Minor and consequential amendments

Nuclear Safeguards Bill – in a Public Bill Committee at 9:25 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) 9:25 am, 14th November 2017

I beg to move amendment 9, in schedule, page 6, line 37, leave out subparagraph (2)(a).

This amendment, together with 10 and 11, would change the Parliamentary procedure for regulations made under Clause 1 to come into force. Currently regulations under this section are only subject to the affirmative procedure on first use. This amendment would ensure this is the case upon every use.

Photo of James Gray James Gray Conservative, North Wiltshire

With this it will be convenient to discuss the following:

Amendment 10, in schedule, page 7, line 3, at beginning insert—

“(zaa) nuclear safeguards regulations under section 76A(1)”.

This amendment, together with amendments 9 and 11, would change the Parliamentary procedure for regulations made under Clause 1 to come into force. Currently regulations under this section are only subject to the affirmative procedure on first use. This amendment would ensure this is the case upon every use.

Amendment 11, in schedule, page 7, line 6, leave out subparagraph (3).

This amendment, together with amendments 9 and 10, would change the Parliamentary procedure for regulations made under Clause 1 to come into force. Currently regulations under this section are only subject to the affirmative procedure on first use. This amendment would ensure this is the case upon every use.

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)

If I do have a bag on me this morning, it is very well secreted. You would expect nothing less, Mr Gray.

These amendments are essentially combined amendments, inasmuch as their effect—although it is achieved in slightly different ways—is to ensure that the regulations are made effective by the affirmative procedure on all occasions, so that they can be discussed. At the moment, through various measures in the Bill, regulations will be agreed by the affirmative procedure in the first instance only. Should further regulations be introduced, they will not be agreed by the affirmative procedure.

Hon. Members may think that is not a particularly important distinction. The “Memorandum concerning the Delegated Powers in the Nuclear Safeguards Bill for the Delegated Powers and Regulatory Reform Committee” —the departmental memo—says:

“The first set of regulations made under this power will be subject to the draft affirmative procedure in order to allow both Houses of Parliament to debate the technical details of the new regime in full.”

In other words, new regulations will be introduced to bring into being a new regime, as we recall from our previous discussions in this Committee, to replace that which was previously undertaken through Euratom’s oversight.

“Subsequent regulations will be subject to the negative resolution procedure unless they create new criminal offences or they include any provision amending or repealing the Nuclear Installations Act 1965 or Nuclear Safeguards Act 2000, in which case the draft affirmative procedure will apply (pursuant to section 113(3) of the 2013 Act).”

That is so. There is an exception to using the negative procedure for subsequent regulations in those instances, but the impression that one gets from the memorandum is that the difference, other than on the matter of repealing the Nuclear Installations Act 1965 or the Nuclear Safeguards Act 2000, is very slight.

I suggest to the Committee that the significance of subsequent regulations can be considerable, inasmuch as they are new regulations that will replace Euratom’s regulations, and will not necessarily be fully formed in the first instance. As far as I can see, it is not the case that they are likely to be minor tidy-ups that are of no consequence and therefore can safely be provided for under negative resolution.

Indeed, the memorandum goes on to say that not only is the negative resolution procedure considered appropriate for future amendments as far as the new set of regulations is concerned, but in the case of power to make regulations or authorise the Office for Nuclear Regulation to make the payments towards compliance costs:

“The Department believes that the negative resolution procedure is considered appropriate, as the regulations will only authorise expenditure, but the negative procedure will still ensure Parliament has oversight.”

We need to consider two things: first, whether the subsequent amendments that are likely to arise to the new regulations are of such insignificance that it is safe to place into legislation that they will be discussed in the House through the negative procedure. Secondly, we need to consider whether the use of negative procedure for the future regulation ensures that Parliament has oversight of the procedures.

It might be worth considering what one has to do to get oversight of a negative resolution for a piece of secondary legislation in this House. Hon. Members know that the procedure through which a negative resolution is laid is that the Government lay the resolution, and that everyone has 21 days—I believe that is the case—to draw attention or object to that negative resolution, or require that it be debated further. If there is no such objection, the negative resolution is automatically assumed to have been put in place with no oversight at all.

