Falklands : Legislative Council, 25 May 2005: Debate on the Bills
Submitted by Falkland Islands News Network (Juanita Brock) 05.06.2005 (Article Archived on 19.06.2005)
Debate is an important element of passing or rejecting legislation, as is explaining what the Bills' contents.
LEGISLATIVE COUNCIL: 25 MAY 2005
Debate on the Bills
Compiled by J. Brock (FINN)
The Supplementary Appropriation Bill 2004/2005 Bill 2005:
Explanation by the Financial Secretary Mr. Derek Howatt:
Mr. Speaker, Honourable Members, this is the second supplementary appropriation bill presented this financial year. In addition to the sum of £39Million575Thousand600 already appropriated, the purpose of this bill is to authorise the withdrawal of £1Million60Thousand450 from the Consolidated Fund to meet supplementary expenditure approved by the Standing Finance Committee. The bill provides for the Contingencies fund to be replenished in respect of any advances made.
Under the Operating Budget, £680,450.00 was approved the supplement the Health and Social Services Budget. From this sum, £350,000.00 was provided to cover salaries for Locum Clinical staff, who have to be employed due to illness and unavoidable delays in recruitment. Extra funding of £294,450.00 was provided to cover the increased costs of medical treatment overseas. And, £36,000.00 was provided to cover additional expenses incurred overseas in connection with the rehabilitation of a prisoner.
Also, under the Operating Budget, £9,000.00 was approved for Police and Prisons to cover unforeseen investigation expenses.
Under the Transfer Payments Budget, £30,000.00 was approved to reimburse FIDC for costs associated with the repair of the bow thrusters on the M/V Tamar FI and £350,000.00 was approved from the first instalment of the operating subsidy element of the Falkland Landholdings Corporation Recovery plan. In all cases, the Standing Finance Committee were satisfied that the supplementary expenditure was necessary and that savings were not available.
I beg to move the first reading of the Bill.
THE RESULTS:
The Bill was seconded and the Bill was read a third time and passed.
The Falkland Islands Pension Scheme Bill 2005:
Explanation by the Financial Secretary Mr. Derek Howatt:
Mr. Speaker, Honourable Members, the purpose of this bill is to amend the Falkland Islands Pension Scheme Ordinance 1997. The principle amendments are concerned with the benefits, which are payable to Government Employee Members of the Pension Scheme with an employment start date after 31 December 1996, including re-joiners who become permanently incapacitated through ill health or disablement and have to retire before they reach normal retirement age. As amended by Clause 5 of the Bill, the incapacitated member will be able to choose to receive certain pension benefits as from the time of such early retirement.
Other minor amendments to the 1997 Ordinance are also made in the Bill. The reasons for all the amendments are covered in the Explanatory Memorandum to the Bill.
The opportunity has been taken in Clause 7 to amend Section 31 of the 1997 Ordinance so as to improve the position of dependence of Government Employee Members who die after retirement. At present the dependents payments only come into force if there is no surviving spouse. The Amendment will change this so that dependents pensions will come into force upon the death of a Member, even if the Member leaves a surviving spouse. This follows UK Best Practice.
Please note that the main provisions do not apply to private sector employers and their employees, who are free to make their own arrangements for early retirement benefits under Section 29 of the 1997 Ordinance as amended by Clause 6 of the Bill. In the private Sector, alternative provision can be made without recourse to legislation. Although in so far as comparable provision is required for the Private Sector, the opportunity has been taken to amend the legislation accordingly on account of equity under Clause 4 of the Bill. This amendment will allow early access to benefits to any member of the scheme subject to the pensions board being satisfied that the member is permanently incapacitated by a certificate to that affect from the Chief Medical Officer.
The Bill and Explanatory Memorandum were drafted by Legislative Draftsperson, Leslie Firlonger, who produced the Principle Ordinance and all subsequent amendments. The drafting of the Bill followed a series of policy decisions taken as far back as February 2003. The Amendment Legislation has proved quite difficult to draft. And it’s taken a considerable time to conclude and adds complexity to an already complex ordinance. The complexity is due to the introduction of an optional early defined benefit on account of ill health or disability for a particular group of Government Employee Members in a defined contribution scheme.
