HL Deb 02 December 1991 vol 533 cc72-7

7.2 p.m.

Earl Howe rose to move, That the draft order laid before the House on 4th November be approved [1st Report from the Joint Committee].

The noble Earl said: My Lords, the draft order was approved in another place on 21st November 1991. Before the enactment of the Environmental Protection Act 1990 it was not usually possible to serve a summons arising from an oil pollution incident on the foreign owner of a ship. As he is generally outwith the jurisdiction of our courts it has not been possible to prosecute him and compel him to appear to answer charges. Consequently any prosecution has had to be directed at the master of the ship. That is unsatisfactory because it has resulted in penalties which do not properly reflect the seriousness of the offence and serve as a deterrent to others.

During the passage of the Environmental Protection Bill last year a clause was added which enabled foreign owners to be prosecuted for pollution offences committed by their ships. The Act deals with that objective in two ways: first, by addressing pollution incidents in ports and harbours by amendment of the Prevention of Oil Pollution Act 1971, and, secondly, by allowing pollution incidents in United Kingdom waters to be similarly covered by an amendment to the Merchant Shipping (Prevention of Oil Pollution) Regulations 1983. The legislation dealing with ports and harbours has already come into force and it now remains to apply the provisions to offences committed within our territorial waters.

Under these amendments, a ship which has discharged oil into the waters of a port or harbour, or into the territorial seas of the United Kingdom, may be detained. It may be released on conclusion of the hearing and the payment of any penalties imposed or, in advance of the hearing, on the security of a bond of £55,000. A summons is deemed to have been properly served on the foreign owner of a ship if it is correctly served on the ship's master. The courts are already empowered to impose a penalty on a company which has been properly served with a summons even if it is not represented in court.

If any fine, costs or compensation ordered is not paid the ship may be sold to defray those charges. There are, of course, safeguards for the owner so that, for example, a ship must be released from its bond or detention if proceedings are not started within seven days. There is also provision to repay surplus funds remaining after any penalties, costs or compensation ordered have been paid. The court is also able to order that part or all of any fine imposed may be used to pay for the costs of cleaning up the pollution.

I commend the order to your Lordships. I beg to move.

Moved, That the draft order laid before the House on 4th November be approved [1st Report from the Joint Committee]. —(Earl Howe.)

Lord Clinton-Davis

My Lords, I thank the Minister for explaining the order briefly. I should like to pose one or two questions. It is an order which we welcome wholeheartedly. It has emerged from a very complicated backcloth of legislation. As the noble Earl said, there were a number of very serious gaps in terms of the ability to prosecute the foreign owner of a vessel allegedly responsible for oil pollution offences. One aspect of those lacunae has been the difficulty in prosecuting foreign owners in practice.

The Environmental Protection Act 1990 provided considerable help in enforcing penalties which were prescribed by the Prevention of Oil Pollution Act 1986 and by amending the principle Act, the Prevention of Oil Pollution Act 1971. The provision that service on the master is proper service of proceedings on a foreign company as the owner of the vessel is desirable. So is the power to detain a vessel in certain circumstances and to confer powers on the harbour master to determine what security has to he provided.

A number of issues arise from the draft order, and I should like to concentrate on those. I have deliberately not mentioned all of the benefits which flow from the legislation which precedes the order and upon which it is based. The most important are the service of documents, the power to detain the vessel, enforcement against the vessel and a contribution to the cost of repairing the damage. That is action which the international community should have been working towards with greater vigour than has been the case. Nonetheless, progress is now being registered.

The service of documents is extremely important. Measures to enable enforcement of the pollution regulations against the owners of the vessel are necessary. One of the problems in the past, as I understand it—and perhaps the Minister will be able to confirm it—has been the fact that it has only been possible to enforce action against the master. In most circumstances that has resulted in a smaller fine than was appropriate for the offence being imposed, because Section 35 of the Magistrates' Courts Act 1980 requires the court to take into consideration the means of the accused. That has prevented full implementation of the Marpol requirement contained in Article 4(4) to the effect that the penalty specified under the law of the party pursuant to the convention shall be adequate in severity to discourage violations of the convention, which is in effect what the Minister said. In the case of John v. Wright, decided in 1980, a fine of £25,000 imposed on a master was held by the High Court of Justiciary to be harsh and oppressive and it was reduced to £750. If the court enforces against the owner, consideration of the means of the individual is less likely to restrict the award, so that is certainly to be welcomed.

