In speaking to these amendments, I want to draw attention to further events that have taken place between the end of the Committee stage and today’s Report stage. I say “further events” because they are separate from the very welcome statement that the Secretary of State has made on what we may do about negotiating an association with Euratom, which I think has helped our proceedings considerably. Another matter that might have helped proceedings considerably had it taken place a little earlier was our having the impact assessment on the Bill that we have now received.
As I am sure hon. Members know, impact assessments should, under Cabinet Office rules, ideally be produced before Bills are discussed. To be honest, it is pretty bad that it has taken so long for the impact assessment to arrive, particularly as it arrived after our deliberations in Committee had concluded. I would say that it is particularly bad following an examination of what the impact assessment actually says—it might have helped our proceedings in Committee had we been able to look at it at that time.
Predominantly, the assessment works on the basis of costing various options relating to what a future inspection regime would look like. Indeed, there are or could be choices, as we have heard, about that inspection regime, which is, after all, at the heart of the Bill. How are we going to replicate in the closest possible detail the inspection arrangements that franked our probity as a nuclear nation in international agreements on non-proliferation and nuclear safeguarding? We have been signed up to those arrangements all these years, but we have hitherto engaged with them through the agency of Euratom, rather than independently. As we know, duties in relation to safeguarding ultimately end in agreements made between nuclear states and the International Atomic Energy Agency.
The inspection regime we envisage for the future could vary, because the level of inspection—such as the number of inspections and the depth of inspection needed to satisfy the minimum criteria of the IAEA—could be at a lower level than we have been used to under the Euratom regime. We might envisage a bronze standard inspection regime whereby we scrape by in our future relationship with the IAEA, or we could ensure that the inspection regime, overseen by the ONR, will be as good and as thorough as that carried out by Euratom inspectors in the past. As the impact assessment says, that would be marginally more expensive.
I am pleased that the latter option is strongly advocated in the impact assessment, because it seems to me that we should not seek in future to get by on the lowest level we can get away with. Instead, we should assure ourselves of our own integrity on the matter, and assure others likewise—both the IAEA and the countries with which we will be making bilateral agreements—that we are doing it absolutely properly. That will entail seeking to continue with inspections at the high level laid down in Euratom’s arrangements. That is what amendment 1 is about. It is designed to place in the Bill exactly what the impact assessment states we should do—to ensure that we will go forward at that level.
The Minister may well say—I hope he does—that we are committed to maintaining that level of inspection regardless of whether it is written in the Bill. But there is a problem with that: when we go independent, will we have the resources to carry out inspections to that level,
or will we need an extended period in which we are allowed to scrape by with the minimum, because that is all we will be able to do?
At the beginning of the Bill Committee we heard from an excellent witness, Dr Golshan, the deputy chief inspector at the ONR. She gave us a fairly stark statement of reality, which members of the Committee have shared this afternoon. Those hon. Members will all recall Dr Golshan indicating clearly that when we leave Euratom,
“we will not be able to replicate Euratom standards on day one.”––[Official Report, Nuclear Safeguards Public Bill Committee, 31 October 2017; c. 7, Q9.]
In amendment 1, we set out an aim for the Bill: that we cleave to the Euratom standards as soon as possible and assure ourselves that we have the resources to do so.
There is a wider context. What resources will the ONR have to enable it to carry out the substantial new tasks that we set it in this legislation? The ONR is mainly funded through charges to the nuclear industry. That is how it generally recovers the money for its operations, but it also receives some grant funding. Essentially, that funding pays for the nuclear safeguarding work, while the charges on the nuclear industry pay for the ONR’s other functions, which are not the subject of this Bill.
That distinction is important, because the Government intend to halve the grant to the ONR in the period to 2020. At the outset of the negotiations, we face the prospect of the ONR being able to do less work than it does at the moment. If it is to continue to do as much as it does now, it will probably have to levy substantially higher charges on the industry to make up for the loss of the grant up to 2020. At the same time, if the Bill progresses, we are plainly saying that the ONR will have to undertake a whole lot of new work that it has not budgeted for, that has not been in its terms of reference for a long time and that will clearly require a lot more resource. As we heard in oral evidence to the Committee, that is no mean amount of additional work for the ONR to undertake.
