Deregulation Bill

Lord Rooker Excerpts

Tuesday 4th November 2014 Grand Committee

[Lord Gardiner of Kimble]

My Lords, I am fast becoming aware of that. I do not want to provoke my noble friends, but since local authorities took on responsibility for parking enforcement the income from parking has gone up significantly. Local authority surpluses from parking income have more than doubled from £223 million to £512 million between 1997 and 2010. There are obviously some local authorities that are increasing surpluses—clearly not the local authorities with which my noble friends have been associated or which they may know. I pass those figures on as a matter of record.

The Government believe that these proposals are necessary as a matter of principle. People should be able to see what they are accused of when they return to their vehicle, so that they have the opportunity to examine the area for themselves. It is not reasonable for drivers to receive a ticket in the post up to two weeks after the incident has taken place.

The Government also believe that some local authorities are ignoring operational guidance and using CCTVs in areas in which they should not do so. The Traffic Penalty Tribunal told the Transport Select Committee that adjudicators have found cases where camera enforcement is used as a matter of routine where the strict requirements for use in the guidance do not appear to be present. By bringing forward this legislation the Government are seeking to ensure that parking practices are fairer for people.

[Lord Rooker (Lab)]

What is the difference between getting a ticket through the post as a result of camera activity two weeks after the event and getting a ticket in the post as a result of camera activity two weeks after the event when you are whizzing up the M40 and there has been a police car on one of the bridges?

[Lord Gardiner of Kimble]

The noble Lord, Lord Rooker, used the word “whizzing”. I am not sure that anyone could start placing the ticket on a vehicle going at 80 or 90 miles an hour on the motorway. However, I take his point more seriously than perhaps is suggested by making that instant judgment as to why it would not be possible to adhere to these principles for someone going at 80 or 90 miles an hour on the motorway.

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Moved by

[Lord Rooker]

62: Clause 40, page 31, line 15, leave out paragraphs (a) and (b) and insert “in paragraph (a) at the end insert “following a secondary investigation funded by trade unions and other organisations representing families of victims of the accident.””

[Lord Rooker]

My Lords, having noticed that my noble friend Lord Prescott is in his place I shall make my speech shorter than it would otherwise have been, since his expertise in respect of this issue both as a Minister and of course in his previous life is far greater than anything that I can contribute. At Second Reading on 7 July, I mentioned that the Joint Committee that I had the privilege of chairing and that looked at the draft Bill a year ago did not take any evidence on the clause relating to marine accident investigations, so there is no comment in the Joint Committee’s report about the issue. I also said on Second Reading at col. 30 that I thought that we should take a look at it more closely as it goes through this House. I said that in relation to two or three other issues as well. We had hundreds of submissions on a Bill that had 65 clauses at that time—this Bill has 91—so we could not do everything in the time allowed. There were one or two issues on which I thought Parliament should spend some time because it had not done so and it is important that the legislation is scrutinised.

I have gone back to look. Although the Joint Committee did not take any evidence on marine accidents, so far as I can check from the full list on the web it did receive three items of written evidence. One was from the UK Chamber of Shipping. I freely admit that, because the Joint Committee did not go into this in detail, this is the first time that I have read what the UK Chamber of Shipping wrote and I have not done lots of research on this. The UK Chamber of Shipping supported the logic of the change proposed. It pointed out that these changes were outlined in Marine Guidance Note 458 issued in 2012 and no concerns had been raised. There were a lot of red tape challenge issues relating to marine matters that I am not going to go into in great detail. The reference for the UK Chamber of Shipping written evidence is DDB0206. It is on the website.

Nautilus International also sent in written evidence, reference DDB0266, relating to what was then Clause 25 in the draft Bill. I am not going to go into great detail about this. Nautilus International is the union for maritime professionals. It certainly raised matters that ought to be considered. I do not think that it was wholly in support of the amendment as it was drafted. It,

“respectfully pointed out that in the case of the loss of the MV “Derbyshire”, that the technological advancement had been such that it was possible to locate the wreck and to ascertain more accurately its true loss and”—

I have no doubt that my noble friend will raise this—

“so as to bring about changes in the rules of construction that subsequently could save unnecessary burden and expenditure upon the industry”.

