A
BILL
TO
Make provision consequential on Annex VI to the Protocol on Environmental
Protection to the Antarctic Treaty; to amend the Antarctic Act 1994; and for
connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
(1) 5Where—
(a)
activities carried out in Antarctica directly or indirectly give rise to an
environmental emergency, and
(b) the activities are connected with the United Kingdom,
the person who organised the activities must take reasonable, prompt and
10effective response action.
(2) A person who fails to comply with subsection (1) is guilty of an offence.
(3)
A person who is guilty of an offence under this section is liable on conviction
on indictment to imprisonment for a term not exceeding two years or to a fine
or to both.
(4)
15In determining the amount of a fine under subsection (3) the court must take
into account the desirability of securing that the person pays by way of fine an
amount at least equivalent to the costs specified in subsection (5) (to the extent
that those costs have not been (and are not likely to be) recovered from the
person under section 2 or 3).
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(5)
The costs referred to in subsection (4) are the costs that the person would have
incurred had the person taken reasonable, prompt and effective response
action.
(1) This section applies in a case where—
(a)
activities carried out in Antarctica directly or indirectly give rise to an
environmental emergency,
(b)
the person organising the activities does not take reasonable, prompt
10and effective response action, and
(c)
reasonable response action is taken pursuant to Article 5(2) of Annex VI
(action by Parties to Annex VI).
(2)
Where the reasonable response action referred to in subsection (1)(c) is taken
by the Crown or a person specifically authorised by the Crown and—
(a) 15the person organising the activities is based in the United Kingdom, or
(b) the activities are connected with the United Kingdom,
the person organising the activities is (subject to this Part) liable to pay to Her
Majesty’s Government an amount equal to the costs of the action.
(3)
Where the reasonable response action referred to in subsection (1)(c) is taken
20by another Party to Annex VI or a person specifically authorised by such a
Party and—
(a) the person organising the activities is based in the United Kingdom, or
(b)
that person is based in a State which is not a Party to Annex VI but the
activities are connected with the United Kingdom,
25the person organising the activities is (subject to this Part) liable to pay to that
Party an amount equal to the costs of the action.
(4) This section does not impose any liability on—
(a) the Crown or a contractor, sub-contractor or agent of the Crown, or
(b)
another Party to Annex VI or a contractor, sub-contractor or agent of
30such a Party.
(5)
Proceedings pursuant to this section may be brought by any Minister of the
Crown (within the meaning of the Ministers of the Crown Act 1975).
(6) Proceedings may not be brought pursuant to this section after—
(a)
the end of the period of three years beginning with the day on which
35the reasonable response action referred to in subsection (1)(c) was
commenced, or
(b)
if later, the end of the period of three years beginning with the day on
which Her Majesty’s Government or the Party to Annex VI (as the case
may be) ascertained, or ought reasonably to have ascertained, the
40identity of the person organising the activities.
(7)
Subsection (6)(b) does not permit the bringing of proceedings pursuant to this
section after the end of the period of fifteen years beginning with the day on
which the reasonable response action referred to in subsection (1)(c) was
commenced.
(8) 45Proceedings pursuant to this section are not subject—
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(a)
in England and Wales, to section 9(1) of the Limitation Act 1980 (time
limit for actions for sums recoverable by statute);
(b)
in Scotland, to section 6 of the Prescription and Limitation (Scotland)
Act 1973 (extinction of obligations by prescriptive periods of 5 years);
(c)
5in Northern Ireland, to Article 4(d) of the Limitation (Northern Ireland)
Order 1989 (S.I. 1989/1339 (N.I.11)S.I. 1989/1339 (N.I.11)) (time limit for actions for sums
recoverable by virtue of any statutory provision).
(1) This section applies in a case where—
(a)
10activities carried out in Antarctica directly or indirectly give rise to an
environmental emergency,
(b)
the person organising the activities does not take reasonable, prompt
and effective response action, and
(c)
no Party to Annex VI takes response action pursuant to Article 5(2) of
15Annex VI.
(2)
Where the person organising the activities is the Crown, the Secretary of State
is (subject to this Part) liable to pay to the Antarctic Environmental Liability
Fund an amount equal to the recoverable costs of the response action.
(3) Where—
(a) 20the person organising the activities is based in the United Kingdom, or
(b) the activities are connected with the United Kingdom,
the person organising the activities is (subject to this Part) liable to pay to the
Antarctic Environmental Liability Fund an amount equal to the recoverable
costs of the response action.
