Merchant Shipping Bill [H.L.]

HL Deb 14 December 1987 vol 491 cc437-85

2.55 p.m.

Report received.

Clause 6 [Refusal of registration]:

Lord Carmichael of Kelvingrove moved Amendment No. 1: Page 6, line 20, at end insert— ("or (c) having regard to the national interest").

The noble Lord said: My Lords, I beg to move page 6, line 20, at the end to insert the words on the Marshalled List. The Minister will be familiar with the arguments and discussion we had at the Committee stage of this Bill. He will remember that, although he gave a long and detailed reply, I suggested at the end in col. 559 that I would look at his reply and perhaps bring up the matter again. I have looked at the noble Lord's reply and I believe that he has gone some way to explain why there should not be the words added "having regard to the national interest" in this clause, but he has not completely convinced me or my noble friends.

The question of the reflagging of a ship wherever it may be in the world is important, as the Minister pointed out, but it is more than merely a series of conditions as to the state of the ship, the type of crew the ship has, and the seaworthiness of the ship. There are other matters involved, and we believe that to add the words "having regard to the national interest" would help to give the Minister that final piece of control over whether a ship should be flagged as a British ship or not.

The point made by the Minister was largely that the conditions were all going to be laid down and that it would be unfair to move the goalposts if, after all the physical conditions had been established, the Secretary of State then said, "Having looked at all this, I still feel that I cannot grant the reflagging".

May I give the Minister an example of where we think it would be important that the Secretary of State should have the final say? We spoke about the Gulf last time we were discussing this matter. We did not put it quite so clearly as we are now able to do. If Iran or Iraq sought to reflag into the United Kingdom register, having met all the requirements presently contained in the Bill, from what the Minister said at an earlier stage how could their application for registration be refused if there was no provision for refusal in the national interest? Yet surely it would he in the national interest at this time not to accept an Iranian or Iraqi ship on to the British register.

Remember that a ship could be reflagged when it was trading abroad in an area well outside the Gulf, and even the safety and welfare provisions would not necessarily apply, and yet those ships could be switched quickly into the Gulf at any time. There is a fairly strong case for giving this overall power to the Minister. I am sure that it would be used sparingly, knowingly and intelligently.

There is no intention to deny registration of investment to reputable operators such as Canadian Pacific and Esso, to which the Minister referred in his reply earlier. With these additional arguments that I have put forward I hope that the Minister will rethink the matter and either agree to take it back or to accept the amendment. I beg to move.

Lord Mottistone

My Lords, I should like to suggest to your Lordships that the addition of this subsection would introduce an element of wide political discretion as to which ships the Secretary of State should allow on the United Kingdom register. I suggest that that is undesirable and that subsection (3), as it stands, goes far enough in giving the Secretary of State a measure of control of the ships that are on the register. I hope that your Lordships will not support the amendment.

Lord Underhill

My Lords, the noble Lord's point is precisely that which was raised in Committee. I recall the comments of my noble friend Lord Mulley who said that it is no bad thing that Ministers should have this wide discretion. He added at col. 558 of the Official Report: I happen to believe that Ministers should exercise discretion in the national interest". The Minister would have to give a sound argument as to why that should not be included. Looking at the wording of the Bill, there appears not to be the slightest reason why this would embarrass the Government or prejudice the Bill in any way.

Lord Brabazon of Tara

My Lords, I spoke at some length to a similar amendment which the noble Lord, Lord Carmichael, proposed in Committee and I shall now summarise the arguments briefly. Subsection (3) of Clause 6 deals with the case where a ship is entitled to be registered—it meets the requirements set out in Clauses 3, 4 and 5—but the Secretary of State nevertheless directs that the ship should not be registered. That power—in effect, a power to override the normal eligibility requirements—is a new power and has no counterpart in the 1894 Act. As the Bill is drafted, it may be used on very clear and specific grounds: the condition of the ship insofar as is relevant to its safety or to any risk of pollution, and the safety, health and welfare of persons employed on board.

To that the noble Lord's amendment would add a new consideration which is both very broad and quite different in character. The proposal is, I admit, a seductive one. None of us would want to deny the supremacy of the national interest, and so argument is made that Ministers must have the discretion to defend the national interest in circumstances which cannot at this moment be foreseen or defined. All this is fine at a general level. The problem lies in dealing with specific cases once that discretionary power exists. It may not be at all obvious where the national interest lies. It may, indeed, be a matter of bitter political controversy, as my noble friend Lord Mottistone pointed out. But the possibility exists of pressing Ministers to use that discretion in this or that circumstance or to favour this or that special interest. So our system of ship registration is no longer one which can be simply and sensibly administered according to the statutory criteria where people know where they stand. It risks becoming one which is clouded with uncertainty because the possibility of a political intervention has been introduced.

The present basis of our registration system—applying and administering clear statutory requirements—has stood the test of time well. Should recent events prompt a sudden change in direction? I believe not. As I said in Committee, I believe that we can now view matters which created much publicity over the summer from a cooler perspective. It is perhaps more widely appreciated than it was some months ago that it is not at all unusual for ships to change their ownership and registration; that there has been a long history of foreign investment in the British merchant fleet; and that we welcome that and the employment which it brings. We know that there has not, in fact, been a flood of tonnage to the UK register. We know that the Armilla Patrol continues to do a very fine job in the Gulf. There is no question of the Royal Navy being required to provide an escort for everyone and anyone who cares to join the British register. The Armilla Patrol provides, very successfully, a carefully defined presence in a limited area.

I do not believe that it would be in the interests of our shipping register to introduce an ill-defined element of discretion which, in practice, represents an element of uncertainty. With those arguments, I hope that the noble Lord will be able to withdraw his amendment.

Lord Carmichael of Kelvingrove

My Lords, the Minister will be aware that I am disappointed. In putting the case again, I thought that the Minister would see some merit in it. I intend to withdraw the amendment. However, I still believe that the political discretion—or, as the Minister described it, "political controversy"—might be required at certain times in the future. He said that the future was not foreseeable.

I should like to ask the Minister whether, at a later stage, he could give me some indication of the way in which other nations decide their registration. Do they have a condition? Or do they make sure that the national interest is served whether the matter is provided for in a statute or not? Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [Amendments of Part I of Merchant Shipping Act 1894]:

Lord Brabazon of Tara moved Amendment No. 2: Page 44, line 40, leave out sub-paragraph (a) and insert— ("(a) for subsection (2) substitute— (2) If—

1. (a) the port where the ship is at the time of the event (or. as the case may he. where it first arrives thereafter) is a port in a country outside the British Islands, and
2. (b) the master of the ship. or some other person having knowledge of the facts of the case, makes a declaration before the appropriate person stating—
1. (i) the facts of the case, and
2. (ii) the names and descriptions of the registered owners of the ship to the best of the declarant's knowledge and belief,

the appropriate person may thereupon grant a provisional certificate containing a statement of the circumstances under which it is granted.";").

The noble Lord said: My Lords. in moving Amendment No. 2, I should like, with the leave of the House, to speak also to Amendments Nos. 3, 4, 5, 6, 7 and 10.

These are drafting amendments of a technical nature. They allow for three references to consular officers, nominated High Commission staff and colonial Governors to be replaced by the words "appropriate person" which are separately defined in a new subsection. Colonial Governors are included for the first time so that they, or the officers they appoint, may provide services under these sections for UK ships while visiting their waters. Altogether, the sections as amended will enable these services to be provided worldwide and not just in non-Commonwealth countries as hitherto.

Other minor amendments refer to the surrender of documents and alter a reference to the "United Kingdom" to the "British Islands".

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendments Nos. 3 to 7: Page 45, leave out lines 17 and 18 and insert— ("(4) In this section "the appropriate person", in relation to a port in a country outside the British Islands, means—

1. (a) any British consular officer within whose consular district the port lies, or
441
2. (b) where Her Majesty's Government in the United Kingdom is represented in that country by a High Commissioner, any member of the High Commissioner's official staff nominated by him for the purposes of this Part of this Act, or
3. (c) where that country is a colony, the Governor of the colony or any person appointed by him for those purposes;

and in this subsection "High Commissioner" includes an acting High Commissioner and "Governor" includes an acting Governor.""). Page 45, line 28, leave out sub-paragraph (b) and insert— ("(b) for subsection (2) substitute— (2) Except where the ship's certificate of registry is lost or destroyed, the master of the ship shall, as soon as practicable after the event, deliver up the certificate—

1. (a) to the registrar of the ship's port of registry, or
2. (b) if the port where the ship is at the time of the event (or, as the case may be, where it first arrives thereafter) is a port in a country outside the British Islands, to the appropriate person (as defined by section 18(4) of this Act);

and any person receiving a certificate in pursuance of paragraph (b) above shall forthwith forward it to the registrar of the ship's port of registry."; and").

Page 45, line 39, leave out ("delivery") and insert ("delivering up").

Page 45, line 43, leave out ("United Kingdom") and insert ("British Islands").

Page 46, line 1, leave out from beginning to end of line 7 and insert ("the appropriate person (as defined by section 18(4) of this Act)").

The noble Lord said: My Lords, with the leave of the House I beg to move Amendments Nos. 3 to 7 en bloc. I have already spoken to those amendments.

On Question. amendments agreed to.

Lord Underhill moved Amendment No. 8: Page 46, line 26, leave out ("three months") and insert ("one month")

The noble Lord said: My Lords, in moving Amendment No. 8 I should like to speak also to Amendment No. 9. Amendment No. 8 relates to the provisional registration of a ship overseas. The important issue discussed in Committee was the duration of a provisional registration. The noble Lord, Lord Mottistone, sought to change three months, as provided for in the Bill, to six months. I tabled an amendment providing that provisional registration should be reduced to only one month.

The noble Lord, Lord Mottistone, said that one month would make the time limit even less practical in real terms. I referred to paragraph 34 of the Department of Transport's consultation document issued in 1984. I quoted an important part of the document which I shall not quote again today. It appears at col. 563 of Hansard That document pointed out the fact that abuses of the six-month provisional registration period had been occuring and it was for that reason that the period was being reduced. Further, the department pointed out that most registrations were completed within one month. I think there is general agreement that it is desirable that the provisional registration of a ship, not properly surveyed, should be as short and as practical as possible.

At col. 565 of the Official Report the Minister said that, our surveyors travel all round the world to conduct these surveys so it is quite possible for a survey to be done in any port". Therefore, we repeat Amendment No. 8 which suggests that the period of provisional registration should have a duration of only one month.

It will he noted that Amendment No. 9 introduces completely new wording which was not discussed in Committee. The amendment proposes the implementation of the department's suggestion in paragraph 34 of its document. I should like to quote from that paragraph of the department's consultative document: It is therefore proposed that certificates of registration be made available for a period of one month only.

But then there are the important words: Another possibility which could be considered is to refuse provisional registration unless the Master of the ship can provide satisfactory safety certificates under the law of the State of previous registration, except on condition that the ship will immediately proceed to a British port for survey and full registration". That is in effect what Amendment No. 9 is proposing.

The whole purpose of our amendment is to stop abuse, which the department has said has gone on previously, and to deny provisional registration to sub-standard ships. Unless evidence of survey and full safety certification is produced, the master will undoubtedly be placed in an invidious position under the Government's own requirements in Clauses 29 and 31 of the Bill.

I hope that the Government may find it possible to accept both of the amendments, but even without the amendment to cut the duration of the provisional registration down to one month, there is no reason whatever why the Government should not be prepared to accept Amendment No. 9, which is in full accord with what the Government's own Department of Transport proposed in the consultative document to which I have referred. I beg to move.

Lord Mottistone

My Lords, it will not surprise your Lordships to hear that one month will not be any more suitable now than it was at Committee stage. Indeed, I sought to press for six months, which has been the practice heretofore. However, my noble friend the Minister produced a good argument at Committee stage and he has since written me a letter which spells this out in greater detail, and I have come to agree that in modern times three months would be a suitable interval.

However, one month just would not be good enough and I hope that my noble friend will follow the line that he himself adopted at Committee stage. As I understand it, the proposals in the White Paper, as is so often the case with proposals in a White Paper, are seeing what the reaction is if you think of a particular figure. Quite clearly, the reaction was very sharply against as short a period as one month for this purpose, so the Government came down with the decision that probably three months would be a good working—I emphasise the word "working"— length of time to use in the future. I hope very much therefore that your Lordships will not accept Amendment No. 8. Amendment No. 9 is new to me and I have not really had time to study it.

Lord Geddes

My Lords, it will also not surprise your Lordships that I too would urge my noble friend on the Front Bench to resist this amendment. As I said at the Committee stage, this is essentially a practical problem. Perhaps I am in the minority among your Lordships in saying that I have been responsible on many occasions for registering British ships under the British register. It is not the world's easiest and simplest activity. I personally am still afeared at the reduction from six months to three months, but I would certainly resist most strongly the thought of going to one month. It does not make practical sense, speaking as one with experience of 25 years in the industry.

Lord Brabazon of Tara

My Lords, I have sympathy with the thought underlying the amendments. As I said in Committee, the Government have accepted the view of the General Council of British Shipping that one month would be too short a period of validity for provisional certificates, and our view remains that three months' validity would be reasonable. However, the amendments of the noble Lord, Lord Underhill, raise the important question of what evidence as to the condition of a ship and its safety might be required in connection with provisional certificates. I believe that we should ask for some evidence in this area. The noble Lord's amendments suggest one option, which was indeed referred to in my department's 1984 consultative document. There may be others worth looking at. So I have asked my department to consult with the General Council of British Shipping about what evidence it would be sensible to require in the special circumstances of provisional registration.

As a matter of procedure, however, I see no need to deal with these requirements in statute. We had intended to deal with the matter through the administrative guidance issued to consuls. who under the statute have discretion whether or not to grant provisional certificates. While we are on the subject of provisional registration, I should perhaps add that we hope, either here or in another place, to bring forward an amendment which would amend the subsection in the Bill dealing with evidence of an application for full registration, to take account of the points that I made in Committee, in response to my noble friend Lord Mottistone.

