Marine and Coastal Access Bill [HL]

My Lords, I hope I can reassure the noble Duke on this matter, although I readily agree with him that it is complex. It has to be read alongside the United Nations Convention on the Law of the Sea, which I think adds to the complexity of the general issue. A coastal state’s ability to regulate submarine cables is tightly defined by the UN Convention on the Law of the Sea. Articles 58, 77 and 79 of UNCLOS, as it is popularly known, do not permit a coastal state to delineate the route of cables or regulate operations associated with the freedom to lay or maintain cables, on the continental shelf or in an exclusive economic zone, that are not involved in the exploration or exploitation of natural resources, or connected to an artificial island, installation or other structure. This means that there are four scenarios for which we have to cater. First, the rights given to the laying and maintaining of submarine cables under UNCLOS do not extend, as I said, to those cables that are involved in the exploration or exploitation of natural resources, or those connected to an artificial island, installation or other structure. To answer the noble Duke’s question, these cables—such as those running to or from offshore wind farms—will require a marine licence, just like any other marine licensable activity, from the appropriate licensing authority as defined in Clause 110. This is regardless of whether they are in the territorial sea or the continental shelf. The second scenario is that the rights given under UNCLOS do not extend to any cable that is entirely within the territorial sea. Again, these cables will require a marine licence from the appropriate authority as defined in Clause 110. The third is that activities relating to the laying and maintaining of cables that are not connected with the exploration or exploitation of natural resources, or connected to an artificial island, installation or other structure, no part of which is in the territorial sea, are fully protected under UNCLOS and are therefore not licensable at all by coastal states. They tend to be telecommunications cables. The fourth scenario is activities relating to the laying and maintaining of those cables that are not connected with the exploration or exploitation of natural resources, or connected to an artificial island, installation or other structure, but parts of which are in the territorial sea. These sets of cables are covered by the amendment to which the noble Duke has just spoken. Under UNCLOS, a coastal state cannot apply any regulatory control over that part of these cables that lies outside of the territorial sea. For that part of these cables that lies inside the territorial sea, the coastal state can apply conditions to the laying of the cable for environmental protection reasons, but it cannot prevent the laying of that cable or regulate the maintenance of those cables. It is because of this restriction that Clause 78(2)(a) states that the licensing authority, ""must grant any application made to it"," in respect of this part of those cables. Accepting the noble Duke’s amendment would put us in breach of our obligations under the UN convention. Electricity transmission cables will need a marine licence from the appropriate marine licensing authority, unless they are considered ancillary to a nationally significant infrastructure project. In that case, development consent from the IPC covering the main project will also cover the ancillary transmission cables and deem a marine licence to be granted if the development is in English territorial waters or offshore waters adjacent to England or Wales. I hope that that is a full explanation. If the noble Duke wishes to consider it between now and Third Reading I would entirely understand, because of the complexity. We think that we have got it right in relation to the requirements under the UN convention.