Sports Grounds Safety Authority Bill
(13 years ago)
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Lord Faulkner of Worcester
My Lords, first, I declare an unpaid interest as vice-president of the Football Conference.
It is a great pleasure for me to have been asked to take forward this legislation, which was introduced in another place by Jonathan Lord, the Member of Parliament for Woking, who was elected in May last year. I am pleased to pay tribute to his commitment to steering this Private Member’s Bill through all its stages in the other place, and to his extraordinary good fortune in securing a Second Reading before he had even made his maiden speech.
The Bill enjoys all-party support, and is one for which the previous Administration had hoped to find time but was unable to do so. The Bill, if enacted, will rename the Football Licensing Authority the Sports Grounds Safety Authority. It will enable the provision of advice, on request, about safety at sports grounds to any national or international organisation, person or body. It would also allow the new authority to charge for these services in certain circumstances.
The FLA was set up under the Football Spectators Act 1989, originally to oversee the introduction of a compulsory membership scheme, which at the time was seen—particularly by the noble Baroness, Lady Thatcher—as the best way to respond to the many incidences of football crowd violence in the 1980s. However, before the Act could be implemented, almost 100 people lost their lives at an FA Cup semi-final match on 15 April 1989 at Hillsborough in Sheffield. A major public inquiry was then conducted by Lord Justice Taylor, which reported that the scale of the disaster might have been even worse had a compulsory membership scheme been in force. That section of the Act was then shelved and has not reappeared since.
Instead, Lord Justice Taylor’s principal recommendation was that the grounds of Britain’s professional football clubs should eliminate standing and become all-seated. This was accepted by the Conservative Government of the day, and supported by subsequent Labour Administrations. The one variation was to exempt clubs in the lower two divisions of the Football League from the requirement to go all-seated. The Football Licensing Authority was given the responsibility of licensing grounds and helping to ensure spectator safety. It is the author of the world’s leading sports safety publication, known as the Green Guide. Its expertise is valued and respected nationally and internationally. No other country has an organisation quite like the FLA. It is a lean and efficient organisation that offers excellent value for money. It has a small but experienced workforce, including nine inspectors who are based in the regions. These inspectors work closely with football clubs and local authorities to educate, advise and influence. The majority of football spectators who attend matches on a weekly basis are unaware of the outstanding work of the FLA behind the scenes to help ensure that their experience is safe, comfortable and secure, and the FLA works hard to ensure that this experience should be available to all spectators, regardless of age, gender, ethnic origin, disability or, indeed, the team that they support.
The proposed changes will not extend the FLA’s licensing functions, or local authority oversight duties under the 1989 Act to sports grounds other than football grounds. There will therefore be no increased regulatory burden. Extending the FLA’s advisory role will, however, make it easier to provide advice to a wider range of sports and bodies as we approach some of the biggest sporting events that this country has ever staged. These include the London 2012 Olympics and Paralympics, and the Rugby World Cup in 2015.
Lord Mawhinney
I am extremely grateful to the noble Lord, who is an expert. I declare an interest as honorary president of the Football League, and for the past seven and a half years as its chairman, so I endorse all the good things that he says about the Football Licensing Authority. Given that this is an up-to-date reflection of a 1989 Act of Parliament, is it not missing an opportunity to allow the Football Licensing Authority to promote safety as well as to offer advice on it?
Earl Attlee
My Lords, I take this opportunity to remind the House that it is most effective to allow the noble Lord proposing a Bill to lay out his stall and then for debate to proceed in the normal way.
Lord Faulkner of Worcester
I am most grateful to the noble Lord, Lord Mawhinney, for his kind words. I would like to reflect on what he has said. Perhaps I can respond to him when I reply to the debate. I certainly understand completely the point he is making about the importance of promoting safety.
The FLA is already providing expertise on non-football venues to the London Organising Committee of the Olympic Games and the joint local authority regulatory services. However, at present, this is possible only by negotiating individual temporary secondment arrangements. Creating the Sports Grounds Safety Authority would make it easier to provide such advice and help to provide greater consistency in its application nationally and internationally. An example of this can be seen in the Green Guide. The FLA is retained by the DCMS to provide detailed guidance on measures to improve safety at sports grounds through the Green Guide. The advice applies to all sports, not just football, and is used around the world by technical specialists such as architects and engineers, and by relevant authorities that oversee safety in sports stadia. Although the guidance applies only to outdoor sports venues, its recommendations are often applied to indoor sporting venues as well.
At present, the FLA cannot readily offer more detailed advice on the contents of the Green Guide to sports other than football, or outside England and Wales. This Bill will enable that advice to be provided nationally and internationally, and to a much wider range of sports than ever before. The FLA carries out some international activity, but it is at the moment somewhat limited. The FLA currently supports the Council of Europe and the European Committee for Standardisation by providing UK representatives to their working groups. The FLA’s contribution is highly valued by their international counterparts, and their involvement enhances the FLA’s knowledge, understanding and credibility. This activity brings reputational benefits for the UK, with the chance to promote our role as a world leader in sports ground safety throughout Europe. However, under current provisions, the FLA is constrained in the extent to which it can operate at an international level.
The Sports Grounds Safety Authority Bill would increase the opportunities for international activity at a very opportune time. In 2012, Poland and Ukraine will host the European Championships. In 2014, Brazil will host the World Cup, and Russia and Qatar have already begun preparations for 2018 and 2022. The FLA is uniquely placed to offer expertise and guidance to help ensure that the safety management arrangements are in place for these events and are properly robust. It is important that the FLA acts now to realise those benefits, and this legislation would help it do so.
In the other place, questions were rightly asked about costs as well as benefits. One or two of your Lordships who are speaking in this debate might wish to raise the subject of costs. The provisions in the Bill would enable the Sports Grounds Safety Authority to charge in certain circumstances. The legislation allows for charges to be applied, with the consent of the Secretary of State, to bodies or persons outside England or Wales, or to bodies in England and Wales where the advice is provided at the request of the recipient. The key point here is that consent would be required. It has been made clear that any charges levied would be reasonable and proportionate, and that, where charges were applied, they would be calculated on a cost recovery basis. In the event that the Bill is successful, the Sports Grounds Safety Authority would need to look in more detail at the options for charging and cost recovery. However, I have been assured that the requirement to seek permission from the Secretary of State will offer appropriate safeguards. I should say that, in bringing forward this legislation, it was never the intention to apply charges for activities that are currently provided free of charge. However, it will be important for the authority to be able to levy charges that are appropriate and necessary, particularly for new or additional services, or services that are provided above and beyond the authority’s statutory obligations.
The provisions in the Bill extend to England and Wales only. However, bodies in Scotland and Northern Ireland will be able to access the expertise of the new Sports Grounds Safety Authority on request. The FLA has been in contact with officials in Scotland, Wales and Northern Ireland about provisions in the Bill and will continue to keep in touch with them as more detailed plans for how the new safety authority will operate are developed.
Establishing the Sports Grounds Safety Authority is an important and necessary step in the evolution of the FLA. In Committee on the Public Bodies Bill, the noble Baroness, Lady Rawlings, said in response to me that the FLA,
“will continue as a separate body … until after 2012 when its expertise and functions will be transferred”—[Official Report, 11/1/11; col. 1345.]
elsewhere. I think the Minister would be the first to admit that this was a slightly vague commitment. I hope that we shall hear more from the Government about where the authority will be located before the Bill completes its passage through your Lordships’ House.
Before I conclude, the House may find it convenient if I quickly run through the various parts of the Bill. Part 1 sets out the further powers that will be conferred on the Football Licensing Authority as a result of the legislation. Clause 1 would rename the Football Licensing Authority the Sports Grounds Safety Authority. The existing functions of the Football Licensing Authority, as set out in the Football Spectators Act 1989, will remain, and the authority will continue to receive funds from the Secretary of State. Funding will be as set out in the current funding settlement, with grant in aid of £1.197 million in 2011-12, reducing to £1.14 million by 2014-15.
Clause 2 provides for the authority to advise Ministers by placing an obligation on the authority to advise Ministers, if requested, on sports grounds or the functions set out in the relevant legislation or sections of legislation. These include the Safety of Sports Grounds Act 1975, Part 3 of the Fire Safety and Safety of Places of Sport Act 1987 and the Football Spectators Act 1989.
Clause 3 allows the authority to advise on safety at sports grounds to local authorities, other bodies or persons in England and Wales. This enables the authority to provide advice beyond football and in relation to other sports grounds.
Clause 4 enables the authority to provide advice to bodies or persons outside England and Wales, subject to that advice being at the request of the body or person concerned, and with the consent of the Secretary of State. This could include an international organisation or Government, or other body or person with responsibilities for sports grounds outside England and Wales, and would include the local and national government and sports bodies in Scotland and Northern Ireland.
Clause 5 includes provisions to enable the authority, with the consent of the Secretary of State, to charge a fee for advice. The fee could be charged to bodies or persons outside England and Wales, or within England and Wales where the advice is provided at their request. Any fee charged must not exceed the cost of providing the advice, and consent from the Secretary of State may be given generally or specifically for particular advice or types of advice.
Clause 6 makes provision for the consequential amendments that will be required in other legislation to reflect the change to the new body. These are set out in more detail in Schedules 2 and 3.
Clause 7 confirms that the Act extends to England and Wales only. However, as I have said, the authority will be able, under certain conditions, to advise bodies outside England and Wales.
Clause 8 provides for the commencement of the Act on a day specified by statutory instrument. It is the intention that the legislation, if passed, should commence as soon as possible to enable the full benefit of the authority’s expanded role to be realised.
Schedule 1 sets out provisions relating to the board, employees and accounting arrangements of the authority. These would mirror arrangements that are currently in place for the FLA.
Schedules 2 and 3 include consequential amendments, repeals and revocations that are required to update existing legislation in the event that the Bill is passed.
The Bill provides a unique opportunity to share the FLA’s unrivalled knowledge and experience with other sports and nations. It will maintain the services and standards provided to football, but will extend the FLA’s reach and influence for wider benefit. I commend the Bill to the House, and I beg to move.
Lord Addington
My Lords, the noble Lord, Lord Faulkner of Worcester, has gone through the Bill very clearly and concisely, and there is not much that remains to be said about it—so I shall not take long.
The basic principle behind the Bill is that we have a successful body that was born out of a series of tragedies. It has worked fairly well, addressed problems and gained a reputation for doing what it does well. However, it was designed only for football, which is the dominant spectator sport in our society. There has been a slight growth and diversification in the spectator base, which has probably been provided by the professionalisation of rugby union. However, the fact is that football remains the dominant spectator sport.
The Bill takes the best practice from the main area and passes it out to other areas. I can see no objection to it. There may well be one, but it has not occurred to me. Earlier on, the noble Lord was kind enough to show me what he was going to say. When I asked questions of him then, I could discover no reason why the Bill should be changed. I recommend that we take the Bill on board roughly as it is, if not totally as it is—the noble Lord nods, suggesting that the second option would be preferable—and put it through the House. To be honest, I really cannot see how there can be any problem with the Bill. It may not be absolutely perfect, but it is a damn sight closer to that than most pieces of legislation that come before this House.
Lord Davies of Oldham
My Lords, I, too, hope that the House will give the Bill a Second Reading and that it will proceed satisfactorily through all its stages.
I congratulate my noble friend Lord Faulkner on introducing this constructive measure. It is not the first legislation that he has introduced in the field of sport, particularly football. The first time that I met my noble friend was in the august structure of Wembley Stadium where he kindly presented me with a cup. I hasten to add that it was not the Football Association Cup, which is a thing of my childhood dreams, but a cup given to the parliamentary football team, because we had succeeded, for once, in beating the press that year at Wembley, before a crowd of nine ardent spectators, of which the noble Lord was one.
Subsequently, of course, I came to recognise the extent to which the noble Lord involved himself in a range of constructive activities with regard to sport, particularly football. I am not surprised that he has introduced a Bill that is both helpful to sport—even beyond football—and carefully constructed. It probably assuages any of the anxieties that might attend noble Lords.
The noble Lord, in introducing the Bill, was bound, with regard to its safety role, to make reference to the horrors of 1989 and the changes that we were obliged to make to football grounds at that time. I was brought up when it was still a joy to be on the terraces. I cannot say that there were no moments of anxiety, but they were generally when we were leaving stadia and coming down steep stairs among masses of spectators who were all leaving at the same time, rather than in the grounds themselves. Nevertheless, we all recognised the importance of the 1989 Act and that is why the Bill builds on the significance of that Act.
I ask my noble friend about one point. If there is an area that causes me considerable concern—I have to say that at around 8.15 this morning my anxieties were raised again regarding the United Kingdom Border Agency—it is that when any organisation puts itself forward for enhanced operations, someone is able to say, “We are going to carry out these additional functions. We will be much more efficient. We are going to be hugely more successful, despite the fact that we anticipate a savage cut in our resources”. You have to say to such chief executives, “Why did you not act in that way before? Or is this merely a cover for what, in fact, will be a significant deterioration in services?”.
I am not suggesting that my noble friend has not thought about these matters and I entirely understand that some enhancement of the functions is related to the ability to charge a fee to cover the costs. The Bill indicates other areas where additional help may be given but it also clearly indicates that no additional resources will be needed. Therefore, my noble friend will not mind if I ask him to address that question when he sums up. However, I of course wish the Bill well and I am confident that my Front Bench will do so too.
Lord Watson of Invergowrie
My Lords, I, too, welcome the fact that the Bill has been promoted by the noble Lord, Lord Faulkner, and there can be no more appropriate person to do so, given his history, as the noble Lord, Lord Mawhinney, and my noble friend Lord Davies of Oldham have attested. I pay tribute to the work of my noble friend Lord Faulkner, particularly for his role at the Football Grounds Improvement Trust and its later incarnation, because many football grounds the length and breadth of this country, and in the UK as a whole, have facilities that were paid for largely through the auspices of that organisation.
I have to declare an interest—not as a former director or current supporter and season ticket holder of Dundee United, but as a member of an organisation called the Dons Trust, which owns AFC Wimbledon, a club with which my noble friend Lord Faulkner will be familiar in his role at the Football Conference. AFC Wimbledon was formed nine years ago when the original Wimbledon FC had its identity stolen by the FA and handed in the form of a franchise to some people in Milton Keynes who wanted to start a club. The supporters’ reaction was to form their own club and, four promotions later, the club stands on the cusp of the Football League—regaining the status that it lost nine years ago. In nine days’ time, I very much hope that that is something they will duly achieve.
