§ 3.41 p.m.
§ Amendments reported (according to Order).
§ Clause 1 [Discharge of certain oils into prohibited sea areas]:
§
THE PAYMASTER GENERAL (THE EARL OF SELKIRK) moved, after subsection (3) to insert:
(4) For the purposes of any proceedings for an offence under this section in respect of the discharge of a mixture containing oil to which this section applies,—
§ The noble Earl said: My Lords, this Amendment is to meet a point raised by the noble Lord, Lord Hurcomb, on the Committee stage. He felt that it might be difficult to obtain proof of fouling the sea in order to prosecute successfully in cases outside territorial waters. I then said that we hoped that, in the Bill as drafted, there would be two ways of doing it, one visual and the other by deduction from reports. By this Amendment we hope to make it abundantly clear that that is the case. We should be able to deduce from records whether the amount of oil in the mixture at the time it was discharged into the sea exceeded 100 parts in one million. I hope that this Amendment fully meets the point which the noble Lord made at that time.
727
§
Amendment moved—
Page 2, line 19, at end insert the said subsection.—(The Earl of Selkirk.)
§ LORD HURCOMBMy Lords, I rise merely to express my thanks to the noble Earl in charge of the Bill for the extent to which he has gone in endeavouring to clarify this clause and to meet the point which I raised. It may save your Lordships' time if I say now that I am equally obliged to him for some of the other Amendments that appear on the Marshalled List, again clarifying some of the points I raised. Perhaps I shall not be going too far outside the scope of this clause if I say again how much the action of Her Majesty's Government is appreciated by those interested in this matter, not only in this country but abroad. Since I last addressed your Lordships, I have received copies of the resolution which the Fourth General Assembly of the International Union for the Protection of Nature, at which I was present, passed in Copenhagen last September. After resolving to urge upon all other Governments concerned the importance of early action, they recorded their gratitude to the British Government for the great service they rendered to the cause of nature protection by calling the meeting from which this legislation has originated. I take the earliest opportunity open to me to say that, because the resolution may not yet have reached the noble Earl through diplomatic or other channels. I have nothing further to add.
§ VISCOUNT MAUGHAMMy Lords, I do not propose to move any Amendment, but I want to mention a doubt which I feel as to whether it would not be better, even at this stage, to add one or two words to the Amendment moved by the noble Earl. The proposed new subsection (4) refers to proceedings for an offence under Clause 1 in respect of the discharge of a mixture containing oil. It provides that proof that there were not less than one hundred parts of the oil in a million parts of the mixture shall be a conclusive presumption that the oil in the mixture fouled the surface of the sea. My doubt arises from this fact. I have some reason to think that there may be some difference between the density of oil in different parts of the mixture, and I venture to suggest that it would be desirable to insert some words to indicate 728 that, when the mixture is being tested, the density of the oil content should be a fair average of the density of the oil in the mixture discharged. With those remarks, I make an apology by saying that, if I could have been here to make my speech at the proper time, I should have been very glad, but I was not able to be here.
§ 3.50 p.m.
§ THE EARL OF SELKIRKMy Lords, may I first thank the noble Lord, Lord Hurcomb, for what he has said. He has underlined the importance from the international aspect of the results which we all hope will flow from this Bill. I am sure we are all delighted to see the noble and learned Viscount, Lord Maugham, with us again. I can set his mind entirely at rest on the points he has raised, which are of great importance. The first is that the point at which the test may arise—and it very rarely will—is at the moment of the actual discharge into the sea, and not when it is in the sea. That is the first point.
§ VISCOUNT MAUGHAMI agree there would be no difficulty there.
§ THE EARL OF SELKIRKThe second one is this. As a matter of fact, the margins are very wide. If a person disposes of his oil, having cleaned it (this is, of course, outside territorial waters), then we hope that the amount of oil in proportion to water will be well below a hundred in a million—probably about twenty in a million; whereas if he does not clean his oil, it will be well above a hundred parts in a million. It will not be a narrow calculation; it will be obviously far above that. For that reason, I do not think this narrow calculation will often arise, or that an analysis of the nature which the noble and learned Viscount has in mind may often be necessary. For those reasons, what we have here should not present undue difficulty to the courts.
§ On Question, Amendment agreed to.
§ Clause 3 [Discharge of oil into United Kingdom waters]:
§ THE EARL OF SELKIRK moved to add to the clause:
§
"(5) In this Act—
'harbour authority' means a person or body of persons empowered by an enactment to make charges in respect of vessels entering a harbour in the United Kingdom or using facilities therein;
729
'harbour in the United Kingdom' means a port, estuary, haven, dock, or other place which fulfils the following conditions, that is to say,—
In this subsection 'enactment' includes a local enactment, and 'charges' means any charges with the exception of light dues, local light dues and any other charges payable in respect of lighthouses, buoys or beacons, and of charges in respect of pilotage.
§ The noble Earl said: My Lords, at the Committee stage a number of noble Lords asked that a clearer definition should be included of the word "harbour." The noble Earl, Lord Ilchester, the noble Lord, Lord Burden, and the noble Lord, Lord Lucas of Chilworth, all asked for that to be done. We have here given more precise words, and the advantage is that they restrict the definition of "harbour" to the more important and larger harbours of the country. In those cases, the boundaries of the harbours are much more accurately defined. The definition under the Merchant Shipping Act, 1894, is possibly too wide. The definition we are now submitting has the further advantage that it refers specifically to docks, a point also raised in the Committee stage. It is new made clear that a discharge of oil into the waters of a dock is an offence under the Bill, as is the discharge of oil into any other waters.
§ The purpose of submitting the Amendment in this way is to meet points raised again by the noble Earl, Lord Ilchester, and the noble Lords, Lord Hurcomb and Lord Burden, on behalf of the river boards. They felt that in some of the upcountry, inland waters, the smaller wharves might, under the original definition, be considered to be harbours. We have now said that "harbour" means only a harbour set up by some form of statutory enactment. That excludes all the up-river wharves, which should clearly be watched and prosecuted by the river boards where necessary. All this new definition does is to include the major ones. We believe we have met the substantial point which the river boards were making at an earlier stage. I can say now that in such cases the river boards will have authority from the Ministry of Transport to prosecute where they consider it necessary.
