§ 3.24 p.m.
§ Order of the Day for the House to be again in Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Chesham.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 19:
§ Orders for establishing schemes for control of movement of ships in harbours
(4) The provisions of a control of movement order having effect by virtue of subsection (3)(i) above shall not be so framed as to permit
§ LORD TEYNHAM had given Notice of two Amendments to the clause, the first being, in subsection (3)(d), after "empowering" to insert: "subject to the next following subsection". The noble Lord said: With the agreement of the Committee Amendments Nos. 41 and 42 might be taken together. As the clause is drawn, the control authority could prohibit—
§ THE EARL OF SWINTON
May I interrupt my noble friend on a point of order? It seems to me that all the Amendments which follow are really dealing with the same situation as to what the penalties would be.
§ THE PARLIAMENTARY SECRETARY, MINISTRY of TRANSPORT (LORD CHESHAM)
May I interrupt my noble friend? My understanding of this matter is that Amendments Nos. 41 and 42 in point of fact deal with quite different points.
I do not think so. If the Committee agree that we should debate them together I will proceed to do so. Perhaps the Committee will see when we have debated this clause that the two, in fact, hang together. As the clause is drawn, the control authority could prohibit a ship from entering a harbour on the ground that it was not fitted with the specified equipment. I maintain that this provision raises an important principle. A control of movement order, in effect, could require the compulsory fitting of equipment. For instance, there is no international agreement to fit very-high-frequency radiotelephone equipment for harbour control, which I think is proposed under the Bill. I suggest that a provision which amounts to a unilateral requirement to fit special equipment to a ship might result in unfortunate repercussions to British ships in foreign harbours. If we were to impose requirements to fit equipment in a ship irrespective of its flag, foreign countries would be encouraged to do the same; and this might well be unacceptable to us.
I suggest that it would be wrong, on the grounds both of safety and of the possibility of international repercussions, to make a ship, stay outside a harbour, perhaps in bad weather, because she was not fitted with the equipment laid down by the control of movement order. Once the ship is inside the harbour there is no reason why she should not be directed to a designated anchorage in the interests of safety. I suggest that this clause is yet another instance of the tidy mind in drafting Bills which takes no account at all of practical facts. I beg to move.
§ Amendment moved—
§ Page 22, line 5, after ("empowering") insert ("(subject to the next following subsection)").—(Lord Teynham)
§ LORD HOBSON
This matter was raised by Opposition Members on 578 Second Reading in the other place and I endorse, broadly, the statement and arguments put forward by the noble Lord, Lord Teynham. The real points to bear in mind are that we in Britain are the most advanced of any nation in the world, so far as navigational aids are concerned, whether it be very-high-frequency radiotelephone or radar. We are in the very exceptional position of having around our coast radio beacons (I will not mention the name, as that could be construed as advertising), and parts of the coast near Ushant, and parts of the Eastern seaboard of America are also so equipped. But if we are to insist on laying down that ships entering our ports must be equipped with the latest equipment, it seems to me to be very unfair that penalties should be provided in respect of the entry by other ships not so equipped. Because, as the noble Lord, Lord Teynham, said, there will be retaliations which will be harmful to British shipping entering ports in other countries. There is no need for me to mention the names, but some nations might be very awkward if our ships did not comply with standards which they laid down. As the clause stands, it invites retaliation; and this Amendment is moved with the sole object of making it possible that, whatever standards are laid down by the Ministry of Transport and the Ministry's advisers, they are agreed to internationally.
In another place, the Parliamentary Secretary to the Minister of Transport said that this was a wrecking Amendment. I have read the clause two or three times and I still fail to see how this Amendment can be described as a wrecking Amendment. We are not against having ships equipped with safety devices in our ports at all. It is absolutely ridiculous to suggest that we are. All we are doing is saying that the advanced standards of modern British ships shall not of necessity be the international standard. That can come in time, but so long as we are in advance of the normal international standard it seems to us unfair, particularly because of the dire consequences of retaliation that could ensue. I hope that after the noble Lord's serious consideration of this matter, which f am sure he has given, he will see fit to accept this Amendment.
§ LORD CHESHAM
At the moment, although we are speaking to two Amendments, I will take the first in isolation, if I may, because although it may have been the intention of my noble friend Lord Teynham that they should hang together, the effect is to produce a separate point and I think that I must first explain that point before continuing to deal with what has been said about the other Amendment. Amendment No. 41 has the effect of making directions under sub-paragraph (3)(d) of Clause 19 subject to the provisions of sub-paragraph (4) of that clause. I am merely going to say that this Amendment is unnecessary because of the provisions of sub-paragraph (3)(i).
§ LORD SHACKLETON
Surely it is subsection (3), paragraph (i). I think this is why the misunderstanding may have arisen. My view is the same as that of the noble Lord, Lord Teynham.
§ LORD CHESHAM
I am trying to get it right but the noble Lord keeps interrupting me. If the noble Lord would allow me to continue for a moment, perhaps I could make it clear. I refer to Clause 19. I thought the correct term was "sub-paragraphs" and that "subsections" was a term that applied after the Bill became an Act. But never mind. Subsection (3) is divided into a number of paragraphs, one of which is paragraph (i). That is further sub-divided into (i) and (ii), and I refer to sub-paragraph (ii), which is at the top of page 23. That provides what the noble Lord wants done. It has precisely the effect of the Amendment that he has on the Marshalled List. To this extent I have dealt with Amendment No. 41 before we deal with No. 42, and perhaps it may be convenient if I stop for a moment at this stage.
