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Lord Monson: My Lords, I agree with the noble Earl, Lord Russell, that this is a balanced and well drafted amendment. For what it is worth, I wholeheartedly support it.
Lord Rooker: My Lords, the noble Lord, Lord McNally, stumped me again by not moving Amendment No. 7. Yesterday, these were Amendments Nos. 103A and 103B. I had a nice combined speaking note for both. I decided that because I had marked them up that I did not want to be given fresh copies because I would have to do all that work again. Therefore, I have yesterday's notes. I have gone through them. The clause numbers have changed as well. That does not help matters. But that is my responsibility. I shall not get sucked into dealing with Amendment No. 7 but will concentrate on Amendment No. 8. If I need to refer back to the other issues I shall.
This issue should not be a problem for noble Lords. The amendment is well drafted. I am not arguing about that. It simply says that,
- Xit is a defence for the accused to show that the public interest in disclosure of the information relating to the transportation of nuclear material outweighs the public interest in not prejudicing the security of that material".
I invite noble Lords to continue reading because Clause 80 provides that a prosecution can be instituted only by or with the consent of the Attorney-General. The Attorney-General is able to weigh up the public interest in considering whether any prosecution should be brought.
I want to make another point. I refer to Clause 78 of the Bill. That states that an offence would be committed only if there is deliberate or reckless disclosure of information that prejudices security. Whether an offence has been committed will depend on the facts of the case. That is for the courts to assess.
I point out that there is a great deal of information on nuclear transport that has no security implications. This is not in any way intended to be an attack on monitoring by environmental groups on where nuclear matter is moved around the country. People standing and observing on bridges and railway lines can hardly be prejudicing security because they are collecting public information. The same applies to the disclosure of information already in the public domain. The dissemination of that information is very unlikely to fall within the offence here.
Lord Lester of Herne Hill: My Lords, I am grateful. Does the Minister therefore agree that the offence in Clause 78(1) would have to be read narrowly to conform to the right of free expression under Article 10 of the European human rights convention read with Section 3 of the Human Rights Act? Therefore, if there is a compelling public interest in disclosure that would have to be taken into account by way of defence.
Lord Rooker: My Lords, I assume that that would be the case. Clause 78(1) states that the disclosure is,
We are talking about protecting advance information on the transport of nuclear materials and the details of the security measures which apply to specific shipments. That disclosure would be prejudicial to security. There is no question about that. So it is disclosure, not monitoring of that type of information, that is of concern. Sometimes nuclear material, even waste material, must be moved around the country. It cannot always be left where it is. There are different levels of waste and nuclear material. A correspondent often said to one of my right honourable friends as he defended the industry, XYou should have it all in your backyard". Drigg, where all the hospital nuclear waste goes, is in the Copeland constituency of my right honourable friend. It is in his backyard.
The X-ray departments of hospitals in this country could not function if the disposal of low level waste could not be accommodated. That is not the central issue here.
As far as I know, over the past 30 years within the UK our transport arrangements have been in conformity with the International Atomic Energy Agency's standards. There have not been any incidents here involving serious injury or death or significant harm to the environment. The fact is that we are not after environmental monitoring. We are after advance notification of movements and shipments, where security could be put at risk.
Lord Lester of Herne Hill: My Lords, I am not sure that the Minister appreciates the force of my question. Perhaps I may I explain it and see whether he agrees with me. The prohibition on disclosure relates to nuclear security. It is therefore a restriction on free expression. Under the European convention it must be no more than is necessary in a democratic society—it must be proportionate. Does he agree that, in any event, Clause 78 must be read subject to the Human Rights Act 1998, so the principle of proportionality must apply to the offence?
Lord Rooker: My Lords, that may be so. As noble Lords know, I cannot understand all this because I am not a lawyer, only a humble engineer who, once upon a time, made things that people find useful rather than destroying their reputations.
The Lord Bishop of Portsmouth: My Lords, at the risk of pulling the Minister's leg, is being an engineer better than a lawyer in his present situation?
Lord Rooker: My Lords, as I said, we make things; lawyers destroy people's reputations. I am not winding noble Lords up. I have taken an agnostic view in the past, but the fact is that this country's engineering skills are incredibly good, and we lead internationally in many such fields. We take an active part in discussions to improve the level of nuclear safety in areas of the world where improvements are needed.
