HL Deb 25 February 1971 vol 315 cc1177-203

3.50 p.m.

THE PARLIAMENTARY UNDER-SECRETARY OF STATE, DEPARTMENT OF THE ENVIRONMENT (LORD SANDFORD)

My Lords, on behalf of my noble friend Lord Jellicoe, I beg to move that this Report be now received.

Moved, That the Report be now received.—(Lord Sandford.)

On Question, Motion agreed to.

Clause 8 [Shipping casualties]:

LORD KENNET moved Amendment No. 1: Page 5, line 36, leave out ("on a large scale").

The noble Lord said: My Lords, this Amendment, and indeed all the Amendments which are before the House this afternoon, are to a substantial new clause and the relevant Schedule which were introduced by the Government at the Committee stage. In its outline the new clause is very acceptable to noble Lords on this side of the House, and we agree with the Government that it was not possible to bring it in before because the new clause is founded on lessons learned after the "Pacific Glory" accident, and it could not have been done earlier. I make these points simply to make it quite plain that the Amendments which both the Government and we are putting down are put down at the first possible opportunity, and there is neither repetition nor delay in the Amendments which we are now inviting the House to consider.

The Amendment to which I now address myself has to do with the following situation. An accident has occurred. There is a tanker, and it has suffered an accident. It is grounded, or it has had an explosion; or there has been a collision. The Bill says that the Secretary of State shall have certain powers conferred on him to order it about or, if not, to take action himself. But Clause 8(1)(a) says that he may not do that unless he holds the opinion that oil from the ship "will or may cause pollution on a large scale".

There are two points here. First, any damaged tanker may cause pollution on a large scale. It is not very likely that the risk could certainly be asserted to be only a small one. But if we put this in, and if the House allows this wording to stand it will, I submit, face the Secretary of Slate with a certain period of nail-biting, a certain period of very anxious consultation with his advisers, both technical and legal. He will be saying to himself, "Can we really be absolutely certain that pollution is going to be on a large scale, if it happens at all; because if not, they will be able to get back at us later in court and say, 'Even although it did not happen, if it had it would have been on a small scale. Therefore we have a right of compensation against the Government '?" And the Secretary of State may be tempted to do nothing in circumstances where he ought to have done something. I think it would be safer if these words came out. For that reason, I beg to move my Amendment to delete them.

LORD SANDFORD

My Lords, I am grateful to the noble Lord, Lord Kennet, for repeating his agreement and his welcome for the new clause and the new Schedule which the Government introduced into this Bill at such a late stage in order to incorporate the lessons learned during the handling of the "Pacific Glory" case. The new clause and Schedule were intended to give us, in relation to ships within our jurisdiction—that is to say, all ships within our territorial waters and United Kingdom ships anywhere else—similar rights to those provided in respect of foreign ships on the high seas by the 1969 Convention. That Convention, relating to intervention on the high seas in cases of oil pollution casualties, followed the "Torrey Canyon" episode. It limits the action which may be taken in the event of a maritime casualty on the high seas to: such measures as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution … which may reasonably be expected to result in"— note these words, my Lords— major harmful consequences. That is a quotation direct from the International Convention.

We think it right that the circumstances in which action can be taken under our Bill to deal with episodes in our territorial waters should be similarly limited, and that our legislation should be kept in harmony with the International Convention. There is the further important point that it is only when pollution occurs, or is threatened on a large scale, that in practice these powers would be needed. No one would dream of issuing a direction or taking action which might extend to destroying a ship where only a ton or two tons of oil had been or might be spilled. The powers provided by the clause are far-reaching. They may involve considerable loss to salvors and others, and it is essential that we should make sure that, so far as possible, the powers are exercised only when the threat of pollution is really serious, and then only after efforts to secure the co-operation of the shipowner or the salvor have failed.

I realise that whether pollution is "on a large scale" must always be a matter of opinion, and that objections can be taken to the use of such a criterion on the ground that it is too vague. However, when it comes to deciding when there is an infraction under this clause then it is the sole opinion of the Secretary of State as to the scale and the imminence of the threat that will be decisive. This Amendment would have the effect of extending the powers of the Secretary of State to cases far beyond the scale of the cases envisaged in the International Convention which has been so recently agreed, and which he is never likely in practice to wish to use them; and I would contend that it is unnecessary. I hope that, following that explanation of our belief and desire that our legislation, made necessary by the "Pacific Glory" episode, should be kept in harmony with the International Convention, which applies only to the high seas, the noble Lord will not feel disposed to press his Amendment. But I must ask your Lordships, if he does, to join with me in resisting it.

LORD KENNET

My Lords, did I hear the noble Lord say that it was the Secretary of State's decision as to what was "a large scale"?

LORD SANDFORD

Yes, my Lords.

LORD KENNET

My Lords, in that case I will in a moment beg leave to withdraw my Amendment, not because I do not think the Bill would be better without these words, but because there are more important points to come and I do not wish to harass the Government on every detail of this fundamentally well-conceived new clause. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

3.57 p.m.

LORD SANDFORD moved Amendment No. 2: Page 5, line 39, at end insert ("and (c) in the opinion of the Secretary of State the use of the powers conferred by this section is urgently needed.")

The noble Lord said: My Lords, I said during the debate on the Committee stage that we were considering a suggestion that the threat of pollution needed to be imminent before the Secretary of State was entitled to exercise his powers under this clause. That was because Article 1 of the International Convention, on which our legislation is modelled and under which action may be taken against foreign ships outside our territorial waters, requires that the danger of pollution damage which must exist before action can be taken should be both "grave and imminent"—again I quote from the International Convention.