§ LORD DOUGLAS OF BARLOCH
Surely this is a misunderstanding of the effect of the Amendments which stand upon the Marshalled List. There is not only No. 41, but also No. 42 for the purpose of inserting a new subsection, and it is to that new subsection to which Amendment No. 41 refers. The noble Lord's point would be correct on the assumption that Amendment No. 42 was 580 not carried, but it is perfectly clear that these two Amendments are both intended to be related, and in that case the reference in the first Amendment to "the next following subsection" is obviously a reference to the new subsection provided for in Amendment No. 42, if it is agreed to.
§ LORD SHACKLETON
I hope the noble Lord will not think that I am trying to make the position more difficult. I was trying to help him, so that we could use the same language and the same designations which, I understand, are the practice of this House. I do not know whether the noble and learned Lord the Lord Chancellor can clarify this, but I understand that this is precisely what the noble Lord, Lord Teynham, is trying to do, and I should think it is pointless to discuss No. 41 without No. 42, because the new subsection to which he refers is the one contained in No. 42. I understood that the small (a) and (i) to which the noble Lord was referring were called paragraphs or sub-paragraphs, but perhaps the noble Lord the Chairman of Committees can help us on this.
§ LORD CHESHAM
Unless my Marshalled List is misprinted, Amendment No. 41 beginsPage 22, line 5, …and then refers to "the next following subsection"—I now see what the noble Lord means. We are in a little bit of a procedural difficulty, because I think that whether it should be there or not is dependent on the insertion of the new subsection. But this Amendment in isolation does not make sense.
§ LORD CHESHAM
It is perfectly in order in this House to discuss two Amendments together, but they cannot be moved together. Therefore, what are we to do?
§ THE EARL OF SWINTON
May I ask the noble Lord this point? Suppose this first Amendment is withdrawn, shall we be in any way prejudiced in discussing any of the Amendments which follow? If that is so, is not the sensible thing to do to withdraw this Amendment and then take the substantive Amendment, and if the Bill is amended, then whatever is necessary can be put in on Report.
§ LORD CHESHAM
Perhaps it might be easier to do it one way or the other. The better way might be to discuss them together. I am anxious to be clear about this.
THE CHAIRMAN OF COMMITTEES (LORD MERTHYR)
I would only say that, of course, it would not be proper for me to say anything at all about the merits of this Amendment, but in reading the Marshalled List it seems to me to be clear that, first of all, the only Amendment before the Committee at the moment is No. 41. On the other hand, it seems to be clear that No. 42 stands or falls by No. 41. If No. 41 is carried, your Lordships will probably wish to carry No. 42, and, on the contrary, if No. 41 is rejected, probably No. 42 will be entirely unnecessary.
§ LORD MORRISON OF LAMBETH
We are obliged to the noble Lord the Chairman of Committees for putting the matter so very clearly. I agree with the Parliamentary Secretary that we are in a procedural difficulty, but the only man who has made the procedural difficulty is the Parliamentary Secretary. I have paid him compliments twice in the last week, saying that he is a very good Parliamentary Secretary, which he is; but to-day he is off-colour. It is perfectly clear that this first Amendment, No. 41, leads into the second Amendment. It says "subject to the next following subsection", and the new subsection appears in Amendment No. 42. It is perfectly clear that these two Amendments hang together. I entirely agree that the Chair must put the Amendments separately; but if No. 41 is lost, then, by inference, and logically, No. 42 is lost also, and if No. 41 is carried, then No. 42 is carried. Surely the matter would be simpler if the Parliamentary Secretary would be good enough to address himself in his speech to the merits or demerits of both Amendments, and then 582 let the Committee vote on No. 41 and, if necessary, on No. 42. Is not that the simple way out of such difficulty as may or may not exist?
§ LORD CHESHAM
Yes. I am most grateful to the noble Lord for having pointed out to me what I have just said. I suggest that at this point we can start again, the position being that the carrying or otherwise of Amendment No. 41 rests on the merits of No. 42, to which I shall now address myself.
It seemed to me that the arguments put forward from both sides of the Committee stemmed from the support of an Amendment in identical terms put down during the passage of the Bill in another place. That was aimed at what was the original draft of the Bill, which was in a shape that would have caused worry such as noble Lords have expressed to a much greater extent than the form in which the Bill now is. Because shipowners feared, as we have been told, that other countries might follow the lead and specify certain equipment, to the detriment of shipowners, and might proceed in the way that we have had described to us to-day, an Amendment was moved on Report in another place and is now embodied in the Bill. Strictly speaking, incidentally, the Amendment we are now discussing, to he complete, ought to provide also for the deletion of paragraph (d) of Clause 19(3). But that is by the way, and I hope it will not mean anything of the kind.
I think it was acknowledged by those who supported the Amendment in another place—though, frankly, that has not been the case to-day—that the Government Amendment in another place went a considerable way to meet the fears and objections that had been expressed. The Government Amendment, not going quite so far as was suggested, provided that the equipment must be of a kind agreed or recommended internationally. That will allow the existing V.H.F. system of radio-telephony to be specified because marine V.H.F. conforms to the provisions of the International Telecommunications Union Radio Regulations, 1959. It would also allow radar, as we now have it, to be used, because the Safety of Life at Sea Convention, 1960, made recommendations about the standards of marine radar.
583 What is suggested to-day is that there shall be no prohibition on the ground that a ship is not fitted with particular equipment unless that equipment has been the subject of an international convention accepted by Her Majesty's Government.
Now I must come to the reason why my colleague in another place described this as a wrecking Amendment, which, quite frankly, is the way I would describe it. I am certain that neither my noble friend nor the noble Lord, Lord Hobson, have the slightest intention that it should be such: I entirely absolve them from any such idea. But it does have that effect. The reason is that it may well be years before we have an international agreement signed, sealed, delivered, ratified and accepted, which would be necessary under this Amendment, and therefore it would be years before the schemes could be brought in to be effective; and there is every reason to suppose that in some places such schemes for traffic control are required now.
