Relevant documents: 10th and 16th Reports from the Delegated Powers Committee
Clause 3: Power to request declaration
1: Clause 3, page 2, line 15, leave out “the harbour” and insert “a harbour in the United Kingdom”
My Lords, I declare my interest as honorary president of the UK Maritime Pilots’ Association and a former harbour commissioner for the port authority in Cornwall.
In moving Amendments 1 and 2 I will reflect on the purpose of the Bill. Although it was created, as Ministers have said, to avoid a repeat of the frankly disastrous attempt by P&O Ferries earlier this year to change all their seafarers, it was the process that I felt was abhorrent. Clearly, the purpose of this Bill is to ensure that the national minimum wage legislation applies to all seafarers when working in UK waters but not within the UK.
We debated the two issues in Amendments 1 and 2 in col. GC 102 of the Grand Committee on 12 October. I would like to start on Amendment 1, which is linked to Amendment 2. The question is: what is a harbour?
My Amendment 1 would leave out the words “the harbour” and insert
“a harbour in the United Kingdom”.
We understood what the Minister told us in Committee, but then it got a bit confusing. She kindly wrote a long letter to us, which was helpful, but she said in the letter:
“A service is defined … as being ‘for the carriage of persons and goods by ship, with or without vehicles, between a place outside the United Kingdom and a place in the United Kingdom’”.
The word “a” is interesting. If it were “the”, as in the Bill, that would be just one harbour, but my argument is that “a” place can be any harbour. This comes into the scope of whether the Government are trying to protect all seafarers who are, shall we say, based in the UK—those who work in UK waters but are not necessarily employed on UK land—or whether this provision just sorts out the P&O Ferries problem. It is my contention that as the Minister referred in her letter to “a” place, that is what should be in the Bill.
I also want to explore why this needs to be confined to Dover to Calais. Many noble Lords will recall that a previous Secretary of State for Transport, Chris Grayling, created a new ferry service between Ramsgate and Zeebrugge to try to sort out the traffic jams at Dover. Of course, that ferry service did not actually exist; I discovered that the head office was in an office owned by a very large manufacturer of construction equipment in the City, but there was no ship or ferry. But Ramsgate is a perfectly good ferry terminal and I can see that ferries might operate between Dover and Calais one day and between Ramsgate and Calais the next; it could effectively be the same service. It is not right to confine the service included in the Bill to just one service, when ships can go round the country. I believe that the seafarers, in all these things, need similar protection.
We then move on to the question of having 52 or 120 days a year where the ship would have to come into a UK port in order to be included under the Bill. Ministers have said that the key is that the service must have close ties to the UK. I suppose I would question how you can define close ties—it is a bit of a woolly concept. I am not going to give any examples, but if you are a seafarer and want to be included, you might wonder whether the company employing you has those close ties. It is a difficult question to answer.
I am grateful to the RMT trade union for some information it has sent to me and, I expect, many other noble Lords. There are two issues here. Is there a need for this when you are operating a ferry service to a close member state of the European Union such as France, the Netherlands or the Republic of Ireland, where maybe the national minimum wage is higher than what we pay here? The argument may be that it is not really important. But this is legislation that could be on the books for many years and most countries could change their policies, so it is as well to make this applicable to many countries—member states and other reasonably close places—rather than saying that we do not need to bother with France because its pay is high anyway.
More interestingly, rather than just talking about Dover/Calais, the RMT has given me a list of services and vessels which go to and from the UK and could well meet the 52-visit figure I am proposing; the Government would rather have 120 visits. I have counted and there are 34 vessels and routes, not just one or two. I shall not read them all out. There are probably seven or eight different operators: P&O is a big one and there are DFDS, Stena and Cobelfret. We all know them. Some pay very well and, according to the RMT, some pay very badly. The lowest I have seen is Condor Ferries, which pays £2.40 per hour. That is a little bit below the national minimum wage, is it not?
It is difficult and dangerous to try to limit this legislation to services which are a bit like Dover/Calais. If you are a seafarer on many of those 40 or so services, the same comments and worries apply to you all. This applies only within UK territorial waters; what happens outside is a separate issue. That is why I have tabled Amendment 2: to reduce the number of visits of a ship or a service from 120 to 52. We can debate whether 52 is the right number—that is one a week on average—but it means that we can include a much greater range of services for which seafarers deserve to be treated properly. That includes cruise ships. Why should people on cruise ships not get paid a national minimum wage? I shall not go into detail—there is another amendment that could have come in—but the key is that the 52 visits a year can be measured. That can be controlled and I think it is a much better number than the 120 in the Bill.
In moving and speaking to these amendments, I look forward to the Minister’s response to Amendment 1 on whether option A or option B on harbours is favoured. It will be very interesting but I think the key is the 52 visits in Amendment 2. I very much look forward to what the Minister has to say and then I will decide whether to seek the opinion of the House. I beg to move.
My Lords, I declare an interest as a director of J&J Denholm, which has shipping and port services interests. I have not participated in this Bill because I thought it was excellent and doing the job that Ministers made clear was its purpose, which was to prevent a recurrence of the appalling behaviour of P&O in its ferry services. That was declared at the time.
We are looking at the provisions in the Bill and the suggestion in Amendment 2 that we should leave out 120 and insert 52. I believe that P&O has something like 15 crossings per day between Dover and Calais, so the Bill clearly deals with the problem that it was presented as seeking to solve. I am not unsympathetic to the points made by the noble Lord, Lord Berkeley, who is splendid and very careful in the work that he does in this House. Indeed, we have agreed on matters such as HS2 and others from time to time. But his amendment would completely change the Bill’s scope, and to do that on Report would be quite ridiculous, when the whole thing has been presented to the public.