As to the power to detain, there is a strong argument that the statutory limit of £50,000 for a summary fine should be replaced by a much higher limit in the circumstances that we are discussing, which are sui generis in a way and should therefore be treated separately, so that magistrates could impose a fine on an owner representing the true value of the loss or clean-up operations. In those circumstances, the vessel would not then be released until adequate security had been provided. Most cases will, after all, be dealt with by local magistrates in port areas who will have built up considerable expertise in that field and can be trusted to deal with the matter in a balanced way.

I pray in aid a similar argument to the next point; namely, the contribution to the cost of repairing the damage. Section 20(2) of the 1971 Act provides that the court may order the whole of part of a fine to be used to defray the expenses of making good the damage caused by the offence. It would be a good thing if that provision were reflected strongly in the regulations. The determination of the level of fine should be influenced by the cost of remedying the damage. Although I recognise that that involves an element of compensation, compensation is no longer unknown to the criminal law.

For those reasons, I do not think that the present limits represent the criterion that the Minister himself invoked; namely, that the fine should represent the severity of the offence or act as a deterrent to others. It is perfectly true that the Crown might decide to pursue the matter on indictment in the Crown Court. Perhaps the Minister will be able to tell us how many such cases have been dealt with in the Crown Court in the past year or so. Perhaps he will have to write to me about that matter unless help is available from some unknown quarter.

As I said, we welcome the fact that the Government have at long last moved against irresponsible owners, no longer confining their concentration to the acts of irresponsible masters and officers. That is right because owners rather than masters are responsible in so many ways for damage that is caused, whether to the environment or to life or limb. They are responsible for enabling geriatric ships to go to sea which should not be at sea at all and which might escape the rigours of port-state control. Owners rather than masters are responsible for poor crewing conditions, and owners as well as masters allow poor safety conditions to prevail on board. I hope and expect that, as a result of the regulations, a much more dynamic and effective series of actions will be taken to deal with those owners who, by what they do or often by what they do not do through inertia, should shoulder responsibility for acts of pollution, oil and chemical, as they have not done in the past.

It is extraordinary that in about the past six years some 1,136 incidents have been discovered of ships being in breach of regulations, yet only two prosecutions have resulted, one ship has been detained in port and one prohibition order or improvement notice issued. Why has there been such a poor record of prosecution? It is simply not enough to say, as the junior Minister did in another place on 21st November, that some of the 1,290 reported incidents that occurred between 1985 and recently have been small. I cannot accept that out of those 1,290 cases only two prosecutions should have resulted and the other consequences followed in two other cases. It is simply not good enough.

To achieve the purpose that the order sets out, I want to know from the Minister whether there is an adequate number of inspectors to ensure that the law is properly enforced. Will he tell us what is the number of inspectors available to deal with the matter? If there is an inadequate number, do the Government plan to recruit any more inspectors; and, if not, why not? Having raised those points, the Opposition wish to associate themselves with the purposes behind the order.

Earl Howe

My Lords, I am grateful to the noble Lord for his welcome of the measure. Perhaps I may take his points in turn, in so far as I am able at present.

The noble Lord mentioned first the difficulty in practice of prosecuting offenders and polluters. That is perfectly true. The difficulty is a practical one which surrounds obtaining adequate evidence to demonstrate that pollution has occurred. If a prosecution for an illegal operational discharge is to succeed, two forms of evidence may be presented. The first is to obtain a sample of the oil from both the vessel concerned and the polluted area so they can be analysed and shown to match. Alternatively, clear photographs of the area supported by a statement from the photographers, or ultraviolet or infra-red imagery can now be put to the court. At times, for obvious reasons, it may be difficult to obtain acceptable evidence.

