House of Lords
Antarctic Bill
(11 years, 10 months ago)
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Viscount Montgomery of Alamein
My Lords, the Bill, which has come from the House of Commons and was ably piloted through there by the honourable Member for Stroud, Neil Carmichael, now comes to us for further consideration and, I hope, for its passing into law. My interest in the Bill has been compiled entirely from information received from the Polar Regions Department, a very impressive department within the Foreign and Commonwealth Office. It represents us at the consultative meetings of the Antarctic Treaty system, which take place regularly and regulate, as far as is possible, all activities in that great continent. It is the largest continent in the world and contains no less than 70% of all the fresh water available in it, so it is very important that we take everything connected with the Antarctic very seriously.
The Bill is designed to enhance the protection of the Antarctic environment. This is partly on account of the fact that Antarctic touring during the summer season, which is now—in January and February—has increased considerably, what with yachts, ships, cruise ships and other things all visiting in the very limited period when there are 24 hours of daylight, as opposed to the June/July period when there are 24 hours of darkness.
Part 1 of the Bill, headed “Environmental Emergencies”, would implement Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty into UK legislation, which is headed, “Liability Arising from Environmental Emergencies”, and is known as the liability annexe. This annexe obliges the consultative parties to require Antarctic operators, both governmental and non-governmental, first, to take preventive measures and to establish contingency plans in order to reduce environmental emergencies in Antarctica; secondly,
“to take prompt and effective response action to environmental emergencies arising from”,
their activities; and, thirdly, to obtain insurance or other financial guarantees to reimburse another party or pay into a special fund the costs of response action to an environmental emergency arising from their activities which the operators did not, or could not, undertake to organise themselves. This is a rather detailed and comprehensive arrangement and I have to make apologies for the fact that it seems intensely boring to some of your Lordships. It is in fact of considerable importance to the whole process.
The provisions of Part 1 set out the framework by which those who fail to make effective responses to an environmental emergency in Antarctica would be liable to reimburse the costs to those who take such action. Under the liability annexe, only a state may bring civil proceedings against an operator to recover the costs of response action undertaken. Following the successful passage of this Bill, the Foreign and Commonwealth Office will establish an expert advisory group, consisting of UK Antarctic operators and others with appropriate expertise, to advise on what would have constituted “reasonable response action” in order to determine the level of payment which British operators should reasonably be expected to pay.
The intention would be to enable all financial liability matters to be resolved without the need for court proceedings. However, the Bill would provide the framework for such matters to be settled through the courts as a last resort. The Bill will provide protection for operators from double liability by making it clear that any liability under the Bill will be reduced if the operator is also liable for the same costs under Part IX of the Merchant Shipping Act 1995, which relates to salvage and wrecks.
The Bill will require all those who intend to undertake activities in Antarctica that are connected with the United Kingdom to take preventive measures to minimise the risk and potential impact of environmental emergencies, and to develop contingency plans for responding to any such emergency situation.
The Bill contains an indicative list of preventive measures which those planning to undertake activities would need to have considered prior to entering Antarctica. This list would not however be mandatory in every circumstance, nor is it exhaustive. The onus would be on the operator to demonstrate that they had taken measures to mitigate the environmental risk arising from an emergency. This requirement for contingency plans would cover both the handling of the response to an environmental emergency as well as the response to an incident that is not an environmental emergency but which may have a potential adverse effect on the Antarctic environment. These plans may include what action should be undertaken in response to potential emergencies or incidents, but it is not necessarily expected that every potential incident would be foreseen at the pre-planning stage.
It is proposed that it would be a criminal offence to fail to notify the Secretary of State of an environmental emergency in Antarctica that an organiser of activities becomes aware of as a result of them, their employees or their agents carrying out activities there. Organisers of activities will be required to ensure that mechanisms are in place to require their employees who become aware of an environmental emergency to ensure that the Secretary of State is notified as soon as practicable. The intention behind this requirement is to report all environmental emergencies that the activity organiser becomes aware of and not just those arising as a result of activities they have organised. This would ensure that the UK Government were in a position as soon as practicable to notify the other operators in the region, determine the likely cause of the environmental emergency, and consider what response action should be taken, in consultation with other treaty parties. This could result in some duplication of reporting but that would be better than no notification. The Government would use the criminal sanctions for failure to make such a notification only in extreme cases, and particularly where there was a specific intent not to make such a notification.
Lord Forsyth of Drumlean
I apologise for interrupting the noble Viscount. What is the definition of an environmental emergency?
Viscount Montgomery of Alamein
That is a very good question. I will refer it to the Minister to answer when he speaks later.
Lord Wallace of Saltaire
For the assistance of the House, the most evident environmental emergency was one where an Argentinian ship ran aground in the Antarctic Ocean and lost a considerable amount of fuel oil. That is the most likely environmental emergency with which this deals.
Viscount Montgomery of Alamein
I am most grateful. I knew I would get into difficulty sooner or later. The Bill will treat the British Antarctic Survey, which provides a British permanent presence in the British Antarctic Territory, and other parts of the public sector who enter Antarctica on official business, as part of the Crown. It will also have the benefit of exempting those organisations from requiring insurance, as the UK Government provide self-insurance for their operations.
Now I come to the point that the noble Lord, Lord Forsyth, wanted me to answer. He was just a bit premature. [Laughter.] The Bill defines an environmental emergency as an accidental event that results in, or imminently threatens to result in, any significant harmful impact on the environment of Antarctica. This definition is derived directly from Article 2 of the liability annexe to which I have already referred. The definition of response action sets out the action that operators would be expected to undertake following an environmental emergency arising from activities. The Bill includes a definition of what constitutes reasonable response action. This is also derived from Article 2 of the liability annexe. Operators will need to ensure that any response action they take meets these criteria.
The proposed amendment to the Act would enable the Foreign and Commonwealth Office to issue permits to non-UK nationals wishing to undertake such activities, for the purpose of education or scientific research, while they are participating in a British expedition. Under the Antarctic Act 1994, it is an offence to damage, destroy or remove any part of a site or monument designated as a historic site or monument. However, in recent years, as a result of the warming climate in Antarctica and increasing access to such sites, it has become necessary to undertake considerable conservation work on historic sites and monuments in Antarctica. The provision to amend Section 10 of the Antarctic Act 1994 would enable a permit to be given for such conservation work including, where necessary, the removal of historic artefacts for their conservation or repair, consistent with environmental protocol obligations.
Annex II to the Protocol on Environmental Protection to the Antarctic Treaty sets out the framework for the protection of Antarctic fauna and flora. As a result of a lengthy review, some small changes have been made to that annex and these are reflected in the Bill. That concludes this part of the proceedings. I beg to move.
The Earl of Selborne
On 25 May 1994, the noble Viscount, Lord Montgomery, moved in this House the Second Reading of the Antarctic Bill, which ensured that we updated our obligations under the Antarctic Treaty, which we had been the first to ratify in 1961. After 19 years, he has returned. Once more, we have an obligation to update the treaty. We are enormously indebted to the noble Viscount for once more bringing it to our attention and enabling us to enact this legislation. He explained why it is necessary. After 19 years, with the recognition of just how sensitive the Antarctic is to climate change, environmental impacts from the increase in tourism and the vast increase in interest in the research that is being undertaken in the Antarctic, it is perhaps not surprising that the parties concerned have determined that in a number of respects the requirements of the Antarctic Treaty need updating.
As the noble Viscount explained, the Protocol on Environmental Protection to the Antarctic Treaty already has five annexes in force, and Part 1 of the Bill, with the liability annexe, introduces a sixth. I assure the noble Viscount that, boring though the liability annexe may be—and one has to agree with him on that—it would not be boring if an environmental emergency happened; it would be a total disaster that would have untoward consequences without a doubt.
It is highly relevant to note that all 28 consultative parties have approved this annexe, as have the 22 non- consultative parties and observers—various NGOs and United Nations agencies. Perhaps most relevant of all, attending these annual Antarctic Treaty consultative meetings is the International Association of Antarctica Tour Operators. If you really want an example of how international treaties work at their best, the Antarctic Treaty could be set up as an exemplar. All the parties, whether involved in scientific research, tourism or competing territorial claims, have agreed that territorial claims should be subsumed into this treaty. No other part of the world has ever had such a treaty and such an example of international collaboration.
I was lucky enough to visit the British Antarctic Survey’s base at Rothera on the Antarctic peninsula two years ago. At exactly the same time, my noble friend Lord Forsyth was much farther south and much higher summiting Mount Vinson, so I rather lost bragging rights in the Bishop’s Bar on that occasion. Nevertheless, I look forward enormously to hearing my noble friend’s first-hand experiences of the impact of being in such an astonishing part of the world. All visitors cannot help but be impressed by how all the research bases work together. There are some 80 bases belonging to 28 countries around the Antarctic, and they have to work together not just in times of crisis but in helping each other with fuel caches and in sharing research results. It is a wonderful example of international collaboration, particularly as the relevance of the Antarctic to so many studies of climate change, meteorology, communications and much else comes up the agenda. The updating of this treaty is a heartening example of how so many countries work together.
The preamble of the treaty states:
“it is in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord”.
As we heard from the noble Viscount, the increase in tourism and the amount of research undertaken in Antarctica has demonstrated the need for this Bill. Part 1 contains provisions for the liability annexe, and Part 2 responds to the increasing pressure on the Antarctic environment from human activity. It is particularly relevant here to look at the marine environment. There is an enormous number of quite astonishing organisms in the Southern Ocean and in Antarctic waters. Thanks to modern technology and the ability to visit these remote regions of our planet, we now know a lot more about the remarkable biodiversity and the astonishingly fragile ecosystems.
Reverting to the question that my noble friend Lord Forsyth posed to the noble Viscount, Lord Montgomery, it would not take an awful lot of impact to create a major emergency in the marine environment. It would not need a large Argentinean tourist liner; quite a minor spill could have impacts. We should remember how long some of these organisms take to grow; hundreds of years is not unusual. You do not have to visit Rothera, which is in the Antarctic peninsula at sea level, where they do much of this work on marine organisms. You can visit the British Antarctic Survey’s headquarters in Cambridge where you will see some of these marine organisms being further studied. Some of them are remarkable.
Part 2 also refers to historic sites. This country has a particular interest because of its leading role in Antarctic research. I am thinking, of course, of Scott and Shackleton. I pay tribute to the United Kingdom and New Zealand Antarctic heritage trusts, which have protected and conserved the huts of Scott, Shackleton and other explorers from the heroic age of Antarctic exploration. Part 2 refers to the need to be able to make funds from this country available to help these charities in their excellent work.
I enormously welcome the Bill. I congratulate the noble Viscount, Lord Montgomery. If I have one criticism, it is a rather churlish one. It is simply that the Government having produced an excellent draft Bill, which went out to consultation two years ago, it has taken rather longer than I would have hoped for it to come before Parliament. However, thanks to Neil Carmichael MP in another place and the noble Viscount, Lord Montgomery, we can now proceed with the ratification. We will not, alas, be the first this time—I wish we were—but the seventh. Perhaps the Minister can confirm that. This is a most important Bill, and we should be enormously grateful to the noble Viscount, Lord Montgomery, for making it possible for us to take it forward.
Lord Giddens
My Lords, I, too, congratulate the noble Viscount, Lord Montgomery, on having introduced this Bill and on his succinct definition of environmental catastrophe. He is one of the few people who could get a laugh from such a thing. It was good to see him deal with it so ably.
I am happy to support the Bill, even if it is slightly surreal, since no one owns any part of the Antarctic, which is as it should be. Seven nations have claimed territory there. The claims are legal according to the laws of the nations in question, which makes this Bill worth pursuing. However, some countries do not recognise any national claims on the Antarctic; others assert their right to make claims in future. The Antarctic Treaty 1959 has been conspicuously successful, so far anyway, in preserving the region as a continent for science, as I think has already been mentioned. Long may that continue. Today, there are more than 40 scientific research stations dotted across the vast continent, attracting scientists from many countries.
I enjoyed reading the debate on this issue in the Commons from 2 November last year, where the Bill achieved impressive cross-party support. Amazingly, one or two Eurosceptic contributors managed to get in some obscure digs against the EU, even though it has no connection at all to the proposals, although it did liven up the debate. As a whole, the discussion in the Commons was good and balanced.
I spoke in the debate in your Lordships’ House to commemorate the centenary of Scott’s second expedition to the Antarctic. Many of us in that debate took it as an opportunity to oppose the plan to close down the British Antarctic Survey. As with those who spoke in the debate in the Commons, virtually everyone took the same view, I am happy to say. It is a relief that the BAS has been saved, even if there is work to do on the issue.
As has been said, the UK has long been the dominant scientific presence in the Arctic and, if anything, research in that vast frozen land and sea mass has become even more important than it was. Current research spans biology, geology, oceanography, medicine and many other sciences. The Antarctic is a laboratory for the study of climate change, and it is very interesting what is going on there in that respect. Some areas of the Arctic are becoming more frozen, not less, as a result of violent winds that circulate in the centre of the land mass, yet other areas are becoming warmed in a very significant way. The BAS research shows that the level of warming on the Antarctic peninsula,
“is among the highest seen anywhere on Earth in recent times”.
It is likely to have a profound effect on the ecosystems in the local area, but more disturbingly—
Lord Hunt of Chesterton
My Lords, this discovery of a great warming and how it happened was the joint effort of many universities and the British Antarctic Survey.
Lord Giddens
My Lords, I stand corrected, although I endorse the quotation, which does come from the British Antarctic Survey. Of course, almost all research in the Antarctic is collaborative, as the noble Lord points out. That is a good part of the British presence there.
I was about to say that the changes going on in the Arctic peninsula and the rest of the Antarctic could also have profound impact on wider world patterns. That is why it is so important to have a very strong scientific presence there. The significance of the Bill is that it shores up the UK’s treaty obligations and makes them part of British law. One clause applies the polluter pays principle to those operating in the Antarctic, and environmental disasters include cruise ships bashing into icebergs, which one or two of them have already done. Numerous other instances could be mentioned. This part of the Bill includes the need for insurance provision in relation to such incidents, while another part helps to provide protection for indigenous flora and fauna, as the noble Viscount said.
I endorse the Bill on the understanding that it is a contribution to the safety and sanctity of the Antarctic as an international zone of peaceful research. I do not support any geopolitical claims that might be drawn from it as giving the UK special rights that other nations might not have.
Lord Avebury
My Lords, I congratulate the noble Viscount, Lord Montgomery, on his skill in introducing the Bill and wish him every success in piloting it through this House, with his long experience and great knowledge of the Antarctic. I congratulate my honourable friend the Member for Stroud on choosing this important subject for his Private Member’s Bill and on his skill in piloting it successfully through another place.
The Antarctic is a region of tremendous political, scientific and environmental importance, and I am delighted to support this Bill today. The Antarctic Treaty, and the related agreements described together as the Antarctic Treaty System, is a great achievement, reserving as it does the whole of the land and ice shelves south of 60 degrees latitude for scientific research and excluding all military activity in the region. This was largely a British achievement as my honourable friend emphasised in another place, and we were the first to ratify the treaty in 1961.
Britain not only played a leading role in the development of the ATS, but we continue to provide an effective and powerful contribution to scientific research on the continent for the benefit of mankind as a whole through the British Antarctic Survey. I was delighted when the Government decided, on the basis of solid evidence, rehearsed here and in another place, to maintain the independence of the BAS. That outcome was a good example of Parliament working together with the Government to avert a serious error of judgment, and I am pleased to see that the BAS is specifically referred to in the Bill, as my honourable friend the Member for Cambridge pointed out in Committee in another place. If my noble friend the Minister could say anything about the timescale for the appointment of the new director, I am sure that would be appreciated by your Lordships.
This Bill tightens the protection of the Antarctic environment by enabling us to bring into force the mechanisms in the liability annex to the protocol, “Liability Arising from Environmental Emergencies”. The simple description of this process is that the polluter pays, as the noble Lord, Lord Giddens, explained. Every person, public or private, who organises an activity in Antarctica must take reasonable, prompt and effective action to deal with an environmental emergency, defined as an event which threatens or results in significant harm to the environment. Operators are required to insure against liabilities that may arise under this provision. The explanation by the Minister in another place of how the limits on liability in the schedule complement those in the 1996 protocol to the limitation of liability for maritime claims generally under the 1996 protocol was not entirely clear, and I look forward to discussing that with my noble friend the Minister, although I have no intention of delaying the Bill.
The most likely type of major environmental disaster to happen is the loss of, or spillage of oil from, a tourist vessel. The “Nordkapp” ran aground near Deception Island and spilled 757 litres of diesel oil, for instance, while the “Explorer”, with 150 passengers on board, sank near the South Shetland Islands in November 2007. Recently, much larger cruise ships have sailed into these waters, and, considering that the UK-occupied sections of the territory are the most popular destinations, I wonder whether the Government would consider imposing a charge for permits based on the number of passengers carried. Looking at the fees charged by the tour operators, £500 per passenger would not be an unreasonable levy, enabling us to accumulate a fund to cover some or all of the clean-up costs that were not within the maximum liability. I dare say the Minister will point out that if other parties to the liability annex did not impose similar levies, the operators would seek permits from state parties where the cost was lowest. Have the Government broached this subject with the other parties and would they take a lead on the matter, bearing in mind their general disposition to recover the cost to the taxpayer of providing all kinds of services?
The larger the volume of tourism to Antarctica, the greater the danger to its fragile environment. That applies particularly to the UK dependencies, which are the most popular destinations, such as Deception Island and the South Sandwich Islands. A charging regime such as I am suggesting would help to slow down the growth of the traffic, as well as providing a shield against recovery costs that exceed the limits in the schedule.
Tourism is not the only threat to Antarctica’s environment. Large-scale fishing operations have developed in recent years, and my noble friend will be able to confirm that they are not covered by the Bill. The activities carried out in Antarctica which are dealt with in Part 1 are defined in Clause 13(9) as those carried out on a British expedition, defined in turn in Section 3(3) of the Antarctic Act 1994 as an expedition organised or starting from the UK. That would seem to include the tourist ships but not fishing vessels, which are treated separately in the 1994 Act. If my interpretation is correct, does this not leave a gaping hole in the Bill, and presumably in the underlying “liability annex”, since fishing vessels are no less likely to have accidents that pollute the environment than tourist ships?
New Zealand discovered the toothfish in the Ross Sea in 1996 and now some 3,000 tonnes of this fish are caught every year and sold as Chilean sea bass in expensive restaurants around the world. The New Zealand NGO, The Last Ocean, has initiated a campaign to ban commercial fishing altogether in the Ross Sea, claiming that it will destroy the natural ecosystem. The Commission for the Conservation of Antarctic Marine Living Resources, CCAMLR, has committed to designating a network of marine protected areas, including the Ross Sea, but according to The Last Ocean, that means allowing commercial fishing, including krill trawlers. The CCAMLR was established in 1982 by an international convention to conserve Antarctic marine life, but that does not exclude harvesting as long as it is sustainable and takes account of fishing’s effects on other components of the ecosystem.
The Antarctic Treaty System prohibits exploitation of natural resources on the land mass of Antarctica, but the Convention on the Conservation of Antarctic Marine Living Resources allows for conditional exploitation of marine resources, including krill. The president of the World Bank and the noble Lord, Lord Stern, both issued warnings at Davos last week of far more serious climate change than has so far been predicted. As drought and floods reduce agricultural production, there will be huge pressure to loosen the controls on the abundant source of food in Antarctica.
It seems that there is a possible conflict between the objectives of the CCAMLR and the purpose of this Bill, which is to reduce the likelihood of environmental emergencies anywhere south of 60 degrees latitude, and to provide the resources for dealing with the situation when emergencies do occur. Allowing more shipping into sensitive areas such as the Ross Sea is bound to increase the risk of accidents, in addition to the risk of disturbing the ecosystem if the scientists who advise the CCAMLR get it wrong. Yet the duty to take preventive measures and make contingency plans in Clause 5 does not apply to fishing operators, nor will they be required to notify the Secretary of State as soon as they become aware of an environmental emergency. They may be required to pay compensation for any environmental emergency they cause under the Merchant Shipping Act 1995, but not to the Antarctic Environmental Liability Fund, as would be the case if they were subject to the Bill. Can my noble friend explain whether, in the event of an environmental emergency caused by a ship which is not an expedition, that fund receives compensation, or alternatively, how the operators can be made to pay the recoverable costs of the response action? In practice, the costs of recovery will fall on the BAS, and there must surely be a procedure for its reimbursement where ships that are not expeditions get into trouble.