It seems a great pity to waste the lead and the expertise which has been developed in this country to which the noble Lord, Lord Hobson, referred a little earlier, and to which the noble Lord, Lord Lindgren, referred, I believe, on Second Reading, and not to put it to good use. I should have thought that accepting the Bill as it is would be entirely to the benefit of shipowners, because the equipment which is now available for use, which they could not otherwise use, can bring their ships safely into harbour through fog and in adverse circumstances. If that equipment is to be debarred from use, which would be the effect of this Amendment, the only alternative will be that it must stay outside. I do not believe that is what noble Lords want.
I think this Amendment is wrong. I think, having gone so far as we have to safeguard the position by specifying only equipment which is recommended or agreed internationally, and with no discrimination against anyone else's ships, that is as far as it is necessary to go, and the position is safeguarded so far as any other country is concerned. To accept this Amendment would be likely to defeat the whole purpose of 584 this part of the Bill, and I hope your Lordships will not wish to do so.
§ VISCOUNT RUNCIMAN OF DOXFORD
May I ask the noble Lord one question? He said that the effect of this Amendment would be to debar ships from entering under certain conditions. Surely the whole nature of the case is to lay down the conditions under which they can enter. It is permissive, not mandatory. The control authority is not obliged to exclude ships if they do not comply. It may say that they must not come if they do not, but that is not the same position as binding its hands not to allow them to come if they do not.
§ LORD CHESHAM
If the control scheme is to be brought in and someone is to be empowered to specify circumstances in which a ship shall not enter unless it has certain equipment, if, as will now be the case, a ship is required to have equipment which it is practically impossible for it to obtain and it may be years before it is possible to do so, I should regard that requirement as knocking the heart out of this part of the Bill.
§ VISCOUNT RUNCIMAN OF DOXFORD
Surely the clause says "empowering such person to prohibit". It is purely empowering and not compelling.
§ LORD CHESHAM
To carry on with the clause, it says:… unless the ship is fitted with such equipment as may be so specified.The noble Viscount must not overlook the fact that we are endeavouring to create a situation based on considerations of safety. We have nowadays large ships carrying large and valuable cargoes, some of which may be dangerous to some extent; and we also have very fine control systems based on radar. I think that we should not debar ourselves from using these in harbours. I think it is not unreasonable to expect, if you have a traffic control scheme, that in the interests of both safety and efficiency you should be able to use the equipment which goes with it.
§ LORD HOBSON
I think the main point here is that we are afraid that the noble Lord and the Ministry are putting too high a standard on safety requirements with regard to V.H.F. and 585 radar too early. That is really the point. The argument here advanced would be a sound one if it applied only to British ships. The fact is that not only British ships enter our ports. I agree that it might take a long time to get international standards with regard to navigational aids. I would say en passant that Her Majesty's present advisers have taken a long time to agree to the international standards of safety at sea, which they have just ratified.
The main point is that, where we have foreign trade carried out by British ships, particularly the British tramp fleet, if we are to have standards which are of such modern requirements and such advanced scientific design, there is a great danger because other countries which are ill-disposed to this nation could introduce retaliatory measures. That is what we are frightened of. We think it would be inimical to the interests of British shipping. It is not that we are against safety at sea but, as I said, that the standard is being placed too high, too early.
§ LORD CHESHAM
I knew that that was what the noble Lord was frightened of: he made it perfectly clear. To meet that fear I said that we had selected something which had been agreed or recommended internationally as the standard. That was done to avoid setting an impossibly high standard, and also to produce a standard from which anybody else would find difficulty in departing in the case of retaliation. That was done to meet those very points, and, I submit, meet them it does. After all, as the noble Viscount, Lord Runciman of Doxford, said, this is only an empowering measure. Also, it does not make the fitting of such equipment compulsory. No ship, either British or foreign, is compelled to fit anything of the kind. It merely means that where these highly desirable and, I would say, essential, schemes are brought into effect, in the case of fog, for instance, a ship, instead of having to apply to go in, will have to lie outside. That is all; there is no compulsion about it. But if there are these schemes, they must be properly equipped and properly run.
§ THE EARL OF SWINTON
Is it clear that where a regulation is passed and is being enforced by a harbour authority, 586 that regulation will apply equally to any foreign ship as to any British ship? That seems to me to be vital. If that is so, then I dare say the matter is not open to such objection.
§ THE LORD CHANCELLOR (LORD DILHORNE)
I think clearly the answer to that question is, "Yes." I would also, if I might intervene for one moment in the troubled waters in this particular harbour, say this. This is a Bill which we hope will be enacted and will last for a considerable time. We are here considering the scope of the movement control orders that can be made under the Bill. The noble Lord, Lord Hobson, was worried that too high a standard may be imposed at the outset. I appreciate his anxiety, and my noble friend has dealt with that.
But, of course, the real time to consider that is when the movement control order is formulated; and there is under Schedule 5 ample power for lodging objections to any particular proposal. That will be the time to consider whether too high a standard is being imposed. I do not think it arises now, because if this Bill is going to last as an Act, as we hope, for some time, it must have the frame for the picture and contain the right empowering provisions. I should have thought that, in the light of what my noble friend has said, the case for the provisions of the kind that are now in the Bill is very strong. But I would stress that, when a movement control order is made, Schedule 5 gives ample power for considering the particular terms of the movement control order and lodging objections, if need be.
Having listened carefully to the explanation given by the noble Lord, I cannot say that I am very happy or clear about it. He said that the Amendment moved and accepted in another place has allayed the fears of the shipping interests. I am advised quite differently. I should like to see in Hansard the report of what the Minister has said, and to reserve matters until the Report stage, when we might deal with it again. On that basis, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.587
THE CHAIRMAN OF COMMITTEES
The position is that I cannot call more than one Amendment at the same time, and so far I have called only No. 41. When the noble Lord, Lord Hobson, got up, I supposed that he was supporting the noble Lord, Lord Teynham, on Amendment No. 41. Does the noble Lord wish to move Amendment No. 42?