I am intervening because of representations from the Chamber of Shipping, which accepts that the Bill is right and the number 120 is right, but is concerned that we are drawing in other services. I have no idea what those services are and the noble Lord did not say what they were; I have no idea what the implications and costs are for the administration of the ports and so on. What I do know, however, is that it is not what the Bill was introduced to deal with. Therefore, at this late stage, it would be wholly inappropriate to amend the Bill in this way or to create an unknown administrative burden on the ports.
I guess that the noble Lord chose the number 52 because it meant once a week, but that does not address the problem that has occurred, so I hope my noble friend will continue to resist the amendment. The noble Lord seems to me to be in danger of trespassing on international conventions and rules. The Labour Party has always been a great supporter of the ILO and so on, and of having an international approach. We must tread with care. The Government, in seeking to deal with the P&O episode, took a step in a direction that moved away from the conventions that the flag of convenience should govern the rules on board ships, which was entirely justified. But this amendment is a step too far. As it is Report, I shall say no more.
My Lords, I have a lot of sympathy with what my noble friend Lord Forsyth has said. We have set out to deal with the problem of P&O. I have heard nothing from the RMT—it is clearly not that bothered about this side of the House—but this pushes things a bit further than they should go. I hope the noble Lord will not test the opinion of the House.
My Lords, I very much endorse what the noble Lord, Lord Forsyth, just said. I am very concerned about this amendment, as is the Chamber of Shipping. The Bill is part of the Government’s nine-point plan to address the whole problem of seafarer welfare—an important one nevertheless, dealing with services with close ties to the UK, making regular port-to-port international voyages adding up to 120 calls a year. It is not just about Dover/Calais; ports all around the country will be affected, so it is wrong to concentrate just on Dover/Calais, although admittedly that is where the main problem occurred.
The Government went through extensive consultation on the Bill and came up with the figure of 120 calls a year, which is probably the right balance. I know that the chamber is very concerned that widening the scope of the services affected to those making only a single call a week would draw in a very large number of non-UK ships, subjecting many more foreign companies to UK national minimum wage legislation. In turn, that would provoke a severe reaction from the international shipping community—and I know that the International Chamber of Shipping is especially worried about this. In turn, this could be seen as an even greater infringement of international conventions and an excessive claim to prescriptive jurisdiction.
It would also be impractical for the Government to oversee such a large and diverse number of shipping services calling at UK ports, increasing the administrative burden on ports, as has already been said, and creating uncertainty across different shipping sectors such as coastal, wet and tanker services, dredgers and other services that were never intended to be part of this Bill. Any decision to have a scope in the Bill that is way beyond the original stated intention will seriously damage confidence in the UK as a global centre for shipping; it also risks fewer ships calling at UK ports.
My noble friend Lord Mountevans has taken a greater part in this Bill than I have, so in many ways I am speaking for him. I say to the noble Lord, Lord Berkeley, who is a good friend, that no cruise ship would be affected by this amendment, because cruise ships do not call that frequently and most of them migrate during the winter months. So, I do not think that the effect of his amendment would be as great as he might have hoped, and therefore I hope the Government will resist it.
My Lords, I want to start by thanking the noble Lord, Lord Berkeley, for his usual attention to detail on these issues. The noble Lord, Lord Forsyth, said that he had not participated before. If he had, he would know that the scope of the Bill has been a persistent topic, and those of us who have been engaged throughout have pressed the Minister on a number of occasions, and in a number of ways, to define it more closely. I am particularly interested in Amendment 2; the key point here is the reduction in the number of visits required to demonstrate close ties and regular links with the UK—the noble Lord has suggested a reduction from 120 to 52.
The argument against that is that it might bring in a new range of services, and I understand the Government’s desire to avoid mission creep. But the truth is that although we all agree with the principle of this Bill—that seafarers should be paid a decent wage—in practice it is very poorly drafted. It has imprecise definitions, penalties that are in practice not going to be imposed—such as the denial of access to the harbour, which will come up in an amendment later—and a very cumbersome structure whereby the Government will rely on harbour authorities to implement the rules. I believe it would not have got this far in its current state if the Government had not been so distracted recently; we are after all on the third Secretary of State in three weeks, and it is difficult to get that continuity.
To address the specific issue of the numbers, the noble Lord suggests that the total is 52. It is easy, as the noble Lord, Lord Greenway, has just pointed out, to base one’s judgments on what happens from Dover; in practice, there are ferry services in the rest of the UK that are in every way similar in structure, ownership of the company and the seafarers involved, but they go much less frequently. It is possible to envisage, for example, some of the ferries between the north of England and Scandinavia and ferries between the south-west of England—maybe Poole—and the north of Spain. Those are regular ferry services that often do not run at all in winter, so a total of 52 may not be out of kilter with what is required.
In the interests of fair wages, it might be worth broadening the definition. I urge the Minister to consider that, and to look, even at this late stage, at the pattern of services throughout the UK. There may well be a case to reduce the total number of services which are caught in the Bill.
My Lords, I support both my noble friend Lord Berkeley’s amendments. They make it more likely that operators will not be able to evade their obligation to pay at least the national minimum wage equivalent. The behaviour of P&O Ferries in March this year is the very reason for the Bill, and that behaviour shows the lengths to which operators will go to save money on seafarers’ wages. The Bill should bend over backwards to narrow every opportunity for operators to evade their very modest obligation to pay seafarers the national minimum wage equivalent and prevent such behaviour.
It is not just P&O Ferries. The effect of allowing ship operators to evade the national minimum wage equivalent is that they undercut their competitors, which then join the race to the bottom and put at risk the jobs of some 2,000 UK-resident ratings and officers. Like my noble friend Lord Berkeley, I looked at the table provided by RMT. Perhaps he will forgive me giving a correction: he said that the lowest rate was £2.40, paid by Condor Ferries. However, according to the table, the lowest rate is P&O Ferries on the “Pride of York”—a vessel registered in the Bahamas—on the Hull-Zeebrugge route, which pays €2.04 per hour for cooks of Lithuanian extraction. There are a number of other low rates. For example, DFDS’s “King Seaways”, going from Newcastle to Ijmuiden, is on the Danish international ship register and has Polish, Ukrainian, Romanian and Filipino crew, and it pays $2.63 an hour for a cabin steward. I will not read any more examples, but this appears to be a perpetuation of nationality-based discrimination on pay which this legislation should be tight enough to avoid.