If there is, however, an objection, it remains extremely difficult to get that resolution, further amendment or new secondary legislation in a position where it can be meaningfully scrutinised. One way of doing that is for those people who want to raise the issue to make a prayer to annul the secondary legislation—the negative resolution. That would be done by laying down that prayer as an early-day motion and by trying to gather a number of signatures on it, as in the case of any other early-day motion; except, of course, it is not an early-day motion but a procedure to try to hoist that negative resolution on to the Floor of the House in some way.

It is remarkable that if a prayer is laid down, there is no guarantee that anything will happen as far as that prayer is concerned. The House needs to review that in the not too distant future. It is down to the Government to decide whether a day should be given to debate that negative resolution, as if it were an affirmative resolution, in Committee. In those circumstances, the most that would happen is that the Government may or may not agree that time should be made available. At that point, a non-amendable motion would be debated for 90 minutes in Committee. However, it is by no means the case that time would be given, and even if time was given, that would certainly not make any difference to the laying of the negative resolution. It is quite possible for time to be given for a debate after the negative resolution comes into force. Then, even if that negative resolution is passed, it is effectively only an advisory resolution as far as this particular piece of legislation is concerned; it does not overturn it in its own right and it would require further procedures on the Floor of the House, at the end of a debate, to try to get the negative resolution overturned.

What I think is clear from that little exposition of how negative resolutions can be addressed by this House is that the idea that a negative procedure will ensure that Parliament still has oversight is rather wide of the mark, regarding the reality of what one would be faced with if a negative resolution was to be laid.

As for the content of a negative resolution, as I have said, it is by no means clear that, in this instance and as far as this Bill is concerned, after the first set of regulations has been made, for which an affirmative resolution must be laid, any subsequent secondary legislation will only make small technical amendments to the regulations. Indeed, it is not possible to guarantee, in order to sustain the case that the negative procedure should be applicable after the first time, that there will only be small technical amendments to those regulations.

The reason is that, as I have said and as has been mentioned both in this Committee and in evidence given to this Committee, the Bill is not only a contingent Bill but is a Bill, when it becomes operational, whose safeguarding regime would not be everything that we want it to be. It might be fit for purpose basically, but as both the Minister and witnesses have indicated, the regulations and their operation on day one after exit day would be by no means the finished article.

Although it would be possible to accord to, for example, the voluntary agreement arrangements with the International Atomic Energy Agency—one would hope that is possible—one could reasonably envisage further significant regulations being introduced to bolster the regime that had been passed for duty, as it were, on day one after exit day.

Therefore, in this particular instance it is really not possible to state with certainty that, after the first regulations have been laid, nothing significant will come down the road under the general heading of “regulations”. It appears to me that on both those grounds it is difficult to make a case saying, “Don’t worry. Everything’s okay. Nothing to look at. Move along,” which appears to be what is happening.

First, I would particularly like to hear from the Minister whether he thinks, and can really say, that the secondary regime after regulations have been made will be one of a merely technical nature in perpetuity. Secondly, does he think that the negative procedure will give the House a sufficient level of scrutiny and leverage about the nature of subsequent regulations, as the memorandum appears to suggest? I will be interested to hear how that argument proceeds, but at the moment I am not convinced that it has great substance. I therefore hope that the Committee will consider these amendments to put that right, so that the affirmative procedure is not just required for the initial regulations but is guaranteed for future regulations that are introduced under the heading of the general subject matter of the first regulations.

Photo of Dan Carden Dan Carden Labour, Liverpool, Walton 9:30 am, 14th November 2017

With the affirmative procedure, it is not as if we have any great scrutiny power, but it at least allows us to have a debate in a Committee Room such as this. Has my hon. Friend had any indication that the Minister is opposed to debates about future regulations relating to nuclear safeguards?

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)

My hon. Friend makes an important point: the affirmative procedure is actually fairly limited. What we discuss in Committee is unamendable and our scrutiny is often pretty perfunctory. Nevertheless, it at least guarantees that something will be brought to somewhere in Parliament, and the opportunity to discuss it is not dependent on the Government’s largesse. It is at least a minimal protection, as far as Parliament is concerned, and it guarantees that something will be brought to the Floor of the House. Importantly, the negative procedure does not do that.

I hope the Minister will reflect on the fact that, because we are introducing such a wide-ranging enabling Bill, it is important that the regulations have proper scrutiny subsequently. We must not simply sign a blank cheque for the future and allow anyone making the regulations to do what they want. It is an important principle in this House that we do not do that under anything but the most minimal circumstances, and in this instance I suggest that those minimal circumstances do not exist.