730§ In cases of major harbours, which are here defined, river boards will have no authority to prosecute within the harbour boundaries, but authority will exist in the harbour authority and in the Minister of Transport to do so. I should add this. I put down two Amendments in succession on this matter, and this is the second of them. An error crept into the first one and the noble Viscount, Lord Waverley, first drew attention to it. The last paragraph includes authorities which deal only with lighthouses, buoys and beacons. I hope that this Amendment will commend itself to your Lordships. I beg to move.
§
Amendment moved—
Page 4, line 30, at end insert the said subsection.—(The Earl of Selkirk.)
§ LORD LUCAS OF CHILWORTHMy Lords, would the noble Earl be good enough to help me? I am in some difficulty. I appreciate to the full what the noble Earl has said. What he has done is to narrow the definition of a harbour and therefore to narrow the waters where a report must be made. As the Bill stands, the definition of a harbour in subsection (6) of the interpretation clause, Clause 21, is, as the noble Earl has said, the definition laid down in Section 742 of the Merchant Shipping Act, 1894, which says:
'Harbour' includes harbours properly so-called, whether natural or artificial, estuaries, navigable rivers, piers, jetties, and other works in or at which ships can obtain shelter or ship and unship goods or passengers.The noble Earl by his Amendment has brought in another completely different definition of a harbour—a narrow one. A harbour is now a place that is operated by a statutory body which can make a charge for the services it renders.I started my approach to this Bill in the same mood as the noble Earl in his opening speech on Second Reading. This is an important matter. Around our coasts, in our territorial waters, is where the curse of oil pollution is felt most by the citizens of this country. It needs no emphasis from me. It is laid down in the Faulkner Committee Report and in the Convention that something must be done to prevent the pollution of our shores from oil. On the Committee stage, I sought to insert a safeguard into this Bill. As a corollary to the Amendment he is now moving, the noble Earl seeks 731 to move another Amendment later on to Clause 10 (1), the proviso to which reads:
Provided that if the harbour has no harbour master the report shall be made to the harbour authority, and if the harbour has neither a harbour master nor a harbour authority this section shall not apply.On Committee stage I sought to rule out the words in this clause, "this section shall not apply," and, in my innocence, I put in that a report had to be made to the area sanitary authority. That did not prove acceptable to the noble Earl. If your Lordships will turn to Amendment No. 20, you will see that there I seek to alter that by putting in the words:the nearest harbour master, coastguard or police officer.I think it is essential that if, within our territorial waters, oil is discharged from a vessel for any of the numerous reasons set out in Clause 10 of the Bill, a report should be made to some authority. It is only if an authority knows that oil has been discharged within the close vicinity of our coast that remedial action can be taken.I may have read the noble Earl's Amendment wrongly, but as I see it that Amendment will mean that there will be thousands of miles of coast line within a dangerous distance of which oil may be discharged, and no report need be made to anyone. I am quite willing to concede that if a malicious discharge of oil is made by the master of any vessel, it is no good saying that he must report it, because he would not report it. But if your Lordships would glance at Clause 10, you will find that there is a wide field of allowable discharge—I say "allowable discharge" in the sense of its being a discharge for which there is a defence. I think it is necessary that the report should be made to somebody, if only to safeguard the position in a small way.
I am rather trespassing upon your Lordships' indulgence by mentioning my Amendment No. 20 now, but if the noble Earl's Amendment is carried it will practically rule out my Amendment. I think we should have in this Bill a direction that it is obligatory for a report to be made to somebody. Under this Bill it is illegal to discharge oil in territorial waters, and registers have to be kept by masters of ships in our territorial waters—the noble Earl will correct me if I am wrong, but I believe I am right in saying 732 this—whether they fly the British or a foreign flag. There is an obligation to keep records. But an inspection of those records may not take place for months, so the circumstances of a discharge of oil need not be reported through the records until a long time after it has actually happened, and when remedial action is useless. To put that right is the simple purpose of my Amendment which comes later, and it will, I submit, be ruled out by the noble Earl's Amendment, because what the noble Earl seeks to do by Amendment No. 19, a consequential Amendment to that which he is moving now. is to leave out of the proviso all the words after "authority," so that the proviso to Clause 10 (1) which deals with the duty to report discharges of oil into the waters of harbours, will then read
Provided that if the harbour has no harbour master the report shall be made to the harbour authority.It rules out natural harbours; it rules out all those places round our coasts except those covered by the narrow definition of a harbour that has a statutory harbour authority. I hope that the noble Earl will help me in this matter, and will see whether it is the view of your Lordships' House that a report should be made to somebody. I hope that the noble Earl will indicate that he will accept the principle of my Amendment, and that where the Amendment which he has before the House now cuts across my Amendment he will seek to remedy that defect at a later stage.
§ LORD WINSTERMy Lords, in two or three words I should like to support what my noble friend has just said. A discharge of oil into the waters with which we are dealing under this Amendment, may have a deleterious effect whether there is a harbour master or a harbour authority or not. I cannot believe that any such waters exist where there is no ultimate authority at all; somebody—who, I cannot at the moment say—must have control and authority in regard to such waters, and the point which my noble friend is stressing is that a report should be made to that authority, whoever it may be. I entirely support that view, and I sincerely hope that the noble Earl will give helpful consideration to what my noble friend has said.
§ EARL JOWITTMy Lords, I, too, should like to add my plea to the noble 733 Earl to help us here. I should like to know from him, because I have no scientific knowledge at all: is it possible, if oil has been discharged, owing to some accident or for some reason, or has escaped, that remedial action can be taken? If that is the fact, then it seems to me obvious that everything follows. I am not so interested in prosecutions or anything of that sort as in the effect of this oil on the birds. I blame no one for this oil getting into the water—there may be a perfectly genuine, bona fide accident. But if this oil gets into the water, is it possible to remedy the evil effects? I should imagine that one would have to act pretty quickly. Therefore it is surely desirable, is it not, that somebody should be told as soon as possible that there has been an accident and that some oil has escaped. That having been done, he can take some steps in the matter, assuming that steps are possible, pretty quickly. Therefore, I am sure everybody would desire that a report should be made so as to enable those steps to be taken.
