§ 5.13 p.m.
§ Lord Lucas of ChilworthMy 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.—(Lord Lucas of Chilworth.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The Lord Derwent in the Chair.]
§ Clause 1 [Improvement notices]:
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ Lord UnderhillI wish to raise one or two questions on the Bill, and the first relates to Clause 1(3). The question also has some bearing on Clauses 2 and 4. I think noble Lords will agree that at Second Reading the Minister stated quite clearly that this was very much a technical Bill, and I am grateful for the Notes on Clauses, which have been prepared by the department, a copy of which the Minister has supplied to me. I have found them very useful. I should like to refer to the last sentence of paragraph 6 of the Notes on Clauses dealing with subsection (3) of the clause. I shall read the sentence:
If the nature of the risk or the future pattern of voyages calls for remedial action to be taken in less than 21 days, it will be necessary to proceed instead by way of serving a Prohibition Notice under Clause 2 which is not subject to specific time-limit constraints".However, when I refer to Clause 2, which deals with prohibition notices, I find that subsection (1) provides that such notices may be served where there is risk of,serious personal injury…or serious pollution".This point is further dealt with in paragraph 4 of the Notes on Clauses relating to Clause 2(1). It states:On the other hand, prohibition notices may only be issued where there is a risk of serious personal injury or serious pollution of 392 navigable water. In other words, unlike improvement notices, this Clause provides power first and foremost to deal with serious situations in whatever circumstances they occur, rather than to secure remedy of contraventions by other means than prosecution".I must go into a little detail in asking this question so that noble Lords can see precisely what I have in mind. At Second Reading the noble Lord, Lord Lucas, stated, as reported at col. 1376 of the Official Report:but because prohibition notices deal with more serious risks, a reference to an arbitrator does not automaticaly suspend the effect of the notices".At that time I expressed pleasure that the Minister had made that statement because it concerned a point about which I was going to ask him.I turn to the point that I now wish to ask. In view of the qualifications which are laid down in Clause 2(1) regarding the circumstances in which a prohibition notice may be issued, what effect does that have on the provision contained in Clause 1(3)? It may be that there are important and serious matters requiring attention, but which do not fall within the two particular categories mentioned in relation to the prohibition notices. Are there any provisions within the Bill to deal with this situation and the general statement made by the Minister at Second Reading?
§ Lord Lucas of ChilworthI am very glad that the noble Lord, Lord Underhill, has raised this point. I think that there is probably a confusion here. The time limit with regard to notices is the minimum period in which an aggrieved person may give notice of going to arbitration. On the other hand, in the case of a likely dangerous occurrence in respect of which an improvement notice has been issued it could be that following discussion and arrangement the inspector may give an extended period of time, so that the matter would not necessarily have to go to arbitration.
One envisages a position whereby a notice is served and in order to delay proceedings an aggrieved person who is less than reputable may say, "I am going to arbitration". On the other hand, a more reputable person may say, "It is all very well, but I cannot get this work done within three or four days before which I am sailing. I won't be back again for 28 days, 36 days, or perhaps two months, but of course I shall attend to it when I get back". The inspector decides that this is quite feasible, the owner is quite reputable, and he says, "All right, I will extend the notice for a period longer than 21 days", and a further inspection in either a United Kingdom port or another port may take place. That is really the fundamental point here.
§ Lord UnderhillI am grateful to the Minister for that explanation, and I shall read carefully in Hansard what he has said. However, I should like to ask the Minister whether he will take advice on what he has said as to whether or not some provision of that kind should be written into the Bill, or whether he is satisfied that the provisions cover the point.
§ Lord Lucas of ChilworthOf course I can give the noble Lord an assurance that we shall look further at the detailed point which he makes. If we find ourselves lacking, we shall certainly do something about it.
§ Clause 1 agreed to.
393§ Clause 2 [Prohibition Notices]:
§ Lord Lucas of Chilworth moved Amendment No. 1:
§ Page 2, line 16, leave out ("or hovercraft").
§ The noble Lord said: It may be for the convenience of the Committee if I also speak on this amendment to Amendments Nos. 2, 5, 6, 7, 8, 9 and 10.
§ Amendment No. 2: Page 2, line 22, leave out ("or hovercraft").
§
Amendment No. 5: After Clause 8, insert the following new clause:—Application to hovercraft.
(" . The enactments with respect to which provision may be made by Order in Council in pursuance of section 1(1)(h) of the Hovercraft Act 1968 shall include this Part of this Act.")
§ Amendment No. 6: Page 9, line 1, leave out subsection (3).
