Draft Carriage of Dangerous Goods (Amendment) Regulations 2019

Alan Whitehead Excerpts

Monday 28th January 2019 General Committees

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

It is a pleasure to serve under your chairmanship, Mr Bailey. I have to notify the Committee that the credit that I might have had for speaking briefly should be applied to my speech on the SI that we debated earlier. I will not be brief on this legislation, because there are really serious issues with it.

I appreciate the purpose of the legislation. Unlike with other SIs that we have debated, the purpose is not simply to transpose what was already in legislation to a circumstance in which we are no longer in the EU. Indeed, the SI that we talked about earlier was a straightforward transposition of material that had already been in legislation. It was simply a case of noting that we would no longer be a member state and therefore the regulations should apply in exactly the same way, but with those provisions.

This SI places certain elements arising from Euratom directives into UK legislation. In so doing, it makes a number of provisions that I think we ought to look at very carefully. Before we do that, I have to raise two particular concerns, one of which I think is probably fatal to the legislation as it stands. The first issue that I would like the Committee to at least note is that this is actually the second time that this instrument has been laid. An instrument was laid on 13 December and was withdrawn, and a second instrument, with precisely the same title, was relaid on, I think, 20 December. This is a very minor point, but there may be some confusion as to which version we are talking about today, because version 1 is still up on the internet. I hope that we have version 2 before us this afternoon.

If we compare version 1 with version 2, which is in front of us—the version that was relaid just before Christmas—we see that although there are minor changes, such as to a date in a piece of earlier legislation, there is also a major change. The first version stated that an impact assessment would be available, but in the second version there is no mention of an impact assessment. That has disappeared between 13 and 20 December. Was there ever an impact assessment? If there was, why was the second version of the SI amended to indicate that there was none, and if there was not, why was it referred to in the first version of the SI? There is a bit of a mystery there, and it is quite important: if there is an impact assessment, it ought to be before us today.

The second issue, which is far more procedurally serious, is that the SI makes an amendment to the Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008. The part of the SI that that amendment appears in is not a particularly crucial one, but it is nevertheless important: it places within the 2008 regulations an annex from Euratom regulations, which contains a variety of values that are important to our current proceedings. Members might ask, “What is the problem with that?” The central problem is that when we met last week to discuss the Transfrontier Shipment of Radioactive Waste and Spent Fuel (EU Exit) Regulations 2018, we agreed to a change in those regulations—we all agreed to it; there was no opposition. That change, among other things, revoked the Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008, so we are discussing amending regulations that we have revoked. The transposition of that annex into the new regulation will have no force at all, because the 2008 regulations no longer exist.

There are provisions about the amount of time over which revocation takes place, but I have consulted on this issue, and it appears the objective position is that we are trying to amend something that has been revoked, although it is not clear whether that affects the whole of the SI or only one part of it. In any event, we are seeking to put through on an unamendable basis a piece of legislation that is manifestly defective in its drafting. Mr Bailey, I seek your guidance as to what the procedure might be under these circumstances: whether we should go through with this statutory instrument—pass it through and out the other end, then think about it subsequently, knowing that we have passed into legislation something that is defective—or whether there are remedies available at an earlier stage in the process.

[Jim Fitzpatrick (Poplar and Limehouse) (Lab)]

My hon. Friend is raising a fundamental point about what we are doing this evening. Does he think it would be appropriate for the Minister to clarify on a point of order whether we are trying to amend something that does not exist, or whether the guidance that we have received from my hon. Friend—who is highly regarded in these matters, and who will have done his research—is in some way, shape or form in error?

[Richard Harrington]

I am not trying to flatter the shadow Minister, but I work with him a lot and listen very carefully to what he has to say. Usually, the answers to his questions are extremely complex and I have to do my homework to understand them. However, in this case, my recollection of last week—I will ask my officials for clarification—is that the Transfrontier Shipment of Radioactive Waste and Spent Fuel (EU Exit) Regulations 2018 were for the event of no deal only. Therefore, I do not believe his point is relevant; perhaps we will discuss that, but that is my understanding. It is a very constructive and, I am sure, well-researched point, but I think it misses the no-deal point—heaven forbid there is no deal.

