Motion to Approve
My Lords, the purpose of this order is to give the Government the powers we need to implement amendments to the International Maritime Organization’s International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001—which I will refer to as the convention—into law. The order relies on powers in Section 128(1)(e) of the Merchant Shipping Act 1995. The draft order was laid before the House on 17 October 2022. If approved, the powers in the order will be used to make a new statutory instrument next year to implement the convention amendments. The order will also allow the convention to be entirely reimplemented in regulations, should that be necessary.
Before continuing, I will give some background on what the Government have done regarding the convention and outline our reasons for wanting to implement amendments to it. I reiterate that the draft order before your Lordships’ House is a mechanism to provide the powers for the implementation of amendments to the convention, rather than an instrument to implement the amendments themselves. Any subsequent secondary legislation using powers under this order to implement the amendments will come before your Lordships’ House in the usual way and following a public consultation.
The convention entered into force internationally on 17 September 2008 and the United Kingdom acceded to it in 2010. It aims to protect the marine environment and human health from the adverse environmental effects of anti-fouling systems used by ships. An anti-fouling system is a coating, paint or surface treatment that is used by a ship to control or prevent the attachment of unwanted organisms to that ship. The convention addresses the harmful impacts of anti-fouling systems by prohibiting the use of certain substances in those systems. In 2021, the International Maritime Organization adopted amendments to the convention to prohibit the use of a new compound in anti-fouling systems, and these will come into force on 1 January.
As the convention took effect 14 years ago, noble Lords may ask why the Government are only now seeking powers to implement amendments to it. The reason for this is that the convention was already implemented, and therefore enforced, in the UK by a combination of a European Commission regulation and the Merchant Shipping (Anti-Fouling Systems) Regulations 2009. However, both these instruments derive from EU powers and now comprise EU retained law. Consequently, implementing the convention amendments relating to this one new substance through these instruments would now require primary legislation. Therefore, to implement these amendments more efficiently into UK law, we need to introduce an Order in Council to provide the powers required for this purpose, which we will then do. The Government consider that the implementation of the convention amendments into law is an important step to ensure that the UK continues to comply with its international obligations.
The convention and its subsequent amendments were negotiated at the IMO by representatives of the Government, the shipping industry and environmental interest groups. The Maritime and Coastguard Agency, or MCA, played an active role in the negotiations at the IMO throughout the development of the convention and its amendments. The Government’s proposals for implementing the amendments to the convention by way of a new statutory instrument will be the subject of a public consultation.
Noble Lords will recall that the House considered something similar some time ago, when we looked at Section 128(1)(e) of the 1995 Act as a mechanism to change the regulations by secondary legislation when it comes to matters relating to pollution. That, in essence, is what we are doing again; we are giving ourselves a power to introduce secondary legislation when there are amendments to the anti-fouling convention.
I hope that that is fairly straightforward, but I am content to answer any of noble Lords’ questions. I beg to move.
My Lords, I thank the Minister for her explanation. Clearly, we welcome any steps to prohibit the use of harmful chemicals in anti-fouling systems. The sooner those steps are taken, the better.
As the Minister said, this relates to a convention and decisions taken some considerable time ago. It gives the Secretary of State powers to make regulations to implement the 2001 convention and subsequent amendments. I have two brief questions for the Minister. First, she gave an explanation that related to the need to use different powers at this point because we have now left the EU, whereas we relied previously on EU legislation. I therefore wish to quibble about paragraph 8.1 in the Explanatory Memorandum, which says:
“This … does not relate to withdrawal from the European Union”.
It does relate to withdrawal from the EU, as so much does, and it is worth explaining how.
Secondly, the Minister referred—I think, though I might have misheard—to getting the regulations on the statute book by next year. Is that what she was saying? I very much hope that that is the case and that the department is being ambitious on this. I would not like to see this legislation—which should surely be uncontroversial—going to the back of the maritime queue. The sooner it can be done, the better. Having made those brief comments, I support the SI.
My Lords, I too thank the Minister for her explanation of the purpose and objectives of this SI, which enables the Secretary of State to make regulations to give effect to the International Convention on the Control of Harmful Anti-fouling Systems on Ships, 2001. The objective of the convention is to protect the marine environment and the health of human beings from the adverse effects of anti-fouling systems. It does this by prohibiting the use of certain substances in these systems, or at least prohibiting their use on the outer coating of the hull of a ship.
As has been said, the convention was adopted in 2001 and came into force internationally in 2008. It was implemented by the UK through the adoption by the European Commission of a regulation of the European Parliament and the Council of 2003, and by a further regulation in 2009. An annexe to the convention prohibits the use of specified substances in anti-fouling systems, including an additional new specified substance which is prohibited from the beginning of next year.
According to the Explanatory Memorandum,
“the Convention will protect United Kingdom waters from harmful effects of the use of prohibited substances on United Kingdom ships and non-United Kingdom ships visiting the United Kingdom.”
I assume that this is the case, but could I check that the convention applies equally in international waters?
