HL Deb 19 February 1987 vol 484 cc1212-21

3.30 p.m.

Baroness Young

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Young.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 1 agreed to.

Lord Denning moved Amendment No. 1: After Clause 1, insert the following new clause:

("Sovereignty over air space and sea bed.

.( ) The rightful sovereignty of Her Majesty, her heirs and successors, in right of the United Kingdom extends not only to the territorial sea as above defined but also to the air space above it and the sea bed and subsoil below it.

( ) The provisions of the Territorial Waters Act 1878 relating to the trial of offences shall extend to the whole of the sea, air space, seabed and subsoil over which Her Majesty has sovereignty as aforesaid.")

The noble and learned Lord said: This is an important Bill, one much to be welcomed. It extends the historial three-mile limit to 12 miles around the coast of the United Kingdom. The three-mile limit has existed for hundreds of years. It was supposed to be the limit over which we could command obedience by reason of three miles being the length of a cannon shot. That three-mile limit has continued over the years and is still maintained by some great countries, notably the United States of America. But now, by this Bill—and, as I say, it is much to be welcomed—the breadth of our territorial seas is to be extended to 12 miles. But the Bill says nothing about the air space above or the sea bed or the subsoil below it.

In my submission—it is my reason for putting down amendments—our sovereignty and jurisdiction should extend not only over the sea itself but also the air space and the sea bed and below. That desirability is exemplified by the incident reported in today's newspapers. I have analysed the reports as best I can. A trawler, the "Summer Moon", registered in County Down in Northern Ireland, was fishing in the Irish Sea off the Isle of Man. A United States submarine was cruising below the surface, although, as I see international law, it had no right to do so. It could only proceed on the surface flying its flag.

Cruising below the surface, the submarine caught up the nets of the trawler and dragged her backwards for 2½ hours over a distance of 10 miles. Helicopters were called out on a rescue operation but eventually the trawlermen managed to cut themselves free. In so doing, pieces of the submarine's equipment marked as being of United States origin came up in the nets.

The submarine could have, and perhaps did have, equipment and devices by which it could and should have detected the position of the trawler. Her commander could be said, in not using that equipment, to have been negligent and perhaps criminally negligent. If it had taken place within the jurisdiction of this country, then he would be liable to prosecution under our own law for criminal damage. If any of those on the trawler had been drowned he might even have been subject to a charge of manslaughter.

The question is: was that United States submarine subject to our law? At the moment, it is not, because it was not within three miles. It was probably 10 miles off the coast of the Isle of Man. But if this Bill is passed the limit would refer to 12 miles off the Isle of Man.

What would be the position? This goes back to one of the greatest cases in our law, filling nearly 200 pages in the law reports of 1876. The case concerned a German ship, "The Franconia", which set sail from Hamburg for the West Indies. In the Channel, twoand-a-half miles off Dover she ran into an English ship, "The Strathclyde", which was on its way from London to Bombay. The German ship sank "The Strathclyde". Passengers were drowned and killed, including Jesse Young. For that, the commander of "The Franconia" was brought before our courts and charged with manslaughter.

Had our courts jurisdiction? Even though it happened only two-and-a-half miles off Dover, had our courts jurisdiction? A special court of 14 judges was brought together and the minority—and I would have been in that minority—going back to Hale and Coke, our great authors, said that the territorial waters were part of the realm of England and that we had jurisdiction over them. But the majority, I am sorry to say, held the contrary: that we had no jurisdiction over a foreign ship passing within our own territorial waters.

The result of the case is stated in one of the leading books on international law by Mr. O'Connell. It says at page 470: The English jurists of the seventeenth and eighteenth centuries attributed to the King not only a jurisdiction over the seas adjoining the coast of England but also a property right in the waters and the seabed beneath. The latter was taken to be as much a part of the realm as the dry land itself". Then he goes on to the case of R. v. Keyn, which I have just mentioned to your Lordships, in 1876. This is the next page: "R. v. keyn thus clearly decided that the territory of England ends at the low-water mark and that the jurisdiction of the Admiral which begins at that point did not, historically, embrace foreign nationals". There follows a description of what happened subsequently: To avoid the embarrassment of not being able to exercise police control over foreigners in British territorial waters, Parliament intervened and in 1878 enacted the Territorial Waters Jurisdiction Act".

By that statute, the ruling of the majority in R. v. Keyn was overruled and it was held that the territorial waters around England, within the prescribed limits, were under the sovereignty of England.

