§ 4.42 p.m.
§ THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF THE ENVIRONMENT (LORD SANDFORD)My Lords, on behalf of my noble friend the Leader of the House, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Sandford.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD DERWENT in the Chair.]
§ Clauses 1 to 7 agreed to.
§
LORD SANDFORD moved Amendment No. 1:
After Clause 7, insert the following new clause:
§ Shipping casualties
§
.—(1) The powers conferred by this section shall be exercisable where—
(2) For the purpose of preventing or reducing oil pollution, or the risk of oil pollution, the Secretary of State may give directions as respects the ship or its cargo—
(3) Directions under subsection (2) above may require the person to whom they are given to take, or refrain from taking, any action of any kind whatsoever, and without prejudice to the generality of the preceding provisions of this subsection the directions may require—
(4) If in the opinion of the Secretary of State it is impracticable to ensure that oil pollution, or the risk of oil pollution, will be prevented or reduced by the giving of directions under this section, the Secretary of State may, for the purpose of preventing or reducing oil pollution, or the risk of oil pollution, take, as respects the ship or its cargo, any action of any kind whatsoever, and without prejudice to the generality of the preceding provisions of this subsection the Secretary of State may—
(5) The powers of the Secretary of State under subsection (4) above shall also be exercisable by such persons as may be authorised in that behalf by the Secretary of State.
(6) If the person to whom a direction is duly given under this section contravenes, or fails to comply with, any requirement of the direction, he shall be guilty of an offence under this section and shall be liable—
(7) In proceedings for an offence under subsection (6) above, it shall be a defence for the accused to prove that he has used all due diligence to ensure compliance with the direction.
(8) If a person wilfully obstructs any person who is acting in compliance with a direction under this section, or who is acting under subsection (4) or (5) of this section, the first mentioned person shall be liable on summary conviction to a file not exceeding £100.
49
(9) No direction under this section shall apply to a ship—
and no action shall be taken under subsection (4) or (5) above as respects any such ship.(10) No direction under this section shall apply to any vessel of Her Majesty's Navy, or to any Government ship, and no action shall be taken under subsection (4) or (5) above as respects any such vessel or ship.
In this subsection "Government ship" has the same meaning as in section 80 of the Merchant Shipping Act 1906.
(11) The provisions of this section are without prejudice to any rights or powers of Her Majesty's Government in the United Kingdom exercisable apart from this section.
(12) Schedule (shipping casualties) to this Act shall have effect for supplementing this section and this section is in that Schedule referred to as "the principal section".
(13) In this section, unless the context otherwise requires—
accident" includes the loss, stranding, abandonment of or damage to a ship,
specified", in relation to a direction under this section, means specified by the direction.
§ The noble Lord said: I beg to move Amendment No. 1, and with the leave of the Committee I suggest that we discuss with it Amendments Nos. 3 and 4, for they all hang together. I said during the Second Reading debate that I proposed to put down a set of Amendments at this stage which would give the Secretary of State for Trade and Industry powers either to direct the owners or the salvors of a damaged ship within our territorial waters to take action to avoid pollution or, if necessary, to take action himself. I must first apologise to the Committee for introducing at this late stage such a substantial new provision. The fact is that we are here dealing with a matter which neither this Government nor, I believe, our predecessors had in mind when the original Bill was being prepared. However, the incident involving the tanker "Pacific Glory" late last year—one week before the Second Reading of this Bill in another place—highlighted our vulnerability and the need for the Government to have additional powers. It seemed wise to take advantage of the present Bill to provide such powers as soon as possible.
§ One result has been that the consultations have been rushed and the new clauses have been prepared with some 50 haste. I am therefore very willing to consider sympathetically any further Amendments which discussion in Committee may show to be desirable. Indeed, further minor Amendments to my Amendment have already been suggested, and I shall be mentioning them now and considering introducing Amendments to give effect to them on Report. And, in order to ensure that adequate time is available for all concerned to give this new clause and this new Schedule full consideration, my noble friend the Chief Whip has agreed that there shall be a clear fortnight between this Committee stage and the next stage, Report.