The noble Lord, Lord Underhill, raised the question of the master and his role in provisional registration. I would say to him that, as well as consulting with the General Council of British Shipping on the requirements that were reasonable to demand, we will also consult with the maritime unions on this matter. I hope therefore that, with that explanation of our plans to address this very important area, the noble Lord will feel that we are covering this adequately, if not in statute, and will be able to withdraw these amendments.

3.15 p.m.

Lord Underhill

My Lords, I am grateful to the Minister for his detailed reply on the second amendment. I shall not press Amendment No. 8 and will readily withdraw. But it was very noticeable that the two noble Lords who opposed No. 8 said nothing whatever about Amendment No. 9, which has never been before the House.

I am grateful for what the Minister has said and that there is to be consultation not only with the general council but also with the shipping unions; and we shall look forward to seeing what amendment comes forward. I gather that the Minister hopes that there will be one coming forward at Third Reading. It would be very helpful if we could see that some time ahead, in case we want to move an amendment to that amendment. Meanwhile, I beg leave to withdraw Amendment No. 8 and will not move Amendment No. 9. However, I reserve the right to deal with that matter, maybe in a different form, at Third Reading.

Amendment, by leave, withdrawn.

[Amendment No. 9 not moved.]

Lord Brabazon of Tara moved Amendment No. 10: Page 46, leave out lines 33 and 34.

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 2. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 11: Page 48, line 42, at end insert:

("Transfer of registry to overseas territory.

53AA.—(1) Subject to subsection (2) of this section, the registration of a ship under this Part of this Act may be transferred from a port in the United Kingdom to a port in a relevant overseas territory; and the provisions of section 53 of this Act (except subsections (4) and (5)) shall apply in relation to a transfer of registration under this section as they apply in relation to a transfer of registration under that section.

(2) Where an application is made under this section for the transfer of a ship's registration to a port in a relevant overseas territory, the registrar of the ship's existing port of registry shall not proceed to deal with the application unless he is satisfied that registration of the ship under this Part of this Act at the intended port of registry is not precluded by—

1. (a) any Order in Council in force under section IO of the Merchant Shipping Act 1988, or
2. (b) any provision of the law in force in the territory in question; and any certificate purporting to be signed by the registrar of the intended port of registry and stating that any such registration of the ship is not precluded by any such provision shall be conclusive evidence for the purposes of this subsection of the matters stated in it.

(3) Where the registrar of the intended port of registry grants a fresh certificate of registry in pursuance of any such application as is mentioned in subsection (2) of this section, the ship in question shall thenceforth be considered as registered at the new port of registry, and the name of that port shall be substituted for the name of the former port of registry on the ship's stern.

(4) In this section "relevant overseas territory" means—

1. (a) the Isle of Man;
2. (b) any of the Channel Islands; or
3. (c) any colony.").

The noble Lord said: My Lords, with the leave of the House I shall speak also to Amendment No. 12. Amendment No. 11 provides for the transfer of registry for ships from a port in the United Kingdom to a port in an overseas territory. The 1894 Act provides for such transfers in either direction. As currently drafted, the Bill provides for transfers between UK ports and for transfers from ports in the dependent territories and Crown dependencies to the UK but not for transfers from the UK to ports in the dependent territories and Crown dependencies. The amendment fills that gap in the procedures and repairs the error in the drafting of the original amendment so that such transfers can continue. Such transfers of registry will be limited by the conditions of eligibility placed upon an overseas territory by categorisation under Clause 10 and by restrictions in local legislation. A ship's registration may not be transferred to a dependent territory until it meets any such restrictions in force in that territory.

Amendment No. 12 is a technical amendment to the related section on transfers of registry from the Crown and dependent territories to the United Kingdom. It is merely to make it clear that the section refers to those territories and not to foreign countries. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 12: Page 48, line 44, leave out ("country outside the United Kingdom") and insert ("relevant overseas territory (as defined by section 53AA (4) of this Act,").

The noble Lord said: My Lords, I have just spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 11 [Interpretation of Part 11, etc.]:

Lord Brabazon of Tara moved Amendment No. 13: Page 9, line 15, at end insert (", and any reference to a survey under the fishing vessel survey rules is a reference to such a survey carried out in the United Kingdom:").

The noble Lord said: My Lords, this amendment is designed to ensure that, should it be necessary for a vessel to be surveyed by surveyors of my department, it is surveyed in this country. It is the norm for such surveys to be carried out in the UK but without this amendment the system might have been abused with a vessel presented in a foreign port with no intention of remaining there until the survey had been completed. In foreign ports, powers to detain the vessel would be inoperable. I beg to move.

On Question, amendment agreed to.

Schedule 2 [Registration of Fishing Vessels: Supplementary Provisions]:

Lord Brabazon of Tara moved Amendment No. 14: Page 54, line 19. at end insert— ("and with respect to matters consequential on the termination of the registration of fishing vessels under any of the enactments specified in section 12(2) (including vessels which are not transferred to the register).").

The noble Lord said: My Lords, at the same time I shall speak to Amendment No. 15. These are technical amendments to ensure that all circumstances can be catered for during the transition from the old registry system to the new. There will be fishing vessels registered under existing enactments which will not be transferred to the new register, for example, because they are ineligible to register. It may be necessary to make detailed arrangements in respect of those vessels and in particular to preserve any undischarged mortgage details in the old registers so as to protect the interests of mortgagees. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 15: Page 54, line 29, leave out sub-paragraph (d) and insert— ("( ) for preserving the effect of entries in any register kept under either of the enactments specified in section 12(2)(a) and (c) so far as those entries relate to undischarged mortgages affecting vessels which are not transferred to the register kept under this Part.").

The noble Lord said: My Lords. I beg to move.

On Question, amendment agreed to.

Clause 21 [Offences relating to, and liabilities of, unregistered fishing vessels]:

Lord Brabazon of Tara moved Amendment No. 16: Page 16, line 42, leave out ("is used for fishing") and insert ("fishes").

The noble Lord said: My Lords, at the same time I shall speak to Amendments Nos. 17 and 18. These are drafting amendments of a technical nature and serve to clarify existing provisions but have no other effect upon the requirements of the clause. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendments Nos. 17 and 18:

Page 17, line 6, leave out ("not") and insert ("neither").

Page 17, line 6, after ("Part") insert ("nor excluded from registration by regulations under section 12").

On Question, amendments agreed to.

Clause 25 [Financial assistance in respect of costs of training merchant navy officers and ratings]:

Lord Underhill moved Amendment No. 19: Page 19, line 40, at end insert— ("( ) Except with the consent of the Secretary of State, the financial assistance provided for in subsection (1) above shall he granted only in respect of British citizens whose seagoing training will he undertaken on ships manned by masters and officers holding a United Kingdom Certificate of Competency").

The noble Lord said: My Lords, this amendment deals with the question of training. The whole House welcomed the provision in the Bill for financial assistance towards training. In Committee I moved Amendment No. 43. I shall quote the words of that amendment: ('( ) The financial assistance provided for in subsection (1) above shall he granted only to British citizens serving on ships manned by masters and officers holding a United Kingdom certificate of competence.')".

The debate was recorded in cols. 585 and 586 of the Official Report. The Minister stated in col. 585: our intention at present is to provide financial assistance to those organisations—primarily shipping companies—who sponsor and employ cadets, rather than to the cadets themselves". The Minister added that the amendment which I had proposed would prevent that, but he kindly undertook to look again at the very first point, which dealt with the training for British citizens; it dealt with the nationality of those to be given training under the financial assistance provision.

I am grateful to the Minister for sending a detailed letter on this matter explaining the Government's intentions. Perhaps at this stage I should say how grateful I am, as are certain other noble Lords, for the number of undertakings which the Minister has carried out in sending letters as a result of statements that he made in Committee.

In his letter the Minister took the view that the matter could be dealt with by a provision in the Bill to give the Secretary of State powers to make the financial assistance dependent on: such conditions as he thinks fit". In expressing my appreciation to the Minister in my reply to him, I argued that those words, without any qualifications, give the Secretary of State considerable powers and that therefore I should be tabling this new amendment.

First the amendment meets one point of criticism, which is the question of the recipient of the financial assistance. Instead of financial aid being granted only to British citizens this new amendment, No. 19, proposes that: the financial assistance … shall be granted only in respect of British citizens". The amendment does not state "to British citizens".

Secondly, the opening words are of some considerable importance. They state: Except with the consent of the Secretary of State". Therefore this amendment meets the criticisms made in Committee and gives power to the Secretary of State, should he so wish, to determine the questions of the nationality of those to be given the training and the ships on which training shall be given. By a link in the possibility of exceptions, with the consent of the Secretary of State, this meets the point regarding Irish certificate holders and the occasional officer holding a recognised equivalent to a UK certificate. I believe that that point was made by the noble Lord, Lord Mottistone. We have done our best in this amendment to meet the criticisms made in Committee. I beg to move.

Lord Mottistone

My Lords, I am sorry to have to say that I do not think that the amendment goes quite far enough, although I appreciate what the noble Lord has done to try to accommodate the points that I made last time. For the benefit of the House perhaps I may be allowed to repeat briefly what the problem is.

Although in practice most of the trainees who will qualify for assistance under this clause will be British, they could also include Irish nationals and certain Commonwealth citizens who are possibly resident in the UK. Likewise the masters and officers in the ships on which they will undertake their training could hold certificates of competency issued by Ireland or by a number of Commonwealth or ex-Commonwealth countries which are accepted by the Department of Trade as being of equivalent standard to UK certificates of competency.

It would be unreasonably inflexible—this is why this amendment really does not do—to have to seek the specific consent of the Secretary of State each time these circumstances arose. That is the problem; it is not flexible enough. For example, the amendment would appear to require the Secretary of State's consent to be sought each time an officer with an acceptable non-UK certificate of competency was transferred to a ship on which a trainee receiving aid under this clause was being trained. I think that that is terribly cumbersome and bureaucratic and I hope that your Lordships will agree with me that this amendment will not help matters at all. I hope that my noble friend will have strong reasons for rejecting the amendment.

Lord Brabazon of Tara

My Lords, I can indeed understand the concern that has prompted the noble Lord, Lord Underhill, to table this amendment, but I hope that I shall be able to assure him that his concerns will be met in the way we propose to administer the scheme for providing assistance with training and that this amendment is unnecessary.

I should like to turn first to the proposed requirement that all masters and officers should hold UK certificates. As I explained in Committee, it will be essential, so that training can be properly supervised, that it is carried out on ships manned by senior officers holding United Kingdom certificates of competency. But I should not want to rule out the possibility that some junior officers might hold non-UK certificates whose equivalency we recognise, and I should not want to get into a position where the existence of such a junior officer, perhaps only one, called into question the eligibility for subsidies of the trainees on the ship in question.

My noble friend Lord Mottistone put that point very well when he mentioned the possibility of a junior officer, perhaps holding a certificate, who went on to a ship where there were trainees and then my right honourable friend would have to issue another exemption according to the terms of this amendment. I do not think that such a restriction would be appropriate or necessary to ensure a satisfactory training.

In response to the noble Lord's amendment in Committee we have, however, looked closely at the possibility of incorporating in the Bill a nationality restriction in respect of trainees. In practice I should certainly expect the vast majority of trainees to be British citizens but we should not want to rule out Irish and Commonwealth citizens who are eligible for United Kingdom certificates and who have traditionally served on United Kingdom merchant vessels on an equal basis with United Kingdom nationals.

I recognise that the noble Lord's amendment would enable us to make exceptions for other nationalities but this brings me to my next point of concern. I am not sure that the amendment as drafted would in practice add a great deal to the clause. It allows exceptions to be made to the certification and nationality requirements for officers and trainees with the consent of the Secretary of State. But under subsection (1) assistance is provided by the Secretary of State himself to persons and organisations determined by him and subsection (2) makes it clear that he may impose such conditions as he thinks fit.

The Secretary of State therefore already has wide powers which will enable him to restrict the availability of the assistance. I can assure the noble Lord that we shall be making full use of those powers. The assistance is designed to ensure that there should continue to be sufficient seafarers available to serve on UK vessels in times of emergency. It will therefore be essential to ensure that the assistance is made available in respect of people whose qualifications would entitle them to serve on British ships and who might reasonably be expected to be available for such service in time of need. In administering the scheme, we shall want to ensure that that happens. But I see no need for specific restrictions on the certification of supervising officers or the nationality of trainees to be built into the Bill for this purpose. I hope that on the basis of the assurances I have given, the noble Lord will agree to withdraw his amendment

3.30 p.m.

Lord Harmar-Nicolls

My Lords I hope that the noble Lord will withdraw the amendment. However the Minister ought to keep in mind that leaving the matter as it is will, for people who want to abuse that, leave the door slightly ajar. The advantage of pulling the door shut rather more tightly—although one often sees the problems pointed out by my noble friend—is that it will discourage those who wish to push the door open wider. Therefore, there is every reason for having the door closed, if that is possible. It may not be possible for practical reasons. However, we are now seeing many occasions in other fields when people who are not British citizens take advantage of our generosity. By and large, that has cost us a great deal of money, and adding those occasions together they make a difference in terms of the budget.

Lord Underhill

My Lords, I am grateful for the observations of the noble Lord, Lord HarmarNicholls. I think that gives part of the answer to the points made by the noble Lord, Lord Mottistone, concerning whether or not our amendment would be bureaucratic and cumbersome. When one looks carefully at the matter, what is the real difference in procedure between the words contained in the Bill— such conditions as he thinks fit"— and the ones which would be there if our amendment were accepted? Those words would be: except with the consent of the Secretary of State". Our words tie down the question of who shall receive training and by whom it shall be given.

However, I think that the comments of the Minister have been helpful. I am only sorry that the emphasis has always been given to the need for trained seamen in a state of emergency. In light of the figures given at Second Reading, we need a continuous supply of trained seafarers; and in terms of the points which have been made about the lack of cadets in various categories, that is a very important issue in the industry. The points which have been made will be helpful, not only to the shipping companies but also to the unions when they come to discuss the matter further, as they undoubtedly will.

