OIL IN NAVIGABLE WATERS BILL (Hansard, 28 January 1971)

§ 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 Bill be now read a second time. The Bill arises from international negotiations which led to the adoption of amendments to the International Convention on Prevention of Pollution of the Sea by Oil for the purposes of tightening the control on the deliberate discharges of oil into the sea.
1072 The Convention, as amended in 1962, and as brought into effect for United Kingdom ships by the Oil in Navigable Waters Acts 1955 and 1963, ought in theory to be an effective measure. In wide areas of the sea from which oil could possibly float on to our beaches no discharges are allowed except in mixtures in which the quantity of oil is hardly detectable. In addition, a special restriction on new ships of over 20,000 tons means that even in the middle of the ocean the number of ships still discharging substantial quantities of oil from tank washings should be progressively reduced. Nevertheless, the results from all this have been disappointing. The pollution of the sea has continued to be a menace, even apart from the results of collisions and accidents such as the "Torrey Canyon" and the "Pacific Glory".
The main trouble is that the Convention provides so many loopholes or excuses that it is not regarded seriously by the less responsible shipping operators. Enforcement of a control on the activities of ships on the high seas is difficult for obvious practical reasons. It is not assisted by the form of the present Convention; for example, the 100 parts per million definition of a polluting mixture is a major stumbling block because of the difficulty of proving to the satisfaction of a court that what was discharged in fact contained more than 100 parts per million of oil. From a common sense point of view it may be perfectly obvious that it did, but proving it is another matter. The result is that only in one case has a successful prosecution been undertaken against a ship for a discharge of an oily mixture on the high seas; and that was a case in which the facts were not disputed.
Another major difficulty is caused by the distinction between prohibited zones and other parts of the sea where, apart from the new ships of more than 20,000 tons, there is no restriction on the discharge of oil: for example, even if a ship has not been seen discharging oil it may be apparent from the condition of its tanks, or even from entries in the oil record book, that it has in fact done so. It may have done so legally outside a prohibited zone, but equally it may not, and nobody can prove it. This provides a standing temptation to the irresponsible 1073 to dump oily wastes even within the prohibited zones under cover of bad weather or darkness. Thus, the need for a more readily enforceable Convention has been apparent for some time.
Meanwhile, there has been technical progress in the oil tanker industry, in which I am glad to say the British have played a leading part. I refer particularly to the development of the load-on-top method of operating, whereby a discharge of oily waste from tank washings at sea is almost entirely avoided and the residues are retained on board to be mixed with the next cargo. This is an economical and sensible method of operating which has been widely adopted on a voluntary basis. It has already greatly reduced the amount of oil being regularly dumped into the sea and has demonstrated that serious pollution of a deliberate nature is avoidable everywhere at sea. But this is technically inconsistent with the Convention.
For these reasons the United Kingdom proposed a revision of the Convention as part of the programme of work undertaken by IMCO after the "Torrey Canyon" disaster, and amendments based on our proposals were adopted in October, 1969. They were published by our predecessors in Cmnd. 4347 in May, 1970. With these amendments the concept of prohibited zones and other areas of the sea where restrictions do not apply disappears completely. Subject to limited exemptions, discharges of oil at sea will be prohibited everywhere. The effect of the restrictions for tankers is, first, that no oil whatever may be discharged from their cargo spaces within 50 miles of the nearest land. This means literally no oil, and the old criterion of 100 parts per million in an oily mixture is no longer relevant. Beyond 50 miles from the nearest land, discharges of oil or oily mixtures will be prohibited except within certain conditions which have been tightly drawn to allow the operation of the load-on-top method, provided that it is carefully and responsibly operated, but wholly to exclude the wanton dumping of oily wastes. The restrictions for other types of ship differ slightly to take account of their different operating methods and of the fact that oily water separators can be used for discharges from them.
1074 These restrictions should in themselves be more readily enforceable than the present ones, but there are other complementary provisions to aid enforcement. Some of those minor exemptions which at present weaken enforcement because they provide an excuse for those who seek ways of evading the controls, are to be abolished. And the records that are required to be kept in oil record books on all ships have been greatly extended so that they will provide an accurate account of the fate of all the oil which has been taken on board the ship. This we expect will be a most important aid to effective enforcement.
