§ 6.45 p.m.
§ The Minister of State, Foreign and Commonwealth Office (Baroness Young)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Territorial Sea Bill, has consented to place her prerogative and interest so far as they are affected by the Bill at the disposal of Parliament for the purposes of the Bill. I beg to move that the Bill be now read a second time.
The Bill is about the limits of the territorial sea around and near the United Kingdom. I hope that when I have explained its purpose and contents, your Lordships will agree that, though short, it is a useful Bill.
The traditional position of the United Kingdom has been that the territorial sea of a state has a breadth of only three nautical miles. I shall not go into the history of this particular position—even if this deprives the House of some discussion of the picturesque background, including the supposed origin of the three miles as the distance that a cannon shot fired from the coast would carry.
However, even when support of the three-mile rule was at its strongest, a significant number of states asserted claims to a wider limit. International practice has now moved on. The majority of countries, if not all, including all our major allies, now either claim a territorial sea of 12 miles for themselves or recognise the territorial sea of 12 miles established by other countries. We had hoped to make this change ourselves in the context of a generally acceptable UN Law of the Sea convention, but this has not proved possible.
Another, though less important, factor has led to the introduction of this Bill. This is the Channel tunnel, on which a Bill is already before the House. The two matters are not dependent on each other. But it would be convenient if work on the tunnel throughout its 382 length took place within the limits of the territorial sea of one or the other of the two states involved, and if the legal status of each section of the tunnel were the same.
The main purpose of the present Bill is therefore to extend the breadth of the territorial sea from three to 12 miles. Legislation which applies in the three-mile territorial sea will in general apply over the wider 12-mile belt created by the extension. Owners and masters of vessels, whatever the flag, who discharge oil into the extended territorial sea, or who infringe traffic separation schemes in that extended area, would be open to prosecution in UK ports. The power to hold casualty inquiries on shipping accidents giving rise to oil pollution and the power to give directions in the cases of shipping accidents would extend more widely. Pirate broacasting from within 12 miles could he made the subject of prosecutions. Arrests for smuggling could be made further out.
For obvious reasons we cannot claim a full breadth of 12 miles in the Channel, where England and France lie closer than 24 miles apart. We are in touch with the French authorities about this and have in mind the making of an Order in Council, which this Bill authorises. This would establish, as the limit of the territorial sea, the line alreay agreed in 1982 as the boundary on the continental shelf.
We also have had to consider the position of straits. With a territorial sea of only three miles, there is a stretch of high seas through most straits, though not all. If the territorial sea is extended to 12 miles, many more straits—including some of the most important, such as the Straits of Dover, Hormuz in the Gulf, and Bab el Mandeb in the Red Sea—would be brought within the territorial sea of the neighbouring countries.
For this reason, it has been recognised in state practice, international negotiations and the case law of the International Court that a special regime for navigation is appropriate in straits. This is not so of course where a strait lies between an island and a mainland, and there is a convenient alternative route outside the island.
International law and practice have now developed to the point where, if the United Kingdom extends to 12 miles, we should afford to others the essential rights in some internationally important straits for which there is no alternative route; namely, the Straits of Dover, the North Channel lying between Scotland and Northern Ireland, and the passage between Shetland and Orkney. These rights, which are widely recognised as necessary, include: a right of unimpeded passage through such straits for merchant vessels and warships; a right of overflight; the right of submarines to pass through the straits submerged; and appropriate safeguards for the security and other interests of the coastal state.
In other straits used for international navigation, such as the Pentland Firth south of Orkney and the passage between the Scilly Isles and the mainland of Cornwall, as in other parts of the territorial sea, a right of innocent passage will continue to exist in accordance with the practice of states.
I now turn to even more technical matters. But, before I go any further, it may be helpful to set out the legal character of the territorial sea. It is a belt of waters adjacent to the coast within which a coastal state 383 enjoys sovereignty. This sovereignty must be exercised in a manner which respects certain rights for the benefit of other states, notably the right of innocent passage for vessels passing through the territorial sea. I should add that "territorial sea"—the more modern term—and "territorial waters" have the same meaning and are interchangeable.
So far I have concentrated on the outer limit of the territorial sea which we propose should be extended to 12 miles. But there are also inner shoreward limits from which its breadth, whether three or 12 miles, is measured. These inner limits are technically known as "baselines". The normal baseline is the low water mark. But there are special rules for drying sandbanks, bays and fringes of islands. At present the baselines around the United Kingdom are established by Orders in Council mentioned in the Bill and made under the prerogative in 1964 and 1979. In future if this Bill is approved, orders establishing baselines for the territorial sea would have a statutory basis, as would existing Orders which up to now have been based on the Royal Prerogative.
Several provisions in the Bill simply adapt existing references in other legislation to fit with the new proposed 12 mile territorial sea. Others cover cases where legislation applying at present, for example, out to three miles need not or ought not he extended automatically to 12 miles.
This will be more conveniently explained by turning now to summarise the specific provisions of the Bill. Clause 1 of the Bill extends from three to 12 nautical miles the breadth of the territorial sea adjacent to the United Kingdom. It authorises the establishment of another limit by Order in Council. It provides that, subject to the Bill, the new limits shall apply generally to other enactments and instruments.
Clause 1 also provides that the baselines from which the breadth of the territorial sea is measured may be established in future by Order in Council; it gives effect under the Bill to existing Orders in Council made under the Royal Prerogative; and provides for certain legal certificates as to the location of these baselines.
Clause 2 preserves, despite the extension of the territorial sea, the present operation of any local Acts or the present limits of existing jurisdiction of any harbour authority or port health authority. These do not require automatic extension. Some provisions relating to coal and regulations and licences for petroleum exploration and exploitation now in force, which apply satisactorily already both in the three mile territorial sea and outside it on the continental shelf, are not to be effected.
Clause 3, which must be read with Schedules 1 and 2, makes minor and consequential amendments and repeals in existing legislation. These are thought appropriate in certain fields of legislation because the territorial sea is in general to be extended to twelve miles by virtue of Clause 1. For example, certain revenue statutes, when dealing with measures against smuggling, refer expressly to "three miles"; so do the statutes which applies the criminal law generally in the territorial sea. In future they would refer simply to the territorial sea or territorial waters, thus attracting the general extension to twelve miles made by the Bill.