Please note, however, that the purpose of the Amendment Legislation is to give effect to policy approval in order to achieve potential cost reductions of 1.3% of pay in respect of staff subject to the new benefit.
I beg to move the second reading of the Bill.
THE RESULTS:
The Bill was seconded and the short track procedure was used. The Bill passed and was read a third time.
The Employment Protection Amendment Bill 2005:
Explanation By the Financial Secretary Mr. Derek Howatt:
Mr. Speaker, Honourable Members, I should be grateful if the Attorney General would explain the purpose of this Bill and I beg to move the second reading.
Explanation by the Attorney General Mr. David Lang QC:
Mr Speaker and Honourable Members, the proposed bill would repeal the provision of the existing ordinance, which excludes Public Officers from the provisions of the Employment Protection Ordinance 1988. It would replicate the provisions in respect of United Kingdom civil servants in that Public Officers here would continue to hold office during Her Majesty’s pleasure as is required by Section 76 of the Constitution. They would not be entitled statutorily to minimum periods of notice. However, Honourable Members will know that the Management code makes provision for periods of notice for Public Officers.
The Bill would exclude Officers employed under a fixed term contract from access to the redundancy provisions of the 1988 Ordinance and Unfair Dismissal provisions of that ordinance merely by virtue of the end of their contract period. Otherwise, they would be entitled to claim Unfair Dismissal under certain circumstances or to claim redundancy.
It would make provision in respect of compensation awards to encourage the use of internal appeals procedures before application to the Court. In other words, the Court can take into account that internal appeal procedures had not been used when deciding on the amount of compensation, which should be paid to an Officer for Unfair Dismissal.
The Bill would exclude Police Officers from a range of provisions, which are inappropriate by virtue of their status as members of a disciplined force. And, in that respect, it would replicate the situation in relation to United Kingdom Police Officers, who are also Crown Servants.
Mr. Speaker and Honourable Members, the Bill is one, which very much alters the present situation, which excludes Public Officers from the benefit of the Employment Protection Ordinance.
THE RESULTS:
The Bill was seconded and no one spoke to the Bill. The fast track procedure was implemented and the Bill passed.
The Falkland Islands Pension Scheme Amendment No. 2 Bill 2005:
Explanation by the financial Secretary Mr. Derek Howatt:
Mr. Speaker, Honourable Members, the purpose of this second bill is to further amend the Falkland Islands Pension Scheme Ordinance 1997. The main purpose of the Bill is to allow for compulsory contributions to be made by Government Employee Members.
At present pension arrangement for Government Employees are non-contributory, although they may make additional contributions. The Bill proposes to change the situation so that all new pension of Government Employees will have to make contributions to the pension scheme of 5% of basic salary. Minor and consequential amendments to the legislation are also included in the Bill.
This No. 2 Bill and explanatory memorandum were also drafted by Miss Leslie Firlonger. The Bill follows the approval of policy recommendations by Executive Council on the 27th of January 2005.
It is intended that the new policy should take effect from the date that the Ordinance is published in the Gazette as provided under Clause 1 of the Bill.
I beg to move the second reading of the Bill.
THE RESULTS:
The bill was seconded and went through the fast track process and passed.
The immigration Amendment Bill 2005:
Explanation by the Financial Secretary Mr. Derek Howatt:
Mr. Speaker, Honourable Members, again I should be grateful if the Attorney General would explain the purpose of this Bill and I beg to move the second reading.
Explanation by the Attorney General Mr. David Lang QC:
Mr. Speaker and Honourable Members, the Bill would make 2 amendments to the Immigration Ordinance. It would replace Section 18 Subsection 4 Paragraph “B” of the existing Ordinance, with a new provision, which would provide a permanent residence permit should not be granted to a person unless he or she shows that he or she intends that. In the event of a permanent residence permit being granted to him or her, the home, or if there is more than one, the principle home will be in the Falkland Islands. That would replace the preceding – the provisions of the existing paragraph “B” and would, in fact, allow a person to clarify the situation by making it clear that a person could have another home outside the Falkland Islands, provided he or she intended that his or her principle home, if he or she were granted a permit, would be here.
