Harbours, Docks and Piers Clauses Act 1847 (Amendment)

1st reading: House of Commons
Tuesday 10th May 2016 Commons Chamber

Motion for leave to bring in a Bill (Standing Order No. 23)

12:05

[Craig Mackinlay (South Thanet) (Con)]

I beg to move,

That leave be given to bring in a Bill to amend section 33 of the Harbours, Docks and Piers Clauses Act 1847 to allow local authorities to proscribe, in certain circumstances, the transport of live animals for slaughter abroad via facilities that local authorities control and operate; and for connected purposes.

I introduce this ten-minute rule Bill for a number of reasons. I do not count myself an outright animal rights activist, but I do count myself as a common-sense activist. That said, there are many reasons why we should all have concerns about any act of animal transportation that imposes stress and unnecessary suffering, when the most logical answer is local slaughter and refrigerated transport of carcases to their destination. The Bill is designed not to change the law on the transportation of live animals for breeding or other aspects of animal husbandry, but merely to allow local authorities discretion to decide, in the spirit of localism, whether facilities that they own should be used to transport animals for slaughter abroad. In short, the Bill would make due amendment to section 33 of the Harbours, Docks and Piers Clauses Act 1847 to allow local authority-controlled ports to proscribe, at their discretion, the transport of animals for slaughter abroad.

The primary reason for my interest in the matter is local to my constituency of South Thanet, where we have the active port of Ramsgate. It is on a long-term lease from the Crown Estate, and all port operations are controlled and invoiced by the local authority, Thanet District Council. Following pressure from a shipper, the council acquiesced to legal threats and demands that the port be made available for small vessel roll-on, roll-off operations of just a few lorries carrying livestock. The first such shipment happened on 18 May 2011. Not surprisingly, the transportation attracted a huge amount of local opposition and active campaigning by Kent-wide animal rights activists. The police cost of marshalling such shipments is estimated to be £18,000 per shipment. That is massively more—perhaps by a factor of 10—than the likely profit arising to the shipper.

The regular shipments continued, with local opposition, until what can only be described as a truly appalling event on 12 September 2012. A lorry was loaded with 548 sheep over three tiers, and the Animal Health and Veterinary Laboratories Agency staff who were on site discovered that it had been poorly loaded and was overstocked. One sheep had a broken leg, others were lame and some had trapped limbs. An order was given to unload the sheep, and a witness of the scene that followed commented that

“all hell let loose with nearly 20 people made up of RSPCA, AHVLA”—

the veterinary association—

“Police and port staff, some with a camera in hand and a paint sprayer in the other chasing over 500 sheep around and apparently trying to find lame ones. In fact it was the chasing on the unsuitable surface that was causing the lameness. During the chase six lambs went into the water resulting in four being rescued by the RSPCA and two being found dead”.

Some 13 hours later, after the arrival of Kent trading standards and news crews, a further 37 sheep were identified as lame and were euthanised on site. That followed a second unloading, after sheep were again found to have trapped limbs. It was described by the local press as simply a “massacre”.

The following day, Thanet District Council unilaterally decided to suspend any further live animal shipments through Ramsgate. This decision was supported by the wider council across all the political parties locally, and of course by local residents. However, legal fears were brought to bear, and following a grant of interim relief in the High Court, shipments resumed a little over a month later, on 19 October 2012.

The shippers then entered the legal fray over a protracted period, which resulted in a High Court judgment on 27 February 2014. During a four-day hearing in December 2013, Thanet District Council relied heavily on section 40 of the Harbours Act 1964, which offers some discretion in relation to port use. Unfortunately, the judgment went against Thanet District Council primarily because of section 33 of the Harbours, Docks and Piers Clauses Act, which states that ports

“shall be open to all persons for the shipping and unshipping of goods”.

I am seeking to change that provision through this Bill. The adverse judgment has left local taxpayers—the authority is not a large one—with a compensation bill and costs in excess of £4 million, and it has resulted in the resumption of a trade that nobody wants through a port that is unsuitable. Local residents are appalled that their port is now being used for a trade that they find unnecessary and that many find distinctly abhorrent.

This is the nub of my ten-minute rule Bill: in the true spirit of localism, a long overdue amendment to the 1847 Act would give local authorities a greater degree of certainty that they will not face this type of legal action in future and provide them with an opportunity to object to the use of their municipally operated facilities for such transactions. If only life were that simple, I could bring in a Bill to amend the 1847 Act and if this House agreed to it—if only this House was sovereign and able to do so—that would be the end of the matter. Unfortunately, there is the big boot of the EU to consider, given the protection of free trade and the free movement of goods provided by article 35 of the treaty on the functioning of the European Union. Such protection has been further added to over the years by various European Court judgments, notably Francovich in 1991, and by the Factortame case in the Lords in 2001.

In summary, I am seeking the House’s leave to advance this Bill to its next stage, and, on the assumption that this Parliament is sovereign and can do so, to secure an alteration of domestic law to proscribe such trade in the circumstances that clearly apply to the port of Ramsgate and to Thanet District Council, which controls it. The conclusion of the High Court judgment was rather instructive and quite alarming: in the judge’s words,

“the law does not exist only to protect the interests of the popular.”

