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Lord Kingsland: My Lords, I apologise to the noble and learned Lord and am grateful to him for giving way. We do not dispute the noble and learned Lord's interpretation of the case of R v Boyd. That case referred to a situation where proceedings were initiated. The case of Trooper Williams is quite different. In the course of a proceeding that was already initiated, the noble and learned Lord gave advice in his supervisory role, or decided—I think "decided" was the word that he had used in an earlier statement of what happened—that that case should be transferred from the military to the civilian jurisdiction. That is an entirely different situation.

Lord Goldsmith: My Lords, it was not transferred from the military jurisdiction because the effect of the Army Act was that as the commanding Army officer had dismissed the charge, the case could not proceed through the military system. That was the whole point. There it is and I want to move on.

I must say a word about the Evans case, which was raised by the noble and learned Lord, Lord Lyell of Markyate. Given the time and the points that I still want to make, I need to write to the noble and learned Lord about that case. I want to emphasise the following points. First, it was not a case that was strictly brought under the code for Crown prosecutors, because it was a military prosecution in a court martial, and was not brought in a civilian court. Secondly, I am assured by the Army Prosecuting Authority that it carefully considered the strength of the case and received advice from independent leading counsel that supported its view. Thirdly, it often happens when cases come to court—goodness me, that
 
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is one of the reasons we have a justice system—that evidence which looked acceptable at one stage turns out not to be acceptable. It is much better that the courts decide that, than leaving it to prosecutors, however eminent, to make that decision. Fourthly, the Judge Advocate General said that there was sufficient evidence that there had been an assault, that a man had died in the course of it, and that that had happened as a result of something done by someone within Corporal Evans's group. The issue upon which he thought that the case could not go any further was whether there was acceptable evidence of joint enterprise. That was a narrow but critical point in the case.

Lord Lyell of Markyate: My Lords, I appreciate that the noble and learned Lord has very little time, but one of the points in the code for Crown prosecutors is that not only are you obliged to look at what is on paper, but you are expected to evaluate it. I hope that the noble and learned Lord will take that into account.

Lord Goldsmith: My Lords, I absolutely agree. I am assured that they did evaluate it. The words used by the Judge Advocate General are "refer to papers", but that is not the way, as it were, it is put to me.

I have considerable reservations about the specific proposal put by the noble Lord, Lord Campbell. First, it is in my view the responsibility of the Attorney-General, as the ultimate civil responsibility, to make a decision where a decision falls to be made; it is not a matter for the court. Secondly, decisions on whether prosecutions should be brought and, if so, in which forum are made on the basis of the evidence and the public interest; they are matters primarily for the prosecuting authority to determine. I do not know of any case where a decision would be made to prosecute on the public interest ground and the court would feel that it was in a position to take a different view. It might from time to time say, "Do you really think it right to proceed with this case, Mr So-and-so?" but it would be for the prosecution to make that decision.

Thirdly, as I have indicated, there are routinely hundreds of cases each year where concurrent jurisdiction decisions are being made. It cannot properly or sensibly be suggested that High Court judges should be involved. Fourthly, though, it is open to the accused to challenge the prosecution, as indeed Trooper Williams did in this case, both on the ground that it was not right to proceed and on the ground that the evidence was not there. We know what Mrs Justice Hallett decided. Finally, I understand the important question raised about the military understanding of those who make the decision. If I may respectfully say so, one does not add anything to that by taking the decision of a High Court judge.

I will conclude, if noble Lords will just allow me a moment, by saying this. Noble Lords have raised important issues with which I agree about the quality of investigation and about delay. I take those issues very seriously and have raised them with all the service prosecuting authorities and discussed them with the Judge Advocate General. I believe that important provisions in the Armed Forces Bill will help in that
 
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respect—we will have an opportunity to debate those at a later stage. Important issues have also been raised about the quality of the prosecution system as a whole.

