HL Deb 14 June 1994 vol 555 cc1655-65

7.36 p.m.

Lord Donaldson of Lymington

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Donaldson of Lymington.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Alport) in the Chair.]

Clause 1 [Salvage Convention, 1989 to have force of law]:

Lord Donaldson of Lymington moved Amendment No. 1:

Page 2, line 5, at end insert: ("(7) A draft of an Order in Council proposed to be made by virtue of subsection (3) above shall not be submitted to Her Majesty in Council unless the draft has been approved by a resolution of each House of Parliament.").

The noble and learned Lord said: Clause 1 (1) of the Bill brings the Salvage Convention into force as part of domestic law in its present form. But subsection (3) enables the law to be revised by Order in Council to take account of any agreed revisions of the convention.

As I indicated on Second Reading, by inadvertence no provision was made for parliamentary scrutiny of the exercise of that revising power. That was pointed out by the Delegated Powers Scrutiny Committee in its report dated 24th May. This amendment remedies that omission. I beg to move.

The Parliamentary Under—Secretary of State, Department of Transport (Lord Mackay of Ardbrecknish)

I am grateful to the noble and learned Lord for the amendment which he has proposed. I agree that it represents a valuable addition to the Bill.

Clause 1, as amended, agreed to.

Clause 2 agreed to.

Clause 3 [Amendments as to powers of implementation]:

Lord Mackay of Ardbrecknish moved Amendment No. 2: Page 2, line 43, leave out from ("section") to ("shall") and insert:

  1. ("(a) may make provision corresponding to the provision authorised for an Order by paragraphs (a) to (d) of subsection (4) of this section; and
  2. (b)").

The noble Lord said: This is the first of several technical amendments which aim to correct the drafting of the Bill without altering its substance. The amendment would amend Clause 3 to ensure that the clause meets its objective; namely, to simplify the procedure for the domestic implementation of technical amendments to the international conventions governing the safety of life at sea—SOLAS—and the prevention of pollution from ships—MARPOL. I beg to move.

Clause 3, as amended, agreed to.

Clause 4 [Prevention of pollution from ships: further power to implement international agreements]:

Lord Mackay of Ardbrecknish moved Amendment No. 3: Page 3, line 22, at end insert: ("and provision authorising the making of regulations authorises the amendment or revocation of regulations made by virtue of paragraph (e) of the said subsection (3).").

Lord Clinton—Davis moved Amendment No. 4:

Page 3, line 22, at end insert:

  1. ("(c) specifying the type and capacity of facilities in individual ports for handling waste oil, garbage and sewage; and
  2. (d) relating to the formulae used to calculate port dues and harbour fees for the purposes of incorporating an appropriate charge for using reception facilities").

The noble Lord said: My speech for the above amendment may just be a little longer than the others. MARPOL seeks to eliminate the intentional discharge of oil into the sea. It is a very valuable convention. The deliberate dumping of fuel oil and oily bilge water constitutes the most significant source of pollution of the sea from shipping. Of course, the greatest source of pollution of the sea is from the land. The issue was dealt with very comprehensively in Section 3 of the Donaldson Report and, in particular, in the statistics given on page 21. We must recognise that intentional discharge is frequently necessary, especially so far as concerns long ocean trips because of the inadequacy or sometimes the total absence of reception facilities.

Charges which are rendered for the use of port reception facilities—which, in my view, are by no means unreasonable—nonetheless operate as a disincentive for the less reputable operators who should use such facilities but who use the latter as an argument for not so doing. Moreover, even when facilities are available, some (indeed, many masters and owners) decline to use them because they argue that delay in port represents an additional cost item. Again, that matter is dealt with in the Donaldson Report, in paragraphs 9.41 and 9.42.

Therefore, the question that arises is how, so as to implement the MARPOL convention, ships may be given some incentive to use reception facilities for the discharge of unwanted oil. How do we go about doing it? Well, to achieve that aim ports must make such facilities both convenient for use and cost effective. Therefore, the idea of providing a single, integrated fee so as to remove the disincentive of paying additional charges to dispose of waste oil arises.

