As the Minister said, we are looking for investor certainty here. The only way that new gas will be invested in as an intermediate technology is through that certainty. At the moment, that investment is not taking place, despite the clear ambitions that it should. However, I understand the position of the Minister that if it were not for this Bill we would not have an emissions performance standard. I advocated it several times to the party opposite pre-2010 and it was never accepted, so this is a major step forward. I beg leave to withdraw Amendment 71.

Amendment 71 withdrawn.

Amendments 72 and 73 not moved.

Amendments 73A and 73B

Moved by Baroness Verma

73A: Clause 50, page 49, line 11, after “to” insert—

“(a) section (Introduction of carbon capture and storage: exemption from emissions limit), and

(b) ”

73B: After Clause 50, insert the following new Clause—

“Introduction of carbon capture and storage: exemption from emissions limit

(1) The emissions limit duty does not apply during the exemption period in relation to fossil fuel plant for which there is a complete CCS system.

(2) For this purpose, a complete CCS system, in relation to fossil fuel plant, is a system of plant and facilities for—

(a) capturing some or all of the carbon dioxide (or any substance consisting primarily of carbon dioxide) that is produced by, or in connection with, generation of electricity by the generating station comprised in the fossil fuel plant,

(b) transporting the carbon dioxide (or substance) captured, and

(c) disposing of it by way of permanent storage.

(3) The exemption period for any fossil fuel plant is the period—

(a) beginning with the first day on which the fossil fuel plant and its complete CCS system are ready for use, and

(b) ending with—

(i) the expiry of 3 years beginning with that day, or

(ii) 31 December 2027,

whichever is earlier.

(4) In subsection (3), “use” includes testing in connection with the generation of electricity on a commercial scale.

(5) Subsection (1) is subject to any provision made by regulations under section 50(6)(b).”

Amendments 73A and 73B agreed.

4 Nov 2013 : Column 47

Schedule 4: Application and modification of emissions limit duty

Amendment 74

Moved by Baroness Worthington

74: Schedule 4, page 130, line 3, at end insert—

“(iii) substantial pollution abatement equipment dealing with oxides of sulphur, oxides of nitrogen, heavy metal emissions or particles is fitted to the generating station.”

Baroness Worthington: My Lords, I wish to seek the opinion of the House.

5.36 pm

Division on Amendment 74

Contents 237; Not-Contents 193.

Amendment 74 agreed.

Division No.  1


Adonis, L.

Allan of Hallam, L.

Alli, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Ashdown of Norton-sub-Hamdon, L.

Avebury, L.

Bach, L.

Bakewell, B.

Barnett, L.

Bassam of Brighton, L. [Teller]

Beecham, L.

Benjamin, B.

Berkeley, L.

Bew, L.

Bichard, L.

Billingham, B.

Blackstone, B.

Blood, B.

Bonham-Carter of Yarnbury, B.

Borrie, L.

Bradley, L.

Bradshaw, L.

Bragg, L.

Brennan, L.

Brinton, B.

Broers, L.

Brooke of Alverthorpe, L.

Brookman, L.

Browne of Ladyton, L.

Cameron of Dillington, L.

Campbell-Savours, L.

Carter of Coles, L.

Christopher, L.

Clark of Windermere, L.

Clarke of Hampstead, L.

Cohen of Pimlico, B.

Collins of Highbury, L.

Corston, B.

Craigavon, V.

Crawley, B.

Davies of Oldham, L.

Davies of Stamford, L.

Dean of Thornton-le-Fylde, B.

Deben, L.

Desai, L.

Dholakia, L.

Donaghy, B.

Doocey, B.

Drake, B.

Dubs, L.

Elder, L.

Elystan-Morgan, L.

Evans of Temple Guiting, L.

Farrington of Ribbleton, B.

Filkin, L.

Ford, B.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Garden of Frognal, B.

Gavron, L.

Gibson of Market Rasen, B.

Giddens, L.

Glasgow, E.

Glasman, L.

Gordon of Strathblane, L.

Gould of Potternewton, B.

Grantchester, L.

Grender, B.

Grenfell, L.

Grocott, L.

Hamwee, B.

Hannay of Chiswick, L.

Hanworth, V.

Hardie, L.

Harries of Pentregarth, L.

Harris of Haringey, L.

Harris of Richmond, B.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Haskins, L.

Haughey, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollick, L.

Hollins, B.

Hollis of Heigham, B.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

4 Nov 2013 : Column 48

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Hutton of Furness, L.

Irvine of Lairg, L.

Jay of Ewelme, L.

Jones of Cheltenham, L.

Jones of Whitchurch, B.

Jones, L.

Jordan, L.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kestenbaum, L.

King of Bow, B.

Kingsmill, B.

Kinnock of Holyhead, B.

Kirkhill, L.

Kirkwood of Kirkhope, L.

Knight of Weymouth, L.

Krebs, L.

Lane-Fox of Soho, B.

Lawrence of Clarendon, B.

Layard, L.

Lea of Crondall, L.

Leitch, L.

Lester of Herne Hill, L.

Levy, L.

Liddell of Coatdyke, B.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

Low of Dalston, L.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

McFall of Alcluith, L.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Manzoor, B.

Marks of Henley-on-Thames, L.

Maxton, L.

Mendelsohn, L.

Miller of Chilthorne Domer, B.

Mitchell, L.

Monks, L.

Moonie, L.

Morgan of Ely, B.

Morgan of Huyton, B.

Morgan, L.

Morris of Aberavon, L.

Morris of Handsworth, L.

Myners, L.

Nye, B.

Oakeshott of Seagrove Bay, L.

O'Loan, B.

O'Neill of Clackmannan, L.

Ouseley, L.

Oxburgh, L.

Paddick, L.

Palmer of Childs Hill, L.

Parminter, B.

Patel of Blackburn, L.

Patel, L.

Pendry, L.

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prescott, L.

Prosser, B.

Radice, L.

Razzall, L.

Rea, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Rennard, L.

Richard, L.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Rooker, L.

Roper, L.

Rosser, L.

Rowe-Beddoe, L.

Rowlands, L.

Royall of Blaisdon, B.

Sawyer, L.

Scott of Needham Market, B.

Sharp of Guildford, B.

Sherlock, B.

Shipley, L.

Simon, V.

Smith of Basildon, B.

Smith of Clifton, L.

Smith of Finsbury, L.

Snape, L.

Soley, L.

Stephen, L.

Stern of Brentford, L.