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

Good morning, everybody. I thank the hon. Member for Southampton, Test for his contribution relating to amendments 9, 10 and 11. I have spent quite a lot of time thinking about them and about how practical his suggestion is.

I apologise to the hon. Gentleman and the Committee as I do not have the draft regulations for the Committee. We discussed them the week before last, but I was eager to secure this slot so that the Bill could progress. Discussions with the Office for Nuclear Regulation are well advanced, and I hope that, before we discuss the Bill further—definitely by January—they will be published for all hon. Members and a wider audience to see. They are not secret regulations or anything particularly devious. It is simply because of the logistics of organising them along with the Bill that we have not published them in time.

I should set out this provision in the same way as the hon. Gentleman did. Clause 1(2) creates new powers to enable the Secretary of State to make regulations for the purpose of ensuring that qualifying nuclear material, facilities or equipment are available only for the use for civil activities. To do that, clause 1(2) inserts new section 76A into the Energy Act 2013. Section 76A provides the Secretary of State with new regulation-making powers relating to nuclear safeguards. The regulations will set out the detail of the domestic regime for civil nuclear safeguards.

It is appropriate to make provision for a nuclear safeguards regime in delegated legislation, simply because the subject matter is highly technical and the substantive provisions necessary to give effect to the regime will be very detailed. That is why we believe that it has to be in secondary legislation.

New section 76A(2) sets out examples of the safeguards obligations that can be imposed through the nuclear safeguards regulations. These could be in relation to record keeping, accounting, the provisional publication of information, imports and exports, the design of qualifying nuclear facilities or equipment, and the production, processing, use, handling, storage or disposal of qualifying nuclear material or equipment.

The regulations will cover the detailed aspects of the safeguards regime. At the heart of that are the technical provisions governing how nuclear materials are accounted for and how they are reported. For example, the existing nuclear safeguards regime defines “material balance areas”, which is a core concept in international safeguards methodology for accounting for nuclear materials. Another example is safeguards equipment that can be installed on licensed sites such as surveillance cameras, seals and remote monitoring equipment, used to support safeguards activities by detecting declared and undeclared nuclear material and activities. That is fairly non-controversial stuff, but the regulations need to go into detail and those are just two examples.

The proposed use of delegated powers goes with the grain of the rest of the Energy Act 2013 and how it deals with highly technical, complex and detailed areas such as nuclear security, which is also regulated by the ONR. That fits with the rest of the Bill and the rest of the supervision of powers within ONR regulations.

We all accept that the consequences of failing to put in place such a safeguards regime would be profound. We have all repeated that quite a few times, so I will just say that there is consensus. I have to make sure that the powers in the Bill allow the UK to comply with any international safeguards commitments or undertakings that we make with the International Atomic Energy Agency or with other states. Empowering the Government and the Office for Nuclear Regulation quickly and effectively to adapt to the changing nuclear regulatory landscape is essential as nuclear technologies and proliferation techniques develop; if we are to continue to be able to support the international community; and as believers in non-proliferation and safeguards activities.

I will briefly, but importantly I hope, come on to the point on parliamentary scrutiny procedure. The amendments proposed by the hon. Gentleman would change parliamentary procedure for regulations made under clause 1. As the Bill is drafted, the first set of regulations made under this power will be subject to the affirmative procedure, as he said, to allow both Houses of Parliament to debate in full the technical details of the new regime. I politely disagree with the hon. Gentleman, because I feel that that means full debate in the affirmative procedure.

We think, for very good reason, that subsequent regulations will be subject to a negative resolution procedure. He eloquently went through the system for praying, which I did not understand in my first few years in this House, although I am sure that you, Mr Gray, and other colleagues did. I now understand it fully, but at first when people told me that they were praying on a particular subject I thought that may have been to do with hunting or indeed some form of religious observance. I now understand that it is one of the great traditions of this House. For us, the important thing is the initial affirmative procedure.