384 There are also powers, by Order in Council, first, to make amendments to other Acts of Parliament similar to those in Schedule 1: secondly, to extend, when the need arises, the areas where marine nature reserves may be established; and, thirdly, to alter the effect of Orders in Council designating areas outside the territorial sea where certain rights are exercised on the Continental shelf.
Clause 4 provides for the short title, commencement and extent of the Bill, and includes provision authorising the making of Orders in Council extending the provisions of the Bill to the Channel Islands or the Isle of Man, subject to any necessary exceptions, adaptations or modifications.
This is a technical Bill and I have tried to explain its purpose to your Lordships. I hope that this explanation will have been helpful. I commend the Bill to the House.
Moved, That the Bill be now read a second time—(Baroness Young.)
§ 6.55 p.m.
§ Lord Cledwyn of Penrhos
My Lords, we are very
grateful to the noble Baroness for the clear explanatory speech with which she opened this debate. This is an important Bill and is of great historical interest, especially to a maritime nation like ours. The emphasis on the so-called territorial sea as the House will recall became significant with the birth of territoriality in the 16th century. There were great debates between Grotius and people such as John Selden in this country, who supported closed seas. They all accepted that coastal states enjoyed some rights to regulate activities in the waters adjacent to their own coasts. Grotius did not argue that all seas were open to use by everybody. There were complicated arguments in subsequent years about property rights and jurisdictional rights in these waters and whether or not a coastal state had sovereignty over the coastal belt. On the whole, the principle that ships of all states enjoyed the right of innocent passage throughout the territorial sea has been observed for about 200 years.
The authorities on this complicated subject have found that two matters still remain unresolved; namely, the question of the width of the territorial sea and further the question of the precise juridical nature of coastal states' rights over the territorial sea.
The British view was that there was a belt of maritime territory surrounding these islands, although France and Spain did not agree. They held that there was merely jurisdictional competence for purposes such as defence and fishing.
It would be wrong to leave this debate without mentioning the famous "Franconia" case of 1876 (R. v Keyn). Captain Keyn was the Commander of the German ship "Franconia" which collided with the British ship "Strathclyde" two and a half miles off Dover causing the death of 38 of the Strathclyde passengers.
Captain Keyn was prosecuted for manslaughter in an English court and found guilty. He appealed on the grounds that the court lacked jurisdiction to try him because he was a foreigner and at the material time sailing on a foreign ship on the high seas. The Crown 385 maintained that the collision had occurred within three miles of the coast within the realm, and so within British jurisdiction.
There was great argument at the time, but the Court for Crown Cases Reserved (to the surprise of the British Government of the day) allowed the appeal. The court's view ( a majority view) was that British jurisidiction did not extend to foreigners and foreign ships beyond British shores. All this resulted in the Territorial Waters Jurisdiction Act 1878 which reaffirmed the rightful jurisdiction of the Crown over territorial waters which were deemed by international law to be within the territorial sovereignty of Her Majesty.
But the doubts concerning the juridical nature of the territorial sea have continued for several years. It is on the jurisdictional point as opposed to the sovereignty point that the argument has always centred. This was not finally settled until the Hague Conference of 1930 since when the sovereignty doctrine has been generally accepted. It is a curious fact that the relevant seabed and the airspace above has tended to be considered separately. Perhaps the noble Baroness can comment on that matter and whether or not it has any validity in relation to this Bill.
The House will know that throughout history the question of the width of the territorial seas has been a question of controversy. Different criteria were applied such as the limits of visibility—that was not taken very seriously. The noble Baroness also mentioned the length of a cannon shot. The three-mile limit gained widespread acceptance over the turn of the last century and in spite of all the differences of view this country has adhered more strongly to the three-mile limit than any other country. For example, as recently as the 1960s a statement was issued saying:Her Majesty's Government are obliged to place firmly on the record that they do not recognise territorial jurisdiction over waters outside the limit of three miles from the coast.In their book The Law of the Sea two experts: R. R. Churchill and A. V. Lowes made an interesting point as follows:it is meaningless to speak of a single limit for territorial sea claims existing at any one time. Between the three-mile states, the three—mile rule operated; between states claiming, say, six miles that distance was recognised.There has always been keen international argument. When the first and second United Nations conferences on the Law of the Sea tried to agree on a limit in 1958 and 1960, they failed to come to any agreement.
The noble Baroness has very rightly pointed out that the purpose of the Bill is to bring us in line with other countries which have a 12-mile limit. We know that different groups of countries seek to observe different limits and we shall be grateful to the noble Baroness if she can give us an up to date list of those who observe the three-mile, the four-mile, the six-mile, 12 mile and more than 12 mile-limits when she comes to wind up later. Perhaps she can also comment on the extension to far greater distances in respect of pollution about which many noble Lords are concerned, and of course in relation to fishing as well.
As I said, the strongest argument in favour of the Bill is that the general trend in state practice is to set the limit of territorial waters at 12 miles. This was the decision of the Law of the Sea Convention, and there 386 is every reasonable expectation that all states will in due course come into line with this limit. I make that optimistic forecast in the hope that the noble Baroness will agree with it when she comes to wind up.
There is one important legal implication to this development: namely, the duties which the state in question owes to foreign vessels in its territorial waters. With this Bill we shall be assuming those obligations in a more extensive area of sea. I shall not go into detail but merely quote what Judge Fitzmaurice said in the fisheries jurisdiction case in 1973. The learned judge then said:The territorial seas involve responsibilities as well as rights…for example policing and maintaining order; buoying and marking channels and reefs, sandbanks and other obstacles; keeping navigable channels clear and giving notice of danger of navigation, providing rescue services, lighthouses, lightships, bellbuoys and so on".That is quite a considerable range of duties.
I turn briefly to the question of delimitation between two states facing each other. The normal practice, as the House knows, is to agree on the median line as the boundary. I assume that this will be the position with France, which in the context of this Bill is the only state concerned. This has a special significance for the Channel tunnel project, and we noted with interest what the noble Baroness said about that.
The noble Baroness also mentioned a number of straits around these islands. I would add that the position of offshore islands can be a complication, and we should be grateful if the noble Baroness would explain how the Channel Islands will be affected in practice. Presumably the object will be to agree with France a median line between their coasts and the French mainland, which is very close.
