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Lord Kingsland: I am grateful to the noble and learned Lord for giving way. When I spoke to Amendment No. 207, I ought to have said that we shall not be moving Amendments Nos. 211 and 212.
Lord Goldsmith: That is very helpful. In those circumstances, I can simply invite the noble Lord to withdraw the amendment, and ask the noble Lord, Lord Goodhart, not to move Amendment No. 209.
Viscount Goschen: Before the Minister sits down, he gave examples of where the criminal proceedings and the civil proceedings might be on a different basis. For example, the drug dealer who has been acquitted of a specific offence may well have other property which has been acquired by nefarious means. The Minister put powerful arguments in such cases. But how would the noble and learned Lord ensure that an issue of double jeopardy could not arise if the two were directly related?
I refer, for example, to the case of a racketeer who has been acquitted of racketeering or of a drug smuggler who has been acquitted of drug smuggling, and yet civil proceedings can be brought against such people on the very same basis. Surely under those circumstances the director of the asset recovery agency could pursue action against an individual which would constitute double jeopardy. How can the noble and learned Lord ensure that in such circumstances that could not happen?
Lord Goodhart: The noble and learned Lord dealt mainly with Amendment No. 207. My Amendment No. 209 is rather more targeted and would eliminate the kind of problem referred to by the noble Viscount, Lord Goschen.
7.30 p.m.
Lord Goldsmith: I apologise for lumping the noble Lord's amendment together with another amendment. So far as concerns Amendment No. 209, although I accept that not all of the points I made in respect of
Amendment No. 207 go to Amendment No. 209, most are essentially the same. While I accept that the amendment would focus more clearly on the relationship between the conduct of a person at issue in the civil recovery and the decision reached in the previous criminal proceedings, there could still be many different reasons why it would be appropriate to continue with the civil recovery.I do not shrink from the fact that one of those reasons could be, for example, that either new evidence may come to light after a trial which could not be used to bring further criminal proceedings, or simply that evidence could be available in the civil process which was not available in the criminal one, or that evidence is available in the civil process which would satisfy a court, even though it did not satisfy the criminal process.
Why is that not double jeopardy? So far as the proceeds are concerned, there will not be double jeopardy because the same property cannot be recovered twice. It is not double jeopardy otherwise because the consequence of civil recovery will not be a conviction—a sentence of imprisonment—against the person whose conduct is at issue.
However, I have indicated that there will be cases where the director may well take the view that, having regard to the way in which the criminal trial proceeded, it would not be appropriate to continue with any form of civil recovery. As I mentioned at the outset of my remarks, that would be a matter to which the director would have regard. He is a public authority subject to the Human Rights Act 1998 and he would have to operate in a proportionate manner. There is no reason to think that the director would proceed in a manner inappropriate in the sense of the civil proceedings then brought. However, I hope that the examples I cited earlier would indicate that there will be many cases in which, whether or not there has been a conviction, it would be entirely appropriate to pursue civil recovery if the evidence is available.
Lord Kingsland: I am most grateful to the noble and learned Lord the Attorney-General for his reply and I apologise to him for not indicating at the outset that I did not intend to pursue Amendments Nos. 211 and 212.
Of course I am not happy with what the noble and learned Lord said in response to our Amendment No. 207; but on Report I shall be content to abandon it in favour of Amendment No. 209, promoted by the noble Lord, Lord Goodhart. It has all the marks of the mind of a Chancery lawyer with the accompanying refinement that one might have expected from that class of practitioner.
It also has the happy coincidence of linking with a telling point made by the noble and learned Lord, Lord Lloyd of Berwick, in his intervention during the reply made to him by the noble and learned Lord the Attorney-General. He spoke of the necessity of being able to identify unlawful conduct. Until unlawful conduct is identified, Chapter 1 of Part 5 would not be
triggered. I would submit that that important observation links extremely well with Amendment No. 209 in the name of the noble Lord, Lord Goodhart.In our deliberations on Report, therefore, we shall be backing the noble Lord, Lord Goodhart, on the assumption that he will re-table the amendment. If he does not do so, then we shall adopt it. In the meantime, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 208 and 209 not moved.]
