§ 4.58 p.m.
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, that the House do now resolve itself into Committee.—(Earl Ferrers.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD JESSEL in the Chair.]
§ Clause 1 [Restrictions on dumping in the sea]:
§ VISCOUNT SIMON moved Amendment No. 1:
Page 2, line 1, leave out ("A discharge") and insert—
("A deposit which is
§ The noble Viscount said: I should like, first of ail, to apologise to the noble Earl, Lord Ferrers, and to your Lordships, for the fact that I was unable to be in the House when your Lordships debated the Second Reading of this Bill, Had. I been here. I should have wished to extend from these Benches a warm welcome to the Bill. I might also have outlined some of the difficulties that I personally see in some of its provisions and perhaps have given both the Government and your Lordships a little more time to consider the matters I am now raising in these Amendments. This Amendment arises from a discussion that I had with the British Ports Association—that is, the body which represents the port authorities of the United Kingdom. I no longer have any formal interest to declare, but I have remained interested in ports, and we are all interested in ensuring that the ports of this country are not burdened with unnecessary expenditure which can only add to the charges that they have to levy on our exports and imports that pass through them.1082
In this Amendment I have suggested three categories of material which might be exempted from the licensing provisions of the Bill. The three categories, as your Lordships will see, are entirely different, each from the other, and it may be that the Government might and the Committee will think that all three categories should be dealt with in different ways, but I thought it convenient to put them together in a single Amendment. May I take first what is clearly the most difficult one, which concerns
… materials dredged by a harbour authority in the exercise of its statutory powers".
§ I said that this category is the most difficult because the noble Earl reminded us on Second Reading that dredgings are specifically included in the Convention and therefore, if we are to carry out our obligations, dredgings must be controlled. The point here is that dredgings by harbour authorities are already controlled as to where they may be dumped in the sea. This control is exercised by the Department of Trade and Industry, and every harbour authority wishing to dump dredgings in the sea has to obtain the approval of the Department as to the place where the dredgings are to be deposited. It is no doubt true that hitherto the Department of Trade and Industry have not taken account of environmental factors, but I do not see any reason why they should not undertake that task in consultation with the other Departments concerned—with the Ministry of Agriculture, Fisheries and Food in England, with the Secretary of State in Scotland and, of course, with the Department of the Environment. Provided that can be done, we can fulfil our obligations under the Convention and, at the same time, continue an existing procedure which is well understood by the people concerned.
§ I have seen some correspondence between the British Ports Association and the Ministry of Agriculture, Fisheries and Food, which suggests that the harbour authorities should not only obtain a licence under this Bill when it becomes an Act, but also that they should continue to obtain approval from the Department of Trade and Industry. Frankly, that seems to be a very wasteful procedure from everybody's point of view. Surely it is much better for one Department to undertake the task of approving the depositing of dredgings and for any 1083 necessary consultations to take place between Departments in order to cover all the various factors involved. Imagine the situation that could arise if the licensing authority were to say to a harbour authority: "You must not deposit your dredgings at point A, but at point B", and the Department of Trade and Industry, which is largely concerned with safety of navigation and so on, were to say: "You must not deposit these dredgings at point B but at point A". The authority would then be in a position of complete impasse; whereas it would seem to be right that if there are differences of this kind, they should be resolved between the Departments concerned. For those reasons, it seemed to me better if the existing procedure were to be continued and if the Department of Trade and Industry became, for the purposes of this particular type of deposit, the licensing authority, obtaining whatever information it required from the other Departments in order to ensure that the best possible arrangements were made. So much for dredgings.
The second category which is referred to in this Amendment refers to a deposit which is
…made as part of the normal execution of a work of construction, maintenance or repair".
I must say I feel very doubtful whether this sort of deposit, if we may call it that, was ever intended to be included in the Convention at all. It varies from the depositing of stone for the purpose of making a breakwater to the repairing of piles of a wharf—anything of that kind. Is it really going to be necessary to obtain a licence when somebody wants to repair or substitute one of the piles supporting a wharf? What about groins on the seashore which control movements of sand: is it intended that these should be subject to licensing under the Bill? It would certainly impose a considerable extra burden on the licensing authority. I suspect that a very large number of people would not understand that this deposit required a licence and might find themselves unwittingly committing an offence. So I hope that the noble Earl may be able to tell us that these situations do not come into the scheme of things at all.
Finally, there is category (c), which concerns a deposit
…made by the discharge of a substance in order to emulsify oil spilled on the sea.
§ This is something which has to be done at very short notice, and I myself query whether it even comes into the definition of "dumping" in the Bill, because it might be said the deposit is not intended to remain permanently there. However, there seems to be some doubt as to whether or not it is included. Here again, if the noble Earl can tell me that it is not included, that disposes of the particular part of the Amendment. I think I have covered this matter as thoroughly as your Lordships would wish me to do at this stage, and I beg to move.
§ 5.7 p.m.
I think that probably Amendments Nos. 15 and 16 also go with Amendment No. 1. I am grateful to the noble Viscount, Lord Simon, for having brought this forward, because it is perhaps one of the more important of the Amendments which he has put down. On the face of it, the noble Viscount's argument has been extremely reasonable. I should like to go into it with him, if I may, because up to now harbour and other authorities have not been subject to dumping controls under the voluntary system which we have had hitherto; but the Government consider that they would be failing to carry out their duty if provision were not now made in this legislation to deal with the possibilities of such operations adversely affecting the marine environment. And of course, the whole purpose of the Bill is to control dumping which would affect the marine environment. I should explain that the disturbance of the seabed can lead to the release of substances which are hazardous to the marine environment. These can include heavy metals which have hitherto been dormant in sediment. It was precisely for this reason that the London Convention, setting out internationally agreed criteria to prevent harm to the sea and to the creatures who live in it, embraces the dumping of dredged soil. That was the reason for it.
Under the arrangements in that Convention it has been agreed that the placement of materials in the sea which would contravene the aims of the Convention 1085 should be governed by dumping controls. If we did not subscribe to this arrangement in the Bill, the Government would be unable to subscribe to the London Convention. The question of dumping of dredged material has also been discussed in the context of the Oslo Convention which unanimously agreed that control should be exercised over dredged soil.
Paragraph (b) of the proposed Amendment seeks to exempt the building of harbour works and other constructions from dumping controls. Again, I can see that this is an inherently reasonable suggestion but, for precisely the same reasons as I have given in relation to the dredgings, it is important for those charged with the responsibility of safeguarding the marine environment to be in a position to maintain an effective oversight of operations which could conceivably introduce or release heavy metals or other persistent substances into the food chain via marine life.
