Justification Decision Power (Amendment) (EU Exit) Regulations 2018

Debate between Lord Pannick and Lord Henley

Tuesday 22nd January 2019 Lords Chamber

[Lord Henley]

My Lords, it is complex and technical. There is no one body called the justifying authority; there are a number of different authorities. On certain occasions, it will by my right honourable friend the Secretary of State for Business; on other occasions, if it was a matter relating to health, it could be the Secretary of State for Health. As I made clear earlier, where it was a devolved matter, it could be the devolved Administrations.

Let me give an example to illustrate how a whole range of things are covered—I am thinking of something that has been in the news recently. If prisons wanted to install a new system for examining or scanning prisoners and others as they came through—I believe that that has already been justified—that involves ionising radiation. I shall now add a further complication: one might presume that the Ministry of Justice would be the justifying authority in that matter, but on this occasion it would be the Home Office. In other words, it would have to look at what the risks to people using these things might be and whether the societal benefits that I referred to earlier were greater such that we wanted to install the technology, hence the need for a justifying authority. There are a number of justifying authorities.

Unlike some other regulations that the noble Lord and I have debated, these are both what we could call deal and no-deal regulations. We are just trying to make sure that the right order is in place so that life can continue as before, with the appropriate justifying authority making the appropriate decision.

[Lord Pannick (CB)]

Can I ask the Minister some questions before he sits down?

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[Lord Henley]

On that last point, I have had an assurance from my noble friend Lady Vere that a reward will be on offer—but let us wait until we have got through all four of these before I rely on the generosity of her offer: she might change her mind later.

Let me deal with the points that have been raised. The noble Lord, Lord Pannick, asked when these were published. I can assure him that they were published on 23 November last year. The instrument makes absolutely no changes to policy: it is just a technical amendment to ensure the continued operability of the justification regulations, and therefore a public consultation was considered unnecessary and inappropriate. Subsequent regulations made using the power contained in this instrument will continue to be subject to the consultation requirements, where the justification regulations impose on the making of justification decisions.

[Lord Pannick]

Can the Minister then give an undertaking that those exit regulations brought before the House that do make policy changes will be the subject of public consultation?

[Lord Henley]

My Lords, where appropriate, that will happen. I can speak only for regulations that I will bring before this House relating to my department—but the noble Lord will no doubt be in his place to listen to other Ministers and other regulations as they come through. I repeat that, when we come to make further decisions under these regulations, at that moment—because there might be a change in policy—those decisions will be subject to the consultation process that I spoke about. If the noble Lord will bear with me, I will give way on this.

[Lord Pannick]

I am very grateful for the noble Lord’s patience. Is he then giving that undertaking in relation to regulations brought forward by his department—that if they are exit regulations that make a change of policy, they will be the subject of public consultation before they are brought before the House?

Transfrontier Shipment of Radioactive Waste and Spent Fuel (EU Exit) Regulations 2018

Debate between Lord Pannick and Lord Henley

Tuesday 22nd January 2019 Lords Chamber

[Lord Henley]

Either I will write to him or the noble Lord will be aware that fairly soon—when we have finished with my regulations, whenever that will be and whether I get the sweets from the sweetie box referred to earlier—I will be followed by my noble friend Lord Gardiner from Defra, who might be in a better position to advise him on these matters. We will certainly pass that on to my noble friend. I do not think it would help if I did write to the noble Lord on that subject; I leave it to him to make that point later. He also wanted to know—I think this was at the heart of the question from the noble Lord, Lord Pannick—what the regulations will resemble in the event of a deal scenario. These new regulations have been drafted for a no-deal scenario. The old 2008 regulations would have remained in effect for the implementation period if there was a deal. In the event of a deal, the future supervision and control of shipments of radioactive waste and spent fuel will be subject to negotiations with the EU. This may mean that the 2019 regulations never come into force, or come into force in an amended form. I do not think I can take that any further.

[Lord Pannick]

With the indulgence of the Minister, I ask whether he agrees that it would be helpful to the House if the Explanatory Memoranda to regulations of this nature were to state clearly that they were regulations brought forward specifically for no deal and to explain why the regulations, in the view of the Government, would not be appropriate at all or in this form if there were a deal. I am looking at the Explanatory Memorandum to these regulations and cannot immediately see that we are told they are no-deal regulations.

[Lord Henley]

I thought it was implicit in the regulations. I thought I made that clear in my opening remarks. I hope that will satisfy the noble Lord.

