Power to amend legislation relating to nuclear safeguards

Nuclear Safeguards Bill – in a Public Bill Committee at 10:30 am on 14th November 2017.

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Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy) 10:30 am, 14th November 2017

I beg to move amendment 5, in clause 2, page 4, line 8, leave out

“may by regulations amend any of” and insert

“must by regulations amend relevant provisions of”.

This amendment would require, rather than enable, the Secretary of State to make regulations in consequence of a relevant safeguards agreement.

Photo of James Gray James Gray Conservative, North Wiltshire

With this it will be convenient to discuss amendment 6, in clause 2, page 4, line 13, at end insert—

“(1A) The Secretary of State may only exercise powers under this section at the point at which amendment of any of the legislation in subsection (1) becomes necessary in order to complete the process of transposition of responsibility for nuclear safeguarding from EURATOM to the Office for Nuclear Regulation, and for no other purpose.

(1B) Upon exercising the power set out in subsection (1) the Secretary of State shall report its operation by means of a report laid before both Houses of Parliament.”

This amendment limits circumstances under which the Secretary of State may exercise certain powers in this section and requires a report to be laid before Parliament.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

This proposal is serious and requires substantial discussion in Committee. Amendments 5 and 6 address a particularly egregious part of the Bill: clause 2, which provides the power to amend legislation relating to nuclear safeguards.

As I am sure hon. Members are aware, the clause suggests that we amend not only secondary legislation relating to nuclear safeguards but a series of other pieces of legislation: the Nuclear Safeguards and Electricity (Finance) Act 1978, the Nuclear Safeguards Act 2000 and the Nuclear Safeguards (Notification) Regulations 2004. Two of those are pieces of primary legislation that have gone through the whole parliamentary procedure on the Floor of the House, received Royal Assent and become legislation. The clause suggests that those pieces of legislation should not only be amended by regulation but be amended on the basis of discussions about an agreement with the IAEA that we know nothing about at the moment and have not agreed.

One might think that these are not Henry VIII clauses but Henry IX clauses. I think there was a Henry IX in France, so it is possible to make that point without too much interruption in history. These powers are very substantial and exceptional and, to my mind, run wholly counter to what we should be doing in the House as far as legislation is concerned.

I will come to what the Government have to say about the particular circumstances in a moment. Henry VIII powers were obviously used substantially during the reign of Henry VIII, but subsequently have not been used quite so frequently. Although they have been used a little more frequently in recent years, the idea that the Executive—by Executive action, effectively—can overturn, amend or take in a different direction what Parliament has decided through legislation is something the House has fought against for many years. When such powers have been sought in the past, they have been in some instances successfully challenged, and on many occasions strongly challenged on both sides of the House.

We want to make an initial statement of principle that the Opposition do not like Henry VIII clauses. We think they are an overturning of the sovereignty of Parliament in dealing with these issues and that they give powers to the Executive that are unwarranted on virtually all occasions. A piece of legislation should be written in this form only in a dire emergency, where a calamity will befall the nation if that action is not taken. In all other circumstances, the idea is that legislation should properly appear before Parliament to be debated. If it is legislation replacing or substantially amending primary legislation, that process should be one of primary legislation as well.

In this instance, what might be envisaged as far as primary legislation is concerned would not detain the House forever or be particularly complex or difficult to achieve. Yesterday in the Chamber, we saw how it is possible to take a Bill through in an afternoon. Where changes are made with a consensus in the House, the procedure is pretty rapid, straightforward and achievable. Why can that procedure not be adopted for these pieces of legislation? Is it because there is a national emergency or the sky will fall in if we do not make the amendments? Is it because it has not been possible to find parliamentary time to undertake what would be neat and precise Bills to make the amendments? Indeed, on the basis of what has previously been achieved, would not a brief piece of primary legislation on the Floor of the House have agreement from all parts of the House?

I am not persuaded, nor do I think I will be persuaded easily, that that is not possible in these circumstances. The clause as drafted is therefore not something that has to be done, but something the Government have chosen to do in support of their legislation. It may well be that the Minister will say, “Yes, we have chosen to do this because, as far as we are concerned, these things have to be done.” As far as previous legislation is concerned—let me find a copy of the document that I just gave to the Clerks.

The Department’s delegated powers document on legislation, to which I have referred, states at paragraph 78:

“It is essential that the specified safeguards legislation is amended to make correct reference to the new agreements that the UK envisages concluding with the IAEA”.