Implementation of the amended Convention is the main point of the Bill, and Clauses 1 and 4 provide the necessary powers. The exceptions to a total ban to which I have referred will be made by Regulations under Section 1(3) of the 1955 Act. The opportunity has also been taken of making other changes in the law on oil pollution which do not require international agreement. Experience of prosecution over the years, particularly for offences in harbours and territorial waters, has revealed several problems and weaknesses in the law, and this Bill seeks to provide remedies for them. Most of them are matters which arise only seldom, but it is worth while trying to remove hindrances on those who undertake prosecutions wherever practicable. That is the reason for Clauses 2, 3 and 5. It is also proposed to amend the Continental Shelf Act 1964, to make the restrictions on drilling rigs consistent with those that apply to ships.
A change of rather greater magnitude is proposed in the penalties for illegal discharges of oil. The 1955 Act creates a number of offences and prescribes a variety of penalties for them, and these penalties were all reviewed when this Bill was in preparation. Many of the offences seldom if ever occur in practice, and there was no ground for thinking that the penalties provided for them were inadequate. However, this is not so in respect of the offence which is at the heart of the legislation; namely, that of making an illegal discharge of oil into the sea, whether into United Kingdom waters under Section 3 of the 1955 Act, or into the high seas under Section 1. The 1955 Act already provides for a fine without limit for such offences upon conviction on indictment. 1075 However, it is rare for proceedings to be taken on indictment for these offences, and indeed it would usually be impracticable to do so because the master of a ship is seldom available in port for very long. The need, therefore, for exceptional powers for magistrates was recognised in the 1955 Act, which provided for fines within the unusually high maximum of £1,000. But what was thought to be sufficient penalty for oil pollution in 1955 is no longer so regarded now. There is, moreover, the consideration that it has up to now been easy for the unscrupulous to escape detection and only a small proportion of the offences committed are ever brought to court. The scale of the penalties therefore needs to take this into account and to provide a very real deterrent.
Accordingly, the Government propose a substantial increase in the maximum penalty upon summary conviction. This intention will receive general support; but during the Bill's passage through the other place the Government were criticised for not going far enough, and in view of the unanimity of opinion on this point the Government accepted the proposal to raise the maximum penalty to £50,000, which is now embodied in the Bill.
There is a further matter which has not yet appeared in the Bill but on which I hope to table a new clause early next week in time for the Committee stage. The international Convention relating to intervention on the high seas in cases of oil pollution, accidents and collisions, which was signed at Brussels in November, 1969, clarifies the rights of a coastal State to take action against a ship on the high seas which has been involved in a collision or an accident or a stranding and is threatening to damage the coasts and related interests through oil pollution. We welcome this clarification and have ratified the Convention. However, it has drawn attention to a gap in the United Kingdom law.
The Convention sots out the rights of the United Kingdom, for example, to take action against foreign ships outside United Kingdom waters, but it is not concerned with the power of the Government to take action against ships that are within United Kingdom jurisdiction 1076 —that is to say, United Kingdom ships wherever they may be and ships of any flag within United Kingdom territorial waters. In such cases the Government at present have no power over those who are dealing with the accident or casualty, or the collision; nor, I understand, can they take direct action themselves without running the risk of civil proceedings for compensation. In practice, in circumstances such as the "Pacific Glory", any cases in which the Government would feel justified either in issuing directions to the owner or salvage ship, or in taking direct action themselves, are likely to be rare, and normally it is possible to proceed by consultation and co-operation; and that is what has occurred in the case of the "Pacific Glory".
Nevertheless, it has to be recognised that there can be a genuine conflict of interest, and we cannot rely on the owner of every ship that comes within our jurisdiction to be ready to co-operate in cases like these. If such a case should arise, the Government must not be left powerless to act in protection of the reasonable United Kingdom interests which are threatened by oil pollution. I therefore propose to put down a new clause giving the Secretary of State for Trade and Industry the power to issue directions to the owner or salvor of a ship which is threatening pollution damage, and also to take direct action if necessary.
My Lords, we are carrying through with this Bill a policy that was already being pursued by our predecessors, believe that the measures proposed in and under this Bill, together with parallel action by other maritime nations, will deal more effectively with one aspect of the problem of oil pollution; namely, pollution caused by deliberate discharges of oil into the sea. This is a practice which can be stopped and must be stopped. The methods now proposed for stopping it are, I believe, realistic, and I am glad to say that they have the full support of the British shipping interests. I have no hesitation in commending the Bill to your Lordships. I beg to move.

