Mr Stephen Timms (Minister of State (e-Commerce & Competitiveness), Department of Trade and Industry; East Ham, Labour)

On a point of order, Mr. O'Brien. I would like to respond to a point made by the hon. Member for Lewes (Norman Baker) before the break. He suggested that there is an inconsistency between what I said on Thursday and what I have said today. I am pleased to reassure him that there is no inconsistency between the two points.

I made it clear last week that the Nuclear Decommissioning Authority will be able to run only nuclear power stations pending decommissioning. I made that point again today, and as I said, that will be the Magnox situation. The NDA will also operate thermal oxide reprocessing plant—THORP—and the Sellafield mixed oxide—MOX—plant for operational reasons, but those are not nuclear-generating stations, so there is no inconsistency between the points that I made this morning and those I made last week. If the hon. Gentleman looks again, he will, I hope, be satisfied on that point.

Mr Bill O'Brien (Normanton, Labour)

We will deal with that as we make progress through the amendments.

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

I beg to move amendment No. 79, in

clause 6, page 4, line 16, leave out 'treating,'.

Mr Bill O'Brien (Normanton, Labour)

With this it will be convenient to discuss the following amendments: No. 80, in

clause 6, page 4, line 18, leave out 'treatment,'.

No. 81, in

clause 6, page 4, line 27, leave out 'treatment,'.

No. 82, in

clause 7, page 5, line 43, leave out 'treatment,'.

No. 83, in

clause 40, page 35, line 7, leave out 'treatment,'.

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

Welcome back to our proceedings, Mr. O'Brien.

I am grateful to the Minister for having reflected on my comments over lunch, but I shall now deal with another problem that concerns me greatly: the use of the word ''treating''. That word has particular connotations for politicians, but in this case I am talking about a different context.

Mr Laurence Robertson (Shadow Minister, Economic Affairs; Tewkesbury, Conservative)

Speak for yourself.

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

I certainly was not.

Clause 40(1) contains the Bill's definition of the word ''treat'', which,

''in relation to any matter or substance, includes processing and reprocessing (including any use as a material in a process for the manufacture of nuclear fuel)''.

Clause 6 effectively means that the NDA will be empowered to carry on the reprocessing of fuel.

We already know that the Government do not believe that they should intervene in that. In response to a written question from me, the Minister for the Environment and Agri-environment said:

''Decisions about whether to reprocess spent nuclear fuel depend on the commercial judgment of the operator concerned.''—[Official Report, 23 February 2004; Vol. 418, c. 146W.]

We know therefore that the Government have no policy to prevent the further generation of nuclear waste—reprocessing generates further nuclear waste—and that that is a matter simply for the industry. We could have a situation in which the Government are happy for the industry to generate increasing amounts of nuclear waste while the NDA runs around trying to stop that, although, as clause 6(1)(e) gives the NDA the power to treat, it may participate in the reprocessing.

Reprocessing is a particularly useless activity, which is more expensive than alternative spent-fuel management options. It magnifies the UK's nuclear waste management programmes, causes increased discharges of radioactivity to the environment and increases the UK's stockpile of weapons-usable plutonium. Plutonium is relevant to the question of treatment, so will the Minister say whether the Government regard it as a liability to be disposed of or a fuel still to be used? That is important, considering what the NDA will be doing.

We know that plutonium will separate from used fuel, and as I have mentioned, clauses 40 and 6 mean that the NDA may be involved in that process. However, such plutonium has no use any more. As the Trade and Industry Committee said,

''plutonium separated from used fuel is not only no longer required by any end-user, but is increasingly regarded as a positively dangerous waste product. Because of its physical properties and its potential attraction to terrorists or others seeking material for nuclear weapons, it has to be heavily shielded and securely guarded. The future disposal of the UK's current stockpile of separated plutonium, estimated to rise to at least 100 tonnes by 2010 if reprocessing continues, is currently under consideration.''

Every tonne of Magnox fuel reprocessed, which is what the NDA can be involved with under the Bill, produces 0.02 cu m of high-level waste, 1.2 cu m of intermediate-level waste, and 3 cu m of low-level waste. A tonne of spent advanced gas-cooled reactor fuel, when reprocessed, produces a much higher quantity of high-level waste—0.08 cu m—and the same volumes of intermediate and low-level waste. According to BNFL, the stockpile of spent Magnox fuel in March 2003 was 7,100 tonnes. If the reactors continue to operate, as the Minister wants, in accordance with BNFL's closure timetable, the amount of spent Magnox fuel that will require reprocessing before 2012 will rise to 9,400 tonnes.

Why is the NDA being given the power to continue reprocessing? The Government recognise the environmental liability of spent nuclear fuel and waste

to the tune of £40 billion, and have set up a special body to deal with it. Therefore, why do they not stop reprocessing rather than continuing to allow it to accumulate further waste, which the NDA will presumably have to deal with?

Mr Richard Page (South West Hertfordshire, Conservative)

I must confess that when I read this series of amendments I thought they were probing. I am sure that you, Mr. O'Brien, will remember when probing amendments were discussed in Committee at great length, which enabled us to discourse on matters that were not always relevant. Timetabling means that we are more constrained and have to deal with the case in hand.

