HL Deb 11 March 1971 vol 316 cc177-91

3.25 p.m.

EARL ST. ALDWYN

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Oil in Navigable Waters Bill, has consented to place Her interest, so far as it is concerned on behalf of the Crown, at the disposal of Parliament for the purpose of the Bill.

LORD SANDFORD

My Lords, I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read 3a.—(Lord Sandford.)

On Question, Bill read 3a, with the Amendment.

Clause 8 [Shipping casualties]:

LORD SANDFORD moved Amendment No. 1: Page 6, line 8, leave out ("the salvor") and insert ("any salvor in possession of the ship").

The noble Lord said: My Lords, this is a straightforward drafting Amendment. In looking at this clause again, we realised that it might not be altogether clear that the words "the salvor" as used in subsection (2)(c) referred only to the salvor in possession, as in the preceding line, and not to any other salvor. The Amendment is designed to put this simple matter beyond doubt. I beg to move.

On Question, Amendment agreed to.

LORD SANDFORD moved Amendment No. 2: Page 7, line 4, leave out from ("section") to end of line 6.

The noble Lord said: My Lords, I think it would be convenient for the House if we were to deal with Amendments Nos. 2, 3 and 4, and Amendment No. 6 which amends Schedule 2, together. They are all concerned with the same basic point. Noble Lords will recall that at the Report stage, in response to Amendments moved by the noble Lord, Lord Kennet, I undertook to reconsider the penalty provisions of this new clause and the Schedule relating to obstruction of a person carrying out a direction or taking action against a ship on behalf of the Secretary of State or of a person attempting to give or to serve a direction. The noble Lord had represented that, as obstruction could take a form which might frustrate the whole purpose of the Secretary of State in giving a direction or taking action, it was not satisfactory that these offences should attract a maximum penalty of no more than £100 fine in a magistrates' court, and he suggested that offences involving obstruction should either be subject to a maximum fine on summary conviction of £50,000 or that the lower maximum might be retained with the alternative of imprisonment.

We have carefully considered both those alternatives, and, as I think the Amendments make plain, we have opted for the higher maximum fine without the alternative of imprisonment. We have, however, also made the offence s indictable with no limit to the fine which may be imposed in the higher court. I should add that the Government have decided to take this course despite the fact that there are several weighty arguments against it. The general objections to providing lay magistrates with exceptionally high fining powers have been rehearsed a number of times in the context of this Bill in both Houses of Parliament, and I will not go over all of them again, but they remain valid, and the more so since in most cases obstruction, if it occurred, would be a relatively minor offence. Secondly—and this is a matter which greatly concerns a number of organisations representing seafarers: seamen, officers and masters—obstruction is normally thought of as an offence committed by an individual, for whom a £50,000 fine would be totally inappropriate. The provisions relating to obstruction will be read in the light of the clause as a whole. For example, in view of subsection (6) I am sure that there could be no question of proceedings being brought successfully against an individual who obstructed action because it was likely to endanger human life.

There is in fact little concern among our seafarers that British magistrates would impose unreasonable penalties on individuals, but we are among the first nations to legislate in this particular field, and we must not overlook the possible effect of our actions on other countries. There is a very real fear among seafarers that if our example were copied elsewhere they might be exposed to the risk of unnecessarily harsh treatment in other courts. We must not ignore that view, however improbable it may seem to your Lordships that such a situation could arise. On the other hand, we have to recognise that, as the noble Lord, Lord Kennet, pointed out, the clause as drafted opened up the possibility that unscrupulous persons might take advantage of the low penalties to be obstructive in a way which would completely frustrate the intentions of the Secretary of State, without incurring any great penalty, and that such obstruction might be of considerable benefit to others concerned.