§ One of the Conventions signed at Brussels in 1969, which we have now ratified but which is not yet in force, deals with intervention on the high seas in cases of oil pollution casualties, and gives the State power, subject to certain procedures and safeguards, to take measures to forestall a threat of oil pollution arising from a maritime casualty—stranding or a collision. However, there is likely to be even more need to take such measures within our own territorial waters, to which the Convention does not apply.
§ The general object of the Convention does not need legislative implementation, since we consider that we have power to take any measures we think fit, and any action for compensation by the shipowner or other person injured would, if he were a foreigner, be met with a defence of "Act of State". However, in two cases not covered by the Convention this defence would not be available to Her Majesty's Government; namely, action against any ship in territorial or internal waters; and any action against United Kingdom ships on the high seas. Power to take such action is therefore required, both to protect Her Majesty's Government against legal action by a shipowner or any other person as a result of any measures and to enforce compliance where the measures involve the giving of a direction. This clause will provide the Government with such a power.
§ We have thought it right that the major emphasis should be placed on a power to give directions, in particular to shipowners and salvors. Under subsections (1), (2) and (3) of the proposed new clause the Secretary of State may give directions 51 where oil has escaped or been discharged as a result of an accident, or is likely to do so, and in his opinion pollution on a large scale can be expected to result therefrom. It has since been suggested that the threat of pollution should also need to be imminent before these powers of direction are used, and an Amendment to this effect will be further considered. The directions must relate to the ship or its cargo; otherwise they may be unlimited in scope, but subsection (3) of the new clause gives examples of actions which may be required.
§ Under subsections (4) and (5) of the new clause the Secretary of State may himself, if he thinks it impracticable to ensure that oil pollution, or the risk of it, will be prevented or reduced by the giving of directions, take any action for that purpose. Again, examples of such actions are given, including actions which would not appropriately be the subject of directions.
§ At this point I would draw your Lordships' attention to the fact that the powers given by subsections (1) to (5) operate only when the threat is one of oil pollution. There could be other threats for which similar powers would be desirable—for example, threats of damage by explosion or the escape of other dangerous cargoes. However, powers for such purposes could not reasonably be brought within the ambit of the present Bill, and the Government concluded that it was so urgent to provide against the danger of oil pollution that it was better to seek limited powers now than to await an opportunity for more general legislation later.
§ Failure to comply with directions under subsection (6) of the new clause is punishable in the same way as is a breach of Section 1 or 3 of the 1955 Act; that is, by a fine within a maximum of £50,000 on summary conviction, or by a fine without limit on indictment. It is appropriate that the penalties should be similar, for a discharge of oil as a result of wilful refusal to obey a direction is essentially the same as a deliberate discharge. Moreover, there could be the same need for quick proceedings before a magistrate, before the master or salvor of a ship left our jurisdiction. A defence is provided by subsection (7) for an accused who can prove that he used all due diligence to ensure compliance with 52 the direction. It has since been suggested that the phrase "all due diligence" is not altogether apt, and before the next stage I shall be considering an alternative form of drafting.
§ Suggestions have also since been made for two further defences under subsection (7). The first is that the action required should be what is practicable without causing risk to human life. This is a reasonable point and we will consider introducing an Amendment to give effect to it. The second suggestion is that it should be a defence to show that compliance with a direction was not reasonable in all the circumstances. I understand that this is intended to cover the situation where, for instance, a change in weather conditions has occurred after the direction was made. I can foresee some difficulties in regard to this point, but we will consider it.
§ Subsection (8) provides a penalty for wilful obstruction of a person seeking to carry out a direction, and subsection (9) confines the effect of the new clause to ships that are within United Kingdom jurisdiction. Subsection (11) makes it clear that the clause does not affect our rights under the Convention. Subsection (10) exempts naval and other Government ships from the application of the clause, which is obviously inappropriate to them. It has since been proposed that foreign Government ships and warships should be excluded, as in Article I of the Convention, and on Report I will put down an Amendment for that purpose. Subsection (12) introduces the Schedule, about which I shall have more to say in a moment, and subsection (13) gives certain definitions.