Having listened to the hon. Member for Lewes, I wonder whether the amendments are genuine, or whether, in the words of John McEnroe, ''You cannot be serious.'' I regard them as wrecking to the purpose and aim of the agency, which the Committee signed up to before lunch as a good thing. What the hon. Gentleman said was amazing. He could have achieved his intended aims with a more direct amendment rather than through the circuitous route that he has taken.

My hon. Friend the Member for Vale of York (Miss McIntosh) confessed to standing for the Workington constituency in a general election and kindly referred to the fact that I used to be the Member for Workington, until the generous electorate there allowed me more time to spend with my family. Like her, I visited the plant at Sellafield and became acquainted with the intricacies of the nuclear process and its problems.

I point out to the hon. Member for Lewes the fact that the operations of BNFL, including THORP, MOX and other commercial plant facilities, require an integrated process. We cannot hook out a word, as he has suggested, and expect everything to continue as normal—the whole process would fall apart. One cannot technically separate the natural decommissioning of the plant from the storage and disposal facilities by removing the word ''treatment''.

The hon. Gentleman's point does not stand up because, having searched through the amendments, I cannot see the corollary. Why, for example, did he not table a similar amendment to clause 19(1)(b) under which the NDA will have responsibility for

''the operation of a facility for treating . . . hazardous material''?

His amendment is technically defective. Perhaps, at a later stage, he will produce an amendment to remove the word ''treatment''. I apologise to the Minister, who might have to answer on that at a later stage, and to the Committee, for referring to it now.

The hon. Gentleman has tabled a wrecking amendment that would severely damage the work of the NDA. In doing so, he has offered no alternative on how the word ''treatment'' would flow through in respect of hazardous material. The amendment is anti-nuclear and designed to stop the NDA in its tracks. Although I seldom pray in aid the support of the Minister, I shall do so on this occasion in the hope that

he denounces the amendment as unworkable. I hope that the Committee as a whole, with the obvious exception of the hon. Gentleman, soundly defeats the amendment.

Mr Michael Weir (Spokesperson (Environment & Food; Health; Rural Affairs; Trade & Industry); Angus, Scottish National Party)

I want to make a brief point. The hon. Member for South-West Hertfordshire (Mr. Page) is dismissive of the amendments, but the definition of ''treatment'' includes

''processing and reprocessing (including any use as a material in a process for manufacture of nuclear fuel)''.

That is the area that concerns me. Running through the Bill like a thread is an assumption, or at least a possibility, that the NDA will become a nuclear processor in its own right, although the Minister has denied that. However, this is yet another example of where that possibility exists, because the NDA is given the power to treat

''in a process for the manufacture of nuclear fuel''.

I am therefore inclined to support the amendment, unless the Minister can persuade me otherwise.

Mr Nigel Griffiths (Parliamentary Under-Secretary, Department of Trade and Industry; Edinburgh South, Labour)

Welcome to the Chair, Mr. O'Brien. Let the record show that, probably for the first time in my years in Parliament, I agree with the hon. Member for South-West Hertfordshire.

I shall answer the questions put by the hon. Member for Lewes directly. The amendment would prevent the NDA from taking responsibility for the operation of any nuclear facilities involved in the treatment of hazardous material. To remove the treatment of hazardous material from its functions would mean that it could not take responsibility for THORP, the SMP or Springfields, and would make the Sellafield site unmanageable in regulatory terms.

I realise that the hon. Gentleman's party is opposed to the continued operation of reprocessing at Sellafield. I also listened to what the hon. Member for Angus (Mr. Weir) said. Our policy on THORP and the SMP was set out clearly in the 2002 White Paper, ''Managing the Nuclear Legacy—a Strategy for Action''. There are existing contracts to fulfil, and decisions on the continued operation of the plant beyond those dates needs to be considered by this Committee and by Parliament.

We are committed to making decisions that are in the best interests of clean-up. In this context, the continued operation can be justified to the extent that it generates additional income or reduces the future costs of storage and the disposal of radioactive waste. Preventing the NDA from taking responsibility for the treatment facilities would not answer the question of what should happen to those facilities. The hon. Member for Lewes has asked me some questions. Let him tell the Committee how those facilities would be treated under Liberal Democrat policy.

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

Will the Minister tell me whether he thinks the objectives of the NDA are helped by allowing it to manufacture nuclear fuel?

Mr Nigel Griffiths (Parliamentary Under-Secretary, Department of Trade and Industry; Edinburgh South, Labour)

We are giving the NDA overall responsibility for the treatment. As the hon. Gentleman knows well, the complex treatment of nuclear facilities involves looking at the whole supply chain. We need an agency in which Parliament and the public have confidence. That is what we are presenting to the Committee in the clause. His proposal would greatly complicate the operation of the main Sellafield site to the extent that safety and security would be compromised.