The Bill is welcome, and there have been past attempts to introduce a Bill with similar aims. It certainly makes a good deal of sense, not least with the approaching Olympics and the many requirements of sports grounds and facilities that have to be put into proper order for that momentous event. It is also important to extend those improvements to sports such as cricket and rugby.
Rugby has expanded exponentially south of the border—I should say that as a Scot—but it has tread a considerable amount of water north of the border, and continues to do so. South of the border, the professional game is very successful and new clubs are emerging, such as Worcester some years ago, who are poised to regain their place at the top level, and Exeter, who did that a year ago and have happily retained it. Clubs such as those will be looking to the new authority for advice, and it is appropriate that it should be open to receive such requests. There is also cricket. Twenty20 cricket has taken off considerably now and it is not just at test grounds that considerable crowds are attracted by that form of the game. Therefore, it is important that smaller grounds should have advice made available to them if they want it.
I read the Hansard reports of the debates when the Bill was being considered in another place. I noticed that in Committee, Mr Ian Austin, who is the Opposition's spokesperson on sport and the Olympics, asked the Minister, Mr Robertson:
“The Secretary of State with responsibility for the Cabinet Office has been reported as saying that responsibility for safety at grounds would now shift to local authorities. Can the Minister provide some more detail about that?”.—[Official Report, Commons, Sports Grounds Safety Authority Bill Committee, 19/1/11; col. 5.]
In his response, the Minister said many things, but he did not respond to that point. I should be grateful if the Minister could say something on that when he responds.
Another point I want to make, although I know it is not within the remit of the authority at the moment, concerns allowing spectators at the top two levels of football to stand at football grounds. I understand the sensitivities of that, post the dreadful events of Hillsborough in 1989, which led to many of the safety precautions that we have and take for granted today, but there ought to be room for consideration of the reintroduction of some standing areas at grounds. I notice that the Minister, Mr Robertson, recently met the Football Supporters’ Federation, a body that represents about 150,000 football supporters in England and Wales, and said that he would consider the strong case that it put to him on the question of standing.
Although I am sensitive to what caused standing to be outlawed at the top two levels originally, I simply say that the attitudes and behaviour of supporters have moved on considerably in the two decades since, and so has stadium technology. That makes it much simpler for the police to control crowds in ways that were not open to them then. Given that a Private Member’s Bill has been introduced in another place by Mr Don Foster, given that that is apparently the policy of the Liberal Democrats, and given that 145 MPs signed an Early Day Motion in favour of that, I hope that the Government are considering it and listening to representations, and that at some stage the new authority will be able to consider representations on that important subject.
Finally, I wish to raise a point of clarification; this may be aimed at the clerks as much as anyone else. I notice that Clause 2(1)(a) states:
“The Authority … may provide relevant advice to a Minister of the Crown”.
Clause 3(2)(a) states:
“The Authority may not under subsection (1) provide advice to … a Minister of the Crown”.
There must be a perfectly simple explanation as to why those apparently contradictory clauses are there, and I would value someone informing me about that apparent contradiction.
Lord Grantchester
My Lords, I support wholeheartedly the introduction of this Bill today. It is welcomed and supported on all sides and widely throughout sport. That football has changed and developed in this country to such wide acclaim today throughout the world is due in no small measure to the safety and ground improvements implemented following Lord Justice Taylor's report into the Hillsborough disaster. Like other noble Lords, I can recall clearly the events that fateful day in April 1989, as I was at Villa Park watching the other semi-final between Everton and Norwich City. I declare my interest as an Everton shareholder and former director of Everton Football Club.
Noble Lords will recall that many spectators in those days went to football matches carrying radios to listen to other games while watching their team. It was a very eerie atmosphere that day as news of events at Hillsborough rippled through the crowd. I pay tribute to the work of the Football Trust and to my noble friend Lord Faulkner of Worcester for his tireless work on safety issues as deputy chairman of that body and since.
My noble friend has explained that the core safety and licensing function and local authority oversight role of the FLA will remain, while it will extend its advice, expertise and experience gained to other grounds, venues and sports on request. As a result, it will change its name to the Sports Grounds Safety Authority. He gave an excellent account of the Bill and its passage through the other place, where it has been endorsed on all sides and has afforded another opportunity for the Government—given the high regard that they and the football authorities have for safety—to reassure us of their continuing funding and expertise.
It makes abundant sense that that valuable knowledge and experience regarding safety at football stadia be shared. That is especially pertinent to LOCOG in the run-up to the Olympics and Paralympics in 2012. The conduct of the Football Licensing Authority has been admired widely and its work endorsed by the Football Supporters’ Federation and supported by the Hillsborough families and their Members of Parliament in another place.
I just ask one or two questions for clarity to my noble friend and one question to the Minister. I appreciate that safety is not a devolved matter and that the Bill extends to England and Wales only. Bodies in Scotland and Northern Ireland will be able to access the expertise of the new Sports Grounds Safety Authority on request. Is my assumption correct that the original footballing provisions of the Football Spectators Act 1989 setting up the FLA applied to Scotland and Northern Ireland? Can my noble friend or the Minister confirm that? Can my noble friend clarify that football grounds in Scotland and Northern Ireland are subject to the same rigorous control regimes and that that will be undertaken free of charge?
I follow up with a question about charges and fees. Although I understand the sensitivity of costs in any new order, the Bill will not require additional funds as the safety authority extends its services. The safety authority will be able to charge for its advice and expertise extended to other sports grounds and venues. However, I understand that that is discretionary. Has my noble friend any more information on how that may operate? Has he any guidance on what level of fees may be levied and in what circumstances? It would be a matter of great regret if safety were jeopardised should advice not be sought from the safety authority because it incurred a cost that the relevant sports ground did not want to pay.
Lastly, can the Minister clarify the position of the Sports Grounds Safety Authority under the Public Bodies Bill, now starting its passage through the other place? The position was debated in your Lordships' House in Committee on the Public Bodies Bill, and the Bill was subsequently amended and provisions of various clauses altered. I understand that post-2012, the new authority is in jeopardy of being taken over by some other authority. Can the Minister, on behalf of the Government, be any clearer today regarding their intentions for the safety authority? Will she correct any impression—perhaps inadvertently given in Committee—that once the high-profile events of the Olympics and Paralympics during 2012 are over, the Government will drop their guard regarding safety issues and that the focus on safety can be downgraded or subsumed under some other authority. Can she reassure us that the operation of the safety authority will not become historical; that its work will not be finished and its licensing function will continue? Football and other sports grounds need to continue upgrading, and the work continues under the Football Stadia Improvement Fund, which has now reached its 10th anniversary, funding more than £102 million-worth of benefits through funds provided by the Football League and the FA.
As has been stated, the Bill has made progress through the other place without amendment. I can remember only one other such Bill, the Gangmasters Licensing Authority Bill, achieving such a measure of success. It is an indication of widespread support. I wish for similar speedy passage for the provisions of the Bill.
Lord Pendry
My Lords, at first sight one might think that the Bill is somewhat unnecessary as it contains many of the essential undertakings of the Football Spectators Act 1989. However, after studying it, and certainly after listening to my noble friend Lord Faulkner of Worcester, one recognises that some important additions are necessary to the 1989 Act, and I endorse his thinking behind the Bill. Indeed, I cannot add anything of substance beyond what he said, as I think has already been recognised by the noble Lord, Lord Addington.
To my mind, the change in name is important only because the remits of the FLA have been extended beyond football so that it can share its vast wealth of experience and knowledge with other sports. It is also important to note the additional powers, pointed out by my noble friend—notably, to provide additional advice about safety not only to national venues but, more surprisingly, to international organisations, persons or bodies, local authorities and, indeed, Ministers of State.
It is true that many of us in the other House who took part in the proceedings of the 1989 Act were perhaps in a bit of a hurry to get the legislation on to the statute book in the wake of the football disasters of Bradford, Heysel and Hillsborough, and therefore in our haste we did not look in as much detail as we might have done at how health and safety legislation could affect other sports as well. As outlined by my noble friend, this Bill, which was started in another place, has taken us a step further, ensuring that other sports grounds meet the necessary safety requirements.
However, it is somewhat worrying that sports other than football may well have to pay for the expertise provided by the new authority, as pointed out by the noble Lord, Lord Davies of Oldham. It is especially worrying when one considers that the FLA’s funding was cut by 4 per cent in the comprehensive spending review, even though the good work that it undertakes has been recognised by successive Governments. It must be taken into consideration that the new body may be tempted to recoup some of that money by charging unrealistic levies to other sports. However, I was somewhat reassured by what my noble friend said, and I am sure that when he replies to the debate he will undertake to answer the points raised on this subject by me and by my noble friend Lord Davies.
Having said that, I give my complete blessing to the purpose of the Bill, whose main thrust will continue to be geared towards football. As a result of the Bill, other sports will be assisted and, with the Olympic and Paralympic Games looming, numerous sports in this country will be beneficiaries of the renamed FLA. The Sports Grounds Safety Authority will be able to benefit from the FLA’s experience and staff, and will ensure that the original intentions of the 1989 Act are carried over for the benefit of sports other than football.
Lord Lyell
My Lords, I apologise very humbly to your Lordships and above all to the noble Baroness, Lady Billingham, who might have thought that she was going to be able to make a quick start. However, I shall be very brief. It is entirely appropriate that an earlier speaker in this excellent Second Reading debate was the noble Lord, Lord Watson of Invergowrie, who I think said he had mislaid his glasses. I frequently do the same and did not notice that I had not put my name down to speak, and for that I apologise.
The one point that I want to make concerns what I refer to as the Berwick question. This is the more puckish view of a Scot, and I declare my interest as honorary patron of a wonderful football club in the county of Angus called Forfar Athletic. Indeed, the only clean tie that I found in my drawer this morning was that of Forfar Athletic. I know that one is not supposed to advertise too much in your Lordships’ House, but the tie is blue and I am happy to do so.
I have one query, of which I have given warning to the noble Lord, Lord Faulkner, who so ably presented the Bill. It concerns Berwick Rangers, who play at Shielfield Park in Berwick. Indeed, with luck, at about seven o’clock this evening I shall be passing their ground. As your Lordships will be aware, Berwick is in England—in Northumberland—but Berwick Rangers play under the jurisdiction of the Scottish Football Association and currently they are in Division 3. Is the noble Lord, Lord Faulkner, able to give me what I call the “drill” for this stadium? I am sure that there have been formal or informal links with the Scottish football authorities, but which is the responsible authority under the provisions of the Bill?
Of course, as one would expect, the Bill is concerned with the structures of stadia and sports grounds, but so much reference has been made to activities and things that have happened at those grounds that I am beginning to think that the Bill is concerned not just with the grounds but with the human aspect.
I understand that Berwick’s average attendance for what I would call a normal league game is in the region of 300, 400 or 500 spectators when they play at home. However, on two or three occasions in my lifetime they have had an enormous invasion of fans from all over Scotland—perhaps even from the north of England as well—when one of the major Scottish teams has arrived to play in a Scottish Cup tie. Indeed, 1967 is for me, both professionally and in football terms, a very important year, as that was when what we called the Wee Rangers—Berwick Rangers—beat the Rangers from Ibrox in the Scottish Cup, and their name went into the history books on that occasion. Can the noble Lord, Lord Faulkner, give me some guidance as to—
Lord Watson of Invergowrie
I thank the noble Lord for giving way. I understand his point and it is an important one but, given that Berwick Rangers are in the Scottish league and the local authority of all Scottish league clubs have to issue a safety certificate, surely Berwick Rangers already have a safety certificate issued by Northumberland County Council—a situation and relationship that will continue when the authority changes its name.
Lord Lyell
The noble Lord, Lord Watson, may seek to clarify the point but perhaps the noble Lord, Lord Faulkner, will deal with it when he comes to reply.
I am particularly grateful to the House and to the noble Lord, Lord Faulkner, for tolerating my intervention. I was very happy to spend one early morning at Everton’s ground, Goodison Park, in 1975. I spent another morning at Filbert Street, Leicester, in 1976 and received an enormous amount of instruction from the police and the safety authorities, who are going to have to implement the measures in the Bill, so ably presented by the noble Lord, Lord Faulkner.
I was particularly grateful for the comments of the noble Lord, Lord Grantchester, about gangmasters. I hope that his remarks are well read at the wonderful training ground of Finch Farm, as they will go down well there. However, I congratulate the noble Lord, Lord Faulkner, and wish his Bill every success. I conclude by apologising for not having put my glasses on, which is why I am speaking in the gap.
Baroness Billingham
My Lords, we have had a series of excellent speeches this morning—everybody would agree with that—all of which are in broad support of the Bill. Each contributor had expert knowledge on the Football Licensing Authority and the implications for its successor body—the Sports Grounds Safety Authority. We are fortunate to have such in-depth wisdom in this House and all noble Lords are to be thanked accordingly.
In his forensic speech—and it really was—my noble friend Lord Faulkner reminded us of the Hillsborough tragedy, which is burned into our national memory. From that dreadful experience, the FLA came into being. As a result, spectator safety became the priority and football stadia were transformed. As my noble friend reminded us, all-seater stadia were guaranteed—which is more than we can guarantee in this Chamber with the number of Members we now have. All of us who enjoy watching sport now enjoy enviable safety standards, and our children and grandchildren can visit major grounds in safety.
One question in my mind arose from the Explanatory Notes, which accompanied the Bill. They identified the grounds,
“for over 10,000 spectators where sports are played (which in practice includes rugby, cricket and football matches, including internationals)”.
The 15,000-seater centre court at Wimbledon immediately came to my mind, and most certainly the new facilities being built for the forthcoming Olympic Games must surely be included. As I read on, and as I have learnt more from noble Lords from all around the Chamber, those fears are now allayed and will be dealt with accordingly.
With those questions answered, it is with confidence that we can wholeheartedly endorse the need for change and for the measures laid out in the Bill. This has been a well scrutinised and fully debated Bill, which deserves unopposed passage through both Houses. It is to be warmly welcomed.