We think it would be unreasonable not to apply the concept of imminence to action under the Bill as well, especially as such action may sometimes affect United Kingdom ships outside our territorial waters. But, rather than adding words to the clause which would apply the description "imminent" to the pollution threat itself, we have thought it better to amend the clause in a way which requires the Secretary of State to decide in each case that the use of his powers is urgently needed. This will have the effect of protecting the shipowner against precipitate action without opening the way to argument as to whether the threat of pollution is or is not imminent.

I am satisfied that this is a reasonable Amendment. It does not depart from the tenor of the International Convention, but slightly improves it. It is designed to meet a point which was troubling the shipping industry, and it is consistent with the Government's view that the powers given to the Secretary of State by Clause 8 are of an exceptional nature, to be resorted to only in a serious emergency when all else has failed. It also follows the principle of Article 1 in the 1969 Convention. I therefore commend the Amendment to your Lordships.

LORD KENNET

My Lords, at first blush this seems a reasonable Amendment, especially as it was so reasonably put by the noble Lord. However, I would ask the House to imagine the real situation as it might happen. There has been a collision between two tankers in the Channel at night, in fog, in heavy weather, and both have been deprived of their communications. Now the Secretary of State is considering the matter. At present he has two things that he has to be sure of before he can do anything: first, that an accident has occurred, and secondly, that it will, or may, cause pollution. We have just agreed that he must always be sure that the pollution it will or may cause will be large-scale pollution. I submit to your Lordships that the owner's agents will also be present, and they will he saying to him, "You should not intervene because you are not sure that the pollution is going to be large scale; and there may not be any pollution at all." If it is in their interests to be doing this, as it sometimes is, you can be sure they will be doing it.

The Amendment proposed by the noble Lord will force the Secretary of State to take a fourth matter into consideration. He will have to sit there and gnaw his nails once again, and ask his legal and technical advisers whether the use of his powers is also urgently necessary. His advisers may say to him, "Well, we are pretty sure that if you don't use your powers there is going to be the most dreadful pollution within four days. On the other hand, you could use them within two days, and if we are right then the reduction in the likelihood of your preventing the pollution of the coast will be only 5 per cent. So perhaps it is not urgent—or, on the other hand, is it?". Then there will be a salvor in the act, there will be the owner in the act, and everybody will be pressing him in different directions. He may not have his computer handy, and if he did, it would probably give him the wrong answer. I submit that it is too much to ask him to take this factor of urgency into account as well. He should be allowed to go ahead and give his directions—which are going to be perfectly sensible and moderate ones, as we all know—without bothering whether once again they can afterwards come back at him in court for compensation, on the ground that the matter was not urgent.

All this is only to say that I think the noble Lord, Lord Sandford, got it right first time. I do not think he has advanced sufficient reason for amending his own excellent first formulation. He is being somewhat blown off course and displaying a certain lack of resolution in this matter. I hope, on reflection, that he will conclude that to be resolute is, in these circumstances, the right course, and will withdraw his Amendment. If he is not able to do so, then I shall advise noble Lords on this side of the House that it is not an Amendment which should be accepted.

LORD HAWKE

My Lords, I like my noble friend's Amendment and I hope he will stick to it. Try to imagine the purpose for which this clause might be invoked. Normally speaking if there is a disaster there are two parties, and perhaps a third party, who are vitally interested in saving the ship and her cargo: they are the owners and the underwriters. Under the Bill as it stands, the owners and the underwriters will be left to save that ship's cargo to the best of their ability, and only if the Secretary of State thinks that their efforts are likely to endanger another party by fouling beaches, and so on, will the Secretary of State have to do anything. With my friend's Amendment it will be left to the people who know best how to salvage ships, and the Secretary of State will step in only in emergencies. I am sure that that is the proper way to do it, and I am certain the underwriters would prefer it that way.

LORD SANDFORD

My Lords, I suppose the situation could get as complex as the noble Lord, Lord Kennet, envisaged, but I recall several occasions in the operations room while we were dealing with the "Pacific Glory" where matters did not quite take on that form. They could have been more complicated, but everything passed off very well in the end. I believe that the adjustment that we have made here by the use of this phrase importing urgency for the Secretary of State to take the action that he is empowered to take, rather than imminence related to the threat, improves the situation from his point of view, rather than making it more difficult and damaging.

I would ask your Lordships to envisage a relatively straightforward situation where a ship which is damaged would, if it broke up, undoubtedly cause pollution. A salvor is dealing with it. He has a tug and he has lines on board. He is proceeding to beach the ship in order to save it in that particular way. The weather is rough and getting worse, and the Secretary of State comes to the view that it would be better not to beach the ship but to move it somewhere else. If the word "imminent" relating to the pollution threat were in—that is to say, the clause from the International Convention was transposed as it stands into our legislation—the Secretary of State would have to wait until it could be said that the threat of pollution was imminent. The threat of pollution might well not be imminent until the ship was aground and was in the process of being broken up, or was likely to be broken up quite soon, by the waves beating upon her. As long as she is at sea and under tow the imminent threat of pollution simply is not there. But the clause that we are putting in enables the Secretary of

State to come to the view that his restraint, his action to stop the salvor beaching the ship, is urgent, and he can act then without waiting for the threat to become imminent. I hope that indicates to your Lordships and to the noble Lord, Lord Kennet, that we have improved the Bill in the direction that he wants to improve it, and that this Amendment is really making it easier for the Secretary of State to take the kind of decision that would be necessary in that particular case.