[Lord Pannick]

I am sorry to come back to the Minister. I am not questioning his assertion that these are no-deal regulations; I entirely accept that. I am simply saying that when we perform our scrutiny function and look at these regulations for the purposes of debate, it would be very helpful if the material—the Explanatory Memorandum—were to state for the guidance of Members of the House that they were no-deal regulations and what the position would be if there were a deal. That is all.

[Lord Henley]

My Lords, I have now set that out. These regulations have been to the appropriate scrutiny committees. They have not queried that part of the Explanatory Memorandum, and I do not think I can take the noble Lord any further.

Nuclear Safeguards (EU Exit) Regulations 2018

Debate between Lord Pannick and Lord Henley

Tuesday 22nd January 2019 Lords Chamber

[Lord Henley]

The noble Lord is possibly getting confused with safety and security, and thinking not only about nuclear safeguards. We are talking about only three sites, two of which are in west Cumberland—I have forgotten where the third is, but I shall write to the noble Lord. We will continue to be compliant with IAEA standards. I appreciate that, as the noble Lord said, a slightly different safeguards regime—not safety or security—is set out by Euratom. That will take a little longer, which is why we will need not only further inspectors but nuclear accountants. We will be ready to meet the IAEA standards in March and will get up to the Euratom standards on safeguards a little later.

[Lord Pannick]

The Minister said that it was “only” a matter of safeguards, but does he accept that safeguards are important? Will he also accept that the inevitable consequence of what he is telling the House is that, from 29 March this year until the end of December 2020, there will a diminution in the quality of the safeguards people enjoy in this important industry? Is that acceptable?

[Lord Henley]

My Lords, I shall be increasingly careful about what words I use when I speak in front of distinguished lawyers such as the noble Lord, Lord Pannick. I will try to avoid using “only” in future. What I am saying is that we will meet our standards in relation to safeguards. My reason for wanting to emphasise safeguards as opposed to safety and security is that one does not want to start creating anxiety as to whatever might happen in terms of safety and security. This measure is nothing to do with safety and security; it is to do with nuclear safeguards, which, as the noble Lord will know probably better than me, is a highly technical term—no doubt he would be able to explain it better than me. We will meet our international obligations in March this year. That is the assurance that I give to the House. It is why, when the Nuclear Safeguards Bill went through the House, it was important to noble Lords such as the noble Lord, Lord Warner, and others that we had the appropriate number of inspectors in place. I gave assurances then that we would have enough inspectors in place and I am grateful that we have been able to honour those commitments, for which we should praise and thank not me but the ONR.

The noble Lord, Lord Grantchester, asked whether it was the same regime. I am trying to make it clear that our aim is to establish a regime equivalent in effectiveness and coverage—the noble Lord, Lord Pannick, cited “equivalent”—to that currently provided by Euratom, but obviously they are not exactly the same. In many respects, it reflects and is based on Euratom regulation 302/2005—which, if the noble Lord, Lord Pannick, would like to study it, could be his bedside reading. These domestic regulations have been drafted to reflect the fact that they will operate appropriately within a UK regulatory and operational landscape. They also take account of the United Kingdom’s obligations under its relevant international agreements.

I think that deals with the issues that were raised, with the exception of costs, raised by the noble Lord, Lord Grantchester, to which I now have a response. Our transitional costs were estimated at some £10 million in the final impact assessment published with the Nuclear Safeguards Bill. The safeguards regulations’ final impact assessment gives the higher figure that the noble Lord quoted: estimated transitional costs of £28 million. This difference does not reflect an actual increase in ONR’s expected costs; the two estimates are not directly comparable, since they cover different periods. The Bill’s impact assessment did not include an implementation period as part of the withdrawal agreement running to 31 December 2020 and therefore included costs only up to March 2019. The regulations’ final impact assessment includes the implementation period and therefore includes costs incurred in that period too. I hope that the noble Lord will accept that explanation and I apologise for temporarily losing the relevant bit of paper.

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[Lord Henley]

I will write to the noble Lord about the precise moment, but we are moving towards that in terms of the extra staff the ONR is seeking to recruit.

[Lord Pannick]

I am very surprised that the Minister is so reluctant to answer the question from the noble Lord, Lord Adonis, because the committee’s report states in terms that his department said that the higher Euratom standards will not be reached until the end of December 2020. His department’s response recognises that there will therefore be a lessening of the standards that currently apply. Why will he not just accept the obvious facts that his department has accepted in its answers to the committee?

[Lord Henley]

The noble Lord, too, I suspect, is trying to frighten the horses. What I am saying is that we are meeting some very high nuclear safeguards standards—nothing to do with security or safety—and we will be there in due course. We have always been clear that we will deliver on our international obligations from day one. That is what I have made clear, and we will build to Euratom standards by December 2020.