I hope the Minister will forgive me for asking before I sit down for her to clarify a point raised in Committee—namely, whether a harbour in one of the Crown dependencies is a UK harbour or whether it will become subject to a national minimum wage equivalent corridor. I did not understand the answer she gave in her very kind letter of 21 October. If it is to become the subject of a corridor, can I ask how negotiations are progressing, and whether they involve the social partners?
My Lords, to make some general comments, we welcome the Bill. I think everybody has been shocked by P&O’s behaviour, but this goes a bit deeper than that. I had no idea how badly seamen are paid. It is disgraceful. This is clearly a worldwide problem, and there are problems with addressing it from a singular point of view.
I also object to the criticism of my noble friend by the noble Lord, Lord Forsyth, because this has been a normal Bill. We could not vote in Grand Committee for the usual conventional reasons. It was well debated—the noble Lord would know that if he had been present. Essentially, Amendment 2 is a judgment about degree, and we come to a different judgment than the Government. While we support the Bill in general, we have amendments where we think that a little finesse will make it more effective. A weekly service is the sort of thing that should be within the scope of the Bill. While we will not press Amendment 1, we will support the noble Lord if he wants to press his Amendment 2 to a Division.
My Lords, I am very grateful for all contributions on this first group. I appreciate the support from Members on my own side; it is always good for the Minister to know that there are a range of views and that people are thinking about the Bill and taking it seriously—it is a very serious Bill.
The noble Lord, Lord Tunnicliffe, mentioned the welfare of seafarers. He is absolutely right and there are mechanisms, which the UK is deeply embedded in and has been for a very long time, which work internationally, as many noble Lords will know, to try to improve the conditions and pay of seafarers. However, that is not under discussion today. As pointed out by the noble Lord, Lord Greenway, this is an important part of the nine-point plan that Ministers set out earlier in the year, but the Bill is narrow in scope and effect. That is for many reasons but a key one is that we have to be mindful of the extent to which we are legislating; we have to be mindful that we do not overreach, because that might have some very serious unintended consequences that we would later regret. That is why, throughout the drafting of the Bill, we have had at the front of our minds not only international law but our international obligations; that is critical. Although I accept that there are many things that noble Lords would very much like to do for seafarers—and that, probably, on the face of it, I would like to do too —the reality is that, as a Government, we have to be sensible and potentially a bit boring. We must stay in our lane and make sure that we do not overreach, because the consequences would be very significant.
There are two amendments in this group. The first brings back the old chestnut of “the harbour” versus “a harbour”. I am grateful to the noble Lord, Lord Berkeley, for enabling that discussion once more. I cannot go much further than I went in Committee; I just state that it is absolutely important that unless we say “the harbour”, we cannot define what a service is. A service is from one point—the point—to another point. It is of great regret that the word “a” crept into the letter, but noble Lords can imagine that that was the overarching ambition: from a point overseas to a point in the UK, but “the harbour” within a place overseas and a place in the UK. Because we have defined it that way, from “the harbour” to “the harbour”, we capture the high-frequency services that, let us recall, can be serviced by any vessel—you can put another vessel in when one is off being maintained or whatever—but it is always between two specified harbours.
The second part of that definition—the harbour to the harbour—that is very important is
“120 occasions in the year”.
That, essentially, defines a service that has close ties. The second point about this is that unless you define it as “the harbour” to “the harbour”, it would be incredibly difficult to enforce the Bill, because the Bill relies on one harbour authority being responsible for monitoring and enforcement. Individual harbours may be able to anticipate that a particular service will call in its harbour 120 times a year, perhaps because that service has been doing so for years, if not decades. That harbour authority may not be able to anticipate whether a particular operator has services to other ports, so how would the enforcement and monitoring work in those circumstances?
The noble Lord, Lord Berkeley, brought up an example about, I think, a former Transport Secretary and ships that could be brought in to operate services, but he reinforced the point I am trying to make: it is not about the ships or the specific seafarers on a particular service; it is the service itself that we must make sure falls within the Bill’s scope.
I am content that we have defined the scope well. I am a little disappointed that I have not given sufficient explanation such that the noble Baroness, Lady Randerson, is content, but I feel that we are there and have clarified exactly what would happen. In response to concerns raised about services suddenly deciding to go to another port so that they do not have to pay seafarers a fair wage, as I said in Committee, I do not think that would be commercially viable. I do not think operators would play switcheroo with UK ports because, frankly, their customers would not put up with it. I do not think that point works.
I hope the noble Lord will withdraw the amendment to change “the harbour” to “a harbour”. It would make the entire Bill not worth the paper it is written on, and it would not function in the way that I know the noble Lord wants it to function.
I turn now to Amendment 2, which seeks to decrease the threshold frequency from 120 times a year to 52. The figure of 120 was arrived at following very thorough and extensive consultation and bilateral discussions with industry and other stakeholders. We have looked incredibly carefully at the patterns of services, noted by the noble Baroness, Lady Randerson, and at maritime traffic data by type to reach the figure in the Bill. The scope of the Bill captures services calling 120 times a year on purpose. It is a very specific number that balances the need to maintain close ties with wanting to do the very best we can for seafarers.
The rationale is clear. It covers the vast majority of passenger ferries, including ro-pax, non-passenger ferries and ro-ro services calling at the UK. Critically, it focuses the Bill on short sea services, which justifies the connection to the UK and therefore the UK-equivalent level protection of pay. We do not want to bring into scope some of the high-frequency deep sea container services. That would not be our intention at all and, as my noble friend Lord Forsyth mentioned, would completely change the scope of the Bill and would go against the Government’s intention.
