§ 6.15 p.m.
The Earl of Dalkeith
I was on the point of saying that some hon. Gentlemen opposite seem to think that acceptance of the Amendment will in some way weaken the Bill. I do not think that it will. If it were to have that effect, I would have some sympathy with their point of view, but I do not think that will be the case. If they believe that it will weaken the Bill, it possibly shows that there is a certain misunderstanding about the position. I am sure that the Under-Secretary of State will agree that the areas in and around Scotland where the Oil in Navigable Waters Acts do not apply are very few and far between, and that they are the exceptions. Perhaps when he replies to the debate he will be good enough to say which specific areas around our coasts are not already covered by those Acts.
The hon. Gentleman might be able to meet the difficulty by amending my Amendment; by doing something to ensure that the Bill is confined in its operation in relation to shipping to these exceptional areas. This will remove the objectionable dubiety which arises from this overlapping legislation. The hon. Gentleman may say that prosecutions are likely to arise only under the Oil in Navigable Waters Acts. This might be some small crumb of comfort to some, but, on the other hand, I think that it would give him even less excuse for not accepting the Amendment.
For the benefit of anybody who is still anxious about the Amendment weakening the Bill, it is worth pointing out that the maximum fine under the Bill is a mere £50 on summary conviction, and £200 on indictment, whereas there is a maximum fine of £1,000 on summary conviction and a fine without limit on indictment under the 1955 Act to which I have referred.
One of the troubles is that the defences which are available to shipping, and which have been internationally agreed, under the 1955 Act would not be available to shipping under our Scottish legislation. I go further to back up the point that the 1955 Act is fairly 1337 effective in its operation by drawing attention to the figures for the last three years which, I think, show that under Section 3 of that Act enforcement is reasonably effective. In 1961 there were 50 prosecutions, and 43 convictions. In 1962 there were 51 prosecutions, and 46 convictions. In 1963 there were 45 prosecutions, and 42 convictions.
There is just one other point to which I should like to refer, the point which the hon. Gentleman gave as an objection during the Committee stage. He suggested that the river purification authority might not be sure whether the pollution was caused by shipping or by industrial plant. This does not seem to be a relevant argument, because it seems hardly likely that the prosecution stage will be reached before the source of pollution has been definitely established and confirmed beyond doubt.
It seems to me that the Government's obstinacy in accepting the Amendment typifies their inward-looking and insular attitude to life generally. Most of us on this side of the House believe that the United Kingdom has a leading rôle to play in international affairs, and one way to implement that rôle is to recognise and honour our international agreements. Here we have an example of the Government attempting to violate such an agreement, and I invite the hon. Gentleman to consider very seriously the question of possible reprisals against British shipping in foreign ports as a result of this. The Amendment would do no harm to this excellent and admirable Bill, and it would definitely help relationships abroad. I therefore urge the Minister to consider its acceptance.
§ Mr. Edward M. Taylor (Glasgow, Cathcart)
During the discussion of our Amendments the Under-Secretary has agreed to some of our recommendations and requests. He has been quite reasonable in respect of some of them, but in respect of this Amendment the only assurance of any kind that we were able to obtain in Committee was the comfort offered to some shipowners by my hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie), who suggested that if the people concerned with bringing a case to court had to choose between two Acts on river pollution they would probably choose the 1338 Act which dealt specifically with their industry's problems. If we could have a similar assurance from the Government the Amendment would not be necessary, but we have not been given any such assurance.
What surprised me about the fact that the Government are not prepared to accept the Amendment is that the major seaport in Scotland in Glasgow. All our ships go there from time to time. But the problem with which we are now concerned cannot possibly arise in the case of the Clyde because of the ludicrous situation that exists there, with one half of the Clyde being covered by the provisions and the other half not being protected at all.
The River Pollution Act, which was passed in 1951, laid down to which part of the Clyde the Act should apply, and it was stated that the tidal sections of the river were to be covered only when the Secretary of State brought in the relevant order. Despite the fact that the Act was passed in 1951 it was not until 1962 that the Order was specifically made. There was a public inquiry because objections were raised.
