Clause 102 - Agreement about modifying decommissioning programme

Part of Energy Bill [Lords] – in a Public Bill Committee at 10:30 am on 21st June 2011.

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Photo of Alan Whitehead Alan Whitehead Labour, Southampton, Test 10:30 am, 21st June 2011

I make it clear from the outset that the amendment is about nuclear decommissioning and the process under which that is undertaken, not about whether we should have nuclear power in the first place. It relates to what should be decided, when a licence agreement is made, about the decommissioning programme, particularly concerning the subsequent 60 or 100 years, or perhaps more.

The amendment would return us to the position, with some modifications, in the Energy Act 2008 in relation to the Secretary of State’s power to intervene. That Act essentially provided for nuclear site licence holders to submit a funded decommissioning programme, for that to be approved and modified by the Secretary of State and for future modifications to be accommodated should new circumstances arise. Under section 48, if new circumstances arise, proposals to modify the decommissioning agreement and programme may be made by either the Secretary of State or the operator, but the Secretary of State has a power not only to make the final decision on approving a modified programme, but to act unilaterally should unforeseen circumstances arise.

My understanding is that the clause conflates that process. The Secretary of State would decide whether he may subsequently modify a programme, whether he may give notice that someone can modify it, or whether he may take no action at all to modify it at the time the programme is agreed and the licence issued. In pursuit of attempting to modify the Secretary of State’s ability to act unilaterally should unforeseen circumstances arise, the clause effectively appears to give him no ability to act in such circumstances, or to act only should there be agreement on both sides that something different needs to be done.

The process might stretch over many decades. Many hon. Members share my view that it would be a considerable feat of clairvoyance if, at the point at which a licence was issued, the Secretary of State could imagine all the circumstances relating to a possible modification. He must operate at that level of clairvoyance, however; otherwise his options to act properly on behalf of the taxpayer and in the country’s interests might be fettered as a result of the clause. They might also be fettered in the unusual situation of a nuclear operator acting unreasonably in unforeseen circumstances in a decommissioning programme.

Although the 2008 Act sets out a number of circumstances in which a decommissioning programme can change by agreement, and those are implicit in the clause, or additional programme expenses can be built into a modified programme as it goes forward, unforeseen circumstances and balance of reason in making decisions do not appear to be taken into account in the clause. I therefore very much welcome the Minister’s statement about withdrawing it. I hope that he will introduce a new clause that, while providing as much certainty for both sides as is possible about decommissioning programmes, takes unforeseen circumstances into account and gives the Secretary of State power to deal with them, provided that such a power is used reasonably.