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Merchant Shipping Bill Hl

Volume 491: debated on Monday 11 January 1988

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3.8 p.m.

Read a third time.

Clause 6 [ Refusal of registration]:

moved Amendment No. 1:

Page 6, line 20, at end insert ("or—
( ) to the national interest.").

The noble Lord said: My Lords, the Minister will be aware that we have dealt with this amendment a number of times before, but I make no apologies for bringing it hack to your Lordships' House. It is an extremely important amendment to me and to my noble friend Lord Underhill. We believe that the time will come when either the Government will wish they had taken this power or departmental lawyers will comb the Bill for powers which could just perhaps be interpreted as applying in the way that our amendment suggests.

We are suggesting that one of the considerations that should be taken into account before a ship is flagged and allowed on the British register is that it should be in the national interest to do so. The Minister will recall that in the other debates we had my noble friend Lord Mulley in particular suggested how important it was that Ministers should occasionally take political decisions. He suggested that the role of Ministers was to take political decisions.

At col. 440 of the Official Report of 14th December 1987, when I once again withdrew a similar amendment because of certain things which the Minister had said, I asked the Minister whether he was aware of how other nations decided their registration policy and whether they had in some way, either specifically or in general, given their ministers or shipping departments the opportunity to reject out-registration on the basis that it would not be in the national interest. Perhaps the Minister, having looked at the amendment standing in my name and that of my noble friend Lord Underhill, will be able to answer that question today. I beg to move.

My Lords, I have to say that I am no more able to accept the amendment now than I was at either Committee or Report stage. I am slightly surprised that it should come up for the third time today. Nothing that has been said has persuaded me that it would be right to make this change to our system of registration.

As I have already said, I believe that to adopt a discretion to refuse registration on the grounds of national interest would be unfortunate. The present system of registration has served us well for over 90 years. The changes which this Bill would make to that system have been carefully thought out. They preserve what is best about the present arrangements, including their clarity and ease of operation so that everyone knows where they stand, while making useful improvements such as the addition of a power to strike vessels off the register on clearly defined grounds of safety, pollution and the safety, health and welfare of persons employed on board. To add the ambiguous and ill-defined criterion of the national interest would disturb this balance and would need strong justification.

I do not believe that the transfer of a handful of tankers to the British register last summer represents sufficient justification. They are not the first, and will not be the last vessels beneficially owned overseas to seek the benefits of British registry. Indeed, I hope our register will remain attractive to foreign investment.

The noble Lord, Lord Carmichael, asked me at the end of our debate on the amendment at Report stage and again today about the practice in other countries. Not surprisingly, the position varies from country to country. I understand that Denmark and the Federal Republic of Germany have no power to refuse registration to qualified persons on national interest grounds. Nor does Spain have any such power, although it is possible that administrative discretion could have that effect.

In the United States, the Coastguard is obliged to register a vessel which meets the requirements, although I understand that the President can overturn a Coastguard decision to register a vessel if he believes it is in the national interest to do so. In France, registration is regarded as a privilege rather than a right and could in theory be refused, although I believe it has not been known for vessels meeting the criteria to be refused. The Greek minister does have a right to refuse registration if that is deemed to be against the interest of the national economy.

It is therefore not easy to draw any firm conclusions. There are so many complex differences in other countries' registration arrangements that useful international comparisons are difficult to make. All I can say is that we are clearly in good company in not having a discretionary power. Just because some countries have chosen to adopt such a power does not convince me that it is right to graft one on to our system. It was said in earlier debates on this amendment that ministers should exercise discretion in the national interest. I believe that on this occasion the national interest is best served by maintaining the present well-tried system of simple, comprehensible criteria for registration. I hope that with that further explanation the noble Lord will feel able to withdraw his amendment.

My Lords, before the Minister sits down and before my noble friend comments on what he has said, I believe that the Minister referred to the interest of the national economy. Is that the only aspect of the national interest which he believes could possibly arise? Will the Minister point out in any of the clauses in the Bill where the national interest as such is referred to?

My Lords, with the leave of the House, the national interest is not referred to in the Bill. I mentioned the national economy when giving a comparison with the situation in Greece and I also mentioned one or two other countries. In Greece, there is a right to refuse registration which is deemed to be against the interest of the national economy.

My Lords, I am grateful for the trouble which the Minister has taken to answer what I thought was a pertinent question which I put at Report stage of the Bill. I believe that his answer will help in the consideration to be given to the Bill in another place. However, realising that I have already raised the matter for the third time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

moved Amendment No. 2:

Page 21, line 43, at end insert—
("( ) unfitness of watchkeeping personnel due to fatigue;").

The noble Lord said: My Lords, a ship which meets minimum safe manning in terms of numbers and qualifications is potentially unsafe if the watchkeeping personnel are fatigued and unfit to take the first sea watches. As long ago as 1979, the department came forward with proposed work safety regulations for merchant shipping hours. Those have still not been finalised. There has been no indication of the department's intentions in that respect since 1979.

The subject of fatigue is on the agenda of the International Maritime Organisation sub-committee on standards of training and watchkeeping at its 20th session which commences today. Will the United Kingdom be supporting the efforts of IMO to regulate hours in a manner similar to regulations on road, rail and air transport?

I have a copy of a letter sent on 28th January 1982 to the officers' union, NUMAST, from the Marine Division of the Department of Trade, which is now the Department of Transport Marine Directorate. The letter contains a reminder that the United Kingdom ratified ILO Convention No. 147 and it clearly states the recognition that hours of work must be regulated. It says:

"The United Kingdom ratified ILO Convention No. 147 on the Minimum Standards on Merchant Ships on 28th November 1980 … each member (state) which ratifies this Convention undertakes to ensure for ships registered in its territory the existence of safety standards, including … hours of work".

The letter continues:

"With this objective in view and, as there is an indisputable case for limiting the hours of work of watchkeepers in both navigational and engine room/imachinery space watches, the Department proposes to proceed with the making of these regulations".

The letter is dated 1982—six years ago. A draft regulation was sent with the letter, which contained the comment that:

"It is hoped to make these regulations effective as soon as possible".

It seems that, as we áre now considering the Merchant Shipping Bill, this is an excellent opportunity to insert a provision to carry out the intention which was stated no less than six years ago. That is the substance of Amendment No. 2, which I beg to move.