The surprising thing is that instead of objections being received from industrialists the only ones that come in came from the shipping industry. This shows the serious position facing the industry. It was the only objector to the proposal. For this reason the Government of the day decided to postpone the implementation of the Order. That shows how seriously that Government regarded the problems of the shipping industry.
In those circumstances, it is clear that even if the Amendment were not accepted most of its provisions would operate, because it would not apply to the Clyde. If the River Purification Bill does not apply to the Clyde the provisions to which we object will not apply. I cannot see any justification for imposing very stringent regulations upon the rest of Scotland while the Clyde is completely exempt. I hope that the Under-Secretary will deal with that point.
Apart from that there is the simple question of justice. It has been mentioned by my noble Friend the Member for Edinburgh, North (The Earl of Dalkeith) that in other countries there is conformity, because the same provisions are applied. It says quite categorically 1339 that vessels should not discharge oil. The only defence available to them is proof of special circumstances which made it impracticable or unreasonable to retain oil in their ships. That is fair enough. If it is unreasonable to retain oil it should not be an offence to discharge it. It does not provide in any way that ships are free to discharge oil.
There is no question of that provision applying to the Clyde, because it is not controlled. That is why we are pressing the point.
§ Mr. Archie Manuel (Central Ayrshire)
I was not thinking of the Clyde, but of many pleasant reaches on both coasts of Scotland which are riddled with river pollution.
§ Mr. Taylor
I agree about that, and that something should be done. That is why I hope that in the case of the Clyde the Under-Secretary will take the necessary steps. It will not make the slightest difference whether or not we accept the Amendment. If we accepted the Amendment it would merely provide that a defence would be available to shipowners if they could prove that the retention of oil was unreasonable or impracticable. It would not stop oil being discharged if it was impracticable to retain it in the ship.
The other change that we are making concerns penalties. It seems a little unreasonable that the penalty in one court in this country should be different from the penalty for exactly the same crime in another court in this country, and it is equally unreasonable that the penalties should not be the same in Scotland. That will be the position, however. The penalty for discharging oil in the Clyde will be different from that for discharging oil in the Forth, and different from that for discharging oil in an English port. That is ludicrous and unreasonable.
The one defence put forward by the Under-Secretary was that if we accepted the Amendment it would weaken and damage the Bill. Would it weaken it? We have been told by some hon. Members that most of the cases raised would be raised under the Oil in Navigable Waters Act. If that is so, the Amendment would not weaken the Bill in any way. Even if, by chance, actions were brought under the Bill, it would not 1340 affect the Clyde at present. About half of our shipping would be excluded from the provisions.
In all the circumstances it would be fair and reasonable to accept the Amendment, because it will not make a material difference to the position which exists round the Scottish coasts.
§ Mr. N. R. Wylie (Edinburgh, Pentlands)
This is the second attempt that we have made to press the Amendment on the Government, and I hope that on this occasion they will accept it. I have listened with care to the arguments adduced by hon. Members opposite and, in particular, the Under-Secretary, and I have read the arguments as reported, but I fail to see that the Government have challenged in any effective way the case that has been made out in support of the Amendment.
It is difficult to understand why the Government should be so anxious to preserve the application of this legislation to circumstances which are already covered by other legislation passed specifically to deal with those circumstances, and flowing from international agreements and conventions. I find it all the more difficult to understand this attitude on the Part of the Under-Secretary when this inconsistency has received statutory recognition in the English Act—the corresponding Act which has already been passed into law in England.
Section 13(3) of that Act says:Nothing in this Act or section seven of the principal Act shall be taken as applying to the discharge of effluent from a ship or vessel.It is difficult to understand why departure should be made, in the Rivers (Prevention of Pollution) (Scotland) Bill, from the course adopted after due thought and consideration by the legislature not long ago—indeed, in 1961.