Lord Strathcona and Mount Royal

My Lords, before the noble Lord sits down, perhaps it may help if the amendment, instead of reading: masters and officers holding a United Kingdom Certificate of Competency stated: officers holding a Certificate of Competency accepted by United Kingdom authorities", or something of that sort. That would appear to deal with both problems.

Lord Mottistone

My Lords, I do not think that that would get over the question of the trainee, who might well be an Irishman.

Lord Underhill

My Lords, we shall look at the suggestions made by the Minister and by noble Lords. We may well come back to the matter at Third Reading. The suggestions made have been very helpful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 [Owner and master liable in respect of dangerously unsafe ship]:

Lord Carmichael of Kelvingrove moved Amendment No. 20: Page 21, line 44, after ("Kingdom") insert ("and intending to go to sea").

The noble Lord said: My Lords, the House will remember that when we debated this matter earlier, the Minister promised to look at it. In the earlier debate, the noble Viscount, Lord Simon, pointed out that in effect the Bill says that if a ship is in an unseaworthy condition in a port, the master, the captain or the charterer—whoever is in control of the ship—has committed an offence.

As regards how the amendment would actually work, it has been wisely suggested that the offence should be that of taking an unseaworthy ship to sea. The Minister said at the time that that was an interesting proposition, and that he would consider the point carefully. Perhaps the noble Viscount, Lord Simon, will speak on that particular point, and I am sorry if I have pre-empted him. He will have received a letter from the Minister, as did my noble friend, who has shown it to me. Therefore, I apologise to the noble Viscount who will no doubt have his own particular slant when he speaks on the matter.

NUMAST (which has been advising my noble friend, Lord Underhill, and myself) is very concerned about the amendment. It believes that there should be an intention to go to sea before an offence can be committed. It has been pointed out that a ship may be in a United Kingdom port at any one time for a very large number of reasons: and it may not be fit to go to sea for a large number of reasons. It may be loading; it may be discharging; it may be taking on ballast; it may have major repairs; or it may be having a survey carried out. It is possible that navigational equipment may have been sent away for recalibration or that the ship may be undermanned, either because a crew is changing or because it simply requires more crew. All those matters must make a ship unfit to go to sea and it would certainly be committing an offence if it went to sea. However, I and my noble friends fail to see how it can be committing an offence when it is in port.

I think that the Minister has had an opportunity to look at those various matters and to consider how the ban on a ship would work. I hope that he will be able to tell us the details of how a ship would be classed as unseaworthy while it was in port. Would it not be far better to say that the ship has to be intending to go to sea before an offence has been committed? I hope that the Minister will look favourably on the suggestion. Perhaps he now has his own words for an amendment. I beg to move.

Viscount Simon

My Lords, I am grateful to the noble Lord, Lord Carmichael of Kelvingrove, for the amendment. I know that the Minister has given considerable thought to the matter. He wrote to me concerning it, and I believe that a copy of the letter was sent to the noble Lords sitting to my left. I accept that there will be difficulties. However, I believe that taking such a ship to sea should be the offence, rather than simply being in port. Ships in port may be under repair, or as the noble Lord, Lord Carmichael, has said doing other business that must be done in a port. I shall listen carefully to what the Minister has to say when he answers.

Lord Mottistone

My Lords, it gives me great pleasure to support the amendment, not having had the opportunity previously to support the noble Lords, Lord Carmichael and Lord Underhill. It seems to me that the amendment will be a useful clarification of the purpose of the clause, while still allowing action to be taken against the master or owner of a ship which was found to be dangerously unseaworthy while in port. The amendment therefore seems wholly desirable.

Lord Geddes

My Lords, I am also glad to say that I support the two amendments under discussion, albeit in principle. 1 think the noble Viscount, Lord Simon, summed it up very well. The point at issue is not a ship in port, which may be totally unsuitable to go to sea for right and proper reasons of refit or previous damage. The point at issue is a ship which is about to go to sea.

Where I have a technical problem in respect of Amendments Nos. 20 and 21, is with the verb "intending". I do not wish to be facetious, but I do not think a ship is an animate object. Therefore I do not think that a ship herself can "intend". Presumably it is either the owner or the master who would "intend" to take that ship to sea.

If the amendment in principle were agreed we should need to look at the drafting, or the verb in the drafting, to make it fulfil the clause in common English.

Lord Brabazon of Tara

My Lords, these two amendments draw the attention of the House to the basic form of this clause and pose the question of why the offence under this clause is cast in terms simply of being the owner or master of an unfit ship that is in port rather than, as proposed in this pair of amendments, of intending to take it to sea. That was a point raised at Committee stage by the noble Viscount, Lord Simon, and, as has been said, I have now written to him about it. I think it will be helpful if, in replying to the noble Lord, Lord Underhill, and other noble Lords, I set out the position for the benefit of the House as a whole.

Clause 29 is identical in the way it is formulated to its predecessor, Section 44 of the Merchant Shipping Act 1979 which, of course, has now been in force for some years. Although the actual offence of being the master or owner of an unfit ship is set out in subsection (1), one should not really consider it in isolation from subsection (5) which provides defences that, at the time of the alleged offence, arrangements had been made to ensure that the ship was made fit before it went to sea, or that it was reasonable for such arrangements not to have been made. Subsection (4), of course, is new and extends liability to the manager as well as to the owner and master.

To go back a little further in history, Section 44 of the 1979 Act in turn replaced a much older provision; namely Section 457 of the 1894 Merchant Shipping Act. That provision made it an offence simply for any person to send, or to attempt to send, an unfit ship to sea or for the master knowingly to take an unfit ship to sea. That wording is, on the face of it, simple and attractive. But the difficulty was that it was not tailored to the method of enforcement. An unfit ship is discovered to be so by an inspection in port by the department's marine surveyors. But if, because the ship has not put to sea, the offence is not actually committed, while there is of course the possibility of detention, there is no possibility of punishing the owner or the master in respect of what has been discovered by the surveyors in port, and therefore there is no chance of deterring such irresponsible lack of maintenance in the future.

The purpose of the 1979 Act was in fact to make it sufficient that there was an intention to put to sea unfit—exactly the same, indeed, as the noble Lord's amendment would require. The difficulty, however, as noble Lords will be well aware, is that "intention" is something that is in the mind, and it is notoriously difficult to prove. Such a formulation would be hardly more enforceable than the 1894 wording. Accordingly the 1979 Act includes an objective test, which the Government have retained in the new clause, that arrangements must have been made.

This wording clearly puts a certain burden on the courts to use common sense to ensure that natural justice is achieved, but there is nothing unusual about that. The Government have given considerable thought to whether the clause could be improved. But we have been unable to arrive at any changes that would not undermine the effectiveness of the clause.

I come now to the application of this clause to the master. It might be argued that a master cannot be responsible for the suitability of a ship for its purpose or its state of maintenance, and that therefore subsection (2)(a) should not cover him. But the clause, as I have explained, is intended to catch the mischief of intending to put to sea in an unfit ship, and that is most certainly the master's responsibility, even if he was not personally responsible for the lack of maintenance.

I have given a lengthy explanation of how this clause came to be in a form that 1 hope will be useful to the House. I hope that I have convinced the House as well as my noble friends that this is a continuation of the situation under the 1979 Act and that it is absolutely essential if we are going to stop unfit ships in our ports. It would be as easy as anything if, for instance, a foreign vessel was caught in one of our ports and found to be unfit, for the master simply to say "I had no intention of going to sea until these matters were put right." If we are to fulfil our international commitments to remove unfit ships from the seas, we must have the power that we have had since 1979.

Lord Strathcona and Mount Royal

My Lords, may I ask my noble friend a question? What is a new master supposed to do if he is joining a ship? Has he to satisfy himself that the owner would never ask him to join a ship that was unfit or has he, before he goes on to that ship, to make a personal survey of the ship and satisfy himself that it is fit to go to sea? Quite apart from anything else, he is not qualified to do that, is he?

Lord Brabazon of Tara

My Lords, with the leave of the House perhaps I may say that the master should satisfy himself that the ship is fit to go to sea. If the ship has the required certificates issued by the department and if the ship has been well maintained and so on, he should have no difficulty in doing so.

Lord Carmichael of Kelvingrove

My Lords, the noble Lord who has just asked the Minister another question has raised the whole matter again. I should have thought that there would be a sufficiency of log books to he able to assure the master that everything had been tested and stamped up. The Minister introduces a slightly wider aspect when he says that the master would know if the ship had been well maintained. Unless it is his own crew, in many cases the master will not be happy about taking the ship over and assuming that everything is all right. He would give no guarantee unless his own engineers had been responsible for maintenance.

The Minister went a long way in giving explanations. I believe these matters will arise in another place. He will be aware of the general support that has been given to this aspect. It is a disturbing factor. The noble Lord, Lord Mottistone, suggested that. unusually, he supported this side of the House on this particular amendment. I think that the Minister should pay attention to that point. Perhaps he will also pay attention to the fact that we shall probably, fairly soon, reciprocate that support in regard to an amendment which the noble Lord has tabled. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 21 not moved.]

3.45 p.m.

Lord Underhill moved Amendment No. 22: Page 22, line 5, leave out ("master and the owner of the ship shall each") and insert ("owner of the ship shall").

The noble Lord said: For the convenience of the House I shall also speak to Amendments Nos. 24 and 25.

Amendment No. 22 leaves out, master and the owner of the ship shall each

and inserts instead, owner of the ship shall".

Amendment No. 24 is consequential upon that amendment.

The master has been separated from the owner because, first of all, the master cannot assess the unsuitability of the ship and the equipment and secondly, the penalties are unreasonable for any individual. If, as the Minister stated at cols. 748 and 749 of Committee. stage, the very heavy fine on summary conviction is to catch overseas owners by penalising the master, that could be done by detaining the ship, not by exposing a UK master for the sake of any legal expediency.

With regard to the "unsuitability" of shipping equipment, at col. 749 the Minister referred to pumps of inadequate capacity, life-saving equipment of inadequate design, equipment not up to specification and precise definitions contained in the Merchant Shipping (Passenger Construction and Survey) Regulations.

I think that there will be general appreciation that there is no way in which the master can check the design and specifications of equipment or pretend to be a surveyor qualified to carry out (even if he had the time) a survey in accordance with those regulations. He must, and can only, rely upon the owner to provide him with a ship and equipment suitable for its purpose. In Committee it was stressed that the master is in effect an employee and that he must rely upon the assistance of other crew members, including specialist officers, and of course the owners. Nevertheless, 1 stress what my noble friend Lord Murray of Epping Forest said in Committee. He said: It is not the purpose of those who support this amendment to seek in any way to defend or protect a master who is negligent. It is right that a master who is negligent should he answerable for his proper statutory responsibilities and indeed his contractual responsibilities. However, it is equally right that we should recognise that the ultimate responsibility must rest with the owner".—[Official Report, 26/11/87; Col. 747].

Our new subsection (5) provides that a master shall be guilty of an offence into matters now relisted and clearly laid out in subsection (6) of Amendment No. 25. It will be noted that to a great extent these are in line with those set out in subsection (2) of Clause 29. The new subsection (7) sets out the penalties on the master if he is found guilty of an offence. Therefore, we are not in any way trying to avoid responsibilities being placed on the master if he is found guilty.

The new subsection (8) provides for grounds on which there could be a defence. These are additional to those in subsection (6) of the Bill. One of the items in our new subsection (6) refers to undermanning. Noble Lords may have noticed a report in the press only last week that one ferry company is cutting 900 jobs on its services from Dover. The seafarers unions have already reacted angrily to this news and have warned of the possible threat to safety by cutting crew levels. Therefore, even though the master is listed as having some responsibility for undermanning, eventually the responsibility must rest with the owner. That is why we are endeavouring to separate the responsibilities of the owner under Clause 29 and the responsibilities which are clearly those of the master. I beg to move.

The Deputy Speaker (Lord Nugent of Guildford)

My Lords, in putting Amendment No. 22 combined with Amendments Nos. 24 and 25, I should explain that Amendment No. 25 pre-empts Amendment No. 26. Therefore, if these three amendments are accepted I cannot call Amendment No. 26.

Lord Mottistone

My Lords, there were amendments not dissimilar to these moved in Committee. The one matter that worries me about them is that I believe they diminish the authority of the master. It is very important that one should be in no doubt—and I am sure that the masters are not in any doubt—that masters always have a duty not to let their ships be in an unsafe condition. It seems to me that, in trying to water this down in the way which has been done with these three amendments, one is in effect diminishing the authority of the master and his sense of responsibility for his task; that is, to take a ship to sea in a seaworthy condition. The degree to which he is personally able to check each and every point is not of tremendous importance because if a case arises the particular qualifications of masters are well known and would be taken into account by a court in relation to these particular items which are currently listed in subsection (2) in greater detail than they are in the new subsection (5). On the whole, it is better that this clause should not be mucked about with.

There is another factor; namely, that the owner and the master are split and the penalties are different. It does not seem to me to be reasonable that the owner should be left with a potential prison sentence and the master should be free from that, because there must be circumstances in which a prison sentence would be suitable for a master. As I argued in Committee, in the navy captains of ships are liable to prison sentences when court-martialled, if appropriate. Therefore, it does not seem to me to be unreasonable that this ultimate method of punishment should be available for all captains who take ships to sea. I suggest to your Lordships that these amendments are not helping the position of the masters but are in fact diminishing their authority and in that sense are making matters worse. I hope your Lordships will not accept these amendments.

Viscount Simon

My Lords, before the noble Lord, Lord Underhill, eventually answers this short debate, I wonder whether he or the Minister will help me on one matter which I raised in Committee but to which I have received no reply. Amendment No. 25 states: It shall be a defence in proceedings for an offence under the section to prove that at the time of the alleged offence, and so on. Does "defence in proceedings" mean that proceedings must be taken; that is, that somebody, owner or master, or whoever, has to be prosecuted and then appears in court and produces a defence? What we require is, if he has taken the necessary steps, proceedings would not then be brought. However, I am not sure. This is purely a question of drafting—whether the drafting says that if he has an answer to proceedings he can only produce the answer if there are proceedings to answer.

