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Earl Howe: In her customary way, the noble Baroness has more than gone through the motions of making me believe that I have got a point. As a result, I feel warmer, although, in the end, I am not comforted. This clearly is a matter on which I shall need to reflect. I recognise that the Delegated Powers and Regulatory Reform Committee did not go as far as I am seeking here but that is not a reason for us not to revisit the issue, especially since your Lordships' Committee—I have read the report—did not appear to consider the various aspects that I have tried to highlight.
There is an inconsistency here with the treatment in Clause 2. I fully take on board the point made by the noble Baroness that perhaps the two clauses are not on all fours with each other. For now it is time to move on. I reserve the right to perhaps come back to this issue at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 5 to 11 not moved.]
Clause 3 [Radiation protection functions]:
Earl Howe moved Amendment No. 13:
- Page 3, line 1, leave out from "Agency" to "out" in line 2 and insert "and a Health and Safety body with the purpose of ensuring that the Agency carries"
The noble Earl said: In moving Amendment No. 13, I shall speak also to Amendments Nos. 14 and 16. Amendment No. 13 is a very simple amendment designed to highlight what appears to be a questionable provision in Clause 3(4) whereby the agency may be directed to agree with a health and safety body to carry out one or more of that body's statutory functions.
I was always led to believe that one could not, as a matter of law, bind someone to agree with another person about anything. If the other person is an independent agent, it is open to him to refuse to agree to whatever is proposed. If that is so, no instruction to agree can bite. I simply question whether the Secretary of State can direct the agency to agree with the Health and Safety Commission that the commission should relinquish any of its functions in favour of the agency. That is a simple point. I recognise that this provision is carried over from other statutes. Nevertheless, we should hear why it is thought to be appropriate.
There may be a good case for such a transfer of functions in an emergency. If that is so, and if speed is thought to be of the essence, surely a power of direction is required over both the agency and the health and safety body, and not only the agency.
Moving on to Amendment No. 16, it may be a surprising and unusual turn of events for an amendment to be tabled that proposes substituting the word "may" for the word "must". However, I make no apology for having done so because it enables me to ask the Minister why Clause 3(9) is worded as it is and what lies behind it. The Government have tabled an amendment to take out Clause 3(9), which I found something of a surprise. Presumably, in the first instance, subsection (9) was inserted in the Bill by design with the approval of Scottish Ministers. While my amendment was designed as a probe, I do not understand why there should now be a change of heart.
My understanding was that Scottish Ministers had agreed to subordinate or relinquish to English Ministers their right of direction in relation to radiological protection matters. They recognised that it made sense for the relatively simple and straightforward accountability mechanisms of the NRPB to be carried over into the new agency. So what happened to alter that?
Rather than Members of the Committee agreeing to the Government amendment today, as we have not had very long to think about it, I wonder whether it would be better to put this matter to one side until Report. I look forward to hearing what the Minister has to say. I shall do so with an open mind. I beg to move.
4.45 p.m.
Lord Warner: I shall turn first to Amendment No. 13 but I will try to answer the noble Earl later over why there has been a change of direction in the government amendment.
Amendment No. 13 would alter Clause 3(4). That provision is based on Section 7A of the Radiological Protection Act and continues a provision that was made in the past. I shall not describe all the details but we have followed that model closely. I can see where the noble Earl is coming from but we are trying to legitimise the HPA in taking on a particular function. It is not necessary to replace the current provision to direct the agency and the health and safety body because the Health and Safety Commission already has the power to enter into agreements with such bodies as the HPA under Section 13(1)(a) of the Health and Safety at Work Act 1974. We are trying to mirror that in relation to the HPA.
We are continuing a practice that has been in National Radiological Protection Board legislation for more than 30 years. There is no reason to think that the HPA and the Health and Safety Commission would not agree, but the direction legitimises HPA activities. There is nothing more significant in the provision than that.
Amendment No. 14 seeks to delete subsection (8)(b), which provides that the giving of a direction under subsection (2) or (3) does not prevent the exercise of the function by the appropriate body. I understand where the noble Earl is coming from but I am not sure that he is right. Clause 3(1) gives the HPA certain functions in the area of radiation protection. Those are similar to the functions currently given to the NRPB by the Radiological Protection Act, although the agency's functions go wider in that it will also be able to undertake activities in relation to ultrasound.
The functions in subsection (1) are functions of the agency given to it by the Bill. They cannot be exercised by the appropriate authorities—the Secretary of State or the devolved administrations—except in the extreme and unlikely circumstances provided for by Clause 4(8). Subsection (8)(b) of Clause 3 applies not to those Clause 3(1) functions but to the additional functions which the agency might be directed to exercise under Clause 3(2) and (3). I hope that I can reassure the Committee that the possibility of such functions being exercised by an appropriate authority as well as the agency poses no threat to the agency's independence.
We set out in our memorandum for the Select Committee on Delegated Powers and Regulatory Reform the ways in which we expect to use the powers in subsections (2) and (3). I shall briefly quote from that. Of subsection (2) we noted that:
- "This power can be used only in relation to functions exercisable by the National Radiological Protection Board at the date of commencement. The Board currently provides a secretariat for one advisory non-departmental public body (the Committee on Medical Aspects of Radiation in the Environment) and a support unit for another (the Administration of Radioactive
- Substances Advisory Committee). The intention is that the power will be used to direct the Agency to take over those functions, thereby ensuring continuity".
Clause 3(3) provides a power for the appropriate authority to direct the agency to exercise other functions in relation to protection from the risks mentioned in subsection (1). The power is very similar to that currently provided under the Radiological Protection Act 1970. We are making sensible provisions with a degree of flexibility, but that in no way affects the independence of the HPA in taking over the radiological functions.
Noble Lords have not objected to the approach where we have made similar provisions in relation to health functions in Clause 5; they have done so only in relation to the radiation protection functions in Clause 3(8). I hope that what I have said explains why we do not think there is any reason to object.
I shall now outline the thinking behind government Amendment No. 15. The noble Earl is right; the Bill as introduced reflected originally the Scottish Executive's view that they would not need the power in Clause 3(4) because health and safety is largely a reserved matter. However, in the interests of consistency across the UK, and to reflect the existing statutory provision in the 1970 Act, Scottish Ministers have decided now that it would be appropriate for the power in Clause 3(4) to extend to them, as it extends to the other appropriate authorities. That means that subsection (9) can be deleted, which is what Amendment No. 15 provides for. To put it bluntly, there has been a change of mind on the part of Scottish Ministers in this respect.
The effect of deleting subsection (9) is that, under subsection (4), Scottish Ministers will be able to direct the agency to enter an agreement with a health and safety body, subject to the consultation required by subsection (6). The other appropriate authorities will need to consult Scottish Ministers before they issue such a direction themselves. I can assure Members of the Committee that the other appropriate authorities are content with that. The change would render Amendment No. 16 inappropriate, so it would fall. I shall not therefore go through the arguments relating to Amendment No. 16.
I understand that Members of the Committee may wish to consider the amendment further. I am in the Committee's hands as regards whether we effectively withdraw the amendment and do not move it at a later stage. I shall wait to hear from the noble Earl.
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