Baroness Stowell of Beeston
My Lords, I thank the noble Lord, Lord Berkeley, for initiating this lively and interesting debate which the noble Lord, Lord Davies of Oldham, promised me at Second Reading. I am sorry that he is not in his place, but I welcome the noble Lord, Lord Rosser, to the Front Bench for this Committee stage.
Your Lordships will not be surprised that I support noble Lords who have spoken in opposition to these amendments. As I pointed out at Second Reading—and as every noble Lord contributing to today's debate understands—the costs associated with removing a wreck can be substantial and also difficult to recover, particularly as at the moment there is no straightforward obligation on ship owners to be responsible for the removal of their wreck.
The Bill builds on the well-developed arrangements that already exist for dealing with maritime casualties. Above all, it provides legal certainty by placing the primary responsibility for the removal of a wreck that poses a danger to navigation or the environment on the ship owner and ensuring that, if the authorities have to step in, the owner will pay their costs for removing it. Under the Bill, the liability of the ship owner is strict; the claimant does not have to prove that the owner was negligent or at fault.
The amendment put forward by the noble Lord, Lord Berkeley, puts some of this certainty at risk. It would delete not just the discretionary power to direct authorities to remove a wreck, but, in doing so, the statutory link to cost recovery under the convention. This was referred to by the noble Lord, Lord Greenway. The Secretary of State's discretionary power to direct, included in the Bill, ensures that authorities will benefit from the convention's cost-recovery provisions when removing a wreck.
The noble Lord, Lord Berkeley, said that if this amendment were to be agreed, there might be occasions when the authorities would choose to carry out or participate in the removal of a wreck in any case. If that amendment were to be accepted, ship owners or insurers would undoubtedly argue that as there is no explicit linkage to the convention's cost-recovery provisions, they do not need to pay an authority's costs. As I have already said, the fact that that direction is in the Bill invokes the connection to the convention. That argument would be reinforced and could lead to all costs having to be recovered through harbour fees or the fund because the ship owner or insurer would be able to point to the inconsistency that the amendment would create because proposed new Section 255C, which provides a similar statutory link in respect of locating and marking, would remain in place, thus allowing authorities to recover those costs direct from the owner or insurer, just as the Bill intends for all costs. There would be direction for locating and marking but not for removal.
In addition to creating inconsistencies, these amendments would also delete the provisions in proposed new Section 255F(4) for the explicit extension of the general lighthouse authorities' areas of responsibility to the edge of the United Kingdom's convention area, which noble Lords will know is up to 200 nautical miles from shore. As such, a ship owner or insurer would doubtless claim that a general lighthouse authority had no statutory basis on which to remove a wreck outside territorial waters and that therefore no payment was required.
The Bill's direction regime removes the real risks of such disputes by linking the authorities clearly and simply to the convention's cost recovery scheme. With the Bill imposing strict liability on the ship owner to remove a wreck and requiring mandatory insurance, it is clear to me that the risks of a shortfall in expenditure for recovering wrecks will actually be significantly less for these authorities than those they now experience. Other noble Lords have already pointed that out. As I understand it, as a percentage of GLA budgets, the costs of dealing with wrecks are already very small. The noble Lord, Lord Greenway, mentioned 0.04 per cent. However, to remove the provision allowing the general lighthouse authorities to obtain reimbursement for unrecoverable expenses from the General Lighthouse Fund on the rare occasion that it is not possible to recover all costs would be at odds with existing and established arrangements. Indeed, it would leave the GLAs with no obvious means by which to make up a shortfall, should they need to. I am concerned that the combined effect of these amendments would be to leave authorities wary of undertaking any wreck removal, notwithstanding what the noble Lord, Lord Berkeley, said, even though they have existing powers and experience. If that were to happen, it would be in no one’s interest.
In summing up, I reiterate that the Secretary of State's powers of direction are discretionary, but they must exist and appear in the Bill for all the authorities to enjoy the benefits of the convention, as they have every right to do. I expect SOSREP to take control in the manner he now does under existing powers. As the noble Lord, Lord Greenway, described, SOSREP is aware of the authorities' capabilities, experience and capacity. If he needs to issue directions, I expect him to act reasonably and to issue them only to those he thinks capable of fulfilling them, not least for the reasons the noble Lord, Lord Addington, referred to. I will leave it to the Minister to expand further on this point if he wishes. For these reasons, I ask the noble Lord to withdraw his amendment at the appropriate time.
Earl Attlee
I am grateful to my noble friend Lady Stowell for her full response to the amendment moved by the noble Lord, Lord Berkeley. The noble Lord referred to discussions yesterday, and I am very happy to continue them, not least because they are so interesting, because the noble Lord genuinely seeks a solution to these problems. I understand his very real concerns, and I am delighted to have the opportunity to give a fuller response in Committee.
It may be helpful to noble Lords if I say a few words about the memorandum of understanding between the Department for Transport and the GLAs. This will provide guidance and understanding about how the convention would work in practice. The Committee will understand that the development of the MoU is in its early stages, as it will be a while before the convention comes into force. The noble Lord, Lord Berkeley, will want to keep abreast of developments, and I am sure that I will be able to facilitate that at the appropriate point.