I have a couple more questions about Part 1. What are the criteria that determine the threshold of an environmental emergency? In January 2007, the “Nordkapp”, operated by Hurtigruten, hit a rock near Deception Island and, as I said earlier, lost 757 litres of diesel fuel into the ocean. In December 2008, the “Ushuaia”, run by Fathom Expeditions, ran aground near Wilhelmina Bay and lost an unreported amount of diesel fuel, and there may well be other similar accidents that I have not been able to identify. Would these events have come under the provisions of the Bill, and what is the limit below which a loss of fuel need not be reported? Who is paying for the clean-up of the pollution caused by marine accidents generally in Antarctica now and until the liability annex comes into force?
The annex will come into force only when all the 28 parties to the protocol have ratified it, and when we have passed this Bill that will make only six out of the 28. My honourable friend the Minister said at Committee stage in another place that we would then encourage the remaining countries to get a move on with their own ratifications. Bearing in mind that it has taken seven and a half years since the adoption of the annex for less than a quarter of the states to ratify it, I hope this does not mean that the rest are going to delay implementation until 2035. If my noble friend can say anything about the prospects for accelerating the process, it might cheer us up.
On Part 2 I shall be very brief. I warmly welcome Clause 14, which allows multinational teams from UK universities to undertake research in a special area, provided the domestic legislation of their home country allows them to do so. My question here is whether this means that only nationals of the other five countries that have already ratified the annex can participate in our university expeditions, or whether any of the others have already made arrangements to grant their citizens the necessary permission.
With regard to the historic sites, I note that there are two that are co-managed with Chile and one that is co-managed with Argentina. Mawson’s Huts, remaining from the heroic Australasian Antarctic Expedition of 1911-14, described in last Sunday’s Observer, are an exclusively Australian responsibility, but Sir Douglas himself was Yorkshire born and three of the 22 members of his expedition were British. Is there some way in which the UK might contribute expertise or resources to the management of Mawson’s Huts in recognition of our role in an enterprise which equalled those of Scott, Shackleton and Amundsen?
Lord Forsyth of Drumlean
My Lords, I offer my congratulations to the noble Viscount, Lord Montgomery of Alamein, on bringing this Bill before the House, and to Neil Carmichael in the other place. It is a vital Bill. I apologise to the noble Viscount for interrupting his speech and asking about the definition of an environmental emergency. I hope that the Minister will turn his attention to that matter. It is set out in the Bill in Clause 13(3), which states:
“In this Part, ‘environmental emergency’ means an accidental event that results in, or imminently threatens to result in, any significant harmful impact on the environment of Antarctica”.
Why is it limited to an accidental event? Why is “accidental” included in the subsection? Why does the measure not apply to any event that threatens to have a significant harmful impact? I have no doubt there is a simple explanation for that but it was not obvious to me on reading the Bill.
My noble friend Lord Baker reminded me that my right honourable friend the noble Baroness, Lady Thatcher, first became enthusiastic about the environment when she was told that a British Antarctic Survey team had discovered the hole in the ozone layer as a result of its work in the Antarctic. That was the origin of her pursuing the environment with the vigour that she did when she was Prime Minister.
As my noble friend Lord Selborne pointed out, I had the pleasure of going to Antarctica at Christmas 2010 to climb the highest mountain there. Almost all noble Lords supported that venture in aid of Marie Curie Cancer Care and we raised almost half a million pounds as a result of that visit. I have to say that it was one of the most expensive trips that I have ever taken anywhere. It is very difficult to get there and the costs and difficulties of operating there are immense.
Having been to Antarctica, I have to confess that I did not see any penguins or any animals at all because I went to the interior to climb a mountain and landed at the Union glacier, where it is so cold that no animals or even bacteria can exist. It is a completely lifeless place. For me, it was a quite astonishing, almost spiritual, experience. If you stand on a mountain in Antarctica on a calm day, which does not happen very often, the air is so clear and unpolluted that you can see for many more miles than we are used to doing in other parts of the globe. The thing that is most striking is the silence. There are no birds or airplanes. You look out on a completely unspoilt environment.
I am not noted as a great champion of rigorous regulation but the Antarctic Treaty has been an absolute triumph, as my noble friend Lord Selborne pointed out. Despite the injunctions of the noble Lord, Lord Giddens, I shall resist the temptation to compare it with European Union treaties. It has indeed been hugely successful. When I went to Antarctica, I was supported by an organisation run by former members of the British Antarctic Survey. We should be really proud of that body and what it has achieved—it has been immensely successful. The people involved are incredibly professional and understanding of what is required to operate in a very harsh and unforgiving environment. A simple mistake can mean the loss of fingers and toes or other vital parts of your body.
The treaty means that, for example, before you can leave Chile to get to Antarctica, you have to be briefed and you have to be aware of a set of rules. I do not wish to be indelicate but one thing that people always ask me about the expedition is: if the temperature is minus 35 degrees and you are in a tent, how do you manage with your ablutions? Under the rules, everything —and I mean everything—has to be carried back to Chile. It has to be put in a bag, frozen and carried back. Under the terms of the treaty, you are not allowed to take anything out of Antarctica and you are not allowed to leave anything behind. The only things that you can leave behind are your footprints, and the only things you can away are your memories and photographs. This is rigorously enforced.
I can hear my noble friend asking why that is. If people were to pee in the snow, there would be a series of yellow ice stacks up the mountain as the snow was blown away due to the katabatic winds. Therefore, strict control is applied right the way through. The result is that, when you go to Mount Vinson, it is as God left it—it is completely unspoilt. That is in stark contrast to other high mountains in the world such as Everest, Aconcagua or Kilimanjaro, which are completely strewn with rubbish and desperately polluted. The fact that Mount Vinson is unspoilt is entirely due to the operation of this treaty, and therefore I very much welcome the Bill, which takes it further forward.
The other point that I should like to make—this may seem a little hypocritical, having been there—is that when you go to Antarctica you fly from Punta Arenas and land on a natural ice runway in a Russian plane without windows, which is quite a scary experience. As you leave the plane, you immediately find yourself in Narnia: you are confronted with a blinding white light and a completely unspoilt environment. There is a camp there, which has to be set up every year, and it is amazingly well run and organised. Some of the best food and wine that I have eaten and drunk was at Union glacier. When I complained to the organisers that it seemed a bit extravagant to have such splendid claret, he said, “The cost of the claret is incidental. The real cost is getting it here and taking it out again”. Therefore, Union glacier is a very comfortable camp.
We were stuck at the camp for several days while waiting to get out and there were all kinds of people there. The most interesting people were of course the mountaineers. The next most interesting were the scientists. There are scientists involved in all kinds of work—from putting in GPS systems to working out the movements in the ice cap, measuring the effects of climate change and working out how many neutrinos are hitting the earth as part of deep space research. Others are involved in drilling into the ice core to try to establish the record of climate change. Several scientists pointed out to me that those who drill into the ice core occasionally find pockets of gas. That is the key thing: Antarctica is rich in natural resources—gas and rare metals—and therefore it is very important that the treaty protects it because it is indeed a very fragile environment.
Also at the camp were several Russian and one or two American billionaires in their seventies who had flown to the pole in a private aeroplane. The pole has now become a major tourist attraction for very wealthy people. I said to one lady, “Why are you here?”. She replied, “Well, I’ve been to the North Pole and I’ve booked my trip to space, so I thought I ought to come to the South Pole”. Good luck to her, but it seems to me that if this very fragile environment is subject to those kinds of pressures, it will be damaged, and damaged beyond repair.
Therefore, I congratulate the noble Viscount on this Bill. I believe that we have much to be proud of in the part that we have played as Brits in the preservation of this special part of the planet. It remains unspoilt and a natural laboratory from which we can do the necessary work in order to pass on to the next generation a world that is better than the one we inherited.
Lord Greenway
My Lords, I, too, thank my noble friend Lord Montgomery for introducing this important Bill. I shall not wax lyrical about Antarctica like the noble Lord who has just spoken because I have not been there, although I have been ice-breaking up in the Arctic.
As your Lordships would expect, I shall confine my remarks basically to the maritime side of the Bill and, in particular, to cruise ships, which have been mentioned by a number of noble Lords.
Under the Bill, any vessel visiting Antarctica has a duty to have contingency plans in the event of an environmental emergency there. There is also a need to have adequate insurance cover or other financial security to cover liabilities in the event of an environmental emergency. The UK Chamber of Shipping and the International Group of P&I Clubs—that is, protection and indemnity clubs—raised some concerns while the Bill was going through the other place. They thought that it needed to be made clear that the liability limits found in existing conventions which allow ship operators to limit liability, as ratified by the UK, would be respected in implementing this Bill’s limits for environmental emergencies. Several exchanges took place and I believe that a ministerial Statement was made in the other place to try to quantify those concerns. I hope that the Minister can confirm that under this Bill the liability provisions will come in only when existing liability provisions, already ratified, have exhausted themselves.
There are a number of maritime conventions to which this country has provided ratification and which cover specific liabilities in relation to oil pollution and so on. For liabilities not covered by these conventions, there is the right to limit liability under the Convention on Limitation of Liability for Maritime Claims—the LLMC—of 1976, to which a protocol was added in 1996. In essence, the right to limit liability for ships or ship-source pollution stems from the need for the risk to be quantifiable, and therefore insurable, with the advantage of prompt settlement of claims arising from such incidents. I should be grateful if the Minister could confirm that.
I was interested in the suggestion of the noble Lord, Lord Avebury, that ships should be charged according to the number of passengers on board. The larger ships which used to visit Antarctica are not doing so so often now. They are mainly smaller ships—including expedition ships, as has been mentioned. A lot of them are former Russian ships which are ice-strengthened, and the Russian masters are very well versed in dealing with ice conditions.
Lord Avebury
Advertised tours include ships as large as 260 passengers. That seems to be about the maximum.
Lord Greenway
Yes, 260 passengers is a very small cruise ship these days when some of them can take 4,000 passengers. We are talking about fairly small ships. My understanding is that no large British ship has been there for a number of years and certainly no British ship is scheduled to visit this year. Basically, this Bill relates to the UK. Ships that belong to other countries, some of which have not ratified some of these conventions, are a different matter and there is concern about them.
I understand that the International Maritime Organisation is in the process of developing a new mandatory polar shipping code which could be completed next year but we do not know yet whether it will be. That was activated by the sinking of the “Explorer”, which the noble Lord, Lord Avebury, mentioned. These things are not always as simple as they seem. My feeling is that companies feel that it is difficult for the larger ships to visit Antarctica because, quite simply, there are too many people on board to go ashore. That is why smaller ships are being used.
This is a very worthwhile Bill and I think that it should be passed expeditiously.
Baroness Hooper
My Lords, as one of the fortunate few to have had the privilege of visiting Antarctica and seeing its extraordinary beauty and uniqueness at first hand, I am following this Bill with great interest. Although I visited as a tourist, I hasten to assure noble Lords that we travelled on a small British vessel and that the expert lectures on board, and the crew, were genuinely dedicated to minimising any undesirable impact that the passage of our ship or our visits might have on penguin and albatross colonies on shore.
I now realise that what at the time seemed to be over-fussy procedures were the necessary precautions to ensure that an environmental emergency, as defined by the Bill and by the noble Viscount, would not and should not take place. Therefore, I welcome the Bill as a means of making it the norm that all vessels and visitors to Antarctica should abide by strict structures, procedures and training to prevent and avoid accidental damage to the unique and pristine environment of that continent. What I experienced was clearly best practice, but I realise that a clear definition of what is required, complemented by adequate sanctions, will have a more general effect.
The other reason why I follow this Bill with interest, and trust that it will soon pass into law, is as a result of the debate which I introduced last October to celebrate the centenary of Scott’s expedition to Antarctica and its scientific legacy. The noble Lord, Lord Giddens, has already referred to that and, as has been said, that debate highlighted the issue over the future of the British Antarctic Survey, whose work we all admire greatly. I take this opportunity to thank all those concerned now that the problems that existed at that time seem to have been resolved satisfactorily.
My interest in the long-term preservation of the Scott and Shackleton huts, as significant monuments to those great explorers and their expeditions, also results from the campaign that we had some years ago to encourage the British Government to supplement the work and funding of the New Zealand Government in guaranteeing their survival. The huts are located in the New Zealand claim area on the north shore of Cape Evans on Ross Island. In that respect, I also pay tribute to the work of the Antarctic Heritage Trust, its science and conservation and its outreach programmes. It was on a visit to its centre in Christchurch, New Zealand, that I was inspired to pursue a visit to the continent.
Therefore, my intention today and during the later stages of the Bill is and will be to focus on Clause 15 and the preservation and conservation of historic sites and monuments. I understand that an amendment was introduced in the other place to ensure that it was absolutely clear that the protections provided by Clause 15 did not apply only to sites and monuments in the British Antarctic Territory but would apply equally in other areas such as the New Zealand claim area. In view of the remarks made by the noble Lord, Lord Avebury, about the Mawson’s huts, it should apply equally to the Australian sector. The mover of the amendment in the other place was sufficiently reassured by the Minister to withdraw it. I hope that the Minister will be able to reiterate that reassurance today so that I shall not feel compelled to reintroduce a similar amendment here at a later stage.
That said, I have only one further question for the Minister and a comment, both of which relate to Antarctica but not directly to the provisions of the Bill. My question relates to the fact that the secretariat of the Antarctic Treaty is based in Argentina, in Buenos Aires. Is my noble friend able to say whether we have regular contact with the work going on there and whether we are able to participate fully in the work of the secretariat? My comment is a reference to last year’s British joint services expedition to Antarctica led by Colonel Paul John Edwards. Its vision was to conduct scientific research and exploration in remote areas of the Antarctic Peninsula in the spirit of Scott, seeking to further the bounds of human exploration and knowledge. I attended the report back at the Royal Geographical Society recently and I was most impressed by their tales of fortitude and endurance and by the scientific legacy that they, too, established. In many ways, their experiences were similar to those of my noble friend, Lord Forsyth.
I congratulate the noble Viscount, Lord Montgomery, on introducing the Bill. I think it is a good Bill and a necessary Bill, and I wish it safe passage.
Lord Hunt of Chesterton
My Lords, I speak in the gap to welcome this Bill. I have been working at the University College London Centre for Polar Observation and Modelling with the BAS for the past 14 years. I would like to emphasise two aspects. As the Antarctic environment is changing, it becomes more liable to artificial risks, a point made by the noble Earl, Lord Selborne. However, as the noble Lord, Lord Forsyth, commented, some of these accidents may well be deliberate. Indeed, a novelist approached me recently to ask for various fiendish methods by which we could destroy the environment, so I came up with some interesting ones, which I will not tell you about.
I welcome Clause 5(2)(a) on the obligation to reduce risk, but Clause 8(1)(a) should surely be modified. Currently, it gives the Secretary of State power to require information about activities that “have given rise” to “an environmental emergency”. Surely, the Secretary of State should have power to require information about the risks of possible future emergencies. I believe that that clause needs to be changed. Indeed, I believe that the Secretary of State, in conjunction with the international panel in Buenos Aires and so on, should establish with other countries an ongoing and openly published document or website about future risks, as they keep changing.
Lord Triesman
My Lords, I join all other speakers in thanking the noble Viscount, Lord Montgomery of Alamein, for introducing the Bill. I recall many occasions when he pressed serious questions about Antarctica, as other noble Lords here have done, upon me. It is good to see much of this work coming to fruition. I personally recall the early stages in the history of its discussion. I record the thanks of these Benches to Neil Carmichael in the other place for the work that he has done.
A number of noble Lords speaking in this debate have been concerned with these issues for a long time, such as the noble Baroness, Lady Hooper, and the noble Lord, Lord Greenway. I congratulate them on their persistence. Plainly, having an involvement in Antarctica comes in many forms. I enjoyed enormously the account of the noble Lord, Lord Forsyth, of his mountaineering expedition in a most remarkable place, not least because he was doing it in such a good cause. Macmillan Cancer Support is dear to many of our hearts. What he achieved on that occasion was very important.
My final word of thanks is to the FCO team, whom I recall very well. They were a successful and effective team in the Foreign and Commonwealth Office, and was always at the forefront of ensuring that we took these issues seriously, and the environmental issues very seriously. I suspect that the House will already have realised that there is clear support for the Bill from these Benches, just as I am sure there is across the entire House. As the noble Baroness, Lady Hooper, has just said, it is a very good Bill.
One of the privileges enjoyed by Ministers who are responsible for the British Overseas Territories—a varied portfolio of elements of world geography—is the role that we in this country have played in the Antarctic and the British Antarctic Territory. As a consequence, I have seen proposals for such a Bill over many years. Indeed, I had hoped that it might be possible to bring one forward while still in office at the FCO. That is one of the reasons that I expressed my delight that the same group of your Lordships are here to debate it today, just as they would have been then.
These long-standing interests in preserving the Antarctic extend well beyond your Lordships’ House. I took huge encouragement from the detailed interests so often and so well expressed by Her Royal Highness the Princess Royal. I met many of the British and New Zealand supporters of the great historical exploration sites, whose knowledge matched their enthusiasm. Like the noble Earl, Lord Selborne, and the noble Baroness, Lady Hooper, I acknowledge that the Antarctic Heritage Trust has played an important role in respect of the historic sites. There were sometimes some vigorous discussions with the New Zealand Government about how we should fund it, and who should bear which part of the cost; but I do not think that we ever disagreed about the importance of doing so.
I have seen a consistent passion for Antarctica in the university community—which I think I know reasonably well—in the scientific community and others, where the dedicated need for longitudinal study is so evident. Of course, I have admired the MPs who have been concerned with Antarctica for such a long time and have had enduring aspirations for a Bill of this kind. They are a very diverse group, ranging from Mr Bill Cash to Mr Jeremy Corbyn; anything which manages to embrace both of them is either profoundly right or profoundly wrong.
What unites all those voices? First, there is a desire to protect a unique environment. It is often and rightly described as “pristine but fragile”, vulnerable to the impact of global warming, as is everywhere else, of course, but there, perhaps, particularly so. It is evident that much work has been done to preserve the physical environment, the ice where historic pollutants can be detected. I understand that, for example, that one way of measuring the impact of lead emissions from vehicles —fortunately now declining as lead emissions are themselves declining—has been by looking at the ice cores. It has been an extraordinary historical source for the study of pollutants and the history of the climate. To pick up one of the points made by the noble Lord, Lord Avebury, about fisheries, it is evident that the remarkable fish stocks in the surrounding seas of the Southern Ocean are also at risk. Indeed, there are now risks due to whaling, and the pressures being exerted towards an extension of whaling by Japan, Norway and Iceland.
The balance of the flora and fauna demonstrates the interdependence of all of these things. We have a duty to protect them. I do not say this to be sanctimonious, but if we cannot protect these things on our planet then I do not think that we have the respect for our planet that we ought to have. I join the noble Lord, Lord Avebury, in mentioning the Ross Sea as an area where we should have some clear concern.
The duties also focus our attention on the emergence of tourism and the risks that are posed by significant increases in maritime transport. The noble Viscount, Lord Montgomery, was quite right to point out that two months of the year have significant, intense activity. The idea of the noble Lord, Lord Avebury, of adding a licence fee to ensure that that work is done better is an interesting proposition. I had not considered it, and I will not pretend that today I have suddenly warmed to it or otherwise, but your Lordships’ House would certainly do well to consider that proposition.
That whole environmental question is one of the strands which unites us. The second is the need to ensure that no countries attempt land grabs, as my noble friend Lord Giddens was saying, in pursuit of minerals or any other assets. Two days ago, China and Ukraine announced that they opposed the protection zone around Antarctica being continued. Again, because of the fragility and circumstances on the continent, it is essential that Her Majesty’s Government take an inflexible line at the Berlin conference next year, where the protections are scheduled to be renewed. Can we receive an assurance from the Minister today that we will be absolutely rigorous and try to ensure that a kind of modern form of land piracy does not occur? Can the Minister be unambiguous on this?
Thirdly, Antarctica is a treasure trove of knowledge. It is a magnet for great science, as my noble friends Lord Giddens and Lord Hunt have said. Science also needs to respect what it studies. Happily, this has characterised the way in which United Kingdom science, and great scientific institutions around the world have played their role. There has been a key role for Cambridge University on the continent because of the location of the British Antarctic Survey board, but more widely, I take the view—as the noble Lord, Lord Forsyth, and my noble friend Lord Hunt said—that the worldwide academic community has been well co-ordinated and has tried to ensure that there is proper co-ordination in this work.