I hope that the way forward now is to put behind us accusations of political correctness and political interference, which I fear are, as my noble friend Lord Corbett said, only helping when publicised to fuel concerns within the Armed Forces and among those who might join the Armed Forces—we could well do without that. Let us put those accusations behind us and all now work together to achieve those things on which we agree—a quality and independent system of justice with robust, professional investigators, with robust, professional decisions being made about whether prosecutions should be taken and with prosecutions being done within a reasonable time. That is what I want to work towards.

1.53 pm

Lord Campbell of Alloway: My Lords, very sincerely I thank all noble Lords who have contributed to this debate, which has been good-humoured and very constructive. Certain parts of the construction would not appeal to the noble and learned Lord, Lord Goldsmith, but one or two building blocks are left standing and there is one, of course, to which my noble friend Lord Kingsland referred, that will not go away. That is the core of the substance of the proposal, which was spoken to by my noble and learned friend Lord Mackay of Clashfern within, I think, a minute and a half's speech. He took the main point, or the essence, which will not go away. As my noble friend Lord Kingsland rightly said, that will have to be considered by the House on another occasion, and everything that has been said in this Motion today will be of the greatest possible assistance, certainly to me.

On the related matter, of course I am concerned with the narrow category of cases to which the noble and learned Lord referred. Like my noble friend Lord Kingsland, I am surprised that the noble and learned Lord, Lord Goldsmith, would not be grateful to have the questions of whether it is a matter of public interest or whether any form of political interest is involved decided by a judge because that would totally remove any unhappy or unacceptable thoughts or assertions. I cannot see why there should be any objection to that, and I can see every reason why it should be decided by a judge in the very few cases in which it arises. In those cases, which are important, it is only fair and just that the man or woman and the regiment should have a fair opportunity of objection.

I thank my noble and learned friends Lord Mayhew of Twysden and Lord Lyell of Markyate for their experience, having served as Attorney-General, and for what they said, which, when read, will I think convince people that, frankly, things are not all right. The noble and learned Lord, Lord Goldsmith, thinks that they are all right. He thinks that in fact there would be some form of derogation of great importance from his authority, but that would not be the case. What is proposed is only in relation to the transfer of very important cases, which is being done, has been
 
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done and, with respect, should not be done in future. I thank all noble Lords and beg leave to withdraw the Motion for Papers.

Motion for Papers, by leave, withdrawn.

Energy Policy: Nuclear Power

1.58 pm

Lord Jenkin of Roding rose to call attention to the role of nuclear power in energy policy in the light of the consultative document, Our Energy Challenge; and to move for Papers.

The noble Lord said: My Lords, I am particularly pleased that we are to have two maiden speeches today by the noble Lords, Lord Cunningham of Felling and Lord Turnbull, and we very much look forward to hearing what they say.

It has been suggested to me that this debate on the Government's energy consultation paper is premature on the grounds that the consultation has only just started and will last for three months. I say at once that no one will expect the Minister in any way to anticipate the outcome of the consultation. The debate is intended to give your Lordships a chance to say what we think should be the outcome and to express our views on the energy review, and that I shall certainly do. I also have a few specific questions to put to the Minister.

I am delighted that there is to be a full review of the policies set out in the 2003 White Paper, and, as many have said, "not before time". Why is that? It is because, for the first time in our history, we are heading towards becoming a net energy importer. Our own oil and gas reserves are now falling faster than was forecast. Rising world demand for fossil fuels, especially from China and India, has had, and is bound to continue to have, a sharp impact on prices. The surge in gas prices this winter forced some big user industries to cut back on production. We face a threat to the security of our gas supplies. The Russian readiness to cut supplies to Ukraine and Georgia was just a foretaste of what might be to come. With Europe's increasing dependence on pipelines from and through unstable regimes, the 2003 assumption of ultimately depending on gas for up to 80 per cent of our requirements now looks dangerously unwise.

The liberalisation of continental energy markets is essential. But, despite what I regard as an over-optimistic interim report from competition Commissioner Neelie Kroes, published this morning, those who heard Mr Andrew Duff, chief executive of RWE npower speaking to the All-Party Energy Studies Group on 24 January, were left in no doubt that liberalisation is going to be a long time coming.

