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

I beg to move amendment No. 87, in

clause 9, page 7, line 17, at end insert

'provided that this shall not be classified as intermediate-level-level waste or high-level waste'.

In the light of the Under-Secretary's last remark, I look forward to a positive response to my amendment. First, I can tell the hon. Member for South-West Hertfordshire, who is keen on this provision, that this is a probing amendment. It is an excuse to discuss a wider issue, but I hope that it is in order, Mr. O'Brien.

The hon. Member for Angus may be disappointed to know that my special interest is not in ensuring that radioactive waste is not disposed of in Scotland, although with my Aberdonian birthright I have a passing interest in that. I have tabled the amendment so that I can concentrate on intermediate-level and higher-level waste, and tease out from the Under-Secretary what is the delineation between the NDA and Nirex. I mentioned that point to the Energy Minister, but little clarity was forthcoming.

I want to clarify the matter because there is uncertainty about state aid, and about where Nirex fits in. We know from ministerial comments that have been reported in the press, which is always entirely accurate—The Observer, anyway—that there have been big clashes between the Secretary of State for

Trade and Industry and the Secretary of State for Environment, Food and Rural Affairs over the future and the role of Nirex.

The amendment would provide that disposal would not take place if it involved intermediate-level or higher-level waste. The point is whether the NDA will have the ability, or the authority if the Government have their way, to deal with the disposal of intermediate-level or higher-level waste. Nirex is charged with dealing with intermediate-level waste; that is its job. It is therefore developing a long-term strategy for the Government. Is that strategy to be undermined or overruled by the Bill?

This morning, the Minister for Energy, E-Commerce and Postal Services said that there would be some responsibility for the NDA in respect of intermediate-level and higher-level waste, but at what point does that responsibility stop and Nirex's responsibility begin?

Under clause 6(1)(d), the NDA will have responsibility for disposing of hazardous material. Many of us thought that that was Nirex's responsibility. The amendment would confirm the situation that I understand to be the case—that Nirex will deal with the disposal of intermediate-level and higher-level waste, and that the NDA can dispose of low and very low-level waste. If that is different from what the Government anticipate, I should be grateful to hear it. However, we certainly need clarification of the relative roles of the NDA and Nirex.

It would be helpful if the Under-Secretary could tell us what has happened to Nirex. We had a statement from the Secretary of State for Environment, Food and Rural Affairs last July. Since then, there has been a battle royal between the DTI and DEFRA. We have not yet had a statement on where that is going. Will the Under-Secretary clarify that while dealing with the other issues?

Mr Richard Page (South West Hertfordshire, Conservative)

When I read the amendment, I experienced the puzzlement of trying to get into the mind of the Liberal Democrats, and I have to say that I failed. I came to the conclusion that if it was anything other than a wrecking amendment—in which case all became clear—I was in difficulty. However, the hon. Member for Lewes said that it was a probing amendment, so I feel a warm glow come over me. I am with him in spirit on that. I sincerely hope that he does not try to press the amendment to a vote, because I think that the whole thing would come off the road at that point.

The amendment is peculiar in the way in which it is designed to tease out the arguments that the hon. Gentleman asked the Under-Secretary to explain. I understand the requirement to define the relationship between the NDA and Nirex, and the amendment is more interesting because he has chosen to try to elucidate that information. However, the people who read these debates will wonder about the Liberal Democrats' moves to try to exclude Scotland from any form of nuclear activity. That would gain an enormous number of votes in some areas, but lose them in others. I see no reason why Scotland should be in the discriminatory position of being a nuclear-free zone.

Earlier, my hon. Friend the Member for Tewkesbury mentioned his away day to Finland. It is building a nuclear power station on a great chunk of granite. Scotland is just a lump of granite really, as the hon. Member for Angus—my hon. Friend—would admit. There are a few bits of water as well, but it is a great chunk of granite.

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

The hon. Gentleman obviously has not been to Scotland in a long time. There is a lot more in Scotland than granite. In fact, Angus is on sandstone, which is probably the most inappropriate material for a nuclear dump that I can think of. I would not argue that all nuclear waste generated in Scotland should be carted furth of Scotland, but if he is proposing a new nuclear dump anywhere in Scotland, he will find very great opposition to that proposal.

Mr Richard Page (South West Hertfordshire, Conservative)

I have to say to the hon. Gentleman—he was my hon. Friend, but he has gone down a grade—that I was in Scotland last year. I took my dearly beloved, who is my wife as well, on an away day to celebrate one of our many wedding anniversaries. We had a lovely time going through what I have to say is the granite of Scotland. I am unaware of the sandstone of Angus, but if he would like a nuclear dump in Angus, that will be fine.