In the light of the proposition that I just advanced, can the Minister say whether he has any plans to integrate harbour fees and charges for port reception facilities into a single fee which, as the Donaldson Report recommends, would remove such disincentive as there is and to which I have already referred?

I turn next to the provision of adequate port reception facilities. Under MARPOL there is an obligation on the Government to provide adequate waste oil and garbage facilities which do not cause undue delay for ships. The Prevention of Pollution (Reception Facilities) Order 1984 and the Prevention of Pollution (Reception Facilities for Garbage) Order 1988 provide those powers. But, as the Donaldson Report asserts—in paragraphs 9.39 and 9.40—based on studies by Liverpool University, that does not always happen in terms of providing adequate facilities for handling oily wastes.

Intertanko (which represents something like 80 per cent. of the owners of oil tankers throughout the world) is, as the Minister will know, deeply concerned to ensure that there are no lacunae in the provision of adequate reception facilities for chemical and other wastes so as to deter unnecessary discharges from happening. In that respect, can the Minister say what steps he will take to ensure that each United Kingdom port provides adequate facilities so as to conform to the MARPOL requirements? Is the Minister prepared to give an undertaking that a full audit will be undertaken of United Kingdom port reception facilities before the next North Sea ministerial conference?

If the Minister argues—as I suspect he might—that unilateral action on the part of the UK to remove disincentives as regards using reception facilities will not solve the problem unless corresponding action is taken by other governments who are parties to the North Sea conferences, I would respectfully say that it is the United Kingdom which has the obligation that is important so far as concerns this Chamber under the MARPOL convention. It is true that others have similar obligations, but we are concerned with the obligations which have to be carried out by this Government.

I would argue that the United Kingdom should be in the lead on the matter when the North Sea conference takes place. I believe that the Government should urge the case for improved port reception facilities in all North Sea ports and for actually providing incentives to encourage ships to use such facilities. The best way of providing such a lead would be to set the example in this country. Can the Minister give any undertakings to that effect? I beg to move.

7.45 p.m.

Lord Mackay of Ardbrecknish

I should like, first, to thank the noble Lord for moving the amendment. I do not believe that there is any disagreement between us. I entirely agree that the adequate provision of waste reception facilities in port is an essential tool in the fight against marine pollution. As the noble Lord rightly said, if we want to prevent the washing out of tanks at sea, the dumping of garbage overboard and anything else of that nature, the only way to do it is to ensure that there are facilities in the ports for vessels to use and, thereby, dispose of the waste material in port and not at sea. I suspect—indeed, he so indicated in his speech—that when he was tabling the amendment, the noble Lord had in mind certain recommendations of the inquiry of the noble and learned Lord, Lord Donaldson.

I hope that the noble Lord will understand that it is a little early for us to come to final conclusions about those recommendations. At present, we are working on all the recommendations, including those regarding the provision of reception facilities. I believe that I told the noble Lord on Second Reading that we were concerned about the findings of the inquiry of the noble and learned Lord, Lord Donaldson, in that area regarding the lack of reception facilities. We have asked the Maritime Safety Agency to investigate as a matter of urgency. I can tell the noble Lord that the agency is in the process of evaluating the responses received to a questionnaire sent to 350 ports, terminals and marinas.

WRC (formerly the Water Research Council) has also been commissioned to carry out an independent study of the quality of facilities in UK ports, with the results being available in September. I believe that that will mean that we shall have such information to hand well before the North Sea Conference in the spring of 1995. Taken together, those studies should provide the factual basis on which we can develop our future strategy.

The power that the noble Lord proposes in his amendment would not enhance the Government's ability to direct port authorities and terminal operators to improve waste reception facilities. The new power would simply duplicate those which already exist in the domestic regulations implementing the International Convention on the Prevention of Pollution from Ships. The proposed paragraph (c) in the amendment is, therefore, unnecessary.

I turn now to the proposed paragraph (d) which would allow the Government to direct harbour authorities to finance reception facilities out of general port dues. As I am sure Members of the Committee will appreciate, that would be contrary to the strict interpretation of the polluter pays principle. If, after study, we need to adopt that approach, we should only do so after careful study of all the possible courses of action. I believe that the aim of the amendment is to encourage ship operators to make better use of waste reception facilities and, therefore, reduce marine pollution. Of course, I fully agree with that aim. However, I believe that we need to give further practical consideration to the implications of such a change, in consultation with the ports industry and with our European partners, in order to see whether that is the best option available.