That is why I suggest that we should make it clear that this Bill deals only with the sea itself. It does not deal with the waters underneath or where the submarines go. It does not deal with the air space where the helicopters go. If the case of the Northern Irish trawler I have mentioned came before our courts, there would be a great deal of argument about our courts having no jurisdiction over this United States vessel. Even if our own people had been killed, we would have had no jurisdiction. It would be the same if it was a helicopter. In the case of a helicopter from a United States ship going through our territorial waters, crashing and injuring people in boats below there is no jurisdiction. I submit that this ought to be put right by Parliament itself.

In framing my amendments I have gone by the very words of the convention in 1958, which was ratified and signed by this country and by the Russians, the United States and so on. I have taken the very words of the articles of the convention. For instance, in regard to the first amendment I have taken the words of Article 1 of the 1958 convention: The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea". That convention did not deal with the 12 miles or the three miles, because they had not been settled at that time. Article 2 goes to to say: The sovereignty of a coastal State extends to the air space over the territorial sea as well as to its bed and subsoil". That is all I have put into my first amendment.

I then deal with the Territorial Waters Jurisdiction Act, which as it stands applies only to the sea but which should also apply to the seabed and the air space above it. My purpose is simply to deal with that in order to cover the case which I have been describing of the trawler in the North Sea.

I now come to the last amendment and here I go by the Geneva Convention of 1958, which has been approved by all and which I have mentioned. That states in Article 14 that ships of all states enjoy the right of innocent passage through the territorial seas. Paragraph 6 states: Submarines arc required to navigate on the surface and to show their flag". Is it not very important that that should be part of the law of England? Does not the incident in the Irish Sea show that? Apparently the United States submarine was under the water and could not be seen or detected. She was not going on the surface or showing a flag. In framing these amendments all I have done is to go by a convention to which this country is a party and to which it subscribed. As we have sovereignty over the seas it ought to be included.

During the Second Reading debate my noble friend Lord Cledwyn raised these points and my noble friend Lady Young replied. She said (at col. 398 of the Official Report of 5th February): The limit applies generally to the water, the sea bed and the air space". Then in regard to submarines she said (at col. 400): 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". I welcome and agree with every word that the noble Baroness said, and I have put them in these amendments. But what I have to tell your Lordships is that what my noble friend Lady Young says in this House, which is recorded in Hansard, forms no part of the law of England. The judges are not even allowed to read Hansard to see what she has said. If she should say that it is in the treaty, I must reply that the treaty is no part at all of the law of England until it is embodied in a statute of the law of England.

Although I welcome the noble Baroness's statement, and agree entirely with every word of it, I suggest nevertheless that in this important development in our law we should declare not only that the territorial waters are 12 miles wide—differing from the United States on that—but that our sovereignty extends to the air space above, to the sea below, to the sea bed and to the subsoil, whatever may happen there. We should have jurisdiction. Submarines should travel on the surface showing their flag and they are not to go below the surface in our territorial waters.

That is all I want to say on my amendments. They all stand or fall together. I expect that the noble Baroness will say that it is international law already. I doubt it. Is it international law in the case of the whole 12 miles when that has never been agreed and the United States says differently? International law does not say that at the moment the limit is 12 miles; we say that by our own statute.

All I am suggesting is that we embody the sovereignty of this country over the seas around our shores and have jurisdiction over not only ships but submarines that travel underneath and helicopters and other aircraft that fly above. We should have laws for them. We should legislate for them over what is our own territory and we should not debate points of international law which are not part of the law of England. I beg to move.

3.45 p.m.

The Chairman of Committees (Lord Aberdare)

Amendment proposed, after Clause 1, insert the new clause as printed. There is a printing error in the second line of the new clause. After the words "not only", the word "to" has been omitted.

Lord Cledwyn of Penrhos

The Committee will be extremely grateful to the noble and learned Lord for raising points of great importance and for his interesting speech. He was right to remind us of the case of the Irish trawler and the United States submarine which has highlighted our debate today. He also referred to the famous case of the "Franconia", with which I also dealt in some detail on Second Reading when he was unfortunately unable to be here.

Let me refer very briefly to the two matters under discussion: first, the question of air space and, secondly, the question of the sea bed. Sovereignty over super-adjacent air space has been firmly entrenched in international law since the year 1919. It was later embodied in the 1944 Convention on International Civil Aviation, the Territorial Sea Convention and the Law of the Sea Convention. The question of the status of air space had been triggered off, as I have read, following the use of balloons during the Franco-Prussian war of 1870.