It is clear that ambitious energy saving targets in the White Paper are not going to be met, as the Secretary of State, Mr Alan Johnson, was starkly warned by his officials last year. Though there has been much investment in wind power, the 2010 and 2020 targets for renewables are most unlikely to be met. But what
 
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must be most disappointing for Ministers, who have rightly put climate change and cutting greenhouse gases as a high priority, is that the past three years have seen an increase, year by year, in carbon dioxide emissions.

The White Paper model, of exactly three years ago this month, is seriously flawed. It cannot be business as usual. That is why I, and many informed people outside, have welcomed this review. In particular, as almost everyone has recognised, the nuclear option, which formed part of the White Paper—and which, only a few months ago, Ministers in this House were confidently asserting would not be needed—is now very much back on the agenda. Indeed, last week, I listened to an environmentalist claiming that the review is no more than a camouflage for a decision that has already been made to go nuclear. I happen to think, in fairness to the Government, that that is quite untrue. I sincerely hope it is untrue, because there must be much more to this review than new nuclear build.

So what do I want to come out of this review? Top of my list is the imperative that energy policy must start with a clear, consistent and long-term policy for carbon, to address the threat of climate change. It must not be the other way round, making carbon abatement in some way an add-on to energy policy. All the experts, from whom I have taken a great deal of advice, and I am most grateful to them, have warned that it is the longer-term uncertainty about the Government's policies on carbon that is likely to prove the greatest disincentive and inhibition to investment.

Another imperative is security of supply. We must not leave ourselves at the mercy of unreliable sources, and more self-sufficiency is one way to ensure that we can "keep the lights on". Then there is investment. The UK has a lot of ageing generation and transmission plant, and a huge new investment programme is needed. British Energy has put the generating gap at,

It is now widely accepted that we need a mix of generating technologies, certainly including renewables. But, as everyone now recognises, there is a limit to that before the grid becomes unmanageable. You only need to look at the experience of a company like E.ON in northern Germany to see that. Of course, the mix must include combined heat and power, and distributed generation, where these are appropriate and cost-effective. There is no quick alternative to continuing with fossil fuel generation, despite its serious environmental penalties. Cost-effective clean coal technologies are still some way off, but new technologies, including integrated gasification combined cycle—IGCC—must be developed. I find it bizarre that that hugely important future development is relegated to a footnote in an appendix in the consultation paper.

We must press ahead with energy saving and energy efficiency, and I am sure that more can be done. But there must be a clear-headed appraisal of what can be achieved as compared with what many regarded as the starry-eyed optimism of the White Paper. But all this
 
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will still leave a wide gap between supply and demand in the next two to three decades, a gap that can realistically be filled only by a new programme of building nuclear power stations. I shall return to this in a few moments.

Continuing my list of what I want to see coming out of the review, the Government must not attempt to pick winners. There is wide recognition that investment decisions are best left to the market. The role of the Government is to set a clear framework within which the market can assess the risks and finance the investment. That framework must be set for the long term and, despite Ofgem's protestations, the present regulatory regime is essentially short term, as the noble Lord, Lord Tombs—who I am glad to see in his place—has warned this House on many occasions. I shall quote from the important note that was issued by all the main engineering institutions earlier this year:

Finally, the Government must establish a level playing field for the achievement of these objectives. It is now widely recognised that nuclear power has a lifecycle carbon footprint as low as wind power. Last year, the noble Lord, Lord Sainsbury, wrote an important letter to the noble Lord, Lord Redesdale, in which he said:

That was a very important statement and we need to take full account of it. It has been endorsed by a recent study of the Torness nuclear power station by British Energy, which was mentioned in December, by Bill Coley, its chief executive. Given that, it is absurd that nuclear power has to pay the climate change levy. It has the lowest carbon footprint and is a benign source of power. Yet, it does not qualify for any of the incentives for reducing carbon emissions, which a programme certainly would. The review must recommend a level playing field.

My list is not comprehensive and I know that other noble Lords will have their own additions, but my feeling is that the review will have failed if it does not do all the things that I have mentioned.

