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Standing Committee B
Tuesday 8 June 2004
[Mr. Bill O'Brien in the Chair]
Exploitation of areas outside the territorial sea for energy production
Mr. Michael Weir (Angus) (SNP): I beg to move amendment No. 28, in
clause 85, page 65, line 13, leave out from 'State' to end of line 15 and insert
'shall by order designate that those parts of a Renewable Energy Zone which would fall within an area to which the law of Scotland would pertain as an area in which the Scottish Ministers are to have functions.'.
The Chairman: With this it will be convenient to discuss the following amendments: No. 159, in
No. 29, in
clause 88, page 67, line 16, at end insert
No. 30, in
'but the said Order shall specify that any area to which Scottish law would normally pertain shall be subject to the law of Scotland, Scottish waters being defined by the co-ordinates set out for the boundary in the Continental Shelf Jurisdiction Order (S.I./1968, 891).'.
No. 31, in
Mr. Weir: The amendments relate to the three clauses setting up the renewable energy zones and the civil and criminal law that will apply to them. There is some confusion in these matters. Clause 85(5) states:
''The Secretary of State may by order designate the whole or a part of a Renewable Energy Zone as an area in relation to which the Scottish Ministers are to have functions.''
Subsequent clauses deal with the application of civil and criminal law within the zone and the Scottish Ministers may have a function determined by Order in Council. The Library research paper on the Bill gives a background to the clause with reference to article 2 of the United Nations convention on the law of the sea, which recognises that coastal states have jurisdiction and sovereignty over territorial waters, and part VI of the convention gives coastal states certain rights in relation to the sea bed of their continental shelf. In the UK, that is given effect by the Continental Shelf Act 1964. Part V gives coastal states the right to establish economic zones.
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I understand that a renewable energy zone is to be designated by Order in Council. The Bill states that Scottish Ministers are to be consulted. So far so good, but earlier the Minister seemed to indicate that the size and extent of the zone have not been finalised. It is not clear how much of it will be off Scotland's shores and to what extent Ministers and Parliament will be involved in the issue.
In response to a query on the matter in the other place, Lord Whitty replied:
''An Order in Council could potentially cover civil or criminal law matters that are wholly reserved under the Scotland Act 1998, wholly devolved or a mix of both . . . In the case of wholly reserved matters the Order in Council would be subject to the negative resolution procedure in the Westminster Parliament . . . Where the Order in Council deals with wholly devolved matters it would be subject to annulment of a resolution of the Scottish Parliament. Where the content of the Order in Council includes both reserved and devolved matters it would need to be subject to the procedures of both the Scottish and Westminster Parliaments.[Official Report, House of Lords, 3 February 2004; Vol. 657, c. GC335.]
Again, so far so good, but it is not clear exactly which part of the area will be subject to Scottish law.
As the hon. Member for Vale of York (Miss McIntosh) said earlier, a footnote to the regulatory impact assessment states that the renewable energy zone extends beyond the territorial seas of Scotland, Wales and Northern Ireland and is excluded from the devolutionary arrangements set out in the Scotland Act 1998, the Wales Act 1998 and the Northern Ireland Act 1998. The legislative proposals in regard to territorial waters recognise where appropriate the competence of a devolved Administration. That suggests that there is no Scottish involvement outwith the immediate territorial waters, but that is wrong in principle and in practice.
The United Kingdom is different from most coastal states in that it has two completely different legal traditionsScots law and English law. It is not correct to say that the Scottish Parliament's jurisdiction, and therefore Scots law, extends only to territorial waters. I refer hon. Members to section 126 of the Scotland Act 1998
The Chairman: Order. I appeal to the hon. Gentleman to give a little more voice. The air conditioning is noisy and the Hansard reporter would like hon. Members to speak a little louder.
Mr. Weir: Thank you, Mr. O'Brien. I shall try to speak up.
As I was saying, to suggest that there is no Scottish involvement outwith the immediate territorial waters is wrong in principle and in practice. The UK is different in that it has two differing legal traditions. I was referring to section 126 of the Scotland Act 1998, which defines various terms in the Act. It defines Scotland as including
''so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Scotland''.
Section 126 goes on to define the Scottish zone, which is important for fisheries matters, as
''the sea within British fishery limits''
the limit under section 1 of the Fishery Limits Act 1976
''which is adjacent to Scotland''.
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The effect is that Scots law applies to that area of fishing jurisdiction, adjacent to Scotland, which is much greater than the territorial waters.
The situation is further compounded by the Continental Shelf (Jurisdiction) Order 1968, which defines the boundaries of Scottish waters. The area is much greater than simply the territorial waters. That is important because the authority of the renewable energy zone, as I understand it, is based on the Continental Shelf Act 1964. The 1968 order defined the English area, the Scottish area and the Northern Irish area within UK territorial waters. I shall not bore the Committee by going through the various latitudes and longitudes of that.
Miss Anne McIntosh (Vale of York) (Con): Oh!
