Draft Nuclear Industries Security (Amendment) Regulations 2016

Lord Beamish Excerpts

Tuesday 12th July 2016 General Committees

[Mr Graham Allen (Nottingham North) (Lab)]

It is a great pleasure to serve under your chairmanship, Mr Turner. It does of course give you the opportunity to repay some of the generosity and the leeway that you received from the Chair of the Political and Constitutional Reform Committee for many years, of which you took full advantage. I will certainly attempt to do the same. It is also a great pleasure to see the Minister back in her place. Conservative polity’s loss is, I hope, early intervention’s gain. I am of course very pleased to see my Whip in place, and thank her for giving me the honour of serving on this Committee. That is clearly because the Whips Office felt that it was important that established Members could make a serious contribution to this Committee, and I hope that we will do that. There are plenty of years’ service on the Back Benches here.

My main concern as a layman, not knowing much about this technically, is public safety. The Minister has touched on that. Why would that be a particular concern in respect of aircraft movements rather than the other forms of transport? That is pretty obvious. It is because an accident involving an aircraft could be catastrophic in a way that one involving a road vehicle or even a sea container might not be. I quote one of the experts whom I dug out, a Mr John Large, who is an independent nuclear engineer. He said that an air crash could

“contaminate large tracts of land with potential radiological consequences for unprotected members of the public”.

We need to refer across from the civil, which this is about, to the military, where there have been many aircraft movements transporting military grade plutonium, tritium and enriched uranium. There have of course been exercises to see what might happen should something go wrong. I understand that in 2011 and 2012, “Astral Bend”, the code name for the exercise, imagined a leak of enriched uranium and plutonium spreading up to five kilometres across South Wales. Under questioning, a previous Minister of Defence revealed that 23 flights had carried defence nuclear materials in the last five years. My hon. Friend the Member for Brent North made an astute point about this, referring to the possibility of civil movements that may have already taken place and to civil uses of uranium. I urge him to press the Minister on that again, unless she can come up with an answer as to what has happened in respect of civil nuclear material transportation, because that is alarming. I have not found references to that happening before. If it does happen now—even in small numbers—it will be helpful for the Committee to know that before we make a decision on whether or not we note this statutory instrument.

Also, a stronger case needs to be made for the benefits of taking this extra risk. It was not envisaged when the regulations were first promulgated, so why now? Why do we need to have this extra risk by having the material flying around at high speeds above our heads and over built-up areas? Surely there is a greater risk carrying it in a plane. Is that not one of the reasons why there was no need for safeguards—it was regarded as unnecessary to transport such material by plane? The Government need to be clear with us on that.

My other concern is about the use of private companies to transport any nuclear materials by air. One assumes that that will be done under very tight regulations and that the flights will be strictly controlled by Government. Were we to see someone coming along and saying, “I can do this way cheaper than the Government aircraft, or possibly even military aircraft” because of some cost cutting or other, there would be an immense temptation in this era of austerity for people to have a bit of a punt, as they have done in a number of other areas, be it prisons or other sectors, where occasionally people do have lapses because they want to pursue the profit motive rather than 100% focusing on the public sector. I give way to my hon. Friend, who has far more expertise in this area.

[Mr Kevan Jones (North Durham) (Lab)]

Does my hon. Friend know that there is a grey area? The Ministry of Defence now routinely charters aircraft, especially for heavy lift capability, because there are some cargoes that cannot be transported even with the suite of aircraft that the MOD has. Does he think that, if the MOD were subcontracting or hiring in a transport aircraft, that could also be a concern or need clarifying?

[Mr Allen]

My hon. Friend has hit the nail on the head. We need to have these matters clarified and I hope that the Minister can tell us or find inspiration to tell us that that is in fact the case.

The Ministry of Defence itself, when talking about military grade nuclear materials being transported, actually said—and we have to listen to these words carefully:

“in over 50 years of transporting defence nuclear materials in the UK, there has never been an incident that has posed any radiation hazard to the public or to the environment.”