The fourth reason that we are drawn together is the point made by the noble Lord, Lord Avebury: this is not an area in which there is a military role or incursion. We should ensure that there never is one. It must be a military-free zone.
The fifth reason that all those voices have been brought together is the shared pleasure in the history of the Antarctic and Antarctic exploration, and in the historic sites. It is a story of bravery, of course, but also of intriguing rivalries. We should always note that it is a story of human curiosity, of a desire to collect and understand the things that have happened in the history of our planet. It is a history of the collection of knowledge, and doing so in a fearsome environment, as was described so well by the noble Lord, Lord Forsyth.
The Bill protects the continent from recklessness and environmental emergencies, not least through the liability annexe. The FCO expert group is a vital ingredient in this, and I am sure that it will conduct its work with all of the vigour that, in my experience, it has had in the past.
The Bill is helpful in the protection of historic sites, although I suspect that there is more work to be done between countries to ensure that it is completely successful. The Bill is a mechanism for international co-operation to achieve the protection and preservation of the continent as a whole, bringing together the 28 executive and 20 non-executive parties for that goal. These are all things that we support.
The Bill will help to ensure that people take away everything that they bring. I know the Galapagos rather better than the Antarctic. Both places are beyond compare but so easily destroyed. For that reason, everybody needs to understand that there is an ethical priority in making sure that people take out what they bring in, that they do not wreck or spoil it and that, if they do—deliberately or accidentally—the consequences for them will be very serious.
My final point comes very close to the final comments of the noble Baroness, Lady Hooper. Are there any indications of Argentinian willingness to co-operate fully in this? I do not ask that in order to be contentious, or to suggest any concessions that the United Kingdom should make to the more extraordinary and unpleasant objectives that the Argentinian Government sometimes express. I hope that the House will agree that we should seek reassurance that no other political impulses could endanger the Antarctic continent. Whatever we can do to help get consensus about the continent as a pristine but fragile environment must be helpful. We support the Bill.
Lord Wallace of Saltaire
My Lords, this has been an excellent and expert debate. It demonstrates that there is a complete consensus on the importance we attach to vigorously defending and protecting the environment of the Antarctic. The Bill allows us to ratify a further addition to the corpus of international law that governs the Antarctic continent. As noble Lords will know, Her Majesty’s Government regret—and have for several years—that we were not the first to ratify. However, if the Bill passes—as we very much hope it will—we will be the seventh country to ratify. That answers the question of the noble Earl, Lord Selborne.
So far, Finland, Peru, Poland, Spain and Sweden reported to the most recent Antarctic Treaty Consultative Meeting in June 2012 that they had ratified. Since then, Australia has ratified. When the Bill has completed its passage through both Houses, subject to the will of this House, I know that my honourable friend Neil Carmichael MP is planning a reception to celebrate the Bill and our ratification, to which representatives of the other state parties will be invited. This will provide us with the first opportunity to encourage others to follow us as rapidly as possible in completing the ratification of the treaty. I have just been passed a note stating that Argentina has indicated its intention to ratify the liability annexe.
We maintain absolutely our commitment. It is not just a question of the British Antarctic Survey. We are all aware of how competent and expert the FCO team covering this is. It was a slight shock to me when I met them this morning, having corresponded with them for some time. I had assumed from their level of expertise that they were all about my age and had been studying the Antarctic for 40 or 50 years. To discover that they were about half my age and nevertheless very expert was even more impressive.
I will rapidly respond to a number of points made in the debate. The noble Lord, Lord Avebury, asked about the timescale for the appointment of a new director of the British Antarctic Survey. The Natural Environment Research Council has advertised for a new director. The closing date was 17 January. We understand that the NERC plans to interview candidates in March, so we are making good progress.
In an extremely interesting speech, the noble Lord raised a large number of interesting points. I am amazed and sometimes appalled by the level of his expertise on parts of the world that often I have to start researching by looking them up on a map. On the question of how we might charge for permits to cover clean-up costs, the Government’s consideration on this is that the limits on charges and maximum liability set out in the Bill are already significant. Liability for the smallest vessels is just under £1 million. For larger vessels we are talking about anywhere between £12 million and £30 million. These are generous limits for the potential emergencies that we could envisage. Once the liability annexe comes into force, the Antarctic Treaty parties will review the liability limits. Many consider that they will then need to be raised, for example to come into line with the new limits to be introduced under the Convention on Limitation of Liability for Maritime Claims.
The noble Lord raised the question of protecting Mawson’s huts. The noble Baroness, Lady Hooper, also talked with particular passion about the protection of historic sites and monuments across all Antarctica. The Government are aware of a very extensive Australian restoration programme for Mawson’s huts and so do not think that they will fall into disrepair without British involvement. However, if the UK Antarctic Heritage Trust was invited to contribute expertise to that restoration project, I am sure that it would seriously consider the opportunity, which the Government would encourage it to accept. The Bill’s provisions on historic sites and monuments apply across all Antarctica, and we are engaged with other signatories in co-operative work in their protection.
The noble Lord, Lord Avebury, also raised the question of marine protected areas and fisheries. I confirm that Clause 9(3) specifically excludes the activity of fishing for profit from all requirements in Part 1 of the Bill. This is primarily because the Protocol on Environmental Protection to the Antarctic Treaty does not cover fishing activities, which, as the noble Lord pointed out, are the subject of separate rules and regulations under the Convention on the Conservation of Antarctic Marine Living Resources, which I am told is pronounced “Camlar” as an acronym. As a result, they are specifically excluded from this liability annexe. However, they are covered by other existing international laws.
The British Government are committed to the protection of the Southern Ocean from excessive fishing. We note that fishing for Chilean sea bass has rapidly increased. When I am offered it, I will look at sea bass with an entirely different attitude, having read a number of things about it in the past few days. We have demonstrated our commitment to the designation of marine protected areas in the Southern Ocean. Earlier this year, the Government of South Georgia and the South Sandwich Islands announced one of the largest sustainable-use marine protected areas in the world, covering their entire maritime zone. This year we have developed a further proposal to designate marine protected areas in areas of the Antarctic peninsula that are currently covered by permanent ice.
The UK will also give its full support to the designation of marine protected areas in the east Antarctic and in the Ross Sea during the meeting of the Convention on the Conservation of Antarctic Marine Living Resources. The Ross Sea is one of the most biologically productive areas of the Southern Ocean. Therefore, as the noble Lord remarked, it is a potentially rich source of global protein. However, it must be fished responsibly and sustainably. That will require international collaboration in policing fishing activities—in which the British, of course, will play a full part.
A number of noble Lords raised the question of environmental emergency thresholds. There is no explicit threshold, either in the Bill or in the liability annexe, for what constitutes an environmental emergency. It is defined in Clause 13(3) as,
“an … event that results in, or imminently threatens to result in, any significant harmful impact on the environment of Antarctica”.
So ultimately it will be down to judgment as to what constitutes an environmental emergency. This is why Clause 8 is so important and is constructed to include a broader set of circumstances than simply environmental emergencies.
Lord Forsyth of Drumlean
I am sure that my noble friend did not mean to misquote the Bill but it does not actually say that. It does not say an event,
“that results in, or imminently threatens to result in, any significant harmful impact on the environment of Antarctica”.
It says, “an accidental event”. Could he deal with my point as to why the event is qualified by the word “accidental”?
Lord Wallace of Saltaire
Certainly. I will come to that briefly and I thank the noble Lord for his intervention.
A number of marine-based activities undertaken in Antarctica are currently covered by earlier, existing conventions such as the Convention on Limitation of Liability for Maritime Claims. However, those not covered by such conventions, particularly yachts or land-based operations, are not currently liable for pollution costs. That explains why this extends to the liability set of issues.
The noble Lord, Lord Forsyth, asked about non-accidental events. Sanctions can be brought under the Antarctic Act 1994 against those who are deliberately causing environmental damage in Antarctica and any person causing such damage will, by virtue of paragraph 1(5) of the schedule be subject to unlimited liability for costs incurred in responding to it. This reflects Article IX of the liability annexe. This is extending existing law to accidents where existing law already covers deliberate environmental degradation.
The noble Lord, Lord Greenway, asked about liability provisions. Paragraph 5 of the schedule ensures that no shipping operator can be held liable for the same cost twice. This means that liability cannot be sought for environmental clean-up under both the LMMC and the Antarctic Bill. If the environmental clean-up work includes vessel salvage, the operator cannot be liable twice under the salvage convention and the Antarctic Bill.
The noble Baroness, Lady Hooper, asked about UK engagement with the Antarctic Treaty Secretariat.
Lord Forsyth of Drumlean
I apologise to my noble friend. I expect that I am being a bit thick, but I still do not understand why this word “accidental” is included in the definition of what constitutes an environmental emergency. I understand the point that he makes about deliberate action which causes damage being covered by other legislation, but it is not clear to me why the definition within the Bill of an environmental emergency is qualified by this word “accidental”. There are events that could be an environmental emergency that would not arise from an accidental activity.
Lord Wallace of Saltaire
We are reaching the limits of my expertise on this issue. My understanding is that deliberate environmental degradation—mining, the setting up of flights and the sort of things that the noble Lord has been talking about—would be already be covered by the Antarctic Act. The intention here is to extend liability to cover increases in tourism and shipping and the extent to which accidents, collisions, sinking and so forth happen. This is an extension. Much of what the noble Lord is concerned about is, we understand, covered by existing law. Of course, if I have not given him a full explanation I will write to him. I do not in the slightest consider him thick: I consider him, like my noble friend Lord Greaves, a thorough scrutineer of all legislation that passes through this House. I intend that as a compliment.
The noble Baroness, Lady Hooper, talked about UK engagement with the Antarctic Treaty Secretariat. I am happy to be able to confirm that we have full and effective engagement with the Antarctic Treaty Secretariat in Buenos Aires. It has international organisation status within Argentina.
I assure the noble Lord, Lord Triesman, that Her Majesty’s Government do their best to maintain a relationship with Argentina that is effective for the Antarctic, which keeps that as separate as possible from the current and long-standing differences over the Falkland Islands. We do our best to maintain the difference as far as we can. This is, after all, an important multilateral issue in which a number of Latin American countries, most of all Chile, are involved.
The noble Lord, Lord Hunt of Chesterton, asked whether the Treaty parties were also talking about future risks. I confirm that the clause that he referred to in the Bill does not limit in any sense the Secretary of State’s powers and liabilities. Of course, we are concerned and we are talking with others about future risks to the Antarctic environment. The suggestion of improving the existing secretariat website to include this information is a matter for discussion with our treaty parties, not for this Bill. We are of course ratifying a negotiated international convention. The UK will consider the proposal of the noble Lord, Lord Hunt, in discussion with other treaty parties.
Finally, I can confirm to the noble Lord, Lord Triesman, that we, as with the predecessor Government, are entirely committed to vigorously defending the pristine character of this continent. We have demonstrated today that this is warmly supported across this House. We look forward to the passage and ratification of the Bill. This country is rightly proud of its Antarctic heritage and we want to continue to be proud of it.
We thank the noble Viscount, Lord Montgomery, for introducing the Bill. We look forward to its speedy passage through this House and ratification. This will help us to demonstrate continued UK leadership in the Antarctic treaty system. I am therefore delighted to be able to give the Bill the Government’s wholehearted support today and I encourage all noble Lords to do likewise.
Viscount Montgomery of Alamein
My Lords, I am most grateful to everyone who has spoken on the Bill. This has been an interesting and diverse debate. All noble Lords who spoke have come from different angles, so that it has been a particularly well balanced debate, which is as it should be.
I am particularly grateful to the noble Lord, Lord Triesman, for supporting it. To see him back on the Front Bench is very gratifying. He and I had many dealings when he was the Foreign Office Minister, so to see him back in action is a great pleasure.
I just want to single out and mention the speech by the noble Lord, Lord Forsyth. He recounted his amazing walk across the continent for which he raised a great deal of money for a worthwhile charity. I am even more gratified that I was a modest contributor to that cause. To hear him speak today about the experience was very interesting indeed. I will not summarise everyone else’s speeches. They were all very useful and complementary in the sense that they balanced each other out. I beg to move that the Bill be read a second time.
Presumption of Death Bill
Baroness Kramer
My Lords, I should like to open by thanking the many campaigners who have supported the causes that will see what I hope is a moment of success with this Bill: Mr Peter Lawrence, who is here today, has been a tireless campaigner; the noble Lord, Lord Boswell of Aynho, who drafted the original Private Member’s Bill that he brought before the other place some years ago and which is remarkable for its similarity to the Bill before us today—he did some extraordinary work in drafting that first Bill; John Glen, the Member of Parliament for Salisbury, who sponsored the Bill in the Commons and took it through that place successfully—he has been an important campaigner; the Justice Committee of the House of Commons, whose hearings and 12th Report of Session 2012 have been pivotal in developing the issues and convincing a wide number of political parties and the establishment to recognise that this Bill is needed and should be supported; and the All-Party Parliamentary Group for Runaway and Missing Children and Adults, chaired by Ann Coffey MP, which held hearings that again brought many of the key issues to public notice.
However, if I have to stress one group above all who have pushed forward the causes covered in the Bill, it is the charity Missing People, and again members of the staff of that charity are here today. The charity does extraordinary work with the families of both children and adults who are missing and for missing individuals themselves. The charity recognises that these provisions could make a big difference to people who suffer as family and friends go missing. I want also to thank the Ministry of Justice and the team led by Paul Hughes, all of whom have been very supportive by providing information that has enhanced our understanding of the whole process.
What does the Bill do? It applies to England and Wales similar legislation that already exists in Scotland and Northern Ireland. It creates a new court procedure and an associated process of authoritative registration. The court procedure enables a person with sufficient interest to obtain a legally binding declaration from the High Court that a person is to be deemed dead for all purposes, including the end of their marriage or civil partnership. If the Bill is passed, the High Court would make the declaration if it is satisfied that the missing person has died or has not been known to be alive for a period of at least seven years. The court also has the power to deal with the myriad consequential property-related issues that may arise as a result of the declaration. Why do we need the Bill? Around a quarter of a million people are reported missing each year. Thankfully, most come home or make contact, while a small number are sadly found dead. However, obviously this is not true for all. In 2010, the UK Missing Persons Bureau had on its records some 1,400 cases of people who have been missing for more than seven years.
The trauma for families and friends when a person goes missing is horrendous. As time passes without contact or information, some families conclude that the only possible answer is that their missing relative is “presumed dead”. After seven years they can start to take steps to resolve the legal affairs of that person, but without a body they have no death certificate, and without a death certificate a person is legally assumed to be alive. Currently, there are steps that relatives or interested persons can take. The MoJ has kindly listed the six procedures, each of which is a different legal process under which a person may be presumed dead just for the specific purposes of that procedure. You really could not invent a more bureaucratic and stressful system, one that often requires lengthy processes and extensive support from legal counsel. Both the Justice Committee and the APPG on Runaway and Missing Children and Adults, of which I am part, heard traumatic stories from families trying to find legal resolution. The emotional impact of accepting loss is hard enough without the added stress of a legal hunt-the-thimble, multiple applications, multiple different processes and multiple certificates.
The Bill resolves the problem by putting in place one procedure under which a family member or other relevant party can apply for a single presumption of death certificate which can be used for all valid purposes. The same certificate can be used to dissolve a marriage, dispose of property, close a bank account and so on. The court decision is entered into a register by the Registrar General for England and Wales. I should say that some of the existing procedures will remain on the books, as it were, so that people who want to seek presumption of death for perhaps only one narrow purpose will still have the procedures available to them. My honourable friend Lady Hamwee will explore some of those issues.
As I said earlier, similar systems have been in place in Scotland since 1977 and in Northern Ireland since 2009. Based on their experience, the number of declarations a year is expected to be between 30 and 40, so none of this is onerous for the courts. Similar legislation also exists in Australia and Canada and supports the notion that we are looking at something like 30 to 40 declarations a year. Of course, a person declared dead may suddenly reappear, and I believe this has happened once in Scotland. The Bill therefore has powers for the court to make revocations and when it provides the declaration, it can require the trustees to take out various forms of insurance, for example, to protect innocent purchasers of property or insurance companies which have paid out on presumed death.
I think that there can be no argument with what is in this Bill. Those who have read the debate in the Commons will recognise that it has very broad cross-party support and that every Member who spoke wished it speedy progress through this Parliament. But there can be an argument about what is left out of the Bill. Noble Lords will be well aware, again from evidence both to the Justice Committee and the APPG on Runaway and Missing Children and Adults, that the families and associates of missing people are often left in an intolerable limbo well before the seven-year mark is reached. Indeed, even at seven years, many families may not want to give up all hope and declare a loved one “presumed dead”. Because we recognise the plight of these families, the Justice Committee, the APPG and most of us campaigning for this Presumption of Death Bill have also been pressing for guardianship orders to be made available through the courts to protect the financial position of the missing person and his or her dependants at a much earlier stage. For example, relatives may need to access a missing person’s bank account to pay that missing person’s mortgage; or a business partner may need to sign new contracts or sell part of the business under an arrangement that would normally have required both signatures. There are many instances of this kind and they cause absolutely critical problems.
Let me quote from Peter Lawrence, whose daughter Claudia is missing, but who in his own struggles has taken on the cause of so many others in the same circumstances. He is here with us today. He has said:
“Claudia’s bank would not consider even moving any money from one account, a savings account, to her own current account to enable direct debits to be paid”.
Or indeed that, “These families”—the families of missing people—
“are plunged into emotional trauma, and they are trying to manage their practical affairs at a time when they are going through a scenario ... impossible to place yourself in”.
A number of people will have seen the quotes from Jane Dolby who has created the Fishwives Choir on the pattern of the Military Wives Choir following the death of her husband at sea. It was eight months before his body was found. During that period his wife could not get a death certificate and therefore could not access his bank account or claim benefits. She was left without an income and the Fishermen’s Mission gave her and her children emergency financial support to enable them, essentially, to survive. She has dedicated the first of the albums by the Fishwives Choir to the Fishermen’s Mission, but it illustrates the problems that so many people face.
While I regret that such orders are not included in this Bill, I recognise the complex work behind guardianship orders. The Government in their reply to the Justice Committee, which obviously raised and stressed these issues, argued that a detailed examination of the issue of guardianship orders is required and committed that,
“the Department will discuss with the Law Commission whether it would be willing to take on an investigation of this topic and make recommendations in the light of its findings. If the Law Commission is able and willing to take on this work, it will examine the issues carefully, consult widely, make recommendations and prepare such draft legislation … as may be required”.
My last information was that discussions with the Law Commission are still open and not yet concluded, and I hope that this debate will press the urgency of the issue on the Minister. In that context, I refer the Minister to the report of the Irish Law Reform Commission on exactly this subject, which was published this week, on 30 January. It is a very thorough report which has taken five years and quotes extensively from the UK experience as well as from the Justice Committee and the APPG on Runaway and Missing Children. The Irish Law Reform Commission also looked into the provisions already provided in Australia and Canada. It concluded and recommended that “an interim manager”—its name for a guardian—
“should have limited and specified powers to administer the affairs of the missing person for a period of up to 2 years, which can be extended for a further 2 years”.
We have the absolute irony that the Irish Law Reform Commission has produced its report based on a lot of the experience in the UK, and that, frankly, the UK Law Commission could largely lift all the work that it needs directly from its Irish counterpart. I hope that this will move quickly.
We all know that the best must not be the enemy of the good. All of us who have campaigned on these issues—a cross-party band—intend to keep up the pressure. I hope that this House will pass the Presumption of Death Bill in this Session. It is crucially important and is not just a first step but a significant step in and of itself. We all intend to be back in the future to legislate for guardianship orders. I beg to move.
Baroness Hamwee
My Lords, I speak today, but not because this Bill needs more advocates. My noble friend—and friend—Lady Kramer has explained the need for this Bill very clearly. I have to apologise to her as I do not think I have prepared to cover the issues that she thought I might cover. If anything does need covering, we can talk about it outside the Chamber, although I do not think it does. We have also had an indication from the Government, and those two factors should be enough. I speak today not just because of the importance of the issue of practical legal assistance for the families of missing people. That is something which impresses itself on everyone who learns of the problems, although it has to be said that few people know of the problems unless through personal experience or personal contacts they are brought up against them.