§ Perhaps I may now say a word about the Schedule, the subject of Amendment No. 3. The Schedule provides an important safeguard for the owners of the ship and the cargo, and for any other persons who may suffer damage as a result of action taken under the new clause. It is not intended that there should be any limit on the Government's powers or that any further defence should be given to a person disobeying directions, apart from that in subsection (7), as further amended if we find it necessary. However, in order to keep the situation in territorial waters in line with what applies on the high seas under the 1969 Convention, paragraph (1) of the Schedule provides 53 that if any person can show that he has incurred expense or suffered damage as a result of directions given or action taken by the Secretary of State, he shall be entitled to compensation if he can show that the action was not reasonably necessary to avoid oil pollution damage or was not proportionate to the actual or the threatened damage. Paragraph 1(2) sets out the matters which are to be taken into account by the court in considering whether measures are proportionate. These follow Article V.3 of the 1969 Convention. Paragraph 2 of the Schedule deals with technical questions relating to the giving and serving of directions.
§ Paragraph 3 of the Schedule is important. It provides that action taken in pursuance of a direction, or action taken by the Secretary of State himself, in respect of a ship in the custody of the Admiralty Marshal does not constitute contempt of court, and it relieves the Admiralty Marshal of any liability in civil proceedings for failure to carry out his duty to ensure the custody of the ship. This provision is necessary to protect the position both of the Secretary of State and of the Admiralty Marshal when directions are given or action is taken as regards a ship under arrest in civil proceedings in rem. A conflict of interest can easily occur in such a case, when the avoidance of pollution may make it desirable to move a ship away from our shores.
§ Finally, I turn to the Title, the subject of Amendment No. 4, which is to be found on the final page of the printed Marshalled List. The new clause and the new Schedule go beyond the present Long Title of the Bill, which relates to the Amendment of the 1955, 1963 and 1964 Acts and implements the 1969 Convention. They are still concerned with oil pollution but they make provisions of a kind which are not in the present legislation and so the additional wording proposed is desirable.
§ The whole new clause, the new Schedule and the new Title give the Government extensive powers beyond the mere ratification of the Convention, but we believe they are needed. We hope it will rarely be necessary to use them and that we shall be able in most cases, as we were in the case of the "Pacific Glory" incident, to obtain the willing co- 54 operation of all the interests involved in ensuring that a casualty is handled in a way which will minimise any threat of pollution to our coasts. Indeed, I would emphasise that although the clause does not embody a requirement to consult, corresponding to Article III of the Convention, it is of course the Government's firm intention to proceed by means of consultation in any such future disaster, both with the owners of the ship and its cargo, with any salvors involved and with anybody else who can help. I say this not only from respect to the legitimate interests of those directly concerned but also because there may be expert knowledge not available in the Government of which we shall want to take advantage. But, as I said on Second Reading, we may not always be able to rely on co-operation, and I believe we must have the power in reserve to protect our reasonable interests from damage or from the threat of damage. I beg to move Amendment No. 1.
§ 4.56 p.m.
LORD HAWKEI may not have heard the noble Lord aright, but did he by any chance say that this clause has been drafted in full consultation with the underwriters? Because some quite extraordinary actions can take place under it which could seriously prejudice the interests of the underwriters of any damaged ship. I should like to draw his attention to paragraph 1(1)(b) of the Schedule. It seems to me that this sentence might well have been drafted for the benefit of the members of the Admiralty Bar in future years. I find it extraordinarily difficult to understand, and I am sure the courts will have a splendid time arguing exactly what it means. I wondered whether, before the next stage of the Bill, the noble Lord would consider drafting it a little more closely.
§ LORD SANDFORDThere have been consultations, but during my remarks I said that they have not been as thorough and deliberate as we should wish; and if the noble Lord or any of his friends can give us the benefit of their counsel between this stage and the next we shall be grateful to them.
§ LORD KENNETI think the noble Lord's question must have been addressed to the words "proportionately less". Is "proportionately less" less 55 than "less" or more than "less"? This new clause is indeed a large one to introduce at Committee stage, but I think the Committee must welcome it because it is a response to a new situation. In a way, when reading it I had the impression that it was rather shocking that all these things were not already possible to the Government. It is like waking up one morning and finding that there is not a law against murdering your aunt, but of course you do not find that out until somebody murders his aunt. That is what happened in the "Pacific Glory" case: gaps showed up, and gaps are being plugged, and in my view rightly, by the Government in this new clause. I was particularly pleased to hear the noble Lord say that the Committee ought to accept it although it goes beyond the Convention. I think it is right to go beyond the Convention in this case, and, as I was arguing just now, it would be right to go beyond the Convention in other cases on the other Bill.
