Lord Monson

My Lords, we now return to the extremely important question of legality. I was heartened by the assurance of the noble Earl last Tuesday 16th October, in col. 830 of Hansard when he said that new enforcement powers will be exercised in accordance with international law. The difficulty is that not all those enforcement powers can be used without contravening international law as the latter stands at present.

Amendment no. 113 may not be perfectly drafted but that can be corrected in another place. It is designed to prevent the possibility of the United Kingdom facing the embarrassment and possibly the obloquy of being hauled over the coals by the international court or possibly the European court for the breach of international law that would occur if foreign registered vessels were forcibly boarded and searched, and their passengers also searched, on the high seas, without the consent of the foreign government concerned, before at least 12 months had elapsed since the date when at least 60 states have ratified the 1982 United Nations Convention on the Law of the Sea. To do so before then would be illegal.

This morning I received a long written opinion from a well-known, highly respected firm of City of London solicitors specialising in the law of the sea. Perhaps I may quote some salient points from the letter. It says "In our view, it requires positive international agreement before national legislation permitting national authorities to exercise jurisdiction over foreign flag vessels on the high seas can be said to be in accordance with international law. Therefore if and when HM Government adheres to the 1982 Law of the Sea Convention" - they have not yet done so – "and when its provisions come into effect, it will be arguable that at least some of the powers contained in Schedule 14 will be in accordance with international law (although some elements may well be in breach of other provisions of international law, such as the European Convention on Human Rights). Therefore in our view, with the situation as it stands it is simply untenable to say that the proposed powers are "in accordance with international law".

Until such time as the 1982 convention is ratified by the United Kingdom and in force, perhaps the most important aspect, exercise of the proposed powers against a foreign flag vessel other than with the consent of the state concerned would be in breach of international law. It is surely correct to say that none of us wishes to see this country behaving in an illegal or even bullying manner.

There are quite enough countries in the world behaving badly as it is and we do not want to find ourselves in their company. I beg to move.

 

Earl Ferrers

My Lords, the noble Lord, Lord Monson, is concerned that we might be in breach of international law. He was kind enough to say that I had persuaded him more on the previous amendment than I had on an earlier occasion. I shall see whether I can carry that achievement further now.

Amendment no. 113 would make the exercise of the enforcement powers conditional upon the ratification of the United Nations Convention on the Law of the Sea on which the noble Lord said he had taken legal advice. I venture to suggest to him that the amendment is unnecessary. I have given him the assurance that the powers will be exercised in accordance with international law. The powers do not hinge upon the convention but upon the international radio regulations of the International Telecommunications Union. These are already in force. Therefore, there is no need to delay the exercise of the powers until the convention is ratified. With that explanation the noble Lord will see that we do not intend to operate in breach of international law.

      

Lord Monson

My Lords, the noble Earl has not satisfied me. As I set out at length on the previous occasion, various ministerial statements both in this House and in another place have made it quite clear that as the law then stood, despite the international radio regulations to which the noble Earl referred, there was no power to board foreign ships on the high seas without the consent of the foreign power concerned.

Nothing has changed. The only difference is that the 1982 UN Convention on the Law of the Sea now potentially provides the power, but it has not yet been ratified by 60 nations and it cannot be binding until at least 60 nations have ratified it. That is the crux of the matter. Nothing has changed since Mr. Ted Short, as he then was, made the statement to which I referred last Tuesday evening.

I am somewhat surprised at the silence of noble Lords on the Opposition benches because I should have thought they would be concerned about the possible breach of international law by this country. It will reflect badly on all of us if that takes place. When the noble Earl assured me that no action would be taken in breach of international law I was under the impression that Her Majesty’s Government would delay the exercise of this power notwithstanding the fact that the bill would become law. The Government would simply sit on their hands, so to speak, until such time as the 60 countries had ratified the 1982 convention and would not take any action against foreign registered ships on the high seas until that time, in other words, the Bill would be enacted but this part of it would not be used.

However it now appears that the Government intend to proceed straightaway, without waiting for 60 countries to ratify the convention. In that case, the Government would be almost certainly acting against the rules of international law. That would be a great pity. Perhaps the noble Earl has further information in his hands and wishes to make a further reply.

 

Earl Ferrers

My Lords, I do not wish to trespass on the patience of the House or to break its rules but perhaps I may have the leave of your Lordships to speak again.

The noble Lord appears to take a great deal of persuading but I shall have another shot at it. The powers will be exercised with moderation and restraint. We intend to consult the flag state, where there is one, to ensure that it does not object before we act against a foreign flag vessel. Stateless vessels of course are not under the diplomatic protection of any government when on the high seas. Any force used will be kept to a minimum.

The powers are modelled on Articles 109 and 110 of the United Nations Convention on the Law of the Sea. The noble Lord is perfectly right that the United Kingdom has not yet become a party to that convention. However that is for reasons totally unconnected with radio. The exercise of the powers will be in accordance with international law. That does not depend on the convention coming into force or the United Kingdom becoming a party to it.

I hope that I have been able to take the noble Lord a little further down the path with me.

 

Lord Monson

My Lords, I am grateful to the noble Earl for what he said. However, as I said when speaking to the previous amendment, if he were to guarantee his presence at the Home Office for many years to come there would be no problem because he has given an assurance at the Dispatch Box and that is good enough for me. The trouble is that he is referring to executive action and not statute law, which is a different matter.

I agree with the noble Earl about stateless vessels. The Government are perfectly entitled at the moment to take action against stateless vessels, we do not quarrel about that. It is good to know that the Government intend in practice to consult foreign governments when it is proposed to board their vessels, but there will be no legal obligation on the part of the Government to do so, and therein lies the difficulty. We must hope that the Government do the right thing notwithstanding that the few is defective.

In the absence, disappointingly, of support from any other part of the House I beg leave to withdraw the amendment.

The House of Lords then continued to discuss other aspects of the Bill, before passing it that evening and returning it to the House of Commons. The Broadcasting Bill received the Royal Assent on 1st November 1990 and comes into effect on 1st January 1991.