LORD KENNET

My Lords, with the leave of the House, may I say that I am sure the noble Lord has not the least intention of misleading the House about anything at all, but he was comparing his Amendment with what is in the International Convention. I think what must interest the House is the comparison between his Amendment and what is in the Bill at present. There are three things: the Bill leaves the Secretary of State quite free on the question of urgency or imminence; the Amendment says that in his opinion the use of his powers must be urgent; the Convention says that the risk of pollution must be imminent. The House is not invited to choose between "urgent" and "imminent"; it is invited to choose between "urgent" and nothing, or freedom. I simply repeat my contention that it is better to give him the greater powers as they stand in the Bill. What is in the Convention is neither here nor there; it is not before your Lordships' House either in the Bill or in the Amendment.

4.10 p.m.

On Question, Whether the said Amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 103; Not-Contents, 43.

CONTENTS
Aberdare, L. Brooke of Ystradfellte, Bs. Elliot of Harwood, Bs.
Aberdeen and Temair, M. Carrington, L. Emmet of Amberley, Bs.
Albemarle, E. Clwyd, L. Falkland, V.
Alexander of Tunis, E. Colville of Culross, V. Ferrers, E.
Amherst, E. Cork and Orrery, E. Fortescue, E.
Atholl, D. Cottesloe, L. Glasgow, E.
Auckland, L. Courtown, E. Gowrie, E.
Audley, Bs. Craigavon, V. Gray, L.
Beaumont of Whitley, L. Cromartie, E. Greenway, L.
Belhaven and Stenton, L. Daventry, V. Grenfell, L.
Belstead, L. de Clifford, L. Gridley, L.
Berkeley, Bs. Denham, L. [Teller.] Grimston of Westbury, L.
Boothby, L. Drumalbyn, L. Hacking, L.
Boston, L. Eccles, V. Hailsham of St. Marylebone L. (L. Chancellor.)
Brooke of Cumnor, L. Effingham, E.
Hankey, L. Malmesbury, E. Ruthven of Freeland, Ly.
Hanworth, V. Margadale, L, St. Aldwyn, E.
Hawke, L. Massereene and Ferrard, V. St. Just, L.
Henley, L. Milverton, L. Sandford, L.
Hood, V. Molson, L. Sandys, L.
Howard of Glossop, L. Monck, V. Sempill, Ly.
Hylton-Foster, Bs. Mowbray and Stourton, L. [Teller.] Skelmersdale, L.
Ilford, L. Stonehaven, V.
Inchyra, L. Napier and Ettrick, L. Strang, L.
Inglewood, L. Nugent of Guildford, L. Strange of Knokin, Bs.
Jellicoe, E. (L. Privy Seal) Ogmore, L. Strathclyde, L.
Jessel, L. O'Neill of the Maine, L. Swanborough, Bs.
Killearn, L. Perth, E. Swansea, L.
Lauderdale, E. Rankeillour, L. Teynham, L.
Leathers, V. Rathcavan, L. Thurso, V.
Loudoun, C. Rea, L. Tweedsmuir of Belhelvie, Bs.
Lucas of Chilworth, L. Reigate, L. Vivian, L.
Luke, L. Rhyl, L. Windlesham, L.
MacAndrew, L. Rochdale, V. Wise, L.
McCorquodale of Newton, L. Rockley, L. Younger of Leckie, V.
NOT-CONTENTS
Ardwick, L. Gardiner, L. Serota, Bs.
Beswick, L. Greenwood of Rossendale, L. Shepherd, L.
Brockway, L. Henderson, L. Shinwell, L.
Buckinghamshire, E. Hughes, L. Soper, L.
Burntwood, L. Kennet, L. Sorensen, L.
Champion, L. Leatherland, L. Stonham, L.
Chorley, L. Lindgren, L. Stow Hill, L.
Constantine, L. Llewelyn Davies of Hastoe, Bs. [Teller.] Strabolgi, L. [Teller.]
Crook, L. Summerskill, Bs.
Davies of Leek, L. MacLeavy, L. Wells-Pestell, L.
Diamond, L. Moyle, L. Williamson, L.
Donaldson of Kingsbridge, L. Noel-Buxton, L. Willis, L.
Douglass of Cleveland, L. Nunburnholme, L. Wootton of Abinger, Bs.
Faringdon, L. St. Davids, V. Wynne-Jones, L.
Gaitskell Bs. Segal, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.

4.22 p.m.

LORD SANDFORD

My Lords, on this Amendment I can be brief. Its purpose is to make it plain that the Secretary of State has the power to take direct action under subsection (4) of Clause 8 when a direction has been given and not complied with, as well as when action by way of a direction is impracticable. I beg to move.

Amendment moved— Page 6, line 19, leave out from ("State") to first ("the") in line 22 and insert ("the powers conferred by subsection (2) above are, or have proved to be, inadequate for the purpose").—(Lord Sandford.)

LORD SANDFORD moved Amendment No. 4: Page 6, line 37, at end insert— ( ) Every person concerned with compliance with directions given, or with action taken, under this section shall use his best endeavours to avoid any risk to human life.

The noble Lord said: My Lords, it may be for the convenience of the House if I speak to this and the next Amendment together since they are two aspects of the same point. It has never been our intention that action taken in compliance with a direction or action taken by or on behalf of the Secretary of State should put human life in danger. Indeed, Article III of the 1969 Convention, the principles of which we are following, enjoins coastal States, before taking action, to use their best endeavours to avoid any risk to human life. Your Lordships will recall that I undertook at the Committee stage to consider introducing an Amendment to make this explicit.

Amendment No. 4, now before your Lordships, will require every person concerned with compliance with directions given, or with action taken, under this clause to use his best endeavours to avoid any risk to human life. Amendment No. 5 provides a person charged with contravening or failing to comply with a direction with a defence if he proves that he had reasonable cause for believing that compliance would have involved a serious risk to human life. We are all concerned about the consequences of oil pollution of the sea, and there has been general support for the drastic powers and penalties provided by this Bill. But I think we have to keep that concern in perspective, and I am sure your Lordships will agree that in a disaster at sea the lives of those involved must still he the first concern. I beg to move Amendment No. 4.