Therefore it is an important issue for relatives. It also said,

“it would seem pointless in removing this flexibility from the Secretary of State”—

about a second inquiry—

“that could be extremely beneficial in both allaying public anxiety following a marine incident and addressing the concerns of those directly or indirectly involved”.

The third piece of written evidence, reference DDB0294, was from RMT. It made clear that it strongly opposed the proposal in what was Clause 25. I am not going to go into detail about that because I am going to use part of the RMT brief now.

There were those three bits of evidence and it is important to put this on the record. The evidence was provided, the Joint Committee did not seek any further particulars, and we did not go into any detail regarding the Bill. The matter was raised during the passage of the Bill, which I am pleased about. It was raised while the Bill went through the House of Commons. Last week I apologised straightaway because I had been grossly misinformed about an issue we dealt with last week that I said had not been dealt with in the Commons, but it had been. In this case, the issue certainly was dealt with in the Commons. That is quite important. The issue was dealt with at Second Reading on 3 February and then in Committee on 11 March.

I want to make a couple of general points because the answer from the Government on 11 March from the Solicitor-General appeared to hinge on two key arguments. First, that it would remain mandatory to reopen the formal investigation if there are grounds to suspect a miscarriage of justice. Secondly, removing the duty to reopen will,

“facilitate the more efficient administration of reopened formal inquiries without compromising marine safety”.—[Official Report, Commons Deregulation Bill Committee; 11/3/14; col. 306.]

The RMT’s latest briefing turned up on the internet. I am privileged to have seen this amendment, which I thought was worth raising. I have now come to the conclusion that the clause should not remain in the Bill, but if it does it should be amended. The RMT’s point about the miscarriage of justice is that:

“The Secretary of State’s power in the 1995 Act (269(1)(b)) … to re-open an accident investigation if he/she suspects that a miscarriage of justice may have occurred is retained but we remain concerned that this places the bar too high in such instances and will further deter trade unions, NGOs and others from conducting the sort of campaign that led to the re-opening of the MV Derbyshire investigation and eventually secured justice for the families of those who died at sea working on a UK flagged vessel. We are clear that a duty to reopen an investigation in the circumstances set out here is far safer than the power to re-open on the grounds of a miscarriage of justice”.

So it takes issue with the central plank of the Government’s argument that they have got it right in the Bill.

The second point the Minister made related to the administration of marine accident inquiries. The RMT now says, having considered all these issues, that:

“This line of argument is consistent with that made by the Chamber of Shipping in support of abolishing the Duty. The argument goes that removing the Duty is just a bit of ‘tidying’ to bring the Merchant Shipping Act into line with recently revised guidance … on marine accidents and investigations. RMT continues to reject this line of argument for the following reasons, none of which were satisfactorily answered by the Minister … in Committee”.

I am giving the Minister plenty of warning now about the answers we want today.

As the Government acknowledged in Committee in the Commons, the Marine Accident Investigation Branch is not an enforcement or prosecuting body. Its role is restricted to establishing the causes and circumstances of an accident in the aftermath partly to prevent future accidents. The duty to reopen investigations under the 1995 Act therefore remains an important statutory safeguard over the longer term if the initial accident investigation board investigation is found to be lacking.

Secondly, the duty in the 1995 Act is not regulatory goldplating. Paragraph 6 of the Marine Guidance Note 458 states:

“The Regulations … set out requirements for reporting accidents and serious injuries. They do not require the requirements of formal investigations or other public inquiries”.

Therefore, the duty in the 1995 Act is untouched by recent changes through regulations, and needs to be retained in the event of marine accidents involving UK-flagged vessels, particularly in the deep-sea sector.

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[Lord Prescott]

I thank the Minister very much for giving a response to the last point—I could not expect him to have all the details, but at least he is aware of the problem. However, I still believe it is the right of every British citizen to have an investigation or an inquest—if, for example, their daughter has died. We should surely be entitled to report back to the people and have our Government involved in an inquest, as the Americans are doing. Our Government say, “It happened on a ship registered in the Bahamas”—but the authorities there have not had an inquest, so we should do it. I do not expect the Minister to give an answer, as it is a highly technical point, but perhaps he could just write to me with information from the department as to why we cannot have an inquest on a citizen who has gone missing, whatever the circumstances. The Americans have acted on it, and the least we could do is offer an inquest in which our own police are involved.

[Lord Rooker]

Is the Minister going to get back up with the advice he has got?