LORD GARDINER had given notice of an Amendment in subsection 4(b), to leave out "imprisonment (whether in addition to, or in substitution for, a fine) for a term exceeding six months" and insert
a penalty other than a fine or of the infliction on him of a fine exceeding £300".
§ THE LORD CHANCELLOR
Amendments Nos. 43, 44 and 45 cover precisely the same points, and I should have thought it would be for the convenience of the Committee to discuss these three Amendments together. I do not know whether my noble friend Lord Teynham, as well as discussing Nos. 44 and 45, could move No. 43 in place of the noble Lord, Lord Gardiner.
§ 3.58 p.m.
§ LORD HOBSON
I beg to move Amendment No. 43. This Amendment deals with the question of making the maximum penalty a fine not exceeding £300. Already harbour masters in practically all, if not all, ports in the United Kingdom have power to regulate navigation by giving directions to ships. The elaborate movement control orders which are envisaged in Clause 19 will not extend the existing orders which harbour masters already possess. It seems that the introduction of high penalties is something which is to be deplored. I believe that under the present Act, when dealing with the subject of navigation, there is a fine of £20, and in the Port of London a fine of £50. Therefore, what we seek to do here 588 is to limit the fine that can be inflicted for the infringement of a movement order to the sum of £300. I beg to move.
§ Amendment moved—
§ Page 24, line 1, leave out from beginning to end of line 2 and insert ("a penalty other than a fine or of the infliction on him of a fine exceeding £300").—(Lord Hobson.)
In supporting this Amendment, I go so far as to say that Clause 19(4) is the most unpleasant and uncalled for clause in any Bill that I have found it necessary to debate in your Lordships' House after 25 years' service here. As a captain in Her Majesty's Navy, it is repugnant to me to know that my brother officers who are masters of ships in the Merchant Navy can render themselves liable to six months' imprisonment for disobeying a movement order in a British ship. It is all very well for the Minister in charge of the Bill to say that it is only an enabling power, as he did on Second Reading. That is not the point. This Bill enables a port authority to make by-laws whereby offences against the port scheme can be dealt with either summarily or upon indictment, with the maximum penalty of six months' imprisonment.
At the present time there are really four offences for which a master of a ship is liable for imprisonment. The first is misconduct, such as wilful breach of duty or drunkenness endangering life or ships; second, the wilful destroying or mutilation of an official log book, or making false or fraudulent entries in it; third, infringement of the Collision Regulations by wilful default; fourth, knowingly taking a ship to sea in an unseaworthy condition. I should like to ask Her Majesty's Government what justification they have for enabling a further offence of this nature to be added. Can they state any specific cases that have occurred in the past warranting this drastic clause in the Bill? In any case, I would say that it is most improper that this matter should be dealt with under the Bill which is now before your Lordships' House.
I suggest that it would be most unfortunate if this imprisonment provision were copied abroad. It would mean that the masters of British ships might he sent to gaol for not complying with the order of a foreign harbour master.
589 It may well be that a master's professional judgment led him to believe that to do so would involve risk to his ship. I should like to remind your Lordships that the professional judgment of three people may be involved in the navigation of a ship entering harbour: namely, the master, the pilot and the harbour master. Why should the master of a ship be singled out for imprisonment?
This clause is placing the master of a ship, who must have high professional competence, in the same category as the driver of a Ford van. I should like to point out that the possible imposition of sentences of imprisonment under this Bill has caused deep resentment among master mariners, and my Amendment which is now before the Committee will limit the penalty for failing to comply with a control of movement order to a fine not exceeding £500. Lord Hobson's Amendment says £300, and I am perfectly prepared to accept that.
§ 3.53 p.m.
§ THE LORD CHANCELLOR
It may be for the convenience of the Committee if I now answer the speeches that have been made in support of Amendment No. 43, which we are discussing with Amendments Nos. 44 and 45. The question at issue is whether there should be any liability to imprisonment for a breach of a movement control order. I am sorry that this particular provision is repugnant to my noble friend and that he regards it as most improper. I feel that that language is not justified and that it is right for the Bill to remain in its present form.
My noble friend said a few moments ago that this Bill is concerned with safety, and in these days, when so many big ships carry explosives and highly inflammable cargoes, it is essential for the safety not only of those on the water, but also of those who live on the land in the neighbourhood, that there should be power to control the movement of vessels into and out of a port. I am not suggesting for one moment that the masters of these ships carrying such cargoes do not and will not exercise the greatest possible care, but the failure by others to comply with the requirements of a movement control order may place the masters of such ships in great difficulties and, indeed, lead to a situation of extreme danger. I hope that I carry 590 the Committee with me in saying that it is clearly right to include in this Bill provisions for making a control of movement order.
Schedule 5, to which I drew attention a moment or two ago, deals with the procedure for making an order, and under that procedure anyone who objects to a provision in the proposed order will have ample opportunity for making known his objection. If one accepts that there must and should be a control of movement order in relation to certain ports, it surely follows that there must be some provision for dealing with those who do not comply with the requirements of such an order. I hope that so far I have been able to carry the noble Lord, Lord Teynham, and the Committee with me.