Mr. Weir: I will if the hon. Lady insists, but I think that we shall have a quiet meander down the road of constitutional law this afternoon.
The order states that
'''the Scottish area' means the areas included in the sixth designated area, those parts of the first, second and fifth designated areas which lie north of the Scottish border and that part of the seventh designated area which lies north of the Scottish and east of the Northern Irish border''.
That means that the areas of sea within UK waters that lie adjacent to Scotlandnorth of the border between Scotland and Englandare the areas to which Scots law applies as regards fishery and oil installations.
The order refers to which law will apply in each area. It states that
''the law in force in Scotland shall apply for the determination of such questions arising out of acts or omissions taking place in the Scottish area'',
so Scots law applies in those areas. The Scottish sector of the UK sectorif I can put it that way without tying myself in knotsis much greater than simply the territorial waters. Scots law governs fisheries as well as offshore oil and gas exploration. Should a crime be committed on an oil rig off the Scottish coast, a Scottish police force would deal with the matter and a Scottish court would hear the case.
As the Bill stands, that might not necessarily be the case in respect of an offshore wind or wave facility, especially as we do not know the exact extent of any future zone or Order in Council that would define the extent to which the Scottish Parliament, and therefore Scots law, would have jurisdiction. It would be possible for the UK Minister to decree that English law applied to the whole of any renewable energy zone outside strict territorial waters, and the consultation with Scottish Ministers would be a case of, ''Well, there you go. That's it.''
That may seem a minor point, but there is a recent precedent in that, in 1999, there was a change in territorial waters for fisheries jurisdiction, which resulted in a large part of southern Scottish territorial waters for fishery being transferred to English jurisdiction. As a result, if I look out at the sea from the southern part of my constituency, I gaze upon English territorial waters in respect of fishing, though not in respect of other matters. That is disgraceful.
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Amendment No. 28 would ensure that in any area where Scots law currently applied for other purposes, it would also apply to the renewable energy zone, so that where Scots law applied for oil exploration, fishing and other matters, it would also apply to offshore energy. Amendment No. 29 would define that area with reference to the 1968 order, which defines the extent of Scots waters for these purposes. Amendments Nos. 30 and 31 would make the appropriate changes to the clauses relating to civil and criminal law.
This is an attempt to include certainty, clarity and consistency in the application of law to our seas. I hope that the Minister accepts the absolute sincerity of that and the need for certainty, and that he accepts the amendments without further ado.
Miss McIntosh: I pay tribute to the hon. Gentleman for tabling his amendments and for the knowledge of Scots law that he has demonstrated. The Committee will recall that I am a Scottish advocate, albeit a non-practising one, and I studied the international law of the sea as part of public international law. Sadly, that was before the UN convention on the law of the sea was adopted in 1982. I had the privilege of being taught by the Government adviser, Patricia Byrnie, who was deemed to be a leading expert on the international law of the sea. I shall speak to amendment No. 159 to resolve the conundrum that I tried to address under clause 84. I was quickly and rightly brought to book, as this is the relevant clause.
The Bill is silent on where the renewable energy zones will be. We are simply trying to establish the principle of extending the UN convention on the law of the sea beyond the territorial waters. Not only do we not know where the zones will be, but we do not know how large they will be.
The zones will have implications for Scotland. Will the Minister explain how they will be interpreted and tell us which law will be applicable to them? Will they, for the purposes of the UN convention on the law of the sea, have the same legal status as offshore oil rigs? As the hon. Member for Angus (Mr. Weir) will be only too well aware, Shetland made a claim that some oil wells were in Shetland's territorial waters and so did not pertain to Scotland. That happened when I was studying the international law of the sea, admittedly some time ago, and it is another dimension in this regard.
Can the Minister confirm that the renewable energy zones will have the same legal status, be that under English or Scottish law, as offshore oil rigs? That has consequences for the rest of this chapter. Clearly, a renewable energy zone is going to be on a much greater scale and it will not be limited to a small area such as that occupied by an oil rig. We should consider this matter from the point of view of causing navigational hazards and the ability of lifeboats to go out in the event of an emergency, as well as of other fishing interests, as the hon. Gentleman mentioned, and recreational craft.
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There was a lengthy debate in the House of Lords on this. As the Library note states and the hon. Gentleman quoted, Lord Whitty replied specifically about the status of an Order in Council applying criminal or civil law. My particular concern is that there will be circumstances in which article 85 will apply to Scots law, with a renewable energy zone being positioned in waters that are beyond UK territorial waters but deemed to be part of Scotland. The Bill is silent on that point. I do not know whether the Minister would see that as a West Lothian question, an extension of that question or the opposite of it.
I should perhaps not read out page 31 of the regulatory impact assessment again, as I referred to it this morning and the hon. Gentleman has just read it out. However, a footnote states:
''The legislative proposals in regard to territorial waters recognise, where appropriate, the competence of the devolved administrations.''