Antarctic Bill

Lord Forsyth of Drumlean Excerpts

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.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, I offer my congratulations to the noble Viscount, Lord Montgomery of Alamein, on bringing this Bill before the House, and to Neil Carmichael in the other place. It is a vital Bill. I apologise to the noble Viscount for interrupting his speech and asking about the definition of an environmental emergency. I hope that the Minister will turn his attention to that matter. It is set out in the Bill in Clause 13(3), which states:

“In this Part, ‘environmental emergency’ means an accidental event that results in, or imminently threatens to result in, any significant harmful impact on the environment of Antarctica”.

Why is it limited to an accidental event? Why is “accidental” included in the subsection? Why does the measure not apply to any event that threatens to have a significant harmful impact? I have no doubt there is a simple explanation for that but it was not obvious to me on reading the Bill.

My noble friend Lord Baker reminded me that my right honourable friend the noble Baroness, Lady Thatcher, first became enthusiastic about the environment when she was told that a British Antarctic Survey team had discovered the hole in the ozone layer as a result of its work in the Antarctic. That was the origin of her pursuing the environment with the vigour that she did when she was Prime Minister.

As my noble friend Lord Selborne pointed out, I had the pleasure of going to Antarctica at Christmas 2010 to climb the highest mountain there. Almost all noble Lords supported that venture in aid of Marie Curie Cancer Care and we raised almost half a million pounds as a result of that visit. I have to say that it was one of the most expensive trips that I have ever taken anywhere. It is very difficult to get there and the costs and difficulties of operating there are immense.

Having been to Antarctica, I have to confess that I did not see any penguins or any animals at all because I went to the interior to climb a mountain and landed at the Union glacier, where it is so cold that no animals or even bacteria can exist. It is a completely lifeless place. For me, it was a quite astonishing, almost spiritual, experience. If you stand on a mountain in Antarctica on a calm day, which does not happen very often, the air is so clear and unpolluted that you can see for many more miles than we are used to doing in other parts of the globe. The thing that is most striking is the silence. There are no birds or airplanes. You look out on a completely unspoilt environment.

I am not noted as a great champion of rigorous regulation but the Antarctic Treaty has been an absolute triumph, as my noble friend Lord Selborne pointed out. Despite the injunctions of the noble Lord, Lord Giddens, I shall resist the temptation to compare it with European Union treaties. It has indeed been hugely successful. When I went to Antarctica, I was supported by an organisation run by former members of the British Antarctic Survey. We should be really proud of that body and what it has achieved—it has been immensely successful. The people involved are incredibly professional and understanding of what is required to operate in a very harsh and unforgiving environment. A simple mistake can mean the loss of fingers and toes or other vital parts of your body.

The treaty means that, for example, before you can leave Chile to get to Antarctica, you have to be briefed and you have to be aware of a set of rules. I do not wish to be indelicate but one thing that people always ask me about the expedition is: if the temperature is minus 35 degrees and you are in a tent, how do you manage with your ablutions? Under the rules, everything —and I mean everything—has to be carried back to Chile. It has to be put in a bag, frozen and carried back. Under the terms of the treaty, you are not allowed to take anything out of Antarctica and you are not allowed to leave anything behind. The only things that you can leave behind are your footprints, and the only things you can away are your memories and photographs. This is rigorously enforced.

I can hear my noble friend asking why that is. If people were to pee in the snow, there would be a series of yellow ice stacks up the mountain as the snow was blown away due to the katabatic winds. Therefore, strict control is applied right the way through. The result is that, when you go to Mount Vinson, it is as God left it—it is completely unspoilt. That is in stark contrast to other high mountains in the world such as Everest, Aconcagua or Kilimanjaro, which are completely strewn with rubbish and desperately polluted. The fact that Mount Vinson is unspoilt is entirely due to the operation of this treaty, and therefore I very much welcome the Bill, which takes it further forward.

The other point that I should like to make—this may seem a little hypocritical, having been there—is that when you go to Antarctica you fly from Punta Arenas and land on a natural ice runway in a Russian plane without windows, which is quite a scary experience. As you leave the plane, you immediately find yourself in Narnia: you are confronted with a blinding white light and a completely unspoilt environment. There is a camp there, which has to be set up every year, and it is amazingly well run and organised. Some of the best food and wine that I have eaten and drunk was at Union glacier. When I complained to the organisers that it seemed a bit extravagant to have such splendid claret, he said, “The cost of the claret is incidental. The real cost is getting it here and taking it out again”. Therefore, Union glacier is a very comfortable camp.

