Prevention of Oil Pollution Bill [H.L.] (Hansard, 16 December 1985)

§ Lord Walston
My Lords, I beg to move that the Bill be now read a second time.
Your Lordships are accustomed to long, somewhat involved and complex Bills—in fact, your Lordships are in the middle of discussing one at the present time—but in view of the proximity of Christmas and in an attempt to lighten the load and bring in something more seasonable I am presenting a Bill which is not long, complex or difficult to understand and the object of which is simple and clear cut. I believe it will commend itself to all noble Lords who are present at the moment and even to those who are otherwise engaged outside.
As I have said, this Bill is a very short one and at first sight it might appear to be somewhat technical. I suppose that one could say that it is rather technical, but the purpose is extremely simple. As well as being, in my view, necessary, I hope that your Lordships will agree that it is completely non-controversial. Perhaps I should begin by briefly explaining the background to the Bill. Under Section 2(1)(a) and (b) of the Prevention of Oil Pollution Act 1971 an offence was committed if any oil or mixture containing oil was 599 discharged from a ship into waters to which Section 2 applied. These waters were defined as, in the first place, the whole of the sea within the seaward limits of the territorial waters of the United Kingdom, and, secondly, all other waters, including inland waters, which are within those limits and which are navigable by sea-going ships.
Section 2(1)(a) and (b) were repealed by the Merchant Shipping (Prevention of Oil Pollution) Order 1983 as from 2nd October 1983. On that date a new system for preventing oil pollution of the sea came into force under the Merchant Shipping (Prevention of Oil Pollution) Regulations 1983 which gave effect to the International Convention for the Prevention of Pollution from Ships 1973. But that new system applied only to the sea. Since the international convention related only to the sea, the regulations which gave effect to it could not extend any further. The total repeal of Section 2(1)(a) and (b) of the Prevention of Oil Pollution Act 1971 therefore left a gap in the legislation to prevent oil pollution in relation to waters navigable by sea-going ships which do not form part of the sea.
The main purpose of this Bill is to fill the gap—I am not sure whether it is quite correct to talk of filling a gap in the sea, as the sea, by its very definition, does not have any gaps in it; but I think your Lordships will understand what I mean—by re-enacting in relation to those waters the provisions formerly contained in Sections 2(1)(a) and (b). These provisions are contained in the new subsection (2A) which the Bill inserts into Section 2 of the 1971 Act. The reason why it does not simply reinstate paragraphs (a) and (b) of subsection (1) of Section 2 is that the waters to which the re-enacted provisions will apply are not the same as those to which the other provisions of subsection (1) of the Section continue to apply.
The re-enactment of these provisions raises a problem which would indeed have arisen if the repeal of Sections 2(1)(a) and (b) of the 1971 Act had been expressly limited to those sections in their application to the "sea". It may surprise your Lordships, but there is no precise legal definition of what the sea is. Those of us who are laymen have a pretty good idea of what the sea is, but apparently legal draftsmen and others are not quite certain. Both the 1971 Act and the 1983 regulations define the expression as including any estuary or arm of the sea; but this does not enable one to determine precisely at what point in a navigable river "sea" ends and "other waters" start. In short, it is necessary for the Bill to prescribe a dividing line, to the landward of which the re-enacted provisions of the 1971 Act will operate and to the seaward of which the prevention of oil pollution will be enforced under the relevant provisions of the 1983 regulations.
It has been agreed by all concerned that the best solution to this problem is to adopt for the dividing line the base line from which the breadth of the United Kingdom's territorial sea is measured. This base line is prescribed by the Territorial Waters Order in Council 1964. In relation to bays, which is where the problem arises, the formula applied by the order is in some cases somewhat complicated, but the resulting base line seems to approximate to what would normally be regarded as the point in tidal waters and estuaries, such 600 as the Thames, where waters cease to be sea. In other words, I think I may say that commonsense has come to the rescue of those who are attempting to define this somewhat complex problem. I believe that this is the best that we can do.
Nevertheless, particularly having regard to the extended definition of "sea" in the 1983 regulations, which I have mentioned, it is likely that some waters of bays and estuaries landward of the base line for territorial waters might be held to be part of the sea for the purposes of the regulations. To avoid any overlap between the provisions of the regulations which prohibit the discharge of oil from ships into the sea and the provisions of the 1971 Act re-enacted by the Bill, subsection (2) of Clause 1 of the Bill therefore in effect disapplies those provisions of the regulations in relation to any parts of the sea landward of the base line for territorial waters. Subsection (3) of Clause 1 makes clear that this application does not affect the prohibition in the regulations against discharging chemicals into the sea in harmful quantities or concentrations. I must apologise to your Lordships for using the word "disapplies". It is not, I must confess, a very attractive word, but it does appear to give in the clearest possible way the sense of what is meant.
Finally, I would draw your Lordships' attention to the new subsection (2B) which the Bill inserts in Section 2 of the 1971 Act. This enables the Secretary of State to prescribe by regulations discharges into the sea—as for instance, in any parts of the sea landward of the base line for territorial waters—to which the provisions of the 1971 Act re-enacted in subsection (2A) are not to apply. It is intended that this power will be used to exempt from control certain discharges into the sea which may contain very small proportions of oil which are authorised by the 1983 regulations.
I hope that your Lordships will agree that this is a beneficial Bill which essentially restores the status quo as regards the prevention of oil pollution by ships to navigable waters which do not form part of the sea. I commend the Bill to your Lordships' House and I beg to move.