For the UK to impose pay requirements for seafarers on foreign-flagged ships that call at its ports only once week would risk being seen as an overreach by international partners. It would weaken the justification for the UK taking legislative action. As my noble friend Lord Forsyth said, we must tread with care. I appreciate that the noble Lord’s intention is to protect as many seafarers as possible, but the Government can justifiably legislate only for those with close ties to the UK. To seek to do more could risk making the Bill inoperable and could damage the UK’s reputation internationally.
My Lords, I am grateful to all noble Lords who have taken part in this short debate and to the Minister for her reply. To some extent, these issues were discussed in Committee and many of us suggested to the Minister that there were questions, which the Chamber of Shipping has clearly raised with other noble Lords, about the legality of this from an international shipping point of view. The Minister convinced us—well, she said there was no problem and she thought it would be all right and within scope. The only difference, therefore, is how many times a service goes into a port before it ceases to cause an international problem? I do not know the answer to that, but I cannot believe that, if it is all right to have 120 visits a year, it is somehow illegal to have 52.
The noble Baroness also raised the question of foreign-flag ships. I thought we had established that it applied to any ship, regardless of what flag, so I do not think the foreign flag comes into it at all.
I am grateful to my noble friend Lord Hendy for setting out in more detail what the RMT has sent us, but seafarers who are operating on a service where the cook gets paid £2 an hour might look askance at sea- farers who are getting the national minimum wage because they happen to be going on a short sea crossing where P&O had caused some problems earlier this year. It does not seem logical to me.
Assuming therefore that the Government believe that the purpose of the Bill is legal under international law—I have to take that as read—it seems to me pretty unfair that some seafarers are going to benefit and some will not. I am sure that is not what was needed or wanted by the Government and I am sure that there will not be too many unintended consequences. It is quite possible to monitor which ships go into which ports and where, and I know the MCA and the Government can do it.
My real purpose in this amendment was to try to support seafarers who work around the UK and make sure that they are all subject to the same national minimum wage. We cannot have a few exceptions, just because a service happens not to go into a port quite so frequently.
Finally, on the question of increased costs if wages go up—we know that is why P&O did what it did, and no doubt others will try to follow—I do not think the evidence that increasing the minimum wage on certain ferries will suddenly put the UK out of business is credible. There are many other reasons—which I will not start debating now because other noble Lords will want to debate them as well—but the question of cost is something which P&O tried, and I expect won, and we do not want to see it again. It must apply to all ships which may come into the UK, as defined in the Bill, at least 52 times.
I am grateful to all noble Lords who have spoken, and I would like to withdraw Amendment 1.
Amendment 1 withdrawn.
2: Clause 3, page 2, line 15, leave out “120” and insert “52”
Member’s explanatory statement
This amendment would reduce the number of visits by a ferry service to one particular port needed to qualify and bring further services within the scope of the Bill.
3: Clause 3, page 2, line 17, leave out paragraph (a)
Member’s explanatory statement
In response to the report of the Delegated Powers and Regulatory Reform Committee in relation to the Bill, this amendment removes a power to restrict the circumstances in which national minimum wage equivalence declarations may be requested.
My Lords, the thrust of the amendments in this group is to consider the delegated powers in the Bill. I will speak to the first amendment, in my name, and return to the remainder when I have heard contributions from noble Lords. Amendment 3 addresses a concern raised in the report by the Delegated Powers and Regulatory Reform Committee, the DPRRC. The amendment removes the power in Clause 3(4)(a) to make regulations that make provision restricting the circumstances in which harbour authorities may request that operators of shipping services provide national minimum wage equivalence declarations.
After reflecting on the comments of the committee, and representations made by noble Lords on this point in Committee, I agree that the power as drafted could have been exercised in a way that had broad effect to amend the application of the Bill, with limited parliamentary scrutiny. That had not been the intention of the clause when it was included, but, after some consideration, the Government are satisfied that the removal of this power would not have any impact on the operability or policy intention of the Bill. I beg to move.
My Lords, I stand to speak to the amendments in my name and that of my noble friend Lady Scott: Amendments 6, 7, 8 and 9 in this group. We are pleased to see that the Minister has responded to comments from the Delegated Powers and Regulatory Reform Committee, and that her amendment addresses some of the issues that it was concerned about. Our amendments also address their comments, and the Government do not seem to have taken all of the committee’s comments on board. That concerns us.
Clause 11 gives the Secretary of State power to give directions to harbour authorities, requiring them to do—or not to do—a number of things. The DPRRC concluded that this was
“a completely open-ended power”
and pointed out that this could modify the whole Bill by directions which are not subject to any form of parliamentary scrutiny. The Government accepted this argument in relation to Clause 3 and put in an amendment, so my question is this: why is the same principle not applicable to Clause 11? I made the point earlier this afternoon that the Bill is, in my view, poorly constructed. I genuinely think that it is quite possibly an error, rather than a considered decision by the Government, that has led to their failure to rectify Clause 11, because there is no logic to making the effort with Clause 3 but not making the effort with Clause 11.
As the Bill stands, the Government are hiding behind harbour authorities by expecting them to do the enforcement work. I understand the points the Minister made in the various debates in that regard, but at the same time the Government want to retain all the ultimate power. That is not satisfactory. It overrides Parliament’s role and parliamentary democracy. It is an abuse of government power and it is bad law.
So my question to the Minister is: will the Government consider responding to and taking on board the rest of the DPRRC’s comments and, at a very late stage—at the last moment—ensuring that there are amendments in line with its comments? If she feels that the Government really cannot do that, will she give an undertaking in this House that they will not depart from the Bill’s basic script and intention—because there is a fear that that could happen, given the very wide-ranging power they are giving themselves in the Bill?
My Lords, I tabled Amendment 10, which is designed to do exactly the same thing as the amendments from the noble Baroness. All I can say is that I entirely agree with what she said. It is really not acceptable that the Government can instruct or direct ports to do something, direct them not to do something, and then basically fine them, take them to court or whatever if they do not do what they say. It is all wrong and I support the noble Baroness’s statement. I hope the Minister will consider this and possibly come back with changes, as she did with the earlier recommendations.