One is forced to ask, “What were the non-radiation hazard incidents that took place?” It is common knowledge that a US plane lost a couple of nuclear devices in Spain, or near the coast of Spain. We need to be reassured when we are looking at issues as important as this about what the real facts are. I think we could then relax a little bit more and understand the safety regime, rather than being anxious about things that may not yet be in the public domain. Transparency is one of the most important things that the Minister can bring today. To finish on the joint question from my hon. Friend the Member for North Durham and myself about the use of private firms, if private firms get engaged in this, is that the prelude to a further possible privatisation? If that is a possibility, it is important the Government come back here to explain the regime they wish to use—whether a private charter or a private company—to transport these materials. That way, the whole House can understand how that may happen.

No impact assessment has been carried out, as far as I can tell, on the use of private firms or on the transport of civil nuclear material. I feel the Government may have missed an opportunity to future-proof their legislation by not having an impact assessment in place. I urge the Minister to ask officials whether that can be done even at this point, without delaying the statutory instrument, so that there can be a clear impact assessment. That may yet still be assisted if the consultation goes wider than the ONR and the Civil Aviation Authority. Many other interested bodies would like to say their piece on the matter. A wider consultation would reassure the public that everything possible has been done to ensure that the essential movement of nuclear material has to be carried out with public safety as 100%, rather than 95%, of that driver.

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[Mr Jones]

May I begin by saying what a pleasure it is to serve under your chairmanship, Mr Turner?

I broadly welcome the regulations, because it is a fact of life that nuclear material is transported by air. Anything that provides independent oversight has to be welcome. However, some questions need to be asked.

In her opening statement, the Minister referred to nuclear material from Dounreay, which is material that has been decommissioned from the nuclear process. Then she referred to the transportation of isotopes. From my previous life working with the nuclear industry, I know that there is a big difference between radioactive isotopes used for medical purposes and, for example, fuel rods and other things that are the by-products of the nuclear power industry. In her reply, will she give some definition of what type of material the regulations cover? Do they cover everything in terms of nuclear, from radioactive isotopes used for medical purposes right up to parts that have been decommissioned from Dounreay and other nuclear power stations? If she could give us the broad range of what the regulations cover, that would be helpful.

On the question raised by my hon. Friend the Member for Nottingham North, the explanatory notes state that most of this material would be transported by the Ministry of Defence. Paragraph 10.1 states:

“There is no expected impact on business, charities or voluntary bodies as the Department anticipates that only government assets and not those of private firms will be used to transport nuclear material by air.”

I know from my previous life in the Ministry of Defence that there is military assistance for civil powers for the transportation not just of nuclear material, but other things, by military assets. The costs are then recovered back from the Departments that incur them. Is it a fact that only Ministry of Defence assets will be used? I am not aware of any other Department that has air assets that are able to transport this type of material. Is it just Ministry of Defence aircraft that will be used for the transportation of this material? It would be helpful to have clarity on that.

On the point I raised with my hon. Friend the Member for Nottingham North, there is the issue of how we define what is a military aircraft. We have some very capable aircraft, thanks to the last Labour Government, who purchased the C-17, Voyager and other aircraft after many years of neglect in the Ministry of Defence’s investment in transport capability. However, the Ministry of Defence routinely leases aircraft from third parties, some of which are based in a variety of countries. For example, the main suppliers of heavy lift aircraft are Ukraine and some of the other former Soviet republics, because they have the Antonov and other aircraft, which are capable of carrying these large loads. If those are used, they do not have military pilots, navigators or crew. Do they come under the definition of a Ministry of Defence flight? What would happen in respect of the regulation covering those companies, which are hired on a case-by-case basis, and what would be their role? I may be wrong, and somebody may correct me, but I am not aware of any companies in this country that possess those large aircraft. They are mainly foreign companies, so it would be interesting to know what the relationship will be.

[Mr Allen]

I imagine that aircraft undertaking this particular task would have to be of a pretty high specification or possibly even purpose-built; this material cannot just be strapped into a passenger seat in a jumbo jet. Since there are relatively few movements of that nature, the financial temptation could be to have a private contractor that services many nations to keep such an item of kit airborne and to offer a competitive price, rather than each nation having its own military capability that would be barely or infrequently used. Is that not another reason to be careful, because privately owned aircraft, whether it is UPS or somebody else, could tailor-make a vehicle specifically for that purpose and trade it on a marked down price?

