Clause 13 - Enforcement powers in relation to ships

Modern Slavery Bill – in a Public Bill Committee at on 9 September 2014.

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Amendment proposed (this day): 6, in clause 13, page 9,  line 23, after “waters” insert “or in international waters that do not form part of the territorial sea of any State”.

This amendment enables law enforcement officers to exercise enforcement powers in relation to stateless vessels in international waters that do not form part of the territorial sea of any State, where a modern slavery offence is suspected.—(Karen Bradley.)

Question again proposed, That the amendment be made.

Photo of David Crausby David Crausby Labour, Bolton North East

I remind the Committee that with this we are discussing the following: amendment 28, in clause 13, page 9, line 44, at end add—

‘(6A) The Secretary of State shall set out in a published memorandum how the authority under subsection (3) is to be exercised.”

Amendment 58, in clause 13, page 10, line 4, at end add—

‘(7A) The Secretary of State shall, by way of regulations—

(a) establish means to ensure that trends in maritime trafficking and forced labour in the UK and international waters are identified and tracked;

(b) establish means to ensure that intelligence and information on maritime trafficking and forced labour are communicated to the enforcement officers set out in this provision;

(c) establish means to ensure that co-ordination and intelligence sharing in relation to maritime trafficking and forced labour occurs between the agencies responsible for the enforcement officers as set out in this provision;

(d) establish means to ensure that enforcement officers set out in this provision are aware of their responsibilities to potential and actual victims of trafficking and forced labour;

(e) receive bi-annual reports from the agencies responsible for the enforcement officers in relation to their attempts to identify and disrupt maritime trafficking and forced labour, and to assist the victims.”

Amendment 57, in clause 13, page 10, line 11, at end add—

“and all territorial waters of the United Kingdom including its dependencies and territories.”

Amendment 27, in clause 13, page 11, line 3, at end insert—

“(10) The Secretary of State must submit a report annually to Parliament on the use of sections 11, 12 and 13 of this Act in the previous 12 months.”

Photo of Michael Connarty Michael Connarty Labour, Linlithgow and East Falkirk

The Minister has heard much that I hope will give her thought and send her civil servants scurrying to Scotland to talk about the extra-territorial nature of the clause, as it deals only with England and Wales. I will leave it at that for now.

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

I finally get the chance to say that it is a pleasure to serve under your chairmanship, Mr Crausby, not yet having made a verbal contribution to the debate while you have been in the Chair.

We are debating numerous amendments, and I will come to each in turn. I will start by commenting on the contribution made by the hon. Member for Linlithgow and East Falkirk. I think he suggested that something that I said might encourage a yes vote in next week’s referendum. I sincerely hope not. As a Member representing a landlocked English constituency, I feel I have little expertise to contribute to that debate, but I hope that next week we will see a resounding no vote, because I personally do not want Scotland to leave the Union. I do not think we will be better alone; we are more than the sum of our parts, and I very much hope that the people of Scotland will choose to stay with the people of England and Wales, who really do appreciate their part in the Union. I reiterate that if anything I have said might indicate that that is not the case, I hope that nobody will take it in that way.

Before I go into more detail, I want to say that there have been significant and extensive discussions with all devolved Administrations and other Crown and overseas territories and so on, because we want to ensure that the Bill extends appropriately. However, as I am sure hon. Members understand, these are complex issues. The last thing that I wish to do, sitting here in the Westminster Parliament, is to impose anything on devolved Administrations that is unacceptable to them. I hope we will shortly be in a position to deal with any anomalies or concerns, but I reassure Members that we are talking extensively to Members of the devolved Administrations in Scotland and Northern Ireland in order to ensure that the Bill’s territorial extent is appropriate.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

The key point is that under schedule 2 to the Bill, to which we will come shortly, an enforcement officer may board a ship, search it or do various other activities described in the schedule. If that ship is outside the port of Stranraer or the city of Belfast, or in some other Northern Irish or Scottish waters, will those powers exist? That is the key question for the Minister.