[Dr Whitehead]

The citation and commencement of the regulations that we passed last week stated that they will come into force on exit day, whenever that is. Although that is when the SI will come into force, the revocation applies from when it is made, so it carries forward into legislation. That does not alter the fact that, although another SI will come into force on exit day, we are seeking to amend something that does not exist. Both statutory instruments come into force on exit day, regardless of whether there is no deal or a deal, because they have been made properly through the parliamentary process. If we pass these draft regulations, that is what will happen.

I am grateful to my hon. Friend the Member for Poplar and Limehouse for his intervention. We ought to think very carefully about whether we are able to proceed with these particular draft regulations, in the absence of a definitive view that, given what we know now, they are not defective and can be voted on and put in legislation.

[Richard Harrington]

It seems to me that last week we debated draft regulations, but they have not yet been made. That is why, respectfully, I do not think the hon. Gentleman’s point is valid.

[Richard Harrington]

If I may intervene again, Mr Bailey, I am certain that is the case, but if the shadow Minister wishes to have a meeting I will be very happy to put his mind at rest. It would involve going into details with lawyers and so on; I do not think I can do that now. Irrespective of what happens with the SI, I owe him that courtesy and will be very pleased to do that.

[Dr Whitehead]

I thank the Minister for that offer; I am sure I will take it up. Thank you, too, Mr Bailey, for your guidance on whether we could proceed. I thought we probably could. Nevertheless, what we end up with will not simply fall because it is contingent legislation; when exit day comes upon us, it will be defective because it amends something that no longer exists and therefore has no force. At the very least, it will be necessary to consider whether further legislation needs to be put into place to correct that before exit day. That is the minimum I would expect under the circumstances. It cannot just be brushed under the carpet; it is a serious issue relating to the force of the proposed legislation. Obviously, if we sit together and knowingly make legislation that does not work, we can at some stage be held accountable for that. Therefore, we need to take the matter very seriously.

[Richard Harrington]

If that were the case, it would be my responsibility and that of the Government, and not the responsibility of the hon. Gentleman, who has made his point very clearly.

[Dr Whitehead]

I thank the Minister. I personally take the view that we are all in this room together making this legislation and we all have an equal responsibility for making sure that it works, regardless of whether we are members of the Opposition or of the Government. My comments are made in that spirit, not in the spirit of opposition, because I want the legislation to work as well as possible.

[Richard Harrington]

rose—

[Dr Whitehead]

I have not yet come to the substance of what I am going to say, but I will give way.

[Richard Harrington]

For the record, I accept that comment in the spirit in which the shadow Minister made it. I did not think for one moment that it was a political point. He has made a very valid point and I hope I have answered it, but I accept the fact and take responsibility for that.

--- Later in debate ---

[Dr Whitehead]

I thank the Minister for that point. I think I have voiced my concerns in the best way I can, so perhaps we should move on to discuss the rest of the SI.

My other substantive point is about the status of exposure to radiation. The regulations list two ways in which an emergency worker may expect be exposed to radiation. The Minister has rightly stated that the regulations include a central new element, which is the definition and identification of “emergency worker”. That is someone involved in the carriage of radioactive and hazardous materials—typically the driver of a vehicle that is transporting nuclear waste and other material. The expectation set out by the regulations is that the employer of that emergency worker has to ensure that they have the necessary information and training in the event of an emergency. The emergency could be one of a variety of things, such as the vehicle developing a leak or breaking down, or the danger of exposure to radiation, potentially as a result of an accident, and the emergency worker should have the training and knowledge required for such circumstances.

Regulations 8 and 9 set out the dose limits to which an emergency worker may be exposed—the limit that emergency planning should ensure is not exceeded. Regulation 9 focuses on reference levels and states that the dose should be kept below 100 mSv, which is the measure of radioactive intensity to which someone is exposed,

“or the emergency specific reference level if applicable.”

