My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

My Lords, subject to the outcome of public inquiries, it is hoped that service areas will be available at Thurrock, to the east, and Clacket Lane, to the south-east, by late 1989 or early 1990. I am unable to say at present when a fourth service area will be available.

My Lords, I thank my noble friend the Minister for that encouraging news. Is he aware that at certain times of the day and on certain parts of the M.25 there are very long delays caused by queues? Will the department consider putting notices on the exit junction boards saying how far away services can be obtained off the M.25?

My Lords, I am aware that there are queues at certain times of day on certain sections of the M.25. It is our proposal that there should be four service stations at the four cardinal points of the motorway. As to putting notices on the exit junctions pointing the way to the nearest service station, I am not quite sure whether that would be possible. I shall look into it and let my noble friend know.

My Lords, is my noble friend aware that that is done on other main roads? It would be an enormous convenience to people on the motorway.

My Lords, I am aware that it is done on certain other main roads, including trunk roads. I shall have to look into the case of the motorway and write to my noble friend.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

My Lords, on 25th September the Soviet Foreign Minister joined the other permanent members of the Security Council in agreeing to start work on an arms embargo while the Secretary-General takes parallel action to try to obtain Iranian and Iraqi compliance with Resolution 598. We continue to press the Soviet Union to live up to this agreement. My right honourable and learned friend the Foreign Secretary most recently raised this with Mr. Shevardnadze on 7th December.

My Lords, I thank the Minister for that most encouraging reply. In so far as there seems now a new atmosphere between East and West—between Russia and the USA—would it not be a good thing for this Government of ours to approach both sides to try to hasten the endeavours that the Government are trying to bring about?

My Lords, if by "both sides" the noble Lord is referring to Iran and Iraq, who are involved in this unhappy conflict, I think the best way forward lies in all the world community supporting the activities of the United Nations Secretary-General. We shall certainly do that.

My Lords, even on the assumption that Russia were to co-operate with the West, what assurances are there that that fanatical crowd in Iran will stop fighting?

My Lords, one of the matters that we shall have to investigate is the attitude of Iran and the circumstances in which it might be willing to stop fighting. But if we were to accept the proposition of the noble Lord at its face value, then we should not make any efforts at all to bring this conflict to an end and that is certainly not our policy.

My Lords, the noble Lord said that the Resolution 598 was discussed at the meeting between Mr. Shevardnadze and Sir Geoffrey Howe on 7th December. Can he say what the result of that discussion was? Is he aware that he implied that Her Majesty's Government take the view that the USSR is taking no action whatsoever? Is that the case? If so, what pressure is being brought upon the USSR against the background of the new spirit of co-operation to comply with the resolution?

My Lords, I am bound to say that we have been disappointed in the response of the Soviet Union in this matter of late. However, as the noble Lord says, there is a new spirit abroad, certainly between the super powers and we hope that the Soviet Union, as one of the five, will agree that we should now be seeking to take this matter forward. As we see it, there is now a need for the Security Council to move to enforcement measures.

My Lords, I am obliged to the Minister for that reply. Will he go a step further and say whether there is any co-operation whatsoever between the Armilla patrol and our four minesweepers with the Russian forces in the Gulf?

No, my Lords. The United Kingdom forces in the area operate in conjunction with other allied forces; that is to say, the United States, France, Italy, Belgium and the Netherlands. We do not operate in conjunction with the Soviet Union.

My Lords, in so far as the Soviet attitude is changing dramatically and the Soviet Union supported the UN resolutions, could it not be made clear to its leaders that the resolution which we, the United States and the Soviet Union all support, is also supported by Iraq?

My Lords, the noble Lord has a point, but I think the way forward in this matter is to persuade all those who agreed to Resolution 598 in September to seek to have that resolution enforced. I do not believe the way to do that is by ringing declarations; it is by quiet, active diplomacy.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

My Lords, the Council of Ministers has now adopted a permanent scheme providing for distribution of free food from intervention stocks. A 1988 financial ceiling of £69 million for the Community as a whole will limit the quantities distributed. The Government are now considering the implications in close consultation with the main charitable organisations.

My Lords, I thank the noble Lord for that Answer. I am glad that he is already discussing the matter with the charitable organisations. He may recall that last year the distribution was improvised, and although the charitable organisations did a magnificent job they earned a good deal of opprobrium because it was not perfect. On this occasion, will the noble Lord associate the local authorities with the distribution? They were excluded from the distribution last year, but they have the best list of needy people through their social services departments. Many of them would be willing to help, especially if there were some financial help with the cost of distribution.