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

Control over territorial waters of the devolved Administrations lies with those Administrations. We need to ensure that we have the right mechanisms in the Bill that are appropriate and acceptable to the devolved Administrations. I reassure Members again that those discussions are ongoing. I very much hope that any anomalies or concerns will be resolved shortly, but it is a complex issue.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

I sat in this very Committee Room 18 months ago, where my hon. Friend the Member for Kingston upon Hull North is sitting now, discussing the National Crime Agency. The Minister then gave the  very same assurances with regard to that organisation, but 18 months later, the NCA still does not operate in Northern Ireland. Does the Minister regard Border Force officials as United Kingdom Border Force officials or Border Force officials for England and Wales? That is the key question in the Bill. We are being asked today to support clauses that mean Border Force officials, as the Bill stands, cannot board a ship in the territorial waters of my hon. Friend the Member for Foyle or in any of the territorial waters around Scotland.

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

As I say, it is an anomaly that we are dealing with. We are making sure that we do it properly and effectively and that we do so in a way that is acceptable to those devolved Administrations. I want to reassure the right hon. Gentleman—I am sure that he saw the press release over the weekend about the National Crime Agency and their role in Northern Ireland from the devolved Administration.

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

That is not the topic of the debate, but I am sure that he will be reassured when he sees that press release. I also very much hope that soon, we will be able to come back to Members with a resolution to the problem.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (International Development), Shadow SDLP Spokesperson (Work and Pensions), Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

For the benefit of my right hon. Friend the Member for Delyn, I can confirm that things are moving in a way that seems to indicate that issues relating to the NCA are now more robustly Patten-proofed than had been the case. On the Minister’s point about discussions with the devolved Administrations, is she trying to tell us that they have some sensitivity in relation to the issue of territorial waters, or is she saying that she hopes, as a result of those discussions, that the Bill could be amended in the future along the lines we are discussing today?

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

What I will say now is that this is a very complex area and we need to make sure that we get it right. However, the intention is that the Bill will extend and we will not have any anomalies or complications in the future that mean that those slave masters escape justice. That is what we are all looking to achieve.

On the topic of Border Force, I want to inform the Committee of a visit I paid to Glasgow over the summer, at the time of the Commonwealth games—I did not actually attend any of the Commonwealth games, but I just happened to be in the city at the same time. However, I did get the opportunity to spend time with Border Force at Glasgow airport and saw the extremely good work that Border Force is doing on combating slavery, particularly in the fishing industry and with the container ships coming into Stranraer. I learnt an awful lot about what it does and I was very impressed by the work it is doing in Glasgow. I am confident that slave masters, should they choose to come anywhere into the United Kingdom, will find that there is no welcome for them in Scotland and that the Border Force officials there are doing their utmost to find and catch them, and to make sure that slave masters are unable to carry out the activities that we all wish to stop them doing.

On amendment 57, it is absolutely vital that we create an effective new enforcement power in relation to ships. Again, I am committed to working with the devolved Administrations to ensure that we have a co-ordinated, effective, UK-wide approach to tackling all aspects of modern slavery. I am grateful to the hon. Member for Linlithgow and East Falkirk for setting out why the enforcement powers at sea might be more effective if they were UK-wide and also covered Crown dependencies and British overseas territories. I agree with many of his arguments. We are actively considering what further extensions to the clause might be required to make it effective. As I said, we are in the middle of complex discussions and it is critical that any extensions be taken forward following consultation agreement from the relevant legislatures, respecting their devolution settlements.

Photo of Michael Connarty Michael Connarty Labour, Linlithgow and East Falkirk

I am putting the Minister on the spot. If I write to the Justice Minister in Scotland—as I often do on many things—and ask him what is going on, will I get a description of an ongoing and, as she said, meaningful discussion with officials, with the detail of what is happening, or is this something the Minister is indicating will suddenly commence? Is there a genuine, ongoing discussion about these clauses with the Justice Minister and with the Minister responsible for the seas around Scotland at this moment?

