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Lord Kingsland: I thank the Minister for his reply. I have two brief observations to make on what he said. First, his certainty about Article 1 is not reflected in the Government's Explanatory Notes to the Bill, which express some doubt about whether or not Article 1 applies. Secondly, I believe that I made it clear in my opening remarks—this is well reflected in the

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jurisprudence of the European Court of Human Rights—that the domestic classification of property rights is irrelevant as to whether a particular thing is a possession under the first protocol of the convention. The fact that PRN is not a property right in English or Scottish law is neither here nor there so far as concerns the European Convention on Human Rights.

Perhaps I may add something about judicial review. I was lax in my language when I turned to the question of Article 6. There would, of course, be a right to a statutory review after the public inquiry system set down in the Electricity Act. The nature of the investigation would be very similar to the judicial review but the investigation would, indeed, be set out in statute.

6.30 p.m.

Baroness Miller of Hendon: I thank all noble Lords who have taken part in this debate. I thank particularly my noble friend Lord Kingsland for his clear exposition of what he considers to be the legal position in which we find ourselves. I note what my noble friend Lady Carnegy said. I do not live near enough to the coast to be able to look out and say whether or not these wind farms look good. Sometimes, I wish that I did. The noble Baroness made the point that she thought it would be difficult to quantify what kind of compensation could be awarded. My noble friend Lord Kingsland answered that point in a sense when he said that it would have to be reasonable.

I am sorry that my language offended my namesake, the noble Baroness, Lady Miller of Chilthorne Domer. She was 100 per cent correct. I wish that I had not expressed my feelings quite so strongly. I noted what the noble Baroness said. I also noted what the noble Lord, Lord Greenway, said. I thank the Minister for his reply. We hold different views on the matter, but the bottom line is whether we believe that the people affected are entitled to compensation. That will turn on a legal interpretation.

I heard what the Minister and my noble friend Lord Kingsland said. I very much hope that the Minister was not offended by my remarks. I am not a lawyer and therefore I did not mention all the cases that my noble friend mentioned. I am inclined to go along with the advice of my noble friend Lord Kingsland, particularly as he has been a Member of the European Parliament and is very conversant with all kinds of laws. Therefore, I have confidence in his advice. I hope that I do not embarrass him by saying that, especially if he finds out subsequently in the highest court of the land that he was wrong. Having said that, of course I shall withdraw the amendment, but it is a matter to which we shall certainly return as this is a very serious issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 88 agreed to.

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Baroness Miller of Hendon moved Amendment No. 108A:


    After Clause 88, insert the following new clause—


"COMPENSATION FOR FISHING INDUSTRY
( ) Where the creation of a safety zone under this Part, or where the operation of a renewable energy installation within a safety zone causes or has caused financial loss to United Kingdom fishermen or shell fishermen who traditionally work on or over grounds within that safety zone—
(a) by interruption of business;
(b) by causing harm or pollution damage to fish or shellfish;
(c) by altering the temperature or current flow or other characteristic of the local waters or of any bank, shoal or reef such as to deter fish or shellfish from the area;
(d) as a result of concerns over the effects on public health of the consuming of fish or shellfish caught within a safety zone; or
(e) by other means,
the Secretary of State must establish a scheme of compensation to offer compensation to those fishermen who show that they have traditionally fished on or over those grounds for any loss attributable to the creation of a safety zone."

The noble Baroness said: This amendment deals with the important issue of potential compensation for fishermen and shell fishermen whose livelihoods may be damaged by the creation of a safety zone or the erection of energy installations within it.

It is important that the Minister should explain to the Committee and to the industry what kind of compensation arrangements the Government envisage. The amendment requires the Minister to set up a compensation scheme for fishermen who can show that they have traditionally always fished over those grounds.

This is an extension of the law. The Bill envisages the creation of zones at sea where fishermen will, in future, at very best only be allowed to go with a permit or by permission. My noble friend Lady Byford mentioned that in an earlier amendment.