To enable it to carry out all its functions, Euratom employs about 160 staff, 25%—or 40—of whom focus on UK installations. One can reasonably assume that the ONR would have to add a similar number of people to its complement of staff if it were to take on the work done by Euratom on nuclear safeguarding. The safeguards unit in the ONR comprises eight professional staff. Between now and March 2019, therefore, the ONR will have to find roughly 32 staff—qualified, highly skilled and trained nuclear inspectors—from somewhere to take over that responsibility. That is in addition to all the other things that the ONR will have to put in place, such as IT systems and administration resources, to allow it to take on that role.
Another excellent witness who contributed to our proceedings in Committee was Sue Ferns, from the union Prospect. She stated that training safeguards inspectors could take up to five years. We are faced with the prospect of needing 32 such people within 18 months. She said, of the role of an inspector:
“This is a warranted role; this is not just working in the industry. It is not just about knowledge, but experience and commanding the confidence of the companies and the organisations that you deal with, so there are very specific aspects to that role.”––[Official Report, Nuclear Safeguards Public Bill Committee, 31 October 2017; c. 35, Q69.]
She also alluded to the relatively small pool in which we are fishing. Not only do we have to fish in the pool, but we have to do so accurately, and we have to attract a good proportion of those people if we are to fill the gap. Consequently, she put a considerable question mark against whether it is possible for the ONR to be ready, as we would like it to be, for the tasks that we are going to give it.
I accept that a number of people in the nuclear industry have many of the qualities that could make them nuclear inspectors—indeed, as the hon. Member for Copeland (Trudy Harrison) said in Committee, there are many such people in the industry—so it may not be necessary to fully train everybody for five years. Nevertheless, it will be a very steep cliff to climb to get those 32 inspectors, at least, in place for whenever we take over inspections from Euratom. I sincerely hope, as I am sure all Members do, that those matters can be resolved. It may be a question of making sure that the ONR is funded to the extent that it can properly undertake that activity of fishing in a small pool—perhaps, as I mentioned in Committee, with pound notes attached to the end of its fishing line.
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A number of other factors relating to nuclear inspections may also come into play. Euratom may be prepared, as part of an association agreement, to lend the UK safeguarding inspectors. A number of different courses could be pursued. Nevertheless, there is a big question mark against the capacity and ability of the ONR, even with all best endeavours in place, to be properly ready in time, given its present circumstances, its possible future circumstances and how it will address them.
For that reason, it is important, at the appropriate time, to have sign-off from the Secretary of State that we have in place not only a regime but the resources available to carry out work under it in the new circumstances. That appropriate time will be when all the different possibilities have been explored and when the different ways of doing things have been looked at. Amendment 4 would require the Secretary of State to lay a statement before Parliament that, at that point, he or she is satisfied—and does not simply hope—that everything looks all right and that we can safely proceed on the basis that we have not only the powers in place but the people and resources to use those powers.
There are further things we will need to do to be able fully to present to the IAEA our case that we have a regime in place that it can happily endorse as our new voluntary arrangement with it— the treaty with the IAEA that the Minister is engaged in negotiating at the moment. I am sure we will know the outcome of those negotiations in the fullness of time, and I understand that they are going well, but we will need to have all our ducks in a row in satisfying the IAEA about where we are.
One thing we will need to do is make sure that we have aligned all existing legislation with the new regime that we establish, and here things get difficult. The Government have chosen the easy way out in doing that, and they have given rise to enormous disquiet about the procedure they have adopted and its potential consequences. In clause 2, they have given the Secretary of State plenipotentiary powers to amend retrospectively by regulation not one but two Acts of Parliament agreed previously by this House. That can be done on
the basis not only of negotiations we do not know about but of treaties we have not had sight of and that are, indeed, not yet concluded.