I do not know whether there have been discussions between Her Majesty's Government and the French Government on this point. If there have, it would be interesting to know the results before the end of the debate. Can the noble Baroness say whether there are any implications for any other country in this apart from France—that is to say, any of our partners in the European Community?
When we debate a Bill connected with the sea, over 2,000 years of British history loom over this Chamber and the temptation, in view of its importance and fascination, is for us to embark in several directions, and that would take far too long. I believe that we have a duty to work out a consistent and organised policy on the resources of the sea as a whole, something I fear that successive governments of all complexions over a long period have failed to do.
We are conscious of the decline in areas where our country was pre—eminent—in shipping, shipbuilding and fisheries—although we must set against that the brilliant successes in the offshore oil industry. We must re-examine our record in the protection of the marine enviroment, and here there is a good deal to be proud of. I should be grateful to the noble Baroness if she could tell the House in this context why the area for marine nature reserves is not now automatically extended by this Bill.
There is also a great deal of concern about our failure to sign the Law of the Sea Convention, as the noble Baroness and the House are aware, but this is 387 something we can come back to again. I have two other brief questions for the noble Baroness if she will be kind enough to deal with them. First, can she say whether the Protection of Wrecks Act 1973 will apply in the wider limit of the territorial sea; and, further, can she explain why it is inappropriate to extend harbour lights automatically? The House will be aware that this is a matter of concern in some quarters.
This Bill is a sensible and necessary measure, and we support it. It gives us the opportunity to look to the sea again and to make the British people conscious of their heritage of the sea. It is on the seas that we have excelled, and it may well be that our economic and industrial salvation lies in concentrating upon our maritime resources and the related age-old skills.
§ 7.5 p.m.
§ Lord Kennet
My Lords, we too welcome this Bill. In point of fact I cannot remember how long I have been asking the Government to introduce such a Bill—certainly for 15 years, and possibly more. And so we see eye to eye with the Labour Party on that point. We also see eye to eye with what the noble Lord, Lord Cledwyn, said about the importance of going on from this Bill to think out and introduce a proper general maritime policy, which this country so sadly lacks, and a general sea-use management policy which should be part of that.
The Minister of State told us a part of what, in the mind of the Government, was going to be the advantage of having this Bill and how they plan to use it. I should like to ask one or two other questions on which perhaps the noble Baroness could fill out if she is able to get the answer in time. If not, we can try by probing amendments later.
First, what international law do the Government propose to adhere to, he guided by and enforce in the new and enlarged territorial sea? The Minister of State said that it had not been possible for us to adhere to the United Nations Law of the Sea Convention of 1982. Of course it was perfectly possible, but we chose not to. We chose to go along with President Reagan and one or two other countries only in the whole world and not adhere to it because of some presumed penalisation of the wealthy by the poor which was hidden in its provisions.
One cannot let the opportunity go by of saying, "Come on, hurry up. Think again. Join it like the rest of civilised mankind. It is obviously just". Do the Government in the meantime, before they have done the right thing about the UNCLOS Convention, propose to recognise, enforce and be guided by its provisions on their rights and duties in the territorial sea or by those of the 1958 convention? Whatever the Government say—and they have said some pretty dubious things—the 1958 convention is different from the 1982 convention. There are various points on which they flatly contradict one another.
The amount of state practice which the Government say absolves them from the need to choose which they believe in—state practice is otherwise known as the habit of breaking conventions, which is fairly widespread among signatories—does 388 not in fact absolve them from saying what law it is they will enforce in the new territorial sea.
The noble Lord, Lord Cledwyn, spoke—and I am glad he did—of the duties which the declaration of new territorial sea areas imposed on this country. What are they?What will the Government do about their duties? To what duties will they give priority in this large new area for which they are now responsible?
There are one or two more detailed questions. We have had a word about the Channel Islands. What is the Government's intention about Rockall? Will they be declaring the 12-mile territorial waters around Rockall? The implications of this matter are fairly well known to all. We already have a continental shelf around it and that has landed us in a lot of trouble with Ireland, Iceland and I think even Denmark. Shall we be going further? I would say in advance of hearing the Government's view that we should. That is, if you have a rock which is technically part of your territory, it can only be the right thing to do to draw the natural conclusion.
The Bill applies to the United Kingdom only. What about colonial dependencies in the future? Will they, through the governments of the colonial dependencies, introduce the 12-mile limit for them? More questions please about what they are going to do with their rights. How are they going to exercise their rights within these waters round our own shores?
What about the Soviet electronic listening trawlers which have been stationed three-and-a-half miles off Clydemouth for about the last 20 years? Will they be given the shove now? It would seem a very happy occasion to do so. What about the Soviet fishing factory vessels which come at certain times of the year and sit three and a half miles off Cornwall to which the so-called Klondikers from Scotland and the North of England sell their Cornish fish catches without ever touching the shores of Cornwall? Will the opportunity be taken to give them a shove further out? I think that the espionage trawlers at Clydemouth—I am not sure how this works on the map, perhaps the noble Baroness can say—could be shoved right away out of sight. Is there enough water there for them to hang around even at 12 miles without hitting water from Northern Ireland or from some of the Scottish islands?
Lord Campbell of Croy
My Lords, I am grateful to the noble Lord for giving way. I must point out that the foreign Klondikers who come to Scotland lie well inshore at Ullapool and they have no problems at all. They are welcomed to our waters and are an alternative market for our fishermen.
§ Lord Kennet
My Lords, I think the noble Lord is referring to Soviet factory ships lying off Scotland. Is that right? I did not refer to them: I referred to Soviet factory ships lying off Cornwall, where there seems to be more agitation among the Cornish fishermen. Obviously it depends whether they are welcome to the British fishermen concerned.
What is the relationship of this Bill with the Pilotage Bill which is still before Parliament? There are those in the maritime world who wish that the Government had said that this Bill was coming before they launched the Pilotage Bill in Parliament. Will it make any difference to what is being provided for?
389 The Pilotage Bill provides for the retreat of Government control over pilotage in this country and its devolution, as it were, into the hands of the port authorities. Will the increased territorial water affect that in any way? Will it make it a Government responsibility to provide for the provision of pilotage further out? Will there be any change?
