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Merchant Shipping (Control and Management of Ships’ Ballast Water and Sediments) Order 2022

Volume 817: debated on Thursday 13 January 2022

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Merchant Shipping (Control and Management of Ships’ Ballast Water and Sediments) Order 2022.

My Lords, the purpose of this order, which was laid before the House on 4 November 2021, is to give the Government the powers to implement the International Convention for the Control and Management of Ships’ Ballast Water and Sediments—or “the convention”, as I shall now refer to it—into UK law. The order relies on powers in Section 128(1)(e) of the Merchant Shipping Act 1995, which I shall refer to as “the 1995 Act”. This order, if approved, will contain powers to make a new statutory instrument under the negative resolution procedure this year.

As noble Lords will be aware, shipping is essential to our global economy. In fact, it is estimated that it transports around 90% of the world’s commodities. In doing so, it transfers 3 billion to 5 billion tonnes of ballast water every year. This makes ballast water one of the most effective vectors for the transport of species around the world. For example, noble Lords may well have heard of the Chinese mitten crab, which is native to eastern Asia but was first discovered in the Thames estuary in 1935. It is one of the most destructive examples of invasive non-native species, as it preys on native populations, burrows extensively, causing damage to flood defences and riverbanks, and causes commercial losses in fisheries.

I should like to give some background about what the Government have done regarding the convention and outline the Government’s reasons for wanting to ratify it. In doing so, I remind noble Lords that our purpose today is to discuss the use of this draft order as a mechanism to provide the powers for the implementation of the convention, rather than to discuss the detail and implementation of the convention itself, which remains in progress.

The convention was adopted at a conference convened by the International Maritime Organization, or IMO, in 2004, and it entered into force internationally on 8 September 2017. It aims to prevent, minimise and ultimately eliminate the transfer of invasive non-native species through the control and management of ships’ ballast water and sediments. It does this by prohibiting the discharge of ballast water and sediments unless they have been managed in accordance with the convention requirements. The United Kingdom has not yet ratified the convention.

Noble Lords will note that the convention entered into force internationally four years ago, and it is quite reasonable to ask why we are only now seeking powers to implement the convention. The reason is that the UK had concerns regarding the availability of the equipment required for the sampling and analysis aspects of the convention. Delaying the UK’s ratification of the convention has allowed for these concerns to be addressed.

Subsequently, the UK rescheduled ratification and implementation of the convention to wait for amendments to the convention to enter into force, thereby ensuring that the UK implementing legislation, which is coming down the track, reflects the most up-to-date version of the convention. The Government made a public commitment to accede to the convention in 2020. This was again rescheduled to avoid placing extra burdens on the industry during the Covid-19 pandemic. The Government consider that the implementation of the convention into UK law is an important step to ensure that UK waters are protected.

The convention was negotiated at the IMO by representatives of Governments, 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.

The MCA has issued a frequently asked questions document to assist industry in understanding the requirements of the convention. The Government’s proposals for implementing the convention through the new statutory instrument, in the form of regulations, have also been the subject of a 12-week public consultation. The MCA has refined the proposals based on the comments received.

The convention cannot be implemented into UK law unless the Government have the power to do so. That is what this order addresses; it provides those powers, such that we can ratify the convention and then implement it in due course.

I will now briefly explain the powers we are relying on to make the instrument. We are relying on Section 128(1)(e) of the 1995 Act, which provides that Her Majesty may, by Order in Council, make such provision as she considers appropriate for the purpose of implementing any international agreement that has been ratified by the United Kingdom and relates to the prevention, reduction or control of pollution of the sea or other waters by matter from ships.

This order will authorise the making of the regulations by the Secretary of State to give effect to the convention. The United Kingdom has not yet ratified the convention. This is due to the procedure set out in both Section 128 of the Merchant Shipping Act and the convention. It is a little complicated, but it all makes sense if you think about it.

The key thing here is that we will end up with domestic law, once the set of regulations comes through, that absolutely meets our international obligations and reflects recent amendments to the convention. I have highlighted the importance of this Order in Council so that we can get on and ratify this convention and then get on and get through the regulations that implement this very important convention. I commend this draft order to the Committee, and I beg to move.

My Lords, I am grateful to the Minister for introducing this fascinating draft order. It is interesting that the Government blame everything on things coming from the Far East, be they Chinese or Japanese knotweed or Japanese oysters. I expect that equal blame goes in the opposite direction.