I would like to state clearly that the draft affirmative procedure will continue to apply where subsequent regulations create new criminal offences or, very importantly, where they include any provision amending or repealing the Nuclear Installations Act 1965 or the Nuclear Safeguards Act 2000. We believe that it is appropriate to have an initial draft affirmative procedure for the first set of regulations because of the breadth of the measures initially needed to establish the regime and the potential significance of the regulations that will set out in detail the key elements of the regime. That is our point of difference, because I would argue that once the nuclear safeguards regime has been established by the first regulations, the subsequent changes are likely to be technical and smaller, reflecting developments in safeguards technologies and processes. There are many precedents for this approach in relation to nuclear regulations, and precedents that permit subordinate legislation to be made subject to the negative resolution procedure. In particular, the proposed approach to scrutiny is consistent with the scrutiny of nuclear regulations under section 74 of the Energy Act 2013, as set out in section 113(2)(a) and (3). That power can be used to make provision on four important areas of nuclear regulation: nuclear safety; nuclear security; the transport of nuclear materials; and, until replaced by the power in the Bill under discussion today, nuclear safeguards. After my explanation, I hope that the hon. Members feel able to withdraw their amendments.

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) 9:45 am, 14th November 2017

I am not sure that we are able to withdraw them. The Minister has helpfully set out the line of thinking behind putting in place affirmative procedure the first time round, and negative procedure subsequently, but he has not departed in any way from the memorandum that was set out in the first instance, from which I quoted this morning. Therefore, no reassurance has been given that the Opposition have wrongly interpreted particular procedures, or that the regulations that the Minister has talked about really will be of the very minor nature that he suggested. He has not addressed that point at all.

Photo of Alex Norris Alex Norris Labour/Co-operative, Nottingham North

Having listened to the discussion on affirmative procedure, does my hon. Friend agree that it is not inevitable—indeed, given the complications, it is quite unlikely—that every subsequent decision would be merely technical, and could be safely dealt with under negative 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)

My hon. Friend is absolutely right. That is underlined by the fact that, as has been alluded to on several occasions, we are not talking about a common or garden piece of legislation that simply places something on top of something else and thereby moves us forward. We are talking about a complete replacement for something that existed previously and will no longer exist. It will have no back-up or reference if we have not got everything in new regulations, replacing the previous regulations that no longer exist or have any currency as far as the UK is concerned.

With this legislation, we would be placing it on trust that everyone had got everything right first time as far as the new regulations were concerned, yet it has been stated in Committee that it is quite possible that there will be further amendments to those regulations, because we will need to be ready on exit day for the basic provision—

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

Is it not true that the aspects of the Bill that the Minister described as “non-controversial” would be so were we staying in Euratom? However, because we will have to move to a new system and there can be no guarantee, as the Minister himself said, of having the professionals in place to deliver the regulations, there are likely to be new regulations. We must therefore have these protections in order to scrutinise them.

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 quite right. The procedure that we are looking at is very likely, in my view, to lead to far more than technical changes. Because there is a body of existing legislation, technical changes can be made, and to some extent I agree with that, because that is how the House works on occasion. If the Government are considering minor or technical changes, simply updating legislation to make it compatible with other pieces of legislation, or proposing to make the regulations in one Bill compatible with new regulations in another, that goes through under the negative procedure, and everyone accepts in the House that that is how we do it.

Lots of things go through in that non-controversial nature. I accept that, but it is not the case here. That is not what we are doing. As the hon. Member for Inverness, Nairn, Badenoch and Strathspey said, we are not tweaking or amending something, but providing something absolutely new. We hope it will be okay, but I think we freely agree that there will be a number of occasions when quite important subsequent regulations will need to be made to beef up the procedure, because even though it is on the road on day one, it is not necessarily as good as it might be. Indeed, the Committee heard that in evidence. We have not had any assurances this morning that we have misunderstood how the new regulations will work or that guarantees can be given that they will be of the technical nature we are more used to in ordinary dealings.

Photo of Dan Carden Dan Carden Labour, Liverpool, Walton

Will people outside not be slightly surprised that we are leaving Euratom because of a Brexit decision? The leading lights of that campaign told us it was all about parliamentary sovereignty—

Photo of James Gray James Gray Conservative, North Wiltshire

Order. That is a little beyond the scope of the Bill.

Photo of James Gray James Gray Conservative, North Wiltshire

Within the context of the Bill.

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)

Of course, Mr Gray. Within the context of the Bill, an associated issue is the extent to which Parliament has a hand in ensuring that the regulations are as good as they should be. In taking this grave step by reinventing a complete set of regulations, a complete regime and a complete landscape, parliamentary sovereignty has to be respected. It is important that we get that right in the legislation, and it is important that we get the regulations right subsequently.