Paragraph (c) of the Amendment deals with such operations as the use of detergents to limit the effects of oil pollution. It is well known that in certain circumstances the use of detergents may be more toxic to marine life than oil itself. Once again we think it reasonable in the context of the Bill for a general oversight to be maintained through a licensing system of the use of materials in the sea. Having said all this, the Government do not envisage that controls through the licensing system over harbour operations, dredging or disposal of oil will be exercised in such a manner that they will put the authorities who are responsible for such matters to any significant expense or administrative difficulty. I can assure the noble Viscount that administrative arrangements will be made to co-ordinate the oversight which has to be exercised by different departments for different purposes in relation to these works so that the operational authorities will be put to a minimum of inconvenience. For the reasons I have given, I would find it difficult to assent to any arrangement which would weaken the obligations which the United Kingdom have accepted in exercising control over the dumping of materials into the sea.
I hope that will satisfy the noble Viscount. We take his point seriously, but under the existing Conventions we feel 1086 that it is right to keep a control over what may adversely affect the marine life and we believe that his Amendments would in some way minimise our support of the Conventions.
§ VISCOUNT SIMON
I am very grateful to the noble Earl for explaining the position so fully to the Committee. I only have one or two small points that I should like to make in following up this Amendment. So far as paragraph (a) is concerned, I think I understood him to say that there would be arrangements for mutual consultation between the Departments concerned so that a single application for a licence would cover the whole operation and it would not be necessary to apply for separate permission from the Department of Trade and Industry.
The noble Viscount is not quite right: two separate licences will be required. In the case of dredgings, a licence will be required from the Department of Trade and Industry in order to ensure that where the material is deposited will not interfere with navigation. A separate licence will be required from the Ministry of Agriculture, Fisheries and Food to ensure that what they put into the sea does not contain any deleterious substances.
§ VISCOUNT SIMON
I am obliged to the noble Earl. I was hoping one might get away with only a single application. I was then going on to suggest—I am afraid it is no use now—that the Department of Trade and Industry, which is used to dealing with these matters, could just as well co-ordinate from their side and, for this purpose, be the licensing authority. I take it that Governments can subscribe to the Convention provided that their deposits are licensed they do not have to be licensed by any particular Department so far as the Convention is concerned. But I take the noble Earl's point.
Regarding paragraph (b) one issue occurred to me: this Bill deals with everything from the point of view of conservation and I do not want any noble Lords to think that I am not a keen conservationist. But we have to get a balance somewhere. If there is an old wharf with timber piles, it is usual for the timber to be coated with something which has the effect and, indeed, is intended to 1087 have the effect, of inhibiting the breeding of certain small animals living in the sea. I suppose that is interfering with the ecology, and the ecologists might say: "You must not coat these timber piles with preservative because you are interfering with the breeding of particular marine life." I do not suggest that people would be as unreasonable as that; but there are circumstances in which the preservation of marine life of that kind must give way a little to other considerations which are so important to a country like ours which has to live by its trade.
So far as paragraph (c) is concerned, the occasion for spraying detergent in order to control an oil spill arises very suddenly and has to be exercised very quickly if it is to be effective. I am wondering how the timetable will work if somebody then has to apply for a licence. He cannot get a general licence because he does not know in advance the particular place where this material is to be deposited. Presumably the place where it is to be deposited is an important aspect of the conservational position. It might be suitable to deposit it in one place but not in another. I do not see how the authorities who are trying to cope with an oil spill will have time to get the necessary licence. I do not know whether the noble Earl would like to comment on those points before I withdraw the Amendment.
Regarding the first point the noble Viscount made, he said that if timbers coated with a certain material are used this would affect the marine life. That may be so if those timbers were put in as part of construction; that would not be dumping. Dumping is the vital part. If I may take that one step further: if you had a lot of timbers which were coated with a certain product and you wanted to dispose of them in the sea you would have to get a licence. It may well be that you would be granted a licence, but it would be necessary for the authorities to determine precisely with what the timbers were coated. They might be coated with a noxious substance which it would be wrong to dump in the sea. In the particular case which the noble Viscount used, where it would not be dumping, a licence would not be required.
§ VISCOUNT SIMON
I am sorry to interrupt the noble Viscount, but dumping is defined as anything which is permanently deposited in the sea. It does not carry the connotation we think of in dumping, dropping things in the sea.
That would apply if you were excavating and digging out material from the sea in order to place something in the sea. You would then be dumping the sediment on the sea and that sediment may contain those things to which I have referred, such as heavy metals. It is right that there should be some control. But when I say "control" that does not necessarily mean restriction; it is not envisaged that the Government will make it difficult for the authorities to do this. They want to know what is going into the sea, and if it is harmless a licence will be issued straight away.
Regarding the spraying of detergents, it is our intention to grant a standing licence for the use of less toxic detergents. In other words, there will be certain products which it will be known in advance can be used in the event of the dispersing of oil. This will be under a general licence, so it will not be necessary to apply for a specific licence if a second "Torrey Canyon" founders.
§ VISCOUNT SIMON
I am much obliged to the noble Earl. Having heard that, I should like to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 5.21 p.m.
EARL FERRERS moved Amendment No. 2:
Page 2, line 40, leave out ("in relation to substances or articles dumped from a") and insert ("under section 1(1)(b) above in relation to substances or articles dumped from a British")
§ The noble Earl said: I beg to move the Amendment which stands in my name. A Convention State undertakes to license dumping, in accordance with the Convention, in respect of all vessels or aircraft loading in its territory. The purpose of this subsection is to enable the Ministry of Agriculture to accept the licences which will be issued by other Convention States as discharging his responsibility for ensuring compliance with the Convention by vessels and aircraft registered in the United Kingdom. Nevertheless, it is considered that licences 1089 issued by Convention States should not permit dumping in United Kingdom waters. The purpose of this Amendment, therefore, is to restrict recognition of licences issued by Convention States for dumping by British vessels and aircraft outside United Kingdom waters. I beg to move.
§ On Question, Amendment agreed to.
§ On Question, Whether Clause 1, as amended, shall stand part of the Bill?
I quite understand the purpose of the Bill, but one has to be careful that it does not strike in unexpected directions. I well remember rescuing the taxidermists from the exigencies of the Rag, Flock and Other Filling Materials Bill, which was not intended to apply to them at all but, as it was drafted, in fact did. In this particular clause it seems to me that there are two possible sources of error. First of all, in subsection (2) we have the words, "permanently deposited in the sea". At the moment, we in this country are greatly troubled by the disposal of empty plastic bottles and similar objects. So far as I can see, it could well be maintained that if somebody hired a ship and dumped these plastic bottles in the sea, they would not be permanently dumped in the sea because they float; and they always float to land again. There is one possibility of error.
The other point concerns waste dumping. I know places in Cornwall where, I think still to-day, but certainly in the past, waste has been dumped down narrow cracks or gulleys leading down to coves. Such waste does not necessarily reach the sea in one move, but it gradually falls down the cliff and eventually reaches the sea and hence, by the definition of this Bill, I suppose, becomes a dumping in the sea. Whether this Bill is intended to cover that or not, I do not know, but I think the Ministry should make up their mind, if they have not done so already.
