COMMENTARY – UNITED KINGDOM COASTAL SECURITY AND BORDER INTEGRITY

COMMENTARY – UNITED KINGDOM COASTAL SECURITY AND BORDER INTEGRITY

COASTAL SECURITY AN ALTERNATIVE APPROACH – BY Lt Cdr David Graham RN (Retd)

DefenceSynergia (DS) produced an immediate response to calls for the UK to beef up its Coastal Security [http://www.defencesynergia.co.uk/parliamentary-and-government-disconnect-desire-versus-reality/] in the wake of media and political discontent following emerging evidence that illegal immigration into UK through a porous and undefended coastline was on the increase. In that DS commentary we supported the case for the Royal Navy (and other service manpower and assets) to assist the Border Agency with Military Aid to the Civil Authority (MACA) in line with published National Security Strategy (NSS) stated policy in relation to coastal and border security. The DS position being to hold Her Majesty’s Government (HMG) to its own policy on coastal security, but with appropriate funding and personnel and resources that have, thus far, fallen far short of the requirement.

However, an alternative argument on how to bolster UK Coastal and Border Security can be made. This postulates that the jurisdictional and internationally recognised legal aspects of coastal security are best served through new HMG legislation that empowers HM Coast Guard (HMGC). In lieu of the Border Agency (BA) and Armed Forces, HMCG would become the prime coastal guardian and inherit resources from the BA and RN.

The purpose of this Commentary is to provide informed opinion and offer potential solutions as to how the problems of coastal security might be tackled. This seems timely given the House of Commons Home Affairs Committee recently commented on its concerns over the increase in people smuggling and illegal immigration from the sea into the United Kingdom (UK), suggesting that the RN take on more responsibility.

At present, entry to the UK by small boats, rigid inflatable boats (RHIBs) and yachts appear to be the preference of small time crooks, and opportunists looking for a quick and easy way to make money. As a result of the recent referendum in which voters decided that the UK should negotiate to leave the European Union [EU], it is likely that the desire by many economic migrants to reach the UK will only increase.

As demands in parliament, and in the press, for intervention by the Royal Navy gather pace, this commentary will argue against such demands, not least because the RN has neither the platforms nor the resources to do so. The days of a sea going Royal Naval Reserve (RNR), an inshore division of the Fisheries Squadron fielding ‘Ton’ class mine sweepers which could be diverted to this task, and a mobile afloat volunteer Royal Naval Auxiliary Service (RNXS) are long gone. It would of course be excellent to see a regenerated RN coastal force with proper patrol craft, but neither the funds nor the personnel exist for this to become a reality within the current navy vote of the Defence Budget.

Coastal Maritime Force Structure and International Law.

The UK seems particularly adept at creating organisations such as Border Force to tackle problems, and then starve them of the funds to enable the organisation to function effectively, particularly when the UK already has a Coast Guard service, one of whose functions is to prevent the loss of life on the coast and at sea. As there have been many misinformed articles in the press about jurisdiction, “who can arrest or detain whom, etc.” it is worth examining the United Nations Convention on the Law of the Sea [UNCLOS 82] to which the UK, as a coastal State, is a signatory. Section 2 is concerned with the Limits of the Territorial Sea, and Article 19, the Meaning of Innocent Passage, which is particularly relevant to this discussion.

UNCLOS 82 Section 2, Article 19 states:

  1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

  2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities.

  1. Any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

  2. Any exercise or practice with weapons of any kind;

  3. Any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

  4. Any act of propaganda aimed at affecting the defence or security of the coastal State;

  5. The launching, landing or taking on board any aircraft;

  6. The launching, landing or taking on board of any military device;

  7. The loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

  8. Any act of wilful and serious pollution contrary to this Convention;

  9. Any fishing activities;

  10. The carrying out of research or survey activities;

  11. Any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

  12. Any other activity not having a direct bearing on the passage.

Attention should also be drawn to both the criminal and civil jurisdiction of the coastal State as it applies to foreign vessels exercising their right of innocent passage through the territorial sea [see Articles 27 and 28]. Generally speaking, in such events, the jurisdiction of the coastal State should not be exercised on those occasions, although paragraph 3 of Article 28 states that this is: “without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.”

A brief note on “boarding officers”. In the UK, Dependent Territories and many Commonwealth countries, they are described in the relevant Act as “duly authorised and appointed officers”. This gives them the authority to exercise their powers. In the UK they are gazetted, as indeed they are in the Falklands.

The author believes this area of domestic and international law is fraught with difficulty for the Commanding Officers of a Royal Navy warships – possibly HMCG – without a change to present legislation covering jurisdictional authority.