There are one or two details I wish to raise on the text of the Bill. Anything that the Minister of State can explain now will save time at Committee stage by way of probing amendments. Clause 1(2) states:Her Majesty ma) …provide that any part of the territorial sea …shall extend to such line other than that provided for by subsection ( 1)which is 12 miles. So, by order in council, the Government may make any other line than 12 miles. Does this mean they can make a line beyond 12 miles—for example, to 200 miles as some states now do—by Order in council without further legislation? If it does—as I think it does—do the Government intend at a later date to do anything like that, not necessarily in the United Kingdom but perhaps from the dependencies, perhaps Rockall?
Clause 3(3) allows that, by Order in Council, the Government may make modifications of an order in council which has been introduced under the Continental Shelf Act 1964. What sort of modifications to Continental Shelf Act orders do the Government have in mind in giving themselves this power in the Bill? Later, I note that there is specific provision to enlarge the territorial waters of the Channel Islands, which we would expect, and of the Isle of Man. Why is that delayed, so to speak? Why is that a separate issue in the Bill? Why is the power not taken immediately without putting it downhill into a later order?
Lastly, the noble Baroness spoke about "international straits", which go through what would otherwise be British territorial sea on both sides. She gave some examples. I think I have that right. There are other straits used by shipping which go through British territorial waters on both sides. I am thinking particularly of the Minch, which she did not mention. It would help the House to understand these complicated matters if she could say in a word, if that is not an ambitious request, what will be the difference between a strait which the Government are calling an international strait—although they need not do so because it is only 24 miles wide between one bit of Britain and another—and a strait which they are not calling an international strait but which is otherwise geographically and navigationally similar.
We welcome the Bill. The questions that I have put are meant to be helpful.
§ 7.17 p.m.
§ Lord Nathan
My Lords, I had the privilege of being in the United Nations when the Law of the Sea Convention was being debated and when the United States announced its decision not to participate in that convention. It was a sad occasion for most of those who were present. It may seem churlish to refer to the many years that so many people have been pressing for the extension of the limit of territorial seas to 12 miles when the decision that is so much to be welcomed has 390 now been made. My own concern primarily arises from the study we made of marine oil pollution when the Royal Commission on Environmental Pollution studied that subject and reported in 1981. It recommended strongly that this limit be adopted. Even at that time, over 100 states, including major maritime nations such as Japan, the USSR, France and Italy, already claimed territorial seas of 12 miles or more.
I do not believe that the extension of United Kingdom territorial waters will of itself markedly reduce pollution offences. The extension now proposed would extend the area in which offences committed by foreign vessels would be subject to prosecution under our own national law. It would extend the area in which pollution incidents occur in respect of which compensation could be claimed for damage caused. Perhaps most important it would extend the area over which the United Kingdom would have powers to intervene in shipping incidents which pose a pollution threat to our coasts.
International conventions make some provision under which a coastal state can take action to protect its coastline against oil pollution threatened by a shipping casualty outside its territorial waters. Somewhat similar provisions now apply also to chemicals. The difficulty is that the coastal state may intervene only after a casualty has occurred and where there is a grave and imminent danger of pollution to its coastline or territorial waters. The coastal state may take such action only as is necessary to avoid the pollution danger and must consult the flag state of the vessel concerned.
For all these reasons, an extension of the territorial waters to a limit of 12 miles is much to be welcomed. There is however a further point which deserves to be mentioned. It is important that the criteria for intervention when a ship gets into trouble in territorial waters should be clearly established. For example, there was the case of the "Athina B", a Greek owned vessel of about 3,500 dwt carrying a cargo of pumice which got into difficulties in bad weather close to Shoreham harbour. She was carrying 300 tonnes of bunker oil. A tug was quickly on the scene but returned to harbour as terms of tow could not be agreed. The coastguard reported to the appropriate authorities, I understand, that taking into account the coastline, and the state of the weather and of the vessel, she would be driven onto Brighton beach in the space of about six hours. Intervention by the authorities in the light of this report was clearly required, but no action was taken, possibly in the mistaken belief that this was contrary to the ship's right of innocent passage in territorial waters, which surely could not apply to a disabled ship out of control and about to run aground.
Sure enough, the ship was driven on to Brighton beach, where she holed herself on a concrete groyne. In fact no oil pollution resulted. This, however, was a happy chance. Had the 300 tonnes of bunker oil been spilt it would have caused substantial pollution on one of England's premier beaches, which would have been difficult and costly to clean up. With the extension of territorial waters from three to 12 miles, it would seem that particular regard should be paid to tightening up the criteria for intervention where an incident of this kind occurs. The requisite powers to intervene exist.
391 There is one other point to which I would refer and it relates to lightening operations at sea; that is, the offloading of part of the cargo of a tanker to another vessel, usually to reduce its draft. One often sees such lightening operations taking place in Lyme Bay, within the three-mile limit, but quite a number of such operations take place outside the three-mile territorial limit but within 12 miles of the shore. Tankers lightening within the three-mile limit and subsequently proceeding to British ports are liable to prosecution if spillages occur. The ability of the UK authorities to proceed against vessels responsible for spills will be enhanced on extension of territorial seas to 12 miles.
I recognise that the appalling experience of major pollution incidents in the 1960s and 1970s, such as the "Torrey Canyon" and the "Amoco Cadiz" have happily not been repeated around our shores in the last few years. There continue, however, to be less dramatic incidents giving rise to oil spills resulting both from accidents and from intentional and unlawful discharges. The extension to the 12-mile limit may, subject to the difficulties of detection of the source of the oil, help to limit pollution from these causes.
The economic malaise which has afflicted the shipping industry gives, I suggest, some cause for concern in the context of pollution. For instance, so far as I am aware, tanker fleets are not being renewed and the increasing use of flags of convenience seems likely to lead to less supervision of standards of the ships and their crews by the oil companies than existed previously. I fear therefore that it may be chance which has resulted in a substantial reduction in major pollution from tankers, because there is the experience of increasing trouble arising from accidents from bulk cargo carriers. These may themselves of course be carrying up to around 20,000 tonnes of bunker fuel, which can be difficult to clean up.
I do not believe, therefore, that we can afford to take a relaxed view of oil (or indeed chemical) pollution of the sea and of our territorial waters and coasts, as a result of the better experience we have had in this decade compared to the previous two. The extension of the territorial waters to 12 miles should certainly help us to meet trouble when it comes.