My noble friend Lord Hawke has mentioned the dumping of plastic bottles and plastic containers. This is precisely the type of dumping that is covered by the Bill. It may be that, having been dumped, a thousand tons of plastic rubbish does not float to the bottom of the sea. However, the criterion of whether an act is dumping is not 1090 whether the object in the sea sits on the sea-bed after being deposited, but whether, in fact, it has been dumped as such. Therefore in the sort of case to which he referred, if anyone wished to dump any substance, even though it did not sink to the bottom of the sea, such action would require to be covered by licence.
May I interrupt? I am a little doubtful whether the use of the word "permanently" has possibly destroyed the case my noble friend is making.
I shall be happy to have a look to see whether that is the case. My understanding at the moment is that it does not affect it, but I will certainly have a look at it.
The second point to which my noble friend referred was dumping in coves. This Bill, in fact, refers to the dumping of any objects in the sea below the high-water mark. If the cove is below the high-water mark, it is covered: if it is not below the high-water mark, it would not be.
This is rather important, then, if I may come back to the point. The stuff is dumped down a cliff and, by the force of gravity, eventually gets into the sea, though in the first instance it is not dumped into the sea. I do not want an answer from the noble Earl now, but the Ministry should look at that.
Yes, we will certainly look at that. But I think I can give the noble Lord the answer. There is a Bill going through Parliament which refers to the whole of waste disposal. Waste disposal which is going to be done by local authorities will, of course, be considered very carefully. If such disposal is going to be permitted over the face of a cliff, then it will depend whether the waste is to be deposited above the high-water mark. If, in fact—and I would say this to my noble friend, as it were, off the cuff—the material is to be deposited above the high-water mark, then it will require the licensing under the system which is to be set up by this new Bill. It is only when it is specifically and purposely put into the sea that it will require a licence under the Bill we are now discussing.
§ BARONESS WHITE
I thought I might invite the noble Lord, Lord Hawke, to join us on Thursday afternoon when we go into Committee on the particulars of the Environment Bill dealing with the disposal of wastes on land. I think his point would be covered by that. The wastes would at least start off by being deposited on land, even if they ultimately end up in the sea.
§ BARONESS WHITE
I would suppose that in any case the circumstances envisaged by the noble Lord, Lord Hawke, would be outwith the provisions of Clause 1(2) of this Bill, because the waste would have to bedeposited …from a structure on land constructed or adapted wholly or mainly for the purpose of depositing solids in the sea.This I do not think would arise in the situation which he envisaged.
§ 5.29 p.m.
§ LORD STOW HILL
Before the voices are collected on the Question at present before the Committee, I should like, if I may, to raise one short question with the noble Earl on the form of Clause 1. The object of the Bill is to implement, in legislative terms, the obligations undertaken by this country as signatories to the Oslo Convention and the London Convention. The Bill, however, if I understand the provision correctly, departs in one respect, which I think is not unimportant, from the terms of both those Conventions. The respect is that both Conventions, the Oslo Convention and the London Convention, divide the materials to which they relate, and which must not be dumped, into two separate categories. In each Convention there is an Annex I which sets out certain materials and the materials in both the Annexes, broadly speaking, correspond with one another.
With regard to those materials specified in those two Annexes No. I, the two Conventions provide that they are not to be dumped; that is to say, there is a total and complete forbidding of dumping of any of those materials. If I understand the terms of the Conventions correctly, there is no provision at all in relation to those materials for a permit or licence to be issued for them to be dumped. Then both the Conventions set out, in Annex II to each of the Con- 1092 ventions, materials which may be dumped provided that a permit is obtained in the case of each of the materials set out in those two Annexes authorising the dumping of those materials, subject to conditions.
The Bill your Lordships have before you provides a licensing machinery, and the licensing machinery applies, if I understand the Bill correctly, to any material whatsoever. There is therefore a distinction which I submit is not unimportant between the provisions of the Conventions and the provisions of the Bill. The Conventions specify certain materials which must never in any circumstances be dumped; the Bill provides that any material can be dumped provided that one obtains a licence permitting one to dump it. I suppose the thinking which lies behind the form of the two Conventions in the particular respect to which I have referred relates to the fact that the materials specified in each Annexe I are of a particularly dangerous character and so deleterious that it is in the general interest that they should not be dumped at all.
It may well be that the Government's thinking on that matter is that if the licensing authority referred to in the Bill were asked to issue a licence permitting the dumping of any of those dangerous materials, they would refuse to do so. Maybe that is the Government's thinking. I do not raise this question in any spirit of criticism but merely to ascertain from the noble Earl what the Government's view is with regard to this particular aspect. If that is their thinking, would that thinking not be open to the criticism that, whereas normally a licence would be refused in the case of that dangerous type of material, there are bound in the course of time to arise some cases in which it is granted that the applicant is able to show that he proposes to dump only very limited quantities, or that there are other reasons which distinguish his particular case from the general case? If it transpires that over the years in this country licences are granted to dump material which other countries forbid their citizens to dump in any circumstances, is not that likely to give rise to ill-feeling and misunderstanding? That is the question I should like to put.
1093 I should have thought it preferable—but again I wait to hear the Minister's reasons—if the Bill had followed the general design of the two Conventions and in the case of these particularly deleterious types of substance had prohibited their dumping in any circumstances, as, if I understand the Conventions correctly, the Conventions prohibit it. That is the question I should like to put to the noble Earl and should be grateful if he would let me know the Government's thinking on that matter.
§ 5.34 p.m.
I am grateful to the noble and learned Lord, Lard Stow Hill, for putting his point so clearly, because it is an important point. What he is in effect saying is that here we are subscribing to these Conventions which have certain Annexes; why cannot we spell out in the Bill either the Annexes or the substances named within the Annexes? Before the Bill was drafted in its present terms, the Government carefully considered what would be the best method of securing the aims in the Conventions which we all accepted in principle and to which the United Kingdom has put its signature. The Government took the view that it was by far the best course for the legislation to spell out the general considerations which should be applied. These would of course be based on the various requirements of the two Conventions, and indeed any others which might be formulated in the future to which the United Kingdom became a party. By these means we should achieve the objective of securing safety for the marine environment in relation to dumping in accordance with the Conventions as they now are and as they could be altered by the unanimous agreement of the consenting States. At the same time, we should have the flexibility to take account of changes which might come in the future.
I should explain that when the Oslo and the London Conventions come into force. Commissions to administer them will be established. The United Kingdom will have its place on these Commissions. The Commissions will have at their disposal the best possible scientific advice. If a change in the Annexes is recommended in the light of such advice, it 1094 would have to be unanimously agreed by all contracting parties. Under this procedure the United Kingdom would then be able to modify its licensing arrangements to take account of the objective scientific advice which had been given. I would emphasise in this respect that it is only after such unanimous agreement that changes would be made in what substances may or may not be approved for dumping from this country. This arrangement would not of course prevent our applying more stringent conditions than our international obligations require, if our scientific advice showed this to be necessary.
