Nuclear Safeguards Bill (Sixth sitting)

Alan Whitehead Excerpts

Committee Debate: 6th sitting: House of Commons
Tuesday 14th November 2017 Public Bill Committees

[Dr Alan Whitehead (Southampton, Test) (Lab)]

I beg to move amendment 7, in clause 4, page 5, line 6, at end add—

“(5) Regulations under subsection (2) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”

This amendment would prevent the commencement of clauses 1 and 2 without the regulations made under this section being subject to the affirmative procedure.

This is a simple amendment that repeats the requirement suggested in other amendments for secondary legislation to be subject to the affirmative, rather than negative, procedure. I made the case this morning for the power of the affirmative procedure. As hon. Members can see, the amendment would ensure that regulations under subsection (2) could not be made unless a draft instrument were laid before Parliament and approved by a resolution of each House—that means an affirmative resolution.

I do not think we need go over the difference between an affirmative and a negative resolution and why we think affirmative resolutions are always better. Through the amendment, we simply seek to ensure that regulations made under subsection (2) are subject to the affirmative procedure. I do not think we need to detain the Committee too much further with detailed discussion. We think this is important and consider that it should be included in the Bill, to ensure that matters properly come before the House when these issues are discussed.

[The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Richard Harrington)]

Good afternoon, everybody. I thank the hon. Gentleman for not repeating what he said about affirmative and negative procedure, because those points were well made this morning. I have sympathy, of course, with his broad aims of strengthening parliamentary scrutiny, but I argue that this is not an appropriate process to put in place. Parliament will have already passed the Bill and approved the legislation. I am confident that there are appropriate processes in place to ensure proper parliamentary scrutiny of the substantive powers in the Bill.

Clause 4 contains a commencement power. It is entirely conventional for the commencement power not to be subject to any parliamentary procedure because, as I say, it brings into force law that Parliament has already enacted. Clauses 1 and 2 contain delegated powers that must—I know “must” is one of the hon. Gentleman’s favourite words in the English language—be exercised before the UK’s new nuclear safeguards regime can be brought into effect. The regulations necessary to do so will be subject to the draft affirmative procedure. It would serve no useful purpose, in the Government’s view, to make the power to commence those delegated powers subject to the draft affirmative procedure.

I would like to reassure hon. Members that draft nuclear safeguard regulations are currently being worked on in close collaboration with the Office for Nuclear Regulation, and we will provide drafts during the passage of the legislation. The precise arrangements for the future safeguards regime and the details of the regulations will be subject to further consideration and detailed consultation with the regulator, industry and other interested parties.

[Dr Whitehead]

I am grateful to the Minister for mentioning that detailed regulations will be available during the Bill’s passage. Would he perhaps be more specific about that and say when those draft regulations might appear? I assume it will not be in Committee, but it should certainly be before Report.

[Richard Harrington]

As I said, my hope is that that will happen soon. I cannot confirm that it will be before Report, because I do not know when that will be—unless the hon. Gentleman has any information. I certainly hope that it will happen by the end of this year or very early in January, but that is allowing myself a bit of wiggle room. There is no great secret going on; we are just ensuring that all the detail and everything is in place. With that in mind, I hope that the hon. Gentleman will feel able to withdraw the amendment.

[Dr Whitehead]

I thank the Minister for his explanation of the circumstances under which commencement would take place, and what regulations would proceed under that. Although I am not completely convinced that it provides exactly the safeguards that we require, it does go a long way towards reassuring us on the status of the Bill, so we will not press the amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Chair]

Amendment 8 was debated previously, but I do not think that the hon. Gentleman seeks to divide the Committee—I think not, from his lack of response.

Clause 4 ordered to stand part of the Bill.

Clause 5 ordered to stand part of the Bill.

New Clause 1

Purpose

“The purpose of this Act is to provide for a contingent arrangement for nuclear safeguarding arrangements under the terms of the Nuclear Non-Proliferation Treaty in the event that the United Kingdom no longer has membership or associate membership of EURATOM, to ensure that qualifying nuclear material, facilities or equipment are only available for use for civil activities (whether in the United Kingdom or elsewhere).” —(Dr Whitehead.)

This new clause would be a purpose clause, to establish that the provisions of the Bill are contingency arrangements if it proves impossible to establish an association with EURATOM after the UK’s withdrawal from the EU.

Brought up, and read the First time.

Question put, that the clause be read a Second time.

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Brought up, and read the First time.

[Dr Whitehead]

I beg to move, That the clause be read a Second time.