I know that an offence can be created under two separate statutes, and I also know that an offence can be created under one statute which is already a common law crime. To meet that situation the Interpretation Act has properly provided that a person cannot be prosecuted twice, or that a person cannot pay a double penalty for what is, in effect, the same offence. But that, in my submission, should not be taken as an invitation to create by Statute an offence which 1341 is already to be found in an earlier Statute unless it has been found from experience that the previous legislation has not operated properly, is ineffective, or inadequate.
Of course, in that situation the proper course to follow would be to repeal the earlier legislation and to supersede it by legislation more appropriate in the light of existing experience. On any view it cannot be said that the 1955 Oil in Navigable Waters Act is unsatisfactory or ineffective. It must be accepted that that Act, which was carefully drafted—as was the subsequent Act—to deal with this special problem on the basis of international convention and recognises the gravity of the problem by the very weight and force of the sentence which that field of legislation provides.
If this Amendment is rejected, we shall have two Statutes creating the same offence; widely differing in their penal provision; utterly contradictory on the question of the defence open to the accused and setting up—this is an even more cogent criticism which may be made of the result of this proposal—two contradictory codes of law affecting sea-going vessels in different parts of the United Kingdom. I cannot see that that is a satisfactory state of affairs. I cannot understand the tenacity with which the Government hold on to their proposals in this matter.
How is the prosecutor to know under which piece of legislation he is to proceed? How is he to be guided? With respect, I think that the provisions in this Bill would create an enormous difficulty for a prosecutor in Scotland because it is clear, from reading the Bill in a commonsense way, that it has never been Intended to cover oil pollution from sea-going vessels at all. I pass no concluded view on this, but I think that it would be exceedingly difficult for a prosecutor to get a charge brought under Clause 1 of the Bill to stick, if he took proceedings under that Clause against the owner or the master of a seagoing vessel. This type of provision deals with discharges of trade or sewage effluent.
The definition section in the 1951 Act defines "trade effluent" as includingany liquid (either with or without particles of matter in suspension therein) which is discharged 1342 from any premises other than surface water and domestic sewage.I have gone through Stroud's Judicial Dictionary with great care, but I have been unable to find any instance of the word "premises" being used in connection with a seagoing vessel, except in one special case where it was applied in the interpretation of an insurance policy relating to fire on a ship. I should think that any prosecutor who attempted to obtain a conviction by proceeding under Clause 1 of the Bill would be asking for trouble.
As I pointed out during the Committee stage proceedings, I cannot imagine a prosecutor proceeding to deal with oil pollution from a seagoing vessel and doing so under the Rivers (Prevention of Pollution) (Scotland) Acts in preference to the legislation specifically designed to deal with the situation. Accordingly, unless there are very good reasons why this Amendment should not be accepted, it seems to me that it ought to be, because in my submission there are very good reasons why it should be accepted and I have endeavoured to put them shortly.
What about the reasons advanced by the Under-Secretary of State for Scotland against the Amendment when it was considered during the Committee stage discussions? The hon. Gentleman said, first, that it would be contrary to Government policy. I think that there the hon. Gentleman was referring to some observations of mine about the Secretary of State of the day who refused to accede to suggestions in respect of the Solway Confirmation Order that there should be a proviso excluding the operation of the Order in respect of oil pollution.
This is not a change in Government policy which is being suggested. The Government at that time had to take legislation as it stood. For the Secretary of State for Scotland that was the 1951 Act and the Oil in Navigable Waters Act, 1955. I am suggesting that the time has come for a change to be made. Since the change has already been made in England after the introduction of the oil in navigable waters legislation, it seems reasonable and natural that some change should be made in the legislation affecting Scotland.
1343 After referring to the fact that Section 13 of the 1961 Act altered the position, he went on:In Scotland, we have not pursued that line on the view that we could not well control discharges of foul effluents from land and yet permit them from ships.With respect, that has nothing to do with the matter. It is not a question of preventing discharge from land and permitting it from ships. The whole point of the argument is that discharges from ships are covered already by legislation specifically designed to meet that.
