Merchant Shipping (Fire Protection) Regulations 2023

Baroness Vere of Norbiton Excerpts

Tuesday 2nd May 2023 Lords Chamber

Moved by

[Baroness Vere of Norbiton]

That the draft Regulations laid before the House on 3 March be approved.

Relevant document: 33rd Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)]

My Lords, the draft regulations before the House relate to the fire safety of all passenger ships on international voyages, a limited class of passenger ships on non-international voyages, all cargo and sailing ships of 500 gross tonnage and over, and UK pleasure vessels of 500 gross tonnage and above. It makes provision for different generations of ship, with the fire protection requirements differing slightly between the generations.

The statutory instrument will be made under safety powers conferred by the Merchant Shipping Act 1995. It is subject to the enhanced scrutiny procedures under the European Union (Withdrawal) Act 2018—and therefore there is an affirmative procedure today—because it revokes an instrument that was amended by Section 2(2) of the European Communities Act 1972. The instrument does not implement any EU obligations.

I acknowledge the amendment to the Motion relating to this instrument in the name of the noble Baroness, Lady Scott of Needham Market, referencing the time taken to make these changes to the domestic statute book and other delays to international maritime secondary legislation. In its 33rd report of Session 2022-23, the Secondary Legislation Scrutiny Committee—SLSC—noted that the

“DfT is gradually addressing its backlog of implementing international maritime legislation but these Regulations illustrate why we were so concerned that it was allowed to accumulate in the first place”.

I will address the amendment to the Motion and the SLSC’s remarks, but I turn first to the instrument under consideration today.

The draft regulations implement the most up-to-date requirements of chapter II-2 of the International Convention for the Safety of Life at Sea 1974, known as SOLAS, and bring UK domestic law up to date and in line with internationally agreed requirements. The draft regulations contain direct references to the vast majority of the requirements of SOLAS chapter II-2. These references are made ambulatory, so future updates to the provisions will be given direct effect in UK law when they enter into force internationally. This will assist the UK in keeping legislation up with international requirements.

The regulations will revoke and replace the Merchant Shipping (Fire Protection) Regulations 2003 and the Merchant Shipping (Fire Protection: Large Ships) Regulations 1998—the latter apply to ships constructed before 1 July 2002 and the former to ships constructed on or before that same date. The regulations will further improve the fire safety standards for ships and will enable the UK to enforce these requirements against UK ships wherever they may be in the world, and against non-UK ships when they are in UK waters. This provides a level playing field for the industry.

I turn to the content of the SI. Chapter II-2 of SOLAS contains provisions for structural fire protection, fire detection and fire extinction on ships. This includes the prevention of fire and explosion, suppression of fire, escape from fire, operational requirements, alternative design and arrangements, and other requirements specific to particular situations. Chapter II-2 is supplemented by the fire safety systems code and the fire testing procedures code. All are amended from time to time in the International Maritime Organization—IMO.

A number of amendments have been agreed in the IMO and have come into force internationally since UK law was last updated in 2003. Amendments contained in 20 resolutions have been agreed at the IMO over the years since 2003, with the most recent changes being made in 2020. Those amendments further improve the safety standards of fire protection but have not yet been implemented into UK law. The UK supported the amendments during IMO discussions and, as a party to SOLAS, now has an obligation to implement these further updates. Amendments include, but are not limited to, new requirements for cabin balconies, tanker gas measurement equipment, fire test protocols for materials placed on ships and requirements related to vehicle spaces—they can be quite technical. Details of all 20 amendments are set out in the Explanatory Memorandum to this instrument in the normal way.

I turn to the amendment to the Motion in the name of the noble Baroness, Lady Scott of Needham Market, and the recent remarks by the Secondary Legislation Scrutiny Committee to which I previously alluded. Keeping pace with the frequent amendments to international maritime conventions is challenging and requires frequent updating of the implementing legislation to keep up to date. The Department for Transport has an extensive secondary legislation programme but limited policy, analytical and legal resources with which to carry out that task. That has required some prioritisation, particularly over recent years, and a backlog relating to implementation of international obligations has been allowed to develop. I am not content with the situation, nor was my predecessor; in fact, it was my predecessor who put in place an action plan to address it.

However, it should be noted that the lack of domestic statutory underpinning did not prevent enforcement, and there are powers in the Merchant Shipping Act 1995 that allow for prosecutions to be brought. For example, Section 100 places a duty on the ship owner to take all reasonable steps to make sure that a ship is operated in a safe manner; failure to do so is an offence. Section 98 of the Act allows for prosecution where a ship is found to be dangerously unsafe. However, making these draft regulations is necessary to bring the changes to SOLAS into UK law, and doing so provides the clarity and certainty that the industry requires, particularly in relation to specific offences and penalties.