Lord Davies of Oldham: I beg to move that the House do now resume. In moving the Motion, perhaps I may suggest that the Committee stage begins again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
Offshore Chemicals Regulations 2002
7.35 p.m.
Lord Sainsbury of Turville rose to move, That the draft regulations laid before the House on 26th March be approved [25th Report from the Joint Committee].
The noble Lord said: My Lords, the regulations before the House today apply the provisions of a decision by the OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic. This decision covers a harmonised mandatory control system for the use and reduction of the discharge of chemicals employed in the offshore oil and gas industry. It was adopted in June 2000 and represents an international commitment which we propose to meet through these regulations under the Pollution Prevention and Control Act 1999.
Under the regulations, operators of offshore oil and gas installations will need to apply to the Secretary of State for permits covering their use and discharge of chemicals. A major component of each application will be a risk assessment of the effect on the marine environment of the discharge of chemicals from the installation. These risk assessments will be examined by my department's technical advisers who will make recommendations about the acceptability of what is proposed and, if necessary, recommend particular conditions in permits. All offshore operations involving the use and discharge of chemicals will be covered—daily production, the drilling of wells, discharges from pipelines and discharges that may occur during decommissioning activities.
These regulations will build on voluntary arrangements that have been in place for many years. Under the voluntary offshore chemicals notification scheme, offshore operators notified my department of chemicals use and discharge which enabled us to provide advice on those chemicals and on the amounts
that could be discharged. In applying the voluntary scheme, offshore operators have adopted a sensible and pragmatic approach to safeguarding the marine environment. The time has come, however, for a more comprehensive regime for chemicals used by the offshore industry.The stated purpose of the OSPAR decision is to,
- "ensure and actively promote the continued shift towards the use of less hazardous substances (or preferably non-hazardous substances) and, as a result, the reduction of the overall environment impact resulting from the use and discharge of offshore chemicals".
There has been wide and extensive consultation on the regulations, on the accompanying guidance notes and the regulatory impact assessment. We are therefore aware of and have taken into account the views of stakeholders to ensure that introduction of the regulations will go as smoothly as possible. In addition to the mandatory consultation, my department has held a number of workshops with the industry as well as carrying out informal consultation on various aspects of the regulations such as the charging scheme and the regulatory impact assessment. The responses to the various consultations have supported the introduction of these new controls and virtually all the comments received related to points of clarification rather than points of real substance.
Inevitably, these comments have raised among other things the question of costs. As the regulatory impact assessment shows, the costs to the industry will arise from two areas—the administrative costs to government which will be subject to full cost recovery and the additional costs to industry of preparing permit applications. Over the first two years of the regulations, the costs to government are estimated to amount to £1.2 million and the additional costs to industry £2 million. Obviously, those are not insignificant sums, but I do not believe them to be excessive, particularly in the context of the overall costs of offshore operations—in 2001 the offshore industry spent a total close to £8 billion—and the benefits they will bring in ensuring that the environment is further protected. The offshore industry has acknowledged that once it has become more familiar with the permitting process, those costs will reduce.
We have sought to keep to a minimum the burden that the regulations pose. For example, we accepted the industry's suggestion that only one permit should be issued to the operator of an installation where there are fields tied back to that installation. We have also accepted the industry's suggestion that permits
covering daily production should be open-ended, with a review every three years. That means that operators would, in effect, have to apply for permits only once. We have also accepted their request that only in certain circumstances should applications for permits be subject to public notice. We appreciate the constructive nature of those comments from the industry and I believe that we have arrived at a set of regulations that strike a sensible balance between enhancing protection of the marine environment and the concerns of the offshore oil and gas industry. I commend the regulations to the House.
Moved, That the draft regulations laid before the House on 26th March be approved [25th Report from the Joint Committee].—(Lord Sainsbury of Turville.)
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