The regulators strongly advise the Government that the integrity of the operation of the Sellafield site must be preserved in the interests of effective regulation. The facilities at Sellafield are so intertwined that it is all but impossible to separate THORP and the SMP from the rest of the site as the amendment seeks. As the site operator has to have unified control of the site, it makes sense for the NDA to have full responsibility for securing the operation and the clean-up of the site.

By giving the NDA responsibility for securing the operation of THORP and the SMP, we have a mechanism to ensure that decisions on the continued operation of these facilities are made on the basis that they maximise the net benefit to the clean-up of the site. The timing of ceasing operations can be made to fit with the overall strategy for cleaning up the site. Any income derived from the continued operation of these facilities can be put back into funding the clean-up. I urge the Committee to resist the amendment.

Sitting suspended for a Division in the House.

On resuming—

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

Belatedly, I welcome the Under-Secretary of State for Trade and Industry, the hon. Member for Edinburgh, South (Nigel Griffiths), to the Committee. The Minister for Energy, E-Commerce and Postal Services has retired hurt after earlier exchanges.

The hon. Member for South-West Hertfordshire said that my amendment is designed to stop the NDA in its tracks. It is not. It is designed to prevent the NDA from taking a role in reprocessing. Members of the Committee will have formed the opinion, perhaps from what the energy Minister said this morning and in earlier sittings, that the role of the NDA is to decommission nuclear installations, help to clean up the environment and deal with the nuclear legacy. That naive view is being undermined as we go through the Bill. We now know that the NDA will generate electricity from Magnox reactors and create nuclear fuel, under clause 40. That is a long way from the process of the NDA—

Mr Nigel Griffiths (Parliamentary Under-Secretary, Department of Trade and Industry; Edinburgh South, Labour)

Does the hon. Gentleman not accept that for the NDA to be effective and to advise on and master these issues, it should consider the entire

production and life cycle, not limit its remit to the end-product decommissioning issue, as the amendment seeks? The difference between our parties is that we want the NDA to be able to look at the life cycle through THORP, the SMP and Springfields in particular, so that the problems that arose because of the failure to consider the whole life cycle are resolved by the Bill. Thus, we will ensure that the NDA can look at the whole life cycle.

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

The Minister used the phrase ''look at'' several times. I am happy for the NDA to look at the whole life cycle but that is a different matter from taking responsibility for the generation of nuclear fuel, and it compromises his colleague's shibboleths of transparency and independence. In fact, it blurs the lines that I mentioned earlier.

The Minister gave the game away when he twice mentioned ''the income derived''; that is what the Bill is about. The nuclear industry has landed the Treasury with a gigantic bill for decommissioning and the Treasury wants some of its money back. It can do that by flogging the Magnoxes to death and trying to get some income from them, and reprocessing and getting some income from that. The Bill will generate waste rather than dealing with it, in order to get some income.

Mr Michael Weir (Spokesperson (Environment & Food; Health; Rural Affairs; Trade & Industry); Angus, Scottish National Party)

As there is no date for completion, could not the NDA become a generator in its own right for a considerable period?

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

That is right. We only have the estimate of when the Magnox reactors will cease operating. That date has been extended on a number of occasions and could be extended again. This is about money. To get its money back, the Treasury is trying to derive as much income as possible from the nuclear industry. However, that process will generate more waste and is completely contrary to the stated position and the stated objective of the NDA. I referred on Second Reading to the Minister's ''Consultation Paper on Proposals for Intermediate Level Radioactive Waste Substitution''. That means more waste. It means that at the same as the Government propose to get rid of waste through the NDA, they will create more waste, and they are doing so because they will derive income from the process.

I am afraid that NDA is beginning to stand for nuclear development authority rather than Nuclear Decommissioning Authority. However, I am happy to let the Minister dig himself into a couple of holes. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Laurence Robertson (Shadow Minister, Economic Affairs; Tewkesbury, Conservative)

I beg to move amendment No. 50, in

clause 6, page 4, line 30, at end insert—

'(3A) Such a direction must not be given by the Secretary of State before he has formally consulted the person in control of the site in question, and has laid a copy of that proposed direction before Parliament.'.

Mr Bill O'Brien (Normanton, Labour)

With this we may discuss the following amendments: No. 51, in

clause 6, page 5, line 4, after 'every', insert 'proposed'.

No. 52, in

clause 6, page 5, line 5, at end insert

'at least a month before making such a direction, except in the case where the Minister considers the making of that direction urgent.'.

Mr Laurence Robertson (Shadow Minister, Economic Affairs; Tewkesbury, Conservative)

I am not sure that I can quite match the excitement generated by the hon. Member for Lewes with his amendments; in fact, I am not sure that I am going to try.

In a way, it is a pity that we cannot discuss amendments Nos. 59 and 60 now, because they are the background to what I am getting at in these amendments. Amendments Nos. 59 and 60, if I may refer to them briefly, describe the position of British Energy, the relevance of which will become clear as I proceed. In speaking to amendments Nos. 50, 51 and 52, I am trying to show due respect to Parliament, in the sense that although the number of designations will be small, their importance will be large.