Lord Greenway

My Lords, I go back to what the noble Lord, Lord Strathcona, said about a master who has just taken over a ship. I cite an instance 1 read about only last week. A British master who, through no fault of his own, had lost his job with a reputable English shipping company was offered a job as a master of, I think I am right in saying, a Panamanian vessel which he joined somewhere in the West Indies. He arrived on board to find that, in his opinion, the ship was totally unsuited for going to sea. He cabled the owners of the ship to that effect and received a very rude answer. He went on to say that in his opinion the ship should immediately be surveyed. The net result was that, after some argument, he lost his job.

I agree in some ways with what the noble Lord, Lord Mottistone, said. But I believe that under the wording of this amendment it would not be right under such circumstances for that master to be held liable in any way. He had, in my opinion, done everything reasonable to see that the ship should not go to sea, though he was not at all responsible for the state of the ship.

Lord Harmar-Nicholls

My Lords, common sense dictates that this must be a joint responsibility. I do not believe that one can separate ownership and the master. If a juggernaut on the road has no proper brakes or is in a bad condition both the owner and the driver have joint responsibility when they face prosecution in court and are dealt with.

Further to the point made by my noble friend Lord Mottistone, in addition to lowering the status of the master, I believe it would also give him an excuse. The example just given sounds, on the face of it, very sad, but at the end of the day we want the ships to be safe when they are plying the high seas. If the master does his best but does not succeed, and as a consequence of his efforts gets the sack, that is sad for him but we will have achieved what we want; that is, whatever unfairnesses may have been present during the incident an unsafe ship will have been prevented from going to sea if the master refuses to sail and risks being dismissed. Taken as a whole, it seems to me that common sense would show that this has got to remain a joint responsibility where both the master and the owner know that they sink or swim together whether it is by default, by carelessness or through the lack of courage to go right to the end and allow an unfit ship to go to sea.

4 p.m.

Baroness Phillips

My Lords, I am afraid the noble Lord has not chosen a very good example. Originally, as those of us who are magistrates know, the driver had to be brought to court and the owner did not. Therefore we had to introduce special legislation. You can never assume. The noble Lord uses the example of common sense. We all know that the law is not common sense. It all has to be spelt out in black and white. You cannot assume anything. I think that his example shows that he is actually in favour of the amendment.

Lord Harmar-Nicholls

My Lords, I should like to say to the noble Baroness before she sits down that I too am a magistrate. I have discovered that never, when the case is put on the list in court initially, do you have the owners only. Whether or not you take into account special circumstances—and you mitigate what you do with the driver—initially they are jointly responsible and have to justify that separation in court.

Lord Brabazon of Tara

My Lords, as my noble friend Lord Mottistone said, these amendments are indeed very similar in effect to the new clause which the noble Lord, Lord Underhill, moved in Committee. If I recall correctly, that was defeated and the Committee came down overwhelmingly in favour of keeping the responsibilities of the master, as in the Bill.

These amendments would in fact lessen the responsibilities of the master in respect of an unfit ship and decrease the maximum penalties to which he is exposed. The present amendments, if I may say so, are easier to follow than the ones that were considered in Committee. I believe, however, that the clearer presentation serves to bring out certain inconsistencies all the more obviously.

Subsection (6) of Amendment No. 25 excludes certain grounds of unfitness to go to sea from being the responsibility of the master. It is, however, very difficult to see why the amendment accepts that the master should be responsible for the condition of the hull of the ship, machinery or equipment, yet would make him not responsible for conditions of parts of those things or for the unsuitability for its purpose.

The fact is that, first of all, it is quite impossible to draw a rigid line between those matters that the master can reasonably be expected to be able to influence and those that he cannot. There is a full spectrum of possibilities in subsection (2), paragraphs (a) to (d), running from overloading or undermanning, which may be a consequence of a personal decision by the master and, at the other end of the scale, the hidden unserviceability of a small item of equipment that is nevertheless important to the safety of the ship.

This is a judgment that I believe the courts must be left to make in each particular case. Any attempt to do it in the Bill is doomed to failure. There certainly are cases of "unsuitability for its purpose" of which a master could be expected to be aware and for which he should be held responsible.

The noble Viscount, Lord Simon, asked whether if the defence says it shall be a defence proceedings would be taken. My understanding is that proceedings would not be brought because it is not the practice of the prosecuting authorities to bring charges to which there is a good defence.

Secondly, I would remind the House, as I explained in connection with the last pair of amendments, that this clause, like Section 44 of the 1979 Act which came before it, is intended to prevent the master putting to sea with an unsafe ship. It is not necessary for the master to have been personally responsible for installing an unsatisfactory piece of equipment for it to be wrong for him to go to sea with it. Thus subsection (2) needs to contain all those matters which make the ship unfit and which the master could conceivably know about.

There is then the question of penalties for the master. The penalty of £50,000 is a maximum and a magistrates' court could be expected to apply it only for the most flagrant abuses. In practice, they are unlikely to apply it to an individual at all except when they know that the master is in effect facing the charge on behalf of his company, which may be beyond our law.

I think I must mention in passing that detention of foreign ships, while it is always possible if a ship is unfit, is not at all as effective as a penalty. If a ship is overloaded, for instance, you can detain it for only so long as it takes to remove the excess load: that is not much of a deterrent.

Nonetheless, for grossly irresponsible violation the Government believe that very large fines and imprisonment are appropriate and that the maximum should stay as it is in the Bill. It is by no means unique in shipping law: there are similar maxima for overcarriage of passengers, for pollution offences and for certain violations of the collision regulations.

The noble Lord, Lord Underhill, referred specifically to the proposed cuts by a ferry company—one of the cross-Channel ferry companies. As I understand it, these cuts do not affect the number of persons making up the crews but the number of crews needed to man each ship continuously. It is the number of men making up the crew that determines safety. I can assure the noble Lord that as always the department will be making sure that those ships are within our statutory minimum manning levels.

My noble friend Lord Mottistone felt that these proposals in the amendment would, if anything, diminish the responsibility of the master. I am hound to say that I tend to agree with my noble friend. In fact I take the point that the noble Lord, Lord Greenway, made about the master taking over a Panamanian registered ship—although I do not think the noble Lord said whether it was within our waters or elsewhere—but I believe that the proposals in the Bill as they stand strengthen the authority of the master in those circumstances. If it had been a UK ship that he had been asked to take over, or indeed a Panamanian ship in our ports, he would have very good justification for doing what he did and a very good defence to the company if' they tried to discipline him for so doing.

In summary, the Government feel that the provisions of the Bill as it stands are fully justified. Therefore I hope that the House will agree with me should the noble Lord decide to press this amendment to a Division once again.

Lord Underhill

My Lords, there is a distinct difference between what is being proposed this time and what was proposed at the Committee stage although the one common factor is an endeavour to separate the responsibilities of the owner—"the owner" covers the charterer, the management company and so on—and those of the master.

However, if your Lordships will look very carefully at the points under our new subsection (6) of Clause 29, there are reasonable differences for which a master cannot be ultimately responsible. The owner must be responsible for those matters which have been left out. That is why we believe that there ought to be certain responsibilities clearly defined on the owner and certain responsibilities clearly laid upon the master. As I mentioned by quoting from my noble friend Lord Murray of Epping Forest, we have no desire at all to minimise the responsibility of the master if he is guilty of an offence.

I noted what the Minister said about crew numbers being cut by a certain ferry company. I feel that that is not a matter for this Bill—although he mentioned this in connection with the question of undermanning. But if a company finds it appropriate, and it admits that it is on the grounds of economy, to cut 900 staff out of a total of 2,900 officers and ratings, there must either be a terrific improvement taking place in the company—the press report is wrong—or there was gross inefficiency somewhere, because one-third of the officers and ratings are being cut out. Naturally I am glad that the Minister has emphasised the fact that the department will be watching very carefully to ensure that there is no question of lack of safety arising.

The noble Viscount, Lord Simon, referred to proceedings being taken. If he looks carefully at subsection (5) of Clause 29, he will find that I have used exactly the same words in our new subsection (8), save that we now have reference to "subsections (2) or (6)" and not to subsection (2). That is because subsection (5) commences: It shall be a defence in proceedings for an offence under this section". It applies to the first half of the section dealing with the responsibilities of the owner and the second part of the section dealing with the responsibilities of the master. That defence will therefore be common to the owner and to the master. That is the reason for bringing it in.

The noble Lord, Lord Harmar-Nicholls, as a driver, will appreciate that there is the devil of a difference between finding out whether your car brakes are wrong—that can be found out as soon as one goes the first two yards in a car—and the complicated position of a ship. While it may be a good debating point, it is hardly one appropriate to this argument.

I am grateful to the Minister for what he has said. We still believe that the master's position must be made clear. He has responsibilities which he must exercise and liabilities which will fall upon him if he is guilty of an offence. We want the owner's responsibilities to be clearly defined and to be made clear if he is to be guilty of any offences.

As I think is general knowledge, on some of these matters we are advised by NUMAST, the officers' union, which is a most responsible organisation. I can assure the House that it is still concerned about the position and will study carefully what the Minister has said to see whether we need to bring this matter back in some form on Third Reading. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 23: Page 22, line 12, leave out paragraph (d).

The noble Lord said: My Lords, the amendment is similar to one that I tabled in Committee. My noble friend the Minister said that he did not think the deletion of subsection (2)(d) would have a catastrophic effect on the Bill. He then went on to argue that it should stay in. He said that the subsection caught everything else that might render the ship unfit to go to sea without serious danger to life. He continued: That is no more sweeping in its effect than it should be".—[official Report, 26/11/87; col. 757.]

As I said in Committee and will repeat now, I think that the provision is much more sweeping than it should be. The clause contains a type of safety net for the Government, the Minister and the officials of the Department of Transport. If we put this provision into the Bill, what happens in the future does not matter. Something may arise with regard to the safety of a ship that no one can contemplate at the moment, but it will be covered by subsection (2)(d). That is going too far. With the greatest respect to my noble friend, I think that the subsection is sloppy. It is frightfully easy to include "etc," in a sentence. Everyone then assumes that it covers everything, but it is a sloppy way to cover the point.

If one wants to ensure that the safety regulations contained in this clause are dealt with properly, it is beholden upon the Minister and his advisers to think out to the best of their ability (referring no doubt to earlier legislation) the types of situations that it is reasonable to include in the Bill. People will then know where they stand. They are not threatened by some unforseen event. What is more, it makes the Bill much stronger. If everything is contained in it, the owners and the masters about whom we are talking in this clause will have to take the trouble properly to identify the particular areas that are spelt out. If a loose phrase such as "any other matter relevant" is used, how can they know what they are supposed to do? I should have thought that it is bad law, quite apart from being unsuitable for this clause in this Bill.

I hope that my noble friend will come back to what he said before—that he does not think the deletion of this paragraph would have a catastrophic effect on the Bill. That must mean that he reasonably thinks that it could be removed. At a later stage he might like to have another look at the other provisions and tighten them up. I should not object to that. This particular provision offends against all sense of natural justice. I hope that your Lordships will support the amendment. I beg to move.

4.15 p.m.

The Earl of Inchcape

My Lords, I support the amendment moved by my noble friend Lord Mottistone. As he said, this clause will form part of the criminal law, and so it is important that those at risk should know precisely what matters they are liable for. Subsection (2), paragraphs (a), (b) and (c), are already comprehensive in scope. Subsection (2)(d) would merely give a Secretary of State or the Director of Public Prosecutions a catch-all or, as my noble friend said, a safety net, that they could use with the benefit of hindsight to cover circumstances that no one now believes should be the subject of criminal prosecution.

Lord Carmichael of Kelvingrove

My Lords, the case put by the noble Lord, Lord Mottistone, is a strong one. We have added our names to the amendment. On a couple of occasions the Minister has said that the deletion of the subsection would not materially affect the Bill. When he sees that there is fairly strong feeling among those who are concerned about the Bill that the provision should be deleted, I hope that he will give it serious consideration. It is always possible to have 20/20 vision after something has happened and realise that something should have been done. This provision plays with an important part of the criminal law.

It strikes me as inconsistent that the Minister should insist on this catch-all phrase when much earlier—I am not harping back—we wanted to give the Secretary of State power to decide whether to impose a condition or make a general refusal in the national interest. There is a similarity in the position. 1 hope that the Minister will see the inconsistency and will therefore take out the subsection.

Viscount Simon

My Lords, I do not want to find myself in a minority of one, but there is a great deal to be said for having some kind of overall figure; after all, the drafting might not be perfect. I shall give an obvious example. Subsection (2)(a) refers to the condition of the ship's hull, its machinery or its equipment. Does that include the absence of equipment that should be there?

As time goes on we might find that there are other matters which give rise to dangers. I do not think that they will arise in the middle of the night. They will be discovered by experience. Over the years we might find that the IMO produces some new theories about what should be done. Do we then have to amend the Bill to make them effective? The provision has been called a catch-all, but I think it is more a safety net, which is just what we want.

Lord Geddes

My Lords, at the grave risk of putting the noble Viscount, Lord Simon, into that minority of one, I should like to support the amendment on the grounds put by my noble friend Lord Mottistone. As he said, subsection (2)(d) is enormously wide and all-embracing. It is not defined anywhere If it stays in the Bill, the matter will be defined by hindsight. That makes it almost impossible for the owner or the master to know what it is that he has done wrong until after the event. The case that the noble Viscount, Lord Simon, produced is, with respect, covered under Clause 30(1). If there was a lack of a piece of equipment—I think that this was the noble Viscount's point—which affected the safety of the ship, that in my opinion would ensure that the ship was not operated in a safe manner. To include a phrase as sweeping as or any other matter relevant to the safety of the ship", is to go too far. I support the amendment.

Lord Brabazon of Tara

My Lords, the noble Viscount, Lord Simon, is not in a minority of one. because 1 too wish paragraph (d) to remain in the Bill.