The hon. Gentleman continued:There are other difficulties; perhaps they are not too serious.I think that the hon. Gentleman was be coming a little self-conscious about the weight of his argument by this time because on several occasions he watered it down in this way.It depends very much on the viewpoint which is taken, but it does not follow that the areas covered in the Oil in Navigable Waters Acts are the same as those covered by our own Bill, or by tidal orders we may promote either in the immediate future or in years to come."—[OFFICIAL REPORT, Scottish Standing Committee. 17th December, 1964, c. 175–7.]I have, with respect, great difficulty in understanding that because Section 3(2) of the 1955 Oil in Navigable Waters Act makes clear that that legislation covers all the waters which can conceivably be covered by this legislation. The subsection reads:This section applies to the following waters, that is to say,I cannot see that the argument that there may be a gap in the operation of the two pieces of legislation is open to the hon. Gentleman. Even if, by reference to the definition Sections as to the scope of the legislation, that were to arise, it seems to me it is covered by the Amendment which seeks to exclude the operation of the rivers pollution legislation in respect of the discharges already subject to the provisions of the Oil in Navigable Waters Acts. If it were not covered by those Acts it would be covered by the legislation relating to pollution.
- (a) the whole of the sea within the seaward limits of the territorial waters of the United Kingdom, and
- (b) all other waters (including inland waters) which are within those limits and are navigable by sea-going ships."
1344 The hon. Gentleman gave other reasons. He said there would be great difficulty for the river purification authorities in their immense task of trying to trace the origin of pollution which could come from ships and be considered under the Oil in Navigable Waters Act. It might not be certain whether the pollution came from a ship or from industrial plant on the upper or lower reaches of the river. So what? If we cannot pin down the source of the pollution, we cannot support a prosecution under either of these Acts.
§ Dr. Mabon
The hon. Member is being unfair. In the final part of my argument I was seeking to answer the arguments which had been put. I was not discussing those arguments but taking them on their face value and seeking to answer them. In the earlier part of my speech I was arguing the case for the Government and later I was replying to the arguments of hon. Members opposite, for which I am hardly responsible.
§ Mr. Wylie
I have no wish to be unfair to the hon. Gentleman in this matter, because I think that he was exceedingly fair in the way in which he presented—and very skilfully presented—his whole case. If I misunderstood him in this matter, I regret having done so.
It seems to me—and other hon. Members who have read this seem to have been misled in the same way—that this is one of the difficulties which could arise if this Amendment were allowed. The whole speech which the hon. Gentleman made on this matter was directed to the question as to whether this Amendment should be allowed. All he said had some bearing on the Amendment and could reasonably be taken as reasons for fighting it. If these are not reasons for objecting to it. I shall certainly deal no further with that.
If a master of a vessel discharges oil into a navigable tidal waterway, he is subject to very heavy penalties for committing a very serious offence, which he has in fact committed. It seems unreasonable to go further than that and say that he has also committed an offence 1345 under the Rivers (Prevention of Pollution) (Scotland) Act, because he did so without first obtaining the consent of the river purification board to do so, and without first having applied to the river purification board explaining all the details contained in subsection (2) of Section 1, being the composition of the effluent, the maximum temperature of the effluent, the maximum volume of the effluent and the highest rate at which it is proposed to discharge the effluent.
That is the provision which is created, that is the provision which is said to be breached by the master of a vessel who discharges oil in a tidal waterway. Surely to goodness, on any commonsense reading of that, it is perfectly clear that it has never been meant to apply to discharges of oil by seagoing vessels and that what should be used and, in my opinion, would be used in this matter for offences of that nature would be the legislation which Parliament passed only a few years ago specifically with that need in mind.
I hone that the Under Secretary of State will allow this Amendment to be made.
§ 6.45 p.m.
§ Mr. Manuel
I think that it is possibly a good thing that we are getting another opportunity to deal with this matter. Certainly, the Opposition have shown, by pulling out nearly all the stops, that they are very keen on this. We must probe a little into why they are so keen about it. The Opposition have moved on too yarrow a front.