We would like to see the eventual eradication of all harmful and polluting discharges of waste from ships in the seas around the UK. The provision of adequate waste reception facilities in ports, not just in the UK but in the rest of Europe, is one useful weapon in our armoury. However, changes in the way reception facilities are provided, or charged for, raise significant issues and should only be taken forward when there is an agreed factual foundation for discussion. That foundation is not yet in place but will be provided by the studies that I have already mentioned. I hope that with those assurances of our intentions with regard to port facilities, the noble Lord will feel able to withdraw his amendments.

Lord Clinton-Davis

I thank the Minister for that reply. It was helpful to have this little debate because it enabled the Minister to set out his views on a matter which is of considerable importance. Of course he will be relieved to know that I am not proposing to divide the Committee tonight on this issue. I was glad to hear of the work being undertaken by the Maritime Safety Agency and indeed the independent study is also important. I was particularly pleased to note that the results of this work will be available in time for the North Sea Conference and that will be extremely important. I am not entirely happy about the other matters in relation to Amendment No. 4. I do not feel that it duplicates the powers of the Minister. However, I shall reflect on what the Minister has had to say in that regard.

As regards the port dues, the Minister observed that those would be in conflict with the polluter pays principle. However, polluters do not always pay; polluters are sometimes quite difficult to find, and sometimes they do not have the resources to pay. Therefore there may be some merit in providing facilities and then recovering payment from the polluter if that is possible. Of course the Minister will know that under the Maastricht Treaty where the court has power to fine a member state for breach of a Community regulation or directive, it is not the polluter but the taxpayer who pays. Therefore there are plenty of precedents of legislation where the polluter does not have to pay. However, I shall certainly not press the point. Perhaps we can reflect again on that point, too, in due course, but not, I hasten to add, during the course of this Bill.

I think that what the Minister has had to say tonight about the North Sea Conference and the signposts that he has referred to as regards that has well merited the purpose of tabling these amendments for debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4, as amended, agreed to.

Clause 5 [Liability and compensation for oil pollution damage: 1992 Protocols]:

Lord Mackay of Ardbrecknish moved Amendments Nos. 5, 6, 7, and 8: Page 3, line 37, leave out from beginning to ("1992") in line 42 and insert: ("(a) the word "1984" shall be omitted from the section 4A(1) of the 1974 Act and the paragraph 4(a) and (d) constituting Schedule 1 to the 1974 Act as respectively inserted and substituted by Part II of Schedule 4 to the 1988 Act;".). Page 3, line 44, leave out ("the said"). Page 3, line 46, at end insert ("and the entry for Schedule 4 to the 1988 Act shall be deemed not to have been included in Part II of Schedule 5 to the 1993 Act (pre-consolidation repeals)"). Page 3, line 46, at end insert: ("( ) Her Majesty may by Order in Council make such provision as appears to Her Majesty to be appropriate in connection with the implementation of any transitional provisions contained in the 1992 Protocols or the Conventions which they amend; and any such Order may in particular provide, in relation to occurrences of any description specified in the Order—

  1. (a) for provisions of the 1971 Act or the 1974 Act to have effect—
    1. (i) to such extent as is so specified, as if Schedule 4 to the 1988 Act were not in force, and
    2. (ii) to such extent as is so specified, as if that Schedule were in force;
    1. (b) for any such provisions to have effect (whether as amended by that Schedule or not) subject to such modifications as are so specified.").

The noble Lord said: I told the Chamber at Second Reading that the 1992 Protocols superseded the Protocols of 1984. The Merchant Shipping Act 1988 would have implemented the 1984 Protocols. Clause 5 of the Bill therefore uses the 1988 Act to implement the 1992 Protocols, in essence by removing references to the 1984 Protocols from the 1988 Act. As currently drafted, Clause 5 does this only incompletely. Amendment No. 5 would ensure that all references to the 1984 Protocols are eliminated from the 1988 Act. Amendment No. 6 is consequential. The use of the 1988 Act to implement the 1992 Protocols had not been foreseen when the Merchant Shipping (Registration, etc.) Act 1993 was drafted. That Act therefore provided for the repeal of provisions of the 1988 Act. Amendments Nos. 7 and 8 would ensure that this does not prevent implementation of the 1992 Protocols by Clause 5 of this Bill. I beg to move.