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

I can absolutely assure the hon. Gentleman that those discussions are ongoing—perhaps not as we speak, but they are ongoing. Being slightly mischievous, I should add that some people might be surprised that I am so fervently in favour of a no vote, as it might mean that the hon. Gentleman is unable to quiz me in quite the same way as he does today. However, I still hope that the Scottish people vote no in their referendum next week. Given those reassurances, I hope he feels able to withdraw his amendment.

Amendments 27 and 58 focus on ensuring the transparent and appropriate use of powers in relation to land vehicles, ships or aircraft, as set out in clauses 11 to 13. I am committed to ensuring that there is proper accountability and scrutiny, so that all law enforcement powers are used effectively in relation to modern slavery. We must also ensure that partners are supported in using the new legislation effectively, and that this activity is reviewed appropriately. That is why the Bill includes provisions for an anti-slavery commissioner, who will have a critical focus on improving law enforcement’s response to modern slavery. I look forward to the Committee’s detailed scrutiny of the provisions relating to the anti-slavery commissioner. However, I reassure Members that the commissioner’s remit includes encouraging “good practice” in

“the prevention, detection, investigation and prosecution of offences under sections 1, 2 and 4”.

Reporting on the use of the powers set out in clauses 11 to 13 is also part of the commissioner’s remit. I consider that method of review to be more appropriate than legislating for annual reports, as proposed in amendment 27. Similarly, the bi-annual reports suggested in amendment 58 could place a disproportionate burden on law enforcement and Home Office officials to provide and collate that information. Such requirements are not in place for the existing powers in relation to drug trafficking, on which clause 13 is based, or the existing powers of  detention and forfeiture in relation to trafficking linked to sexual exploitation, on which clauses 11 and 12 are based. Where law enforcement discovers a potential victim of trafficking through the use of these powers, they will be required to notify the National Crime Agency under the new duty to notify set out in clause 44, which will improve the visibility of this currently hidden crime.

Amendment 28 would require the Secretary of State to publish a memorandum on the system through which authorisation would be sought from the Secretary of State to act in relation to foreign vessels or in foreign waters under the enforcement powers at sea set out in clause 13. The mechanism used to authorise such activity will be the same as that already working effectively in relation to tackling drug offences at sea, through which the Secretary of State devolves authority to a director within Border Force, who is then available to decide whether to grant approval on her behalf. That function is available 24 hours a day through the Border Force national command centre. The process already functions effectively without placing a duty on the Secretary of State to publish a memorandum, and we do not consider that is required to extend the system to cover modern slavery. We want to ensure the new power is used efficiently and will therefore provide guidance to law enforcement officers on the relevant authorisation processes. We have been clear that legislation is just one element of the response required to tackle modern slavery, and I assure those Members who have tabled amendments that the Government are determined to provide front-line agencies with the guidance they need and to improve scrutiny, accountability and results through the new anti-slavery commissioner.

A number of specific points were raised, and I will try to cover them all. The right hon. Member for Delyn asked about a commitment made during the oral evidence session for something in writing. I understand that the request for the memorandum was made to the NCA, which then wrote a letter following the oral evidence session. If he does not have a copy of that, I am sure we can find one for him. He also asked about the territorial extent and the landward limits. In practice, those using these powers should recognise landward limits, which are marked on charts. We are also working with the devolved Administrations to see if those can be extended across the entire United Kingdom. From my experiences at Glasgow airport, I saw that Border Force officials clearly know exactly where territorial waters begin and end, and have due cognisance of what activity goes on within them.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

My point is that people traffickers will know that as well.

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

I am sure that people traffickers do, but that, of course, is why we are extending the power for stateless vehicles—so that we can go into non-territorial waters. There are clearly issues in dealing with vehicles that are not stateless. At that point, we need to look at negotiating with the overseas power that the ship is registered with and ensuring that we have the appropriate warrants and the ability to board.