My Lords, the matter raised by the noble Lord, Lord Underhill, in this amendment is indeed a familiar and serious one. It arises in a number of guises. I can give a number of examples but perhaps the most notable at the moment is the publicity given recently to the reductions in crew ratios on cross-Channel ferries. A second scenario is that of a deep-sea ship which is in port for a fairly short period—say less than a day—and during most of that time crew members are supervising the loading and perhaps also maintenance and minor repairs to the ship. The ship then puts to sea with the efficiency of the crew possibly dangerously impaired.

The amendment before your Lordships would make it an offence if fatigue of watchkeeping personnel shortly before the ship went to sea meant that when she put to sea she would be dangerously unsafe. It would not deal with a case where a crew became fatigued while at sea, whether because their duties were excessive or because they used their off-duty hours to the full, so to speak. Nor would it deal with the somewhat parallel situation of crew members impaired through drink or drugs; that is dealt with, in a different way, in Clause 31. There is therefore perhaps a degree of arbitrariness about the proposal.

The greater problem however is that there is no reliable medical method of determining whether a person is fatigued. There is no blood or breath test analogous to tests for alcohol. Except in the most extreme cases, a seaman's previous waking hours—whether due to a long spell on duty or to off-duty activities—are really not a guide to whether he is fatigued and, the Government are confident, could not lead to a successful prosecution. This position should be contrasted with subsection (2) items (a) to (c) where there is a wealth of regulatory and advisory material to define when a ship is in an unfit condition, is undermanned or improperly loaded. In short, the Government believe that this is an area which is not susceptible to a satisfactory statutory solution. Shipowners are already subject to the provisions of the International Convention on Standards of Training, Certification and Watchkeeping, to which the noble Lord, Lord Underhill, referred. The certification and watchkeeping parts of that convention are given effect in UK Law by Statutory Instrument 1982/1699 which requires the master of any ship, other than fishing vessels and pleasure craft, to ensure that watchkeeping arrangements are adequate for maintaining safe navigational and engineering watches. Among the matters to which he must have regard is that the system must be such that the efficiency of watchkeeping officers and ratings is not impaired by fatigue. That statutory instrument is drawn to the attention of ship owners and seafarers in Merchant Shipping Notice No. M1102. The Government do not believe however that this is an appropriate matter to be dealt with in primary legislation by adding it to this subsection of the Bill.

I shall consider carefully the points that have been made by the noble Lord today. The proposals coming from the department some while ago, to which he referred, are still under discussion and have not been abandoned. However, there are difficulties. We are still looking at them and I cannot say a great deal more about that on this occasion. I do not believe that the proposed amendment would be suitable to include in this Bill.

My Lords. I am grateful to the Minister for that reply. I find it hard to appreciate that it is difficult to get a definition of fatigue in the light of the fact that the department has been considering this matter for something like seven or eight years. Presumably it should have come up with a definition by now. However, I am pleased to note that the Minister has said that the matter has not been abandoned and presumably will come forward in regulations at some time. I hope that, in view of the letter to which I referred dated January 1982, which is now six years ago, there will be a speeding up of this matter because it appears to me that the Minister appreciates that there is point in the amendment even though he does not wish to include it in the primary legislation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 3:

Page 22, line 2, at end insert ("as specified in a regulation made by the Secretary of State.").

The noble Lord said: My Lords, this amendment springs from our discussions on this point in which I was seeking to remove subsection (2)(d) from the clause under consideration at the Report stage. The concluding stages of the discussion can be found in cols. 460–463 of Hansard dated 14th December.

My noble friend Lord Strathcona and I came to the joint conclusion that the Government might accept an amendment on these lines because they seemed keen not to let go of the opportunity to be able to expand on subsection (2) of Clause 29. What is objectionable about the existing wording is that it is so comprehensive that people can be, as it were, found guilty without having known that they have committed an offence. That is what sticks in the gullet. If it is necessary to be able to widen subsection (2), perhaps my amendment would allow my noble friend and his department to expand on it from time to time by secondary legislation, amending it as necessary. This would seem to carry it as far as is reasonable, because at least secondary legislation would be known to the people who are concerned with this Bill and they would not be taken by surprise at being accused of having done something or failed to do something that they had never thought of beforehand. I hope that my noble friend will find that this compromise amendment is acceptable to him. I beg to move.

My Lords, at the Report stage I supported, with the backing of my colleagues, the amendment of the noble Lord, Lord Mottistone, to delete paragraph (d). I appreciate the arguments put forward by the Minister, but now I have the greatest pleasure in supporting this amendment which seems to meet the Minister's argument that he did not want to rule out the possibility of any other relevant matter to the safety of the ship applying to this particular clause. The amendment gets over that argument by suggesting that it should come forward in secondary legislation in the form of regulations. It is a very reasonable amendment which the noble Lord, Lord Mottistone, has put forward and I hope that the Minister will appreciate that it goes a long way to meeting some of his arguments. Therefore, from this Bench we support the amendment.

My Lords, on the last occasion I think I was in a minority of one in supporting the Government over this matter. I think that what is now produced as a suggestion is very sensible and I hope that the Government will consider it favourably.

My Lords, when I spoke in Committee in response to a new clause proposed by the noble Lords, Lord Underhill and Lord Carmichael. I stated, perhaps rashly, that the total deletion of these words would not emasculate the Merchant Shipping Bill. I should have thought that that was undeniable. But, as has been said, it is not quite the same as saying that I believe the Bill would be just as good with or without the words in subsection (d).

The Government recognise that the amendment before the House this afternoon has been proposed by my noble friend in a spirit of compromise, following the Government's decision to oppose the complete deletion of subsection 2(d) during the earlier passage of the Bill. The amendment would indeed be less objectionable than complete deletion. It would enable the Secretary of State, for example, to make orders dealing with all the various matters that I mentioned at Report stage where there was reasonable doubt that they were caught by subsections (2)(a) to (c). I have however previously explained that the basic purpose of Clause 29(2)(d) is to deal with what is unforeseen.