As has been said, on the face of it, the provisions of the convention have taken a long time to be brought into effect. Although the Minister did go some considerable way to answering the point, it would be helpful to have it confirmed again, so I will repeat the question: is that the reality, and if so why? Or is the reality, as I believe it to be, that the terms of the convention have been applied in UK waters for some years, and that the reason this SI is needed relates to our withdrawal from the EU, despite, as the noble Baroness, Lady Randerson, pointed out, paragraph 8.1 of the Explanatory Memorandum maintaining that this instrument does not relate to withdrawal from the European Union?
The fact that the instrument appears related to our withdrawal from the European Union is strengthened by the fact that the Explanatory Memorandum states that no impact assessment has been prepared because the instrument
“has no impact on the cost to business”,
including small businesses. That presumably means that no expenditure is considered necessary by any party affected to meet the terms of any regulations the Government might make to give effect to the convention. Or is the argument that it is the regulations the Secretary of State will make that will incur additional costs and not this instrument, which enables the Secretary of State to make such regulations, which is why the Explanatory Memorandum says that there is no impact on the cost to business?
Alternatively, are we to take it that, effectively, all UK ships already conform to the provisions of the convention and that the same applies to non-UK ships coming into our waters, and that there is therefore no requirement for additional expenditure on the application and enforcement of the terms of the convention? If that is the case, could the Minister say what the current enforcement arrangements are, who or which body carries out that enforcement, how many offences of contravention of existing regulations relating to the convention have led to convictions and what level of penalties was imposed?
The instrument provides for a fine on summary conviction and, for conviction on indictment, imprisonment for a term not exceeding two years, or a fine, or both. Could the Minister give a typical example of a proven contravention of the Secretary of State’s regulations that would probably lead to a summary conviction and a typical example of a proven contravention of the regulations that would probably lead to a conviction on indictment? In addition, in what circumstances would a ship be detained, or would that happen in nearly all cases where a contravention of the regulations was felt to have taken place?
I wanted to ask when the Secretary of State intends to make the regulations. The Minister referred to this; I think she said next year. Is it possible to be any more precise about that? What regulations addressing what issues do the Government expect will be made under this instrument?
Finally, how extensive has been the damage to the marine environment in UK waters from the substances whose use is prohibited by the convention, and what evidence is there of the extent to which those substances have had an adverse effect on human health in the UK? In summary, has the convention had the desired impact to date?
I welcome the noble Lord, Lord Rosser, back to his rightful place. There were quite a number of questions there, some of which I definitely cannot answer but some of which I will do my best so to do. I will of course write, particularly on his wider question about the impact of anti-fouling systems on human health and the maritime environment. I will make sure that we can bring together all the evidence we have to show the harm that this convention has prevented.
The noble Lord also asked a number of questions on the number of offences, convictions and penalties to date relating to regulations that have already been passed and are on the statute book. I will certainly have to write with the details of that because it would extend back many years.
The noble Lord asked for a typical example of which route a recalcitrant ship owner might end up going down. That will depend on the regulations which are yet to be made. He also asked whether there is a precise date next year when these regulations will be in place. There is not yet because there needs to be a public consultation. My priority is to get the public consultation kicked off to see what the industry and other interested parties have to say, but we will certainly be working rapidly to get the regulations in place once we are satisfied that the public consultation has drawn out all the issues that need to be drawn out.
Some noble Lords may rightly say, “Hang on a minute, isn’t this the substance?” Cybutryne is the substance that will be under consideration for this order. It will be banned from anti-fouling systems from 1 January 2023, but that applies to brand-new ships only, and there is a limit to how many brand-new ships come out of shipyards. Therefore, although I accept that we will not quite make the 1 January deadline, I do not feel that we will be missing many ships. If a ship is brand new, this anti-fouling substance is already banned so I doubt that it would have it painted on the hull. Existing ships will need to replace their current anti-fouling systems in accordance with the new requirements when they next undergo a survey, which would need to take place within 60 months of the last application of an anti-fouling system.
Enforcement of this order, as is the case with so many maritime instruments, comes under the remit of the Maritime and Coastguard Agency, which applies sanctions as appropriate. There is a range of sanctions and it depends on the severity of any contravention. I will write about circumstances in which a ship would be detained. That is, of course, towards the more radical end of interventions. There are also prohibition notices, fines and, as a very last resort, prosecution. I will write with more information on how many contraventions have occurred.
When the Minister writes to my noble friend—it is great to see him back in his place—will she also say whether there are any geographical differences in where these ships might be used in relation to whether they have to comply, such as rivers, coastal waters or mid-Atlantic?
I will certainly ensure that all that is included. As for the impact of the EU, I suspect we could quibble all day about whether this is because of the UK leaving the EU. The simple fact is that we had no mechanism for putting these amendments into place, and that is the nature of the order that we are putting into place today.
On the impact assessment, the noble Lord, Lord Rosser, was right that this order has no impact per se because no subsequent regulations have been made. Indeed, in future other substances will probably be banned. Each one should clearly be taken into consideration and its impact assessed individually; otherwise we cannot see what will happen in future. At this time, no impact assessment is associated with this order as there are no costs. A de minimis assessment will probably be prepared for the implementing regulations, but work will have to be done by our analysts to confirm that that would be the right way forward. I have committed to write. I accept that there were some questions that I should have known the answer to, but I did not. I commend the order to the House.