Baroness Garden of Frognal
I, too, would like to thank the noble Lord, Lord Faulkner of Worcester, for sponsoring this important Bill. I pay tribute to his expertise and enthusiasm on this subject and indeed, for the cross-party support of many Members of both Houses of Parliament.
I am unable to confirm or deny which football club, if any, I played for in my youth but I am pleased to be able to reaffirm the Government’s strong support for the Bill. As has been explained, the Football Licensing Authority—the FLA—was originally established to help ensure safety at football matches in England and Wales. In doing so, it has played a key role in transforming spectator safety at football grounds over the past 20 years. Over this time, it has built up a national and international reputation for expertise in the area of sports ground safety. It is also the author, for DCMS, of the world’s leading sports safety publication, which has already been referred to: The Guide to Safety at Sports Grounds—the Green Guide.
However, the statute limits it from sharing its expertise, through advice direct to other sports or those in other countries and it is right that we remove this restriction. The Sports Grounds Safety Authority Bill will therefore extend the advisory role of the FLA. As has already been mentioned, this will be especially important in the run up to the Olympics and Paralympics. It therefore makes complete sense to free the FLA from the current constraints and allow it to provide advice directly to LOCOG and local authorities in relation to non-football Olympic venues. It will also allow it to offer such advice to other sports. This has the potential to help ensure a greater consistency in the application of sports ground safety advice across all sports.
It is important to recognise and build on the FLA’s work over the past 20 years. This Bill gives us an opportunity to raise the profile of the valuable work of the FLA. We are very clear that the FLA carries out an important role in relation to football ground safety and we want this to continue. We are committed to maintaining the services and standards provided for football but we also want to allow it more freedom to build on, while not compromising, this core role. We have a unique opportunity to extend the reach of the FLA for the wider benefit.
It is important to clarify some potential misunderstandings about the extent of the Bill. It will not extend the regulatory role of the FLA, add any burdens to football clubs, other sports or local authorities, or change the safety regime which relates to football or other sports grounds. In addition, local authorities and others will not be required to seek advice from the authority in relation to sports grounds. To ensure that the authority’s publicly funded resources are not diverted from its core role in relation to the safety of football grounds we have included some safeguards in the Bill. The consent of the Secretary of State will be required to provide advice to bodies or persons outside England and Wales. I shall leave the noble Lord, Lord Faulkner, to identify the anomaly that was raised by the noble Lord, Lord Watson.
The authority will be able to charge for its advice to bodies in England and Wales, where such advice is given at the request of the recipient or bodies outside England and Wales, but it will also need the consent of the Secretary of State to do so, and the charges will be limited to the recovery of costs so there is no risk that they will be unreasonable. These charges will simply ensure that the costs of providing the advice are met by those who receive the benefits of the expertise rather than any increased public expenditure.
The noble Lords, Lord Faulkner and Lord Grantchester, and others, raised the Government’s commitment through the Public Bodies Bill to transfer the functions and expertise of the FLA—or, if the Sports Grounds Safety Authority Bill is enacted, the Sports Grounds Safety Authority—to another body after 2012. They have raised concerns that more should be said about where the authority will be located before this Bill’s passage is completed. We recognise the concern to know where the functions and expertise will be located. However, we believe that it would be premature to rush to a decision without full consideration of the options. We want the benefits for the FLA, any partner body, and all sports to be maximised.
The Department for Culture, Media and Sport is working with the FLA to develop a range of criteria that will enable us to ensure a successful transfer of functions and expertise to another body and allow further growth. These criteria are still to be finalised but may, for example, include: the preservation of the FLA’s ethos and independence; the enhancement of the FLA’s expertise and reputation; continued effective delivery of the regulatory role and expanded advisory functions; improved value for money; and the ability to develop and to build on successes to date. It would be wrong for me to speculate at this stage as to which organisations might be considered. There could be obvious and natural linkages with sports or safety bodies, but we are open-minded on that.
I can assure noble Lords that we will not commit to any transfer until we are confident that we have an appropriate home for the FLA’s expert role and functions, when judged against these criteria. We have also made it clear that we want to discuss the proposals and options with those affected as part of the necessary consultation process, as set out in the Public Bodies Bill. To pick up the issue raised by the noble Lord, Lord Watson, and referred to by the noble Baroness, Lady Billingham, about standing, we currently have no plans to change the policy of all-seater stadia in the top two domestic leagues. All-seater stadia are the best means of ensuring the safety and security of fans, and they have been a contributing factor to the increased diversity of those attending matches in recent years. But change in the policy could not happen unless the football authorities, those charged with stadium safety and the police all indicated their support. There is currently no appetite from the police or safety authorities for any change in that policy.
For some noble Lords the efforts to extend the advisory role of the FLA will be familiar. There have been a number of attempts to do so over recent years that have not progressed through lack of parliamentary time, including the Bill put forward not long ago by the noble Lord Faulkner of Worcester. I thank him for the co-operative way in which he has involved all parties in this Bill to ensure its success. I am delighted that progress is at last being made and I trust that this Bill will continue to have similarly strong cross-party support.
Lord Faulkner of Worcester
My Lords, I am a little overwhelmed by the degree of support that this Bill has received in all parts of the House. It is very gratifying and I am sure that when the honourable Member for Woking comes to read this debate, he, too, will be gratified that this Bill has had so much success. I am not allowed to refer to the fact that he is here listening to it.
In taking up some of the points raised, perhaps I can start with the noble Lord, Lord Mawhinney, who asked why we do not take advantage of using the Bill to promote safety. That is a good question but the FLA already has a remit to promote safety, which it does though education, advice and persuasion. It takes the view that the publication of the Green Guide and its safety management booklets are part of that promotion of safety. It also runs a number of courses at places such as the Emergency Planning College in York to do that. That part of the FLA's work is already under way, so the promotion of safety is covered.
A number of similar comments were made by several noble Lords. The noble Lord, Lord Addington, was concerned—as I would expect from a great rugby player—about the role of the FLA in helping rugby. The authorities in both rugby union and rugby league are already very interested in talking to the FLA. So are the authorities for cricket and horseracing. They are keen to seek advice and talk about the experience that the FLA has had. The hope is that with the passage of the Bill, the work can be extended. I say to my noble friend Lady Billingham that if tennis authorities are concerned about safety at their institutions, the opportunity is there for them as well.
My noble friend Lord Watson, in an interesting and thoughtful speech, raised a number of subjects that I will try to cover. First, I thank him for his kind words about the role that I played in the 1970s and 1980s. The body of which I was deputy chairman—which the late Lord Aberdare chaired—was the Football Trust. The Football Grounds Improvement Trust was a sister organisation. We were charged with providing the funding to assist football to comply with the provisions of the Hillsborough report from Lord Justice Taylor. The safety work had been carried out from 1975 onwards by the Football Grounds Improvement Trust.
If plaudits are being offered to people working in this area, my noble friend Lord Pendry, who succeeded Lord Aberdare as chairman of the Football Trust, and was then the first chairman of the Football Foundation, also deserves a great deal of credit. There has been a consistent, cross-party approach to these matters. We have all done our best to ensure that the terrible disasters that occurred in the 1970s and 1980s are not repeated.
My noble friend Lord Watson referred to AFC Wimbledon, which may next Saturday be members of the Football League. It is already in discussion with the Football Licensing Authority, and I am assured that its ground will comply with Football League standards and the requirements of the FLA, and will obtain a licence.
The Minister answered the difficult question, which I did not wish to enter into, about the reintroduction of standing at matches. That is not a matter for me; it is one of public policy. The FLA will do what the Minister asks. She has given her view on whether standing will come back at the top level, in the Premiership and Championship.
My noble friend Lord Grantchester also made some important points. He referred of course to Hillsborough. I, too, have a personal recollection; I was there on that day and it was the most terrible event at any sporting occasion that one could imagine. Certainly it gave all of us a sense that the world had to change and that we could never run the risk of similar things happening in future. The report from Lord Justice Taylor and the establishment of the Football Licensing Authority, with its role after Hillsborough, are important elements of that.
My noble friend Lord Davies of Oldham asked searching questions about funding, which the Minister answered. The funding of the FLA is a matter for the DCMS, not for me. However, I am assured that the FLA takes the view that it came out of the spending review settlement rather more favourably than other bodies, and I have heard no suggestion that it will not be able to take on the increased role that the Bill will give it if it becomes an Act. A number of noble Lords, including the Minister, made it clear that charges will be proportionate and will be based on cost recovery. There is no question of the grant in aid that the FLA receives being replaced by a charging regime paid for by the bodies that receive either advice or licences from it.
My noble friend Lord Watson raised an interesting question about whether there were conflicting requirements for advice to Ministers in Clauses 2(1)(a) and 3(2)(a). I am delighted to say that I have an answer. The new authority may not provide advice to the Minister under Clause 3(2)(a) because the Minister would then have to pay for it. Therefore, the advice will be given under Clause 2, not Clause 3. That seems to be a very sensible approach.
My noble friend Lord Grantchester referred to Scotland and Northern Ireland. I will deal in a moment with the Berwick question raised by the noble Lord, Lord Lyell. It is important when looking at Scotland and Northern Ireland, and at sports ground safety in general, to bear in mind that there are three pieces of legislation that cover sports ground safety in the UK. Only one applies specifically to England and Wales and is relevant to the Football Licensing Authority. The first piece of legislation is the Safety of Sports Grounds Act 1975, which came about as a result of the disaster at a Glasgow Rangers game at Ibrox. It provides for the designation of any ground that has accommodation for more than 10,000 spectators, or 5,000 in the case of Premiership or Football League grounds in England and Wales. All designated grounds, including those in Scotland, are required to have a safety certificate issued and enforced by the local authority under the provisions of the Act.
The second Act also came out of a tragedy, in this case the fire at Bradford City’s ground. The Fire Safety and Safety of Places of Sport Act 1987 extended provision to cover regulated stands. A regulated stand is any covered stand at a non-designated ground with accommodation for 500 or more spectators, whether seated or standing. The local authority is responsible for determining which stands at sports grounds in its area are regulated.
The Football Spectators Act established the Football Licensing Authority. It gave it the power to oversee how local authorities discharge their responsibilities under the provisions of the Safety of Sports Grounds Act, and the power to issue licences to admit spectators to sports grounds that are used for designated matches. A designated match is defined, in the Football Spectators (Designation of Football Matches in England and Wales) Order 2000, as
“any association football match which is played at Wembley Stadium, at the Millennium Stadium in Cardiff or at a sports ground in England and Wales which is registered with the Football League or the Football Association Premier League as the home ground of a club which is a member of the Football League or the Football Association Premier League at the time the match is played”.
That does not include Scotland; Scotland's grounds are licensed under different legislation.
The noble Lord, Lord Lyell, raised the question of Berwick, which was covered in what I have just said about the different pieces of legislation. As he rightly points out, Berwick is in England but the team plays in the third division of the Scottish Football League. Therefore, the provisions of Part 1 of the Football Spectators Act 1989 do not cover Berwick Rangers. This Sports Grounds Safety Authority Bill does not seek to alter the FLA's powers under the 1989 Act. However, it will allow the FLA to provide advice and guidance to any sports ground in England, Wales or Scotland, if it is sought. Therefore, the Bill will allow Berwick Rangers to a obtain advice, but the club is not covered by the legislation. I hope that that answers the noble Lord’s question.
Lord Lyell
The noble Lord has been more than gracious and kind. Clause 27(6) of the Football Spectators Act 1989 states:
“This Act, except paragraph 14 of Schedule 2”—
which I think covers Northern Ireland—
“extends to England and Wales only”.
Will the noble Lord please write to me and explain why the provisions that he has been explaining about the Scottish Football League should not apply to Berwick Rangers because its ground is in England? The 1989 Act applies to England and Wales. Will he write to me to explain why he said that it is different because Berwick Rangers plays in the Scottish Football League?
Lord Faulkner of Worcester
I would be very happy to write to the noble Lord. The answer is that Berwick Rangers plays in a competition that is not covered by this legislation—but I will write and give the noble Lord chapter and verse in answer.
I think that I have answered the main points which have been raised. If there is anything that I have missed, I hope that noble Lords will allow me to write to them. I thank the Minister for her gracious and very helpful answer. We await with great interest the deliberations of the Government on where the FLA or the Sports Grounds Safety Authority finally finds a home. I am sure the fact that the Government are committed to the Bill and its continuation will be read with great interest and a great deal of relief. I am grateful to all noble Lords who have spoken for the support that they have given to the Bill, and it is my pleasure to commend the Bill to the House.
Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill
(13 years ago)
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Lord Hunt of Wirral
Lord Hunt of Wirral
My Lords, I declare an interest as a partner in the international commercial law firm Beachcroft LLP and the other interests recorded in the register.
First, I pay tribute to the Law Commission. The Law Commission was, in fact, created by the Law Commissions Act 1965, which was the year that I joined my present firm. It is a body, under the sponsorship of the Ministry of Justice, whose task is to keep the law under review and to recommend reform where needed. This Bill originated with the Law Commission. Secondly, I congratulate my right honourable friend Greg Knight, Member of the other place. He became a Member in 1983—I recall his introduction well—since when he has had a long and distinguished parliamentary and ministerial career. However, my links with him go back even further than that because we were both involved, in a very belligerent way, in the political youth movements of our parties. I commend him for his decision to introduce this Bill. He has dedicated much of his parliamentary life to the interests of people—consumers, clients, customers.
This Bill results from the law of unintended consequences. I am not going to go into a long explanation of Adam Smith, where the phrase apparently originated, although he called it “the invisible hand”. But let me explain. This Bill is made necessary by the interaction of the common law forfeiture rule and the intestacy rules, or the terms of a will, which combine to stop the children, the grandchildren, the great-grandchildren and further descendants inheriting their murdered relative’s estate. It is easy to explain in that way because that was the way in which my right honourable friend introduced the Bill.