LORD KENNET

My Lords, I did not object to the noble Lord's proposals to consider both these Amendments together simply for the sake of courtesy, but I am afraid that I find it hard to agree that they hang together, or indeed that they make the same point at all. Amendment No. 4, which binds the Secretary of State's servants to have due regard to human life, is one of those Amendments to see which is to agree with it, and I accordingly do so. Amendment No. 5 is rather another matter, because it would give yet another defence to those who may disobey the Secretary of State's order.

Let us imagine what happens. The Secretary of State wants something done. He asks himself, "Does this, in my opinion, constitute a risk to human life?" He decides that it does not, and he orders something to be done. The recipient of that order, who will be a servant of the shipowner or of the salvor, is considering whether or not to do it. If he says to himself, "Notwithstanding the Secretary of State's obvious opinion that this is not a risk to human life, it is yet my opinion that it is a risk to human life, and I will therefore not do it", he will then have a defence in court or will be able to exact compensation from the Secretary of State if the Secretary of State afterwards proceeds to do it himself. I do not think it is right to set up the judgment of interested parties in this way against that of the Secretary of State. I do not propose to discuss this again when Amendment No. 5 is called, but I would ask the noble Lord if the Government could not have a look at it again in the light of what I have said to see whether it is not true that these two Amendments concern two very different things: the first is unexceptionable and altogether beneficial, but the second, in its wake for all its plausible appearance, I brings very real dangers.

LORD SANDFORD

My Lords, I am grateful to the noble Lord for his acceptance of Amendment No. 4. I do not think I claimed that both these Amendments deal with the same point, but that they are two aspects of the same point. I think it is very difficult to have Amendment No. 4 without providing the defence included in Amendment No. 5. Although I fully appreciate the noble Lord's wish not to provide easy excuses for those whose duty it is to comply with the Secretary of State's instruction, I feel that if, as a result of complying with an order, human life is at stake—for instance, if the Secretary of State, assuming that no one is on board a ship, gives a direction which has the effect of placing in jeopardy the ship and the lives of people on board—it must be a defence to an action alleging failure to comply with the Secretary of State's direction. But if we deal with Amendment No. 4, we can, if the noble Lord wishes, have a further discussion on Amendment No. 5 and regard it as a separate issue.

LORD SANDFORD

My Lords, I beg to move Amendment No. 5.

Amendment moved— Page 7, line 3, at end insert ("or that he had reasonable cause for believing that compliance with the direction would have involved a serious risk to human life.")—(Lord Sandford.)

LORD KENNET

My Lords, I have already spoken to this Amendment, and I hope that the Government will reconsider it in the light of my remarks.

LORD SANDFORD

My Lords, I should like to do that and give that assurance, but I am afraid I cannot do so for the reason that I am satisfied that it must be a defence in a case like this to allow for the situation where somebody has to decline to take the action ordered by the Secretary of State in order to preserve life.

LORD KENNET

My Lords, if I may speak with the leave of the House. I think this is a remarkable situation. I note with dismay the noble Lord's refusal to consider this again in the light of what I have said. I think I heard him correctly: he said that he was not going to reconsider it in the light of what I had said. I would remind the House that this is the first appearance of this Amendment. It is not customary to lean on Amendments to heavily at first appearance. I would also remind the House that this is the fifth stage of this Bill before the House, the fifth and penultimate stage; and if we are to have Amendments put down at the fifth stage, when that is the very first opportunity to put them down, and the Government refuse to consider them, I think that I can only regret such a procedure in British Parliamentary terms.

LORD SANDFORD

My Lords, I very much appreciate the point that the noble Lord is making, and I am very conscious that we have had to steer a line between getting this legislation on the Statute Book and the considerable risk of discourtesy to your Lordships' House. On the other hand, as he says, we are nearing the end of the proceedings on this Bill and we have now to try to come to a decision upon it. The Report stage has been delayed in order to give more time for consultation and consideration. There is another stage, and the noble Lord is perfectly free to return to this point and to put down this Amendment when we can debate it again. But it would be wrong for me to give an assurance when I am reasonably satisfied that we have come to our final view on this particular point.

LORD KENNET

My Lords, I am sure that it would help the House if the noble Lord would keep his place. We are discussing one of his Amendments, and he has just said that I could put this Amendment down again later; I cannot, it is not my Amendment.

LORD SANDFORD

But there is nothing to stop the noble Lord from putting down Amendments on Third Reading, and he could put down this particular Amendment, to give effect to what he wants, if he wishes.

LORD KENNET

My Lords, if I may have the leave of the House to speak for

a second time, I would accept that challenge. But would it not be more courteous, and more customary, if the noble Lord undertook to reconsider the matter between now and Third Reading?

LORD SANDFORD

I do not think so, my Lords. As I say, I am very conscious that in this particular case we are introducing a major change to this legislation at a very late stage—I believe that the House understands the reasons for that—and it is necessary to come to a view on as many points as we can. Later on I shall be undertaking to take back other features which we feel we have still to consider. But on this particular point I am satisfied that the Amendment proposed here, Amendment No. 5, is necessary, and no amount of reconsideration will make us change our minds.