Let us be clear: this is provision is intended to stop the traffickers hiding outside ports. It will enable officers to board ships on the open seas rather than having to wait until the traffickers come into port. I know from my conversations with Border Force officials that the risks to the victims of not being able to do that and the risks of what the traffickers and the slave masters may do to those victims to dispose of the evidence need to be tackled. We must have as much power as is reasonable to give our authorities to stop that dreadful situation.

The right hon. Member for Delyn asked about clause 13(6) and about a case where the home state requests assistance but does not authorise the UK to act. Have I got that right?

Photo of David Hanson David Hanson Shadow Minister (Home Affairs) 2:15, 9 September 2014

Clause 13(6) gives the Secretary of State authority in relation to foreign ships. It states:

“Authority for the purposes of subsection (6) may be given only if… the home state has requested assistance”.

There may be occasions when the Secretary of State and enforcement officers wish to exercise the power under subsection (6), but the home state has not requested it. What happens then?

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

That was the point I thought he had made and I was perhaps not explaining it terribly well. Enforcement powers can only be exercised in relation to foreign vessels where to do so would be compatible with the United Nations convention on the law of the sea. This is because we have to respect the constraints of international law. The clause has been carefully drafted in conjunction with the Foreign and Commonwealth Office to ensure that this outcome is achieved. Generally, we would anticipate that action could be taken without referral to another state under clause 13(6)(c), but clearly we have to be aware of international law.

The hon. Member for Foyle asked how the powers would operate in relation to Irish vessels and Irish territorial seas. Activity in relation to Irish vessels or in the territorial seas adjacent to Ireland will follow the same process as for other foreign states. Action will never be taken in the territorial waters of another state without its consent. Authority will also need to be gained from the Secretary of State to ensure that activity on Irish vessels in UK territorial waters is consistent with international law, which will include gaining permission from the Irish Government if that is required.

The hon. Gentleman also asked about the co-ordination between the Home Office and the FCO in relation to fishing licences. We will publish a modern slavery strategy this autumn working across government. We will ensure that Departments are co-ordinated to stop modern slavery. We will listen to the contributions of this Committee as we develop that strategy to ensure that the points raised are fully covered. Finally, there was a question about a British-Irish strategy. Again, that is the point of overall strategy on modern slavery. The points the hon. Gentleman made will be reflected in the work we do to get that strategy right. Given those assurances and the fact that the Government intend to address hon. Members’ concerns, I hope they will not press their amendments.

Photo of Michael Connarty Michael Connarty Labour, Linlithgow and East Falkirk

I made a point about how this measure would operate and I was genuinely seeking guidance about the methodology. I said that I understood  that no equivalent legislation would be brought forward; certainly, that is the case with the Jenny Marra Bill before the Scottish Parliament at the moment. So there is a requirement for this type of legislation on these issues to be carried somewhere. Why is it not a Sewel motion going forward? How will this be implemented? We are making law for England and Wales. We have the problem of Northern Ireland. We have a substantial problem, whether it is a no vote or not, if there is to be a similar anti-slavery Bill in Scotland but without these clauses. I do not know how we are going to have an agreement over jurisdiction unless Scotland is just going to hand us jurisdiction. The normal way is to have a Sewel motion that says Scotland accepts these measures as necessary to make anti-slavery effective in its waters. I do not know what methodology the Minister is thinking of.

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

The point that the hon. Gentleman makes highlights how complex the issue is. There is no simple answer and that is why the discussions have been, and continue to be, ongoing. I hope we will shortly resolve those issues in a way that is satisfactory to the Committee and to the devolved Administrations.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (International Development), Shadow SDLP Spokesperson (Work and Pensions), Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

I appreciate what the Minister said about the point I made in an intervention about the British-Irish Council being one arena in which these issues should be considered right across the jurisdictions of these islands, whether they are devolved, sovereign or whatever. In the context of the questions about Scotland, the Scottish National party says that it is absolutely committed to maintaining and, indeed, enhancing the British-Irish Council. Regardless of what happens next week, that proposition still arises, and I am glad to hear that the Minister and the Government would look positively at that.