For me, this is also a matter of local loyalty. I was a councillor in 1986 when Suzy Lamplugh went missing and among the residents of my ward were her parents, Diana and Paul Lamplugh. I was a councillor when Janet Newman and Mary Asprey set up the National Missing Persons Helpline and in the area where Missing People, the successor organisation, has its offices. I am also a member of the all-party group to which my noble friend referred and took a small part in the work which has, among other pieces of work, led to this Bill.
One of the things which impressed me during that work was the evidence of Peter Lawrence, who has already been referred to, and I hope I do not get him wrong in saying what I am going to say. Mr Lawrence is a solicitor. Solicitors—and I am one—are well used to dealing with bureaucracy in the worst sense: the tram-lined thinking of banks, insurers and so on. However, Mr Lawrence was clearly more or less defeated—I hope that is not the wrong way of putting it—in trying to deal with his daughter’s practical affairs. The evidence that we heard was about the need for guardianship, to which my noble friend has referred. That is not in the Bill, which is a pity, but like her I do not want to delay what is in the Bill.
According to the all-party group report,
“it can be difficult for families to find knowledgeable, professional advice. Missing People told the Inquiry of how it is approached by families for information on presumption of death as there is no other source of help or clear information”.
I was struck during that work by a comment from the then chief executive of Missing People. He said that,
“we have ended up being the organisation that people turn to; that doesn’t mean we are any clearer than the families we talk to”.
Along with my noble friend, I want to pay tribute to Missing People. Its work is effective, imaginative and energetic. Perhaps most importantly, it is clearly trusted by the families who are affected and by all the other organisations that work in the area or that have any connection with the issues with which we are dealing today and with other issues related to missing people.
As I have said, the issue of people who have gone missing is high-profile in my local area. Perhaps it is less so elsewhere unless there is a particular instance but, as we have heard, the numbers are staggering, which means thousands of individual anxieties, heartbreaks and—what we are dealing with here today—frustrations. It seems that the Bill will almost achieve the impossible and come close to proving a negative, certainly more so than the rebuttable common law presumption. As I read the Bill, the court may well take on more of an investigative role than we are used to our courts dealing with in England and Wales, and it is right that it will be the High Court that will deal with these applications.
I used the term “frustrations”, but there must be something much closer to panic when a family suddenly loses its main wage earner. It occurs to me that by the provisions of the Bill we may find that there is scope for the prospect of an insurance payout, to take one example, being accessed and used as security for a short-term loan. I am very aware of the different attitude of banks many years ago. On the occasion of a family bereavement, the bank manager, whose name we knew, was prepared to be imaginative, co-operative and helpful very quickly, which is what families need when income is suddenly cut off. I hope that addressing these frustrations will prompt the institutions themselves —the banks, insurers and so on—to look imaginatively at how they deal with these issues.
I warned the Minister of two questions that I would raise today. The first relates to guidance which the Government indicated, in their response to the Justice Select Committee report, would be published. At paragraph 4, the response says that the Ministry of Justice,
“accepts the Committee’s recommendation. Straightforward, short and accessible guidance on procedures available under the present law will be published on the new single government website … later this year”.
That was last year, in 2012. However, I went on to the website to see if I could find that guidance and could not do so. It may be that there is guidance elsewhere and it may be that there are other places where it will helpfully be found but I should be grateful if the Government could give me any news on that.
Secondly, has guidance been produced on the operation of the Coroners Act, as it was hoped would be published last summer? Again, I have not been able to find it, and refer to the Government’s response to the Justice Committee’s report, which says:
“The Department acknowledges the limitations identified by the Committee but considers that where section 15 of the Coroners Act 1988 (or its successor provisions under section 1 of the Coroners Act 2009 when they are brought into force) applies it can provide a useful means to deal with the affairs of the missing person. The Department is working with the Missing Persons Bureau to finalise the guidance on section 15 and hopes that it will be published this summer”.
I hope that the Minister can give your Lordships some news of that.
Finally—and I apologise for not giving the Minister warning of this, but it is a less technical question—I realised last night that it will be possible for what will be Section 15 of the Act to come into force before Section 1. What will be Section 17 includes the power to amend the period of seven years to which Section 1 refers. Can the Minister share with your Lordships the Government’s intentions or ideas about this? It may be that this is thought to be a useful backstop in case experience shows that the period should be changed, but considering the order in which things might happen prompted me to ask whether the Minister is aware of any intention to make any change quickly.
I have a fairly obvious final question. Can the Minister share with your Lordships any information about when the Bill generally will come into effect in the sense of being completely operative? We all know that there will be regulations to be dealt with—we will not see Royal Assent one day and full operation the next—but I hope that we will hear some news today of the hopes, which we all share, of seeing the provisions of this Bill in full operation very soon indeed.
Baroness Barker
My Lords, perhaps I may very briefly draw to your Lordships’ attention a bit of information about the campaign that has been run by Missing People, which has got the Bill to this point.
Missing People is a very small organisation. For the past two years it has run a missing people campaign. It has taken to doing that digitally via Twitter. In the first year of the campaign the organisation took 48 people who were missing and over 24 hours a team of people sent out Twitter messages about that person. The teams continued to work on each person for four hours. Missing People has some very well known celebrity supporters such as Victoria Beckham and Stephen Fry; they did that too.
The net effect of the campaign was that the issue was raised. It trended on Twitter and there was an awful lot of traffic to the Missing People website, and I believe it generated some income. But the really important thing is that Missing People managed to find at least six of those 48 missing people. That has set a completely new standard in charity campaigning. The way in which, with comparatively few resources, Missing People has managed to achieve not just its purpose as a charity but the legislative advances that we are going to help it with today, as well as raising awareness within the general public of these technical and difficult issues, is truly commendable. I encourage all noble Lords to go and look at the Missing People campaigns.
Lord Rosser
My Lords, I thank the noble Baroness, Lady Kramer, for explaining the purpose and provisions of the Bill. As she said, the number of people who are reported missing each year runs well into the hundreds of thousands. While most disappearances are resolved within a short period of time, a small but significant number are not. Eventually some families accept that their relative is missing, presumed dead.
Currently, families can expect to wait at least seven years before a court might assume a missing person to be dead, but that will not resolve all the many outstanding issues. The emotional trauma in itself can be considerable, but in England and Wales the situation is made much worse by the difficulties that are faced by families as they attempt to resolve their loved ones’ financial and legal affairs. It is difficult to register a person’s death or obtain a death certificate in the absence of a body.
Without a death certificate, families have to struggle to prove that their relative has died: for example in order to administer their estate, dissolve a marriage or claim benefits and life insurance. This obviously creates a number of problems and sometimes acute financial hardship for surviving spouses or partners. For example, the property of a missing person cannot be distributed in the way it would if death could be confirmed because there was a body.
Often separate legal processes have to be pursued to resolve different issues, which add to the frustration, bureaucracy, delay and costs. Similar issues are also faced by institutions that require legal documentation before they are able to release a missing person’s assets, and by agencies that have a part to play within the system.
As has already been said, a simplified and consolidated process is already in place in Scotland and Northern Ireland, and this Bill seeks to introduce a presumption of death procedure in England and Wales based on those in place in Scotland and Northern Ireland. Under the arrangements provided for in the Bill, families would need to go to court only once to resolve their relatives’ affairs and receive a certificate of presumed death, which would act as the equivalent of a death certificate.
As has also already been said, it is anticipated, based on experience in Scotland, that there will be some 30 to 40 declarations of presumed death a year in England and Wales. The High Court will make the declaration if it is satisfied that the missing person has died or has not been known to be alive for at least seven years.
Of course, the provisions of this Bill will not solve all the problems that families can face when a family member goes missing and remains missing, since such a person cannot be presumed to be dead until a significant period of time has elapsed. In the mean time, the financial affairs of that missing person can effectively be destroyed, if bills or insurance premiums are unpaid and goods or property are repossessed, with dependants unable to access the financial resources of the missing person to address the situation and protect themselves.
In its report, the House of Commons Justice Committee also recommended that legislation be introduced to provide for a system of guardianship orders, which would allow for the administration of the missing person’s property in his or her best interest, if he or she has not returned after a few months, as well as support for dependants. The noble Baroness, Lady Kramer, has explained the reasoning behind not including such a provision in this Bill, but it does mean that the Bill does not go far enough, despite being a good start. Perhaps the Minister could say, as he has already been asked to, whether the Government plan to bring forward legislation on this issue of guardianship.
The previous Government committed to working with the campaign group Missing People to bring forward legislation, and that organisation has welcomed this Bill. We will seek to play our part to ensure that the Bill proceeds as quickly as possible into law.
Lord Ahmad of Wimbledon
My Lords, the Presumption of Death Bill introduced by my noble friend Lady Kramer was very well supported in the other place. I pay tribute to her sterling work in this area, and that of my honourable friend John Glen, the Member for Salisbury.
The Bill is small but important and I welcome the general support across the Chamber for what it is intending to do. As many noble Lords have acknowledged, it will bring practical benefits to the people left behind when a loved one disappears and is thought to be dead, and help to resolve the uncertainty this creates for a family.
If enacted, the Bill will achieve the same result as the legislation on presumption of death that the Government promised to introduce, when legislative time permits, in their response to the report of the Justice Committee on the presumption of death in July last year, which my noble friend Lady Kramer referred to. It will therefore come as no surprise to your Lordships that the Government wholeheartedly support this Bill.
At present, the law of England and Wales provides a number of procedures that can be used by those left behind if they wish to establish that a missing person is to be deemed to be dead. The problem is that some of these procedures, as has been illustrated by several noble Lords, can be used only in certain circumstances and at times have very limited outcomes, meaning that several procedures might have to be followed in any single case. This demonstrates the challenge, as my noble friend Lady Kramer highlighted so eloquently.
One example will suffice to illustrate the problem. One of the procedures is the “leave to swear death” procedure under the non-contentious probate rules. This procedure will open the way to administering the property of the missing person as if he or she were dead. However, it will not dissolve the missing person’s marriage or civil partnership. A separate procedure must be followed for that purpose. As has been acknowledged by the noble Lord, Lord Rosser, as well as by other noble Lords, creating a single, general-purpose presumption of death procedure to overcome this problem may not sound terribly significant, but it is significant because of the human cost of the present law. There are many case histories that we can cite in this respect, including those recorded by the All-Party Parliamentary Group for Runaway and Missing Children and Adults and by the Justice Committee in their respective inquiries in another place.
In the interests of brevity, I shall reflect on just one case, that of Jeremy Hoyland, who went missing in a jet ski accident off Bali in October 2008. His body has never been found. Media reports make clear the practical and emotional difficulties faced by his family until a death certificate was finally obtained in only May last year. His wife, Jacqui, is reported as saying that it was the issue of the death certificate that finally enabled her to put her husband’s affairs in order and that the absence of such a certificate had led to difficulties with everyday issues such as paying a mortgage and operating bank accounts in her husband’s name.
Of course, whatever legal procedures are available—and let us park the missing persons issue for a moment—we must not forget the anguish and loneliness felt by anyone who loses a loved one and the barriers that they have to face. They are going through one of the most emotional times in their life. Let us then consider the trauma that is added by that dimension of the missing person, at a time when one needs an easy process to overcome that trauma. Never can that loss be replaced. Never, too, perhaps, can closure be achieved, but the role of the law should at least be to assist in that process.
The Presumption of Death Bill seeks to address this by creating a single procedure that will provide a legally binding statement that a missing person is to be presumed to be dead for all purposes. This will simplify and clarify the law and thereby improve the position of people who have to deal with the property and affairs of a person who has disappeared and is thought to be dead.
In brief, the Bill provides that persons with a sufficient interest can apply to the High Court for a declaration that the missing person is to be deemed to be dead for all purposes. If the court is satisfied on the evidence that the person is dead or has not been known to be alive for a period of at least seven years, it will make the declaration and send it to the Registrar-General for England and Wales, who will enter the required details in a register of presumed deaths. This register will be searchable, and certified copies of an entry in the register will be legal proof of the relevant person’s death for all purposes and against all persons.
The declaration of death will have consequences for the ownership of the missing person’s property and may have consequences for the ownership of other property. The Bill therefore gives the court power to deal with property issues at the same time as the declaration. We expect that, on average, between 30 and 40 declarations are likely to be issued in England and Wales annually.
The deemed death will therefore be for all legal purposes a real death. However, unlike a real death, a deemed death can be undone by the person presumed to be dead returning. The Bill deals with this possibility by making provision, as my noble friend Lady Kramer mentioned, for variation orders that can revoke or amend declarations of death. These revocations or amendments will be notified to the Registrar-General and the appropriate amendments made to the register. Given the rigour of the initial procedure, we expect variation orders to be rare. In Scotland, I understand that there has been only one case of a reappearance of a person presumed to be dead under the Presumption of Death (Scotland) Act 1977.
None the less, the making of a variation order could make it necessary to alter dispositions of property made as a consequence of the original declaration of presumed death. The court is therefore given wide powers to deal with these situations. These powers are not, however, absolute. The provisions of the Bill on this subject are relatively complicated, but I will mention two of the most important limits on the power of the court to undo transactions made as a consequence of the original declaration of presumed death.
First, if more than five years have passed since the making of the original declaration of death, the court can make further orders in relation to property only in exceptional circumstances. Secondly, the court’s order cannot in any event provide grounds to challenge an acquisition of a property made in good faith and for value. Of course, this means that a loss will fall on someone else, but this is inevitable where there is property to be claimed.
The remainder of the Bill is ancillary to these core provisions. I shall mention some of the more important ones. First, rules of court and registration regulations will have to be made to specify the detail of the procedures under the Bill. The detail of the rules is still to be settled, but on the basis of what is required under current procedures and under equivalent rules of court already in force in Northern Ireland it is reasonable to assume that full details of the applicant, the missing person and other persons, including insurance companies, interested in the application, as well as confirmation of the required advertisement of the application, will be required by the court.
Secondly, the court will have power to compel the provision of information where the information is necessary to dispose of the proceedings. Thirdly, although some of the existing procedures will be repealed, others will remain available. Finally, the Bill provides that certain time periods specified in the Bill, including the period of seven years that may form the basis of making a declaration of presumed death, may be altered by order made by the Secretary of State. However, I say in response to the question asked by my noble friend Lady Hamwee that there are no plans to exercise this power at present.
In short, the Bill provides a robust court-based procedure to establish that a person is to be deemed to be dead and an authoritative registration process to record the outcome in a readily accessible fashion. The absence from the law of England and Wales of such a procedure is perhaps all the more surprising given that the law of Scotland has for many years provided one, as my noble friend Lady Kramer pointed out, and that Northern Ireland followed suit in 2009 with very similar legislation. My noble friend’s Bill will therefore bring the law in England and Wales broadly into line with that in Northern Ireland and Scotland.
I thank my noble friend Lady Hamwee for giving me early notice of the questions that she was going to ask, and I hope that I have given her satisfactory answers. I always welcome her input not just on this issue but across a wide range of issues. In response to her question on published guidance, I can confirm that, as recommended by the Justice Committee, the Ministry of Justice and the Missing Persons Bureau have published guidance for police and, more importantly, the families of missing people on existing procedures for a person presumed to be dead. This guidance is available on the Missing Persons Bureau website and across government websites. I recognise that we need to ensure that relevant links appear on different websites. If we are meant to be easing a process here, we need to ensure that all relevant websites across different parts of government and interested bodies are linked up. I shall certainly follow up that issue.
My noble friend asked about general guidance on the operation of Section 15 of the coroners Act, which it was hoped would be published last summer. This forms part of the guidance to which I have already referred. The Bill was introduced in the other place by my honourable friend, the Member for Salisbury. He did this before the Government responded to the Justice Committee but after the noble Baroness introduced her own Presumption of Death and Provisions Relating to Missing Persons Bill. That Bill, which is in part very similar to the Presumption of Death Bill that is now before your Lordships, also includes provisions on the related but separate topic of the guardianship of a missing person. The Government are very grateful to my noble friend, who I know is a long-term supporter of better provision for missing persons and those left behind, for both her dedication and pragmatism and for taking up this Bill, introduced in the other place by my honourable friend, the Member for Salisbury. I appreciate, of course, that this in no way indicates a lessening of her support for legislation on guardianship.
I would like to comment very briefly on that particular issue. As she has already enlightened the House, there have been the Irish announcements this week. We welcome those and will study them carefully. She is right that discussions are ongoing with the Law Commission. I assure her that when I knew I was speaking to this Bill and looked into it, I pressed officials in the Ministry of Justice to assist us in trying to reach the conclusion of those discussions. Although we have not yet reached a conclusion, we are close to it, and I will certainly write to her in detail about what the Government are currently aiming to do, particularly whether they plan to take forward the Law Commission’s proposals on guardianship. As the noble Lord, Lord Rosser, pointed out, as did other noble Lords, this is a key part of this issue on guardianship. The Government know this and we hope, after studying both the outcome that we have seen in Ireland and our discussions with the Law Commission, to come forward with further proposals in this regard.
My noble friend Lady Kramer also mentioned the Fishwives Choir. I have yet to hear the single, but I pay tribute to the many who lose loved ones at sea and often do not find the deceased’s body. Here again, we see an example of communities taking charge—bringing life to an issue. I am sure the whole House joins me in wishing the Fishwives Choir well, both in the release of their single—I do not know whether it will get to number one, but I am sure that noble Lords will be reaching out to download it—and, on a more serious note, in the vital issues they raise.
In conclusion, I once again pay tribute to the people involved in creating this Bill in the first instance. First—I have already said this, but I will do so again—I pay tribute to my noble friend Lady Kramer for her continued dedication in this regard. I also pay tribute to my noble friend Lady Barker, who has eloquently highlighted the excellent and sterling work done by the charity Missing People. I join all noble Lords in commending its work. This charity has campaigned long and hard and knows better than most, perhaps, the problems faced on a daily basis by ordinary people coping with the disappearance of a loved one.
It would be remiss of me, which I am sure noble Lords will acknowledge, not also to pay tribute to another noble friend of mine, my noble friend Lord Boswell. In his previous incarnation as the honourable Member for Daventry, he introduced a Private Member’s Bill in terms that were similar to those of the Bill now before us. I am delighted that we have received support for this Bill from across the House. I pay tribute to my noble friend for bringing this Bill forward. Ultimately, in coming together, I am sure we all share the sentiment that we hope this will make life that much better—just slightly better, I acknowledge—for those caught up in the often tragic circumstances of unexplained disappearances. I therefore wish this Bill a speedy and successful passage through your Lordships’ House.
Baroness Kramer
My Lords, I rise to say how pleased I am with the sentiments that the Minister has just expressed. I also pay tribute to those on the opposition Benches for their support. This debate might have looked slightly unbalanced from the Back Benches, but I assure the House that there are numerous supporters of this Bill from all parties and all across the House who think that somehow 1 January was jinxed. A number of them looked at their diaries and said that no matter how much they wanted to, they could not actually come to speak.
Baroness Kramer
Sorry, 1 February. That is part of the problem right there. So 1 February is jinxed, but we have been assured that that support is strongly felt, and it is very much appreciated. I have to say to the Minister that I thought he made a very good case for guardianship orders as he talked about the plight of those who have just found that family members are missing. However, I will not press that issue; we will continue it outside this context. So I say thank you to everybody who has participated and ask the House to give this Bill a Second Reading.
Mobile Homes Bill
Lord Best
My Lords, it is a great privilege to bring this Bill before your Lordships. The Bill aims to end to some disgraceful practices which have been widespread in an industry with which few of us are familiar. If enacted, it will make a huge difference to the lives of thousands of largely forgotten people who currently live with the fear of harassment and ill-treatment at the hands of some unscrupulous bullies. Credit for this legislation goes to a number of people to whom we should all be very grateful. First, there is the noble Lord, Lord Graham of Edmonton, who has campaigned tirelessly in support of those living in mobile homes or park homes for over 30 years. I hope that today represents a gratifying milestone in a long journey he has taken to achieve justice for this group.