My Lords, as a member of the Delegated Powers and Regulatory Reform Committee, I support all these amendments. The Government accepted the committee’s recommendation in relation to Clause 3 and introduced Amendment 3; they should also concede Amendments 6 to 9, and preferably Amendment 10.
The problem is that the Government have made harbours the enforcers of the Bill, in particular by way of imposing surcharges. That reveals the flawed structure of the legislation. The arguments are by now familiar so I will outline only three of them.
First, the national minimum wage equivalent for seafarers should not be enforced by harbours, some of which are wholly conflicted since they share ownership with the shipping lines they are to police. I do not understand how the noble Baroness could say in her letter to us of 21 October:
“The Government is confident that there are no conflicts of interest.”
Instead, the declaration of compliance should be received by, and the prime enforcement body should be, a state authority. The obvious candidate is the MCA.
Secondly, there should have been provision for seafarers or their unions to enforce the national minimum wage equivalent, not least by making the entitlement to it contractual.
Thirdly and lastly, enforcement by way of surcharge is, with respect, inappropriate. It is a penalty and the noble Baroness’s letter to us, of 21 October, says of surcharges that
“Rather than being a punitive measure, its purpose is to make it not worthwhile for an operator to underpay their seafarers.”
Of course that is so, but then there is no distinction of purpose between a fine and a surcharge. One suspects that the real reason that a surcharge is preferred to a fine is that it avoids the stigma of a criminal sanction, which is, if that is true, an unattractive justification given that we are all here seeking to prevent repetition of the disgraceful behaviour of companies such as P&O Ferries. Such companies should be stigmatised by criminal prosecution if they underpay their seafarers.
I thank the Minister for Amendment 3. Moving on to Amendments 6, 7, 8, 9 and 10, I am more sympathetic with the Government than any of the previous speakers. These sorts of powers are necessary. Arguably, the way pressure is put on harbours to do the right thing is wrong, but it is the way the drafters of the Bill have chosen.
I wish the Government would get back to the tradition of doing what the DPRRC says, which way back, when I sat on those Benches, we did. However, none of those things will probably happen and, certainly, I do not feel it is an issue over which we would support dividing the House. I would, however, recommend that the Minister allay some of the fears that these clauses have provoked, by reading into the record the statement made to the DPRRC on 25 October, particularly, from the bottom of the page in the report:
“The policy intention is that this power would only be used in the following circumstances”
and all those circumstances, to the end of that document. In the best Pepper v Hart frame, the world would then have easy access to those limitations, much improving the likelihood of the Government sticking to those limitations. Of course, if she wants to amend the document more fully, I would not be averse to her bringing this back at Third Reading. However, I can tell from her demeanour there is not a prayer of that, so would she agree to putting those assurances into the record?
I will indeed take option A from the noble Lord, Lord Tunnicliffe. I accept that we do not want our powers to be overreaching. I believe there is a good justification for these powers, and I will happily read into the record the circumstances in which the Government believe it would be justified to use these powers.
I will quickly address the amendment from the noble Lord, Lord Berkeley. I do not believe he will press it to a vote because it would remove all of Clause 11 and then it would remove the guidance for the harbour authorities, so it would be incredibly messy.
Let us focus on the second element of the concerns from the DPRRC. We have very carefully reflected on its recommendations. We have looked very carefully at the powers of direction for the Secretary of State in Clause 11. We have concluded that to remove them would significantly reduce the effectiveness of the Bill. These powers of direction form an important part of the compliance mechanism under the Bill. Without that power of direction given to the Secretary of State, there will be no means of correction if the harbour authorities do not exercise their powers under the Bill, or if they exercise their powers inappropriately. Given that noble Lords have raised concerns about potential conflicts of interest between harbour authorities’ commercial interests and statutory functions, these powers also provide a safeguard against this risk. I assure noble Lords that the power is not intended to have general effect to allow the Secretary of State simultaneously to direct all harbour authorities to exercise or not to exercise their powers under the Bill, or to exercise them in a particular way. Nor is it intended to modify the character of the Bill itself by means of direction.
The policy intention is that this power would be used only in the following circumstances: first, to direct a harbour authority to request a national minimum wage equivalence declaration where it appears to the Secretary of State that it has the power to request a declaration under Clause 3(1) but has not done so; secondly, to direct a harbour authority not to request a national minimum wage equivalence declaration where doing so would disrupt key passenger services and supply chains critical for national resilience; thirdly, to direct a harbour authority to impose a surcharge where circumstances are such that it should do so under Clause 7(2) but has not done so; fourthly, to direct a harbour authority not to impose a surcharge where doing so would disrupt key passenger services and supply chains critical for national resilience; fifthly, to direct a harbour authority to impose a surcharge of an amount specified in the direction instead of the amount determined by the harbour authority’s tariff; sixthly, to direct a harbour authority to refuse access to a harbour where a surcharge has been imposed on an operator but it has not paid it; and, seventhly, to direct a harbour authority not to refuse access to a harbour or set conditions on the refusal of access—for example, with respect to timings—where the Secretary of State considers that the refusal of access would cause damage by disrupting key passenger services and supply chains critical for national resilience.
I hope that this is helpful in setting out the purpose of this power and provides some reassurance as to its application. I beg to move.
Amendment 3 agreed.
Clause 9: Refusal of harbour access for failure to pay surcharge
4: Clause 9, leave out Clause 9 and insert the following new Clause—
“Detention of vessels for failure to pay surcharge
(1) A ship providing a service to which this Act applies may be detained by a person appointed by the Secretary of State for the purposes of this section if—(a) a harbour authority has imposed a surcharge on the operator of the service in respect of the entry into its harbour by any ship providing that service, and(b) the operator has not paid the surcharge in accordance with provision made by or under this Act.(2) It does not matter for the purposes of subsection (1) whether an objection has been made to the surcharge under section 8.”Member’s explanatory statement
This amendment would replace the penalty of refusal of access with a more conventional penalty of detention.
