Grand Committee Report of 25 November 1996

Official Report of the Committee on the Merchant Shipping and Maritime Security Bill [H.L.]
Monday, 25th November 1996.
The Committee met at half-past three of the clock.
[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
Title postponed.
Clause 1 [Temporary exclusion zones]:
[Amendment No. 1 not moved.]
Clause 1 agreed to.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 2:
After Clause I, insert the following new clause
MARINE ENVIRONMENTAL HIGH RISK AREAS

("—(1) The Secretary of State may by regulations make such provision as appropriate in relation to—

(a) the identification of marine environmental high risk areas in the territorial seas and pollution zone of the United Kingdom; and

(b) the introduction of necessary measures to safeguard—

(i) maritime safety, and

(ii) the marine environment in marine environmental high risk areas from pollution by matter from ships, offshore installations or submarine pipelines,

whilst respecting rights of transit passage in international straits and freedom of navigation.

(2) In making the regulations and subsequent identification of marine environmental high risk areas, the Secretary of State shall inform the International Maritime Organisation of—

(a) the identity of such sites;

(b) the significance of such sites for recognised ecological, sociological or scientific reasons and the vulnerability to damage by shipping activities; and

(c) the necessary measures to safeguard maritime safety and the marine environment.").

The noble Lord said: I beg to move Amendment No. 2 standing in my name and in the name of the noble Lord, Lord Beaumont of Whitley. As with many of the debates we shall be having, noble Lords will wish to probe the Government. Certainly there may be areas for improvement as far as the Bill is concerned, but essentially I have put down amendments, and I think others have been put down in a similar light, to test the situation as far as the Government see it. We cannot divide the Committee in any event, but I would not have wished to do so even if we had had that right in the Moses Room. With the concept that we are considering here, this amendment will enable the Government to identify with greater clarity what they are proposing and how they intend to bring this extremely useful idea to fruition.
The idea which was set out in the Donaldson report is one which the Government were very wise to act on in principle. I am not sure whether the idea was totally
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original but certainly it is one which we applaud. The whole idea of ship routeing measures requires some change. Hitherto, the whole concept has been essentially reactive rather than pro-active, and that point is important.
In the report, the noble and learned Lord, Lord Donaldson, identified the need for a new type of area, and so we have the marine environmental high risk area to be protected from shipping because of sensitivity to pollution and the likelihood of damage occurring in consequence. As I understand it, the way in which this would operate would be that owners, masters, insurers and charterers would be informed of these significant areas. It is hoped that highlighting them should lead to a change in behaviour so that vessels would, where appropriate, take a wide berth. Clearly, if experience shows through monitoring that further action would be required in the future, we would have to consider other ways of protecting identified sites.
In the summary of recommendations that were made by the noble and learned Lord, he said that as far as the information which was to be given to these particular parties is concerned, it was important that there should not be too many such areas because that might lead to confusion, and that is surely something which we need to avoid.
The noble and learned Lord went on to talk about enforcement. He said at paragraph 14.140 that:
"Assuming that MEHRAs are widely and effectively publicised, we believe that enforcement of any new rules on routeing will arise only in the context of a tiny minority of 'rogue' ships".
I am sure that that assumption is right. He went on:
"There is no doubt that enforcement will be difficult, but we believe that sooner or later, any rogue ship will be identified and reported … She should then be subjected to a special entry reporting condition along the lines of the reporting conditions recommended in Chapter 11".
Perhaps the noble Viscount will be able to give us some further ideas as to the proposed government action in this regard, because that is important. Indeed, perhaps he could also comment specifically on the points made by the noble and learned Lord regarding enforcement, because clearly he is right in saying that enforcement will be extremely difficult. It has been more successful perhaps than some had hoped but nevertheless that is a much easier task than the one that can be envisaged here.
Perhaps the Minister could identify the sort of action that the Government propose to take with regard to monitoring itself. Perhaps he can give further and better particulars about that particular and important issue.
Then we have the difficult issue about how we go about dealing with this matter, bearing in mind that shipping is part of an international community and there is the important role of the International Maritime Organisation to be considered in this connection.
It is going to be difficult, I suspect, to get agreement in the IMO on this matter. Therefore, pending a consensus, what are the Government proposing to do? Is it a matter where the Government feel they can take unilateral action? Certainly, within our own territorial waters, the Government are in a position to enforce

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MEHRAs, provided there is no impairment of innocent passage. Within the pollution zone, freedom of navigation applies, and, as I understand it, we could only impose standards and regulations adopted at the international level by the IMO. Perhaps the Minister will confirm that?
It is right to say that the noble and learned Lord—I hope I am not misquoting him in any way—did recommend that the Government should not wait for international agreement before promulgating MEHRAs, and I would invite the Minister to say something about that too.
This is an important debate, because in effect it is the first one we shall have had about this new concept of MEHRAs, and I am sure the Minister will accept from me that we are in no way challenging the concept. We want, if anything, to improve it, to make sure that it can be enforced and, indeed, we wish the project well.
Lord Beaumont of Whitley: I would like to echo the assurances of the noble Lord, Lord Clinton-Davis, that the Opposition parties, in tabling some amendments to the Bill—a large number of amendments in fact—desire only to strengthen the Bill and to back it and not in any way to hinder it or to harm it.
The question of marine environmental high risk areas is a slightly complicated one because of the difficulties between the national and international jurisdictions. However, at this stage I would like to hear what the Minister has to say, so that we can, if necessary, take what he says on board and see what we have to say in reply in support of these amendments.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): I would certainly like to thank the noble Lord, Lord Clinton-Davis, for the spirit in which this amendment was introduced. I entirely understand that his intention, and that of other noble Lords, is during this special Committee stage to probe the assumptions which lie behind the Government's thinking on the Bill.
The issue that the noble Lord has raised is one of considerable importance and the main issues were identified by the two noble Lords who have spoken. Perhaps I could give the Government's thinking on the issue of marine environmental high risk areas.
As we know, these MEHRAs, for short, were proposed in the excellent report, of which we have heard a great deal, from the noble and learned Lord, Lord Donaldson. He recommended, as we know, the identification of a number of areas around the coast where high environmental sensitivity coincided with a significant risk from shipping. In his view, such areas should constitute no more than 10 per cent. of UK waters, and their purpose should be to inform mariners of key areas of particular risk and environmental sensitivity.
We certainly agree that there are areas around our coast where ships should take extra care. We have already put in place a number of mandatory routeing measures agreed through the International Maritime
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Organization and indeed a number of voluntary measures agreed with the shipping industry following the loss of the "Braer".
Originally, those mandatory routeing measures were based solely on safety considerations. However, a recent amendment to the SOLAS Convention allows the introduction of such measures for environmental reasons. The important consideration is that, if we wish to place restrictions on the movement of vessels, we can only do so through the IMO. It is essential that we respect the right of innocent passage or transit passage. We already have the necessary statutory powers to apply and enforce IMO adopted routeing measures. That is one of the key points in considering the amendment—that we already have that power.
Work is taking place on developing the criteria that will allow us to take forward the proposals of the noble and learned Lord, Lord Donaldson, in some locations as an advisory measure and in others perhaps as mandatory restrictions. We have also examined the effectiveness of many of the existing routeing measures around our coast, particularly through radar surveys. I will say a word or two about that in a moment to indicate how the present arrangements are working.
The work of developing the criteria takes two forms. The first involves consideration of the environmental importance and sensitivity of areas around our coasts. This is being undertaken in consultation with our statutory advisers and with other interested bodies, including the RSPB. This work also involves assessment of the implications of key European directives and of work within the EU on defining environmentally sensitive areas. The work is continuing, but final agreement on the environmental criteria is still some way off.
The second area of work relates to improving our knowledge of shipping movements and the risk from such movements around our coast. Working with the industries involved—the shipping industry, the ports and offshore industries—we built up a clear picture of the extensive pattern of shipping routes around the coast. Where possible, this information has been augmented by local radar surveys, which we feel have been an important tool in ascertaining the degree to which the areas are respected.
Our initial view is that the majority of the potential conflict areas around the coast where there is existing extensive shipping traffic have already been identified and appropriate IMO routeing measures are already in place. For example, IMO routeing measures apply round the Scilly Isles and there is an area to be avoided around the Smalls off the South Wales coast, both areas identified by the noble and learned Lord as potential MEHRAs. Our recent radar surveys show a high level of compliance with these measures and clearly demonstrate the success of such IMO measures, which, although originally adopted for primarily safety reasons, also serve to protect the local environment. We now need to consider locations where there may be low levels of shipping movement but a high level of sensitivity.

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The important point that I am seeking to make in response to the speech of the noble Lord, Lord Clinton-Davis, is, on the one hand, the degree to which we feel the existing areas are being respected and, on the other hand, the conditions with regard to our existing statutory powers. We need no such power to advise mariners of the sensitive nature of particular stretches of coastline or of particular sea areas. However, if we wish to restrict movements off such coastlines or through such sea areas, we will need to consider the question of interference with rights of innocent passage and refer the matter to the IMO.
There are a number of other provisions to which the amendment refers. Essentially, I have sought to give the background to the Government's thinking behind such areas. We share the noble Lord's intent but we consider that the proposed amendment is premature and likely to raise conflicts with international law. As a coastal state we cannot take many of the measures he envisages without prior international agreement. We believe the approach we are adopting will in time yield the results that we all desire.
I hope that gives the background to the Government's thinking on this issue. It is for that reason that I feel it would not be appropriate to accept the amendment. Nonetheless, it has given us a good opportunity to test the areas of assumption surrounding marine environmental high risk areas.
3.45 p.m.
Lord Clinton-Davis: I do not know whether any other noble Lords wish to speak on this matter but I think not. I thank the Minister for that response which is helpful but perhaps I can probe just a little further. He spoke about action being taken in the IMO and in the European Union. Could he give the Committee some indication of the response that has been elicited to the initiative that has been promulgated by the Government in this connection? There is also a commitment, as I understand it, to public consultation in this matter, something which was requested in the Donaldson report, and maybe the Minister would give us some idea of how and with whom you go about consulting on questions of the establishment of MEHRAs as far as the British public is concerned.
The very important issue was raised in paragraph 14.131 of the report about the risk of head-on collisions between vessels proceeding in different directions at different distances off headlands which specify ships going in different directions, and one might have the problems of ships' paths crossing, thereby creating an even greater risk than if one did not, in fact, proceed in the way that we all support. The Minister should answer that point.
As far as the progress that the Minister is making is concerned, is he able to establish at this stage any sort of timetable for the discussions and action to be taken within the IMO and within the European Union? Has the Commission given its support for the concept and for the Government's ideas in this connection? If not, what are the problems as far as he can see? Certainly, receiving the support of DG VII in this context would
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be extremely useful, but there are other member states to be considered as well. Is the Minister able to give us any indication of the results so far of discussions which he may have had with other member states of the European Union which would be directly affected by this idea?
Viscount Goschen: There are a number of additional points which the noble Lord raised. First, as he mentioned, we have had discussions in the IMO and in the European Union with regard to these areas. There has been a positive reaction within the IMO. There is an understanding of the need to get measures adopted by the IMO so that one would not be in breach of the international law in this area.
With regard to the European issues, marine environmentally sensitive areas is the name for the particular type of area under discussion within the EU. The proposals for this type of area are not yet clear and, despite the announcement in March that the Commission would be urgently seeking information from member states to enable designation of these areas, no such request has been received by the UK. We are not delaying consideration of MEHRAs until such time as EC proposals are clearer. We are already considering, together with the statutory environmental advisers and other interested groups, the development of possible criteria for the establishment of MEHRAs.
The noble Lord asked about consultation. As I suggested at that time, not only the statutory advisers, but the shipping industry, the ports and the offshore industries will clearly have to be other parties, and they have been involved in building up the picture of movements around the coast.
The noble Lord also asked about having a specified limit offshore and about vessels meeting each other head on. Clearly such a situation would be intolerable and if we felt that there was a risk of that happening or if the special circumstances we have set up would make the problem worse, a solution would have to be devised. One thinks of a slightly different situation where vessels are under more stringent control. Under the Channel navigation information system there is a routeing arrangement depending on which side of the road you drive, as it where, to ensure that vessels do not collide head-on.
This area of policy, covering areas to be avoided or mandatory routeing measures, is a key one. We have given the proposals which were put forward by the noble and learned Lord, Lord Donaldson, considerable attention. That is reflected by the international negotiations that we have had with regard to these areas.
Lord Clinton-Davis: I apologise to the Committee for raising a slightly separate issue at this stage, but I wanted to deal with MEHRAs directly and I want to come now to something which is connected with them, but where, in some instances, the Government are in a position to take action without international agreement.
When we are talking about seeking to mitigate damage through oil pollution, we are also considering questions of enhancing the efficacy of navigational aids, a critically important matter in this context. Then there

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is the question of the provision of tug escorts for laden tankers when entering a terminal inside a MEHRA. Perhaps the Minister would like to say something about those two issues.
Connected with that last point is the issue of the provision of emergency tugs for salvage on stand-by. This is an issue which came into sharp focus in the "Sea Empress" case and Ministers are awaiting the final report on that matter. Clearly there is a need to be able to reassure the Committee about the provision of emergency tugs in that context because this should not have to await a final report which could take a very long time.
The fourth point I would make is in connection with ship reporting requirements. These are matters on which I hope the Minister would wish to address the Committee, although they are not strictly identified with the issue that we are discussing, which is, of course, very much part and parcel of the thinking behind the MEHRAs as well.
As far as I understand it, the Government would not require international agreement in advance for the question of dealing with improved navigational aids, tug escorts or emergency tugs for salvage. Perhaps the Minister would like to comment on those points.
Viscount Goschen: Again the noble Lord has raised a number of important issues. I believe the noble Lord mentioned transponders—
Lord Clinton-Davis: I did not actually use that word.
Viscount Goshen: Perhaps it was at an earlier stage in his remarks because I distinctly recall that word being used although perhaps not in the most recent intervention. Ship identification is clearly one of the major issues when one talks about enforcement and getting the maximum safety benefits. We strongly support the mandatory installation of transponders on vessels. We have been pushing for that on an international basis within IMO very strongly. A trial is already taking place involving a number of vessels carrying transponders and that will produce considerable results.
With regard to tugs, this was indeed an area which came into the spotlight following the "Sea Empress" incident. I shall not be discussing the precise circumstances of that at this stage because, as the noble Lord mentioned, we are awaiting the report from the Marine Accident Investigation Branch. On the wider issue, there is certainly a place for tugs as an effective supplement to those that are already available, when the Government themselves take action.
Noble Lords will know we are now in the third year of the tug trial. For two years we have had two tugs in the winter months, one in Dover and one in the north of Scotland, and they have proved very valuable. That has provided a great deal of information on their use. They are an expensive approach and we have to make sure that the Government's money is spent in the best way possible and that we gain maximum value. In the third year of this trial there is also a tug in the south-west
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approaches. Again, we shall continue to examine the work that these vessels are put to, the efficiency with which they work, and the efficacy of their operation.
The third point the noble Lord raised was about reporting systems. We are in discussion with the French on a reporting system in the Dover Strait. Other voluntary reporting systems are in place, and whether they should be made mandatory will be considered in each location.
The important point that comes out of a lot of our discussions this afternoon is the question of identification. Apart from anything else transponders—again identified by the noble and learned Lord—are very important and we want to improve the identification of vessels.
Lord Clinton-Davis: I thank the Minister for those very helpful responses to the points which I made. I am very interested in the Dover Strait separation scheme because I was responsible, as the Minister at least, for the introduction of that scheme. We would like to consider what the Minister has said in rather more detail, but in thanking him, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Powers of intervention where shipping accident threatens pollution]:
4 p.m.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 3:
Page 3, line 38, after ("waters),") insert—

("(a) in subsection (1)(a) for "an accident has occurred to or in a ship" there is substituted "a vessel is wrecked, damaged or in distress", and

(b)").