We accept that this is a potential danger, and it is for this reason that we have decided that all the offences which might nullify the intentions behind the clause and give rise to large-scale oil pollution should carry the same penalties. We are confident that we can rely on the good sense of magistrates to distinguish between cases in which large penalties might be appropriate, in that a deliberate attempt had been made to circumvent the whole effect of the clause, and ones which are committed by individuals from purely personal and perhaps misguided motives. While recognising that misgivings may be felt about the effect of similar legislation in other countries, we must legislate here primarily to meet our own needs, and act on the presumption that if this legislation is copied abroad it will be administered in a sensible way and not be used as a means of persecuting our shipping. Moreover, I think that we all recognise that the standards of our own merchant navy are such that it is most unlikely that British seafarers would bring themselves within the criminal provisions of this or equivalent legislation, here or abroad. I beg to move.

LORD KENNET

My Lords, we are glad that the Government have taken a step to close this loophole which was pointed out at an earlier stage. I am convinced that a step was necessary, but because of the very real difficulties which the noble Lord has outlined so fully and of the dangers inherent in the solution that the Government have adopted I was a litle surprised that he did not tell us why the Government did not adopt the alternative solution; namely, of making imprisonment a possible punishment for this offence. I am sure that the House would be patient if he were to speak again, with leave, to tell us why the Government chose the £50,000 fine instead of a low fine and imprisonment. I do not criticise the choice, but I should like to know the reason for it.

LORD SANDFORD

Briefly, my Lords, because, as your Lordships so far have agreed and the other place clearly thought, the appropriate penalty for the full offence is quite clearly a heavy fine.

On Question, Amendment agreed to.

LORD SANDFORD

My Lords, I beg to move Amendment No. 3 formally.

Amendment moved— Page 7, line 15, leave out from ("be") to end of line 16 and insert ("guilty of an offence under this section").—(Lord Sandford.)

On Question, Amendment agreed to.

LORD SANDFORD

My Lords, I beg to move Amendment No. 4.

Amendment moved—

Page 7, line 29, at end insert— ( ) A person guilty of an offence under this section shall be liable—

  1. (a) on summary conviction to a fine not exceeding £50,000,
  2. (b) on conviction on indictment to a fine".—(Lord Sandford.)

On Question, Amendment agreed to.

Schedule 2 [Shipping Casualties]:

3.34 p.m.

LORD SANDFORD moved Amendment No. 5: Page 9, line 28, at end insert:

"Right to recover in respect of unreasonable loss or damage

.—(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—

  1. (a) was not reasonably necessary to prevent or reduce oil pollution, or risk of oil pollution, or
  2. (b) was such that the good it did or was likely to do was disproportionately less than the expense incurred or damage suffered as a result of the action,
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 sub-paragraph (1) above applies, account shall be taken of—

  1. (a) the extent and risk of oil pollution if the action had not been taken,
  2. (b) the likelihood of the action being effective, and
  3. (c) the extent of the damage which has been caused by the action,

(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, of the Court of Session and of the Supreme Court of Northern Ireland shall include jurisdiction to hear and determine any claim arising under this paragraph."

The noble Lord said: My Lords, we come now to a different point. Your Lordships will recall that in our debate at the Report stage, on paragraph 1 of Schedule 2 the discussion culminated in a decision to delete the paragraph, on the understanding that the broad principle behind it would have to be restored. We acquiesced in this procedure because we ourselves were unhappy about some aspects of the drafting, and the noble Lord, Lord Kennet, was unhappy about others, and wished us to remove the risk of damage to a ship as a result of a direction or action by the Secretary of State from among the factors which might entitle a person to compensation. This new paragraph omits the words to which the noble Lord, Lord Kennet, took exception; it retains the concept that the good achieved by the action taken must be disproportionately less than the damage suffered, which the noble Lord welcomed on Report, but it now makes provision for expense incurred by a person seeking to recover compensation, as well as damage suffered by him—all this to be set against the good achieved by the action.