The "Herald" disaster showed us that it is in fact the most obvious things that can sometimes be overlooked by the law: nobody imagined that a ship would go to sea with her doors open and therefore at the time of the accident no law had been made to make that a specific offence. Under the Bill now before your Lordships this would be an offence on the part of the owners under Clause 30 and on the part of the master under Clause 31. It is not in fact an appropriate matter for Clause 29 because it has to do with the way the ship is operated rather than with the inherent unfitness of the ship to go to sea. But the lesson is still a valid one: Clause 29(2)(d) is there, not to catch things which the owner could not reasonably have been expected to do, but to catch those things which he obviously ought to have done but unforeseeably failed to do.

In previous discussions, I have attempted to give examples of matters which Clause 29(2)(d) might catch. But I have emphasised throughout that the provision is not as broad as it might at first appear. Not only must the matter be "relevant to the safety of the ship" but it must render the ship "unfit to go to sea without serious danger to human life". To delete this provision would mean that it would not be an offence to have a ship that seriously endangered human life if it was for reasons other than paragraphs (a) to (c).

The Government have given serious consideration to the argument that a provision as general as subsection (2)(d) is bad law and the Government are not convinced. It is in fact rather unusual when defining a criminal offence to elaborate that offence with examples at all. The more conventional course would be to leave the offence as defined by subsection (1). In practice that would not be a satisfactory solution in this case because it needs to be crystal clear that the general offence in subsection (1) does in fact cover the items in subsection (2)(a) to (c). But the purpose of paragraph (d) is, as I have stated before, to restore the generality of the offence in subsection (1) which, as I have said, is entirely conventional by comparison with criminal law generally.

We have also asked ourselves whether there are any specific matters that the General Council of British Shipping or the seafarers' unions might be afraid that subsection (2)(d) might cover but that it would be unfair for it to cover. Perhaps I should ask noble Lords the same question. I believe that the General Council's concern is that a ship might suffer an accident for a reason which could only be seen to have endangered her with the benefit of hindsight.

In that connection, I would simply draw the attention of the House to two points. First, subsection (5)(b) provides a defence against charges under this clause that, "it was reasonable for such arrangements"—that is, arrangements appropriate to ensure that before the ship went to sea it was made fit to do so without serious danger to human life—"not to have been made." Obviously if the particular factor that endangered the ship could not have been perceived by a reasonable person to have done so except with hindsight, it will have been reasonable for such arrangements not to have been made. Secondly any provision of this kind is subject to the good sense of the courts in interpreting it. It would not be usual for the court to find the person guilty of an offence, still less to impose a heavy fine or imprisonment, if the course of action or the omission could only have been perceived to be dangerous in retrospect. That would be contrary to natural justice.

I hope that with the further explanation I have given, the House will agree that the amendments are unnecessary and indeed undesirable. I hope that my noble friend, having heard my further explanation, will be able to withdraw these amendments.

3.30 p.m.

My Lords, I am most grateful to my noble friend for explaining the situation so fully. I very much take the point he makes about the relevance of subsection (5)(b) in modifying the potential danger of unforeseen errors that subsection (2)(d) presents. I am left worried about this fact. At the earlier stages of the Bill—I forget whether it was at Report or Committee stage; it does not matter—I asked my noble friend whether this catch-all phrase—in order to catch people retrospectively—was normal in an ordinary Bill. My noble friend has explained that subsection (1) is conventional in an ordinary Bill; and by a rather complicated argument he argues that subsection (2)(d) gives effect to the sense of subsection (1). It sounds to me rather convoluted and not a straight answer to the question of whether there are other examples of legislation where a clause a blunt as subsection (2)(d) is included. If noble Lords will allow it, perhaps my noble friend can give me such an example. That would be extremely helpful for my total reassurance.

I have a feeling that, because of the "Herald of Free Enterprise" disaster and because of an enormous sense of guilt on the part of my noble friend's department, everything possible is being done to make sure that it is protected from such a disaster in the future. I do not mean that everybody is protected, but that the department is so protected. That is what comes through to me. The law should not be pushed to the extremes to which it is being pushed in this case simply because, coincidentally, this Bill comes before your Lordships after a major disaster. I have never felt that my noble friend's department was in any way to blame for that disaster, and I do not think that many people have so suggested. I therefore do not think that his department needs to be quite so sensitive in protecting itself by this wording which is convoluted and unnecessary.

I hope that my noble friend will consider my argument—which obviously cannot now be fought out in this place—before the Bill comes back in another place. If my noble friend can give me that reassurance, and an example of where this appears in other legislation, I shall be most grateful.

My Lords, I cannot give a specific example of another Act. I said, with the leave of the House, that it was rather unusual when defining a criminal offence to elaborate that offence with examples, as we do in subsection (2)(a) to (c). Subsection (2)(d) is implied by subsection (1). If subsection (2) is omitted, anything included in subsection (2)(d) would certainly be covered. Subsection (1) is entirely conventional with other Acts. I can assure my noble friend and your Lordships that the aim of the measures that we have had to bring in since the "Herald of Free Enterprise" disaster—whether included in this Bill or in any of the regulations that we are bringing through at the moment—has not been to protect the department. I hope that there will not be another disaster of that sort. It is to protect the travelling public.

My Lords, I can see that it is not possible to press my noble friend further at this stage. I also understand that he cannot give me any undertakings. However, I hope that he will give this further thought, having read carefully what has been said by me, the noble Lord, Lord Underhill, and the noble Viscount, Lord Simon, whose support I very much welcome on this compromise solution. Perhaps this rather unsatisfactory subsection can be modified in some way at a later stage. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 4:

Page 22, line 9, at end insert—
("( ) Where the master has properly delegated tasks and responsibilities or is obliged to rely on shore staff for essential operations this section shall apply to those persons as it applies to the master.").

The noble Lord said: My Lords, we are still dealing with aspects of Clause 29, which concentrates to a great extent on the question of safety. Noble Lords may recall that at Report stage I sought to separate the responsibilities of the owner and the master. I argued that it was wrong to place a liability on a master for something for which he could not be responsible. The Minister rejected this attitude and said at the end of the day (I am paraphrasing) that the master must accept ultimate responsibility.