The noble Lord said: I beg to move the amendment standing in my name and that of the noble Lord, Lord Beaumont of Whitley. The reason for our seeking to introduce this amendment, or discuss it at least, is that Clause 2 extends the powers of intervention which were operable under Section 137 of the 1995 Act in cases in which,
"oil from the ship will or may cause pollution on a large scale in the United Kingdom or in United Kingdom waters",
to cases in which oil from a ship will or may cause significant pollution in the UK, UK waters or a part of the sea specified by virtue of Section 129(2)(b).
A number of points were raised by the noble and learned Lord, Lord Donaldson, on Second Reading which need to be addressed. The first point was the extent of the jurisdiction. I agree with him that this should be to the maximum permitted by international law. The second was the definition of the triggering circumstances—that is to say where,
"an accident has occurred to or in a ship".
Is that sufficient? Are the triggering circumstances sufficient?
The question I want to add to that, which the noble and learned Lord asked, is this: is it enough to limit the jurisdiction to where
"an accident has occurred to or in a ship"?
Would that cover the situation where a ship is incapacitated due to some malfunctioning of equipment or is in a dangerous navigational situation? The definition does not follow either that adopted for Clause 1 or those used in the international instruments, so perhaps the Minister can elucidate on that point.
The second question relates to the words "maritime casualty". That is the trigger that is used in Article 221 of UNCLOS and the 1969 convention, and is defined as:
"A collision of vessels stranding, or other incident of navigation, or other occurrence on board a vessel or external to it, resulting in material damage or imminent threat of material damage to a vessel or cargo".
Clearly, the intention must be to cover all situations which constitute a sufficient danger if action is not taken. Is the Minister satisfied that that is adequately covered? I beg to move.
Viscount Goschen: The amendment that the noble Lord has put forward specifies and attempts to address or change the circumstances in which the Secretary of State's powers of intervention may be used. The whole issue surrounding the powers of intervention was raised by a number of noble Lords at Second Reading and by the noble and learned Lord, who had concerns about the breadth of the intervention powers and about whether they went far enough, and about whether the Secretary of State had all the powers that he needed at his disposal.
At that stage, I said that we would take the noble and learned Lord's suggestion carefully and that we would go back and examine it. That is indeed what has happened.
One change since we last met to discuss the Bill at Second Reading has been the production of some interim recommendations from the Marine Accident Investigation Branch. I have written to all noble Lords who participated in that debate to draw those recommendations to their attention. Perhaps I may quickly say what they were. It is not necessary at this stage to take that any further, but one of them is relevant to the noble and learned Lord's concerns.
The specific recommendations relate, first, to the statutory status of the national contingency plan; secondly, to the power to give directions to harbour authorities, harbour masters and pilots under Section 137 of the Merchant Shipping Act in regard to vessels which pose, or are, a pollution threat; thirdly, to the need to review the Marine Pollution Control Unit's powers or capability to charter equipment, including vessels and aircraft, quickly in the event of a pollution incident.
The specific effect of the noble Lord's amendment is to address the circumstances where intervention can take place. Currently, the Act allows the powers to be used when,
"an accident has occurred to or in a ship".
The noble Lord's amendment would instead allow the powers to be used when a vessel is wrecked, damaged or in distress. I believe that the intention behind the noble Lord's amendment is already in part included in the 1995 Act. Section 137(9) provides a definition of the term "accident" and this is the key point. It defines
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"accident" as including the loss, stranding, abandonment of, or damage to, a ship. We would certainly consider that this definition of "accident" would probably include all the circumstances given in this amendment. I will, however, undertake to consider whether the powers are fully adequate for ships which are in distress, and we will look at the detail of that to see if there are any loopholes.
One final point is that the definition of when the intervention powers can be used will, in any event, need to be carefully worded in order to be consistent with international law. In particular, it will need to be consistent with the Law of the Sea and the International Convention 1969. With the undertaking that we will look at this further to see whether there is any outstanding loophole, I hope that the noble Lord will welcome what I have said and that we might return to this issue at a later stage.
Lord Donaldson of Lymington: On the latter point arising directly from the amendment, the Minister has referred to the definition of "accident" in Section 137(9). I rather incline to agree that the way forward, if any progress forward is needed, would be to add to the word "accident".
The point which worries me is that one of the most common causes of problems, to use a neutral word, is loss of propulsion, loss of propulsive power. I take the example of the "Canberra", which arrived off the Isle of Wight and suddenly found she had no engines—I do not think the "Canberra" would have said she was in distress because she had some fine anchors which she proceeded to put down. Nevertheless, those anchors might not have held and all sorts of things might have happened. I would have thought that the definition of accident ought to cover in one way or another loss or reduction in propulsion power.
Ships may not think they are in distress at that stage. In fact, it is a common experience that chief engineers invariably think they can repair their ships in time, and quite frequently they are wrong. Thus there will be no distress call from the ship, but nevertheless there should be extended powers to enable there to be some degree of intervention, if necessary.
Let me just say a word about extending Section 137 to cover directions to harbour authorities. I take it from what the Minister has said that, since I now find myself, rather surprisingly, on the same side as the Marine Accident Investigation Branch, with its added weight we may hope to see an extension to Section 137 at least to cover harbour authorities, harbour masters and pilots. That leaves only my cargo owners.
I rather gather that the Government's thinking may be that they have never had any problem with cargo owners and therefore there is no reason to include them as an additional category. I never understand this argument. If there is any possibility that one day they may meet an obdurate cargo owner, I cannot see the objection to including cargo owners. It is not insulting to cargo owners, and the very fact that cargo owners normally co-operate suggests that they would expect to be there. It would be a reserve power which probably would never be used. Prior to the "Sea Empress", had we

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discussed this then, I should have been assured by the noble Viscount that there was never any trouble with harbour authorities and therefore there was no need to include harbour authorities, but I do not probe that for obvious reasons. I would be grateful if the Minister could deal with that point.
Viscount Goschen: I was very interested in what the noble and learned Lord had to say about the issue of loss or partial loss of propulsion systems because that is clearly an important issue and we want to ensure that our intervention powers are available in the widest circumstances that we feel are appropriate. We will certainly take that comment on board when we are looking at the definition of an accident.
The only other point to raise in that regard is that we want to encourage masters to be as realistic as possible and to report problems at as early a stage as possible. We have to think carefully about anything which might deter them from doing that at the earliest stage possible. Nonetheless, I certainly recognise the point with regard to the loss or partial loss of propulsion systems.
Finally, with regard to the powers to give directions to harbour authorities, I indicated at the Second Reading that we were looking very carefully at this. The noble and learned Lord supported by the Marine Accident Investigation Branch is an unstoppable combination, but we do believe that that suggestion has considerable weight. I hope that I will be able to inform your Lordships when we are closer to drafting specific proposals.
With regard to the interim recommendations as a whole, we are giving urgent thought to them. If the Government deem it appropriate to bring forward amendments to the Bill to give them weight, we will do so.
Lord Clinton-Davis: Once again, the Committee will be grateful to the Minister for those replies. Perhaps he could give us some indication whether he is proposing to come forward with amendments to the points he was alluding to earlier in time for the Report stage, which, as I understand it, will take place on 13th January. Will he be in a position to do that? If not, when does he hope to come forward with any such amendments?
Viscount Goschen: It is difficult to be precise about those things. It is also important that, if government are to seek a change in the law in this regard, particularly concerning harbour masters, we should consult the interested parties. It will be necessary to come up with workable proposals that are tightly drafted, when we have had the opportunity to consult with interested parties. However, I have given an indication that we recognise the power behind these arguments and, subject to being able to draft the necessary considerations and taking into account the views of interested parties, we would hope to come forward with amendments at a later stage of the Bill as early as practicable.
Lord Clinton-Davis: There is a distinction between those areas where it would be necessary to consult
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widely—certainly we would not wish to discourage the Minister in any way from doing that—and the other areas dealing with the points made earlier in these discussions which would not require widespread consultation. It is with regard to those situations that I wish to put down a marker. We shall expect the Government to deal with them at a later stage, preferably before the Bill leaves your Lordships' House. It is important that since the Bill started here the Government have reacted in a positive way and it would be helpful if this could be achieved while the matter is still before your Lordships' House.
Viscount Goschen: Certainly we felt that it would be appropriate to consult on the harbour authorities provision that we discussed earlier today. On other measures that do not require consultation, if we felt that amendments were required we would bring them forward as urgently as possible and lay them in good time, wherever possible, for noble Lords to give them the consideration they deserve.
4.15 p.m.
Lord Clinton-Davis: I am most grateful. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clauses 3 and 4 agreed to.
Clause 5 [Waste reception facilities at harbours]:
Lord Beaumont of Whitley Lord Beaumont of Whitley moved Amendment No. 4:
Page 4, line 38, leave out from ("State") to end of line 40 and insert ("shall require—").
The noble Lord said: This is the first of a number of amendments that are grouped together, Nos. 4, 5, 7 and 9 to 30. They all fall into much the same category and I propose to speak to Amendments Nos. 4 and 5.
The purpose of the amendments is to change the enabling powers for the introduction of waste management plans into a requirement on the face of the Bill. We welcome the concept of waste management plans and through this planning process port authorities will be required to assess the waste reception needs of the ships that use a port. These plans, if correctly prepared, should lead to facilities that are both adequate and easy to use, and hence cut down on deliberate discharges of waste straight into the sea. Sections 130A and 130B of the proposed new Chapter IA of the Merchant Shipping Act 1995 will give the Secretary of Sate an enabling power to require port authorities to develop waste management plans. However, we are disappointed that the Bill only provides an enabling power. Recommendation 27(c) in the Donaldson report calls for a system of certification to be set up to ensure that waste reception facilities are adequate.
Waste management plans need to be mandatory to ensure that those ports and harbours that are not drawing up plans voluntarily are required to do so and to help ensure that the resources are available for the assessment of the adequacy of such plans, as provided for by Section 130B(2)(b) of the Act. The Department of Transport announced its intention to require ports and

