Antarctic Bill

Debate between Lord Forsyth of Drumlean and Viscount Montgomery of Alamein

Friday 1st February 2013 Lords Chamber

[Viscount Montgomery of Alamein]

My Lords, the Bill, which has come from the House of Commons and was ably piloted through there by the honourable Member for Stroud, Neil Carmichael, now comes to us for further consideration and, I hope, for its passing into law. My interest in the Bill has been compiled entirely from information received from the Polar Regions Department, a very impressive department within the Foreign and Commonwealth Office. It represents us at the consultative meetings of the Antarctic Treaty system, which take place regularly and regulate, as far as is possible, all activities in that great continent. It is the largest continent in the world and contains no less than 70% of all the fresh water available in it, so it is very important that we take everything connected with the Antarctic very seriously.

The Bill is designed to enhance the protection of the Antarctic environment. This is partly on account of the fact that Antarctic touring during the summer season, which is now—in January and February—has increased considerably, what with yachts, ships, cruise ships and other things all visiting in the very limited period when there are 24 hours of daylight, as opposed to the June/July period when there are 24 hours of darkness.

Part 1 of the Bill, headed “Environmental Emergencies”, would implement Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty into UK legislation, which is headed, “Liability Arising from Environmental Emergencies”, and is known as the liability annexe. This annexe obliges the consultative parties to require Antarctic operators, both governmental and non-governmental, first, to take preventive measures and to establish contingency plans in order to reduce environmental emergencies in Antarctica; secondly,

“to take prompt and effective response action to environmental emergencies arising from”,

their activities; and, thirdly, to obtain insurance or other financial guarantees to reimburse another party or pay into a special fund the costs of response action to an environmental emergency arising from their activities which the operators did not, or could not, undertake to organise themselves. This is a rather detailed and comprehensive arrangement and I have to make apologies for the fact that it seems intensely boring to some of your Lordships. It is in fact of considerable importance to the whole process.

The provisions of Part 1 set out the framework by which those who fail to make effective responses to an environmental emergency in Antarctica would be liable to reimburse the costs to those who take such action. Under the liability annexe, only a state may bring civil proceedings against an operator to recover the costs of response action undertaken. Following the successful passage of this Bill, the Foreign and Commonwealth Office will establish an expert advisory group, consisting of UK Antarctic operators and others with appropriate expertise, to advise on what would have constituted “reasonable response action” in order to determine the level of payment which British operators should reasonably be expected to pay.

The intention would be to enable all financial liability matters to be resolved without the need for court proceedings. However, the Bill would provide the framework for such matters to be settled through the courts as a last resort. The Bill will provide protection for operators from double liability by making it clear that any liability under the Bill will be reduced if the operator is also liable for the same costs under Part IX of the Merchant Shipping Act 1995, which relates to salvage and wrecks.

The Bill will require all those who intend to undertake activities in Antarctica that are connected with the United Kingdom to take preventive measures to minimise the risk and potential impact of environmental emergencies, and to develop contingency plans for responding to any such emergency situation.

The Bill contains an indicative list of preventive measures which those planning to undertake activities would need to have considered prior to entering Antarctica. This list would not however be mandatory in every circumstance, nor is it exhaustive. The onus would be on the operator to demonstrate that they had taken measures to mitigate the environmental risk arising from an emergency. This requirement for contingency plans would cover both the handling of the response to an environmental emergency as well as the response to an incident that is not an environmental emergency but which may have a potential adverse effect on the Antarctic environment. These plans may include what action should be undertaken in response to potential emergencies or incidents, but it is not necessarily expected that every potential incident would be foreseen at the pre-planning stage.

It is proposed that it would be a criminal offence to fail to notify the Secretary of State of an environmental emergency in Antarctica that an organiser of activities becomes aware of as a result of them, their employees or their agents carrying out activities there. Organisers of activities will be required to ensure that mechanisms are in place to require their employees who become aware of an environmental emergency to ensure that the Secretary of State is notified as soon as practicable. The intention behind this requirement is to report all environmental emergencies that the activity organiser becomes aware of and not just those arising as a result of activities they have organised. This would ensure that the UK Government were in a position as soon as practicable to notify the other operators in the region, determine the likely cause of the environmental emergency, and consider what response action should be taken, in consultation with other treaty parties. This could result in some duplication of reporting but that would be better than no notification. The Government would use the criminal sanctions for failure to make such a notification only in extreme cases, and particularly where there was a specific intent not to make such a notification.

[Lord Forsyth of Drumlean]

I apologise for interrupting the noble Viscount. What is the definition of an environmental emergency?

[Viscount Montgomery of Alamein]

That is a very good question. I will refer it to the Minister to answer when he speaks later.