Stevenson of Balmacara, L.

Stone of Blackheath, L.

Storey, L.

Strasburger, L.

Sutherland of Houndwood, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Goss Moor, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Thornton, B.

Tonge, B.

Tope, L.

Touhig, L.

Tunnicliffe, L. [Teller]

Turner of Ecchinswell, L.

Tyler of Enfield, B.

Tyler, L.

Uddin, B.

Wall of New Barnet, B.

Walmsley, B.

Walpole, L.

Warner, L.

Warnock, B.

Watson of Invergowrie, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Wilkins, B.

Williams of Elvel, L.

Wills, L.

Winston, L.

Wood of Anfield, L.

Worthington, B.

Young of Hornsey, B.

Young of Norwood Green, L.


Aberdare, L.

Ahmad of Wimbledon, L.

Anelay of St Johns, B. [Teller]

Arran, E.

Ashton of Hyde, L.

Astor of Hever, L.

4 Nov 2013 : Column 49

Attlee, E.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Bates, L.

Berridge, B.

Bilimoria, L.

Black of Brentwood, L.

Blackwell, L.

Blencathra, L.

Borwick, L.

Bottomley of Nettlestone, B.

Bourne of Aberystwyth, L.

Bowness, L.

Brabazon of Tara, L.

Bridgeman, V.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browne of Belmont, L.

Browning, B.

Caithness, E.

Carlile of Berriew, L.

Carrington of Fulham, L.

Cathcart, E.

Chalker of Wallasey, B.

Chidgey, L.

Clement-Jones, L.

Colwyn, L.

Cormack, L.

Cotter, L.

Courtown, E.

Cumberlege, B.

De Mauley, L.

Dear, L.

Deighton, L.

Dixon-Smith, L.

Dobbs, L.

Dykes, L.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Eden of Winton, L.

Edmiston, L.

Elton, L.

Empey, L.

Erroll, E.

Falkland, V.

Faulks, L.

Fearn, L.

Fink, L.

Finkelstein, L.

Finlay of Llandaff, B.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freeman, L.

Freud, L.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glendonbrook, L.

Gold, L.

Goodlad, L.

Goschen, V.

Grade of Yarmouth, L.

Green of Hurstpierpoint, L.

Greengross, B.

Greenway, L.

Hamilton of Epsom, L.

Hanham, B.

Harris of Peckham, L.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Hodgson of Abinger, B.

Home, E.

Hooper, B.

Horam, L.

Howard of Lympne, L.

Howard of Rising, L.

Howe, E.

Howell of Guildford, L.

Humphreys, B.

Hunt of Wirral, L.

Hussain, L.

Inglewood, L.

James of Blackheath, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jopling, L.

Kakkar, L.

Kalms, L.

Kerr of Kinlochard, L.

Kilclooney, L.

Knight of Collingtree, B.

Kramer, B.

Laming, L.

Lawson of Blaby, L.

Leigh of Hurley, L.

Lexden, L.

Lichfield, Bp.

Lindsay, E.

Lingfield, L.

Liverpool, E.

Livingston of Parkhead, L.

Loomba, L.

Lucas, L.

Luce, L.

Luke, L.

Lyell, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Mar, C.

Marland, L.

Marlesford, L.

Mayhew of Twysden, L.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Naseby, L.

Nash, L.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Noakes, B.

O'Cathain, B.

Oppenheim-Barnes, B.

Palumbo of Southwark, L.

Pannick, L.

Patten, L.

Perry of Southwark, B.

Popat, L.

Prashar, B.

Purvis of Tweed, L.

Randerson, B.

Ribeiro, L.

Ridley, V.

Risby, L.

Rogan, L.

Rotherwick, L.

Sassoon, L.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

4 Nov 2013 : Column 50

Sharkey, L.

Shaw of Northstead, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shrewsbury, E.

Skelmersdale, L.

Slim, V.

Spicer, L.

Stedman-Scott, B.

Stewartby, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Strathclyde, L.

Suttie, B.

Taylor of Holbeach, L.

Taylor of Warwick, L.

Trefgarne, L.

Trimble, L.

True, L.

Ullswater, V.

Verma, B.

Waddington, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Wasserman, L.

Watson of Richmond, L.

Wei, L.

Wheatcroft, B.

Whitby, L.

Williams of Crosby, B.

Wilson of Tillyorn, L.

Wrigglesworth, L.

Younger of Leckie, V.

5.48 pm

Amendments 74A to 74C

Moved by Baroness Verma

74A: Schedule 4, page 130, line 16, at end insert “, or the exemption in section (Introduction of carbon capture and storage: exemption from emissions limit),”

74B: Schedule 4, page 130, line 26, at end insert—

“Modifications where carbon capture and storage process used in relation to part of generating station

3A (1) Regulations under section 50(6)(b) may provide for the exemption in section (Introduction of carbon capture and storage: exemption from emissions limit) to apply with modifications in cases where the complete CCS system for the fossil fuel plant relates to only part of the generating station.

(2) For this purpose—

(a) a complete CCS system relates to part of a generating station if it is a system for capturing some or all of the carbon dioxide (or any substance consisting primarily of carbon dioxide) that is produced by, or in connection with, generation of electricity by that part of the generating station, and

(b) “complete CCS system” has the same meaning as in section (Introduction of carbon capture and storage: exemption from emissions limit).”

74C: Schedule 4, page 130, line 29, leave out from “where” to end of line 32 and insert “—

(a) the generating station is used for the first time, or permanently ceases to be used, for the generation of electricity,

(b) any period during which the emissions limit duty does not apply in relation to the plant by virtue of section (Introduction of carbon capture and storage: exemption from emissions limit) begins or ends, or

(c) the generating station, or any CCS plant comprised in the fossil fuel plant, is altered.”

Amendments 74A to 74C agreed.

Clause 53: Interpretation of Chapter 8

Amendments 74D and 74E

Moved by Baroness Verma

74D: Clause 53, page 52, line 5, after second “plant” insert “, or a system of plant and facilities,”

74E: Clause 53, page 52, line 37, after ““year”” insert “, except in section (Introduction of carbon capture and storage: exemption from emissions limit),”

Amendments 74D and 74E agreed.

Amendment 75 had been withdrawn from the Marshalled List.

4 Nov 2013 : Column 51

Amendment 76

Moved by Lord Judd

76: After Clause 58, insert the following new Clause—

“Reduction of landfilling of organic waste

The Secretary of State must, as soon as reasonably practicable, set out a plan and timeframe for the reduction and eventual elimination of landfilling of organic waste in order to make it available for 100% renewable energy generation and other appropriate uses consistent with the waste hierarchy as defined in The Waste (England and Wales) Regulations 2011.”

