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Lord Lester of Herne Hill: I hope that my noble friend Lord Meston and the noble and learned Lord, Lord Ackner, will forgive me for not being enthusiastic about this amendment for a reason that I can explain briefly. I was once guilty of a constitutional solecism in The Queen v. Secretary of State for Employment, ex parte

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Equal Opportunities Commission. In that case relief was sought against Mr. Michael Howard (then Secretary of State for Employment) for his failure to introduce legislation amending the employment protection legislation so as to remove indirect sex discrimination against women. Reliance was placed on directly effective provisions of European Community law.

It was pointed out both in the House of Lords and the lower courts that one could not seek that kind of direct relief without invading the prerogative and privileges of Parliament as an institution, and there would be clashes between the law of Parliament and the law of the courts if one sought what was tantamount to an order against the Secretary of State for failing to introduce legislation into Parliament. Instead, what the Law Lords did was in a way more aggressive. They disapplied the legislation and displaced the inconsistent provisions. They could do that because Section 2 of the European Communities Act so required.

I am a reluctant convert to the proposition in this Bill that the courts should not have the power to strike down legislation or interfere with parliamentary sovereignty. It therefore seems to me to be sensible to include Clause 6(6) as the logical consequence of that decision so as to prevent the kind of challenge that I have endeavoured to summarise for the reasons that I have given.

The Lord Chancellor: The noble Lord has explained that the purpose of his amendment is to ensure that the courts are not inhibited from making a declaration of incompatibility when the case before them turns on the absence of legislation rather than on a specific provision of legislation which is said to be incompatible with the convention rights. His particular concern is with cases where a public authority interferes with a convention right in an area which is not regulated by law. I shall try to explain that the Bill provides a remedy for the individual in the kind of case that has prompted this amendment and that the amendment has an effect which is inconsistent with one of the fundamental principles on which the Bill is based.

If a person believes that his convention rights have been violated as a result of action by a public authority which is not governed by legislation the right course is for him to bring legal proceedings against the authority under Clause 7 of the Bill or to rely on his convention rights in any other legal proceedings to which he and the authority are a party. If the court finds in his favour it will be able to grant whatever remedy is within its jurisdiction and appears just and appropriate. The fact that there is no specific legislation for the court to declare incompatible with the convention does not affect the ability of the person concerned to obtain a remedy. The absence of legislation entails that there is no legislative warrant for acts in breach of the convention by the public authority. The Minister, however, as the noble Lord, Lord Lester, rightly points out, is protected by Clause 6(6) from any claim that he is in breach by failing to bring forward legislation. That is part of the scheme of the Bill to underpin parliamentary sovereignty.

Further, the purpose of a declaration of incompatibility is to allow the courts to make a public statement that they cannot interpret legislation in a way which is

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incompatible with the convention rights. It is just not possible to do so. This provides a trigger for the power to make a remedial order in Clause 10. Because the Bill protects public authorities which are acting so as to give effect to primary legislation, even if the action is incompatible with the convention rights, there is nothing that the courts can do to provide a remedy to the person affected by their actions. That is why the power to make a declaration of incompatibility is needed in these cases. There is no corresponding need to make a declaration of incompatibility in cases where the problem is an absence of legislation, because there is nothing to stop the courts providing a remedy in those cases. There is no legislative bar or block on the courts doing so. On the contrary.

I therefore believe that the noble Lord, Lord Lester, is right not to be enthusiastic about this amendment. I believe that the noble Lord's amendment is unnecessary and would have undesirable consequences if it were accepted.

Clause 6(6) exempts from Clause 6 a failure by a public authority to,

    "introduce in, or lay before, Parliament a proposal for legislation; or ... make any primary legislation or remedial order".

This amendment would remove that exemption so that a failure by a public authority to do one of those things would be capable of being challenged in the courts on the grounds that it was unlawful because it was incompatible with one or more of the convention rights.

In effect--and I believe this to be the compelling argument against the amendment--it would make a decision not to enact primary legislation justiciable before the courts. That would be inconsistent with a fundamental precept of our constitutional arrangements; namely, that the courts do not interfere with the proceedings of Parliament. In short, the Bill is designed to preserve parliamentary sovereignty and this amendment would encroach upon that.