My Lords, this is one of the points we are considering, but we should need to be clear that it was an appropriate task for them. One change this time compared with last time is that charities and others will be able to recoup administrative costs and have them reimbursed up to 1 per cent. of the value of those products which are distributed.

My Lords, this may seem a small practical point, but is the Minister aware that one of the difficulties during the previous distribution of this ancient butter was that it came in bulk packs and not in domestic quantities? This made practical and fair distribution more difficult.

My Lords, so far as I am aware, the butter to which the noble Lord, Lord Sainsbury, referred was made available to charitable organisations in bulk from intervention stores and after repacking was distributed by them in retail-size packs.

My Lords, is the noble Lord aware of the feeling in the country that it is better to distribute some of the food in this way than to give it to Russia and other places cheaply? I am glad the Minister has taken up the point. Is he aware of the report in the Guardian—I am sorry that the Government are sometimes not keen on reports in the Guardian—that the Minister is still considering the scheme? Have the Government definitely accepted the scheme for this year? If so, will it not be much cheaper, because the EC will be prepared to pay for transport and distribution to distribution points in this country'? Would that not make cheaper the work of charities and councils, if indeed councils take up the work?

My Lords, we are considering the implications of the free food regulation now that the Council has adopted it. We will need to establish that there is a scheme which is workable in United Kingdom conditions. We are in close contact with the main charities. We will consult more broadly as appropriate before any distributions take place.

My Lords, is there any possibility of dispatching urgently some of the surpluses to Ethiopia and Mozambique?

My Lords, I feel that that question is slightly wide of the one on the Order Paper.

My Lords, is the noble Lord aware that the criticisms of the organisation on the last occasion were harsh and well justified? Can he give the House an assurance that on this occasion there will be a co-ordinated plan and that the Government themselves will take responsibility for it? Is he aware that I do not blame the charities, which are many and which do their best in the circumstances, because they are not competent to arrange a distribution of this kind? Can he say who in the Government is responsible for this scheme?

My Lords, in order to avoid any criticism in the future and to ensure that any plans that are laid are well laid, we are considering very seriously the implications and are consulting broadly to ensure that anything that is done is done properly.

My Lords, with respect, the noble Lord has not replied to my question. Can he say who in the Government is responsible? Is it his right honourable friend the Minister of Agriculture, Fisheries and Food, and was he responsible on the last occasion? Somebody must take responsibility. Will he tell the House who that person is?

My Lords, I am unable to inform the noble Lord the Leader of the Opposition who was responsible last time, and so I shall have to write him a letter on the subject.

My Lords, with all due respect to the noble Lord, I submit that my supplementary question was quite in line with the Question on the Order Paper. As this is a matter of urgency, I think it deserves a better answer.

My Lords, I shall write to the noble Lord.

My Lords, the noble Lord is always emphasising that the Government are considering the implications. Have the Government accepted the scheme or not?

My Lords, we are considering the implications of the free food regulation now that the Council has adopted it.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

My Lords, if all the intervention stocks held in the United Kingdom were sold at current world market prices, the loss on sale would be approximately £690 million. if disposal were spread over a period the actual cost would depend on movements in world prices, which cannot be forecast.

Losses on sale are normally borne by the Community. If member states bore the disposal costs of stocks held in their territories the effect on the United Kingdom would be much less than £690 million because we would not be contributing to disposal of stocks elsewhere. In fact, the present distribution of stocks is such that the effect on the United Kingdom would be broadly neutral.

The vote number under which parliamentary sanction would be sought would be a matter for decision at the time.

My Lords, I thank the noble Lord for his reply, but may I ask him to differentiate between the £600 million that he mentioned earlier in his reply and his statement at the end that the result might be broadly neutral? Either the United Kingdom will suffer a loss, and therefore the taxpayer will suffer a loss, if the Prime Minister's proposal to the Community is agreed to or it will not. Will he make the situation clear?

On the assumption that the noble Lord is correct in saying that the loss to the United Kingdom taxpayer was £600 million, will he notify his right honourable friend the Prime Minister that her generosity in this respect contrasts very directly with her entirely different attitude towards the National Health Service, towards which she has expressed her detestation?