Why are there these problems? The concerns arise from the decision of the Court of Appeal in the case of Re DWS (deceased) in 1995. In that case, the son murdered his parents, neither of whom had a will. He was an only child, and he had only one child—a son aged two at the time of the murder who, by the way, the evidence shows, was really close to his grandparents. Because the son had murdered his parents, that grandson was prohibited by the forfeiture rule from benefiting from the estate of either his grandmother or his grandfather. The court was asked to determine the correct distribution of the estate of the grandfather under the intestacy rules. In the High Court, Mr Justice Blackburne, sitting as Vice-Chancellor of the County Palatine of Lancaster, held that the estate did not pass to the grandson, who was the only grandchild, but instead passed to the sister of the murdered person. By the time of the hearing the sister had herself died and the estate therefore passed, rather remotely, to her estate. The Court of Appeal, by a two-to-one majority, confirmed that decision.
I must share with the House a fascinating exposé of what can, from time to time, be the deficiencies of this wonderful House and the other place. I have only to refer to the speech of Lord Justice Sedley, who, at page 592 of the report, referred to,
“sections 46 and 47 of the Administration of Estates Act 1925”—
which, by the way, was only a consolidating statute. But why did no one question the interaction? Mr Justice Sedley said:
“Had that useful analogue of the officious bystander, the alert backbencher, intervened in the debate to ask, the minister would have had to undertake to consider the matter and return with proposals”.
Sadly, no one did. Therefore, he concluded that it was a casus omissus. Speaking as chairman of the English-Speaking Union, I do not know why on earth the judiciary have to keep referring to Latin. But I think that we can all guess what that means—it is a gap in the Act.
The Law Commission then intervened; and as a result of the then Department for Constitutional Affairs asking the Law Commission to review the relationship between the forfeiture rule and the law of succession, in October 2003 it published a consultation paper that considered the problem which had arisen in that case and discussed whether a similar problem could arise in other contexts. Its consultation paper was then widely circulated and there was quite a series of submissions. It then published a report which discussed the responses to the consultation and set out recommendations together with a draft Bill. Its solution was a deemed predeceased rule whereby a beneficiary who had forfeited or disclaimed an inheritance would be deemed for these purposes only to have died before the person who had actually died. This would permit the killer’s children, grandchildren, great-grandchildren or remoter descendants to inherit. Of course this rule would be subject to any contrary intention expressed in a will, in line with the general policy of respecting testamentary wishes expressed in a valid will.
So we have the Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill. This Bill will in certain circumstances protect the inheritance rights of the descendants of people who have forfeited their inheritance by engaging in an act which kills the deceased or who have decided not to accept their own inheritance. That is where we are with this Bill.
I hope that I have been able to explain the legislation, but I see that subsequent speakers are highly expert in this area of the law. Just before I entered the Chamber I was approached by a colleague who said, “Can you explain the Bill in simple terms?”. I have done my best, but I am sure that others will do it even better. I also look forward to hearing the speech of my noble friend Lord McNally, the Minister responsible for justice. I would like to say to him, to his colleagues and to the Law Commission that I pay tribute to them for initiating this reform, on which there has already been a great deal of consultation. As I have sought to explain, Consultation Paper 172, published in 2003, set out a draft Bill which was then included in the draft Civil Law Reform Bill. Now, thanks to my right honourable friend, we have this Bill which has taken out of the draft Civil Law Reform Bill the necessary provisions to deal with this injustice, in accordance with the Law Commission’s aim of ensuring that the law is as fair, modern, simple and cost-effective as possible.
With some trepidation, I understand that it is normal for the mover of a Bill to take everyone through the clauses in detail. I will do my best to do just that, but as briefly as possible. The Bill is accompanied by Explanatory Notes which explain its content in much more detail than I will attempt here.
Clause 1 inserts new Section 46A into Part 4 of the Administration of Estates Act 1925, where the intestacy rules are primarily to be found. This new section will operate whenever a person disclaims an inheritance arising under an intestacy or is disqualified from inheriting on intestacy because of the forfeiture rule. For the purpose of deciding who should inherit the interest in the deceased’s estate in these situations, the person disclaiming should be deemed to have died immediately before the intestate. This overcomes the requirement in the present law of intestacy that children cannot inherit if their parents are still alive, as set out in Section 47(1) of the 1925 Act.
Clause 2 makes analogous provision for disclaimers or forfeitures of gifts under wills. It inserts new Section 33A after Section 33 of the Wills Act 1837. The existing Section 33 provides that where a gift to a testator’s child or other direct descendant fails because the child has predeceased the testator, the gift should pass instead to any children, grandchildren and other direct descendants of the intended recipient of the gift, and they will benefit in place of the child. New Section 33A applies where a person either disclaims a gift under a will or is precluded from taking it by the forfeiture rule. In both of these situations, under Clause 2 the will is to be interpreted as if the person disclaiming or forfeiting had died immediately before the testator. The general rule does, however, give way to a contrary intention in the will.
Clause 3 inserts new subsections (4B), (4C) and (4D) into Section 47 of the Administration of Estates Act 1925 to address the situation in which a child of an intestate dies under the age of 18 without having married or formed a civil partnership, but leaves children. At present, on the child’s death, the child’s children will not inherit their father or mother’s estate—the intestate’s estate—because their parent did not attain a vested interest in the estate by reaching the age of 18 or by marrying or entering into a civil partnership. The subsections inserted by Clause 3 provide that the intestate’s estate is to be distributed as if the child had died immediately before the intestate. The children of that child who were therefore living at the death of the intestate will be able to inherit. Clause 4 sets out the short title, commencement, application and extent of the Bill.
I hope that I have been able to explain an admittedly technical Bill that, thanks to my right honourable friend, puts right an injustice. I commend the Bill to the House.
Lord Marks of Henley-on-Thames
My Lords, while I declare an interest as a practising barrister, I should add that I have never conducted a case in this precise area of the law, so while I am grateful to my noble friend for looking at me when suggesting that experts in this area of the law were due to speak, I doubt his accuracy. However, I congratulate my noble friend on bringing this Bill forward for a Second Reading and on what I must say was a masterful exposition of its terms.
As noble Lords will have appreciated, this Bill involves three distinct reforms, each of which, I would suggest, is beneficial and necessary to correct anomalies in the present law. The first reform set out in Clause 1 is that where a parent disclaims an interest in an estate, whether on intestacy, which is the alteration to the Administration of Estates Act 1925, or under a will, which is the alteration set out in Clause 2 of the Wills Act, that disclaimer does not bind his or her children. As my noble friend has explained, it achieves this by treating the disclaiming parent as having died immediately before the intestate or the testator who is, as he rightly pointed out, usually a grandparent, so that the children can inherit directly. This is a sensible and sympathetic reform. It is right that a parent can disclaim, for whatever reason, for himself or herself. However, it is wrong that that disclaimer should bind his or her children. That may cause not only loss to the children, but if they know of the disclaimer, it may also cause stress to the grandparents, who then know that their grandchildren will not inherit.
The second reform uses the same device on intestacy and under wills to ensure that the forfeiture rule does not disinherit the children of a person who forfeits his or her inheritance. There are of course clearly understandable reasons for the forfeiture rule, which is now defined by the Forfeiture Act 1982. The rule provides that someone who has killed another—often, but not always, a parent—cannot inherit from the victim’s estate either on intestacy or under the victim’s will. That applies to anyone party to the killing as well. The rule is obviously primarily intended to ensure that killers who kill to gain an inheritance are deprived of the fruits of their crime. However, the present operation of the rule also prevents the children of the killer from inheriting the victim’s estate. Since again the most predictable circumstances in which this can operate are where a son or daughter kills a parent, the effect is to cut the victim’s grandchildren out of the inheritance. That is anomalous and unfair, as the Law Commission recognised.
In DWS, the case where a son had murdered both his parents and therefore could not inherit under the forfeiture rule, which has already been cited and which was the case that led to the reference to the Law Commission, the result was that his child could not do so as well. The judgment of Lord Justice Sedley has already been read out in part, but I hope that I will be forgiven for trespassing on the time of noble Lords for a moment or two more to mention another passage of that judgment where, using very plain English, Lord Justice Sedley said:
“Most people in the situation of the two deceased parents in the present case, if told that in such an unimaginable event their son would be disqualified from inheriting and asked what they would then like to happen, would say that they would like their estate to go their grandchild”.
That is the result at which this part of the Bill is aimed.
In western society, we reject the principle that the sins of the father shall be visited upon the children from generation to generation. We are right to do so, and the Bill recognises that.
The third reform is designed to protect the interests of the children of a single parent under 18 who dies before reaching majority. At present, if someone under 18 and single has a child and inherits from a parent under an intestacy while still under 18, the child cannot inherit and the parent’s interest in the estate passes to other relatives. Again, that is plainly wrong. The Bill uses the same device to treat the parent as having predeceased the intestate, again usually a grandparent, so that the interest in the grandparent’s estate will pass from the intestate grandparent to the single parent’s child.
These are small reforms. They are, I suspect, entirely uncontroversial. They may sound complex, but they are relatively simple in their application.
The DWS case was in 2001; the Law Commission’s consultation was in 2003; and that led to the Law Commission’s report in 2005, a thoroughly commendable report. This Bill comes before this House in 2011. We must do better. We do not know how many possible heirs have been deprived in a grandparent’s estate between 2005 and 2011, but surely it cannot be right to tolerate a delay of that length in the implementation of such an uncontroversial proposal.
The Law Commission brings great expertise to these questions. It consults widely, as it did in this case. It reports in detail and generally with very well reasoned and intellectually sound recommendations. We have it in our power to pass uncontroversial Bills introduced into the House of Lords with some speed. Yet the Law Commission’s implementation log, admittedly most recently updated only in November 2010, says that the last report to be implemented was that from 2006, which led to the Coroners and Justice Act 2009. Even that delay is substantially too long. There are a number of reports since 2006 awaiting implementation. We now have an annual reporting requirement on the Law Commission. We have a protocol between the Law Commission and the Government under which procedures are governed. I simply invite the Minister to give some attention to how we may ensure that in simple and straightforward cases uncontroversial reports of the Law Commission are brought to Parliament more quickly than hitherto.
That said, commencement under the Bill is a matter for the Secretary of State. It is to be not less than three months after Royal Assent. I simply urge the Minister, once that short period, which is no doubt designed to enable lawyers to catch up with the provisions, has elapsed, to bring them into force as quickly as possible.
Lord Flight
My Lords, I support the Bill. I am not a lawyer, but I congratulate the noble Lords, Lord Hunt and Lord Marks, on very clear legal presentations. It came across to me as fascinating, obscure territory where quite a big issue of justice is at stake. In many ways, I am quite surprised that it has not been addressed previously. I cannot help commenting that I felt that the territory, if they had appreciated it, might have been a subject for Gilbert and Sullivan to produce a successor to “Iolanthe”. I well remember:
“He shall prick that annual blister, marriage with deceased wife's sister”.
This is a blister to be pricked, and I very much hope that this House will support it.
When I saw that the Bill was coming up, I thought that there was no one better than the noble Lord, Lord Hunt, to present it, although I confess that I was a little disappointed, where I imagined that it was his fertile brain that had discovered these strange anomalies, that it was the recommendation also of the Law Commission in 2005. The Bill was of course presented so fully in the other place by the Members of Parliament for East Yorkshire and Berwick-upon-Tweed. I am delighted to see my old colleague the right honourable Greg Knight here in the Chamber to listen to Second Reading in the Lords.
As the noble Lord, Lord Hunt, pointed out, the Bill is all about the law of unintended consequences and the interaction of common law and intestacy law. As the noble Lord, Lord Marks, pointed out, there are key reforms which the Bill seeks to bring about.
I was surprised to learn from reading the debate on the Bill in the other place that as many as 200 cases per annum have been affected by the law as it has stood. I can only hope that these are about people disclaiming their inheritance rather than being involved in killings. Perhaps I should say that I have no interest to declare: sadly, both my parents are dead of natural causes.
As pointed out, the issue at the bottom of the Bill is very clear: innocent children should not be unjustly disinherited; the sins of the parents should not be visited on the children. The noble Lords, Lord Hunt and Lord Marks, presented the case far better than I could, and I see little point in repeating it. Indeed, the case was very fully presented in the other place. However, some points relating to it occurred to me which I hope the noble Lord, Lord Hunt, may see as worthy of comment.
First, if this Bill were enacted, would it work legally? Are there any quirks that have not been thought about or is it as straightforward as it appears? Secondly, I hope that the number of cases of children murdering their parents remains few and that there is no trend towards an increase. Cases of mercy killing seem to be the key territory, and these are likely to rise until the laws relating to this matter are changed. Will the noble Lord, Lord Hunt, confirm that, as I understand it, the Bill would allow a mercy killer to inherit directly at the court’s discretion and covers that individual as well as their children? Thirdly, I was quite interested to know what the code Napoleon provides in this territory, as there seems to be some possibility that this country might in future be invited to change its laws and adopt that code. I understood entirely the point on children with deceased minors, but I could not quite understand the applicability of civil partnerships as opposed to marriage, which did not seem to be likely to be relevant to the situation.
I congratulate the drafters of the Bill on the very simple legal device of deeming killers or disclaimers of intestate situations to have died before the intestate party, albeit that, in reality, they are still alive. Again, does this simple device actually work? Is it potentially open to challenge? I also assume that the Bill is so drafted that this issue can be applied only in this narrow circumstance of succession cases. I would be interested to know if the number of those dying intestate generally is stable, rising or falling. My observation is that in the society in which we live there is less enthusiasm and activity of people to produce wills in comparison with the past 300 years.
Finally, I wonder if there are any other quirks in succession law that need addressing. This case obviously prompts that question. I trust that we will be hearing in due course that the provisions have the support of the Government, whereas I understand that they are in effect an alternative to a rather more complicated Bill that the Government decided to withdraw for lack of time .
This is an obscure issue. There is an obvious case of justice and it is a positive thing that both Houses of Parliament of this nation have made the time to put right an injustice. That is, ultimately, what we are all here for.
Lord Scott of Foscote
My Lords, I speak in the gap—and I am grateful for the House’s indulgence in allowing me to do so—to make just one short point on the Bill. It is an excellent Bill and I thoroughly support it. I agree with everything that has been said in support of it already, but I wanted to say a word about the scope of the forfeiture rule. The noble Lord, Lord Flight, mentioned that the forfeiture rule might be applied to cases of mercy killings. So it might. If the mercy killing is held to be unlawful, that would trigger it. “Unlawful killing” is the expression used in the Forfeiture Act 1982. Murders are obviously caught in that description. Manslaughter would also be caught, as there would plainly have been an unlawful killing.