As to the examples which the noble and learned Lord, Lord Ackner, gave, in those cases, the Government would of course consider whether to make a legislative response to any decision of the Strasbourg court. I should add also that judges do, in their judgments from time to time, draw attention to the need for Parliament to consider legislative change and after the passage of this Bill they will remain as free to do that as they have always been and have felt themselves free to do.

Lord Renton: Before the noble Lord, Lord Meston, replies perhaps I may say that the noble and learned Lord the Lord Chancellor has gone a long way towards filling the gaps in my mind. However, he has not dealt with the question which I asked him to deal with in relation to the words "remedial order". It would seem that a remedial order means an order made by a court of law. Bearing in mind that earlier we were talking about parliament and legislation, for the sake of clarity should we not make it clear that that refers to a remedial order by a court of law?

The Lord Chancellor: "Remedial order" is an order of the kind defined in Clause 11.

Lord Meston: Dealing with the "remedial order" point, the noble Lord, Lord Renton, has spotted a drafting

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defect in the Bill which has irritated me in the sense that Clause 11 refers for the first time to a definition of a remedial order, or a partial definition of it when in fact it covers Clause 10. It would be much more helpful to have somewhere in Clause 10 the phrase "remedial order" introduced for the first time. But that is a drafting point rather than anything else.

I am grateful to the noble and learned Lord, Lord Ackner, for his assistance in supporting this amendment. I am comforted by the explanation of the noble and learned Lord the Lord Chancellor which suggests that it will be no defence to proceedings brought under the convention to say that there is no appropriate legislation. That is a substantial answer to the point raised by the amendment.

But I do not accept the proposition that a failure by the Executive to legislate is in any way an infringement of parliamentary sovereignty. Surely it is the absence of any parliamentary activity which is involved and the absence of any parliamentary initiative by the Executive. That is the situation about which I am troubled in this amendment.

Having said that, I am conscious of the fact that a substantial answer has been given by the Government to the point raised in this amendment and that it does not have the support of my noble friend Lord Lester of Herne Hill. I shall not completely scuttle off with my tail between my legs but I will beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6, as amended, agreed to.

Lord Haskel: I beg to move that the House be now resumed. In moving this Motion, I suggest that the Committee stage begin again not before 8.35 p.m.

Moved, That the House be now resumed.-- (Lord Haskel.)

Lord Simon of Glaisdale: May I ask the Whip until what time it is proposed that we should sit this evening? In asking that question, perhaps I may remind him of the Rippon Committee recommendations on the Sittings of the House and also the fact that we have had three introductions and a Statement lasting three-quarters of an hour.

Lord Haskel: I shall respond to that when we return after the Dinner Hour when I shall have had the opportunity to consult the people who are dealing with the Committee stage of the Bill.

Lord Simon of Glaisdale: I am much obliged to the noble Lord.

On Question, Motion agreed to.

House resumed.

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Food Protection (Emergency Prohibitions) (Dounreay Nuclear Establishment) Order 1997

7.36 p.m.

Baroness Farrington of Ribbleton rose to move, That the order laid before the House on 31st October be approved [12th Report from the Joint Committee].

The noble Baroness said: My Lords, the order before the House today seeks your Lordships' approval for an emergency order made on behalf of the Secretary of State for Scotland to ban fishing for all species of fish and shellfish in an area of water around the Dounreay nuclear establishment.

The order was made on 29th October as a result of the detection of 34 fragments of irradiated fuel by the United Kingdom Atomic Energy Authority (UKAEA) during its recent survey of offshore sediments. The survey was an extension to the Atomic Energy Authority's survey programme aimed at establishing the source of particulate contamination detected on the Dounreay foreshore since 1984 and on the public beach at Sandside Bay.

The decision to make this Food and Environment Protection Act (FEPA) order was based on advice from the Scottish Environment Protection Agency, (SEPA), which is the regulatory agency and acts as a source of independent advice to the Scottish Office. In providing this advice, the Scottish Environment Protection Agency has carefully considered the information currently available. It has taken into account the contamination of seabed sediments by fragments of irradiated nuclear fuel extending for at least 1 kilometre laterally along the coast from the Dounreay main site outfall. On the basis of that information, the Scottish Environment Protection agency requested a restriction on the harvesting of seafood around the area as a precautionary measure.

The order therefore prohibits the taking of all species of fish and shellfish within a 2 kilometre area of water around the main outfall pipe of the Dounreay nuclear establishment, again as recommended by the Scottish Environment Protection Agency. I must emphasise that our aim in taking the action is to ensure effective protection of public health.