Even the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) rested the whole of his case on the provisions applying under the Oil in Navigable Waters Acts, 1955, and 1963. Of course, he is under the misapprehension that the only fouling of waters we get is caused by oil. He never mentioned anything else, but there are many other kinds of detestable matter which come from ships. He should recognise, also, that the tighter the public authorities and the Government make conditions in our streams and inland waters for the dumping ad lib by industry of noxious effluents of any particular character which they have to get rid of, the greater will be the risk of those noxious effluents being taken 1346 to sea and dumped if they are not oil. How would he deal with that?
§ Mr. Wylie
Of course, anything which was dumped at sea and which was not covered by the Oil in Navigable Waters Acts would fall within the ambit of the River Purification Act.
§ Mr. Manuel
The hon. and learned Gentleman has tried to prove that this all boils down to oil and, of course, the big weakness here has been to establish whether oil was released in an emergency or not. Who is to prove it? Who is the witness from that ship who will say that in a court if a public or local authority is taking action? The thing is impossible. I am convinced that we will have to make even more stringent provisions to avoid the befoulment of our beaches.
For instance, we are having a pile-up and an augmentation of the effluent coming from distilleries. It is quite foreseeable that distilleries could use craft to take oil possibly or some of the effluent from the distillery to sea and befoul a lovely Highland loch. I should abhor this practice. Even in the matter of the provisions relating to oil, I am convinced that we have still a great deal to do. We cannot pin down the master's responsibility—or, more truly, the ship's responsibility. We all know that many of our beaches are completely befouled and lovely stretches of sand ruined and bathing made impossible. All of us have had occasion to rescue sea birds, some of them of rare species, befouled with oil, who could not get off the ground. I have myself tried to save bird life afflicted in this way and found it nearly impossible because of oil discharged from sumps and tanks by ships at sea or offshore.
If there is any danger—and I do not say that I know as much about this subject as other hon. Members, but I have this instinctive thought—I want to be on the side of those who will stop this thing happening. We have to have some regard to the steps which are being taken to remedy this matter. Even the hon. and learned Member for Pentlands brought up the old question about England doing this and asked why we are not following her example. Surely he is more of a Scot than that. Surely he is not saying, especially in legal 1347 matters, that we should follow the English pattern. Certainly, I am not amenable to that course being followed in this or in any other Bill. I think that that argument falls.
It appears to me that right hon. and hon. Gentlemen opposite recoil from doing something in the public interest which they are always willing to do in the private interest. I think that it is private interest here, in the main, coming from some shipping men or shipping companies, or something like that.
§ Mr. Manuel
No, no. Hon. Gentle men must learn to take their medicine when it is being administered, and look pleasant about it. Hon. Gentlemen opposite are obeying orders, just as they sometimes tell us that we do from trade unions and other organisations. I have never obeyed an order from a trade union with regard to my work in this House in my life, and I would not tolerate such an order. I wish that hon. Gentlemen opposite would show some backbone about these matters.
I hope that hon. Members will consider very seriously whether we might be doing an injury to, and spoiling, Scotland, because the tighter we legislate to clean inland waterways and streams throughout Scotland the more will be the temptation to dump at sea.
§ Mr. John Rankin (Glasgow, Govan)
I hope that in his reply my hon. Friend the Under-Secretary of State will give very careful thought to the words of my hon. Friend the Member for Central Ayrshire (Mr. Manuel), who emphasised the problem which faces the river pollution board in which we in Glasgow have much interest. In seeking to deal with the cleanliness of the tidal waters of the Clyde, of the weir at Gorbals, right round to the Cloch opposite Dunoon, we have been frustrated and denied powers which exist in respect of the Forth and the Solway. These powers are denied to Glasgow and lead to the pollution which my hon. Friend has so well underlined.