[Mr Jones]

That is a possibility. On the nature of the material that is going to be transported, I think my hon. Friend is right. I do not think we can strap things into seats in the back of commercial airliners; that is not the way it is done. From what I know, some of the flasks that are needed to protect this material from the impact of a crash need quite a large aircraft. Of the aircraft currently available to the Ministry of Defence, the only one that could possibly fit that would be the C-17, but I do not know whether even that could take it.

Are we going to allow private companies to hire in that type of aircraft, or is it—this might be a possibility—that we have a nation-to-nation agreement with, for example, the United States? It has things like the C-5 Galaxy, which can take larger loads than the C-17. It is a question of what that relationship would be. What discussions have there been with the Ministry of Defence about how the regulations will impact on its regulations in respect of carrying out this type of work? Those are areas that need to be explored.

Paragraph 10.3 of the explanatory notes states:

“The impact on the public sector is expected to be very limited.”

It is quite clear that, for security reasons, those aircraft will sometimes fly in and out of military bases that have security around them. On other occasions they will—and I know that they do—fly into civilian airports that are not run by the Ministry of Defence. For example, Newcastle airport, which I know well, is partly owned by the local authority in the area and partly by a private sector company. What effect will the regulations have on that airport in terms of how it handles the material once it lands? That is important. The explanatory notes say that there will be a “very limited” impact, but what discussions have taken place with civilian airports such as Newcastle if the material is going to be transported in and out of them? I personally see no reason why it should not be, but I would be interested to know what the impact on those airports will be in terms of knowing how to handle the material and how to handle the regulations.

The other issue, which is also in the explanatory notes, is the scope of the regulations. Clearly they cover Scotland, Northern Ireland, England and Wales. What discussions took place between the Government and the organisations that are responsible for environmental issues, such as the Scottish Environment Protection Agency and its equivalent in Wales, before the regulations were laid? Do they have concerns or are they content with the proposals? It would be interesting to know. If, heaven forbid, the situation that my hon. Friend the Member for Nottingham North raised did occur, the local response in Scotland would come from SEPA. I am sure that the Scottish Government would have an opinion on this issue, so what discussions have taken place with the Scottish Government? Are they content with the regulations? Clearly, with the decommissioning at Dounreay, there is a good chance that some of these flights will take off from Scottish soil, so again, what type of discussions have taken place and have any concerns been raised?

Finally, the regulations cover the home countries, but if we are talking about international travel, what is the position of our overseas territories? There may be the possibility of an emergency landing in Gibraltar or one of our other overseas territories—for example, the Isle of Man, especially given its close proximity to Sellafield, where some of this material will no doubt be coming in and going out of. What is the position of the regulations regarding other jurisdictions that are part of the United Kingdom but are not specifically laid out in the regulations? It would be interesting to know whether they cover those areas as well. I assume they do, but I would appreciate it if the Minister addressed that point.

In summary, I have no problem with the regulations. They are a sensible move forward, but my hon. Friend the Member for Brent North raises an interesting point in asking why they have not been introduced before. If the public are going to have confidence in the regulations, it is important that any concerns that are raised not just today, but in future, are dealt with publicly. I am aware of the steps that are taken when military nuclear material is transported, and I can say to my hon. Friend the Member for Nottingham North that it is not simply a case of putting it in a bucket or cardboard container and putting it on an aeroplane; measures are taken so that even if there is a crash, things are in place to ensure that there is not a leak of material, but I understand people’s concerns. When we are doing this, we have to reassure not just our constituents, but the wider public. We do not want to breach security and the Minister is right not to go into that area, but I think some broader reassurance is needed.

[Patricia Gibson (North Ayrshire and Arran) (SNP)]

The public are deeply concerned about the transportation of nuclear material through residential streets by vehicles. We hear that and we understand it. How do we imagine the public would react to nuclear materials criss-crossing the skies over their towns and cities? I think we can all imagine that the public reaction would be one of great fear and alarm, quite understandably and justifiably.