Secondly, on the question of the sea bed and subsoil, this became a matter of discussion and debate at a later stage. As the noble and learned Lord has said, the matter was not properly dealt with until the 1930 Hague Convention, when it was agreed that there should be an article—and I shall read it because I think it is relevant to what we are now debating—stating that: The territory of a coastal state includes also air space above the territorial sea as well as the bed of the sea and the subsoil". The question which arises is whether additional national legislation is needed over and above the international law which exists. Given international law, are the amendments of the noble and learned Lord necessary? I should be grateful to the noble Baroness if she can tell us how those amendments would change the present functioning of the law governing the territorial sea and whether or not there is significant violation of the sovereignty of air space and the sea bed. If so, will the new clause proposed by the noble and learned Lord remedy that? Lastly, do other countries have such legislation on their statute books at present?

Perhaps I may ask whether the noble and learned Lord was moving both his amendments at the same time. If that is the case, I should like to deal with the matter of innocent passage now. If that is not the case, I shall speak to it later.

Lord Denning

I was only moving Amendment No. 1. However, I was speaking to the other amendment as well, because they go together.

Lord Cledwyn of Penrhos

In that case, perhaps I may say a word about innocent passage at this stage. I shall try to be as brief as possible. As I understand it, the right to innocent passage is the only right which foreign ships have in a territorial sea. Therefore, one must ask whether the new clause is absolutely necessary. Can the noble Baroness say whether there is evidence of abuse of the right of innocent passage and, if so, whether such a new clause will assist in preventing further abuse?

The question of the rights of warships and of nuclear-powered ships is notoriously controversial, as we know. That much was evident when New Zealand made her declaration against giving facility to American nuclear-powered ships. Other countries have qualified the right of innocent passage with respect to nuclear-powered ships. In 1964, for example, both Spain and the United Kingdom took action to regulate the passage of nuclear-powered vessels.

Can the noble Baroness say whether Her Majesty's Government still exercise any regulatory control over the passage of nuclear-powered ships and, if so, would this amendment moved by the noble and learned Lord create difficulties with respect to such regulations?

As regards the question of submarines to which the noble and learned Lord has referred, it is already a principle of international law that they travel on the surface. At times it has been demonstrated that that rule is not always observed. There was the case in 1981 of a Soviet submarine which was discovered in Swedish waters. Can the noble Baroness say whether such a violation of international law occurs frequently and whether there are grounds for believing that firmer and further action should be taken to deal with such matters?

Lord Campbell of Croy

I was going to inquire when I rose to speak whether we should be taking Amendment No. 2 for discussion at the same time as Amendment No. 1, which has been moved by the noble and learned Lord, Lord Denning. As that is the case, I shall also speak to Amendment No. 2; I think that that course will be for the convenience of the House, particularly as the noble Lord, Lord Cledwyn, has just done so.

I have read and studied the amendments tabled by the noble and learned Lord and I have listened to what he has said. I agree in principle with everything he has said. However, I hope that when my noble friend Lady Young replies, she will be able to tell us that it is not necessary to add these new clauses to the Bill, that the Bill will have the effect when enacted of extending to 12 miles the present three-mile territorial sea and that everything which applies to the territorial sea now will apply within the new 12-mile territorial sea.

Furthermore, I hope that my noble friend will tell us that the Bill as drafted implies that the rules and conventions accepted by the principal maritime nations for the territorial seas of the world will continue, but that they will in future obtain over the much broader band of 12 miles.

The noble and learned Lord referred to the submarine incident reported in the press today. The important point seems to me to be whether that submarine was submerged within the territorial sea of either the United Kingdom or the Irish Republic. Provided it was outside three miles, which is the territorial sea for both the United Kingdom and the Irish Republic at present, then it has not committed an offence by being submerged if it was 10 miles from land, as was reported.

The noble Lord said that the incident had been reported by the press to have occurred 10 miles from the Isle of Man. I should point out that the Bill does not in fact automatically include the Isle of Man. In Clause 4 it states that the territorial sea may be extended in due course to the Isle of Man. However, I agree with everything that the noble and learned Lord has said, in that if the territorial sea had been extended to 12 miles by this Act a year or two before the present time, then that submarine should not have been submerged. Nevertheless, from all the reports in the press it appears that under the present circumstances no offence was committed.