I reassure your Lordships’ House that the Government are committed to clearing the maritime backlog. Good progress has been made on clearing the international backlog, which was identified in October 2021 by Robert Courts MP, the then Minister for Maritime, as comprising 13 instruments. Four of the 13 instruments currently remain to be made, with the instrument before your Lordships’ House today being one of them. The remaining three instruments will be consulted on in the coming months for the purpose of making them this year, ensuring that the international maritime backlog will be cleared before the end of 2023.

My department is also planning ahead for the implementation of future amendments to international maritime conventions, including for amendments that are still at the negotiating stage in the IMO and the International Labour Organization, the ILO. However, the House should note that there is often a fairly limited period between the adoption of the final, agreed text and the international in-force date. This is the case with both the IMO and the ILO. Therefore, in some cases, a short delay in implementation, owing to the parliamentary procedures in the UK, is inevitable. However, the objective remains that such a delay will be an exception rather than the rule, and that any delay will be as short as possible.

Approval of these regulations is crucial to ensuring that the UK meets its international obligations. The UK has already agreed to the amendments in the IMO. The Government are taking action to clear the maritime backlog and are on target to clear the international backlog by the end of the year. I beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

[Baroness Taylor of Stevenage (Lab)]

My Lords, first, I thank the noble Baroness, Lady Scott of Needham Market, for moving this regret amendment, which has enabled a good discussion around the issues of compliance on these very important regulations—and I thank the Minister. I certainly get a sense that a real grip is now being taken of some of the issues raised by the amendment. I was grateful for a very detailed and thorough response. I echo the noble Baroness, Lady Scott, in that my comments are certainly not directed at the Minister who is responsible for this now, or at the civil servants dealing with this backlog.

There cannot be many more terrifying prospects than of a fire at sea. The enormous risk to crew and passengers and to those who are charged with rescue, as well as those in adjacent ports and harbours, are incalculable. Therefore, while we would not wish to hold up the implementation of these much-needed regulations, we, too, feel that questions need to be answered relating to the inexplicable delay, in some cases of 20 years, in implementing such a critical safety regime. We note that contained within the wording of the regulation and the Explanatory Memorandum is the detail of a very significant backlog in implementing international legislation which needed very urgent attention from the Government.

We, too, were very grateful for the report of the Secondary Legislation Scrutiny Committee, which pointed out that the IMO requirements on firefighting and fire protection matters were last implemented in 2003. We note the 20 further IMO resolutions agreed that apply to ships of more than 500 gross tonnes, whether carrying cargo or passengers. It quotes DfT figures that there are 440 ships on the UK flag subject to the IMO requirements in this instrument, of which, as the noble Baroness, Lady Randerson, said, 324 are “mostly in compliance” and wholly or partially UK-owned. It is the Maritime and Coastguard Agency that has determined that these are “mostly in compliance”. However, I am a bit concerned about that term as well. What does “mostly in compliance” actually mean? Do we have a specific number of those surveyed, and what are the gaps in compliance? Is the Minister able to estimate how many ships are not currently compliant with these regulations and what steps will be taken to inform them of the importance of compliance before these regulations go any further in being implemented? As the noble Baroness, Lady Randerson, said, “mostly in compliance” is not very reassuring, and I would agree with that.

It is only when these regulations come into effect that the UK can enforce the same requirements on foreign-flagged ships in UK waters. Can the Minister respond to the question asked by the SLSC about why the DfT has taken so long to address the backlog? She partially gave us some answers to that but, as she said, there was a report to the House of Commons from Robert Courts MP in 2021-22, and she stated that the backlog would be cleared by the end of 2023. If I heard her correctly, four of the regulations have taken 20 years to produce. Will we get the other nine done by the end of year? I hope that is the case.

The Minister stated that resources have been a very significant issue in that backlog. The noble Baroness, Lady Scott, said that this seems like a systemic failing, and I cannot help but feel the same thing, with all the instances documented by the SLSC. It is very worrying. I wonder whether the Health and Safety Executive, for example, would take as an acceptable justification that resources were the issue, if there was non-compliance. I say that having been the leader of a local authority that was subject to Health and Safety Executive regulations.

I note that there is provision in the instrument for five-yearly reviews, which we are pleased to see with such important safety legislation. However, will sufficient resources be made available to carry out this thorough review process, if they have not been to implement the regulations themselves?