The hon. Member for Brent North made an excellent point earlier. There is a question about the wording of the document. Perhaps it is just semantics and the way the document has been written, but there is a concern about whether this has already happened. If it has, why are we hearing about it now? Is there some national security reason why we cannot hear about it? I doubt that very much.

[Mr Jones]

That is the point I was making, in terms of where the regulations meet, for example, the Ministry of Defence’s responsibilities. I do not think it is a great secret that the Ministry of Defence already transports nuclear material. The interface between the two will be important in knowing what the crossover is, and what the new future is. Who actually has supremacy regarding the regulations that govern that, whether it is civilian nuclear material or military nuclear material?

[Patricia Gibson]

If this stuff is going to be transported by air—I will say more about that in a minute—I think the public really have a right to know. They will be quite justifiably angry and will feel let down if this has been going on and they were not party to that information. We are talking about potentially extremely serious consequences if things go wrong. Sod’s law is that eventually, no matter what regulations are put in place, things can go wrong, and quite often, they are not the things that are expected to go wrong.

I want to draw attention to a point my hon. Friend the Member for Midlothian made earlier. The Scottish Government’s policy on the transportation of nuclear waste is that it should be near surface and near site, storage and/or disposal facilities, where the waste can be monitored and retrieved if required, and the need for transportation over long distances can be minimised.

I would imagine, although I do not know for sure, that if nuclear materials are transported by air, it will, by definition, be a long distance, otherwise they would not be transported that way. I am concerned about the length of these distances and why we are moving from the current system to try and include air travel, which is fraught with danger.

I also ask the Minister to what extent, if at all, the Scottish Government have been consulted on these points. Have they simply been notified or have they not been notified? What input have we had from SEPA? I would like answers to these questions, because we are talking about public safety, which is really important. The transportation of nuclear materials is already a cause of alarm among the public. This will do nothing to allay those fears; in fact, it can only increase them.

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[Andrea Leadsom]

No, I am sorry, I will not give way to the hon. Gentleman again. I have answered his questions absolutely openly and transparently. What I am saying to him is that it is not a matter of realising we were in breach; it is a matter of a more recent look that has decided that, for completeness, these regulations should be updated. He is trying to suggest that there has been some sort of coming to the game late, and that is not the case. This is a case of a more recent review of the regulations suggesting that this should be carried out for completeness. That is the end. That is all I am prepared to say on the matter. I will now move on to the other questions.

[Mr Jones]

Will the hon. Lady give way on that point?

[Andrea Leadsom]

No, I am sorry. I have completely answered the question.

The hon. Member for Nottingham North asked about the safety of moving nuclear material by air. The Office for Nuclear Regulation would always need to be assured of the robustness of not just the packaging, but all safety arrangements, before any movement by air could take place. All these amendments do is change the regulation of security. The existing safety framework remains completely unchanged. Nothing is changing other than the regulation of security.

The hon. Member for Nottingham North also raised the question of the Ministry of Defence moving material by air, and asked how that differs and whether it has been breaking the international convention. What I can say is that the transportation of nuclear materials for the purposes of the Ministry of Defence is not covered by the convention on the physical protection of nuclear material or the nuclear industry’s security regulations; it is an entirely separate matter, and outside the remit of this piece of legislation.

[Mr Jones]

If the Minister does not know the answer to this question, perhaps she can write to us afterwards. At Dounreay, for example, where there is plutonium, there is a difficulty in determining whether it is a by-product of the civilian nuclear process or whether it will go down the other stream and into our nuclear weapons programme. Is the Minister saying that if this material is deemed to be military it would therefore fall under one regulation, but for this purpose it would go down the other route if it was for civilian use? That would affect what she just told us about the regulations on the transportation of this material. It could be the same material but possibly have different owners.

[Andrea Leadsom]

The hon. Gentleman’s interpretation is correct. First of all, material is identified as being under the auspices of either the MOD or the civil nuclear programme, and the regulation is dealt with accordingly. As I have said, the Ministry of Defence is not covered by either the convention or the Nuclear Industries Security Regulations 2003—it has its own regime—so the definition of which material comes under which regime is something that needs to be identified.

