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Lord Berkeley: My Lords, I am extremely grateful to the Minister for that explanation. I share his view that we have had an interesting debate. We have made progress in discussing the end objectives which I suspect that we are all seeking and the different means by which we might achieve them. As the Minister said, I am not far from him on any of them.
I hope that the various regulations will be brought forward as quickly as possible following full consultation and that that will not happen too late in view of anything that might happen in the future. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 5 and 6 not moved.]
7.30 p.m.
Lord Berkeley moved Amendment No. 7:
The noble Lord said: My Lords, I beg to move Amendment No. 7. I shall not detain the House long. The amendment concerns the comparatively small matter of the provision of waste reception facilities and charging for them. During Report stage the Minister said that the Bill allowed for regulations to prevent direct charges from being levied for the use of waste reception facilities. But subsection (4)(a) makes reference to prohibiting charges and not direct charges. This may be a small and irrelevant point, but it is a matter of slight concern that the regulations may prevent any charges being made at all. I am sure that that is not the intention of the Minister. Completely free waste facilities were not one of the recommendations of the noble and learned Lord, Lord Donaldson. I am sure that the Minister will provide an explanation that puts my mind at rest.
Viscount Goschen: My Lords, I believe that this amendment is unnecessary and in one way may be counter-productive. It would reduce the flexibility provided by Clause 5. New Section 130C(1) of the Merchant Shipping Act 1995 provides that regulations may enable harbour authorities to recover the costs of providing waste reception facilities through port dues.
As Clause 5 is currently drafted, we would be able to outlaw any charging mechanism which acted as a disincentive to the use of port waste reception facilities. On the one hand, we would be able to outlaw direct charging because "direct" comes within the larger set of charges. However, the amendment of the noble Lord could create a loophole. It could mean that we would be unable to prevent a harbour authority from imposing indirect charges which discouraged the responsible use of port waste reception facilities. I suggest that that would be undesirable.
In conclusion, I do not accept that the noble Lord's qualification of the word "charge" is necessary. There could be circumstances in which a wider definition would be helpful and I believe that I have described those circumstances. I ask the noble Lord to withdraw his amendment.
Lord Berkeley: My Lords, I am grateful to the Minister for his explanation. I believe that I understood most of it. But I am not sure that he has fully explained whether the regulations could prevent any charges being made at all. However, I shall not detain the House any longer. I shall study this matter carefully. If I still have concerns I shall pass them on to colleagues in another place. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Increased penalty for causing pollution, etc.]:
Lord Clinton-Davis moved Amendment No. 8:
The noble Lord said: My Lords, I beg to move Amendment No. 8. I return to the issue of differential maximum penalties, which apply only in courts of summary jurisdiction. I do so unashamedly. In no way do I give up hope that I may still at this last moment, at least in this House, persuade the Minister to reflect further on the matter, and even to change his view.
The Minister has extended considerable courtesy to me and other Members of the House in dealing with amendments. I had a meeting with him on this issue. He has written to me. I shall refer to that letter and to the points that he raises in it seriatim in dealing with matters that I believe to be extremely important. Having said that, I disagree with the Minister on a number of issues
There is also common ground in the following area. I am delighted that the Minister regards some of the penalties imposed thus far in the magistrates' courts as inadequate. I agree with him in that respect. I understand that the Minister's letter was placed in the Library.
Viscount Goschen: My Lords, with the leave of the House, the letter was certainly copied to all noble Lords who spoke at any stage of the debate.
Lord Clinton-Davis: My Lords, I am grateful to the Minister. I am sure that any noble Lord who is interested in this issue will have the letter before him.
The inadequacy of penalty that both he and I believe has occurred is not a matter in respect of which he can take very firm action. But the Minister has indicated to me that he proposes to write an article in the Magistrate about the Government's campaign on the illegal discharge of waste from ships, presumably once this Bill has been enacted. I welcome that, too. That is the most that the Minister can do. Although I am not very optimistic, I hope that magistrates will treat the situation as seriously as he and I do.
Further common ground is represented by the Minister's assertion on the second page of his letter--this is the second point that he makes under this head--that the Government's general policy is to seek to impose penalties on owners rather than masters. He says that a master will be prosecuted only in certain circumstances, such as where the negligent or deliberate actions of the crew result in an illegal discharge, despite the owner taking all reasonable steps to prevent it. However, action against the master would not mean that a parallel prosecution could not be brought against the owner. So far so good.