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

The hon. Gentleman is perfectly at liberty, as he knows, to press this to a vote. I have tried, as he has, to find common ground, but obviously he feels that I have not done so in this case. It is true that our positions are much the same as they were before we stood up to speak today. Although he has the ability to press this to a vote, I wonder if he would be interested instead in talking about this in other discussions before Report to see if there is common ground. I feel that the majority of the regulations are technical, and the affirmative procedure is perfectly acceptable, but if there were a way of separating the two issues so that he and I could discuss it with colleagues, I would be very happy to.

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 thank the Minister for that intervention and for what I think—I am reading the tea leaves a little bit here—is a slight softening of the position that it is all okay and there is nothing to worry about.

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

This is not a softening of the position. I am genuinely trying to explore whether there is a way of separating the vast majority of technical regulations, for which it would be very impractical to do what the hon. Gentleman wants, from things he has mentioned that may be of a different nature. My position remains the same. As I say, he is perfectly at liberty to press this to a vote, but I am happy to talk with him at one of the meetings we are having on other matters so that he can explain further his position and we can see if we can reach an agreement.

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) 10:00 am, 14th November 2017

Well, let us see whether we can talk about a mellowing of the position rather than a softening of the position.

What the Minister has importantly alluded to is the fact that if subsequent amendments to the regulations that we have highlighted are really just issues of a wholly technical nature and are, as I have described them, part of the bread and butter machinery of this House in terms of undertaking things by negative resolution, Members can simply say, “Yes, that is fine. Provided they are published and one sees them, one has the opportunity, perhaps informally, to say, ‘Well, actually, maybe these are not drafted as well as they should be, but in general there is no controversy attached to those technical changes.’”

However, if subsequent changes to these regulations are clearly not of a wholly technical nature, perhaps they could be flagged in the Bill as being an exception to those arrangements of a purely technical nature, as indeed there already are in the Bill two instances where negative resolution procedure does not apply. So, it is not the case that there is no precedent for this change, because it has already been envisaged that there are circumstances under which the negative resolution procedure will not apply.

If, let us say, on Report it might be possible to add a line to those particular exceptions, then we might have the basis for something we could discuss further. If that is the sort of thing that is possibly in the Minister’s mind, I would be happy to discuss it further with him, to see whether something could be drafted in the Bill that is able to make the distinction that he quite rightly and properly made between what is technical and what is not technical, subsequent to the first regulations being laid.

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

I would like to confirm to the hon. Gentleman that I do not want to make him an undertaking that I cannot carry through, because I would like to discuss this matter further with him, but in good faith I am perfectly prepared to—I would not really use the word “mellowing”. I cannot think of another word at this time of the morning. However, in the spirit that he knows, I am happy to fully explore the matter. Perhaps lawyers might say, “without prejudice” or “subject to contract”, but it just seems to me that there might be a way in which we could be in agreement.

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)

On that basis—and clearly we need a lexicographer here this morning as we discuss these circumstances—I am happy not to press the amendment to a vote, and I hope that we can discuss these issues during the passage of the Bill, to see whether we can make any progress.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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 beg to move amendment 14, page 7, line 13, leave out from “provisions” to end of line 16

Paragraph 3(5) of Schedule 8 to the Energy Act 2013 exempts inspectors’ powers from provisions related to nuclear safeguards. This amendment includes nuclear safeguards in inspectors’ powers.

This amendment looks like a tiny amendment, but I will suggest that in practice it is a substantial amendment, and I will spend a little time explaining why.

The amendment is about the paragraph in the schedule where amendments are made to schedule 8 to the Energy Act 2013 concerning the powers and duties of inspectors. We will all recall that we have already talked about inspectors at some length in this Committee, but what we have talked about is their existence, their skills, their training and their appropriateness for undertaking inspection on nuclear safeguards in replacement of the inspections by inspectors under the auspices of Euratom.

At the moment, the vast majority of inspectors involved in nuclear safeguarding in this country are not under the auspices of the ONR. A small number of people are involved in that process, but the majority work under Euratom and Commission Regulation (Euratom) 302/2005, which, among many other things, sets out the terms under which inspectors work as far as Euratom is concerned. Inspectors go into establishments for the purposes of safeguarding, and they have a number of powers regarding what they can do, look at, and require to be provided, and what changes they can make. All that is done under the auspices of Euratom. The Bill effectively proposes that all those powers, and the authority of inspectors to undertake those inspections, is transferred bodily from Euratom to the oversight of the ONR, and that the ONR will subsequently be responsible for the exercise of those powers and the supervisions of the inspectors as they go about their business.

