Deregulation Bill

Lord Prescott Excerpts

Tuesday 4th November 2014 Grand Committee

The Government have got to have a much better case than they have made so far in the Commons for dealing with this. It would be much better if it were dealt with in the tranquillity of Grand Committee, in an orderly fashion. I presume that they have had time to think about this. It was raised in the Commons, so it is not a surprise that it is being raised in the Lords. I flagged up at Second Reading that I thought that the House should look at it. I am hoping that the Minister has got some considered views from, I presume, the Department for Transport and others. I beg to move.

[Lord Prescott (Lab)]

First, I congratulate my noble friend Lord Rooker on his usual diligence and research, looking into the details of why the Government want to remove this measure. Indeed, he is right: a lot has come from the inquiries, and I will refer to some of them. I support the deletion of this clause, which would repeal the Merchant Shipping Act 1995. Perhaps I should declare an interest, as I was a seaman for 10 years, a union official, and spent 40 years as a Member of Parliament, 10 of which as a Minister of Transport. I had to order some of these inquiries, and have experience of them, which I will bring to the Committee’s attention.

We are dealing here with the Secretary of State’s power to order a re-hearing of a formal investigation if there is new and important evidence. It is to that judgment that I now address some of my remarks: about how, given that discretion, you may make the wrong decision, and whether it weakens inquiries to simply remove the present duty to order a re-hearing, as the clause would do.

As the former Secretary of State with responsibility for these inquiries and requests for re-hearing, I think that we are all agreed that making judgments about these matters is a duty upon the Secretary of State. The clause would make it discretionary. That is what causes me concern.

I see in the nature of any re-hearing and use of discretionary powers, one is to take into account how long it is since the original inquiry before one is requested to have a re-hearing. The argument is often that it has been too long since the accident, people’s memories are not clear and it is not wise to hold an inquiry under those circumstances. Making a judgment as to the practical value of a re-hearing and what we would gain from it if, indeed, we have one are for the Minister to take account of in his considerations. But, at the end of the day, I should have thought it important, if there is to be a re-hearing, to have some idea of what one wants to find out. Can it be done by discretion? That is why we have inquiries. That is where the judgment comes in—to find out what the facts are. I suggest to noble Lords, and I hope that I will be able to prove, that the only thing a Minister can do at his discretion is to take the advice of his department, which is not always impartial in some circumstances, as I can show. A Minister is therefore highly influenced by the advice he receives from the department.

I should therefore like to present to the Minister and the Committee a couple of experiences that came out of three inquiries. I do not have to go into the detail. Some will already know them, and my noble friend has already mentioned one—the “Derbyshire”, which was a bulk carrier. Another vessel, a fishing trawler, was the “Gaul”, and the third, which most will know about, was the terrible tragedy of the “Marchioness”. When I came into government in 1997, I had to order a re-inquiry into the circumstances of those three incidents.

A long period of time was involved in all those because, after the vessels sank, no vessel was in evidence. It was not known where they were and they were only found later. The “Gaul” went down in 1974 but she was not found until some 18 years later by a TV company that went looking for her. The “Derbyshire” was another case of a vessel that went down and was found many years later, after money was provided from the trade unions and the European Community—to which my noble friend referred. They were pressing hard to get an inquiry as to where the ship was. She sank off Japan, with a loss of 44 lives, most of them from Liverpool, and people wanted to know why. I shall come to the “Marchioness” which was a particular case.

However, in the case of the “Gaul”, which went missing in 1974, she was found in, I think, 1997, with a loss of 36 lives. There had been an inquiry. Inevitably, if the vessel could not be found, one could probably say, to the best of one’s knowledge, “The vessel is not here but she went down in bad weather”. That seemed to be a reasonable conclusion. If there was no further information and no vessel, one had to arrive at that conclusion—and that is what it was. I have to tell noble Lords, as regards the “Gaul”, one has to take account of the relatives. Not much is said in here about the concerns of the relatives. They certainly want to be satisfied that everything has been done about it.