Furthermore, paragraph 79 states:

“Without amendment, the existing provisions will become ineffective”.

The Henry VIII clause emergency is simply that any legislation that has not been amended after an IAEA agreement has been decided—we would enter a different arrangement from the one we had with Euratom—would render the new procedure ineffective. The relevant Acts therefore need to be changed. However, that is not the case with secondary legislation; it is only the case with those Acts, which I think we can all agree need to be amended. Of course, when all those proceedings have concluded, legislation will need to be in line with new procedures elsewhere on the statute book. That is not an issue at all. The issue is whether, in order to bring those bits of legislation in line with whatever we have agreed, we effectively declare a national emergency and say that we have to adopt Henry VIII clauses to do it. That is quite wrong, both for this piece of legislation and indeed for most other pieces of legislation that try to include those Henry VIII clauses.

It is the case not only that those amendments need to be made in order to make the new regime effective, as the Government set out in that document, but, as the document says, that the amendments are necessary for the whole thing to become operational. We would like to simply strike it out and to say, “You should not do it in this way at all,” but that might be seen as wrecking the Bill, because a lot of other material would have to be written in in order to fully strike it out. For the moment—although it may not be the case as the Bill progresses—in the absence of what we think should be the proper procedure with this piece of legislation, we will content ourselves with doing two things to the clause that do not strike it out but amend it very substantially, so that it comes back at least to some extent for parliamentary consideration.

We are suggesting those two things in the amendments. First, the Minister is empowered by the clause to change those Acts by regulations. It states that he

“may by regulations amend any of the following”.

As we have previously alluded to, the emphasis is on the fact that the Secretary of State “may” amend by regulations. For the transposition of agreements to ONR and the signing of the new agreement with IAEA, it is clear from the Government’s own documentation that it is not the case that the Secretary of State may amend, but that he must do so. If he does not amend by regulation, the whole thing does not work. Although I accept the parliamentary convention that a power given to a Secretary of State saying that they “may” do things by regulation means, under most circumstances, that they should do something, that is not what the Bill says.

I suggest that we are in new times. The convention that the Secretary of State may do something by regulation is normally related to something that they may do to change something, and they would have power in a piece of legislation to make those changes by regulation. If the Secretary of State did not make those changes, the previous regulations would apply and the status quo ante would continue. As I have previously mentioned, under no circumstances does the sky fall down; the world carries on and previous regulations continue to exist, although perhaps they are not as great as they might be. Regulations may have not been introduced to change things, but there are lots of instances in Acts where regulations that could be introduced have not been, but business proceeds. In this instance, business would not proceed. The departmental memorandum makes it clear not only that business would not proceed but that it could not proceed unless the Secretary of State did something to change those pieces of legislation under the terms of this Bill, to make them compatible with the new set of circumstances.

The amendment changes the word “may” to “must”, and it makes it clear that the Secretary of State must make those changes. That seems to be entirely logical and consistent with what the Department has said about the necessity of making those changes and it submitted that necessity to the regulations committee.

Changing the word “may” to “must” does not automatically bring something fully into the purview of Parliament, so we have tabled amendment 6, which requires the Secretary of State, when he has done his duty when amending regulations, to place a report before Parliament that will be debatable under a motion. Parliament can see what the Secretary of State has done when amending those pieces of legislation, and can give its opinion on whether they are good enough to do the job that they are supposed to do. Parliament would then have oversight, to see whether the changes work once the Secretary of State has done what he should with those regulations.

My view is that that is probably not good enough. There are still Henry VIII clauses in the first instance, but at least the amendment goes some way towards ameliorating the unacceptable way in which those clauses work at present. To my mind, that is the very minimum that the Minister ought to accept as a change in the arrangements. If he cannot accept those changes, we will want to pursue the matter quite a long way further.

Photo of Drew Hendry Drew Hendry Shadow SNP Spokesperson (Business, Energy and Industrial Strategy) 10:45 am, 14th November 2017

I will make a few short comments to indicate Scottish National party support for the amendment. The shadow Minister referred to our being in new times; indeed, we are in uncharted territory. The SNP has great concerns about the possible use of Executive powers, particularly the prospect of a lack of scrutiny. Let us consider how the decision to leave Euratom came about: representatives found out about the decisions via a bit of small print in the Bill. That does not give the Government a good track record in how transparent they are willing to be. No warning was provided and no indication was given of the impact. Frankly, there was a blatant lack of transparency.