There is one question of a quite different character which I ask the Minister. It relates to the recognition of the 12-mile limit adopted by certain other states. As I understand, in the Gulf there are certain states which had, and have, a limit of three miles, and certain of those states extended their limit to 12 miles, but hitherto we have not recognised the validity of that extension. I wonder whether the noble Baroness can inform us about that.
§ 7.24 p.m.
Lord Campbell of Croy
My Lords, I should like to thank my noble friend for having introduced this Bill so clearly and concisely. Its appearance a few days ago constituted a break with centuries of tradition for this country, but it was a necessary break and a change which I welcome because the balance of advantage for Britain has changed.
392 As a leading maritime nation, Britain has in the past stood for freedom of navigation of the high seas throughout the world and has regarded the high seas as everything beyond a narrow coastal strip of three miles. As a mercantile nation as well as a maritime nation, we have certainly made good use of that freedom to sail the high seas throughout the world. It gives me pleasure to congratulate the Government on now bringing forward this Bill, because I have been encouraging them strongly to do so for several years. My noble friend has confirmed that one of the reasons for introducing the measure now is that it would be convenient from the point of view of the Channel tunnel.
I should like to ask her about timing. The Bill can be presumed, I think, to be enacted during the course of this year. Under Clause 4 different parts of it can be brought into force at different times. Can the Government give us any idea of whether it is intended that the main parts of the Bill should come into force soon after enactment?
Then I should like to ask about the position of the United States. The noble Lord, Lord Cledwyn, asked for a list of countries which still recognise three miles and those which have extended to 12 miles. There are some who claim 100 or 200 miles of territorial waters. But my understanding is that the only nation of significance which still maintains a three-mile territorial sea is the United States. It would be helpful to know what their intentions are at the moment. Had the United States been prepared to accept the United Nations Law of the Sea Convention, it would then have been part of its programme to recognise a 12-mile limit. But the United States has not, and so it would be useful to know the position there.
I would ask, arising from that, whether the Government now regard this change as customary law—that is to say, that it has been adopted or recognised by the large majority of maritime nations of the world—because that is the way in which fishing limits were extended in 1976 and 1977. Virtually all the maritime countries had agreed to an extension of fishing limits to 200 miles. That was also enshrined in the text of the convention, but without waiting for the convention to come into force the 200-mile fishing limit was adopted and we in your Lordships' House here gave the Bill a fair wind from the Opposition Front Bench in 1976 and 1977. Is this also to be regarded now as customary law in that way?
Are the Government satisfied that passage will be guaranteed through international straits in other parts of the world? So far there has been discussion about straits around our own country, like Dover, but it has in the past been important that we should be sure before we move from three to 12 miles that our vessels would be able to pass through straits such as Gibraltar, Malacca and Hormuz—straits which are less than 24 miles wide. The right of innocent passage we expect not only for merchant vessels but also for naval and military vessels, including aircraft and submerged submarines. Can my noble friend tell us anything about that which we ought to know?
Further have any transit passage regimes already been formulated in different parts of the world for such international straits or been put into effect? The noble Lord, Lord Kennet, mentioned the Minch in this 393 connection. I must tell him that the Minch has already been within the territorial sea of the United Kingdom, at three miles, because of the base lines. I do not think that a problem will arise because of this extension.
The reasons for the change must be that other countries have been enforcing their 12-mile jurisdiction upon our vessels and we have had to recognise that. We could not opt out. And yet there was no reciprocity while we were asserting only a three-mile territorial sea around the United Kingdom. This is especially true where the prevention of pollution was concerned.
We shall in the future be able to control the conduct of ships up to a distance of 12 miles from our coast. I shall not repeat what I have said before in this House. The noble Lord, Lord Nathan, who spoke before me, took part in the debate I opened in March 1982 on the subject of the report of the Royal Commission on Pollution of the Sea, of which he was a member, and also an EC report. One of the Royal Commission's principal recommendations was that we should extend our territorial seas to 12 miles. The extension of United Kingdom jurisdiction should enable action to be taken against sources of pollution over a large area of sea or against threats of pollution of coastal waters as well as the coastline. In future, offenders should be brought to book more easily.
There has been welcome international acceptance in recent years of what is called port jurisdiction rather than flag jurisdiction—that is to say, rather than the home country or registration country being responsible for taking an offender to task. The combination of the extension of the territorial sea, quadrupling in this way the breadth of the territorial limit, and being able to act against an offender in a port of call will greatly help to deter those who deliberately cause pollution or who cause pollution through carelessness.
I am glad to see that the House will be asked later today to approve a Merchant Shipping (Prevention and Control of Pollution) Order. That will give effect to measures internationally agreed to improve upon the provisions of the 1973 international convention. These improvements are helping to prevent pollution and we shall be better able to monitor and police those measures when this Bill has been enacted and has entered into force.
We shall also have much greater control of the traffic round the coasts of Britain in order to prevent collisions and investigate accidents. The noble Lord, Lord Kennet, mentioned Rockall. I remind him that I was the Secretary of State who put this Bill through Parliament in 1972, confirming that Rockall was part of Scotland. It is an uninhabited island, although a certain Tom McLean showed that it could be inhabited for some weeks. However, the position of an uninhabited island is something which must be looked at. The claims of other countries are also subject to various conventions regarding the position of an uninhabited island. In this case, if it had a three-mile territorial limit around it, it ought to be a 12-mile limit in the future.
I suggest that the proposals in this Bill are not controversial and should not meet much opposition in either House of Parliament. In the 1983–84 Session I 394 offered to the then Foreign and Commonwealth Secretary to put forward a Bill of this kind as a Private Member's Bill. That was nearly accepted because the Government found it difficult to find time for a government Bill to fit into the rather heavy legislative programme at that time. I am glad to say that I am now no longer needed as a private pilot, and that is why I am particularly pleased that the Bill is coming forward today.
The reason that I made such an offer is that in the past I have been involved in these subjects, beginning in the Foreign Office in the late 1940s and then in the United Nations for three years after that. I am sorry that the noble and learned Lord, Lord Wilberforce, is not here because I am reminded that he and I were working together with Sir Gerald Fitzmaurice, who was mentioned earlier in the debate and who went on to become a judge in the International Court at The Hague, and Sir Eric Beckett, on our case in the Corfu Channel incident. I was then dealing with Eastern Europe. Two British warships had struck mines and more than 40 of our sailors were killed.