The amendment is rather different from those we have considered previously. It suggests that it is unreasonable to place strict criminal liability on a master for operations over which he has no real control, such as container terminal loading, the stuffing of containers, shore controlled count of passengers, and matters of that kind, or where he has properly delegated tasks and responsibilities, such as the securing of cargo, and maintenance of machinery and equipment. The Government have recognised this problem with the owner by placing liability on the manager as appropriate. It is therefore reasonable to recognise situations over which the master has no direct control.

I have read and re-read the Minister's reply to the amendment that I put forward at Report stage which sought to separate the responsibilities of the master and the owner. I believe that the amendment avoids that course. However, it seeks to apportion responsibility in the right places, as the Minister has urged. If noble Lords will consider the amendment carefully, and the arguments that I have put forward, they will see that the amendment deals with matters over which the master will have no control whatsoever. It seems a reasonable course to adopt, and I hope that the Minister will accept the amendment. I beg to move.

My Lords, I am afraid that this time I cannot go along with the noble Lord, Lord Underhill. This is another example of an amendment which would seek to diminish the authority of the master. On one occasion I had to victual my ship in a hurry and I relied on the shore staff to provide the victuals because I thought they knew what I wanted and would be bound to do it. They did not provide the victuals. We went off on a fairly extensive trip and we were away from a proper shore base for about two months. We reached the stage where we were not starving, but we were certainly on hard tack and the ship's company were extremely upset. I fully saw that as my responsibility. I made the mistake of relying on the shore staff to do something that I was not sure they could do.

If this sort of amendment is accepted, masters of ships will feel that they can rely on shore staffs when perhaps it is not wise—I am saying not that it is wrong but that it is not wise so to do. I strongly advise that this sort of amendment is not put in the Bill because it will give masters the wrong impression. I learnt from my experience and never trusted shore staffs thereafter.

My Lords, the Government agree with what my noble friend Lord Mottistone has said. I am afraid I cannot support this amendment.

At first sight, it may seem reasonable to extend to shore personnel the liabilities in criminal law of the master, in matters where the way they carry out their functions may affect the fitness of the ship. However, I should like to make two observations. The first is that operations on shore—such as obtaining details of the cargo etc, or carrying out essential work to keep the ship and its equipment in a fit condition—will usually be undertaken by, or be under the control of, the owner or manager. The effect of this amendment is therefore primarily to confirm the liability of the owner and manager and to extend that liability to his agents.

The second point that I should draw to the attention of your Lordships is that the master is well placed to supervise the condition, the loading and the manning of the ship. If a piece of equipment is changed or repaired he is well able to have his engineer inspect it. He can have his crew supervise the loading, he can ensure that the draught is properly checked, and it is he who is required to satsify himself as to the ship's stability. One should not underestimate the authority or responsibility of the master.

Of course there are situations where the master in practice has little choice but to accept what is provided by the owner. A cross-Channel master, for example, has little opportunity to check comprehensively the ship's condition. But the owner is already covered by the clause. In general it is wrong to imagine that the courts—or indeed the prosecuting authorities—will bring, or seek to bring, a conviction regardless of blame. The courts are in general very reluctant to convict somebody for something that he could not have avoided, and that is a considerable protection.

The amendment would without doubt detract from the clarity of the clause. Responsibility should stay with those who are naturally responsible for the ship—the owner, the manager and the master. No one's interest is served by trying to spread responsibility wider than that. I doubt whether most masters would wish their responsibility to be compromised in this way, as my noble friend Lord Mottistone pointed out with a perfect example of something which, though not particularly unsafe in the operation of the ship, undoubtedly caused serious discomfort to those on board. I hope therefore that, with the explanation I have given, the noble Lord, Lord Underhill, will not seek to press his amendment.

My Lords, I recognise the experience and the authority with which the noble Lord, Lord Mottistone, speaks on this matter; an experience which I do not share. I am grateful for what the Minister has said, but I was rather surprised when he said he was doubtful whether any master would wish to be compromised in this way. As I believe I have said on previous occasions, on some of these issues we have been advised by NUMAST, which is the officers' union and which includes masters. That union is strongly in favour of the adoption of the amendment. The liability of the owner is laid down quite clearly in certain aspects. That I agree, but this matter goes beyond the owner. We are considering other persons who might be responsible for offshore activities. At some point one has to draw the line to determine where the master is responsible. There must be a line somewhere. To suggest that the master may, either himself or through other members of his crew, be completely in charge of loading and the stuffing of containers is surely carrying imagination a little too far.

I believe that what the Minister has said will be very helpful in considering this matter further, particularly when it goes to the other place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.45 p.m.

moved Amendment No. 5:

Page 22, line 23, at end insert —
("( ) All suitable measures shall be taken by the Secretary of State to make known to owners, managers and masters of ships registered under the law of arty country outside the United Kingdom, while in a port in the United Kingdom, their liabilities under this section.")

The noble Lord said: My Lords, it may be for the benefit of the House if, in addition to speaking on Amendment No. 5, I speak also to Amendment No. 6, which in effect carries out similar principles. The International Labour Organsisation conference, at its 74th maritime session held in Geneva as recently as October 1987, approved the recommendation governing seafarers' welfare at sea and in port. Clause 18 of the text of the recommendation includes the words:

"All suitable measures should be taken by the competent authorities to make known to ship owners and to seafarers entering port any special laws and customs, the contravention of which may Jeopardise their freedom".

Amendment No. 5 seeks to put that part of the recommendation into the Bill. As we do not often have merchant shipping Bills—some noble Lords may be grateful for that—this would seem to be an admirable opportunity to make this a statutory provision. Admittedly the ILO recommendation was carried only in October 1987, but it seems that we should give this matter consideration now. I hope the Minister will be able to accept that. If not, I hope he will give an undertaking that he and the Secretary of State will give the matter serious consideration before the Bill passes to the other place.

Amendment No. 6 contains the same principle as Amendment No. 5. It is also aimed to conform with clause 18 of the ILO recommendation that I have quoted, but in this case the offences apply to masters and seamen of non-UK ships within the limits of the territorial sea of the United Kingdom. Therefore the phrase,

"while in a port in the United Kingdom".

has been omitted from the amendment as it does not adequately reflect the geographical scope of the clause. I beg to move Amendment No. 5. The same principles apply to Amendment No. 6.

My Lords, the Government have two difficulties with these proposals; one is practical and the other is a matter of principle.