My Lords, in Committee we sought to deal with a number of operational issues that have been giving us concern. The harbour authorities—the port authorities—do not want the powers they are being given in the Bill; we covered that area very well. They do not think that it is appropriate or that they are equipped. We sought to make amendments to give those powers instead to the Secretary of State, so the irony of the debate we have just had is that if the Government had accepted our amendments, taken the powers away from the port authorities and kept them for the Secretary of State, they would have been in compliance with the instructions of the Delegated Powers Committee. There is a certain Alice in Wonderland quality about this debate—and not for the first time.
I would like to return to one issue. I see that the noble Lord, Lord Forsyth, is not in his place, but in the 22 years I have been in this House the common practice is to have debates in Committee in which we listen to each other, then a gap in which we reflect on what has been said, talk to stakeholders and, crucially, have meetings with and letters from the Minister. Then we come back on Report. If taken seriously, his suggestion that this is somehow too late would render this House completely impotent. Despite his not being here, I wanted to make that point.
I turn to the point about denial of access to a vessel as a punishment for various transgressions under the Bill. Detention in a port is the accepted international way of dealing with all sorts of transgressions. It is well understood and has been done for many years. As the Minister pointed out in her letter to us, it is a considerable inconvenience to the port and therefore never undertaken lightly. The main impact is on the shipping company, which gives it an absolute incentive to comply in the first place.
Denial of access, as opposed to detention, raises a whole host of issues. The International Chamber of Shipping does not believe that it complies with international law. The British Ports Association believes that it would break long-standing UK law by denying access to such a vessel. The Government are expecting harbour authorities to take the risk of costly legal action, at their own expense, when there is this legal uncertainty hanging over them. It is even more ridiculous to expect port authorities owned by ferry companies to deny their own ships access. It is simply not going to happen. As we have just heard in Clause 11, the Secretary of State could overrule the port authorities for a wide range of reasons, which leaves the harbour authorities no comfort all. What possible incentive does the Minister see for port authorities to ever deny access to a vessel? Given the Government’s assertion that this is the ultimate compliance measure, it is really hard to see how it will ever be effective as a deterrent.
If—just assuming for the moment, and giving the Government the benefit of the doubt—a ship is denied access, what might the result be? Presumably the Minister does not expect ships to be bobbing around between Dover and Calais with passengers and crew onboard. In all seriousness, I would like it confirmed that that would not be the way the Bill would work. Denying access in advance is still a massive inconvenience to the passengers who have booked on the ferry. Many will have cars; they might find it impossible to make alternative arrangements. Moreover, the port in which the vessel is docked, unable to leave because we will not take it, is going to be put to significant inconvenience. That is likely to be in another country, almost certainly France. There will be significant diplomatic ramifications if a ship is not allowed to leave the harbour, which could result in all sorts of retaliatory action. I really cannot believe that the Government think this is a sensible way to proceed. I beg to move.
My Lords, I support this amendment for the reasons put forward by the noble Baroness. In the Minister’s letter to us of 21 October, she said that sufficient notice will be given of a contravention that will result in refusal of access, so that a vessel will not start its voyage. If that is so—which many doubt—the same notice that the vessel will be detained for transgression will no doubt preclude it coming to port as well. If adequate notice is not given, detention is safer for the vessel, its cargo, its passengers and other vessels than if the defaulting vessel is refused access just outside the port in question. The arrest of ships for non-payment of debts that are payable to seafarers, the port or third parties is a common and international practice. I for one am at a loss to understand why the Government do not accept that practice here.
My Lords, there is quite a good case for the noble Baroness’s amendment, but I accept that the Government have, I hope, expended an awful lot of effort working through the intricacies of how this will happen. I fear that passing the amendment at this point would unduly stop this extremely important Bill’s progress. I hope that the Government’s judgment is correct, and that they come back very rapidly with emergency legislation if it proves to be incorrect.
My Lords, the amendment in this group in the name of the noble Baroness, Lady Scott of Needham Market, relates to the refusal of access. The refusal of access is one way in which we establish the provision of national minimum wage declarations as a condition of access to ports. If this were replaced by a power of detention by the MCA, this would become a punitive measure and go beyond the voluntary mechanism envisaged by the Bill. Detention of vessels is a disproportionate and inappropriate mechanism in these circumstances. Detention of ships can also carry a significant cost to the port by blocking a berth, which is not the case if they are refused access.
The noble Baroness, Lady Randerson, has previously expressed concerns that refusal of access is unworkable as it might result in ships mid-passage being unable to dock, but this is not how the Bill will work in practice. By virtue of the high-frequency requirement, all services captured are almost certain to be on short routes, and access refusal would take place before a ship has set sail from the origin port. As set out under Clause 9, we will set out in detail in the regulations how the harbour authority is to communicate refusal of access, which will ensure that sufficient notice is given to prevent this possibility happening and to provide notice for users of the service to make alternative arrangements. We will of course be consulting closely with the ports on these draft regulations.
As an additional safeguard, the Secretary of State has a power to direct the harbour authority as to how or whether it discharges its power to refuse access, which will ensure that access is not denied where it would cause damage by disrupting key passenger services and supply chains critical for national resilience.
I am grateful to the Minister but I have a quick question. She said in reply to the noble Baroness, Lady Scott, who moved this amendment, that if the amendment were accepted it would cause a significant cost to the port. If there is significant cost to the port in Dover by this not happening, what about the cost to the port in Calais, or do we not worry about that because it is foreign? It is the same issue, just at the other end of the route.