§ Amendment No. 7: Page 9, line 5, leave out ("Subsections (1) and (3)") and insert ("Subsection (1)")
§
Amendment No. 8: Page 9, line 24, at end insert—
(" ( ) Any reference in this Act to any provision of those Acts does not, where that provision has been applied to hovercraft by virtue of section 1(1)(h) of the Hovercraft Act 1968, include a reference to it as so applied.")
§ Amendment No. 9: Page 10, leave out line 23.
§ Amendment No. 10: Line 3, leave out ("and hovercraft")
§ This is a group of technical amendments, all confined to the application of the Bill to hovercraft. I assure your Lordships that the amendments have no effect whatever on the scope for the issue of either improvement or prohibition notices. You will recall, as indeed the noble Lord, Lord Underhill, reminded us, that at Second Reading we spent some time dealing with Part I of the Bill which makes the provision for the service of these two notices. These notices correspond broadly to those which may be served under Sections 21, 22 and 23 of the Health and Safety at Work etc. Act. The series of amendments delete all reference to hovercraft in Clause 2, Schedule 1 and the Long Title. Instead, the new Clause 8 that is the subject of Amendment No. 5 makes provision for the power to issue notices to be applied to hovercraft by an Order in Council which would be made under Section 1(1)(h) of the Hovercraft Act 1968.
§ Amendments Nos. 6, 7 and 8, again all applying to hovercraft, are amendment to Clauses 11 and 13 dealing with hovercraft. Despite the earlier amendments, Section 20(2) of the Interpretation Act 1978 and orders made under Section 1(1) (h) of the Hovercraft Act would still apply some parts of the Bill automatically to hovercraft. The new subsection to Clause 13 provides specifically that references to the various Acts included in Schedule 1 do not include a reference to those provisions as applied to hovercraft. Subsection (3) to Clause 11, however, and the reference therein to subsection (4) which obtains are deleted because subsection (3) which applies only to Part II of the Bill is a similar provision to the new subsection in Clause 13 which applies to the whole Bill.
§ I regret very much that this is a series of numbers and cross-references. I return to where I started by saying that they are technical amendments. They remove, in part, reference to hovercraft which are a separate and distinct kind of vehicle and which are covered by other enactments. It follows that matters can then be tied together in Part I and Part II of the 394 Bill. I hope that with this, my best non-technical explanation of a number of technical amendments, your Lordships will accept the amendments. I beg to move.
§ Lord UnderhillMy understanding of what the Minister says is that, while we are deleting various references to hovercraft, it is nevertheless the case that by the proposed new clause after Clause 8 references to hovercraft will still be made but under regulations under the 1968 Act. That being so, can the Minister say why it is necessary or desirable to remove the reference in the Long Title to hovercraft? The Long Title refers to statutory provisions relating to the safety of ships and hovercraft and other matters. If regulations will still be issued on hovercraft under the new clause to go in after Clause 8, it should surely still remain in the Long Title. I gather from what the Minister says that, although we are deleting certain parts, there will still be the health and safety conditions relating to hovercraft, which all of us desire.
§ Lord Lucas of ChilworthI think the answer is that because hovercraft are a separate type of vehicle, the provisions to take care of this enactment come under their own Act to which these provisions will then apply.
§ On Question, amendment agreed to.
§ Lord Lucas of Chilworth moved Amendment No. 2:
§ [Printed earlier.]
§ On Question, amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Clause 3 agreed to.
§ Clause 4 [Reference of notices to arbitration]:
§ Lord Lucas of Chilworth moved Amendment No. 3:
§
Page 4, line 17, at end insert—
("( ) Where any reference under this section involves the consideration by the arbitrator of the effects of any particular activities or state of affairs on the health or safety of any persons, he shall not on that reference make any decision such as is mentioned in subsection (3)(a) or (b) above except after—
§ The noble Lord said: This amendment to Clause 4 is rather easier to explain. The purpose is to require an arbitrator to give a right of hearing to a trade union representative before modifying or setting aside an improvement or prohibition notice either of which may affect the health or safety of persons. The right would not apply to a notice not affecting the health or safety of persons, for example, in the case of marine pollution.
395§ The person affected by a notice will not be a party to the reference to arbitration as the Bill now stands. It is right that the interests of that person should be seen to be put to the arbitrator before a notice is set aside. We thought it appropriate that a trade union representative should exercise this right.
§ Your Lordships will probably recall that when we discussed this Bill previously—it was many weeks ago—I attempted to describe the relationship of a health and safety at work tribunal that includes the right of a person to be heard, normally and usually by the trade union. But this Bill does not give an equal provision although the provisions of the Health and Safety at Work etc. Act are encompassed in Part I of the Bill.