The noble and learned Lord referred in his speech to the law of England. I absolutely understand that because he has been working in his very distinguished judicial career in that jurisdiction. However, I am concerned about the fact that the Bill will extend the territorial sea and therefore the jurisdiction of Scotland and Wales under English law and Northern Ireland, which is also covered by this Bill.

As regards the question of the seabed, I should like to ask my noble friend to confirm that the territorial rights to the seabed apply under the territorial sea, so that we shall possess sovereignty over the seabed up to 12 miles which we have enjoyed up to now to a limit of three miles. However, we have rights beyond that limit. We have rights to hydrocarbons below the seabed on the Continental Shelf. We are drilling for oil and gas, and producing them, because we have rights under international agreements well beyond the territorial sea, but we do not claim ownership of the seabed there. We have rights to the hydrocarbons and minerals in the seabed, although we do not claim ownership of the seabed.

If I may turn now to the second amendment containing the other new clause, I understand the situation as it exists now in the three-mile territorial sea is very much what the noble and learned Lord has referred to in his drafting. I should perhaps have a small argument about the word "ships" because nowadays there are fishing boats, mobile drilling rigs and other things which ought also to have the right of innocent passage. Therefore, perhaps "vessels" or some such word should be used. Here again I hope that my noble friend will say that this amendment is not necessary because the purpose of this clause is already understood all over the world among the maritime nations as applying within territorial seas.

I should like to go a bit further on that matter. Sometimes there is confusion between the right of innocent passage, which is within the territorial seas, and the right of navigation through international straits. During the Conference on the United Nations Convention on the Law of the Sea, Britain and other countries tried to get arrangements for transit passage regimes through straits such as Gibraltar, Malacca and, in our own case, Dover and the Fair Isle gap. There are different rules applying under those regimes provided they are reciprocal. For example, it is possible for submarines to go through such straits submerged, and there are also various other differences of that kind. Therefore, I hope that my noble friend will be able to tell us something concerning that matter. Are we prepared to give those additional navigational transit rights through the Straits of Dover once the 12-mile limit is extended, and are we sure that we shall be able to get the same rights in straits which are not only important to our commerce but also to our defence? France already has a 12-mile limit, so the Dover Straits would be covered by territorial seas. That is perhaps more important than the right of innocent passage which is already accepted pretty well worldwide.

I conclude by saying that I agree in principle with what the noble and learned Lord, Lord Denning, has suggested but I cannot see that the amendments are necessary. If they were put into the Bill it might even be confusing to those who thought that this already existed.

4 p.m.

Baroness Young

In moving Amendment No. 1, the noble and learned Lord, Lord Denning, said that he would speak to both his amendments. With the leave of the Committee, I shall take advantage of this opportunity and reply to both amendments at the same time. I was very glad to hear from the noble and learned Lord that he supports the purpose of the Bill. I have studied with great care the amendments that he has put down and I hope I can show that we can cover the points he has raised. Perhaps I may also say that I am grateful for what my noble friend Lord Campbell of Croy has just said because I agree with his interpretation of the Bill.

On the first amendment, the sovereignty of the United Kingdom has been clearly established in the international practice of this country by its ratification of the Territorial Sea Convention 1958, a point referred to by my noble friend. That convention confirms that sovereignty extends to the seabed and air space. This position is reflected in our national law where this country has exercised its sovereignty by legislation on many questions on territorial waters and also on the seabed, such as for the protection of wrecks, the protection of ancient monuments, the protection of pipelines and the protection of the coast from erosion. Indeed the Court of Appeal has also recognised it in the case of the Post Office v. Estuary Radio. In the same way our legislation on air navigation and the use of air space has been extended where appropriate to cover the air space over the territorial sea as well as over our land territory.

The noble and learned Lord quoted the case of a United States submarine. The submarine was not as far as we know in territorial waters. It is therefore not the case that the submarine did not have the right to travel submerged.

The noble Lord, Lord Cledwyn, raised a number of points. The amendments would not affect the position in international or national law. The law which we have established in the Territorial Sea Bill will apply in the extended area of air space without the amendments. I hope that I have made this fact clear.