Regulation 8 states:

“Regulation 12 of the 2017 Regulations”—

meaning the overall limits—

“does not apply to an emergency worker, where that emergency worker…is engaged in preventing the occurrence of a radiation emergency; or…is acting to mitigate the consequences of a radiation emergency.”

It continues:

“An emergency worker may be exposed to an effective dose not exceeding 500mSv whilst they are undertaking the activities set out in sub-paragraph (1).”

We therefore have a picture of a general reference level of 100 mSv, although over what period is not specified—nor is the period that the 500 mSv relates to—which can be exceeded under the circumstances of an emergency being realised.

If members of the Committee are still with me, which I am sure they are, they will know that the reference level should refer to the Ionising Radiations Regulations 2017, which set out the maximum dose to which employees over the age of 18 should be exposed. For the purpose of regulation 12, schedule 3 to those regulations sets the limitation as,

“100 mSv in any period of five consecutive calendar years subject to a maximum equivalent dose of 50 mSv in any single calendar year”.

That is subject to exceptional circumstances. The normal anticipated dose for employees and trainees of 18 or above is 20 mSv in any calendar year. In using the definition of someone being an emergency worker, we appear to have substantially exceeded the reference levels set out for employees in the 2017 regulations.

Secondly, the instrument sets out that, in emergency circumstances where that level is understandably exceeded, if someone is engaged in preventing the occurrence of a radiation emergency—that is, if a lorry driver is really grappling with the circumstance that has arisen in that nuclear emergency—the level should not exceed 500 mSv. The Minister stated that that is in line with more recent IAEA guidance about restricting the exposure of emergency workers.

Indeed, the guidance in the IAEA regulatory arrangements is that the other values may be exceeded in emergencies and that the actual level is 500 mSv, but let us look at the circumstances under which that guidance applies. It states:

“This value may be exceeded under circumstances in which the expected benefits to others clearly outweigh the emergency worker’s own health risks, and the emergency worker volunteers to take the action and understands and accepts these health risks”.

That is classified under life-saving actions, or actions to

“prevent severe deterministic effects and actions to prevent the development of catastrophic conditions that could significantly affect people and the environment”.

The category is set out for Chernobyl meltdown-type arrangements, where someone, having been fully apprised of the circumstances, knowingly volunteers to put themselves in a life-threatening situation and literally puts their life on the line through life-saving actions or large actions to deal with a nuclear emergency and the environmental concerns that may arise from it.

Those are not the emergency worker arrangements set out in these regulations—the two do not match. Either the regulations have simply drawn the exposure values too highly, or they have not taken account of the circumstances under which those exposure values might be contemplated. In drawing up the emergency worker arrangements, the draft instrument never covers that particular point raised in the IAEA regulations. It simply mentions possible radioactive nuclear carriage emergencies for which someone could receive training. It does not state that they must agree to take the action or should understand those health risks, unless general training and action is somehow regarded as someone signing away their life and health on each occasion that they drive a nuclear truck.

The draft regulations are completely inadequate in dealing with the proper safety arrangements for people who transport nuclear materials, and actually open the door to a great deal more exposure for those people than I think any of us would regard as reasonable in such circumstances. I appreciate that there are circumstances of nuclear emergency where that exposure may be necessary in order to take action to deal with it. However, those circumstances are not laid out in the draft regulations. In coming to its conclusions, the IAEA envisages an entirely different series of circumstances regarding the possible level of exposure.

The draft instrument ought to be taken away and redrafted, not only for the reason I have suggested—because it does not work—but because it does not appear to have a firm grip on the circumstances, or the escalation of circumstances, that might be necessary to deal with levels of nuclear radiation exposure. Unless the IAEA guidelines are properly written into the draft instrument, we will simply allow various people to put themselves in much greater danger than they sign up for as emergency workers. We should not easily contemplate signing that away.