The Government feel that it would be a mistake to attempt to deal with all the complications arising under the Annexes in the Bill itself. As a comparison of the Annexes Nos. I appearing in the Oslo and the London Conventions shows, they are not identical. It is therefore necessary to cover their dissimilarity by administrative means within the broad terms of the Bill. It would not be very easy to define in the Bill such terms as "trace elements", "rapidly converted" and "non-toxic", which are employed in these Annexes, and exclude from the prohibition on dumping substances which fall into those categories. I should like to emphasise that the Government have signed both these Conventions and would not be a party to their breach. The procedures for administration of the Oslo Convention provide for member countries to report in detail at regular intervals on the materials licensed for disposal. In this way the licensing authorities would confirm to other members that they are abiding by the terms of the Convention and no doubt similar arrangements will apply under the London Convention. But as the Bill makes it clear, it is proposed that there will be licensing authorities to authorise disposal of substances in the sea. This will be done by a central Government agreement. While inspection procedures under the Bill will rely upon local officers' work, the actual licensing arrangements themselves will be covered from London, Edinburgh and Belfast, and it is important that the overall view of disposal by dumping in the sea is maintained in this way because of the constantly changing position scientifically, and because of the need for a coordinated policy.
1095 If I may put the matter in a nutshell, what we are anxious to do is to conform and to play our part in conforming to the two Conventions which we as a country have signed. We believe that the right way to do it is to have a general power in the Bill which will enable us to conform to the complexities of the two Conventions, rather than actually to spell it out in the Bill in the way which the noble and learned Lord understandably suggested.
§ LORD STOW HILL
I am extremely indebted to the noble Earl for that explanation. I perfectly understand the difficulties and his reasons seem to me to be quite compelling. I am most grateful to him.
§ Clause 1, as amended, agreed to.
§ Clause 2 [Licences]:
§ 5.40 p.m.
VISCOUNT SIMON moved Amendment No. 3:
Page 3, line 2, after ("regard") insert ("inter aiia").
The noble Viscount said: This is a quite simple Amendment. Clause 2(1) quite rightly says:
In determining whether to grant a licence a licensing authority shall have regard to the need to protect the marine environment and the living resources which it supports from any adverse consequences …
§ That, of course, is the main object of the Bill, but I suggest to your Lordships that while that must be the main concern of the licensing authorities they should take into account other factors in so far as they can ascertain what those other factors are. It seemed to me when I was first considering this that the case is rather strengthened by an answer which the noble Earl gave to the noble Lord, Lord Wynne-Jones, during the Second Reading debate. The noble Lord, Lord Wynne-Jones, asked whether any third parties had any standing if the terms and conditions of the licence were being considered by the Review Committees—which we come to later—and he was told that they had no standing. It seems to me that if third parties have no possible way of making their needs felt it is really important that the licensing authority, in exercising its discretion in granting a licence, should consider what possible effect the granting of a licence may have in other directions 1096 than protecting the marine environment, even though that is, of course, the main object of the exercise.
§ So I suggest inserting the words "inter alia". I do not like them very much; I would much rather have English words, but it occurred to me that "among other things" was perhaps a little colloquial for an Act of Parliament, and if the noble Earl feels that he can accept the spirit of this Amendment no doubt the Parliamentary draftsman will think of the right way to express it. I beg to move.
I should love to accept the spirit of the noble Viscount's argument but I am afraid I cannot because it is a rather cardinal point. What the noble Viscount has asked us to do is to ensure that a licensing authority, for the purposes of this Bill, does not restrict its considerations only to the matters of the protection of the marine environment. In other words, it should take into account considerations other than the protection of the marine environment.
Incidentally, one of the effects that the Amendment could have would be to enable a licensing authority to reject an application to dump on grounds other than the effect on the marine environment. But the point that I wish to make in regard to this Amendment is that the Bill is solely designed to take care of the effect on the marine environment of something that is dumped into the sea. That is what one has to have a licence for. If in fact they are to take into account other considerations, then the licensing system will be broadened considerably and would go outside the effectiveness of this Bill. If, for instance, account were to be taken of the effect on sea highways of the dumping of a certain substance that should not be cell-trolled under this Bill, it would need a separate licence. All that we want to do in this Bill is to ensure, not that this licence supersedes any other licence which it is necessary to have in order to dump, but that it concerns itself solely with the marine environment and nothing else. Therefore the words "inter alia", which really mean "among other things" widen considerably the scope of this Bill, and widen it in a way that I would suggest to the noble Viscount is really undesirable.
§ VISCOUNT SIMON
I am again obliged to the noble Earl for his explanation. I had thought it might be a good idea that the licensing authority should at least have the power to take into account other considerations besides their main purpose. But in view of what the noble Earl has said, I see that I am not going to make any progress in that direction so I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 5.48 p.m.
VISCOUNT SIMON moved Amendment No. 4:
Page 3, line 36, leave out from ("contain") to end of line 39.
§ The noble Viscount said: I regard this as the most important of the Amendments I have tabled, and I am afraid that I shall have to tax your Lordships' patience a little because it is a rather difficult one to explain. I often wish, and never more so than on this occasion, that there was a practice by which, in tabling an Amendment, one could also table a short explanatory memorandum, because it would he helpful to the Committee to have some advance notice of what the proposer of an Amendment is getting at instead of having to wait for his perhaps not very successful explanation.
Clause 2(6) provides that the licensing authority may, in addition to the fee which is charged for an applicant, recover such amount
as the licencing authority may, with the consent of the Treasury, determine, towards the expense of any tests which in the opinion of the authority are necessary to enable the auhority to decide whether a licence should be granted …and in particular expense incurred in connection with any monitoring to determine the effect that dumping may have…
I take this to mean, from the wording, that in different cases the licensing authority will charge, perhaps the whole of the cost described here, perhaps 50 per cent. of the cost, perhaps in some cases nothing at all. This certainly seems to be borne out by Clause 3(1)(c) which refers to where a licensing authority proposes "to require a payment under Section 2(6)", which obviously suggests that in some cases they are not going to require a payment. So, as I understand it the licensing authority decide, among all the applications they have,
that on this application they will collect 50 per cent. of the cost, on another application they will collect 75 per cent. of the cost, and on yet another application they will collect 100 per cent. But there is nowhere in the clause any indication of the considerations which the licensing authority will take into account in deciding how they exercise this discretion.
§ All sorts of possibilities may occur to your Lordships. It might be the intention to charge the maximum amount to rich commercial corporations which it is thought can afford to pay, and to let off very lightly a local authority which was discharging sewage from a treatment works into the sea. It might be thought that the higher charges would be on the person who has been particularly troublesome in the way he has presented his case, as a sort of penalty for the amount of work that he has caused. It might be thought, although it does not seem to be very plausible, that it should be related to the potential danger of any particular discharge, although this does not seem to me to make sense because he gets a licence only if the project is considered to be safe.