The new clause refers to the possibility of seeking a transition period prior to the UK leaving Euratom of not less than two years. It states that during that transition period,

“conditions under which the UK is a member of EURATOM before exit day shall continue to apply…obligations upon the UK which derive from membership of EURATOM before exit day shall continue to apply…structures for UK participation in EURATOM that are in place before exit day shall be maintained”—

and most importantly—

“financial commitment to EURATOM made by the UK during the course of UK membership of EURATOM before exit day shall be honoured.”

Nothing in the new clause suggests that we shall be members of Euratom in perpetuity.

[Sir Robert Syms (Poole) (Con)]

As I understand it, the hon. Gentleman is suggesting that we continue to be a member of Euratom for two years, during which time we would presumably continue to pay our contribution, while at the same time employing inspectors in the UK— we are actually trying to recruit people at the moment. Would it not impose additional costs on the industry if we are both recruiting inspectors and staying in Euratom? Is that not double jeopardy?

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[Dr Whitehead]

No, because the idea of a transition period would be, among other things, to give greater scope for precisely that sort of recruitment, training and other arrangements to take place, so that the new regime is assuredly in place by the time we leave Euratom—assuming we do. There would not be any duplication because the positions after Euratom would be fully in place.

The transitional period would be used for the purpose of making sure those final arrangements were in place. Unless a series of magical events occur and everything is completely and easily in place before March 2019, I cannot see anything other than good things coming out of a transition period, including the things we have discussed in making a transition from Euratom to a nationally determined inspection regime complete, waterproof and fully operational.

In that sense, the Bill is straightforward:

“It ensures that, when the United Kingdom is no longer a member of…Euratom…we will have in place a legal framework that meets our future international obligations on nuclear safeguarding. Nuclear safeguards demonstrate to the international community that civil nuclear material is not diverted into military or weapons programmes…Our current nuclear safeguards obligations arise from our voluntary offer agreement…with the International Atomic Energy Agency”—

which I will come on to—

“The IAEA is the UN-associated body responsible for the oversight of the global non-proliferation regime. The first requirement flowing from the UK’s commitments on safeguards is to have a domestic system that allows the state to know what civil nuclear material it has, where it is and whether any has been withdrawn from civil activities.”

As we have discussed,

“the Bill has been prepared on a contingency basis. The discussions around our continued arrangements with Euratom and with the rest of the European Union have not been concluded, but it is right to put in place in good time any commitments that are needed in primary legislation. Euratom has served the United Kingdom and our nuclear industries well, so we want to see maximum continuity in those arrangements.”—[Official Report, 16 October 2017; Vol. 629, c. 617.]

I cannot keep this up any longer; those are the words of the Secretary of State on Second Reading.

It appears that the Secretary of State at least is pretty much onside with the idea of wanting maximum continuity of the arrangements with Euratom, that Euratom has served us well, and that we have no objections in this country in the past to the working of Euratom, what it does and how it works. For “maximum continuity” of those arrangements, as the Secretary of State clearly wants, seeking associate membership or arrangements with Euratom under article 206 of the existing Euratom treaty—the Secretary of State was pressed on that on Second Reading—is something we would positively seek as an alternative to the contingency that the Bill represents.

From what the Secretary of State stated on Second Reading and from his introduction to the Bill, it does not seem to require a great deal of construction to conclude that that is something that the Government have in mind and would like to achieve.

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It would clearly be better to have exactly the same approach for both the EU and Euratom, in which we leave at the time the Prime Minister said we would and negotiate toward a two-year implementation alongside our future relationship on both Euratom and the wider EU. That would keep everything aligned and much clearer, which is particularly helpful where there are areas of overlap between Euratom and the wider negotiations, such as on access to skilled workers and movement of goods. For the reasons I have set out, I hope satisfactorily, I am not able to accept the amendment. I hope the hon. Members will consider what I have said and that the new clause will be withdrawn.

[Dr Whitehead]

I am not sure that, for the sake of the apparent administrative convenience of leaving the two institutions on the same day, everything will be better served. We have discussed in this Committee precisely why things probably would not be better served regarding the process of ensuring that we have everything in place to replace what we acknowledge that we have received well from Euratom in the past. My hon. Friend the Member for Birmingham, Edgbaston, in a brief but important contribution, raised the question of how likely it is that the various bilateral deals that we will have to make with various states around the world will be concluded in a timely fashion. Indeed, I suggest that the opposite is the case—they are not likely to be concluded in a timely fashion, not least because, for example, agreements with the United States would have to go through both Houses of Congress.

It is unlikely that there will be anything other than a rather messy tail hanging around for quite a long while if we stated that we were leaving Euratom on the same exit day the Prime Minister is suggesting in amendment 381 to the European Union (Withdrawal) Bill. I do not know whether this piece of advice will be welcome, but if that is what the Prime Minister wishes to do, I think it might be a good idea for her to add the words “and Euratom” to that amendment. I say that because although Euratom and the EU are effectively conjoined, Euratom did not come into being at the same time as the European Union, and therefore it is not necessarily the case that if one puts in place an exit day for the EU, one automatically transfers that exit day to exit from Euratom. That may well be what the Government want to do, but it is by no means clear that that is what would actually have to happen.