The real difficulty which is posed to Glasgow's purification board resides in the fact that an order which should have been laid and confirmed by a Secretary of State was not laid and confirmed. That 1348 Secretary of State was the Secretary of State in the lately deceased Tory Government. If Glasgow has trouble today in keeping the tidal waters of the Clyde as clean as Glasgow wants to keep them, it is because we suffer from the disabilities which occur due to the amazing inactivity of a Tory Secretary of State, not spread over weeks or months but spread over two solid years.
That is the problem which faces us today. Unfortunately, through one of these mishaps which occur from time to time on the Report stage of the Bill, we were denied the opportunity of dealing directly with the matter through the recognised procedure of the House. Naturally, we have seized the one opportunity which presents itself during the debate. Great responsibility rests on the shoulders of my hon. Friend the Under-Secretary of State. I will not ask him to redeem the misdeeds of Toryism, but I ask him to give Glasgow at least a hope of speedy action to deal with this matter—a hope which was denied to them completely by the Government who have just gone out of office.
§ Dr. Dickson Mabon
May I respond at once to what was said by my hon. Friend the Member for Glasgow, Govan (Mr. Rankin)? I appreciate why he has spoken in those words and why the hon. Member for Glasgow, Cathcart (Mr. Edward M. Taylor) has joined him in virtually the same plea. My hon. Friend the Member for Govan has been more consistent, because there is some sense in making the plea and at the same time wanting to resist the Amendment—but I will deal with that in a moment.
I should like to inform my hon. Friend the Member for Govan and all other Glasgow Members interested, and especially those who represent Clydeside—and I am one of those—that the Board have made it clear that they are much more prepared than we were led to believe when the proceedings on the Bill began in the House. When the Bill receives its Royal Assent, if it remains in its present form and is not amended elsewhere on this point, the matters which would have been effected by the confirmation by the previous Secretary of State of the order to which my hon. Friend referred will become effective.
With relation to the second part, which is more important, I should like to make 1349 it clear that the Board will have power to make formal application, as soon as they are ready—and if they are ready now, very well, let them take steps when the Bill becomes law to make formal application under Section 29(2) for the extended area to become operative. It will then be in the right of my right hon. Friend to ask for objections, if necessary to arrange for any public inquiry and ultimately to arbitrate in his position of Secretary of State on whether the order in that form should be confirmed. I give that undertaking to deal with the point. We wish the Board well. If they wish to promote this right away, whenever the Bill becomes an Act, we shall do our very best to give every consideration to the matter when it comes forward.
Having said that, it confirms the hon. Member for Cathcart in his view—which he may think about again—that it is not desirable to give in to this Amendment. I have read all his speeches with great care. If they are all taken together they show a remarkable inconsistency. I do not blame him. I realise that the debates have been very long and somewhat complex in Committee. But if he is advocating that we should cleanse the Clyde, I cannot see how he can support this Amendment which would even antedate us in relation to the English—and this is the substance of the argument. The position in Scotland is not the same as it is in England
The hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) helped me considerably in his speech. If hon. Members read his speeches they will see that he is still supporting the argument but on rather different and more substantial grounds, which is why I welcome the debate this afternoon and why I will seek to reply to it later. But if hon. Members read his remarks they will see that he has dealt with a number of objections quite conclusively. The Act of 1955 applies to Scotland and, so after, all does the Rivers (Prevention of Pollution) (Scotland) Act, 1951. There is, of course, the Interpretation Act, 1889, which allows the choice of proceedings to be made.
The Oil in Navigable Waters Act, 1955, also enacts in Section 24(2) a very important item. The hon. Member for Edinburgh, North (The Earl of Dalkeith), 1350 I hope with his tongue in his cheek, asked me whether we had consulted the Minister of Transport, the Foreign Secretary, the Scottish Law Officers and the Prime Minister. This is a Government Bill, and, of course, all these distinguished persons are consulted in the normal processes of Government, and they have, naturally come forward in the collective responsibility, which every Minister must and does express, in public to say that this is all agreed.