The second amendment, which would be made by the Bill, would be an insertion of a new section 18 “A” in the Ordinance, which would enable the Government, if there were need for any reason of financial or economic circumstances of the Falkland Islands to suspend for the time being the issue of Permanent Residence Permits. There is no provision for that in the existing provisions of the Ordinance. I should, perhaps, take this opportunity of making it clear that there has been no decision taken to bring any such suspension into affect at the present time, nor has Government considered that it is necessary to do so.
Mr. Speaker and Honourable Members, those are the provisions of the Bill.
THE RESULTS:
The Bill was seconded and the Hon. Cllr. Mr. Mike Summers (MS) spoke to the Bill.
MS: Mr. Speaker, can I seek a small clarification from the Attorney General? He mentioned under Clause 18 “A” that the circumstances might be the financial ramifications pertaining at the time. Could he confirm that that was just by way of example because it doesn’t actually say that in the text and, there might be other circumstances in which Permanent Residence Permits could be suspended?
DL: Mr. Speaker, Honourable Members, It was envisaged that those would be circumstances, which would justify the use of Section 18 “A” if the Bill were enacted. The text of Section 18 ”A” is, in Subsection 1, “If the Governor considers that circumstances have arisen or may arise within the next 12 months in which it is not or may not be in the interests of the Falkland Islands for the time being that any further Permanent Residents Permits shall be issued, he may by order under this subsection, suspend the operation of Section 18. It is Section 18, which authorises the grant of Permanent Residence Permits.
I merely use the example of financial circumstances because I thought they were the most obvious ones. There are others, for example, there could be a natural disaster, which had caused the disruption of a great number of homes in the Falkland Islands and, until those homes had been replaced, it might not be in the interests of the Falkland Islands for the time being that any permanent Residence Permits shall be granted. Those are not the only circumstances and nor does the Bill seek to limit the circumstances in which it might be in the public interest to suspend the issue of Permanent Residence Permits.
NE: Mr. Speaker, can I just ask that the Attorney General clarify in Section 18 “A” where it says if the Governor considers. Presumably, this is the Governor in Council.
DL: it is the Governor advised by Executive Council.
NE: Thank you.
The Bill was read a second time and then the Bill Went through the Committee stage. The Bill was read for a third time and passed.
The Firearms and Ammunition Amendment Bill 2005.
Explanation by The Financial Secretary Mr. Derek Howatt:
Mr. Speaker, Honourable Members, I would be again grateful if the Attorney General would explain the purpose of this Bill and I beg to move the second reading.
Explanation by the Attorney General Mr. David Lang QC:
Mr. Speaker and Honourable Members, under the present provisions of Section 18 Subsection 3 of the Firearms and Ammunition Ordinance, any member of a youth organisation, approved by the Chief Police Officer, who is over the age of 12 may use a firearm in the presence and under the supervision and office of such an organisation for target practice at a place approved by the Chief Police Officer. That provision is found to be too limiting. And, it is suggested and proposed in the Bill that Section 18 Subsection 3 of the Ordinance be amended so the category of approved organisations would be widened to include the Falkland Islands Defence Force and any association, club or body of persons approved by the Chief Police Officer. In other-words, it would not be limited to a youth organisation but could include the Rifle Club and any other responsible organisation approved by the Chief Police Officer.
THE RESULTS:
The Bill was seconded and the fast track was used as no one wanted to speak to the Bill. It than was passed.
The Mining Bill 2005-05-28
Explanation by the Financial Secretary Mr. Derek Howatt:
Mr. Speaker, Honourable Members, I would like to ask the Attorney General to explain the purpose of this bill also and I beg to move the second reading.
Explanation by the Attorney General Mr. David Lang QC:
Mr. Speaker and Honourable Members, the Mining Bill seeks to repeal and replace the existing Mining Ordinance, which was first enacted shortly after the First World War and has been amended in small respects since that time.