However, we now have another criminal offence on the statute book: causing death by dangerous driving. Children drive their parents. Parents drive their children, obviously, but it is children driving their parents that might give rise to some point under the Forfeiture Act. The court has the discretion to grant some relief from the fact of the forfeiture, but that is a discretion, and how the court exercises a discretion will obviously depend on the view of the judge and the facts of the particular case. It must be recognised that the scope of the forfeiture rule may have been considerably increased by the advent of the crime of causing death by dangerous driving. That is the point that I wanted to make when considering the necessity for the Bill.
Lord Bach
My Lords, I can be brief on behalf of the Opposition. We support the Bill and warmly congratulate the noble Lord, Lord Hunt of Wirral, on the calm, reasonable and above all clear way in which he moved this debate. We have come to expect that of him over the years and he did not disappoint today. We are grateful to him.
I am sorry that he has just left the vicinity, but congratulations are certainly due to the right honourable gentleman Greg Knight, the Member of Parliament in the other place. He and I were young lawyers together in Leicester in a former life. He was even foolish enough on one or two occasions to instruct me in criminal matters. We were also colleagues on opposite sides of Leicester City Council for some time many years ago. He deserves congratulations particularly today because, when the Government refused—for good reason or bad, I know not—not to proceed with the draft Civil Law Reform Bill, he took it upon himself, having been successful in the Private Member’s Bill ballot in the other place to put into effect Part 3 of that draft Bill and to take it through the Commons. He deserves the thanks not only of Parliament but of the wider public.
I was privileged as a Minister to take through two Law Commission Bills—the noble Lord, Lord Hunt of Wirral, will remember them—under the new procedure that was experimented with and is now in practice. To answer the noble Lord, Lord Marks, Law Commission Bills can be brought forward by a shortened Committee method in this House and then go to the Commons. They have to be uncontroversial Bills, of course, but the procedure has worked twice so far rather well. I hope that it will be used again quite soon.
While I am on my feet, I will speak to the extraordinary high skill of the civil servants who advise the Minister—the noble Lord, Lord McNally, at the moment and me previously—on these complicated and difficult Bills. They have no doubt talked to the noble Lord, Lord Hunt, and to Mr Knight as well. They are a very high-powered group who are a great compliment to the Civil Service generally and play an important role that is sometimes understated. That needs to be said from time to time. It is a great reflection on the Civil Service that it can provide people such as them to advise Ministers. They give careful, skilful guidance on tricky matters of law. I would have been completely lost in the two Bills that I took through the House without their constant—I was going to say hand-holding—guidance. I am quite sure that it is quite different with the noble Lord, Lord McNally, who will be on top of this brief completely without any help at all.
We think that the Bill deserves support. We hope that it is carried through this House as quickly as possible. It passes, as the other speakers all said, any tests of fairness or justice with flying colours. In the end, that is surely the important point.
I have two matters for the Minister, and I do not want to put him on the spot, but why did the Government not proceed with the Civil Law Reform Bill? Secondly, the noble and learned Lord, Lord Scott of Foscote, asked how far the Forfeiture Act goes. That is a matter of some importance and needs to be sorted out, if not today then before the Bill becomes an Act. From our side, we wish the Bill well and hope that it gets its Second Reading.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, from the mild titter that went round the House when the noble Lord, Lord Bach, said that I would not need the expert advice that he had needed, we can all assume that there was a little irony in that statement. I know that there was no truth whatever in it. I share his admiration of the quality of advice that I and other Ministers receive on these matters.
I also pay tribute to Greg Knight for his success in piloting the Bill in the other place. I must admonish those colleagues who referred to the presence of Greg Knight in the Chamber today. That is quite against the code and therefore I would not dream of making that point. However, I am glad that he will have heard what has been said.
Lord McNally
Undoubtedly that is the kind of skill that made the noble Lord such a successful lawyer in Leicester, whether instructed by Mr Knight or any other solicitor.
I also pay tribute to someone who has always been my friend, but in the past year has been my noble friend Lord Hunt. It may not be commonly known that my noble friend and I were once on the executive of what I always thought was a modestly titled organisation called the Atlantic Association of Young Political Leaders. We have remained friends and close colleagues ever since.
I am very pleased to be able to respond to the debate. I am the Minister responsible for the Law Commission, so it gives me particular pleasure to confirm the Government’s support for the Bill, which will implement, albeit with some modifications, the recommendations made by the Law Commission in its 2005 report, The Forfeiture Rule and the Law of Succession. The Government are very grateful to the commission both for its expert work on this subject not only in the formulation of its proposals but in the ongoing support that it has given and continues to give to the Government on the Bill, and for its wider ongoing work. The expertise of the Law Commission and the House of Lords is a productive marriage in helping us to simplify, clarify and modify our law.
Before I turn to the Bill, let me respond to the points made, particularly by my friend Lord Marks and by my noble friend Lord Hunt in his opening remarks, about the Law Commission. The work of the commission has been a major success, but the commission is facing the inevitable difficulties posed by a 33 per cent cut to its budget. There is really no room for manoeuvre, given the scale of cuts needed. The cut of 33 per cent is consistent with what is being applied to administrative budgets generally.
However, we are determined to improve on the 68 per cent implementation rate. I am confident that the new House of Lords procedure for Law Commission Bills, along with the measures included in the Law Commission Act 2009—which my noble friend Lord Marks referred to—will help in that regard. While we must be realistic about priorities at a difficult time such as this, I hope that the protocol on best practices will go some way towards ensuring that delays become a thing of the past.
The Law Commission is currently considering proposals for its 11th programme of work, which will soon be put to the Lord Chancellor for approval, as set out in the Law Commission Act 1965. This programme of work will be the first to be agreed under the terms of the protocol. I am confident that in the future delays, both in responding to the Law Commission and in implementing proposals that are accepted, will be reduced as a result. I hope that that is helpful to colleagues. I frequently say in the department that the Law Commission is highly respected in this House, which is eager to use both the great expertise that it has and the procedures that we have adopted to help in expediting Law Commission recommendations.
On the intervention of my noble friend Lord Flight, I will try to respond but I hope that my noble friend Lord Hunt will fill in any gaps. It is interesting that, although the Bill looks like a very minor piece of law, 200 cases are affected by this anomaly each year, as my noble friend Lord Flight informed us. It is very difficult to say whether I can give him guarantees that there are no other unknown quirks or consequences because, if there are unknown quirks or consequences, I do not know about them.
As always, we will continue to keep a close eye on the consequences. The point about death by dangerous driving that was raised by the noble and learned Lord, Lord Scott, is just one such issue that we will try to be alert to, as indeed is the issue of mercy killing. Those are two points where, clearly, there could be issues. I am not sure that the Code Napoléon is quite as close to being the law of our land as my noble friend Lord Flight in some of his darker moments might imagine, so I would not worry too much. As Fred Peart used to say when he was at this Dispatch Box, “Not next week”.
On the question whether there are unforeseen consequences or issues of the sort that have been raised by the noble and learned Lord, Lord Scott, and by my noble friend Lord Flight, we have made a detailed study with the Law Commission. We also had a very full consultation, and we will continue to keep these matters under study.
As I said, the Government support the Bill. The law of succession in this instance governs who inherits what when a person dies. Where there is a valid will, the general policy of the law is that the deceased person’s last will and testament should determine who is to inherit what from his or her estate. In other cases, where there is no valid will, the statutory intestacy rules prescribe the order of inheritance. In brief, the general policy of the intestacy rules is that a surviving spouse or civil partner has first call on the estate for his or her statutory legacy and that otherwise the property of the deceased should pass to closer blood relatives of the deceased before more distant ones. The children of the deceased, for example, should be preferred to siblings of the deceased.
The Bill does not seek to change these general principles. In fact, despite its technical complexity—I might say that I thought that I understood the Bill clearly until my noble friend Lord Hunt started explaining the technical complexities—this Bill is a very modest measure that addresses three specific problems in the law of succession and proposes clear solutions to all of them.
First, the Bill addresses the question of who should inherit when a person is disqualified from inheriting because he or she has caused the death in question. This disqualification is automatic and is effected by the rule of law known as the forfeiture rule. The operation of this rule is not affected by the Bill. As my noble friend Lord Hunt explained, the problem with the existing law was highlighted in the 2001 Court of Appeal decision. Put simply, the problem is that, where a person forfeits an inheritance on intestacy because he or she has actually killed the person from whom he or she would have inherited, his or her children will also be disinherited because the statutory trusts that apply under the intestacy rules prevent them from doing so. The forfeiture rule thereby seems to disinherit not only the criminal but the innocent grandchildren of the victim.
This problem is not confined to intestacy. For example, if a parent leaves a will giving property to his or her son and the son kills the parent, the son cannot inherit. If the parent’s will also said that the son’s children were to inherit if the son died first, the children would not be able to inherit in place of their father because he did not die before their grandparent. Of course, if the will said that the grandchildren could inherit in place of the son, then, irrespective of the reason why the son could not, the children would be able to inherit, but I doubt that many wills are made with the consideration that the proposed recipient might turn out to be his or her killer. Similarly, if there is a will giving a gift to a child of the testator without any further provision, the law implies a term that the gift will pass to his or her children if he or she predeceases the testator. If the testator’s child forfeits his inheritance, his or her children—the testator’s grandchildren—will not be able to inherit, because their parent did not die before their grandparent.
Secondly, the Bill addresses the very similar issue of what happens when the inheritance is rejected by disclaimer. Here, just as in the case of forfeiture, whether the succession is testate or intestate, anyone claiming through the person who rejected the inheritance, such as his or her children, will not be able to inherit unless the will provides to the contrary.
Finally, there is a rather unusual situation, which I think is extremely rare. It occurs where a person under the age of 18 is prospectively entitled to inherit property under the intestacy rules, perhaps from his or her parent, but dies before reaching the age of majority. If he or she dies without having married or entered a civil partnership and leaves children who were alive, or at least in the womb, at the date of the death of the original intestate, the children, who are the grandchildren of the original intestate and who are necessarily minors themselves, cannot inherit from their grandparent in place of their deceased parent. This is because under the technical rules that apply to the statutory trusts applicable on intestacy, their parent did not attain a vested interest in the property of the original intestate. This anomalous outcome, rare as it might be, discriminates against those children.
In all these three cases, the Bill will solve these problems by deeming the person who loses the inheritance, by forfeiture, by disclaimer or by dying too young, to have died before the person whose estate is being distributed. This means that if the person in question died intestate, the children of the person losing out will be able to inherit under the statutory intestacy rules and, if there is a will, that the actual or deemed wishes of the testator will prevail. This will bring the outcomes in these three situations more into line with the general policy of the law by giving priority to the wishes of the testator as expressed in a valid will or in other cases by preferring closer blood relatives over more distant ones.
Both the noble Lords, Lord Flight and Lord Bach, referred to the fact that the Bill differs in some respects from the draft Law Commission Bill published in 2005. It also differs from the equivalent provisions in the draft Civil Law Reform Bill, published by the previous Government in 2009. The main difference is that those earlier draft Bills contain specific trust provisions that are intended to ensure that in forfeiture cases the criminal was prevented from gaining any benefit from the inheritance that would, under the terms of the draft Bill, pass to his or her children. These special trust provisions attracted a good deal of criticism from witnesses to the Justice Committee in the other place and from people who replied to the consultation from the Ministry of Justice on the draft Civil Law Reform Bill. We have also discussed them in detail with the Chief Chancery Master, Jonathan Winegarten, at the Law Commission. We agree with the Justice Committee that minors who inherit following forfeiture should have their inheritance protected and that all minors should have suitable protection under the Bill. However, from our more detailed consideration of how the special trust provisions originally proposed would work, it is clear to us that they would be problematic and expensive to operate.
In our view, the existing law, which already imposes a trust for the benefit of minor children and gives the court power to supervise the administration of estates, gives effective and adequate protection. The proposed special trust provisions would not in fact increase this protection. The Law Commission, I would add, is content with the Bill in its present form.
The issue raised by the noble and learned Lord, Lord Scott, about dangerous driving and mercy killing will need to be kept under review. The courts will have a discretion to disapply the rule of forfeiture in the case of mercy killings and will consider the individual circumstances of the case in all cases other than murder. That has been a long-standing approach. However, this underlines the benefit of a debate such as this on a measure such as this one, because in addition to enabling us to support the Bill, which I warmly do, it allows us to tease out some of the issues that need to be kept under review as we move forward. It has also given me the opportunity to lay out—I hope clearly—to the House the ongoing support of the Government for the Law Commission and its work.
Lord Hunt of Wirral
My Lords, I thank everyone who has contributed to this debate, which has greatly enhanced the reputation of this House as the Chamber in which we can hear from experts in their field. Certainly, my noble friend Lord Marks of Henley on Thames is widely respected outside this House for the depth and width of his expertise in this area. I thank him the points that he made today, and I was pleased that he referred to the reform as sensible and sympathetic. I welcome that tribute.
My noble friend Lord Flight raised a series of important points, which Mr Knight raised and answered in some detail in the debates in the other place. First, I assure my noble friend that in those debates a whole series of points were raised about whether this Bill might open a loophole in inheritance tax. Other points were raised as to the cost. All those points were satisfactorily answered, but the point about mercy killings is a very important one.
In 1971, Lord Justice Salmon spoke in the case of Gray and Barr about what really lies behind all this, which is that,
“it would, in general, shock the public conscience if a man could use the courts to enforce a money claim either under a contract or a will by reason of his having committed”,
such an act—referring to murder. But there are some cases, as my right honourable friend in the other place, Mr Knight, said, where the public conscience would not want the full forfeiture provisions to apply. He specifically referred to mercy killings, but he pointed out that under the Forfeiture Act 1982, there is provision,
“for discretion to be applied by the courts in cases of manslaughter—I emphasise … manslaughter, because there is no discretion in cases of murder”.—[Official Report, Commons, 21/1/2011; col. 1128.]
That follows very much the views expressed by Lord Justice Salmon, which echo the public conscience in cases like this. It is very important that we keep this whole situation under review.