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harbours to produce waste management plans in January 1996 as part of the 18 new measures to reduce discharges of wastes from ships. In this announcement the Department of Transport recognised that at the moment the provision of port reception facilities is haphazard and that research by the MSA has shown that, where facilities exist, they can be hard to find and poorly publicised. The Department of Transport also stated the problems would be addressed by the strict application of a waste management planning process.
Since then some ports and harbours have been voluntarily producing waste management plans, and the MSA has so far received between 100 and 140 of these plans out of a total of around 350 ports and harbours in the UK. The MSA currently does not propose to assess the adequacy of these plans. There is a very considerable need to put on the face of the Bill, first of all, a demand that the facilities should be adequate because it is easy to put in facilities which are not adequate. No one sensible would do it, but these things do happen. Secondly, it is important that the Secretary of State may not, just by regulation, ask for these things but that he shall actually require them. I beg to move.
Lord Berkeley: I rise to support the noble Lord, Lord Beaumont of Whitley, on Amendments Nos. 4 and 5. I regret that he appears to have chosen not to speak to the grouping on the Marshalled List because all the amendments, Nos. 7 and 9 through 30, cover enforcements. I would like to cover all those amendments to try to save a little of the Committee's time.
This is all to do with what comes out of Recommendation 27 of the report of the noble and learned Lord, Lord Donaldson. But the proposal is to place a statutory obligation on port and terminal operators to provide reception facilities for waste and, as a first step, to encourage the operators on what has to be done, how incentives and disincentives are applied and the system of certification, and really then to widen it. I hope the Minister will consider again whether the statutory role is the right role because it is very important that we consider the effect on the harbour and shipping industries of doing something in this country when they might argue that across the North Sea, or even across the Atlantic, there are less high standards which could put them at a competitive disadvantage. It would be interesting if the Minister could let us know on Recommendation 27(f) what progress the Government are making on the North Sea so that so far as is practicable all European ports take a similar approach.
Some of the shipping interests may not think this is a very good idea, but I was pleased to read in a government response that the Chamber of Shipping, as well as the RSPB, both strongly supported the improvement to waste reception facilities. Certainly, we welcome the Bill as it stands but we would like to suggest that it does not go anything like far enough in the matter of the preparation of waste management plans. That is all we are talking about so far. It is the waste reception facilities at harbours and, under what
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would become Section 130B, the requirement to produce waste management plans. It is extremely important that these are prepared to a timescale.
The noble Lord, Lord Beaumont of Whitley, mentioned that the MSA has received between 100 and 140 of these plans out of a total of 350. It has been noted that the MSA does not propose to assess the adequacy of these plans. My question to the Minister is why? Is it due to lack of funding; because they do not feel like it; or they have not been told to? It would be helpful to know. I believe it is important that there is not only a statutory requirement, but that there is a timetable put into the statutory requirement. It is very easy to say that this should happen in the future and that we ought to bring in regulations in the future to make it happen, but they must be much more than just an enabling power.
Many organisations—the RSPB, the World Wildlife Fund—support the amendment and we certainly support it too. I would be very interested to hear the Minister's reasons for not going down the enforcement route proposed in the amendment.
Before I sit down, I would like to mention Amendment No. 15 and the proposal to include the word "marina" along with terminals, jetties and piers. That is a very important addition to the definitions in this chapter. I declare an interest in that I have a small boat, which I do not keep in a marina very often. Most small boat owners are responsible people, but I see no reason for excluding marinas and so on from the definitions in this chapter. I look forward to hearing the Minister on this subject.
Viscount Goschen: The issues concerning waste reception facilities are indeed important ones. The proposals that I put forward as part of the package of 18 measures have been widely welcomed.
The clause, as currently drafted, provides enabling powers for the Secretary of State to draw up regulations to improve the provision and use of port waste reception facilities. We are convinced that enabling powers are by far the best way to proceed. They would give sufficient flexibility to determine the most appropriate regulations, and to ensure that these regulations can be swiftly amended to keep them up to date.
In this instance, flexibility is essential because we are bringing forward new concepts which have not previously been introduced in legislation. We are, of course, building on the recommendations made by the noble and learned Lord, Lord Donaldson, and in many respects we are going further than his recommendations.
We held a wide-ranging consultation exercise of relevant organisations, including the ports and shipping industries, through, for example, the Chamber of Shipping, the British Tug Owners Association and the Royal Yachting Association; with waste disposal contractors and local authority associations; environmental organisations such as the RSPB and the WWF; and the Advisory Committee on the Protection of the Sea, of which the noble Lord, Lord Clinton-Davis, is chairman. We also conducted a considerable amount of research into the facilities currently provided by ports.

15
As a result of this consultation and research we have brought forward the clauses in the Bill. What is not yet obvious is exactly how the regulations should be framed. A large number of ports have now produced their own waste management plans on a voluntary basis. We know that others are in the pipeline. I suggest that we need to learn all the lessons that we can from these plans.
As I mentioned, in January I announced a package of 18 new measures to combat deliberate discharges from ships, and the Bill includes legislation to implement a number of these measures in relation to waste reception facilities, as we have heard.
Another of the measures I announced was the formation of a Maritime Pollution Advisory Group chaired by officials of my department. This group brings together a large number of organisations with an interest in pollution from ships. Its purpose is to find solutions to the problems caused to the environment by the operation of ships. A sub-group of members from the advisory group will meet in the next few weeks to review the plans which have been produced so far, and to identify examples of good practice. That is essentially the answer to the question posed by the noble Lord, Lord Berkeley.
The adequacy of the plans received so far will be examined by the Maritime Pollution Advisory Group of officials and organisations, and we will use that information to determine the best regulations to be brought forward under our enabling powers. We are considering an approval process and the Bill makes some provision for this. At the moment, as the Committee will know, the plans are voluntary.
There is a further reason for seeking enabling powers. Both the IMO and the European Commission are considering proposals for international measures on port waste reception facilities. As a result of the work we have undertaken, the United Kingdom is taking a leading role in several aspects of this debate. We must bear in mind that we do not yet know what form any eventual international instruments might take, and for that reason the clause introduces enabling powers. This would allow the regulations to be amended to take account of any international instruments.
The noble Lord, Lord Berkeley, concentrated on a provision in Amendment No. 15 concerning marinas, and I believe that I can give an answer that will fully satisfy the noble Lord. Amendment No. 15 would add the term "marinas" to the definition of terminal in new Clause 130B(3) in Clause 5. It is difficult to see how a marina could be classed as a terminal, but the existing clause is sufficiently wide to ensure that all genuine terminals are brought within the scope of the definition. Clause 5 defines a terminal as:
"any terminal, jetty, pier, floating structure or other works within a harbour at which ships can obtain shelter or ship and unship goods or passengers".
I can tell the noble Lord that marinas are included in the provision within the definition of a harbour, which is defined in Section 313 of the 1995 Act.
4.30 p.m.
Lord Beaumont of Whitley: I am most grateful to the Minister for all those details and for explaining what is happening and may be about to happen. However, I must say I did not manage to extract from his answer any serious objection to the amendment I put forward. He spoke at one moment about flexibility. It seems to me that what we have in the amendment allows for flexibility. He spoke about following the international arrangements which may be agreed, but under our amendments there is absolutely no reason why the Secretary of State should not follow the international arrangements. He also spoke about the need to amend and there is no reason, it seems to me, if our amendment is passed, why he should not amend. I am far from clear what the real objection is to this amendment going on the face of the Bill.
Viscount Goschen: Perhaps I may intervene a second time to assist the noble Lord, Lord Beaumont, and the Committee on the point about flexibility. The amendments as proposed would reduce much of the flexibility that is essential for these new proposals to work successfully. The Bill lists a number of measures which might be included in regulations. The amendments proposed by the noble Lord would require that each and every one should be included, regardless of the effect that this would have. I can certainly understand why the noble Lord, Lord Beaumont, has tabled this group of amendments, and I understand from his remarks that he accepts the thrust of what we are doing to improve the marine environment through control of waste management, and that he has an understandable desire to see the regulations introduced as quickly as possible. I would like to reassure the Committee that we have every intention of making regulations as quickly as possible and practicable. I have previously said that we will quickly introduce regulations on waste management plans first. The need for, and the extent of, regulations on charging and the use of facilities will be considered next.
That, essentially, is the reason for not wanting to follow the amendments which have been put down by the noble Lord. We have introduced a voluntary scheme at the moment and we are in the early stages of that scheme. We do not wish to be over-prescriptive at this stage, but there is not very much between us in terms of intent.
Lord Berkeley: I am grateful for the Minister's explanation in response to some of the remarks I made. Perhaps he can help me with his argument that enabling powers are the best way to proceed because they introduce more flexibility. Is that the way that the requirements for environmental impact assessment on construction projects were introduced into legislation? Is it the way that railway safety cases came in under the Health and Safety at Work Act, and perhaps air safety? Is there a precedent here which I, being comparatively new to this place, do not know too much about? I have a funny feeling that the Minister is perhaps being rather cautious on this issue.

17
I was also amused to hear that the 100 to 140 out of 350 ports which have submitted their plans are defined as a large number of ports. That is well under 50 per cent. I am very pleased to hear that the plans will be examined by the safety panel. Could the Minister let us know what is the approval process for this? Which agency will undertake the approval process, and—a question which everyone has to ask on these occasions—who will pay for the agencies' work on these things? Will there be any extra funding for it?
Lastly, would it be possible for the Minister to respond to my question about the consultation that the Government have had with other member states across the North Sea? I noted what he said about consultation with IMO and other organisations, but I am concerned specifically with Recommendations 27(d) and (f) of the noble and learned Lord, Lord Donaldson.
Viscount Goschen: The answer to the latter point is that we are actively working through the medium of the North Sea Conference, discussing provisions with other member states.
Ministers are cautious animals by definition, and where their caution eludes them they often find themselves at the wrong end of judicial processes. That is not the reason here. Clearly, we are all agreed that getting waste management plans right is the important issue. We decided to bring them forward on a voluntary basis, and we have also decided to enshrine the further developments in the Bill to give us powers to bring forward regulations. We do not want to bind ourselves over-prescriptively on what the nature of those regulations will be.
The noble Lord asked a number of questions about the approval process. That matter is still under consideration. We certainly need to get that right. We do not want a system which is over-bureaucratic, but on the other hand we need a system which enables plans to be properly scrutinised.
Lord Beaumont of Whitley: The noble Viscount says that he does not want to be over-prescriptive about what the regulations should be, but it does not seem to me that there is anything in our amendments as they stand which would ensure that it was over-prescriptive. The noble Viscount says he wants to ensure that the regulations are the most appropriate ones—that is probably what it amounts to—and all we are seeking to do here is to make certain that he actually does produce these regulations.
I have heard everything that the noble Viscount has said. I must say that I have not actually come across an argument against the amendments as they are tabled, only against what the noble Viscount, the Minister, seems to think is the spirit behind them. This is not against the amendments as they are tabled, only against what the Minister seems to think is the spirit behind them. This is not a moment to go further into this. I am sure that I and the noble Lord, Lord Clinton-Davis, and the noble Lord, Lord Berkeley, will take this away and think about it and see what we can mine out of the words of the Minister between now and the next stage. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 5 not moved.]
Lord Berkeley Lord Berkeley had given notice of his intention to move Amendment No. 6:
Page 4, line 44, leave out ("and") and insert—
("(LA) The Secretary of State shall by regulations make such provision as he considers appropriate in relation to").
The noble Lord said: I do not think there is any need to detain the Committee too long on this amendment because this comes under the same grouping of amendments which we have just been discussing. I believe the best thing is for me not to speak any further on this and not to move it. I shall not move the amendment.
[Amendment No. 6 not moved.]
[Amendments Nos. 7 to 30 not moved.]
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 31:
Page 6, line 31, leave out ("regulations may make provision enabling") and insert ("Secretary of State may by regulations make provision requiring").
The noble Lord said: This is simply a drafting amendment. The amendment stands in my name and that of the noble Lord, Lord Beaumont of Whitley. Amendment No. 31 speaks for itself. I beg to move.
Viscount Goschen: I was interested to hear the explanation of the amendments from the noble Lord, Lord Clinton-Davis, but they may be misconceived as to my understanding they reproduce provisions already included in the Bill. Clause 5 of the Bill provides the Secretary of State with the power to make regulations on charges for the use of waste reception facilities. Clause 5(4) provides that the regulations may prohibit charging for facilities or may place restrictions on such charges. It is this power which could be used to require port waste reception facilities to be free at the point of use.
Clause 5(1) allows harbour authorities to impose charges for waste reception facilities as part of ship, passenger and goods dues. The amendment by the noble Lord would achieve the same effect as the existing Clause 5(4). It does this by amending, and so removing, the power for harbour authorities to impose charges as part of other dues. The amendment, I would therefore suggest, is unnecessary. It also inadvertently removes an important element of the Bill.
These are just matters of drafting. I think that on further consideration we would probably reach agreement, or I hope the noble Lord would come around to my way of thinking.
Lord Clinton-Davis: I am not always prepared to do that but on this occasion I am persuaded that I should. Therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 32 not moved.]
Lord Beaumont of Whitley Lord Beaumont of Whitley moved Amendment No. 33:
Page 6, leave out lines 37 to 44 and insert—

19
("(2) The Secretary of State shall—

(a) make provision requiring the master of a ship,—

(i) if reasonably required to do so by a Departmental officer, or

(ii) in such other circumstances as may be required,

to deposit any waste carried by the ship, or any prescribed description of such waste, in waste reception facilities provided at a harbour in the United Kingdom, and

(b) order the detention of a ship which fails to deposit waste as required under paragraph (a) until such time as the master of the ship complies with the initial request.").

The noble Lord said: These amendments follow the same pattern as originally proposed. The amendment states that the regulations may,
"make provision requiring the master of a ship,—

(i) if reasonably required to do so by a Departmental officer, or

(ii) in such other circumstances as may be required, to deposit any waste carried by the ship".