It is also provided that the criteria set out in the new sub-paragraph (2) are to be applied to the case specified in paragraph 1(1)(a)—that is to say, when the need for the action is questioned—as well as to the case specified in sub-paragraph (1)(b). In sub-paragraph (2)(a) the words: the extent and risk of oil pollution have been substituted for the words: the extent and probability of imminent damage". This is a drafting Amendment to make the language consistent with that used elsewhere, in Clause 8. Finally, in subparagraph (4) the Supreme Court of Northern Ireland has been included among the courts having jurisdiction to deal with claims under this paragraph. This paragraph is an essential part of the Bill. I think that it is now an improved version of that which we took out on Report I have no hesitation in commending it to your Lordships. I beg to move.

LORD KENNET

My Lords, I think that this is a very reasonable compromise by the Government and I welcome it.

On Question, Amendment agreed to.

LORD SANDFORD

My Lords, I beg to move Amendment No. 6.

Amendment moved— Page 10, line 8, leave out from ("be") to end of line and insert ("guilty of an offence under the principal section").—(Lord Sandford.)

On Question, Amendment agreed to.

LORD SANDFORD

My Lords, I beg to move that the Bill do now pass. I apologise for the large number of Amendments that have been introduced to this Bill from the Committee stage onwards, but I think I have already made the reason for this clear. There now may be some final points which noble Lords would like to make before the Bill actually passes.

Moved, That the Bill do now pass.—(Lord Sandford.)

LORD HAWKE

My Lords, as my noble friend said, this Bill has been rather a chapter of accidents. Usually, the insurance department of the Ministry of Trade are very good about prior consultations with all interests before legislation, but this time they were not so good as usual. The result is that we have had massive changes to the Bill, on Committee stage and Report stage, and now on Third Reading. We really ought to have recommitted the Bill and had a second Committee stage. Some of your Lordships may think that I have an interest to declare. Actually I have not. I am on the board of a small insurance company, but we do not deal with marine insurance. However, it leaves one with some sympathy for the species of underwriter in general.

The action under this Bill is necessary and inevitable, but it throws a very heavy onus on the marine undertakers and I think it only fair that this should be recognised. The powers of the Secretary of State to give directions are necessary for the public good, but it does not mean to say that any direction is necessarily a wise one—for instance, it may be panicky and misconceived. The responsibility placed on the Secretary of State is a very heavy one. He may be tempted to order that a damaged vessel, which presented a remote but possible danger to our shores, should be towed out into the Atlantic and sunk, in the hope that that would be the last that he would ever hear about it. The danger could be so remote as to attract compensation under the provisions in the new paragraph 1 to Schedule 2 which my noble friend has just moved. But it would be very difficult to prove, because "dead ships tell no tales", and the underwriters will have to quantify the risk of action by nervous Secretaries of State. I do not think that will be an easy task for their actuaries.

There is one other point that arises, regarding the question of salvage. Deep sea salvage, often conducted by Dutch firms, is done on the basis of great skill and daring for great rewards, on the basis of no salvage, no pay. I do not think that these people are going to take kindly to the idea of their reward being snatched away from under their noses by a direction from the Secretary of State. It means, I think, that the form of deep sea salvage contract will have to be changed radically, unless it is possible for the salvage people to insure against a direction being received. That sounds a very simple solution, but in practice there are many complications, which I will not go into now.

My noble friend has done his best, by his new Amendment, to make a Bill which I agree is a public necessity a little less draconian. I do not see anything else that he could have done, and still maintained the basic necessary powers; and one must thank him for doing it. Whatever happens, this Bill is going to provide a lot of fat fees for the Admiralty Bar and more headaches for the underwriters, and one can only hope that the powers of the Bill will never be invoked.

3.43 p.m.

LORD KENNET

My Lords, if I may speak for a moment, I should like to associate myself with Lord Hawke's concluding prayer. Naturally we all must hope that the powers in the Bill will never be invoked, because we must all hope that never again will there be a tanker accident; or, if there is, that the owners and salvors will know what to do without being told. If they do not know what to do, we must hope that they will obey the slightest hint from the Secretary of State given in the form of advice.