The second subsection of the first amendment refers to the Territorial Waters Jurisdiction Act 1878. I do not see that it is either necessary or desirable to alter in substance the wording of the Bill. Criminal offences have been created by law in the air space or on the sea bed when the need for them has arisen. A general alteration or reform in the criminal law of the territorial sea would require further consideration of air space unconnected with the extension of limits which is the sole purpose of this Bill. This is a very important point which the noble and learned Lord made himself early in his remarks. To broaden a single provision of the Bill on the lines of the amendment would not produce a satisfactory result. Its effect on other criminal law would certainly have to be further considered. We should not and need not delay this Bill while such consideration is undertaken.

I note that this clarification was not thought necessary with a three-mile limit, and I do not therefore see that it is any more necessary with an extension to 12 miles. With that explanation, which I trust meets the noble and learned Lord's concerns, I hope that he will withdraw his first amendment.

His second amendment is concerned with the right of innocent passage. This country has already recognised the right of innocent passage in the territorial sea. It has done so on many occasions. The clearest example lies in its ratification of the Geneva Convention on the Territorial Sea 1958. Article 14 says that, ships of all states, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea". It is evident that it was not thought necessary to adopt legislation on this point at that time.

On the particular point raised by the noble and learned Lord and indeed by the noble Lord, Lord Cledwyn, about submarines, I can assure both noble Lords that we already have the right to require submarines to travel on the surface. With those explanations, I hope that the noble and learned Lord will feel able to withdraw his amendment.

Lord Denning

Perhaps I may make this observation. If it is said that this is already part of international law, I would respond that at the moment international law does not say how wide the territorial waters are. If there was an incident in an area between three miles and 12 miles, what does international law say? Is there jurisdiction over those intervening nine miles? International law can say nothing about it because international law does not say that the limit is 12 miles. At the moment, international law extends to three miles. Other countries have not agreed to 12 miles. International law as at present understood does not cover it. It does not cover the position between three miles and 12 miles. I have drafted these clauses absolutely word for word from the conventions. No one can really challenge them. I spoke of the submarine incident. That is right. At the moment the territorial waters are only three miles. This incident took place 10 miles out. If this Bill is passed and the limit is extended to 12 miles, what will be the position? I wish it to be said—and that is why I tabled the amendments—that this country will have jurisdiction and sovereignty to deal with an American submarine of this kind, will be able to say that it should go on the surface flying its flag and that it should not go underneath the water, submerged and able to go hitting trawlers.

In answer to the arguments, I say that it is not to the point to argue that this is already covered by international law. At the moment international law covers only the three-mile limit. It does not cover the 12 miles to which we are extending it. That is my submission. I do not feel inclined to withdraw the amendment at the moment. I should like to know whether other Members of the Committee have any views on the matter.

Baroness Young

I hope that the noble and learned Lord will consider very carefully before he decides to press this amendment. I hope that I have explained the position. I should like to make clear my firm advice on this point that international law covers the new limits. It does not lay down the extent of this limit in each case. As I said at Second Reading, almost all countries have recognised a 12-mile limit. If we were to go down the path that the noble and learned Lord is suggesting, we would be doing something which we have not felt it necessary to do under the three-mile limit. We do not therefore see any reason for doing this on a 12-mile limit because the same arguments that apply to the three mile limit will apply to the l2-mile limit. We should therefore be creating other complications within the Bill. Perhaps I may remind the Committee that the Bill was welcomed on all sides of the House. It has been a matter on which we have wished to legislate for some considerable time and its purpose is to extend the territorial limits. It is not concerned with the regime within those limits.

Lord Campbell of Croy

As we are in Committee, it may be helpful to the noble and learned Lord if I speak as briefly as possible once on both amendments.

The noble and learned Lord was talking about a 12-mile limit not being enshrined in international law. He will not have had the time to follow, as I and other noble Lords did at the time, the conference that went on for six or seven years on the United Nations Law of the Sea Convention. Had that convention been accepted by everybody, as the 12-mile territorial sea was enshrined in it, it would have been international law.

It was a quite different matter that caused the breakdown and the fact that the Americans were not prepared to sign that convention—all to do with deep sea mining a long way from anybody's shores. The fact that the limit is not technically international law does not mean as much as the noble and learned Lord suggested, because virtually the whole world agreed to the 12-mile territorial sea. If it had not been for that accident, it would now be in a convention agreed by virtually the whole world.

Lord Denning

I thank everyone for their comments. In view of what has been said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Lord Beaverbrook

This may be a convenient moment to take the Statement. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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