Lord Judd (Lab): My Lords, Amendment 76 would insert a brief new clause after Clause 58. I declare an interest in that I am a member, supporter and honorary officer of a number of environmental and related NGOs working in this sphere. There is a considerable and significant consensus among a growing number of organisations that the approach put forward in the amendment is overdue. Prominent among those organisations is the Green Alliance—which really has done a great deal of important research—to which I personally am very grateful. I thank it for having very much prompted me to put forward the amendment. However, it is not just the Green Alliance. For example, the Committee on Climate Change noted in its recent report of 26 June that,

“further consideration should be given to banning specific types of biodegradable wastes, such as food waste, from landfill”.

I am glad to see that the noble Lord, Lord Deben, is in his place because nobody knows more about these things than he does. I was interested to be reminded that on 12 February this year he asked in this House whether it was not time that we banned this material—food waste—from landfill. As I recall, he argued that it was seriously dangerous to create methane. Banning it would enable us to insist upon wider recycling of what is wasted. Commenting on WRAP research into the feasibility of landfill bans, Liz Goodwin, chief executive officer, said:

“This piece of research shows that we could make some significant financial and environmental savings if we stopped sending certain types of rubbish to landfill”.

Tamar Energy and the PDM Group, both large AD investors, have called for food waste landfill bans. The Renewable Energy Association has also produced highly relevant supporting arguments.

During the first day on Report last Monday, proponents of the decarbonisation target amendment, backed by an impressive coalition of businesses, investors and civil society groups, powerfully argued that such a target would provide businesses with the certainty that they needed to invest. The target in their view would have lowered the cost of borrowing, the benefits of which would have filtered to consumers in the form of lower energy bills. A speedier move from a carbon-based energy system, which is becoming progressively more expensive, to a low-carbon system with high investment in energy efficiency would have guaranteed comparatively lower energy prices in the long term. In addition, the certainty of a target would have encouraged development of low-carbon supply chains and associated jobs in the UK.

Like the decarbonisation target amendment, this amendment would provide investors with greater certainty

4 Nov 2013 : Column 52

so that we can end the dumping of a substantial renewable energy source in the form of organic waste into landfill. This will benefit business and consumers, and help the UK to meet carbon and renewable energy targets. There are four key benefits. First, it will help the UK meet its renewable energy and climate change targets. Waste emissions, mostly from organic waste in landfill, represent about 3% of total UK emissions. Secondly, it would reduce the amount of waste going to landfill. As recently as 2009, the UK was still land-filling nearly 21 million tonnes of organic waste. Thirdly, the diversion of food waste from landfill would drive at least £693 million of feedstock to anaerobic digestion each year. Diverting this food waste from landfill would also save over £500 million in disposal costs. This is well demonstrated in valuable research by the Green Alliance. Fourthly, it would reduce risk. AD plants are not being built because of concerns about feedstock. Of Tamar Energy’s 40 proposed AD plants, 25 are at risk due to difficulties in sourcing food waste. Investment in these plants, which is already secured, represents the single largest clean-tech capital deal of 2013.

It was claimed in Committee that AD does not require targets because these would risk the creation of new compliance burdens for business and local authorities. However, the amendment would offer certainty to business. For example, as I have just outlined, Tamar Energy recently called for a ban on food waste to landfill. Feedstock risk is currently a major contributor to financing problems for the AD industry: banks are simply not lending to incineration plants without guaranteed feedstock arrangements with local authorities. It was recently reported that 25 of Tamar Energy’s 40 proposed AD plants are at risk due to difficulties in sourcing food waste, and that a landfill ban and separate food waste collections would address this problem. Indeed, PDM Group also supports a landfill ban for food waste as this would underpin investment in AD plants.

What is more, it is worth noting that the lack of concern in official quarters about feedstock risk for anaerobic digestion contrasts poorly with the strong concern about feedstock risk for conventional gas generation. In July 2012, the Chancellor announced £500 million in tax breaks for new oil and gas field development to give,

“investors the long-term certainty needed to make decisions on investment in … gas”.

In 2013, he halved the tax rate for onshore gas production. This contrast surely needs to be addressed. If the amendment does nothing else, it enables us to address it.

The Earl of Erroll (CB): My Lords, I am flailing around slightly but I want to make a different point. The noble Lord’s point is well taken: there is no point in food waste unnecessarily going to landfill. It can also be composted in the right mixture with other green waste, and so on. That is an alternative, because it then makes a very good soil improver. The only problem is that the regulations around the mobile plant SR2010 No. 4 permits that you have to get can hold things up. They can be quite difficult to get and there is sometimes quite a backlog. The other thing is that you do not really know how much they are going

4 Nov 2013 : Column 53

to allow you to put on. Instead of trusting your agronomist to get your fertiliser recommendations right, the Environment Agency insists on trying to do it some time ahead. I am not quite sure why.

The Environment Agency seems to think that farmers are trying to poison their soil. A sensible farmer is not trying to poison their soil. They will have a proper agronomist giving recommendations. That would be much easier to manage, because you have to start putting the waste onto heaps during the year. You cannot suddenly get, in our case, 12,000 tonnes out of a composting operation in one month. You can only put it on in that gap when you are harvesting, before you cultivate the next year. You are expected to incorporate it within a day, because if anyone complains about the smell they come down on you like a ton of bricks—even though there can be other farmers spreading slurry and all sorts of manures around the place, so the smell could easily be coming from them.

At the moment, those who are trying to avoid food waste going to landfill are sometimes having a difficult time. It might be nice if the Environment Agency looked slightly more kindly on it at times. So far we have not had any real problem, but I can see it building up. Last year we suddenly had the amount that we could put on reduced, which caused a certain amount of chaos to our planning because we buy fertiliser a long time in advance, and so need predictability. It would be far better to leave it to our agronomist.

6 pm

Lord Grantchester (Lab): My Lords, this is the amendment that we discussed in Committee in July. On this side of the House, we have considerable sympathy and agreement with my noble friend’s amendment and the sentiments behind it. In Committee, the debate highlighted the achievements made by the previous Labour Government in initiating waste reduction plans; the progress made since the last election, with the setting up of the Courtauld agreement; and the developments made at EU level with the landfill directive, setting up targets to reduce the amount of biodegradable municipal waste entering landfill in 2020 to 35% of 1995 levels. The UK is on course to meet that target; there is an EU-wide review which should reveal that next year.