§ LORD BROWN
My Lords, I rise to comment on this Bill in place of my noble friend Lord Kennet, who is indisposed. We welcome the Bill as a necessary and competent measure, and we shall be glad to see it get its Second Reading. I have only one comment to make. We are pleased that the Government, in their wisdom, did not seek to reverse the Amendment carried in Committee concerning the penalties for criminal acts in connection with the discharge of oil. In these days of oil carrying, with the huge amounts of finance involved, the original penalty of £5,000 seems to us to have been somewhat derisory and we feel that the new penalty of £50,000 is very much more appropriate. We welcome this Bill.

§ LORD HURCOMB
My Lords, as one who took part in the discussions related to the original Conventions on this matter may I say how glad everybody interested in it is that the Government have proceeded so promptly to bring this measure before your Lordships? I also agree that the Government are to be congratulated upon their sense of realism in their wilingness to impose upon the very wealthy interests concerned in the commission of these offences a fine which has some kind of deterrent effect.
On the particular issue, I agree entirely with what the noble Lord, Lord Sandford, has said. There are points on which some people would like to see a more drastic attitude adopted: to say, in effect, that not a single drop of oil should ever be put into the sea. But, my Lords, it is far more important to be practicable than to be perfectionist; to help the interests which are doing and have done their best to secure a satisfactory result, as the great oil companies and our shipping companies have done, rather than to aim at something which, in effect, is unenforceable.
It is well known that there has been sitting for many years in this country an Advisory Committee, formed on a voluntary basis. When I say that its successive Chairmen have been the noble Lord, Lord Shackleton, the noble Earl, Lord Jellicoe, and now the noble Lord, Lord Kennet, I think your Lordships may well feel that the opinions of this House have been reflected throughout the negotiations which have now led to a successful conclusion, 1078 and that you will have no hesitation in passing this measure rapidly.

§ LORD WAKEFIELD OF KENDAL
My Lords, I rise for a moment to give the warmest possible support to this Bill. I do so because I am the President of the British Sub-Aqua Club, which is the national club of amateur divers, some 12,000 trained divers, in this country. We see the effects of the pollution of the sea by oil on birds on our beaches, and things of that kind, but the members of the British Sub-Aqua Club see the result of pollution when they go under the water and see the effects on vegetation, fish and so on. Therefore, anything that can be done to avoid and prevent pollution of this kind will obviously be warmly welcomed by this body of people with their practical knowledge and experience of what goes on under the water.
During this last year, Conservation Year, the members have carried out an exercise which has never been done before in the world; namely, a wide examination of the effects of pollution under the water. This is neither the time nor the place to go into the details, but they are very concerned with what is happening under the water, which your Lordships, unless you are under-water divers, and the public, unless they are under-water divers, do not understand or appreciate. Therefore, this Bill is very warmly welcomed by these practical under-water divers who know that any steps Her Majesty's Government can take to stop the pollution of the seas is well worth while.

§ LORD WYNNE-JONES
My Lords, may I also congratulate the Government on introducing this Bill. I was at the NATO meeting last year when, at the Science Committee, the Canadians rather chided us for not having sufficiently severe penalties for this sort of oil pollution. So it is particularly gratifying to see that the Government have now taken steps to rectify this. However, I wonder why there is a sort of escape clause in the Bill, where it says that it has to be proved that the escape or delay in discovery was not due to want of reasonable care? I should have thought that any escape or delay in discovery should in itself be regarded immediately as something that ought to be treated with a penalty.

§ LORD SANDFORD
My Lords, I am grateful to noble Lords for their warm reception of this small but important and very necessary Bill.