When the debate took place in Committee I promised to consider the matter further. We have given consideration to it and have looked at the point in great detail. I now confirm that the purpose of the provision is to cover possible reasons for a ship being unfit other than those listed in paragraphs (a) to (c). It is in the Government's view necessary. The object, as I have previously explained, is to cover matters that do not warrant specific mention and to cater for the unforeseen.

In fact, the Government believe that the greatest value of the provision will be to ensure that the courts do not include matters that appear to be related to paragraphs (a) to (c) by giving too narrow an interpretation to those provisions. For example, "improper loading" under subsection (2) might be judged by a court not to include the stowage of dangerous cargoes which need to be segregated, stowed and carried according to strict regulations. A vessel with choked bilges which was therefore unable to keep water pumped out might be considered not to be caught by subsection (2)(a) if a court judged that the condition of the ship referred to was the state of the actual fabric of the ship and its machinery. Another example is that the inability to use safety equipment because of unsatisfactory stowage or cargo on a ro-ro ship might not be caught by "unsafe loading".

Finally, there is the possibility of inadequately qualified crews. In the United Kingdom the qualifications of crews are generally linked to statutory manning levels so that underqualified crew members would not count towards the statutory crew levels, but this is not always the case with foreign flag vessels. Even in the UK different endorsements are required for specialised ships that are in fact outside the statutory manning criteria.

The Government do not deny their responsibility for setting out in statutory instruments, merchant shipping notices, and so on, the specific matters crucial to the safety of a ship to which owners and operators should attend. The Government believe that we need not only specific requirements but general requirements to deal with what cannot be foreseen but which to a court are obviously matters that should have been seen to.

I hope that this goes some way towards meeting the concern of noble Lords who have proposed and supported the amendment that the provision may not be necessary. The Government strongly believe that it is. I also remind the House of the point I made in committee that the effect of the provision is simply to give the words "unfit to go to sea" their full natural meaning. It is surely not unreasonable that if a ship is, in the words of subsection (1), not fit to go to sea without serious danger to human life", that should be an offence. I hope that noble Lords, in view of the consideration that we have given the matter since Committee and my explanation, will agree that this is a useful provision to keep in the Bill.

Lord Strathcona and Mount Royal

My Lords, I had intended to support the amendment, but thought that I should wait to hear what the Minister said. I have to say that I found it disappointing on principle and from a practical point of view.

On principle we are right to be nervous about expressions which mean that the draughtsmen of the Bill and the Government are saying, "Anything that I have not thought of I will do later if I think about it then". That must a be a poor principle of legislation. If one once embarks on having subsection (2) at all, surely one has to make it exhaustive. There may well be a good case for saying that one does not prejudge the issues as regards safety considerations. If the word "relevant" is then introduced, it seems to me that no explanation is given of who is to be the judge of whether it is relevant.

One fully understands the point made by the noble Viscount, Lord Simon, and by the Minister, that situations change. That we accept. One should have thought that most of the points mentioned by the Minister are covered in Clause 30(1). If that is not true, would it not be worth considering an amendment to give the Minister the right to introduce new cases by the positive procedure, subject to the approval of both Houses of Parliament? This means that he does not have to bring in legislation but he can cite new examples when and if they arise without arrogating to himself the right to produce anything out of the air at any time in future when it occurs to him.

I strongly support the amendment unless the Minister tells us that he can think of a more satisfactory legislative way of achieving what he wants.

Lord Brabazon of Tara

My Lords, with the leave of the House, I think that I have responded to that point. We believe that this is the best way of achieving what we want. If my noble friend reads with care the explanation that I have given he may be persuaded that we are right.

Lord Mottistone

My Lords, I thank my noble friend Lord Strathcona and Mount Royal because his solution had occurred to me too; that is, that Clause 29(2)(d) should read to the effect: any other matter relevant to the safety of the ship as specified in an order made by the Secretary of State". That may be the answer. I believe that it is the right way to go about it. I shall withdraw the amendment and bring in an amendment on those lines on Third Reading. I do it that way because it is my understanding that if one takes an amendment of this nature to a Division and loses it, it is unsporting, if not against the rules, to bring it back at a later stage. For that reason, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 24 and 25 not moved.]

4.30 p.m.

Lord Mottistone moved Amendment No. 26: Page 22. line 28, at end insert (; or (c) in relation to an offence alleged to have been committed by the owner or the demise charterer of the ship, responsibility for its operation had by agreement been placed in the hands of another person and that the defendant was not aware and could not reasonably have been aware that agreement had not been complied with in respect of the matters falling within subsection (2) which are specified in the charge (or. in Scotland, which are libelled in the complaint, petition or indictment).")

The noble Lord said: My Lords, this amendment is linked with Amendments Nos. 27 and 28. I should not have chosen such a grouping, but it has been done. No doubt my noble friend the Minister would wish me to speak to all three amendments. Taking Amendments Nos. 27 and 28 first, I welcome my noble friend's Amendment No. 27. Amendment No. 28 in my name seeks to achieve the same result. However, I think that the Minister's amendment is better so I welcome it and shall not move Amendment No. 28.

Amendment No. 26 provides a defence to an owner or demise charterer who has placed the operation of his ship in the hands of a manager or a sub-charterer and who is not aware and could not reasonably have been aware that that person was not fulfilling the terms of the management agreement or charter by letting the ship fall into a serious substandard condition. Unless a defence of the nature of the amendment can be included, the clause could be very unfair to an owner or a principal demise charterer.

Although subsection (4) extends liability to managers and charterers in addition to owners and masters, it is no consolation to the owner to end up in the dock along with those who are really responsible. The court would have no option but to convict him on the clause as it now stands without my amendment and it would be totally uncertain whether his personal act of responsibility would be recognised by a conditional discharge. The stigma of conviction would remain. It seems therefore that this amendment will not weaken the Bill but will, in the area I have described, make it more fair to the person involved. I hope that my noble friend will be able to give a fair consideration to Amendment No. 26. I beg to move.

The Earl of Inchcape

My Lords, I should like to support this amendment. The shipping industry does not seek to avoid proper responsibility for dangerously unseaworthy ships. But is seems right that liability for the severe penalties provided by the clause should only fall on those who are responsible; that is those who have failed to discharge their obligations and who are aware of it. Shipowners frequently enter into demise charters or management agreements which place the entire operational responsibility on the charterer or ship manager. If the owner knows that those responsibilities have not been properly discharged, he must ensure that the ship is made safe. Often he cannot know because the ship is physically far away. Overloading or undermanning can happen on just one voyage with disastrous consequences.

In contrast, the master always knows the condition of his ship. Unless a proper defence provision can be included in the clause, not only will it be demonstrably unfair but it will actively discourage United Kingdom registration, the use of British management companies and the use of British banks to finance ship purchases by the demise charter method. I strongly support the amendment of my noble friend Lord Mottistone.

Lord Brabazon of Tara

My Lords, I am grateful to my noble friend for moving the amendment. We recognise that the provisions made in respect of the manager by Government amendment at Committee stage are not yet wholly satisfactory, and we have been trying to develop a solution with the assistance of parliamentary counsel as quickly as possible.

In relation to both clauses there is an omission. Ship owning and operating these days is a complex world, and the extension of these clauses to include ships' managers certainly does not go far enough. When a ship is the subject of a demise charter, otherwise known as a bareboat charter, the charterer will commonly assume all, or nearly all, the responsibilities of the owner. If he manages the ship, he will be caught by Clause 29(4) and Clause 30(4) as they now stand, and all will be well. But if he passes the management to a management company he will not be caught—and he should be. Clearly these subsections need to be expanded to refer, in appropriate terms, to demise charterers.

The other point raised by my noble friend is whether, when there is a management agreement, the parties to that agreement ought to be able to cite that agreement in their own defence. That seems a reasonable proposition and the basic idea is expressed well in my noble friend's Amendment No. 26. However, it may not have escaped your Lordships' attention that while that amendment relieves a defendant of responsibility in particular circumstances, it does not actually transfer the responsibility to anyone else. My noble friend indicated that this was a probing amendment. However, the Government believe that it is desirable that when an offence is created by the fault of the master, somebody in the management chain, be he the owner, manager or anybody else, ought to be vicariously responsible for the master's default. The preparation of an amendment to Clause 29 which meets these concerns is not simple, but we will make every effort to bring forward a satisfactory proposal during the later stages of the passage of the Bill through Parliament.

Clause 30 is much more straightforward. As I explained at Committee stage, the effect of subsection (4) is to make the owner responsible for the steps that it is reasonable for him to take, and the manager responsible for the steps that it is reasonable for him to take, to ensure the safe operation of the ship. I understand that that result is satisfactory to shipowners who are concerned that an owner who carefully appoints a competent manager will not be held liable if that manager unexpectedly fails to perform functions which he has undertaken as manager to perform.

Government Amendment No. 27 puts it beyond all doubt that that is now the meaning of subsection (4). We shall bring forward later a further amendment to include demise charterers, if we conclude that that is necessary. I hope that my noble friend will be satisfied with what I have said. I promise that we are still looking at this matter.

Lord Mottistone

My Lords, I am indeed grateful to my noble friend for all that he has said both in relation to Amendment No. 26 and to demise charterers in connection with Clause 30. I have no doubt that if it is that difficult, we may not be sure of seeing an amendment at Third Reading, though I very much hope that we do. If not, I hope that the other place will deal with it properly. At this stage I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 [Owner liable for unsafe operation of ship]:

Lord Brabazon of Tara moved Amendment No. 27: Page 23, line 25, at end insert (", and accordingly the reference in subsection (1) to the taking of all reasonable steps shall, in relation to either the owner or that person, be construed as a reference to the taking of all such steps as it is reasonable for him to take in the circumstances of the case.").

On Question, amendment agreed to.

[Amendment No. 28 not moved.]

Clause 31 [Conduct endangering ships, structures or individuals]:

Lord Underhill moved Amendment No. 29: Page 24, leave out lines 3 to 6.

The noble Lord said: My Lords, this amendment relates to Section 27 of the Merchant Shipping Act 1970 dealing with misconduct endangering a ship or persons on board. Clause 31(1), as is made clear by the Notes on Clauses, brings in foreign ships and includes a ship in a UK port or proceeding to such port. But then there are words excluding certain circumstances, unless the ship would not be in that port, or (as the case may be) would not be so proceeding, but for weather conditions or any other unavoidable circumstances". I refer to lines 3 to 6 on page 24. The amendment proposes to delete those four lines. The point of the amendment is that should a ship, in the circumstances set out in the Bill, endanger life, other ships or structures, then it is unreasonable to exclude such ships from the provisions of the clause. It will be recalled that in Committee there was a group consisting of a considerable number of amendments to Clause 31. But no amendment dealt specifically with this matter. Therefore, this is partly in the form of a probing amendment to ascertain the Minister's comments. It seems to us a reasonable amendment and on the Minister's reply will depend whether we come forward with a further amendment at a later stage. I beg to move.

Lord Brabazon of Tara

My Lords, the four lines which it is proposed by this amendment to delete have in fact been a common feature of shipping legislation for many years. The House may be interested to know that the Merchant Shipping Act 1906, which introduced the possibility of detention of of foreign ships that were unfit when in British ports included a specific saving for ships that were coming into our ports under stress of weather, etc. More recently, such a provision is incorporated in the safety of life at sea conventions, such as that one may not enforce the internationally agreed SOLAS standards upon ships that are in one's ports for such reasons.

There is also a body of unwritten international law which limits the extent to which one can require compliance with one's laws in respect of matters that affect only the ship and her crew, and that is the reason for the opening passage of subsection (7). Nonetheless, it would be a mistake to over-generalise. There are important distinctions between Clauses 29, 30 and 31 in this respect. Clause 29 deals particularly with the state of the ship, and it could be considered unreasonable for a foreign ship to fall foul of this provision simply because of the stress of the weather. But there is a defence in subsection (5)(b) which would cover that case, at least to the extent that it ought to be covered. Clause 30 contains a similar provision in subsection (2)(c) and there is a case for its retention because it refers, in effect, to the prior actions of an overseas management. To impose it on ships which had not expected to have to visit this country would have the flavour of a retrospective provision. However, the provision in Clause 31 deals with the way the crew conduct their ship once it has arrived in our waters, and there is no reason why it should be difficult for a crew to comply with our laws once they are here. Accordingly, after giving the matter proper consideration, the Government have decided that we can agree to the amendment.

Lord Underhill

My Lords, the House will understand my hesitancy in rising because I wanted to be certain that I had heard correctly. I am grateful to the Minister for explaining the position and for accepting the amendment.

On Question, amendment agreed to.

Lord Underhill moved Amendment No. 30: Page 24, line 40, leave out subsection (4).

The noble Lord said: My Lords, perhaps it would be convenient if, in addition to Amendment No. 30, I deal with Amendments Nos. 31, 33 and 36, which are in effect consequential on Amendment No. 30.

It will be recalled that in Committee a number of amendments to Clause 31 were debated in a group. One sought to delete subsection (4) of Clause 31. I have studied the debate on the amendment and the Minister's observations and have tabled the amendment again. My detailed comments on subsection (4) were set out in col. 762 of the Official Report and I shall not weary the House by repeating them. At col. 765 of the Official Report the Minister, in dealing with the amendment, referred to Section 27 of the Merchant Shipping Act 1970 and said that the proposal to leave out this subsection was a fundamental change. I should emphasise that both the National Union of Seamen and the officers' union NUMAST have told me that they have studied the debate and the Minister's comments with great care and both organisations are more than ever convinced that the subsection should be removed from the Bill.

The Minister claimed that the criminal law should apply to merchant seamen in cases where their actions or their failure to act leads to the death of persons, or to persons being seriously injured, or to the loss or destruction of the ships on which they are employed. That, I am advised, is not the real issue. The criminal law already applies, as is confirmed by Section 27 of the 1970 Act. It would seem that the issue is that the law is being refined and extended when there is no need for this to be the case. Section 27(1) of the 1970 Act refers to any act: which causes or is likely to cause the loss or destruction of or serious damage to the ship or the death of or serious injury to a person on board the ship". Will the Minister kindly explain how this section differs in substance from what is proposed in subsection (4)(a) of Clause 31?