The powers that are given to the Secretary of State in clause 2— Henry VIII powers, essentially—would have been familiar to Henry VIII himself, because the King was a self-absorbed tyrant who had little time even for the rudimentary Parliament of his day. Mercifully, such powers have not been used quite so frequently subsequently —there are a number of people one might think about in that role, although I would exclude certain people, obviously.
Although such powers have not been used very frequently in this House subsequent to the monarch who gave them their title, they have been used a little more frequently in recent years. The House has fought for many years against the idea that the Executive, by executive action, can overturn, amend or take in a different direction what Parliament has decided through legislation. When such powers have been sought in the past, they have in some instances been successfully challenged, and on many occasions strongly challenged, on both sides of the House.
You might have gathered, Madam Deputy Speaker, that I do not like Henry VIII powers. We think that they overturn the sovereignty of Parliament in dealing with issues such as these and give the Executive powers that are unwarranted on virtually all occasions. Legislation should be written in that form only in a dire emergency, where a calamity will befall the nation if such action is not taken. In all other circumstances, legislation should properly appear before Parliament to be debated. If the legislation replaces or substantially amends primary legislation, the process should also be one of primary legislation.
In this instance, the primary legislation that might be envisaged would not detain the House forever or be particularly complex or difficult. Indeed, on Second Reading we saw how it was possible, with good will on all sides, to take all stages of a Bill through the House on one day. When changes are made with consensus in the House, the procedure is rapid, straightforward and achievable. Why can that procedure not be adopted for this legislation? Is it because of a national emergency, or will the sky fall in? Has it not been possible to find parliamentary time to undertake what would be neat and precise Bills with all-party support to make the amendments that the Government want? Indeed, based on what has previously been achieved, would a brief piece of legislation taken on the Floor of the House not have agreement in all parts of it?
I am not persuaded, nor do I think I would easily be persuaded, that it is impossible to proceed through primary legislation for these aligning pieces of legislation. Clause 2 as drafted does not have to be included in the Bill, but the Government have chosen to do so. When all the proceedings have concluded, legislation will need to be in line with new procedures elsewhere on the statute book. That is not the issue; the issue is whether, in order to bring that legislation in line with whatever we have agreed, we effectively declare a quasi-national emergency and say that we have to adopt Henry VIII clauses. That would be quite wrong not only in this Bill, but in most other pieces of legislation in which I suspect the Government may be tempted to include them to get round the proper procedures in the House in the process of aligning our laws post Brexit.
Ideally, we would like simply to strike clause 2 out and say, “You should not do it in this way at all,” but frankly, that might be seen as wrecking the Bill, because a lot of other material would have to be written into the Bill in order to remove the provision fully. In the interests of making progress, and in the absence of what we think should be the final, proper procedure, we suggest in amendment 5 procedures that would not strike the clause out but would amend it very substantially, so that it would at least to some extent come back for parliamentary consideration.
In my view, that is probably still not good enough. There are still Henry VIII clauses in the Bill, but at least the amendment would go some way towards ameliorating the unacceptable way in which those clauses work at present. To my mind, that is the minimum change in the arrangements that the Minister should accept. If he cannot, we will want to pursue the matter, at least as far as a Division this afternoon.
Finally, I will say a brief word on amendment 6, which has been tabled essentially to remind the Secretary of State that at the time of writing, no draft regulations relating to Bill had appeared. I would have expected that to happen as an essential part of enabling proper scrutiny of a Bill to take place. However, after the amendment was tabled, as if by magic, the draft regulations were published at 4.30 pm last Friday—30 minutes before the close of play for the admissibility of amendments for this stage of the Bill. Happily I can report, having scrutinised them in record time, that they appear to be uncontroversial in their application, so I thank the Minister for finally arranging for them to be produced. It is not his fault that he was under such time constraints to slot the Bill into the legislative process when it was not really ready for examination, but I note, in finishing, that that is really not the way to do good legislation in this place.