We call on the UK Government to ensure that future decisions are taken in a transparent and consultative way and in an inclusive manner. At the moment, the set-up does not give anyone reassurance that that will happen, so we support the amendment.

Photo of Richard Harrington Richard Harrington Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy)

I have been very interested in our tour around Henry VIII and the French royal family and its possible member, Henry IX, which you did not rule outside the scope of discussions, Mr Gray, but you are entitled to use your judgment. However, neither Henry VIII nor Henry IX had to come up with a nuclear safeguards regime; I wonder what would have happened if they had.

In all seriousness—[Interruption.] The hon. Member for Southampton, Test is on great, humorous form, as well as making serious points, which I will try to answer, I hope, in a suitably serious manner. The fundamental difference between us, forgetting the “may” and “must” difference for the moment—we will come on to that—is about the actual powers and why we need them. I find the Henry VIII expression a bit misleading—not that the hon. Member for Southampton, Test is trying to mislead the House—given the way it is always referred to in the press and so on. We are talking about very limited non-primary legislation here.

Changing minor references, whether saying that that calls for Henry VIII powers or not, would not be a good use of parliamentary time, given that Governments have to govern and Parliament must in some way ration its time so that it can deal with the fundamental matters that it has to deal with. I know the Opposition’s view generally on Henry VIII powers, but I think there should be some leeway within that for what genuinely needs to be delegated, and which is comparatively minor in nature, so that we can act quickly. I am sure the hon. Gentleman and the Opposition Front Bench recognise that in practice. Sometimes principle is a great thing in life, but it has to be adapted pragmatically to deal with circumstances. I will park that for the moment.

As it stands, clause 2 will create a limited power, enabling regulations to amend the Nuclear Safeguards and Electricity (Finance) Act 1978, the Nuclear Safeguards Act 2000 and the Nuclear Safeguards (Notification) Regulations 2004. It will be a narrow power to amend references in those laws to provisions of the existing agreements with the IAEA. Those references enable the IAEA to carry out its activities in the UK, including, importantly, by providing legal cover for the UK activities of its inspectors. The references and the legal cover they have will need to be updated after the new agreements have been concluded with the IAEA; it cannot be done before.

At present, our nuclear safeguards regime complies with international safeguards and non-proliferation standards agreed between the three parties—ourselves, Euratom and the IAEA. The UK applies those standards primarily through its membership of Euratom. They are set out in two tripartite safeguards agreements between the UK, the IAEA and Euratom: the voluntary offer agreement and the additional protocol. At the moment, they rely on the UK’s membership of Euratom. Following our withdrawal from the European Union and Euratom, these agreements will become ineffective. That is why the Bill has to ensure that a domestic civil nuclear safeguards regime is put in place. The UK will need to conclude new agreements with the IAEA to detail the international safeguards and nuclear non-proliferation standards with which the UK agrees to comply. Without those, no regime we could have will be recognised by the international community.

Amendment 5, as tabled and eloquently articulated by the hon. Member for Southampton, Test, intends to require—rather than enable—the Secretary of State to make regulations under clause 2. I welcome the Opposition’s change of position on clause 2 since Second Reading. Amendment 5 clearly recognises the need to have the power in clause 2 to ensure the necessary legislative amendments are made in time to give effect to the new IAEA agreements, and to therefore ensure that the UK has a civil nuclear safeguards regime that gives effect to international standards on the UK’s withdrawal from the Euratom treaty.

However, making the Secretary of State’s power in clause 2 mandatory does not provide any additional value. Following the negotiation of the new agreements, the references to the old agreements in the legislation mentioned in this power automatically become ineffective —they will not work. The inspection of UK facilities by IAEA inspectors is a vital part of our agreement with the IAEA. It is not in anyone’s interest to fail to make the necessary consequential amendments to existing safeguards once new agreements with the IAEA are agreed. Requiring the exercise of the power in the Bill is therefore unnecessary.

I want to assure hon. Members that we are currently negotiating new agreements with the IAEA on the same principles as the existing agreements and that the consequential changes are expected to be minor. That will ensure that the IAEA retains its right to inspect all civil nuclear facilities and continues to receive all current safeguards reporting, ensuring that international verification of our safeguards activity continues to be robust.