United Kingdom Coast Extent.

A recent survey suggests a mainland coast of some 7,723 miles, and this includes many remote and sparsely populated areas of Scotland and the remoter parts of England and Wales. The author has intimate knowledge of the west and north west coasts of Scotland, and also the English coast from the Solent to Land’s End. At present, illegal immigration has, as has been discussed, been confined to include opportunist events involving small craft, yachts etc. across the Channel and into ports in the South East of England. Although a number of people have been detained, it is likely, that even in some reasonably populated places, immigrants have been landed and simply vanished because they are unknown to the authorities. Should more organised criminal activity become, partly as a result of BREXIT, the order of the day, it can be expected to be much better financed and organised. The author knows numerous small harbours, inlets and safe havens on the Scottish coast from the Mull of Kintyre northwards where illegals could be covertly landed with little or no chance of being seen, never mind apprehended. Doubtless those with knowledge of the remoter coasts of Wales and England could think of similar locations.

To police and counter this weakness, Border Force has four Stan Patrol 4207 class cutters built between 2002/04. These are 43m boats [speed 26 kts], operating 365 days per year by means of dual crewing, and are based in Portsmouth. In addition, there is a 50m boat [2002/22kts] acquired from Finland in 2013. Two of the boats have recently been operating in the Mediterranean on Operation Triton, led by Frontex the EU’s external border control agency. Thus it can be seen that only three were available for many months for UK patrols, and assuming maintenance considerations, it is likely that all five will always be sea going, even if they are all UK based. It has been reported in the press that over the next few years Border Force is to acquire seven more vessels, but no details have been released as to size or capability.

Possible solution.

As the UK already possesses a Coast Guard, which now has responsibility for UK Search and Rescue (SAR), it is suggested that the maritime element of Border Force be subsumed into the Coast Guard, thus forming a proper sea going element [which has never existed in the UK] as is the case in so many other European countries. Look no further than Sweden to see an excellent example, and, closer to home, that of the Irish Navy, with whom the UK already co-operates. A new Act [the Coastal Security and UK border Integrity Act?] should be enacted giving all the necessary powers to “boarding officers” of the Coast Guard and RN in the same manner as applied in the past to the Customs and Excise and the civil police. It might also be useful if such an act encompassed the prevention of what might be termed “modern slavery” which is part and parcel of “people trafficking”. This new Act would confer on appointed officers the power to stop, board, detain and if necessary divert offending vessels, and to arrest and search personnel, and seize anything deemed to be evidence under the act or existing legislation.

When the new Offshore Patrol Vessel (OPV), HMS Forth, was rolled out prior to launching at Glasgow, it was confirmed by government sources that “up to six vessels” had now morphed into only five RN River Mk II ships. Statements made at the time indicate that the current three Rivers class [built 2002/03] and HMS Clyde [built 2006 as Falkland Islands guard ship], are, as expected, to be disposed of. If this is indeed the case then it is an ideal opportunity to transfer these four useful former RN assets to bolster a newly empowered maritime Coast Guard – rather than to lose the capability to small overseas navies.

The author has much experience in operating Offshore Patrol Vessels (OPVs); the current, categorised as ‘Rivers’, are well found ships with at least 10 years of effective operational life ahead of them. However, suggestions that the new ‘Rivers’ will be available to bolster UK coastal security does not stand up to closer examination. Post Brexit, the UK will have its own Economic Exclusion Zone (EEZ) and fisheries waters to patrol, which will occupy three of the new ‘Rivers’ vessels. However, overseas commitments, such as Atlantic Patrol North and the Falklands are likely to absorb the other two. Of little use are the P2000 class patrol boats used by RN University Units, which are totally unsuited to working most of the United Kingdom’s coastal waters in other than benign sea conditions.

CONCLUSION

Whilst the RN and other armed services will have a role to play in MACA support for coastal security – on land, in the air and at sea – this should be secondary to the formation and resourcing of a specialist and properly resourced Coast Guard Service. The RN is currently not funded, resourced, manned or, in an arguable legal sense, authorised, for the task. Indeed, under separation of powers, RN ship commanders in home waters have traditionally not been able to act with constabulary powers without the presence of a warranted civil authority – Police, Fisheries Protection Officer, Custom and Excise etc.

So, to be viable the new Coast Guard Service must be empowered through national legislation that ensures jurisdiction and the authority to act with, or independently of, other agencies. Moreover, if it is still the intention of HMG to decommission the RN’s current four ‘Rivers’ class boats, these should be transferred to HMGC, or Border Agency in the first instance, until suitable legislation to create the new HM Coast Guard Service has passed through parliament.