I was taken aback by the appearance of the noble and learned Lord, Lord Scott of Foscote, and the thought that he was sitting there listening to my pontificating, as I have spent most of my professional life reading his judgments. We even enacted one of his judgments word for word in Section 1 of the Compensation Act, so I pay particular attention to his learned words. We have to think of the consequences of causing death by dangerous driving. Perhaps he will permit me to reflect further on that point, because it is a very important one and covers this area that we have spent some time talking about it.
The noble Lord, Lord Bach, and I have worked together on many Law Commission Bills. It is right that we remind people all the time of what is set out at paragraph 8.44 of the Companion about the way in which we can deal with Law Commission Bills. I refer in particular to the second report of Session 2010-11 from the Procedure Committee, published on 27 July last year, which makes it clear that we are going to follow that procedure. It will do much to meet the point made by my noble friend Lord Marks of Henley on Thames. I participated in the previous Bill that went through the procedure, the Third Party (Rights Against Insurers) Act 2010. It is very important that the new procedure for scrutinising Law Commission Bills—undertaken on a trial basis—has, thanks to the noble Lord, Lord Bach, and other colleagues, come through its trial and is now to be adopted permanently.
I hope that the sort of problems instanced by my noble friend Lord Marks will now be historic. Once again, I pay tribute, as the noble Lord, Lord Bach, did, to the officials in the Law Commission and in the ministry who spend a tremendous amount of time and effort getting this legislation right. It is now an improvement on the first draft, and my noble friend Lord McNally comprehensively set out the areas in which it differs from that original Bill. It is now generally accepted that, thanks to the efforts of my right honourable friend Greg Knight, we now have a Bill that can move swiftly into legislation. I think it will work. It deals with the problem through a simple device thought up by the Law Commission.
There are other quirks that will need addressing. Several of us will go away from this debate determined to do something in that direction. However, with this Bill we can at least make an important start. That is why I have much pleasure in commending the Bill to the House.
Wreck Removal Convention Bill
(13 years ago)
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Baroness Stowell of Beeston
My Lords, before I get to the contents of the Wreck Removal Convention Bill, I declare that, unlike other noble Lords scheduled to speak today, I am not a shipping expert. Indeed, that was the first thing I said to my honourable friend the Member for Suffolk Coastal, Dr Therese Coffey, when she asked me to steer the Bill through your Lordships’ House after she had, very ably and successfully, steered it through another place. However, after reading the Bill it was clear to me that I did not need to be a shipping expert to understand why it was important and why I should agree to Dr Coffey’s request. In short, what jumped out at me from this Bill and the international convention it seeks to ratify is that it will remove an unfair burden on the British taxpayer and put liability in its rightful place.
Over the past few weeks, although I have improved my knowledge of shipping—not least because of many informative and enjoyable discussions with some of your Lordships—I remain a novice. However, I am a novice full of admiration and respect for all those who work in the UK shipping industry and in all the agencies responsible for maintaining and protecting our harbours and coastal waters. Therefore, it is my great pleasure and privilege to introduce the Bill.
Your Lordships will be pleased to hear that the Wreck Removal Convention Bill is relatively short and consists of just two clauses. The United Kingdom, which is surrounded by some of the world’s busiest shipping lanes, is particularly vulnerable to the consequences of maritime casualties. Thankfully, such instances are rare. However, we can never be complacent. In this Bill we have an opportunity to implement the International Maritime Organisation’s International Convention on the Removal of Wrecks. This international convention would build on the well developed arrangements that already exist for dealing with these incidents, on the part not only of the Maritime and Coastguard Agency but of the conservancy, harbour and general lighthouse authorities, which have responsibility for dealing with wrecks that are, or are likely to become, an obstruction or danger to navigation or lifeboats in service within their respective areas. It is anticipated that after enactment the provisions will be commenced by an order made to coincide with the entry into force of the convention, which will be 12 months following the date on which 10 states have ratified it. The Bill will not apply to historic wrecks—that is, any wreck that occurred before its entry into force.
A wreck, which may be a ship, part of a ship or something that was on board a ship, can cause a number of major problems. It may constitute a hazard to navigation, potentially endangering other vessels and their crew. It may also cause substantial damage to the marine and coastal environments, depending on what is in the ship or its cargo. Consequently, the costs associated with locating, marking and removing a wreck can be substantial. However, those costs can also be difficult to recover, particularly where a wreck has been abandoned by its owners, so inevitably the taxpayer and payers of light and harbour dues risk having to bear a significant proportion of these costs, which is totally inappropriate.
The Bill would address these issues by implementing the convention’s provisions in the United Kingdom, its territorial waters and an area equivalent to an exclusive economic zone that extends from its territorial waters up to 200 nautical miles from the shore. Most importantly, the Bill places the primary responsibility for the removal of a wreck that poses a hazard to navigation or the environment in this area on the ship owner. It would also provide the Secretary of State with the necessary powers to ensure that all reasonable steps are taken to locate and mark a wreck.
In doing so, the Secretary of State would have the discretion to direct conservancy, harbour and general lighthouse authorities to mark the wreck and to exercise or not their existing powers for dealing with the wreck. Crucially, it would also provide the Secretary of State with the necessary powers to intervene and remove the wreck if the owner does not do so expeditiously or at all. In doing so, he may act through the Maritime and Coastguard Agency or direct the appropriate general lighthouse authorities or harbour and conservancy authorities responsible for managing our ports to intervene. Although such authorities already have powers to deal with some wrecks in their existing areas, those powers lack a clear means of cost recovery. The use of the power of direction by the Secretary of State would bring the significant benefit of linking these authorities to the convention’s regime so that they can take full advantage of the cost recovery provisions—an important point.
These steps are to be welcomed. At present, the powers of these authorities are limited to their areas within territorial waters. Just as for the Secretary of State’s representative for salvage intervention, SOSREP, safety-related powers are limited to territorial waters. Only his powers in respect of pollution may be exercised in the larger pollution zone, but the Bill’s powers to locate, mark and remove wrecks and to recover the costs for that work will cover dangers to navigation and pollution all the way out to the edge of the UK zone. Under the Bill the ship owner would also be responsible for any costs associated with locating, marking and removing a wreck. This would include any preventive action that may have to be taken and any mitigation or elimination of any hazard caused by the wreck, including measures to prevent pollution emanating from the wreck. This liability would apply to all ships regardless of size. In addition, no ships of 300 gross tonnage and above would be required to maintain compulsory insurance for this liability, which would be enforced through a wreck removal insurance certification scheme.
The certificates, provided by the relevant authorities of a flag state, would provide evidence that insurance was in place and must be carried on board any ship of 300 gross tonnage and above entering or leaving a port or terminal in the United Kingdom so that they can be checked as part of the port state control procedures. Any ship found to be without the required insurance during these checks could be detained, and liability on the ship owner is strict. Therefore, if an incident has occurred that has led to the UK’s authorities incurring costs under the Bill’s regime, they will be able to recover these costs from the owner or directly from the insurer.
This right of direct action, which already exists in other maritime liability and compensation regimes, is intended to help claims to be settled more quickly. Similarly, the issue of a direction by the Secretary of State to the general lighthouse authorities and harbour and conservancy authorities to locate, mark and remove a wreck will establish the link to the procedures under the convention so that these bodies may benefit from the convention’s cost recovery provisions. All this would represent a marked improvement on the existing system because there is at present no mandatory mechanism allowing these costs to be recovered. Indeed, it greatly increases the probability of the state recovering most, if not all, of its costs where it has had to incur them in locating, marking or removing a wreck.
To conclude, SOSREP, the Maritime and Coastguard Agency and the general lighthouse authorities, along with those responsible for managing our harbours, will continue with their first-class work to prevent accidents. Of that, this novice has no doubt. But we also need to ensure that they are able to respond as effectively as possible to any problems that arise. This Bill will put them in the best possible position to do that and I commend it to the House. I beg to move.
Lord Boyd of Duncansby
My Lords, I congratulate the noble Baroness on having brought this Bill to the House and so ably explaining it to us. She said that she was a novice; I believe that Dr Coffey is also a novice. It is good to see the Bill being piloted through Parliament by two such excellent novice pilots. To keep on this bad metaphor, I doubt that we are going to have a parliamentary shipwreck.
This convention is a welcome development in the law of the sea. I am not a maritime lawyer so I have to confess at the beginning that I am indebted to an article by Richard Shaw, senior research fellow at the University of Southampton’s Institute of Maritime Law for some background on this convention. The evolution of it goes back to the wreck of the “Torrey Canyon” in March 1967. As many noble Lords will remember, it came to grief off the Scilly Isles outside the then territorial limit of 3 miles. It hit a submerged reef, the Seven Stones, discharging slowly 115,000 tonnes of crude oil. The question was: how did the United Kingdom then deal with it? Eventually, it was dealt with by high explosives being dropped on the wreck, followed by napalm to set the oil alight. There were questions of the efficacy of such a procedure and of the legality of dealing with a wreck outside the territorial waters.
That wreck led to the 1969 International Convention on Civil Liability for Oil Pollution Damage and an International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties. Yet under these conventions, the ability of the coastal state to intervene when faced with a major oil spill outside its territorial limits was severely limited. The United Nations Convention on the Law of the Sea in 1982 created a new sea area, the exclusive economic zone, within which there are certain limited rights, including the protection of the marine environment under Article 56 but, crucially, not the safety of navigation. The need for this convention is illustrated by an incident in 1984, when the French ship “Mont-Louis” collided with a passenger ferry outside Zeebrugge and came to rest on a sandbar—again, outside the territorial limits. The Belgian authorities served a wreck removal order on the owners of the ship but it was unclear whether they actually had the jurisdiction to do that. Fortunately, the issue was settled amicably but it raised the real issue of how one deals with wrecks outside the territorial limits.
The convention follows three principles. First, there is a grant of rights to a coastal state to remove a wreck from its exclusive economic zone if it represents a hazard to safe navigation or to the marine environment. Secondly, there is strict liability on a ship owner for the cost of reporting, marking and removing a wreck if required to do so by a coastal state. The third principle is of compulsory insurance and, crucially in this respect, the ability to take direct action against the insurers or those giving financial security on the equivalent provisions in the 1969 convention.
I appreciate that there have been some concerns raised, in particular by the Chamber of Shipping, and I anticipate that some of those may be raised later in this debate. In evidence to the Transport Select Committee in the other place, the Chamber of Shipping, although it supported the convention, expressed reservations about the consequences for light-dues payers as a result of passing obligations on to the general lighthouse authorities. At this point, I suppose that I should mention an interest as a past commissioner of the Northern Lighthouse Board. I am sure that if this matter comes to Committee with amendments, we shall deal with those concerns in more detail at that time.
However, the question of where liability should rest is of course important. Should it be with the General Lighthouse Fund and thus the industry or with the Exchequer? At Third Reading in the other place, Dr Coffey referred to the “Lagik”, which was grounded off the River Nene in 2000. The result was that it closed the port of Wisbech for 44 days. She asked the other place, quite pertinently, to imagine the resulting disruption if that had been Felixstowe. Of course, there would have been consequences for UK trade but there are other ports to which some of the cargo could no doubt be diverted. The main impact, I suggest, would be on the industry and it is right that the taxpayer should not have to bear these responsibilities.
Yet it is also right that the impact on the industry should be minimised, so far as possible, which is done by two particular aspects of the Bill and the convention. The first, as we have heard, is for the compulsory insurance of all ships over 300 gross tonnage and the second is the provision to allow the state to claim for costs arising under the convention to be brought directly against the insurer, thus minimising any exposure to the General Lighthouse Fund. Both those aspects seem to me to be important elements. It is also important that the lighthouse authorities themselves believe that these provisions will in fact mean a diminution in the costs on the General Lighthouse Fund as a whole and therefore, in consequence, on light dues. Once again, I fully support the convention and look forward to debating the Bill further in this House.
Lord Bradshaw
My Lords, I shall turn to one aspect of this Bill, which I generally support: that of insurance and its efficacy in other transport modes as well as those on the sea. It is all very well saying that the costs will be borne by the insurers but how certain are we that those people have valid insurance certificates in force? Perhaps the Minister will tell us something about the port inspection procedures which verify whether a person has insurance and whether that insurance is adequate to cover the potential risks involved if the ship becomes a wreck. Of course, there is also the issue of ships which are not signatories to the convention, and which are passing through waters within our economic area but not calling at a harbour within the United Kingdom where such certificates can be inspected.
I said that I would touch on other modes. Rail companies are bound to have insurance—I believe a certificate of £155 million which is enforceable. However, we all know from recent questions in the other place that the car insurance industry is in a bit of mess. Although the police are able to detect cars without insurance and do that very easily with their camera equipment, there are a large proportion of motorists using the roads in this country who are not adequately insured—or insured at all.
My main point in contributing to this debate is to say that I support the Bill. It is not right that the Government shift their responsibilities to harbour authorities and the general lighthouse authorities, which have a limited sum of money available to deal with wrecks. They have a duty to mark them and so forth, but the recovery of a significant wreck will cost a lot of money. Knowing the insurance industry as I do, I can say that it will not be in any great hurry to come forward to meet its liabilities. There will therefore probably be a period of time between a wreck being located and marked and a Government issuing a direction to remove it, and any money being forthcoming to the harbour or lighthouse authority to which orders are given.
Despite the frequent representations of the noble Lord, Lord Berkeley, the lighthouse authorities do not have a bottomless pit of money into which they can dip. I hope that the Minister will say that, until the insurance claim is settled, the Government—the Treasury—will stand behind the authority which is removing the wreck and will pay the immediate bills that arise. Wrecks often have to be removed quickly. I look forward to further debates in Committee, but the House deserves some real reassurances from the Minister.
Lord Berkeley
My Lords, I am grateful to the noble Baroness, Lady Stowell, for introducing the Bill. My noble friend Lord Lea, who is no longer in his place, asked me whether it referred to maritime wrecks or Members of the House of Lords in a restructured Chamber. I hope I can put his mind at rest on that one.
I declare an interest as a harbour commissioner of the port of Fowey in Cornwall, and as president of the UK Maritime Pilots’ Association. I very much support the principles of the Bill. As the noble Baroness said in introducing it, we have got some really beautiful coastline in this country: more than 10,000 miles of it. The Bill will make a great difference to how wrecks are dealt with. We are also setting an excellent example to other states by implementing the international convention. I am pleased that the Government are urging other nations to ratify it; I believe it comes into force when there are 10 signatories. Perhaps the Minister, when he speaks, can tell us how many member states have ratified it and how discussions with them are going so that we can get some kind of a progress report.