The Electricity (Miscellaneous Provisions) Act 2003 repealed sections 72 and 74 of the Electricity Act 1989, and gives the Minister the power to repeal to any extent any of the other provisions of part 2 of the 1989 Act by statutory instrument. As hon. Members will remember, the 2003 Act was introduced to rescue British Energy and, although small, was extremely wide-ranging. The Minister may want to correct me, but it seemed to give the Government the power to bring British Energy under state control, if that were desirable. The importance of that is that the NDA can take over only installations or sites that are publicly owned.

If the Government can take over parts of British Energy, that would become an organisation or an installation that could be taken over by the NDA. I think that I have interpreted the position correctly. Given that the Minister has such wide-ranging powers under the 2003 Act, and because any transfers will be very large in importance, it is not unreasonable to ask for the proposals to be laid before Parliament a month before they are enacted. That is not much to ask.

We have had an interesting debate on the future of Sellafield and, in particular, THORP and on the NDA's possible role in respect of reprocessing. In a parliamentary answer on 15 March, the Minister said:

''As far as spent nuclear fuel is concerned, THORP's order book amounts to some £12 billion.''—[Official Report, 15 March 2004; Vol. 419, c. 70W.]

That figure will probably alarm the Liberal Democrats greatly, but the point is that it is a massive sum and means an awful lot of work for the people in that area. Making transfers of that amount is very significant. It is not asking too much for the proposal to designate such a site to be put before Parliament a month before the transfer comes into effect, following the Minister's consultation with the site in question, which is also part of my amendment.

There is another aspect to this, which I mentioned on Second Reading. I do not know whether the Minister has had a chance to consider it, although I am sure that his officials will be up to speed on it, so no doubt he will be. If, for example, British Energy, or a

part of it, were taken over by the Government for the purposes of the NDA—to clean up or decommission—would that represent an infringement of European Union rules on unfair state aid? I am not saying that it would; I do not know and I am genuinely asking the question from ignorance, but it should certainly be considered. The relevance of that to the amendments is that if that occurs, it is only right and fair that Parliament should be warned about it in advance—[Interruption.] I am getting rather worried that the Liberal Democrat spokesman is agreeing with me, but I am sure that I can cope with that. For the reasons that I have given, I commend the amendments.

Mr Nigel Griffiths (Parliamentary Under-Secretary, Department of Trade and Industry; Edinburgh South, Labour)

To the surprise of many colleagues, the amendments appear to impose administrative burdens on the process of giving the NDA designated responsibilities. I should have thought that because 10,000 additional burdens were placed through regulations in the 10 years up to 1997, there would be no need to add unnecessary ones such as this. I am the first to believe that Parliament must be kept properly informed about processes, but are the Opposition arguing that it may be necessary to delay a designation, except in urgent cases, for a month or so that Parliament can reflect on it?

Designations are technical documents that specify precisely and in sufficiently robust legal terms what the NDA is being given responsibility for. Once the NDA has been given the designated responsibility for a new site, even if the designation has not yet come into force, it is required to update its strategy to take account of its new responsibilities. It will need to consult on a revision in accordance with the provisions of schedule 2, secure the approval of Ministers and publish the new strategy so that hon. Members, all interested parties and the general public will have the opportunity to view and comment on the new strategy. Its annual report will reflect any additional designated responsibilities. The report will be published and laid before Parliament, but the level of detail sought by the hon. Member for Tewkesbury (Mr. Robertson) in moving the amendments does not merit Parliament's consideration.

The additional requirement that the Secretary of State most formally consult the site operators is also unnecessary. Private sector operators must already consent to designations of their sites to the NDA. Public sector operators—BNFL and the United Kingdom Atomic Energy Authority—as site licensees of the nuclear legacy sites, will initially become the responsibility of the NDA as a matter of course. They will be heavily involved in the drawing up of designations relevant to them. I understand that work has already started on that. A statutory requirement to consult is unnecessary, and I urge the hon. Gentleman to withdraw the amendment.

Mr Laurence Robertson (Shadow Minister, Economic Affairs; Tewkesbury, Conservative)

I am not entirely convinced by the Under-Secretary about how unnecessary the amendments are. I mentioned, for example, that THORP has an order book of £12 billion, just for reprocessing spent fuel. I am not aware of any transfer

of that size going through without some reference to Parliament. It seems extraordinary to want to avoid that. The Under-Secretary said that it would delay it for up to a month. Is he suggesting that designation will be made and acted upon within a month? That seems a very short time scale.

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

Did not the hon. Gentleman's amendment, which I support, also have the proviso that when it was urgent other action should be taken? Even that excuse does not hold.

Mr Laurence Robertson (Shadow Minister, Economic Affairs; Tewkesbury, Conservative)

The hon. Gentleman is right. In another clause—I cannot quote it offhand, as I do not have the benefit of the Under-Secretary's civil servants—a designation can be made a long time ahead. What I am proposing is not extraordinary. With the proviso that I can speak briefly to amendments Nos. 59 and 60, which are linked to this proposal, I shall divide the Committee on this important matter.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 12.

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

I beg to move amendment No. 78, in

clause 6, page 4, line 37, leave out from 'itself' to end of line 38.