I thank the noble Baroness for that reply, which was not wholly unexpected. I happen to think that the Government are wrong. Being an optimist at heart, I still hope that, by the time this gets to the Commons, there will have been an outbreak of reality and that we might come up with something different, in not just this but other parts of the Bill. If not, then the next amendment that we come to discuss, which is about monitoring, will be really important. With that, I beg leave to withdraw the amendment.
Amendment 4 withdrawn.
5: After Clause 9, insert the following new Clause—
“Implementation and monitoring
(1) Within 90 days of this Act being passed, the Secretary of State must publish a report on the implementation of, and monitoring of the effects of, this Act.(2) The report must include—(a) an assessment of the impact of this Act on—(i) roster patterns,(ii) pensions, and(iii) wages of seafarers;(b) a statement as to whether further legislation will be introduced by the Government as a result of the findings of the assessment under paragraph (a);(c) a strategy for engaging with trade unions for the purposes of monitoring the implementation of this Act, including in reference to conventions of the International Labour Conference;(d) a strategy for monitoring the establishment of minimum wage corridor agreements with international partners of the United Kingdom, insofar as any such agreement ensures that any non-qualifying seafarer is remunerated for UK work at a rate that is equal to or exceeds the rate that would otherwise be required under this Act. (e) an assessment of the interaction between this Act and existing international agreements or international maritime law, including reference to any litigation that has arisen as a result of this Act.(3) The report must be laid before each House of Parliament.”Member’s explanatory statement
This amendment would mean that the Secretary of State must publish a report on the implementation and monitoring of this Act.
My Lords, P&O’s behaviour shocked all sides of the House. Until that happened, I suspect—I cannot know this—that few of us understood just how badly seafarers are treated. It provoked the Government into introducing this Bill and I thank them for that, but it is only a first step. It also reminded us just how badly some private companies will behave if not restrained by sensitive law and regulation.
The Bill addresses pay, but only in a narrow area. As a former pilot shop steward, and subsequently an industrial relations manager, I know how critical these other issues are. This amendment is our attempt to address them.
Subsections (2)(a) and (2)(b) of our proposed new clause address rosters, pensions and wages and require the Government to determine whether further legislation is required. We expect that it will be.
Subsection (2)(c) requires the Government to set out how they intend to engage with trade unions in monitoring the implementation of the Act.
Proposed new subsection (2)(d) touches on the extremely important initiative of establishing international minimum wage corridors, so that seafarers are properly protected for the whole of their employment in these corridors. The Government have already started work on this issue and this amendment will strengthen their arm. It is important for the House to understand what these corridors will achieve. If carried out effectively, they will extend the effect of the Bill so that it has real bite at the two ends of the route—and, I hope, sensibly in between.
Proposed new subsection (2)(e) will require an important assessment of how the Act will interact with existing maritime laws and agreements.
This amendment will strengthen the Bill in a sensitive way. I beg to move.
My Lords, I added my name to this amendment because the concerns that we have raised in this House have been quite wide ranging, from the principles of the Bill and its compliance with international law to details of its implementation. We are all agreed that we need to do something about the pitifully low wages being paid to seafarers. I think we were all probably quite shocked to hear from the noble Lords, Lord Hendy and Lord Berkeley, just how low they are. But wages are by no means the only problem; rosters and pensions and so on are equally problematic. So we commend the Government for giving this some thought, particularly in the nine-point plan; the difficulty is that if the Bill does not work as intended, nobody is a winner.
We know that the International Chamber of Shipping is very concerned about compliance with international conventions, and we have heard from both the RMT union and the port authorities that they just do not see how the Bill is going to work in practice. We know that the Government do not accept those concerns. That is fine. But it is slightly troubling to me anyway that the key stakeholder groups have not really been listened to.
Rather than re-table amendments on all those issues, I think we have settled on this amendment being the best way forward because it provides an opportunity to review how the Bill is operating in practice and, crucially, how it is fitting with the nine-point plan and with the progress we are making on international wage corridors and so on. We can see how the international shipping community is responding and where the port authorities have found ways of delivering what the Government ask. Crucially, we might be able to work out whether this legislation is resulting in a better deal for seafarers.
My Lords, this amendment is needed to put the seafarers’ charter in the Bill. There is no doubt about that. Voluntary agreements do not work with employers such as P&O which have shown complete and utter contempt for the law and have avoided working with trade unions fighting to preserve local jobs that really keep the economy going. As a good example, the agency crew on P&O ferries are denied the basic ILO right to organise.
We have mentioned often in this debate the Dover-Calais route, and that must be an absolute priority for imposing conditions that P&O and Irish Ferries have to abide by, stopping them exploiting foreign seafarers on poverty pay for long and exhausting roster patterns. We need more ratings to be trained, but it is disappointing to see that only 60 new ratings have been trained since 2020. It is scandalous at a time when demand for ratings is increasing. The number of UK ratings employed in the industry has plummeted, with almost all the jobs operating in and out of UK ports now held by foreign workers.
Will the Government act now to protect our depleted and declining maritime workforce or are they prepared to see UK seafarers suffer and struggle for survival at the hands of law-breaking profiteers such as P&O? I urge everybody to support this important amendment.
My Lords, I have added my name to this amendment, which goes some way to implementing one of the Government’s nine points in response to P&O Ferries’ shameful conduct. That point was the creation of minimum wage corridors and
“asking unions and operators to agree a common level of seafarer protection”
on ferry routes.
In the Minister’s recent letter to us of 21 October, she said that the Government were
“committed to a voluntary Seafarers’ Charter because it avoids confusion, complexity and over-regulation of an industry. It is right to keep this as a voluntary agreement initially, while we monitor the impacts of the Charter. However, we are keeping the need for a legislative basis under review.”
It appears, disappointingly, that discussions have stalled; the last version of the charter has not been circulated since early August, and the forum of employers and trade unions overseeing it appears to have been unilaterally scrapped by the department. The crucial area of roster patterns, which had been agreed by unions and operators —two weeks on and two weeks off—has now stalled, because the Government have proposed that further research is needed. That may be delay the publication of the seafarers’ charter. Is the Minister in a position today to give us a timeline for completion of that vital work?