The question comes to this: what should be the maximum penalty for disobedience to a provision of the order? It is suggested that it should be a fine of £300 or £500. I would say, in passing, that it is not usual, when fining in respect of cases where the conviction is upon indictment, to prescribe an upper limit to the power of the courts. It is normally left to the discretion of the courts. Here, I think, the real issue is whether there should be any power to impose a sentence of imprisonment, and the Bill itself puts a maximum of six months. Amendment No. 45 suggests a maximum of three months, and perhaps I might deal with that Amendment straight away. I would say, first, that I cannot recollect any case where, by Statute, provision is made for trial on indictment (that is to say, before assizes or quarter sessions), with power to send to prison, in which the maximum sentence of imprisonment is limited to three months. Such a penalty is well within the jurisdiction of the magistrates' courts, and it would be highly unusual to find an indictable offence with such a limit of sentence.
But the real issue, as I say, is: should there be any power, for any breach of movement control order, to impose sentences of imprisonment limited, as the Bill suggests, to six months? Breaches of these orders must vary greatly. We are not considering here the terms of any particular order because, as my noble friend behind me remarked just now, this is only an empowering or enabling provision. The orders will be 591 considered under the machinery in Schedule 5. At one end of the scale, of course, the breaches may be extremely trivial and minor: they may be wholly inadvertent, due to incompetence, ignorance or carelessness. No one would suggest that if there were a breach of that character there should be a trial of the master of the ship, or of any other person, on indictment. What I would ask the Committee to consider is the kind of breach which comes at the other end of the scale—because we are here considering, not the minor breaches, but what would be the proper limit to a criminal sanction for a really serious breach.
What about the breaches at the other end of the scale: the case where the breach is deliberate, or is due to gross recklessness or gross carelessness; or where the result of the breach is to create a serious danger and a serious risk of loss of lives and damage to property? Such cases may not occur—one hopes they will not. But the question we have to consider is what should be the maximum penalty that may be imposed by the courts on conviction, should an extreme case of that kind in fact take place. The point I want to stress is that a deliberate or reckless disregard of a movement control order may lead to a serious situation. If that happens, if there is a flagrant, wilful disregard of instructions clearly given, is it right that the maximum penalty should be limited to a fine which might, after all, be paid not by the person responsible for the breach but by the owner of the ship?
My noble friend referred to the Collision Regulations. They, too, like these movement control orders, are designed to secure safety at sea, and if an infringement of those Collision Regulations is caused by the wilful default of the master or owner of the ship, the master or owner is guilty of a misdemeanour for which he may be prosecuted and, on conviction, sentenced to imprisonment for from six months to two years. This was enacted by the Merchant Shipping Act, 1894, and the maximum then was two years with or without hard labour. We are proposing for this offence, which is analogous to that in the Collision Regulations, a maximum imprisonment of only six months, which 592 obviously would be imposed—indeed, any sentence of imprisonment would be imposed—only for a gross case, a really bad case indeed.
I cannot discuss the terms of the movement control orders, but one would certainly not expect any movement control order, which may create a number of penalties for breaches of the provisions, to impose a liability of this sort to imprisonment except when the breach was of the character I have described.
As I have already said, when one gets a draft movement control order Schedule 5 gives ample opportunity for objecting and going into that matter. I must confess that I cannot see in the light of the provisions in the Collision Regulations and the provisions of the Merchant Shipping Act, 1894, that there is anything very novel, very unusual, improper, or repugnant in providing to secure compliance with a control of movement order that the most serious breaches to it may be punished on conviction and indictment by imprisonment for not more than six months.
My noble friend Lord Runciman of Doxford in the course of his speech on Second Reading said it was an entirely novel and wholly undesirable suggestion that a master mariner can render himself liable to six months' imprisonment for disobeying a movement order in port. I have already shown it is not novel. Nor do I think it is undesirable that there should be this liability. As I have said, such a liability to imprisonment exists for wilful breach of the Collision Regulations, and the Collision Regulations would not suffice in the absence of these provisions; it would not suffice simply to rely upon the Collision Regulations.
It might be argued that a collision even under control would involve breaches of the international Collision Regulations and so any penalties for such breaches set out in the Merchant Shipping Act would be applicable. That, in fact, need not necessarily follow, because the master could be observing the Collision Regulations and yet because of non-observance of directions made under a movement control order interfere seriously with the efficient working of the control system. Perhaps that might even lead to a collision. If I might give an example, he could 593 anchor his ship in defiance of a direction to proceed; this would not be a breach of the Collision Regulations but would be a source of interference and could well be dangerous in an area of control. Alternatively, the master could keep his ship moving, observing the Collision Regulations, when directed to proceed to anchorage; this again could be dangerous. In a way this power we are seeking to take here, designed to secure safety, is complementary to, amplifies and brings up to date this particular part of the Collision Regulations.
My noble friend drew attention, too, to the fact that there is liability to imprisonment on conviction for other offences under the Merchant Shipping Act. The noble Viscount, Lord Runciman of Doxford, did make this point, which I think my noble friend Lord Teynham rather hinted at to-day. The noble Viscount, Lord Runciman of Doxford suggested on Second Reading that a master might risk imprisonment for not taking his vessel to sea when ordered to do so because he might fear that the port authority would not accept a defence that in his view the vessel was not in a fit condition to proceed to sea. I would point out that the determination of the guilt or innocence of the master will not rest with the port authority. If it is decided to prosecute, either summarily or on indictment, it will be for the courts to decide whether or not guilt is established. I would draw your Lordships attention to the provisions of Clause 23, which we shall be discussing later. In the event of a prosecution being instituted it will, as your Lordships will see from that clause, be a defence for the person charged to prove—and I am reading the words—that he had reasonable ground for supposing that compliance with the direction, provision or prohibition in question, would be likely to imperil the ship or to prove that in the circumstances compliance with the direction, provision or prohibition in question was impracticable.I would just like to add this: that we ordinarily leave, and rightly leave, to the courts a wide discretion as to the sentence imposed. I myself do not believe for one moment that the courts would impose any sentence of imprisonment for breach of a movement control order unless it was clearly established that the breach was deliberate, inexcus- 594 able and was fraught with very serious consequences. It is because a very serious breach may warrant a sentence of imprisonment that I suggest to your Lordships that it is right not to exclude power to include in a movement control order a penalty of up to six months imprisonment. As I have said, Schedule 5 provides machinery for objecting to the contents of the movement control order, and it is the order itself which will prescribe the penalties for its breach.