Mr Bill O'Brien (Normanton, Labour)

With this it will be convenient to discuss the following:

Amendment No. 59, in

clause 6, page 4, line 38, at end insert

'including the person in control of any installation, site or facility owned by British Energy'.

Amendment No. 86, in

clause 8, page 6, line 28, leave out from 'itself' to end of line 29.

Amendment No. 60, in

clause 8, page 6, line 29, at end insert

'including the person in control of any installation, site or facility owned by British Energy'.

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

In the last set of amendments, the hon. Member for Tewkesbury sought extra accountability and clarity. It is interesting that no matter where one stands on the nuclear issue, there is a common purpose in transparency and knowing exactly what is going on. That is why my hon. Friend the Member for Hazel Grove (Mr. Stunell) and I tabled the amendments. Clause 6(4) states:

''A direction must not give the NDA a responsibility . . . '',

and mentions some tightly defined groups:

''(a) a Crown appointee;

(b) the UKAEA;

(c) a publicly owned company;

(d) the NDA itself; or''—

it is something of a catch-all—

''(e) a person who has consented to the giving of the direction''.

That would appear to be anyone else on the planet, although the Under-Secretary will say that that is flippant. It seems unnecessary to include (e) in the terms in which the clause is written. If the Under-Secretary means British Energy, he should be upfront and say so.

In the debate on the previous group of amendments, the hon. Member for Tewkesbury rightly referred to the position of British Energy. Before we go further, one of the Ministers should make a statement on where that matter rests in respect of the European Commission. The Under-Secretary will know that the Bill will in theory allow the NDA to take on British Energy's liabilities, at an estimated cost of £3.3 billion over the next 10 years. Under the restructuring plan, the Government intend to underwrite the decommissioning and clean-up costs.

Officials from the DTI have admitted that the Bill is worded to cover British Energy's liabilities; it would also allow future private nuclear companies to be bailed out in respect of their waste and decommissioning liabilities. We are not, as hon. Members envisaged at an early stage, drawing a line under the issue, dealing with historical liabilities and trying to move on with a clean balance sheet. We are doing worse than that in a sense.

I agree that we should have the NDA, but we are allowing future private sector operators to offload their responsibilities on to the taxpayer. Is that the Government's intention? If the Under-Secretary wants to tell me that I have read the Bill wrong I will happily hear his explanation, but that is how I read it. It is contrary to the spirit of the Bill to allow that to happen. It is inappropriate for the Government to support a private sector company in that way. I ask the Under-Secretary to comment expressly on the complaint about the Bill that has been laid with the European Commission. Have his officials advised him that it is legal to go ahead in this form? If it is not legal my amendment should commend itself to the Committee.

Mr Nigel Griffiths (Parliamentary Under-Secretary, Department of Trade and Industry; Edinburgh South, Labour)

This group of amendments relates to the ability of the Secretary of State to give the NDA responsibility for securing the clean-up of private sector sites. We have made this provision in the Bill in recognition of the Government's ultimate responsibility for ensuring nuclear safety and security in the UK. We cannot rule out the possibility that the Government might need to step in to ensure the safe, secure clean-up of a private sector nuclear site. If that were necessary the NDA would of course be best placed, with its skills and expertise, to manage any clean-up operations. Clauses 6(4)(e) and 8(5)(e) allow for that, as long as the Secretary of State secures the consent of the private sector operator concerned.

Amendments Nos. 78 and 86 would simply remove that option, which, for the reasons I have just outlined, would be extremely irresponsible. The hon. Member for Lewes asks whether he has read the Bill wrong. The answer is yes, yes, yes, he has. He asks whether the Bill applies to British Energy. The answer again is yes, yes, yes, it does. His amendments Nos. 59 and 86 seek to emphasise that clauses 6(4)(e) and 8(5)(e) would apply to British Energy sites. That is entirely unnecessary. As drafted these provisions would apply to the ''person with control'' of an installation, site or facility, as defined in clause 39. That clearly includes a British Energy site.

Mr Laurence Robertson (Shadow Minister, Economic Affairs; Tewkesbury, Conservative)

Before he concludes on that point, will he make a reference to the position with regard to the European Union's unfair state aid rules?

Mr Nigel Griffiths (Parliamentary Under-Secretary, Department of Trade and Industry; Edinburgh South, Labour)

The state aid rules would apply in this case. If the Government wanted to take responsibility for additional liabilities a further clearance process by the Commission may be required. I hope that clarifies the point and I hope that my explanation will persuade the hon. Member for Lewes to withdraw his amendment.

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

I will have to read Hansard. That was an extraordinary contribution from the Under-Secretary; frank, but slightly unwise. He has effectively said that the private sector will receive a blank cheque from the Government. The Government are prepared to pick up the bill through the NDA for private sector sites. All this business about the nuclear industry washing its own face and becoming self-sufficient is clearly codswallop. The taxpayer will pay yesterday, today and tomorrow for the nuclear legacy.