The Minister commented on territories, dependent Crown territories and dependencies in future, and about the work programme that her Department will introduce, which will reflect commitments across Government. However, the issues I have raised about what has been happening in some locations are real questions and the concerns are outstanding. There have not been clear answers or positions from the Foreign and Commonwealth Office, which is the Department issuing the licences in the circumstances with all the questions attendant on that. On that basis, I do not have the confidence not to press amendment 57, because the issue of dependencies and territories is as much a consideration in that amendment as questions of the territorial waters of the devolved areas.

I note the Minister’s commitment to dealing seriously and sensitively with devolved Administrations. I cannot apprehend any concerns on the part of devolved Administrations if we were to legislate in the terms set out in the amendment. It is about fully rounding off the competence of those enforcement officers who would be deemed to be such under the Secretary of State in a sensible and straightforward way to avoid any loopholes. It does not prescribe any issues relating to any of the different authorities or agencies that might be working on the seas for the devolved authorities.

I passionately believe in devolution in our situation, and I know that there are a lot of questions today, not least that raised by the First Minister as to whether the  devolved institutions will stay standing in Northern Ireland, which seems amazing to me. However, as a former Deputy First Minister, I cannot see that anybody in the Assembly, of any party, at any level would see anything untoward in the House legislating in the way I suggest in the amendment. On that basis, I shall press amendment 57, as I shall amendment 58.

I have listened carefully to the Minister, who said that amendment 58 would somehow be otiose, because the Bill proposes that the commissioner will provide reports that will look at some of the issues. I am breaching your guidance, Mr Crausby, by anticipating our later discussion in relation to the role of the commissioner. We need to make it clear that the commissioner will report on how their objectives have been met—they will not necessarily report directly on the actions and responsibilities of others—as they are widely described. The amendment states:

“The Secretary of State shall, by way of regulations” provide for guidance, report and reflection on performance. That is hugely important, because there is no point in creating a power unless there is a real power of direction behind it to show an enforcement standard. It is right to vest that power in the Secretary of State but not to over-prescribe it; amendment 58 is deliberately not over-prescriptive. It allows the Secretary of State to provide for reports to be introduced on a broad basis—a much more reliable report for the House than the sort of report that seems to be envisaged for the commissioner, which will be by way of observation and exhortation and relates to specific periods in their strategy, but allows for them to have reports during the life of the strategy. The amendment is a much more firmly framed way of dealing with those issues and would allow the subsequent and overarching reports by the commissioner to have more meaning. It would allow the commissioner to rely on those reports by way of any subsequent assessment that they make in respect of their own reporting powers. The merits of amendment 58 are not offset in any way by the reporting power that is sketched out for the commissioner in the later clause, so I shall press it and amendment 57.

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

I have one final clarifying comment, which may assist the hon. Gentleman. We are working towards seeking the agreement of the devolved Administrations to the extension of clause 13 and schedule 1 of the Bill to Scotland and Northern Ireland. Aspects of that may require a legislative consent motion but the details of how that will work are in the process of being agreed. We are consulting with the Crown dependencies and overseas territories, so I reassure him that we are working on that, take it seriously and want to ensure that it happens.

Amendment 6 agreed to.