As is the case with the present ordinance, the Bill would only relate to minerals owned by the Crown in the Falkland Islands. It would not extend to offshore minerals nor would it extend to Minerals in private ownership. However, as Honourable Members will be aware, there are few places in the Falkland Islands where minerals are in private ownership. This is because for many years the land ordinance has required that every grant of land by the Crown must, unless otherwise specifically stated, reserve all minerals from the land to the Crown.
The Bill is one of 85 Clauses and a Schedule. Honourable Members will, I believe, have seen the Explanatory Memorandum in relation to the Bill, which was published in the Gazette on the 18th April. And, I therefore restrict myself to dealing with the main features of the Bill. And, that may relieve Honourable Members to some extent.
As is the case under the existing law a licence will generally be required by any person who wishes to prospect for, explore for, or mine any mineral belonging to the Crown. There is a minor exception to this not appearing in the existing law in relation to (foscaking) activities and a more important exception that the owner or occupier of any land, who wishes for the purpose only of using the same on his own land, to mine, quarry or take stone, flint, gravel, sand or Calcified Seaweed. That reflects an exception in the present ordinance, which is somewhat extended.
In general, a person wishing to undertake mining activities will also need planning permission under the planning ordinance. Where a licence is required by the Bill, in some cases, the consent of the Secretary of State will be required for the grant of a licence. That should be contrasted with the position under the present ordinance where, in all cases, the consent of the Secretary of State is required.
The Foreign and Commonwealth Office have, however, agreed that such a stringent requirement shall not apply where the five criteria set out in Clause 11 Subsection 3 of the Bill are satisfied. Every licence granted will be required to contain the model clauses which must to be laid down by regulations, unless they are specifically excluded by the licence.
In considering the grant of a licence, the Crown would be required to refuse to remit any activity, which would have an unacceptable degree of environmental impact. That will be something for Executive Council to consider whether the activities had an unacceptable degree of environmental impact or not. Importantly, the Crown would be required (and that would mean Executive Council would be required) so far as possible to secure economic and other benefits to the residents of the Falkland Islands as a result of the activity permitted. That is to say, in addition to the revenue, which the Crown might expect to receive by virtue of a grant of a licence.
The grant of the licence would be a matter for the Governor after consultation with Executive Council but applications for licences would have to be made to the Director of Mineral Resources.
A major defect of the existing law is its omission of any satisfactory provisions requiring compensation to be paid to the owner or occupier of land on which mining operations take place, in relation to anything, which may happen to his land as a result of those mining operations. This Bill would forbid any mining operations to take place until the licensee has paid or tendered to the owner and/or occupier of the land the amount of compensation, if any, that the licensee is required to pay under and in accordance with the provisions of the Bill, or until the licensee has made an agreement with the owner and/or occupier as to the amount, times and mode of payment of compensation.
While no compensation is payable for minimum impact activity – a phrase defined in Clause 2 of the Bill – it will be required in relation to more intrusive mining activities including, of course, extraction of minerals. It is a principle of the Bill reflected in its provisions that wherever possible the Licensee and the owners and/or occupiers of the land affected will negotiate an agreement in relation to access and ancillary rights acquired by the Licensee to undertake his mining operations.
It is, of course, possible that agreement might not be reached. In that event, the Bill provides that the Licensee could make an application to the Director for a declaration to be made by the Governor, that is to say, on the advice of Executive Council that the making of a compulsory rights order would be in the public interest. However, the Governor could not reach a decision on such an application without considering in Executive Council any written representations he might receive from the owner and/or occupier of the land affected.
If the Governor is advised by Executive Council that a compulsory rights order would be in the public interest, then, under Clause 44 Sub-Clause 5 of the Bill, the Governor would be required to refer the matter to the Legislative Council. Only if the Legislative Council agrees that the making of a compulsory rights order would be in the public interest, could the Governor proceed to make a declaration. That is to say, the making of such a declaration will be subject to the approval of the Legislative Council as well as approval of the Executive Council.