The clause does not prevent disclosure of other information relevant to the nuclear industry—whether relating to safety, health or other such matters where people may feel it important to whistle-blow. We are committed to being as open as possible on nuclear policy. Inherent, sometimes unnecessary secrecy has caused difficulties in the past. If we are open and mature, we can take people with us.
I hope that I can answer the noble Lord, Lord Lester of Herne Hill. By definition, the provision is subject to human rights requirements. Obviously, there must be a balance of recklessness. Someone must decide in the first place whether the action is sufficiently reckless to prejudice security. I reiterate that it will not cover environmental monitoring or whistle-blowing on health and safety matters. It is about giving advance notice of transport movements that leaves them open to attack.
I reiterate that prosecutions will occur only by or with the consent of the Attorney-General. That is an important safeguard.
Lord McNally: My Lords, I know that the noble Lord, Lord Rooker, has been on this Bill for a long time, but he has just missed a great opportunity. The person who made the jibe about his being an engineer was the noble Lord, Lord Rees-Mogg, in The Times. He is a journalist. There was a marvellous opportunity to unite the lawyers and the engineers in a joint condemnation of the journalists—a real missed opportunity.
Our motivation in moving the amendment was to ensure that the clause would not be used to stifle genuine debate on the future of the nuclear industry or to stop genuine monitoring of the kind of issues that the Minister referred to in his closing remarks. I hope that there will be enough in his clarification to reassure interested groups. In that spirit, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 80 [Part 8: supplementary]:
Lord Dixon-Smith moved Amendment No. 9:
The noble Lord said: My Lords, the amendment arises from a debate during the third day of debate in Committee, at col. 682, when the noble Lord, Lord Sainsbury of Turville, was answering our questions. My noble friend Lord Elton questioned the term Xa United Kingdom person", asking who or what was such a person. The noble Lord, Lord Sainsbury of Turville, subsequently wrote, as he had undertaken to do, to define who or what is a United Kingdom person and what is the Government's policy. As a result of that letter, I conclude that we need to consider a gap.
Clause 79 gives the Secretary of State power by regulation to create an offence of trading or giving away information abroad about either fissile material or nuclear information for UK persons. In other words, if any of us get hold of nuclear information and trade it abroad, we can properly be charged with an offence.
So the question of who is a United Kingdom person is relevant. The description is carefully provided by the Government in Clause 80. It states:
I mention that the Bill is an anti-terrorism Bill. That is in its title—until we have amended it, perhaps. We must consider possibilities. It is an unfortunate and frightening fact that the events of September 11th were described in a good book in fiction about a decade ago. There is the awful possibility that it was read by both the security services in the United States and by Osama bin Laden or his minions. The inspiration for that dreadful crime could well have come from what was supposedly an innocent work of fiction.
We must then consider the two groups of people in this country that I mentioned, who are either living illegally under cover as United Kingdom citizens or are seeking to become United Kingdom citizens. It is not inconceivable that they could go abroad to trade in nuclear information or in fissile material and then return here. They would then be in a privileged
That is an unsatisfactory situation. While I am prepared to accept that the wording of the amendment may not be wholly satisfactory, I invite the Government to take on board that serious issue and see if they cannot find some way to resolve it before the Bill's proceedings are completed. I beg to move.
X(a) with the intention of prejudicing that security; or
(b) being reckless as to whether the disclosure might prejudice that security".
That is powerful language, in which a defence can be mounted, as I have explained.
5.45 p.m.
Page 42, line 3, at end insert—
X(d) any person illegally resident in the United Kingdom. or
X(e) any person resident in the United Kingdom and seeking United Kingdom citizenship."
X'United Kingdom person' means a United Kingdom national, a Scottish partnership or a body incorporated under the law of any part of the United Kingdom . . . For this purpose a United Kingdom national is an individual who is . . . a British citizen, a British Dependent Territories citizen"—
and so on—
Xa person who under the British Nationality Act 1981 . . . is a British subject; or . . . a British protected person within the meaning of that Act".
Our little amendment goes slightly further. Within our country we have people who may hope to become United Kingdom citizens. The last thing that they would want to do is to acknowledge as their place of residence the country that they came from. We also know that we have a large number of illegal immigrants. I say that we know; we do not know, but everyone makes the pretty good guess that we have.
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