Then there are the Members in the other place who have also fought long and hard on this issue, including Annette Brooke MP and the other members of the Mobile Homes All-Party Parliamentary Group chaired by Christopher Chope MP. I think that a special tribute is due to Grant Shapps MP who, as Housing Minister, took up the challenge presented by the problems facing mobile home owners and, following an extensive consultation process by his department, really got behind the formulation of this legislation. However, none of these efforts would have brought us to the positive position we face today were it not for Peter Aldous MP, the honourable Member for Waveney, who used his place in the ballot for Private Members’ Bills to sponsor this Bill on mobile homes. Although I was hugely impressed by the unanimity of support for this Bill across party lines, piloting a Private Member’s Bill through the other place can represent an unpredictable and hazardous task. A great many Private Members’ Bills have fallen along the way, so I congratulate Peter Aldous who, with his experience as a chartered surveyor and his local knowledge as a constituency MP, so assiduously steered this Bill to a happy conclusion in the other place.
I must make special mention of the people living in mobile homes, who themselves have fought long and hard to achieve wider recognition for the problems that they face. I am personally grateful to Brian Doick of the National Association of Park Home Residents, who has been advising fellow owners on a voluntary basis for more than three decades on these matters and who kindly showed me around a number of sites and introduced me to many other residents; he has been a stalwart in all the campaigns for changes to the law in this field. I know that many others have also done sterling work, including the Independent Park Homes Advisory Service, the Park Home Owners Justice Campaign, the National Park Home Owners Congress and other resident associations and alliances. My final congratulations and appreciation go to the hardworking civil servants in the Department for Communities and Local Government, who have accumulated considerable expertise on these matters and have done sterling work in crafting the Bill now before us.
Not all noble Lords will be familiar with the mobile homes that are the subject of this Bill. These are static, immobile homes, often called “park homes”. They are not holiday homes, but provide permanent, residential, owner-occupied accommodation, mostly for retired individuals and couples. It is estimated that there are 85,000 park homes accommodating approximately 160,000 people on 2,000 sites. Homes may be worth anything from £25,000 to, I gather, £300,000. They are grouped together on pitches on land originally made available, very often, by a farmer who retained ownership of the site and provided services—looking after paths, drains and the supply of utilities, et cetera—in return for a combined ground rent and service charge, or pitch fee. As well as this revenue, the site owner is entitled to 10% of sales proceeds whenever one of the park homes gets sold.
At best, these mobile home sites have been described as “little paradises”, often in an idyllic country setting with a friendly site owner and a strong, mutually supportive community. But over recent years many of the original site owners, or their heirs and successors, have sold up and highly undesirable purchasers have taken their place. In these cases, residents have been exposed to exploitation in a number of ways: services are not undertaken, with drains left blocked; pathways are impassable; street lighting is out of action, and so on. Meanwhile, service charges or pitch fees are inexorably increased. Exorbitant fees are added to charges for Calor Gas and other brands of LPG, for use of a gas meter or for other supplies.
Worst of all, owners who want to sell have seen the sale blocked by the site owner, who can invoke the “approval of the buyer” rule. This sale-blocking takes the form of the harassment and intimidation of park homes residents by rogue site owners, who can make tens of thousands of pounds’ profit in these circumstances. The aim of the unscrupulous site owner is to prevent the mobile home being sold to anyone other than himself. Various tactics are deployed by the site owner to acquire these properties for trivial sums, often on the pretext that the mobile home is virtually worthless because of its age and condition. The site owner then resells for an enormous profit or replaces the existing home with a smart new version, which can be installed for a fraction of the new sale price.
When prospective buyers meet the site owner as part of the process of that owner approving any new purchaser, rogue site owners block the sale by scaring potential buyers, perhaps by telling them that the home is defective and will need to be demolished or that the site is to become a Gypsy site, with animals free to roam. He may leave piles of rubbish outside the home or even parade his own criminal background, all to deter any purchaser. In other cases, the whole of a park home site is worth more for redevelopment than in its current use and the site owner has sought gradually to acquire all the mobile homes—using every conceivable ploy to persuade current occupiers to leave—so that he can sell the land with vacant possession.
The Trading Standards Institute, which gives regular reports on these nefarious activities, talks of a “large number of cases” where unscrupulous operators, in pursuit of obscene windfall profits, have exploited the piecemeal regulatory framework. The institute illustrates the problem with an example from Cornwall’s trading standards service, which has pursued operators named Small who own approximately 17 park home sites. Other site owners are even bigger businesses, controlling up to 40 sites. What was once a cottage industry now has a turnover in excess of £1 billion per annum, with legal advisors and accountants able to exploit the many loopholes in the current law.
Can this Bill end all these malpractices? Can it drive out the gangsters and the rogues from this industry and restore the reputation of the decent, law-abiding site owners who continue to provide a good service? It can indeed go a very long way to ending the current exploitation of innocent victims. Let me spell out its key provisions.
First, the Bill recognises that local authorities are the agencies best placed to insist on and enforce decent standards of behaviour and performance by site owners. Here, I declare my interest as president of the Local Government Association. The Bill gives local authorities proper incentives and powers to require good practice by the owners of sites, while protecting the rights of those owners with proper provision for appeals against local authority decisions.
Currently, local authorities have to license park home sites but in reality this has been little more than a formality and, in any case, hard-pressed local authorities have faced a heavy financial disincentive to get involved with these cases. The Bill makes licensing a meaningful arrangement, requiring standards to be met. An annual fee will be required from the site owner, which is to be set by the local authority but is likely to be on average around £1,350 per annum per site, to pay for the council’s costs of administration. There will be serious sanctions where the terms of the licence are breached. If the site owner is aggrieved by the local authority’s actions in this regard, they can take the matter to the Residential Property Tribunal, which is given new powers in the Bill. Putting local authorities centre stage and giving them the resources to do the job is likely to make a significant difference to what goes on at these sites.
Clear new procedures will govern drawing up and maintaining the site rules for each park home site and the level of, and increases to, the pitch fees for services provided by the site owner, in place of the current irregular and often informal arrangements, which are open to abuse. In the case of disputes, the site owner will be subject to appeals to the Residential Property Tribunal, which has been doing good work in this field and whose powers are extended by this Bill. Clarity, transparency and fairness will be the watchwords. Local authorities will also be able to compel site owners to carry out necessary works to fulfil the obligations covered by their licence, and to insist on immediate action by serving notices requiring compliance. If work is not undertaken, the local authority can organise it and recover the costs from the site owner.
In relation to sale blocking, the aim is to prevent the site owner disrupting the sale process. This is best achieved by removing the direct contact that currently takes place between the obstructive site owner and all prospective buyers. The Bill sets out that two months after enactment, irrespective of what is said in the existing agreement between the site owner and the resident, the position of the site owner will change dramatically. There are two aspects to this change. A distinction has to be made between the position for existing occupiers and for those who have bought from existing occupiers. For the latter, when they come to sell, the site owner will have no say at all in the process. For existing occupiers with agreements in place, the position is slightly different.
There were worries that if existing agreements were subject to too much change, objections could be made that the legislation was retrospective or that it might offend the human rights of park owners—including, of course, blameless park owners—provoking the ire of those in another place who could have impeded its passage. However, this does not mean that the Bill does nothing to overcome problems of sale blocking for existing park home owners. On the contrary, the position will change significantly after enactment of the Bill: the site owner will no longer be involved in meeting any prospective purchaser nor is the owner’s permission required to assign the agreement when the sale is about to be completed. The only information they will be entitled to receive about potential buyers is their name and, if the site has rules, certain information to be prescribed in regulations. For example, if the site is exclusively for those over pensionable age and that is clear in the site rules, it may be legitimate for the site owner to require information on the buyer’s age.
If a site owner wants, for any reason, to block a sale, he will be able to do so only by going, within 21 days, to the Residential Property Tribunal, and only on grounds prescribed in regulations by the Secretary of State. If the RPT finds the site owner guilty of deliberately and unnecessarily holding up the sale to the detriment of the homeowner, it can award compensation.
In terms of legal redress, as from February 2014 when the licensing provisions come into force, magistrates’ courts will—assuming that Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has been brought into force—have the power to impose unlimited fines for failure to comply with licensing requirements, including failure to carry out works under a compliance notice. If the local authority does the works in default, its costs will be recoverable from the site owner and, until paid, will be a charge on the site owner’s land.
Meanwhile, a new offence is introduced by the Bill—that of knowingly making a false statement with reasonable cause to believe that this will have the effect of causing a person who is considering whether to purchase or occupy a mobile home to decide not to do so. This will also carry an unlimited fine, six months’ imprisonment or both. In other words, sale blocking could lead to fines of tens of thousands of pounds and a jail sentence. These are tough measures intended to stop and deter bad practices.
What of the omissions in the Bill? What are the additional legislative changes that have been recommended by others, for example in the excellent report of the Communities and Local Government Committee of last June and the very helpful Consumer Focus report, Living the Dream, of last October? The two areas that deserve further action are, first, the requirement for site owners to pass a fit and proper person test; and secondly, for measures to ease problems of fuel poverty and exploitation in supplying fuel on park home sites.
In relation to the opportunity to refuse a licence for an unfit operator, for example those with a criminal record and/or those who have been convicted of offences specifically relating to their position as owners or managers of a site, the Communities and Local Government Committee was clear that a fit and proper person stipulation should be introduced. The Bill gives powers to the Secretary of State to introduce by way of secondary legislation just such a requirement. Regrettably, there are ways in which devious operators can hide behind a network of companies or switch the ownership and management of parks between family members. Establishing the true position and policing it would not be a trivial matter. The Government have made clear that they will not impose a duty to instigate and enforce a requirement for the manager of a site to be a fit and proper person in the immediate future, but that this provision in the Bill will be used if it becomes clear that this is an essential ingredient in improving the industry. The expectation is that that Secretary of State, if this seems the way forward following a review in 2017, will use the new power and it is an important component of the legislation.
In relation to issues concerning energy efficiency and fuel poverty, mobile home owners are in a difficult position. The insulation and heating standards of these dwellings are low and the new Green Deal measures do not apply to park homes. Measures outside the Bill are being pursued with the Department for Energy and Climate Change but, sadly, cannot be wrapped up in this Bill. However, I know that reforms are being taken forward in other fora, not least by Peter Aldous MP in the other place.
The Bill does not end all the deficiencies in the current arrangements for protecting and supporting park home owners, but it goes a very long way. It is a tribute to all those who have devoted endless days, weeks or even years to combating unscrupulous site owners who, until now, have been able to get away with atrocious behaviour. The Bill is a very fine example of the way in which Parliament can seek to right a wrong, end an injustice and secure a better life for many thousands of households. I strongly commend it to your Lordships. I beg to move.
Lord Cormack
My Lords, I follow the noble Lord, Lord Best, with great pleasure. I endorse all that he said. We are very much in his debt for piloting this Bill through your Lordships’ House. I have had a very long association with mobile homes. I shall say in parenthesis that my only criticism of the Bill is its title. I wish it were the Park Homes Bill.
I have a long association with park homes. At one stage, I was told that there were more sites in my constituency of South Staffordshire than in any other constituency in the country. I had many long and agreeable conversations with my friend the noble Lord, Lord Graham, when we used to meet to talk about the plight of the home owners. This is the thing that we have to underline in this debate time and time again: we are talking about home owners, people who have invested, sometimes their pension lump sum, sometimes the product of a lifetime of saving, in a modest home in the country. Some of these homes are quite palatial, but most are modest, scrupulously clean and very well looked after. Their owners take great pride in them. There were no communities in South Staffordshire that were truer communities than the park home sites. In some of them residents and owners spent hours every week making sure that not just their own gardens were tidy, precise and attractive but that the whole site was beautifully kept.
For the first 30 years of my 40-year membership of the other place, I had very few complaints from owners of park homes about the activities of site owners. Then in the last decade of my membership of the other place, I had a very great number of complaints about two or three unscrupulous owners in particular, whose practices not only verged on, but sometimes became, criminal. The noble Lord, Lord Best, spoke of intimidation. Intimidation can take many forms. The knock on the door in the night was not unknown, with no one there when the door was opened. Dogs, rather fierce ones, prowling around were not unknown. The blocking of sales, which the noble Lord, Lord Best, referred to, was quite frequent, an appalling exploitation of the provision by which the park home owner is able to veto the prospective purchaser. There were so many other things. The noble Lord, Lord Best, talked of drainage not being repaired and of excessive fees being charged for fuel. I know of one site called Silver Poplars. Many of the trees around it were, not surprisingly, poplars. In the course of one particularly disturbing weekend, most of them were chopped down. The anguish and distress caused to the home owners at the despoliation of their very attractive rural environment was palpable.
These are people who, for the most part, want nothing more than to live a tranquil life in a place of quiet and tranquil beauty without being interfered with by anyone. The way in which some of these owners behaved was such that it became absolutely necessary for important legislation to be produced. Of course, the noble Lord, Lord Graham, and I go back a long way. We remember the noble Lord, Lord King of Bridgwater, introducing the first Bill many decades ago. It was the beginning of the recognition of the need for some form of regulation, but the problems that we talk about today did not exist then and the provisions of that Bill are not adequate to deal with them. We now need an Act that can be enforced and can make these people—and let us stress that they are still a minority of site owners—realise that what they are doing will land them in very deep trouble indeed.
I know that in South Staffordshire there are still many owners. Indeed, the council owns a very good site called Hinksford. There are many sites where the owners live in the most amicable relations with the home owners—that is good and as it should be. But these few people have given such extraordinary anguish to so many home owners that they have to be dealt with. I am delighted to know that my noble friend Lady Hanham, who will be replying to this debate, has already indicated her sympathy for what we seek to do.
Of course, as the noble Lord, Lord Best, indicated in his closing remarks, there are still problems that will have to be solved in future. The Bill is not the answer to every conceivable problem. There will be some unscrupulous people who will seek loopholes in this legislation, and may be successful in so doing—if they are, we will have to deal with them. It is not right that a particular group of home owners in our country should be treated as badly as Rachman treated his tenants all those decades ago. These are the Rachmans of the mobile home world; they do not deserve a place in any civilised society—they deserve to be hounded out of what they are doing, to be fined unlimited sums and to be put in jail for the way in which they disturb, despoil and ruin the lives and environment of so many decent, ordinary people, who want nothing more than to live in peace with their neighbours.
As your Lordships will have gathered, I am a passionate supporter of this Bill. I hope that we can reach the stage where we talk more of park homes and less of mobile homes. In his opening words, the noble Lord, Lord Best, indicated that they are static—they are not the sort of homes that are dragged around the country—and are not to be confused with those taken from site to site. They are permanent dwellings, owned by those who live in them, who deserve all the rights and protection that the owner of a long lease deserves and, for the most part, enjoys. I hope that this day marks the beginning of a new chapter for those living in those homes and that the Bill speedily goes on to the statute books—and that there will be no delay about its enforcement, or complications arising therefrom. The noble Lord, Lord Best, talked about April next year. I hope that in the next decade what park home owners like dear Mr Joyce in my former constituency—
Lord Cormack
Yes, Ron Joyce, known to the noble Lord, Lord Graham. I hope that what they have struggled for comes to pass. I was particularly proud and pleased when they formed one of the first park homes associations and I became their patron. It was an office that I was delighted and honoured to hold, because they were good people who deserved the support of those of us responsible for these things. Any society that is to call itself civilised must have regard for those who are most vulnerable and least able to create their own form of protection. In this Bill, we have gone a long way to doing that for them. I pay tribute to Peter Aldous for all that he did in the House of Commons and all the Members there, on both sides of the House, who gave it support, and all colleagues in your Lordships' House who are here today to see the Bill go on to its next stage in its progress towards its statute books. The noble Lord, Lord Best, has performed a signal service for us all, and we are grateful to him.
Lord Whitty
My Lords, I join the noble Lord, Lord Cormack, in congratulating the noble Lord, Lord Best, on presenting the Bill in this House in a very clear and cogent way. I also congratulate Peter Aldous and all those, such as the noble Lord, Lord Cormack, himself and, above all, the noble Lord, Lord Graham of Edmonton, who have pursued this cause for many years.
The Bill will give park home owners—the 160,000 people who live in park homes—greater benefits and security. We have to remember that most of these home owners are elderly. The majority are over 60 and probably about 25% are over 75. I remind your Lordships that this is roughly the same demographic as the membership of the House of Lords. Therefore, we should particularly empathise with them. In the nature of things, they are in a difficult balance of power situation with the site owner and site manager, particularly on an individual basis, and are open to potential exploitation and abuse. As the noble Lord, Lord Cormack said, it is wrong that the law treats these people so much less favourably than other home owners and leaseholders. This Bill goes some way to rectify that.
We need to recognise that there are hundreds of good, effective, decent site owners and site managers around the country, but we also have to recognise that there is a minority of unscrupulous site owners. People such as the noble Lords, Lord Cormack and Lord Graham, who have been involved in this matter for some time, say that that minority is increasing and has recently increased significantly. The organisations involved in this area even give them the acronym USOs to try to define them.
There have been several reports on this issue. The report of the CLG Select Committee in another place has been cited, as has the TSI report. My interest in this matter was brought about by the reports produced by Consumer Focus, with which I was formerly connected, and Consumer Focus Wales. Incidentally, a parallel Bill is going through the Welsh Assembly. Those reports drew attention to the situation in which these home owners find themselves, which comprises a background of a mishmash of legislative and regulatory measures and differing and often inconsistent application and enforcement by different local authorities. The report that applies to England identifies how widespread these difficulties are and states that roughly 25% of all park home owners had experienced severe problems in relation to resale and an even higher proportion had concerns about safety, maintenance, security and the way in which they were treated by site owners.
I give just one example of the way in which site owners can hugely exploit park home owners and their beneficiaries when a sale occurs. A park home owner in east Sussex used his life savings to buy his home for £72,000. He then spent the rest of his savings on improving that home. When he died only four years later, he left his home to his two daughters, who wished to sell it. However, before they put it up for sale, the site owner approached them and said that he would take it away for them for £1,000. Less resilient inheritors might not have understood the position and gone along with that. However, the man’s daughters put the home on the market, initially for £60,000, as the market had obviously gone down in the interim, and were prepared to sell for £50,000. But even at that point when they had a buyer, the site owner stepped in, spoke directly to the buyer, told him that the recently renovated home was subject to dilapidation and was waterlogged, which was untrue, and that he would be foolish to pursue the sale. He clearly did that to a number of potential buyers but eventually one came forward and the home was sold several months later for £37,000, of which the site owner received 10%. Therefore, the home was sold for significantly less than half the purchase price that had been paid four years previously. That is a typical case, but there are worse examples where sales do not go ahead at all and where the site owner effectively obtains the home for a mere pittance for his own use and onward sale.
Some of these abuses, as the noble Lord, Lord Best, spelt out, will be dealt with by the Bill. Clauses 1 to 4 will improve the licensing system. It is important that local authorities take this seriously, as the noble Lord, Lord Best, said. Clause 10 will deal with a site owner’s ability to control and intimidate and Clause 12 will deal with harassment. Other clauses are equally important, such as Clause 9, which deals with site rules. The ability of local authorities to intervene and require a site to be improved is also important.
However, probably the most important clause—and one which could probably do with improvement, although we may not be able to do so within the timetable of this House—is Clause 8, which deals with the requirement to be a fit and proper person. The fact that this is going to have to be turned into reality by secondary legislation—and not immediate secondary legislation either—is a bit of a weakness in the Bill. Will there be an opportunity at some point for the Secretary of State to exclude the quasi-criminal elements that the noble Lord, Lord Cormack, described, and to improve the general standard of people who take on the ownership and management of sites? That will involve a test of competence as well as of criminality.
As I said, there are areas of the Bill which could be improved. I hope that the Minister will be able to say that her department will come forward with secondary legislation to turn those improvements into reality as soon as possible, as opposed to the timetable that has previously been indicated. There are other improvements that we could argue for. We could probably have done more about improving the RTP procedures, which many homeowners have found rather difficult. The noble Lord, Lord Best, also referred to the on-sale of water, gas and electricity, where there have been fairly horrendous stories, including in relation to LPG, and the applicability of energy-efficiency measures to mobile homes. However, we cannot have everything in a Private Member’s Bill and there may be other means of delivering some of those things.
For the moment, this is a good day. I thank the noble Lord, Lord Best, and all who have worked to get us this far, and I hope that the Government and the House will give the Bill good speed.
Baroness Scott of Needham Market
My Lords, I join in the thanks to the noble Lord, Lord Best, for taking this Bill through the House. His expertise in housing matters and his diligence will be put to good use in this regard. I also pay tribute to Peter Aldous, the MP for Waveney—which for the uninitiated is in my home county of Suffolk—both for choosing this topic for his Private Member’s Bill and for the skill with which he steered it though the Commons. I am particularly pleased to see the noble Lord, Lord Graham, in his place today. He has fought very hard for this over many years and must be delighted to see that we are finally making some progress.