In every area other than nuclear safeguarding, the powers, duties and responsibilities of inspectors are laid out as far as the ONR is concerned in schedule 8 of the Energy Act 2013. Paragraph 2(1) of schedule 8 contains a brief description of how those powers are organised and invested in the inspectors, and how they are carried out. It states:

“An inspector’s instrument of appointment may authorise the inspector to exercise any relevant power.

Authority to exercise a relevant power may be given—

(a) without restriction, or

(b) only to a limited extent or for limited purposes.”

It then states:

“For the purposes of this Schedule, an inspector is ‘authorised’, in relation to a power, if and so far as the inspector is authorised by the instrument of appointment to exercise the power.”

An instrument of appointment must be provided by, in this instance, the ONR, and as far as I can see—[Interruption.] I am so sorry, Mr Gray. That was a phone-a-friend moment—I was short of inspiration. The instrument of appointment is, in the provisions for inspectors in the Energy Act, more like a passport held by the inspector. The Act states:

“When exercising or seeking to exercise any relevant power, an inspector must, if asked, produce the instrument of appointment (including any instrument varying it) or a duly authenticated copy.”

An inspector has an instrument of appointment that is proof that they have all the powers, duties and responsibilities set out in the legislation. Those duties, powers and responsibilities are also set out in subsequent legislation. An inspector can authorise the issuing of improvement notices or issue prohibition notices. An inspector in pursuit of those notices has a power of entry. They have a power to take persons and equipment into premises. They have powers to cause articles or substances to be dismantled or tested and they have powers to take possession of any article or substance. They have powers to require information and to receive accounts and various other things.

Inspectors therefore have fairly extensive powers authorised under the legislation, except that all those powers, as currently set out, do not apply to nuclear safeguarding. They do not apply to nuclear safeguarding because they were specifically excluded, certainly as far as issuing prohibition notices and having the power to issue improvement notices are concerned, in paragraph 3(5) of schedule 8 to the 2013 legislation.

Paragraph (5)(a) states:

“In this paragraph “applicable provision” means—

(a) any of the relevant statutory provisions other than—

(i) a provision of the Nuclear Safeguards Act 2000, or

(ii) any provision of nuclear regulations identified in accordance with section 74(9) (requirement for provisions made for nuclear security purposes or nuclear safeguards purposes, or both, to be identified as such),”.

So it is quite clear that, as far as a substantial part of the work of nuclear inspectors is concerned, the intention of the 2013 Act was specifically to exclude any concerns about nuclear safeguarding from those inspectors’ powers and responsibilities. That is quite reasonable, because those powers and responsibilities were carried out by Euratom inspectors. A clear distinction was therefore made that ONR-based inspectors would not have any jurisdiction over nuclear safeguarding.

Now all that is going to change and there are two big questions in front of us. First, is it reasonably possible to translate those powers and responsibilities of inspectors which at present do not refer to nuclear safeguarding into a position where they do refer to nuclear safeguarding? Secondly, is it the case that if we simply hand over en bloc to nuclear inspectors who are undertaking nuclear safeguarding activities, the powers and responsibilities that are set out for purposes other than nuclear safeguarding in the 2013 legislation—which set up the ONR in the first place—those provisions will be wholly adequate for that purpose? Those are the two big questions about nuclear inspectors that we need to ask ourselves.

Would it be desirable, as was the case with the 2013 legislation, that the powers of the inspectors were laid out fully in the Bill? They were not set out in subsequent regulations, because they are such important powers and limitations of powers that it was clearly felt in the 2013 legislation that they should be set out in a separate schedule. It was not something that would be looked at in a Committee Room, subsequent to legislation being passed.

The first question that might arise after addressing how we translate the powers of inspectors into UK legislation is whether we should be conducting an exercise similar to that carried out in the 2013 Bill—that is, whether the legislation should include a schedule that contains the powers of the new inspectors who are carrying out their duties in respect of nuclear safeguarding.