--- Later in debate ---

[Richard Harrington]

I thank the hon. Members for Southampton, Test, for Kilmarnock and Loudoun and for Poplar and Limehouse for their contributions. I will try to deal with the majority of their points.

I certainly respect the point made by the hon. Member for Poplar and Limehouse that the Opposition may feel it necessary to vote against the measure because, as the shadow Minister argued, it is invalid because it is contradictory. I fully respect that point, particularly given the Whip’s guidance. As you will know from your long parliamentary experience, Mr Bailey, one tends to do what Whips advise one to do, and that is particularly true in the case of the hon. Member for Blaenau Gwent. I will try my best briefly to dissuade them.

First, I will try to put to bed the point about the impact assessment, which was mentioned in the first version of the draft regulations but not in the second version. I think the difference was between the versions published on 13 December and 20 December. The decision was taken not to carry out an impact assessment simply because it was viewed as de minimis. There is a de minimis threshold of £5 million. The instrument makes no changes that would involve a significant impact on business, charities, voluntary bodies or the public sector, so we decided not to carry out an impact assessment. That was quite within the rules. I apologise for the confusion, but we had to take a decision, and that is what we decided. Hon. Members may disapprove of that, but there is no impact assessment because the impact is de minimis. It is not the case that there was one and we did not like it so we thought it should be hidden.

I think I answered in interventions the point about contradictions in the legislation. That may or may not be acceptable to the Opposition, but there is no point in my repeating it.

I turn to the point about dose limits for emergency workers’ exposure to radiation. I think everyone shares the intention of ensuring that that does not happen, but if it does the rules are very clear. The whole thing really is very complicated. It is certainly true that planning for an emergency scenario is very different from planning for a normal work scenario. The 500 mSv limit applies only in the circumstances set out in paragraph 8(1)(a) and (b) of the schedule. I do not think the IAEA was thinking only of catastrophic scenarios; I think it was generally allowing for lawful exposures with the intention of reducing harm. That is a very relevant point, but it is very complicated.

I am afraid I gave up physics at the age of 16, for the very good reason that I had failed my exams in it, but the dose limits in the Ionising Radiation Regulations 2017 apply generally to work with radiation. Paragraph 8(1) of the schedule disapplies them in the case of an emergency, because they could cause the employer to commit a criminal offence in dealing with such emergencies. That is why it sets a reference level appropriate to emergencies.

[Dr Whitehead]

I have given my speaking notes to Hansard, so I have to do this from memory, but does the Minister consider that the regulations as they stand give effect to what is in the IAEA definition of exposure to radiation—the knowledge and understanding that is required, and the informed consent that must be given if that high level of radiation is to be permitted under those circumstances? I cannot see anything in the regulations that says that, and I would be interested if the Minister could point me to anything in the regulations that requires that informed consent to be provided for under those circumstances, as is set out in the IAEA regulations.

[Richard Harrington]

I consider my response satisfactory and I am prepared to write to the hon. Gentleman on the specific point he brought up. He did very well without his speaking notes.

Returning to the 500 mSv reference level, it transposes an EU directive and brings us into line with international standards. Those might not be the right standards, although we think they are, but it is certainly absolutely in line with them. It is meant as a reference level for planning purposes, and reflects an upper limit. It does not mean that that level is acceptable or normal, but it gives an upper limit. The goal in any emergency plan is, of course, to minimise exposure—that is the whole purpose of the draft regulations—but regulations must set a ceiling, and the definition of an emergency would include doses far below that level.

Repeating the point that the hon. Member for Kilmarnock and Loudoun, the SNP spokesman, made, the levels are intended to apply to an emergency situation. Any operator regularly exposing the public to nuclear emergencies would face other sanctions from the appropriate authorities. It is not just these draft regulations that would be relevant in such a case.

I hope that I have explained the points that were brought up by Opposition Members. Despite those points, I certainly in every way commend the draft Carriage of Dangerous Goods (Amendment) Regulations 2019 to the Committee.

Question put.