(4) 25Subsection (3) does not impose any liability on—
(a) the Crown or a contractor, sub-contractor or agent of the Crown, or
(b)
another Party to Annex VI or a contractor, sub-contractor or agent of
such a Party.
(5)
For the purposes of this section, the “recoverable costs” of any response action
30relating to an environmental emergency arising from any activities are the
costs that the person organising the activities would have incurred had the
person taken reasonable, prompt and effective response action.
(6)
An amount payable under subsection (3) is recoverable by the Secretary of
State as if it were a debt due to the Secretary of State.
(7)
35If in any proceedings pursuant to subsection (6) a court determines that a
person is required to pay all or any part of the amount referred to in subsection
(3) to the Secretary of State, the Secretary of State may require the person to pay
it to—
(a) the Antarctic Environmental Liability Fund, or
(b)
40such person as the Secretary of State considers appropriate for the
purposes of securing that the amount is paid to that Fund.
(8)
Where in proceedings pursuant to subsection (6) the Secretary of State receives
all or any part of the amount referred to in subsection (3), the Secretary of State
must pay it to—
(a) 45the Antarctic Environmental Liability Fund, or
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(b)
such person as the Secretary of State considers appropriate for the
purposes of securing that the amount is paid to that Fund.
(9)
Proceedings may not be brought pursuant to subsection (6) at any time after
the end of the period of fifteen years beginning with the day on which the
5Secretary of State became aware, or ought to have become aware, of the
environmental emergency.
(10) Proceedings pursuant to subsection (6) are not subject—
(a)
in England and Wales, to section 9(1) of the Limitation Act 1980 (time
limit for actions for sums recoverable by statute);
(b)
10in Scotland, to section 6 of the Prescription and Limitation (Scotland)
Act 1973 (extinction of obligations by prescriptive periods of 5 years);
(c)
in Northern Ireland, to Article 4(d) of the Limitation (Northern Ireland)
Order 1989 (S.I. 1989/1339 (N.I.11)S.I. 1989/1339 (N.I.11)) (time limit for actions for sums
recoverable by virtue of any statutory provision).
The Schedule contains supplementary provision relating to civil liability under
sections 2 and 3.
(1)
20This section applies to a person organising activities to be carried out in
Antarctica, where the activities are connected with the United Kingdom.
(2) The person must take reasonable preventative measures designed to reduce—
(a) the risk of environmental emergencies arising from those activities, and
(b) the potential adverse impact of such environmental emergencies.
(3) 25Preventative measures under subsection (2) may, for example, include—
(a)
specialised structures or equipment incorporated into the design and
construction of facilities and means of transport;
(b)
specialised procedures for the operation or maintenance of facilities
and means of transport;
(c) 30specialised training.
(4) The person must also make a contingency plan for responding to—
(a)
environmental emergencies which result from or affect the carrying on
of the activities, and
(b)
other incidents with a potential adverse impact on the environment of
35Antarctica which result from or affect the carrying on of the activities.
(5) A contingency plan under subsection (4) may, for example, include—
(a)
in the case of an environmental emergency, plans for taking response
action (see section 1) and informing the Secretary of State (see section
7);
(b)
40in the case of another incident, plans for taking steps in response to the
incident and informing the Secretary of State of it.
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(6)
The duties in subsections (2) and (4) must be complied with by the time when
any of the persons by whom the activities are to be carried out enters
Antarctica.
(7)
A person who fails to comply with subsection (2) by the time specified in
5subsection (6) is guilty of an offence.
(8)
A person who fails to comply with subsection (4) by the time specified in
subsection (6) is guilty of an offence.
(9) A person who is guilty of an offence under this section is liable—
(a)
on conviction on indictment to imprisonment for a term not exceeding
10two years or to a fine or to both;
(b) on summary conviction to a fine not exceeding the statutory maximum.
(1)
A person organising activities to be carried out in Antarctica must secure
adequate insurance cover or other financial security in respect of the matters
15referred to in subsection (2).
(2) Those matters are—
(a)
the cost of taking any response action which the person may be
required to take under section 1 in relation to an environmental
emergency arising directly or indirectly from the activities organised
20by the person;
(b)
any liability which the person may incur under section 2 or 3 in relation
to such an environmental emergency.
(3)
The duty in subsection (1) must be complied with by the time when any of the
persons by whom the activities are to be carried out enters Antarctica.