The Government have chosen not to do that in this legislation, as we can see, because otherwise this document would be about three times as thick as it is. There is no translation of powers in the Bill, except for what appears in paragraph 11(1), (2) and (3) of the schedule. The paragraph in the 2013 Act that I mentioned, which removes concern for nuclear safeguards from inspectors’ activities, is replaced by another paragraph. Instead of that prohibition, it says:

“(a) any of the relevant statutory provisions other than any provision of nuclear regulations which is identified in accordance with section 74((9) (provisions made for nuclear security purposes),”.

The Government are not in this legislation simply switching off paragraph (3)(5) in the 2013 Act; they are deflecting it to another clause in the 2013 legislation. If we turn to that clause—

Photo of James Gray James Gray Conservative, North Wiltshire 10:15 am, 14th November 2017

Order. While the hon. Gentleman is finding that page, I will interrupt for a second. I think it is the will and flavour of the Committee that we are seeking to make good progress on consideration of the Bill today and, if necessary, Thursday. I hope hon. Members will take note of the fact that we are seeking to do so. Maybe that has given the shadow Minister a moment to find his reference.

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)

It has not, actually, Mr Gray. Because I was listening so carefully to you, I did not entirely get my reference sorted out. I have now found it, so I am grateful for your admonition. I am hopeful that we will make speedy progress in Committee today.

However, I am sure we need to pay attention to this section because it is important in getting the regime right for the wholesale change that we are making to how the provisions for nuclear inspection will be carried out.

The deflection that the Government make in their amending of the 2013 Act relates to section 74(9). I would be pleased if anyone could clarify this for me.

“Nuclear regulations which include any provisions to which any paragraph of subsection (10) applies must identify those provisions as such.”

As in the honoured Marx Brothers “tootsie-frootsie ice cream” sketch, with different form guides and various other things, one must now look at subsection (10).

“This subsection applies to any provisions of nuclear regulations which are made for—

(a) the nuclear security purposes,

(b) the nuclear safeguards purposes, or

(c) both of those purposes, and for no other purpose.”

They appear to half switch off the prohibition of inspectors from undertaking activities for nuclear safeguarding as well as for non-nuclear safeguarding. They apparently refer not to regulations but to provisions of nuclear regulations. I am not sure whether, by deflecting to that paragraph, the responsibilities of nuclear inspectors are wholly translated into what is in the Energy Act 2013. I would appreciate clarification about whether, in the Minister’s opinion, the Government’s proposed amendment to the 2013 Act actually does that. Is there a clear line that shows that everything that is there is what a nuclear safeguards inspector has the power to do as a result of the deflection to that clause? It is by no means clear that that is the case.

With our amendment, we are trying to do that by means of a much simpler procedure. Instead of deflecting it to another clause, the amendment simply states that the inspectors’ powers relate to any of the relevant statutory provisions, and excises the rest of the paragraph. The relevant statutory provisions include nuclear safeguards, and therefore what was there previously would be fully translated into what a nuclear inspector pursuing nuclear safeguards can do. My view is that that is a simpler, more straightforward and clearer way of ensuring that the powers are fully translated.

The second point I alluded to is the question whether, even if one did that, there would be a complete transfer of powers and authorities from what was previously done under Euratom to what is done under ONR. The current Euratom treaty—the 2005 regulations—which I am sorry to admit I have actually looked at, appears to talk about more extensive powers and responsibilities than those in the 2013 Act. Although they are not set out in the same way, there appear to be various things in the Commission regulation that are not mentioned in the powers of inspectors in the 2013 Act, such as the requirement for inspectors to install and maintain equipment, an offence of interfering with equipment, special reports on unusual circumstances and special reports on inventory change.

I am very keen to hear from the Minister—I am sure he has had a good look at the Euratom regulations, too—whether he thinks that, even if he were minded to accept our amendment, the process of translating what is in the 2013 Act to ONR-supervised inspection really does the job, in respect of giving inspectors the safeguarding powers and responsibilities they had under Euratom and those that they need under ONR supervision. I am sure that the Department has looked at that closely. Is he completely satisfied that that is the case, or might he look at that again to see whether the moment of transmission set out in the Bill really does the business in respect of both making the nuclear safeguarding regime secure and the powers of inspectors for the future?

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

I shall do my best to implement the wise advice you gave us, Mr Gray.

In summary, I believe that the intentions behind amendment 14 are entirely good, but I would argue that it is defective because it would turn on the improvement notice power for nuclear security. That does not need to be turned on because there are existing, stronger direction-making powers. I shall briefly try to make that argument—hopefully with some success—to the Committee. Of course, I share the hon. Gentleman’s concern to ensure that the ONR inspectors have the right powers to fulfil their responsibilities. That is the whole purpose of the Bill.