LORD KENNET

My Lords, if I may speak once again with the leave of the House, I hope that noble Lords behind me—there are not many at the moment—will think that I am right in doing what I propose to do. This is the first time in my experience that on the first appearance of a Government Amendment, at any stage in the progress of a Bill through the House, the Minister in charge has refused to consider what is said about it between then and the next stage. Since this is my first experience of such a thing, during quite a few years as a Member of your Lordships' House, I think it would be wrong if I did not divide the House against this Amendment on that ground alone. We have not the least chance of winning, but I think the noble Lord's attitude in this matter is so extraordinary and so unprecedented that to refrain from dividing the House might be taken to be condoning an action which, as I have said before, I find to be quite deplorable in Parliamentary terms.

4.35 p.m.

On Question, Whether the said Amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 87; Not-Contents, 45.

CONTENTS
Aberdare, L. Audley, Bs. Boston, L.
Aberdeen and Temair, M. Belhaven and Stenton, L. Brooke of Cumnor, L.
Alexander of Tunis, E. Belstead, L. Brooke of Ystradfellte, Bs.
Atholl, D. Berkeley, Bs. Clwyd, L.
Auckland, L. Birdwood, L. Colville of Culross, V.
Cork and Orrery, E. Hankey, L. Rankeillour, L.
Cottesloe, L. Hanworth, V. Rathcavan, L.
Courtown, E. Hawke, L. Redcliffe-Maud, L.
Craigavon, V. Hood, V. Reigate, L.
Craigmyle, L. Howard of Glossop, L. Rhyl, L.
Cromartie, E. Hylton-Foster, Bs. Rochdale, V.
Daventry, V. Inchyra, L. Rowallan, L.
De Clifford, L. Jessel, L. Ruthven of Freeland, Ly.
Denham, L. [Teller.] Killearn, L. St. Aldwyn, E.
Drumalbyn, L. Kilmarnock, L. St. Just, L.
Eccles, V. Lauderdale, E. Sandford, L.
Effingham, E. Loudoun, C. Sempill, Ly.
Elliot of Harwood, Bs. Lucas of Chilworth, L. Skelmersdale, L.
Emmet of Amberley, Bs. Luke, L. Stonehaven, V.
Ferrers, E. McCorquodale of Newton, L. Strang, L.
Fortescue, E. Margadale, L. Strange of Knokin, Bs.
Glasgow, E. Massereene and Ferrard, V. Swansea, L.
Gowrie, E. Merrivale, L. Teynham, L.
Gray, L. Milverton, L. Tweedsmuir of Belhelvie, Bs.
Greenway, L. Molson, L. Vivian, L.
Grenfell, L. Monck, L. Wakefield of Kendal, L.
Grimston of Westbury, L. Mowbray and Stourton, L. [Teller.] Windlesham, L.
Hacking, L. Wolverton, L.
Hailsham of Saint Marylebone, L. (L. Chancellor) Napier and Ettrick, L. Younger of Leckie, V.
Nugent of Guildford, L.
NOT-CONTENTS
Airedale, L. Henderson, L. Shepherd, L.
Amherst, E. Henley, L. Shinwell, L.
Ardwick, L. Kennet, L. Soper, L.
Beaumont of Whitley, L. Leathers, V. Sorensen, L.
Beswick, L. Lindgren, L. Stonham, L.
Brockway, L. Llewelyn-Davies of Hastoe, Bs. [Teller.] Stow Hill, L.
Buckinghamshire, E. Summerskill, Bs.
Champion, L. Lloyd of Hampstead, L. Thurso, V.
Chorley, L. McLeavy, L. Wells-Pestell, L.
Crook, L. Moyle, L. White, Bs.
Davies of Leek, L. Noel-Buxton, L. Williamson, L.
Diamond, L. Nunburnholme, L. Willis, L.
Donaldson of Kingsbridge, L. Phillips, Bs. [Teller.] Wootton of Abinger, Bs.
Gaitskell, Bs. Rea, L. Wynne-Jones, L.
Gardiner, L. Segal, L.
Greenwood of Rossendale, L. Serota, Bs.

On Question, Motion agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.

4.47 p.m.

LORD KENNET moved Amendment No. 7: Page 7, line 8, leave out ("£100") and insert ("£50,000").

The noble Lord said: My Lords, if I may stretch our elastic rules of procedure for a moment, I should like to impress on the House that that was a vote on the Parliamentary conduct of the Government; it was not a vote on the content of the Amendment. Things have so far been going very smoothly between the noble Lord and me on this Bill and on others. I very much hope that they will continue to do so. I would warn him against any attempt, which I am sure has not crossed his mind, to seek to make out that that was a vote against the content of that Amendment. He knows it was not; I said so beforehand.

I hope that we can now return to the customary courtesies of the House, which are that when remarks are made upon an Amendment for the first time that it is possible for that to be done, those remarks are considered. If we cannot return to the customary courtesies, then I fear that this stage of the Bill may be prolonged. I turn now to Amendment No. 6 which calls to leave out subsections (9) and (10). My purpose in moving this Amendment is to enable the noble Lord—

THE DEPUTY CHAIRMAN OF COMMITTEES (LORD CHAMPION)

My Lords, I must inform the House that Amendment No. 7 is the Amendment that has been called. What was No. 6 appears now to have become No. 7A.

LORD KENNET

My Lords, I am grateful to the noble Lord and I apologise to the House. It is because I am working on an out-dated Marshalled List. I am talking about the Amendment to leave out "£100" and insert "£50,000". The Bill says if the owner of a ship or any of his agents refuse to do what they are told, there is a fine of £50,000. It then goes on to say that if they obstruct the Secretary of State when he tries to do it himself there is only a £100 fine. I quite see that this might look less of an offence, but I should like to ask the noble Lord whether he could tell us more about it. It seems to me that there might be a "fiddle" or a way through for an ill-intentioned company which I mentioned last time and will not dwell on now.