My Lords, although the noble Lord feels that there is a difference, in fact there is a straightforward explanation. The stocks held in the United Kingdom and our contribution to a Community settlement balance if you work it out. It appears slightly illogical, I would be the first to agree with him, but if you think of what is held in the United Kingdom and set that against what our contribution would be if we contributed to a Community-wide disposal, it results in technical fact in a broadly neutral result.

My Lords, so the noble Lord may be fortified in that regard by EC opinion that his right honourable friend has in fact been offering the Community nothing.

My Lords, I am sure that that is not true.

My Lords, will my noble friend bear in mind that he has a great deal of sympathy when he is called upon to answer long, hypothetical questions of this kind, particularly when the supplementaries are salted by the noble Lord, Lord Bruce of Donington, with his dislike of the Prime Minister which I am sure she would not bother to reciprocate?

My Lords, I thank my noble friend for his remarks.

My Lords, does the noble Lord agree that ordinary people find it rather confusing that these massive stores have been built up in this country and on the Continent in commodities which are getting dearer and dearer in price? Is it not about time that we looked at the agricultural policy and tried to introduce some sanity into it instead of continuing to pay through the nose as we have been for the last 10 years?

My Lords, one thing I can assure the noble Lord of is that, quite contrary to being dearer and dearer in price, the commodities are going down and down in price.

My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Copyright, Designs and Patents Bill will be adjourned at approximately 7 p.m. for approximately one hour, and that during this adjournment the Mink (Keeping) Order 1987, the Coypus (Prohibition on Keeping) Order 1987 and the Medicines (Exemptions from Licences) (Carbadox and Olaquindox) Order 1987 will be taken.

moved Amendment No. 1:

Page 6, line 20, at end insert—

("or

(c) having regard to the national interest").

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.

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.

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.

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 No. 2:

Page 44, line 40, leave out sub-paragraph (a) and insert—

("(a) for subsection (2) substitute—

"(2) If—

(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

(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—

(i) the facts of the case, and

(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.";").

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—

(a) any British consular officer within whose consular district the port lies, or

(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

(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—

(a) to the registrar of the ship's port of registry, or

(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").

moved Amendment No. 8:

Page 46, line 26, leave out ("three months") and insert ("one month")

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.

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.

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.

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.

moved Amendment No. 10:

Page 46, leave out lines 33 and 34.

moved Amendment No. 11:

Page 48, line 42, at end insert:

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,").

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:").

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).").

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.").

moved Amendment No. 16:

Page 16, line 42, leave out ("is used for fishing") and insert ("fishes").

moved Amendments Nos. 17 and 18:

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").

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.

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

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.

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.

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.

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

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.

moved Amendment No. 20:

Page 21, line 44, after ("Kingdom") insert ("and intending to go to sea").

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.

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.

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.

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.

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?

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.

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.

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").

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.

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.

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.

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.

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.

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.

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.

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.

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.

moved Amendment No. 23:

Page 22, line 12, leave out paragraph (d).

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.

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.

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.

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.

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.

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.

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.

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.

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).")

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.

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.

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.

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.").

moved Amendment No. 29:

Page 24, leave out lines 3 to 6.

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.

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.

moved Amendment No. 30:

Page 24, line 40, leave out subsection (4).

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.

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.

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.

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

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.

moved Amendment No. 32:

Page 25, line 24, leave out ("the commission of") and insert ("committing").

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)").

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—

(a) ensure that the ship, machinery and equipment is suitable for its purpose and fully serviceable and maintained;

(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;

(c) ensure that ship management and safety policies are clear and fully supportive of the master;

(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—

(a) 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.

(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.").

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.

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.

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.

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").

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").

moved Amendment No. 39:

After Clause 35, insert the following new clause:

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.

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.

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.

moved Amendment No. 40:

Page 31, line 37, leave out ("the carriage of goods or passengers by sea") and insert ("any shipping services").

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.

moved Amendments Nos. 41 to 44:

moved Amendment No. 45:

Page 73, line 4, at end insert—

"( ) In section 42 (trade disputes involving seamen), omit subsection (2).")

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.

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.

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.

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.

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.

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.

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—").

