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I apologise if I cannot cover all the points noble Lords raised. I will read this immensely meaty debate and seek to write to them if I do not tackle specific issues. The noble Baroness, Lady O’Neill, raised the issues of representation and equality. Unequal representation signifies an unequal society. We should look to representation—for example, in this Chamber and in Parliament generally—to ensure that all voices are heard. Although we cannot of course legislate for a representative society, my belief is that we should offer greater choice to make that more likely.
The noble Baroness also raised the issue about too many children leaving school without useful qualifications. I have a long answer to that, but I will make one point. This year, 129,000 more young people achieved five good GCSE grades, including in English and maths—the foundation of equal opportunities for post-16s—more than in 1997. Gaps in educational attainment are narrowing, not widening.
The noble Lord, Lord Northbourne, as ever, brings to the House the fundamental issues about the quality of children’s lives and the importance of supporting parents in their choices and helping them. However, these are challenges, as the noble Lord recognises, and any Government would face challenges in this area. He is right, however, to say that information and motivation are the key factors. The noble Baroness, Lady Morris, and I agree with him that there is a limit to what Governments can do.
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The noble Lord, Lord Dahrendorf, was unlike the rest of us who quoted philosophers and thinkers. I took out my pen and made notes when he was speaking. My noble friend joined me in nodding almost all the way through the noble Lord’s speech regarding the conditions that must be met to make inequality bearable. I shall not repeat them, but I shall treasure them, use them and feed back into the system those parts which might address these issues.
The noble Baroness, Lady Thomas, raised the issue of women suffering unequally in the recession. We recognise that, because women are employed in different sectors disproportionately, particularly in retail and financial services, we do, indeed, have to look carefully at the effect of the recession specifically on women. My right honourable friend Harriet Harman has said:
“Everybody is affected by the recession, but women are affected differently, so we need to focus on that”.—[Official Report, Commons, 27/1/09; col. 161.]
I hope that I have gone a little way towards illustrating that the Government are determined to offer informed and supported choice across a wide spectrum of services. We are focused on reaching the groups that have often been excluded or have been passive recipients of the one-size-fits-all monolithic provision of the past. In taking this approach, the Government are giving people the opportunity to make real, appropriate and informed choices. They are reducing inequality and giving people greater control over their lives.
5.05 pm
Baroness O'Neill of Bengarve: My Lords, it has been an immensely interesting debate and I have learnt from every single speech. I think that in many ways we have come a long way, as was said by more than one noble Lord, in that debates about choice and equality have lost some of the stereotypical quality that they used to have when some people led the cheering for choice and others led it for equality. Now, we look at a broad array of possible choices and equalities, but I think there has been widespread acknowledgement around the House that you cannot have it all. You can have some choices and some equalities but at the expense of not having other choices and having inequalities.
If there is a remaining area where I think that we may not be, as it were, on a level playing field, or a road going forward—various metaphors have been used—then it is the question of where we think public services that embed choice procedures will lead. We can be optimistic, as I think the Minister was by suggesting that we are moving on to that sunlit part of the playing field in which a greater degree of equality is achieved by the process of choice. That was, after all, the very question that I wished to raise. When do procedures of choice lead to greater inequalities and when do they not? If we accept that representational inequality within lines of work or training and so on are signifiers of an unfair society, then I think that we have a lot of delving to do.
The Minister suggested that we need to go for more informed choice and more guided choice, although I think that “supported” is a more elegant word than “guided”. I believe that informed choice will take us a
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Therefore, these questions remain open. Many have been addressed in wonderful ways and I thank all noble Lords who have taken part in the debate. I beg leave to withdraw the Motion.
Merchant Shipping and Fishing Vessels (Port Waste Reception Facilities) (Amendment) Regulations 2009
Copy of the Order
2nd Report from JCSI
Motion to Approve
5.08 pm
The Minister of State, Department for Transport (Lord Adonis): My Lords, first, let me set these regulations in context: they concern the protection of the marine environment from ship-generated waste. Ships must be able to rely on being able to discharge their waste at reception facilities available in ports. These facilities must be easy to use and cost-effective so as to deter operators from disposing of their wastes at sea.