First, the practical difficulty: it seems to the Government that the only way that the duty under the proposed amendment to Clause 29 could be discharged would be to hand to the master of any foreign ship visiting the UK a copy of the clause, advice as to its effect, and all the statutory instruments, merchant shipping notices and international conventions that a court might consider relevant in applying the clause. With the amendment to Clause 31, the task is even greater since that clause is not limited to ships in port and it could he argued that foreign masters should receive the advice before entering UK waters. I doubt whether that is practical, and I also doubt whether it is necessary.

The duties contained in and implicit in these clauses are little more than tradition and common sense. No shipping company which is conscientious about the safety of its ships will fall foul of these clauses anyway. The purpose of these clauses is not really to create duties but to create offences, and any person travelling to another country knows that the penalties for any particular action are likely to vary in their severity from one country to another.

In passing I would draw to the attention of the House that, in connection with the series of specific orders that the Government are now making as a consequence of the loss of the "Herald of Free Enterprise", we are in close touch with foreign shipping administrations, both through the International Maritime Organisation and in regional multilateral talks. Our objective is that as many as possible of our measures should be adopted internationally, be incorporated into the appropriate international convention and then be applied by all countries. That, so far as our secondary legislation on ferries is concerned, will obviously go a long way towards meeting the concern that lies behind this amendment.

I now return to the Bill, and I come to the difficulty of principle that the Government have with these proposed amendments. This is that the Government do not in general accept responsibility for acquainting even their own citizens with their legal obligations. It is the job of the people working in any field to acquaint themselves with the state of the relevant law. That is not to say, of course, that governments do nothing to publicise the law. Motorists can buy a copy of the Highway Code, and shipowners and seafarers can make arrangements to receive merchant shipping notices. But that is not the same as placing upon government the responsibility to inform people about the law. There is a saying, which some will no doubt quote in Latin, that ignorance of the law is no excuse, and I believe that it is as appropriate here as anywhere.

The recommendation to which the noble Lord, Lord Underhill, referred is only a recommendation. I have given reasons as to why we do not think that it is practical to accept the amendment or the principle that lies behind it.

My Lords, once again I am grateful to the Minister for that detailed reply. He has mentioned the practical steps which cause him to reject the amendment. He said that the matter was plain common sense (not referring to my amendment—I wish that he had been) and he also pointed to the principle that the Government are not duty hound to advise persons of offences for which they are liable.

My amendment is based solely on clause 18 of the recommendation which I quoted and which was carried at the ILO Maritime Conference as recently as October of last year. I should be interested to know of the attitude taken by the representatives of the British Government at that conference. Did they put forward the arguments which have been advanced by the Minister? If they did not, then the Government must take responsibility for the fact that we have that recommendation. My amendment is based solely on clause 18 of the recommendation of the ILO Conference; it has not merely floated into the minds of either myself or my noble friend Lord Carmichael.

Does the Minister feel that he has the leave of the House to say what was the attitude taken by the government representatives at that conference in October 1987? When the Minister has made his statement, I shall beg leave to withdraw the amendment.

My Lords, with the leave of the House, I should like to look at the matter in more detail and write to the noble Lord. I believe that the recommendation concentrated on unusual and special laws rather than on the generality of shipping laws. I should like to write to the noble Lord giving further details.

Amendment, by leave, withdrawn.

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

[ Amendment No. 6 not moved.]

Clause 32 [ Investigation of marine accidents]:

moved Amendment No. 7:

Page 27, line 19, at end insert ("Requirements as to reporting of situations or incidents which are not accidents shall recognise the confidential nature of such reports.").

The noble Lord said: My Lords, this is the last amendment which we at this Dispatch Box have the responsibility of proposing to your Lordships.

Amendment No. 7 relates to Clause 32, dealing with. the investigation of maritime accidents. In this connection the Department of Transport issued Consultative Document No. 6. The heading of paragraph 16 of the document read:

"Reporting of Accidents to Include Every Occurrence which is Potentially Hazardous to the Ship or to any Person on Board (to apply to UK ships only)".

The paragraph referred to the draft of the proposed M Notice, which commenced:

"One of the recommendations of the Court of Formal Investigation into the capsize of the 'Herald of Free Enterprise' was that consideration should he given to requiring every potentially hazardous occurrence to he reported".

The department's draft referred to the Safety Officials and Reporting of Accidents and Dangerous Occurrences Regulations 1982. It stated that the list given in those regulations is not exhaustive. It further stated:

"and that the department's intention is to introduce legislation to meet the court's recommendation to cover all hazardous incident".

The amendment which I now propose clearly relates to the particular recommendation of the Court of Inquiry and to the intention declared by the department in the consultation document.

However, in its reponse to the consultation document NUMAST expressed concern at the department's proposal for a voluntary reporting arrangement as suggested in the draft M Notice. The statement was made in advance of the decisions which have yet to be taken on the provisions of Clause 32 of the Bill. This amendment presents an admirable opportunity for a statutory reporting requirement to be written into the Bill. It would carry out the intention of the department's consultation document, except that it would make the reporting statutory instead of voluntary.

I am informed that if the amendment is accepted by your Lordships, NUMAST would readily co-operate in the operation of such a reporting system. However, it is emphasised that any such system must be properly thought out. NUMAST would be happy to engage in any discussions that the Minister may wish if he feels that he can accept at least the principle of the amendment. I beg to move.

My Lords, it gives me pleasure to say that the General Council of British Shipping has advised me that it supports the amendment in principle. However, it considers that the wording should be altered, although it has not informed me how. The council thinks that the wording is not clear hut, in principle, it supports the amendment. I hope that my noble friend will be able to take that into account.

My Lords, the amendment conveys a very important idea and one that the Government wholeheartedly accept; namely, that important incidents that could, if repeated, lead to accidents in the future may not be reported if the person in a position to report them is afraid of disciplinary action or even prosecution based upon the information in his report.

In the aviation field, there are arrangements for both open and confidential reporting of incidents and both arrangements play a part in improving air safety. In the marine field, there are at present no general arrangements for the reporting of near misses or of the discovery of situations that might have led to accidents. The Sheen Report on the loss of the "Herald of Free Enterprise" proposed that this should be considered. It can certainly be argued that, if earlier incidents of ferries going to sea with their doors open had been reported, the Department of Transport would have been able to take action to reduce, if not exclude, the possibility of a tragedy. In fact, the department has already issued for consultation proposals for voluntary reporting of hazardous incidents, but in due course arrangements will be incorporated in the order that the Government will make under Clause 32.

