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Lord Beaumont of Whitley moved Amendment No. 18:
After Clause 6, insert the following new clause--
(" .--(1) It shall be the duty of port state control inspectors to make copies of all oil record books inspected.
(2) It shall be the duty of the Secretary of State to maintain a public register containing--
(a) any such copies made under subsection (1) above; and
(b) any written record of any reports to any harbour authority made under section 136 of the 1995 Act.
(3) It shall be the duty of the Secretary of State in relation to any register under subsection (2) above--
(a) to secure that the register is available, at all reasonable times, for inspection by the public free of charge;
(b) to afford members of the public facilities for obtaining copies of the documents kept in the Register, on the payment of reasonable charges;
(c) to supply members of the public with copies of the documents kept in the register, on payment of a reasonable charge for copying, not more than two months following receipt of written request for such documents; and
(d) to ensure that all documents defined in subsection (2) are placed on the register within two weeks of their being brought into existence.
(4) In this section, 'oil record book' means any book having been issued to, and completed by, all visiting ships under regulation 10 of the Merchant Shipping (Prevention of Oil Pollution) Regulations 1996 or under any relevant international convention.").
The noble Lord said: My Lords, this is an amendment to insert an extra clause on oil record books and freedom of access to information. Oil record books are now to be provided to ships under the Merchant Shipping (Prevention of Oil Pollution) Regulations 1996. Ships are required to record a range of information about ballasting, discharging and disposing of oil residues. Harbour authorities have the power, but not the duty, to inspect them.
To be effective, those oil record books need to be inspected and made available in a public register to allow the legitimate scrutiny of ships' environmental records. Ships subject to those requirements are in port for some duration, easily giving adequate time for that inspection and copying to be undertaken. It is also required under the 1995 Act that any discharges of oil into harbours are reported to the harbour authority. That information, together with the copies of the oil record books, should be kept in a public register and so be subject to legitimate public scrutiny. The combination of requiring records to be kept, along with the prospect of public scrutiny, would secure a greater use of port reception facilities for oil by visiting ships.
The pollution regulation of the shipping industry is thus brought into line with land-based industry in terms of access to environmental information, which is immensely important. The pollution regulation of land-based industry is already open to public scrutiny by virtue of a number of public registers set up under the Water Act 1989, the Water Resources Act 1991, the Environmental Protection Act 1990 and other Acts and regulations.
We do not accept the Government's arguments that marine industrial pollution should be open to any less public scrutiny than land-based pollution. Furthermore, it is arguable that the Government could not legitimately refuse to publish inspected garbage records if required to do so by an individual under the terms of the Freedom of Access to Environmental Information Directive 90/313 EEC, nor does the refusal to support the proposed public registers sit well with the Government's own code of practice on access to government information.
It would be far more progressive were the government to set up a public register and thereby make the information accessible far more effectively and at a lower cost than would be the case if the legal machinations of applying the EEC directives had to be dealt with for each request. Without public registers there will be greater, not less, bureaucratic impact. I beg to move.
5.45 p.m.
Lord Berkeley: My Lords, I shall not detain the House long over this amendment because it is similar to Amendment No. 17 to which I have just spoken. However, it gives me the opportunity to say that the content of this amendment in terms of freedom of information and freedom of access to environmental information directive from the European Community covers the same ground. When the Minister responds, perhaps he could answer the question which I posed just now, which applies equally to this amendment: how could the Government legitimately refuse to publish this information under the EEC freedom of access to environmental information directive?
Viscount Goschen: My Lords, the arguments with regard to this amendment have many similarities with the arguments to do with the previous amendment. They are to do with the bureaucracy of setting up formal registers. The Government's commitment to reducing pollution from vessels, be it accidental or deliberate, is without question. A large part of the Bill is to do with that very aim. We all have the same aim.
The amendment would require port state control inspectors to make copies of all oil record books inspected. Noble Lords will be aware that port state control inspectors carry out the majority of their work whilst on board ships. They do not generally have access to copying facilities while on board. It would be needlessly costly and time-consuming to remove all oil record books from the ship for them to be copied and then returned. It could also be contrary to our international obligations that port state control inspections should not cause undue delay for ships. It would not be justified to delay ships while copies are
made of oil record books, unless those record books suggested that there had been a breach of oil discharge regulations.The amendment is also of questionable benefit. As with other amendments proposing registers of information, it would require voluminous information to be collated at considerable cost. It would be much more effective to use the information selectively to publicise ships which are found to be substandard or deliberately causing marine pollution. That remains our policy.
Many of the suggestions that have been put forward by noble Lords from all sides of the House have been picked up, and we have come forward with amendments to implement them. So I have no dogmatic opposition to the intention behind the proposals that have been put forward. My concern is one of practicality. I do not want to saddle the industry or the Government with additional bureaucracy unless it can be shown that that would have major benefits in terms of reducing pollution.
