Clause
51
Funded
decommissioning programmes: verification of financial
matters
Amendment
proposed: No. 40, in clause 51, page 44, line 29, at end
insert—
‘(3) Regulations may
establish a Nuclear Liabilities Financing Assurance Board (NLFAB) to
provide independent scrutiny and advice on the development,
approval, implementation, modification and maintenance of funded
programmes for the designated technical matters mentioned in section
41(5).
(4) The NLFAB
shall—
(a) be appointed
by the Secretary of State;
(b)
report to Parliament annually on the implementation of all funding of
designated technical matters as specified in approved funded
programmes;
(c) review all
programmes on a five year cycle, including coverage of all designated
technical matters specified in approved funded programmes, estimates
for costs for all matters under section 41(5) and of security provided
in connection with those
costs;
(d) give advice on
alternative arrangements where designated technical matters are not
specified in an approved funded programme.’.—[Martin
Horwood.]
Question
put, that the amendment be
made:—
The
Committee divided: Ayes 2, Noes
13.
Division
No.
3
]
Question
accordingly negatived.
Question proposed, That
the clause stand part of the
Bill.
Malcolm
Wicks:
Let me say a few words on the clause, although I
was tempted to let it go, given the hour. The clause allows the
Secretary of State to make regulations setting out the circumstances in
which he may rely on advice provided by a third party to verify
financial aspects of a programme. The regulations might apply when the
Secretary of State is considering whether to approve a programme or
when a modification to a programme that has already been proposed is
being considered. The Secretary of State will not be an expert
on the financial matters that might relate to a programme, so it is
important that he can call on expert and independent advice when
seeking to verify such matters.
In addition to
the clause, and as detailed in the nuclear White Paper that we
published in January, we intend to create a new independent advisory
body—the nuclear liabilities financing assurance board. Aside
from providing independent scrutiny and advice on the suitability of
decommissioning programmes submitted by the operators of new nuclear
power stations, the board will advise the Secretary of State on the
financial arrangements that operators plan to put in place to cover
waste management and decommissioning. Our debate just now illustrates
the importance of those plans.
The board will
also advise the Secretary of State regarding the regular reviews and
ongoing scrutiny of funding arrangements once programmes are approved
and new nuclear power stations are operational. Given the importance of
providing the taxpayer with adequate protection, it is
appropriate—indeed, necessary—to have an additional level
of scrutiny on those financial matters, because they are fundamental to
ensuring that operators meet the full costs of decommissioning and
their full share of waste management costs.
Question put and agreed
to.
Clause 51
ordered to stand part of the
Bill.
Clause 52
ordered to stand part of the
Bill.
Clause
53
Offence
to fail to comply with approved
programme
Charles
Hendry:
I beg to move amendment No. 36, in
clause 53, page 45, line 22, after
‘indictment’, insert
‘in a case of
dishonesty,’.
The
Chairman:
With this it will be
convenient to discuss the following amendments: No.
35, in clause 53, page 45, line 23, leave out ‘2’ and
insert
‘5’.
No.
37, in
clause 56, page 46, line 38, leave
out ‘or
misleading’.
Charles
Hendry:
This clause sets out clear rules on
decommissioning and waste handling programmes. We would all agree that
this could not be a more serious issue, which goes right to the heart
of the debate about the safety of a new nuclear programme. Anyone
breaking laws on this will be in absolute breach of the rules and
regulations that Parliament has put in place to ensure that new build
nuclear programmes will be as safe as possible, not to mention the
breach of trust of all the assurances that would have been given. We
need penalties that would reflect the seriousness of such an
offence.
Amendment No.
36 would add the words
“in a case of
dishonesty”
so that it
would be clear that the action has been wilful and deliberate. If the
action happened accidentally or inadvertently, it should be treated
with a different level of severity. Amendment No. 35 relates to the
severity of the penalty for such breaches of the law. Two years does
not seem a very serious jail sentence for someone
who has failed to comply with an approved funded
decommissioning programme. Such a failure could have serious
consequences for public health, and a sentence of five years’
imprisonment seems more
appropriate.