As I understand my noble friend, the effect of this Amendment is drastically to cut down the definition of "harbour." The Government have departed from the definition of "harbour" in the Merchant Shipping Act, and under this Amendment have their own local definition. That is an alteration of the Bill as originally drafted, when the Merchant Shipping Act definition applied. If we concede this Amendment to the noble Earl (I do not mind very much how we define a harbour), surely he will concede to us this simple point, on the assumption that remedial action is possible: that, where oil has been discharged or has escaped from a ship into our coastal waters whether, technically, there is a harbour or not, there ought to be some obligation to report the matter to somebody, in order that that somebody may put things in motion, so that a cure, so far as it is possible to have a cure, can be brought about.
I mention this matter because I feel, as all your Lordships do, that the injury caused to the birds of this country by this discharge of oil is so deplorable. I beg the noble Earl to help us. If it is possible to do anything later, in regard to the assumption which he will tell us about (if it is not possible there is no point in it, I agree) to take some remedial 734 action, surely to goodness he ought to see that that action is required to be taken as soon as possible. That seems to me to presuppose a report. Therefore, let us not adopt a definition of "harbour" which is going to have the in direct result, when we come to Clause 10, of cutting down the obligation to report. That is the point which my noble friend Lord Lucas of Chilworth has made, and which the noble Lord, Lord Winster, has supported. It seems to me that they have entirely made out their case.
§ 4.10 p.m.
§ THE EARL OF SELKIRKMy Lords, the noble and learned Earl asked whether it was possible to take remedial action. This is a technical matter, and I can only report what I am informed—that is not possible. That is the trouble which confronts us. I hope the noble Lord, Lord Lucas of Chilworth, does not think that this definition was put in to annoy him. I have been under considerable pressure from other noble Lords, for reasons which I admit are good, and I have tried to meet their case. In any case, I do not believe that this definition involves any restriction of any place where action could conceivably be taken. The obligations under Clause 10 are not part of the Convention, but have been included at the request of dock and harbour authorities to enable such action to be taken as is sometimes possible in the confined space of a harbour but which, I am told, is impossible outside. I am informed that if this provision is put in, we shall be imposing upon our masters an obligation which is not only useless but will have the undesirable effect that in foreign waters a similar obligation is likely to be imposed upon them.
The noble Lord has extended his Amendment a long way, because he has implied the inclusion of the whole of the territorial waters. In the case of ships within territorial waters of this country, to whom is a report to be made for useful action? Coastguards and police have no boats, so what action can they take? I am informed that action, to be effective in enclosed water without wind, would probably be necessary within a matter of hours. In cases where wind and tide are factors, action, to be effective, would need to be taken much more quickly. I cannot agree that any such action is possible or that anybody is constantly available 735 with the necessary equipment. I am not an authority on the equipment that would be necessary, but no doubt large booms of some kind would be necessary to enclose the oil for sieving.
§ EARL JOWITTCan the noble Earl say whether action is possible if it is taken timeously?
§ THE EARL OF SELKIRKI believe that in some cases action could be effective if it were taken timeously in still waters. In rough water, however, or with tides running, my information is that it is almost impossible to take effective action. This is a highly technical matter, and I do not put myself forward as being an expert, but it appears that only in limited circumstances, in harbour, can effective action be taken—and even then it is not always possible. The Amendment would impose an obligation that would serve no useful purpose, and would also have the undesirable consequence of increasing the obligation on our ships in foreign waters. I suggest to the noble Lord that we should discuss this matter further, if he will agree, to see whether his point can be met; but my information is that it is not practicable to take action of the kind suggested.
§ On Question, Amendment agreed to.
§ Clause 4 [Special defences under ss. 1 and 3]:
§
THE EARL OF SELKIRK moved after subsection (4) to insert as a new subsection:
(5) Where a person is charged with an offence under the last preceding section in respect of the discharge of a mixture containing oil from a place on land, it shall (without prejudice to any other defence under this section) be a defence to prove—
Provided that a defence under this subsection shall not have effect if it is proved that, at a time to which the charge relates, the surface of the waters into which the mixture was discharged from the place in question, or land adjacent to those waters, was fouled by oil, unless the court is satisfied that the fouling
736
was not caused, or contributed to, by oil contained in any effluent discharged at or before that time from that place.
§ The noble Earl said: My Lords, this Amendment is put down to meet a point raised by the noble Viscount, Lord Hail-sham, in the course of the Committee stage. He pointed out that, according to information at present available, even with the best-known methods of purification, the effluent of an oil refinery must contain some oil; that these oil companies are playing a very important part in the economy of this country and that it would be wrong to impose on them a criminal liability which, strictly interpreted, it is impossible for them to avoid. I recognised that we did not want to put an impossible burden on the oil companies but pointed out that we could not leave their neighbours exposed to continuous pollution by oil whose persistent qualities have so frequently been emphasised. Her Majesty's Government have here an Amendment which I believe meets these rather exacting conditions.
§ The Amendment may be criticised as being somewhat complicated, but that is necessary to meet these particular requirements. I will describe the purpose of the Amendment, if I may, in simple language, and I hope correctly. In the first place, it will be for the prosecution to establish that oil has been discharged into the water. The defence will then have to establish three conditions: that the effluent came from a refinery; that the effluent could not be discharged elsewhere; and that all practical steps had been taken to eliminate the oil. This defence, however, will be of no avail if the prosecution prove that the fouling had in fact taken place. If fouling is proved, the only defence available would be for the accused to show that they were not responsible for the pollution, then or at any previous time. I suggest that this Amendment meets the dual requirement of not putting on the refineries a criminal liability which they cannot escape and, at the same time, providing full and adequate protection for their neighbours. I hope that noble Lords will agree. I beg to move.
§
Amendment moved—
Page 5, line 21, at end insert the said subsection.—(The Earl of Selkirk.)