§ Unless the conditions are somehow explained in the clause, how is the unfortunate applicant going to make an appeal against the amount he has been charged? He cannot make any "reasoned representation"—I think that is the term used later on in the Bill—because he does not know on what basis he has been charged 50 per cent. while his friend has only been charged 25 per cent. If it is difficult for the applicant to make representations it must be quite impossible for the Review Committee which is set up in Clause 3. If the Review Committee does not know the basis upon which these charges are levied, how can they possibly determine whether the licensing authority's decision is right? What I have been saying so far clearly applies to the whole of this clause, both to what I may call the initial expenses and also to the subsequent expenses incurred in connection with monitoring. I have put down an Amendment confined to the last part of the clause because, so far as the expenses in connection with monitoring are concerned, I cannot see on what basis this discretion could reasonably be applied.1099
§ May I make two points to your Lordships? If there is somebody who has material to dump, I think it stands to reason that the further he takes it out to sea and the deeper the water in which he dumps it, the less likelihood there is of any damage. Of course, it will be more expensive for him to do so, but so will the monitoring be much more expensive. Not only will it take very much longer—and I would remind your Lordships that monitoring is not likely to be a matter of months, it is likely to be a matter of years before any conclusions can be drawn from monitoring—but each exercise will be more expensive and there will be more of them. It seems difficult to see how, with any kind of fairness, you determine how much to charge somebody for monitoring when the safer (to put it in its simplest form) the deposit, the more expensive it will be to monitor.
§ There is a further point. I think we all agree that in the past there have been changes in the marine environment which we probably do not understand. There are periods when fish are quite numerous in some particular parts of the sea, and then some years later they all disappear from that area and appear numerous in other parts of the sea. All sorts of changes are going on. Who is going to say that the result of monitoring over a long period will really identify what changes are caused by the deposits that are being made—of which there may be several in the same area of the sea—and what are due to natural causes. These are the reasons that made me think it would be quite impossible to think of any sensible arrangement by which the licensing authority could exercise its discretion to charge to the particular dumper whatever percentage it might be of the total cost of monitoring. What I rather hope the noble Earl may do is to take the whole clause back to his right honourable friends and see whether they agree that there must be written into the clause some indication of the basis upon which this discretion will be exercised, and what proportion of the costs will be recovered in any particular case. I beg to move.
§ 5.53 p.m.
I understand the point about which the noble Viscount 1100 is concerned, and should like to start by explaining that, as doubtless he knows, there are two different types of monitoring. One is the Departmental monitoring, continually to see the effects of the contents of the sea and what is happening in the sea. This is a regular part of monitoring of the sea. The second part, which is the one to which the noble Viscount, Lord Simon, has addressed himself, is specific monitoring where an applicant wishes to dump a substance into the sea and the Department will say, "Yes, but this is such a toxic substance that we must monitor the sea to see the effects upon it which the dumping of your substance will have." The noble Viscount was worried for fear that whoever applied for the licence would have to pay for this monitoring either 25 per cent., 50 per cent., or 100 per cent. of the cost. I am bound to tell him that it is the Government's view that that is an expense which should correctly be borne by the person who applies for the licence, and that it would be inequitable for this expense to be found by the taxpayer. The person who is applying for the licence is going to dump into the sea a substance which may have a noxious effect upon the sea, and we believe it is right that if he may so contaminate the sea the effect of the material he puts in should be monitored and that that expense should be recoverable from the person who is granted the licence.
I say this to the noble Viscount: before he was given his licence there would be discussions with the person concerned, the contractor, as to what material is being put into the sea. He would be told that this material may be a very special substance and that it would be necessary to monitor the effect of its being put into the sea. This would be part of the licence; he would know in advance that he would be called upon to meet such expense as the Department is put to in monitoring the effects which the dumping of his specific substance will have upon the sea. Provision in this Bill is designed to cover not just the present types of substances which are dumped into the sea, but also to cover the effect of what will happen over the next ten or twenty years when more and more substances, some of them highly noxious, are going to be put into the sea. Of course, there is a real problem as to the effect that this dumping will 1101 have. We do not believe that it is right that the Government, or the taxpayer, should accept the financial responsibility of monitoring the effects of a specific dumping of a material.
§ VISCOUNT SIMON
I am obliged to the noble Earl, but what he has said appears to be to the effect that the entire expense is to be recovered in each case. If that is so, I do not understand why the Bill is drafted in this way; why they talk about such contribution towards the expense as may be decided. One of my difficulties was that this seemed to be so open. It may be that the person may wonder whether he had been fairly treated and would want to know on what basis the proportion was calculated. If the noble Earl is telling me now that the charge is going to be 100 per cent. in every case, then of course I do not know the purpose of Clause 3(1)(c) which clearly assumes that these will be cases in which there would be no charge at all. The noble Earl has not dealt with the point I made, which I think is a valid one. I feel in all humility a little like the noble Viscount, Lord Colville of Culross, when we discussed the Safety of Sports Grounds Bill, when he said that the more he rehearsed his arguments, the better he thought they were. I have felt rather in the same position during the last three weeks. The point that the safer the deposit the more expensive the monitoring will be, seems to me to hurt the man who is anxious and goes to extra expense to deposit the substance in the middle of the Atlantic Ocean where the monitoring is going to have to last anything from ten to twenty years in order to discover what effect it has.
With regard to the noble Viscount's first point, under Clause 3(1)(c)Where a licensing authority proposes …to require a payment under section 2(6)…",the licensee will be told that he will be required to make a payment for what is done under Clause 2(6). In fact, what he is being required to make payment for is the monitoring of the specific substance. The licensee will be told this in advance, and also whether the particular substance is considered of sufficient character to require monitoring, and he 1102 will be told of the likely period that this will take. That will form part of his licence. If he disagrees with that, or, as the noble Viscount says, if monitoring has to go on for twenty years and the licensee feels it is unfair, he can complain under Clause 3 and make his representations. But it may well be that if the particular substance is well wrapped and is going to be dumped miles out to sea, and it is considered to be of no harm whatsoever, there will be no monitoring, in which case that will not appear on the licence. But there are now many effluents from factories and other places which are producing highly toxic waste products. It is only where some of these toxic wastes are going to be put into the sea, and where the effect on the sea is not known, that we believe it is right for the person concerned with dumping this material to have to pay for any such monitoring as may be required by virtue of the specific material.
§ VISCOUNT SIMON
I am much obliged to the noble Earl. I do not want to carry on a duel with him, so unless there is anyone else in the Committee who feels there is more strength in my argument than does the noble Earl, I think I had better withdraw my Amendment. May I have your Lordships permission to withdraw the Amendment?
§ Amendment, by leave, withdrawn.
EARL FERRERS moved Amendment No. 4A:
Page 4, line 5, leave out ("may impose conditions on such a transfer") and insert ("shall have power to include additional conditions in a licence on transferring it").
§ The noble Earl said: This is essentially a drafting Amendment to resolve a possible ambiguity. As the clause stands at present, it could be read to mean that before a licensing authority even agrees to transfer a dumping licence from one person to another, the authority could impose conditions unrelated to acceptable dumping procedures. The purpose of the Amendment is to provide for the different circumstances which might need to be considered because, for example, a different waste contractor was now undertaking the dumping. I beg to move.
§ On Question, Amendment agreed to.1103
§ 6.4 p.m.