The hon. Member for Nottingham North also asked who moves the material. The amendments to the regulations bring the transport of civil nuclear materials by air clearly under the regulation of the Office for Nuclear Regulation. They do not state what specific organisations will move material. As I say, for security reasons we do not comment on operational decisions made for the specific transport of material, but any organisation carrying out the transportation of nuclear material to, from or within UK airspace would need to be approved as a carrier by the Office for Nuclear Regulation and regulated accordingly.

[Mr Jones]

Will the hon. Lady give way?

[Andrea Leadsom]

No, I am going to answer the question about who transports nuclear material, and then the hon. Gentleman may intervene. The hon. Member for Nottingham North asked whether civilian airlines could transport nuclear material. The Office for Nuclear Regulation would be entirely responsible for approving the transport security statement and plans, so no one would be able to fly material without the approval of the Office for Nuclear Regulation. We do not believe that there are any commercial carriers that are capable of securely carrying civil nuclear material, or that currently do so.

[Mr Jones]

I am a bit perplexed by that, because the explanatory memorandum states that:

“There is no expected impact on business, charities or voluntary bodies as the Department anticipates that only government assets and not those of private firms will be used to transport nuclear material by air”.

Is the Minister saying that the only people who will transport nuclear material will be the Ministry of Defence? I am not aware that her Department, or anyone else, has the transport assets to do that. Perhaps the Minister will come on to this, but could she also answer the point I raised about the MOD subcontracting to private firms?

[Andrea Leadsom]

As I have already mentioned a couple of times, for security reasons we cannot comment or speculate on different methods of transport, other than to say that the Office for Nuclear Regulation is entirely responsible for the transport plans. As I have already made clear, we do not believe that any commercial transportation group is capable of transferring civil nuclear material, but it is for the Office for Nuclear Regulation to determine all those plans, including the regulation of those who are authorised to carry out the transportation. That includes the vetting of the individuals, the security of the personnel, the security of the vehicles used and the training regimes that are in place.

[Andrea Leadsom]

Again, I absolutely respect the hon. Gentleman’s concern and I absolutely share it. First, this is not something that would happen every day. Having looked as a Minister at some of these transportations, I know that the amount of planning is vast, as can be imagined. It is extremely carefully and rigorously carried out by the Office for Nuclear Regulation, which exists to regulate nuclear matters—nothing else. I can absolutely assure him that the safety of the public, the transportation, the staff involved and so on would be completely uppermost in its thoughts.

The hon. Member for North Durham asked exactly what categories of material would be transported. The regulations will apply to a broad range of nuclear materials, as set out in regulation 3 of the 2003 regulations and the schedule to it. Quite a broad range of possible waste is being transported.

[Mr Jones]

Would that include, for example, medical isotopes? They are perhaps not as great a concern as large radioactive materials from Dounreay and elsewhere, but are isotopes for medical use covered by the regulations?

[Andrea Leadsom]

Yes, civil nuclear products, which could include a wide range as set out in the 2003 regulations, would potentially all be included. Likewise, the hon. Member for Nottingham North raised the matter of terrorist risk. Again, for security reasons we do not comment on operational security issues, but very robust safety and security measures are in place for all movements of nuclear materials. That is absolutely key.

One hon. Member, possibly the hon. Member for North Durham, asked whether the regulations extend to overseas territories. The answer is no. If there was an operational need, we would discuss putting appropriate regulations in place with the overseas territory.

The hon. Member for Midlothian asked about safety and what happens if there is an accident. Appropriate emergency response arrangements exist at nuclear sites and for all civil nuclear transports across the country. All relevant parties are made aware in advance of any movements and are of course ready to respond in the case of an emergency.

[Andrea Leadsom]

The hon. Gentleman will appreciate that there is always a balance between telling everyone what is going on, precisely because of the importance of security, and ensuring that the most robust steps are taken to ensure the safety of the public and those involved with transportation.

[Mr Jones]

I may be wrong, but I understand that gold command in an area is usually informed of those types of transportation.