§ VISCOUNT HAILSHAMMy Lords, I should like to thank the noble Earl for this Amendment, because I know that it 737 is the result of patient discussion between himself and his experts and those in whose interests I moved the original Amendment in Committee. Although I believe that no one will deny that the matter still presents difficulties I am aware that the resulting Amendment is probably the best that human ingenuity can devise to meet what is admittedly a great technical problem. I should, therefore, like to thank the noble Earl for the way which he has met me and those in whose interests I was acting. I am glad that this happy conclusion has been reached.
§ LORD HURCOMBMy Lords, I do not propose to object to this Amendment, in view of the wording of the proviso. Those with whom I am associated have no desire to be impracticable, and they recognise the difficulties in which the oil companies might be placed by an absolute prohibition. Nevertheless, the biological consequences of a small but constantly accumulating pollution—especially in waters like Southampton Water—might be serious. I hope, therefore, that the responsible departments of Her Majesty's Government charged with a general oversight of these things will keep a close watch to see that the gradual effects of even the small, though apparently inevitable, pollutions do not reach a point where they have a damaging effect upon the marine and other life of the waters concerned.
§ THE EARL OF SELKIRKMy Lords, I should like to thank the noble Viscount, Lord Hailsham, for what he has said. I can assure noble Lords that those responsible will keep this matter under very close observation, and we hope that the result will be a marked improvement on what has happened before.
§ On Question, Amendment agreed to.
§ THE EARL OF SELKIRKMy Lords, this Amendment is consequential. I beg to move.
§
Amendment moved—
Page 5, line 23, after first ("of") insert ("(a)").—(The Earl of Selkirk.)
§ 4.20 p.m.
§ THE EARL OF SELKIRKMy Lords, this is not much more than a drafting Amendment. It is designed to meet a point raised by the harbour authorities. 738 Statutory harbour authorities have powers, under Sections 530 to 532 of the Merchant Shipping Act, 1894, to remove wrecks which are a dangerous obstruction to navigation. They also have power to do this, in some cases, under private enactments. In many cases, if they act under these private enactments they are able to recover their costs with greater ease from the shipowner or from the insurer, whereas if they proceed under the Merchant Shipping Act they can recover only certain costs—I believe substantially confined to selling the wreck or such parts of it as are worth selling. The Amendment deals only with wrecks which are a danger to navigation. I beg to move.
§ Amendment moved—
§
Page 5, line 26, after ("authorities") insert ("or
(b) the exercise, for the purpose of preventing an obstruction or danger to navigation, of any power to dispose of sunk, stranded or abandoned vessels which is exercisable by a harbour authority under any local enactment.")—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.
§ THE EARL OF SELKIRKMy Lords, the next Amendment is consequential on the first Amendment which I moved. I beg to move.
§
Amendment moved—
Page 5, line 35, leave out subsection (6).—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.
§ Clause 6 [Penalties for offences under ss. 1, 3 and 5]:
§ LORD LUCAS OF CHILWORTH moved to substitute "two" for "one" [thousand pounds]. The noble Lord said: My Lords, your Lordships will remember that on the Committee stage I sought to increase the penalties for the discharge of oil, and I put down two Amendments to provide imprisonment as an alternative to, or to run at the same time as, the monetary fine. I admit to your Lordships that I put those Amendments down on the Committee stage really to test the opinion of your Lordships, and I succeeded in drawing two very valuable opinions—one from my noble friend Lord Winster, who put the case, if he will permit me to say so, admirably from the point of view of the Merchant Navy, and the other from the noble Viscount, Lord Runciman of Doxford, who put it equally 739 admirably from the point of view of the shipowner.
§ Both noble Lords, if I have correctly read what they said, were convinced of the seriousness of the crime—if I may put it that way. Both put up an excellent case as to the, perhaps, wrong method of dealing with it by imprisonment. As the noble Viscount, Lord Runciman of Doxford, said, it is hard to imprison a shipping company—a master, yes; but a shipping company, no. Having listened to the arguments, I gave notice that I would seek to raise the penalties for this offence. The noble Viscount, Lord Runciman of Doxford, said that he would far prefer a "swingeing fine"—I think that was the expression he used. I have taken him at his word, and I have put down this Amendment to increase the monetary penalty for this particular offence from £1,000 to £2,000—that is on summary conviction. On conviction on indictment there is no mention of penalty. There I propose that the court should be left perfectly free—I accepted without question Lord Selkirk's argument upon that point. I thought, however, that it would be some guide to the courts—if they take notice of guidance: I am told by some people that courts do, but I have also heard it argued otherwise—if the Bill provided a maximum penalty, on summary conviction, of £2,000. I thought it would give some guide as to the seriousness with which Parliament regarded the offence.
§
Amendment moved—
Page 6, line 32, leave out ("one") and insert ("two").—(Lord Lucas of Chilworth.)
§ LORD WINSTERMy Lords, I would never wish to support any proposal to make a penalty disproportionate to the offence. I think that to do so is likely to bring a law into disrepute, and even, eventually, to make it a dead letter. In this case, I feel that we must consider the damage which can be caused by an offence committed after this Bill becomes law, and it seems to me to be reasonable to make provision for a penalty proportionate to the damage which may be caused. It may be said, of course, that an offence may be due to carelessness, as well as to criminal intent. But surely a court can take the circumstances of the offence into consideration and can proportion accordingly the penalty which is inflicted. In view of the enormous 740 damage caused by an offence of this kind, I think it is reasonable to give a court power to inflict a heavier penalty in their wisdom than they are permitted to do by the terms of the Bill as it stands. I hope that the noble Earl will listen to the arguments which have been advanced by my noble friend, and will reconsider the question of the amount of this penalty.