[Lord Gardiner of Kimble]

The advice is not on that particular matter but on another one.

[Lord Rooker]

My Lords, I sincerely thank the Minister for his response. This is not an area I have any detailed knowledge of whatever, but I understand that over the years there have been considerable improvements, and heaven forbid there is another big loss. Part of the briefing that I have is about the size of ships. The “Derbyshire” remains the largest UK-registered ship to have been lost at sea—I was unaware of that. It was big, with a gross tonnage of 91,000. As my noble friend said, at the time the bulk carriers accounted for only 7% of the world fleet but for 57% of lost ships, so there was clearly something wrong there that had to be looked at. I find it astonishing that it was found on the sea bed at 4,200 metres. That is an astonishing depth at which to locate and recover a ship.

I will refrain from saying too much about the “Trident”, because with my noble friend here I am trying to cut down my material, but the Minister referred to it. The “Trident” was lost for 35 years. Was there not a sniff at one time that because it had been lost for so long, the cost of reopening the case was considered by some people disproportionate to the potential benefits? Only one recommendation came out of that, while 22 came out of the “Derbyshire”. The Government’s argument—my noble friend raised this because of his detailed knowledge—completely ignores the benefit of emotional closure for the families. The Minister did not refer to that at all, but it is a matter which should be addressed. If there is a sniff about cost here, I would like some further and better particulars before Report. No one is making a cost argument, I am just naturally suspicious and it is a factor that I think has to be considered at the back of our minds.

I am on record as supporting the Bill and am very much in favour of deregulation. The Government do not go far enough sometimes, and the Bill introduces regulation to avoid regulation, so it does bits of both. However, the issue here, unlike other parts of the Bill, is that we know that people have died or have been missing for decades. As a result, we know we have the issue of the families, which should be considered. There are very few cases, as has been said.

Finally, my noble friend is quite right about the discretion of argument. Just looking around the Room, I see former departmental Ministers. I do not know about the noble Lord, Lord Wallace, but there is a difference in the coalition between being Whips and being answerable for other Ministers; I fully accept that. My noble friends Lord Whitty and Lord Prescott and I have been departmental Ministers—I was at a much lower level than my noble friend Lord Prescott—but the issue of discretion is interesting. You are allowed, as a Minister, to choose the colour of your car.

[Lord Prescott]

As long as it was a Jag.

[Lord Rooker]

I did not mean to raise that. My driver always chose the car; but I was allowed to choose the colour. When it comes to big issues where there is discretion, the lawyers pile into the offices, because they are always worried sick about setting a precedent. They will admit that you have discretion and say, “Minister, it is your decision. However, our job is to advise you”. You get this pile of stuff about the pros and cons of creating a precedent. You are almost warned that you are not allowed to create precedents; it goes against the grain. Then their advice will be given to you in writing as part of the audit trail for the Permanent Secretary. If your decision leads to public expenditure that they might not agree with, that note will go to the National Audit Office and the chairman of the Public Accounts Committee.

So all the pressure on the Minister is not to do it: do not use your discretion. We are talking about inquiries. Inquiries cost money; we know that. I have been in six different departments and I have watched that happen in each one—except in Northern Ireland, which was slightly different. There is pressure not to use discretion. I am not saying that it is never used, because clearly it was in the case raised by my noble friend, and I have seen it in other cases, such as when I was at the Home Office with David Blunkett.

When it is legal, it is clear cut. You think, “There is no decision to take; it is taken for me”. That is where seniority comes in. When you are considering chief executives, how much discretion do they have? If they do not have a lot of discretion, the pay grade is lower than for those who have discretion. Those who have discretion are, by and large, pressured in a very subtle way not to use it. As I said, it is about the lawyers, the accounting officer’s certificate and the Perm Sec. Discretion is there on paper. Good examples can be given—I freely admit that—where Ministers exercise it, and it is right and proper that they do. I am just saying that my experience across departments was that, by and large, the pressure is not to use your discretion.

In this case, I have come to the conclusion that we should leave this well alone and I hope that in due course, the House or the Government—it would be better if the Government did it—remove the clause or substantially rewrite it. I hope that that is the message that Ministers will take back to the department: that the provision is unsatisfactory. Obviously, we will return to it on Report. I beg leave to withdraw the amendment.

Amendment 62 withdrawn.