VISCOUNT SIMON moved Amendment No. 5:
Page 4, line 13, leave out ("is authorised in writing by a licensing authority") and insert ("has a written authorisation").
§ The noble Viscount said: This and the following Amendment go together, and perhaps I can speak to them together. They would have been unnecessary if the noble Earl had been able to give me Amendment No. 1. The purpose of this Amendment again returns to dredgings by port authorities. As explained in Amendment No. 1, there are port authorities who are depositing their dredgings in the sea with the approval of the Department of Trade and Industry, and the voluntary scheme which the noble Earl explained to us has not been applied to these dredgings. When the Act comes into force they would immediately become illegal dumpings, and perhaps it is really necessary to continue dredging as a long-term project.
§ What I am suggesting in the two Amendments is that in this particular case the authorisation given by the Board of Trade, or the Secretary of State for Trade and Industry (the Board of Trade is included because it goes back to the time before the Secretary of State for Trade and Industry was in existence) should count initially in the transitional period as equivalent to a licence under the Act, just as permission given under the voluntary scheme counts. It is still open to the licensing authority at any time after that either to revoke or to vary the conditions, or to call the authorisation in; but it seems to me that unless it is recognised that there is no authorisation by the licensing authority hitherto of the deposit of dredgings, and unless the authorisation by the Department of Trade and Industry is accepted transitionally as equivalent to a licence in the same way as the voluntary scheme authorisations are accepted, we shall have disruption at that stage. There seems to be no difficulty about this. I am sure that if there were any dumping of dredgings which was seriously damaging the marine environment we should have heard of it before now. This merely enables the existing arrangements to be carried on until the licensing authority can get round to examining the situation and either issuing a licence or varying the con- 1104 ditions that are at present implied. I beg to move.
This is very much akin to the point raised on Amendment No. 1. In a nutshell, what it does is to allow permits, which have already been used and issued for another purpose, to be deemed as licences for the purposes of this Bill. With respect to the noble Viscount, I do not think that we can accept such a proposition. For example, authorisations are given under the Coast Protection Act to permit works to be undertaken subject to such guidelines as are necessary to prevent hazards to navigation. Clearly, these controls are totally different from the ones which may be required under this Act and are designed for different purposes. I understand the concern of authorities at having to obtain another licence for their operations, but under this Bill it is essential. Whatever has been dredged in the past and has not been subject to a licence because there was not an Act, it is essential to realise that in future it will be necessary to have a licence when dumping something. It may well be that the dredged material is perfectly innocuous, in which case the licence will be granted readily. It is only to ensure that there is some control over what is dumped into the sea that the Bill is necessary. But I can assure the noble Viscount—and I think this is really the nub of his argument—that administrative arrangements will be made between Government Departments to ensure the absolute minimum of delay or inconvenience. With that explanation, I hope the noble Viscount will agree that for the purposes of this Bill it is essential to have a separate licence.
§ VISCOUNT SIMON
When the noble Earl rejected Amendment 1, I accepted that we must have a separate licence, and the noble Earl was good enough to say that when the Bill comes into force the Departments concerned would issue licences as quickly as possible; but we all know how long these things take. If the issuing of a separate licence takes a week and the port authorities have to stop dredging for a week, all sorts of things might happen. Is it not possible to accept that, for transitional period, which could be as short as we make it, 1105 while port authorities could start negotiating for a licence, or for modified conditions, the existing permit would count as a licence until it is revoked, or notice is given of wanting to alter it?
I apologise to the noble Viscount because I did not answer that point. The fact is that if people who are dredging are worried about what will happen when the Bill comes into, force, they can apply now under the voluntary scheme for such permission, because that will cover them over the transitional period.
§ VISCOUNT SIMON
I am much obliged to the noble Earl for that answer, which makes the position perfectly clear. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 2, as amended, shall stand part of the Bill?
§ BARONESS WHITE
Could the noble Earl inform us whether any register is to be kept which will be open to inspection? I know one should not discuss other legislation when one is discussing a particular Bill, but the noble Earl referred to the Protection of the Environment Bill, which is also before your Lordships' House. Where waste is being deposited on land or in inland or tidal waters, registers will be kept and open to inspection by the public. It seems to me that there are two groups of persons who might have an interest in this matter. On Second Reading I mentioned the position of local authorities on coastal areas who might from time to time be interested in what happened to 'substances dumped at sea. The noble Earl was good enough to write to me on that point. He said that it was the view of the Government that the responsibility for taking action should rest with central Government. This I accept, and never wish at any time to contest. But he went on to say, in rather soothing words, that as a matter of practice and in the light of experience he would assure me that the only substances dumped near the coast were inert materials and dredged spoils which might be disposed of without harmful effects. But accidents sometimes happen, and in 1971 the Royal Navy disposed of a number of canisters of extremely toxic chemicals which landed on the Isle of Wight. In 1106 those circumstances, the local authority might have taken an interest in the matter.
Therefore, it appears to me that should any such troubles occur the local authorities should have a right to know what licences had been granted, their terms, and the nature of the substances for which the licences were given. I had first thought that we might make it a condition that they should be notified of licences, but that would be administratively too onerous. They should, nevertheless, have a right to inspect a register. There is another group of persons to whom this might be of interest, namely, the academic scientists in this country. It is not, after all, only the licensing authority who is interested in what goes on in the sea. There are scientists who are undertaking research in universities and research institutes who also should be enabled to know just what is the nature of substances which are being dumped in any waters which have any interest at all to us. Therefore, for these reasons I hoped that the Government might have considered for this kind of waste disposal the sort of arrangements which are being made in other circumstances in other legislation before us, which provide for licence details and particulars to be inspected at any reasonable time by responsible persons.
We certainly recognise that institutes and the public are entitled to be able to obtain information on the overall quantities of material which are being dumped at sea under licences issued by the Government, provided that this can be done without risk to the need to preserve trade secrets. In fact, we think there is a risk only in the most exceptional circumstances, for which we should have to take special steps to safeguard the interests of the company. But, of course, if it were thought that a dumping at sea was affecting a local authority, we should certainly be very ready to discuss with them any problems arising. Moreover, the Protection of the Environment Bill places additional responsibilities on local authorities to ensure satisfactory facilities for the disposal of waste. Administrative arrangements are being made between the Department of the Environment and the Minister of Agriculture to ensure that the responsibilities arising under the two 1107 Bills dovetail quite reasonably. There will be a register by the licensing authority, and this can be seen by bona fide enquirers. I hope that that will meet the point the noble Baroness was concerned about.
§ BARONESS WHITE
I am obliged to the noble Earl. I should like to have that referred to in the Bill, and I may consider putting down an Amendment between now and Report. If it is put in other legislation, I see no reason why it should not be included here, so that the whole world will know it is possible.
§ THE EARL OF KINNOULL
Would my noble friend say how long a licence would be deemed to run? Would it be an annual licence?
It depends upon the licence. Some licences may be of short duration, some longer. That is rather an equivocal answer, I am afraid.