§ THE EARL OF SELKIRKMy Lords, I must confess that I am a little disappointed, if I may say so, with the noble Lord, Lord Lucas of Chilworth, and also with the noble Lord, Lord Winster. We have put in this Bill what is probably the biggest fine which stands in any Statute in this country for a court of summary jurisdiction. I feel a little disappointed that the noble Lords should not find that adequate. I have had some researches made to find comparisons, and so far we have been unable to discover any case where a summary court is empowered to impose a fine greater than £500, except in two specific classes of cases. One class, of course, is that of continuing offences, offences which accumulate from day to day and in which penalties run accordingly. The other class of case is that in which there is a financial yardstick by which the offence can be judged—for instance, customs cases and cases arising out of currency offences. In some cases, as we know, the fine is often three times the value of the articles involved. These are the biggest fines we know. This fine which Lord Lucas of Chilworth now proposes would be the biggest fine ever placed in a Statute Book for a summary offence.
After all, if enormous damage is done, a fine of £2,000 is inadequate, and the case will have to be heard on indictment. In any event, it is for the prosecution to decide whether they are going to take a case summarily or to indictment. In a very serious case it naturally would go to indictment, where the fine is unlimited and entirely at the discretion of the court. We have given this matter some thought and we feel that we have provided, as we intended, full and adequate penalties to be imposed on anyone who deliberately commits, or at least causes to be committed, offences of this kind. I hope the House will agree with me.
§ LORD LUCAS OF CHILWORTHMy Lords, anticipating that the noble Earl would say something on the lines of 741 what he has just said I also made researches. I should like to tell the noble Earl that I am as disappointed in him as he is in me. He did not tell your Lordships that the particular penalties which he has unearthed were imposed in days when £1,000 was a very big fine indeed. They were penalties fixed many years ago, when the value of money was very different from what it is now. However, what I liked about the noble Earl's argument, and what I am prepared to accept, is that if this is a serious offence, those who are responsible for instituting proceedings will proceed on indictment and not summarily. I tried to equate £1,000 in 1956 with £1,000 in the last Act which I unearthed, in the last century. Money values are so different that I thought £2,000 today was of less value than £1,000 then. I thank the noble Earl for putting forward his argument and beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 7 [Keeping of records of matters relating to oil]:
§ LORD LUCAS OF CHILWORTH moved, in subsection (5), to substitute "five" for "one" [hundred pounds]. The noble Lord said: My Lords, If I can argue the case on Amendments Nos. 9 and 10 together, it will save your Lordships' time. The Amendments seek to increase the fines, one for failing to keep records and the other for falsification of the records. I argued on Committee stage, and was supported by my noble friend Lord Winster and by my noble and learned Leader, that the essence of the enforcement of any provision of this Bill rests on the records which a master or responsible officer is statutorily required to keep. Nothing can happen unless the records are right and available, because they are the original source for detecting a misdemeanour of oil pollution. On the last stage of the Bill I sought to put in the punishment of imprisonment, for reasons which advanced on the last Amendment, but the Committee felt that imprisonment was not right, though there is such a punishment in the Bill for the criminal falsification of records. These Amendments seek to increase the monetary penalty, in the first case from £100 to £500, and in the second case from £200 to £500. I hope the noble Earl will 742 accept these Amendments, as I think they meet the position better than the penalties contained in the Bill at the present moment. I beg to move.
§
Amendment moved—
Page 8, line 3, leave out ("one") and insert ("five").—(Lord Lucas of Chilworth.)
§ LORD WINSTERMy Lords, I support the Amendments put forward by my noble friend, from the point of view of the damage which may result. The inexcusable failure to keep records may have just as serious results as the making of false entries, and for that reason I think the penalties of £100 and £200 are too small and that the increased penalties proposed by my noble friend are reasonable and proper.
§ THE EARL OF SELKIRKMy Lords, we discussed this matter on Committee stage, and I was impressed by the arguments put forward by the noble Lord, Lord Lucas of Chilworth, and the noble and learned Earl, Lord Jowitt. We agreed to look at this again to see whether the amounts of the penalties should be altered. After seeing the Amendments that the noble Lord has put down, we are glad to accept them.
§ LORD LUCAS OF CHILWORTHMy Lords, may I thank the noble Earl for accepting this Amendment? I take it that he accepts the next one, too. My pleasure is increased by the fact that I have achieved a record. I have had an Amendment accepted without being told the drafting is bad.
§ On Question, Amendment agreed to.
§ LORD LUCAS OF CHILWORTHMy Lords, I beg to move the second Amendment.
§
Amendment moved—
Page 8, line 7, leave out ("two") and in-sert ("five").—(Lord Lucas of Chilworth.)
§ On Question, Amendment agreed to.
§ Clause 8 [Facilities in harbours for disposing of oil residues]:
§ THE EARL OF SELKIRKMy Lords, this is really a drafting Amendment. I beg to move.
§
Amendment moved—
Page 8, line 23, leave out ("The powers of every") and insert ("In respect of every harbour in the United Kingdom, the powers of the").—(The Earl of Selkirk)
§ On Question, Amendment agreed to.
743§ THE EARL OF SELKIRKMy Lords, this Amendment is also drafting. I beg to move.
§
Amendment moved—
Page 9, line 1, after ("harbour") insert ("in the United Kingdom").—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.
§ THE EARL OF SELKIRKMy Lords, this Amendment goes with Amendment No. 14. At the last stage, noble Lords opposite were a little disturbed about the drafting of subsection (6). Accordingly, we have tried again. This Amendment leaves out subsection (6), which is replaced by the new subsection (7) contained in Amendment No. 14. I do not think I need go through it unless the noble Lord wishes. I hope that the new subsection is more comprehensible than the previous one. I beg to move.
§
Amendment moved—
Page 9, line 12, leave out subsection (6).—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.
§ THE EARL OF SELKIRKMy Lords, I have already referred to this Amendment. I beg to move.
§ Amendment moved—
§
Page 9, line 27, at end insert—
("(7) Nothing in this section shall be construed as requiring a harbour authority to allow untreated ballast water (that is to say, ballast water which contains oil and has not been subjected to a process for separating the oil from the water) to be discharged into any oil reception facilities provided by, or by arrangement with, the authority; and the Minister shall exercise his powers under subsection (5) of this section accordingly.")—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.
§ Clause 9 [Restrictions on transfer of oil at night]:
§ THE EARL OF SELKIRKMy Lords, this Amendment is consequential. I beg to move.