If a declaration were made, every owner and/or occupier affected would have a right to petition the Supreme Court for an order that no declaration should be made. Then, only if the Supreme Court had dismissed the petition, could the declaration be made. When and if a declaration were made, the question of the compensation to be paid to the owners and/or occupiers would automatically be referred for determination to the Magistrates’ Court. In other words, it would be determined by the Court in those circumstances. There are detailed provisions in Clauses 53 to 61 of the Bill in relation to the assessment of compensation. There is provided an appeal from the Magistrate’s Court decision to the Supreme Court. In other words, the Bill contains complex (and I hope Honourable Members will feel satisfactory) provisions to protect the landowner and to arrive at fair levels of compensation and for any invoking of the compulsory procedure to require the assent of the whole of Legislative Council.
Mining activities inevitably raise health and safety considerations. For that reason, Clause 71 of the Bill, enables provisions for the Health and Safety at Work, etc. Act 1974 and regulations made under that act to be applied by order. It also enables an agreement or arrangement to be entered into with the Health and Safety Executive in the United Kingdom in relation to Health and Safety Supervision and Advice in relation to mining activities.
Honourable Members may recall that similar provision is contained in the existing Offshore Minerals Ordinance in relation to health and safety matters in very similar terms.
Mining activities can, of course, raise environmental concerns. It is envisaged that these will be dealt with in two ways. The first is under the Planning Ordinance as proposed to be provided by the Planning Amendment Bill, which is before Honourable Members today. The second is by applying the provisions of the Environmental Protection Act 1990 of the United Kingdom by order made by the Governor on the advice of Executive Council under Section 73 of the Bill and enabling the Falkland Islands Government to enter into an agreement or arrangement with the Environment Agency of the United Kingdom for supervision and advice of environmental matters and conditions in relation to planning operations.
Honourable Members, I have restricted myself to explaining only the features of the Bill I regarded as sated features in the light of the fact that there is a full Explanatory Memorandum published in the Gazette.
The motion was seconded and Cllr. The Hon Mr. Stephen Luxton (SL) spoke to the Bill.
SL: Mr. Speaker, Honourable Members, I wonder if the Attorney General could clarify, in respect to Section 44, if the matter of a Compulsory Rights Order is referred to the Legislative Council, whether the Legislative Council requires the approval of all Members or whether it means the majority. It’s just he used the expression, “the whole of Legislative Council.”
DL: I use the expression, “the whole of Legislative Council” because I was talking in the context of it already would have had to have already been approved by at least a majority of the members of Legislative Council, who are on the Executive Council. What I should have said is – and I apologise for the slip – “Legislative Council as a whole.” It would ordinarily be under Standing Orders – a simple majority of the Members present and voting.
NE: Could the Attorney General just clarity in Section 15, Conditions for Prevention or Reduction of Injury to Land, that it does say that they must make good any injury to the natural surface of the land. There is no time-scale on that as to when mining activities cease. I’m just worried that in the future, if there is open-cast mining, they may well go away for a long time without being bound to make good the injury to that land. Can you assure me that this will not be so?
DL: The answer to that is in the satisfactory drafting of planning conditions and in relation to the satisfactory drafting of relevant clauses under the license. It would be my intention that an abandonment of mining activities for anything but a very temporary period would trigger the restoration provisions of the mining licence. And, I imagine similar care would be taken in the grant of planning permission. And, I should say that under the Planning Bill, the grant of Planning Permission would, although there would be consideration by Planning Committee, the grant of Planning Permission would be referred, in affect, to Executive Council. And, Executive Council have the opportunity of tying in the requirements of the licence and the conditions of the planning permission. And the restoration of land conditions would, of course, figure greatly in what the conditions both of the mining licence and the planning permission would be.