My Lords, I should like to say that I, too, have been worried about the lateness of the changes which we have carried into the Bill and also the wideness of those changes. I believe this to be acceptable, because we must not forget that this matter arose out of an accident, the collision between the "Pacific Glory" and the "Allegro" to the East of the Isle of Wight. We have probably forgotten that accident, because since it occurred there have been so many more. There has been a terrible and tragic toll; a pile-up of ships in the Channel. None of the accidents has led to pollution on any great scale, but most have led to loss of life, and I believe it was justified to legislate quickly, by this Bill, on the basis of experience. I believe that there will be much more legislation on this matter. Possibly legislation will be passed every year in Parliament from now on, until we achieve a control which covers the high seas; which covers traffic regulation in the high seas; and which covers the giving of orders to masters of ships on the high seas, if we are to stop the loss of life and reduce the pollution of our coasts by oil.

The noble Lord, Lord Hawke, said that this means trouble for the insurance market, and of course it does. No one can doubt that the effect of this Bill, when it works through, will be to increase premiums. If I may hark back again to a point which I made at several junctures during the passage of this Bill, I would say that it is only the choice of people in the oil industry that results in the use of these gigantic oil tankers which pose gigantic risks; which may have to be the subject of very urgent orders and upon which, therefore, enormous insurance premiums must be paid. If the oil people chose to use smaller tankers, the risk of pollution and collision would be less; the impetus afforded to a Secretary of State to give draconian orders would be less, and, I submit, the premiums would be less per ton of oil carried. It may be, my Lords, that that will be the way in which things will go.

3.45 p.m.

LORD HURCOMB

My Lords, there is one point, of a rather different character, to which I should like to draw the attention of the House. I am strongly in favour of the Bill, but the point I wish to raise is one of great importance to the mercantile marine, particularly to the masters of ships. If I seem to press the Minister for assurances which go beyond anything he is prepared to give, I have two reasons. Throughout two world wars I was intimately connected with the mercantile marine in circumstances of the greatest difficulty and peril to everyone who put to sea. That is one reason, my Lords. The other reason is that in the successful application of the aims of this measure we must, I submit, have with us the good will and cooperation of the shipping industry and of the great oil companies at every possible point. We ought not, therefore, to leave the masters of ships in any position of difficulty if that can be avoided.

During the Committee stage an argument arose about the possibility of providing defences for the masters of ships who did not comply fully with directions received from the Minister. The Chamber of Shipping were uneasy on two points in particular. One of them has been met by Amendments made to the Bill by which, in addition to what was the sole defence of due diligence, provision has been made for action to be taken in the interests of preserving human life.

There is another point, my Lords. The Minister, operating on advice necessarily given far away from the actual occurrence, may have ordered something to be done which looked perfectly right anti reasonable to him at the time. But circumstances may change, and at sea they can change very suddenly. There might be some sudden change of weather, or in the position of the lie of the ship itself which would make it hazardous to comply with a direction given from Whitehall, however reasonable that direction might appear.

What is the master of the ship to do? He is in charge; he is responsible for the lives of his crew and the safety of the ship. Yet he is confronted with the choice of either defying the Minister's direction or doing something contrary to the terms of that direction, which might involve him in the very heavy penalties rightly imposed under the provisions of the Bill. The Chamber of Shipping, on whose behalf I speak, are still uneasy on that point. They recognise the extent to which the Government have already gone to listen to their point of view and, where possible, to meet it.

This is not a remote contingency. It is something which might very well happen and, it seems to me, it is something with which it is very difficult to deal. I confess that I cannot see any way in which it could be dealt with under the provisions in the Bill. I do not see how it is possible to devise some formula which, in effect, would say that the master of the ship could ignore a Minister's direction and supersede it by his own judgment; though his own judgment may well be the better one, and may be taken on the spot and with the actual conditions raging round him.

