We are told in the explanatory notes that clause 83 differs slightly from the Road Traffic Act 1988 and the Transport and Works Act 1992, in that it refers to ''reasonable force'' rather than ''by force''. Would the Minister care to establish the difference?
The Bill also allows the police officer to be accompanied, whereas the 1998 Act and the 1992 Act do not. We are also told that the Bill does not extend to Scotland, where adequate common law powers of entry exist.
The clause raises an interesting issue. The clause states:
''A constable in uniform may board a ship''.
Does that power give a police officer the right of entry to a privately owned recreational craft or boat? The industry is concerned about that matter, which was raised during consultation but has not been resolved, and so would be helpful if the Under-Secretary could clarify it. If the Under-Secretary confirms that the police will have the power to board a recreational craft, does that mean that a police officer will have the right of entry to a privately owned recreational boat? Most of the Bill's provisions, largely because of the nature of the offences, seem to be aimed at commercial boats that carry substantial numbers of people. Will privately owned boats also be covered?
Paragraphs 94 to 98 of the explanatory notes refer to the human rights dimension—as we saw in part 3 relating to the British Transport police. They refer particularly to the following articles of the European convention on human rights, now enshrined in the Human Rights Act 1998: article 5, guaranteeing the right to liberty and security, article 6, guaranteeing the right to a fair trial, and article 8, guaranteeing the right to respect for private and family life. I believe that those articles could be used as a defence to frustrate the intentions of the Bill. The explanatory notes state:
''Article 5 is subject to the qualification of lawful arrest on reasonable suspicion that an offence has been committed or for its prevention. The powers of arrest and detention contained in this Part are considered necessary and proportionate and within the qualification mentioned.''
Playing devil's advocate, I beg to differ. I believe that there will be circumstances in which those articles might be an accused person's first line of defence, either for a commercial or a privately owned ship. The private owner of a recreational craft could use colourful language to tell the police constable or a detaining officer to go about his business because he or she wants to enjoy the private property.
The explanatory notes state:
''Article 6 (which is linked to a privilege against self-incrimination) is engaged principally by the provisions requiring specimens of breath, blood or urine to be provided by a suspect. However, the courts have held that the privilege is not absolute in circumstances where a proportionate response is required to combat a serious social problem.''
The Government argue that this is considered to be such a case. A defence lawyer would probably argue that it is not. Again, in addition to article 5, could article 6 be used to frustrate the Government's intentions?
The explanatory notes continue:
''Article 8 is subject to the qualification that a public authority may interfere with the right to private and family life provided that it does so in a proportionate manner for the prevention of crime and the protection of the public.''
Again, article 8 could be used by any decent defence lawyer to argue that the clause prevents an individual from having the right to enjoy his or her private and family life and, per se, his or her private yacht or inland waterway craft. The Government consider the clause to be compatible with the European convention on human rights, but the Opposition's concern is that any half decent, self-respecting defence lawyer will use it to frustrate the intentions behind the clause.
I am sure that the Under-Secretary will tell us that the clause is necessary because clauses 80 to 82 would have no effect without it. It gives the constable in uniform, with or without his hat, the right to board a ship provided that he has reasonable suspicion that he may want to exercise the powers given to him. It says that he ''may use reasonable force''
''may be accompanied by one or more persons.''
This may be a good opportunity to ask the Under-Secretary to put our minds at rest by assuring us that if a police officer has the right of entry on every craft, whether privately or commercially owned, the European convention on human rights, if it applies, will not be used to frustrate the Bill, especially clauses 80 to 83.
I have just found something of interest in the explanatory notes, which I hope the Under-Secretary will be able to clarify. Paragraph 90, on page 25, refers to subsection (3)(a) and its reference to ''may use reasonable force''. It states:
Which is right and which is wrong, and do the Government intend to propose legislation to change the Road Traffic Act 1988?
If the enforcement measures are to be effective, a police officer must be able to board ship or to enter any other place, as appropriate, to make an arrest or to exercise any of his powers under clause 80—the powers under the road traffic legislation as modified by the table in that clause. Those powers include requesting a specimen, and are substantially similar to section 6(6) of the Road Traffic Act 1988.
A police officer may use reasonable force and may be accompanied as necessary in exercising the power under this provision. I am informed that there is little difference in practice between ''reasonable force'' and ''by force''. Under our legal system, a police officer always has to act reasonably in such circumstances.
As the Under-Secretary was once a member of the Government's Whips Office, I am sure that he would agree that there is a fine balance between reasonable force and force, and that he will have it right.
I think, Mr. Hurst, you will remember that in my careful charge as a Whip force was never used. Only gentle persuasion, at the very most, was ever used by the Whip's Office.
As the Under-Secretary represents a Plymouth constituency, has he ever had occasion to board a vessel that did not wish him to do so? Has he thought about the practicalities of boarding a moving vessel from another moving vessel at sea, and using force in the process?
Thank you, Mr. Hurst. I was deeply tempted by the hon. Lady's comment. I have never
landed on board ship from a helicopter but I have been on a helicopter from which someone was lowered on to a moving vessel, so I know that it is possible. Of course, the Royal Navy has a large presence in my constituency and on occasion it boards vessels off our coast and in other parts of the world to enforce laws. If necessary, it uses reasonable force in the circumstances, and a 16,000 tonne vessel with some large guns on board can use substantial force.
In order effectively to operate the enforcement regime, the police will often require assistance from the appropriate authorities to gain access to vessels, especially while they are at sea within UK territorial waters. We anticipate that sometimes maritime, harbour or inland waterway authorities may need to be involved. Marine officials may accompany the constable in uniform—for example, when he is being transferred from one vessel to another by helicopter. I accept, as the hon. Member for Vale of York said, that that may be difficult or problematic, and it is not to be done by someone without the appropriate training.
The hon. Lady asked whether powers of entry applied to recreational vessels and the answer is yes, but in the circumstances set out in a previous clause. The explanatory notes make it clear that we are satisfied that the Bill is compatible with the European convention on human rights. Had we not been of that mind, we would not have proceeded. This part of the Bill raises ECHR issues similar to those that apply to drink-drive legislation for roads. We are not aware of any issues that would cast that legislation into doubt.
I am most grateful to the Minister for that clarification; the police must have a right of entry. The nature of boardings was explained to me during my six days on HMS Cumberland; one reason for the Royal Navy being in the Gulf at that time was to police the embargo on Iraq breaking United Nations sanctions and exporting its oil. My question was not about a police officer boarding a ship from a helicopter but about the much more likely scenario of an officer boarding from another vessel at sea and the difficulties involved in trying to move from one to another.
One definitions states that any commissioned naval or military officer is considered for the purposes of section 284 of the Merchant Shipping Act 1995 as a proper person. In this clause, we are talking about a constable, for whom boarding a ship could be extremely dangerous, and I hope that the Government have taken that on board. It is most helpful to know that recreational craft will be covered. We hope that the Government are right that the European convention on human rights will not have a negative impact and be used as a defence to frustrate the Bill's purposes.
Question put and agreed to.
Clause 83 ordered to stand part of the Bill.