This needs doing—I have no problem with ensuring that ballast water is sampled and tested—but I wonder whether the Minister can just help me. How is this sampling done? It is presumably done when the ship is in port, then sent away for analysis—that seems quite clear to me—but what happens if some of the samples are found to be non-compliant with whatever regulations we are coming up with? Will they nail a writ to the mast of the ship, the next time it comes in? Will they send our Navy out on to the high seas? How will these things actually be enforced?

It is wonderful having regulations. These have been coming for a long time. The IMO worked very fast to get them ready by 2017. It probably takes 10 years to do these things, and now we are taking another five. It is important to understand how these regulations will be enforced. They need to be enforced around the world. We can do only our bit, but we can set an example. I hope there is a way of doing it without us spending too much money on it.

My Lords, I too am grateful to the Minister for introducing this order. As she said, the convention dates from 2004 and was not ratified until September 2016 by 30 states, representing 35% of the world’s merchant tonnage. By the time it came into force a year after that, over 60 countries had ratified it, representing over 70% of the world’s shipping.

The Minister mentioned the delay in bringing forward this order. I am not certain that I entirely buy her explanation. It seems to me that when so many other countries, representing so much of the world’s shipping, have already ratified it, it does not do our reputation as a so-called maritime nation much good when we are seen to be dragging our feet over these conventions.

She also mentioned in passing the Chinese mitten crabs. When I went through the list, it read more like something out of a science-horror movie, since we also have round goby, North American comb jelly, zebra mussels, toxic algae and even cholera, which has been transported on micro-organisms such as plankton. There are some very nasty things going around, as the noble Lord, Lord Berkeley, just said, and this convention was brought in for very good reasons.

There is one thing I would like to ask the Minister. What has been the position with our ships? This measure does not mean that an awful lot of ships, in the general sense of the word, would be affected because our Merchant Navy is a shadow of what it used to be. But what has happened to those ships to enable them to continue trading? Have they been, on their own accord, taking the actions necessary to comply with the convention in order to trade? If they were seen to be operating under the flag of a country that had not ratified, they would quickly be picked up by port state control around the world and forbidden to trade. I would be grateful if the Minister could shed some light on that.

My Lords, I welcome this important environmental measure and thank the Minister for her explanation. In particular, I was fascinated by paragraph 6.3 of the Explanatory Memorandum, which explains the complexity about which comes first: the ratifying of the convention or these regulations. However, that does not explain why it has taken since 2004 for us to get to this stage.

I realise that we were not alone because, as the noble Lord, Lord Greenway, just explained to us, it took until 2017 for 30 countries representing 35% of the world’s tonnage to ratify the convention. But it is a serious matter of concern and shame for us that the nations with 70% of the world’s tonnage have now signed up and we have not yet managed to do so, although it will happen soon. It is depressing that, as a once-great maritime nation, we yet again have been slow to adopt international and environmental measures that were a matter of urgency.

Perhaps the Minister can clarify, but am I right that our slowness has simply been because of the huge backlog of maritime measures that the Department for Transport managed to build up? Was it simply overlooked, or has it been a lack of enthusiasm by successive Governments to sign up that has been the problem?

There is a key point, not explained in the Explanatory Memorandum. I am sure that noble Lords will forgive my ignorance, but do ships need new technology to manage their ballast water in the way that will be prescribed, or is it just a matter of better management? I am not clear whether it is that all modern shipping would have the correct equipment, and so on—but I am surprised that there has been no impact assessment. I would assume, whether it is better management or modern equipment, either way there will be costs for ship owners as a result of this SI. However, I welcome the fact that we have finally got round to it.

My Lords, I support the introduction of this order to implement the 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments. The convention ultimately aims to eliminate the transfer of harmful aquatic organisms and pathogens, which is why the control and management of ships’ ballast water and sediment is so crucial. However, given that the UK played a pivotal role in negotiating the convention, it is a shame that it is only now being brought forward. I note that the Minister gave some explanation on this delay but, clearly, it is a matter of concern on all sides of the Committee. I hope that she will produce a full answer and, if there are areas on which she cannot answer today, write to us all.

On the legislation itself, I would be grateful if the Minister could answer three questions. First, are the Government already fully in compliance with the convention? Secondly, what engagement has the department had with the shipping industry over the implementation? Finally, how many countries have ratified the convention, and how many further are in the process of ratification?