I think it would be a good way to meet the difficulty if the Minister could give to the House some assurance that normally a qualified officer will be near enough to the actual ship to confer with the master and listen to what he has to say, to represent what he says to headquarters, and to get the direction revoked, suspended or perhaps modified and a new direction issued. I recognise that that will not be possible in all circumstances. The disaster may occur in some remote place where the physical difficulties are too great to be overcome. But I think that in the great majority of cases, and certainly anywhere near our coast, seaside resorts or bird sanctuaries where the risks are greatest, it would be practicable to arrange departmentally for some competent officer of the Minister and those actually in charge of the ship to get in touch with one another and perhaps get the direction which would otherwise be binding on the master modified to meet particular circumstances.

I hope that, for the reasons I have explained, I shall not be thought by the Minister to be pressing the point unduly. So far as the Chamber of Shipping are concerned, as I have said, they realise that the Government have gone as far as they can reasonably be expected to go in the Bill itself, but they would feel much happier if they could have some assurance from the Minister that he is not merely sympathetic to their point of view—which I know he will be—but that he can see some practical means of meeting their apprehensions.

3.53 p.m.

LORD SANDFORD

My Lords, so far from being unduly pressed, I am grateful to the noble Lord, Lord Hurcomb, and to other noble Lords who have spoken, for an opportunity to give a number of reassurances at this last stage of this important Bill because of the hurried way in which it has been introduced into your Lordships' House. This was not an accident: it was a calculated decision to take account of the lessons learned in the "Pacific Glory" incident. I can assure my noble friend Lord Hawke that the views of insurers on Clause 8 have been carefully considered. I am nevertheless satisfied that it is necessary and right for the Government to be armed with these new powers, and to take them now. As the noble Lord, Lord Kennet, reminded us, it is not only the "Pacific Glory" incident itself, but the other accidents in the Channel since then which have reinforced this view.

I appreciate that the existence of these powers will add a further risk to those already present in a salvage operation, and salvors may seek to cover themselves against this risk. I do not believe, however, that they need be entirely deterred from undertaking salvage operations. There are several points in this connection that I should like to emphasise. We already have a right to intervene in a casualty which threatens damage to our coasts by oil pollution, and this right has been clarified in the Convention signed at Brussels in 1969. We should have liked that Convention to extend also to territorial waters, but that idea did not find favour internationally. The "Pacific Glory" episode demonstrated the need to have the powers, if not the need to use them. In legislating for territorial waters we sought to provide safeguards equivalent to those in the Convention, and it will be much to the interests of shipowners and salvors if other countries can be induced to follow this lead in their legislation.

Secondly, I must emphasise again that the Government intend to proceed, again as in the "Pacific Glory" case, so far as possible by co-operation without invoking any statutory powers, and they will in any case act in the closest consultation with other parties that are involved, including any salvors, as well as the owners of ships and cargoes. It is true that the clause does not spell out an obligatory procedure for compensation comparable to that in Article 3 of the Convention. We did not think that this would be appropriate to the Bill, especially as the Convention itself provides for action without prior consultation or notification in cases of extreme urgency. Any obligation to consult in every case would go beyond the Convention. Nevertheless, I can assure the noble Lord, Lord Hawke, that we shall regard it as just as necessary to consult the other parties involved in an incident within territorial waters as we should in a case covered by the Convention. Indeed, it would be unwise not to do so, because, as the noble Lord, Lord Hurcomb, reminded us, we must take into account the knowledge of the experts on the spot.

Finally, the salvor who like any other person suffers damage or incurs expense may be entitled to recover compensation under the provisions that we have made in Schedule 2.

I am grateful to the noble Lord, Lord Hurcomb, for his remarks and for giving me an opportunity to add the particular kind of reassurances for which he asked. Proposals were made, as the noble Lord said, by the industry for including an additional defence under subsection (8) of Clause 8 so that it might be possible without fear of penalty to refrain from complying with the direction if circumstances had so changed after its issue that to comply would be positively harmful. One must obviously sympathise with the purpose of this proposal, but there are, as the noble Lord surmised, serious objections to including such a defence.