Still, the principle of collective bargaining lies behind point nine, and also underlies the amendment proposed by my noble friend Lord Tunnicliffe. Given the precedent established by P&O Ferries in abrogating without notice collective agreements with unions that had been updated and developed over 100 years, it is essential for the Government to act to restore protection for seafarers by way of upholding collective bargaining, as intimated in the Minister’s letter.
It may be relevant for your Lordships to note that the EU, which of course covers the countries to and from which most of the routes that we are considering go, has adopted a social pillar, which in principle encourages the social partners
“to negotiate and conclude collective agreements”.
Partly in consequence of that, the European Council and Parliament have recently approved a draft directive on minimum wages. Seafarers are excluded on the basis that ship owners and seafarers’ unions will collectively bargain their own procedures to determine minimum wages. The UK should encourage such sectoral collective bargaining. That would be consistent with our obligations under the trade and co-operation agreement.
A return to encouragement of the social partners in the shipping industry to negotiate a comprehensive seafarers’ charter, impact assessed and monitored in accordance with my noble friend Lord Tunnicliffe’s amendment, is important. I invite the Government to adopt his amendment.
My Lords, I will say a couple of words. This clause is a typical “Let’s have a review” clause. In 90 days, it could do nothing at all, of course, because by the time the Act has commenced nothing at all will have happened. We have a failing in this House, and in legislature generally, that we tend to pass Acts and then forget them; they just pass away into the distance. I would welcome it if the Minister could give us some assurance that there will be monitoring of this Act and that we will be looking to see where it goes.
A subject such as this seems to be an ideal one for an inquiry in about a year’s time as to how the Act has affected the industry. I suspect that it will have very little effect on pensions, for instance, and we might well wish to look at a stronger charter overall. Could the Minister assure us that her department will keep this under review? Perhaps some noble Lords could decide in time that it might be a subject that should be looked at by a special committee of this House.
My Lords, this final group contains one amendment in the name of the noble Lord, Lord Tunnicliffe. I have listened very carefully to what the noble Lord had to say and to all noble Lords who participated in this debate.
In my response I will have bad news and then good news. First, I will address why the amendment as it stands is not appropriate. As my noble friend Lord Balfe pointed out, I am afraid that after 90 days, to coin a phrase, nothing will have changed. There will not be regulations in place, the guidance will not be in place and there will be little, if anything, actually to report on. Therefore, the fundamental premise of having a report in 90 days will, unfortunately, not achieve what the noble Lord is looking for.
Looking at the detail of the amendment, proposed new subsection (2)(a) goes back to the point that my noble friend Lord Balfe made. It is true that we pass laws but we do not forget about them; there is always the process of the post-implementation review, but we would have to wait five years for that. I accept that that is a long way away and possibly not ideal, but it would cover pensions and pay. I will retain the position that to cover rostering would be a challenge because there are many different impacts on rostering. It may be that we can decouple them but I would not want to make that commitment now.
Proposed new subsection (2)(b) goes beyond the implementation and monitoring of the Bill. I understand that noble Lords wish to probe the UK Government’s plans for legislation, but I cannot say that we currently have plans to legislate further than is necessary. I have already noted that we must tread with caution, but we are already taking action on the areas beyond the matter of minimum pay, which, as I think noble Lords will all agree—indeed, as I agree—is not the only aspect of seafarer welfare that requires attention.
Noble Lords, including the noble Lord, Lord Hendy, mentioned the seafarers’ charter; I will get an update for him on where we are with it. In government terms, if the latest version was published in August, that is not as bad as I feared; I thought the noble Lord might have said April. But I will provide a written update afterwards on where we are and what the next steps are, because that is incredibly important.
Turning to proposed new subsection (2)(c), we always engage with the unions and recognise the importance of doing so. We have discussed the Bill with the unions. I do not feel that a written strategy of union engagement would be helpful; it would not be flexible enough and may miss things or include things that are no longer appropriate, and it would mean that we would be too constrained. I am absolutely sure that noble Lords would be the first people to write to me if they felt that unions were somehow being cut out of discussions.
Proposed new subsection 2(d) refers to
“a strategy for monitoring the implementation of”
bilateral wage corridors. Again, I appreciate the noble Lord’s interest in this important area and we are working hard to seek agreements. However, publishing a strategy for the implementation of a bilateral wage corridor may in itself be counterproductive, as many noble Lords discussed in Committee. These corridors will be memorandums of understanding and backed up by domestic legislation in each country, so their implementation will be different in different countries. Proposed new subsection (2)(d) would be a step too far in the current circumstances.
On proposed new subsection (2)(e), we do not consider that the Bill’s proposals interfere with rights and obligations under international law, including the United Nations Convention on the Law of the Sea, or UNCLOS. We therefore would not deem it necessary to state as much in the Bill.
In potentially better news, although I cannot commit to legislating for a report, I can reassure noble Lords that we are currently looking at governance structures to deliver Maritime 2050. Noble Lords will know about that very important document; it sets out the Government’s vision and ambitions for the future of the British maritime sector. This governance structure will include the delivery of the nine-point plan. Furthermore, the Government are planning annual joint industry and government progress reports—it is almost as though my noble friend Lord Balfe read my notes beforehand. Every year we will have an annual joint report between the industry and government. It will include progress on the nine-point plan, implementation of the Bill, the seafarers’ charter and an update on bilateral wage corridor negotiations. I feel that is pretty much what noble Lords are looking for. On the basis of this reassurance, I hope the noble Lord feels content to withdraw his amendment.
I almost feel that the noble Baroness totally agrees with me but not quite enough. The amendment is meant to be helpful—it is helpful. I note that she more or less said that virtually everything in the amendment was right. I just want this in the Bill, so I feel that I have to divide the House on this point.
Clause 11: Guidance and directions
Amendments 6 to 10 not moved.