Over the past couple of years, the number of plants set up to produce energy from anaerobic digestion of waste has doubled to 110. The Minister spoke of encouraging this through feed-in tariffs and the renewable heat incentive, as well as the Green Investment Bank’s initiative, in her reply in July. My noble friend’s amendment is pushing at an open door; it is happening already, but as part of an industry and the EU-wide process rather than through adding it to the Bill.

In my response in July, I said that recycling organic waste for renewable energy generation is no substitute for eliminating the volume of food waste produced in the first place. Ten days ago, Tesco revealed that in the first six months of 2013 it generated 30,000 tonnes of food waste. Obviously, this figure revealed widespread differences between different foodstuffs. To reduce waste, it is important first to discover where that waste is taking place, so that action can be made more

4 Nov 2013 : Column 54

effective. Tesco added that, where possible, any food which could not be sold could also be donated to the charity sector, Foodshare and other food banks, or diverted to animal feed for livestock. This is also part of an effective answer.

While the Minister will be resistant to the amendment, it gives me the opportunity to ask her to commit the Government to certain helpful activities. Would she promise to report back to the House at regular intervals—I suggest twice annually—on actions that the Government are taking with the aim of reducing organic landfill waste, as well as undertaking to report back to Parliament immediately after the 2014 EU review is published, offering an updated strategy for reducing landfill of organic waste?

Lord Teverson: My Lords, I shall speak slightly out of order here, for which I apologise. I tabled a similar amendment in Committee, and I am very pleased that the noble Lord, Lord Judd, has brought this matter forward again.

This is not my noble friend the Minister’s area, or her department’s; it is very much a Defra area. Although I suspect that this Bill is not the best place to do this, I very much hope that Defra will take this area increasingly seriously and that the Government will find a way in which to move the agenda forward.

Baroness Verma: My Lords, I am grateful to the noble Lord, Lord Judd, for prompting further debate on the setting of targets for the landfilling of waste. Amendment 76 is designed to require the Secretary of State to set out a plan and timeframe, as soon as is practicable, for reducing and eventually eliminating the landfilling of organic waste. It would make it available for renewable energy generation and other appropriate uses, consistent with the waste hierarchy as defined in the Waste (England and Wales) Regulations 2011.

The Government support the minimisation of organic waste going into landfill and are sympathetic to the aims of this amendment. When we debated this matter in Committee, I outlined the considerable progress made in minimising organic waste entering landfill by the reduction of food waste and the increase in the number of anaerobic digesters generating energy from food waste. We very much agree with the points that the noble Lord made during that debate about the value of avoiding emissions of greenhouse gases from landfill. Preventing food waste is the most effective approach in carbon-saving terms: compared to landfilling, each tonne of food waste prevented means 4.2 tonnes of CO2-equivalent emissions are avoided.

We have worked very successfully with industry to reduce supply chain food and packaging waste by nearly 10% over the past three years, while the Waste and Resources Action Programme’s “Love Food Hate Waste” campaign helps consumers to make informed choices on reducing food waste. Household food waste is down by 13% since 2006, and we expect a 20% reduction to be achieved during the three phases of the Courtauld commitment that all the major supermarkets have signed up to. These results show that the voluntary approach can deliver real reductions in waste while allowing businesses to be more efficient

4 Nov 2013 : Column 55

and competitive. We want to build on this work with businesses rather than impose targets or restrictions. When food waste cannot be avoided, anaerobic digestion is currently the best option that we have, because it produces renewable energy and a valuable fertiliser. Over the years, we have provided a range of support through WRAP for anaerobic digestion, including £11 million in grant funding.

The substantial increase in the number of anaerobic digesters generating energy from waste continues. We now have more than 100 megawatts of capacity for waste and, together with the long-standing use of anaerobic digestion in the sewage treatment sector, this gives us capacity to generate 1.5 terawatt hours annually. In the Government’s anaerobic digestion strategy to tackle barriers to anaerobic digestion, we estimated that there was a potential to generate 3 terawatt hours to 5 terawatt hours of electricity by 2020. With another 300 megawatts of capacity consented or being built, the industry is well on its way to delivering that potential.

Most of the actions in our anaerobic digestion strategy are now complete. The Government published a second progress report in August and it is now for industry to use the outputs to ensure that the barriers they identified are removed. I hope the noble Lord will be reassured that we can continue to reduce organic waste entering landfill by encouraging food waste prevention and supporting a growing anaerobic digestion industry without introducing further targets to those set out in the EU landfill directive. I also add that current evidence suggests that further statutory targets would have an impact on businesses and local authorities in compliance and monitoring, risking additional cost burdens on business. It is likely that these additional cost burdens faced by industry and local authorities would be passed on to the consumer, which means that consumers could risk facing higher costs if additional statutory landfill bans were introduced.

The noble Lord, Lord Grantchester, asked about reporting on a reduction of landfill. Landfill tax is the main form of reducing organic waste from landfill. Defra is encouraging food waste prevention and encouraging the use of anaerobic digestion; the Environment Agency monitors emissions under the industrial emissions directive. Under the permitting regulations, the Environment Agency also monitors the air quality.

We are mindful of the concerns expressed by the noble Lord, Lord Judd, around this sector, but I hope that I have been able to satisfy the noble Lord that the actions that we are taking and our encouragement of industries such as anaerobic digestive generators to make use of waste will help him to decide to withdraw his amendment.

Lord Judd: I thank those who have participated in this short debate. I particularly thank my noble friend on the Front Bench for his rather double-edged intervention. I do not doubt his good will, but I have anxieties about his complacency—and I hope that he forgives me for putting it so bluntly. I am afraid that goes for the Minister as well.

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What we have not heard from either Front Bench is any kind of response to what is already in evidence: that those who are responsible for developing the industry in this sphere are already running into difficulty. It is all right coming here and telling us, “We have got a trend and it is going well”; the warning signals are there: they are not attracting the money they should be attracting for investment. The reason for this is uncertainty over key supplies. Surely we do not wait until the whole thing collapses. That is not a very sensible approach to political management. If the warning signs are there, this is the time to take action. I sometimes find it quite extraordinary. In quite a number of countries in Europe it is absolutely taken for granted that this is the way to approach it; for example, Flanders, the Netherlands, Germany, Austria and Sweden all have compulsory arrangements in this area.