Recognising this, the United Kingdom has had legislation in place for many years to put this principle into effect. After the UK had put its legislation in place, a proposal for European Community legislation was initiated. The UK played an active role in the development of this measure and the outcome was Directive 2000/59/EC on port waste reception facilities. The directive placed a responsibility on ports to provide adequate facilities for the disposal of waste and a responsibility on ship operators to deliver that waste rather than dispose of it at sea. The ship-generated wastes which fall under this directive are oily water, garbage and sewage. This directive was transposed in the UK by the Merchant Shipping and Fishing Vessels (Port Waste Reception Facilities) Regulations 2003. Article 16 states that the implementation of the directive in respect of sewage would be suspended until 12 months after the entry into force of Annex IV to the International Convention for the Prevention of Pollution by Ships currently known as MARPOL. This annex is now in force, so we can implement the remaining part of the directive, which are the regulations I am moving today.
These regulations also transpose EC Directive 2007/71 which amends the notification form which ships’ masters are required to fill in and send to the harbour authority before they enter the port indicating what quantities of which types of waste they are planning to deliver to the port. Although the transposition date for this directive is June 2009, we have taken the decision to
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The regulations will come into force 14 days after the day on which they are made. This will allow some time for the industry to consider the published guidance. The industry has already been extensively consulted and will be fully aware of the new regime. These regulations amend the 2003 regulations, and the amendments include adding sewage in the definition of ship-generated waste. Sewage is defined as: drainage and other wastes from any form of toilets or urinals; drainage from medical premises via wash basins, wash tubs and scuppers located in such premises; drainage from spaces containing living animals; and other waste waters when mixed with any drainage referred to previously.
The regulations also include amendments relating to requiring ships to deliver their sewage to port waste reception facilities. The amendment will oblige ports to ensure the availability of some facility for the reception of ship-generated sewage, although this may be as straightforward as providing the contact details for a contractor. As I mentioned earlier, the regulations also amend the notification form in Schedule 2 to the 2003 regulations to include sewage. They take account of the consultation exercises which we have carried out, as well as discussions with the European Commission and other member states. My department conducted a full public consultation exercise in 2005 and a further exercise in 2008. I commend these regulations to the House.
Lord Hanningfield: My Lords, I thank the Minister, for bringing these regulations before the House today. There is much to support in the earlier measures within them relating to oily water and garbage. Efforts to clear up the environment and methods to ensure that the environment stays clean are naturally to be welcomed, and we on these Benches welcome them very much. We continue to support them, particularly the provisions within the 2000 regulations.
My comments today will not therefore be in the nature of opposition—indeed, there is very little to oppose. I will instead invite the Minister to answer one or two questions on the consequences of these regulations. I hope that he can answer them and in so doing provide reassurances that I know the industry might want. The Minister might have suggested part of this in his introduction, but will he provide greater context to the Government's decision vis-Ã -vis the timing of this instrument? Why has it been introduced at this stage? He did say a bit about that, but as the notes point out, these provisions were contained within the original regulations in 2000, and they amend the 2003 regulations. Nine years seems an awfully long time to wait for them to come into force. Perhaps the Government have been kind to industry, or given operators extra time to ensure that they have established the appropriate sewage reception facilities. Has the industry enjoyed a period of grace? Perhaps the Minister might further explain that.
5.15 pm
The Chamber of Shipping's response to the consultation on these regulations suggests not. A survey of its members revealed that:
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“Very few have any shore based reception facilities nor had they any plans to install suitable size tanks ashore”.
I would like to understand a little more about why this is the case. Will the Minister provide some context on this? What is the reason for this?
I also invite the Minister to outline to the House what sort of research the Government have conducted to assess the preparedness of the industry for the enforcement of these regulations? What has that research revealed? Do the Government agree with the Chamber of Shipping's consultation submission? For example, what proportion of UK ports have facilities to process sewage? Which ports are they, and, equally importantly, which ports do not have appropriate facilities in place? If the Chamber of Shipping is right and a significant number of ports do not have the facilities in place, there will almost certainly be a number that will fail to comply with the regulations. Many others will incur significant costs in establishing the necessary facilities, especially now they are running against the clock. What type of penalty regime will the Government enforce for ports that do not have the facilities in place because they cannot afford them or because they do not establish the facilities in time for other reasons? Will the Minister provide more detail on how the Government expect to penalise offenders, at what rate and how they will enforce these regulations?