The “Gaul” case is peculiar because British trawlers were used as spy ships in the North Sea, and the Government admitted that to me in Answers to Parliamentary Questions at the time, in the 1970s. The relatives thought that the ship had gone down because she had been torpedoed on a spying mission. It sounds outrageous but that is what they believed. To satisfy that great concern, and knowing that such vessels had been used for spying off the coast of Russia, I ordered the inquiry—more to see if we could get the truth. I could only do that once the ship had been found, as happened many years later. When we investigated, there was no damage from any kind of military action; it was obvious that the ship had been overwhelmed. Anyone who knows about the fishing industry knows that the fish is wound in up the back and side, and if the sea is going the wrong way it fills that type of vessel which goes down very quickly. All the evidence showed that there was insufficient security covering the ship. She had taken a hit by a large wave and gone down. The circumstances of the loss due to the weather were confirmed, as the original inquiry had said in the absence of the ship. But we were trying to satisfy the relatives who wanted to know what happened. That is important in these circumstances.

That was the “Gaul”. I mentioned three ships, and the next was the “Derbyshire”, which sank off the coast of Japan in a typhoon. The first inquiry concluded that there was bad weather but went on to say that it suspected bad seamanship. That caused a great deal of concern among seafarers and their families.

Eighteen years later the ship was discovered after the trade unions went looking for it. Indeed, I had to make a request to Tony Blair who rang Clinton to ask whether we could use the very famous searching mechanisms of Woods Hole. That institution originally found the “Titanic” and it found the “Derbyshire”, which was smashed to bits. It managed to bring the ship together, and there was a remarkable exercise by the investigation branch in Britain to look at what had happened to it.

I do not have time to go into the technical issues but the point is that the re-inquiry then discovered the circumstances. It was not bad seamanship which they were led to believe because a rope hold had been left open and not tied down. Then it found that seamanship was not the problem but a piece of equipment on the ship had led to the loss of the vessel. It was controversial at the time because the shipyards were privatised and they had to give a guarantee that if there was negligence on the ship there would have to be compensation, which the Government would have to pay, not the people who bought the yard.

That is the background that Ministers have to consider when looking at inquiries. The “Derbyshire” case led to changes in the structures of vessels. Two or three of these bulk carriers had gone so it was right to hold the inquiry. The decision of the original inquiry had to be changed and, at the same time, we learnt about the safety of bulk carriers. Those of us in the industry saw an awful lot of bulk carriers, largely off Australia, but we always suspected that there was something wrong with the design.

Then there was the “Marchioness” and the loss of 51 lives. That was a terrible tragedy. In that case the Government did not hold one inquiry, never mind a re-inquiry. I constantly took delegations to Mr Parkinson who was then the Secretary of State. The relatives wanted an inquiry. You might ask why there was not a first inquiry. The Minister decided not to have one. He took the view that there was a court case under way on the “Bowbelle” and if it hit the “Marchioness”, that would lead to a problem. I said at the time of the accident in a letter to the Times that there looked to be negligence on behalf of the department. Why? Those launches had dance decks. When a new deck was put on an old ship the department had to make a decision on stability and safety. In this case the “Bowbelle” came up from behind and the skipper could not see because of all the dancers who were between him on the bridge and the stern.

In the week that the “Marchioness” went down I said that the department had some responsibility for agreeing to the design and the change to the vessel. The Minister had to make a decision about the inquiry. He said that there was nothing to learn from an inquiry. I pointed to a number of inquiries that changed safety procedures in the Thames. If a Minister has discretion in such cases, presumably his department has to be impartial. We discovered that there had been a mistake in the design of the vessel. The legal department told me that we could not have an inquiry because it was too long since the vessel went down. That is the kind of advice you would get from a Minister to another Minister—the memories will not be there. The legal people said to me, “You can’t get the legal power”. I had to go to the Lord Chancellor and get his view and tell my legal department that it was wrong. I ordered that inquiry.

These are the conflicts. A legal department could say, “We might have some responsibility here. We had better not have an inquiry—let’s leave it to the discretion of the Minister”. There were statements from the Minister at the time, and even though there was a duty to carry out an inquiry, he did not do so.

