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The Deputy Chairman of Committees (Lord Ampthill): I must remind the Committee that if this amendment is agreed to I cannot call Amendment No. 147A.
Lord Elton: Subject to anything the Minister is about to say which might change my mind, I endorse every word that my noble friend said about the principal amendment in this group. I do not believe that it is for Ministers to make orders creating new offences which then go through this House as secondary legislation. My noble friend has said it very well, but I wish that I had said it, too.
Lord Sainsbury of Turville: I propose to take together proposed Amendments Nos. 147, 147A and 147B, all of which deal with offences under the regulations to be made on the security of civil nuclear sites.
Clause 78 provides the power to make regulations on security in the civil nuclear industry. The aim of these regulations is to provide a strengthened and modernised regulatory regime to ensure the security of nuclear sites and nuclear material. This provides essential protection against risks from terrorists and proliferators.
To be effective, any regulatory regime needs to incorporate sanctions if the regime is breached. The effect of Amendment No. 147 is to remove the power
to make breach of the regulations an offence. However, such a power is essential and must remain part of this clause.Concern has been raised that we are here talking of power taken to create offences by secondary legislation through the negative resolution procedure. We consider this sufficient since the proposed offences and their associated penalties in subsection (3) of the clause are broadly comparable to those which already apply in the Health and Safety at Work etc. Act for breaches of regulations made under that Act whose provisions on offences may be imported into the regulations under subsection (2)(g) as described elsewhere. They are therefore already established and are not novel.
Furthermore, the Select Committee on Delegated Powers, which has considered the power to create secondary legislation included in this Bill, has made no comment on this proposed power in its report
Amendments Nos. 147A and 147B concern the type of offences that can be created under the regulations to be made under this clause on security in the civil nuclear industry. At present, Clause 78 provides that regulations may create two categories of offence, namely, summary offences and offences triable either way. The noble Baroness has proposed adding to these a third category, a solemn offence which, in Scots law, is tried on indictment only.
The Government do not see any need to create offences under the regulations that would be triable only on indictment. As I have explained, it is important to have effective sanctions for breach of the regulations, but we are confident that the existing offences in this clause fully provide for that.
I am advised that it would be rare to create a new crime which could be tried only on indictment. The normal approach is to specify, as this clause does, that a crime is triable as a summary offence or either way. Where an offence can be tried either way, it is left open to the prosecutor to decide, in all the circumstances of each individual case, what the appropriate procedure would be. To accept this amendment would go against the usual approach. In the light of these explanations I hope that the noble Baroness will not press the amendments.
Baroness Miller of Hendon: I listened very carefully to what the Minister said. He will not be surprised to learn that I do not agree with him. I feel very passionately that criminal offences should not be made by secondary legislation. I understand what the Minister said about the Select Committee looking at the matter and being unable to find anything wrong. It would be totally impertinent of me, a mere Front Bencher, to say that I do not believe that to be correct. In fact I do not think that it is correct. However, the Select Committee has made its decision. I certainly would not dream of testing the opinion of the Committee. Looking around I do not see any of my noble friends here. Having said that, I shall read carefully what the Minister has said. My first thought
is that I do not agree with it. This is a serious matter that should be dealt with by proper primary legislation.With regard to the Minister's comments on Amendment No. 147A, I did not propose that we should add the words Xsolemn proceedings". I said that the clause is not clear. I simply wanted to probe whether or not the provisions would apply in Scotland as they do in England and Wales. If I did not make that clear to the noble Lord, I apologise. Perhaps I was not as clear as I should have liked. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 147A and 147B not moved.]
Lord Sainsbury of Turville moved Amendment No. 147BA:
- Page 39, line 9, leave out from Xway" to Xor" in line 10 and insert X—
The noble Lord said: This group of amendments proposes three minor technical amendments to clauses in Part 8 of the Bill. These are needed to rectify minor drafting errors or to ensure consistency in the wording of the Bill as a whole. They have no implications for the policy intentions underlying the Bill.
The first proposed amendment relates to Clause 78. It makes clear the maximum penalties which may apply to offences created under the regulations that are triable either way. The maximum penalties will be different depending on whether the offences are tried in the magistrates' court or in the Crown Court.
The second proposed amendment concerns Clause 80. It ensures consistency in the language used in the provisions regarding extraterritorial jurisdiction in the civil nuclear security clauses and in similar clauses elsewhere in the Bill.
The third proposed amendment also concerns Clause 80. It corrects a small drafting error that occurred during the drafting of the Bill.
I am sorry to have to trouble Members of the Committee with these matters. Nevertheless, in the light of this explanation I hope that these amendments can be accepted.
On Question, amendment agreed to.
Clause 78, as amended, agreed to.
Clause 80 [Prohibition of disclosures in relation to nuclear security]:
Lord Sainsbury of Turville moved Amendments Nos. 147C and 147D:
On Question, amendments agreed to.
On Question, Whether Clause 80, as amended, shall stand part of the Bill?
Lord McNally: I want to be brief, to read something into the record and to get a ministerial response to a point that needs to be put and responded to. Clause 80 is headed XProhibition of disclosures in relation to nuclear security". Earlier I made it clear that from these Benches we fully accept that there is a threat to the nuclear industry from terrorism with the potential use of nuclear technology for terrorist purposes. We need to make sure both in this clause and right through the Bill that we get the right balance between meeting that threat properly and with a sense of urgency, and protecting civil liberties and legitimate debate.
I shall read into the record a paragraph from a letter sent by Greenpeace to Members of another place which puts succinctly the argument about Clause 80. It states:
That is the charge which Greenpeace makes and it is the dilemma which faces us throughout. Are Ministers convinced, certainly as regards Clause 80, that they have struck the right balance between protecting our nuclear industry from terrorist threat and allowing the legitimate debate which depends on access to information about the role which the nuclear industry should play in our country.
Lord Elton: As the Minister is not immediately rising to his feet, perhaps I may raise a more minor matter—I should have done so anyway—and one with which the Committee may be familiar. We have again the term Xa United Kingdom person". I know what a United Kingdom national is; I know what a United Kingdom citizen is; and I know what a United Kingdom resident is. Is this a new term and a different interpretation? I do not doubt that if the Minister is in difficulty the noble and learned Lord, Lord Falconer, will be able to help him. It is not a phrase with which I am familiar.
(i) on conviction on indictment, with imprisonment for a term not exceeding two years or a fine (or both); and
(ii) on summary conviction, with imprisonment for a term not exceeding six months"
Page 40, line 32, after XKingdom" insert X, but only if they are done"
Page 40, line 37, leave out from Xin" to end of line 38 and insert Xsubsection (5) affects any criminal liability arising otherwise than under that subsection"
XIt is of great concern to us that this Bill represents an unwarranted and unreasonable prohibition of the public's access to important information. With particular reference to Part 8—'Security of Nuclear Industry'—it appears that the Bill will act to prohibit the legitimate disclosure of information regarding the Nuclear Industry, nuclear waste, and the transport of nuclear material. This Bill is likely to result in the criminalisation of groups and individuals that legitimately oppose the Nuclear Industry. It will also prevent communities and individuals from being able to make informed decisions on how the Nuclear Industry affects their lives".
9.30 p.m.
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