That kind of situation should now be eliminated. Everyone should know where international straits are, they should be designated and all nations should enjoy the right of free passage through them. I hope that the Bill will receive the full support it deserves.
§ 7.35 p.m.
§ Baroness White
My Lords, I have a feeling that the noble Baroness the Minister is now realising the possibilities of this apparently simple piece of legislation. It interests me very much that all the Back-Bench speakers listed have been active in one or other of two organisations. The noble Lords, Lord Kennet and Lord Campbell of Croy, as well as myself, have all been officers on the Advisory Committee on Pollution of the Sea. The noble Lord, Lord Nathan, and the noble Earl, Lord Cranbrook, are currently members of the Royal Commission on Environmental Pollution, of which I was a member in 1981 when the Royal Commission reported on pollution of the sea. I think I can fairly claim to be the only one of the Back-Bench speakers who has been a member of both organisations. That accounts for my interest in the matter.
On the other hand, many of the vital points have already been made and I am sure that the noble Earl, Lord Cranbrook, will take up the matter of marine nature reserves. I should be very much surprised if he did not. I shall therefore confine myself to some very brief remarks. I much regret that the two noble and learned Lords whose names appeared on the list of speakers have found themselves unable to be present at this time. That seems to me unfortunate because, as a piece of legislation, I find that this brief Bill reminds me very much of Alice through the Looking Glass. There is nothing in this Bill for which it is not also provided that it may be altered, removed, extended or changed, either by an Order in Council or by a certificate. It is the most astonishing method of legislating.
The noble Lord, Lord Kennet, drew attention to Clause 1(2). If we then look at Clause 1(5), we 395 find—and it is not very often we legislate in this way—that the section states:Any enactment or instrument which (whether passed or made before or after the coming into force of this section) contains a reference (however worded) to the territorial sea …shall be construed in accordance with this section and with any provision made, or having effect as if made, under this section".It is a most curious way of dealing with this matter—but then of course I am not a lawyer. I should have thought that our colleagues would have enjoyed themselves in dealing with this Bill.
The main and very satisfactory purpose of the Bill is to extend the three-mile limit. As the noble Lord, Lord Nathan, and others have indicated, this is something we asked for quite vehemently in the report of the Royal Commission in 1981. The noble Lord, Lord Campbell of Croy, in his other capacities well before that time, and, I think, every chairman of ACOPS that I know of, has asked for this extension on the grounds of the assistance it may give in dealing with pollution of the seas.
My noble friend Lord Cledwyn suggested that the United Kingdom had adhered more strongly to the three-mile limit than any other maritime nation. I might fairly use the word "obstinately" in that connection. I do not wish to go into too much history but it did astonish me when I made inquiries about this subject to find that as recently as 1951 the United Kingdom actually took Norway to the International Court of Justice because Norway was endeavouring to enforce a four-mile limit. That seems to me a rather extravagant complaint on our part. In 1981 there were, according to the Royal Commission report, more than 100 states which were observing the 12-mile limit. Spain apparently adopted a six-mile limit at the end of the 18th century, Russia started using a 12-mile limit at the beginning of this century, and so on.
With the possible exception of the United States, we have been the slowest of any maritime country to recognise that the 12-mile limit makes sense. The reason for that has been touched on by preceding speakers. It is partly due to the fact that we are now much more of a coastal state than a maritime state. Our Merchant Navy has diminished with rapidity and even the Royal Navy is of less consequence than it was in earlier times. Therefore our balance of interests, as the noble Lord, Lord Campbell of Croy, has indicated, has changed.
I say not only personally but as someone still connected with ACOPS that I very much regret that Her Majesty's Government found it impossible even to sign the United Nations Convention on the Law of the Sea. I know that there were moral arguments that we ought not to sign if we were not prepared to ratify everything contained therein, but it made a very unfortunate impression. I am glad that at least we are now taking this step in the right direction.
I am concerned about the pollution possibilities. It is certainly satisfactory that we should now be able to take into account offences within the wider area, 12 miles instead of the three miles. We still do not have adequate port state jurisdiction, which was touched on by the noble Lord, Lord Campbell of Croy. The fact that we can now operate within 12 miles does not by 396 any means put us in a position where we can take action as a port state over the areas outwith the 12 miles. I am well aware that the Paris memorandum of understanding of 1982 makes it possible for us to take action regarding the actual safety of ships if they call in our ports and their physical condition is not up to standard. But it does not mean that we can take action against pollution or other offences. I do not know whether the noble Baroness feels able to say anything about that.
I have just mentioned the marine nature reserves in which some of us are interested. It is quite astonishing that, as appears from the way in which Schedule 1(6) is drafted, we do not take it for granted that the provisions of the Wildlife and Countryside Act 1981 referring to marine nature reserves should be effective within the 12 nautical miles. This schedule refers only to areas seaward of baselines up to a distance of three nautical miles.
I am well aware that the area which might be designated as marine nature reserves within that territorial area of even three nautical miles is not very large. We have trouble enough trying to designate any marine reserves within our existing waters. As we all know, Lundy is the only one that has so far been designated. I have had some brief discussions with the Nature Conservancy Council, which says that, while there is no immediate prospect of wishing to take action beyond the proposed three nautical miles, nobody knows what may happen in the future, when diving techniques may be further extended and we may wish to do so. I hope that the noble Baroness will be able to tell us why one has to make this distinction between the proposed 12 nautical miles and the three nautical miles included in the schedule.
I do not wish to delay the House any further on this matter beyond indicating that the way in which the Bill is drafted caused me at least some surprise. Every single provision seems also to provide for its modification, withdrawal or extension. I cannot think of any other Bill that has so many let-outs for every one of its provisions. However, we would all wish to support its main intention to extend our territorial waters.
§ 7.45 p.m.
