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Lord Dixon-Smith: My Lords, if my noble friend has concerns after the long debate that we have had, I am bound to say that I must support him. I was beginning very much to hope that the only places where rights of navigation would be extinguished were in those areas that were either covered by construction or by the buffer zone necessary to protect that construction. If there is any question in my noble friend's mind—which there obviously is—that the extinguishment of navigation rights will go any wider than that, it seems to me that we are in considerable difficulties and very great trouble. I await the Minister's clarification of the point with great interest. It is absolutely essential that we know precisely which part of—I was going to say "ground", but I suppose that I should refer to the sea bed—the sea bed this all rests on.

The Earl of Caithness: My Lords, I should like to support my noble friend Lord Higgins. I too am concerned about the map produced by the Crown Estates. It seems to indicate that sites have been allocated for wind farms that will affect our obligations under the United Nations Convention on the Law of the Sea (UNCLOS).

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I mentioned this on an earlier amendment. I refer to the international right of passage. No country is allowed to impede that. Looking at the map in front of me, it appears that we have already taken decisions that will impede the international right of passage.

Lord Donaldson of Lymington: My Lords, I have not had any advance notice of this matter. There is no reason why I should have. It is entirely my fault for not having informed myself of it. Therefore, I have not studied UNCLOS carefully. However, from my recollection of first principles, I am not entirely sure that the international rights of innocent passage and the rather different international rights through straits depend on UNCLOS. I think that they may depend on what one might almost describe as the common law maritime law of the sea, which UNCLOS will to some extent, perhaps wholly, have confirmed.

However, I have pondered the question of whether one could build a wind farm which would narrow the Straits of Dover. I wonder what the answer to that would be in terms of international rights. I came to the conclusion that that possibly would be all right so long as one left something for international ships to pass through. However, one could not extinguish their rights of passage. If they choose to thread their way through a wind farm, I shall not say, "good luck to them", but I think that one would have to establish an exclusion zone for the purposes of preventing pollution. You can do that under the merchant shipping Act. However, the measure that we are discussing seems to me to be an entirely new concept. I should be much happier if it could be explained to me how the United Kingdom Parliament can designate areas over which there is at the moment an international right of innocent passage or an international right of free passage through straits. If that can be done, that is very interesting, but I should like to know how.

Lord Greenway: My Lords, following what the noble and learned Lord has just said, with regard to the Straits of Dover I believe that there is, indeed, a planned installation of wind turbines somewhere off Ramsgate, which is fairly close to the English Channel and the Straits of Dover. However, as I see it, the problem would not arise in that regard because we would already have properly designated separation lanes in the Straits of Dover that are sacrosanct.

Lord Jenkin of Roding: My Lords, I should like to ask a question in this regard. Do the rights of navigation referred to in the clause that we are discussing include rights of navigation on the part of fishing vessels? If a zone were declared, could fishing vessels be excluded from the whole of it under the clause? I may return to the matter on a later amendment in connection with the issue of compensation. However, I should like to know whether fishing vessels are covered by the clause that we are currently debating.

Lord Triesman: My Lords, this is an important provision in the legislation and I wish to resist its

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removal strongly. As the legislation stands it is not entirely clear whether a consent for the construction and operation of a generating station under Section 36 of the Electricity Act extinguishes public rights of navigation. The result for a developer is that although he has a consent from the Government to build, say, a wind farm in territorial waters, he is laid open to the possibility of being sued in the courts for causing a public nuisance because the wind farm is interfering with rights of navigation. This situation is plainly not conducive to attracting investment in offshore renewable energy projects. Investors need certainty before they will commit the significant funds needed to bring a wind farm to fruition. They will need to know how they stand.

The concept of extinguishing the right of navigation is not novel. An order under the Transport and Works Act 1992 can include provision to extinguish rights of navigation and several offshore wind farm developers have already used this legislation to gain development consent for their projects. What we want to achieve by this provision is to make the Electricity Act more appropriate for offshore generating stations. Without this power developers will be forced to use the Transport and Works Act for projects in territorial waters if they want to extinguish the right of navigation. This Act was not drafted with offshore wind farms in mind. We would have lost a real opportunity to bring the Electricity Act up to date and to make it more appropriate to marine projects. I make those comments to set the scene in terms of the purpose of the clause.

The point needs to be borne in mind that the power to extinguish the right of navigation applies only to the physical structure itself. I believe that that was one of the key questions that noble Lords have asked. It does not extend to any of the waters around the installation, so that, if they are small enough, vessels can continue to navigate through a wind turbine array, so long as a safety zone is not in place which may prevent their entry. Fishing vessels may well be small enough to navigate through such areas whereas vessels with a much greater draught may not be able to do so.

It is probably an appropriate moment to clear up another question. The proposal here relates to the extinguishment of domestic public rights of navigation, not international rights. It is not intended to touch upon international rights. Public rights will be extinguished out only to the limits of the territorial sea and not beyond in the renewable energy zone, which addresses the question noble Lords have understandably asked.

We recognise that extinguishing a public right of navigation is a serious matter and that there must be a robust, fair and open process in place for the Secretary of State to decide whether the issue of a declaration is justified. Clause 91 amends Section 36 of the Electricity Act, so that the well tried and tested process for deciding whether to grant a consent for the construction and operation of a generating station will also apply to applications for a declaration extinguishing rights of navigation. There will be full consultation with all stakeholders with an interest in the matter, and there is provision for the holding of a public inquiry where the

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issues raised are of particular importance. I emphasise that the Electricity Act process has stood the test of time well, and it seems to be the best way of ensuring that this process is one that would be conducted in the interest of all parties and stakeholders, in the fairest possible way.

6.30 p.m.

Lord Donaldson of Lymington: My Lords, before the Minister sits down, can he help me? I fully accept the point about international passage on the high seas. But am I wrong in thinking that there is a right of innocent passage through our territorial waters? In so far as this is merely confined to the actual site of the turbine, clearly there is no problem. If it goes further than that, may there be a problem?

Lord Triesman: My Lords, it is the site of the installation that we are trying to ensure is properly protected, and I would not want to get the two things confused. That is the exclusion I have referred to.

The Earl of Caithness: My Lords, before the Minister sits down, can he help me? I understood that within each wind farm there was going to be a safety zone, from which all vessels were going to be prohibited. The Minister now seems to lead me to believe that it is only for the structure of the turbine that there might be—not automatically, but might be—a safety zone as well. Could he clarify that for me?

Lord Triesman: My Lords, in response to the noble Earl, Lord Caithness, there might be a safety zone. The safety considerations at stake will be the way that is determined. I do not want to speculate about much, because I do not think it is particularly helpful to do so, but you could imagine a site in which the individual wind turbines were very well spaced out, and some where they were much closer together. I can imagine that different kinds of considerations about whether it was navigable in one circumstance, rather than the other, would apply.

Lord Jenkin of Roding: My Lords, it follows from what the Minister has just said in response to my noble friend Lord Caithness that a safety zone could be declared which would exclude fishermen from what might well be very valuable traditional fishing grounds. Could he confirm that this is indeed the case?


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