simply say that in cases where the Oil in Navigable Waters Acts apply no proceedings would be taken under this Bill. But, in fact, the Amendment reads:Where the provisions of the Oil in Navigable Waters Acts 1955 and 1963 apply to restrict such a discharge …I suggest that if someone had no alternative but to discharge oil and was looking to this Clause as a defence, there would be some dubiety that he was covered by the Amendment.
The provisions of the Oil in Navigable Waters Act would not apply to restrict a discharge but would provide a defence for someone forced to do this. This is one point which the Minister will have to clarify.
It may be that there is some point which is obvious but which I have not seen. We have not a great deal of experience of the Government accepting Amendments to any Bills, particularly Scottish Bills. It may be that I have not the ability to see these things as clearly as I should. It certainly has cleared up the question of penalties.
The other point which must be made, even at this late stage, is that the implication of some of the remarks of the Minister in the previous debate was that in some ways the wishes and the best interests of people who are concerned with clean water were conflicting with the interests of shipowners. It is quite clear from what was said in that debate and from what has been said since that their interests do not necessarily conflict. In fact, in the Clyde district where my constituency is situated in some of the tidal stretches there is severe corrosion of the equipment on a number of large ships because of the pollution of the river in this area. The river for a distance of eight or 10 miles downstream from Glasgow is in an appalling state, and this is having an adverse effect on many ships in the area. In these circumstances, I feel that there is no conflict here, and that is why I am glad that this Amendment has been moved.
1305 I still feel, however, that there is an element of doubt, and I should like the Minister to clear up the point concerning the ship from which oil is discharged, because there is no practical alternative. In such circumstances, would such an occurrence fall within the terms of the 1963 Act or would it be possible, particularly in view of the first few words of the Amendment, for action to be taken against the ship under this Bill?
§ Dr. Dickson Mabon
I am grateful to the House for receiving the Amendment so well and for the thanks which have been expressed.
I do not want to re-open all the arguments that we had in Committee, and I do not want to respond to the challenge of the hon. Member for Aberdeenshire, West (Mr. Hendry), who wondered whether we were contravening international agreements. In Committee I said that that was not so, and I stand by that. I would not like the record to show merely his view as reflecting the view of the House. It certainly is not the view of the Government. I do not want to re-open old sores; this is a rather tender and delicate role for me to play tonight!
On the other matter which the hon. Member for Glasgow, Cathcart (Mr. Edward M. Taylor) raised, I would not like to get involved—and I am sure his hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie) would not like to get involved—in arguing the case of some of the instances which he recited in exemplifying the doubt. It is for the courts to resolve whether or not a particular offence is one which should be considered under the Oil in Navigable Waters Acts, 1955 or 1963. It is not for me, or for anyone in the House, to decide. It is for the courts to interpret.
This Amendment makes it absolutely clear that a prosecution in respect of this offence is under one series of Acts only, namely the Oil in Navigable Waters Acts with the penalties that those Acts apply in respect of these offences if they are so proved.
When I used the word "compromise" I meant it in relation to giving a locus in law to the river purification authorities, so that a river purification authority could take action with a view to prosecution, including offences under the Oil in Navigable Waters Acts. This is the original compromise which I attempted, 1306 on Report, to convince the House was the only reasonable one to achieve in the circumstances. In that case, it would be for the Lord Advocate to sort out what he felt ought to be the prosecution which counsel should conduct.
This is part of the immense task which we have had to undertake, and we have done so gladly. It has been very difficult, and although we have met on only three occasions—in Committee, on Report and tonight—I should like to assure hon. Members that there has been a good deal of work behind the scenes to try to resolve all these difficulties with all the interests and to try to get everybody content in the belief that we are doing the best thing. That is what I meant by saying that we were appalled by the immense task ahead of us. I am glad that we have managed to get over this Herculean affair, and I hope that the House will agree that this is a reasonable Amendment.
§ Mr. Edward M. Taylor
This is of some interest. Will the hon. Gentleman agree to remove the words "restrict such a discharge"; if not, will he say precisely what difference they make?
§ Dr. Mabon
If the hon. Gentleman reflects on this a little and reads the report of the debate in another place, it will become quite clear to him that these words could not be removed without completely distorting the whole passage. There are offences outwith the Oil in Navigable Waters Acts and in which the river purifications authorities have their own rights, which are preserved. It is only when offences clearly come under the Oil in Navigable Waters Acts that these words are so used and when there is an option for the prosecution to proceed under the Oil in Navigable Waters Acts. The wordsWithout prejudice to themposition of a river purification authority are deliberately inserted to give such an authority a locus which it would not otherwise have.
§ Question put and agreed to.