The Government have emphasised their continued commitment to the IAEA and to international standards for safeguards and nuclear non-proliferation. It is our aim to maintain our reputation as a responsible nuclear state. That is why we have begun formal discussions to conclude the new bilateral safeguards agreements. The discussions, which have been under way since September, are constructive. I hope that that reassures hon. Members that the Secretary of State will exercise the power in clause 2 as soon as it becomes necessary.

Amendment 6 is intended to limit the circumstances under which the Secretary of State may exercise the powers in clause 2, and requires a report to be laid before both Houses of Parliament on the exercise of the power. I welcome the sentiment of proposed new subsection (1A), because it acknowledges that a power of this nature is necessary and appropriate in the circumstances. However, the exercise of the power in clause 2 is already very narrowly cast to allow changes to be made in consequence of the new bilateral agreements with the IAEA which, as I have explained, will be negotiated to replace the existing trilateral agreements. It is not necessary to make the change set out in proposed new subsection (1A).

Similarly, although we understand the intent of the proposed new subsection (1B) to allow both Houses of Parliament to scrutinise the use of the powers through a report laid before Parliament, it is unnecessary since the draft regulations under clause 2 must already be laid before both Houses for scrutiny.

I welcome the constructive interventions from the hon. Members for Southampton, Test and for Inverness, Nairn, Badenoch and Strathspey in acknowledging that a power of this nature is necessary and appropriate in the circumstances. However, I hope that the hon. Member for Southampton, Test will not press the amendments to a vote.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy) 11:00 am, 14th November 2017

I am disappointed by the Minister’s response to the amendments this morning. He is right to point out that they in some ways represent what might be construed as a little bit of a change, perhaps a mellowing, from our position on Second Reading on the Floor of the House. It is not that we have changed our positions on Henry VIII clauses, but that addressing what is in the Bill is the important thing to do in Committee. We need to decide whether to amend it rather than try to chuck the whole thing out. That is the difference in our discussion this morning. I thought the amendments were constructive.

Although the Minister has mentioned that Government changes to these pieces of legislation would have to be reported to Parliament, that is a very different procedure from the procedure being suggested this morning.

Photo of Drew Hendry Drew Hendry Shadow SNP Spokesperson (Business, Energy and Industrial Strategy)

The Minister himself has said that principles sometimes have to be adjusted pragmatically. The problem is that the Minister cannot tell us at the moment which principles and for whom they would have to be pragmatically adjusted.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

The hon. Gentleman is absolutely right because we are in the dark as far as what is going to come out and the IAEA are concerned. We think that an agreement will be reached and that there will be a new voluntary treaty arrangement. We think that when that new arrangement has been reached, it will be suitable for the purposes for which we have made all these legislative changes. Indeed, the legislative changes will be scrutinised effectively by the IAEA before that treaty can come about. The IAEA wants to be sure that we have put a regime in place that does the job in changing the relationship of this country as far as nuclear safeguarding is concerned from Euratom to ONR.

Photo of Richard Harrington Richard Harrington Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy)

Does the hon. Gentleman agree—and I am also trying to answer the Scottish National party’s spokesman about the principle and the way it might be changed—in practical terms, forgetting principle for the moment, that we cannot be sure exactly when the agreements with the IAEA will be finalised? Certainly, it is in our gift but it is also with the IAEA. We may well be under great time pressure to make sure that the new inspectors—who might even be the same inspectors—have the legal cover to maintain the safeguards we all want. There are times when some things have to be delegated and moved very quickly to deal with an expediency. I felt that was an example.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

I appreciate what the Minister says, but that does not knock away the fundamental principle that, except under very exceptional circumstances of national emergency, things that amend primary legislation by secondary legislation should not be before this House. Essentially, the Minister has summed up the case from his point of view that he thinks this is essential. It is just that there could be some time constraints.

Photo of Drew Hendry Drew Hendry Shadow SNP Spokesperson (Business, Energy and Industrial Strategy)

On time constraints, as the Minister has just said, is it not the fact that when Governments have to act in haste, it is even more important to have the scrutiny of the decision they are taking?

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

The hon. Gentleman is absolutely right. I accept that in cases of dire emergency, where the enemy is about to invade or some such, action needs to be taken that may not necessarily carry out the full intent of the parliamentary procedure. We are not in that position. As the Minister has said—he put it very well—there could be time constraints, that’s all. The limited time available for us to get this done could be problematic.

Photo of Richard Harrington Richard Harrington Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy)

I do not want to be dramatic, but not having a nuclear safeguards regime because of the lack of an inspector’s legal power to inspect, as far as we are concerned, would be pretty much a national emergency.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

Indeed, the Minister is right, in principle. That may be something we might address with one of the amendments we may discuss this afternoon.