I really cannot accept the statement made by the right reverend Prelate the Lord Bishop of Chester on Second Reading that there would not be "a real element of criminal impropriety". I think there would if there were deliberate, inexcusable flouting of a movement control order seriously endangering lives and property. It is just to meet this extreme case, which one hopes will not in fact occur; it is because of the necessity of seeing so far as one can that these movement control orders, designed to secure safety, are not flouted, that I suggest to your Lordships, giving full weight, as I have, to the argument advanced on Second Reading and again by my noble friend to-day, that it is both right and wise to retain the Bill in its present form.
§ LORD SHACKLETON
The noble and learned Lord has, of course, deployed a very powerful case, but those of us who criticise this particular provision do so on the grounds that in this matter the Government are using a quite inappropriate instrument to deal with the situation for which there are already very strong sanctions. The noble and learned Lord referred to the Merchant Shipping Act, where there are provisions in certain sections—Section 200, Section 220 and Section 419, to which he referred—under which it is possible to inflict prison sentences. I should have thought that there was a strong case, in regard to this particular type of offence, to limit the penalty to a fine, and to leave the Merchant Shipping Act to take care of any grave or wilful breach of duty.
The noble and learned Lord several times used strong language about the more serious offences which. I should have thought, were adequately covered by Section 220 of the Merchant Shipping Act. The life and career of a master of a ship is dependent on much more than 595 the threat of imprisonment; if he behaves in any way improperly and hazards his ship and there is a collision, he is likely to be ruined anyway. We are critical of this clause because we believe the Government are applying an old-fashioned approach to a situation which is quite different from that which applied when originally the Merchant Shipping Act was introduced. We are doing so now in a situation when there are many nations who, on occasions, have treated our masters in a way which has aroused indignation in this country. There have been instances recently where our seamen, and certainly our masters, have been treated in this way.
This, again, is an example of a unilateral act; it has not been the subject of international negotiations. I would argue that it is really not necessary for the purposes of this particular Bill to take powers to inflict a prison sentence, and that it is undesirable in view of the possibility of international repercussions. I urge the noble and learned Lord the Lord Chancellor to look at it in that light. Clearly, in legal terms his case was impeccable and powerful. Our complaint is that this is inappropriate for the sort of situation which is likely to arise under this particular clause; and if there is such a wilful act, such wilful breach of duty, then I suggest that the existing provisions of the Merchant Shipping Act, and in particular of Section 220, would be the way to deal with it.
§ 4.23 p.m.
§ THE EARL OF SWINTON
As we should expect, the Lord Chancellor has put the case most fairly, and the issue lies in a quite narrow compass. It is as to whether there should be a power to send to prison, and, if so, how that should be defined. I will come to the point of how it should be defined, because I think it is extremely important. My memory goes back to the Great Convention of 1928, when I was President of the Board of Trade, when nearly all the safety regulations were agreed by nearly all the nations, and in regard to which some Members of the Committee will still remember the most remarkable speech—I think the only speech he ever made here—that was made by Admiral Lord Jellicoe in support of the Convention. My recollection—the Lord Chan- 596 cellor will correct me if I am wrong—is that the Convention and the Act which I introduced to give effect to that Convention covered an enormous field of safety regulations and the like. There was no penalty of imprisonment. There were the general penalties under the Merchant Shipping Act, as the noble Lord opposite has said, which I think were regarded as adequate.
There is a new Convention bringing that old Convention up to date, which is, I think, now enshrined in legislation which is coming before us in this Parliament. I should like to know whether, in that Convention legislation, there is any provision for imprisonment for breach of these internationally agreed rules and regulations. I should doubt it. I would agree, on the whole, with the noble and learned Lord, the Lord Chancellor—though I should have thought that the Merchant Shipping Act already provided for it—that where there was wilful, what we should commonly call criminal, default by a master risking his ship, or any ship, and the lives of the people on the ship, like a breach of the Collision Regulations (by wilful default or wilful misconduct, whichever the words are) that is so grave that there should be a power to send to prison.
I would have thought that provision was in the Merchant Shipping Act. If it is to exist, I think it ought to exist in specific legislation which lays down in precise terms what is the criminal offence for which a man may be sent to prison. It seems to me to be quite unsatisfactory just to leave it for inclusion in any one of a whole series of orders which are going to be made for every port and for every harbour regulating authority throughout the country. It is apparently going to be put in as a general penalty.
I would trust the High Court, certainly in this country, not to send a man to prison unless he had committed a serious offence. But that really is not the point here. The point here is that you are going to include in these harbour regulations a power to prosecute and power for the High Court to send to prison if a prosecution takes place. The noble Lord opposite said that it is a bit old-fashioned. It is rather like the old Army Act which used to read,Death, or such less penalty as this Act provides.597 That seems to me to he unsatisfactory. I would beg the Lord Chancellor to consider this matter. Let him lay down in a specific provision in the Bill what is the offence for which a master may be sent to prison; and let it be said that the harbour regulations may, under this Bill, contain that provision, but shall not contain any other provision making a man liable to go to prison. That seems to me much more consistent with what we always do in English legislation—namely, lay down specifically what the crime is for which a man may be indicted.
I have one other reason for asking that this general provision shall not be here in these terms. We have led the world in safety regulations; we have led the world in shipping practice; and countries all over the world, particularly in the Commonwealth, have copied our legislation and our provisions. To-day, many of these countries are self-governing, and it may well be that they may say, "Here, in the British Act, there is a power to imprison a master for a breach of harbour regulations. Let us include that in our domestic legislation in this country."