The government view is that a register such as this one, or the one proposed by the noble Lord, Lord Berkeley, on the previous amendment, would not have the effect of achieving major reductions in pollution and would not be justified. For those reasons, which are similar to the ones I used on the previous amendment, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Clinton-Davis: My Lords, before the Minister sits down, will he respond to the point about the application of the freedom of access to information directive? Is my noble friend right about the interpretation of that directive? If not, perhaps the Minister will explain why. I have some sort of interest in the directive because I introduced it.
Viscount Goschen: My Lords, any document introduced by the noble Lord must be of considerable quality indeed. I am sure that the House will join me in that opinion.
The warmest words aside, I regret that I cannot answer either noble Lord who posed that question. I must take specific advice on that matter. Once I have done so, I shall be happy to write to the noble Lords and copy the letter--
Lord Clinton-Davis: My Lords, before the Minister sits down, will he assure the House that such correspondence will be placed in the Library and will be available well before the Third Reading?
Viscount Goschen: My Lords, yes.
Lord Beaumont of Whitley: My Lords, I do not entirely accept the Minister's arguments, particularly in view of his present inability to answer the question posed by the noble Lords, Lord Berkeley and Lord Clinton-Davis. When we have the answer I shall decide whether to proceed with the matter on Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Clinton-Davis moved Amendment No. 19:
Before Clause 7, insert the following new clause--
(". In section 131(1)(a) of the 1995 Act the words "or master" shall be omitted.").
The noble Lord said: My Lords, in Committee we had an interesting debate about the substance of this amendment. The Minister indicated that he would look again at the matter. He wrote to me on 19th December stating:
I agree with the Minister that the offences that we are considering are serious. It is important that the courts should take a more serious view of such acts and omissions. They need to be tough on offenders, but the evidence thus far is that they are not. Neither Parliament nor the Government can or should try to dictate to the courts, but at the end of the day the Minister is entitled to seek to guide them. It must be only a matter of guidance and perhaps the Minister will be able to tell the House about the actions that he has taken in that regard.
The issue between us is simply whether it is practicable to impose a penalty of £250,000 on a master against the background of the courts' actions thus far and whether it is right to give a signal to the courts that masters and owners should be dealt with on a similar basis. Of course, one recognises that once a conviction has been brought in a court must carry out an examination of means when it is contemplating a financial penalty.
We are considering the situation affecting magistrates' courts, the courts of summary jurisdiction, and not the Crown Courts where quite different powers apply. However, because we are dealing with a situation in which foreign ships may be involved and may seek to leave with some rapidity, it follows that in most cases, if not in all, thus far such trials have taken place in the magistrates' courts. The practical reason for that is that the trials need to take place quickly.
As a lawyer, I wish to see the courts given reasonable powers; powers that they will be inclined to exercise not necessarily as regards maxima but powers which on the face of an Act are reasonable. However, our experience is that in almost every instance it is inconceivable that a master of a ship will be capable of paying such a maximum fine and that no maxima of this kind, or even of £50,000, have been imposed in any case of which I know. Again, the Minister may be able to say that I am wrong and may be able to point to precedents in that regard, but I think not.
The reasonableness and the practicability of penalties that can be imposed represent very important criteria when it comes to sentencing. I believe that it is right that courts should take into account the fact that a master holds an extremely responsible position on a ship and that he has the ultimate responsibility for the day-to-day operations of that ship. However, he is responsible to the owner, who is his employer, and therefore has vicarious liability, and the Act does not distinguish between deliberate or accidental discharge.
If the Minister does not wish to remove the master from liability--we are not saying that he should be removed from liability but that the penalty should be limited to £50,000--perhaps he will consider an alternative if he does not agree with the figure of £50,000. We are seeking to strike a balance between what is practicable and what kind of signal should be sent to the courts by legislation. We also wish to recognise that there is a fundamental difference as regards the master who may be under very serious pressure from an irresponsible owner to take actions which may land him in trouble.
The Minister has been most kind and has seen me and discussed the matter with me. I am not sure that I was able to persuade him, but we will see in a moment. I would ask him to think again seriously about it. It is not a question of not wanting to be tough on masters who commit irresponsible acts or omissions, but the fact is that it seems that in no circumstances are the courts likely to impose a fine of this kind. I beg to move.
"Our policy is to seek to prosecute the owners and operators of ships rather than the crew. We believe that this will help to ensure that shipping companies instruct their crews to comply with regulations on pollution prevention and allow them sufficient time to do so. As regards the failure to comply with the requirement to discharge waste, the best deterrent for ship operators is the threat that the ship could be detained in port and thereby prevented from trading until the waste has been discharged".
I believe that there was also another letter but I cannot now remember. At all events, as regards the Bill the Minister was not moved to support the idea that a different regime should apply to masters as distinct from ship owners.
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