§
Amendment moved—
Page 9, line 44, leave out from ("brigade") to end of line 46.—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.
§ THE EARL OF SELKIRKMy Lords, this Amendment is also consequential. I beg to move.
§
Amendment moved—
Page 10, line 15, leave out ("a harbour authority but").—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.
744§ Clause 10:
§ Duty to report discharges of oil into waters of harbours
§
10.—(1) If any oil or mixture containing oil—
(b) is found to be escaping, or to have escaped, into any such waters from a vessel in consequence of damage to the vessel, or by reason of leakage,
the owner or master of the vessel shall forthwith report the occurrence to the harbour master, stating whether it falls within paragraph (a) or paragraph (b) of this subsection, and, if he fails to do so, shall be guilty of an offence under this section:
§ Provided that if the harbour has no harbour master the report shall be made to the harbour authority, and if the harbour has neither a harbour master nor a harbour authority this section shall not apply.
§ 4.38 p.m.
§
VISCOUNT WAVERLEY moved, in subsection (1), at the end of paragraph (b) to insert:
or
(c) is found to be escaping or to have escaped into any such waters from a place on land,
The noble Viscount said: My Lords, I think your Lordships would agree that it would be convenient to take this Amendment and the two following Amendments, which are consequential, together. The effect of them, as no doubt your Lordships will have observed, is to impose an obligation to report on the occupier of land from which oil has escaped into navigable waters. The obligation which it is sought to impose in that way is an absolute obligation. The corresponding obligation under the clause as it stands upon the owner or master of a ship is qualified: in fact, it is limited to the case of discharge or leakage of oil in circumstances involving no offence.
§ That limitation, I conceive, is introduced in deference to the well-understood principle of not placing any person under an obligation to incriminate himself. That principle, while rightly commanding great respect, is not sacrosanct, I suggest. It may be subordinated to a public interest, if that public interest be sufficiently strong. Those for whom I speak are content to leave matters where they are so far as the owner or master of a ship is concerned, but the case of a discharge of oil from a place on land can. I suggest, be clearly distinguished.
§ In the first place, any breach of the principle to which I have referred that 745 may be involved is at best only technical, since the facts in the case of an escape on land and the identity of the offender, if any, are bound to become known in the course of time. Here we have what is not normally present in the case of an escape of oil in the open sea: we have a very definite risk of fire. For that reason, those for whom I speak hope very much that your Lordships will accept my Amendments, imposing as they do an absolute obligation on the occupier of land from which oil has been escaping into navigable waters, so that remedial action can be taken at once—and there is action which, in the case of a harbour or dock, can he taken without delay. I beg to move.
§
Amendment moved—
Page 10, line 31, after ("leakage") insert the said words.—(Viscount Waverley.)
§ VISCOUNT MAUGHAMMy Lords, I should like to say that I agree with the view put forward by my noble friend who has just addressed your Lordships.
§ THE EARL OF SELKIRKMy Lords, I am grateful to the noble Viscount, Lord Waverley, for stating with such frankness the difficulty of this case. He has brought forward a matter of obvious and real importance. Within the circumscribed regions of a harbour it is obviously possible to take immediate steps before the oil dissipates and so avoid the possibility of fire. We are here (and I confess that in what I am going to say I am fortified by the intervention of the noble and learned Viscount, Lord Maugham, who I am sure is a sturdy guardian of our liberties in this respect) stretching our principles to the limit, because we are at one and the same time making the occupier of land responsible for allowing oil to go into the water, and equally, imposing on him a duty to report to the harbour authority that an escape has taken place. Frankly, I think this can be justified only in exceptional circumstances, but in my view the noble Viscount has made out those circumstances. I feel that we should accept this Amendment, but that in doing so we should emphasise that it is going as far in this direction as it is possible to go without accepting an unjust principle. In those circumstances, I am prepared to accept the Amendment.
§ On Question, Amendment agreed to.
746§ THE EARL OF SELKIRKMy Lords, the next Amendment is consequential. I beg to move.
§
Amendment moved—
Page 10, line 32, after ("vessel") insert ("or the occupier of the place on land as the case may be").—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.
§ THE EARL OF SELKIRKMy Lords, this Amendment is also consequential. I beg to move.
§
Amendment moved—
Page 10, line 33, after ("stating") insert ("in the case of a report by the owner or master of a vessel").—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.
§ THE EARL OF SELKIRKMy Lords, this too, is a consequential Amendment. I beg to move.
§
Amendment moved—
Page 10, line 37, leave out from ("authority") end of line 39.—(The Earl of Selkirk.)
§ LORD LUCAS OF CHILWORTHMy Lords, this Amendment is really consequential, but the procedure of your Lordships' House now allows me to argue my case all over again. Owing to the rules of your Lordships' House on Report, I could not reply to the noble Earl on his first Amendment, or on the Amendment on which I spoke, where I wanted a report. What the noble Earl now seeks to do, by a consequential Amendment, is to delete the words,
and if the harbour has neither a harbour master nor a harbour authority this section shall not apply.I want to cite a case which I think will illustrate the problem I wish to overcome. A report has to be made to a harbour authority where there is a leakage of oil, or a discharge of oil, for any of the reasons set out in Clause 10. I immediately say that if remedial action cannot be taken there is no need to report it. If the Bill places an obligation on the master of a vessel to report that he has had to discharge oil in a harbour, there must be a reason for the obligation; and the reason, as the noble Earl has said, is that remedial action can be taken.The Southampton Harbour Authority stretches from the docks at Southampton for twenty-two miles, right down Southampton water to the Brambles Buoy. If a discharge of oil is made in any part 747 of that water—and it is a large harbour of twenty-two miles, as I say—a report has to be made. Round the corner, past Calshot, there is the Beaulieu River—well known to many of your Lordships—thick with small craft in the season, forming a natural harbour within the territorial waters—and the territorial waters are only approximately three miles from our coast line, all round our coast line. Any discharge of oil that seeps up the Beaulieu River among all that small craft has not to be reported. Why not? The noble Viscount, Lord Waverley (I am sorry he has had to leave), in pressing his Amendment has stressed the risk of fire. Can your Lordships imagine a greater risk of fire than from oil seeping up the Beaulieu River in the height of the yachting season? Yet nobody has to report that.
