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Lord Renton: My Lords, having spent two of the most interesting years of my life as Parliamentary Secretary to the Ministry of Fuel and Power--although that was many years ago and there have been many changes since then--I agree with my noble friend Lord Jenkins of Roding that the oil and gas industries are vital to this country. We should legislate with accuracy and clarity and avoid confusion.

I gladly support the amendment, in spite of the fact that my noble friend is taking advantage of a power to make regulations. That is an overriding power in the Bill. We have complained about it and at this stage we cannot avoid it.

Noble Lords should bear in mind the implications for the drafting of legislation. The Bill replaces 28 clauses of the Environmental Protection Act 1990 and has various vital cross references to the Control of Pollution Act 1974. With regard to the amendment, the provisions of the Merchant Shipping Act 1995 also have to be borne in mind. God help those who have to construe the legislation and apply it for practical reasons--not just for business reasons, but to ensure this country's supply of gas and electricity without running up against legislative problems. It is not good enough. This is not the way to legislate.

The Government should try to mitigate the situation they have created. The amendment would help by adding a new subsection dealing with the way in which the regulations are to be made.

Lord Dixon-Smith: My Lords, there are two aspects to the debate. The first is the amendment to Commons Amendment No. 1, moved by my noble friend Lord Jenkins of Roding. The second is the more general fact that we have known all along that the Bill depends entirely on regulation. Although some regulation is in draft, it will not be possible for ordinary people, let alone lawyers, to interpret the Bill in relation to their circumstances until the regulations are published and passed by both Houses of Parliament. However, that is a secondary issue hanging on the amendment, which I support.

It is unfortunate that a gap appears to be opening between two government departments on the treatment of appeals. The noble Lord, Lord Whitty, has been very helpful and I understand that his department is providing an adequate mechanism. However, the Department of Trade and Industry, which deals with the offshore oil industry, is adopting a different approach. I acknowledge that I may have been unjust to that department. It may not be aware of the problem, or the difficulty could be something even worse, such as the person responsible for the promulgation of draft regulations being ill, although that is a somewhat feeble excuse, because none of us should be indispensable. If one person cannot carry out a task, somebody else should be available and competent to deal with the matter, particularly in government.

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The question of appeals is important. The Minister has accepted the principle and I look forward to his comments, although I understand his possible embarrassment at having to answer for another department.

I also look forward to some reassurance from the Minister on the fact that the Bill is wholly dependent on the passing of regulations. The Bill is a meaningless jumble of words without the regulations that are needed to back it up and give it the force of law, or at least the force of something that can be interpreted by those who have to comply with it. We have protested all along that we are passing a shell. Industry and commerce cannot implement a shell. They can only implement something that has been written down and is capable of precise interpretation. I hope that the Minister does not mind my repeating the fact that we need more than just the draft regulations. When we come back in the autumn we shall need regulations that we can approve, for the sake of industry and commerce throughout the country. Without those regulations they are being invited to fly blind on a dark night in a thick fog.

Baroness Hamwee: My Lords, I wish to ask one question arising from the Government's amendment. The point was covered in another place, but I am not entirely clear about the answer. The amendment refers to sections of the Merchant Shipping Act 1995, which it describes as,


    "powers to prevent and reduce pollution, and the risk of pollution ... following an accident".

A question was asked in the other place about whether the powers are intended to be exercised only in the immediate aftermath of accidents. The Minister, in the Standing Committee, said:


    "I should point out that the health and safety regulations normally provide for the period leading up to an accident. The aim of those regulations is the prevention of accidents. If, despite all best plans and preparations, an accident occurred, the powers in new clause 2 would come into operation".--[Official Report, Commons Standing Committee A; 22/6/99; col. 108.]

It is not clear to me whether the powers that are the subject of the new clause can be exercised in a precautionary fashion. The way in which the Minister answered in another place seemed to suggest that they would come into play only after an accident had occurred. I hope that the Minister will give an assurance that the new powers will allow precautions to be taken to prevent pollution if there is an accident.

6.30 p.m.

Lord Whitty: My Lords, it causes me no embarrassment to speak for the Department of Trade and Industry as well as the Department of the Environment, Transport and the Regions. It is only a minor additional burden. I hope that the whole House is clear about the importance of the oil and gas industry to the economy and well-being of this country. It is central to our future and there is nothing in the Government's intentions that would deliberately or inadvertently lead to any unnecessary restriction beyond what is needed for safety and environmental reasons. Indeed, the oil and gas industry, as the noble Lord, Lord Jenkin, indicated,

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has been supportive of the objectives of this Bill and the regulations which are now in draft relating to the offshore installations.