Alternatively, if there is a good reason to keep the much lower level of penalty, might it not be advisable to consider the possibility of imprisonment for the offence committed by a servant of the company in positively resisting the agents of the Secretary of State? Because it seems to me that an ill-intentioned company might instruct the master of a ship or any seaman on a ship simply to take a crowbar and keep resisting the boarding of the Secretary of State's agents—the Navy, as it might be—time after time. Even if he did it several times a day it would still only tot up to a £1,000 fine for him; and the company might say that they would pay the fine. But he will be deterred from accepting such blandishments from his employer if there were also a prison sentence for this offence of obstructing the Secretary of State. I beg to move.

LORD SANDFORD

My Lords, I assure the noble Lord that the Government want to be as reasonable as we can on all the Amendments to this clause, in view of the fact that it has been introduced so late, and I hope that he will be satisfied with what I am about to say. Noble Lords will recall that there were special reasons why the exceptionally high maximum of £50,000 was accepted in Clause 7 of the Bill in the case of summary conviction for illegally discharging oil. They were, first, that it is sometimes necessary to proceed urgently against the master of an offending ship before he leaves the jurisdiction; and, secondly, that the maximum had to be high enough to act as a real deterrent, even where the shipowner (who in practice would pay any fine imposed on the master) might gain a large financial advantage from the commission of the offence. We thought it right that the same maximum should apply on summary conviction for failure to comply with a direction, for that is tantamount to illegally discharging oil and the same considerations apply.

In view of the exceptional nature of such a high maximum on summary conviction we wanted to confine it to those cases where it was essential. However, I am grateful to the noble Lord for drawing attention by his Amendment to the point that obstruction of action under subsections (4) and (5), and even obstruction of the service of a direction, could have precisely the same effect as a failure to comply with a direction. So there is a case for providing in subsection (8) and in paragraph 2(3) of Schedule 2 the same penalties as in subsection (6). In effect, they are three aspects of the same general offence of preventing effective action from being taken, and it may be better to deal with them in the Bill in a way which reflects that fact. I should like, therefore, to reconsider the penalty provisions of the clause and the Schedule, and to put down Amendments in time for Third Reading, if the noble Lord will withdraw this Amendment and not persist with his Amendment No. 14.

LORD KENNET

My Lords, I am delighted to meet the noble Lord once in the middle of the road of Parliamentary courtesies. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD KENNET moved Amendment No. 7A: Page 7, line 9, leave out subsections (9) and (10).

The noble Lord said: My Lords, I have put this Amendment down in the hope that the noble Lord will be able to assure us on certain things. Subsection (9) says that although the Secretary of State may give these orders about British ships anywhere, and British ships in territorial waters and foreign ships in British territorial waters, he may not give them about foreign ships on the high seas. It may be that this is specifically set out out in this way (and it comes again later) because it is not necessary to write it into the Bill. I ask the noble Lord to let the House know whether that is so, and if so, whether he can say that the Secretary of State already has precisely equivalent powers over foreign ships on the high seas to those which he now propose to assume over British ships on the high seas. I beg to move.

LORD SANDFORD

My Lords, I certainly can give those assurances, but I should like to do so in some detail, because on first reading subsections (9) and (10) certainly give the impression that the necessary action will not be taken: that no action shall be taken. In fact the action will be taken, but not under the powers that we are considering. Perhaps I may go into this at some little length. These two subsections both contain cases in which the powers in the clause are not applicable. Subsection (9) excludes foreign ships on the high seas, and subsection (10) excludes our own naval and other Government ships. As I have said, this does not mean that no action could or would be taken to forestall pollution if such ships were involved. It means only that, although action could be taken, it would not be done under this clause.

In relation to foreign ships on the high seas, the procedure to be followed is that contemplated in the 1969 Convention relating to an intervention on the high seas in cases of oil pollution casualties that is to say, the international agreement resulting from the negotiations following the "Torrey Canyon." That Convention authorises Governmental action when there is a threat of oil pollution on a large scale but does not envisage any extension of our criminal jurisdiction, which is normally regarded as being limited to our own territory and United Kingdom ships, wherever they may be.

With regard to warships and other Government ships, those covered by subsection (10), the Government are of course in a much better positon to give directions and to ensure their compliance through the ordinary administrative machinery of Government than in the case of a merchant ship, and consequently there is no need to give the Secretary of State the powers in the clause in relation to our own warships. I hope that that explanation will satisfy the noble Lord.

LORD HAWKE

My Lords, can my noble friend satisfy me on one point? He referred to "the powers in the Convention". What happens if a foreign ship refuses to obey an order by a British Secretary of State to do something or other to avoid pollution?

LORD SANDFORD

My Lords, I would rather not get drawn into all the details of the Convention, because we are dealing specifically with those episodes and situations which are outside the Convention. If my noble friend will look through the Convention itself, he will see all the powers and the way in which they operate in detail. But if, after he has done that, there is any point on which I can help him, I shall be glad to do so. But I would rather not get drawn into it at this point.

LORD KENNET

My Lords, I am glad to have those words on the Record, and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD SANDFORD moved Amendment No. 8: Page 7, line 24, at end insert ("whether under international law or otherwise.")

The noble Lord said: My Lords. I think I can be quite brief on this Amendment. Clause 8(11) makes it clear that the powers given by the section are without prejudice to any powers that Her Majesty's Government may have apart from the section. The Amendment is designed to make it clear that the section will not in any way prejudice or limit Her Majesty's Government's rights in international law. I beg to move.

Schedule 2 [Shipping casualties]:

4.58 p.m.

LORD KENNET moved Amendment No. 9A: Page 9, line 30, leave out paragraph 1.