It is possible to consider, without in any way undermining the idea that we leave Euratom, a different form of leaving day from that from the EU, in my opinion. That has not particularly been tested in terms of the arguments about whether the Euratom treaty was separate from the EU. The Minister may well be getting wise advice that that is not the case, but it seems at least arguable that there is nothing in stone, and nothing in the amendments tabled to the European Union (Withdrawal) Bill, that points in the direction of having to leave Euratom at the same time as leaving the EU.

If it were possible to negotiate an arrangement whereby the aim was associate status of some description and the means were a transitional period, with the clear aim that that associate status would be in place at the end of it, that would seem to be a prudent thing to do, as far as our future relationship with Euratom is concerned, bearing in mind all the things we have said about how it has served us and what we could get from it during that transitional period, with that eventual aim in mind.

It would be not only desirable but very wise, in the present circumstances, to state on the face of the Bill that that is what we will try to do, and to require the Secretary of State to try to ensure that it happens. That does not undermine our future relationship with Euratom or with the EU; it merely puts in place something that is possible to achieve and that could be of considerable benefit to this country and to our partners in the nuclear community around the world.

It would enhance considerably the value of the Bill if that transitional arrangement did not succeed, because it would, among other things, show our partners in Euratom and the wider international community that we were intent and absolutely serious about wanting the best possible regime for the future. That surely would be a considerable boost to the idea that we can survive well in an international and closely conjoined nuclear community while not being a member of Euratom in the long term. If the Minister is not prepared to accept the amendment, I would like it on the record that we tried to divide the Committee this afternoon.

Question put, That the clause be read a Second time.

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Brought up, and read the First time.

[Dr Whitehead]

I beg to move, That the clause be read a Second time. The clause reflects what we have discussed in Committee about the process of securing an agreement that is voluntarily entered into with the IAEA to replace the previous agreement that was essentially mediated by Euratom, and hence has to be replaced.

One might think that the agreement should, in principle, be reasonably easy to arrive at. If we have a contingency nuclear safeguarding regime in place that we can demonstrate to IAEA fits the bill as a replacement for Euratom, the new voluntary agreement with IAEA should proceed reasonably straightforwardly. My understanding is that it is a voluntary agreement made by nuclear-possessing powers, and this is clearly about entering into an agreement as a nuclear-possessing power alongside other individual nuclear-possessing powers outside the ambit of Euratom. This would be something that we and the IAEA would want to conclude.

As we have heard, that agreement is still some way off being concluded. We are effectively in a position of preliminary discussions with the IAEA about what an agreement might look like, and how it should proceed. As we have heard, we are being asked to agree to put legislation on the statute book as if that agreement had been concluded. We are to take on trust the fact that the agreement can be concluded in reasonably good time, so that the Henry VIII clauses we discussed this morning could be put in place. We discussed those clauses without knowing when or whether an agreement with the IAEA would be forthcoming, what stage of negotiation we were at, and whether there were particular obstacles in the road, or whether indeed those obstacles had been substantially resolved. It does not look as if we are going to hear anything about the agreement until its conclusion. However, we are part of a Parliament that is putting legislation in place as if we had heard about it.

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[Richard Harrington]

Thank you, Mr Gray. I note that, in accordance with provisions in the Bill, an international agreement may be defined as a relevant international agreement for the purpose of Bill only if the Secretary of State specifies that agreement in regulations. The Bill provides that such regulations will always be subject to the draft affirmative procedure, providing the opportunity for parliamentary scrutiny of whether an agreement should be a relevant international agreements as defined by the Bill.

As I have established, relevant international agreements are already subject to an open and transparent process. My fear is that imposing an additional reporting requirement would provide little added value and might hinder negotiations, which I know the hon. Gentleman would not want. Indeed, requiring such frequent updates on negotiations could risk weakening our position and might compromise our ability to build rapport and trust with our negotiating partners. I am concerned that that should not happen, but I recognise fully the importance of transparency and the need for Parliament to be able to provide input into the negotiations, so I am sympathetic to the sentiment underpinning the new clause. If the hon. Gentleman is prepared not to press this to a vote—in fact, even if he does—I would like to give the matter some further thought, because I think I can come up with a proposal that strikes the right balance and maximises the transparency that he wants and that I am not afraid of at all. I do not want to impede the progress of these time-sensitive and vital negotiations, which of course involve other parties.