MS: Mr. Speaker, Honourable Members, I would like to make two observations, if I may by way of further explanation for members of the Public and will so put a question to the Attorney General. The two observations are, one to do with Compulsory Rights Orders and the other to do with the role of the Secretary of State. Compulsory Rights Orders, so far as they apply to this Bill are somewhat analogous to compulsory purchase legislation. And, the reason that discussion on this Bill Legislative Councillors have requested that it should be the Legislative Council that has the final sale and compulsory rights orders is the same thinking as took place when there were proposals before this House some while ago to introduce compulsory purchase legislation, which was, in fact, declined by the House. So this is analogous to that Compulsory Purchase Legislation. And, it will be the Legislative Council in all instances, who will make that decision. I think that’s just worth clarifying to the general public. Second is that some members of the public might wonder why there’s a key role for the Secretary of State in this legislation. It is because there are clear international obligations on the United Kingdom and international implications for the United Kingdom in the extraction of valuable minerals from the Falklands. And, after lengthy discussion and much debate, Councillors have been persuaded that the Secretary of State should have a role in terms of the allocation of mining licenses because of those obligations, be they international politics or environmental obligations that the United Kingdom has.
The other important point is that the role of the Secretary of State in that respect is reactive. It’s the Executive Council who first decides that a licence should be issued and then the Secretary of State is required to give his permission. It doesn’t work the other way around. The Secretary of State, I believe, cannot require the Falkland Islands Government to issue a licence to anybody. That, again, is by way of explanation to the public.
My third issue is a question to the Attorney General. Is this legislation in any way retrospective of any mining activities or mining exploratory activities that might currently be going on?
DL: No. It does not apply to the exploratory activities, which are at present going on, where there is a valid licence and the existing Ordinance, the provisions of which will be technically saved under the provisions of the Bill, if enacted. However, a new licence will be required under the ordinance if the present licensees, or any successor of theirs seek to proceed to extraction activities. In fact they were told long ago at the time they applied for their prospecting licence, that an extraction licence would not be granted under the present ordinance because it did not give the Government what the Government say is satisfactory control (over the tape) satisfactory power to enable restoration to take place. That has been a trigger for the enactment, or at least the preparation of this Bill so that the Government would have satisfactory powers and might ensure a satisfactory mining regime being in place if, and it is “if” the present licensees under the exploratory licence desire and wish to proceed to extraction operations.
After the second reading, the Bill was read a second time and Council went into Committee. The Bill then was read a third time and passed.
The Planning Amendment Bill 2005:
Explanation by the Attorney General Mr. David Lang:
Mr. Speaker and Honourable Members, this Bill seeks to amend the Planning Ordinance, first so as to clarify certain of its provisions, secondly so as to insert in it provisions replacing those at present appearing in the Highway Building Lines Ordinance and to repeal that Ordinance. Thirdly, so as to make provision in relation to the assessment of environmental affects and environmental impact statements, which are more satisfactory than those which are contained in the existing law. And, particularly having in mind, of course, that we may be proceeding to consider mining extraction operations. Forth, so as to enable certain applications for planning permission to be dealt with by the Planning Officer and to avoid a wait having to take place for them to reach the Planning Committee – those being applications with which the Planning Committee are content the Planning Officer should deal with. Next, so as to amend and strengthen the provisions of the 1991 Ordinance – that is to say the existing Ordinance – in relation to breaches of Planning Control. And I would add, this is also necessary if there were to be mining operations or the extraction of minerals from land and so as to incorporate in local law recommendations made by the English Law Commission as to the improvement and clarification of Planning Law, which are relevant in relation to the terms of the existing planning ordinance.
Mr. Speaker and Honourable Members, a consultation exercise was undertaken by the former Environmental Planning Officer in relation to the contents of the Bill and he reported to the Planning and Building committee in April last year that no formal comments had been received. The Planning and Building Committee itself was content with the provisions of the Bill.
An Explanatory Memorandum explaining the provisions of the Bill in more detail than I have done just now was published in the Gazette on 18 April. For that reason, I have restricted myself to explaining what I regard is the most important features of the Bill, which is, of course, quite a lengthy and technical one.
THE RESULTS:
The Motion was seconded and Cllr. The Hon Mr. Mike Summers spoke to the Bill.