Amendment No. 1 would apply beyond the offshore area, if taken literally, and that would clearly not be appropriate, as the noble Lord acknowledged, because in general we have a perfectly adequate appeals process already in place under the 1990 Act which we intend to carry forward unaltered into the new regimes set up under this Bill. We debated this process during the course of the Bill and the Bill was not amended in another place.

In brief, those provisions provide that an operator may appeal to the Secretary of State against a decision of the regulator. If he wishes, the operator may go on to apply for judicial review of the Secretary of State's decision. That is fairly straightforward. It is fair, efficient and there is no need to change it. If we were to adopt the amendment proposed across the board, it would undoubtedly add an unnecessary and confusing bureaucratic third stage. We could end up with a decision by the regulator being subject to an appeal to the Secretary of State. His decision might then be appealed to the tribunal. Even after all that there would be the possibility of judicial review. That is not a sensible regime. The existing one is appropriate and will be carried forward.

In relation to the offshore regime the position is slightly different. There the powers will normally be exercised directly by the Secretary of State. In the case of the recommendations of the Donaldson Report, it is clearly impossible for the emergency operational decisions of the Secretary of State's representative to be scrutinised by a tribunal. The Donaldson Report recommended that a Secretary of State representative (a SOSREP) would have an operational support group comprising a small number of specialists, but it emphasised that the Minister or others must not interfere or give the impression of being in charge. The report said:


    "SOSREP may be called upon to make extremely difficult and potentially controversial decisions and he will be unable to make these dispassionately, as he must, if he is looking over his shoulder and guarding his back".

Should any of his decisions be called into question, then the regulations, which will be based on the existing merchant shipping legislation, will provide for a formal compensation mechanism.

As for the wider powers in the Bill relating to offshore activities, it is recognised that care needs to be taken to ensure that there are appropriate and impartial avenues of appeal or review both on matters of law and on matters of fact. Indeed, the oil industry's response to the consultation draft showed its concern in this area. The DTI is still considering the appropriate mechanism to put into the regulations. Though a final conclusion has not yet been reached, an ongoing tribunal is unlikely to be the solution. Nevertheless, the regulations will have to consider a process and that additional provision will be included in the next round of DTI regulations, which it is the intention to issue in the next month or so.

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As noble Lords will recall, the regulations will now be subject to the affirmative procedure in this House and another place. We undertook, in response to anxieties expressed here and in your Lordships' Delegated Powers and Deregulation Committee, that any subsequent amendments to the sort of provisions set out in the 1990 Act would also be subject to affirmative procedure. That will include changes to the appeals procedure currently set out in the 1990 Act or any subsequent change in specific offshore regulations. We are therefore retaining a parliamentary control which will not saddle the industry with anything inflexible and nevertheless give it grounds for appeal.

I understand the general objection of the noble Lord, Lord Dixon-Smith, to putting this provision into regulations rather than on the face of the Bill. We have been round that circle a good number of times and I doubt that we will agree tonight. Nevertheless, it is clear that the general appeals procedure applies in the regulations which are already in the Bill and there will be a parallel procedure in the DTI's regulations regarding offshore installations.

In response to the question of the noble Baroness, Lady Hamwee, the scope of the powers included here cannot be used prior to an accident. The powers of the Health and Safety Executive and regulation of the licence are protection against the onset of an accident and therefore are not covered by these new powers. Indeed, the Donaldson Report did not recommend prior protection being covered by these powers. Statutory and other provisions spell out the responsibilities of the operator in respect of the situation prior to an accident and the situation post-salvage, after an accident. Those situations are not altered by our adaptation of the Donaldson provisions into the regulations.

I hope that I have said sufficient to convince the noble Lord, Lord Jenkin of Roding, that in practice the procedure will lead to the DTI adopting the precedent set by the DETR.

6.30 p.m.

Lord Renton: My Lords, the Bill cannot come into operation until the regulations mentioned in the new clause, and those in Clause 2 of the Bill, have been approved by both Houses of Parliament. How soon is that likely to be? Until then the Bill will be a dead letter.


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