However, it is by no means clear that all incident reporting should be confidential, as the proposed amendment would imply. Reports of near collisions are made now, from time to time, by masters who wish to complain about another ship's behaviour. There is no need for those reports to enjoy statutory confidentiality, nor does one wish it to be open to a master to file a confidential report in order to obtain some degree of immunity for his own actions. So fairly careful definition and drafting of the requirements will be needed.

However, I can assure the noble Lord and my noble friend that the Government are very much aware of the contribution that confidential reporting can make to safety; and we intend to give careful consideration to this in drawing up regulations under Clause 32. I said in Committee that we wished to consult both N UMAST and the GCBS on the drawing up of these regulations, and I can assure the noble Lord that we will also take into account what has been said this afternoon on that matter. I hope that with that assurance he will feel able to withdraw the amendment.

4 p.m.

My Lords, in those circumstances, I could almost say that I am delighted to withdraw the amendment. I am very pleased that the last amendment we proposed from this Dispatch Box has met with such a harmonious reception. I am grateful to the noble Lord, Lord Mottistone, for conveying the view of the General Council of British Shipping that, in principle, it supports what is in the amendment; and the Minister has confirmed that the Government, likewise, are in support of the principle.

Presumably the regulations, which I am pleased to know will be the subject of consultations with everybody concerned, will be issued as soon as is practicable. It appears that, in the light of the investigation and the court's recommendation arising from the recent tragedy at Zeebrugge, too much time should not elapse before the regulations come forward either in a negative or an affirmative form. However, in whichever form they come forward, I believe it should be in the not too distant future in order to carry out the investigations that have been recommended.

My Lords, the regulations of which I am talking are under Clause 32 of this Bill and therefore cannot come forward until the Bill has passed through another place, but I hope that they will not be unduly delayed.

Amendment, by leave, withdrawn.

Clause 36 [ Licensing of tidal works by harbour authorities]:

moved Amendment No. 8:

Page 31, line 35, leave out ("of a licence in the exercise of the relevant power") and insert (", in the exercise of the relevant power, of a licence to carry out a prescribed operation").

The noble Lord said: My Lords, I beg to move Amendment No. 8, and I shall speak also to Amendments Nos. 9, 10, 11 and 12. These are technical and correcting amendments to the clause which was added to the Bill at Report stage. Amendments Nos. 8 and 9 are intended to make it quite clear that in this clause "licences" means licences relating to the carrying out of an operation of the kind described in Section 34(1)(a) to (c) of the 1949 Act and carried out within the specified jurisdiction of the harbour authority.

Amendment No. 10 would enable the Secretary of State to review the decision of a harbour authority, not only in the absence of any appeal to him under the regulations made under this clause but also—the new point—in the absence of one made under local legislation. The additional powers of review provided in subsection (3) do not apply where the decision of a harbour authority is already the subject of an appeal made in accordance with regulations under this clause. They are now also disapplied where an appeal has been made under the provisions of local enactments, thus avoiding duplication of the Secretary of State's powers to review harbour authority decisions. This takes account of my comments on Report and enables the desired changes to be made with one amendment, rather than with two as we had earlier thought necessary.

Amendments Nos. 11 and 12 are, I think, self-explanatory and rectify an administrative slip to which I drew attention when moving the addition of this clause to the Bill on Report. I beg to move.

On Question, amendment agreed to.

Page 32, line 25, leave out ("of a licence in the exercise of the relevant power") and insert (", in the exercise of the relevant power, of a licence to carry out a prescribed operation").

Page 32, line 26, leave out ("under the regulations") and insert ("(whether under the regulations or otherwise)").

Page 32, line 31, leave out ("30") and insert ("60").

Page 33, line 4, leave out ("60") and insert ("30").

The noble Lord said: My Lords, with the leave of the House I move these amendments en bloc.

On Question, amendments agreed to.

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

moved Amendment No. 13:

Page 49, line 35, leave out from ("satisfied") to end of line 37 and insert ("that an application under section 8 of this Act for registry of the ship has been made or is intended.").

The noble Lord said: My Lords, I beg to move Amendment No. 13. My noble friend Lord Mottistone raised the point in Committee that as drafted the revised Section 22 of the 1894 Act implies that the registration process in the UK. should already be under way. I said in reply that it was our intention that a letter to a UK registrar of ships declaring that the owner wishes to apply for full registration would be satisfactory.

We have thought about this further and consider that the subsection should be flexible enough so that a provisional certificate may be issued where the British consular officer or other appropriate official is satisfied that an application for registration in the UK has been made or is intended. The documentation that would be required to satisfy the consul would be set out in the administrative guidance issued to consuls. I hope that this amendment meets my noble friend's concern on this point. I beg to move.

My Lords, I am grateful to my noble friend for his amendment. It seems to meet the situation as we tried to put it forward.

On Question, amendment agreed to.

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

moved Amendment No. 14:

Page 66, line 33, leave out from (""owner"") to (",except") in line 34 and inert ("means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship").

The noble Lord said: My Lords, I beg to move Amendment No. 14. This is a minor technical amendment which aligns the definitions of "owner" in the Merchant Shipping Oil Pollution Act 1971 and the Merchant Shipping Act 1974. I beg to move.

On Question, amendment agreed to.

Schedule 6 [ Minor and Consequential Amendments]:

[ Amendment No. 15 not moved.]

Schedule 7 [ Repeals]:

moved Amendment No. 16:

Page 82, line 19, column 3, at end insert ("Section 42(2).").

The noble Lord said: My Lords, I beg to move Amendment No. 16, and I shall speak also to Amendment No. 17. On Report your Lordships accepted an amendment moved by my noble friend Lord Mottistone to add to Schedule 5 of the Bill a provision to repeal Section 42(2) of the Merchant Shipping Act 1970. I mentioned then that the amendment would require two further minor consequential amendments. The first would add the repeal to the list of repeals in Schedule 7 to the Bill and the second would repeal a reference to Section 42(2) of the Trade Union and Labour Relations Act 1974. I beg to move.