During the debate that I secured in the Moses Room on this topic last summer, it became apparent that the Government intended to support the Bill, and I know that the Minister will deal with it in her customary efficient and sympathetic way. Many changes were introduced in the Commons—many by the Government—and they are most welcome, but I think that it has resulted in a little confusion about exactly what the Bill does and when the various provisions will come into force. Some of those have been clarified very well by the noble Lord, Lord Best, today but there are still a few areas of confusion to which I shall allude. If the Minister does not have time in her summing up today, perhaps she could write to explain exactly when some of the provisions will come in.
It is more than 20 years since I first became a councillor, and my experience was very similar to that of the noble Lord, Lord Cormack. There were a few problems initially and then the situation got worse and worse. By the time I finished, problems on park home sites were very common, and they have been quite well rehearsed: poor site management, breach of licence conditions, misuse of the tariffs for charging electricity and gas, breaches of fire safety regulations and general quality-of-life matters. The council did what it could, but it lacked the statutory framework that it needed to deal with many of these issues.
The power that the Bill gives to local authorities to tackle some of these abuses is most welcome. I understand that some park home owners regret that that is not a duty on local authorities but I agree with the Government’s more localist approach that we should be looking at powers and not duties. However, it means that it is essential that the Government work with local authorities on best practice with park home owners to ensure that they are fully aware of the new rights that they have under this Bill.
I particularly welcome the power given to local authorities to carry out work where site owners fail to do so and then recharge them for it. This will concentrate the minds of site owners wonderfully on the need to get the job done. I hope that this provision can be brought in without delay and I ask the Minister to clarify the timing. There has been some debate about which provisions might be caught by the Government’s moratorium on new regulation. I accept that to an extent red tape is in the eye of the beholder, but in this case it is not red tape; this is fundamental to the quality of life of the several hundred thousand residents of park homes. I also think it is important when considering all this to look at the potential for a bonanza of bad behaviour, which might carry on if there is a delay in bringing in the new provisions. I fear that some of the bad owners will make hay while the sun continues to shine.
What has shocked me and many of my colleagues is how criminality has crept into the park homes sector. It has been able to thrive due to a combination of an inadequate legal framework and a very poor understanding of what is going on. The way in which intimidation has been used to prevent sales, for example, is absolutely scandalous. I am delighted that, at long last, we are tackling the legal framework and that police forces have become much more aware of how this intimidation can work and what they can do about it.
When we debated the matter in the Moses Room last year, the Government said that they thought that the right of veto of sales by site owners would have to remain because of the Human Rights Act, so I was delighted to hear the noble Lord, Lord Best, explain what is clearly a compromise but one in which at least existing park home owners have far more rights than they previously had, and in which they are not likely to be subject to challenge under the Human Rights Act. That is very important.
I have one question with regard to the information that has to be sent under the new regime to the park home owners. I think the noble Lord, Lord Best, said it would include their name and issues around their compliance with the site regulations, around age and so on. When we look at the regulations for this, I would be very keen to ensure that the information that has to be given cannot lead to their being readily identified by the site home owner because we know that some of them will use intimidation, including knocking on their doors, if they are easily identified. So I hope we can think about that.
In this regard, as with many others, good site owners can welcome this, as can the residents because it is important that there are some controls on those who are able to move in. I share the concern of the noble Lord, Lord Whitty, about the delays on the introduction of a fit and proper person test. It has always seemed bizarre to me that we set standards in all sorts of areas, but not for park home owners. I am very concerned that, given the track record of many of them, there will be another three years before these things can be considered. Although I accept that devolution means a thousand flowers can bloom, it would be very odd if a site owner was barred under the provisions made recently by the Welsh Assembly as not being fit and proper, but was allowed to run a site on the other side of the border.
Given the age profile of the owners of park homes, and the nature of the homes themselves, energy use is a major problem. I understand that the rules of the Green Deal preclude grants to park homes. I wonder whether the Minister would undertake to hold discussions with colleagues in DECC to find a way to remedy this, so that those who are in greatest need can benefit from the scheme? Furthermore, can she say whether the current framework for resale of electricity and bottled gas is fit for purpose?
The Bill marks a major breakthrough. It is not just about the legal framework. It is also about there finally being recognition of the serious problems in this sector. Governments of all colours have been in denial for too long. I ask the Minister to work with colleagues in the Ministry of Justice to ensure that the tribunals are sufficiently resourced, particularly in the early years when they will have a high case load and will still be building up a framework of knowledge.
We need to encourage park homes owners to use all the powers that they now have to fight the rogue element where they find it, and urge the statutory bodies to listen to them and support them. There have been some very brave individuals who have stood up for the rights of park homes owners, even in the face of serious intimidation. One such was Bob Holland from Needham Market, who founded the National Park Home Congress which had such a successful conference last year. Sadly, Bob died not long ago, but I like to think that he would be pleased with the changes that this Bill would bring in.
We need a major communication programme with people living in park homes so that they are fully aware of their rights, and we need to work with organisations such as the citizens advice bureaux, as they are often the first port of call. I hope the Minister will also work closely with the Local Government Association in the context of its new powers and because councillors will often be the first port of call when problems occur, as I was. It is important that they communicate changes to the residents.
Good site owners have nothing to fear from this Bill, but 160,000 park home residents will be able to sleep more soundly in their beds at night. I wish the Bill all speed through this House.
Lord Graham of Edmonton
My Lords, it is a joy and a pleasure to take part in this debate; I am delighted. We must of course remember that almost everything that could be said has been said, but not by everybody. I have some evidence to produce, which may be new but I do not think so.
I want to thank a great many people who have brought us to this position. To me, the hero is Mr Grant Shapps. Over a period of 30 years, since I served on a committee in 1983 and took an interest in this matter, both Houses of Parliament, the police, local authorities and councillors have all had some responsibility for the issue, yet we are still in this position now. Perhaps there have been some false dawns, but I sense from the action of Mr Grant Shapps that this will not be one. Incidentally, I say to all his civil servants, who know more than any of us about the background to the Bill, and who are listening not many miles away, that I appreciate their frustration at the previous inability to get to this point.
Brian Doick, who has been mentioned, Alan Savory who has not been mentioned, Colin Packman and Ron Joyce represent the residents’ associations. The great thing for me over the past two years is that more organisations have found their way to them, principally Sonia McColl, who started the justice campaign and got to the stage where she had a petition signed by 10,000 people. She had a meeting in one of the rooms upstairs with more than 200 people, a petition to No. 10 and a comment from the Prime Minister on the matter. She has done a marvellous job and I thank her.
I also thank Tony Turner, who has represented park home owners in Cornwall and that part of the world. Of course, reference was made to Bob Holland and his organisation. The Civil Service must recognise, and Ministers do, that there is a growing band of people who are now more aware than ever of the situation. How we are going to deal with the situation is dealt with in the Bill.
There are people who ought to have done more in the past. I mentioned local authorities, Whitehall, Parliament and the police. It is from their hands that our solution will come—but only if they work together. I will read the comments made by Inspector Colquhoun. He was on the spot when two villains launched a campaign to capture all the homes on their site. He set about a gang that tried to burn down two of the homes. Fortunately, a neighbour was quick enough to get on the phone. Inspector Colquhoun was in charge. At the end of the day, seven gang members were sentenced to 64 years in prison. The great thing was that under the Proceeds of Crime Act, the criminals’ means were examined. They were millionaires, but they had made their millions on the backs of poor, innocent people. They were fined.
I said before and I will say it now: there is only one way to deal with people who have contempt for the law, and that is through their pockets. They have millions of pounds, and assets to protect, but they do not care tuppence. Inspector Colquhoun said:
“Park home crime can be an extremely serious form of criminality which may lead to the ruination of its victims, while enriching its perpetrators in sums of hundreds of thousands if not millions of pounds. It is a form of criminality which is underreported, and where victims do seek police involvement, the service has frequently fallen short in terms of offering inappropriate advice”.
That is an admission. All of us, including Parliament, must be honest with ourselves in saying that in the order of priority on dealing with problems—goodness knows there are lots—this is far down the list. The Minister has always shown an understanding of the problem. Now she has a chance to make a name for herself. She can be the Minister in this House who ensures that we get this through successfully.
Very often people talk about the validity of what has been said. I will pray in aid correspondence sent to me by Sonia McColl and her campaign. It makes very heavy reading. When the Bill went through the other place, she received a letter that said:
“It’s brilliant news that the park home bill has now moved onto the next stage. We really hope it goes through now … because it will go a long way in preventing sale blocking. We know from bitter experience that being stopped from selling something that is yours by the site owner and those who work for them is absolutely soul destroying”.
That came from a couple who live in Derbyshire. Another letter stated:
“It is good to know that at last we the park home owners are getting some recognition in our fight for justice and to be able to live normally as any other person who owns property without hassle, harassment or bully-boy tactics”.
When I thought about what I was going to say, I suddenly realised that this was my day in court. People sometimes say, “I want my day in court, to stand up and say what I want to say”. Modestly, I say that I am standing up in this court, speaking on behalf of all those people. To everyone else who has spoken in this debate, I say that it is not partisan. It will not give us a halo, but we are speaking on behalf of a great many people in that way.
There is another person from Warwickshire—and another site, the Longcast Mobile Home Park, Welford on Avon, Stratford-on-Avon, Warwickshire—who says:
“There are still a minority of older homes that have not yet been ‘acquired’ by the site owner, ours being one of them. Our House is 30 years old and we have put a lot of time and money and energy into it to make it a wonderful place to live. Our only concern is that on this site not one of the older houses has been allowed to be sold on to a private buyer. The Site owner has always managed to get them and pay as little as possible for them, selling them on to traders to move off and then putting a massive new one on”.
We have experience and evidence of these matters, and I have evidence that I am willing to give to other people.
One thing I want to say is that, besides the movement on these parks and the militancy of the parks, we also have to recognise that, whereas at one time we talked about a park home owner, now we must speak in terms of a park home owner who has a number of sites.
There has been a marvellous development in Cornwall. Cornwall Council has produced a pamphlet that it will send to everybody who lives in a park home on a site. One of the problems—and I speak kindly to the Minister and to those who serve her—is that it is all very well saying that you can get the information by fax or online in one way or another, but many of these people have only a telephone and not all of them have even that. Many of them, but not all, are mobile. Many have the ability to get information but not all do.
I pay tribute to Cornwall Council. It has produced this pamphlet which sets out what you can do. Not only that, it is especially aimed at park home owners. It is going to make sure that every park home in Cornwall gets one. That costs money and takes time and has to be prioritised; but if Cornwall can do it, so can other counties. I lay down that challenge. Perhaps Cornwall has a lot of park homes. That is where Tony Turner operates from. He has done a marvellous job in not being bullied by the despicable people who manage his home. He is doing a marvellous job in that respect.
This is a new dawn. I believe that the Minister and her civil servants will relish this. We have moved from being defensive in trying to justify the present position into a situation we are on the offensive. Those people who are unscrupulous should use this debate as a warning. They are on trial. They have been tried in a court of justice many times. This is now the court of Parliament. If they cannot see the militancy there is about this, they are not the people that I think they are.
There are people who are unscrupulous. They have lots of money, lots of barristers and lots of recourse. They have done this. One of the aspects of the Bill, as noble Lords know, is to talk in terms of increasing the powers of local authorities up to level 5. Level 5 fines are £5,000. We have already had it explained that that will be transformed within 12 months: it will be moved up from £5,000 to an unlimited sum. I look forward to the day when the first £50,000 fine is levied. It will not make much difference to the people I am talking about, but it will be a warning. I also look forward to the day when there are no fines of that kind because they will have acted as a deterrent.
Park home site owners may not have a gold mine, but they have a rich cow that can be milked many times. They have decent people living in their parks who at one time were happy, but now they are unhappy. Our job as parliamentarians is to ask the Government to speed up the Bill in any way they can so that it can be put into practice. There are blemishes, of course. It is intriguing that site owners do not take account of the views of their residents. There are some parks—I have their names—where despite the fact that they qualify, the site owner simply ignores that; he just “takes notice” of something. The Minister should know that many site owners ignore moves made by her department to make sure that they act properly. Today we have an opportunity of speeding this Bill through, and it certainly has my very warm welcome.
Lord McKenzie of Luton
My Lords, like all other noble Lords who have spoken, I start by offering my congratulations to the noble Lord, Lord Best, on taking on the responsibility for bringing this Bill before your Lordships’ House and add our thanks to the many people he listed who have helped to bring the Bill this far, including Peter Aldous MP. Like all noble Lords, I want to pay my own tribute to my noble friend Lord Graham of Edmonton for his tireless campaigning on this issue over 30 years. We have just heard his passion for and deep understanding of these issues. If for my noble friend it is a day of joy and pleasure, I can say that that is thoroughly deserved. He is not alone. We have heard from the noble Lord, Lord Cormack, about the important role that he has played, and it is right to acknowledge the role that has been played by Mr Grant Shapps, at least in this respect, on the legislation.
It will come as no surprise to noble Lords that we support the Bill. We said so in the other place and, of course, in the debate in the Moses Room initiated by the noble Baroness, Lady Scott of Needham Market, just a few months ago. We support the Bill in the knowledge of the excellent report of the CLG Select Committee and the recent report by Consumer Focus, to which my noble friend Lord Whitty referred.
For some time the park home sector has been polluted by serious abuses, the victims of which are mostly elderly people. They are people who looked forward to a peaceful and secure retirement, often in rural areas that are referred to as “little paradises”, and as part of true communities, as the noble Lord, Lord Cormack, said. However, we should recognise that for some it is not necessarily a lifestyle choice, but their only affordable route to a home in or near a place that they know and love. Like others, we recognise that not all site owners are unscrupulous. Many have well run sites and act responsibly.
I do not propose to speak at length about the abuses that we know need to be tackled because they have been more than adequately covered by all the other speakers. We have a common understanding of the problems, including uncontrolled levels of service charges, particularly for utilities, restrictions on the sale of homes and the intimidation that accompanies that in the form of sale blocking. We heard some grim examples of how that intimidation is inflicted. There are examples of failure to undertake the proper maintenance of sites and inadequate licensing processes. As the noble Lord, Lord Best, explained in his opening remarks, the Bill will do much to improve the detail of the position. We share the desire to see the fit and proper person test to be introduced as soon as possible. No doubt the Minister will update us on this in responding to the debate.
We wish the Bill speedy progress on to the statute book. However, we know that, whatever the law, some site owners will not rush to adhere to it. We have heard about the increasing criminality in the sector. It is therefore important to pick up a point made by my noble friend Lord Graham about the need for wide publicity to be given to the Bill, or the Act when it becomes one, so that park home owners are made fully aware of their new rights and opportunities and their access to justice, which has hitherto been denied.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I follow other noble Lords in congratulating and thanking the noble Lord, Lord Best, for introducing this Bill into this House and my honourable friend Peter Aldous, MP for Waveney, for all that he has done to promote and take it through Parliament. I also thank noble Lords who have mentioned my right honourable friend Grant Shapps, who finally grasped the nettle of this. It is something, as other noble Lords have said, that has been bobbling around for far too long. I remember well the very first debate I was ever asked to do from the Front Bench in this House, which was to answer, on behalf of the Opposition, the noble Lord, Lord Graham, and discuss mobile homes. It took us back a bit but we did it. Ever since, I have admired enormously the expertise and the absolute, sheer determination of the noble Lord, Lord Graham, to see that something was done about this absolutely dreadful situation, which has put so many people into such jeopardy. There have also been others, including the notable campaigners who have not given up all the way through. At last Parliament is able to take a role and try to bring an end to some of these real travesties.
If enacted, this Bill will afford much better protection to park home owners, and it is good to see it so warmly supported by all sides of the House. As other noble Lords have said, it affects only a relatively small number of homes in England. However, we heard that the Welsh Assembly is also taking this seriously, so it will affect England and Wales. It is hugely important to the people who live in these homes. I believe there are around 85,000 park homes, on 2,000 sites. The sector represents less than 8.5% of the housing stock in England, but just because this part of housing is tiny, it does not mean that we should not address the injustice that is rife and of which we have heard various examples today. That is why this Government fully back this Bill. The Prime Minister said in the other place on 16 January, in relation to park home owners, that it is,
“important … that we get the balance of law right”.—[Official Report, Commons, 16/1/13; col. 869.]
This Bill is important in ensuring that that objective is achieved.
The Bill builds on the thorough and searching inquiry into the industry and its practices, which the Communities and Local Government Select Committee held last spring, and takes forward a number of the recommendations that the Committee made. We want to create a level playing field where the good site operator—and we know there are good site operators—does not face unfair competition from unscrupulous ones who ignore their obligations and the rights of others. We want to see the park home sector put on a sustainable footing for the future, where those who run a decent and honest business can flourish and which has no place for the unscrupulous and criminal. Above all, we want homeowners to be confident that their homes are safe and, perhaps most importantly, that their rights are respected. The Bill aims to achieve these objectives by introducing measures targeted at those who ignore their obligations and exploit their residents, while placing minimal burdens on those businesses which manage their sites well and respect their residents’ rights.
The noble Lord, Lord Best, has given a very clear exposition of what the Bill says. It focuses on four key areas: reforms to the antiquated licensing regime that applies to park home sites; removing the ability for unscrupulous operators to block lawful sales by residents of their homes; preventing owners from imposing unreasonable site rules for their own benefit; and ensuring that increases in pitch fees are transparent to prevent residents being overcharged. These issues were particularly identified in the department’s consultation paper.
The licensing reforms will mean that for the first time local authorities in England will be able to recover costs incurred in licensing directly from the site owner through fees and costs in recovery enforcement action. These functions will no longer have to be subsidised by the local taxpayer. Authorities will also be able to serve notices requiring works on sites to be carried out, and the courts will be able to impose large fines on site operators who do not comply. I note that the noble Lord, Lord Graham, was very modest in wanting to achieve £50,000.
The changes to selling a home will remove altogether the need to seek approval of a purchaser by the site owner. This is one of the most important provisions. This new system will apply to all new agreements and from the second assignment of existing agreements. On the first assignment of existing agreements, site owners will retain a role but the circumstances in which approval can be withheld will be specified to those relating to the site rules. In particular, it will be for the site owner to establish at the residential property tribunal that a purchaser does not meet the relevant site rules. In both circumstances, however, there will no longer be a requirement that a prospective purchaser needs to contact or meet the site owner or that the site owner has to agree to the assignment of the agreement when the buyer and seller, as it were, exchange contracts.
The Bill also includes a provision that would permit the Government to introduce the “fit and proper person” test through secondary legislation in the future. I hear what noble Lords say about the importance of this aspect. It was a recommendation of the Select Committee and I will say a few words about why the Government have accepted this recommendation. It is not the Government’s intention to impose an industry-wide fit and proper requirement at present. New burdens on business are always a last resort, but we must also ensure that the conditions in this sector improve. That is why the Bill focuses on making it unprofitable for unscrupulous operators to exploit residents, but we accept the risk that some of the worst operators will persist and that it may be necessary to use these powers to directly remove them from the industry.
Therefore, we will be reviewing the situation after a suitable period—I hope that would be shorter rather than longer—to see how behaviour in the industry has changed. If unscrupulous practices persist, we may have to consider introducing the fit and proper test as well. It will be in our back pocket should it be needed, although that may not be likely if this Bill achieves its purpose of hitting the unscrupulous and criminal operators in their pockets.
I acknowledge that the Bill does not include everything that the Government consulted on. The policy reasons are explained in the published response paper, which is available on the department’s website. In some cases, we have concluded that legislative change is not the best solution. It is also a matter of size and what can be achieved in a Private Member’s Bill. This Bill runs to 15 clauses, which is quite unusual for a Private Member’s Bill, and some of those clauses are very long. It would have been impossible to include everything on which we consulted if the Bill was to have any chance of completing all its stages and receiving Royal Assent, which the Government are anxious to see.
From what we have heard today, I anticipate that noble Lords will want to discuss and debate further details in Committee, but I earnestly hope that any amendments are not pressed to a vote or supported.
Baroness Hanham
Amendments will cause delay and very likely result in the Bill not completing its passage before the end of the Session. That would mean that it could not be enacted, which would be a huge blow to many thousands of people whose rights and health and safety would be better protected by its measures.