My concern, as one or two previous speakers have said, lies with the burden that the Bill could impose on harbour and conservation authorities, the general lighthouse authorities and the General Lighthouse Fund; my noble and learned friend Lord Boyd particularly mentioned that. The noble Earl, Lord Attlee, will be aware of my interest in the GLAs and will be very pleased to hear that I am not going to talk about their finances today. The Chamber of Shipping’s view—again, mentioned by my noble and learned friend Lord Boyd—is that it is really unfair to have any liability placed on ships entering British ports because of the activities of a ship which may not be insured and may not even have called into a UK port. The shipping interests have got a point here.
My first problem concerns uninsured wrecks. The noble Lord, Lord Bradshaw, talked about that. Yes, the Bill says that the Government will be checking on the insurance of all ships coming into UK ports and will assist in reclaiming the costs of any rescue/salvage from the insurers. My problem is that there is a small possibility that the insurance may not be sufficient or may not be in place at all. That could particularly occur if a ship was in the widened territorial waters we are talking about but was not calling into a UK port where the insurance might get checked. There is not a high likelihood of that, but there is still a consequential fear that the GLAs, harbour authorities or others might be saddled with a high cost. As the noble Baroness said in her introduction, the problem is that the Bill allows the Secretary of State to “instruct” these authorities. It is an instruction; they cannot say “no”, as I understand it. They could turn around and say, “We haven’t got the capability”, or something like that, but they will be given an instruction. I am sure that the present Secretary of State and his Ministers would never do that, but you never know what is going to happen in the future. We ought to consider how we deal with this. We could perhaps consider it in Committee. If a ship sinks which is not going into a UK port, and is therefore not contributing even by paying its light dues, then this whole procedure does not really comply with the principle that the polluter pays. It means that the responsible ship owners are paying for the actions of the irresponsible ones. How would the GLAs recover the costs from these overseas owners or the insurers if they refuse to pay? The Government have said that they will do this, so possibly the answer would be for the Government to indemnify the GLAs or the harbour authorities against such a loss. I am sure that the Minister will be able to comment on that when he responds.
My second point concerns whether the GLAs and harbour authorities necessarily have the capability to carry out some of this work. The GLAs certainly have the capability of marking wrecks; that is one their objectives. They can probably remove small wrecks but that is really a salvage operation and I do not regard the GLAs as salvage contractors. They could probably undertake salvage operations but why should they have to pay for them as well? Why should not the Government organise the salvage themselves?
Several noble Lords have given examples of wrecks. Sadly, there are many around the coast, but an interesting situation arose in 2008 when the Government asked Trinity House to act as a salvage company to remove the wreck of a First World War German U-boat which was on the bed of the English Channel. The Government agreed with the German Government that they would not ask the latter to undertake this operation. Trinity House did it—I believe, successfully—and it cost £1.5 million, I am told. Ships coming into UK ports had to fund that. A sum of £1.5 million is not a high proportion of the GLAs’ turnover, but the cost could have been a lot higher if a different type of wreck had been involved. The Government should organise these things themselves—that would be much the best way to tackle this—and the GLAs or the harbour authorities should be asked to offer support to the extent that they are capable of doing so.
A further issue arises in this regard; namely, what is the definition of a wreck? The definition in the convention is that it is,
“any object that is lost at sea from a ship”.
I suspect that the drafters of that definition meant to refer to containers, which regularly fall off ships. People run into them occasionally and it does not do them a lot of good. Noble Lords will remember the MSC “Napoli”, which foundered on a beach in Devon a few years ago. A lot of containers were washed ashore, including some with new BMW motor bikes inside, which soon “walked”. However, in 1992—nearly 20 years ago—something like 29,000 yellow rubber duck bath toys were lost overboard in the Pacific Ocean. These ended up around the Pacific. I do not think that they were a hazard to shipping or to anyone else but they illustrate the fact that this definition of “wreck” might need to be tightened up. However, I am sure that none of the GLAs or harbour authorities would want to get involved in that.
The Government’s response to the House of Commons Transport Select Committee's report on the draft Marine Navigation Bill 2008 stated that,
“the Government does not envisage that the new power in relation to the General Lighthouse Authorities would lead to their being directed to do things for which they have no … experience”.
That is a good statement but it would be very nice if the Minister could confirm that or go a little further and say that they would not be asked to do things for which they do not have the funds or the capability. Incidentally, I am very grateful to the Minister and to the noble Baroness, Lady Stowell, for arranging a meeting recently at which we discussed some of these matters. I understand that a memorandum of understanding may be being drafted by the GLAs and the Government before the convention comes into force to set out some of these issues in more detail. I hope that the Minister will tell us where the Government have got to with this. Can a draft be placed in the Library? I have concentrated my remarks on the GLAs but the harbour authorities deserve equal treatment as regards MoUs as some of them have very small budgets. They probably have less capability in this regard but may still be instructed by the Government to undertake these operations. That could result in their going bust, which I am sure is not what the Government intend. However, it could happen under the Bill.
To conclude, I think we are all striving for the same result. It is generally a good Bill and we want to ensure that our seas are safe and clean. We want responsible ship owners to behave and to be properly insured. However, we have to get the detail right. We can talk about whether the Bill needs amendment in Committee. In addition to support from the Chamber of Shipping, I have received support from the British Ports Association, which represents most of the ports around the country, except for one or two big ones, and the British Tug Owners Association, which might benefit from doing a spot of salvage. I very much look forward to hearing what the Minister has to say and to more detailed discussion at the next stage.
Lord Greenway
My Lords, I, too, thank the noble Baroness, Lady Stowell of Beeston, for the clear and concise way in which she introduced this small but important Bill. At the outset I must declare an interest as an unpaid Elder Brother of Trinity House.
I welcome the Bill, which incorporates the wreck-removal provisions from the draft Marine Navigation Bill, which has been waiting on the shelf in some dark and dusty government corner for a while, but which neither the previous Administration nor the present coalition have so far seen fit to bring forward. As the noble Baroness said, the Bill paves the way for the Government to ratify the Nairobi International Convention on the Removal of Wrecks, which was adopted by the International Maritime Organisation some four years ago. The convention will come into force, as the noble Lord has just said, one year after 10 states have signed up to it. My understanding is that so far just one state has signed up, though I may be wrong about that. However, within the first year at least six states signified that they agreed with it, as they are entitled to do.
The present situation regarding wreck removal within our territorial waters—the 12-mile limit—is covered by provisions in Sections 252 and 253 of the Merchant Shipping Act 1995 which empower Trinity House and the other two general lighthouse authorities to mark, raise, remove or destroy any vessel,
“sunk, stranded or abandoned in any fairway, or on the seashore or on or near any rock, shoal or bank”,
in England or Wales,
“or any of the adjacent seas or islands”,
where there is no harbour or conservancy authority with power to do so, if in the opinion of the general light house authority,
“the vessel is, or is likely to become, an obstruction or danger to navigation or to lifeboats engaged in lifeboat service”.
Factors affecting safety of navigation include the clearance depth over the site at lowest astronomical tide; the depth of water in the area; the type, size and construction of the vessel; traffic density and frequency; the proximity of shipping routes; the type of traffic; and the topography of the seabed. Decisions about wreck removal or dispersal are inextricably linked to the danger presented by the wreck in terms of these factors, about which Trinity House and the other general lighthouse authorities have significant knowledge and expertise.
The Bill empowers the Secretary of State to deal with wrecks in a greatly expanded area up to 200 miles from the UK’s territorial waters. This is most welcome because it clears up an area of uncertainty that previously existed regarding the interpretation of “adjacent seas and islands”. Many an expert legal opinion has been sought on this without any true result. The legal position is now made clear, and that is certainly to be welcomed. Until now, Trinity House, with the agreement of the Department for Transport, has marked wrecks within this expanded area when they have been a danger, but dispersal has not ordinarily been carried out if the wreck is a foreign-flagged vessel due to a number of legal difficulties, including obtaining flag-state consent.
I welcome the fact that the onus of locating, marking and removing wrecks is now placed firmly on the owner of the vessel. I also understand that a state may extend the convention to its territory and territorial sea and that the present Government have indicated their wish to do so. This is to be welcomed because it will clear up any possible confusion between the present arrangements and those obtained in the convention.
I also welcome the expanded definition of wreck. It includes:
“any part of a sunken or stranded ship, including any object that is or has been on board such a ship”,
and,
“any object that is lost at sea from a ship and that is stranded, sunken or adrift at sea”.
In the past, Trinity House has, where necessary, dealt with such objects, such as floating containers, mentioned by the noble Lord, Lord Berkeley, in the interests of safety of navigation, but hitherto has not been able to recover its costs.
Another welcome development is a draft memorandum of understanding between the Secretary of State and the general lighthouse authorities, setting out how they will exercise their respective roles and responsibilities under the convention and the Merchant Shipping Act. The general lighthouse authorities have been working for some time with the Secretary of State's representative. They know each other well; they know each other's capabilities. It is a great step forward to have that set down properly in a memorandum of understanding, which will certainly help to progress matters.
Several noble Lords, especially the noble Lord, Lord Berkeley, expressed concern on behalf of ship owners that the convention could result in a greater call on the general lighthouse funds as a result of the cost of removing wrecks of uninsured vessels. At the moment, within the General Lighthouse Fund there is a contingency to deal with uninsured losses, so ship owners should be aware that there is already provision to cover such losses, although, as we have heard, with the new compulsory insurance provisions in the Bill, it is likely that calls on the General Lighthouse Fund should reduce over time.
The noble Lord, Lord Berkeley, also mentioned passing ships that are not coming to UK ports. From 1 January next year, a new EU directive will require all ships weighing more than 300 gross tonnes belonging to member states or visiting EU ports to have insurance to cover the limits of their liability under the international Convention on Limitation of Liability for Maritime Claims 1976, as amended by the protocol of 1996. All the time, more measures are coming into force that are making it more difficult for ships sometimes referred to as rogue ships to operate on our high seas.
The noble Lord, Lord Berkeley, also queried whether the Secretary of State or his representative should direct the general lighthouse authorities to deal with wrecks. My reading is that that has to be done for them to recover their costs. That is how it works under the convention. The general lighthouse authorities or harbour authorities are not party to the convention, so they have to be appointed by the Secretary of State or his representative.
Trinity House and the other general lighthouse authorities have a long history of dealing with wreck matters—about 150 years. They have great experience. The area that Trinity House is responsible for covers one of the busiest waterways in the world, the English Channel, where the waters are not very deep. Wrecks off the west coast of Scotland and Ireland tend to be in deeper water; if they sink, they go down a very long way. In some ways, Trinity House has more experience of dealing with such matters.
Several wrecks have been mentioned, but noble Lords may remember that back in December 2002 the Norwegian car carrier “Tricolour” collided with the container vessel “Kariba”, resulting in the Norwegian vessel sinking just as it was about to enter the north-south shipping lane through the English Channel. Two days later, the wreck was struck by another vessel, which was towed off; and two weeks after that, a tanker carrying 77,000 tonnes of gas oil also struck the wreck. As a result of that incident, the International Association of Marine Aids to Navigation and Lighthouse Authorities put in place a plan to provide emergency wreck buoys. Trinity House was very involved in their development. These are new buoys which can be taken out fairly quickly and have vertical red and yellow stripes. Trinity House also came up with a new form of lighting—an alternating blue and yellow flash which is highly visible and should go a long way towards alerting other ships of a wreck until such time has been found properly to survey it and mark it with normal, proper wreck buoys.
With regard to floating wreckage, such as containers or even timber, there were two incidents not so long ago in which large amounts of timber were washed off ships and floated up the English Channel, with most of it ending up on the beach. I believe that work is in hand to come up with some sort of floating wreck mark that would float up the Channel with any such mass of cargo. That would be a very sensible way of marking that sort of thing. However, to allay some of the concerns of the noble Lord, Lord Berkeley, I can say that the general lighthouse authorities certainly know their limitations and there is no way that they could be made responsible—
Lord Berkeley
I thank the noble Lord for giving way. I said that I thought that the GLAs were very competent to do that, and they have long experience of doing so. My concern is that they may end up having to fund the salvage.
Lord Greenway
I was just coming to the fact that they are well used to marking wrecks, although, when it comes to the salvage or removal of wrecks, such incidents are very few and far between. Over the past 10 or 12 years the GLAs have been involved in dealing with perhaps a couple of small fishing boats. Therefore, there is no way that the general lighthouse authorities would be involved in something like the MSC “Napoli”. The removal of larger ships is totally beyond their powers, and negotiations between them and SOSREP would very quickly sort out the best way of dealing with a wreck and deciding who should do the work.
I conclude by summing up where the Bill takes us. As I said, it introduces measures that Trinity House very much welcomes. It empowers the GLAs to locate, mark and remove wrecks which are a danger to navigation beyond the territorial sea, clarifying an area of legislation where there has been uncertainty. It makes registered owners responsible for reporting wrecks or for loss of cargo and for the costs of locating, marking and removing wrecks. It requires registered owners of all vessels over 300 gross tonnes to maintain insurance to cover their liability under the convention. It provides for any claim for costs arising under the convention to be brought directly against the insurer or other person providing financial security for the registered owner’s liability, therefore reducing the risk of non-recovery and, in so doing, also reducing the exposure of the General Lighthouse Fund to the cost of dealing with wrecks.
I very much welcome this small but nevertheless important measure. I wish it a speedy passage and look forward to what I hope will be ratification of the convention in the not-too-distant future.
Lord MacKenzie of Culkein
My Lords, I am delighted to be able to speak in this Second Reading of the Wreck Removal Convention Bill and I warmly support it. I take the opportunity to congratulate the noble Baroness, Lady Stowell of Beeston, on taking charge of the Bill in this House.
Coming from a family that includes past and presently serving merchant marine officers, not to mention four generations of lighthouse keepers, I have an interest in this legislation. Indeed, I asked questions of the previous Government on the progress, or lack of progress, in the implementation and ratification of the Nairobi convention.
The Bill should not be contentious. It will allow the UK Government to ratify the international convention on wrecks. At present, there are no uniform international rules under which coastal states have a proper legal basis to remove, or have removed, shipwrecks which are a hazard to navigation and/or the environment. The convention, when it comes into force, will fill that gap.