Clause 5, as amended, agreed to.

Clause 6 [Extension of strict liability for oil pollution by ships]:

Lord Mackay of Ardbrecknish moved Amendment No. 9: Page 4, line 6, leave out from second ("in") to end of line 7 and insert ("on other ships liability for oil pollution corresponding to that imposed on tankers)").

The noble Lord said: Amendment No. 9 would remove an erroneous reference to "non—tankers" from Clause 6. Clause 6 extends to other ships the regime of strict liability which the International Convention on Civil Liability for Oil Pollution Damage 1969 applies to certain oil tankers. The clause currently gives the impression that the regime would be extended to non—tankers. This is not entirely accurate. Clause 6 will make all shipowners—including those tanker owners not previously covered—strictly liable for oil pollution. Amendment No. 9 therefore makes clear that Clause 6 would impose on other ships liability for oil pollution corresponding to that imposed on tankers by the 1971 Act. I beg to move.

Lord Clinton-Davis

I wish to congratulate the Minister on his perspicacity for being able to observe the omission.

On Question, amendment agreed to.

Lord Donaldson of Lymington moved Amendment No. 10: Page 4, line 14, at end insert: ("(4) Where the amendments of the 1971 Act made by Part II of Schedule 3 to this Act come into force after the 1971 Act has been amended by Part I of the said Schedule 3, Parts I and II of that Schedule shall have effect with the modifications specified in Part III of that Schedule").

The noble and learned Lord said: In moving Amendment No. 10, with the leave of the Committee I wish to speak also to Amendments Nos. 17 to 28 inclusive.

As the Minister has just informed the Committee, Clause 6 extends to other ships the regime of strict liability for oil pollution, which the International Convention on Civil Liability for Oil Pollution Damage imposes for oil tankers. Clause 6 does this by means of amendments to the UK Act implementing the convention, which are set out in Schedule 3.

Amendments Nos. 10 and 28 clarify that the amendments set out in Part II of Schedule 3 replace those set out in Part I. The amendments of Part I and Part II both achieve the same effect, but in different circumstances. The Part II amendments are therefore instead of, not in addition to, the Part I amendments. Amendments Nos. 10 and 28 would amend Clause 6 and Schedule 3 to make this clear. Amendments Nos. 17 to 27 inclusive correct oversights and improve the drafting of Schedule 3. I beg to move.

Lord Clinton-Davis

Just in case the noble and learned Lord might take offence, having congratulated the Minister on his perspicacity I want to mirror that remark as far as the noble and learned Lord is concerned.

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

Clauses 7 to 10 agreed to.

Schedule 1 [International Convention on Salvage, 1989]:

Baroness Trumpington moved Amendment No. 11: Page 12, line 32, leave out from ("involved") to end of line 34.

The noble Baroness said: The aim of this amendment is to maintain the status quo as regards the right to a reward for salvage from an historic wreck, and to make clear that it is to be treated on the same statutory basis as all other salvage. I will briefly explain why it is necessary.

There is at present a single legal regime for all salvage including historic wreck, whether or not the wreck is specifically designated under the Protection of Wrecks Act 1973. This regime gives a right to reward and thus provides an incentive to salvors, both amateur and professional, to report their finds. In the case of historic wreck, it provides finders with an incentive not to be tempted to evade the obligation to report finds which may be of great archaeological importance. This right to reward is a long established principle of salvage law and it is an equitable right. The Government see no reason at present to change this position.

In 1989, at the time of the negotiations concerning the Salvage Convention which is being put into law by this Bill, it was agreed that any signatory state could make a reservation in respect of,

"maritime cultural property of prehistoric, archaeological or historic interest on the seabed".

The Government said at the time, and have repeated since, their intention to make that reservation when ratifying the convention. We intend to do so. This will leave open the possibility of altering the legal regime in respect of such maritime cultural property, if at some future date that should be thought desirable, without breaching the convention.