Then one might conceive the case (and I will take an imaginary place) in which the harbour master in Bunga Bunga has a row with the captain of a ship, and it might well be that the master of the ship would be much more likely to be right in knowing what it was safe to do than that particular harbour master. Yet if that general provision is there, then not only might the ship be impounded and the man be fined, but the master might be sent to prison. I beg the noble and learned Lord the Lord Chancellor to consider whether, if he wants this provision for imprisonment and thinks that something is necessary in addition to the Merchant Shipping Act, he should put down a clause prescribing the offence for which imprisonment would be an appropriate penalty and that the regulations should include only that.
§ 4.32 p.m.
§ LORD GARDINER,
I feel that I can speak only with the indulgence of the Committee, apologising for the fact that, through no fault of my own, I was unable to be here when this Amendment was moved, and also asking for the indulgence of the Committee if I say any- 598 thing which has been said before. I particularly regret, of course, that I did not hear what the noble and learned Lord the Lord Chancellor said. Therefore, I can tell the Committee only what was in my mind when I put down this Amendment. In the first place, this is not a subject on which it can be said that I have any prejudices, because I am not a sailor; I am a landlubber, and I am no more prejudiced in favour of masters of ships than is anybody who has been to sea. Nor have I received any letter from any interested party.
What was in my mind was this. We have 30,000 people in prison, and 8,000 sleeping three to a cell. Our forces of law and order are having some difficulty in controlling the situation, and it seemed to me that we ought, perhaps, to think before we constitute a new criminal offence which is punishable by imprisonment. No doubt it is right that harbour authorities should be able to make control of movement orders, but some of them are really navigational orders and there should be only one person who is in charge of a ship. I had in mind not only that the official who gives the order may be a quite junior official and himself a landlubber, but also the possible difficulties of the master of ships, faced, on the one hand, with his duty to his owner and, on the other, with a risk of being sent to prison. A fine, even a large fine, is perhaps, in a sense, a different matter; because if the owner thinks that the master has done the right thing I suppose that the owner may pay the fine.
I also had much in mind that the Merchant Shipping Act is, in effect, a code of nautical discipline. Discipline is, of course, necessary for masters, officers and crew, but the Act constitutes a complete code, with the various courts of inquiry and survey, naval courts, and with the Court of Admiralty being able, on the face of it, to take care of almost anything which a master of a ship might do that was wrong. I particularly had in mind the fact that Parliament has thought fit to provide that on nearly all these tribunals set up under the Merchant Shipping Act there are members who have considerable nautical experience (this does not apply to the Court of Admiralty, I know, but they have the assistance of the Elder Brethren of Trinity 599 House), whereas under this provision of the present Bill, the master of a ship will find himself before justices, either in petty sessions or in quarter sessions, Moreover, I was not at all clear that anything necessary was not already covered by the Merchant Shipping Act,
I then found, to my surprise, that there did not seem to have been the usual measure of consultation with interested persons which one would have anticipated. The Merchant Navy and Airline Officers' Association had not been consulted, and they oppose this clause; the Chamber of Shipping also oppose it, so far as it provides for imprisonment. I began to wonder who it was, apart from some gentlemen in a Government Department, who wanted it. Presumably the harbour authorities. But then it was said in another place, without contradiction, that the Docks and Harbours Association did not want it at all. One still begins to wonder who did want it. If I may say so (I hope without giving offence), it may be, of course, that in what I might call a June situation there was not the time for consultation which there is now, in what I might call an October situation. Apparently the only people who wanted it were the Government, and I could not understand why. When the Parliamentary Secretary—himself, of course, a very distinguished sailor—was asked in Standing Committee in another place, on February 4, about this provision he said (col. 476):I can say at once that we certainly do not regard this Amendment as one that would wreck the clause, and if it is the wish of the Committee that the lesser penalty should be accepted, we will bow to the will of the Committee.So apparently it is not even the Government who are committed to it; it is only the gentlemen in the office, and nobody else.
I apologise if, in attempting to put the matter as shortly as possible, I have repeated arguments which were made in my absence. But I suggest that this Committee would be properly fulfilling its advisory function if it said that, no interested persons having been consulted in the usual way, and this provision being opposed by all the people who understand these matters, and since the Government have said that it is 600 not a matter about which they care but is a matter entirely for the Committee, the case for creating a new criminal offence, punishable by imprisonment, so far as masters are concerned, if being in difficulties they think that the movement which some "landlubbing bloke" has told them to make is not a proper one, ought to be removed and the Amendment accordingly allowed.
§ THE LORD CHANCELLOR
I am sorry that the noble and learned Lord, Lord Gardiner, was unable to be here when the Amendment was called, and I am sorry too that he was unable to hear the speech which I made in support of the Bill in its present form. I do not want to repeat what I said, but I would ask the Committee to allow me to say to the noble Lord that the case we are considering here is what is the appropriate penalty to provide as a maximum for what one might call the most serious and deliberate flouting of a control of movement order, which may seriously endanger a large number of lives and property. I recognise full well that in considering what should be the maximum penalty for such an offence there can be a wide variety of views. My approach to this problem is not in any way affected by questions of June or October or the views of civil servants, as the noble Lord suggested, but is to see whether we can get the right answer to this question.