The noble Lord said: My Lords, with the leave of the House. I should like to speak to Amendments Nos. 9A, 10A and 11 together. They all refer to Schedule 2. First, I propose to delete this Schedule, and the other two Amendments propose two minor changes in it if it is not deleted. I think it would be clearer if I put all the arguments in one breath. I propose to delete the Schedule altogether, for the simple reason—

LORD SANDFORD

If I May interrupt the noble Lord, I think he means that he would like to delete paragraph 1.

LORD KENNET

I apologise. I propose to delete paragraph 1 of the Schedule altogether, for the simple reason that it seems to me that if the Secretary of State takes these actions in circumstances of great danger and difficulty to the best of own ability and judgment, that ought lo be the end of the matter. This endless pursuit of decades through the courts which is opened up in paragraph 1 of Schedule 2 is something that ought not to happen. That is a simple view, a layman's view and no doubt the noble Lord has good reasons for thinking that these things ought to happen. I should just like to know what they are.

I now come to the minor points. Amendment No. 10A proposes to leave out the word "disproportionately" in the clause which says that you can bring suit against the Secretary of State for damages afterwards if you think that the good that his action did, or was likely to do, was disproportionately less than the damage resulting from it. I really do not know what "disproportionately less" means. As I put it on an earlier occasion. "disproportionately less" is more than less or less than less, and whichever way, why? The word "disproportionately" imports the concept of proportion, and a proportion must exist between two things. Between what two things the proportion imported by "disproportionately" does not exist and (a) and (b) seem to me to be very unclear. It is a lawyer's paradise. Can the noble Lord clarify this? If he cannot, would it not be better to leave it out?

Thirdly, on Amendment No. 11, to leave out "or the risk of such damage", it seems to me that it is not only a loophole for profiteering companies, it s something about the size of the Thames Estuary through which they could flood and get damages on anything. All they have to do is to assert that although they caused no pollution resulting from the accident, yet if they had caused damage the good which might have been done, or might be only likely to have been done by what the Secretary of State did, or proposed to do, was disproportionately less than the damage which would have ensued if there had been any damage. It opens to them the possibility of comparing two events which never took place, and of obtaining compensation if one of them were proved to be disproportionately less (whatever that means) than the others. This is a complete nightmare, and it ought to go out, and no suit should lie at all unless some damage occurred. I hope that the noble Lord will be able to agree at least to the last two of these Amendments, and will be able to give us good reason for leaving in this whole cumbrous procedure at all.

LORD SANDFORD

My Lords, I hope to be able to show that we have very good reasons for wanting to keep in paragraph 1, and I hope to be able to clarify the reasons why we want to keep the word "disproportionately". I also think the noble Lord has a point with his Amendment No. 11, although he did not actually say very much about it.

First of all, I should like to explain fully why I cannot advise your Lordships to accept Amendment No. 9, which seeks to delete the whole of paragraph 1. This paragraph gives a person who has suffered damage as a result of complying with a direction or action by or on behalf of the Secretary of State the right to recover compensation. We regard this right as a most important qualification or counterpart of the new powers we are taking under Clause 8. It follows, generally speaking, the principles in Articles 5 and 6 of the 1969 Convention. This is something, as I have said, that we are trying to do throughout the new clause and new Schedule. The rights and property of shipowners, salvors and others may be prejudiced by action taken under it and, as a result, they may suffer loss or damage. In so far as the action is reasonably necessary for the prevention of large scale oil pollution, and the loss or damage suffered is not disproportionate to the oil pollution which is threatened, I do not think there is any case for making the Secretary of State liable to pay compensation. When, however, that action can be shown to have been unnecessary, or disproportionate, it would seem reasonable to make provision for compensation. In short, this Amendment would destroy a vital element in the new provision which has been carried over from the Convention.

LORD KENNET

My Lords, I think we can cut this short. If the noble Lord can assure me that, "disproportionately less" means, "less than less "and not" more than less", then I shall be very happy to let it stand.

LORD SANDFORD

My Lords, I am just coming to "disproportionately", and I may have to spend a little longer on it. I will now turn to Amendment No. 10 which deals with this word, and would remove the element of proportionality from paragraph 1(1)(b). My objection to this Amendment is in the opposite sense of the proposal to delete the whole of paragraph 1; namely, that its effect would be unduly favourable to the claimant of compensation. At present a claimant relying on the second of the criteria in paragraph 1(1)(b) of the Schedule must show that the good which an action did, or was likely to do, was disproportionately less than the damage which resulted from it. In other words, the claimant has to show that he suffered damage on an altogether different scale of magnitude from the good which was, or might have been, achieved by the action.

If the Amendment were made, on the other hand, he would have to show only that the good was less than the damage—perhaps only £1 in a £1 million less. In this case, if he were able to do that, he would be able to recover all the damage that he had suffered. It would be very difficult to show that the benefit resulting from an action was just less than the damage suffered by a claimant, and it is not intended to throw on the court the burden of making any such accurate calculation. In my view, this would encourage frivolous claims for compensation and perhaps make the provision completely unworkable. We have preferred to follow the concept in the 1969 Convention and provide for compensation only when the action taken is shown to be unnecessary or quite disproportionate.

This concept of the lack of proportionality between the benefit of the action taken and the damage done is important, and seems to me to be sensible and intelligible if one thinks about it carefully for a little time—although it is not immediately clear at first sight. We are looking carefully into the wording of the whole of this sub-paragraph. As at present drafted, it contrasts the benefit accruing from action taken with damage caused, actual or potential. For example, it might come into operation if a small oil slick was averted at the cost of considerable damage to a large ship, and the risk of even more damage. Amendment No. 11 would remove from consideration in this context the risk of damage, and would confine the items to be taken into account to the actual damage. The noble Lord, Lord Kennet, may well be right in this point, and I must thank him for pointing it out.