In the next paragraph the Minister states correctly that courts have to take account of a defendant's means in determining the fine to be imposed, and that they can distinguish between the responsibilities of owners and masters in fixing the appropriate fine. All of that is fine. But the point of difference lies in the Minister's refusal to offer any differential between the master's responsibility and that of the owner in terms of the maximum fine that can be available in the magistrates' court. I stress that here reference is being made to the magistrates' court. In other cases the Crown Court has much wider discretion as to penalty by way of fine and the possibility of imprisonment.
The Minister goes on to argue the case for giving courts flexibility in imposing effective penalties under Clause 7. I wish to examine that main element of the Minister's case and state why I believe that his reasoning is wrong. He argues that he has some statutory precedent for not enabling any differential to be
It must be remembered--and I know that the Minister concedes the point--that when we were dealing with those particular enactments we were looking at much smaller fines. Now we are considering a maximum fine in the magistrates' court of £250,000, which is a very different animal indeed.
I concede immediately and have never disputed the fact that it is right to increase the maximum fine against the owner. I believe that masters must take their responsibilities seriously and I am sure that the overwhelming number of them do so. But fines even described as maxima must bear some relationship to what is practicable and the Minister's argument here collides with a rock of reality.
If he argues that in a very high profile case, where the consequences of the master's acts were so grave that the courts should consider a far more draconian penalty and therefore there should be the flexibility of increasing that penalty to £250,000 in the magistrates' court, I would submit that the reality is that the prosecution would not seek to have the case tried in the magistrates' court but would elect trial in the Crown Court. Clearly, that would be the preferable course and I do not believe that the Minister's argument stands up.
Perhaps we may take an example of a situation comparable to that of the "Exxon Valdez", a case which the Minister raised with me in our discussions. I shall disclose nothing further about those discussions. Is it conceivable in a case of such high profile the prosecution will say, "We are happy to deal with this in the magistrates' court"? Of course not. Therefore that argument is not sustainable.
Past practical experience of cases in which the maximum fine has been much lower is that the magistrates' courts have nowhere near approached the available maximum penalty of £50,000 in dealing with an aberrant master. Even if the magistrates' courts concur in some way in the suggestion of higher fines, it is remote in the extreme, if not entirely impossible, to conceive of a maximum fine coming close to £50,000. We must look at what has happened in the courts. Even if courts were to be encouraged by the superlative article--as I am sure it will be--in the Magistrate to change their direction hitherto, it will not change the real facts of the situation as regards this issue.
It is not altogether inconceivable that a master's responsibility might be deemed to justify a fine substantially in excess of, say, £10,000. However, I see nothing likely to occur which will change the situation all that materially. A totally different situation pertains to the owner, who is likely to be a person of substance. Therefore, I believe that it is appropriate to increase the penalty to £250,000. I argued previously, and I stand by it, that the unscrupulous owner might put the master
In the second paragraph of the final page of the Minister's letter he states in regard to security:
I do not believe that the Minister's point undermines my arguments. I believe that there is a perfectly reasonable case to be made for a differential approach between the master and the owner. I do not believe that anything in the law prohibits that approach. I should be very surprised if it were unknown to the law at the present time. I believe that it is wrong that signals should be given to the magistrates' courts which are misleading. The magistrates should be guided in the direction of recognising the major difference of responsibilities which are appropriate to a convicted master and to a convicted owner. The availability of a fine following summary trial must bear some relation to reality. I believe that the Bill as drawn does not achieve that very important goal. I beg to move.
Viscount Goschen: My Lords, at the Report stage I undertook to reconsider this issue. At that stage and again today the noble Lord, Lord Clinton-Davis, spoke with great feeling about what he considers to be a problem with the maximum level of fines that we have established in this new Bill. I am not persuaded by the noble Lord's argument. I have gone into considerable detail and carried out research in consultation with other government departments and, indeed, as the noble Lord said, I have had a meeting with him again to see whether we could find more common ground on this issue.
We have no difference at all as regards the fact that we both desire to send out strong signals that the UK is tough on pollution and that we have levels of fines which are appropriate to the severity of the offence. The noble Lord, Lord Clinton Davis, referred to a letter which I wrote to him and copied to other noble Lords.
Indeed I said both on 19th December in this House and in correspondence that our policy is to seek to impose penalties on owners rather than masters and that we should prosecute masters only in certain circumstances. I gave the example of where negligent or deliberate actions of the crew result in an illegal discharge despite the owner taking all reasonable steps to prevent that.