That is my point: that it is impossible, in reason, to confine the reporting of oil discharge to the narrow confines of the new interpretation of a harbour—that is, where there is an authority which is allowed to extract charges for services rendered. It does not appear to me to add up to sense that that obligation should be imposed right down Southampton Water, including the Hamble River—and then I suppose you would turn down the Solent, and the next harbour authority would be Portsmouth, on the one side, and Ryde on the other, or Cowes—when only three or four miles down the Solent, there is no necessity for the master of a ship to report an oil discharge.
I hope that the noble Earl will look at this matter again. I feel bound to say that I shall not have the opportunity again this afternoon to raise this argument, except on the next Amendment, and I do not propose to do that. However, I have an Amendment immediately following this one where I ask that the report shall be made to the nearest harbour master, coastguard or police officer. What is the difficulty? Your Lordships are well acquainted with this area, and I cite it only because your Lordships know it so well; but the Thames Estuary would be approximately the same. How much more difficult is it for the master of a ship lying on the Brambles Buoy, in Cowes Roads, to report that he has discharged oil than for the person in 748 charge of a ship or a boat off the mouth of the Beaulieu River, which, as the crow flies, would be about two miles away? In both cases it is essential. If the noble Earl will take these arguments into consideration I will return to the matter on Third Reading and will not worry your Lordships with a repetition of the argument upon the next Amendment which stands in my name.
§ LORD WINSTERMy Lords, I, too, have no wish to weary your Lordships with much further argument on this subject, but "a man convinced against his will is of the same opinion still," and I am not at all convinced from what the noble Earl has said that there is no real force in the arguments which have been brought forward by my noble friend. I agree that the Amendment removes ambiguity—it confines the clause quite clearly and definitely to harbours where there is a harbour master or a harbour authority. But it seems to say, by implication, that there are waters round our coasts where there is no authority at all. If that is the case, I am sure our nudists will be delighted to hear of it, and they will hurry down to establish bathing camps there. But I myself absolutely decline to believe that there are any waters round our coast which do not come under the jurisdiction of some authority or another. On that account, and in view of the damage which, as I have already said, can be caused by an offence under this Bill, I think it is only reasonable to insist that where a discharge of oil takes place, whether or not there is a harbour master or a harbour authority, a report must be made to the authority which must exist in regard to those waters.
§ 4.52 p.m.
§ VISCOUNT RUNCIMAN OF DOX-FORDMy Lords, I apologise for taking up more of your Lordships' time on this point, but it is an important one and, I think, purely a practical one. I am entirely at one with the objectives which the noble Lord, Lord Lucas of Chilworth, seeks to achieve, and I am concerned only with how far it may be practicable to do so without importing into this Bill provisions which are so difficult to fulfil as to lead to bringing the law into contempt. There seem to me to be two main points. The first is a simple one: that where there is a piece of water which is obviously a harbour, it is equally obvious that 749 it is not difficult to report—in the case of practically all such waters there is in fact a harbour master and a harbour authority. I would even, with great deference and respect, question slightly the experience of the noble Lord, Lord Lucas of Chilworth, in the Beaulieu River, which I have sailed on fairly often and where I have been approached by a person who would come under the definition of this Bill, to make some payment for the use of that water.
§ LORD LUCAS OF CHILWORTHThe authority who extracted money from the noble Viscount in the Beaulieu River is, I think, a Member of your Lordships' House.
§ VISCOUNT RUNCIMAN OF DOX-FORDI think so, too, but I believe he does so with the force of law behind him. That would bring it into the definition, I think. I should like to go on to the second point. If, in fact, the definition of a harbour is to be as wide as it appeared to be before the noble Earl's Amendment was introduced this afternoon, it will include considerable stretches of water which are normally passed through, rather than anchored in, by ships in the ordinary course of their business or duties. If I understand it aright, it has been suggested that the clause should be so drafted as to include all territorial waters of the United Kingdom. However desirable that may be, in practice it could not be done. One has only to think of a small number of instances: a small coaster, not required to be equipped with wireless, passing the Start on a rough afternoon in the Channel—conditions under which he may well let a little oil into the sea. What is he to do? The nearest harbour master or police officer is probably at Salcombe or maybe Dartmouth. It is surely unreasonable to require him thereupon to put into one or other of those ports with the object of saying that he has upset a bucket of oil and he is very sorry. In practice he would not. He would much prefer to try and "get away with it," and I think that is a point of view which many of your Lordships would share in those circumstances.
I think it is important that the Bill should not become so impracticable by reason of the drafting that it cannot be carried out. From personal knowledge of certain waters of the West Coast of 750 Scotland, I would, with great respect, question the statement made by the noble Lord, Lord Winster, that there is no piece of water which is subject to no authority. One must naturally speak with great deference in this House, in case there should be a Highlander present, but I can think of several places where a ship might take shelter in that part of the world where the practical difficulties in finding even a policeman to report to would be prohibitive. While I ask both noble Lords to believe that I am at least as anxious as they are that, where any good purpose can be served by it, a report should be made, and I am not trying save anybody the trouble of making it under those conditions, I think the noble Lord's Amendment, as it stands, would run a grave risk of going so far beyond what I believe to be his purpose as to defeat its own object.
THE EARL OF ILCHESTERMy Lords, may I say one word on this matter? Southampton Water comes under one authority. The next place which has been mentioned is the Beaulieu River, which comes under quite a different fishery authority. It is most important that we should try to keep oil out of the Beaulieu River, because from the fishery point of view it is very important. Southampton Water, on the other hand, comes under the Southampton Corporation and has nothing to do with it at all. I do not say that the Amendment of the noble Lord, Lord Lucas of Chilworth, is practicable, but I cannot see that it can do any harm to try and get something done as quickly as possible. I suggest to the noble Earl that it should be possible to report to a policeman, because one can usually get at a policeman fairly easily. On the other hand, to report to the sanitary authority, as was suggested in Committee, is quite a different business: it would probably take a day' or two to get at them. The noble Earl, Lord Selkirk, has been most kind in helping us on many occasions, and I hope he will accept this Amendment. Of course, the fishery authority has power to deal with oil in the river, but when it is in the sea it is difficult to do much about it. I think we shall be on the right side by agreeing to the noble Lord's Amendment.