(4)
25For the purposes of subsection (1), cover or security is not adequate if it is
subject to any limitation, exception or exclusion which makes it fundamentally
deficient for the purposes of providing the cover referred to in that subsection.
(5)
In particular, any cover or security required for the purposes of subsection
(2)(b) is not adequate if it does not extend up to the limits referred to in the
30Schedule which are applicable in the particular case.
(6)
A person who fails to comply with subsection (1) by the time specified in
subsection (3) is guilty of an offence.
(7) A person who is guilty of an offence under this section is liable—
(a)
on conviction on indictment to imprisonment for a term not exceeding
35two years or to a fine or to both;
(b) on summary conviction to a fine not exceeding the statutory maximum.
(8) Subsection (1) does not apply to—
(a) the Crown, or
(b)
another Party to Annex VI or a contractor, sub-contractor or agent of
40such a party.
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(1) Where—
(a)
as a result of the carrying out of activities in Antarctica the person who
5organised them, or any of that person’s employees or agents, becomes
aware of any environmental emergency, and
(b) the activities are connected with the United Kingdom,
the person organising the activities must promptly inform the Secretary of
State about the environmental emergency.
(2)
10It is immaterial for the purposes of subsection (1) whether the activities gave
rise to the emergency.
(3) A person who fails to comply with subsection (1) is guilty of an offence.
(4)
A person is not guilty of an offence under this section if the person informed
the Secretary of State as soon as was practicable in all the circumstances.
(5) 15A person who is guilty of an offence under this section is liable—
(a)
on conviction on indictment to imprisonment for a term not exceeding
two years or to a fine or to both;
(b) on summary conviction to a fine not exceeding the statutory maximum.
(1) 20This section applies where—
(a)
it appears to the Secretary of State that activities carried out in
Antarctica have given rise directly or indirectly to—
(i) an environmental emergency, or
(ii)
an incident with a potential adverse impact on the environment
25of Antarctica, and
(b) the activities are connected with the United Kingdom.
(2)
The Secretary of State may give a notice to the person organising the
activities—
(a) specifying the emergency or incident,
(b)
30requiring the person to give such information as may be specified in the
notice about the emergency or incident and any steps taken in response,
and
(c)
requiring the person to give that information within the period
specified in the notice.
(3)
35A person to whom a notice is given under subsection (2) must comply with the
notice within the period specified in it.
(4) A person who fails to comply with subsection (3) is guilty of an offence.
(5)
A person is not guilty of an offence under this section if that person did not
have the information required and could not reasonably have been expected to
40obtain it.
(6) A person who is guilty of an offence under this section is liable—
(a)
on conviction on indictment to imprisonment for a term not exceeding
two years or to a fine or to both;
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(b) on summary conviction to a fine not exceeding the statutory maximum.
(7)
Information given by a person pursuant to a notice under this section may not
be used in evidence against the person in any criminal proceedings.
Excluded persons
(1)
Nothing in this Part imposes any criminal or civil liability on an individual
who organises activities—
(a) as the employee of another person;
(b) 10in the course of service as a member of the regular forces;
(c)
in the course of service or undertaking training or duties as a member
of the reserve forces.
(2)
In subsection (1), “regular forces” and “reserve forces” have the same meaning
as in the Armed Forces Act 2006 (see section 374 of that Act).
15Excluded activities
(3) In this Act, references to activities do not include—
(a) the activity of fishing for profit, or
(b)
activities carried out or to be carried out in Antarctica on a vessel or
aircraft travelling to an immediate destination outside Antarctica.
(4)
20In subsection (3)(b) “vessel” has the same meaning as in the Antarctic Act 1994
(see section 31(1) of that Act).
Excluded emergencies
(5)
A person is not guilty of an offence under section 1, or liable under section 2 or
3, in relation to an environmental emergency caused by—
(a) 25an act or omission necessary to protect human life or safety;
(b)
a natural disaster, where the person had complied with the
requirements of section 5(2) (preventative measures) in relation to
disasters of that description;
(c) an act of terrorism;
(d) 30an act of belligerency against the activities of the person;
(e)
action which was itself reasonable response action relating to a prior
environmental emergency.
(1) This Part binds the Crown, except as otherwise expressly provided.
(2)
35No contravention of any provision of this Part makes the Crown criminally
liable; but the High Court or, in Scotland, the Court of Session may on the
application of the Secretary of State declare unlawful any act or omission of the
Crown which constitutes such a contravention.