We seek to remove subsection (4). This refers to a seaman who, discharges any of his duties, or performs any other function in relation to the operation of his ship". with a consequent loss of life or of the ship and so on. What is the difference between "does any act" in Section 27 of the 1970 Act and the discharge of a duty or function as set out in subsection (4)?

There is the same difficulty when we look at the acts of omission. Section 27(1)(b) of the 1970 Act concerns a seaman who omits to do anything to preserve life or to save a ship. I should point out that that is merely shorthand for what is set out in 18 lines of subsection (1)(b). The subsection we are seeking to remove uses much the same language. There is reference to a seaman who, fails to discharge any of his duties, or to perform any such function". The Bill goes on to explain the disastrous consequences that could arise from that. Once again there seems to be little difference in the two sets of words.

The reason for subsection (4) which we seek to delete appears to be questionable as Section 27(1) of the 1970 Act goes on to say that the act or omission must be deliberate or must amount to a breach or neglect of duty or that the accused seaman must be under the influence of drink or drugs at the time the offence was committed. In other words Section 27(1) of the 1970 Act is a comprehensive and all-embracing piece of legislation. There would appear to be absolutely no need to amend it in the context of subsection (4) of this new clause.

Is it not the case that the contingencies for which cover is now being sought have been covered since the 1970 Act? The question of penalties is not in dispute. These are in line with those of the Health and Safety at Work Act 1974. This point was confirmed by the Minister at Committee stage. Why now is there a necessity for this new subsection (4)? The Government, we believe, having read the debate again, have not made a sound case for its introduction. Will the Minister kindly explain the reason? Is the law deficient or unsatisfactory and has this made necessary the refinement and extension of the law by the inclusion of subsection (4)? We seek to delete that. I beg to move.

4.45 p.m.

The Deputy Speaker (Lord Nugent of Guildford)

My Lords, before I propose the amendment to the House, I should explain that Amendment No. 31, which is included in this batch, pre-empts Amendment No. 32 and if it is passed I shall not be able to call Amendment No. 32. Furthermore, Amendment No. 33, which is in this group, pre-empts Amendment No. 34, so I should not be able to call that either.

Lord Brabazon of Tara

My Lords, these amendments would, as the noble Lord, Lord Underhill, has explained, delete the new subsection (4) from this clause. In Committee I explained the reason behind this important subsection but I think it is important that I should now do so for the benefit of the House as a whole.

This subsection owes a good deal to the conclusions of the formal investigation into the loss of the "Herald of Free Enterprise". The court investigating that loss expressed the clear view that no statutory offence was committed on that occasion. 1 explained in Committee that, while it would not have been right for me to elaborate at length on that conclusion while the Director of Public Prosecutions was still considering the papers from the coroner's inquest, the Government viewed the present state of the law as unsatisfactory. In short, if members of a ship's crew operate a ship in a way that endangers the ship and its passengers, that should, subject to proper defences, be an offence.

Noble Lords who were present in Committee will recall that Section 27 of the Merchant Shipping Act 1970 as it now stands contains only that offence which in the new clause is set out, now somewhat modified, in subsection (2). The basic limitation on the offence created in that subsection is the conditions imposed by subsection (3), especially subsection (3)(a). The consequence of subsection (3) is that subsection (2) covers acts and omissions that are deliberate or amount to a breach or a neglect of duty. Accordingly, Section 27 has, been regarded by the courts as dealing with offences of a disciplinary character, including malicious acts, that may have nothing to do with a seaman's duty and also allowing prosecutions under primary legislation for acts and omissions that constitute breaches of regulations.

To fill the gap, the Government have prepared the new subsections (4) and (6), which, together with the definition of the duties of the master in subsection (8), form a package. Subsections (4) and (6)(b) taken together introduce a new requirement that crew members exercise due diligence in the carrying out of their duties in so far as they may affect the safety of the ship and its passengers.

I cannot see that this is an unreasonable requirement. Subsection (6) provides certain other defences of unforeseeability and unavoidability which also apply to the existing disciplinary offences in subsection (2) and have been sought by the seamens' unions for some years. There is one further point to which I would draw the attention of the House in connection with this clause; namely, that there is no possibility of imprisonment on summary conviction and that the maximum penalty is the scale maximum of £2,000, which I think is appropriate.

The noble Lord, Lord Underhill, asked me the difference between subsections (2) and (4). Subsection (2) in covering acts, etc., that are deliberate covers all manner of malicious acts or omissions which may have nothing at all to do with the seaman's duty. Subsection (4), however, deals not merely with whether things are done but how the seaman's duty is done. The Government believe that this subsection is reasonable and that it fills a glaring and extremely unsatisfactory gap in Section 27 as it stands at present, which is essentially disciplinary in nature. The Government consider the state of the law in this area to be far from satisfactory. For these reasons, I am afraid that we cannot agree to this group of amendments.

Lord Underhill

My Lords, 1 am grateful to the Minister for that reply. We are of course dealing with Clause 31, and the Minister referred to the consequences of a person being found guilty of an offence. When I look at page 25 and subsection (5) I see: A person guilty of an offence under this section". That means the whole of the section, including subsection (4). I think my elementary education proves that. It goes on to say: on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both". I believe I heard the Minister say that imprisonment was not a possible sentence under this subsection.

Lord Brabazon of Tara

My Lords, with leave, what I said was "not on summary conviction".

Lord Underhill

My Lords, I shall have to ask my noble and learned friends precisely what the difference is legally. I am glad we have had this debate. We have had it twice, but last time it was included in a big group. This time we have dealt with it on its own, and I am grateful to the Minister. I shall seek further advice on the matter. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

Lord Brabazon of Tara moved Amendment No. 32: Page 25, line 24, leave out ("the commission of") and insert ("committing").

The noble Lord said: My Lords, I beg to move Amendment No. 32, and I shall speak also to Amendment No. 34. The first of these amendments is purely a drafting amendment.

The Government bring forward the second amendment to deal, in part, with a point made by the noble Lord, Lord Underhill, at Committee stage. The House will recall that the noble Lord proposed an amendment providing that if a master or seaman had taken reasonable steps to discharge his duty, disciplinary action against him by his employer should be prohibited. In reply, I explained that the fact that a criminal offence had not been committed did not necessarily mean there was no disciplinary offence, and that such matters should be left to industrial tribunals whose very purpose is to resolve disputes between employers and employees. That remains the Government's position.

However, the noble Lord also referred to the fact that seamen were obliged to obey lawful commands, and that if such obedience subsequently led to an accident this could expose the seaman to charges of endangering his ship or the lives of its passengers. This is clearly an unsatisfactory situation, and it is not far-fetched. If, for example, a seaman were to inform the master that in his view a piece of equipment such as a cradle was unsafe and the master nevertheless ordered that repair be delayed, the seaman should clearly not be liable for the consequences.

The Government had thought that the seaman in such a case would have a valid defence under the existing subsection (6), but closer examination shows that he does not. Accordingly, the Government propose a further specific defence whose effect would be that an offence would not be committed if the defendant could only have avoided committing the offence by disobeying a lawful command. The intention of this amendment is to defend officers and seamen against unjust charges, and I hope it will meet with the approval of the House. I beg to move.

On Question, amendment agreed to.

[Amendment No. 33 not moved.]

Lord Brabazon of Tara moved Amendment No. 34: Page 25, line 27, after ("subsections") insert— ("(i) that he could have avoided committing the offence only by disobeying a lawful command, or (i)").

On Question, amendment agreed to.

Lord Underhill moved Amendment No. 35: Page 25, line 32, at end insert— ("(6A) In order that the master can fulfill his duty under subsection 8(b) the owner shall—

1. (a) ensure that the ship, machinery and equipment is suitable for its purpose and fully serviceable and maintained;
2. (b) ensure that the master is provided with a crew sufficient in number, experience and qualifications to carry out the safety and commercial functions of the ship;
3. (c) ensure that ship management and safety policies are clear and fully supportive of the master;
4. (d) ensure that shore management responsible for the commercial operation of the ship shall include a person of nautical background and qualification able to understand and act upon the advice and requests of the master in respect of all matters relating to onboard management and safety of operation of the ship.

(6B) A person guilty of an offence under subsection (6B) above shall be liable—

1. (a) on summary conviction, to a fine not exceeding the statutory maximum;
2. (b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.

(6C) Where any such ship is managed by a person other than its owner (whether on behalf of the owner or some other person or on his own behalf), any reference to the owner of the ship in subsection (6A) and (6B) above shall be construed as including a reference to that person.").

The noble Lord said: My Lords, we are still dealing with Clause 31, which is important. In moving Amendment No. 35, we are in effect setting out three new subsections which, in the amendment, are called (6A), (6B) and (6C). Subsection (6A) makes it clear that in order that the master can fulfil his duty under subsection (8)(b) the owner shall ensure four points for which the owner shall be responsible so that the master can properly carry out his duties. Once again, we are setting out clearly the position of the master but also what the owner shall do in order that the master can properly carry out his duties.

We say that it is unreasonable to place a duty on the master for good management and the safety of operation of his ship without ensuring that the owner or the manager, as the case may be, provides the ship, crew, policies, support and knowledge within shore management for the master to carry out his duty. If the master has been joined with the owner under Clause 29—which is the case—then it is only right that the owner should be joined with the master in respect of subsection (8)(b) of this clause.

In reference to the Bill, we show that subsection (8)(b) in this clause refers to, 'breach or neglect of duty'. except in relation to a master, includes any disobedience to a lawful command".

Then it sets out (a), and then (b): in relation to a master, includes his duty with respect to the good management of his ship and his duty with respect to the safety of operation of his ship, its machinery and equipment".

The Minister has said that regulations dealing with operational procedures will be forthcoming. These are held to be insufficient to cover all ships and all aspects of good management. If the master's obligations are set out in primary legislation, the owner must also be included in primary legislation as a follow-on to subsection (8)(b), which I have just read out to the House.

The department has issued various consultative documents following the "Herald of Free Enterprise" inquiry, and the officers' union, NUMAST, has sent me a copy of a detailed response, covering some five pages, which it has sent to Document No. 6, Operational Procedures. Noble Lords will be pleased to hear that I do not propose to read the five pages, but it is important that I should read a few extracts from the reply which NUMAST sent to the department.

Paragraph 2 says: Most UK ship operating companies have long established Company's Standing Orders. The real problem is the fact that such Orders are frequently used against masters and officers when such use is convenient to the company, but ignored by the company when it is commercially expedient to do so.

Then, with reference to paragraph 4 of the consulative document, NUMAST says: it is not sufficient to refer only to suggestions by masters being 'considered'. Suggestions, requests, and protests made by masters of that company were 'considered', they were refuted.

Paragraph 5 states: We are amazed that the Department should be concerned as to whether the proposed requirement might be a "burden" on the companies concerned. If the operators of such ships do not already have operating manuals as part of their long standing practice then they should not be in business". That is what is said by the officers' union, NUMAST, which is a very responsible body. The report covers five pages, but I do not propose to read them. I have given important quotations from the document.

Amendment No. 35 clearly sets out the responsibilities which must fall upon an owner if the master is properly to carry out his duties. There is then set out what should be the convictions, and subsection (6C) makes quite clear that: Where any such ship is managed by a person other than its owner (whether on behalf of the owner or some other person or on his own behalf), any reference to the owner…shall be construed as including a reference to that person.

I think that this amendment is important and I look forward to hearing the Minister's reply. I beg to move.

5 p.m.

Lord Mottistone

My Lords, it is interesting to hear the purpose behind the amendment, parts of which seem reasonable but parts of which are either unnecessary or go a little too far. As a whole, the subsection has the principal effect of placing in positive terms the duties of the owner for which he is penalised if he fails to discharge them. As he is governed by Clauses 29 and 30, I think that the amendment is redundant. However, parts of it may be suitable.

I should like to deal with the parts that I do not like. Subsection (6A)(d) suggests that: shore management responsible for the commercial operation of a ship shall include a person of nautical background". That is not unreasonable, and naturally almost every company has such expertise available. Indeed, it is arguable that to fail to have such expertise would put a ship operator at some peril of commiting an offence under Clauses 29 and 30. Therefore, one could argue that there is no need to include it in the Bill because it is a practical management action which shipping companies have found, from experience over many years, to be necessary. The shipping company of which I was a part, the Royal Navy, has done that all its life. Perhaps some people may say that there are far too many people in shore management. In respect to subsections (6A) and (6B) it is perhaps unreasonable to make failure the subject of severe criminal penalties. There is enough "penalty" within Clauses 29 and 30 to deal with the situation.

Finally, there is what one might call a "practical" objection to part of paragraph (b) which provides for: a crew sufficient … to carry out the safety and commercial functions of the ship". The success or otherwise of a commercial operation of a ship will be reflected in the financial welfare of the venture. While criminal law is correctly concerned with the safe operation of the ship, the commercial operation should be no concern of it. I think that that part of the amendment is at fault.

I hope that, as matters progress in favour of the amendment in other ways, the noble Lords opposite will feel able to take it away and amend it in substantial detail in order to deal with the points that I have just made.

Lord Brabazon of Tara

My Lords, this is an interesting amendment and contains much with which the Government agree. The Government fully accept that a sloppy and inefficient shipowner or ship's manager can make it very difficult for a master to carry out his duties safely. There are, however, now a range of defences open to the master under subsection (6) and the Government do not believe that failure of the owner would make the master unfairly guilty of an offence. Certainly a bad manager makes a captain's job more demanding, but if he nevertheless makes every effort to carry out his duties safely, he has a valid defence under subsection (6B). And indeed the proposed amendment does not in fact seek to create a new defence.