§ THE EARL OF SELKIRKMy Lords, we are not sticking very closely to the Amendment at the moment but dealing 751 generally with the point about which I understand noble Lords are concerned. I think it is right to remember, first of all, that Clause 10 is not part of the Convention at all. This is a matter which was not dealt with—at least, I will not say it was not dealt with, but it does not emerge from the Convention dealing with this subject which was discussed about twelve months ago and which was generally agreed to. This clause was put in at the express request of the Dock and Harbour Authority. They asked for it for their particular requirements because they thought that it would be of some use—I think it is fair to say this, with great respect to the noble Earl, Lord Ilchester—to get something done. The other Amendment is not to get something done at all; it is merely to report something that has been done. It is no good reporting irrespective of circumstances, even in ports such as the noble Viscount, Lord Waverley, had in mind. Reporting it is of limited value. What is far more important is to prevent the pollution from taking place. That is the basis of the Bill. That is how we are pursuing it. The question is: is there any useful purpose provided by general reporting?
I believe that the noble Lord, Lord Winster, has a rather restricted idea of the effects of the new definition of "harbour." A harbour which has never had any statutory backing is a very small harbour indeed. In nearly every case there has been a private or public enactment of some character which has set it up. It would be a twopenny-halfpenny place, with merely a jetty of some character, which would not have a statutory backing. I regret I cannot give an exhaustive list now. It is complicated and I have not been able entirely to elucidate the point, but the number of these cases must be very small. If the noble Lord is stretching his argument to say that there is some authority over all parts of our territorial waters, then I think he is going too far. I hope that is not his argument, because, if it is, I do not think it is true. There must be many parts where it is not the case. I understand the noble Lord, Lord Lucas of Chilworth, to be anxious to extend this procedure all over the territorial waters.
§ THE EARL OF SELKIRKThen I think he must find out where he wants to extend it because I am not clear about that at the moment. As drafted at present, the proposal is of limited value for harbour authorities. I do not think it is of the slightest use for them if, for example, oil is spilt at the Brambles Buoy. Inside Southampton, the authorities can do nothing about it. My argument is that the proposal is only for limited circumstances. It may be of some value. Outside in the general open waters it is completely valueless, because nobody can do anything about it. It has the further disadvantage, possibly, of imposing severe and difficult requirements on our own merchantmen overseas. I have said that I will look at it. I will say this to the noble Lord, Lord Winster, who knows far more about these things than I do: that it is very difficult to pick up oil in the open sea. I do not think our merchantmen should have the obligation of reporting something about which nobody can do anything. We do not think that, even if it could be picked up, it would be possible to get people there in time. That is our difficulty. However, if we can have discussions I shall be delighted to see whether we can find an intermediate course.
§ On Question, Amendment agreed to.
§ LORD LUCAS OF CHILWORTHMy Lords, I only rise to ask your Lordships' permission not to move the next Amendment in my name and to thank the noble Earl for what he has said. I agree with the noble Viscount, Lord Runciman of Doxford: one is too wide and this is too narrow. If the noble Earl, with his usual dexterity, can find a middle way, we shall be delighted.
§ Clause 12 [Prosecutions]:
§ THE EARL OF SELKIRKMy Lords, this Amendment is drafting. I beg to move.
§
Amendment moved—
Page 12, line 29, at end insert ("in the United Kingdom").—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.
§ THE EARL OF SELKIRKThis Amendment and the next two Amendments are drafting. I beg to move.
§ Amendments moved—
§ Page 12, line 31, after ("within") insert ("such")
§ Page 12, line 32, after ("to") insert ("such")
§ Page 12, line 44, leave out from ("offence") to ("if") in line 45.—(The Earl of Selkirk.)
§ On Question, Amendments agreed to.
§ Clause 20 [Financial Provisions]:
§ THE EARL OF SELKIRKMy Lords, this Amendment is to secure that, in the event of any expenditure incurred by a harbour authority, in providing the facilities which they are empowered to provide, falling upon the rates, such expenditure should rank as relevant local expenditure for purpose of Exchequer equalisation grant. I beg to move.
§ Amendment moved—
§
Page 16, line 25, leave out subsection (1) and insert—
("(1) There shall be defrayed out of moneys provided by Parliament—
§ On Question, Amendment agreed to.
§ Clause 21 [Interpretation]:
§ THE EARL OF SELKIRKMy Lords, this Amendment is consequential. I beg to move.
§ Amendment moved—
§
Page 16, line 31, at end insert—
("'harbour authority' and 'harbour in the United Kingdom' have the meanings assigned to them by section three of this Act").—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.
§ THE EARL OF SELKIRKMy Lords, this Amendment makes quite clear what we mean by a "local enactment." I beg to move.
§ Amendment moved—
§
Page 16, line 35, at end insert—
("'local enactment' means a local or private Act, or an order confirmed by Parliament or brought into operation in accordance with special parliamentary procedure").—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.
754§ THE EARL OF SELKIRKMy Lords, this Amendment is consequential on the Amendment to Clause 3. I beg to move.
§
Amendment moved—
Page 17, line 40, leave out lines 40 to 42.—(The Earl of Selkirk.)
§ On Question., Amendment agreed to.
§ Clause 22 [Provisions as to Northern Ireland]:
§ THE EARL OF SELKIRKMy Lords, this Amendment is to make it clear that the new definition of a harbour or harbour authority has effect in relation to harbours in Northern Ireland. I beg to move.
§
Amendment moved—
Page 18, line 45, at end insert ("and in the definition of 'local enactment' in subsection (1) of the last preceding section the reference to a local or private Act includes a reference to a local or private Act of the Parliament of Northern Ireland, and the reference to an order confirmed by Parliament includes a reference to an order confirmed by that Parliament ").—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.