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Earl Howe: Once again, I am grateful to the Minister, particularly for the examples that he gave of the joined-up approach north and south of the border. Those examples are extremely welcome, but they lead me to ask why they should not be codified in the legal structures in the Bill. If that is the intention, why should it not be reflected in the Bill? The Minister referred to previous debates that we have had on devolution. I hasten to reassure him that the point is not so much that I wish devolution had not happened—although I freely admit that in an arena such as public health, devolution seems the last thing one would choose to bring into the melting pot—but that in Clause 3 we appear to have surmounted the legal obstacle of devolution, because for the purposes of radiation protection the agency will genuinely act as a pan-UK body. For all its other functions, however, it will not. That seems to make no sense. I still have not heard from the Minister a satisfactory explanation of why there should be that difference and why Ministers did not insist that there should not be a difference.

As I understand it, the Scotland Act 1998 can be overridden by any Act of the UK Parliament. Given that Clause 2(8) provides for an effective veto by the Secretary of State over the Scottish Parliament, why are we messing around and having to go through hoops in apparent deference to devolution, when all the time it is being overridden in other ways in other parts of the Bill?

I am still baffled. From the Minister's answer, I sense that I am knocking at a door that is firmly shut, so I shall not continue at length, but we may well want to return to the matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.30 p.m.

Earl Howe moved Amendment No. 4:

Page 1, line 15, leave out "directs" and insert "may by order provide"

The noble Earl said: I shall speak also to Amendments Nos. 6, 7, 8 and 12 and, with the leave of the Committee, defer speaking to Amendments

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Nos. 45 and 46 until we reach a later amendment. They are not an important ingredient in what I shall say.

Clause 2 contains significant powers for the Secretary of State and the National Assembly to issue directions. Subsection (2) contains powers to make directions for the creation of new health-related functions for the agency; and subsections (3) and (4) contain further direction-making powers to enable the agency to exercise functions previously conferred on either the Secretary of State or the Assembly by statute.

When I tabled my amendments, I had not had the advantage of reading government Amendment No. 36, which I thoroughly welcome, because I believe that it meets the substantive point at issue in my amendments. If I am right, I am most grateful to the Government for paying heed to the express views of the Select Committee on Delegated Powers and Regulatory Reform, which was clear that directions should be expressed by way of a statutory instrument.

I therefore pass on to Amendment No. 12. Clause 3(3) permits the appropriate authority to direct the agency to exercise any other function in relation to protection from radiation risks, in addition to those set out in subsection (1). My amendment questions whether a power of direction is necessary or desirable. The department's memorandum to the Select Committee sought to make the case for a power of direction on the grounds that such a power is desirable—which I have no doubt that it is to those who want to use it—and that it would correspond well with the approach taken for NHS bodies.

The Government need to be more persuasive than that. Yes, one can say that any extra functions conferred on the agency must be limited by the scope of subsection (1)—in other words, they would have to be in some way related to radiological protection. But the corresponding section of the Radiological Protection Act 1970, which contains a power for Ministers to confer extra functions on the NRPB, makes that power exercisable by affirmative resolution. So we are moving from affirmative resolution to a power of direction with no parliamentary scrutiny.

I do not suggest that the affirmative procedure is necessary in this context, but I question whether it is appropriate to abandon the order-making procedure altogether. Speed of action cannot be a reason for wanting to do so. Even under the clause as drafted, provision is made in subsection (6) for prior consultation before a direction is given—which cannot be done overnight. If we consider Clause 2, in which the Government agree that conferring additional functions should involve the negative order-making procedure, there is a good case for making the different ends of the Bill tie up with each other.

I hope that I am not being too uncharitable, but I cannot help thinking that the department allows itself to use one set of arguments when it suits it and abandon it when it does not. One reason cited for Scottish Ministers obtaining the prior consent of the Secretary of State before conferring functions on the agency under Clause 2(7) is apparently to ensure that

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the agency is not overwhelmed by being given too many functions at once. If that is a fear when an order-making power is in force, as there is under Clause 2, the fear should be even more real under Clause 3, where no parliamentary scrutiny is provided.

I hope that the Minister will be able to view the amendment constructively and say that she will give it further consideration. I beg to move.

Baroness Andrews: I am grateful for the warm welcome offered to government Amendment No. 36 by the noble Earl. It meets what he has in mind. We were completely influenced by the noble Earl's attempts to change the Bill. We also have in mind the scrutiny given to the Bill by the Select Committee on Delegated Powers and Regulatory Reform. We are all of one mind and clearly Amendments Nos. 4, 6, 7 and 8 will not be necessary.

Just as we are minded to take account of the scrutiny given by the Select Committee to our Amendment No. 36, so we are in relation to Amendment No. 12. The Delegated Powers and Regulatory Reform Committee recommended a change only to Clause 2 and sensibly left Clause 3 alone. However, I should like to soften the blow by explaining to the noble Earl—he has gone into the matter in some detail—what Clause 3(3) of the Bill seeks to do and why we have made changes in response to drivers.

Basically, the noble Earl is quite right that the power provided in the subsection is similar to that currently provided by Section 1(6)(a) and (c) of the Radiological Protection Act 1970. Both allow the body concerned—the NRPB in the case of the old power and the HPA in the case of the new power—to be required to carry out extra functions in the area of radiation risks. The scope for directions under Clause 3(3) is defined by reference back to Clause 3(1). We wish to reserve that power in order to have flexibility if new functions are identified in future. That is the core of the clause.

As the noble Earl said previously, we had the ability to provide for additional consultation by affirmative resolution, but let me explain why that has changed. Before using the old power, the 1970 Act required us to consult with the Atomic Energy Authority and the MRC. That requirement reflected the historical fact that the NRPB originated in a unit run jointly by the AEA and the MRC. The public consultation exercise that we conducted in 2002, and which we have tried to take into account as much as it is relevant and helpful, confirmed that there are no arguments for retaining this requirement. So we are reinforced in our decision by that evidence.

Secondly, the old power allows the Secretary of State for Health to confer additional radiation protection functions on the National Radiological Protection Board while the new power, to take account of devolution, allows any of the appropriate authorities to direct the HPA to carry out additional radiation protection functions.

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Thirdly—this is a variation on that theme—the old power provided for the Secretary of State to confer a function on NRPB. The new power provides for the appropriate authority to direct the HPA to exercise a function. We shall come to the reasons for that change when we debate Amendment No. 14.

Finally, the old power was exercised by the making of an order subject to the affirmative resolution procedure, as the noble Earl said. Our proposal to remove that procedure and replace it by direction was explained in the memorandum to the Delegated Powers and Regulatory Reform Committee. As regards consistency with the NHS as a whole—I know that the noble Earl is well aware of this—the direction as a concept has worked well for NHS bodies to which the agency will be closely akin. It is consistent with the powers sought elsewhere in Clause 3 and it recognises that the functions in relation to which directions under this power might be made are limited by the reference to subsection (1). The Delegated Powers and Regulatory Reform Committee accepted these proposals and has not recommended any change.

We are used in this House to the arguments about negative and other resolutions offering a flexible response, and the noble Earl's point about speed is particularly relevant in this area because of the speed of scientific development across this corpus of work. But that is not the complete argument.

The extra functions that could be conferred under Clause 3(3) are relatively limited compared with those conferred under Clause 2. Just for proportionality, we can make the case that a direction-making power is more appropriate. Finally, I revert to the fact that we are following the recommendations of the Delegated Powers and Regulatory Reform Committee. I am sure that the noble Lord would not want to go against that; we believe that Amendments Nos. 45 and 46 would do so.

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