I would say that this is entirely the foundation of our democracy. The argument about the intervention of EU law in this area is not one for me to make today; it is an argument for another day—possibly 23 June. On that basis, I commend the Bill to the House.

12:05

[Mr David Nuttall (Bury North) (Con)]

I rise to oppose the motion, which was proposed so ably by my hon. Friend the Member for South Thanet (Craig Mackinlay). I thank him for raising a matter of concern for millions of our fellow citizens. At the time of the events to which he referred, I am sure that I was not alone in receiving communications from constituents, asking that we stop this trade. He is responding to those calls for action, but I want to deal with the elephant in the room—in fact, the two elephants in the room, one of which he touched on briefly.

The first elephant in the room is to do with our proceedings. As we are in the last few sitting days of this Session, even if the motion is passed today there will be no time to consider the Bill further during this Session. Along with the dozens of others that are listed on the Order Paper, it will fall when Parliament prorogues in the next day or two. As the House will be aware, the Procedure Committee, of which I am a member, has put forward proposals to change our procedures to make them more readily understandable to those outside the House.

There is therefore an interesting contrast between the two elephants. It is within our power to do something about the first one. It is in our hands to improve matters, so we can remove the first elephant from the room. The second elephant is the effect on our law of European law, which was touched on briefly by my hon. Friend in moving the ten-minute rule motion. It means that no matter how much we would like to change the sad state of affairs in which we find ourselves, we are powerless to do anything about it.

In the time available today, it is not possible to deal with every single detail of the matter, but I hope that in trying to prove my case to the satisfaction of the House, it will suffice if I quote briefly from the judgment of Mr Justice Birss in the case that arose out of the facts set out by my hon. Friend, the short title of which was Barco de Vapor v. Thanet District Council. It is a comprehensive judgment that runs to 192 paragraphs. I will quote from just three of those paragraphs.

Paragraph 8 states:

“The claimants’ case in outline is that the ban amounted to a restriction on the exporting of goods within the European Union in breach of Article 35 TFEU and cannot be justified under Article 36 TFEU or otherwise. One reason it cannot be justified is because the relevant legislation is Regulation EC 1/2005. The claimants contend that the ban is contrary to the Regulation and that since the Regulation exhaustively harmonises the law in the relevant area, the ban cannot be justified under Art 36.”

I should explain for the benefit of those who are not familiar with the acronym TFEU that it refers to the treaty on the functioning of the European Union, which is one of the basic treaties of the European Union that we are subject to.

Let me jump to the very end of the judgment, where the judge delivers his final verdict on the case. At the end of the penultimate 191st paragraph, he says:

“In my judgment TDC are liable to pay damages to compensate the claimants for the losses caused by the breach of Art 35 TFEU.”

There is no mention of the Act that my hon. Friend seeks to amend today.

Finally, let me quote from the final paragraph. My hon. Friend referred briefly to one part of it, but did not read the whole paragraph, which is very instructive indeed. Paragraph 192 reads as follows:

“The animal export trade is not popular. It involves activities which are highly distasteful to many people. However the law does not exist only to protect the interests of the popular. I have found that Thanet District Council did not have the authority to impose the ban which prevented the claimants from using Ramsgate port to export livestock. The ban was an unjustifiable breach of Art 35 of the TFEU. It was a disproportionate decision reached in haste without separate legal advice and breached a fundamental element of the rules governing free trade in the EU. In my judgment the council is liable to pay damages to the claimants.”

There we have it: the final judgment was nothing to do with the 1847 Act—let’s not kid ourselves. It all came down to article 35.

Our constituents will often hear that one of the reasons why those of us who believe that the United Kingdom would be better off if we left the European Union is that our membership means a loss of sovereignty. Unsurprisingly, many people are not all that clear about what that actually means. Is it some sort of technical or theoretical issue that does not really matter? This case brings the whole issue of sovereignty to life. In short, the loss of sovereignty means the loss of power—the loss of power of this House to do anything about certain things. It means that the power of our constituents has been given away; the power that they have entrusted to us to enact legislation on their behalf has been lost.

I believe that we must be open and honest with the country about these matters. There is no point in continuing the pretence that this House has any power to stop these exports by merely amending domestic legislation. Unless we leave the European Union and regain our sovereignty—that is to say, regain the power to control our own affairs—we are simply wasting our time. We are giving the public the false impression that we are able to do something about this matter, when we cannot.

In view of the fact that there is no prospect of the Bill making further progress, I do not wish to divide the House, but I trust that by the time my hon. Friend brings the matter before the House again, voters across the country will have taken the opportunity afforded to them on 23 June to take back control over this matter.

Question put and agreed to.

Ordered,

That Craig Mackinlay, Sir Roger Gale, Martin Vickers, Kelly Tolhurst, Mrs Flick Drummond, Caroline Lucas, Peter Aldous, Mr Steve Baker and Dr Tania Mathias present the Bill.

Craig Mackinlay accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 13 May, and to be printed (Bill 176).