Mr Richard Page (South West Hertfordshire, Conservative)

When the hon. Gentleman talks about the taxpayer paying for the nuclear legacy, he should remember the weapons programme that lasted for many a year. The civilian nuclear industry should not be included with that legacy.

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

I was thinking of British Energy in particular. I remind the hon. Gentleman that the electricity industry was told that privatisation would be a fresh start for the nuclear industry, would deal with all the liabilities, that the state would get all the Magnox stations and those that were going to be profitable were to be hived off into the private sector. Now, dare I say it, a Labour Government are coming forward with a blank cheque to clear up those sites.

Mr Laurence Robertson (Shadow Minister, Economic Affairs; Tewkesbury, Conservative)

I fear that the situation might be rather worse than the hon. Gentleman describes, given the Under-Secretary's honest reply to my intervention. We do not know whether they can clear the sites or not. Would not it have been better to clarify that before publishing the Bill?

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

I could not agree with more with the hon. Gentleman. It is intolerable that the Committee is being asked today to give a power to write a blank cheque for the future of a private company, possibly in

contravention of European Union rules. That is what we are being asked to agree to this afternoon. The Under-Secretary and his colleagues must reflect on their position on the Bill.

This morning, I had a BNFL advert that talked about a brand new start; it was rubbing its hands at the opportunities that now exist, and I am sure that British Energy is doing exactly the same. This is a wonderful start for those companies. They can offload all their present and future liabilities on to the taxpayer, and can continue to do what they should not be doing, in my view, which is to generate more radioactive waste for the taxpayer to deal with.

The Under-Secretary said that there was a guarantee that the consent of the private sector must be secured, but the private sector will be falling over itself to give consent to the Under-Secretary in those circumstances. He also said that I may have misread the Bill; I may have done so, but in his contribution, he confirmed the understanding that I had mentioned earlier. The hon. Member for Angus has a later amendment, which seeks to delete from clause 12(2) the ability to help British Energy in that way.

I hope that when we reach that point, the Under-Secretary will have reflected on this debate, and will be able to give a more definitive statement on the European position. The idea that we can put into law something that may be contrary to European requirements is, frankly, astonishing. The Under-Secretary has some serious questions to answer. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

I beg to move amendment No. 77, in

clause 6, page 5, line 20, leave out 'against the interests of' and insert

'constitutes a material risk to'.

Mr Bill O'Brien (Normanton, Labour)

With this it will be convenient to discuss the following:

Amendment No. 110, in

clause 12, page 10, line 47, leave out from 'information' to 'national' and insert

'the publication of which would constitute a material risk to'.

Amendment No. 111, in

clause 12, page 11, line 1, at end add

'the publication of which would constitute a material risk to national security'.

Amendment No. 126, in

schedule 2, page 161, line 34, leave out

'be against the interests of'

and insert

'constitute a material risk to'.

This is rather less controversial, although still important. I and my hon. Friend the Member for Hazel Grove tabled these amendments with a view to getting the balance right between proper regard being paid to national security and the issue of the public at large knowing what is taking place in their name. The test set under the Bill for the release of information is slightly too widely drawn. My amendment would be a more satisfactory replacement. The term

''against the interests of national security''

can be interpreted rather widely, whereas the replacement wording

''constitutes a material risk to''

national security is fairer and tighter. It does not prevent anything being withheld that is a genuine threat to national security, but recognises the principles enshrined in the Government's freedom of information legislation, which is that information should be released unless there is a good reason not to do so. We tabled the amendment to endorse the Government's approach to freedom of information, so I hope that they will support it.

Mr Richard Page (South West Hertfordshire, Conservative)

I would describe the amendment as a true probing amendment in the traditional sense. It warms the cockles of my heart to see such an old-fashioned amendment; it makes me feel at home in this new age.

I shall resist the temptation to discuss the intricacies of the amendment in detail. The amendment is unsound, but interesting. The Under-Secretary must accurately define what the Government mean by national security. In practice, the amendment is similar to medieval philosophers trying to decide how many angels could dance on the head of a pin. No Secretary of State will publish detailed information that could affect national security, especially after 9/11. It is exceedingly doubtful whether anyone can define what constitutes a less than material risk to national security. The Under-Secretary is one of the more open Ministers that I have met. He prayed in aid some of my comments earlier, which makes me warm to him in a way that I would not normally do. However, in these days of open government, it would be helpful to know where the lines of publication lay.

The background of the interpretation of national security could be obvious, simple and unworthy of query. However, I remind the Committee of a recent incident in which a young lady at Cheltenham breached the Official Secrets Act, published information that was a clear contravention of that Act and yet was not prosecuted. Mr. O'Brien, you would rightly pull me up if I went into the details of that case, so I shall not do so in deference to your position as Chairman. However, when the Government will not take action when there is a clear breach of national security, I must ask what the phrase

''against the interests of national security''

means.

We have a new Labour Government with new policies but, as far I am concerned, national security is still national security. I have signed the Official Secrets Act as, I would suggest, has the Under-Secretary, but it seems that people are no longer bound by it and cannot be prosecuted. He and I are working as one on the Bill at the moment. Will he tell us exactly what national security is, and where it will be influenced and implemented?