John
Robertson (Glasgow, North-West) (Lab): Who does the hon.
Gentleman mean by the person? Does he mean the person
who inadvertently did the wrongdoing, in other words the worker, or
could it be the manager or his boss who instructed him to do
the job in the first
place?
Charles
Hendry:
It is the person described in the Bill. The Bill
has already referred to the person to whom the fine would apply. One
assumes that it would be the person who has taken the decision and has
been in a position of authority. That is one of the reasons for my
earlier amendment. If someone might be considered as a worker within
the facility where something had happened wrongly and could not be
perceived to carry responsibility for those acts, that should be taken
into account too.
The
explanatory notes do not explain the level of the fine involved so
perhaps the Minister could clarify that. Amendment No. 37 relates to
the penalties for those who have supplied false information to the
Secretary of State. It includes the term “false or
misleading”. I fully understand why a person
who has knowingly or recklessly supplied false information should be
liable to punishment, but I am concerned about the term
“misleading”. It is a very subjective term and could lead
to people being convicted who have supplied information that is deemed
misleading by the courts, when that was never their intention when they
provided the
information.
Martin
Horwood:
The amendments are puzzling. Amendment No. 36
introduces the phrase
“in
a case of dishonesty”
into
subsection (3)(b), thereby raising the threshold for a judge using
prison as an option. Otherwise they will simply impose a fine. We have
a problem with our prison population and there may be a feeling that
the thresholds that apply to imprisonment when violence against people
or property is involved or when it is unsafe for someone to be allowed
outside should be enforced, but that other crimes perhaps should not
allow that option.
It
is interesting that the Conservative party should suggest raising the
threshold for which prison is an option when there might be a serious
threat to life and health from one of these
decommissioning programmes not being properly carried out or when there
might be a threat to Government finances from a body corporate as well
as an individual acting in a deeply negligent way. It seems better, and
I shall be interested to hear any further comments from the hon.
Gentleman, to leave cases like this to a judge’s discretion
rather than trying to prescribe it too closely in the Bill, lest we be
thought to be soft on nuclear
crime.
Amendment
No. 35, by contrast, seems to go in the other direction and seeks to
increase the prison population by sending anyone who is convicted to
prison for five years not two years. Perhaps this is proposed for fear
that the Government might not be able to fill all the new prison places
that his hon. Friends want to build. I do not know. Again, that seems
not to have an obvious
justification.
Mr.
Swire:
Is there not an inherent contradiction in what the
hon. Gentleman is saying? He accuses my hon. Friend of raising the
threshold for conviction, but if he examines the next amendment he will
see that my hon. Friend suggests raising the penalty. Rather than being
soft, surely we are being hard?
Martin
Horwood:
In his slight confusion, the hon.
Gentleman has reinforced my point that the amendments
propose contradictory things. Amendments Nos. 36 and 37 would raise the
threshold for punishment, where as amendment No. 35 would increase the
punishment, so they point in opposite directions. Amendment No. 37 is
mysterious in seeking to remove the offence of supplying misleading
information to the Secretary of State. That could be just as damaging
and dishonest as supplying false information. Why are we raising the
threshold for corporate responsibility and denying judges the right to
impose those kinds of penalties? We will not support the
amendments.
Charles
Hendry:
We are trying to say that the full power of the
law should not be used against people who inadvertently get into a
position where there has not been wilful deceit and dishonesty. We
would raise the threshold of proof that must be demonstrated in order
to prosecute. Having raised the threshold, the penalties for those
people should be higher. At the moment, people who have not been
fundamentally dishonest may end up being prosecuted, and we want to
avoid that. We are also saying that where people have wilfully and
dishonestly acted in this way, two years does not seem to be enough;
five years seems more appropriate.
Martin
Horwood:
I was about to conclude my remarks, but I am
grateful to the hon. Gentleman for his intervention. He has clarified
the rationale for amendment No. 35, at least. If taken with the other
two amendments, and only then, that amendment makes some sense in that
it is a higher punishment for a higher threshold of crime. However, I
still do not see why, since in other parts of the law we punish
recklessness and the supply of misleading information, we should not
punish it on this occasion. I would be happy to see the clause remain
as it is.