This issue was raised by the Prospect union. As a result of its evidence, I asked it for a meeting, which I have arranged for the next couple of weeks, to discuss all the issues it raised, together with the other union that gave evidence at the same time.

Paragraph 11(2) of the schedule to the Bill amends paragraph 3(5) of schedule 8 to the Energy Act 2013, extending the power to inspectors who are appointed. That is important so that inspectors can issue improvement notices for non-compliance in relation to nuclear safeguards. Therefore, I would argue that the Bill already achieves the purpose of the amendment.

Paragraph 4 of the schedule amends section 82 of the 2013 Act such that relevant statutory provisions will include nuclear safeguards. That is the key to switching on the ONR power. I hope that that reassures the hon. Gentleman, and colleagues on both sides of the Committee, that the Bill achieves the purpose of the amendment.

I shall leave it at that, Mr Gray, in keeping with the advice you gave. I would like to discuss this matter in greater detail, but that was the sentiment of your instructions to us.

Photo of James Gray James Gray Conservative, North Wiltshire

Before the hon. Gentleman speaks, I should perhaps remind him that he may not withdraw the amendment, even if he wishes to. That must be done by the Member who proposed the amendment. He may, by all means, speak to it.

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

Thank you for that clarity. Do not worry, Mr Gray, I was intending not to usurp my colleague’s role, but simply to underline the point that the Minister made.

An important part of our proceedings are the public evidence sessions that precede consideration of the Bill. Speaking on behalf of inspectors, Sue Ferns gave powerful evidence on a range of issues, but she was very clear on this one, as the Minister mentioned. She stated:

“As warranted inspectors, they feel that it is important to have those powers in the Bill. It is important for purposes of parity, to ensure continuity”— and this is a crucial point in relation to safeguarding—

“also, as we have discussed, for external confidence in the way the job will be done.”

She went on to say that she had heard no argument to say

“why, if it is good enough for the 1974 Act”— the Health and Safety at Work etc. Act—

“and the 2013 Act, we should contemplate a change in practice for this piece of legislation.”––[Official Report, Nuclear Safeguards Public Bill Committee, 31 October 2017; c. 35, Q71.]

That was powerful evidence on behalf of warranted inspectors that should lead the Government to think again. The Minister has been very accommodating and positive in trying to achieve consensus and agreement on issues where we share common concerns. I wonder whether he is able to reach out in the way that he did on earlier amendments to see whether an accommodation can be reached.

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 appreciate the Minister’s wish for brevity on these occasions, but I do not think that this is an issue on which we can be completely brief. By the way, there is plenty of time for the Committee to get the rest of its business through, so I am not concerned that by having a proper debate on this clause we will run out of time—I am certain about that.

I have not heard anything about the second point that I made in my contribution. My hon. Friend the Member for Sheffield Central emphasised that point. Indeed, the evidence from Sue Ferns and Prospect emphasised the question of whether the inspectors will have the powers, through straight translation into oversight by the ONR of what is presently oversight by Euratom, that they actually need.

I mentioned comparing and contrasting what was in Euratom and what is in the Energy Act 2013. The Minister may well be right that although the translation of the requirements in the Energy Act 2013 into nuclear safeguarding may not be as elegant, it does the job. However, that does not at all address the point of what is going to be translated and whether that is fully fit for purpose as far as the new inspection regime is concerned. Will the Minister give an assurance that he has looked at this matter carefully and is completely assured that that is the case? Has he considered, or might he consider, whether combing through the material that was there previously might lead to anything further being added to inspectors’ powers and responsibilities, either by regulation or by further legislation, perhaps on Report? [Interruption.]

Photo of James Gray James Gray Conservative, North Wiltshire

Is the hon. Gentleman giving way?

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

I was not quite sure whether the hon. Gentleman had finished his comments. I stick to my point that this is obviously a complex area and I think that the Bill does exactly what he wants. I will consider his points carefully and, if further drafting is necessary, will bring forward proposals on that subject.

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 is going quite well. I thank the Minister for that consideration and it meets our concerns that, although I have not yet been able to spell them out, additional powers may be needed. If the Minister looked at that I would be very grateful. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule agreed to.

Clause 2