[Dr Whitehead]

I thank the Minister for giving a constructive response to the new clause without going quite as far as saying that he agrees with it. I hope that he will be able to come up with something that, while not necessarily this proposal, maximises the transparency of the process. We are not only talking about the outcome and a report of the outcome that will come to Parliament. Because of the unique circumstances in which we are legislating while the treaty is being discussed and legislating for something that is quite central to that treaty coming about, it is important we have transparency on the journey as well as the conclusion. If the Minister can work out a device that allows that to happen, which I think he indicated he wishes to think about seriously, we would be happy not to press this. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 5

International agreements: devolved authorities

“(1) The Secretary of State must consult the persons or bodies listed in subsection (2) before concluding—

(a) a relevant international agreement, or

(b) any agreement with EU Member States relating to nuclear safeguarding.

(2) The persons or bodies are—

(a) Scottish Ministers,

(b) Welsh Ministers, and

(c) a Northern Ireland devolved authority.”—(Drew Hendry.)

Brought up, and read the First time.

[Drew Hendry]

I beg to move, That the clause be read a Second time.

New clause 5 states that the Secretary of State must consult certain persons or bodies—the Scottish Ministers, Welsh Ministers or a Northern Ireland devolved authority —before agreement with EU member states relating to nuclear safeguarding.

As mentioned earlier, without confirmation of a transitionary deal, the Government leave a host of unanswered questions about nuclear safeguards. Falling back on World Trade Organisation rules risks the UK breaking international law. As a nuclear weapons state, the UK currently meets some of its safeguards obligations under international nuclear law through a voluntary offer agreement with the International Atomic Energy Agency, to which the Euratom community is also a signatory.

A report by the Nuclear Industry Association UK found:

“Falling back on World Trade Organisation (WTO) arrangements in the absence of a replacement safeguards agreement with the IAEA and/or an implementation period with Euratom risks putting the UK in breach of its obligations under international nuclear law and would have a significant impact on the UK nuclear sector.”

Those unanswered questions are big issues. Will the UK Government ensure that the UK’s nuclear facilities are subject to Euratom’s safeguards regime? If they are not to be monitored by Euratom’s inspectors, will the UK negotiate a replacement for the voluntary offer agreement with the IAEA to remain in compliance with international law? How will the UK Government design, resource and implement new UK safeguarding arrangements in line with accepted international standards?

We have already heard that the Minister cannot guarantee that fully trained, certified professionals will be available. What good are safeguards if there is nobody qualified to implement them? While safeguards and safety are reserved, areas of regulation such as waste and emissions from nuclear sites are devolved.

In the light of the Minister’s earlier comments on issues of national security that could arise, the Scottish Government must be involved in the negotiations regarding nuclear safeguards, and the UK Government must involve the Scottish Government at every stage of the negotiation process to ensure that the deal reached works for the people of Scotland. That is equally important for the other devolved Administrations in Wales and Northern Ireland.

Conservative Governments have a poor track record on Scotland and nuclear programmes. They must ensure that Scotland is not turned into a dumping ground for nuclear waste. I say to the Minister that as matters proceed in the House, there is an opportunity for his Scottish colleagues in the Tory party to help us stand up for Scotland’s interests. We look forward to seeing what they do. I hope the Minister accepts that it is only sensible and proper that the Scottish Government and the other devolved authorities are involved in this process in a meaningful way and involved in the negotiations, particularly given that the stakes are so high.

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[Richard Harrington]

On a point of order, Mr Gray—it is the first point of order I have ever raised. I want to thank you as Chair, and Mr McCabe, who is not here today. I would like to thank the Clerks. I would like to thank hon. Members on both sides of the Committee for their patience, time and valuable contributions. I look forward to seeing the Bill progress in terms of the discussions we shall have before Report and then on Report and beyond. I hope the Bill’s progress continues to be characterised by the spirit of co-operation and conciliation that we have enjoyed. I particularly thank the shadow Minister for that, but also everybody else who contributed.

[Dr Whitehead]

On a point of order, Mr Gray. I join the Minister in thanking you for your exemplary chairing of our sessions. [Hon. Members: “Hear, hear.”] I thank Mr McCabe, too, for his assistance with chairing.

I would also like to thank all Committee members for the constructive and helpful way that we managed to proceed. We had our disagreements. We put those squarely in the open and discussed them, and as a result of those discussions we had a number of exchanges that look to be constructive for the future. I am grateful for the spirit in which Committee stage has been conducted, and I look forward to Report and to the stages that follow with some optimism for the Bill. I am pleased to have taken part in such a constructive endeavour on all our parts.

[Drew Hendry]

On a point of order, Mr Gray. May I, very simply, associate myself with the remarks made by the Minister and the shadow Minister?