I return to the nuclear option. The Prime Minister, to his great credit, recognised that this option must now be firmly placed on the agenda. In the light of that, I shall ask the Minister some questions, of which I have given him notice. The proposition behind my questions is that since 2003 there has been an assumption on the part of many Ministers that the nuclear industry is to be wound down and will eventually disappear. The instrument for that is to be the Nuclear Decommissioning Authority—I emphasise the word "decommissioning"—and there has been more than a whiff of visceral ministerial hostility to the nuclear industry. But we have now had the first hints that that is changing. I mentioned a few moments ago the Prime Minister's words, and we have had the confident assertion of the noble Lord, Lord Sainsbury, in response to my noble friend
 
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Lady O'Cathain, that nuclear must be regarded as a renewable source. We have also had his statement about the life cycle carbon footprint. Now we have the energy consultation paper, with its clear message that nuclear has to be a serious contender. Nobody can read section 4 of annex A of the paper without recognising that.

So what needs to change to respond to this new message? In the words of the song, "Love changes everything". That is what we must have here—a change in the entire climate towards the nuclear industry. First, therefore, is radioactive waste. The Science and Technology Select Committee was much encouraged by our recent meeting with the members of CoRWM. It is now on course to produce its report. I have seen a first outline draft. Although paragraphs have to be filled in, it now looks as though it can be confident of producing its report on time. It is widely assumed that it will recommend, as this House did some years ago, that the solution is to have a deep underground repository. So, my first question to the Minister is: what is the Government's timetable for moving on to the next stage of identifying sites for a deep underground repository? Seeing the way ahead on waste is regarded by the public as a critical issue for any new nuclear build.

Secondly, there is technology. The most recent nuclear station built in the UK was Sizewell B—a US designed pressure water reactor, but built 20 years ago almost exclusively with British skills and labour. Now that BNFL is selling Westinghouse to Toshiba, we are left with no alternative but to buy foreign-owned technology for any new nuclear programme. There are competitors from a variety of countries in Europe, America and Canada. But we in the UK must have our own scientific and technological expertise if the UK industry is to play its part. So my second question is: what are the Government and industry doing to ensure that we have that expertise? Yes, I have studied the papers of the Cogent skills council, and it has certainly made a start, but it does not seem to be doing nearly enough to provide us with what we will assuredly need.

Thirdly, there is the question of regulation. The Nuclear Industries Inspectorate, now part of the HSE, is crucial to any new nuclear build. All the players in the game have told me that they are undermanned. So I asked the chief inspector, Mike Weightman, about this. He told me that against an establishment figure of 179 inspectors he has only 163. But it is much more serious than that. He said:

and he mentions the planned defence expenditure; secondly,

and, thirdly,

It does not have enough people. So my next question is: what are the Government going to do about that? Without it, we cannot make any progress at all. It is amusing that the HSE published a large document last
 
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November called The Regulation of Nuclear Installations in the UK, but it is difficult to see the purpose if there are not going to be any inspectors to do the work.

Then there is nuclear fuel. This comes from BNFL and supplies the existing reactors, but it depends on two plants at Sellafield. What will the Government's decision be about restarting the Thorp reprocessing plant, and what are they going to do to help increase the output of the Sellafield Mox plant, SMP, which is well below its capacity? Will the Minister tell us that?

My last question is about decommissioning. The NDA strategy is to reduce everything to a greenfield site. Of course that fitted the 2003 scenario, but that is changing—love changes everything. It cannot approve that strategy, which is being put to it; how can it possibly do that in the new circumstances?

I have one final point. In the 1990s nuclear attracted about 19 per cent support from the public. By January of last year that had risen to 35 per cent. The latest MORI poll relating nuclear to climate change and to the reliability of supply—I will quote two figures—indicates that 54 per cent are now willing to accept new nuclear build if that would help climate change and 63 per cent—nearly two out of three people—believe that reliability of electricity supply would need to be ensured though a mix of energy options including nuclear power and renewable resources. If you want to keep the lights on and you want to fight climate change, then the answer has to be a new nuclear programme. I beg to move for Papers.

2.15 pm


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