In any event, on further reflection we feel that the drafting of this sub-paragraph is defective in at least one other respect, in that while it refers to damage suffered as a result of action taken it does not take into account expenses incurred in taking the action. In the light of all these considerations, I hope to be able to take away the sub-paragraph, and put down appropriate Amendments in time for the Third Reading. I hope that, in view of my assurance on Amendment No. 9; my explanation of the points raised by Amendment No. 10, and my assurances about Amendment No. 11, the noble Lord will be able not to persist in all three of his Amendments.

LORD KENNET

Certainly, my Lords. Would not the noble Lord prefer me to move Amendment No. 9A, so that it deletes the paragraph, and the Bill stands without it until he can bring back the redrafted version? I fully accept the explanation of the word "disproportionately". This is just what I hoped it meant. I am delighted to know that the risk of such damage would be removed.

LORD SANDFORD

My Lords, it is really immaterial. If the noble Lord would like to move his Amendment No. 9A which will delete paragraph 1—on the understanding, of course, that the broad principle behind it will have to be restored—we can do it in that way.

LORD KENNET

My Lords, I beg to move Amendment No. 9A.

LORD SANDFORD moved Amendment No. 12: Page 10, line 10, leave out ("and")

The noble Lord said: I now come to Amendment No. 12, and it may be for the convenience of the House if at the same time we consider Amendments Nos. 13, 15 and 18, which all bear on the same general point. These are to adapt paragraphs 1(4) (Admiralty jurisdiction of the High Court to cover claims under the paragraph), 2(1) (service of directions on companies) and 3 (ships under arrest) to the requirements of Northern Irish law. The courts in paragraph 1(4) will include the Supreme Court of Northern Ireland. The companies referred to in paragraph 2(1) as being ones on which the special procedure for service of directions is permitted under the sub-paragraph will, in relation to Northern Ireland, be companies which neither are registered nor have established a place of business in that country; and the protection given by paragraph 3 to the Admiralty Marshal will extend to the Admiralty Marshal in Northern Ireland. My Lords, I beg to move Amendment No. 12.

LORD SANDFORD

My Lords, I beg to move Amendment No. 13.

Amendment moved— Page 10, line 11, after ("Session ") insert ("and of the Supreme Court of Northern Ireland").—(Lord Sandford.)

5.12 p.m.

LORD KENNET moved Amendment No. 14: Page 10, line 31, leave out ("£100") and insert ("£50,000").

The noble Lord said: My Lords, this is another of these £100 and £50,000 Amendments. The Bill says that when the Secretary of State orders the owner of a ship to do something, he must serve a notice on the ship telling it what to do. As the Bill is drafted, it is open to the company to tell one of their servants, any sailor on board, to stand at the head of the companionway with a belaying pin in his hand and "dot" over the head any British sailor, or any number of British sailors, who may crop up during the day attempting to serve such a notice. If he does this, he will be fined £100 each time—and that will be small beer for the company. It seems to me better that either this figure should be "upped" to £50,000, or that a penalty of imprisonment should be introduced for such actions. I hope that the noble Lord will say that he will consider this matter before the next stage, just as he did in the case of obstruction of the Secretary of State's own agents in the execution of their duty. My Lords, I beg to move.

LORD SANDFORD

My Lords, I think I said, when dealing with Amendment No. 7 of the noble Lord, that we would consider both these matters if the noble Lord would withdraw Amendment No. 14, as he has already withdrawn Amendment No. 7. The kind of situation he mentions is one we have very much in mind.

LORD KENNET

My Lords, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD SANIDFORD

My Lords, I beg to move Amendment No. 15.

Amendment moved— Page 10, line 31, at end insert— (4) In the application of sub-paragraph (1) above to Northern Ireland for references to sections 412 and 437 of the Companies Act 1948 there shall be substituted references to sections 361 and 385 of the Companies Act (Northern Ireland) 1960."—(Lord Sandford.)

LORD SANDFORD moved Amendment No. 16: Page 10, line 34, leave out ("in the custody of the Admiralty Marshal") and insert ("which is under arrest").

The noble Lord said: My Lords, this is a drafting Amendment to paragraph 3 of Schedule 2. That paragraph makes special provision where a ship is under arrest in civil proceedings, and protects any person taking action in pursuance of Clause 8 from proceedings for contempt of court. The drafting, which refers to a ship which is in the custody of the Admiralty Marshal, is not apt to cover proceedings in Scotland and Northern Ireland, and consequently the paragraph will be generalised by the substitution of the words "which is under arrest" for the words "in the custody of the Admiralty Marshal". My Lords, I beg to move.

LORD SANDFORD moved Amendment No. 17: Page 10, line 39, leave out sub-paragraph (b) and insert— (b) does not in any circumstances make the Admiralty Marshal liable in any civil proceedings.

The noble Lord said: My Lords, I beg to move Amendment No. 17. This is a minor Amendment to sub-paragraph (b) in paragraph 3 of Schedule 2. It is designed to ensure that the protection given by this paragraph to the Admiralty Marshal is not confined to cases in which the ship in question is removed from his jurisdiction, but should also extend to any other circumstances in which his duty to retain custody of the ship is prejudiced in any way by an action taken under Clause 8. My Lords, I beg to move.

LORD SANDFORD

My Lords, I beg to move Amendment No. 18.

Amendment moved—

Page 10, line 40, at end insert— (2) The reference in this paragraph to the Admiralty Marshal includes a reference to the Admiralty Marshal of the Supreme Court of Northern Ireland.—(Lord Sandford.)