I shall return to the issue of Finland, because I could see in your eyes, Mr. O'Brien, that you were going to call me to order, and rightly so. I hope that no other hon. Member will try to distract me with irrelevances. However, Finland is working away to build its nuclear power station on granite. It is digging a spiral road to a depository at the bottom, so that all the nuclear waste goes down, underneath the power station. When the power station comes to be decommissioned, it will all be dismantled and put down into the centre of the granite. That will be environmentally safe and environmentally friendly.

As I said earlier, Nirex was about to announce a high-level waste depository in Cumbria, but the geological surveys indicated that the rocks there were not secure. There were fissures and faults in them, so the proposal was rejected in 1997. I am disappointed that the Liberal Democrats produce the fact that Scotland, with all the right geological aspects attributes to have a depository, would want, on the face of it, to opt out of that opportunity. As the hon. Member for Lewes said, this is a probing amendment, and it will be a challenge to the Under-Secretary to pull together his brief and answer the question.

Now that the Under-Secretary has stopped writing, he is obviously up to speed and is able to answer the question. I say that so that I can get back in his favour; he rejected the last set of amendments and gave me the brush-off, whereas I was his dear friend with the previous set of amendments. I hope that I am back in favour again, and should be interested to know how this probing amendment will demonstrate the relationship between the NDA and Nirex, which is an important one if we are going to move our nuclear installations forward to the future and, in particular, can make provision for their disposal.

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

I have written a Christmas card with a second-class stamp. I welcome the opportunity to respond to the probing amendment and to make it clear that the future responsibilities for intermediate and high-level waste are under active consideration. That includes decisions on the future of Nirex. The Bill allows the NDA to play a role in the disposal of all radioactive waste. It can construct and operate disposal facilities, and it makes sense to keep that option open until the policy consideration is complete. I welcome the chance that the probing amendment gives me to spell out how the Government are tackling that issue.

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

I should have thought that, given time that the hon. Member for South-West Hertfordshire was extremely generous in giving the Under-Secretary to allow him to scribble his reply, we would have received a better answer than that.

The Under-Secretary has now admitted that there is no clear role for Nirex established in his mind, and no clear role for the NDA, although there will be some reserve ministerial powers. Nirex was going to be sorted out on 16 July 2003, when the Secretary of State for Environment, Food and Rural Affairs made her announcement, and the press release said:

''Margaret Beckett announces way forward on radioactive waste management''.

We are now wondering, a year later, what the way forward is. We know, however, that we are being asked to pass a Bill with all its provisions, without knowing the answer to the central question on the relationship between the NDA and Nirex. The more we consider this shiny new Bill, which was presented to us in glistening form on day one, the more the shine is wearing off. It is looking rather tarnished on a range of issues. There are more questions than answers in this Bill: this debate on the NDA and Nirex has provided us with another.

The Under-Secretary owes it to the Committee—and the House, on Report— to make a clear statement about what exactly is happening with Nirex, and how it will relate to the NDA. It would be an insult to Parliament if we were expected to pass the Bill and then have a ministerial announcement two weeks later stating the position. None the less, 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 wish to raise, in greater depth than I did previously, some small points on the relationship between the Bill and the way in which it will apply in England and Scotland. There has been talk about away-days to Finland. My next confession is that I am half-Danish and that on my annual holiday visits to Copenhagen, which was the family home in latter years, it has come as some surprise to see that the Swedes have positioned their primary nuclear plant

opposite the main centre of population and the capital of Denmark—bang opposite Copenhagen. I hope that the Committee will take note of that.

I hope that the Under-Secretary might have time to consider my remarks a little more fully than in the replies that he gave in other clause stand part debates. Subsection (2) draws a distinction, apparently not made elsewhere in the Bill, between licensable sites and other principal nuclear sites. It would be helpful for the Committee to know why that distinction has been made known just for the purpose of this clause.

I understand that directions for sites that are not licensable will be given jointly by the Secretary of State and Scottish Ministers. The Under-Secretary will have had time to reflect on the matter. I think that he has had a lapse of memory, which I am sure he will not readily be accused of, and has failed to respond to the point in earlier debates this afternoon. In the event of a joint decision when such sites are not licensable, who will have the last word? Is the Under-Secretary concerned that there may be discrepancies in the application of the Bill between Scotland and England?