MS: Mr. Speaker, Honourable Members, I have two issues I wish to raise. One is to do with demolition. And, it says in the Explanatory Memorandum of this Bill that it would be necessary, in due course, to consider amending the provisions of the General Development Order as to permit the development. This is to do with the pulling down or removal of existing buildings and structures. Whilst I have no intention to oppose this Bill, I will be extremely unhappy to find, shortly after its introduction, citizens were being hounded, harassed, encouraged for making relatively minor amendments to structures on their properties, such as small sheds, fences or the like. Can we be assured that whatever amendments may be necessary in due course will be made with dispatch and that those responsible for judging what should or should not be subject to a development order are given suitable guidance.
My second issue, and I don’t wish to cause the Attorney General to repeat himself in relation to this but I am sure that he won’t but could he explain to what extent this new legislation applies to existing mining or aquaculture operations. Are they transitional or retrospective provisions?
DL: Clause one of the Bill Short Title and Commencement provides that the provisions of the Bill may be brought into force by stages. I fully take the Hon. Cllr. Summers’ point in relation to the provisions of the Bill relating to demolition. And, of course, it is not for me to dictate what is done but I can say what I will suggest. I shall suggest that the provisions of the General Development Order be looked at in relation to demolition requiring planning consent. In other words to exempt the whole lot of minor operations such as those which the Honourable Member mentions.
Before the provision of the Bill requiring Planning permission is brought into effect, that will have the affect that the other provisions of the Bill to be brought into force and if necessary that one can be delayed until a satisfactory situation has been reached and, Councillors are satisfied that the law provides for the matter to be dealt with fairly and not to give rise to the sort of stupid situation, which the Honourable Member has mentioned.
Your second question – the existing operations, I think, have, so far as they require them under the existing law, the Grant of Planning Consent. The Bill would make no difference to the law so far as it requires Planning Consent for mining operations. As to the future, they will have to make Planning application for anything, which constitutes development within the meaning of the Planning Ordinance. So that is for the future and that would have to be made in accordance with the new provisions of the Planning Ordinance, which aren’t altered in any material particular but they will find, I think, that provisions as to environmental impact assessments of environmental impact generally, which are stronger than those in the present Ordinance. And, of course, they will have to bare that in mind when making application for Planning Consent.
PROCESS:
After the motion was seconded, Council went into committee. The Bill was then read a third time and passed.
The Sexual Offences Bill 2005
Explanation by the Attorney General Mr. David Lang QC:
Mr. Speaker and Honourable Members, the Sexual Offences Act 2003 of the United Kingdom forms part of the Law of the Falkland Islands under the provisions of the Interpretation and General Clauses Ordinance.
It is a Bill of 143 clauses and seven schedules. And, it is unfortunate to have such an important piece of legislation as part of Falkland Islands Law without detailed modification and without people being able to have ready recourse to it. And, for that reason, this Bill has been prepared, the affect of which would not basically change the law because it had been the law since 2003 but to make adaptations to the law, which are necessary in local circumstances.
The Sexual Offences Act 2003 completely revised the former law on sexual offences and that includes the former law of the Falkland Islands on sexual offences, which had been described as archaic, incoherent, and discriminatory.
The Bill was introduced in the United Kingdom following extensive consultation. Part 1 of what is the Sexual Offences Act 2003 creates a new framework of sexual offences, setting out new categories of sexual offences, involving abuse of trust, care workers and people trafficking, among others.
It introduces new laws as to the presumptions regarding the Law of Consent, which had caused difficulty because defendants could raise as defence of sexual offences that they believed that the victim had consented. And, the Law is reformed by the Act, casting an evidential burden of proof on the defendant in circumstances where it is most unlikely that consent was, in fact, given freely by the complainant. An example of that is where the complainant is unconscious and asleep.
The protection of children was one of the primary objectives of the 2003 Act. And, therefore offences against children are a major part of its provisions. Children under the age of 13 are not, under the 2003 Act, and that is part of the present Law of the Falkland Islands, of giving consent to any form of sexual activity.
Developments in technology and the internet are also dealt with. And, for the first time, under the 2003 Act, child-grooming, with a view to committing sex offences is a specific offence. This is based on increasing social fears of adults displaying inappropriate social behaviour by arranging a meeting via the internet or text messaging with a child with an intention of committing a sex offence. The Act extends many existing offences and will encompass far-reaching situations. For
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