The Earl of Cranbrook
My Lords, I should like to echo the regret expressed a moment or two ago by the noble Baroness, Lady White, that the 12-mile provision has not automatically been extended to encompass marine nature reserves. Whatever at present may be the intention or the wish to designate marine nature reserve areas, we must look forward to a time when they can be selected on genuine biological grounds, grounds whereby we can have regard to the natural topography of the seabed, the natural flow of currents, the natural quality of the sea waters and other characteristics, without the imposition of an artificial linear boundary of this nature which could be entirely disastrous in biological terms. I hope that we can have some assurances from my noble friend that she will look sympathetically at all possible opportunities to allow marine nature reserves to be established when they are finally created on genuine biological grounds.
397 The unfortunate consequences that can occur are illustrated by some of the regrettable incidents that have taken place, to the detriment of our cultural heritage rather than of our biological heritage, to which I now want to turn. My noble friend has had a great many questions thrown at her and I do not intend to add to that list. I wish to pick up and to emphasise rather more strongly than she did a question posed by the noble Lord, Lord Cledwyn of Penrhos, concerning the Protection of Wrecks Act 1973. I noticed that my noble friend said that the general legislation now applied to three-mile limits will automatically be extended to 12 miles. She also went to on say that some provisions need not or ought not be so extended.
On the Bill itself and in the explanatory memorandum, I see no mention in either category of the Protection of Wrecks Act 1973. This Act allows for some degree of archaeological control to be applied to the salvage of shipwrecks which are of special historical or archaeological significance. The Goodwin Sands at present lie astride the three-mile limit, and the extension of our territorial waters to 12 miles will therefore encompass what can only be described as the world's largest deposit of ancient vessels. Many of the wrecks on the Goodwin Sands are known by name. They are of historic date and the controlled excavation of these wrecks could be of immense importance. This same area can be expected to hold unknown wrecks of even more ancient date, extending back to the Roman period, the Phoenician period and still earlier, perhaps to the first efforts of man to navigate across the North Sea. This is an enormously rich ground for the wreck hunter.
The hunting of wrecks has become a growing activity lately and a growing menace to the preservation of our cultural heritage in this form. Operations are now on a scale far greater than they have been before and the operators are using machines, rather like giant underwater vacuum cleaners, that simply sweep up everything and destroy in so doing all opportunities for controlled archaeological excavation.
Moreover, these operators now have serious commercial backing. Large commercial concerns including international banking firms have supported wreck hunters, though not to a great extent yet in our own seas. Where there is money one expects pressures to be exerted. We already have before us the sorry example of the "Admiral Gardner", an important archaeological wreck for which protection was sought, but because it lay outside the three-mile limit it was lost and was therefore looted. At present certain matchboxes are available using coins from this wreck for advertising purposes. On the whole, that seems a deplorable misuse of something that could have been a controlled and informative excavation.
The wrecks which lie within what will be an extended territorial sea are part of our cultural heritage. The noble Lord, Lord Cledwyn, referred to 2,000 years of British history. A lot of that, back into pre-history, lies there to be recovered; but it must be protected before the less reputable of the recoverers get to it. It would be deplorable if this cultural heritage was not protected as resolutely as are the ancient monuments on land. Therefore, I ask again in stronger 398 terms the question that has already been posed to my noble friend. What will be the position of the 1973 Act after our territorial waters are extended?
§ 7.51 p.m.
§ Baroness Young
My Lords, I am grateful to all your Lordships who have taken part in this debate and, indeed, for the very wide welcome that this Bill has received from all parts of the House. As is only to be expected on this occasion, all those who have spoken have done so from a great wealth of personal knowledge on this subject. That has shown the importance and value of this Bill. As my noble friend Lord Cranbrook said in the course of his remarks, I have been asked an enormous number of questions. I shall do my best to answer them but I can assure your Lordships that I shall carefully read Hansard tomorrow and if there are points which need to be followed up I shall do so.
First, I thank the noble Lord, Lord Cledwyn, for his response to the Bill. He asked a number of questions. He first asked whether the sea bed and air space should be treated separately. The limit applies generally to the water, the sea bed and the air space. He also asked what are the territorial limits for a number of states. I have a complete table and it might be for the convenience of your Lordships if I send a copy of it to all who have spoken in this debate. However, for the moment I shall summarise. Fifteen states claim three miles, including incidentally the United States of America; two states claim four miles; 100 states claim 12 miles, and 21 states more than 21 miles. However, as I said, I shall circulate a full list to all those who have taken part in the debate so that they are in possession of the precise details.
The noble Lord, Lord Cledwyn, further asked about the line that had been agreed with France in the Straits of Dover and how it is to be drawn. This is a very technical matter which I suspect he, like myself, will need to look at very closely. However, my understanding is that on the Straits of Dover it is a simplified median line; that is, a median line which is constructed by a number of straight lines which follow the general line of the more complicated median line. I confirm that there are Community states other than France with whom a limitation of territorial sea will be necessary in the case of the Channel tunnel.
A number of speakers, particularly the noble Baroness, Lady White, and the noble Lord, Lord Cledwyn, together with my noble friend Lord Cranbrook, mentioned marine nature reserves. I understand very much the strength of feeling on this matter. The present priority, as I understand it, is to establish marine nature reserves in the existing three-mile territorial sea. As the noble Baroness, Lady White, properly said, Lundy was designated last year and further sites are being processed. Both Skomer and Menai are well advanced and we hope that they will be designated this year. Other sites such as Loch Sween, St. Abb's Head, Bardsey and the Scilly Isles are under consideration.
I was asked why the area for marine nature reserves is not automatically extended by this Bill. Our present priority is to establish marine nature reserves in the existing three-mile territorial sea. We do not yet have the scientific data we need to make a reliable 399 assessment of whether such reserves are also required between the three miles and the 12 miles. If we find that to be the case, Clause 3(2)(b) and (c) provide the necessary power by Order in Council to include such areas.
§ Baroness White
My Lords, I thank the noble Baroness for giving way. Would it not be simpler just to put the full 12 miles in the Bill now instead of having to do so later if required? What is the objection to that?
§ Baroness Young
My Lords, my understanding is that because we are at present in the process of establishing these marine nature reserves within the three-mile limit we do not yet have the scientific data available to make a reliable assessment of whether a marine nature reserve is needed between three and 12 miles. That is why the power is in the Bill to make such a reserve by Order in Council. However, I take the point made by the noble Baroness.