§ Clause 2, as amended, agreed to.
§ Clause 3 [Right to make representations]:
§ 6.17 p.m.
VISCOUNT SIMON moved Amendment No. 7:
Page 4, line 32, leave out ("21") and insert ("28").
§ The noble Viscount said: Amendments Nos. 7 and 8 run together, with the intention of extending from 21 to 28 days the period during which written representations may be made if there is a proposal to vary or revoke a licence. In matters of this kind, it is always difficult to know why one period should be better than another, but it seems to me that 21 days (and, if I may say so, it is 21 days net, because the licensing authority has to receive the representations within 21 days; so that having regard to coastal conditions, and so on, the 21 days period is probably more like 18) is rather a short period, seeing that these representations form the basis of any appeal which the applicant is going to make.
§ It is not just a notice of appeal. If he is going to make any effective representations, he has to go into the matter in depth. He probably has to get legal advice. He has probably to get technical advice. It seems to me—and here again I have been in consultation with some 1108 friends—that it would be better to allow this period to extend to 28 days. There is no magic in three weeks. I suppose there is no magic in four weeks. Somebody suggested to me 42 days. I have in mind one Act in which 42 days were allowed. It is difficult to find an exact parallel. In the Water Act the period for representations is 28 days. That is just an extra week. This is not just a notice of appeal; all the grounds of appeal have to be set out. It is true that there is an opportunity to give oral representations, but anyone would be well advised to make written representations as full and complete as possible. This would be helpful to the licensing authority and to the Review Committee. I hope that the noble Earl will be prepared to consider extending this period from 21 days to 28.
The noble Viscount has made out a very sound case for lengthening the period of time. I agree with him that there is no magic in 21 days. I think there is a lot to be said for having the longer period. I shall be more than delighted to accept the noble Viscount's Amendment.
§ On Question, Amendment agreed to.
Page 4, line 39, leave out ("21") and insert ("28").—(Viscount Simon.)
§ On Question, Amendment agreed to.
VISCOUNT SIMON moved Amendment No. 9:
Page 5, line 9, leave out ("7") and insert ("14").
The noble Viscount said: This Amendment concerns a slightly different matter. Subsection (6) of Clause 3 says:
(6) It shall be the duty of the chairman of a committee—
(a) to serve upon the person who made the representations under subsection (3) above a notice in writing requiring him to state within 7 days of the receipt of the notice whether he wishes to make oral representations to the committee …".
§ It could be thought that seven days is sufficient, but if one thinks about it, coming near the Christmas season, seven days might be no more than two working days. Here again, I should have thought we could allow an extra week and make the period fourteen days. I hope the noble Earl has not been so helpful on the previous Amendment that he cannot 1109 help over this Amendment, too. I beg to move.
I am delighted to be able to continue to help the noble Viscount, and I shall be delighted to accept this Amendment.
§ On Question, Amendment agreed to.
EARL FERRERS moved Amendment No. 9A:
Page 5, line 16, leave out ("14") and insert ("21").
The noble Earl said: In the noble Viscount's assiduity he failed to look at subsection (7), in which there is the figure of 14 days. In the Amendment which the noble Viscount has just moved and the Committee has accepted, it was agreed that it should be the duty of the chairman of the committee
to serve upon the person who made the representations under subsection (3) above a notice in writing requiring him to state within 14 days
§ whether he wished to make oral representations. Under the next subsection it says that you cannot hold a meeting within 14 days. In fact, we must give another 7 days, and so this should be 21. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 3, as amended, agreed to.
§ Clause 4 [Enforcement of Act]:
§ 6.22 p.m.
VISCOUNT SIMON moved Amendment No. 10:
Page 6, line 31, leave out ("are or have been present") and insert ("other than in accordance with the provisions of this Act are present or have been present").
§ The noble Viscount said: I had some consultation with the Chamber of Shipping over this clause. They are much concerned that enforcement officers who may not be very familiar with the operation of ships may adopt sometimes rather unreasonable attitudes, and it seems to me that it should not be necessary for an enforcement officer to go on board a ship if he has reasonable cause to believe that substances or articles intended to be dumped are or have been present if in fact the articles are subject to a licence and are already licensed to be dumped. It is not clear why it should be necessary for the enforcement officers to have this possibility, and that is why I have sug- 1110 gested including the words "other than in accordance with the provisions of this Act". It seems unnecessary for the enforcement officer to go on board and make inquiries if he has reasonable cause to believe that what is on board is perfectly all right. I am wondering whether the noble Earl is in such a generous mood at the moment that he will accept an Amendment on these lines. I beg to move.
I appreciate the noble Viscount's concern that the Bill goes too wide in permitting an authorised inspector to examine ships and other defined places even though there may be no evidence of any infringement of the law. But we believe that it is implicit in any worthwhile enforcement arrangements that spot checks can be made as a matter of routine. The inspection arrangements, which will certainly be moderate in their application, are really intended to provide a deterrent effect to those who are tempted to dump illegally. For this reason, we think it would remove a great deal of the credibility of the enforcement arrangements we have in mind if Clause 4(5) limited it to inspection only of vessels which were thought to be about to contravene the Act or which had contravened the Act. The proposed additional words would restrict unduly the powers which are desirable for enforcement officers. Generally speaking, the enforcement officer would not have reasonable cause for believing that any offence had been or was likely to be committed unless and until inspection had been made. That is really the point.
§ VISCOUNT SIMON
I am grateful to the noble Earl. I am not sure that I completely follow him, because this is not a spot check. The enforcement officer has to have reasonable cause to believe that the articles for dumping either are or have been on the ship. I see the point that he might perhaps be aware that articles that had been licensed were on the ship but he wanted to be sure that the conditions of the licence were being observed. I shall come a little later to the question of stopping a ship at sea. At this stage, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.1111
VISCOUNT SIMON moved Amendment No. 11:
Page 6, line 42, leave out ("it") and insert ("the person in charge")
§ The noble Viscount said: This is really no more than a drafting Amendment. It struck me when I read it that it was rather odd to say that an enforcement officer "may require it to do anything", and that the only person who could be required to do anything was the person in charge of the ship or structure. I beg to move.
§ BARONESS WHITE
I have every sympathy with this Amendment. There could also be an Amendment at Page 7, line 2, where it says "to require it to stop", on the assumption that a ship does not stop of its own volition either.
I was going to say that the noble Viscount was a purist. In fact, he is absolutely right; you cannot tell "it" to do anything; you can only tell the person in charge to do it. I was going to be more than happy to accept the noble Viscount's Amendment. In view of what the noble Baroness says, she is evidently even more of a purist, and l think vie had better look at this to see whether an Amendment might be required.
§ VISCOUNT SIMON
As I understand it, the noble Earl will take this back and have a look at it before Report stage, having regard to the noble Baroness's suggestion.
I would certainly accept the noble Viscount's Amendment. I will see whether an Amendment should be tabled, at Report stage, to cover the noble Baroness's point.
§ On Question, Amendment agreed to.