I have a number of questions on the regulations. I note the requirement for the Secretary of State to give approval to submissions relating to ships. Will these approvals be done on submission of written evidence, or will there be a requirement for inspection to ensure compliance with the relevant merchant shipping notices?

In relation to the exemptions set out in Clause 10, how does the Secretary of State reassure himself or herself that the exemption is valid and, under Regulation 10(7), where does the liability sit if the Secretary of State signs off an exemption which is later found to have resulted in loss of property or life? Is it with the owner or master, or with the Secretary of State?

Regulation 11 sets out details of a regime of engineering analysis in relation to exemptions. What analysis has been done of the likely workload for this and the capacity within the DfT to manage the review of the submitted engineering analyses? If the answers to those questions are not available immediately, I am happy to take written responses.

My noble friend Lord Berkeley gave the example of the “Pentalina”. On that incident, I commend the work of the RNLI, which very quickly rescued all 60 passengers, which was its usual fantastic work. I was also very reassured to hear my noble friend with his customary advocacy for Scilly passengers. I want to mention the example of the “Felicity Ace”, given by my honourable friend Mike Kane MP and mentioned by the noble Lord, Lord Greenway. The Commons debate on these regulations set out new risks associated with the carriage of electric vehicles on shipping. In this example, which was cited, a serious fire took place on the “Felicity Ace” earlier this year. Some 4,000 cars were being carried, and although, thank goodness, no lives were lost on that occasion, the ship sadly sank to the bottom of the Atlantic, as the fire continued to be fuelled by the lithium batteries in the cars. I am aware that the land-based fire service has some concerns relating to similar risks, so this is clearly an important issue for shipping fire safety regulations to take into account. Can the Minister give us an update on how that risk is being considered, specifically in relation to fire safety on shipping?

The Conference on Fire Safety at Sea, held in 2022 in Lisbon, identified 20 specific challenges for vehicle-carrying ships. These are currently being assessed for their impact on risk reduction and cost, and advisory groups are being set up with operators and flag states. It is estimated that the potential of this work to significantly strengthen independent fire protection is between 35% and 45%. Will that data be considered as these regulations are implemented?

Lastly, I note that only five responses were received to the consultation on these regulations. Can the Minister tell us what consideration was given to extending the consultation or to approaching operators directly to achieve a better response rate? We also note that four of the five consultation responses, while supporting the ambulatory reference provision contained in the regulations—we agree that it is very sensible that these regulations are now updated automatically, as international regulations are updated—asked that arrangements be put in place to consult operators to ensure that changes are discussed with them before they are made. Will the Minister comment on any steps that have been put in place to do this?

We look forward to hearing the Minister’s response to the further points raised in this debate. I am sure there can be no argument relating to the critical importance of safety at sea, so we are keen to hear why this has all taken so long and to learn how any lessons learned from the delay will be used to improve the process for the future. Our maritime nation depends so much on our ability to trade, travel and ship goods safely. We owe it to all those involved to ensure our ships meet the highest fire and other safety standards, without decades of delay for the implementation of internationally agreed regulations. I do not think there is any disagreement across the House on any of that. We need to make sure that the systems and resources are in place to deal with it.

[Baroness Vere of Norbiton (Con)]

My Lords, I am enormously grateful to all noble Lords who have taken part in this short debate covering the ground of the regulations themselves and of course the backlog, which I am aware has been debated a number of times in your Lordships’ House, both in the Chamber and in Grand Committee in the Moses Room. Indeed, we will probably debate it again a few more times before the end of the year, as the backlog will once again resurface, and there will no doubt be further debates on the bits of secondary legislation that come through. However, I believe I can give myself some credit. I was a bit savvy before the debate today, in that I wrote to the SLSC last week; towards the end of the week, I placed a copy of the letter in the Library, and I will obviously share it with all noble Lords who have spoken today. It is the latest update on the international maritime backlog. If I could wish it away, I sincerely would, but I will no doubt be on my feet in front of your Lordships many times to explain that I am doing my absolute utmost to make it go away.

It is important to note that, in all circumstances, resources are never unlimited—they simply are not. The noble Baroness, Lady Taylor, said that I stated that this was a very significant issue. I never said that—I did not say that at all. Of course resources must be considered, and of course any Government of any colour will need to prioritise. In these circumstances, we did prioritise: the Department for Transport and the Maritime and Coastguard Agency prioritise in the secondary legislation that we bring through. The Department for Transport has an enormous secondary legislation programme, and one of the limiting factors is not resources in the department but the time that your Lordships have to consider secondary legislation—parliamentary time is one of our biggest challenges in getting secondary legislation, or indeed other legislation, through.