I am strongly of the view that there can be little or no argument against the need for the relevant UK authorities responsible for dealing with shipwrecks to take action, where safety of navigation is at stake, outside our territorial waters. The Bill will resolve that present lack of legal clarity in recovering costs where wrecks occur between the 12-mile territorial limit and the 200-mile pollution control zone. It does that by giving the Secretary of State power to deal with wrecks up to the 200-mile limit.
Secondly, and importantly, is the convention requirement that all vessels of more than 300 tonnes, with a very few exceptions, will be required to have wreck removal insurance cover or some other security in place. That is not an added-on cost to reputable shipping companies—by far the vast majority—which will already have insurance in place. But we all know that, at present, there is always a possibility that owners of some vessels will not have the necessary insurance cover. We need only to see the poor state of some of the ships detained by the Maritime and Coastguard Agency that are reportedly referred to as “rust buckets”, and to see the poor crewing—sometimes crews are not paid—to realise that wreck recovery insurance must be compulsory. It is only right that, as proposed, ships without wreck removal cover in place are not allowed to enter or leave a United Kingdom port.
The convention will also allow direct action for recovery from the insurer of a wreck of the costs incurred by general lighthouse or other authority in marking or, as set out in Articles 7, 8 and 9 of the convention, recovering wrecks. There have been occasions in the past when the relevant protection and indemnity club uses a device to reimburse the owner of the wreck only—I emphasise only—if that owner meets the cost to the lighthouse or other appropriate authority in the first instance. That so-called “paid to be paid” rule may be thought of as a clever device on the part of the insurer to avoid it paying up when a ship owner, who might own just a single vessel, does not have the funds or the desire to remove that vessel, particularly if it is a non-UK-registered ship. Thus the costs of marking and, if necessary, recovery have to be met from the General Lighthouse Fund. Like others, I do not think that that is acceptable, and I hope that the convention, by making insurance compulsory and allowing authorities to go direct to the insurer, will resolve that matter.
I understand that some shipping interests, as has already been said, are concerned that the convention may have the effect of increasing costs to the General Lighthouse Fund and thus lead to higher light dues. I do not think that that will be the case because, as the noble Lord, Greenway, said, the General Lighthouse Authority has been doing its statutory job of marking wrecks that are a danger to navigation for a long time—something like 150 years. It has that considerable knowledge and the expertise to make decisions about marking and the removal of wrecks, if necessary. It is right that it should continue to provide a seamless service rather than have multiagency involvement.
The costs to the GLF where incurred at present—again this has been said in the debate—represent a fairly small proportion of the overall costs of provision of safety of navigation in our waters. If the convention comes into force, there should be fewer costs not recoverable given the new rules on insurance and strict liability. I hope, therefore, that it should be possible to reduce quite significantly the reserve for wreck recovery, which I think stands at some £5 million in the GLF. That, I should have thought, will be some relief to the light-dues payer.
It is right, too, that where the General Lighthouse Authority recovers containers washed overboard or other detritus that might now be defined as a wreck in the convention, it should be able to recover these costs. I do not think that it can be some relief to my noble friend Lord Berkeley that GLA ships will be chasing yellow ducks round the ocean, even though that might technically be defined as a wreck. I hope therefore that the Bill has a smooth passage through this House. It will allow the United Kingdom to ratify the convention which is a necessary contribution to safety and will clarify a number of areas of responsibility in matters of safety in navigation and in the protection of our precious maritime environment.
In conclusion, I will pick up on a point made by the noble Lord, Lord Greenway, about whether the Nairobi convention was originally included in the Marine Navigation Bill. Other important matters are included in the Bill. Perhaps the Minister can tell us whether it is the Government's intention to bring forward these matters as soon as parliamentary time is available. The remaining matters in the Marine Navigation Bill are unlikely to be contentious or time-consuming and I hope that they, too, can be brought forward.
Lord Davies of Oldham
My Lords, of course the Official Opposition welcome the Bill, which is a constructive step forward. Therefore we are grateful to the noble Baroness, Lady Stowell, for introducing it so clearly. We are even more grateful for the fact that the debate attracted a range of very well informed contributors, who have tested the Bill and indicated areas where there is room for further explanation in Committee, which I am sure we will all enjoy.
I have no doubt that the Minister is exercising his mind on the government Front Bench as we speak. One factor that often obtains with a Bill of this kind is that at least one noble Lord is able to provide most of the answers to questions that are thrown up in debate and which the Minister would also like to answer. The noble Lord, Lord Greenway, has played that role today in tackling entirely appropriate questions put by my noble friend Lord Berkeley, my noble and learned friend Lord Boyd and by the noble Lord, Lord Bradshaw. We all also respect my noble friend Lord MacKenzie of Culkein, who speaks with great authority in these areas from his vast experience. I am sure that the noble Lord, Lord Greenway, provided areas of reassurance about the lighthouse authorities and the way in which the Government will be expected to enforce the Bill.
The word “enforce” causes us all to be greatly exercised. We need in this debate to address two questions: first, who will bear the costs, which can be substantial; and, secondly, what will be the level of enforcement? The noble Lord, Lord Greenway, indicated that through the development of the convention, authorities will find themselves reasonably comfortable about the Government's intentions. However, we all know that the costs could be considerable. There will be wrecks that we cannot foresee. I was grateful to my noble and learned friend Lord Boyd for referring to the most dramatic incidence of dealing with a wreck, which was when the “Torrey Canyon” was bombed and napalmed by the Royal Air Force. It was a dramatic solution to a problem, but one which is scarcely available to us as we deal with oil pollution on vast stages.
We all appreciate the threat to navigation on the sea and to effective maintenance of waterways by the occurrence of significant wrecks. The noble Lord, Lord Bradshaw, indicated the nature of the problem. Who pays is related to the effectiveness of enforcement. If enforcement is lax, the danger is that the industry or the taxpayer will be inveighed with costs because the people who should have been insured are not and cannot meet the costs. The noble Lord, Lord Bradshaw, identified the problems that the motor car industry has with insurance at present. The key is obvious: as my noble friend Lord MacKenzie suggested in his contribution, rust buckets and careless owners have to be tackled by the port authorities with the degree of rigour that ensures that vessels that put in to British ports have the insurance to guarantee that the costs do not fall unduly on the public authorities.
Secondly, my noble friend Lord Berkeley was right to examine the question of costs in those circumstances. It might not be easy, certainly in the short term, to obtain the necessary resources from those responsible for the wreck. Therefore, there is a question about what can be demanded of the lighthouse authorities. We look upon the development of the agreement. I am sure that the Minister will be able to give greater detail in his contribution. We look upon that as a cardinal point in giving us reassurance on these matters.
This debate has identified enough issues for the Minister to wish to give us considerable reassurances in his speech and for the noble Baroness, Lady Stowell, to be all too well aware of the fact that the whole House is committed to ensuring that this Bill succeeds. However, at the same time, it will be appreciated that we will have a fairly lively and interesting Committee stage in order to explore further the broad issues that have been identified today. Even with the best will in the world, and I know the Minister will deploy that best will, it is likely that a few question marks will still remain for us to consider at a later stage.
Earl Attlee
My Lords, I thank my noble friend Lady Stowell for the excellent way in which she introduced her Bill and mastered its technicalities faster than I managed to do. I suspect that she is still further ahead than I am. I listened with interest to all noble Lords’ contributions. It is, of course, for my noble friend Lady Stowell to answer most of the questions. I will answer questions that noble Lords put to me representing the Government.
This Bill enjoys the full support of the Government and I am happy to confirm that its provisions are compatible with the European Convention on Human Rights. It will improve our response to wrecks still further and, crucially, ensure that owners of ships are responsible for the costs of wrecks and the hazard they cause and that owners of larger ships maintain insurance to deal with those costs.
The noble Lord, Lord MacKenzie of Culkein, asked me about the other contents of the draft Bill. There are complexities, including the interests of the noble Lord, Lord Berkeley, with his Bill, and I will have to write to the noble Lord. I will place a copy of the letter in the Library and send a copy to all other noble Lords who have taken part in the debate.
The actions of ship owners and insurers are currently influenced by the value of what can be recovered, which means a significant proportion of the costs associated with locating, marking and removing wrecks continues to be met by the taxpayer. The costs of dealing with individual incidents can also vary considerably depending on such things as the size of the vessel and the nature of the cargo. For example, the cost to the Government of dealing with the container ship MSC “Napoli”, mentioned by the noble Lord, Lord Berkeley, which was beached in Branscombe Bay in 2007, was approximately £2.7 million, of which only £1.3 million will be recovered by the Government. However, the costs are not usually that high. Based on a 10-year average and with a cost recovery of approximately 70 per cent, depending on the circumstances, the annual cost as things stand is around £500,000. When the convention is ratified and enters into force in the United Kingdom, that cost is expected in practice to fall to just £40,000, a potential saving of £460,000 annually to the taxpayer.
The Bill would enable the United Kingdom’s authorities to recover their costs from the ship owner, who has primary responsibility for removing the wreck, or from the insurer directly. The Bill does not prevent the general lighthouse authorities or the harbour and conservancy authorities from acting in exercise of their existing powers for dealing with hazards that are a threat to navigation or to lifeboats, but it does provide the means, in cases where they have been directed by the Secretary of State, to recover costs which are not recoverable under the present arrangements.
Of course there can be no absolute guarantee of full cost recovery, so on the rare occasion that there is a shortfall, these costs will have to be met from elsewhere. In this regard, it is important to understand that the Bill maintains the status quo. For the general lighthouse authorities this will be through the General Lighthouse Fund, for the harbour authorities through harbour fees, and for the Maritime and Coastguard Agency the taxpayer. This is no different from the current methods used to make up any shortfall in expenditure by these bodies when carrying out their statutory obligations for dealing with hazards that are a threat to navigation or to lifeboats.
The noble Lords, Lord Berkeley and Lord Davies of Oldham, expressed a concern that any shortfall in costs incurred by these bodies would place an additional financial burden on the GLF and the financial reserves of the harbour and conservancy authorities. With the Bill imposing strict liability on the ship owner to remove a wreck, and by requiring mandatory insurance, the Government are of the opinion that the risks of a shortfall in expenditure will actually be significantly less for these bodies than they now experience.
The noble Lord, Lord Bradshaw, asked me whether the Government would stand behind the GLA. As I have just said, the situation will be much better for the authorities when the Bill comes into force. Historically, the cost of handling wrecks has been a small proportion of the GLA budget, a point made by the noble Lord, Lord MacKenzie. As a proportion of its budget the costs of wreck handling, excluding the costs of the SM “UB-38”, is only 0.004 per cent. If the exceptional costs of the SM “UB-38” are included, the percentage rises to 0.32 per cent. So we are talking about a very small proportion of the total budget of the GLA. He also asked how sure I could be that ship owners would hold valid insurance, while the noble Lord, Lord MacKenzie, raised a point about port state control visits under the Paris MoU. Our port state control visits are targeted, as are those of other states. We acquire information from a variety of sources. As to the UK fleet of over 300 tonnes, there are only 1,200 ships, so it is easy for the MCA to monitor them and ensure that they are insured. Further, the certificates are authenticated by Governments, which for the UK is the MCA. There is a difficulty as regards passing ships not calling at an EU port, but the situation will be no worse than it is now.
Returning to the point made by the noble Lord, Lord Berkeley, I would also stress that the Secretary of State’s powers of direction are discretionary, so these bodies will not necessarily be instructed to locate, mark and remove every hazard. The noble Lord told us the amusing story of the rubber ducks in the Pacific Ocean, but the convention is not applicable to them because they are not a danger to navigation or harmful to the marine environment. In exercising these powers, the SOSREP—the Secretary of State’s representative—who can take charge in such situations, would be expected to have full regard to the capabilities of the directed authorities. Indeed, there would be no point in directing those bodies to undertake tasks for which they did not have the capability or experience, a point made by the noble Lord, Lord Greenway. The noble Lord asked me whether I could go a little further on this. I do not think that I can at this point, but I can assure your Lordships that the arrangements will be made clear in a memorandum of understanding between the respective parties to ensure that they are aware of their responsibilities and that wrecks are located and marked as soon as practicably possible, whether or not the wreck is a hazard to navigation. It is intended that this memorandum of understanding will be agreed between respective parties prior to entry into force of the convention. The noble Lord suggested that we examine these points in Committee. I am sure that my noble friend Lady Stowell will be able very competently to deal with them.
I hope that the House will recognise the considerable benefits that this Bill will bring to those bodies that already do such an excellent job in keeping our waters safe. To that end, I join my noble friend Lady Stowell in commending it to the House.
Baroness Stowell of Beeston
My Lords, I am extremely grateful to all noble Lords who have contributed to the debate today. I thank them for their broad support for the Bill.
My noble friend the Minister has responded to most of the questions raised, but there are one or two points to which I should like to respond. The noble Lord, Lord Berkeley, asked about progress on ratification of the convention. So far, three states have ratified it: India, Iran and Nigeria. Furthermore, in December 2008, all EU member states made a firm commitment to express their consent to be bound by the convention by no later than 1 January 2013. The noble Lord also raised questions, to which the Minister referred, around the Secretary of State being able to “direct” the general lighthouse authorities. Perhaps I may reinforce what the Minister and the noble Lord, Lord Greenway, said by explaining that the term “direct” is important because it means that, if the Secretary of State decides to issue a direction, the authorities will then be parties to the convention. If the Secretary of State does not “direct”, they will not enjoy the same benefits of the convention as others.
The noble Lord, Lord Davies of Oldham, suggested that I could look forward to lively and interesting debates in Committee. I like lively and interesting, and I hope by that stage to be able to respond to the suggestion of the noble Lord, Lord Berkeley, that the memorandum of understanding between the Government and the GLA be made possible for other authorities involved.
The noble Lord, Lord Berkeley, asked about the role of the harbour authorities under the terms of the convention. It is worth making it clear that the instruction from the Secretary of State to harbour authorities will apply only in the harbours or waters that they already control. There would be no extension of any responsibility for them beyond that which they already have.
I think that I have covered all of the issues relevant to me. If there is anything further, I am sure that I can follow it up in writing.