§ We regard the injection of the general trade union viewpoint as much more important than the view of any particular trade union. The arbitrator can accordingly meet the obligation by offering a hearing to a member of a panel of maritime trade union representatives appointed by the Secretary of State. In the case of a prohibition notice, where it is more likely that a particular person at risk will be identifiable, the arbitrator can alternatively offer the right to a representative of the trade union representing that person. So in general terms we have sombody from the trade unions and in particular instances a representative of a particular trade union.
§ One of the advantages of arbitration is that it usually produces quick decisions. The more witnesses heard, the greater the chance of delay, and the length of the hearing is affected. So under this provision the arbitrator is not obliged to hear a trade union representative before affirming a notice. A reference of an improvement notice to arbitration suspends the notice until a decision is announced; the reference of a prohibition notice, however, does not suspend that notice unless, on application the arbitrator so decides.
§ There are no fixed rules for arbitration. Paragraph (c) of this clause does, however, require the arbitrator to take into account in reaching his decision any representations made by a trade union representative who is granted the right of hearing, which I have already described. As I have said, the real purpose of this amendment is to relate to trade union representation at tribunal hearings for Health and Safety at Work etc. Act provisions because there is no parallel in the Merchant Shipping Acts. I beg to move Amendment No. 3.
§ Lord UnderhillWe naturally welcome what the Minister has said about the provision in this amendment for the representation of a trade union or a trade union representative. I should like to ask whether, in framing the nature of the amendments, the fact that the Secretary of State will have the power to select whom he wishes from the panel of trade union representatives is a matter that has been discussed with the trade unions concerned before the amendment was prepared.
§ Lord Lucas of ChilworthNo, in fact it has not been discussed with the trade unions. However, it was felt that, as it was the Health and Safety Executive who pressed for the inclusion of this provision, and since 396 they were in constant touch with the trade unions by virtue of trade union representation in their matters, it was not necessary. If the noble Lord has any strong feeling about this matter I can of course go back to it, but, since we are applying similar provisions and then similar representation, I would hardly anticipate that there would be any disagreement.
§ On Question, amendment agreed to. Clause 4, as amended, agreed to.
§ Clause 5 [Compensation in connection with invalid prohibition notices]:
§ 5.33 p.m.
§ Lord Lucas of Chilworth moved Amendment No. 4:
§ Page 5, line 18, leave out from ("above") to end of line 24 and insert ("in the case of any prohibition notice unless the direction given in pursuance of section 2(3)(d) above expressly prohibited the departure of the ship to which the notice relates (and for this purpose the fact that any such prohibition was not to apply in certain circumstances shall be disregarded).").
§ The noble Lord said: This seeks to remove any doubt that there might be about the circumstances in which the Secretary of State will be liable to pay compensation in respect of loss suffered as a result of the incorrect issue of a prohibition notice or the unreasonable inclusion of a direction in the notice.
§ The amendment restricts liability to compensation to cases where the prohibition notice includes a direction expressly prohibiting the departure of a ship. This is because the intention was to restrict liability to compensation to cases where a notice has precisely the same effect as a detention order made under the Merchant Shipping Acts—basically the 1894 Act, but of course subsequent Acts further define this—which gives rise to a liability to compensation for unreasonable use. The Bill which we are now discussing was not intended to provide for compensation where, for example, a notice stopped the loading and unloading operation but did not prevent the departure of the ship even though it might make that departure uneconomic or even require the use of alternative equipment.
§ It might be as well at this point if I emphasise, as I did on Second Reading, that marine surveyors approach their work with a good deal of care and there is a very good accord and very good relations between the shipping industry and surveyors. One would not anticipate any difficulty in this matter. The amendment seeks to ensure that there is complete understanding. The amendment is designed to remove any doubt about the circumstances in which the Secretary of State will be liable to pay compensation as a result of an invalid issue of a notice. Unless the noble Lord, Lord Underhill, has any particular question, I do not think that I can add to my explanation. My Lords, I beg to move.
§ On Question, amendment agreed to.
§ Clause 5, as amended, agreed to.
§ Clauses 6 to 8 agreed to.
§ Lord Lucas of Chilworth moved Amendment No. 5:
§ [Printed earlier.]
§ The noble Lord said: I spoke to this amendment when we began our proceedings. I beg to move.
§ On Question, amendment agreed to. Clauses 9 and 10 agreed to.
397§ Clause 11 [Ascertainment of limitation tonnage]:
§ Lord Lucas of Chilworth moved Amendment No. 6:
§ [Printed earlier.]
§ On Question, amendment agreed to.
§ Lord Lucas of Chilworth moved Amendment No. 7:
§ [Printed earlier.]
§ On Question, amendment agreed to.