This morning, the Minister for Energy, E-Commerce and Postal Services told us that one of the reasons that the Bill was to be welcomed was that it would introduce an element of competition between sites. Clearly, the clause has unique application in that regard. I am sure that the Committee will find it extremely helpful if the Under-Secretary could elaborate on why the Government appear to have moved away from the reserved matters. The little book tells us about all matters relating to regulation under the Scotland Act 1998—the Under-Secretary was not here for much of this morning, so I draw his attention to the little book ''Regulating Public Utilities: A Constitutional Approach'', written by Cosmo Graham, professor of law at the university of Leicester. It is available—or would be had I not borrowed it—in the House of Commons Library. However, I am sure that the Under-Secretary has the whole Department and its literature at his disposal. The little book says that all matters of regulation are clearly set out in the Scotland Act 1998, except waste, as reserved matters and are therefore

''outside the competence of the Scottish Parliament''.

I recall that I made my maiden speech on the Committee stage of the Scotland Bill, as it was then, and this is a matter in which I have had considerable interest. I think that there might be some confusion among members of the Committee—I could certainly be confused if the Under-Secretary does not satisfy me—and the wider public because the electricity provisions of section 3 of the Electricity Act 1989, as they have been applied, are clearly devolved. It is incumbent on the Under-Secretary to set out clearly before the Committee why these are no longer reserved matters but are to enjoy joint decision making.

Will such joint decisions be debatable, and if so in which forum? If an appeal were made against one of the decisions, under which authority or jurisdiction would the appeal take place? Presumably, the appeal

would take place before the Scottish courts, but my reading of the Bill does not elucidate that. Why does subsection (2) draw the distinction, which is not made elsewhere in the Bill, between licensable sites and other principal sites? In subsection 3(c), the Secretary of State, or the Scottish Minister is empowered to give the NDA

''responsibilities for the operation in or on a licensable site in Scotland of a facility for the storage of hazardous material''.

What specifically is meant by hazardous?

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

My hon. Friend the Minister for Energy, E-Commerce and Postal Services dealt extensively and clearly with section 63 of the Scotland Act this morning and spelled out the division in responsibilities. I am grateful to the hon. Member for Vale of York for giving me the opportunity to answer her questions.

The distinction between licensable sites and other principal nuclear sites is to reflect the extent of the devolution settlement, which reserved matters relating to licensed nuclear sites. The Bill uses the concept of a principal nuclear site to ensure that sites requiring substantive decommissioning and clean-up work, but for which a nuclear site licence was not required—the fusion reactor at Culham in England is the only present example—are covered by the full range of duties and powers of the operator and the NDA. Only the operation of licensed sites is a reserved matter.

Our colleagues in the Scottish Executive find the arrangements acceptable. Clause 9 has been the subject of extensive discussion with the Executive to ensure that it properly reflects the devolved responsibilities of Scottish Ministers and the Scottish Parliament. Scottish Ministers are consulted, but that does not amount to a right to veto, although the process allows for the concerns of Scottish Ministers to be taken into account.

Scottish Ministers will have powers of joint decision and approval when the activities of the NDA relate to a devolved matter. If the activity relates to a devolved but also reserved matter, such as the non-processing, treatment and storage of radioactive waste on licensed or Crown sites, Scottish Ministers will have a right to be consulted. They will also be consulted on appointments by the Secretary of State to the NDA under clause 5.

The Bill reflects discussions between the UK Government and the Scottish Executive on the appropriate level of involvement of Scottish Ministers. The complicated nature of the provisions results from the way in which the various responsibilities of the NDA will be handled under the devolved settlement. In principle, sites that are licensable under the Nuclear Installations Act 1965 and Crown sites are reserved. Environmental protection and the regulation of the disposal of radioactive waste are, in principle, devolved.

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

I am listening to the Under-Secretary extremely carefully, but I am becoming more confused. I fear that an action will be brought against one of the decisions taken under the clause. Have the Department or the Under-Secretary thought about

which jurisdiction would hear the case? He talks of not wanting regulation and scrutiny of directions to hold up matters in the House, but a court case would take substantially longer than getting it right in Committee.

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

I am advised that if the hypothetical became reality and there were to be such a court case, the dialogue between the Scottish and English courts would ensure that the authority with jurisdiction over the matter would respond robustly. There is a good dialogue between the legal authorities of the Scottish Executive and those in Whitehall. I am advised that this issue, which hon. Members have rightly highlighted, is not the problem they believe it to be.

Question put and agreed to.

Clause 9 ordered to stand part of the Bill.