This amendment of ours is designed to tighten up the measure. It states:
"The Secretary of State shall—
(a) make provision requiring the master of a ship"
to do the necessary things.
We have to some extent discussed the arguments. I beg to move.
Viscount Goschen: We have already been round this course and this amendment has been covered in previous discussions. If I am not right, perhaps I could have a further opportunity to talk to the noble Lord at a later stage. With that, I trust that he will be content to withdraw the amendment, but there might be matters that we can discuss between the various stages of the Bill.
Lord Beaumont of Whitley: I agree with the Minister that we have covered the principle of this already. I possibly should not even have moved the amendment, and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Berkeley Lord Berkeley moved Amendment No. 34:
Page 7, line 21, leave out ("enabling") and insert ("requiring").
The noble Lord said: To some extent this has been covered already. It is important that consideration is given to the ports to enable them to have an inclusive fee system to include the charging for waste disposal. In discussion with the RSPB, it is highly unlikely that any harbour authority would ever choose to implement an inclusive fee system voluntarily because they usually subcontract the work of waste disposal to others. We are aware that the Government are keen to avoid using enabling powers on an inclusive fee basis until they have seen whether the waste management plans are making a difference to the reception facilities, but it is something that will need to be looked at in the future when we have heard a little more from the Minister about how he proposes to take this forward. I beg to move.
4.45 p.m.
Viscount Goschen: This amendment was spoken to in a group that tackled similar issues. I trust that the noble Lord and the Committee will take my answer to that as being addressed to the whole group of amendments.
Lord Berkeley: I am happy with the Minister's answer and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Berkeley Lord Berkeley moved Amendment No. 35:
Page 7, line 35, at end insert—
("(11) Before exercising the powers conferred by this section the Secretary of State shall consult the relevant harbour authority and such bodies as represent the waste disposal industry.").
The noble Lord said: This is an additional small section to be added, requiring the Secretary of State to consult the relevant harbour authorities and the representative of the waste disposal industry about the waste disposal. I believe that we have discussed this before at some length. I beg to move.
Viscount Goschen: We have discussed consultation in various guises but I am not sure that we have discussed the provisions specifically relating to the amendment. The important matter from the Government's point of view is that we are always keen to ensure full and adequate consultation with interested parties. But I believe that, as drafted, the noble Lord's amendment would in part be unnecessary and in part be inappropriate. The amendments are unnecessary, because we have a policy to consult interested bodies before making regulations. The Government will of course consult far more bodies than those listed in the amendment. For example, we consulted about 40 non-governmental organisations in developing the current proposals on waste management plans, and, as we heard and as I read out, they included a great list from as many bodies as could be interested.
The amendment is inappropriate because it would force consultation in some circumstances where it really is not necessary. The new Section 130C(2) includes a power for a departmental officer to direct the master of a ship to deposit waste, and that is something that was talked about earlier. Nonetheless, there is a duty in the Act to consult and so I believe that this is already covered, and I feel that therefore the arguments that have been expressed about the consultation before hold good. We feel it is important to consult wherever possible, but our consultation actually goes wider than what is proposed here.
Lord Berkeley: I am very grateful to the Minister for that explanation and on that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaumont of Whitley Lord Beaumont of Whitley moved Amendment No. 36:
Page 7, line 39, leave out ("the statutory maximum") and insert ("£50,000").
The noble Lord said: The purpose of the amendment is to increase the fine for failure to comply with the requirements under regulations relating to the provision and charging for waste reception facilities and the preparation of waste management plans. Section 130B(1) of the proposed new Chapter 1 A of the 1995 Act sets out that, for example, a port authority that did not prepare a satisfactory waste management plan could only be fined a maximum of £5,000. In view of the potential seriousness of oil pollution, even of a single, deliberate discharge incident, and the potential for plans to reduce this pollution, we consider that the maximum fine should be increased to £50,000 in line with those fines for offences under Clauses 1, 10 and 15.
Accidents involving oil tankers such as the "Braer" and "Sea Empress" can have a serious impact on wildlife and local economies. However, in the context of shipping, it is estimated that more oil enters the sea from deliberate legal and illegal discharges. Between September 1995 and January 1996, the RSPB tells me that over 3,000 birds were affected by deliberate discharges of oily waste, and most of those can be attributed to just four incidents, including one within 20 miles of Flamborough Head, a key area for seabirds. As a result of this incident, 1,400 oiled birds were found on the Yorkshire coast, almost as many birds as were recovered after the "Braer". In all four cases, the source could not be confirmed but it is likely to have been a ship in each case.
Port operators have argued that surveys carried out by the Marine Safety Agency show that waste reception facilities are available and therefore responsibility for deliberate discharges lies solely with ship operators. We believe that the MSA surveys fail adequately to address the issue of facilities having the right capacity and being easy to use, and these factors are bound to influence the master's decision on waste disposal when under time or financial pressures. The increase refers to a maximum level. Therefore magistrates would be able to take into account the seriousness of the offence as well as the size of the operator involved. I beg to move.
Lord Berkeley: I will not detain the Committee long in supporting the amendment in the name of the noble Lord, Lord Beaumont of Whitley. It must be right to increase the maximum level of fine from £5,000, which, on the basis of some of the accidents we have seen in the last few years, is totally inappropriate, and I look forward to hearing what the Minister has to say about this.
Viscount Goschen: The level of fines is of course an important issue when one is looking at the deterrent effect, and we had a good and full discussion at the Second Reading of the Bill on issues concerning fines for deliberate discharge, which was an area touched on by both the noble Lords who have spoken. In fact, we are considering here a fine for not producing the required plans.
I certainly can appreciate why this amendment has been tabled. We also consider marine pollution from ships to be a very serious offence and we would wish the penalties to be appropriate to the severity of that
22
offence. That is why the Bill also includes clauses to increase the fines for other types of pollution offences to which I referred earlier. We have to recognise that the maximum penalties for this offence need to be consistent with those imposed for other similar offences and we believe that the fines in the Bill achieve that.
On a final point, I understand that if the case went to a Crown Court there would not be this maximum limit. In the spirit of the Moses Room procedures, and without any commitment, I undertake to consider this further. However, our view at the moment is certainly that the level of fines for the magistrates' court is an appropriate maximum.
Lord Donaldson of Lymington: In his considerations, would the Minister like to bear in mind that it is no answer to this problem simply to say that the magistrates have discretion, because if the magistrates are doing their job they will be considering what is the worst possible case we could have. Parliament has fixed whatever may be the fine for that level, and therefore they will scale it down accordingly? Putting it up to £50,000 I am not saying that is right or wrong—will have a knock-on effect all the way down. That may be intended or not, but it is no good saying that the magistrates have a discretion. I interpolate that point purely from a lawyer's point of view, rather than anybody interested in marine matters.
Viscount Goschen: I certainly welcome the legal advice from the noble and learned Lord, and that will constitute part of our considerations on this very important point.
Lord Beaumont of Whitley: In the spirit of the Moses Room, which is presumably a spirit of wisdom, I certainly accept what the Minister says, particularly if he takes into account the argument just put forward. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 37:
After Clause 5, insert the following new clause—
CARRIAGE AND DISPOSAL OF GARBAGE WASTE FROM SHIPS
("—(1) It shall be the duty of the master of every ship operating in areas defined in the Merchant Shipping (Prevention of Pollution) (Limits) Regulations 1996 to record, at entry into such areas, the volume, description and type of garbage on the ship at that time.
(2) It shall be the duty of the master of every ship to which subsection ( I) applies to record each day—

(a) the daily volume, description and type of garbage arising from the normal operation of the ship;

(b) the volume, description and type of garbage placed into port reception facilities at named ports in the United Kingdom;

(c) the date and time of placing of such garbage into port reception facilities; and

(d) the disposal of any garbage from the ship by whatever other means, including the volumes of garbage so disposed, the method and date of disposal.

(3) It shall be the duty of the master of every ship to which subsection (1) applies to record, on leaving such areas, the volume, description and type of garbage on the ship at that time and to make this record available on request to relevant authorities in subsequent port states visited.
(4) It shall be the duty of each harbour authority—

(a) to inspect and make a copy of all such records kept under subsections ( I ) and (2) of all visiting ships; and

(b) to maintain a register containing copies of all records so inspected.

(5) It shall be the duty of each harbour authority maintaining a register under subsection (4)—

(a) to secure that the register is available, at all reasonable times, for inspection by the public free of charge;

(b) to afford members of the public facilities for obtaining copies of the documents kept in the register, on the payment of reasonable charges;

(c) to supply members of the public with copies of the documents kept in the register, on payment of a reasonable charge for copying, not more than two months following receipt of a written request for such documents; and

(d) to ensure that all documents defined in subsections (1) and (2) are placed on the register within two weeks of their being brought into existence.").

The noble Lord said: I beg to move the amendment standing in my name and that of the noble Lord, Lord Beaumont of Whitley. We shall address not dissimilar provisions in subsequent debates on new clauses, but I turn specifically to this one. The background to this is that the Government, under the 1996 Merchant Shipping (Prevention of Pollution) (Limits) Regulations, took powers to protect and preserve the maritime environment to accord with Part XII of the International Law of the Sea Convention, to extend the area of the United Kingdom jurisdiction to 200 miles. We would suggest that, following the recommendation of the noble and learned Lord, Lord Donaldson, Recommendation 24(b), it would be appropriate for all ships operating in the new area of control to be required to keep records of waste arising on board and its disposal. That would also be in accord with the IMO proposal to require ships to carry garbage record books, which, I understand, the Government have made a commitment to support. Perhaps the Minister would care to indicate whether I am right about that.
How do we go about doing this? There are two essential components. One is that one would need a public register; and, secondly, that that public register would be subject to scrutiny by the public. Otherwise there is no point having a public register. In my submission, that would enable greater use of port reception facilities to be made by visiting ships because there would be a clear incentive to comply, and indeed a deterrent would also be operative in this respect.
The pollution regulation of the shipping industry would then be brought into line with the requirements affecting the land-based industry. In that context we already have public scrutiny because there are a number of public registers which apply, for example, under the Water Act 1989, the Environmental Protection Act 1990, and indeed the rather specific examples that one could quote. I see no reason at all why the shipping industry should not be subject to the same requirements as land-based industries. If the Minister disagrees with that, perhaps he would give his reasons for saying so. I beg to move.
5 p.m.
Viscount Goschen: As I would expect to happen on many occasions in the detailed consideration of the Bill, the noble Lord and I are both seeking to achieve the same thing, which is the proper disposal of garbage from vessels. However, there are some points on this amendment against which I would argue strongly.
The noble Lord suggested that the amendment duplicates existing regulations and I suggest that other parts are inconsistent with international law. There are other arguments which I will come to in the course of my remarks.
The key point is that, while it is clear that this amendment would entail considerable costs, it is far from clear what the environmental benefits would be. Under the UN Convention on the Law of the Sea, measures beyond the territorial seas such as those proposed by this amendment would need to be agreed by the IMO.
It is highly unlikely that the IMO would agree to the proposed measures, as they are largely already provided for under international regulation. The IMO will reasonably fear that such national regulations could undermine the uniformity of the MARPOL Convention, which is its strength.
From 1997, MARPOL will require ships to have garbage record books, similar to the records proposed by the noble Lord. That is where the duplication I mentioned comes in. My department is preparing regulations to implement this new requirement under the existing power contained in Section 128 of the Merchant Shipping Act 1995.
The noble Lord's amendment would place a duty on harbour authorities to inspect garbage record books and to maintain a register of all record books inspected. It would also require harbour authorities to make the registers available to the public.
I would suggest that what we are talking about is a considerable bureaucracy and bureaucratic task. It would involve an immense amount of work for little benefit. The amendment would require all vessels to be inspected by a harbour authority. In busy ports, this would be a substantial undertaking and extremely costly.
It is also unclear what purpose it would serve. Vigorous enforcement action should be taken to ensure compliance with regulations on discharges from ships. The noble Lord and I are as one on that. That is why the MSA and the Coastguard Agency of my department undertake port state control inspections and aerial surveillance of shipping. Port state control inspectors can already inspect ships, including any documentation they are required to carry. The point is that the vast register of information envisaged by this amendment would add little to the enforcement of regulations but would carry with it a substantial cost.
When we are seeking to get the maximum credibility for any regulations concerning garbage, and in the atmosphere of deregulation in which we find ourselves, we should be extremely cautious before imposing substantial additional bureaucratic burdens on businesses before we are sure that there would be

25
commensurate considerable benefits attached. For those reasons—the point about duplication and also the fact that we believe that a considerable task would be required in the inspection and maintenance of these registers—I hope the noble Lord will think again and reconsider whether he feels that his amendments would produce the environmental benefits in comparison with their very high cost.
Lord Clinton-Davis: It was right to put down the amendment, again simply to probe. I know concerns were expressed by, among others, the Marine Conservation Society, but I am persuaded that in this instance there would be no commensurate benefit compared with the actual saving of environmental damage that might arise.
As to the question of duplication, I note what the Minister has to say, and he is also probably right about that. I am persuaded that it would not be right to proceed with the amendment and, therefore, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 38:
After Clause 5, insert the following new clause—
("—(1) It shall be the duty of each harbour authority to inspect all oil record books having been issued to, and completed by, all visiting ships under Regulation 10 of the Merchant Shipping (Prevention of Oil Pollution) Regulations 1996.
(2) It shall be the duty of each harbour authority to maintain a register containing

(a) copies of any oil record book inspected under Regulation 10(5) of the said Regulations; and

(b) written record of any reports to the harbour authority made under section 136 of the 1995 Act.

(3) It shall be the duty of each harbour authority maintaining a register under this section

(a) to secure that the register is available, at all reasonable times, for inspection by the public free of charge;

(b) to afford members of the public facilities for obtaining copies of the documents kept in the register, on the payment of reasonable charges:

(c) to supply members of the public with copies of the documents kept in the register, on payment of a reasonable charge for copying, not more than two months following receipt of a written request for such documents; and

(d) to ensure that all documents defined in subsection (2) are placed on the register within two weeks of their being brought into existence.").

The noble Lord said: This is not altogether dissimilar, although here we are dealing with oil record books. The regulations of 1996, the Merchant Shipping (Prevention of Oil Pollution) Regulations, required oil record books to be provided to ships and they are also required to record a range of information about ballasting, discharging, disposing of oily residues, and so on.
The situation at the moment, as I understand it, is that there is power vested in the harbour authorities to inspect these but there is no duty so to do. In parenthesis so to speak, I ask to what extent these powers have been exercised since the merchant shipping regulations came into effect. I would imagine it is probably too early to judge, but perhaps the Minister could indicate whether
26
there have been discussions with the harbour authorities as to how they would go about the exercise of those powers.
There is no provision—again, as I understand it, and I stand to be corrected—for the inspection of the oil record books, nor is there any provision by way of a public register to make sure that there can be legitimate scrutiny of the ship's environmental records. I do not think there would be any great practical problem as far as ships are concerned in that connection because many of them are in port for some considerable time and, therefore, adequate time could be provided for such inspection and copying to be undertaken.
I should have added that under the 1995 Act discharges of oil into harbours are required to be reported to the harbour authority as well, so, to some extent, the ground is traversed but not wholly.
We believe that this is not a point that was answered in the previous debate, but I thought in the context of garbage it was not quite so significant. There is provision affecting land-based industry, where public scrutiny through the availability of public registers has been set up - again, the Water Act 1989, the Environmental Protection Act 1990, and so on. Perhaps the Minister would address the argument, because this is more significant, as to why there is a distinction between land-based industry and the regulatory regime which applies and the shipping industry and the much less stringent regulatory regime which applies there. It is a point worth making and noting and answering. Perhaps the Minister has an adequate answer and I look forward to hearing what it is. I beg to move.
Viscount Goschen: First, I should like to thank the noble Lord, Lord Clinton-Davis, for his acceptance of the arguments with relation to the previous amendment concerning garbage. The arguments are very similar here, and it is for that reason, and the additional burdens that this would create set against the benefits, that the Government do not feel that we could support this amendment.
The noble Lord commented on the role of harbour authorities with regard to inspecting the record books. I am not sure that he is right in his analysis, but that is a point I would like to check and come back on, and perhaps write to the noble Lord on the subject. Needless to say, I would of course copy it to all noble Lords who have spoken at the Committee stage of the Bill.
The important other distinction that the noble Lord made about ships versus land-based installations is, first, one of number—that there are very many more ships than there are land-based installations, and we must consider the volume of ships that come in and out. The second point is that it is easier to measure the discharges with land-based installations. A ship by nature is mobile and travels around to a number of different areas, so there is more uncertainty over the location of the discharge if it were to occur.