The noble Lord, Lord Best, and others spoke about problems relating to re-sale of liquid petroleum gas, re-sale of electricity, fuel poverty and the Green Deal. The Government are aware of these problems and take them very seriously. The application of the Green Deal to park homes was raised with the Prime Minister by Annette Brooke in the other place. He undertook to look into the matter, which demonstrates how seriously we take this issue.
My officials are working with those in the Department of Energy and Climate Change and other authorities with policy responsibility in these areas to see what can be done to improve the situation for park home residents. I am not sure that the noble Lord, Lord Best, will agree with me that this Bill is not the right vehicle for addressing these issues, but some of the issues require not more legislation but better education and more enforcement action. Those that need legislation should not be addressed on the back of a Private Member’s Bill, with the effect of reducing the likelihood of it clearing its stages.
The noble Baroness, Lady Scott, asked me when the provisions would come into force. The provisions relating to sale blocking, pitch fees, site rules and harassment will come in two months after Royal Assent—so that is pretty quick. Licensing will come in in February 2014 and other provisions by order of the Secretary of State, but, as I have indicated, we will keep a close eye on those to see whether they are necessary.
We have in this Bill a comprehensive set of reforms to key areas which will have the greatest impact and lasting effect. As we have all said, the reforms are well overdue and desperately needed. That is why, in commending the Bill to the House, I say again to those who have campaigned so long and so hard that we are very grateful for and acknowledge their determination. We wish this Bill a safe passage through its remaining stages so that it can come into force, by the latest, in the summer.
Lord Best
My Lords, I am grateful to noble Lords on all sides of the House who have spoken in support of the Bill. I am very grateful to the noble Lord, Lord Cormack, not only for his practical examples that bring to life these issues but for the passion with which he delivered his words. I am grateful, too, to the noble Lord, Lord Whitty, who raised the question of “fit and proper person” and pointed out that the Welsh Assembly is looking at these matters even as we speak and might go further than has been possible in this case. The noble Baroness, Lady Scott, also raised that issue.
I support the Government in putting this matter not on the back burner but on the edge of the back burner, ready to be brought forward if needed. It is quite an undertaking for government to require local authorities to ensure that people are fit and proper persons when we know that some of these devious individuals are able to swap the ownership of their sites. We know that some of them have companies—more than one—registered in the Cayman Islands. These are not entirely unsophisticated operators. Keeping tabs on everything that is happening and enforcing a duty to ensure that only fit and proper persons should operate on these sites is a big step, but one that the Government are prepared to take if it proves necessary in due course.
I was very grateful to the noble Baroness, Lady Scott, for the various points that she made, bringing to the debate her experience as a local councillor, which was an important extra dimension for us. I hope that she was satisfied with the timetable that the Minister indicated. It was an amendment in the House of Commons that brought forward the timetable for implementation of the first chunks of the legislation—I shall not say breakneck speed—to two months after Royal Assent. The civil servants will be kept busy getting that to happen.
We then heard from the noble Lord, Lord Graham of Edmonton, who made a wonderful speech. I know that we all feel a deep sense of gratitude to him for putting so much time and effort over so many years into making things happen today. He was described to me by one park owner as “diamond”. “Dogged” is another word that I would have added to that list. I thank him so very much for all the work he has done over so many years on behalf of park home owners.
I am grateful to the noble Lord, Lord McKenzie, for the support of the opposition Benches, which was incredibly important for seeing this through. There is more work to be done in explaining to everybody what the position will now be, including park home owners, the legal profession, citizens advice bureaux, police forces, trading standards officers and site owners themselves, who will need to know where they stand in the future. I am confident that the excellent team at the Department for Communities and Local Government will get on with this and do it very well.
I am very grateful for the personal support of the Minister and the Government as a whole. Her support is important: she was able to remind us today—if we had not spotted it earlier—that the Prime Minister is now taking an interest in ensuring that some aspects of this are now taken forward. There will be other reforms relating to the Green Deal and energy saving which will also be important and can be taken up in other fora. There is work to be done to ensure that the Bill, when enacted, has the impact it should, but the stage is now set for a new era for park home owners. I am grateful for all the support from your Lordships in taking this Bill forward to its next and final stages in this enormously worthwhile exercise. I ask the House to give the Bill a Second Reading.
Marine Navigation (No. 2) Bill
(11 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Wilcox
That the House do now resolve itself into Committee.
Amendment to the Motion
Lord Berkeley
Leave out from “House” to end and insert “declines to consider the bill in committee until Her Majesty's Government have laid before both Houses of Parliament a report on the compatibility of the provisions of the bill (and in particular the provisions of Clause 2 and proposals to allow junior ratings to hold pilotage exemption certificates) with the International Maritime Organization’s International Convention on Standards of Training, Certification and Watchkeeping for Seafarers.”
Lord Berkeley
My Lords, in moving this amendment to the Motion, I would like to refer the House to its wording at the bottom of grouping sheet, which has somehow been printed at the bottom of all the amendments to the Bill. This is what I am speaking to now. It is unusual to put down an amendment to a Motion such as this, but we are in slightly unusual times—as we come up to the end of the Session—because we had two days’ notice of the Committee stage today. I had a useful meeting with the noble Baroness, Lady Wilcox, and her officials on Monday, where I said it was particularly important that we should see a reply to the letter which we had all been sent from Brian Simpson MEP, chairman of the Transport Committee in the European Parliament, to the Secretary of State for Transport. I said that I needed to see that reply before we discussed it in Committee. Once I knew what the date was, I put the amendment down on Wednesday night and, miraculously, the letter appeared on Thursday morning. That was good news, but it gave us just 24 hours to consider it. As it did not answer the main question that Mr Simpson had asked, I felt it was reasonable to ask for a week’s delay to the Committee, which is what my amendment is about.
As I said, the letter did not answer the concerns that Mr Simpson raised concerning the qualification of the pilots, an issue I have discussed before. I declare an interest as chairman of the UK Maritime Pilots Association, as well as being a harbour commissioner in the port of Fowey in Cornwall. It appears from Mr Simpson’s letter to the Secretary of State, from which I will read a short bit, that it causes him and his committee in the European Parliament some concern, since,
“this clause would appear to be in contravention of the STCW regulations of the IMO which have now been enacted into EU law”.
I will show in a minute that I think those regulations are already in EU law. It seems very odd that in this Bill we have a definition of the management, qualifications and experience required for a PEC holder when there is already one in EU law, which I believe has already been transposed into UK law. I am not very sure, because I have not had time to check it, but since it started about 10 years ago I think it has.
There is also a new directive coming out. Very quickly, this refers to the standards of training, certification and watchkeeping for seafarers from 1978, which were amended on 3 August 2010 by the IMO. They cover the management and operational levels and define those two levels, while giving:
“Mandatory minimum requirements for certification of officers in charge of a navigational watch on ships of 500 gross tonnage or more”,
and the minimum knowledge. I could read the whole thing out but I am sure that noble Lords will be pleased to hear that I will not. The important thing is that this defines, under Section A-II/2, the qualifications, competence and experience that masters and first mates have to have; those have to be applied to PEC holders.
It is pretty extraordinary that we were not told about this at a previous stage of this Bill because it directly relates to the debate that we had at Second Reading, and which they had at many stages in the House of Commons, about the qualifications for pilotage. For the record, the latest reference for this is in European directive 2012/35, which was completed on 21 November last year and will be presumably be brought in by regulation within two years. However, it is already there from the last version; this was the Manila version.
It is rather sad that the Minister, Stephen Hammond, did not in his reply mention that or answer any of the questions. He ended up by saying on page two of his letter that it is for,
“the Master or First Mate”,
to decide whether a PEC holder is qualified. That seems a quite extraordinary misinterpretation of the rules. It is not up to the master to change the requirements for training or seniority of a person to allow him to become a PEC holder, because the convention we are talking about lists three specific cases in which penalties are to be applied. If the master is found to have allowed unduly qualified persons not holding the right certification, et cetera, to perform a function, he is liable to be fined, as is the company. Of course, the person concerned may also get fined.
I will be very interested to hear the Minister’s response as there seems to be a serious conflict on the management, levels and skills required for a PEC holder between the legislation that came from the IMO, through Europe, to here and what is in the Bill. Can the Minister say whether this conflict was known about? I presume that it was and I am sorry that noble Lords were not told about it earlier. I suggest that the Minister and the noble Baroness, Lady Wilcox, bring forward a suitable amendment on Report, if it can be done, to link the existing regulations in the directive with the relevant parts of Clause 2 because there will otherwise be court actions coming out of people’s ears. When people find out that they have two regulations, and that one works for them and the other does not, they will all be going to court—and the ports, the pilots and everyone else will be the losers. It is very important that this matter is resolved and I beg to move.
Lord Eames
My Lords, in supporting the noble Lord, Lord Berkeley, I declare an interest as a member of the Royal Yachting Association. I cannot imagine a greater recipe for the lawyers of our knowledge than the conflict that the noble Lord, Lord Berkeley, has exposed before us today. The question of qualifications, training and their wedding with experience is a very sensitive area in the maritime world. We are not dealing simply with a technical matter. We are dealing with one of the most sensitive issues, which concerns people who are transported, people within the marine industry and people with an interest in our ports. The noble Lord, Lord Berkeley, has put his finger on one of the most sensitive issues—this is not a technical attempt to restrain the legislation or prove difficult about it—which has to be given the closest possible attention because there is a conflict in places between these two edicts. The conflict, in my experience, will lead to an open charter for many months and years to come unless we are satisfied as a House that every possible examination has taken place of the difficulties between these two approaches.
I am also convinced that where there is any question of conflict, not only does it raise issues of a purely legal nature, but it puts into contempt the sort of respect that people ought to have of the whole industry. For that reason, I too will be very interested in what the Minister says about what examination has been made of this conflict. Has it been given the attention that it deserves?
I also regret the way in which the legislation has been produced today, on a Friday, with so little notice to many of us who come a great distance to attend the House. At this early stage, I ask that very serious consideration be given to the Bill by the Minister, for whom I have the highest regard and who has always been most helpful when I have raised issues with him. However, in this instance I believe that the full import of what the noble Lord, Lord Berkeley, says has yet to be realised by the Government.
Lord Chidgey
My Lords, noble Lords will remember that at Second Reading we had a mutual admiration for the ancient mariners of Watchet. We all seemed to know Watchet very well, to my great surprise. I mention it in the context of this Committee stage because noble Lords will acknowledge the goings-on in Watchet in the past week. There was almost a terrible tragedy when an infant in his pushchair was swept into the harbour in high winds. He was rescued—and the point is about the definition of people’s roles—by one 63 year-old George Reeder, who jumped into what was probably 30 feet of water to rescue the child. He was variously described as a port master, a dock master, a marine dock master and a harbour master. Each of those titles carries a certain responsibility and weight in maritime law. If we cannot get that straight, just imagine what will happen if we do not get this straight.
Lord MacKenzie of Culkein
My Lords, I do not want to get into European law, but we are talking about definitions. The noble Lord, Lord Chidgey, has referred to them. The amendment in the name of my noble friend Lord Berkeley refers to,
“proposals to allow junior ratings to hold pilotage exemption certificates”.
There is nothing in the Bill that suggests that junior ratings should hold a PEC. It refers to deck officers, not junior ratings.
I failed the Board of Trade eyesight test to go to sea as a deck officer cadet, so I have lost out on some of the expertise, but my father was a Merchant Navy officer, I have two relatives who are master mariners, masters of Northern Lighthouse Board vessels, and a stepson who is a senior officer in the Royal Fleet Auxiliary, and I think that they would all say to me that a rating on a ship is a support worker. He may be an able seaman, an ordinary seaman, perhaps a carpenter, or a coxswain, but not a deck officer. A deck officer is someone who will have passed the examinations for STCW—Standards for Training, Certification and Watchkeeping—on board a vessel.
I therefore say with the greatest of respect to my noble friend Lord Berkeley that the amendment is defective in talking about junior ratings when the Bill has nothing to say about junior ratings. We are talking about giving deck officers the possibility of having a pilotage exemption certificate. The PEC will be given only by a competent harbour authority, and I cannot imagine any competent harbour authority giving a pilotage exemption certificate to anyone who is not properly qualified, because the risks of doing that would be immense: blockage of a channel or harbour or a ship running aground. The risk to that harbour authority would be pretty immense, and I cannot see for the life of me any of these harbour authorities giving a PEC to someone who is not properly qualified and examined with a STCW. I hope that my noble friend Lord Berkeley will not press his amendment, because it is quite clearly defective in its wording.
Earl Attlee
My Lords, the Motion moved by the noble Lord, Lord Berkeley, invites the Government to take a particular action before the House goes into Committee. It may be unusual, but it is order. I must confess that I am surprised by the move by the noble Lord to delay debating the Bill today. It was, after all, his express wish at Second Reading, only a fortnight ago, that the Bill reach the statute book. He said:
“I wish the Bill well. I hope that we can get it to Royal Assent without too many delays”.—[Official Report, 18/1/2013; col. 911.]
I have no problem with the noble Lord wanting to debate the Bill properly, but he knows that any amendment is fatal to nearly all Private Members’ Bills. He must be aware that if the Bill is to achieve Royal Assent as he desires, it is necessary for this House to debate it today. A week’s delay is not available. I, too, hope that the Bill will achieve Royal Assent—it contains measures that our valuable maritime industry has been seeking for many years—but if it does not, I would rather that it fell as a result of the clear will of this House rather than of a move to delay discussion.
The noble Lord, Lord Chidgey, asked me about legal advice. I assure the House that my department has plenty of lawyers who delight in constraining me in what I can say to your Lordships. Noble Lords will know that it is a long-standing convention that Ministers do not release legal advice. Furthermore, the noble Lord has indicated his concerns about the legality and desirability of Clause 2. I understand that he is very content with the other clauses. That being the case, it might have been more appropriate to table an amendment to provide that Clause 2 can be commenced only after the report that he desires has been published. I have certainly tabled many such amendments in my time.
Having said that, I understand the noble Lord’s desire to ensure that the Bill does not conflict with international agreements that this country has entered into freely. I am happy to give the assurance today that nothing in the Bill conflicts with the Standards for Training, Certification and Watchkeeping, the STCW. I am not convinced that a report stating the same would have any more effect than me, as a Minister of the Crown, doing so at the Dispatch Box.
A ship must comply with the applicable requirements of the code; there is no doubt about that. On some ships, the crew structure will permit another deck officer to act as pilot, using their pilotage exemption certificate, while remaining fully compliant with the code. The noble Lord refers to junior ratings being allowed to hold pilotage exemption certificates if this Bill passes. I do not think it right that I should pre-empt discussion on Clause 2, which I hope that we can have today, but I will say now that this clause does not propose such a thing. I may be able to satisfy the noble and reverend Lord, Lord Eames, at this point. A junior rating is not a deck officer, though a rating might,
“also help deck officers with navigational and watch duties, and anchor the ship when coming into port”,
to quote the National Careers Service.
What we envisage, and what I believe that the industry understands by the term “deck officer” is much more substantial. A deck officer capable of satisfying the pilotage exemption certificate requirements will have had several years of experience at sea and have responsibility for navigation of the ship, which is somewhat more advanced than a junior rating.
I hope, therefore, that the noble Lord will be willing to withdraw his amendment and enable us to move on and use the time that we have for important Committee debates which we need to have before the House can be sure that the legislation is sound.
Lord Berkeley
I am grateful to all noble Lords who have spoken in this debate. I tabled the amendment on Wednesday evening because I still had not received a copy of the letter from Stephen Hammond MP, which I felt that we needed. The letter arrived 12 hours later, perhaps because I tabled the amendment—I do not know. I could have said that we should delay discussion from Clause 2, but I took advice from the Clerks and this is the amendment that I tabled.
Some noble Lords have probably strayed into discussions on the clause stand part debate. The issue over which I raised this was that of the two potentially different definitions of who can have a PEC. The Minister did not answer, so I suppose that we can all expect lots of court appearances, as the noble Lord, Lord Chidgey, suggested. On that basis, I beg leave to withdraw my amendment.
Lord Berkeley
My Lords, I do not intend to repeat what I said at Second Reading, or what I said on my earlier amendment, as we have had a good debate on the issue in Clause 2. My concern remains only with the inclusion in the clause of the phrase “deck officer” without a definition of the qualifications and experience of a deck officer and a recognition of the importance of being high up in the management tree of the ship.
My noble friend mentioned junior ratings. With his knowledge and experience, I am sure that he has a good point but I feel that nowadays, and in line with the EU regulations that we talked about earlier, it is important to have a definition of who can and cannot be given a PEC as a deck officer. It is very easy to say that a competent harbour authority will not give someone a PEC unless he is qualified, but it is like so many of these things—on a good day, when everything is going well, it will work out all right, but, sadly, we have all had experience of when things do not go quite right and sometimes a harbour authority is less competent than it might be. Where two ports are sited reasonably close together and are competing for trade, there must be a temptation for one of them to offer a PEC to somebody on a particular shipping line if that will attract the ship into that port and bring in probably much needed revenue. I would like to try to persuade the Minister to be as generous as he can in giving a tighter definition to the meaning of “deck officer” as applied in this Bill. If it can be related to the IMO deck officer that we discussed earlier, that would tie everything together and would probably also reduce the number of future court cases, which we all wish to avoid.
I could go on for a lot longer. I do not want to delay things too much and I still want to see this Bill pass. However, it would be very helpful if the Minister could give an assurance on that issue and then we can move on. My other concerns about the Bill are very small compared with that one.
Lord Rosser
I repeat what we said at Second Reading. We support the Bill and want it to succeed, not least because many of its provisions were contained in a draft Bill that we produced when we were in government. However, I am not sure that the Government are being as helpful as they might be as regards some of the detail. Clearly, the most contentious issue is that of the exemption certificate. My noble friend Lord Berkeley referred to the definition of “deck officer”.
I am grateful to the Minister for sending me a reply to a number of questions that I asked at Second Reading. I was given the letter—dated yesterday—only this morning. I have had a look at it although, obviously, not as long a look as I might have wished. However, I am genuinely grateful to the Minister for the reply and for responding to the points that I made in our previous debate. The Minister has given a definition of “deck officer” in that letter and said that it enjoys the dictionary definition of,
“an officer in charge of the above-deck workings and manoeuvres at sea of a ship or boat”.
However, I do not think that that definition covers the issue of the minimum level of experience for,
“an officer in charge of the above-deck workings and manoeuvres at sea of a ship or boat”,
particularly as regards the pilotage operation. This comes back to the issue raised by my noble friend Lord Berkeley on the standard of experience that is to be required. It would be extremely helpful if the Minister, when he responds, could give an assurance on that point.
I also asked about the role of the competent harbour authorities. The Minister said in his reply:
“It is a matter for Competent Harbour Authorities to decide who has the skill, experience and local knowledge sufficient to be capable of piloting the ship, and for shipping operators to develop and implement a Safety Management System to provide clarity on the roles and responsibilities of the bridge team when a Pilotage Exemption Certificate holder is acting as a pilot”.
Saying that it is a matter for the competent harbour authorities to decide who has the skill, experience and local knowledge does not address in particularly clear terms how much training it would take to obtain a pilotage exemption certificate in a place such as Liverpool.
The Earl of Caithness
My Lords, I did not take part in the earlier debate, because quite clearly it was of a species known as the “Berkeley herring”, which is a close relative of its cousin, the red. I wanted to get on and talk about the Bill.
Let me first chide the noble Lord, Lord Berkeley, again—I do so with the best of intentions—for his discourtesy to the House in having every single amendment starred. We had Second Reading two weeks ago. It was not beyond the bounds of possibility to have the amendments so that we could consider them before coming in on a Friday and finding them there on the Marshalled List.
On the noble Lord’s request for a definition, he mentioned that there would be different harbour authorities, that there might even be competing ports and a commercial benefit for one port. He forgot to mention, of course, that there would be pilotage error as well, sadly. We cannot get rid of human error. That is one of those things; we saw it with the “Sea Empress”. The only way of having totally safe waters is to ban every single vessel from them, which of course is a totally impractical way of proceeding. Human error will always be a factor, both on land and particularly at sea. I know that full well from my experiences as a Shipping Minister.