We say that we want to ensure that this change takes place and that we are very glad that it has proved itself as something that can develop. We do not, however, want it to dry up. I ask the Minister to go away from this brief exchange—perhaps I might very gently suggest that my Front Bench does the same—and look at what is actually happening now; not the trends in the past, but what is happening now. It is because of that that action is necessary.

I shall, of course, at this stage withdraw the amendment, but I hope that it is not just a matter of the Minister coming and reporting to my noble friend, “Ah, I’m afraid it has all dried up; it is not happening”. It is a matter of looking at it, saying what the warning signs are and taking action. I beg leave to withdraw the amendment.

Amendment 76 withdrawn.

6.15 pm

Clause 60: Nuclear safety purposes

Amendment 76A

Moved by Lord Whitty

76A: Clause 60, page 57, line 14, after “persons” insert “and the environment”

Lord Whitty (Lab): My Lords, in moving Amendment 76A, I shall speak also to Amendment 76B which is grouped with it.

We now come to the central part of this Bill which takes up 60 pages of the main Bill; it comes to something like 60 clauses and a large chunk—two-thirds—of the schedules. It has received relatively little attention in the course of the Bill’s proceedings, and virtually none in another place. We gave it reasonable consideration in Committee and we reached a degree of consensus. There are some things I still have queries about, but I am grateful to the Minister for explaining aspects of that and also to her officials who explained some of the aspects even further.

It still remains, however, that this is part of the Bill which has received very little public and wider attention. Yet it is one of the most important parts of the Bill because it regulates the nuclear industry. The policy of the Government, and to a large extent the policy of all

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parties now, is that of a significant shift towards nuclear power within our energy mix. We know the history of nuclear power is controversial, not only in the past here, but also worldwide. It is therefore essential that we get the system of regulation in this area right and the balance right. The Government have, to a large extent, done that. It has been quite a long gestation period taking what will be the ONR out of the Health and Safety Executive, giving it certain additional powers and clarifying in one piece of statute what its role is. I commend that. While it makes for a rather lopsided Bill, it is an important achievement. My amendments, therefore, are not attempting to upset the main thrust of the provisions within these sections, but they are trying to clarify some aspects of it. I hope that the Minister can give me some satisfaction on that.

One of the main roles of the ONR, and one of the most important public roles, will be the approval of designs for new reactors and the construction process that goes with it. Yet in all those pages there is very little mention of that role. It is mentioned here in Clause 60 and it is mentioned specifically under nuclear safety. The reason that it is so important is that both those who argue strongly in favour of nuclear power and those who argue strongly against it are concerned about the nature of the design of the reactor. It has been an issue in relation to the Hinkley Point approval that this reactor may not be the most appropriate reactor for the future—it may not be the most cost-effective and it may not be the best in terms of the contribution to the environment. Whether those criticisms are true or not, the Government rightly had a very heavy assessment, verification and approval process before they gave the go-ahead to the Hinkley Point project. The ONR in its shadow form and the Environment Agency both had a role in looking at that design. They looked at the design itself, its engineering, its safety requirements, its operational requirements, its effect on the ecology and the environment and of course they looked at its economics. They gave approval following a pretty long process and managed to rationalise the number of planning and other approvals that were needed.

I declare an interest in that until the end of last year I was a member of the board of the Environment Agency and I took a particular interest in the nuclear dimension of its activities. Both on the ONR/HSE side and on the Environment Agency side that was a very effective process. It was, however, an ad hoc process. It was a process that the Government invented when we were talking about several different designs that were possible and several different sites a couple of years earlier. It is still true that there has been some criticism of the choice of design being what some people refer to as an old design for what is a 35-year project. I do not want to enter into an argument about the merits of those criticisms myself, but it is important that the Government and the regulatory system have a robust system of ensuring that the design has been through the most rigorous appraisal system.

There are of course other designs that will be coming along. We have other sites that are capable and have been already designated by the Government as potential nuclear sites. There are other designs out

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there which are already operational or nearly operational: the CANDU system, a boiling water system, a PRISM system and there are companies and consortia that are promoting those here and elsewhere in the world. It is therefore highly possible that a different consortium from the one that is operating at Hinkley Point will come up with a different design which will need to be subject to an equally rigorous process. In that process it is vital that part of the responsibility of the ONR is to be at the cutting edge of nuclear technology and all the sub-technologies that go to make up the design. It is also important that it is cost-efficient.

The other criticism of the Hinkley Point deal is that we are paying too much for it. I again make no point on that at this stage. It is clearly right, however, that it is done on the most cost-effective basis, both for public acceptability and for the importance to the economy of moving to a greater share of nuclear power through the 2020s. It is also important that maximum safety is built in and, more generally, the protection of the environment.

Reading these sections of the Bill, one would not immediately deduce that this is, in a sense, the central role of the ONR. The approval of new systems, the new reactor designs and the appropriateness in the timescale is an important part of our ability to meet our carbon targets and to ensure that there is no detrimental effect either to the economy or to the environment. It deserves at least underlining—which is all my amendment does—that the role of the ONR in this respect is crucial and comprehensive, and that it is not only to do with safety but all these other matters as well.

Amendment 76A makes it clear that it is not only the safety of persons that is relevant but the safety of, and impact on, the environment. For that reason it is also important that there is specific reference in the Bill to the role of the Environment Agency. That agency played an equal role in the Hinkley Point case. The Environment Agency clearly has powers under the environment Acts but what we discussing is a joint responsibility. The ONR is not taking over that responsibility from the Environment Agency, which presumably could have been an option when the ONR concept was delivered.

Amendment 78B underlines what I have been talking about and makes it clear that in approving a design, and the construction plans that go with it, there is an absolute obligation on the ONR to ensure that they are of the very highest quality. The amendment also covers issues of cost-effectiveness, safety and security. This is central to the task of the ONR, as I have argued. The safety dimension is central to the safety of the population and of the environment. It is also important in a political sense. The public’s acceptance of the shift to nuclear power is fragile. It is significant but fragile, as we saw in Germany and other countries following the events at Fukushima. Therefore, it is important that the regulator we put in control of this system is seen as having a comprehensive and robust responsibility to deliver on all those elements when approving a major new reactor design. On every occasion we need to go through a very detailed process. It is important that it is written in large letters that this is one of the ONR’s central functions.

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The Minister may say that this amendment is superfluous but in terms of reassuring the public it is important. The Government’s policy on this issue may be sufficient but the issue of the certification and approval of design must be an important part of the Bill. I hope that my few words on these two amendments will take it some way in that direction. I beg to move.