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Essentially the arguments here are very similar to the arguments put forward in the previous Amendment No. 37 relating to garbage. The burden would be considerable and it is difficult to see that the environmental benefits would match.
Lord Clinton-Davis: I am not quite so satisfied about that response. There is a disparity with land-based industry and the regulatory regime which exists there, which has been carefully thought out by the Department of the Environment in introducing its statutory provisions. I am not convinced that it is so difficult to establish the sort of regime that we have in mind here. Indeed, as I have said before, ships are required to provide a range of information about a whole variety of things, and the only aspect that is missing is that there is no duty on the part of anybody to inspect the records that are supposed to be maintained. One has to ask: what is the purpose of the records?
I repeat: have the harbour authorities given any indication to the Minister about how they will go about exercising the power that was vested in them this year, because that is highly germane? If they are not doing anything very positive about it, it would seem to me that the power is somewhat redundant, and I would deeply regret that. When the regulations were propounded there was a great deal of force in the argument that they were necessary; I believed that they were necessary and the Minister clearly did. But if powers are necessary, they should be capable of proper exercise. That is the point
I am making. It may be that a duty is going too far, but the Minister will, I hope, be able to satisfy me on that point. I certainly do not want to impose additional bureaucracy for no purpose on the port authorities, but it is much more important, I would have thought, to deal with the question relating to oil than to the garbage issue which we were discussing before.
I have listened very carefully to what the Minister has said and I propose to withdraw this amendment in due course, but before I do so perhaps he would respond to the two points which I made.
Viscount Goschen: There is first the point about whether there should be a duty of inspection, whoever it is by. Of course port state control inspectors can inspect the records. One is always rather loath to draw comparisons with a rather different situation, but the noble Lord might be under a duty to have insurance for his car but there is not necessarily a duty on every policeman whom he passes to inspect it. The point is that the record must be kept and it can be inspected by port state control inspectors.
The other point is with regard to the comparison—and I am interested in pursuing this because I believe it is an important point—between land-based installations and ships. The point that I was trying to make is that the information is in a different category. It is not quite as meaningful as for land-based sources. You would not know for instance whether a ship had discharged at a different point, whereas a land-based installation of course is fixed and does not have the opportunities for disposal elsewhere that a ship has. I hope I have not
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been labouring a very obvious point but, combined again with the additional burden, I hope that will be of interest to the noble Lord when he considers what to do with his amendment. Obviously, if he feels strongly about the matter, he might feel the urge to bring it back at a later stage.
Lord Clinton-Davis: The Minister has not dealt with the second leg of the argument concerning what discussions had taken place, because presumably when the 1996 regulations were introduced they must have been subject to some consultation with the port authorities. What indication have the port authorities given as to how they will in fact go about dealing with the enabling power that is vested in them? This seems to me to be rather important. I tend to go along with the Minister down the route that he has decided to chart because I do not want to impose unnecessary bureaucracy. On the other hand I want to feel sure—as I am sure he does—that this power will be exercised responsibly. Do the port authorities feel that they have inadequate resources to deal with this power? If so, how would the Minister deal with that issue?
Viscount Goschen: There is a difference of fact between us concerning the powers and rights contained in the existing legislation with regard to harbour authorities. I would like to do a little more research and perhaps pen him a line on that specific point of the power of harbour authorities with regard to oil records.
Lord Clinton-Davis: I await with interest this growing correspondence, which will beleaguer the Minister and no doubt beleaguer those who are going to receive it. Having regard to what the Minister has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.15 p.m.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 39:
After Clause 5, insert the following new clause—
REGISTER OF COMPLIANCE OF VESSELS WITH STATUTORY PROVISION
("—(1) It shall be the duty of the Secretary of State to maintain a register containing

(a) any documents produced under section 257(2)(a) or copied under section 257(2)(6) of the 1995 Act;

(b) any improvement notices served under section 261 of the 1995 Act;

(c) any prohibition notice served under section 262 of the 1995 Act;

(d) all other relevant or consequent documents associated with the serving of prohibition or improvement notices under section 261 and 262 of the 1995 Act;

(e) written details of any offences committed under sections 131, 139 or 266 of the 1995 Act; and

(f) written details of fines imposed for offences under sections 131 or 139 of the 1995 Act.

(2) It shall be the duty of the Secretary of State maintaining a register under this section

(a) to secure that the register is available, at all reasonable times. for inspection by the public free of charge;

(b) to afford members of the public facilities for obtaining copies of the documents kept in the register on the payment of reasonable charges;

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(c) to supply members of the public with copies of the documents kept in the register on payment of a reasonable charge for copying, not more than two months following receipt of a written request for such documents; and

(d) to ensure that all documents mentioned in subsection (I) are placed on the register within two weeks of their being brought into existence.").

The noble Lord said: Amendment No. 39 deals with improvement and prohibition notices, offences and freedom of access to information. What we are seeking to canvass here is whether legal notices and details of offences and fines relating to pollution by shipping should be kept on a public register, and of course should be available for public scrutiny.
Again, the Minister would say that, to draw the simile of the regime imposed upon land-based industry where there is regulation to this effect is not accurate as far as shipping is concerned. However, when it comes to details of offences and fines relating to pollution which has already taken place—and I am talking of course of pollution of the marine environment—that is rather different from the issues that we have been discussing hitherto.
Again, what I am sure the Minister and I are both seeking to do is to ensure that we have an effective regime for the protection of the marine environment. Therefore, I believe that these are legitimate issues to be raised and I will again await with interest the Minister's response. I beg to move.
Viscount Goschen: Again, I sympathise with the sentiment behind the amendment and I understand what the noble Lord is attempting to achieve. I believe that there would be a considerable burden on the enforcement agencies and unnecessary bureaucracy. However, I will explain how, in respect of serious cases, the noble Lord and I are at one.
My contention is that there would be no significant benefits to safety or to the prevention of pollution in disclosing details of all enforcement notices and prosecutions carried out by the agencies responsible for safety and pollution prevention.
Indeed, such information, often of a technical nature, could be open to misinterpretation and, more importantly, misused for commercial advantage and not to improve safety.
I certainly sympathise with the noble Lord's desire to expose those owners who operate substandard ships but we must maintain a sense of proportion. In serious cases, where ships are found to be unsafe to go to sea or present an unreasonable pollution risk, they are detained and details of their defects are made public every month. We are pushing for our European partners to do the same.
It was considered a brave move in some respects to publish the details of vessels that were substandard. I am pleased to say that it has attracted considerable attention from the media and we know that those who have responsibility for the vessels that are found to be substandard have a strong incentive not to have their vessels appear on this list.
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Regarding the intention behind the noble Lord's amendment, I agree that, in terms of detention, our policy at the moment publicises serious cases. However, this would not be the case in relation to disclosing details of all enforcement notices and prosecutions. For those reasons I would ask the noble Lord to think again about the practical effects of what he proposes.
Lord Clinton-Davis: I am not wholly convinced about this. One often hears arguments about competitive disadvantage and I tend to think that we overdo it in this country. Perhaps the Minister will explain how anybody would be at a competitive disadvantage if information of this kind were published in the way that I have suggested, through a public register. I am not convinced about that leg of the argument.
I am glad to know that the Minister shares my views about serious incidents, and I appreciate his point about issues that might be relatively unimportant. Perhaps there is a way of identifying issues that are relatively unimportant and therefore should not be kept on any public register and those that are of much greater significance.
We are engaged here in ways and means of trying to provide for deterrence. This may be one way. To ensure that the public would become aware of aberrant behaviour of a serious kind and that that information would be readily available is something that I believe most people would think desirable. Perhaps the Minister can give the Committee an assurance that in serious cases that already happens. To define a case that is serious and one that is not very serious I find quite difficult, but it is not impossible for parliamentary draftsmen to devise ways around obstacles that might appear. There is nothing that distinguishes the Minister from myself in seeking to address this issue as far as serious matters are concerned.
I was glad to note that the Minister said in passing that the publication of details of vessels that are substandard is something that the Government are pursuing. In that regard he can rest assured that he has the full support of the Opposition. Exposure of this kind is absolutely vital and I hope he succeeds in the discussions which are to take place, or have already been taking place, within the Transport Council.
That does not really address the issue with which I have been concerned here. On this matter, again, why? Here we have moved from the original issue of garbage which we addressed earlier. I readily agree with the Minister, on reflection, that that was not an issue which really merited the line that we addressed in the amendment but did not seriously wish to pursue.
Here, the situation is markedly different. The fact that there is an imposition on land-based industry is different from the other arguments the Minister has produced as far as the quality of the argument is concerned. We are talking about issues—and I would ask the Minister to make an assumption in his reply that I am talking about serious incidents—which impose a clear duty on the land-based industries, and it may well be that land-based industries would feel they are being discriminated against if there was no comparable provision on serious matters affecting the shipping industry. Logically there

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is no reason to which one could subscribe which would suggest that they were wrong if they were to advance that argument.
I ask the Minister to respond to those three main arguments that I have sought to adduce in support of the amendment.
Viscount Goschen: The argument is this: if the offence is serious enough—and we are all concerned to publicise the serious offences—to require the detention of a vessel, then that vessel will join the monthly list. Considerable attention will be drawn to it. The Marine Safety Agency issues press notices and, more often than not, these are picked up by the press and due publicity is given to them. I am always very pleased to see that happen. The noble Lord asked for an assurance about serious offences, and it is that if something is serious enough to warrant the detention of a vessel then the detained vessel and its details find their way onto the monthly list.
A register is rather different. Facts do not, I would suggest, jump out of registers but rely on people going to inspect them. A considerable bureaucratic burden would be imposed on the enforcement agencies in this case—it is a slightly different argument than before—but a burden nonetheless on those agencies which perform these functions to ensure accuracy and to make sure that a register was updated and kept accurate.
I feel that there would be a considerable bureaucratic burden. The very serious cases involving detention are picked up anyway, and publicised. Further, the making available of a very considerable quantity of information, I would suggest, would tend to hide the more serious cases.
I hope that that combination of arguments—the bureaucracy involved and the costs inherent in it, a possible slight clouding of the issue, and the fact that very serious cases requiring detention are already publicised with some vigour—addresses the important points raised by the noble Lord.
Lord Clinton-Davis: I am grateful to the noble Viscount for his response once again. I am not quite so convinced about it in this instance but I would certainly like to ponder the arguments and perhaps return to them at a later stage in the Bill. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 [Increased penalty for causing pollution, etc.]:
On Question, Whether Clause 7 shall stand part of the Bill?
Lord Clinton-Davis: This is an issue which relates to the raising of a fine on summary conviction for discharge of oil from £50,000 to £250,000. I raised the point on Second Reading that this would apply the fine to the owner or the master. Of course, the present law does that already. There is no distinction drawn between accidental and deliberate discharge. The question of
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severity is not addressed and my impression of the contributions that were made on Second Reading was that essentially this fine should apply to the owner because in practical terms there would be no way in which a master would be able to address fines which reached the very high limits of £250,000. After all, it is the owner who is responsible for manning the ship. He is responsible for its operations and the master is simply the representative of the owner. He is an employee. In those circumstances, I believe that, even where the master has committed the act of omission, the owner should be responsible in criminal law for what has occurred.
To that, I would simply add these observations. First, it is highly unlikely in practical terms that it would be the master who would be responsible for physically discharging the oil. Certainly, I do not think he could do it himself. It is much more likely to be the case that such discharge would arise through accident, perhaps through the folly of a more junior crew member, perhaps even a senior officer. But is it equitable that the master should be dealt with in exactly the same category as the owner? It would be totally unfair in the circumstances to which I have already referred that the master should be put into bankruptcy for the omissions of others when it is the owner who has the overall responsibility for those members of the crew who are acting, perhaps even under his orders, but certainly where he has the responsibility for ensuring that properly certificated people of adequate expertise are employed on a vessel.
The only other thing I would say about it is that the master does not, as I understand it, have any responsibility for the employment of the crew unless circumstances arise where he feels that he is obliged to send home those who prove themselves incompetent—by which time, of course, it may be too late.
From that I want to go on to deal with another question. I ask the Minister whether he can give us any commitment that fines payable under Clause 7 for an illegal discharge of oily waste will not be permitted to be paid by a shipowner's insurer, such as a protection and indemnity clerk. I was going to raise this issue in a later debate but it is appropriate that I should do so here. It seems to me that insurance relating to shipping somehow is treated in a totally different way from other insurance. There is no way in the ordinary civil law where you can, as far as I know, obtain an indemnity against fines for criminal prosecution. Why should there be a distinction here?
I gave notice to the Minister's office that I would raise this point. If he would prefer I will come back to it later because I gave him notice only today, but it seems to be a matter which gives rise to a serious issue of legal principle. If insurance for such fines is permitted, surely it would negate the impact of the fine on the miscreant, and that is the exact opposite of what we should be seeking to achieve.
In the dying days when I was a Minister, I remember raising this issue with the shipping insurance industry, which was very unhappy about drawing the distinction that I have now drawn. But I feel impelled to raise the issue again because I am not convinced that the