We were stuck at the camp for several days while waiting to get out and there were all kinds of people there. The most interesting people were of course the mountaineers. The next most interesting were the scientists. There are scientists involved in all kinds of work—from putting in GPS systems to working out the movements in the ice cap, measuring the effects of climate change and working out how many neutrinos are hitting the earth as part of deep space research. Others are involved in drilling into the ice core to try to establish the record of climate change. Several scientists pointed out to me that those who drill into the ice core occasionally find pockets of gas. That is the key thing: Antarctica is rich in natural resources—gas and rare metals—and therefore it is very important that the treaty protects it because it is indeed a very fragile environment.

Also at the camp were several Russian and one or two American billionaires in their seventies who had flown to the pole in a private aeroplane. The pole has now become a major tourist attraction for very wealthy people. I said to one lady, “Why are you here?”. She replied, “Well, I’ve been to the North Pole and I’ve booked my trip to space, so I thought I ought to come to the South Pole”. Good luck to her, but it seems to me that if this very fragile environment is subject to those kinds of pressures, it will be damaged, and damaged beyond repair.

Therefore, I congratulate the noble Viscount on this Bill. I believe that we have much to be proud of in the part that we have played as Brits in the preservation of this special part of the planet. It remains unspoilt and a natural laboratory from which we can do the necessary work in order to pass on to the next generation a world that is better than the one we inherited.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, this has been an excellent and expert debate. It demonstrates that there is a complete consensus on the importance we attach to vigorously defending and protecting the environment of the Antarctic. The Bill allows us to ratify a further addition to the corpus of international law that governs the Antarctic continent. As noble Lords will know, Her Majesty’s Government regret—and have for several years—that we were not the first to ratify. However, if the Bill passes—as we very much hope it will—we will be the seventh country to ratify. That answers the question of the noble Earl, Lord Selborne.

So far, Finland, Peru, Poland, Spain and Sweden reported to the most recent Antarctic Treaty Consultative Meeting in June 2012 that they had ratified. Since then, Australia has ratified. When the Bill has completed its passage through both Houses, subject to the will of this House, I know that my honourable friend Neil Carmichael MP is planning a reception to celebrate the Bill and our ratification, to which representatives of the other state parties will be invited. This will provide us with the first opportunity to encourage others to follow us as rapidly as possible in completing the ratification of the treaty. I have just been passed a note stating that Argentina has indicated its intention to ratify the liability annexe.

We maintain absolutely our commitment. It is not just a question of the British Antarctic Survey. We are all aware of how competent and expert the FCO team covering this is. It was a slight shock to me when I met them this morning, having corresponded with them for some time. I had assumed from their level of expertise that they were all about my age and had been studying the Antarctic for 40 or 50 years. To discover that they were about half my age and nevertheless very expert was even more impressive.

I will rapidly respond to a number of points made in the debate. The noble Lord, Lord Avebury, asked about the timescale for the appointment of a new director of the British Antarctic Survey. The Natural Environment Research Council has advertised for a new director. The closing date was 17 January. We understand that the NERC plans to interview candidates in March, so we are making good progress.

In an extremely interesting speech, the noble Lord raised a large number of interesting points. I am amazed and sometimes appalled by the level of his expertise on parts of the world that often I have to start researching by looking them up on a map. On the question of how we might charge for permits to cover clean-up costs, the Government’s consideration on this is that the limits on charges and maximum liability set out in the Bill are already significant. Liability for the smallest vessels is just under £1 million. For larger vessels we are talking about anywhere between £12 million and £30 million. These are generous limits for the potential emergencies that we could envisage. Once the liability annexe comes into force, the Antarctic Treaty parties will review the liability limits. Many consider that they will then need to be raised, for example to come into line with the new limits to be introduced under the Convention on Limitation of Liability for Maritime Claims.

The noble Lord raised the question of protecting Mawson’s huts. The noble Baroness, Lady Hooper, also talked with particular passion about the protection of historic sites and monuments across all Antarctica. The Government are aware of a very extensive Australian restoration programme for Mawson’s huts and so do not think that they will fall into disrepair without British involvement. However, if the UK Antarctic Heritage Trust was invited to contribute expertise to that restoration project, I am sure that it would seriously consider the opportunity, which the Government would encourage it to accept. The Bill’s provisions on historic sites and monuments apply across all Antarctica, and we are engaged with other signatories in co-operative work in their protection.

