Supplementary written evidence submitted by
Professor Alan Bogg (POF0001)

This is just a quick note to follow up on what I was about to say at the end. It is sufficiently important to warrant a follow up communication in view of the importance of the point.

It is important not to assume too readily that the s. 193A duty (notifying the competent authority in the flag state) is delinked from the s. 194 criminal offence of failing to notify the secretary of state.

There is the obvious linguistic point that s. 194 defines the relevant offence as a failure to notify the Secretary of State. In s. 193A, the duty is to notify the 'competent authority' in the flag state. Hence, the s. 193A duty and the s. 194 offence do not align. P&O did not inform the Secretary of State because it did not need to under s. 193A.

This would be an unattractive position.

(i) The genesis of s. 193A was the 2015 Seafarers' Directive. The Directive was based on two broad principles: (i) the parity principle: removing exclusions of seafarers from various EU directives so that they enjoyed equal employment rights with land-based employees; (ii) the non-regression principle: that existing protections in national law for seafarers should not be reduced in the implementation of the Directive.

(ii) Seafarers were excluded from the EU collective redundancies directive but they were not excluded from the national protections in TULRCA. So, there was already 'parity' for seafarers in UK law.

(iii) The conclusion that s. 193A is a legal duty without a penalty would be unattractive for three main legal reasons:

• it would involve a breach of the Seafarers' Directive parity principle because there would be strong enforcement provisions for the standard s. 193 duty and no enforcement provisions for the s. 193A duty.
• It would involve a regression in domestic protections for seafarers, who were already included in the TULRCA provisions on collective redundancies before the 2018 amendments.
• It would involve a breach of Article 6 of the collective redundancies directive which requires enforcement of the obligations provided for in the directive. The 'no sanction' reading of s. 193A would leave this obligation without an enforcement mechanism.

(iv) In textual terms, s. 193A states 's. 193 has effect subject to...[s 193A]'. It is plausible to view this as including the enforcement mechanisms for s. 193, because this is the way that s. 193 'has effect'.

(v) This would involve interpreting the s. 194 to include two distinct duties (a) a failure to notify the Secretary of State 'or the competent authority' (in the s. 193A scenario); (b) a failure to do so in accordance with the relevant time scales as set out in s. 193. This could be supported by the Marleasing duty, which requires courts to interpret national law as far as possible to give effect to the directive in light of its purpose. The argument would be easier still if the EU Charter of Fundamental Rights was still applicable, given the important role of Article 47 and the right to an effective remedy. The Charter can no longer be relied upon in national courts.

(vi) We should recognise that this is an unattractive situation. It is generally undesirable to interpret criminal offences broadly by reading in extra words, particularly given issues around retroactive criminal penalties. It would have been better if in 2018 the terms of s. 194 had been extended expressly to include the s. 193A provision. In my opinion, the Government is open to criticism for not considering this apparent lacuna; but it is likely to have been an oversight rather than intentional. That would be supported by Hansard, and in particular the comments of Baroness Sugg in introducing the 2018 Regulations.

However, the conclusion that s. 194 does not apply to the P&O situation is also very unattractive in light of the history of the 2018 amendment and its basis in the 2015 Directive. 

It is important to keep all this context in view when considering the scope for criminal liability for breach of s. 193A.

March 2022