Unlike deep sea oil and gas installations, where there are already controls, these installations will in many cases be in inshore fishing grounds and may, in some cases, be on sandbanks or flats that are worked by landing from boats as well as by fishing. What consideration has the Minister given to the effect of installations and safety zones on fishing activity? Will he give an assurance that if fishing is not allowed during the building of an energy installation, there will be a scheme of compensation financed by the government department that has agreed to the creation of the zone?

It is not enough to say that the fishermen can go elsewhere. It might well be that he has agreed to the installation of a wind farm right in the middle of the best fishing ground off a particular coast. Will fishermen be able to take comparative catches and revenue into account in any claims of compensation? Technology is evolving in this area all of the time. For example, what if it is found at some future date that there are scientific consequences of the installation of wind farms, as is often claimed is the fact with mobile telephone masts?

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I have no reason to think that might be the case, but what if at any time in the future there were public health concerns arising from the operation of installations and there was either an effect on sales of fish or the Government closed an area to fishing? Can the Minister assure the Committee that a scheme of compensation would apply in those circumstances?

It is also the case that erecting or operating a major structure out at sea can have effects on the temperature of the surrounding waters or may affect the flow of water or tide so as to alter the configuration of the seabed or of a sandbank. The effects may well be marginal but they could happen and could have a direct and serious impact on the appearance of fish and shellfish.

Can the Minister assure the Committee that compensation would be available for fishermen in such a case? It may be that there are other instances that other Members of the Committee might bring to mind. However, I believe that the issue is one of great importance and I hope that the Minister can explain in this debate what plans he may have in mind.

I did not say at the beginning, although I suppose it is unnecessary in Committee, that this is a probing amendment as, indeed, all amendments are. I did not say either that although the amendment is tabled in my name also, I am moving it on behalf of my noble friend Lady Byford, who, regrettably, was not able to stay any longer. I beg to move.

Lord Greenway: As I said on a previous amendment, I support the thrust behind this. I believe there is a case in point as regards fishermen, not necessarily just in relation to offshore wind farms but in relation to the oncoming alternative energy sources, which I mentioned earlier. I refer, for instance, to wave power installations which I understand might cover quite large areas of the Celtic Sea; a very well-fished area. I believe there is a case for considering this subject more closely and would be interested to hear what the Government have to say.

Lord Whitty: The amendment tabled by the noble Baroness sets up a whole framework for compensation. It covers a number of direct and potentially indirect effects on fisheries as the result of the creation of an offshore installation and safety zone. Again, the issue of whether the amendment is entirely appropriate in this part of the Bill is in issue. This part deals with safety zones. Once there is an installation, a safety zone is required. It is the initial installation which may be the issue.

However, the issue of establishing a fairly wide-ranging form of compensation in the scheme proposed by the noble Baroness does not seem to be appropriate anywhere in the Bill. In most cases when we deal with diversion of fishing away from a relatively small part of what is likely to be a fishing area, the fishermen are able to fish a few miles away, or even a few hundred yards away in terms of fishing banks as a whole. Therefore, there is unlikely to be a demonstrable loss of income and loss of access to fish. Contributions at earlier stages suggested that more fish might be

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attracted to those zones, and they would create a potential fishing site that may or may not be accessible, depending on the safety considerations. We would hardly be depriving them of a previous income. We may be creating a different eco-climate.

No question of compensation would arise in either of those cases. There may be an issue, in some limited cases, where the installation and the safety zone around it really hit, rather than simply diverted, and caused the loss of a major source of fish income to the fishermen. In those cases, the effect would need to be discussed prior to the installation, and it would need to be determined whether compensation should be payable. Compensation would therefore depend on the particular circumstances and whether there had been an informed and reasonable discussion between the developers and all parties prior to those proposals.

That is one factor that would have to be taken into account in the decision on whether consent would be given in the first place. I am not ruling out, in all circumstances, compensation to fishermen for loss of access and, therefore, income. A broad-based scheme, with all its direct and indirect effects on fishery income, would not be appropriate. It would be dealt with in the normal way, either by negotiation or litigation in order to establish compensation. I accept that fishermen may be in a different situation to the general issues of public rights of navigation, but it would be a limited subset of fisheries rights that would be affected, and they would have to be dealt with case by case.


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