The point of using these ships as examples is that it was left to the discretion of the Minister. There are varying qualities of Minister, including me. One way or another we have to make a judgment. It is not a good idea to give discretion to a Minister who invariably does not come from a background of shipping as I do, which can be measured. Ministers are politicians who come from various backgrounds. He is reliant on experts but should exercise discretion over whether there is anything to be learnt from reopening an inquiry. How do you know that unless you make some inquiries? Do you just make a judgment on something and say, “I have a feeling about this. I’ve read about it in all the papers. They suggest that we should not reopen the inquiry and I won’t”.? You need the facts. How the heck do you get the facts unless they are obtained through investigation and inquiry? Are we actually saying that the Minister can make a decision without knowing the facts? I am not saying that all Ministers necessarily take the advice that is offered. I was given good advice by the department. However, when a decision is left to a Minister’s discretion, he may be overwhelmed by the experts around him whose interest is not to have a further inquiry, as I have shown in the examples I have given.

--- Later in debate ---

There is no question that some such investigations can be hugely important and beneficial, as the noble Lord, Lord Prescott, said. The “Derbyshire” inquiry came only 20 years after the accident, when sister vessels were still operating. It found the cause of the sinking and made 24 safety recommendations—a point referred to by the noble Lord, Lord Rooker.

[Lord Prescott]

It was the reinquiry.

[Lord Gardiner of Kimble]

Yes, it was the reopening of the inquiry, and it happened 20 or so years after the accident.

I stress that, even if there were no obligation to reopen an inquiry, I would strongly expect one to be called if similar circumstances to the “Derbyshire” applied. Of course, I acknowledge the importance of the reopened investigation into, for instance, the loss of the “Derbyshire” both in terms of providing answers to the bereaved families of those who lost their lives and in contributing to enhanced maritime safety for the benefit of all mariners.

I understand all the concerns expressed by the noble Lord, Lord Rooker, in tabling this amendment and by the noble Lords, Lord Davies of Oldham and Lord Prescott. I assure your Lordships that any decision on whether to reopen a formal investigation would be taken very seriously, taking into account the views of all interested parties, including, of course, trade unions.

During consideration of this clause in the other place, the then Solicitor-General explained the principles of how the Secretary of State would approach the decision. My honourable friend confirmed that each case for reopening would be considered on its individual merits. Such considerations would include, although they would not be limited to, the likelihood of lessons being learnt that would improve the safety of current marine operations and ship design; the likelihood of being able to identify the true cause or causes of marine accidents where these had been particularly uncertain prior to the evidence being found; and the likelihood of uncovering information that would provide a deeper understanding of the causes of other marine accidents. In short, Clause 40 would allow the Secretary of State to consider the individual circumstances of a formal investigation when new and important evidence was found, taking a rounded view of the best ways to improve maritime safety.

The noble Lord, Lord Prescott, in referring to his experience, expressed concern about the impartiality of the department and the question of fault. Now, the Marine Accident Investigation Branch must undertake impartial investigations and assess evidence, and indeed it could well criticise any department at fault.

[Lord Prescott]

On that point, I thank the Minister for his explanation. The Marine Accident Investigation Branch has always had a responsibility to investigate. It did so in the case of the “Marchioness” but the Government would not produce the report.

[Lord Gardiner of Kimble]

I think that I may need some advice from behind on that. While I am receiving that, I should mention that the noble Lord, Lord Prescott, referred to what I would describe as “crimes at sea”, which the Government obviously take very seriously.

The Government have promoted guidance on the preservation of evidence at crime scenes with the International Maritime Organization. In our view, these are matters that we must take forward on an international level, with international agreements. I very much understand the points about preservation of evidence and about offering information and understanding to families with loved ones who are in this position.

If I am not given the information now that I hope I might be about to be given, I will be in touch with the noble Lord. However, given all the circumstances, I ask the noble Lord to withdraw his amendment.

[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 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.