I start with this. If, of course, the existing provisions of the Merchant Shipping Act sufficed to cover this situation, we should not have any provision of this sort in this Bill at all. The provisions of that Act impose liability not just to six months' imprisonment but to two years' imprisonment and make provision, as the noble Lord, Lord Gardiner, knows, for trial before justices as well as trial on indictment. Of course, we could in this Bill have attracted the control of movement order to the Merchant Shipping Act, 1894, in much the same way as the Collision Regulations are brought within the scope of that Act, and a prosecution for a breach of the Collision Regulations may lead to a sentence of imprisonment being imposed. And, of course, as I indicated before, that can happen only where the breach of the Collision Regulations is due to the wilful default of the master or owner of the ship.
601 One of the difficulties which I am in—and my noble friend Lord Swinton drew attention to it—is the fact that in this Clause 19 this is drawn as a general empowering provision. I think a number of my noble friends are worried lest there might be some sort of overall provision in the movement control order imposing this as a kind of maximum liability irrespective of the quality of the breach. I myself, as I said before, cannot believe that any movement control order would do any such thing, because if it did it would have no possible chance of being approved by either House of Parliament. Although I say "approved", I would go further than that. The movement control orders have to be laid before Parliament, and under Clause 52 they are all subject to the Negative Resolution. I do not know what is in the mind of my right honourable friend the Minister of Transport with regard to this, but I myself would apprehend that he would certainly not do anything to assist in the presentation of a movement control order which imposed liability for imprisonment, except in the cases of the most wilful default on the part of the person responsible.
We are, in fact, being asked now by those who support this Amendment to say that, in no circumstances, however grave the breach of the movement control order may be, however much lives or property may be endangered by the breach—and it may be a breach by a small vessel which puts big vessels in danger and difficulties—would it be right for that breach to be met, if the guilt is established, by a sentence of imprisonment. I say quite frankly that I find it difficult to accept that. While I share with the noble and learned Lord, Lord Gardiner, a reluctance to add to the population in our prisons, at the same time we normally entrust a wide discretion to our courts. And I am approaching this not at all in a Party spirit, or on account of the Election date being June or October or whenever it may be, but to try to get the right answer.
I believe myself, bearing in mind the provisions of the Merchant Shipping Act which are far more draconian with their two years' imprisonment, and bearing in mind that it is the fact—I could 602 amplify it at great length if the Committee wished it—that really the Merchant Shipping Act will not cover this field, that it is a reasonable provision to insert. Again, one should also bear in mind the fact that, before any provision in a movement control order defining an offence and imposing a liability to imprisonment for any term can really take effect, Parliament will have an opportunity of saying that it does not approve and of condemning it. All these are subject to the Negative Resolution.
I should be much more sympathetic to this Amendment if I felt there was not that Parliamentary control, because when we see what are the terms of the movement control order, then we can see—and I hope we shall see—this power to impose imprisonment limited by definition to offences which all of us would agree would be serious offences. At the present moment all that we are seeking to do in this Bill is to take power to secure that for some offences such a penalty can be prescribed. I myself do not think that unreasonable. I do not think that this is really an issue of Party politics. It is something which we should all approach very seriously, because, as I said a few moments ago, we are in this Bill trying to do something which will lead to greater safety, and to produce an Act which will work satisfactorily for many years.
I am, of course, perfectly prepared to consider any further suggestions which are made, and any views of noble Lords opposite and my noble friends. But I must say that I feel that it would be unwise, by accepting this Amendment, to prohibit the possibility of the imposition of a prison sentence of up to six months for the most serious breach of the requirements of a movement control order.
§ THE EARL OF SWINTON
Before the noble and learned Lord ends his reply, would he deal with the specific point which I put to him: that he should put into this Bill a precise definition of the offences for which the High Court is to be able to send a man to prison? Then we should know what we were making a criminal offence, and should know what it was that would go 603 into every harbour regulation that was made. I cannot see any objection to that when, obviously, this is the kind of thing Parliament wants to do. I cannot see why we cannot do it now.
§ THE LORD CHANCELLOR
I am certainly very attracted to that suggestion. I was just going to say this to the noble Earl.
§ THE LORD CHANCELLOR
I cannot, with my present state of knowledge of what it is intended to put into movement control orders, say that I could contemplate what the particular offences will be. But Collision Regulations are attracted to the Merchant Shipping Act by these words in Section 419(2), which reads as follows:If an infringement of the Collision Regulations is caused"—and, of course, it does not follow that there must be a collision—… by the wilful default of the Master or owner of the ship, that Master or owner shall in respect of each offence be guilty of a misdemeanour.That carries two years' imprisonment.
I should like to consider whether one could not do something on those lines, but possibly even a little narrower. That is where I am in a little difficulty about saying, Yes, to my noble friend's suggestion. If it would meet the Committee, I think I can give an undertaking (I have not consulted my right honourable friend) that I will try, before the Report stage, to re-draft this provision to make sure that the penalty of imprisonment could not be imposed under any movement control order, except in cases of wilful default on the part of the owner or master; or, to put the other side—a side with which noble Lords are familiar in cases of manslaughter and so on—something that is equivalent to gross recklessness.
If I could carry the Committee with me to the extent that if the imprisonment penalty were limited in that way, they would be satisfied, then I should feel that this has been a very useful discussion. I should certainly like to consider whether we can find a form of words to do that. That would mean—and, indeed, it is completely in line with 604 what I said originally in dealing with this Amendment—that this liability to imprisonment would be kept for only the grossest, most serious breaches; and it might well be—I hope it would be—the case that this power would never have to be used. But if it is the wish of the Committee that I should give further thought to that possibility, I shall be glad to do so. I do not think this is a Party issue. It is something of very great importance. There are masters of all kinds, but we do want to be able to cover the most serious breaches of these orders quite as well as the minor ones, which are of no very great importance.
§ LORD HOBSON
In view of the assurance which the noble and learned Lord the Lord Chancellor has given in his closing remarks, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 19 agreed to.
EARL ST. ALDWYN
I think this might be a convenient moment to have the statement. I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to: House resumed accordingly.