First of all, there is the general point that it is essential that a direction made by the Secretary of State in circumstances of this sort should be effective and should be complied with without argument or delay; and we are relying principally on the compensation provisions in Schedule 2 as the safeguards for the interests of the shipowner. Secondly, the concept of a change of circumstances—that is easy enough to visualise—is not readily susceptible to legal drafting, as I think the noble Lord, Lord Hurcomb, fully recognised; and the defence suggested would have gone much wider—to cover cases, for example, in which compliance with the direction would endanger the ship. This would be inconsistent with the main object of this clause, which is to cater for situations in which the interest of the shipowner or salvor in saving the ship does not coincide with the national interest in preventing pollution. A defence on these lines might prevent effective action in just such cases.

Although, for these reasons, I cannot agree to put in a further defence for this purpose, that is not to say that the Government would insist on compliance with the direction in the situation envisaged by the noble Lord, Lord Hurcomb, in which it had become abundantly clear to all concerned that compliance would do more harm than good, not only to the ship but also in the problem of preventing pollution. I have emphasised previously that in dealing with a casualty which threatens oil pollution the Government will rely first of all on co-operation with all the other parties involved, and especially with the shipowner and the salvor. We hope that in most cases this will be successful, and that the powers provided by this clause will not prove necessary.

There will have to be the closest possible consultation throughout, and I think that this provides the main answer to Lord Hurcomb's point. The direction is not going to be issued by a remote Secretary of State in Whitehall, without direct contact, leaving the recipient to make what he can of it under threat of prosecution. For example, throughout the "Pacific Glory" incident we, with an operations room in Whitehall, were in constant touch with D.T.I. officials and with the Navy, and, through the Navy, with the salvor and the owners on the spot. The Secretary of State will, we envisage, in almost every circumstance have officials on the spot or in touch with the situation. If there is a change of circumstances which renders a direction inappropriate, the right course will be to bring this to the attention of the Secretary of State's representative so that the direction may be suitably amended or withdrawn altogether. A direction is not irrevocable, and the power to make one carries with it the power to alter or to withdraw it. This is the right way to deal with the difficulty, rather than to introduce a defence which would seriously weaken the effect of the clause in other circumstances. I hope that that deals with the two points that the noble Lord, Lord Hawke, and the noble Lord, Lord Hurcomb, raised.

I should now like briefly to add a further word before the Bill leaves your Lordships' House. In the form in which it came here from another place the Bill received a warm welcome from your Lordships. The main and original purpose of the Bill was to enable the United Kingdom to accept and to bring into force for British ships as soon as possible important Amendments to the 1954 International Convention on the Prevention of Pollution of the Sea by Oil. This is directed at wilful pollution of the sea during the normal course of ships' operations. We believe that the powers provided by the Bill will enable us to go a long way towards ending this nuisance. No change of substance has been made to the provisions of the Bill dealing with these matters during the passage through your Lordships' House. However, an important addition has been made, to which the "Pacific Glory" case first of all drew our attention. This extended the scope of the Bill to provide new powers to intervene in certain circumstances in the event of a casualty at sea which threatens large-scale oil pollution.

I apologised for the very short notice at which this important provision was introduced, and I am appreciative of the understanding way in which the House has received and dealt with it.

Although the principle was generally accepted, the detailed provisions have called for careful consultation outside and consideration inside your Lordships' House. It was necessary to seek a balance between adequate powers for the Government to protect our coasts from massive oil pollution, and the substantial and legitimate interests of ship owners and salvors. At the same time, we have to bear in mind that we are one of the first countries to legislate on this particular matter, and our lead may well be—and almost certainly will be—followed by others. This was an additional reason for basing our legislation as closely as we could on the 1969 Convention dealing with the high seas which contains important safeguards. The constructive discussions which we have had at each stage have been most valuable in clarifying and refining the drafting of this new measure, and I invite your Lordships to give your approval to a Bill which has been improved and extended in this new, important and significant way.

On Question, Bill passed, and returned to the Commons.