The noble Lord said that there has been a poor record of prosecutions given that, as he rightly said, 1,290 reports of pollution have been made to the Marine Pollution Control Unit since January 1985. Admittedly, many of those incidents are minor, but the trend is not a healthy one. The reason for so few prosecutions is partly, as I said, the difficulty of obtaining evidence. The other reason is that often the pollution incident does not occur within our territorial waters. In those cases we refer the ship to the flag state under the oil pollution convention. Since January 1985, 49 foreign ships have been referred to flag states for alleged pollution offences in British territorial waters. Of those, 16 were fined in the flag states and the remainder were either found not guilty or there was insufficient evidence to instigate proceedings. Once again, it is a question of difficulty in obtaining evidence.

The noble Lord also mentioned the difficulty in the past of serving a writ on the master of the ship. He is right. For reasons that we can appreciate, the master of the ship is often of limited means and, on conviction, the courts are usually reluctant to impose a substantial penalty on him. That in turn does not persuade the owner of the ship to ensure that pollution of ports and harbours should be avoided. Often, even if a substantial fine is imposed, it is reduced on appeal, so that is one of the strongest reasons for introducing a measure of this nature.

The noble Lord went on to say that the magistrates should have powers to charge higher fines than the £50,000 which is the maximum fine that a magistrates' court can impose. It is possible for magistrates to refer cases of that kind to the Crown Court. They are triable either way. Nevertheless £50,000 is a very high amount for magistrates to impose as a fine. The problem usually is to get them to impose the maximum and not that the maximum is too low. Some offences relate to pollution and some to safety. For those offences where £50,000 can be imposed it is rare for the maximum to be imposed.

Lord Clinton-Davis

My Lords, I am grateful to the noble Earl for allowing me to intervene. Perhaps he will write to me on this matter. The point I made was not that the fine is inadequate in relation to the master, but in relation to the owner. A £50,000 fine on a master can be a heavy burden taking into account the means of the defendant. However, when we talk of the owner, we enter a totally different situation.

Perhaps the noble Earl will also comment on this point. It is difficult in the circumstances to order a trial on indictment. There are difficulties of getting people before the court. Will he be kind enough to write to me about the generality of the fining process in relation to the new ideas that the Government have generated in the order?

Earl Howe

My Lords, I shall certainly write to the noble Lord on the latter point. However, it is not the intention of this measure to criminalise masters of ships The measure seeks to get behind the master to the owner.

The noble Lord asked how many cases there have been in our courts. Since January 1985 no UK ships have been prosecuted for pollution offences in UK territorial waters. Three UK ships have been prosecuted and fined for pollution offences outside UK waters. Unfortunately, no statistics are available to me on the prosecution of UK ships within UK ports and harbours.

The noble Lord asked about the number of inspectors. The percentage of PSC inspections carried out by the department surveyors has consistently exceeded the 25 per cent. level prescribed for visiting ships by the memorandum of understanding. In 1990 that percentage went up to 34.4 per cent. after falling slightly in the previous two years. During 1988 and 1989 a number of department marine surveyors reached retirement age and new personnel had to be recruited and trained. In addition, there was a change in emphasis from simple volume targets to a greater attention to the quality and thoroughness of each inspection. That change has helped to identify deficiencies which might otherwise have gone undetected. In addition, the department expects to reach international agreement shortly which will enable greater coverage of operational practices and procedures. Priority is already being given to those aspects of the inspection programme. I shall write to the noble Lord on the precise number of inspectors.

Lord Clinton-Davis

My Lords, again I am grateful to the Minister for allowing me to intervene. Perhaps when he writes to me he will indicate the numbers in each of the years over the past five years. Will he also indicate whether the Government propose to recruit more?

Earl Howe

My Lords, I shall be happy to do so. With that information, I trust that we may conclude the debate. I am grateful to the noble Lord. The thrust of the measure is to give the law some additional teeth. I hope, as I am sure does the noble Lord, that it will be successful in that respect. I commend the order.

On Question, Motion agreed to.