The noble Lord, Lord Cledwyn, and my noble friend Lord Cranbrook also asked about maritime wrecks. I fully understand their concern and that of nautical historians and archaeologists. I confirm that the effect of the Bill is that the Protection of Wrecks Act 1973 would automatically apply in the wider area of the territorial sea.
The noble Lord, Lord Cledwyn, also asked about harbour limits. There are already established procedures to extend, when necessary, the limits of harbour authorities. Where these limits are in a private Act, as is the usual case, such Acts have been passed after undergoing the Private Bill procedure, which enables local interests to present their viewpoints for the consideration of Parliament. Similarly, if limits are proposed to be changed by an order under the Harbours Act there is provision for a public inquiry, where again local interests can be represented.
These procedures provide safeguards for people whose interests might be affected by an extension of limits. We think it much better to leave these procedures to be applied if necessary rather than to make an automatic change through this Bill.
The noble Lord, Lord Kennet, asked a number of questions. I begin by dealing with his question about Rockall, because it gives me an opportunity to say to my noble friend Lord Campbell of Croy that we were of course delighted to have him confirm that he was the man who made Rockall a part of Scotland by introducing the Bill. I confirm to the noble Lord, Lord Kennet, that it is a part of Scotland. It already has a territorial sea of three miles and under the Bill this will be automatically extended to 12 miles.
The noble Lord also referred to Clause 1(2) and asked whether the Government could make extensions by Order in Council of 200 miles, because that is contrary to international law. Clause 3(3) contains a power to alter the effect of orders designating areas of Continental Shelf because these will become territorial sea. I cannot see any other occasions for an Order in Council under the Bill amending the Continental Shelf Act 1964.
§ Lord Kennet
My Lords, I should like to take up the noble Baroness on one point, because she did not answer my question about Clause 1(2) and the possibility of putting the line at the outside edge of the territorial sea further out than 12 miles. It would not have to be 200 miles—that is an extreme case—but is it open to the Government to draw it further out than 12 miles rather than closer in under that provision?
§ Baroness Young
My Lords, as I understand it it would be possible but not by virtue of this Bill. I think that it would be something that could be done separately. If I am not correct on that point, I shall write to the noble Lord.
The noble Lord also asked about the competing claims of the 1958 and 1982 conventions. We are parties to the 1958 convention but the 1982 convention will not be in force even for the signatories. He also asked about the Minches. I think that that was a point that was answered by my noble friend Lord Campbell, but I can confirm that ships of foreign states enjoy innocent passage, but submarines would not be able to pass through the area except on the surface, and aircraft could not overfly, as they could, straits such as the Straits of Dover.
The noble Lord also asked about the dependent territories. I can confirm to him that the Bill does not apply to the dependancies.
§ Lord Kennet
My Lords, is it the Government's intention later on to introduce provisions through the governments of those dependencies to give them a 24-mile limit too?
§ Baroness Young
My Lords, under this Bill we do not intend to extend the provisions to the dependencies. That would require another Bill.
We all listened with very great interest to the speech of the noble Lord, Lord Nathan. We know his long experience in matters of the environment and the service that he has given on the Royal Commission on Environmental Pollution. He asked why the Government have not taken steps to control tanker lightening. The need to regulate transhipment and tanker lightening is recognised, but the detailed form that the necessary legislation might take is still under consideration. The noble Lord also asked, as did the noble Baroness, Lady White, how the extension to 12 miles might improve pollution control. We recognise the concern over marine pollution and have had very much in mind the recommendation of the Royal Commission on Environmental Pollution in 1981 to extend the territorial sea to deal with oil pollution.
This Bill or course is concerned with the limits of the territorial sea and not the actual regime there. However, it will strengthen our ability to control pollution. In particular, powers to prosecute under the Merchant Shipping (Prevention of Oil Pollution) Regulations 1983 will be automatically extended so that owners and masters of ships that discharge oil into the sea within the extended territorial sea can be prosecuted on arrival in a UK port. Only UK vessels can be prosecuted for such offences beyond the limits of the territorial sea.
401 Similarly, under the Prevention of Oil Pollution Act 1971 powers of intervention in any incident where there is a threat of large scale pollution to the United Kingdom or to its territorial sea would apply in respect of the wider area of the territorial sea.
§ Baroness White
My Lords, will the noble Baroness enlarge a little on that statement? Are Her Majesty's Government proposing to do anything further to extend port state jurisdiction, which of course it would have achieved under Article 2.1.8 of the Law of the Sea Convention?
§ Baroness Young
My Lords, I think that the answer to that is that this Bill is not concerned with what might be the réegime within the three-to 12-mile limit to which we are now extending but with extending the limit itself. As regards the specific point that she has raised, if I may, I shall write to her if there is something further I can say but I think that the way I have described it is correct.
The noble Lords, Lord Nathan and Lord Campbell, asked about the recognition of other states' 12-mile limits, which of course is a most important point, and they referred in particular to the Strait of Hormuz and the attitude of the United States. The implications of the enactment of the Bill are that we shall recognise properly drawn 12-mile limits of other countries in the Gulf and elsewhere, in the same way that we expect them to recognise the navigational rights of other states. We believe that such limits are permitted by customary law and I believe that, although it has a three-mile limit, the United States now takes the same view. As to reciprocal treatment by others in the light of the Bill, we believe that the freedom of navigation and other rights in straits which we intend to accord to other states are widely respected and will be accorded to us.
There was one final question asked by the noble Lord, Lord Kennet, regarding Soviet surveillance vessels which I did not answer. I can confirm to him that the right of innocent passage is the right to pass expeditiously. Ships have no right to remain anchored in the territorial sea.
I shall look carefully at the record of our debate tomorrow. I am grateful to noble Lords for the many points that have been raised and in particular for the welcome that has been given to the Bill and for the interest in it that has been expressed by those who have taken part in the debate this evening. As I agreed, I shall circulate the list of states, and perhaps I should say that, no doubt by a slip of the tongue, I may have misread one piece of information. There are 21 states that claim more than 12 miles and not the other way round, as I think I gave the information. At any rate I too must read Hansard to see what I said. However, I shall circulate the correct list of all the countries to each noble Lord who has taken part in the debate this evening. I am grateful for the welcome given to this Bill.
On Question, Bill read a second time, and committed to a Committee of the Whole House.