Malcolm
Wicks:
Let me act as a referee in these interesting
discussions between the two former great parties of our nation, which I
always enjoy. Rather like those on the Liberal Democrat Benches, I have
wondered whether there was a connection between recent announcements
and the amendment. The hon. Member for Wealden would never take the
Committee for granted, but I had wondered whether, in
announcing 5,000 new prison places, his colleagues were being prescient
about the way in which he would sway the Committee to support this
amendment for further imprisonment. He may, sadly, be disappointed. I
notice that the leader of his party has recently, perfectly properly,
talked about the importance of education and training programmes in
prison. Perhaps he would like to table a
later amendment to suggest that among the training programmes should be
masters degrees in nuclear science, so that people will be properly
enabled to re-enter the community.
Amendments
Nos. 35 and 36 relate to clause 53, which makes it an offence to fail
to comply with a programme. Amendment No. 37 relates to clause 56,
which makes it an offence to supply false or misleading information. We
have made it clear, both in our White Paper and in the draft guidance,
what a new nuclear operator’s obligations will be in the context
of meeting decommissioning and waste management costs. We believe that
the framework that we are putting in place will achieve that outcome.
We are therefore confident that no one will be sent to
prison.
We want to be
as clear as possible about what the obligations are. We are requiring
that operators put robust requirements in place to meet their
liabilities and underpinning the framework with criminal sanctions for
non-compliance. Clause 53 makes it a criminal offence for an operator,
or a person with obligations under an approved programme, not to comply
with the programme, unless they prove that they exercised due diligence
to avoid committing the offence.
Anne
Main:
I am delighted that the Minister is acting as a
referee between the various opinions. Has there been any examination of
the structures in place for companies that operate abroad in terms of
legal proceedings against people who recklessly, knowingly or willingly
mislead? Have the Government examined that and tried to put something
similar in
place?
Malcolm
Wicks:
I am not sure whether I can supply the hon. Lady
with information about that. I might consult the hon. Member for Stone
(Mr. Cash) to find out whether it is appropriate to use
European models. We will look at that and possibly return to the
matter.
6
pm
The failure to
comply with a programme could mean that the decommissioning and waste
management costs are not fully provided for, which puts public funds at
risk and therefore warrants the use of criminal
sanctions. We can draw on outside expertise, but in this instance, it
is for the UK Parliament to make judgments about these important
things. The clause forms a crucial part of the overall regulatory
structure, because it provides the key deterrent to companies and
others, as appropriate, against failing to comply with their
obligations under the programme.
Amendment No.
35 relates to the question of what the suitable penalty should be for
someone who fails to comply with an approved funding decommissioning
programme. In developing the penalties under clause 53, we have looked
at other legislation and at other requirements to
have in place decommissioning programmes—namely, in the oil, gas
and offshore renewable sectors. It should be noted that the provisions
for new nuclear power stations will complement legislation and
conditions that apply to existing nuclear power stations—for
example, under the Nuclear Installations Act 1965, which contains
offences and penalties for contravening certain licence conditions
regarding the use of a nuclear site.
Amendment No.
35 would increase the sanction from two to five years, but it would
have no material impact on the incentive for an operator to comply with
a programme—it might give them slightly more time to write their
first novel or play, but it would not have a serious impact.
Furthermore, it would take the sanctions for nuclear out of step with
the decommissioning regimes that we have in place for offshore
renewables and oil and gas installations.
It is important to remind the
Committee that the provision aims to ensure that operators comply with
their requirements to set aside adequate funding for decommissioning
and waste disposal. The measure does not concern health and safety or
environmental issues, which will continue to be dealt with by the
Health and Safety Executive and the Environment Agency and the
statutory provisions and sanctions that support those
agencies.
Amendment No.