The hon. Member, referring to the Foreign Secretary, made the serious charge—I hope that I am not taking him too seriously—that we are breaking an international convention. But Section 24(2) says that nothing in itshall affect any restriction imposed by or under any other enactments whether contained in a public general Act or in a local or private Act, or shall derogate from any right of action or other remedy, (whether civil or criminal) in proceedings instituted otherwise.We are covered here, and every other party to the convention is covered. Parliament clearly intended that the 1951 Act should also apply to discharges from ships.
Let me turn to the English provisions. First, may I point out that it is not the Minister of Transport who would be concerned in this matter, but my right hon. Friend the President of the Board of Trade, because we have rearranged functions. This is a small point. We have, naturally, communicated with the responsible Government Departments concerned, and they have expressed no disagreement, but are quite content that we should proceed with this matter, having considered the matter most fully. I have no doubt that it has the Prime Minister's blessing, too.
Section 13 of the Rivers (Prevention of Pollution) Act, 1961, provides that nothing in it or Section 7 of the 1951 Act, which corresponds to Section 28 of the Scottish Act of 1951, shall be taken as applying to the discharge of effluents from a ship or vessel. As the hon. and learned Member for Pentlands pointed out, we have not followed this line, because we cannot control discharges of foul effluent from land yet permit them from ships, or to be tanked on land and dumped from ships. There is, however, a saving in Clause 13(3), permitting the ordinary use of 1351 sanitary appliances on ships, unless bye-laws are made in respect of these discharges.
Having done that, that is not an argument for saying that we should permit polluting discharges of oil from ships and that they should be excepted from the Bill. There is a specific duty laid on river purification authorities and the Secretary of State to promote cleanliness of the rivers, other inland waters and the tidal waters in their areas. No such specific duty is imposed on river authorities, or the Minister, under the Rivers (Prevention of Pollution) Act, 1951.
I cannot understand why there should be any reference to the previous Administration having to act as they did. As an act of policy, the previous Administration could have said that they did not agree that that was a proper interpretation of the Act. We have looked closely at this matter. The previous Secretary of State confirmed both the Firth of Forth and Solway Tidal Waters Orders and decided, when he made them, that the provisions of both the 1951 and 1955 Acts should apply to these waters.
It is interesting to note that he confirmed those orders despite the clear objections which were raised by those concerned in the promotion of the Amendment we are considering; that is, those outside the House who are, naturally, interested in the success of the Amendment. The objections were made clear, yet the Secretary of State decided to confirm the orders, without fully accepting the case put to him by the objectors.
I have looked carefully at the proceedings in Committee and I have listened to everything said on this topic today. I am sorry if I seemed to get rather annoyed when being quoted in answering arguments put to me. I deliberately used the phrase, "Perhaps not too serious" because it depends on who is advancing the argument. I appreciate that some hon. Members regarded them as serious at the time and, for that reason, I must treat them as such and try to answer them as serious points. That is why I felt at the time that perhaps my good nature was being somewhat exploited.
1352 As I say, I have listened carefully to what has been said on this issue. It is fair to say that no new facts have been adduced, in Committee or today—or from interested bodies and persons outside the House with whom the Scottish Office is in touch, along with those with whom other Government Departments are in communication—to show why the Secretary of State should change existing policy and accept the Amendment.
What has concerned me, nevertheless, is the important point made by the hon. and learned Member for Pentlands. Although not a lawyer, I am informed of difficulties which may arise as a result of legislation, particularly if it may not be considered completely and fully by us all, in particular by Ministers. Therefore, I was most anxious that we should look at this matter more closely. This is linked to a further consideration in relation to Scotland; that criminal prosecution in Scotland is the function of the Crown and, consequently, that the Lord Advocate decides on the facts whether the evidence establishes a case for prosecution and whether charges should be made under the 1955 Act or 1951 Act, as is appropriate in the circumstances.
It is for that reason that I consulted the Lord Advocate and I can say, with his complete approval, to allay any fears, that defences in the 1955 Act may be overlooked, that the Lord Advocate is prepared to issue the following instructions:I propose to give an instruction 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 discharges of oil from vessels should be reported to the Crown Office for consideration by Crown Counsel. The object of the instruction would be to make certain that prosecutions proceeded under the appropriate code.This shows that the Government recognise the importance of this matter.