My Lords, I thank my noble friend for spotting those consequential amendments, and I apologise for not having moved them myself at an earlier stage.

On Question, amendment agreed to.

moved Amendment No. 17:

Page 82, line 44, at end insert—
("1974 c. 52.Trade Union and Labour Relations Act 1974.In Schedule 3, in paragraph 14 the words from "in subsection (2)" to "1974)" and ".")

On Question, amendment agreed to.

An amendment (privilege) made.

My Lords, I beg to move that the Bill do now pass. I hope your Lordships will agree that we can look back over the past two months' work on this Bill with some satisfaction. We have had four sessions of serious, informed debate, as a result of which the Bill will leave this House a better Bill in a number of important respects.

I should like, if I may, to review some of the matters that we have discussed, and I should like to start by singling out the work we have done on Clauses 29 to 31 on responsibility for ship safety. These clauses, introduced in the light of the loss of the "Herald of Free Enterprise", have understandably occupied much of our time during the passage of the Bill. It is important that they should be right. The balance of responsibility must be fair and clear if the legislation is to work properly, and I think we have gone a long way towards achieving that.

We have amended Clauses 29 and 30 to provide for circumstances in which the ship is managed by a person other than the owner. We have corrected Clause 31 to remove a duty to salve other vessels and rescue individuals inadvertently created when the clause was drafted, and we have incorporated an amendment, moved by the noble Lord, Lord Underhill, to ensure that the clause will apply to all foreign ships in, or proceeding to, a UK port. As a result of representations made by the noble Lords opposite, we have also added to this clause an additional defence to make it clear that a seafarer should not be guilty of an offence if he could have avoided committing it only by disobeying a lawful command.

We also identified a number of areas where there is scope for further improvement. In particular Clauses 29 and 30 still need amendment to ensure that they deal properly with cases where vessels are demise chartered, and Clause 29 needs to ensure that owners are not made responsible for the failures of managers or demise charterers if they have taken all reasonable steps to ensure that their vessels are properly managed. We have not had time to make these changes here; but, as a result of our work, the Government will be bringing forward appropriate amendments in the other place. We have had much useful discussion of other provisions in the Bill. The clauses on the registration of merchant vessels in Part I have been amended to allow foreign interests to hold minority shares in British ships; this will provide useful flexibility.

During the Committee stage we had an interesting discussion of amendments to Clause 4 of the Bill moved by my noble friend Lord Gray of Contin to introduce a provision which would enable the Government to make regulations specifying additional requirements for eligibility for registration to secure that specific types of vessel have a genuine and substantial connection with the United Kingdom. My noble friend's amendment was prompted by concern about the offshore sector. I share this concern and I said then that the Government would consider the proposal.

I, and my honourable friend the Minister of State at the Department of Energy, have met with my noble friend to discuss it. We have come to the view that changes to the registration requirements in this Bill are not the best way of dealing with the problems of the offshore support sector. The market does seem to be getting into better shape and I hope that constructive discussions can now take place between the Norwegian and the UK support vessel interests with a view to finding a more appropriate solution. I am grateful to my noble friend for agreeing not to pursue his amendment today.

The provisions on the registration of fishing vessels in Part II have been tidied up. In this context noble Lords may wish to know that work has been proceeding on the local office arrangements for the new fishing vessels register which will come into effect if the Bill is approved. I am today, in answer to a Written Question from my noble friend Lord Campbell of Croy, outlining the Government's plans for such arrangements which envisage the provision of local office services at 23 offices of the fisheries departments around the United Kingdom.

Of the other changes made to the Bill I should like to mention in particular the amendment to our powers to deal with unfair foreign competition in shipping services which were proposed by my noble friend Lord Gray of Contin and which have now been taken into the Bill and the repeal of Section 42(2) of the 1970 Act moved by my noble friend Lord Mottistone. Your Lordships have also accepted a new clause into the Bill dealing with works within harbour authorities' limits that require the Secretary of State's consent under the Coast Protection Act 1949.

I should like to thank all noble Lords who have contributed to proceedings; in particular the noble Lords, Lord Underhill and Lord Carmichael of Kelvingrove, for their courteous and helpful approach to the Bill. I should also like to mention my noble friend Lord Mottistone who has spoken so ably on behalf of ship-owning interests as have my noble friends Lord Inchcape and Lord Geddes who have contributed their experience of the shipping world to our debates. My noble friend Lord Gray of Contin has made an important contribution particularly in respect of the interests of the offshore supply industry. My noble friend Lord Campbell of Croy has been especially concerned about the fishing industry and I am glad that this part of the Bill has been welcomed by him and by other noble Lords. We have also had valuable contributions from the noble Lord, Lord Greenway, and from the noble Viscount, Lord Simon.

Our work on this Bill has been in the best traditions of this House—thoughtful, constructive, and courteous. We may have our disagreements, but we all want to see a more prosperous and safe British shipping industry. This Bill will, I hope, make some contribution to that and I commend it to the House. I beg to move that the Bill do now pass.

Moved, That the Bill do now pass.—( Lord Brabazon of Tara.)

4.15 p.m.

My Lords, I shall not detain the House for very long, not because I regard the Bill as unimportant but because there is a very heavy programme of business to he got through. At the outset I should like to reciprocate what the Minister has said in that we have had some very useful and interesting debates on this Bill. As with the Pilotage Bill, politically it has been completely uncontroversial. It has been controversial, as was the Pilotage Bill, from other angles. but there have been no party politics whatever in our discussions.

I should like to thank the Minister (as we always expect from the noble Lord, Lord Brabazon) for the courteous way in which he has dealt with all questions which have been raised. I know that he has sent a number of letters in response to matters which have been raised and in connection with the undertakings which he gave. I should also like to thank him for the detailed statements he has given on many of the amendments.

Perhaps I should warn the Minister that some of the statements will prove very useful when the Bill reaches another place. Over and above that I believe that many of the statements will be very helpful in the consultations and discussions which will have to take place in the light of some of the amendments which have been carried. Only this afternoon the Minister indicated that there will be consultations in connection with possible regulations.