[Lord Berkeley (Lab)]

Before the Minister finishes on resources, can I make a comment? Most of the detailed work on catching up falls on the MCA. I have heard quite a few comments from people who deal with it saying that it is very short-staffed. The Minister shakes her head but I have heard it from other people. They say it is partly because the pay rates are pretty low but also because there is a shortage of people with the necessary highly technical experience. Perhaps she would look into that. I hope it is not what is restraining catching up.

[Baroness Vere of Norbiton (Con)]

Obviously, the MCA is quite a large organisation and has many different people fulfilling different roles. The question is whether we have the right people focusing on the backlog at this moment. We absolutely do, and I still intend to get the backlog cleared by 2023. I think that would be welcomed by all.

On the various other issues mentioned by noble Lords, it is worth reflecting on the impact of the delays of these regulations to UK ship fire safety. The vast majority of the ships on the UK register, to which these regulations apply, trade internationally. The vast majority will have been built with these regulations in mind. They already operate internationally and therefore need to comply with these requirements in other port state jurisdictions. We have seen no evidence that delays in introducing this instrument have led to an increased risk from fire on ships to which it would apply. Indeed, looking at the MCA surveys and detentions data, we believe that compliance with the requirements of SOLAS chapter II-2 has been very good. Since 2015, 21 UK ships have been detained for fire-related non-compliance, but none of these detentions related to contraventions of the requirements of SOLAS II-2.

As I noted in my opening remarks, there are other ways for the MCA to enforce against unseaworthy and unsafe practices on ships. We consider the elements within the contravention at all times. The MCA already provides advice on the convention, whether or not those amendments have already gone into UK domestic law, because they are advising ship owners and operators about when they are travelling beyond UK waters, when they will have to comply. It is not the case that we are starting from a clean slate and have ship owners and operators who do not know that this is coming down the track. They absolutely do: these are international ships plying international waters, and therefore they will be complying. The MCA has found no evidence that they are not. There is no question that the MCA is not keeping up with the changes per se, as a noble Lord or noble Baroness mentioned. It is just that the legislation has not been put in place.

A number of noble Lords mentioned the ambulatory references. The noble Baroness, Lady Randerson, seemed to imply that it was a new thing but, again, it is not. We have been doing it for quite some time, particularly for maritime regulations. As the noble Lord, Lord Greenway, pointed out, that is a way that we can stop this backlog building up again in the future, because one does not then need to go back to the original secondary instrument and change it whenever amendments are made. That is why we do it. Indeed, there are many more amendments coming into force on 1 January 2024, I believe.

There are safeguards that should be in after consultation with the industry. We are satisfied that we have very good consultation routes into the industry around SOLAS changes. If there are objections and the UK Government decide that they want to object to something, we would pass further secondary legislation to exempt that particular thing. In general, we believe that we have a high standing within the IMO, and we nearly always agree with the changes that go through. Therefore, we feel that putting in ambulatory references is absolutely the way to go.

I welcome the noble Baroness, Lady Randerson, to the SLSC. I do not know whether I should be more or less terrified now as my secondary legislation goes through that committee, but I am sure that her immeasurable experience will be very helpful in that scrutiny. As I noted, there will be a few more to come before the end of the year.

I cannot give a timeline on the review of the domestic legislation and regulations for domestic voyages and ships. In maritime, there are different regulations for different types of vessels on different types of water, which is why it is so very complicated and needs to be reviewed and why we did not simply lump all the domestic vessels in with these regulations; that would not have been right. If I have any further information on the timeline, I will certainly write.

Which regulations cover other vessels is hugely varied. It never ceases to amaze me how many classes of ships there are. There are regulations relating to workboats, fishing vessels, domestic passenger vessels and so on, so I cannot provide a specific example covering all possible types of vessels. In general, naval ships will follow these regulations. However, they may have certain exclusions because of their need to carry out warfare, so they might be slightly different. The MCA still inspects naval ships, but they have a slightly different arrangement with the MoD, given the different tasking of those vessels.

I briefly want to cover the retained EU law point. Obviously, the retained EU law Bill is continuing its passage through Parliament. My department has the resources available and is starting to plan the legislative programme that will follow that Bill when it comes into law.

I am convinced that there are other things that I have not yet answered, but I will be very happy to write. In doing so, I will include a copy of the letter that I wrote to the SLSC on a recent update. I look forward to discussing maritime secondary legislation again with noble Lords in the future.