§ Baroness Nicol
My Lords, we welcome this Bill and I personally should like to thank the noble Lord, Lord Walston, for his very clear explanation of it. As he says, it is a fairly short Bill; nevertheless, I could wish that in it there was one other provision which I shall now propose to outline. I am sorry that the opportunity has not been taken to look at the maximum fines which are imposed in the 1971 Act. Your Lordships will notice that there is a maximum fine of £50,000 for a number of the offences which are mentioned in that Act, including Section 2 which is the one that we are amending this evening. The sum of £50,000 would have been significant in 1971 when the Act was introduced, but of course much has happened since then and it is now not of very great consequence. For example, the after-tax profits of Esso in 1971 were £8 million and in 1984 they were £700 million. I am not suggesting that Esso would break any rules but your Lordships can see the order of magnitude that the fine would need to be now in order to keep pace with that increase.
601 I think that there is a case for linking fine levels to inflation. I wonder whether the noble Lord, Lord Walston, in fact gave this point any consideration during the preparation of this Bill, or perhaps the Minister will tell us whether the Government have done anything or have thought about it at all and will be likely to introduce such a measure as an amendment. It seems to me that it would be a very useful amendment, which could be introduced now with very little bother. Certainly we have had proof in the last few years that controls of this sort have an effect on oil polluters and one needs to keep up the pressure.
There is also a need to examine the situation of offending foreign-flag vessels, where the prosecution is against the master of the vessel and where—in certain cases only—the fine is limited by the individual master's capacity to pay, though in practice the fine is paid by his company. It should be possible to prosecute the master as an agent of the company, and, again, to make fines more realistic.
With these two single wishes for an amendment, I should like to say that we welcome the Bill and hope that it will go quickly through all its stages. I do not know how the noble Lord, Lord Walston, is proposing to move it through, but it seems to me that the sooner it goes through the better. We support the Bill.

The Parliamentary Under-Secretary of State, Department of Transport (The Earl of Caithness)
My Lords, I should like to add my congratulations to those expressed to the noble Lord, Lord Walston, for the clear and concise way in which he introduced the Bill, and I should like to record the Government's support for it. He said that the Bill was correcting a gap in the law. I would not argue with him, but there were mechanisms in the 1983 order through which action could have been taken, though I say at once that we support this piece of legislation because it is exactly what we should have incorporated in a merchant shipping Bill which we should have liked to introduce had time for legislation permitted; and so we are with him all the way.
The noble Baroness, Lady Nicol, mentioned a fine of £50,000. As she will appreciate, that is an exceptionally high figure for a magistrates' court to impose—and we are talking about magistrates' courts. In practice, the fines have not even reached a figure of £25,000, let along £50,000. There is a good reason for that. Apart from the action being taken in a magistrates' court, as she rightly pointed out, the court has to have regard to the personal means of the master. If there is to be a change in the fine, we shall have to consult my noble and learned friend the Lord Chancellor. It is entirely for the noble Lord, Lord Walston, whether he wishes to pursue that. At this stage I certainly recommend that we take the Bill through as it is rather than complicate it further. I should prefer to see it on the statute book rather than for it to get hogged down on the matter of fines.
602 At this stage all that I can do is to wish the Bill a speedy passage through this House and through another place, and to give it our support.

§ Baroness Nicol
My Lords, I am sorry that the noble Earl does not feel that he can press the matter of a fine. On a quick calculation, comparing the level of the fine with what is was, it should now be about £4 million, if £50,000 was correct in 1971. It is a serious matter. Magistrates' courts may not yet have seen fit to impose the maximum fine. Speaking as a magistrate, I can say that that often happens in a magistrates' court. But if the maximum is higher, the level of fines goes up. We must keep up the pressure, and I hope that the noble Lord, Lord Walston, will consider that.

The Earl of Caithness
My Lords, as the noble Baroness ended on that note, let me say that it is up to the noble Lord. But having encountered the problem of trying to change magistrates' court fines in earlier legislation, I can see problems, and I should hate that to delay the speedy progress of the Bill.

§ Lord Walston
My Lords, I am grateful to the noble Baroness and to the noble Earl for their reception of the Bill and for clearly showing that they have studied it, given it a great deal of thought and digested it. I have much sympathy with the attitude of the noble Baroness about fines. It is a matter to which I have given a great deal of thought, obviously in consultation with all those most concerned. I came to the conclusion, supported by the evidence that I received (as indeed the noble Earl has), that any alteration of fines would be far more complicated and lengthy than one might think for something that appears to be simple. With the greatest respect to the noble and learned Lord the Lord Chancellor, once things get into the clutches of his department it takes a very long time to get them out again.
I came to the conclusion that it would be far better to present the Bill in its present simple form in the hope and expectation that it could pass through your Lordships' House rapidly, get on its way to another place and become law comfortably within this Session; whereas, had we attempted to do more, however desirable that might be, there was a risk that the Bill might be lost altogether. I hope that the noble Baroness is convinced by the arguments, which are not off-the-cuff but are the result of considerable thought. I therefore ask your Lordships to give the Bill a Second Reading.

§ Lord Brabazon of Tara
My Lords, I beg to move that this House do now adjourn during pleasure until eight o'clock.