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arguments that were adduced then were credible or that the arguments that are adduced now are credible in this regard. Perhaps the Minister can cast some light on what seems to be an unusual situation. There is no way in which the insurers can provide an indemnity against a sentence of imprisonment. Why then should they be able to provide an indemnity against a fine which is imposed by a criminal court?
I thought it right to raise those points in the clause stand part debate, but I am perfectly happy if the Minister would prefer it if I were to allude to those arguments later on in the discussions that we will be having.
5.30 p.m.
Viscount Goschen: I welcome the opportunity that the noble Lord has given us in the discussion on Clause 7 stand part to look at the issue of fines with the associated issue of insurance. As we know, Clause 7 increases the maximum fine which a magistrate may impose for an oil pollution offence from £50,000 to £250,000, and for other ships' wastes from £5,000 to £25,000. There was considerable agreement across the House at Second Reading that these were important measures.
The noble Lord raised a number of points about the liability of the owner as well as that of the master. I can tell him that the owner would be liable, and the provisions in Section 144(6) enable even foreign owners to be prosecuted. On the point about the master and his own means, if it was decided to prosecute him, magistrates would have to take account of the defendant master's means.
Another point which has been raised is with regard to insurance against fines. The first thing to note is that shipping being an international business, most ships around our coast are indeed foreign flagged, and we cannot enforce what foreign owners and foreign insurers in foreign countries can do. There is that point of sovereignty in terms of enforcement.
We have heard reports that certain civil penalties have been paid by marine insurers. These reports have mainly related to penalties in the US. We have no direct knowledge of criminal fines being covered by insurers in the UK. This is an interesting area, and I would certainly want to take the opportunity offered by the noble Lord to consider it further and perhaps have discussions with the insurance industry in the United Kingdom to see where the state of play stands at the moment. Nonetheless, Clause 7 is a good one and I commend it to the Committee.
Lord Clinton-Davis: I have listened to what the Minister said, but when we are talking about the astronomical maxima—and I do not dispute the need for it as far as the owners of vessels are concerned—there ought to be a distinction drawn over what is practicable. It is not practicable in any case for a master to be put in a situation where he can be exposed in a court of summary jurisdiction to a fine of £250,000. It would make more sense, more logic, if in fact there were to be a distinction drawn between the master and owner as far as this is concerned.
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When we are talking about a matter where a master has been utterly reckless, it would be appropriate in the circumstances for the magistrates—although one cannot direct them—to consider transferring the case and the question of penalty to a higher court. There therefore needs to be a distinction drawn between the master and the owner in those circumstances.
When it comes to insurance against crimes, it may well be that the situation applies in practical terms to the United States up to the present time. Certainly theoretically it could apply here. I am very uncomfortable about the current regime. I note what the Minister says—that it may be difficult sometimes to enforce these penalties—but there are ways and means of doing it. One can detain a ship. I would like the Minister to indicate, although I am not sure whether he can now, whether there are powers to detain a ship pending the recovery of a substantial fine that is paid. I believe that such power exists and the practical qualifications which the Minister sought to introduce may not therefore be quite so substantial.
I note with interest that the Minister said he would like to be able to undertake discussions with the insurance industry. I will not withdraw at the moment. It would be very helpful if he could do that, and perhaps we will come forward with another amendment at a later stage in respect of which he could give us some help as to how far he has progressed with any such discussions. This is a matter of such importance in principle that it requires us to come back to it.
Viscount Goschen: I do not seek to prolong the discussion much further, but there are some important points to make. First, the master is in a very responsible position indeed in terms of the vessel. He is the man on the spot with ultimate control over the operation. He is in a position of considerable power. I am sure that the court would take into account the nature of the offence. If, for instance, it was a deliberate discharge or, for some particular reason, at the instigation of the master, that would obviously be particularly serious.
The point I was trying to make about enforcement was not about recovering the fines. I understand that vessels can be detained pending the payment of a fine. If one were trying to enforce that aspect of insurance against fines, it might well be that it is a foreign owner of a foreign ship in a foreign country making an insurance contract with a foreign insurance company, in which case the United Kingdom would have problems with jurisdiction in trying to get people overseas to conduct their insurance contracts in a manner which Her Majesty's Government might approve. Nonetheless, that does not detract from the fact that this is an area which I would like to consider and obtain more information about from the insurance industry, certainly in this country.
Lord Clinton-Davis: I thank the Minister for that. Again, I am not convinced about the practical application in the way the Minister has described. But he is to have discussions and that is all important. I hope we will be able to have discussions before we come

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back to the Report stage of the Bill, so that he will be able to inform us—perhaps not finally, but at least as to the discussions he has had up to that point.
The master is in a position of considerable power. However, I like to feel that penalties are realistic. To give a court powers to impose what in almost every case one can think of is an impossible penalty as a maximum is in a way to degrade the penalty. Perhaps the Minister will think about this again. I do not ask him to give a commitment but to think about it again. There may be a case for drawing a distinction between the position of the master and the position of the owner. It is perhaps a different thing when we are talking about a maximum which is far less, but now we are reaching into the realms of £250,000 and I do not think the court should be given the wrong signals. That is the point I am making here.
Viscount Goschen: I re-emphasise the point that the right signals are given; namely, that the increase in the maximum is a considerable sum indeed. A number of parties could be liable. We have discussed the role of the owner. With regard to an individual I re-emphasise two points: first, the master's means would have to be taken into account. Secondly, as regards the matter going to appeal, I understand there have been instances some time ago where substantial fines were imposed on individuals, which were subsequently overturned on appeal. I know that the noble Lord is much better versed in these legal matters than I am, but they are important points to consider.
Lord Clinton-Davis: We ought to stop this debate because the Minister is coming round to my point of view, I suspect. I do not want to deter him from that but I think he is not quite ready for it. If we are talking about the decision of the magistrates' court being overturned because of its over-zealousness in imposing fines on the master hitherto, how much more likely is it—given that one tends to over-react perhaps—that the court may be misled in some respect? As regards the question of means, that again seems to suggest how impossible it would be in almost every example one could think of for a master to be capable of discharging a penalty of such substance.
I do not ask the Minister to rise again. He has indicated that he will deal with the question of insurance through consultation. I ask him simply if he—a nod will suffice—will think again about the point I have made as to the disparity of responsibility in terms of fines between the master and the owner. I do not ask him to give us any commitment that he will move in the direction that I have indicated. However, I should like him to think again about it. Perhaps I could meet him to discuss it.
5.45 p.m.
Viscount Goschen: I am thinking almost all of the time, but I should be more than happy to meet the noble Lord. If he felt that there would be value in that, my door would be open. One would have to be careful about sending the wrong message again to the court. What we
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are saying here is that those who are responsible for pollution should know what the consequences are, and the consequences would be serious indeed. Of course, however, the court always aims to match the penalty to the offence committed and to the means of the defendant to pay. That, I promise is my final intervention on the point.
Lord Clinton-Davis: I thank the Minister again. I say in conclusion on this point that, as a lawyer, I prefer fines. I take the Minister's point absolutely. I do not want to see courts taking an humane attitude about serious acts of pollution or other acts of degradation as regards maritime affairs. I do not want that at all, but I want to be practical. That is the plea I make as regards further discussions or consultations that he will undertake.
Clause 7 agreed to.
Clauses 8 and 9 agreed to.
Schedule 1 [Amendments of Merchant Shipping Act 1995 relating to inspection and detention of ships]:
Viscount Goschen Viscount Goschen moved Amendment No. 40:
Page 26, line 43, after ("a") insert ("qualifying").
The noble Viscount said: The purpose of the amendment is to correct a reference in Schedule 1 dealing with inspection and detention from "a foreign ship" to "a qualifying foreign ship". The distinction is necessary when referring to ships which are entitled to exercise the right of innocent and transit passage. The term "qualifying foreign ship" is defined in Schedule 6 of the Bill. I hope that the Committee will accept my explanation. This is very much a matter of drafting. I hope the Committee will feel able to accept the amendment. I beg to move.
On Question, amendment agreed to.
Schedule 1, as amended, agreed to.
Clause 10 [Power to require ships to be moved]:
Viscount Goschen Viscount Goschen moved Amendment No. 41:
Page 10, line 21, leave out from beginning to ("give") in line 22 and insert ("Subject to subsection (2A) below, the Secretary of State may, for any one or more of the purposes specified in subsection (3) below,").
The noble Viscount said: In moving Amendment No. 41 it may be for the convenience of the Committee if I also address Amendment No. 42. We have introduced these amendments to clarify that the powers to direct ships to be moved on cannot be used to direct a UK ship to leave UK waters. That, of course, would not be appropriate. These amendments make explicit that the power provided by Clause 10 would not be exercised to issue such a direction. It would still be possible, however, for the Secretary of State to direct a UK ship to be moved to, or to be removed from, a specific part

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of UK waters. I hope that the Committee will feel able to accept these amendments. I beg to move.
On Question, amendment agreed to.
Viscount Goschen Viscount Goschen moved Amendment No. 42:
Page 10, line 30. at end insert—
("(2A) The power of the Secretary of State under subsection (2)(a) above to require a ship to be removed from United Kingdom waters is not exercisable in relation to a United Kingdom ship.").
On Question, amendment agreed to.
Lord Berkeley Lord Berkeley moved Amendment No. 43:
Page 1 I, line 9, at end insert—
("( ) Where the services of a pilot are required to move the ship, nothing in this Act shall cause the pilot to contravene the requirements of section 21(1) of the Pilotage Act 1987.").
The noble Lord said: Amendment No. 43 stands in the name of my noble friends Lord Clinton-Davis and Lord Beaumont of Whitley. As the Minister has said, Clause 10 allows the Secretary of State—for safety reasons or to prevent pollution—to remove ships anywhere, unless they are UK ships, if they are likely to cause, or are causing a hazard, or are causing pollution. This conjures up visions of the Secretary of State, or perhaps even the Minister, in a helicopter with a hard hat on, or perched on the end of a cliff, taking charge, as he did so impressively at the time of the "Sea Empress" disaster. There is one point here which concerns me. It is perhaps rather small but nonetheless extremely important. The Secretary of State has given himself the power to take any such action as may be required to be taken under his direction. That also includes, presumably, calling on a pilot to move a ship.
It is important of course that there should be pilots available to assist in the movement of ships. However, it is not impossible that the Secretary of State in issuing directions could require a pilot to take actions which could cause him to breach the duties of a pilot and to breach the requirements of legislation. As I am sure the Committee knows, my noble friend Lord Clinton-Davis is, I believe, President of the British Airline Pilots Association, so he is, of course, a great expert on this matter. It is important that some form of immunity be granted to pilots to make sure that, when they are acting legally for the Secretary of State, they are not acting illegally under the terms of some other measure. This amendment has been drafted in the hope that the Minister will at least consider it and perhaps come up with something better. At least I hope he will respond to what I believe is a serious problem for the pilots. I beg to move.
Viscount Goschen: The noble Lord, Lord Berkeley, has identified the need to have powerful intervention powers but not to allow those powers to be taken too far in some circumstances. It is certainly not our intention that the power to move ships on should inadvertently cause pilots to contravene Section 21 of the Pilotage Act 1967. We do not believe that this could happen. However, we are prepared to consider the issue because it is an important point. We may table a Government amendment to clarify the situation at a later stage if on additional reflection we consider that an amendment is necessary.
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With the assurance that we recognise the point behind the noble Lord's amendment, I ask him to withdraw it. We shall consider it to see whether we can come up with something that covers the point.
Lord Clinton-Davis: While my noble friend Lord Berkeley ponders his position, I should correct a matter for the record and declare an interest. I am president of UK Pilots (Marine). As I am also president of the British Airline Pilots Association, I am master of both the air and the sea! Perhaps I am up in the air and all at sea at one and the same time.
Viscount Goschen: The noble Lord is chairman of a great many organisations and president of a few others as well. We certainly welcome his expertise in pilotage matters. We are all agreed that we would not want an unfortunate circumstance to arise whereby a pilot might inadvertently contravene some other legislation.
Lord Berkeley: I am extremely grateful to my noble friend Lord Clinton-Davis for clarifying my rather stupid mistakes earlier. I am grateful to the Minister for his commitment to look at this matter again. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn. Clause 10, as amended, agreed to.
Clause 11 [Ships receiving trans-shipped fish]:
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 44:
Page 12, leave out lines 25 to 28.
The noble Lord said: The amendment would put into immediate effect the requirements to be met for the issue of fish transhipment licences. I want to probe the Minister on this matter. We felt that this was perhaps the best way of doing so. How soon could action be taken in the circumstances that are envisaged in the clause?
Pollution caused by klondykers—notably in Shetland but also elsewhere in the United Kingdom—is a serious and continuing problem. The Minister could provide the power to make regulations. That is an important matter.
At Second Reading the noble Viscount said that this clause
"provides for transhipment activities to be suspended if insurance requirements are not met".—[Official Report, 7/11/96; col. 774.]
We welcome that assurance but we feel that the requirements that he has in mind should not be delayed. The timetable for the regulations is extremely important. I appreciate that we are in the tail-end of this Parliament and it may be difficult for the Minister to come forward with suitable regulations. However, if the Bill is enacted—whichever party is successful in the general election—this will be a matter of great moment. I hope that the new Government will be encouraged to provide the regulations at an early stage. Therefore, I hope the Minister can give us some idea of his timetabling because it is, to my mind, a very important issue.
The Minister may well say there should be enabling powers at this stage to allow greater flexibility through secondary legislation. If, in fact, he were to consider a counter argument it would be this and it would be contained in Amendment No. 52. Guidance could be

