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Lord Davies of Oldham: My Lords, I owe the House and particularly the noble Baroness, Lady Miller, an apology. I was not seeking to cut off an extremely fruitful and interesting debate. I actually have a very clear answer to the question posed by the noble Lord, Lord Higgins, and for some ridiculous reason I thought that no one else was rising to speak. I was eager to respond to him in as positive a way as possible. That was why I rose when I did and in no way was I trying to constrain debate. The House will recognise that being a Whip—ensuring that a self-regulating House stays broadly in order—sometimes can be difficult when one is also responding to a debate. In that respect I made an error and I apologise.

The noble Lord, Lord Higgins, specifically asked whether the Secretary of State had sufficient power to deal with the situation and to reject or to agree to matters. The answer is in the affirmative. I was eager

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to rise to my feet to assure him of that. Under this Bill we shall ensure that that power exists for the Secretary of State.

I have been asked a plethora of questions on the amendment about safety and wind farms. One could almost have forgotten the original amendment. I shall be asking the noble Lord to withdraw his amendment. The simple fact is that we need both clauses in the Bill. I do not want to repeat all the arguments in relation to preceding amendments, but I can give the noble Lord a positive answer to his most trenchant and searching question. On that basis, I hope that he will withdraw the amendment, although I recognise that there is a whole range of questions that require answers. I shall do my best.

I was grateful to the noble Baroness, Lady Carnegy, for introducing the lobster pot fishermen. I had thought that we were all caught up with major vessels. The noble Lord, Lord Jenkin, quite rightly expressed concern about the fishing interests, with their vast trawling nets that will steer well clear of installations such as wind farms for all the obvious reasons. All noble Lords recognise that there are other fishermen besides deep-sea trawler fishermen. We are eager to preserve the rights of fishermen as best as we can. We are not seeking to limit them. Nor are we seeking to limit competent yachtsmen, people with pleasure craft or anyone who is in control of a vessel that will not cause enormous damage to an installation—one that can extricate itself.

When a safety zone is put in place we would expect a clear indication of who and what must be kept clear. It may not be everyone. It may depend on the safety zone. The noble Baroness, Lady Byford, indicated that through her questions. One of her questions related to the number of wind farm installations that we intend to construct. I have some indication of how many turbines there will be in each wind farm. In round one we are expecting about 30 turbines in each wind farm and in round two we are expecting as many as 200, but there will be smaller wind farms as well. There will be a great variety. The upper number may be as great as 200. That will be an extensive complex and it will need governing and a safety zone around it.

In answer to the question posed by the noble Lord, Lord Dixon-Smith, we shall certainly require safety precautions while the installations are being erected. A great deal of activity will take place while the large turbines are being installed, but a safety zone can last beyond installation for the necessary protection of shipping if the circumstances indicate that that is necessary. In a large installation of 200 turbines that may be important.

Noble Lords should recognise that we are seeking to meet the principles identified by noble Lords in terms of safety, but we are also seeking to preserve the freedom of the seas as regards access so that these installations do not necessarily restrict that freedom. Some installations will cause small vessels very little problem and it would be wise for others to steer clear of the installations. The definition of a safety zone will indicate whether that is necessary.

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That is against a background of the range of turbines that may be constructed at any one installation. The difference between the smallest and the largest will be a factor of nearly seven. That is a considerable difference. There is also no immediate prescription on how far away the turbines will be from each other. A range of factors have to be taken into account, but it should be recognised that it would not be sensible to be unduly prescriptive about the nature of the safety zone on the face of the Bill. We need extensive consultation. One theme that has run through the whole of this debate on shipping is that consultation is required to get these matters right.

In the course of the debate two noble Lords spoke about fishing, which is an important element. Fishermen's interests need to be taken into account, including the interest in access. There is also the issue of navigational channels that vessels use. I sought to indicate earlier that major channels of navigation are bound to be protected and that installations will be placed away from those. It is also clear that at times there may be a trade off between the requirement to build a wind farm installation and some change to the pattern that mariners are asked to pursue in setting out from particular locations. In each instance, those kinds of trade off will be the subject of considerable discussion and negotiation. However, one cannot generalise and be prescriptive in any precise way about such matters.

I regret to tell the noble Baroness that I do not have global figures for how many wind farms are proposed. I hope she will recognise that it would be helpful to obtain information about the size of the sea installations. If and when we have an estimate of the number at sea, I shall be only too happy to communicate it to the House in writing. Alternatively, as we still have not quite completed all the stages of the Bill, I may be able to exploit a fertile opportunity to provide that information.

With regard to the point raised by the noble Earl, Lord Caithness, there is no public right of navigation in these zones. The public right of navigation is governed by a domestic law that applies particularly to inshore waters, not to these zones. As has been indicated, the zone can extend as far out as the median line away from the coast. However, we recognise—we have debated some of these issues in relation to earlier amendments—our obvious international obligations with regard to the big navigational routes, and we are also well aware of the fact that this country uses the sea for both pleasure and enjoyment and necessary economic activity. We are still a substantial trading nation, carrying on a great deal of trade by cargo-bearing vessels, and we have to protect those interests. It will be necessary to strike a balance between the installation of wind farms and the necessary economic activity enjoyed by all those exploiting rights at sea—

7.15 p.m.