§ 6.29 p.m.
VISCOUNT SIMON moved Amendment No. 12:
Page 7, line 2, at end insert ("However a requirement under this subsection shall not unduly interfere with the normal operation of the vehicle, ship, aircraft, hovercraft or marine structure.")
§ The noble Viscount said: This Amendment relates to the stopping of a ship at sea. I think it is really inherent in the whole Bill that nobody would in fact deliberately stop a ship at sea in a position where it might be in danger. But I think one has the passibility that the 1112 enforcement officer would not be aware of this. I agree that later on the noble Earl has met my wishes in Clause 6 by giving a reasonable defence.
There is another point on this, and that is that the enforcement officer can require the person in charge to do anything which will facilitate boarding. If he comes across the ship in the ocean and there is a bit of a swell running, he might well say that to facilitate boarding the first thing to do would be for the ship to put back to port; and that might be 50,100 or 200 miles away. It was really with this in view that my friends in the Chamber of Shipping thought that we ought to try to get something in this clause that would ensure that there was not an unreasonable interference with the normal operation of the ship. I am not entirely happy about the wording in the Amendment, but it seems to me that we ought to have something. The enforcement officer could say, "Let me have a pilot ladder", and then, "I do not much like the look of it in this rough weather. You had better go back to the nearest port and I will get on board there". This would be an unreasonable thing to ask, yet it appears to be covered by the provision that the enforcement officer can require the person in charge to do anything to facilitate boarding. It would certainly facilitate boarding to make him go back to the pert. It was for that reason that I put down the words,
However a requirement under this subsection shall not unduly interfere with the normal operation of the vehicle, ship, aircraft, hovercraft or marine structure.
§ I beg to move.
§ 6.32 p.m.
Clearly, we do not want inspectors to make extortionate demands upon persons responsible for the safety of ships at sea, and the amount of inspection at sea will be limited. A ship is liable to inspection only if an enforcement officer has reasonable cause to believe that it contains, or has contained, substances that are intended to be dumped. The officers would not seek to interfere with the normal operation of vessels more than was absolutely necessary for them to discharge these particular functions. I should add that the persons who will be designated as enforcement officers are likely to be such people as master mariners. With people of this calibre holding certificates of competence 1113 and seamanship, I suggest that it would be almost unthinkable that they would act irresponsibly, or put the ship at hazard.
I would also draw the noble Viscount's attention to Clause 6(1) and to the Government's Amendment to Clause 6(2). It is implicit in the wording of this clause, with the Amendment that I have tabled to try to accommodate the noble Viscount's point of view, that inspectors will act in good faith and on reasonable grounds. Quite apart from this, it would also clearly be in their own interests to do so, because civil or criminal proceedings could be taken against an inspector if he abused his power. He must show that he acted in good faith, and that there were reasonable grounds for his action, under Clause 6(1). I should find it difficult to accept the argument that the powers of enforcement officers should be unduly circumscribed, as might be the effect of this Amendment. I would only say to the noble Viscount that when one is, as an inspector would be, in a rubber dinghy trying to get on to a ship and the rubber dinghy is pitching about like mad, the powers for making unreasonable demands are not very great.
§ THE EARL OF KINNOULL
I wonder whether I might ask my noble friend one short question before he concludes. The noble Viscount mentioned a possible case where a ship may be apprehended something like 200 miles from port and asked to go 200 miles back to port for the inspection to be made. Would there not be the limit of territorial waters as regards the powers that the inspectors may have?
As I understand it, under this Bill the inspectors can make reasonable requests to the master of the ship, and if those requests are unreasonable—and the case that my noble friend has cited may be construed as being unreasonable—then of course the master of the ship has recourse, or the owners have, to civil or criminal proceedings, and the enforcement officer would take that fact into account before he made such a request. In other words, if a request is made by an officer which is unreasonable, then he may find proceedings taken against him for making such a stupid and unreasonable request.
§ VISCOUNT SIMON
I think that the noble Earl did not quite reply to his noble 1114 friend, who asked whether this could be done on the high seas. I do not feel that I should press this Amendment. I am still a little worried at the very wide wording which says that the enforcement officer can ask the person in charge to do anything to facilitate boarding. However, I was greatly relieved and pleased to hear that these enforcement officers would, generally speaking, or perhaps always, be master mariners. Master mariners understand very well what is involved in stopping ships and boarding ships in the middle of the sea. In view of that fact, I am happy to ask leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4, as amended, agreed to.
§ Clause 5 agreed to.
§ Clause 6 [Miscellaneous provisions as to enforcement officers]:
§ 6.37 p.m.
EARL FERRERS moved Amendment No. 12A:
Page 8, line 17, at beginning insert ("without reasonable excuse").
§ The noble Earl said: Here we come back to a point that we discussed earlier. Any suggestion that the very experienced and highly qualified inspector such as we were speaking about on the last Amendment would take action which would he detrimental to the cause of the ship is very unlikely. Nevertheless, there seems to be some doubt as to the situation, and because of this the two Amendments to this clause that I now propose would safeguard, in general terms, the rights of a person who may consider that there were reasonable grounds for not complying with the demands of an enforcement officer. I hope that this will meet the point which the noble Viscount had in mind, and I hope that he will feel that, even though we found it difficult to accept his Amendment, at least the spirit of it is contained in this Amendment.
§ On Question, Amendment agreed to.
Page 8, line 20, at beginning insert ("without reasonable excuse").—(Earl Ferrers.)
§ On Question, Amendment agreed to.1115
§ VISCOUNT SIMON
The last two Amendments that the Committee has accepted completely cover the point that I was making in my Amendment No. 13, so I shall not move it.
§ Clause 6, as amended, agreed to.
§ Clauses 7 to 10 agreed to.
§ Clause 11 [Interpretation]:
Amendment No. 14 is almost a drafting Amendment, which I should be happy to go into if the Committee think it is desirable. If not, I will move it formally. I beg to move.
Page 10, line 41, leave out from ("1894") to end of lane 43.—(Earl Ferrers.)
§ BARONESS WHITE
With respect, I think that we should be told the reason for this Amendment, because I do not understand it.
I am sorry. The last thing I would wish to do is to "bounce" the noble Baroness. I merely thought that it might have been for the convenience of the Committee; but I will certainly tell the noble Baroness the reasons. The intention of the definition of a British ship was to control dumping by all ships which are owned by British subjects or companies, but I am advised that as drafted the definition would include such vessels which are registered in Commonwealth or foreign States. Clause 1(1)(c) provides for adequate control over such vessels when they load in the United Kingdom or in United Kingdom waters, and when such vessels load in another Convention State it will be for the licensing authority of that State to ensure compliance with the Convention. The Amendment therefore restricts the definition of a British ship to a vessel which is registered in the United Kingdom or which is exempted from such registration under the Merchant Shipping Act 1894.
§ On Question. Amendment agreed to.
§ Clause 11, as amended, agreed to.
§ Remaining clauses agreed to.
§ House resumed: Bill reported, with the Amendments.