(3)
Subsection (2) does not affect the criminal liability of persons in the service of
40the Crown (but see section 9(1)).
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(4)
For the purposes of this Part, references to the Crown are to be regarded as
including—
(a)
the Natural Environment Research Council (including the British
Antarctic Survey), and
(b) 5any other person specified by order made by the Secretary of State.
(1)
The following provisions of the Antarctic Act 1994 apply in relation to offences
under this Part as if they were offences under Part 2 of that Act—
(a) 10section 17 (places where proceedings may be taken etc);
(b) section 19 (offences by bodies corporate and Scottish partnerships);
(c) section 28 (consents required for institution of proceedings);
(d) section 29(1)(b) and (2) (power to make regulations about arrest etc).
(2)
Where an offence under this Part is committed by an unincorporated
15association and is proved to have been committed with the consent or
connivance of, or to be attributable to any neglect on the part of—
(a)
in the case of an unincorporated association which is a partnership, a
partner or a person purporting to be a partner, or
(b)
in the case of any other unincorporated association, an officer of the
20association or any member of its governing body, or any person who
was purporting to act in any such capacity,
that person (as well as the association) shall be guilty of that offence and liable
to be proceeded against and punished accordingly.
(3)
Proceedings for an offence under this Part alleged to have been committed by
25an unincorporated association are to be brought against it in its own name.
(4) For the purposes of such proceedings—
(a)
rules of court relating to the service of documents shall have effect as if
the association were a body corporate;
(b)
the following provisions shall apply as they apply in relation to a body
30corporate—
(i)
section 33 of the Criminal Justice Act 1925 and Schedule 3 to the
Magistrates’ Courts Act 1980;
(ii)
section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c.
15 (N.I.)) and Schedule 4 to the Magistrates’ Courts (Northern
35Ireland) Order 1981 (SI 1981/1675 (N.I. 26)SI 1981/1675 (N.I. 26)).
(5)
Where a fine is imposed on an unincorporated association on its conviction for
an offence under this Part, the fine shall be paid out of the funds of the
association.
(6) In this section, a reference to an offence under this Part includes—
(a)
40an offence of conspiracy or attempting to commit an offence under this
Part;
(b)
in Scotland, an offence of incitement to commit an offence under this
Part;
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(c)
in England and Wales and Northern Ireland, an offence under Part 2 of
the Serious Crime Act 2007 (encouraging or assisting crime) in relation
to an offence under this Part.
(7)
In this section, references to an unincorporated association include a
5partnership which is not regarded as a legal person under the law of the
country or territory under which it is formed.
(1) An order under this Part may make—
(a) different provision for different cases or circumstances, and
(b) 10incidental and supplementary provision.
(2) An order under this Part must be made by statutory instrument.
(3)
A statutory instrument containing an order under this Part is subject to
annulment in pursuance of a resolution of either House of Parliament.
15Antarctica and the Treaty
(1) In this Part—
“Antarctica” has the same meaning as in the Antarctic Act 1994 (see
section 1 of that Act);
“the Antarctic Treaty” means the Antarctic Treaty signed at Washington
20on 1 December 1959;
“the Protocol” means the Protocol on Environmental Protection to the
Antarctic Treaty done at Madrid on 4 October 1991;
“Annex VI” means Annex VI to the Protocol (liability arising from
environmental emergencies);
25“Party to Annex VI” means any party to the Protocol for which Annex VI
has become effective in accordance with Article 9 of the Protocol;
“another Party to Annex VI” means a Party to Annex VI other than the
United Kingdom;
“the Antarctic Environmental Liability Fund” means the Fund maintained
30and administered by the Secretariat of the Antarctic Treaty pursuant to
Article 12 of Annex VI.
(2) For the purposes of any proceedings under this Part—
(a)
a certificate signed by or on behalf of the Secretary of State and stating
that, at the time of the certificate, a State was or was not a Party to
35Annex VI is conclusive evidence of the facts stated in it, and
(b)
a document purporting to be such a certificate is to be deemed to be one
unless the contrary is proved.
Environmental emergencies etc
(3)
In this Part, “environmental emergency” means an accidental event that results
40in, or imminently threatens to result in, any significant harmful impact on the
environment of Antarctica.
(4)
In this Part, references to the environment of Antarctica include any
concentration in Antarctica of native mammals, birds, plants or invertebrates
(within the meaning of the Antarctic Act 1994).
45Response action