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issued from time to time by the Secretary of State on requirements to be taken into consideration when issuing licences. This guidance should provide the necessary flexibility. If that were the case, the regulation could be dealt with on the face of the Bill rather than through the mechanism the Minister suggests. There is not much difference between the Minister and myself on this, but we should be empowered to take urgent action to deal with what has become a very serious situation.
Lord Beaumont of Whitley: I see that Amendment No. 44 is grouped with Amendments Nos. 45 and 46 and with a number of others, but the noble Lord, Lord Clinton-Davis, has dealt with only the first one. Was that his intention?
Lord Clinton-Davis: I am so sorry. I should have said that I thought it would be for the convenience of the Committee to deal with this grouping as suggested, but I can move only the first of the amendments, which is Amendment No. 44.
6 p.m.
Viscount Goschen: As ever, the noble Lord has raised the important issue of klondykers which has proved to be a catalyst for the Government bringing forward a number of measures in the Bill. I am just making sure that we have the ungrouped grouping correct and that we are looking at the right amendment.
The principal point that the noble Lord asked me about was when we would take regulations forward. As I recall, there was also the point about flexibility versus prescription. Certainly, as soon as the Bill receives Royal Assent and becomes law we will take forward consultation on klondyker regulations with the aim of enforcing them for the winter of 1997. That short timescale shows the urgency with which we consider these issues and the importance we attach to them.
A number of other amendments in this group touch on a very similar subject. I shall not speak to them now as I understand that they have been decoupled. We want to give the maximum flexibility for bringing forward regulations which have the best possible effect. We also want to make sure that they are as powerful as possible and that we have taken into account issues raised during consultation. For that reason we do not want to bind our hands unduly on this matter. However, a couple of points which the noble Lord raised apply to the group as a whole, so if the noble Lord would care to withdraw this amendment we might continue the discussion with regard to the rest of the group and I can give him a rather more full answer.
Lord Clinton-Davis: I am perfectly prepared to do that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaumont of Whitley Lord Beaumont of Whitley moved Amendment No. 45:
Page 12, line 29, leave out ("may") and insert ("shall").
The noble Lord said: I did not notice the decoupling, but I am very happy to speak to Amendments Nos. 45, 46, 48, 50 to 55 and 57. The amendments deal with the issue of licences to klondykers and seek to transform the existing enabling powers into a requirement on the face of the Bill and to add the threat of not issuing further licences as an additional incentive to comply.
We dealt with a certain amount of this in the last debate, and we know that klondykers are foreign-flagged fish factory ships which collect fish for processing from fishing vessels in UK waters subject to a transhipment licence. Clause 11 provides enabling powers to link the issuing of fish transhipment licences to klondykers to certain safety and pollution prevention criteria. This is based on Recommendation No. 77 of the Donaldson report. The noble and learned Lord, Lord Donaldson, advised that the system should be in place by the winter of 1994/95. The interim step of providing enabling powers further delays the implementation of that important measure.
Since the Donaldson report was published in May 1994, klondykers have continued to pollute UK waters. For example, the Shetland Islands Council has reported at least six oil pollution incidents involving klondykers at Lerwick between May 1994 and the present. Five of them were relatively small, but in one case bad weather led to the vessel sinking and causing a spill of bunker oil.
The threat of monetary fines is unlikely to be sufficient to deter some klondykers from evading those requirements. That is because experience in Shetland has shown that certain klondykers (for example, the "Borodinskoye Polye" and the "Pionersk") have a poor record of paying what they owe, at least regarding clean-up bills. Fines should be supplemented with a threat that no further transhipment licence will be issued unless and until fines have been settled and sub-standard features have been rectified. That seems to me to be only commonsense.
We also believe that adequate insurance should be an additional prerequisite for the holding of a transhipment licence. That is in line with Recommendation 77 of the Donaldson report. For this reason, the amendment to Clause 11, page 12, line 41, introducing the requirement for adequate insurance should also be supported. It addresses the issue of the level and type of insurance required and removes the interim step of the enabling powers provided under Clause 15. Enabling powers are sufficient for other forms of shipping, but not for these. I beg to move.
Viscount Goschen: The rest of this group of amendments relates to the very important issue of klondykers. The Government have long recognised the importance of having proper control over these vessels and the dire effect that can occur when that is lost. I have seen myself at first hand the effects of accidents involving klondykers in Shetland.
I have listened to the noble Lord's proposals very carefully and to the debate on the previous amendment which was closely linked in many respects. I hope that my arguments will show that the specific provisions of the amendments tabled by the two noble Lords are not

41
required. However, Amendment No. 55 contains a useful suggestion which I would like to reflect upon, but its drafting is unclear and I will come to that in a moment.
Our approach in the clause is, first, to set out safety standards in the strongest possible terms by giving them the force of legislation, and secondly, to provide the toughest possible enforcement mechanism to help us to implement these standards as vigorously as we can.
First, I see no case specifically for removing the definition of "transhipment licence". In fact, that was the subject of Amendment No. 44 which was spoken to separately. The provision is needed in order to make clear that it is klondykers in possession of such licences to which the provisions of Clause 11 apply.
Secondly, it would not be helpful to set out safety standards in any form other than regulations. We are taking in primary legislation a power to intervene to a substantial degree in commercial activities and to create new offences. It is right that the details of what we propose should be subject to parliamentary scrutiny, rather than being left entirely to the Secretary of State. This is the principle which applies to other maritime safety standards and to the insurance requirements which may be introduced under Clause 15 and which are referred to in this clause.
Thirdly, it would not be right to require the Secretary of State to cover all the aspects referred to. We shall certainly bring forward regulations if the clause is enacted as drafted, according to the timescale which I elucidated to the noble Lord, Lord Clinton-Davis—that is, essentially, as soon as possible. We cannot be sure at this stage exactly what they will cover. Indeed, we would want to consult on them to make them as effective as possible. Again, we return to an argument rather similar to one we have heard in response to previous amendments: that we do not want unduly to constrain our flexibility.
Fourthly, with regard to Amendment No. 55, I am not sure that it entirely makes sense. It would add a requirement to new Section 100G(4) that if a transhipment licence is revoked, no new licence would be issued until any fines and inspection fees had been settled and the contraventions specified in the prohibition notice had been remedied. Normally the klondykers transhipment licence will not be withdrawn from ships which are subject to a notice under Clause 11. The effect of the Clause 11 notice is to over-ride the transhipment licence. The Clause 11 notice would not be withdrawn until the defects had been remedied. This is, essentially, already provided for. However, we have at present no requirement that detention notices are not lifted until all fines and fees have been paid, and such a requirement may very well be sensible. That is the area which the noble Lord, Lord Beaumont, highlighted. If I may, I will take that back and consider further whether an amendment is required on this issue. At the very least, I shall write to the noble Lord explaining our reasoning.
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For those reasons, I hope that the noble Lord will accept where we are coming from with regard to regulations concerning klondykers and will feel able to withdraw his amendment.
Lord Beaumont of Whitley: I am grateful to the Minister for what he has said and for the fact that the Government will consider holding up the issuing of the licence until the fines have been paid.
The noble Viscount referred to consultation. The DoT issued a consultation document in June of this year and has consulted on klondykers. Why does the Minister want to delay further and consult more?
Viscount Goschen: We have indeed consulted already on the issue of klondykers, but not on the detailed provisions. In the spirit of modern government under which we live, we believe that it is best to obtain the views of interested parties on specific requirements that we may bring forward in order to improve the regulations that eventually emerge.
Lord Greenway: Before we leave the question of klondykers, can the noble Viscount confirm that klondykers come within the overall remit of port state control and can be inspected even though they tend to inhabit rather out-of-the-way places?
We have heard about the incidents up north, so I was very surprised last Monday to see some 14 of these ships anchored off Weymouth, which is very much closer to home. Thankfully, there has not been an accident in that part of the world yet, but I gather that these ships, some of which looked extremely rusty, refuel each other there. I know the port authorities in Weymouth are very worried that there might be an incident sooner or later. I wondered whether the usual inspections of port state control apply to those vessels, and how many have been inspected recently.
Lord Clinton-Davis: Before the noble Lord sits down, would he define whose home he was referring to?
Lord Greenway: Not mine! I was just meaning nearer to us here in London.
Lord Berkeley: It depends where home is.
Viscount Goschen: The sedentary intervention from the noble Lord, Lord Berkeley, rather sums it up. It depends where home is.
The noble Lord, Lord Greenway, raises a very important issue and put his finger on the difficulty: klondykers are no different from any other vessels at the moment in terms of being subject to port state control inspections, but that is only when they come within the ambit of the regulations when they are in or, I understand, very near to, a port. Often they are outside the power of the current regulations, hence the difficulty, and hence our addressing this issue of the transhipment licence without which they have no business. We are seeking to use other controls to impose

43
higher standards on klondykers. It is something that there has been a great will to do for some time, and this Bill provides a good opportunity to do just that.
Lord Beaumont of Whitley: Although I am dubious about the spirit of "modern government", it does say that we should consult more and I am totally in favour of consultation. This is an area which calls for very strong action and a lot of people are getting away with something which is not far short of murder. I hope the Government, having consulted, will act extremely firmly but, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 46 not moved.]
6.15 p.m.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 47:
Page 12, line 41, at end insert (", and
(e) the purpose of ensuring that an adequate indemnity is available in relation to the costs of preventing or reducing pollution or the provision of compensation for loss and damage, or both of them, caused by pollution.").
The noble Lord said: I beg to move Amendment No. 47 and for the convenience of the Committee to take with it also Amendment No. 49 standing in my name and that of the noble Lord, Lord Beaumont of Whitley. Clause 11, as we have heard, is the way in which the Government propose to implement Recommendation No. 77 of the Donaldson Report.
I want to address the question of adequate insurance at this stage. The recommendation was that vessels should have adequate insurance, but Clause 11 seeks to address this only by the indirect method of reference to the proposed new Section 192A which is to be brought in by Clause 15. I believe I am right about that.
Clause 15 provides powers to require insurance for ships while in UK waters. By adding the requirement that the vessel carries adequate insurance as a condition of the issue (which still has to be implemented) and/or continuance in force of the transhipment licence under Clause 11, the Bill would do the following things: first, it would provide an important opportunity to ensure that klondykers possessed adequate insurance before a licence was issued, in addition to the general requirement for all vessels to hold insurance while in UK waters unless they are exempted from doing so. Secondly, it would ensure that such vessels carried adequate insurance while outside the territorial sea. Thirdly, Clause 15 is dependent upon inspection to check that the requirement for insurance is complied with, whereas including that requirement in Clause 11 (and in the requirements for the issue of a licence in the first place) would ensure that checks are made on the first granting and/or continuance of the licence.
What we do not know is how the Government would go about ensuring monitoring in relation to the provisions of Clauses 11 and 15 regarding the adequacy of insurance. It is not an easy matter, and it occupied a number of paragraphs in the report. The present
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situation is clearly totally unsatisfactory. I am talking about the situation up to the present time—that is, before the Bill is enacted.
I am glad that the Government have grasped the nettle and introduced the provisions they have, but I worry about whether they are adequate. I ask the Minister in particular to give an assurance to the Committee that there are ways and means of ensuring that these insurance policies and their adequacy can properly be monitored. Scraps of paper are readily available in the shipping industry. This could easily fall into that category and one does not want that situation to persist. I hope the Minister will be able to give that assurance, but I shall sit down at this stage and listen with interest to what he has to say.
Viscount Goschen: I listened carefully to what the noble Lord said about the issue of adequacy of insurance, and about not simply having a worthless piece of paper. Perhaps I may advise the noble Lord to look at Amendments No. 72 and 73, which are government amendments, because they refer to insurance as a whole and its adequacy, and not just with regard to klondykers. Amendment No. 72 states:
"after ('specified') insert ('and satisfying such other requirements as may be so specified')".
Insurance as a whole is dealt with a little later in the Bill, and I shall come back to that in a moment. However, I believe I can be helpful to the noble Lord. We agree that we should take enabling powers to require that klondykers hold insurance, or some other means of meeting liabilities. Powers to do so are contained in Clause 15 containing new Section 192A, which deals with insurance for all ships of which klondykers could be specified as a category. Amendments Nos. 72 and 73 relate to Clause 15.
We have also included provisions in the Bill to link this requirement to the transhipment licence. This is achieved by means of new Section 100G, which states that if regulations under new Section 192A (contained in Clause 15 which, as we have heard, provides for compulsory insurance) are contravened, a notice can be served prohibiting transhipment activities. The liabilities which can be provided for under new Section 192A include pollution damage. The noble Lord, Lord Clinton-Davis, indicated that he was keen that that should be covered. This effect of the provision may not have been apparent as the word "insurance" does not appear in the clause. However, perhaps when the noble Lord reads my somewhat tortuous explanation of how to find one's way around the Bill, he will recognise that we take on board the points that the noble and learned Lord, Lord Donaldson, made at Second Reading about making sure that insurance contracts were more than mere pieces of papers. I hope that the noble Lord will be satisfied with that explanation.
Lord Clinton-Davis: It may have slipped by me—I do not disguise the fact that things do slip by me in my old age—but what I wanted to know was the Minister's thinking on the adequacy of insurance. I believe he has dealt with it by cross-reference, so to speak. Obviously, he has in mind using regulations to define that term. I