§ On Question, Whether Clause 11, as amended, shall stand part of the Bill?
§ 5.39 p.m.
§ Lord UnderhillThis is the second clause upon which I said that I had questions to ask the Minister. Clause 11 amends legislation by introducing a new definition of "limitation tonnage". Again I found the Notes on Clauses dealing with Part II extremely helpful; they certainly threw some light on what is a very complicated and technical matter. However, they include an explanation of problems that might arise if there was immediate implementation of the 1969 tonnage convention and they set out transitional arrangements. I should like to ask the Minister where in the Bill there is any provision for these transitional arrangements.
Then I find that paragraph 8 of the notes dealing with Part II reads as follows:
Notwithstanding the above transitional arrangements, it has been confirmed in discussions in the International Maritime Organisation that the tonnage to be used in calculating limitation amounts under both the 1957 Limitation Convention and the 1969 Civil Liability Convention will continue to be the tonnage as originally defined, and that introduction of a new limitation tonnage based on the 1969 Tonnage Convention for limitation purposes will await entry into force of revised conventions".My second question is this. Where in the Bill is there any provision for this? In fact, lacking legal knowledge, we might have had our legal luminaries present for this particular Bill as well as the previous one. Where is there mention of transitional arrangements, where is there provision for what I have just quoted, or are these matters covered in other legislation apart from the Bill which is now before us?
§ Lord Lucas of ChilworthI am grateful to the noble Lord, Lord Underhill, for advising me that he might very well raise this matter. However, I cannot thank him for inviting our legal luminaries to help the Committee because if they did I think that we might be here a long time. I am no lawyer, but I think that I can explain this comparatively simply. The transitional arrangements to which the noble Lord refers are those arrangements under the 1969 convention for the physical measurement of ships. This measurement is required for such purposes as harbour dues, port dues, pilotage fees—the day-to-day needs relative to a ship, including where it goes and, obviously, from where it has come.
In the 1969 convention there is a transitional period of 12 years under which the various measurements are acceptable. I think that there is perhaps some confusion in the Notes to which the noble Lord referred, in that the transitional arrangements are those contained within the convention. Therefore, it would not be appropriate for domestic legislation to 398 embrace any specific transition. United Kingdom law provides for acceptance of the convention.
As regards limitation tonnage to which the noble Lord referred, this deals specifically with liability. In fact, I could embark on a very long explanation about this, which is both technical and legal. However, it might be more helpful to the Committee if I say that the question that might arise under the matter of limited tonnage dealing with liability is very rarely called into play. In fact, I understand that about a score of cases have come before the courts in the last 10 years. Therefore, it has not been thought that transitional arrangements in this regard have been necessary. I can assure the noble Lord, Lord Underhill, that shipping interests have been consulted on this question of limitation tonnage, and they do not regard the proposals as imposing a burden on the industry.
Future legislation might very well provide for further regulations with regard to oil pollution in implementing the Civil Liability Convention. However, I think that I could best serve the Committee, and indeed the noble Lord, Lord Underhill, by sending him the rather long three-page explanation of why this transitional arrangement is not necessary, and the existing provisions. However, if the Committee want me to go further into the matter this afternoon, of course I shall be perfectly happy to do so. But I can give the noble Lord an assurance that the industry is perfectly happy, and that there are very few cases which have occurred over the last 10 years. I shall send him a further and more detailed explanation and no doubt he will invite me to comment before we reach the next stage of the Bill, if that is necessary.
§ Lord UnderhillI am grateful to the noble Lord. Clause 11, as amended, agreed to.
§ Clause 12 agreed to.
§ Clause 13 [Citation, construction, repeals, commencement and extent]:
§ Lord Lucas of Chilworth moved Amendment No. 8:
§ [Printed earlier.]
§ On Question, amendment agreed to.
§ Clause 13, as amended, agreed to.
§ Schedule 1 [Relevant statutory provisions for the purposes of Part I]:
§ Lord Lucas of Chilworth moved Amendment No. 9:
§ [Printed earlier.]
§ The noble Lord said: I spoke to this amendment in dealing with Amendment No. 1 and the other series of amendments. I beg to move.
§ On Question, amendment agreed to.
§ Schedule 1, as amended, agreed to.
§ Remaining Schedule agreed to.
399§ In the Title:
§ Lord Lucas of Chilworth moved Amendment No. 10:
§ [Printed earlier.]
§ The noble Lord said: I gave the Committee an explanation of this amendment when I dealt with this very large, long group of amendments all dealing with hovercraft. I do not ithink that I can add anything to that. I beg to move.
§ On Question, amendment agreed to.
§ The Title, as amended, agreed to.
§ House resumed: Bill reported with the amendments.