The noble Lord, Lord Rosser, came up with a definition. It was given to him by the Minister. It happened to be the definition that I quoted at Second Reading. As a result of quoting it at Second Reading, a circular letter was produced by the pilots condemning me for quoting it. I suppose it is not entirely appropriate that any Member of this House should quote a Secretary of State or a Minister from another place. It did not add to the pilots’ arguments one bit. The noble Lord, Lord Rosser, was very brave to quote it. Doubtless he will also get a letter condemning him for doing so.
I suggest that the noble Lord, Lord Rosser, looks again at the Explanatory Notes. The definition is helped by the words there, which I also quoted at col. 915 on 18 January. The key words are:
“capable of piloting one or more specified ships”.
I know that the Government will have taken full legal advice; no Minister would dare go to that Dispatch Box without having done so. The wording in the Bill is safe. It will work. I commend the Bill as it stands, and do not support the proposal of the noble Lord, Lord Berkeley.
Lord Greenway
My Lords, I follow the same line as the noble Earl. In the previous debate, a noble Lord referred to the noble Lord, Lord Graham of Edmonton, as a “diamond” and “dogged”. Well, the noble Lord, Lord Berkeley, is certainly dogged. If he is as good as his word and lets this Bill go through, I might even describe him as a diamond.
We have been talking semantics here about “deck officer”. “Deck officer” is a term that has been used for many years, as the noble Lord, Lord MacKenzie, said. Everybody at sea knows what a deck officer is.
My worry is about the future. I attended the City of London maritime dinner last night, where the lord mayor and the noble Lord, Lord Green, the Trade Minister, made excellent speeches about the great importance of our maritime business right across the board, from shipping to insurance to arbitration to lawyers, and in maintaining the City of London as the world centre for these operations.
On the issue of pilotage exemption certificates, a real problem is looming, certainly in the ferry industry. The demographic graph shows that a lot of the officers are within five years of retirement. Where are the younger officers going to come from? The Bill would enable young and upcoming officers to advance up the tree perhaps rather more quickly by gaining pilotage exemption certificates. It will not happen across the board. There will be a few here and a few there; it will not be widespread. They are our seed corn for manning our ships in future. More importantly, we hope that some of these people will in time become pilots, so it will benefit the pilotage business in the longer term. That is a very important point to make.
Lord Berkeley
I hear what the noble Lord says and generally support it, but I have not quoted many letters from pilots, although we have heard a lot of them today. One touched on this subject. A number of British shipping companies, including some ferry companies, are taking on and training young people. However, once the trainees have got to a certain stage and the government grant that goes with them is finished, they find that they cannot get a job because on the whole the shipping lines try to recruit young, cheaper officers from abroad. Does the noble Lord have a solution to that?
Lord Greenway
My answer to that would be that young, well trained British officers are highly thought of elsewhere in the world, so jobs are available for them.
PEC examinations can be seen by both individuals and their employing companies as an important rung in the advancement of their professional careers. They involve commitment and academic effort. Those sitting the exams need both professional experience and proven competence in ship-handling. They must also be highly motivated. Therefore, I think that a lot of these concerns have been overstated. To me, there is no doubt that the extension of PEC eligibility will be of benefit to UK seafarers.
Finally, I will say that if the Bill passes, a lot of these concerns can be dealt with by the steering group of the Port Marine Safety Code. That would involve the UK Chamber of Shipping, the various ports groups and the pilots’ association. They can sit down and work out the details of how this change is to be implemented.
Earl Attlee
My Lords, the noble Lord, Lord Berkeley, eloquently set out the concerns that he and maritime pilots have about Clause 2 when he gave notice of his intention to oppose the question that the clause should stand part. I understand perfectly the desire to ensure that marine safety is promoted and that nothing is done to undermine it. I believe that this desire is felt all around the Committee and across the maritime industry. Therefore, I will try as hard as I can to meet noble Lords’ concerns.
The sole purpose of Clause 2 is to remove the limitation in the Pilotage Act 1987 that restricts the issuing of pilotage exemption certificates to the master or first mate of a ship, and instead to allow any deck officer to apply for a certificate. It does not grant one; it merely allows a deck officer to apply to the competent harbour authority for a PEC. It changes none of the other provisions in the Act relating to the demands made on an applicant for a certificate: namely, that the applicant must be a bona fide deck officer of a ship. The clause does not open up the possibility of unauthorised pilotage services being established. I know that that is a concern of pilots and of the noble Lord.
The applicant must be a genuine member of the crew of the ship named on his PEC. No doubt if the pilots in a harbour knew something was going wrong in this regard, they would take it up with the competent harbour authority. If the authority did not listen, they could take it up with the Maritime and Coastguard Agency. If the agency did not listen, they could take it up with the noble Lords, Lord Berkeley or Lord Rosser, with me or with the shipping Minister. There are plenty of routes for aggrieved people to take up this problem.
Furthermore, under the Bill, the competent harbour authority could immediately revoke the PEC if it becomes aware of any problems. The competent harbour authority must be satisfied that the applicant has the skill, experience and local knowledge sufficient for them to be capable of piloting the ship named on the certificate. The PEC applies only to one ship and one harbour. To my mind, this is the crucial safeguard that restricts the issuing of a certificate only to those mariners competent to use one. It is much more relevant than a job title in determining whether someone can safely navigate in specific waters.
The certificate applies to a specific harbour or part of a harbour as appropriate. If anyone seeks to be certified elsewhere, they must demonstrate their skill, experience and local knowledge for those waters to the appropriate competent harbour authority. The competent harbour authority may decide, in the interests of safety, to satisfy itself that the applicant has a sufficient knowledge of the English language. The competent harbour authority decides the method by which it will satisfy itself of an applicant's qualifications, which may be through examination or by reference to other requirements. The certificate remains in force for no longer than one year and it can be renewed only if the competent harbour authority remains satisfied about the foregoing points.
I mention that to demonstrate that the clause in no way reduces the standards of competency required of PEC holders. Stephen Bracewell, the chief executive of Harwich Haven Authority, made this point succinctly to the Transport Select Committee on 17 December 2012, saying that the Bill would do,
“nothing more than add a few people to the list of people who can knock on the door and ask to start the process of being assessed and examined”.
He rejected the idea that a harbour authority would lessen the standards by which they assess and examine people stating:
“We are not going to do it”.
Having outlined what this clause does not change, I turn to what it would do. The clause would permit a competent harbour authority to award a PEC to any deck officer who meets the criteria that I have outlined. The desire for making this change comes from the shipping industry, which has identified a number of potential benefits to several factors, including roll-on roll-off passenger ferries, small domestic ferries and aggregate dredgers.
The clause would permit increased flexibility for shipping companies in the rostering of deck officers, especially in the event of disruption and staff sickness, which currently can be problematic. The additional flexibility would also assist when supplementary or release sailings are chartered, increasing the call on deck officers. Though a comparatively small sector, the change would allow improved flexibility for vessels such as dredgers to operate in piloted waters for extended periods and mitigate the risk of fatigue for certificate holders on these ships.
The industry also wants to respond to demographic trends affecting certificated deck officers, which is a point made by the noble Lord, Lord Greenway. A large proportion of officers are approaching retirement within the next five years and the industry needs to train younger officers to be capable of fulfilling senior roles in the near future. Although it varies between competent harbour authorities, qualification for a PEC may require around 10 to 18 berthing operations to be conducted under the supervision of a pilot. This could reasonably form part of the training for deck officers who have reached a suitable stage in their career development, but who are not yet employed as a master or first mate.
On the terminology of a deck officer, I want to be clear: we are not talking about junior ratings. We are talking about those officers who have navigational responsibilities. It usually takes between three and four years to qualify as a junior deck officer, so potential applicants will have experience at sea. Even then, it is most likely that only the more senior deck officers will be able to demonstrate the skills, experience and local knowledge required by a competent harbour authority.
The noble Lord, Lord Berkeley, suggested that there should be a stricter definition of eligibility tied to definitions in the international standard of training, certification and watchkeeping code. However, mariners on domestic routes do not need to seek certification on this code. Such an approach would be unduly restrictive and certainly tighter than current arrangements. The national association for ports and shipping has agreed that it is preferable to use the definition of “deck officer” in this clause and provide guidance to the competent harbour authorities on the attributes and skills that might be sought in the Port Marine Safety Code’s guide to good practice. The guide already recommends that a competent harbour authority should seek a certificate of competence from applicants. The Port Marine Safety Code steering group, mentioned by the noble Lord, Lord Greenway, composed of representatives from industry, trade unions, the pilots’ associations, the Government and other maritime experts, has agreed to establish a subgroup to consider and recommend any enhancements required for the guide. This will enable competent harbour authorities to have access to the best advice about the qualifications that could be expected of a successful applicant.
The noble Lord, Lord Berkeley, talked about the unwelcome aspects of competition. This is always a concern, but the noble Lord will know perfectly well that it arises in many areas of commercial activity. However, I would also be very surprised indeed if the regular pilots did not report any concerns regarding the inappropriate grant of a PEC to the MCA, as I have already said.
The noble Lord, Lord Rosser, sounded as if he is supporting the noble Lord, Lord Berkeley, in his amendment. I would remind the noble Lord that this Bill has been in gestation for many years, as he well knows. The provisions in Clause 2 were clear Labour government policy, and no doubt responsible and experienced Labour Ministers were satisfied about its legality. Indeed, Jim Fitzpatrick MP said in the other place that the Opposition would look foolish if they opposed the Bill and that,
“it would be churlish of us not to support it. It contains many positive elements”.—[Official Report, Commons, Marine Navigation (No. 2) Bill Committee, 7/11/12; col. 4.]
However, I fully accept that noble Lords opposite are testing the policy and making sure that we have got it right. I am sorry that the letter to the noble Lord did take rather a long time to arrive, but there were quite a few questions to answer.
I think it was the noble Lord, Lord Rosser, who said that the regulations should not be unduly onerous. It is important to remember that a PEC can be limited to a specific ship and a specific harbour, or even a specific portion of a harbour. The noble Lord asked about training and talked about the Port of Liverpool. The Committee will understand that the Port of Liverpool is a very complicated port with all sorts of difficulties. It is not surprising, therefore, that the training requirements to be a pilot for the Port of Liverpool are extensive. However, smaller ports will need less training. It is for the competent harbour authorities to determine what is required, as they do now. There is no change in the training requirements, only a proposal to change the eligibility, and training for a PEC will be similar to that for a pilot.
The noble Lord asked about the number of PEC holders that can be on a ship, which is a good point. He suggested that there could be numerous PEC holders on a ship, but that they would not have sufficient experience. It is not clear to me why a shipping company would want to incur the cost of PEC training and go to the effort of training officers if there was insufficient opportunity for them to exercise the certificate. Furthermore, if the competent harbour authorities believe that a PEC holder was a bit rusty and did not have enough experience, they may pay greater attention to the reassessment process. There will always be the alternative for a master to take on board a maritime pilot if circumstances mean that none of the PEC holders on the ship are available to pilot it because of hours worked or if the structure of the crew does not permit it. If a suitably qualified person is available, there is no justifiable reason to prevent them from holding a PEC and piloting the ship simply because they do not have the right job title.
Baroness Wilcox
My Lords, I concur with the excellent points made by my noble friend. The clause will not reduce the standards required by the competent harbour authorities of applicants for a pilotage exemption certificate. It simply states that deck officers and members of the crew with navigation responsibilities can hold a certificate if—and only if—they meet those standards.
I met the chairman of the Maritime Pilots’ Association, in the company of the noble Lord, Lord Berkeley, and he assured me that he would work with the Port Marine Safety Code steering group to provide the best advice for competent harbour authorities on the qualifications that they should expect. I welcome that, as I hope that the House will, coming from such an authoritative group with such a fine history. I welcome that support from the UK Maritime Pilots’ Association and I support this clause standing part of the Bill.
Lord Berkeley
I am grateful to all noble Lords who have taken part in this short debate and to the noble Earl, Lord Attlee, for the very full answers that he gave. Many of them were very helpful, but one thing that was conspicuously missing was that although there was a lot of talk about training, there was not so much about management responsibility. The key to a successful outcome is to ensure that PEC holders have experience of being in a senior management position on a ship.
As an example, many times in the course of this debate and others we have talked about a famous dredging company in the Thames Estuary. I will quote briefly from a letter that I, and perhaps others, have received from a pilot about this. He says that he knows the company and its working pattern well. He writes:
“The Master likes to do dredging at sea and the Chief Officer normally does discharge of aggregate”
—on the quay. He continues:
“They want the Junior Officer to pilot and navigate in between. I asked one of the Captains of this company why the Junior Officer couldn’t do the discharge or the dredging at sea. Both operations he would be qualified for. The answer was because he/she is not trusted in those roles”.
This is from the captain of one of the ships. If he is not trusted to do the discharge at a quay, or to dredge in the sea, it is a bit odd to think that he ought to be capable of having a pilotage exemption certificate to be able to pilot the ship up and around the Thames. We all remember what happened when the “Bowbelle” and the “Marchioness” had a collision.
Earl Attlee
My Lords, if the officer was not trustworthy, the competent harbour authority would not grant him a PEC.
Lord Berkeley
Let us hope so. If it was the Port of London Authority, I am sure that that would be the case. I have more doubts about other authorities. There is also the question of ensuring that we do not confuse junior officers with junior ratings, as there were one or two comments about that.
However, we have had a good debate. I would have liked the Minister to have given a definition on the record that the deck officer should be a person who is,
“engaged on board at Management level holding an STCW A-11/2 Certificate of Competency”,
or other appropriate qualification, which would have covered the inland waterways issue. But he will not give that, and at this time of day it is not really appropriate to seek the opinion of the House, because we would never get home tonight. So I leave it at that.
Lord Eames
“(8) An order designating a harbour authority shall not be made unless the Welsh Ministers, the Secretary of State or the Scottish Ministers, as the case may be, are satisfied that the harbour authority has in place appropriate procedures for resolving any disputes that may arise in relation to a proposed harbour direction.”
Lord Eames
My Lords, I have tabled this amendment to reflect the concerns that were expressed in the debate in another place on this aspect of the Bill. I again refer to my indication of interest as a member of the RYA.
As articulated in the debate in the other place, under Clause 5 of the Bill an unelected “designated harbour authority” would have greater power to create new criminal offences than a democratically elected local authority. Secondly, harbour authorities are generally not well placed or adequately resourced to create new criminal offences, and the proposed power to create new criminal offences contains none of the supervisory safeguards usually imposed in relation to lawmaking bodies in a democratic society.
It is a key principle of the Government’s localism policy that power should be placed back in the hands of individuals, communities and councils, and where such power is to be exercised by local institutions such institutions should be subject to the democratic checks and balances enabled by full transparency. However, many harbour authorities are not democratically accountable and are not subject to the Freedom of Information Act 2000. It would run counter to basic democratic principles and the Government’s own localism policy to grant an unelected designated harbour authority lawmaking powers that are not subject to democratic checks and balances and full transparency.
Shortly after tabling this amendment, I learnt of the discussions that took place no later than yesterday on the whole question of a code of conduct on harbour directions. That discussion was greatly welcomed by those who were telling me of their concerns, and the RYA would like it placed on the record that it felt this had moved the whole problem a long way. On behalf of the RYA, I pay a very warm tribute to the two Ministers involved for the way in which they facilitated that development in the past 48 hours.
However, in moving this amendment, I still have to ask certain questions regarding the code of conduct. First, are the Government prepared to implement this code of conduct and to make provision for it in ways that can be seen, heard and recognised across the marine industry as constituting acceptance by the Government? Those who attended the discussions to which I have referred welcomed the attendance of representatives of the department, but they seek an assurance on the record—and what I do with my amendment will be dependent on the answers that the Minister may be able to give me—that the Government are concerned to implement the code of conduct to which I have referred.
Secondly, if the code of conduct is in existence and there is general agreement on how it should be implemented, which is the reason for my first question to the Minister on whether that assurance can be given, what consequences does he envisage there being for any denial of that code of conduct, disobedience to it or even neglect of what it says? Does he see this as something that in the sense of what I referred to earlier might open the door to vast legal consequences? Will this code of conduct that was produced yesterday be sufficiently strong in the eyes of the Government to be implemented in terms that the courts can recognise and accept? In my experience of public life, I have often seen codes of conduct produced, not least on how we operate our work as this House, but it is one thing to have a code of conduct that people can feel warm about but quite another if that code of conduct is not given the wings of legal backing.
If I can be reassured on these points, I will be happy to withdraw this amendment, which is really a probing amendment to give the Minister the opportunity to assure the House, for the record, that the code of conduct points the way forward. I beg to move.
Lord Berkeley
My Lords, I congratulate the noble and right reverend Lord on moving the amendment. It is a very useful probe; I shall probably have some more probes later. I have a copy of the code of conduct, which, as he said, was agreed yesterday lunchtime. That probably shows, but at least I understand that it has been agreed. It is unclear to me who makes the order designating a harbour authority as having the powers for general direction. Is it the Department for Transport? From reading the code of conduct, it seems to me as if the harbour authority makes its own designation, which I am sure is not right. It does not sound right anyway. I believe that the designation is under Section 40 of the Harbours Act, but what criteria will the Department for Transport, which I presume it will be, look at when deciding whether an applicant is a fit and proper organisation for having harbour direction powers?
The purpose of the code of conduct and probably of Clause 5 is to enable harbours to be able to make directions without having to wait sometimes several years for the Department for Transport to approve them. I hope that the department, if it is to be the approving body under the new arrangements, will be a lot quicker than that. How long will it be and, as the noble and right reverend Lord asked, what enforcement will there be if things go wrong? I look forward to the Minister’s response.
Earl Attlee
My Lords, I am grateful to the noble and right reverend Lord, Lord Eames, for explaining the reason behind this amendment. I was terrified that he would not move his amendment because he observed that there was good news. When a similar amendment was debated in another place, the Shipping Minister was able to announce an initial agreement between port operators and users to develop a code of conduct on harbour directions. The intention was that this would provide a mechanism for resolving disputes. The Shipping Minister said:
“It is my expectation and the expectation of the Department for Transport that, when applying for a designation, a harbour authority would sign up to the code of practice”.—[Official Report, Commons, 30/11/2012; col. 542.]
I am happy to say that since then, there have been very productive meetings between the Royal Yachting Association, the British Ports Association and the UK Major Ports Group, chaired by the UK Chamber of Shipping, to develop that code. At their meeting yesterday, agreement was reached on the terms of that code and I have personally laid a copy in the Library of the House. I was not prepared to fall into the trap of some noble Lord going into the Library and not finding the code of practice.
As expected, the code describes the establishment of a National Directions Panel to maintain the code, produce a set of model harbour directions that designated harbours can adopt as appropriate for their local circumstances, and consider how the power of the harbour directions is being used. The code also sets out how harbour directions should be consulted on with harbour users and how disputes can be resolved. The focus of the code is on resolution locally by the port and its users, but with the possibility of referral to an independent arbiter if agreement cannot be reached.
I believe that this is an excellent example of the benefits of non-statutory arrangements complementing legislation. I think that this is the right approach as we seek to reduce bureaucratic and inflexible central regulation and open up local decision-making. We do not want to gold-plate legislation, especially as there are already a number of safeguards in the Bill aimed at ensuring that the power of harbour directions is used responsibly.
In answer to the noble and right reverend Lord, Lord Eames, I repeat the Shipping Minister’s assurance that the Government would expect any harbour authority applying for designation to have agreed to the code of conduct. I do not anticipate that the code of conduct would be ignored in future years; furthermore, the designation order would be kept under review and a harbour authority could be de-designated if that were warranted.
The noble Lord, Lord Berkeley, asked whether the harbour authority would have to be a fit and proper person. The noble Lord will know that Ministers always take into consideration whether a person is a fit and proper person. Having said that, I hope that the noble and right reverend Lord, Lord Eames, will feel able to withdraw his amendment.
Lord Eames
My Lords, I thank the Minister for his sympathetic response; I feel that we have the assurances that I sought on the record. I therefore beg leave to withdraw the amendment.
Lord Popat
My Lords, the Companion tells us, at paragraph 301:
“The House usually sits for public business on Mondays and Tuesdays at 2.30 p.m., on Wednesdays at 3 p.m. and on Thursdays at 11 a.m. The House also sits on Fridays at 10 a.m. when pressure of business makes it necessary. It is a firm convention that the House normally rises by about 10 p.m. on Mondays to Wednesdays, by about 7 p.m. on Thursdays, and by about 3 p.m. on Fridays”.
It is my duty as a Whip today to move that the House do now resume.
House resumed.
House adjourned at 3.04 pm.