I raise these points because all the evidence from the consultations is that the industry is in a desperate position. Freight rates for containers shipped from Asia to Europe have, I am informed, fallen to virtually zero, and the industry faces sustained pressure from foreign competition. I am concerned about what effect this measure may have on the industry's ability to compete. Will the Minister reassure the House that other countries are also adopting these regulations and that our industry will not be hit hard by overzealous application of the regulations or by overpenalisation? Now is not the time to hinder the industry, but to support it. My final question will dwell a little longer on the penalty regime. What does the Minister expect the policing of these regulations to cost and how will they work in practice?
I do not want to detain the House any longer. We do not oppose these regulations, but we have concerns about their implementation, their practical application and the devil contained in the detail. I hope the Minister will reassure me and the industry in his response.
Lord Addington: My Lords, reading this order through, the only question is why this was not done a while ago. Not discharging sewage at sea seems rather hard to oppose. However, are there ports that are incapable of taking this on? This is the point raised by the noble Lord, Lord Hanningfield, and it deserves some consideration. There is usually a way of transferring even the most foul and noxious substances to places where pumping facilities are available. Is that what is going to happen? Is the rest of Europe more prepared than us, or as prepared as we are? I do not think there is a major question about disadvantaging most shipping, because it is local and this is a Europe-wide order, but it would be interesting to know the state of preparedness. Are the Government reasonably satisfied that with
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Lord Adonis: My Lords, I am grateful to both noble Lords for their broadly positive responses. The noble Lord, Lord Hanningfield, is concerned about burdens on the industry and asked whether, in the time of economic stringency that we face at the moment, it is unreasonable to expect ports to build sewage reception facilities and whether our industry would be at a disadvantage compared to those of our partner countries within Europe.
I should stress to the House that the regulations I am proposing today do not require ports to build any new facilities; they merely require them to ensure that facilities for the reception of ship-generated sewage are available to those port users who need them. That can be achieved through arrangements under which one or more licensed contractors have access to the port and provide a commercial service to users. Therefore, we do not think that the measure is unduly burdensome. We have worked closely with the industry to keep the burdens to a minimum, and the provisions will apply throughout the EU, as other member states must comply with the directive.
I should also stress that the provision of port waste reception facilities is one of the requirements contained in MARPOL, the international convention which, as I said at the outset, is intended to prevent pollution from ships. The MARPOL annexe, which addresses ship-generated sewage, has been ratified by more than 120 states worldwide. Accordingly, all those states should be taking steps to ensure that sewage reception facilities are available to users of their ports.
The noble Lord asked what proportion of ports already have facilities. We do not have accurate figures on that, but, as I said, there is no legal obligation to build sewage treatment plants, so it is not an issue of direct concern here. Although the number may not be high, there is no obligation to build facilities, provided that contracting arrangements are in place.
The noble Lord asked about enforcement. Enforcement will be on the same lines as for oils, waste and garbage under the existing 2003 regulations. There will be no new enforcement regime. He asked why it had taken so long to produce the regulations, considering that annexe 4 of MARPOL came into force in September 2003. The answer is to do with the nature of the consultation that we have undertaken. We initially consulted on the regulations in 2005. After considering responses to the consultation from the industry, we felt that further discussion with the European Commission and other member states was needed to clarify the intention of the 2000 directive about sewage. Directive 2007/71/EC provided the helpful clarification needed. Once the 2007 directive was introduced, we were able to publish further consultation with amended regulations for the industry to consider. It is to try to accommodate as best we can the concerns of the industry that we have undergone this second consultation process and the process of clarification with the Commission.
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I think that we have met most of the points of concern raised. We have sought to keep the new burdens to a minimum. I stress again that the new burdens do not require ports themselves to build sewage treatment facilities, but require them to have contracting arrangements in place to comply with the new requirements. On that basis, we think that this is a fair way to meet our international obligations.