When the Bill was first in the course of preparation it was supposed that a reservation ought to be reflected in the implementing legislation. Consequently, paragraph 2(1) (c) of Part II of Schedule 1 to the Bill would have excluded maritime cultural property on the sea bed from the scope of the convention as implemented in the UK.

By excluding the salvage of maritime cultural property on the sea bed from the scope of the convention at the same time as repealing Section 546 of the Merchant Shipping Act 1894 the Bill would have removed the statutory right of a finder of maritime cultural property on the sea bed to claim a reward in respect of wreck from the property owner, where one could be identified. Other rights to reward such as unclaimed property reported to the Receiver of Wrecks would not be affected.

Amendment No. 11 therefore takes out of the Bill the clause that would have excluded such maritime cultural property on the sea bed. In doing so it restores the full statutory right to salvage rewards in respect of any finds from historic wrecks on the same basis as all other salvage. I beg to move.

8 p.m.

Lord Clinton-Davis

I am a little puzzled. I am always delighted to see the noble Baroness in the Chamber and at the Dispatch Box, but I cannot understand why she is there this evening. Is it the case that this is a matter for the Department for National Heritage rather than the Department of Transport? Or is it that she felt that the transport Minister is in need of her help and sustenance tonight? Or is it a combination of the two? Having said that, I do not in any way want to disparage her appearance in the Chamber. I am merely intrigued.

Baroness Trumpington

Apart from the fact that I am an ancient wreck, I am representing the excellent Department of National Heritage, whose concern this is.

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Salvage: Consequential and Related Amendments]:

Lord Donaldson of Lymington moved Amendments Nos. 12 to 16: Page 14, line 25, after ("1947") insert ("for the words "the provisions of this Act" there shall be substituted the words "section 29 (so far as consistent with the International Convention on Salvage, 1989 as set out in Schedule 1 to the Merchant Shipping (Salvage and Pollution) Act 1994)" and"). Page 15, line 26, leave out ("or"). Page 15, line 27, at end insert ("or (iii) in the nature of salvage not falling within (i) or (ii) above;"). Page 16, line 4, leave out ("or"). Page 16, line 5, at end insert ("or (iii) in the nature of salvage not falling within (i) or (ii) above;").

The noble and learned Lord said: I wish to move Amendments Nos. 12 to 16 en bloc and to speak also to Amendment No. 29. These are amendments to Schedules 2 and 4.

At Second Reading I informed the House that I was concerned that the Bill should not restrict the jurisdiction of the Admiralty Court. In saying that I was replying to a speech by the noble Lord, Lord Byron. After consultations, I am now glad to propose amendments which I believe should meet with the approval of all parties, including the noble Lord.

Amendments Nos. 13 to 16 would amend Schedule 2 to ensure that the Admiralty Court—both in the sense in which we normally use the term; namely the High Court in Admiralty, and in the county court in so far as it has an admiralty jurisdiction—has jurisdiction to hear any claim under the salvage convention, any claim in relation to a salvage contract and any other claim (and I use those words almost in quotes as they were used in the original Supreme Court Act) in the nature of salvage. This in no way represents a derogation from the salvage convention. When there is a conflict between the convention and the common law the convention, if its terms apply, will take precedence. The amendments merely ensure that the competent court will be able to rule on any dispute.

I have also proposed amendments to make minor changes to the Crown Proceedings Act 1947 which are consequential upon the implementation of the salvage convention. Those are Amendments Nos. 12 and 29. I beg to move.

Lord Byron

Having raised the matter at Second Reading perhaps I may take this opportunity to thank the noble and learned Lord, Lord Donaldson, for his assistance, and indeed persistence, in bringing forward the amendment. It is an important amendment retaining the historic jurisdiction of the Admiralty Court in relation to claims in the nature of salvage.

I should also like to thank my noble friend on the Front Bench and his department, as I understand that he will accept the amendment.

Lord Mackay of Ardbrecknish

I thank my noble friend Lord Byron for those remarks. He is quite right. We are happy to accept the amendments proposed by the noble and learned Lord to the jurisdictional provisions of Schedule 2. I am slightly relieved that such an eminent legal person as the noble and learned Lord moved the amendments because even if I do not totally understand the matter I am sure that he does.