I come now to the proposed new duties upon the owner in the proposed new subsection (6A). I shall deal with them one by one. Paragraph (a), dealing with the condition of the ship and its machinery, is already dealt with in Clause 29(2)(a) where, incidentally, the penalties are already higher than in this proposed amendment. Paragraph (b) is covered by Clause 29(2)(b) and, in so far as there is doubt about whether crew qualifications are covered there, Clause 29(2)(d) helps to make that certain.

Paragraphs (c) and (d) are not covered by existing legislation. They are dealt with in Merchant Shipping Notice No. M1188, but that is purely advisory. However, in the light of the report of the formal investigation into the loss of the "Herald of Free Enterprise", the Department of Transport has recently issued a consultative document, No. 6, with a number of proposals in this area which it is intended, after consultation, to put in the form of a statutory instrument. A copy of that document was placed in the Library. I should bring two specific proposals in it to the attention of the House.

The first is that shipping companies shall be required to designate, in their shore management, a person with the appropriate experience to have responsibility for matters of operational safety. That is very close to paragraph (d) in the amendment. We shall look carefully at the proposal that such a person should have a specific duty to give proper consideration to advice and requests from masters, though I would imagine that that would inevitably be one of his duties.

The second relevant proposal in CD6 is that shore management should provide an operating manual to cover items and areas that the department will specify. That has something to do with item (c), and certainly I can assure the House that the department, in following through and administering these new proposals, will be watching carefully for a constructive relationship between shore management and ships' crews.

We shall study carefully the comments on the consultative document that have been put to us by NUMAST. We are grateful and it is important that we receive carefully considered comments on these proposals from the representatives of officers. We shall study them most carefully. I agree with the point made by noble friend Lord Mottistone that proposed subsection (6A)(b) imposes commercial duties, and I agree with my noble friend that that should not be the case.

In summary therefore the Government believe that the master is already properly protected in this clause against being convicted of an offence which was management's fault; and that the proposed new duties upon the owner are either already dealt with in the Bill or will shortly be covered in orders. On the basis of those assurances, I hope that the noble Lord will be able to withdraw this amendment.

Lord Underhill

My Lords, I am certain that this short debate has shown quite clearly that all noble Lords are concerned to do the utmost for the safety of shipping and shipping vessels, and to do anything that is practical and necessary arising from the inquiry into the "Herald of Free Enterprise".

I am grateful for the helpful comments of the noble Lord, Lord Mottistone, and also for the conciliatory attitude of the Minister, if I might use that word. This matter has not been before the House previously in Committee and the extracts which I read from the NUMAST comments on the Department's consultative document were dated only 7th December. This is the union's first shot at the matter and I am told that they are its initial comments. The Minister's comments will be helpful to it should it wish to proceed with further points. I believe that the exchange of views and the Minister's assurances to look at the matter with great care, particularly as regards regulations arising from the consultation, will be extremely helpful. We shall consult further with NUMAST; but, meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36 not moved]

Schedule 4 [Amendments relating to Liability and Compensation for Oil Pollution Damages]:

Lord Brabazon of Tara moved Amendment No. 37: Page 60, line 19, at end insert (", and whether it is of oil carried in a cargo tank or of oil carried in a bunker fuel tank").

The noble Lord said: I will with the leave of the House speak also to Amendment No. 38. They are minor drafting amendments intended to make it absolutely clear that oil pollution compensation arrangements apply to spillages of bunker oil as well as that of cargo. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 38: Page 66, line 43, after ("occur") insert (", and whether it is of oil carried in a cargo tank or of oil carried in a bunker fuel tank").

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 39: After Clause 35, insert the following new clause:

("Licensing of tidal works by harbour authorities.

.—(1) Where—

1. (a) it appears to the Secretary of State that any harbour authority have, by virtue of any statutory provision, power to license or otherwise regulate operations of any description falling within any of paragraphs (a) to (c) of section 34(1) of the Coast Protection Act 1949 ("the relevant power"), and
2. (b) he considers it appropriate to do so, he may make regulations providing for section 34 of that Act not to apply to operations of that description in relation to which the relevant power is exercisable and which are carried out within such area or areas falling within the jurisdiction of that harbour authority as may be specified in the regulations ("the prescribed operations"); and, if he does so, the relevant power shall be exercisable by the harbour authority, in relation to the prescribed operations, subject to and in accordance with the following provisions of this section.

(2) Regulations made by the Secretary of State under this section with respect to any harbour authority may make provision—

1. (a) in connection with the exercise by the authority of the relevant power in relation to the prescribed operations—
1. (i) for any matter for which provision is made by sections 34(2) to (4A) and 36 of the Coast Protection Act 1949, and
2. (ii) for any provision of the regulations made in pursuance of sub-paragraph (i) above or any of paragraphs (b) to (g) below to have effect in addition to or in substitution for any other statutory provision which (apart from the regulations) has effect in that connection:
2. (b) requiring the authority to advertise in such manner as may be specified in the regulations—
1. (i) any application made to them for the grant of a licence in the exercise of the relevant power, and
2. (ii) the grant of any such licence and any conditions subject to which it has been granted, and to give to the Secretary of State such notice of any of those matters as may be so specified;
3. (c) enabling representations to be made with respect to any such application in such manner as may be specified in the regulations;
4. (d) requiring the authority, when determining any such application, to have regard to any representations made in accordance with the regulations so far as touching on any consideration material to the authority's decision on the application;
5. (e) enabling an appeal to the Secretary of State to be brought, by such persons, on such grounds and in such manner as may be specified in the regulations, against—
1. (i) the grant or refusal of any such licence, or
2. (ii) any conditions imposed on the grant of any such licence;
6. (f) for the operation of any such licence to be suspended during the period during which such an appeal may be brought and, if such an appeal is brought by a person other than the applicant, until such time (if any) as the authority's decision on the application is affirmed by the Secretary of State;
7. (g) authorising the Secretary of State on such an appeal to do any of the things mentioned in subsection (6)(a) to (c) below;
8. (h) for any statutory provision having effect in relation to the authority to have effect subject to such modifications as appear to the Secretary of State to be necessary or expedient—
1. (i) for the purpose of making provision for any matter for which provision may be made by virtue of any of paragraphs (a) to (g) above, or
2. (ii) in consequence of any provision of the regulations made in pursuance of any of those paragraphs.

(3) Where—

1. (a) any regulations under this section are in force in relation to a harbour authority, and
2. (b) the authority have determined an application made to them. for the grant of a licence in the exercise of the relevant power, and
3. (c) no appeal has been brought under the regulations in respect of their determination of the application, but
477
4. (d) the Secretary of State considers that it would be appropriate in the interests of safety of navigation for the application to be redetermined by him,

the Secretary of State may, within the period of 30 days beginning with the date of the authority's determination, serve a notice on the authority requiring them to furnish him with written particulars of their determination, and with any documents in their possession relating to the application, in order that he may redetermine the application.

(4) Where the Secretary of State serves a notice under subsection (3) in respect of any application—

1. (a) the Secretary of State shall serve a copy of that notice on the applicant and shall, in such manner as he thinks fit, advertise the fact that the application is to be redetermined by him; and
2. (b) the operation of any licence granted by the authority in pursuance of the application shall be suspended until such time (if any) as the authority's decision to grant the licence is affirmed by the Secretary of State under subsection (6).

(5) The Secretary of State shall, when redetermining any application, have regard to any representations made to him by persons appearing to him to be likely to be affected by the operation to which the application relates where those representations have been made to him within the period of 60 days beginning with the date (or, as the case may be, the latest date) of (he publication of any advertisement published in pursuance of subsection (4)(a).

(6) Where the Secretary of State redetermines an application, he may (according to the circumstances of the case)—

1. (a) direct the harbour authority to grant either—
1. (i) a licence free from conditions, or
2. (ii) a licence subject to such conditions as are specified in the direction, as he thinks fit:
2. (b) direct the habour authority to cancel any licence granted by them in pursuance of the application; or
3. (c) affirm the harbour authority's determination of the application.

(7) Any direction given by the Secretary of State under subsection (6)(a) shall he a direction requiring the authority in question to grant such a licence as is mentioned in sub-paragraph (i) or (ii) of that provision either—

1. (a) in the form in which it was originally applied for by the applicant, or
2. (b) in that form but subject to such modifications as are specified in the direction.

as the Secretary of State thinks fit; but where the Secretary of State proposes to specify any modifications under paragraph (h) above which appear to him to be capable of resulting in any substantial interference with navigation—

1. (i) he shall take such steps as appear to him to be reasonably practicable for informing persons likely to be concerned, and
2. (ii) shall not so specify those modifications unless there has elapsed such period for consideration of, and comment upon, them as he thinks reasonable.

(8) The power of the Secretary of State to make any regulations under this section with respect to any harbour authority shall be exercisable by him either—

1. (a) on the application of the harbour authority, or
2. (b) of his own motion after consulting the authority.

(9) On each occasion when a harbour authority grant a licence in the exercise of any such power as is mentioned in subsection (1) (whether they do so in pursuance of the preceding provisions of this section or not) they shall furnish the Hydrographer of the Navy—

1. (a) with written particulars of the operation to which the licence relates, and
2. (b) if so requested by him, with such plans and additional information relating to the progress or completion of the operation as he requires for the purpose of determining whether, and if so what, changes should be made to any chart published under his superintendence.

(10) It shall be the duty of any harbour authority to whom the Secretary of State gives a direction under or by virtue of this section to give effect to the direction.

(11) In this section "licence" includes a consent or permission and references to the grant of a licence accordingly include references to the giving of a consent or permission.").

The noble Lord said: My Lords, under Section 34 of the Coast Protection Act 1949 the written consent of the Secretary of State is required for any operation in tidal waters that may adversely affect the safety of navigation. In this context an operation means constructing any works or depositing or extracting any material. The purpose of this new clause is to empower the Secretary of State to make regulations that would disapply this requirement when the operation in question is to be undertaken within the area of responsibility of a harbour authority and so may also be subject to licensing by that authority under its private Act. It is appropriate to deal with the matter by regulations because the provisions of such Acts vary widely and are not susceptible to a single measure.

In many other cases the relevant Act requires the Secretary of State to defer his consideration of an operation under Section 34 of the Coast Protection Act until a licence for it has been issued by the harbour authority. The harbour authority's Act too may require the Secretary of State to consider an appeal against the refusal by that authority to grant a licence for an operation. These provisions lead to duplication of effort and delay. The new clause therefore permits the Secretary of State to promote regulations, after due consultation, that would provide that any power of a harbour authority to license operations should be extended to consideration of the adverse effects that these works, and the use to which they may be put, might have on safety of navigation; to the imposition of such conditions as the authority may think fit; and include the power of enforcement that harbour authorities currently possess under Section 36 of the Coast Protection Act 1949. In addition the regulations would convey a right of appeal to the Secretary of State if the relevant harbour authority's Act does not already do so.

The new clause provides that if an appeal were made to the Secretary of State he would have the right to dismiss it or to accept it or to grant a licence subject to such modifications as he saw fit. But the Secretary of State would be empowered to reserve both the right to review any decision by a harbour authority and the right to retain control over operations within a part of a harbour authority's area.

The new clause lays a duty on the harbour authority to advertise applications for licences; to take into account representations by persons whose interests are affected; to advertise the grant of licences; to defer their implementation for a period which I expect to be set at 30 days so that appeals may be lodged; and to provide information on the operation to the Hydrographer of the Navy.

I regret that owing to an administrative slip the time periods given in subsections (3) and (5) of the new clause have been transposed. We will be correcting this mistake at Third Reading. The intention is that the Secretary of State will have 60 days from the date of an authority's determination in which to serve notice requiring information to be furnished to him with a view to redertermination; and that in making such a redetermination he shall have regard to representations made within 30 days of the notice of redetermination having been served on the applicant. The new clause also permits amendments to be made by regulation to the relevant private Act.

Two other minor technical amendments will be needed to this clause. The Secretary of State's powers to review a harbour authority's decision under this clause is excluded when there has already been an appeal to him under the regulations; that appears in subsection (3)(c). The power should also be excluded where an appeal has been made, not under the regulations themselves but under the harbour authority's own private legislation whether it has been adapted by the regulations or allowed to stand.

Conversely, the power to review a decision would also be included where no appeal has been made, first, not under the regulations, and, secondly, not under the harbour authorities own private legislation either because the regulations did not adapt the appeal provisions. I propose to introduce amendments to this effect on the Third Reading.

I hope with that somewhat lengthy and technical explanation to this new clause, your Lordships will approve it. I beg to move.

5.15 p.m.

Lord Underhill

I am grateful to the Minister for that explanation. Needless to say, I do not propose to comment on it at this stage. The question of licensing of tidal works by harbour authorities is a very important matter. As noble Lords will have noticed, it covers three and a third pages of the Marshalled List. I am grateful to the Minister for the Notes on Clauses, four pages long, which were received at lunchtime today. Therefore, I should like to consult those, read what the Minister says, welcome what other amendments he is bringing forward at Third Reading and then decide whether it is necessary for us to bring forward further amendments.

Viscount Simon

My Lords, I wonder whether I might raise a small point on this rather long and complicated clause. When I first read it I was rather defeated over how it is brought in within the Long Title of the Bill. There is a reference to the safety of shipping in the Long Title, but then the Secretary of State's powers under this clause do not seem to be particularly related to the safety of shipping. They may be related to environmental matters or all sorts of things of that kind, I should have thought. There is no reference to safety of shipping in the clause.

Lord Brabazon of Tara

My Lords, subject to advice which I may be able to relay to the noble Viscount in due course, for the moment I shall have to rest on "connected purposes" in the Long Title.

On Question, amendment agreed to.

Clause 36 [Amendment of Part III of Merchant Shipping Act 1974]:

Lord Brabazon of Tara moved Amendment No. 40: Page 31, line 37, leave out ("the carriage of goods or passengers by sea") and insert ("any shipping services").