We support the introduction of this order and the implementation of the convention, but this is only one step in cleaning up the seas. I hope that the Minister can offer the Committee a brief explanation of the other steps that are being taken by the Government.

My Lords, I am grateful to all noble Lords who have taken part in this short debate to consider this order. I shall provide a bit more information, if I can, on the timeline to getting to this stage. We probably all wish that we had got here earlier, but there were some reasons behind that. I hope that the next SI will cheer up noble Lords, because we are certainly ahead of the game on that one.

There are several reasons why the UK did not ratify the convention earlier. As the convention was new, equipment availability was limited both to treat ballast water management systems and to sample and analyse the discharged ballast water, which is integral to its enforcement. The industry was not confident in the equipment and was concerned that it would be unfairly penalised. Those concerns were eased by the development of the experience-building phase, which established a period of implementation and review during which ships would not be penalised due to non-compliance with the discharge standard if operating a type-approved ballast water management system.

Secondly, the UK’s ratification was rescheduled to allow time for the latest amendments to the convention to come into force and thereby ensure that the UK’s implementing legislation reflects the most up-to-date version of the convention. These amendments were adopted during the IMO’s Marine Environment Protection Committee meetings held in April 2018, and accepted in April 2019. That introduced a phased approach to implementation, which also alleviated the concerns around equipment availability. At that point, it was very much full steam ahead until Covid arrived.

It is true, and noble Lords will have heard me say before, that we have had to delay some of our statutory instruments, which is not ideal. Although I do not think this SI falls under the definition of backlog as set out by Minister Courts when he went to see the Secondary Legislation Scrutiny Committee, it is certainly on our list of things to do, so I am really pleased that we are able to do it today. I reassure noble Lords that we are actually making quite good progress on our maritime backlog. I have a little note here to say that a couple of others with very long titles are also heading their way through Minister Courts’s office now, and no doubt we will be returning to this Chamber to debate them in due course. I reassure the Committee that we are very focused on our maritime SI backlog.

The noble Lord, Lord Berkeley, mentioned enforcement and, as with other similar legislation, any potential maritime offences are investigated by the Maritime and Coastguard Agency and sanctions applied as appropriate. Sanctions could be an improvement notice, a prohibition notice, detention or, as last resort, prosecution. The person liable will depend on the offence in question, but liability will mainly rest with ship owners and masters. The MCA primarily prosecutes shipowners or managers, and only prosecutes individual ship officers when they are personally culpable.

On industry consultation, there have been lengthy discussions with industry during this entire process. As I mentioned, there is a 12-week public consultation which relates to the implementing regulations that will be coming down the track. We received 11 responses from the shipping industry, environmental groups and ports to that 12-week consultation, and they are broadly supportive of the convention aims. The concerns fell into three main areas: to suggest that the regulations did not go far enough or that clarity was needed on behalf of ports, harbours and statutory harbour authorities and responses highlighting the practical difficulties for some sections of the shipping industry. Obviously, we are very grateful to all who responded to that public consultation, and the Explanatory Memorandum which will go alongside those regulations will set out more about how the convention will be implemented in the UK.

That brings me on to the point about the impact assessment raised by the noble Baroness, Lady Randerson, because this order is just for us to have the power to accept the ratification of the treaty, then we have to implement it. There is no impact assessment for today’s instrument, but there will be for the next regulation. I am sure she will read it with great interest. Detail on new equipment and everything that relates to the convention and how it will impact the shipping industry will be set out in the Explanatory Memorandum that will be coming in due course, later this year. We will try to get it done as quickly as we possibly can.

The noble Lord, Lord Greenway, mentioned ships trading beyond the UK. I have an answer here, but I would rather write to him to ensure that my response is as absolutely correct as it can be, and I am absolutely clear. I have a response involving the experience-building phase, and I am not sure that I have fully got to grips with it, so I will check it out and write.

On the number of countries that have signed up to the convention, there are currently 88 contracting states to the convention, which amounts to 91.2% of global tonnage. That is a good thing; it is clear that the UK needs to be on that list. That is why I commend the order.

Before the noble Baroness sits down, could she write with a list of prosecutions that the MCA has done on these issues? She mentioned that, for non-compliance, the MCA would be the prosecuting authority. Has it done any yet?

It would not have done anything against the convention, because, obviously, the convention is not implemented yet. So that would be a difficult list to compile at this stage. Perhaps I will send the noble Lord some nice information about the MCA and its enforcement, shall I? Excellent. We will do that. I beg to move.

Motion agreed.