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have merely picked it up in the amendment that I have drafted. I recognise that the amendment is deficient but, as the Minister knows, we simply wanted to promote a debate about it.
The way in which you define "adequacy" is of course of maximum importance. What the Minister did not say—unless I missed it—was how you go about ensuring that this is properly monitored. If an insurance policy is issued and is regarded at the time as adequate, what happens if circumstances then intervene which have the effect of rendering it inadequate in the particular circumstances which then arise? Such a situation could arise once the original licence becomes operative or subsequently. How would the Government go about ensuring that that situation can be properly supervised and monitored effectively? If they cannot, there could be a lacuna. Perhaps the Minister would like to reply to that point.
Viscount Goschen: I do not think there is necessarily a lacuna; there is obviously a difficulty of definition. If we briefly turn our minds to Amendments Nos. 72 and 73, the government amendments which are designed to make the very suggestion the noble and learned Lord, Lord Donaldson, made at Second Reading, I particularly draw the attention of the Committee to Amendment No. 72, to add the words:
"and satisfying such other requirements as may be so specified".
It sounds like a triumph of draftsmanship to say "and other requirements". That is essentially what we are trying to do. In other words, the regulations when brought forward concerning insurance as it affects the whole of the Bill and not just klondykers could be specified by the Secretary of State to put in certain conditions with regard to the type of insurance contract that would satisfy the Secretary of State. It is clear that further work would have to be done on that to decide exactly what the qualifications would be. But the point is that the amendment recognises that there is a difficulty in the Bill as it now stands and gives the opportunity for the Secretary of State to specify additionally what sort of insurance would be acceptable.
The short answer is that we recognise the problem. We have brought forward amendments to deal with it. Further work will go on between the time the Bill receives Royal Assent and when regulations are brought forward. That will allow the Secretary of State to be more specific about what would be acceptable and what would not.
Lord Clinton-Davis: I thank the Minister, but I am still not satisfied about this because it is such a fundamental issue. The whole question of insurance was the subject of the report and a number of paragraphs in the report of very considerable importance. Then the Government produced a draft Bill. The draft Bill was the subject of consultation. This is an important matter and if the Minister wishes to reflect—
Viscount Goschen: I am listening.
Lord Clinton-Davis: Yes, the Minister is listening. It is important to reflect on what happened during the
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consultation period. These were matters which must have been deliberated upon and yet we are in a situation which does not carry us very much further.
The Minister is saying that the Secretary of State will introduce such other requirements as may be so specified. But surely we can have some idea what is current thinking about that. Is it as vague as the amendment would suggest? I do not want to embarrass the Minister by encouraging him to say something which he would prefer to keep confidential at this stage, if in fact confidentiality is justified, but the Committee is entitled to know what is the thinking in this regard. All we are being told is that the Government are going to have to clarify their thoughts about this in due course after more consultation with the industry. There are great difficulties about it. But unless the Committee, or later on the House, can feel that there is real substance in what is going into the Bill or into regulations, we are left in a very vague position.
Because the matter is of such importance I am not sure that we would be well advised to leave it as such. Maybe today, but certainly when we come to consider the Bill on Report or at a later stage, we should return to the issue. Parliament would not be doing itself a great service if we were to leave the matter in such a vague state.
I do not encourage too much correspondence on these matters. I know that the Minister is willing to write, but perhaps we need clarification before the House in one shape or another rather than correspondence between those who are attending the Committee.
Having said that, I would ask the Minister to expatiate on those points.
The Earl of Caithness: I wonder whether I might speak at this stage. Given the Government's Amendment No. 72 and given, as the noble Lord, Lord Greenway, has just mentioned, the difficulty in which the klondykers find themselves in regard to port state control and the answer that my noble friend gave that that is why other means have to be used, would the Government's proposals allow the necessary flexibility to impose a different form of requirement of insurance on certain types of shipping? In other words, the very flexibility that is upsetting the noble Lord, Lord Clinton-Davis, is the very strength of the Government's position in that it can impose some type of different insurance on the klondykers as opposed to those coming to the other end of the mainland and Shetland, the oil tankers.
Lord Greenway: Following the noble Earl, Lord Caithness, I should like to re-emphasise the practical problems one has with these klondykers. Coming from a very fractured shipping set-up, from the Soviet Union and other countries such as Bulgaria and Romania, where once things might have been organised on quite a reasonable basis but now that has all fallen apart, half the time they do not know what they are doing. They have no money to pay the crews or to pay for provisions, and it is very difficult situation. The suggestion that the noble Earl makes of possibly a different level of insurance might be something for us to look at, but the

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whole area is fraught with difficulties. That is why klondykers should be kept as a separate issue, if possible.
6.30 p.m.
Viscount Goschen: The debate on this matter is particularly helpful. It is the very difficulty of finding a definition at this stage that we all recognise. For instance, the noble Lord, Lord Clinton-Davis, takes the approach in his amendments of using the word "adequate". That does not answer anything either. It is essentially giving the Secretary of State the flexibility to impose additional controls. For example, where a number of insurance companies might turn out to have written worthless contracts, the Secretary of Sate could then, by regulation, say that the certificates provided by those companies were no longer to be considered adequate, and we could develop procedures for port state control inspectors to assess certificates. If an insurance company or other source of financial security proves defective, again we can use that in later cases.
The point is, we recognise the difficulties that exist and we are seeking to bring forward provisions that allow the Secretary of State to insist on perhaps more stringent provisions than would normally be the case. It is impossible for any one country to be the world's insurance policeman and to know every insurance company in every country—a point raised by the noble Lord, Lord Greenway. Perhaps in a number of newly-emerging countries there are so-called insurance companies about which we might not have the same confidence as we would about some others in other parts of the world. We will have this debate again when we come to the government Amendments Nos. 72 and 73.
I recognise the problem. We all are concerned to make sure that insurance means exactly that and is not a worthless piece of paper. There is no easy definition at the moment of what that might be. We can ask, for instance, for a bond if the insurance is suspect. That is another avenue. But we recognise the problem; it is one that was highlighted by the noble and learned Lord when we discussed this at Second Reading. The way we have sought to deal with it in the Bill as currently drafted is to give the Secretary of State quite flexible powers to insist that certain qualifications must be met to make the insurance valid. To that extent it is a considerable improvement in terms of the powers of the Secretary of State.
Lord Clinton-Davis: I am prepared to accept that it is an improvement on the way in which the Bill is currently drafted, but I do not accept the stricture that I am opposed to flexibility. Surely in a situation like this you can have a staged approach. Because there is currently a particular problem with klondykers which is unacceptable I would have thought that the Government's initial thoughts should be in that direction, and a widening of the process to other forms of shipping issues could be dealt with subsequently. The whole purpose is to ensure that the matter is dealt with on a continuing basis. If it is found that the way in which the Executive approaches the matter is not adequate or
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unforeseen problems arise, then the Government have taken powers under this Bill to introduce statutory instruments to deal with the matter. That is fine—
Viscount Goschen: Perhaps I may assist the noble Lord here. Klondykers are indeed our priority and the Bill allows flexibility in terms of targeting a particular group of vessels first, and that was my understanding at the drafting of the Bill. There is nothing between us on that. All I am saying is that if you try to come up with a convoluted definition of "adequate insurance" now—which would require some complexity because there are any number of different types of insurance—and enshrine it in the primary legislation, you will then have difficulties when it comes to building on experience. If there were a simple case of it coming to our attention that the policies written by a certain insurance company were not valid, we would want to have the flexibility to exclude them. That essentially is what we are trying to do, so we are including the minimum prescription in the primary legislation but giving the Secretary of State the power to insist on additional conditions under secondary legislation.
I would suggest that this, coupled with our targeting of the klondyker fleet—and there is nothing between us on that—is the effective way to go forward. I am sure that we can all read very carefully what the other side has said on this issue, but essentially what we are trying to achieve is the same. The noble Lord has defined it by "adequate", which itself does not provide a long description of the various insurance companies that we recognise and those that we do not. My approach has been to refer to insurance "subject to the conditions which the Secretary of State may impose". I think we have probably covered the ground with that intervention.
Lord Clinton-Davis: I think we may be at cross-purposes, and if I have inadvertently misled the Committee by saying that everything should be imported into the Bill now then I apologise; that was not my intention at all. I understand what the Minister is getting at here. What I was anxious to find out, however, regardless of the state of the Bill itself or of amendments to it but germane to this issue, is what deliberations have been going on between the department and the insurance companies in order to bring them to some swift conclusion? Here you have an urgent problem which will not wait. Certainly one would want to hear from the Government as to whether they have a draft regulation in mind here. If not, when would they think of having such a draft regulation available? It is much more helpful from the industry's point of view if something is reduced to writing, which you can mess around with and say, "This is inadequate in this particular form and ought to be amended in this way or that". It is a stage in the proceedings which, in my view, ought perhaps to have been reached already in considering what the committee of the noble and learned Lord, Lord Donaldson, had to say. At least it ought to be dealt with with some rapidity.
We will consider this Bill in this House at Report stage on 13th January. We then have the Third Reading perhaps a few days later; I cannot remember the exact

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timetable, but I gather we are anxious to facilitate the progress of the Bill through the House. It then goes to another place. Having regard to the events that might take place on or before 1st May, we may well be faced with the difficulty of having to try and enact this Bill with even greater rapidity than we are currently thinking of. The House will be entitled to know the thinking about introducing regulations which will import the requirements that are referred to in Amendment No. 72:
"Satisfying such other requirements as may be so specified".
What is in the mind of the Minister or his colleagues in this regard? That is a perfectly legitimate question.
Viscount Goschen: The important thing is to get the primary legislation of the Bill right. We will discuss this matter again when we discuss the amendments, but as the issues have been raised it is appropriate that we discuss them now.
First, we must ensure that the legislation allows this development to go on. The noble Lord and I are of one mind that we should not set the legislation in stone at this stage. We have essentially been grappling with the dilemma of how to ensure that insurance that has been provided is adequate. There are a number of different ways we can tackle that matter. We recognise the efficacy of some insurance companies in some countries, and the oversight of the insurance industry in some countries. We also recognise—without discussing the countries concerned at this moment at the Dispatch Box—that there are a number of problem areas around the world. One additional constraint might be the use of bonding, for example. What is clear is that it is difficult for klondykers to get insurance from reputable companies because they present a considerable risk. That is another consideration that we have to bear in mind.
I do not think that we can say anything further at this stage. We are assessing all provisions, including the points that the noble Lord, Lord Clinton-Davis, and other noble Lords have made. Our proposals will either be approved, or not approved, when we produce regulations, provided we have adopted the correct approach now. We do not have the definitive answer. The noble Lord can ask me about the conclusion of our deliberations, but I shall be unable to answer him. We are not yet at that stage. We share the ambition to see the Bill enacted as soon as possible. The regulations concerning klondykers will be introduced as soon as possible after that.
Lord Clinton-Davis: My recollection in relation to other legislation is that the noble Earl, Lord Caithness, was involved in quite a lot of the legislation which I was involved in on the other side of the Chamber. Am I not right in thinking that there were instances where draft regulations were produced during the passage of a Bill for scrutiny by the Chamber? That is a perfectly reasonable thing to do.
All I ask is that the Committee—perhaps later the House—should feel assured that the matter is being dealt with at great speed. I simply seek an assurance from the Minister that it is not by any means beyond the realms of possibility that the Government could—on the
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fairly safe assumption that this Bill will become law—start work, if they have not already done so, on determining the shape of these regulations. If, in fact, consultations need to be taken further, so be it. One certainly does not want to have ham-fisted regulations which are incapable of enforcement. Nevertheless, all I am asking for is an assurance that the Government are giving this element of the matter careful consideration while the Bill goes through its passage in this Chamber and in another place. That is all.
Viscount Goschen: I am happy to give that assurance.
Lord Clinton-Davis: We seem to be reaching a consensus. I am most grateful for that. Perhaps we could just take it a little further. It is rather important that we should have a progress report during the passage of the Bill itself. I will endeavour to come back to this. An appropriate time might not be the Report stage but at Third Reading. We can invent a necessary mechanism. It is not too difficult, but your Lordships will require some sort of progress report from the Government about something which is designed to deal with a contemporary problem of considerable importance. That is the substance of what I have been trying to say in the course of this debate.
Viscount Goschen: There is nothing whatever wrong with that approach. I am quite sure that the two processes—the consideration of the Bill by Parliament and the development of the approach with regard to specifying insurance conditions—can be conducted in parallel. I am sure the noble Lord will be putting down amendments concerning insurance at a later stage of the Bill and that would provide the opportunity to discuss the matter.
Lord Clinton-Davis: I am most grateful to the Minister. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos 48 to 55 not moved.]
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 56:
Page 13, line 33, leave out ("the statutory maximum") and insert ("£50,000").
The noble Lord said: This is quite a short point. The purpose of this amendment is to increase the penalty for the klondykers contravening the requirements for the issue of transhipment licences. New Section 100G(5)(a) provides for fines not exceeding the statutory maximum of £5,000, and I believe that may well be inadequate. Why should that maximum not be increased to, say, £50,000 in line with the fines for other offences under Clauses 1, 10 and 15?
In addition to the provision for higher fines, new Section 100G(5) should also provide for transhipment licences for a particular vessel to be withheld for a defined period. That is reflected in the amendment to Clause 15 and elsewhere in the consideration of amendments.
The experience in the Shetlands has shown that certain klondykers, the "Borodinskoye Polye" and the "Pionersk", have an extremely bad record of paying what they owe, at least with regard to clean-up bills. I will therefore listen with interest to what the Minister has to say, and I beg to move.
6.45 p.m.
Viscount Goschen: There are similarities in the argument the noble Lord presents with a previous discussion we have had on the level of fines, particularly fines whose level was given as the statutory maximum in the Bill. Much the same response will come from me as for the previous discussion about fines. I am certainly sympathetic to the view that the punishment for the offence should be sufficiently high to act as a deterrent.
There are a number of other offences in the Bill, some of which we have heard about today, and indeed a number of other offences under merchant shipping legislation, which have fines above the statutory maximum. I would, however, like to reflect on the points that have been made with regard to the level of fines as a whole. Perhaps when we come to another stage of the Bill the argument could be taken further. Essentially, the points I made with regard to the level of fines in a previous debate on an amendment tabled by the noble Lord, Lord Beaumont, hold good in this instance as well. We believe the levels are correct but we are happy to look again.
Lord Clinton-Davis: The Minister has been forthcoming on this and I thank him for that. Does he want to change his mind?
Viscount Goschen: No, not that I would ever change my mind, of course, but I understand that the fine under
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new Section 100G(5) can be imposed only on the master and therefore it is not sensible to have a £50,000 fine against him specifically. It rather contradicts the flow of the argument from the noble Lord before. But it may be that I am possibly confused as well. Anyway, the issue of fines is an important one and it is one which perhaps requires further reflection.
Lord Clinton-Davis: In the context of a previous debate, we were talking about a current penalty that was imposable against a master of £50,000 under the existing legislation. That was in a different context. However, I do not believe that in this case there is any reason for any disparity. But £50,000 seems to me to be perfectly reasonable. I did not in fact dissent from that proposition earlier or seek to be negative. The Minister has, as I have said, been forthcoming about this. I had a fear that he was going to change his mind mid-stream but he has not, and in those circumstances he may well come back to the matter. I am left in a state of total uncertainty by the Minister's hand movements. It may be that he wants a glass of water, I do not know. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 57 not moved.]
Clause 11 agreed to.
The Earl of Courtown: This may be a convenient time for the Committee to adjourn until tomorrow.
The Committee adjourned at ten minutes before seven o'clock.