Lord Jenkin of Roding: My Lords, the House is very much indebted to the noble Lord, Lord Whitty, for the amount of time and the expertise that he has brought to bear on this important part of the Bill, as he rightly said. It has been a very long time in gestation. It was recognised two, even three, years ago that the difficulties which the ONR—it was then the nuclear inspectorate—faced in recruiting people to do the very specific task that is required when approving nuclear designs meant that they had to be sui generis so far as the terms of the employment were concerned. They could not be subject to the normal standard Civil Service rules. That is the primary aim of this part of the Bill: namely, to take the ONR out of the standard Civil Service terms of contract for the people it employs. It takes anything up to 20 years before an inspector becomes fully qualified to carry out the extremely expert work that is necessary to approve the designs of nuclear power stations and they are difficult people to come by. One needs to be competitive in this regard. The Select Committee on Science and Technology heard evidence from the former chief inspector, Dr Mike Weightman, who was very clear about this and, indeed, was glad that the issue was at last coming forward in this Bill. He made it clear that he had had to wait rather a long time for this to be done. The Government are very much to be congratulated on including the issue in the Bill.

Amendment 76A, in the name of the noble Lord, Lord Whitty, and others, seeks to add the words “and the environment”. As a former board member of the Environment Agency, the noble Lord has had much more experience of this issue than I have. As he rightly said, the regulation of this area is done by both bodies—the inspectorate, now the Office for Nuclear Regulation, and the Environment Agency. Their roles may overlap but they are most emphatically not the same. Nuclear science and technology is essentially the area of expertise of the ONR whereas the Environment Agency has the broader role of looking at the impact of a nuclear plant on the surrounding environment and at atmospheric pollution and so on. These roles are not the same. I will be interested to hear what my noble friend has to say on this. However, if I may say so, to add “and the environment” would confuse the issue. This part of the Bill does not deal with the Environment Agency, which continues to do exactly what it did when the noble Lord was a member of its board. I would be interested to know the reaction of the Environment Agency to the amendment. I think it would say, “It is not for them, it is for us”, meaning the agency. As I say, I shall be interested to hear what my noble friend has to say but it raises a question.

As regards Amendment 78B, we need to pay greater attention to cost-effectiveness. I do not know how many noble Lords have read the very interesting article

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by my noble friend Lord Ridley published a few weeks ago in which he talked about the cost pressures of the nuclear inspectorate on the price of a nuclear power station. I do not have the article in front of me but I remember he said that the inspectorate is taking a very, very safe system and insisting that it will be a very, very, very safe system. The question is: what will that cost? I would be interested to know to what extent it is the inspectorate’s role to consider the cost of the additional requirements that it may impose on the design of a plant.

I am absolutely satisfied that the public will expect the inspectorate to have very high standards. Indeed, I spent some years as the honorary president of the Energy Industries Council, which represents some 650 companies in the supply chain for all the energy industries. One of the things I find myself saying over and over again is that if firms are going to sell to the nuclear industry they must get used to nuclear standards which, for the most part, are considerably higher than general engineering standards, and rightly so. However, is it the role of the ONR to look to the question of cost? It has to consider the design of the plant that is put before it. As the noble Lord rightly said, there will be several. It is already looking at the advanced boiling water reactor put forward by Horizon Nuclear Power, which is now owned by Hitachi. It is not yet looking at either CANDU or PRISM—the other two items the noble Lord mentioned—which are still being examined by the Nuclear Decommissioning Authority and the department. However, if a design is put forward for either of those two items, the inspectorate will have to look at those as well. Should it be concerned about the cost? The only cost with which it ought to be concerned is whether we are expecting too high a standard at too great a cost, and whether this is absolutely essential. I suspect there is a temptation to say that anything which makes an installation safe—even if it has to be very, very, very safe—should be done even if it costs a lot. I do not agree with that. There must be a role here for looking at the particular cost for the particular requirement that the inspectorate is asked to look at.

As I say, I shall be interested to hear what my noble friend says about that but I think there may be greater merit in this amendment than in Amendment 76A.

6.30 pm

Lord Wigley (PC): My Lords, I apologise that I was unable to play much of a role in Committee on this important Bill because of a clash with other work here. When one is in a party of one, or one and a quarter at best, it is difficult to spread oneself around. I have a considerable interest in the question of nuclear energy and I am not in the mainstream of my party’s opinion. My party has tended to be anti-nuclear on the basis of fearing consequences if accidents of the sort we have seen in Japan and elsewhere were to happen. I did a degree in physics at Manchester University which contained a large element of nuclear physics; I worked for a time building the Trawsfynydd nuclear power station; and the Wylfa nuclear power station is also within the old county of Gwynedd, my home area. Therefore, I was most grateful to the noble Lord, Lord Whitty, for introducing the amendment in a

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broad context, bringing in the environment, because the environmental consequence of nuclear decisions is central to the public perception.

We are expecting the go-ahead, in Anglesey, for the Wylfa B station, something that I am very much in support of, as is a majority of opinion within the county of Anglesey. There are, however, many people who have worries about safety. As the noble Lord, Lord Whitty, mentioned, those worries have to be taken on board and have to be central to the thinking of the structures we are dealing with here. I listened to the noble Lord, Lord Jenkin, a moment ago, saying that there is sometimes the danger of going for the extra step of safety at a disproportionate cost. Obviously, there is a risk that has to be taken at some point, but the communities are only happy to support the nuclear industry when they think that that risk is very small indeed, that all steps can be taken to minimise those risks and that structures are being put in place to do that.

In the context of this part of the Bill and this amendment, one aspect of the environmental impact that arises from nuclear energy is the environmental impact associated with decommissioning. The Minister may recall that I raised this question at Question Time not so long ago: it is a matter of some concern. The new generation of nuclear power stations have easier and faster decommissioning built into them—one is very much aware of that. It is not the same decommissioning process as was necessary for the previous generations. One thinks of the Trawsfynydd nuclear power station which stopped generating electricity 20 years ago and is still being decommissioned, with 700 people still working on site on the decommissioning and another three years at least of work for those 700. That is an enormous cost. One accepts that, with luck, the costs of decommissioning will be less when the technological needs of decommissioning have been more appropriately designed into the original design of the nuclear power station, but there are always uncertainties.