The noble Lord, Lord Avebury, also raised the question of marine protected areas and fisheries. I confirm that Clause 9(3) specifically excludes the activity of fishing for profit from all requirements in Part 1 of the Bill. This is primarily because the Protocol on Environmental Protection to the Antarctic Treaty does not cover fishing activities, which, as the noble Lord pointed out, are the subject of separate rules and regulations under the Convention on the Conservation of Antarctic Marine Living Resources, which I am told is pronounced “Camlar” as an acronym. As a result, they are specifically excluded from this liability annexe. However, they are covered by other existing international laws.

The British Government are committed to the protection of the Southern Ocean from excessive fishing. We note that fishing for Chilean sea bass has rapidly increased. When I am offered it, I will look at sea bass with an entirely different attitude, having read a number of things about it in the past few days. We have demonstrated our commitment to the designation of marine protected areas in the Southern Ocean. Earlier this year, the Government of South Georgia and the South Sandwich Islands announced one of the largest sustainable-use marine protected areas in the world, covering their entire maritime zone. This year we have developed a further proposal to designate marine protected areas in areas of the Antarctic peninsula that are currently covered by permanent ice.

The UK will also give its full support to the designation of marine protected areas in the east Antarctic and in the Ross Sea during the meeting of the Convention on the Conservation of Antarctic Marine Living Resources. The Ross Sea is one of the most biologically productive areas of the Southern Ocean. Therefore, as the noble Lord remarked, it is a potentially rich source of global protein. However, it must be fished responsibly and sustainably. That will require international collaboration in policing fishing activities—in which the British, of course, will play a full part.

A number of noble Lords raised the question of environmental emergency thresholds. There is no explicit threshold, either in the Bill or in the liability annexe, for what constitutes an environmental emergency. It is defined in Clause 13(3) as,

“an … event that results in, or imminently threatens to result in, any significant harmful impact on the environment of Antarctica”.

So ultimately it will be down to judgment as to what constitutes an environmental emergency. This is why Clause 8 is so important and is constructed to include a broader set of circumstances than simply environmental emergencies.

[Lord Forsyth of Drumlean]

I am sure that my noble friend did not mean to misquote the Bill but it does not actually say that. It does not say an event,

“that results in, or imminently threatens to result in, any significant harmful impact on the environment of Antarctica”.

It says, “an accidental event”. Could he deal with my point as to why the event is qualified by the word “accidental”?

[Lord Wallace of Saltaire]

Certainly. I will come to that briefly and I thank the noble Lord for his intervention.

A number of marine-based activities undertaken in Antarctica are currently covered by earlier, existing conventions such as the Convention on Limitation of Liability for Maritime Claims. However, those not covered by such conventions, particularly yachts or land-based operations, are not currently liable for pollution costs. That explains why this extends to the liability set of issues.

The noble Lord, Lord Forsyth, asked about non-accidental events. Sanctions can be brought under the Antarctic Act 1994 against those who are deliberately causing environmental damage in Antarctica and any person causing such damage will, by virtue of paragraph 1(5) of the schedule be subject to unlimited liability for costs incurred in responding to it. This reflects Article IX of the liability annexe. This is extending existing law to accidents where existing law already covers deliberate environmental degradation.

The noble Lord, Lord Greenway, asked about liability provisions. Paragraph 5 of the schedule ensures that no shipping operator can be held liable for the same cost twice. This means that liability cannot be sought for environmental clean-up under both the LMMC and the Antarctic Bill. If the environmental clean-up work includes vessel salvage, the operator cannot be liable twice under the salvage convention and the Antarctic Bill.

The noble Baroness, Lady Hooper, asked about UK engagement with the Antarctic Treaty Secretariat.

[Lord Forsyth of Drumlean]

I apologise to my noble friend. I expect that I am being a bit thick, but I still do not understand why this word “accidental” is included in the definition of what constitutes an environmental emergency. I understand the point that he makes about deliberate action which causes damage being covered by other legislation, but it is not clear to me why the definition within the Bill of an environmental emergency is qualified by this word “accidental”. There are events that could be an environmental emergency that would not arise from an accidental activity.