DPRR/12-13/75
MEMORANDUM TO THE DELEGATED POWERS AND REGULATORY REFORM
COMMITTEE
ANTARCTIC BILL
Introduction
1.This memorandum identifies each provision for delegated legislation in the
Antarctic Bill and explains its purpose, why the power has been left to delegated
legislation rather than being included in the Bill and the choice of parliamentary
scrutiny procedure provided for each power.
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Clause 10(4)(b) – Power to specify persons who are to be regarded as included
within references to “the Crown” in Part 1 of the Bill.
Power conferred on: Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: Negative resolution
2. Part I of the Bill binds the Crown. Subsection (4) of clause 10 provides that for the
purposes of Part I of the Bill the Crown is to be regarded as including the National
Environment Research Council, including the British Antarctic Survey (see
subsection 4(a)), and any other person specified by order made by the Secretary of
State (see subsection 4(b)). This would allow certain bodies to be treated as part of
the Crown when they otherwise wouldn’t be so. The use of a delegated power
provides the flexibility where there is a need to specify someone, perhaps within a
short timeframe, which would not be possible with primary legislation. The
Department considers that the negative resolution procedure, to which a clause
10(4)(b) order is subject, provides an appropriate level of Parliamentary scrutiny of
the use of this power.
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Clause 11(1) – Power to make regulations about arrest etc. in Antarctica in
relation to offences under the Bill.
Power conferred on: Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary procedure: Negative Resolution
3. Clause 11(1)(d) provides that sections 29(1)(b) and (2) of the Antarctic Act 1994
(power to make regulations about arrest etc) apply in relation to offences under the
Bill as if they were offences under Part 2 of the 1994 Act. Sections 29(1)(b) and (2)
of the 1994 Act provide for the making of regulations to make provision for the arrest
of a person in Antarctica, to convey him or her in custody to any place where the
arrested individual can be tried for the offence in question, to secure the attendance
at court of any person required to give evidence or produce documents in
proceedings relating to that offence, and to seize, detain and convey evidence. It
follows that this procedure should apply to offences under the Bill. Under the 1994
Act, such regulations are subject to the negative resolution procedure so this
procedure also applies to regulations made in relation to offences under the Bill. It is
considered that this will provide a sufficient level of Parliamentary scrutiny over the
operation of this power.
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Clause 16(5) - Amends section 8 of the Antarctic Act 1994 to confer a
regulation making power to define “recognised assistance dog” for the
purposes of new section 8(2) of the 1994 Act that is being inserted by clause
16(4) of the Bill.
Power conferred on: Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary procedure: Negative Resolution
4. Clause 16(4) of the Bill amends section 8(2) of the Antarctic Act 1994 to update
the law governing the introduction of non-native animals and plants into Antarctica.
To that end, amongst other amendments, the keeping of any animal on board a
vessel in Antarctica will no longer be exempt from requiring a permit under section
12 of that Act.
5. However under clause 16(4) a new exemption is to be incorporated into section 8
of the 1994 Act to exclude from the permitting requirements the keeping of a
recognised assistance dog on board a vessel in Antarctica. This exemption is
designed to allow persons who require the support of an assistance dog to keep
such dogs on board the vessel on which they are travelling in Antarctica without the
need to acquire a permit.
6. It should be noted that this exemption does not extend to the taking of assistance
dogs onto the territory, ice shelves or sea ice of Antarctica. The exemption solely
enables such dogs to be accommodated on board vessels in Antarctica.
7. In order for this new exemption to operate effectively, clause 16(5) amends
section 8 of the 1994 Act to enable the Secretary of State to prescribe by regulations
which persons can train a dog such that it constitutes a "recognised assistance dog"
for the purposes of the 1994 Act so that it is clear which dogs are exempted.
8. This new regulation making power is subject to the negative resolution procedure
set out in section 32(3) of the 1994 Act.
9.It is felt appropriate to have such a regulation making power as there are various
organisations in the UK and abroad who train assistance dogs and the list of persons
who are suitable to provide that training may change from time to time. Further, it is
considered that the negative resolution procedure will provide a sufficient level of
Parliamentary scrutiny over the operation of this power given its limited nature.
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Clause 18(2): Power to extend the provisions of Part 1 and the provisions of
the Antarctic Act 1994 as amended by clauses 14 to 16 to the Channel Islands,
the Isle of Man and British overseas territories
Power conferred on: Secretary of State
Power exercisable by: Order in Council
Parliamentary procedure: None
10. Subsection (2) of clause 18 provides that subsections (2) and (3) of section 34 of
the Antarctic Act 1994 (power to extend to the Channel Islands, the Isle of Man and
British overseas territories) apply in relation to the provisions of Part 1 and the
provisions of the Antarctic Act 1994 as amended by Part 2. The effect of this is that
Her Majesty may by Order in Council direct that the aforesaid provisions shall extend
to the Channel Islands, the Isle of Man or any British overseas territory with certain
substitutions and such modifications (including additions or omissions) as may be
specified in the Order. Such an Order in Council is not subject to any Parliamentary
procedure. This is normal practice for such powers, and reflects the view of the
Crown Dependencies that the use of an Order in Council power without any
Parliamentary procedure is the appropriate way to reflect their constitutional status.
There is a precedent for this which likewise contains no Parliamentary procedure,
the Cluster Munitions (Prohibitions) Act 2010, section 33. The Geneva Conventions
and United Nations Personnel (Protocols) Act 2009 also contains a comparable
provision to the one in the Bill.
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Clause 18(3): Commencement
Power conferred on: Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: None
11. This clause contains a standard power enabling provisions of a Bill to be brought
into force by commencement order. This power allows Part 1 of the Bill to be brought
into force by commencement order and enables different days to be appointed for
different purposes. As is usual with commencement orders, they are not subject to
any Parliamentary procedure. By enacting Part 1, Parliament has approved the
principle of the provisions therein to be commenced by order. Commencement by
order will enable Part 1 to be brought into force at a suitable time, related to the
timing of the coming into force of Annex VI to the Protocol.
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Paragraph 1(4) of the Schedule: Power to amend the financial limits set out in
sub-paragraphs (2) and (3).
Power conferred on: Secretary of State
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: Negative resolution
12. The power may be used to give effect to any amendments to the limits of liability
in Article 9(1)(a) and (b) of Annex VI to the Protocol on Environmental Protection to
the Antarctic Treaty (“the Protocol”) adopted by the Antarctic Treaty Consultative
Parties (“ATCP”). Any measure containing an amendment to the limits of liability
adopted by the ATCP becomes effective one year after the close of the Antarctic
Treaty Consultative Meeting at which it was adopted unless one or more of the
ATCP notifies the Antarctic Treaty Depositary that it is unable to approve the
measure. Where a measure is adopted to amend the limits of liability, a
corresponding amendment will be required to be made to the Bill to ensure that it is
in conformity with the amended limits in Annex VI. To require such a change to be
made within the required time limit by primary legislation would not be practicable.
Using the approach of Subordinate Legislation will enable the UK to change the
liability limits in UK law within the one year time limit. The negative resolution
procedure is considered appropriate to provide a sufficient level of Parliamentary
scrutiny over the operation of this power, and it is the procedure that is already used
in the Antarctic Act 1994 for the making of Statutory Instruments containing
regulations to implement any right or obligation of the United Kingdom created by or
arising under the Protocol and related instruments.
Foreign and Commonwealth Office
July 2012