The fact of the matter is that putting something in this legislation simply because it might be a little inconvenient to have it any other way, given time constraints, is not a justification for using Henry VIII clauses. As I have mentioned, it is not beyond the wit of Government under those circumstances to introduce primary legislation that can be carried through this House very quickly indeed. If the Minister is so concerned about time constraints, he should also understand that other people will be concerned about time constraints as well and would be willing to make sure that that kind of legislation went through speedily.

This morning, he is giving assurances that this will all be done in the proper way and that it will be okay. We can give assurances on the other side that yes, if he did it in a proper way, we would make sure that this was done properly. Those assurances are of about equal weight. He simply has not made the case that the arrangements are necessary for the purpose of translating all the stuff in question into UK law. I remind the Committee that the Department, setting out the context and purpose of the clauses, has emphasised that it is necessary to take the action in question, but there is no mention in the document of the necessity to do it in time that is not otherwise available to Parliament. The document does not make that argument.

Because we have tried to be so reasonable and careful in our approach, but have not received anything coming the other way—

Photo of Richard Harrington Richard Harrington Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy)

I remind the Committee that the changes under the Henry VIII power are about changing references to specific articles in the existing legislation. They are not changes to substance or principle.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

Indeed, which is why it would be easy to take a new Bill through the House, to make that evident with respect to the relevant provisions. Everyone would agree that that Bill should move through the House quickly. I think I could get an absolute assurance of that from the Opposition. For that reason, it is not necessary to cast the measure in its present form.

Photo of Richard Harrington Richard Harrington Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy)

Is the hon. Gentleman saying that he would rather there was a brief period with no safeguards regime because there were no inspectors with the legal cover to inspect, so that the Bill could be brought through the House under an emergency procedure?

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

No. I should rather that the Government organised their business so that it could be done properly in the time available, and that we could then carry out proper parliamentary procedure, to make sure that the power of Parliament was behind whatever was agreed.

Photo of Richard Harrington Richard Harrington Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy)

But the hon. Gentleman would accept that, as it takes two to tango, a lot depends on timing with the IAEA, which is another organisation.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

Yes, indeed. The Minister is straying slightly, I think, into concerns that we may well address this afternoon: it is true that there are time constraints, and there are ways to sort that out.

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

My hon. Friend is right to underline the importance of the point. I am sure that he, like me, would accept the Minister’s point about urgency in good faith, but is not there a problem in that the provision could apply to a range of issues? It is central to the Government’s argument about Henry VIII powers in general—

Photo of James Gray James Gray Conservative, North Wiltshire

Order. That is going well beyond the scope of the Bill. Mr Whitehead is, I think, about to wind up.

Photo of James Gray James Gray Conservative, North Wiltshire

No, he does not; he makes an entirely out-of-order point.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

I could have said, Mr Gray, that he makes an entirely out-of-order but nevertheless strong point.

The bottom line is that we have not received this morning the assurances that we hoped we might, about the circumstances in which we could move ahead with the amendments, rather than simply sitting on our hands and demanding that the Henry VIII clauses be struck out. Therefore I think we are going to have to divide the Committee on both amendments this morning. I hope that we can proceed to do that.

Question put, That the amendment be made.

The Committee divided:

Ayes 8, Noes 10.

Division number 1 Seasonal Working — Power to amend legislation relating to nuclear safeguards

Aye: 8 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendment proposed: 6, in clause 2, page 4, line 13, at end insert—

“(1A) The Secretary of State may only exercise powers under this section at the point at which amendment of any of the legislation in subsection (1) becomes necessary in order to complete the process of transposition of responsibility for nuclear safeguarding from EURATOM to the Office for Nuclear Regulation, and for no other purpose.

(1B) Upon exercising the power set out in subsection (1) the Secretary of State shall report its operation by means of a report laid before both Houses of Parliament.”—

This amendment limits circumstances under which the Secretary of State may exercise certain powers in this section and requires a report to be laid before Parliament.

Question put, That the amendment be made.

The Committee divided:

Ayes 8, Noes 10.

Division number 2 Seasonal Working — Power to amend legislation relating to nuclear safeguards

Aye: 8 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Clause 2 ordered to stand part of the Bill.

Clause 3 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Rebecca Harris.)

Adjourned till this day at Two o’clock.