The question that I put to the Minister on the back of the amendment, which deals with the environment—and it is an environmental consequence—is what if those who are involved in the construction and running of nuclear power stations and who are charged with the internalising of the costs of decommissioning into the overall cost package were to go bankrupt? What if that company goes to the wall? What happens to the steps needed to ensure safe decommissioning with regard to the impact on the environment if it is not properly handled?

I understand that at the point of negotiating contracts with companies such as Hitachi and the others, the Government clearly want to make sure that the companies that may make profit out of this pay the costs that are consequential on the work they are undertaking. Of course, it is right that this should be so, but there still needs to be some guarantee, at the end of the road, that the communities that are hosting this new generation of nuclear power stations cannot, under any circumstances, be left with a nuclear hulk the cost of decommissioning of which nobody is willing to take on. I believe that assurances along these lines are needed in order to make it easier for those, such as myself, who are in

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favour of nuclear power, to be able to argue the case. It is a worry and I have not heard how it will be addressed in those unfortunate, unlikely but still possible circumstances that could arise at some date in the future.

Lord Judd: My Lords, after the slight wobble with my Front Bench a moment ago, I am very glad to find myself 300% on board with them. I think that the amendments are absolutely right; I hope that they press them hard and that the Minister will find the opportunity to respond positively.

I always get a bit worried about what is happening with climate change in the sense that I am never quite sure that the principles with which I grew up still apply, but if the prevailing wind in Britain is still south-westerly, I live 12 miles north-east of Sellafield so I obviously take these arguments very seriously indeed. I am in favour of the next generation of nuclear energy: there is no argument about that, and obviously we in Cumbria will play our part in one way or another. That is given, but this is highly dangerous, lethal engineering of which we are speaking and it seems to me that we cannot have anything but the highest standards. I was very glad to find myself sympathising with a great deal of what the noble Lord, Lord Jenkin, was saying, but I could not quite buy his total argument that very, very, very safe was perhaps too much. I think that the developments have to be as safe as they can be.

As we go into this new generation of construction we have heard quite explicitly from the Government—it has been repeated tonight—that we have not got the necessary expertise. This is a very hazardous development. I think that we need some very specific, concrete plans from the Government for bringing the preparation of our own engineering capacity up to date and I urge my own colleagues in opposition to take this seriously too. I do not like the prospect of our being dependent upon foreign expertise in the area of safety: I do not think that it is in any way an ideal situation.

The noble Lord, Lord Wigley, made the point about, “What if?”. I do not think that one can ask too many such questions when we are going into this very important new development. The basic issue is that we have an engineering deficit in terms of our own capabilities and we are putting ourselves into the hands of foreign engineers. Everyone will know that I am an internationalist second to none, but it seems to me that we need to be very clear about how we are going to generate the expertise in this country and very fast indeed.

The Earl of Caithness: My Lords, I am slightly wary of the amendment including the environment in the duties of the ONR. The only reason for that is that I think that it confuses the issue. My noble friend Lord Jenkin was absolutely right: the environment should be with the Environment Agency and design should be with the ONR. If we give the ONR the environment as well, I think that there will be more confusion than light and that would be an unhappy situation.

The noble Lord, Lord Judd, talked about the importance of having our own people on the safety and security standards. Have we not blown it, from being world leaders to having to rely on overseas

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firms? Not that I am against that, but to have lost the world lead that we had is one of the great tragedies of the past 50 years. I am particularly sad that the fast breeder reactor at Dounreay, just down the road from my home, is not flourishing but is being decommissioned.

One of the reasons why we lost our world lead is that we did not take public opinion with us. This is a crucial issue and Amendment 78A in the name of the noble Lord, Lord Whitty, is perhaps more relevant in that regard. When the ONR and the Environment Agency look at these plans they have to be able to say that this has the seal of approval under the highest standards and quality that are right for Britain. If that does not happen, we will lose the support of public opinion again. It will be back to not just square one but minus five on the scale. That would be a sadness.

The noble Lord, Lord Whitty, reminded us that there are different designs. That is a concern and I wish that we would stick to one design in the competition. If you can replicate that design, you are going to lower costs. My noble friend Lord Jenkin referred to my noble friend Lord Ridley’s article of not so long ago in the Times. One of his arguments was that we should have a number of smaller nuclear plants, all identical. You could then set the safety standards right at the beginning, replicate the plants and have in-house expertise. Although I am a great proponent of and believer in competition, there is an argument here for saying that, having reached this stage, we ought to stick with one design and replicate it because that will help lower costs and help us get the relevant expertise into this area. If you have to have one set of expertise for what you are building at Hinckley, another for Anglesey and another for elsewhere, that might stretch us too far. I would therefore welcome anything that my noble friend can say on that.

Lord Mackay of Clashfern (Con): My Lords, as I read subsection (1) of Amendment 78B, it seems to distinguish between design and construction; and in subsection (2), cost-effectiveness seems to be required only in relation to construction and does not seem to apply directly to the design. That may be deliberate—I am not sure—but that needs some explanation.

The Duke of Montrose (Con): My Lords, I should like to express my opinion and interest in Amendment 76A. It is clear from what it says that the ONR will have responsibility for protecting “persons” against risk of harm from ionising radiation. In fact, pretty well all the risks that one can think of are those that affect persons. Perhaps in slight contrast to my noble friend Lord Caithness, my worry would be that the Environment Agency will have a big role in the approval, design and putting in place of a nuclear power station but it is more likely that the Office for Nuclear Regulation will be the body that is watching what happens day by day as the plant is running. While one can state that someone has responsibility for the environment—which is a nice, all-embracing term that we might think would take care of everything—we need to consider what the threat to the environment might be. We do not expect nuclear power stations to blow up but a whole lot of my sheep were prevented from going to market because of the nuclear explosion at Chernobyl,

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and various neighbours of mine were required to put all their sheep through a nuclear scanner. One man actually tried to put his dog through it in order to show the possible dangers from radiation. However, there is the possibility of food supplies being affected. At Fukushima, the issue was marine pollution. I want to be sure that the Office for Nuclear Regulation will be aware of the ongoing operation of plants in order to protect those elements.

6.45 pm

Baroness Verma: My Lords, I thank the noble Lords, Lord Whitty and Lord Grantchester, and the noble Baroness, Lady Worthington, for their amendments. I also thank all noble Lords who have taken part in this important debate on the nuclear regulation clauses in the Bill. My noble friends Lord Jenkin and Lord Caithness, who have a great deal of experience and knowledge in these matters, are right to point out that there could be some confusion if we were to take these amendments as they are laid out.

