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Baroness O'Cathain: May I suggest a nice way for the Minister to get out of this? That is to send the Bill back to the lawyers, together with all our contributions, to say "This is the problem; do they have right on their side? If they do, just change the Bill".
Lord Jenkin of Roding: I cannot add anything to that. It is a tough vote on this occasion. Indeed, I thought I detected a glimmer of hope in the Minister's first reply that the Government would look at it again. Without trying to be unkind, I think that the Minister found himself on exceedingly shaky ground in trying to draw a distinction between the Bill and the Freedom of Information Act 2000. If the remedies of the Freedom of Information Act are open to the contractors as he asserted, then it would be sensible to put that provision in the Bill. The Minister may be sure we shall come back to that. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 10 and 11 not moved.]
On Question, Whether Clause 3 shall stand part of the Bill?
6.30 p.m.
Lord Jenkin of Roding: I tabled this Motion to provide a peg for what I hope will be a reasonably brief debate. We have debated various aspects of Clause 3 at some length and it may well be that other members of the Committee will want to make different points from me. I want to raise only one point at this time.
This is an opportunity for the Government to clear up what are widely perceived as uncertainties about the NDA's role in the disposal of long-term waste. As I said on Second Reading, when the Bill was first published, and at a meeting that the noble Lord, Lord Whitty, was kind enough to call upstairs, there was widespread doubt in the industry as to whether we should expect some other body following the CoRWM report or, as the noble Lord, Lord Whitty, has, I think, subsequently said, that that may become a function of the NDA.
We had an exchange at Question Time. The Question was originally asked by my noble friend Lord Attlee about the Committee on Radioactive Waste Management, CoRWM, and the exchanges continued about geological disposal. Then the noble Lord, Lord Ezra, asked:
- "My Lords, reference has been made to the length of time we have already spent on this subject and the length of time we may still spend on it. Can the noble Lord indicate whether he thinks that as a result of some slight speeding up, this could be resolved when the proposed Nuclear Decommissioning Authority comes into office?".
- "My Lords, the Nuclear Decommissioning Authority will not deal with the kind of waste we are talking about here—it is about cleaning up sites. The timescale envisaged in the Energy Bill, which we debated last week, for the establishment of the NDA would probably be before the committee had completed its work".—[Official Report, 16/12/03; col. 1054.]
We raised the matter at the meeting on 6 January, and I came down from that meeting to find in my pigeonhole in the Attendants' Office a copy of a letter originally addressed to my noble friend Lord Attlee and copied to several of us that appears to correct what the Minister said on 16 December. In it, the Minister cited his Answer to the noble Lord, Lord Ezra, and went on to discuss the different kinds of waste. We are primarily discussing high and medium-level waste, but it is clear that the NDA will deal with low-level waste because, as I said on Second Reading, the Explanatory Notes refer to the Drigg repository.
The Minister states in his letter of 16 January:
- "It is also taken to include those proportions of spent fuel, plutonium and uranium which are likely to become regarded as waste during this period. In practice, the NDA's responsibility will be for the operational management of the wastes—including the 'higher activity wastes'—that arise or are held on the sites it takes over. This is provided for by clauses 3 (NDA functions) and 34 (clarifying definitions) of the Energy Bill. The NDA must manage its waste in line with Government policy. And this includes policy for the very long-term management upon which CoRWM will be delivering its recommendations. This is the key distinction between the role of the NDA and CoRWM which I was seeking to delineate.
- Also, in referring to the long-term solution needing to be good for 'centuries', the meaning intended was until there was no further danger from the waste, which may of course, in practice, be many centuries. That is why above I have talked of the very long-term management policy above".
I have received legal advice to say that the answer to the question that I asked on Second Reading—is the Bill intended to cover the disposal of medium and high-level waste?—is "Yes", in which case we can all go home. Well, we cannot yet, because it is not yet time, but I must say that the Government have been speaking with forked tongue on the matter. It is not yet clear.
The right answer may well be that NDA will have responsibility in the course of its decommissioning exercises to ensure that wastes are handled safely and properly in the interim. There is surface storage at most nuclear power stations; some activities involve transport of that waste to Sellafield. Do we need a definition of "disposal" in Clause 34, to which the Minister referred? There is no definition there.
Having received the letter, for all its obscurity, I got the impression that a separate definition might not be necessary, but it is appropriate in a clause stand part debate specifically to pose the question: does the NDA have the power to deal with the matter, when the time
is right, after the CoRWM report and after the Government have made up their mind and made their announcement in Parliament? Will it be for that body, or will there have to be another one?
Lord Maclennan of Rogart: Perhaps I may take this opportunity to enquire about the Government's intention regarding issuing directions containing a designation. Until now, the emphasis of the debate has been on the possibility of the Government disclosing more information than the NDA or its contractors might wish to have disclosed. But, so far as I can see, nothing in this clause requires the Government to disclose anything at all. It would be reassuring to have an indication that the reasons for the designation might at least be advanced as a requirement in making statements and laying them before Parliament.
Lord Whitty: In response to the noble Lord, Lord Jenkin, my response to the question put by the noble Lord, Lord Ezra, might inadvertently have caused confusion. I thought that his question related to long-term management of high-level waste. I think that other members of the Committee drew the impression that I meant that the NDA would not be responsible for high-level waste. That is not the intention; the NDA is responsible for all levels of waste at those sites that it manages, and under any designation. It is therefore carrying out government policy in that respect—there are sites that it manages and others that are designated. But that does not mean that all high-level nuclear waste is the NDA's responsibility.
CoRWM has been asked to look at the long-term management and disposal of high-level waste and at intermediate and low-level waste that is unsuitable for disposal at Drigg. We await the report of CoRWM recommending government policy on what the long-term aim should be—we anticipate that it will be published at the end of next year. The Government's response to the report will determine what the NDA's role will be in that regard. After all, the NDA carries out government policy; it does not make it. The Bill reflects current government policy that the NDA will be responsible for the management of the sites allocated to them. The CoRWM may recommend that the NDA should take over all responsibility for the long-term disposal and management of high-level waste in general, but we are not at that point. The Bill would allow the NDA to take on that responsibility, but it does not determine that the NDA take on wider responsibilities. The government policy determined in the light of the CoRWM advice will specify the NDA's role at that point.
On defining "disposal" of radioactive waste, the disposal and discharge of radioactive waste through air, water and land are regulated by the Environment Agency under Chapter 12 of the Radioactive Substances Act 1993. That is not altered by the Bill; therefore, we do not propose substituting a new definition of "disposal". Obviously, the NDA will work closely with the nuclear regulators in England and Wales to ensure that it adheres
to the regulatory framework. The CoRWM report may also cover the long-term strategy on that. The noble Lord may think that that does not clarify things totally, but I hope that it indicates the difference in time scale. The NDA is responsible for the sites allocated to it, and CoRWM will make recommendations on the long-term management of radioactive waste.
The noble Lord, Lord Maclennan of Rogart, made a point about issuing directions on designations. In making designations, the Government will indicate their reasons for them. In most cases, they will be apparent, but there is no requirement for any vast amount of detail in the Bill. Obviously, there will as ever be a responsibility on the Government to act reasonably, and, in such circumstances, that includes making clear the reasons for the designation.
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