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—

(a) any enactment providing for the document to be admissible in evidence or open to public inspection; and

(b) section 75A above,

shall apply to the").

moved Amendment No. 51:

Page 75, line 2, at end insert—

moved Amendment No. 52:

Page 76, line 2, leave out (""section 373"") and insert (""exempted"").

moved Amendments Nos. 53 to 59:

moved Amendment No. 60:

Page 81, line 10, column 3, after ("paragraphs") insert ("23,")

moved Amendment No. 61:

Page 81. line 42, column 3, at end insert ("In Schedule 2, paragraph 3.")

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).")

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

It may be a convenient moment for me to say a few words about the progress we hope to make today on this Bill. As I informed your Lordships last Thursday, it is our wish to sit until midnight tonight, no later than 6 p.m. on Thursday, and to complete the Bill on Tuesday 12th January. Your Lordships may wish to know that so as not to overburden business on the last day, it would be helpful were we to try to reach Amendment No. 274AZA tonight—that is to say, to complete Part I and Schedule 1 of the Bill.

moved Amendment No. 238D:

Page 44, line 12, leave out from ("society") to ("licences") in line 16 and insert ("corporate body or other organisation which negotiates or grants, either as owner or prospective owner of copyright or as agent for him,")

The difficulty that I have with this amendment is that it would appear to give an opening for a publisher or a recording company which buys out copyright or negotiates copyright on behalf of its authors, music writers or performers to have complete control in negotiating schemes. It would therefore be a different type of organisation than the Performing Rights Society and the various other organisations with which we are dealing. This seems to me too wide a definition; it would let too many potential people in.

In a way I should like to support this amendment. I wish to draw attention to a particular difficulty in the Bill. In my young days in chambers the Performing Rights Society was one of our customers. I got to know a good deal about licensing systems.

This amendment, or something to make the position clear, is very necessary. As I read Clause 105(2) it seems simply a statement of the company law as regards what is within a licensing body's powers and what is without its powers. Everyone knows that the objects clause in a memorandum of association is now drawn exceedingly widely so that the company can do practically anything it likes. A similar case exists in this definition of a "licensing body" which states that it is an organisation;

"which has as its main object, or one of its main objects"

this that and the other. It states what the objects include. That is typical of a wide objects clause in a memorandum of association of a limited company.

That is all very well. In a way one might like to see it pass, but throughout this part of the Bill the contrasting words,

"the operator of the scheme"

appear. Those words are not defined at all. Throughout the whole of the Bill it is the operator of the scheme who has to do this, that and the other. The operator of the scheme is well defined in what my noble friend Lord Cullen of Ashbourne said. He defined it as a,

"corporate body or other organisation which negotiates or grants, either as owner or prospective owner of copyright or as agent for him".

In other words that definition really refers to the operator of the scheme. At all events it is most important in the clauses on licensing to distinguish between the licensing body on the one hand and the operator of the scheme on the other. Either this amendment should be accepted or, better still, a definition included to say what the operator of a scheme is. Then it will be the operator of the scheme who has to deal with the matter. My plea would be to accept the amendment in a sense but really to put it under the definition of the proposer of the scheme.

This amendment would widen the definition of a licensing body significantly so that it was no longer a necessary condition that such a body had as its main object, or one of its main objects, the granting of copyright licences. The controls of ChapterVII are primarily intended to deal with the collective licensing of copyright. The effect of this amendment would be to bring within the definition of a licensing body many individual publishers, many of them no doubt small. Although we have not had time to consider the implications of this suggestion fully, it is unlikely to be acceptable since it comes close to bringing the licensing of individual works within tribunal control. For that reason, I feel it necessary to oppose this amendment.

I am very grateful to the noble and learned Lord, Lord Denning, for his support. I beg leave to withdraw the amendment at this stage and I shall possibly come back to it later.

I have two short drafting points to raise. I am reluctant to question the drafting of what has been generally accepted as a well-drafted Bill. However, I should like to ask the Minister to consider with the draftsmen whether lines 10 and 11 are necessary. I should have thought that they could be taken for granted.

The other matter concerns the words to which the noble Lord, Lord Cullen, referred in the context of Clause 29. The words are:

"its main object, or one of its main objects".

When the Committee discussed Clause 29 at considerable length, I ventured to question whether the Minister was right in reading into that clause the words "primary purpose". If one now finds, as a matter of construction, that the words:

"its main object, or one of its main objects"

are correct, it seems to me that that argument is reinforced. I have written to the Minister concerning that matter. I doubt that he has had time to consider it. But perhaps he can also consider that aspect in view of the drafting of the clause.