The Earl of Caithness: My Lords, I thank the Minister for giving way. Will he answer the question that I asked him? For instance, at least 12 major shipping routes pass through the proposed national wind-powered farm coming up to the Humber. That

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wind farm will be outside the territorial waters, within the renewable energy zone. How do the Government intend to alter the rights of navigation in such a situation? Under what powers can they do that?

Lord Davies of Oldham: My Lords, the granting of applications to develop those positions will be taken into account against the necessary rights of navigation. In distant waters beyond our immediate territorial waters—we have been down this path previously—there exist oil and gas installations in relation to which it is very necessary to consider what may be the navigation rights. I do not have to hand the benefit of enormous maps or statistics. However, like many other noble Lords, I have stood on the beach at Felixstowe or Lowestoft and seen installations that are both visible from the land and in the path of an extensive amount of shipping. That problem had to be addressed when we dealt with the Acts that gave authorisation to the exploitation of North Sea oil and gas, and a similar process is envisaged with regard to this Bill. Because we have in place the Electricity Act, which governs some of those issues, we do not need to write on to the face of the Bill powers that we already enjoy for conditioning such issues.

I can see by the wracked faces opposite that I have not satisfied each and every answer. It will be recognised that this has been not so much a debate as a volley of questions. I have not sought to dodge the questions. The ones that I have missed are those that I am quite incapable of answering, for which noble Lords will have to forgive me.

Lord Higgins: My Lords, we are grateful to the Minister for that sympathetic response and for his exploration of the various issues. Some of the questions that have been asked remain unanswered. If necessary, we shall no doubt return to them at Third Reading. However, we appreciate the trouble that the Minister has taken in replying. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Miller of Hendon moved Amendment No. 188:


    After Clause 92, insert the following new clause—


"COMPENSATION UNDER SECTION 91 OR 92
(1) If the Secretary of State shall grant any consent or make any declaration under section 91 or 92 which shall interfere with the private or commercial interests of any person or corporation, he or it shall be entitled to compensation.
(2) Such compensation shall not be limited to the financial or other benefit received by the person in whose favour the consent or declaration is made."

The noble Baroness said: My Lords, when I introduced this amendment in Grand Committee, I began, as I do today, by reminding your Lordships that, in presenting the Bill to Parliament, the noble Lord, Lord Whitty, made a statement under Section 19(1)(a) of the Human Rights Act 1998.

Clauses 91 and 92 provide for the extinguishment and modification of public rights of navigation. The need to extinguish or interfere with those public rights

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is most likely to be caused by the erection of offshore windmills. It is not necessary for us to consider whether any other causes of such extinguishment might arise.

A "public right" is a public right, and a right is a right. To take away such a right is to deprive someone of a possession. That is contrary to the first protocol of the European Convention on Human Rights, which states:


    "Every natural or legal person is entitled to the peaceful enjoyment of his possessions".

It is perfectly clear, without any convoluted exercise of interpretation, that to deprive people of public rights of navigation, or to interfere with such rights, is at the same time to deprive them of a possession.

I am not arguing that the measures provided for in these two sections are wrong, unreasonable or unnecessary. On the contrary, it may be perfectly reasonable to have an exclusion zone at sea or to modify access to waterways, or even a harbour, for the public good derived from wind farms as a renewable source of energy. However, it is not right that those who have lost their rights, in whole or in part, should receive no compensation or that they should in effect contribute to the cost. I need say no more about the merits of the amendment, which I submit are self evident.

The Minister's reply was that a public right is not an individual right and that a right of navigation is not a possession. As a kind of long stop back up, he then said that even if such a right were a possession in normal parlance, it did not lead to the inescapable conclusion that compensation should be paid. He concluded his remarks by saying that he did not believe that any normal reading of English or the Convention on Human Rights would lead to any claim for compensation.

My noble friend Lord Kingsland had anticipated and dealt with such an argument in his speech during the debate, when he quoted the case of Beyeler v Italy, which established that:


    "The concept of 'possessions' in Article 1 has an autonomous meaning which is not limited to ownership of physical goods, and is independent from the formal classification of domestic law; certain other rights and interests constituting assets can also be regarded as property rights, and thus as possessions".

I should also briefly and in passing mention new subsection (2) which defines the compensation to be paid to the person adversely affected as the loss he suffers, and not the benefit received by the person in whose favour the modification of rights is made. That resolves the problem of calculating compensation, because it puts the onus squarely on the person making the claim.

Reverting to the legal concept of a right to compensation, first, I do not understand why the Government should insist that other people should have to bear the financial consequences of any benefits given to commercial concerns, such as the owners of wind farms, even if being built for the public good. If the Government have to bear the initial cost, that is something that can be passed on to the generator as part of the licence conditions.

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Secondly, with due respect to the Minister, I prefer the legal opinion of my noble friend, with his wide legal experience and knowledge of EC law, to the opinion expressed by the Minister on the last occasion we discussed this matter. I hope that since then the Minister has had the opportunity to further consider the matter with his advisers and will now concede that both law and justice demand that persons suffering from an administrative action of the Secretary of State shall be compensated for what is an act of confiscation of those rights by the state. I beg to move.


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