Mr Robert Key (Salisbury, Conservative)

Will my hon. Friend tell the Committee why he signed the Official Secrets Act?

Mr Bill O'Brien (Normanton, Labour)

Order. I would certainly suggest that we do not go into that.

Mr Richard Page (South West Hertfordshire, Conservative)

Shades of the past, when a colleague would intervene to help an hon. Friend who was drying up by giving him a little line and keeping him running on a new thought. I will not say why I signed the Official Secrets Act, except to say that I am a loyal citizen of this country; I wish it to prosper and would not want information to be used by enemies of the state to its detriment.

I hope that the Under-Secretary will define what he means by national security. To the uninitiated it may seem like I have put my question in a less than serious manner, but I am definitely serious. What goes on to the record from this Committee is used in legal actions and court cases to show what the Government mean. The hon. Member for Lewes has produced one or two wrecking amendments in relation to the NDA, to which I objected. I assume that this amendment is a true probing amendment and that he wishes the Under-Secretary to define what he means by national security. I should also like to know what is meant by national security, and I look forward to the Under-Secretary's comments.

Mr Nigel Griffiths (Parliamentary Under-Secretary, Department of Trade and Industry; Edinburgh South, Labour)

The amendments would reduce the Secretary of State's ability to withhold sensitive information by applying a different burden of proof from that required under the Freedom of Information Act 2000.

Let me give an example of what could be relevant to national security. We all know that nuclear sites can contain security-sensitive material and information and in the current environment, there obviously must be some discretion and control over the use of that information, in the public interest of avoiding it being used to potentially damaging effect and ensuring that it comes under some scrutiny. As I have said, even the Freedom of Information Act does not set out the test that the amendment proposes. For the purpose of safeguarding national security, it allows Ministers to determine what information should be exempt to safeguard national security.

I should have thought that, now more than at any other time in the past, there is not a strong case for introducing a materiality test that would reduce the Secretary of State's discretion to exclude information to be published on grounds of national security. I know that the hon. Member for Salisbury (Mr. Key) stepped in to try to help fill the vacuum in his hon. Friend's head, but on this occasion, he was not successful. I recommend that the amendment be withdrawn.

Mr Norman Baker (Shadow Secretary of State for the Environment, Environment, Food & Rural Affairs; Lewes, Liberal Democrat)

The Under-Secretary spoke about the threat. Yes, there is a threat, and we all have to recognise that. He talked about discretion, and yes, Ministers should have discretion on such matters. He also talked about control, and yes, there should be control. None of those points is queried or threatened by the amendment.

The Under-Secretary's substantive point was to identify, rightly, that I am proposing to apply a different threshold from the one in the Bill. That would

be the only change; the amendment would not remove the discretion or control and would still allow Ministers, if there is a material risk, to keep information secret or deal with it as they think appropriate. None of that would change. The amendment tests simply whether the hurdle is the right height. Ministers will always err on the side of caution, particularly in times such as these, and we would expect them to do nothing other than that.

The Under-Secretary's portrayal of the amendment was somewhat unfair. I also believe that as there are public safety and environmental issues with nuclear waste and power stations, it is legitimate to ask him whether we are striking the right balance. I will not press the amendment to a Division, but I ask him to recognise that it was a reasonable point to make. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mrs Anne McIntosh (Shadow Minister, Environment & Transport; Vale of York, Conservative)

I welcome you to the Chair, Mr. O'Brien.

I have several points to make. My hon. Friend the Member for South-West Hertfordshire referred to the nuclear capacity of Ministry of Defence installations and said that he would not want the new authority to have responsibility for them. Paragraph 59 of the helpful explanatory notes informs us:

''Clause 6 is framed in general terms so that, in addition to the BNFL and UKAEA sites described in the White Paper, the Government could in future give the NDA responsibility for the decommissioning and cleaning up of Ministry of Defence sites''.

The Under-Secretary's constituency encompasses Morningside, so he will be some distance from a nuclear power station, whether civil or MOD. However, will he tell us how likely is the scenario that was rightly identified by my hon. Friend? We may wish to return to that point.

Mr Richard Page (South West Hertfordshire, Conservative)

My hon. Friend is right in asking that question of the Under-Secretary; it is important that that should be put on the record.

The point that I was making was that there is a huge nuclear legacy through the weapons programme and that some people desire to amalgamate that into the civilian situation. It is important to ensure that the civil liabilities are not burdened with the requirements that have to be dealt with from the weapons programme. Many people try to roll together the civil and weapons nuclear liabilities, which I do not believe to be fair.

Mrs Anne McIntosh (Shadow Minister, Environment & Transport; Vale of York, Conservative)

The Committee will have some sympathy with the points made by my hon. Friend. I hope that the Under-Secretary will take account of them in his response.