I should like to make more or less the same point as that made by the noble and learned Lord, Lord Simon, concerning lines 10 and 11, partly because I do not really understand what they mean. The words are:

"in the nature of a scheme"

and the Bill goes on to say:

"whether described as a scheme or as a tariff or by any other name.

Perhaps the noble Lord can give us some clarification as to exactly what that means.

I am grateful to the noble and learned Lord for his comments. I received a letter from him on the point he raised earlier in our Committee debate concerning the phrase "primary purpose". I shall be considering what he has said to me in regard to that matter and responding to it.

The noble and learned Lord, Lord Simon and the noble Lord, Lord Williams, have mentioned to me lines 10 and 11. As regards the words:

"in the nature of a scheme"

what we are alluding to is that a description of a scheme is a difficult matter on which to be definitive. Many schemes will have a different nature, depending on what they arc dealing with and the way in which they are operated. However, I shall look further into the matter and write both to the noble and learned Lord and the noble Lord mentioning the matter. I shall place a copy of my letter in the Library.

I am sorry to ask the noble Lord another possibly trivial question. I understand the meaning of Clauses 106(a) and 106(b) except in respect of film sound-tracks when they do not accompany a film. The Bill as drafted specifically refers to licensing schemes operated in relation to copyright for this, that and the other, including film sound-tracks when accompanying a film. However, the Bill does not say anything about sound-tracks not accompanying a film. Perhaps the noble Lord can help me.

Clause 106 introduces a group of clauses concerned with the control of licensing schemes. The licensing schemes in respect of the first group of works come under the tribunal only if they are operated by a licensing body, cover the work of more than one author and concern the uses specified in subparagraphs (i) to (iii) of paragraph (a). That restriction is basically because the works concerned all come within the Berne Convention. We would be acting outside our Berne obligations if, for example, the tribunal could adjudicate a licensing scheme operated by an individual author or film maker in regard to his own productions.

Licensing schemes in respect of the second group of works, which is not covered by the Berne Convention, cone under the tribunal whether or not a licensing body is involved and whether or not the work of more than one author is involved. As regards the specific point on film-sound tracks not accompanying a film, those will be dealt with in the same way as any other sound recording.

moved Amendment No. 238E:

Page 44, line 37, leave out ("with the consent of the person proposing to operate the scheme")

I support the amendment. The question which I raised earlier was: who is proposing to operate the scheme? The proposer is not defined. However, why should his consent he necessary? Why should he be able to give a veto? Surely if there is a proposed licensing scheme—it has not yet come into being—the terms should be able to be referred to by an organisation claiming to be representative of such people. The person proposing the scheme or operating, it should not have a veto.

The purpose of Clauses 107 and 114 is to allow parties who are discussing prospective schemes or licences but who cannot agree on terms to go jointly to the tribunal before a scheme comes into effect and obtain a decision. That saves time and effort to all concerned. The corresponding provisions in the 1956 Act have proved useful in the past to such bodies as the BBC and the Performing Right Society when negotiating terms. To allow one side on its own to refer a prospective scheme or licence would achieve little. If the other side did not agree to the reference, it could merely withdraw from negotiations altogether. A provision along the lines of the amendment has not proved necessary up to now, and I doubt if it would be workable.

For the life of me I cannot see why not. If there is an intractable quarrel about a proposed scheme, why on earth can it not be referred to the tribunal and what difficulty will it cause? I hope the Minister will take this away and consider it. Clause 114 states:

"The terms on which a licensing body proposes to grant a licence may, with the consent of the licensing body, be referred to the Copyright Tribunal".

Why on earth does the licence have to come into effect before appeal can be made to the tribunal without the consent of the proposed licensing body? I hope that the Minister will take away this amendment and consider it.

I support what the noble Lord has just said. I feel that my noble friend should look again at this matter because it seems to me perfectly clear that it would be good to have this amendment in the Bill.

I shall look carefully at what all Members of the Committee have said on this matter as I do on any other matter. The tribunal would come into the picture only when a willing buyer and a willing seller have found difficulty in negotiating financial terms for the transaction. Therefore it seems to me that if one side were to go to the tribunal it may well be that the other side (namely, the willing buyer or the seller) would no longer wish to enter into the transaction should the terms not be agreeable to them.