36 would reduce the effectiveness of clause 53, so that the maximum
sanction only bites when the breach of a programme has been committed
dishonestly. That amendment would reduce the deterrent effect of the
clause and undermine the robustness of the regime as a whole. I
recognise that, in conjunction with amendment No. 35, amendment No. 36
would result in the maximum penalty under clause 53 being higher than
that proposed in the Bill. Taken together, those two amendments would
also ensure that breaches of the programme because of carelessness or
negligence would only be punishable in a magistrates court, where the
fine does not exceed £5,000.
We consider
that the threat of prosecution in the Crown court in such cases, with
the attendant enhanced penalties, provides an additional and important
deterrent. There is a risk that the proposed amendments might send out
the wrong message, which is that the Government will only prosecute in
one specific circumstance: dishonesty. We want to send out the message
that, where there is a breach, the operator will have to demonstrate
that they did everything that they could to avoid committing the
breach, which is what the clause will achieve.
In the context
of offences, I should also mention clause 87, which sets out that,
where offences are committed by bodies corporate, directors and other
officers of the operator may also be prosecuted personally where the
relevant acts were committed with their consent or connivance or were
attributable to their neglect. The clause creates a significant
incentive on the part of the management of the operator to ensure that
the company complies with the programme. It seems unnecessary and
disproportionate to increase the penalty further, as proposed in
amendment No. 35, in view of that additional
sanction.
Amendment No.
37 is similar to amendment No. 36, as it seeks to remove the term
“misleading” from clause 56. Again, I do not believe that
that amendment should be accepted, as it would make it acceptable for
an operator to submit information that, although not false, did not
provide the full picture in relation to a particular issue—for
instance, an attempt to cover up a breach in a programme. In my mind,
the act of misleading is deliberate, and I am not sure that the public
would be comfortable with a Minister saying that it was acceptable for
a person to submit misleading information without
facing sanctions. That amendment would undermine one of the foundations
of the regime,
which is that the Secretary of State must be able to
take decisions based on full and accurate information. For that reason,
it should not be accepted. Clauses 53 and 56 are designed
to send a clear message to operators about acceptable behaviours; if
those behaviours are not maintained, the Government will have recourse
to a sufficient sanction. If we were to accept the amendment, I believe
that, overall, the Government would send out a less robust message. I
therefore ask the hon. Gentleman to withdraw the
amendment.
Charles
Hendry:
I also asked the Minister to clarify what level
the fine will be, as that is not to be found in the explanatory
notes. Most sections of the explanatory notes that deal with fines
explain that, if a case goes to the Crown court, an unlimited fine can
be imposed, but the notes on these clauses do not provide that
information. It would be useful to know what the level of fine will
be.
I am grateful
to the Minister for the detail with which he went through the
amendments in his responses. I understand that a balance must be
struck. My concern is that people who had been in breach, but not been
wilfully so, should not be treated in the same way as in cases that
involved a much greater act of malevolence.
In amendment
No. 35, we propose raising the limit from two years to five. I disagree
with the Minister when he said that the difference would not put
someone off. The risk of losing one’s liberty for five years
rather than two—or even parole for two and a half years compared
to one—is significant; people would react to that and deal with
it.
The Minister
said that what we propose is out of step, for example, with punishments
under the oil and gas regulations. We would all feel that someone who
was in breach of nuclear regulations deserved an altogether different
punishment from those in breach of oil and gas regulations; there
should be much greater severity, and the public would expect there to
be some difference. However, I understand what he said about the
punishments available elsewhere in the
Bill.
Malcolm
Wicks:
To save me making a separate
speech, I can answer the hon. Gentleman’s
specific question. The fine would be unlimited. It would therefore be
up to the court to
determine.
Charles
Hendry:
I am grateful to the Minister for clarifying that
point.
The final issue
was about the word “misleading”. Hon. Members are aware
that we should not say that a colleague had misled the House, although
we can say that they had done so inadvertently. It is recognised that
misleading is not always deliberate. By accident, one can sometimes say
things that are misleading; it may not always be the intention. My
concern is that, in this case, the word covers both deliberate
and inadvertent acts.
I shall not
press the amendment to a Division. However, I am keen to seek further
legal advice, and we may return to the issue on Report. I beg to ask
leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause 53 ordered to stand
part of the Bill.
| 