The Government consulted over a four-month period from the end of November 2003 to February of this year on the decommissioning policy, with particular reference to decommissioning the UK's nuclear facilities. The Government's helpful summary of the responses to that consultation document

pointed out that although all respondents agreed on the need for site strategies covering decommissioning operations, concerns were expressed that options should not be foreclosed and in particular that the relationship between the strategies of the NDA and those of its site operators should be clear and unambiguous. I share some of those concerns, but clause 6 is silent on that point. Have the Government reached a conclusion with regard to those relationships, and at what point in the Committee will we be able to discuss that matter in more detail?

I should perhaps declare an interest in relation to subsection (7). Some rather derogatory remarks were made this morning about lawyers who were members of the Committee. I plead guilty to being a member—albeit non-practising—of the Faculty of Advocates, which is why I retain an interest in how Bills passing through the House relate to Scotland as well as England. As you will be aware, Mr. O'Brien, my constituency is almost equidistant between Edinburgh and London; it is ideally situated in that regard.

Under subsection (7), the Secretary of State is required to lay a copy of every direction containing a designation before Parliament and to publish it, subject in both cases to the exclusion of any material which in his view, under subsection (9), should be withheld in the interests of national security. I should like to probe the Under-Secretary on that issue. Will directions be debated when laid before Parliament? If so, will they be debated by a statutory instrument Committee of this House, or could they be debated by both Houses? What will be the mechanism for such a debate? We seem to be expending a lot of energy this afternoon, for different reasons.

On clause 6(8), I should like to ask the Under-Secretary the same question as has been asked before to see whether it elicits any response or, indeed, a similar response to that of his colleague. I was fortunate enough to be able to question and seek the advice of the Advocate-General for Scotland on this issue when the Committee adjourned before lunch. That was a worthwhile exercise. It is just a pity that we have only five minutes in which to question the Advocate-General and to hold her to account.

Subsection (8) states:

''The Scottish Ministers must lay before the Scottish Parliament a copy of every direction which by virtue of section 9 is given jointly by them and the Secretary of State.''

However, in my experience, when decisions are taken jointly—for example, in a marriage—someone usually has the upper hand and the last word. I am pleased that my husband is not present on this occasion. Let us transfer that scenario to joint decision making by Scottish Ministers and the Secretary of State. Will the Under- Secretary be good enough to tell us which body and which Minister will have the last word?

The most alarming part of clause 6 is subsection (9), which states:

''The Secretary of State may exclude . . . from what he lays before Parliament and publishes under this section . . . anything the publication of which he considers to be against the interests of national security.''

I have not yet been asked to sign the Official Secrets Act, so I will not fall foul of its provisions, but could the Under-Secretary elucidate how strong a test will be applied in that regard?

I think that the Under-Secretary will guide me on one last point. I echo the words of my hon. Friend the Member for South-West Hertfordshire,. Having been a humble candidate at Workington and briefly seen the work at Sellafield, I pay enormous tribute to the contribution to the local economy that the plants in west Cumbria make. However, in relation to the designated responsibilities in clause 6, there will obviously be quite a dramatic reduction, through decommissioning, in the processing works in west Cumbria. Has that been noted and have Ministers taken action on it? Which part of the Bill would relate to that?

Dr Desmond Turner (Brighton, Kemptown, Labour)

I should like to ask my hon. Friend the Under-Secretary a quick question while we are discussing this clause, which sets out the NDA's duties and responsibilities. In respect of the nuclear liabilities that were publicly created, and given that the NDA will be publicly funded to carry out its role, will he give a brief exposition of the Government's position on what would be the case were there to be a future generation of nuclear power stations that would presumably be privately funded? Would the private developers of nuclear power stations also have to fund privately their nuclear decommissioning liabilities?

Mr Nigel Griffiths (Parliamentary Under-Secretary, Department of Trade and Industry; Edinburgh South, Labour)

I shall reply to questions on the clause in the order that they were asked. The hon. Member for Vale of York asked about decommissioning policy and consultation. The review is under way, but it has not yet been concluded. The NDA needs to take account of it as the relevant Government policy.

It is unlikely that the NDA would have a role in MOD sites while there is still a defence interest, but as and when MOD interest in a sites ceases, it would make sense for the clean-up to be secured by the MOD itself. In Scotland and the UK, Ministers must agree that the Secretary of State acts on behalf of Her Majesty's Government in this matter, but the dialogue is very open and healthy between the Scottish Executive and the UK Government.

The hon. Lady almost got on to my Christmas card list with her mention of Morningside, which has a keen interest in the nuclear industry. We are grateful for the work being done in Morningside, through which waste from Torness is transported to Sellafield. It passes within a couple of hundred yards of my back door at Newington, and I am pleased that the freight line is kept up to passenger standard to secure safety there.

Unusually, the hon. Lady blotted her copybook when she called for more regulations, and for the designated directions to be discussed by the House of Commons and the House of Lords. The documents are technical; they specify what the NDA is being given designated responsibility for, and we do not intend

that they should be over-bureaucratised and debated in the way that the hon. Lady suggested. I am keen to have fewer regulations, not more.

My hon. Friend the Member for Brighton, Kemptown (Dr. Turner) raised an important issue. I shall ensure that he receives a reply, and that copies are sent to other members of the Committee.

Question put and agreed to.

Clause 6 ordered to stand part of the Bill.