Amendment proposed: 58, in clause 13, page 10, line 4, at end add—

‘(7A) The Secretary of State shall, by way of regulations—

(a) establish means to ensure that trends in maritime trafficking and forced labour in the UK and international waters are identified and tracked;

(b) establish means to ensure that intelligence and information on maritime trafficking and forced labour are communicated to the enforcement officers set out in this provision;

(c) establish means to ensure that co-ordination and intelligence sharing in relation to maritime trafficking and forced labour occurs between the agencies responsible for the enforcement officers as set out in this provision;

(d) establish means to ensure that enforcement officers set out in this provision are aware of their responsibilities to potential and actual victims of trafficking and forced labour;

(e) receive bi-annual reports from the agencies responsible for the enforcement officers in relation to their attempts to identify and disrupt maritime trafficking and forced labour, and to assist the victims.”—(Mark Durkan.)

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 10.

Division number 4 Decision Time — Clause 13 - Enforcement powers in relation to ships

Aye: 7 MPs

No: 10 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Amendment proposed: 57, in clause 13, page 10, line 11, at end add

“and all territorial waters of the United Kingdom including its dependencies and territories.”—(Mark Durkan.)

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 10.

Division number 5 Decision Time — Clause 13 - Enforcement powers in relation to ships

Aye: 7 MPs

No: 10 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department 2:30, 9 September 2014

Clause 13 empowers law enforcement officers to investigate modern slavery offences committed at sea. Previously, a loophole in the law prevented them from acting. The National Crime Agency has identified  seven instances in the past two years where law enforcement was unable to act on reports of modern slavery on board vessels. If law enforcement officers have to wait for such vessels to return to UK territorial waters or a UK port before taking action, that can expose victims to extended periods of serious abuse and risk the loss of evidence that could lead to a prosecution. That situation is totally unacceptable, and the Government will put it right.

The clause creates a power to target that loophole. Given the relatively low number of incidents, we anticipate that the power will not have a significant impact on maritime activity, but it will provide a proportionate response to this serious crime. Where a modern slavery offence is suspected, law enforcement will have the power to stop, board, divert and detain a vessel, to search a vessel and obtain information, to make arrests, to seize any relevant evidence and to use reasonable force in performing those functions. Those powers are set out in schedule 1.

The clause mirrors existing powers on drug trafficking in the Criminal Justice (International Co-operation) Act 1990. The serious nature of modern slavery makes it critical that law enforcement has the powers before us so that it can effectively respond to the threat posed by the terrible crimes involved.

The power in the clause can be used by police in England and Wales, the National Crime Agency, and immigration and customs officers. Border Force staff on board Her Majesty’s cutters will be able to act on suspected modern slavery offences. The power will also extend to the Royal Navy, which we anticipate will use it at the request of relevant law enforcement agencies. The provisions will ensure that those agencies with intelligence on modern slavery offences and the operational capacity to respond can use the new power.

The measure will enable action to be taken on any ship in domestic waters, meaning the sea and other waters within the seaward limits of the territorial sea adjacent to England and Wales. In addition, action can be taken against stateless vessels in international waters and against UK flagged vessels in international waters, including the territorial sea of another state.

Where action is taken on a foreign vessel in UK territorial seas adjacent to England and Wales, or on a UK vessel in the territorial waters of another state, authority must be sought from the Secretary of State, with the UK Border Force acting as the delegated competent authority. That is to ensure that activity is in line with international law and that permission has been provided by relevant personnel where appropriate.

The mechanism used to authorise such activity will be the same as that already working effectively in tackling drugs offences at sea, where the Secretary of State devolves authority to a director in the Border Force who is then available to decide on her behalf whether to grant approval. That function is available 24 hours a day through the Border Force national command centre.

The powers can be used only to prevent, detect, investigate or prosecute a modern slavery offence. As set out in schedule 1, they can be exercised only where an officer has reasonable grounds to suspect that a modern slavery offence has been, or is being, committed.

The measures respond to a specific scenario in which law enforcement officers have identified that they are unable to act effectively to stop modern slavery. They  will ensure that criminals can be brought to justice where modern slavery offences take place at sea. I therefore hope that, when the Chair puts the Question, Committee members will feel able to support the clause’s inclusion in the Bill.

Question put and agreed to.

Clause 13, as amended, ordered to stand part of the Bill.