Does this not unduly restrict the scope of the tribunal? Clause 107(1) states:

"an organsiation claiming to be representative of persons claiming that they require licences".

They need licences for all sorts of reasons. If there is not a willing seller of the licence on the other side, then they should properly have the right to go to the tribunal and ask for arbitration on that matter. If the tribunal is to be restricted to a willing buyer and a willing seller, it seems to me it is a much less powerful body than we thought it was.

As I understand it, the idea of the tribunal is not to make it compulsory for copyright owners to become members of a licensing scheme in any way at all. If they wish to enter into a scheme as the willing seller, this comes into effect. It is not the idea to make it compulsory.

The difficulty is that there is some body proposing a licensing scheme, which presumably is a group of people who are owners of copyright. It is the users who will want to have the terms agreed by the tribunal. Owners of copyright are proposing a scheme. Why have they a veto on the proposed user (the consumer) going to the tribunal to fix the rate or fix anything else? But as it would be a help to get on with the Bill, I ask leave to withdraw the amendment at this stage in the hope that some rational consideration will be given to it.

I wonder whether the noble Lord can help me with a very small point which I do not seem to be able to resolve from reading the Bill. What is the status of the order made by the tribunal under Clause 107(3)? The tribunal is entitled to make an order. Is it an order to be laid before Parliament by a department? What is the status? I understand it is possible to appeal to the Secretary of State, but how can it be annulled by Parliament?

I understand that the order is an order made under the terms of this Bill. If it were made wrongly in the eyes of those involved it would be for them to make application to the courts to have the matter considered. I do not think that there is any provision for Parliament to look at these individual orders.

I am glad that the noble Lord confirms my interpretation of the Bill in that this order is not something which will come before Parliament. Presumably he is referring to the possibility of a complainant against the tribunal going for a judicial review of this order. Is that what the noble Lord means?

Yes. The answer on the status of the order I believe can be found by referring to Clause 112. It is not a parliamentary matter but is similar to a court judgment.

moved Amendment No. 238G:

Page 43, line 10, leave out ("claiming to be").

I should have thought that this amendment was unnecessary. It is quite clear that a society cannot necessarily be representative of such persons but only claim to be representative. I should have thought that the clause is all right as it stands.

Perhaps I may refer the noble Lord, Lord Morton, to Clause 137(3)(a). That provision requires rules to be made prohibiting the copyright tribunal from entertaining a reference under Clauses 107 to 109 which is made by an organisation claiming to be representative of interested persons unless the tribunal is satisfied that it is indeed reasonably representative. Thus the result desired by the noble Lord is already achieved. This wording already exists in the 1956 Act where it causes no problems. In this instance I see no reason to change it. Representativeness is a relative and not an absolute concept. It would seem to be right to leave the tribunal as the judge of it.

I quite agree and I am not disagreeing with that argument. It is a matter of the English language. It seems to me to be unnecessary to have an organisation "claiming to be" representative when, before the organisation can be heard by reference to Clause 137, the tribunal has to be satisfied that it is representative. Those seem to me to be unnecessary words but I shall not press the point. I ask leave to withdraw the amendment.

moved Amendment No. 239B:

Page 45, line 38, at end insert ("except that special leave shall not be required in respect of issues which were not argued before the Tribunal on the previous reference.").

It is quite reasonable to have this amendment in the Bill. In the ordinary courts we know that once an issue has been raised and decided it is what we call res judicata and is not to be reopened. If it is a different issue raised by a different party why should it not be reconsidered even within the 12 months if necessary?

Perhaps I could clarify whether the noble Lord, in moving Amendment No. 239B, is also speaking to Amendment No. 239D, as they are grouped on my list.

No, I was not.

In that case, I will take Amendment No. 239B separately. This amendment is intended to ensure that where a scheme is already subject to a tribunal order, the rules preventing a further reference until a set period has elapsed shall not operate in respect of new issues which the parties may want to argue. We have not had time to consider fully the implications of this, but it would seem readily open to abuse. There is already power for the tribunal to give special leave for an earlier reference, and that should be sufficient. For that reason, I oppose this amendment.

I am not quite sure that I have taken on board exactly what the noble Lord said but I shall read it in Hansard. Meanwhile, I beg leave to withdraw the amendment.

moved Amendment No. 239C:

Page 46, line 23, leave out from ("exception") to end of line 26.