I am advised, on the current information available, that the risk to public health is likely to be very low, although there does remain a possibility that fragments of the irradiated nuclear fuel could be taken up by seafood species and subsequently enter the human food chain. If a fragment of this irradiated nuclear fuel was to be ingested, it could result in severe acute radiation effects and significant long term health effects. That is the reason, therefore, that this precautionary measure has been taken. The protection of public safety is of paramount importance.

We are advised by the Scottish Fisheries Protection Agency (SFPA) that very little commercial fishing takes place in the closed area of water. Some fishing for crabs and lobsters takes place on a seasonal basis. We have been advised also that the closed area may affect the

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harvesting of a run of wild salmon. It is not yet clear whether this run is within the exclusion zone, and that will need to be examined further.

By acting quickly to protect public health, we also ensure that the good name of the Scottish fisheries industry is protected. The quality of Scottish produce is second to none. In taking action to close the area for fishing as a precautionary measure, we can demonstrate to our trading partners and customers that the safety and quality of our produce is of paramount importance.

I must stress also that at this stage no fragments of irradiated nuclear fuel have been found in fish or shellfish during recent aquatic monitoring programmes in the area carried out on behalf of the Scottish Office by the Scottish Environment Protection Agency.

Indeed, following the making of the order a request was received from fishermen to recover their catch from the prohibited area. Consent was granted by the Scottish Office and on 4th November this year 69 creels were recovered under the supervision of the Scottish Environment Protection Agency and the Atomic Energy Authority. All the catch, mainly crabs and lobsters, was individually monitored, and no radioactivity was found. The catch was detained for further examination by the Scottish Environment Protection Agency and the Atomic Energy Authority. Some contamination was found adhering to one creel. It consisted of a small piece of black tape, which showed readily detectable levels of radioactivity. Further detailed analysis of the tape is currently under way.

Fragments of irradiated nuclear fuel have been found on the Dounreay foreshore since 1984 at a rate of approximately one per month. The Committee on Medical Aspects of Radiation in the Environment (COMARE) and the Radioactive Waste Management Advisory Committee (RWMAC), in their independent reports, published in May 1995, concluded that the chance of a member of the public encountering a fragment on the beach was considered to be extremely small. The operator has undertaken investigations to find the source of the material. The work was restricted initially to the foreshore. Following an isolated find at Sandside Bay earlier this year, investigations commenced offshore and 34 fragments were found in offshore sediments. Their presence was notified to the Scottish Environment Protection Agency which has made a clear recommendation that interim action is required.

The order is based upon these recent results. The extent of the ban relates to an area of 2 kilometres of the main outfall pipe of Dounreay and reflects the extent necessary to deal with the current situation. The source of the fragments has not yet been identified by the Atomic Energy Authority. Once that is determined a more accurate assessment of the risk will be possible.

The Scottish Environment Protection Agency has confirmed that it will ask the National Radiological Protection Board (NRPB) to assist it in producing an assessment of the risks from fragments of irradiated nuclear fuel offshore at Dounreay. When the results of that assessment are available, the Scottish Environment Protection Agency will reassess its current advice. I am

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certain that the Scottish Environment Protection Agency and the National Radiological Protection Board will undertake that work as quickly as possible, but it is likely to take some months.

I must re-emphasise that our aim in taking this action is to safeguard public health. I beg to move.

Moved, That the order laid before the House on 31st October be approved [12th Report from the Joint Committee.]--(Baroness Farrington of Ribbleton.)

7.45 p.m.

The Earl of Courtown: My Lords, I thank the Minister for her clear and concise explanation of why the order has been brought before us. I realise that in such incidents, as the Minister said, public health is of paramount importance. I note that she confirmed that there had been no evidence of contamination of fishing species in the area. I should like to know who carried out the inspections off the coast at Dounreay.

Is the Minister aware that the order will not affect just the 2 kilometre area about which she talked but the reputation of all fish and shellfish caught throughout northern waters? As the Minister confirmed, it must be emphasised that produce from outside the area has not been found to be contaminated.

I was made aware in the early part of the year that fishing is of prime importance economically in this area. I hope that the Minister will make her right honourable friend aware of that fact, especially as I believe--I should like her to let me know whether or not this is so--there is no compensation available for fishermen as a result of the order. We of course support the order, but we are concerned for the livelihoods of those fishing in northern waters.

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