The noble Lord said that he had been pressed to add the word "imminent" to the qualification in a situation which would entitle the Secretary of State to take these actions—that the probable pollution had to be not only large scale (or whatever the wording was) but also "imminent". I would urge the noble Lord to think carefully before agreeing to include the word "imminent", because one could lose a lot of time considering a submission by an owner or a salvor that although there might be danger of something terrible happening there was in fact no danger of its happening for perhaps three days; and would the Government kindly wait while it became more imminent and while the time for doing the right thing decreased? I will not go so far as to say that I hope he will not add the word "imminent", but I hope he will look carefully at it before adding it.
The noble Lord said that the Government intended to take corresponding powers to deal with the risk of pollution from causes other than oil and to deal with the risk of explosion. It is open to question whether he should not have taken the powers immediately in this new clause. The new clause itself goes outside the Bill as drafted: so much is clear about it from the fact that the Government 56 have already had to amend the Long Title. Once one starts amending Long Titles it seems to me one might as well finish the job in one. The Government are not doing that, and I hope they will be able to tell us when we can expect legislation to finish the job and take corresponding powers to deal with other dangers. I do hope it can be in this Session. There seems to me no justification for leaving all the other dangers of chemical pollution and chemical explosion uncovered while dealing very properly with oil pollution.
May I turn to two particular points which seem to me open to question in the drafting of the new clause? Subsection (6) says that if the Secretary of State tells somebody to do something and he fails to comply with his direction, the person can be fined £50,000. But under subsection (8) if the Secretary of State then takes action himself and the other person obstructs him in carrying out these operations directly, that other person can only be fined £100. At first sight that seems to be reasonable: if I refuse to do what the Secretary of State tells me, I am fined £50,000 and then, if he does it for me I am fined only the small amount of £100. One can see the Government's point: that there is no point in fining me another £50,000.
But supposing I fail to do what the Secretary of State tells me, and supposing I am able to sustain the defence under subsection (7), that I have used
all due diligence to ensure compliance with the direction",but have nevertheless failed to comply, I cannot be fined £50,000. The Secretary of State comes along and does it himself; I obstruct him, and I can be fined only £100. So it seems to me that a fiddly company could get off the hook rather easily by appearing to try to comply, to establish the "all due diligence" defence, but obstructing the Navy when it comes along. Perhaps the noble Lord would look at that.Lastly, can the noble Lord tell us quite clearly about subsection (9), which says that the Secretary of State cannot give directions or take action in respect of non-British registered ships outside territorial waters. It is specifically stated that he cannot do anything about non-British ships outside the three-mile limit, even though it looks as though they are going 57 to pollute within the three-mile limit. Have the Government powers to do something about this in other legislation; and, if so, which? If they have not, how do they propose to enforce the admirable system of traffic control in the Channel, outside the three-mile limit which they have recently proposed?
§ 5.4 p.m.
§ LORD SANDFORDI am grateful to the noble Lord for his reception of this late Amendment and for his agreement that it was nevertheless desirable to try to incorporate these provisions in the Bill at this late stage, and for his welcome for the fact that we have gone beyond the Convention. In going beyond the Convention, we are now setting an example to other countries, and the kind of legislation we are enacting here will be examined by them to see whether there are lessons to learn from it. It is therefore especially important that we proceed, though with haste, with the greatest possible care; and for this reason the observations of your Lordships are particularly welcome. I fully take the point which the noble Lord made about the word "imminent", and will consider it carefully between this stage and the next. As to the question of when we will take action on the wider issues of damage by explosion, or damage by the leakage and discharge of chemicals other than oil, I cannot give him an answer now, nor can I give him any assurances about that. But I will do the best I can before the next stage.
I am also grateful for the points that he has made in dealing with subsections (6), (7) and (8) and the apparently wide disparity between the fine that can be inflicted for an offence under subsection (6) and the very modest fine for an offence under subsection (8). I promise, as I think I have done already, to look at that before the next stage.
