Marine and Coastal Access Bill [HL]

I am grateful to the noble Lord, Lord Greenway, for moving this amendment and speaking to Amendment 40. I am also grateful for the specific point that the noble Earl, Lord Cathcart, raised. If the noble Lord, Lord Greenway, will forgive me, I shall address myself to the rather technical point which the noble Earl raised. As he indicated, the Secretary of State’s representative (SOSREP) may make directions under Schedule 3A to the Merchant Shipping Act 1995, as amended, for someone to carry out a licensable activity without a licence in order to remove or reduce the risk of pollution, or more serious pollution. This may include the jettisoning of cargo from a vessel. Any person directed by SOSREP will have the defence of due diligence under Clause 106. In some circumstances they may also have the defence provided under Clause 83 if action is also taken in order to secure, ""the safety of a vessel, aircraft or marine structure … for the purpose of saving life"." It is highly unlikely that a prosecution would be pursued in either of those circumstances. The person appointed as SOSREP would carry out this function as a Minister of the Crown, and is answerable to the Secretary of State. In the circumstances described, it is just not credible that the Secretary of State would ever have proceedings brought against him either under this Bill or under the Merchant Shipping Act 1995, as amended, which does not envisage any such situation. Therefore, I hope that I have given the noble Earl complete reassurance on that important point. On the rather more general points that the noble Lord, Lord Greenway, raised, Clause 83 gives a person a defence against a charge brought against them if they carried out a licensable activity without a licence if they could prove that they did so, ""for the purpose of securing the safety of a vessel, aircraft or marine structure, or for the purpose of saving life"." The circumstances where the emergency defence is available are limited to those four possibilities. Licensable activities in all other circumstances should be undertaken within the terms of the licence in order to protect the environment and human health and to prevent interference with other uses of the sea, which is a cardinal principle underpinning this legislation. For example, a deposit of a potentially dangerous or contaminated substance made to protect cargo is likely to be harmful to the marine environment. It is right that any such activity is controlled or carried out under the terms of the licence, if permitted at all by a licensing authority. Providing a defence as an emergency provision here would set an unwelcome precedent and cause quite severe damage to the objectives of the legislation. We have tried and failed to think of other examples where a licensable activity would be undertaken without licence, or in breach of a licence, in an emergency in order to protect cargo that would not also be for the purposes of securing the safety of a vessel, aircraft or structure, or for the purpose of saving life, with the one exception to which I responded to the noble Earl, Lord Cathcart, where the instruction has been given to the people concerned. We would welcome suggestions of where this may not be the case. We think that the provisions give us total coverage on this matter, but I am always prepared to listen to Members of the Committee on such an important matter, particularly the noble Lord, Lord Greenway. Under Amendment A40, the noble Lord suggests an additional provision in order to provide a defence if a person charged is able to prove that an unlicensed deposit was a result of accidental loss of cargo overboard. The Bill already contains the general defence of due diligence in Clause 106, which provides a defence against a charge if a person carries out a licensable activity without a licence but can prove that they, ""took all such steps as reasonably could be taken to ensure that no offence would be committed"." If a person has taken necessary steps to make secure any cargo or other items on board, a defence would be provided under this provision in Clause 106. The licensing provisions protect those who unwittingly commit an offence while taking all reasonable steps to stay within the law. We would not want someone who has lost items overboard, albeit accidentally, to have a defence available to them if that loss is as a consequence of their own incompetence or neglect. Where those factors obtain, that should not be a proper defence. I want to reassure the noble Lord and the Committee that in all cases the enforcement authority will take into account extenuating circumstances, such as force majeure, when it decides if any enforcement action is appropriate. When we approached the Department for Transport about this amendment, it said that it was not aware of a prosecution that has been pursued in any case where cargo has accidentally been lost from a vessel. For the reasons I have indicated, we think that we have thought about these issues seriously and have covered all eventualities where there could be a reasonable defence. I hope therefore that the noble Lord will feel that he has explored these issues sufficiently to be able to withdraw his amendment.