Civil Procedure (Amendment No. 2) Rules 2009
Motion to Approve
5.23 pm
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): My Lords, I hope that it is agreeable to the House that with this we debate the Rules of the Supreme Court (Northern Ireland) (Amendment No. 3) 2008. Both sets of rules were laid before Parliament on 3 December last.
The Counter-Terrorism Act 2008 provides for financial restrictions proceedings, which are proceedings on an application to set aside a financial restrictions decision or on any matter arising from such an application. The Civil Procedure (Amendment No. 2) Rules 2008 insert a new Part 79 into the Civil Procedure Rules 1998 and set out the procedure for such applications to the High Court of England and Wales and any appeal to the Court of Appeal. The Rules of the Supreme Court (Northern Ireland)(Amendment No.3) 2008 inserts new Order 116B into the Rules of the Supreme Court of Northern Ireland 1980 and makes corresponding provisions.
I shall say a word about the legislative context. Both sets of rules were made by the Lord Chancellor in exercise of powers under Section 72 of the Act on 2 December 2008, shortly after it received Royal Assent. The Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland were consulted on the rules which will apply in their respective jurisdictions and were both content. The rules came into force on 4 December 2008, but will cease to continue to have effect unless they are approved by both Houses of Parliament.
For England and Wales, amendments to the Civil Procedure Rules 1998 are usually made by the Civil Procedure Rule Committee, which is the body with statutory responsibility for making the relevant rules of court. In Northern Ireland, amendments to the Rules of the Supreme Court (Northern Ireland) 1980 are usually made by the Supreme Court Rules Committee of Northern Ireland, which is the body with statutory responsibility for making the Northern Ireland rules.
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In order that the rules can be made as soon as possible on Royal Assent of the Bill, Part 6 of the Counter-Terrorism Act 2008 authorises the Lord Chancellor to make rules of court in the first instance after the Act is passed, subject to consulting the appropriate Lord Chief Justice, which he has done. Any subsequent rules or amendments made by either the Civil Procedure Rule Committee or the Supreme Court Rules Committee of Northern Ireland will be subject to the normal rule-making requirements, including the parliamentary negative procedure.
Prior to these rules being made, there was no specific provision in either the Civil Procedure Rules 1998 or the Rules of the Supreme Court (Northern Ireland) 1980 to deal with financial restrictions proceedings. Rules are required, however, as it is expected that although financial restrictions decisions can be based on open or closed material, subsequent court proceedings will regularly involve the use of closed material and special advocates, and the Act sets out what the rules of court must or may provide. This includes making rules of court to govern the use of closed material and the use of special advocates.
Closed material has been used as evidence in asset-freezing decisions since 2006, when the Treasury announced its intention to do so where there are strong operational reasons to impose an asset freeze but there is insufficient open evidence. However, any reliance on that closed material in any subsequent court proceedings on such decisions has until now been dependent on the court being willing to exercise its inherent jurisdiction to order a closed hearing and to order the appointment of a special advocate. The question of whether and when the court should exercise its jurisdiction in this was one of the points at issue in the case of A, K, M, Q & G v HM Treasury, which was considered by the Court of Appeal last year.
The use of special advocates was developed as a means of mitigating disadvantage to a party who has been excluded from a hearing or from whom information relevant to his or her case is withheld on the ground that such disclosure would be contrary to the public interest. However, the need for a special advocate would arise only if the court could be persuaded that it should consider certain evidence at a closed hearing at which one of the parties and their legal representatives would not be present. The special advocate would represent that party’s interests.
However, since the Treasury’s decision in 2006 to rely on closed material in asset-freezing decisions, it became apparent that many if not most subsequent court proceedings on asset-freezing decisions would involve consideration of closed material, without which the Treasury could not defend its decisions fully. It was therefore felt that it was appropriate to provide for this by way of legislation, and by consequent rules of court, rather than relying on the court’s willingness to exercise its inherent jurisdiction in each case. It was felt that this would bring it into line with other areas where closed evidence is often central to proceedings.
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