The noble Lord asked me about the powers that we already have to deal with ships threatening or causing pollution in territorial waters and outside territorial waters. I think this phrase in my original remarks answers the point. There are two cases not covered by the Convention, and the defence which this clause provides will not be available to Her Majesty's Government; namely, in an action against any ship in territorial or internal waters or any action against 58 United Kingdom ships on the high seas, I hope that makes it clear.
§ LORD KENNETThe noble Lord has described the law as it now stands—that is, before this new clause is passed into law. My question related to the situation after this clause becomes law. The new clause will give the Government power to take action over all ships in territorial waters and British ships outside territorial waters. My question is what about non-British ships outside territorial waters after this new clause is passed? Will they be covered by other provisions; and, if so, which? And, if not, how do we get the compulsory traffic discipline in the Channel which we are proposing?
§ LORD SANDFORDI think that traffic discipline is rather a different question. The whole purpose of the main Bill is to deal with ships of the category the noble Lord was mentioning. What the "Pacific Glory" incident showed was that we have no powers at present to deal with casualties, collisions and strandings of any ship inside our own territorial waters. The original Bill ratifying the Convention gives us the powers we need to deal with the other situation. If the noble Lord is not satisfied with that, perhaps we can have a word together and return to it at the next stage.
§ On Question, Amendment agreed to.
§ Clauses 8 to 11 agreed to.
§ Schedule 1 [Minor and Consequential Amendments of Oil in Navigable Waters Act 1955]:
§ LORD SANDFORDAmendment No. 2 is a minor consequential drafting Amendment. I beg to move.
§ Amendment moved—
§
Page 7, line 24, at end insert—
("6. In section 22(3) for the words "this Act" there shall be substituted the words "the provisions of this Act other than section 10".")—(Lord Sandford.)
§ On Question, Amendment agreed to.
§ Schedule 1, as amended, agreed to.
§ LORD SANDFORDI hope that my explanation of the whole purpose of these three major Amendments has made Amendment No. 3 clear. I beg to move.
§
Amendment moved—
After Schedule 1, insert the following new Schedule,
§ "SCHEDULE
§ SHIPPING CASUALTIES
§ Right to recover in respect of unreasonable loss or damage
§
1.—(1) If any action duly taken by a person in pursuance of a direction given to him under the principal section, or any action taken under subsection (4) or (5) of the principal section—
a person incurring expense or suffering damage as a result of, or by himself taking, the action shall be entitled to recover compensation from the Secretary of State.(2) In considering whether subparagraph (1)(b) above applies, account shall be taken of—
(3) Any reference in this paragraph to the taking of any action includes a reference to a compliance with a direction not to take some specified action.
(4) The Admiralty jurisdiction of the High Court and of the Court of Session shall include jurisdiction to hear and determine any claim arising under this paragraph.
§ Directions
§
2.—(1) If the Secretary of State is satisfied that a company or other body is not one to whom section 412 or section 437 of the Companies Act 1948 (service of notices) applies so as to authorise the service of a direction on that body under either of those sections, he may give a direction under the principal section—
(2) For the purpose of giving or serving a direction under the principal section to or on any person on a ship, a person acting on behalf of the Secretary of State shall have the right to go on board the ship.
(3) If a person wilfully obstructs any person acting on behalf of the Secretary of State in connection with the giving or service of a direction under the principal section, the first-mentioned person shall be liable on summary conviction to a fine not exceeding £100.
§ Ship under arrest
§
3. It is hereby declared that any action taken as respects a ship in the custody of the Admiralty Marshal or as respects the cargo of such a ship, being action duly taken in pursuance of a direction given under the principal section, or being any action taken under subsection (4) or (5) of the principal section—
§ On Question, Amendment agreed to.
§ LORD SANDFORDI beg to move the last Amendment.
§
Amendment moved—
In the Title, line 3, at end insert ("to make further provision for preventing pollution of the sea by oil; and for purposes connected therewith.")—(Lord Sandford.)
§ On Question, Amendment agreed to.
§ Title, as amended, agreed to.
§ House resumed: Bill reported, with the Amendments.