At the Second Reading I said that we had to decide two issues. Has opportunity been taken in the Bill to deal adequately with all the necessary safety measures which, as the Minister emphasised, arose as a result of the investigations into the "Herald of Free Enterprise"?

Secondly, I asked whether steps had been taken to halt the decline in the merchant fleet. I completely agree with the Minister that this Bill contains numerous provisions over and above the regulations already issued dealing with aspects of safety which arise in Clauses 29 to 31.

I do not think that the Minister spoke to Clauses 25 and 26, referring to the financial assistance for training and crew relief costs. As I stated when we discussed those clauses on Second Reading, we welcome that assistance but I commented at Report stage that I regretted that the emphasis from the Government side seemed to be on the strategic importance of these costs in the event of an emergency.

We were looking at them partly from that angle but also from the point of view of steps which might be taken to affect the decline in the British merchant fleet. One objective which this Bill does not achieve is that it does not do a great deal to halt the serious decline in the British merchant fleet. While we welcome the financial assistance for training and crew relief, in fact the total will be only £6 million in the current year and, in the next full year, £8.5 million. I am certain that the merchant shipping industry will welcome that assistance but it is merely a flea bite in terms of what has to be done in order to arrest the decline in the merchant fleet.

Other than that we give a general welcome to the Bill. We believe that it could have been improved: we should have liked to have seen the complete separation of responsibilities between the owner and the master but I believe that this Bill, particularly the safety provisions, will be generally welcomed by all sides of the House and outside as well.

My Lords, I should like to thank my noble friend for the admirable and agreeable way in which he has handled this Bill. I shall very briefly refer to Part II of the Bill and its importance for the fishing industry in introducing a new system of registration.

The Government have carried out very promptly their intention to legislate and to find time for the Bill. Since the earlier stages when the amendments were discussed concerning this new system of registration I have received comments from fishermen's associations in different parts of this country giving full support for the Government's proposals and opposing the amendments which were put forward to make it easier for foreign vessels to register as British. That is confirmation of what we did in keeping to the text of the Bill. These messages have come notably from fishermen in the South East of England—it is not just fishermen in Scotland who keep in touch with me about these matters. They were much concerned about the arbitrary way in which foreign vessels could change their nationality and fish for the quotas allocated to the United Kingdom.

Most of the fishermen around our coasts support and agree with what the Government are introducing in Part II of the Bill. Their concern is similar to the one which I expressed during the passage of the Bill; that is, whether the new system of registration will be watertight. Will there be ways of making sure that it cannot be circumvented in order to frustrate the purpose of the Bill?

The noble Lords, Lord Underhill and Lord Carmichael, have conscientiously probed and helped in revision of parts of the Bill. This is what noble Lords have come to expect from them. The noble Lord, Lord Underhill, supported my Question on 7th April when I asked whether legislation to improve the registration system for fishing vessels would he forthcoming. He supported my plea on that occasion.

He may have forgotten his words but they can he found at col. 902 of Hansard:
"in the meantime, terrible damage could be done to our fishing fleets".
The Government have acted since then as quickly as they could. I look forward to seeing the Written Answer to my Question today, to which my noble friend referred, which will clearly indicate that no time has been lost. The Bill has been a success in this House, and I hope that it will also go forward in another place without losing much time.

My Lords, I too should like to thank my noble friend the Minister for the courteous way in which he received all our pleas and the care he took to consider them. 1 hope that when the Bill finishes its passage through another place it will have that extra hit of perfection which I believe is still outstanding and needed. I think that we did a good job here on it, and that it has gone as well as it could.

My Lords, I should like to add my thanks to those which have already been expressed to my noble friend the Minister for the way in which he handled this Bill. His consideration and the time he took to consider points made have added enormously to the quality of the legislation that we are now passing to another place for their consideration. My particular interest in the Bill, as your Lordships know, was the welfare of the British Offshore Supply Vessels Association and its members. I think that they are well satisfied with what we have achieved.

Perhaps I may use this occasion also to thank those of your Lordships on all sides of the House for the support that they gave me when I moved amendments at Committee and Report stages. I am sure that with that support the Minister was duly persuaded that my voice was not alone, and I am grateful to him for acting accordingly.

My Lords, I should like to associate myself with the remarks already made about the Minister's courteous handling of the Bill. This is a wide-ranging and useful Bill for the shipping industry, although I must agree with the noble Lord on the Opposition Front Bench who said that he did not think it would go a long way towards bringing about an end to the present decline in the British merchant fleet and, alongside that, the decline in the important related marine industries.

Having said that, I wish this Bill well and in particular those parts which relate to help with training and the setting up of a merchant navy reserve. I hope that the Government will pursue both parts of the Bill that I have just mentioned with some vigour.

My Lords, I know that there is important business to follow but perhaps I may briefly thank the noble Lord, Lord Underhill and Lord Greenway, and my noble friends Lord Campbell of Croy, Lord Mottistone, and Lord Gray of Contin for the kind words they have used about my handling of the passage of this Bill.

The noble Lord, Lord Underhill, pointed out that I have written a number of detailed letters and made some detailed statements. This is a complicated Bill. We have revised legislation, a lot of it going back to 1894. There is a great deal of detail in it and I am glad that what I have written or said has been helpful and will be helpful for further consideration of the Bill in another place.

In answer to the noble Lord, Lord Underhill, and the noble Lord, Lord Greenway, I think I said at Second Reading that the measures we propose for assistance with training, crew relief costs, and the setting up of a merchant navy reserve will go someway to arresting the decline in the British merchant fleet. I have never claimed that they would be the absolute panacea for all the ills which have beset not just our own shipping but world shipping. However, I hope that they will be helpful.

My noble friend Lord Campbell of Croy was particulary pleased with Part II of the Bill as it refers to the fishing industry and asked me whether it would in fact be watertight. I can never give that complete assurance. There are what one might call devious minds operating against our interests in this field, and no doubt some high-powered lawyers will come forward over the next few months in an attempt to find their way around these provisions. However, I can assure my noble friend and other noble Lords that we shall do our best to ensure that these provisions are indeed watertight and that British quotas will be reserved for British fishermen.

I think that there is little more left for me to say other than to thank your Lordships for the reception that this Bill has had, and I beg to move that the Bill do now pass.

On Question, Bill passed, and sent to the Commons.