The amendments are fairly technical. Our main concern regarding the use in the Bill of references to claims in the nature of salvage has been that such wording might be understood as sanctioning the continuance of some types of claim which might otherwise be inconsistent with the convention as given the force of law in the United Kingdom by the Bill. The sanctioning of such claims by the Bill would mean derogating from the convention. As I stated at Second Reading, we cannot do that.

I accept, however, that Amendments Nos. 13 to 16, properly understood, relate only to jurisdiction and do not affect the substantive law. Therefore, if, for example, the giving of a salvage reward for so—called engaged services is inconsistent with the terms of the convention, then the amendments that we are considering now will not have the effect of derogating from the convention or of enabling a court or arbiter to make a salvage award inconsistent with the provisions of the convention.

Clause 1(1) of the Bill provides that the convention as set out in Schedule 1 is to have the force of law in the United Kingdom. It follows that no rule of law relating to salvage can continue in force if that rule is inconsistent with the convention. The law in the convention will supersede any existing rule of salvage law where there is any inconsistency. That principle is not diminished by the jurisdictional provisions contained in Amendments Nos. 13 to 16.

On that basis I welcome the amendments and support them.

On Question, amendments agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 [Extension of strict liability for oil pollution by ships]:

Lord Donaldson of Lymington moved Amendment No. 17: Page 16, line 28, after second ("any") insert ("persistent").

Lord Donaldson of Lymington moved Amendments Nos. 18 to 28:

Page 16, line 44, after ("threat") insert ("of damage being"). Page 16, line 45, leave out from ("by") to ("a") in line 46 and insert ("the contamination which might result if there were"). Page 16, line 46, after ("of) insert ("persistent"). Page 17, line 28, at end insert ("persistent"). Page 17, line 44, after ("any") insert ("persistent"). Page 18, line 35, at end insert: (" . In section 20(2) (interpretation of references to the owner of a ship)—

  1. (a) after the words "in a ship" there shall be inserted the words ", or from a relevant threat of contamination,"; and
  2. (b) at the end, there shall be inserted the words "or (as the case may be) in the threat of contamination".").
Page 18, line 38, at beginning insert: (" . In section 1(2) of the 1971 Act (liability for threat of oil pollution), for the words "contamination resulting from" there shall be substituted the words "the contamination which might result if there were""). Page 19, line 4, after ("damage") insert ("being"). Page 19, line 6, leave out ("contamination resulting from") and insert ("the contamination which might result if there were"). Page 19, line 46, at end insert: (" . In section 13 (jurisdiction of United Kingdom courts, etc.)—
  1. (a) in subsection (2) (b), for the words from "damage" to the end there shall be substituted the words "such damage in the area of the United Kingdom"; and
  2. (b) in subsection (2A) (b), for the words from "damage" to the end there shall be substituted the words "such damage in the area of another Convention country".").
Page 20, line 2, at end insert:

("PART III

MODIFICATIONS OF PARTS I AND II

  1. 1.The section 1A inserted by Part II shall be substituted for the section 1A inserted by Part I.
  2. 2. The section 2A inserted by Part I shall cease to have effect.
  3. 3. The section 3A inserted by Part I shall cease to have effect.
  4. 4. The reference to section 1A inserted in section 9 and in section 15 shall be construed as referring to the section 1A

  1. substituted by Part II for the section 1A inserted by Part I, and the omission in section 15 of subsection (1) by Part II shall be treated as effected by the corresponding omission by Part I.").

Schedule 3, as amended, agreed to.

Schedule 4 [Repeals]:

Lord Donaldson of Lymington moved Amendment No. 29:

Page 20, line 13, at end insert:

("1947 c.44. Crown Proceedings Act 1947. In section 30(1), the words "and the limitation of actions in respect of salvage services".").

Schedule 4, as amended, agreed to.

House resumed: Bill reported with amendments.

Viscount Goschen

My Lords, I beg to move the House do now adjourn during pleasure until 8.35 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.10 p.m. to 8.35 p.m.]