We have before us a fundamentally Scottish Bill. It is parallel in many ways to the English equivalent, but there are some differences. I suggest that it is in the interests of Scotland that we should profit by English experience, since the English Act has taken precedence in time over ours. It would be wrong of us to think that if a new English Bill were 1353 introduced this provision would not be included. How do we know? The Government have decided at the earliest opportunity, in the Scottish Bill, to take up this attitude in continuance, as we see it, of public policy wisely practised by the previous Administration.
We see no point in reversing what has been good, sound public policy for the last 10 years or more. That being so, I must counsel the House not to accept the Amendment.
§ Mr. G. Campbell
The Under-Secretary referred to a decision of my right hon. Friend the former Secretary of State and was critical of his having made a decision to confirm a matter last year. It should be realised that my right hon. Friend made that decision because that was the law at the time. We are now presented with an opportunity to discuss and improve the law in these matters. Although I agree that the Under-Secretary has, in general, been fair in his remarks—I am sure that he would not wish to be unfair—I hope that he realises that he has not made a fair comparison.
I regret that he is unable to accept the Amendment, for there are large areas of tidal waters which are covered by the oil in navigable waters legislation and I understand that the Under-Secretary has accepted that there is considerable overlapping. He was not prepared to accept this in Committee upstairs, but I have the impression that he now accepts that there is a considerable overlap in what he called concurrent legislation. My hon. Friends and I thought it important that there should be an interpretation of the legislation concerned with the discharge of oil or oil mixtures.
The Under-Secretary has not accepted this need although, as I say, the legislation is in need of such interpretation. However, he has been helpful in telling us that the Lord Advocate has given an instruction and, to that extent, he has met us some way in our desires in the Amendment.
In this discussion we have had the advantage of the advice of my hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie) and I cannot refrain from pointing out, for the benefit of the Minister of State, that my hon. and learned Friend has brought to 1354 light a point of interesting legal definition; that in the prevention of pollution legislation the word "premises" occurs and that this word does not cover a ship. This reminds me of the occasions, often at the instigation of the Minister of State, when we have considered the fact that the word "land" includes water. We find ourselves in rather the same metaphysical discussion. As my hon. and learned Friend cogently pointed out, there is a need for official interpretation.
I turn to some of the points raised by the hon. Member for Central Ayrshire (Mr. Manuel), who I am glad to see is in his place. He expressed what I quite agree are absolutely right sentiments about the need for clean beaches, and for the protection of birds, which is something in which I am also interested—
§ Mr. Campbell
I said "clean beaches", but I approve of both ideas.
When the Scottish Grand Committee considered the principle of the Bill, we on this side made it clear from the very beginning that we welcomed the fact that the intention was that effluent from ships should be dealt with by this Bill. That means that we approved of the provision that substances that were not oil would, if emitted in relevant tidal waters, be covered by the Bill. There is therefore no difference between the two sides on that aspect—
§ Mr. Manuel
If the same ship were to emit both used crude oil and other refuse of an obnoxious nature would the hon. Gentleman include that?
§ Mr. Campbell
It would depend on where it was being emitted, and that brings me to the point that the Oil in Navigable Waters Acts of 1955 and 1963 cover a much wider area. They cover all the area within territorial waters, whereas the tidal waters are just those in the estuaries. Those Acts are, therefore, more powerful and, as my hon. Friend pointed out, not only are they more powerful for that reason but more powerful because the penalties are greater. This is not, therefore, an issue between us, and I wanted to point out why we favour those Acts.
I have made it clear that we welcome what the hon. Gentleman has said as far 1355 as it goes, but we very much hope that it means—because it seems so clearly the sensible course—that in such cases where there is this concurrent legislation, the oil in navigable waters legislation, unless there are very exceptional circumstances will, because it will be the most powerful with regard to the emission of oil, be the legislation chosen by the Lord Advocate.
§ Amendment negatived.