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 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.
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.