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Lord Jopling: My Lords, that was rather a strange reply. The Minister spent a good deal of his speech, particularly the early part, endorsing a good deal of what I and a number of my noble friends had said, but he came, unaccountably, to a totally different conclusion from the one to which we came. From what I heard, he did not appear to address my basic question about why clean-up should not cover dealing with the problems that are left behind by decommissioning. Minds do not seem to have met, so I wish to test the opinion of the House.

7.5 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 105; Not-Contents, 98.

Division No. 3

CONTENTS
Addington, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Blaker, L.
Bridgeman, V.
Byford, B.
Carlile of Berriew, L.
Carlisle of Bucklow, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Crathorne, L.
Cumberlege, B.
Dahrendorf, L.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Eccles of Moulton, B.
Elis-Thomas, L.
Ezra, L.
Ferrers, E.
Fookes, B.
Gardner of Parkes, B.
Geddes, L.
Goodhart, L.
Goschen, V.
Gray of Contin, L.
Greenway, L.
Harris of Peckham, L.
Harris of Richmond, B.
Higgins, L.
Hooson, L.
Howe, E.
Jacobs, L.
Jopling, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Knight of Collingtree, B.
Laird, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Lindsay, E.
Liverpool, Bp.
Livsey of Talgarth, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Methuen, L.
Miller of Hendon, B.
Monro of Langholm, L.
Montrose, D.
Murton of Lindisfarne, L.
Newby, L.
Newton of Braintree, L.
Northbrook, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Onslow, E.
Palmer, L.
Peel, E.
Peyton of Yeovil, L.
Powell of Bayswater, L.
Reay, L.
Rees, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Russell, E.
Russell-Johnston, L.
Sandberg, L.
Seccombe, B. [Teller]
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Gwydir, L.
Thomson of Monifieth, L.
Tordoff, L.
Vinson, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.

NOT-CONTENTS
Acton, L.
Alli, L.
Amos, B. (The Lord President of the Council.)
Andrews, B.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Billingham, B.
Blackstone, B.
Blood, B.
Borrie, L.
Boston of Faversham, L.
Brooke of Alverthorpe, L.
Brooks of Tremorfa, L.
Burlison, L.
Carter, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Crawley, B.
David, B.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Eatwell, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jones, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mitchell, L.
Morgan of Huyton, B.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Puttnam, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rooker, L.
Sainsbury of Turville, L.
Scotland of Asthal, B.
Sheppard of Liverpool, L.
Simon, V.
Smith of Leigh, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Tomlinson, L.
Triesman, L.
Turnberg, L.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

20 Apr 2004 : Column 215

7.15 p.m.

Lord Dixon-Smith moved Amendment No. 5:

Page 10, line 7, leave out "a devolved administration" and insert "by a devolved administration in relation to its territory"

The noble Lord said: My Lords, Clause 11 of the Bill states:

"It shall the duty of the NDA, in carrying out its functions, to have particular regard to each of the following—

(a) relevant Government policy".

If I can grace "relevant Government policy" with this, we are coming to what I call the gritty little parts of the Bill rather than the major issues of policy with which we have been dealing until now.

Over the page in subsection (4), Clause 11 continues:

"In this section 'relevant Government policy' means all current policies which—

(a) relate to the decommissioning of nuclear installations, the cleaning-up of nuclear sites or other activities in relation to which the NDA has functions; and

(b) have been published by or on behalf of Her Majesty's Government in the United Kingdom or a devolved administration, have been notified to the NDA by the Secretary of State or have been notified both to the NDA and to the Secretary of State by a devolved administration".

No distinction is made, as far as the NDA is concerned, as to whether a policy is enunciated by the Secretary of State on behalf of the United Kingdom Government or indeed by one of the devolved authorities which simply have to notify their policy to the NDA and to the Secretary of State. It is then appropriate as a policy which the NDA has to follow.

No distinction is made between national policies and relevant government policies made by a United Kingdom Government and policies made by any devolved authority, so there is inadvertently an extension of the devolution settlement made in both the Scotland and Wales Acts. My amendment would put that right by limiting the actions of the devolved administrations to only those policies applying in their own particular territories.

This is important because when the Bill becomes an Act, we will have to deal with what is written in the Bill—not what we want it to mean or what we think it means, but what it actually says. It is not that I think that the Welsh Assembly will get particularly upset if some policy that it has enunciated for Wales is not applied in England—the same could apply to the Scottish Parliament. It is much more possible that somebody in England could think that a policy enunciated by the Welsh Assembly or the Scottish Parliament is attractive and take the NDA to court because it is not applying relevant government policies as defined in the Bill because no distinction is made.

20 Apr 2004 : Column 216

That is a very real possibility and we have an obligation to remove it. We should not allow an extension of the devolution settlement to happen through inadvertence. That is the reason behind this amendment. I do not need to take any more time. I beg to move.

Lord Ezra: My Lords, the amendment moved by the noble Lord, Lord Dixon-Smith, is an important clarification, which I am sure the Government could accept without further debate. That is my feeling.

Lord Whitty: My Lords, it is true that at first sight I believed that the amendment was sensible and would clarify the situation in the Bill, but I have taken further legal advice on the matter. The powers of the devolved administration are clearly defined in the devolution settlement. Therefore, one could not require a public authority to take note of a document produced by a devolved administration which went beyond those powers.

If it was solely in the limited context of this Bill that we introduced the qualification that the noble Lord's amendment would provide, it might make sense. Because there is a whole range of legislation that refers to the powers and advice or consultation with the devolved administrations, all of which are presumed to be within the powers of the devolved administrations and not to breach the devolution settlement, we would muddy the waters if we wrote it into this legislation and not the other Acts. That is very strong legal advice so, despite my initial inclinations and despite encouragement from the noble Lord, Lord Ezra, I shall on this occasion stick with the advice and oppose the noble Lord's amendment. I hope that, in view of my explanation, he will withdraw it.

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