The noble Lord said: My Lords, with the leave of the House, I shall speak also to Amendments Nos. 41, 42, 43 and 44 and 62. These amendments fulfil the commitment I gave in Committee to accept in principle amendments tabled by my noble friends Lord Gray of Contain and Lord Mottistone which were designed to strengthen the powers currently available in the Merchant Shipping Acts of 1974 and 1979 for the Government to take action against measures by other countries which may damage British shipping or trading interests. Clause 36 already extends the coverage of the present powers to include the carriage of passengers, as well as goods. But this would still leave a number of important shipping activities uncovered. The amendments would therefore enable the Secretary of State to take action where the measures adopted by a foreign country concern any services provided my means of ship. I beg to move.

Lord Mottistone

My Lords, I should very much like to thank my noble friend for coming forward with these amendments, which he undertook to make on behalf of my noble friend Lord Gray of Contain and myself. It is very nice to see them in the Bill.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendments Nos. 41 to 44:

Page 32, line 5, leave out subsection (3) and insert— ("(3) The following subsection shall be substitued for section 14(3)— (3) The Secretary of State may by order provide for—

1. (a) regulating the provision of any shipping services and the rates, fares or other amounts which may or must be charged for providing those services:
2. (b) regulating—
   1. (i) the admission and departure of ships to and from United Kingdom ports.
   2. (ii) the nature of the shipping services they may be used to provide (whether by reference to the cargoes or passengers they may carry or otherwise), and
   3. (iii) the loading or unloading of cargoes, the embarkation or disembarkation of passengers, or the doing of other things in connection with the provision of any shipping services;
3. (c) regulating the making and implementation of agreements (including charter-parites) whose subject matter relates directly or indirectly to the provision of any shipping services, and requiring such agreements to be subject to the Secretary of State's approval in such cases as he may specify;
4. (d) imposing charges in respect of ships which enter United Kingdom ports in connection with the provision of any shipping services:
5. (e) imposing, in pursuance of any Community obligation, such tax or duty payable by such persons and in such circumstances as the Secretary of State may specify,

and in this subsection "regulating". except in relation to the rates, fares or other amounts which may or must be charged as mentioned in paragraph (a) above, includes imposing a prohibition." ").

Page 32, line 21, at end insert— ("( ) In section 14(4) (orders under subsection (3)), for "subsection (1)(a)" substitute "subsection (1)(i)".").

Page 32, line 38, after ("Kingdom:") insert— ("( ) "shipping services" means services provided by means of ships, and includes the carriage of goods or passengers by sea, cable laying dredging, and services provided by offshore support vessels;").

Page 33, line 23, after ("description") insert (", or providing any other specified shipping services (within the meaning of the principal section)").

On Question, amendments agreed to.

Schedule 5 [Miscellaneous Amendments Merchant Shipping Acts]:

Lord Mottistone moved Amendment No. 45: Page 73, line 4, at end insert— ( ) In section 42 (trade disputes involving seamen), omit subsection (2).")

The noble Lord said: My Lords, this is part of a similar amendment moved at Committee stage which I think my noble friend the Minister viewed somewhat favourably. I hope perhaps he will do so again. For the benefit of the House, this amendment would repeal the operative part of Section 42 of the 1970 Merchant Shipping Act. That operative part, which is not at this moment repealed, permits a seaman to give 48 hours notice of intention to go on strike while his ship is in a port. This enables a seafarers' union to call men out on strike without complying with the ballotting provisions of the Trade Union Act 1984. It has frequently been used to hold up ferries, off-shore supply vessels and other ships. Its repeal, therefore, is strongly supported by shipowners because it would put them in the same position as other British employers. They would be no better off but also they would be no worse off. So it seems thoroughly sensible that this repeal should take place in order to bring the 1970 Merchant Shipping Act up to date with later legislation. I beg to move.

Lord Underhill

My Lords, I hope that the Minister will resist the amendment. It is, in effect, the same as Amendment No. 95 which we had at Committee stage. I dislike repeating arguments at Report stage which I used at Committee stage. Therefore perhaps I may just content myself by saying that Section 42 of the 1970 Act was introduced following a very full inquiry presided over by Lord Pearson which reported in 1967. It may be argued that 1967 was 20 years ago, but at that time the report was supported by the General Council of British Shipping and the maritime unions.

I was pleased to note that at Committee stage the Minister said at col. 786 of Hansard for 26th November: I am not aware that there have been any serious incidents of the use of Section 42(2) recently". I have noticed that the Minister has not seen fit to bring forward a government amendment. I hope that means that the Government have no intention of supporting the amendment. I did not sense in the Committee stage any indication that the Government so intended, but I hope that they will resist this amendment.

The Earl of lnchcape

My Lords, I should like to support the amendment of my noble friend Lord Mottistone. At the Committee stage, I explained that the industry sought to repeal this anachronistic provision in order to place it in the same position as other employers—as my noble friend said, no better off, but no worse off.

In Committee the Minister seemed to show some sympathy for the proposal, but suggested that the amendment then under discussion went too wide and would be confusing in effect. This amendment is more narrowly drawn. This is no academic matter. Only last week Section 42 was used to call out on strike, without a ballot, seamen serving on six offshore supply vessels. I hope that the Minister will accept the amendment.

Lord Brabazon of Tara

My Lords, during Committee I said that the Government had some sympathy with the case for repealing this provision and undertook to look carefully at the arguments. In the light of further consideration, I am satisfied that there is a good case for repeal. Noble Lords will recall that I sketched out the background to the provisions of Section 42(2) in some detail during Committee.

In the first place Section 42(2) has been largely overtaken by the provisions in the 1974 Merchant Shipping Act which have legitimised industrial action by seafarers while their ship is not at sea. Secondly, Section 42(2) has been abused in the past and might be open to abuse in future. Indeed my noble friend Lord Inchcape has detailed a difficulty very recently, which apparently was connected with this.

Thirdly, I am now satisfied that the repeal of Section 42(2) would not significantly disadvantage seafarers. Even without Section 42(2), seafarers would still be able to give notice of their intention to take industrial action in accordance with their terms of employment in the same way as employees in other industries. The noble Lord, Lord Underhill, pointed out during Committee that without Section 42(2) seafarers taking industrial action would be individually liable to pay compensation to their employers in accordance with Section 39 of the 1970 Act. This is so. But the fact is that an employee in any other industry who breaches his contract of employment to take industrial action also lays himself open to civil proceedings by his employer: and in such proceedings the seafarer is considerably better off than his counterpart elsewhere, as he has the protection of Section 39 of the 1970 Act which enables him to limit his liability to a maximum of £100; employees in other industries are not able to limit their liability in this way.

The noble Lord, Lord Underhill, also mentioned the relationship between Section 42(2) and the committee of inquiry chaired by Lord Pearson which reported in 1967. In fact, the Pearson Committee was firmly opposed to industrial action by seafarers combining to disobey lawful commands on the grounds that such action. might threaten the safety of the ship. The Committee recognised that there would therefore need to be safeguards for the seaman's right to take some form of industrial action although they did not attempt to define what these might be. But Pearson reported 20 years ago and, whatever the noble Lord, Lord Underhill, may say, industrial relations have come a long way since then. Industrial action by a seafarer no longer necessarily lays him open to criminal proceedings. At the same time there is no reason why a seafarer should not continue to be open to civil proceedings which could be taken against employees in other industries.

We have therefore concluded that the repeal of Section 42(2) is justified and I am therefore able to accept my noble friend's amendment. I am advised that two further minor consequential amendments will be needed if the repeal is included in the Bill and the Government will bring these forward at a later stage.

Lord Carmichael of Kelvingrove

My Lords, the Minister will be aware that it has come as quite a surprise that he has accepted this amendment after what we were led to believe at Committee stage. I should like to know what consultations he had with the seamen's union on this matter. I should also like to know about the paving and consequential amendments that he is likely to table. We consider that it is extremely serious at this very late hour to accept such an important amendment and we certainly reserve the right to consider the matter when we come to Third Reading.

Lord Brabazon of Tara

My Lords, with the leave of the House I should like to say that I made it pretty clear at Committee stage that we were going to look very carefully at the arguments and if appropriate would bring forward an amendment on Report. We did not have time to bring forward an amendment on Report. However, my noble friend put down the same amendment as he put down at Committee stage and therefore with that amendment there I have to say now that we are going to accept it.

Lord Mottistone

My Lords, I am most grateful to my noble friend for his very careful explanation which, to my mind, gives real strength to the amendment and is a good reason for it.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 46: Page 73, leave out lines 25 to 27 and insert— ("75A—(1) Where under any enactment a document in the custody of the Registrar General of Shipping and Seamen is open to public inspection—").

The noble Lord said: My Lords, I beg to move Amendment No. 46 and with the leave of the House I shall also speak to Amendments Nos. 47 to 50 at the same time. These amendments will enable the offices of the Registrar-General of Shipping and Seamen to operate more efficiently. He is responsible for the custody of many documents and it is sensible that modern technology should be utilised for better record-keeping. The amendment takes account of the fact that documents are received not just by virtue of certain sections of the 1970 and 1894 Acts, but under other enactments as well. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendments Nos. 47 to 50: Page 73, line 35, leave out ("and for the purposes of paragraph (a)") and insert— ("(2) For the purposes of subsection (1)(a)"). Page 73, line 36, leave out from ("1894") to ("a") in line 37 and insert ("in its application to any such document,"). Page 73, line 41, leave out from ("document") to end of line 45 and insert ("sent to him under or by virtue of any enactment if it has been in his custody for a least 10 years,"). Page 74, leave out line 1 and insert— ("(2) Where any such document has been so destroyed—

1. (a) any enactment providing for the document to be admissible in evidence or open to public inspection; and
2. (b) section 75A above,
3. shall apply to the").

On Question, amendments agreed to.

Schedule 6 [Minor and Consequential Amendments]:

Lord Brabazon of Tara moved Amendment No. 51: Page 75, line 2, at end insert—

("SEA FISHERIES ACT 1868 (c. 45)

For section 26 substitute—

"Registered fishing boats and foreign fishing boats within British waters to hare official papers.

26.—(1) The master of every sea-fishing boat which is registered under Part 11 of the Merchant Shipping Act 1988 shall (whether his boat is within British waters or not) have on board the certificate of registration issued in pursuance of that Part of that Act.

(2) The master of every foreign sea-fishing boat within British waters shall have on hoard official papers evidencing its nationality.

(3) If any person, without reasonable excuse (the proof of which lies on him), contravenes subsection (1) or (2) of this section, he shall be liable on summary conviction to a fine not exceeding the second level on the standard scale; and where a fine is imposed under this subsection on the master of a foreign sea-fishing boat the court may order the boat to be detained for a period not exceeding three months from the date of the conviction or until the fine is paid (whichever period is the shorter).

(4) Section 8(4) of the Sea Fisheries Act 1968 (power of British sea-fishery officer to take fishing boat to nearest port and detain it there) shall apply in relation to a contravention of subsection (1) or (2) of this section as it applies in relation to such a contravention as is mentioned in that provision.

(5) In this section— British waters" means waters within the seaward limits of the territorial sea adjacent to the United Kingdom. the Channel Islands and the Isle of Man; foreign sea-fishing boat" means a sea-fishing boat which—

1. (a) is not registered in the United Kingdom, the Channel Islands or the Isle of Man, and
2. (b) is not excluded from registration by regulations under section 12 of the Merchant Shipping Act 1988, and
3. (c) is not wholly owned by persons qualified to be owners of British ships for the purposes of Part I of the Merchant Shipping Act 1894;

"master" includes, in relation to any sea-fishing boat, a person for the time being in command or charge of the boat."").

The noble Lord said: My Lords, I beg to move Amendment No. 51 and at the same time I shall speak to Amendments Nos. 60 and 61. These amendments substitute a revised Section 26 of the Sea Fisheries Act 1868. The substance of the original section, which makes it an offence for fishing vessels not to carry certificates of registry or, in the case of foreign vessels, other evidence of nationality, remains the same. The opportunity has also been taken to alter the drafting of our Victorian forbears and to bring its prose into the 20th century. One small change of substance is that the powers of British sea fishery officers to bring into port vessels infringing this section will be exercisable only for offences committed within British fishery limits. This brings the scope of enforcement for this offence into line with that for other sea fishing offences. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 52: Page 76, line 2, leave out (""section 373"") and insert (""exempted"").

The noble Lord said: My Lords, in moving Amendment No. 52, I should like at the same time to speak to Amendments Nos. 53 to 59 inclusive. These are minor adjustments to certain other enactments principally in fisheries legislation amending references there to fishing vessels registered or exempted from registry under the 1894 Act to refer instead to vessels registered or excluded from registration by regulations made under this Bill. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendments Nos. 53 to 59:

Page 76, line 3, after ("substitute"") insert ("excluded from registration by regulations under").

Page 76, line 8, leave out (—section 373 of the Merchant Shipping Act 1894" substitute"") and insert ("the words from "exempted from" to "1894" (where first occurring) substitute "excluded from registration by regulations under").

Page 76, line 9, at end insert (", and for "so exempted" substitute "so excluded".").

Page 77, leave out lines 6 to 8 and insert (", for paragraphs (b) and (c) substitute— (b) excluded from registration by regulations under section 12 of the Merchant Shipping Act 1988; or")

Page 77, line 16, leave out ("after "1894" insert "or") and insert ("for the words from "fishing boat" (where first occuring) to "1894" substitute "fishing vessel").

Page 77, line 35, leave out (""section 373"") and insert (""exempted"")

Page 77, line 35. after ("substitute"") insert ("excluded from registration by regulations under").

On Question, amendments agreed to.

Schedule 7 [Repeals]:

Lord Brabazon of Tara moved Amendment No. 60: Page 81, line 10, column 3, after ("paragraphs") insert ("23,")

The noble Lord said: My Lords, I spoke to Amendments Nos. 60 and 61 with Amendment No. 51. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 61: Page 81. line 42, column 3, at end insert ("In Schedule 2, paragraph 3.")

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 62: Page 81, line 50, column 3, at end insert ("In section 40, in subsection (1) paragraphs (a), (c) and (d), and subsection (2).")

The noble Lord said: My Lords, I spoke to Amendment No. 62 with Amendment No. 40. I beg to move.

On Question, amendment agreed to.