I went on to refer--and the noble Lord recognised that--to Section 18 of the Criminal Justice Act 1991 which places a duty on the courts to take account of the means of the defendant when seeking to impose any fines. That is very important indeed if we are concerned about the two strands of the argument which the noble Lord, Lord Clinton-Davis, puts forward. The first is the question of potential of unfair or unreasonable fines, if that is the correct terms, on masters. The second thrust of his argument, on which I felt he dwelt more, was the question of the law; that it should appear reasonable; and that we should not wish to do anything to bring the law into disrepute by imposing unreasonable penalties.
That is why we should bear in mind very closely what Section 18 of the 1981 Act says. Therefore, for a comparable offence, we should expect that the courts would generally impose a lower fine on a master than on an owner. Of course, it is for the court to decide on the differential, taking into account the individual details of each case.
The key point here is that we believe that it is important to maintain the flexibility to impose effective penalties for as wide a range of circumstances as is practicable. The current drafting of Clause 7 achieves that.
Perhaps I may raise another point in passing. I should not wish to create a situation where it was in the shipowner's interests to see the master prosecuted in order to reduce the overall exposure to fines. I mean that the master is prosecuted rather than the owner and not that they are both prosecuted.
The noble Lord said that I had raised the question of precedent. There are two points in that regard. First, I have not been able to identify any precedent for a two-tier system, and certainly not in merchant shipping legislation. The second is as regards any precedent which mirrors the approach that we are taking in this Bill. I gave the examples of Sections 3, 5, 98 and 163 of the Merchant Shipping Act 1995 and Section 11 of the Sea Fisheries (Conservation) Act 1967. Again, we could not find a precedent for such a two-tier system. The sections that I described were for lower total maximum fines than those we are considering in this case.
The noble Lord rehearsed also the argument which I advanced with regard to security. That is not an argument which we can dismiss lightly. It is important and we must bear it in mind closely when considering
For those reasons, I believe that it is important that we impose the same high maximum level of fines for masters and owners. In the course of his remarks, the noble Lord, Lord Clinton-Davis, was concerned that we might send misleading signals to magistrates. I certainly do not wish to do that and, as the House knows already, I intend to produce an article which the noble Lord is confident will be one of supreme clarity. We shall endeavour to provide satisfaction on that point. That article will provide information to magistrates. Of course, it is for them to take a decision in the final analysis. It will provide also information with regard to the situation where there is an illegal discharge of waste from ships.
The noble Lord's argument is primarily that we should not wish to set an unrealistic level of fines. I have responded by saying that I could envisage circumstances in which this level of fines would be suitable. There is no precedent for such a two-tier system. We are able to cover the perceived down-side which the noble Lord suggests as regards signals to the industry and security.
Having discussed those points and the arguments with the noble Lord previously, I know that he takes a different view. It may well be that we shall have to agree to disagree on this point. But we have covered this ground very thoroughly indeed. I have had consultation with other government departments which have considerable experience as regards the question of fines in the magistrates' courts. For those reasons, I ask the noble Lord to withdraw his amendment.
Page 7, line 29, after ("of") insert ("direct").
Page 9, line 12, leave out subsection (1) and insert--
("(1) In section 131(3) of the 1995 Act (fine on summary conviction of offence of discharging oil into certain United Kingdom waters), for "person" there is substituted "master".
(1A) After section 131(3) of the 1995 Act (fine on summary conviction of offence of discharging oil into certain United Kingdom waters) there is inserted--
"(3A) An owner guilty of an offence under this section shall be liable--
(a) on summary conviction, to a fine not exceeding £250,000; or
(b) on conviction on indictment, to a fine.".").
"A further factor which must be borne in mind is the relationship between Sections 131 and 144 of the 1995 Act. Section 144 provides for the detention of a ship on suspicion of an offence under section 131. Subsection (4) provides for the release of the ship on payment of a security. The amount of security is related to the size of the fine which may be imposed on summary conviction under section 131. Any amendment to section 131 could therefore create difficulties as regards the application of section 144(4)".
I do not believe that the argument adduced is sufficiently substantial to defeat the points that I am seeking to make. I understand what the Minister is saying: that the amount of the security is related to the size of the fine when addressing the issue of the release of a ship detained under this section. However, we are dealing with a case which is dealt with summarily. I believe that it is a purely academic point and unreal as regards actual practice. I wish to ask the Minister whether any difficulties have arisen in the past under this provision. Has the question of security been undermined by the fact that we have had a fine of only £50,000? In any event, does it really relate to the responsibility of the master, or is it not the responsibility of the owner?
7.45 p.m.
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