Amendment 76A seeks to expand the ONR’s nuclear safety purposes to include responsibility for the environment. As my noble friend Lord Jenkin pointed out, a regulatory framework is already in place to protect the environment and the relevant agencies—the Environment Agency, the Scottish Environment Protection Agency and Natural Resources Wales—are well placed to carry out this role. The interim ONR has a strong working relationship with these regulators, which will continue once the ONR becomes a statutory body.

I understand noble Lords’ interest in the regulation of the environment but it would not be appropriate to expand the ONR’s purposes to overlap with those of established regulators. This would create conflict between two different regulators in the same field and place additional regulatory burdens upon members of the regulated community. As I said earlier, it would create confusion.

Amendment 78B seeks to include a new clause in the Bill concerning the design and construction of nuclear installations. It places a responsibility on the ONR, in conjunction with the Environment Agency, to regulate the design and construction of installations. The amendment also requires that the ONR alone is responsible for ensuring not only the highest technological and safety standards but that the most cost-effective measures are taken.

First, I reassure noble Lords that the regulation of the design and construction of nuclear installations is firmly within the ONR’s purposes and that the organisation, through well established legislation such as the Nuclear Installations Act 1965 and the Health and Safety at Work etc. Act 1974 will continue to do this. Secondly, the ONR has a strong working relationship with the Environment Agency in its generic design programme, and this will continue to be in place. To place such a duty in the Bill is therefore unnecessary. It would also be inappropriate to place the ONR under a duty to require the industry to use the most advanced technology available. The role of the ONR is to ensure that the design and construction of nuclear installations meet safety standards. This may involve the use of new or advanced technology. However, the focus is rightly on achieving the highest possible safety standards.

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I reassure noble Lords that in undertaking its function with respect to the design and construction of nuclear installations, the ONR will work to ensure that these plants are designed and built not only to be safe but to make use of appropriately advanced and proven technology. It would be grossly inappropriate to place a duty on the safety regulator to regulate the cost efficiency of the construction of these installations. Such a requirement risks diverting the ONR’s attention away from its crucial safety role and placing potentially conflicting requirements on its regulators.

I agree with the sentiment that nuclear installations must be designed, built and operated to deliver value for money. However, I do not believe that this should or can be achieved by placing the safety regulator in the position where it must ensure that this is the case. It is for companies such as EDF to build and operate new nuclear power stations and make decisions about which reactors they use. It is important that any reactor used is safe and effective in its design, and the UK has a strong regulatory regime in place to ensure that that is the case. I understand that we need to have value for consumers, but it is not the role of the ONR to involve itself in the cost of design. The central role for the ONR is to ensure that we have the highest standards of safety in place.

My noble friend Lord Jenkin asked whether the ONR was expecting too much in terms of safety. The ONR expects nuclear installations to reduce risk as far as is reasonably practical. That is an established tenet of health and safety law and the nuclear industry is comfortable working within this regulatory framework.

The noble Lord, Lord Wigley, asked what would happen to the decommissioning costs if an operator became bankrupt. Under the funded decommissioning programme, operators of new nuclear power stations will be required to meet agreements from the Secretary of State to ensure that costs of waste management and decommissioning are met from day one for operators. These arrangements will need to be independent of the operator and will therefore take account of the operator going bankrupt.

Lord Wigley: I am very grateful to the Minister. I have no doubt that there will be a funding process that ensures that there is a pool of money to meet what is foreseen as the decommissioning costs. However, what happens if the standards, as they develop over a lifetime or 20 or 30 years, change in a way that leads to additional costs, or if the economic circumstances of the company disintegrate, for whatever reason, and it is not able to top up that pool as it goes along? What, then, is the safeguard that she and the Government can give to communities that there will be somebody who will step in and not leave them with a nuclear hulk, with all the implications that that could have? Those assurances are needed by the communities that are going to be welcoming these nuclear installations.

Baroness Verma: My Lords, I take the noble Lord’s concerns very seriously. It may be helpful if he would allow me to write to him in further detail about the decommissioning plans that we have in place. I will try to reassure him that the independents with these funds in place are away from the operators, and we are keen

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to make sure that the funds are met. However, since I have not reassured him enough, I think it may be helpful to write to him.

My noble friend the Duke of Montrose asked if the ONR will regulate ongoing operations of power stations. The ONR will continue to regulate and monitor installations as they are operating and beyond. It will continue to work closely with the Environment Agency and, of course, the other, separate agencies of the devolved powers to ensure that the effects of nuclear power generation on the environment are monitored and action taken where necessary.

My noble friend Lord Caithness said that we should have a single design for reactors. The Government’s position has always been clear in that we encourage diversity in reactor design but of course, as with all things, they have to meet the highest standards that we expect of them.

Lord Judd: Frankly, I am a little confused, and I wonder whether the Minister could put me right. She said earlier in her response that of course these things were up to the company to perform as required. Of course, this is all happening as a result of a tough political decision by the Government. We cannot walk away, as a nation or a Government, from our ultimate responsibility. What some of us are concerned about is having systems in place that ensure that companies are indeed performing as expected. In this context, we come back to what we were discussing earlier, that we cannot be certain that everything is being done as it should be because we ourselves say that we have not got that expertise. Can the Minister address these issues? There really is a credibility gap.

Baroness Verma: My Lords, I recognise that the noble Lord, Lord Judd, talks about the resources and the capabilities that we require going forward. We are mindful of that, and so is the ONR. There are a range of measures that the ONR is already engaged in to replace a depleted number of experts. I reassure the noble Lord that in saying that it is for companies to build and operate does not detract from the ONR’s main business, which is to ensure that reactors meet the highest standards of safety. We are measuring two things together, including the fact we have got the resources and capabilities in place, which the ONR is very aware of, as are the Government.

This is a historical vacuum that we are filling—the ONR is well aware of it—but there are a great deal of measures that the ONR is taking to ensure that we have those ongoing capabilities coming forward. We know, and take seriously, what the noble Lord is asking.

Lord Judd: I really am grateful to the Minister because she is trying very hard to reassure me and I always find myself being seduced when she is at the Dispatch Box with her arguments. However, I hope that she will agree with me that it is an aspiration on our part; as a nation, we have not got the means to be certain that what we are aspiring to, and exhorting people to do, is in fact being done. That is why it is so incredibly urgent to close this engineering expertise gap and to make sure that the credibility is foolproof.

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Baroness Verma: I shall try to seduce the noble Lord better next time, but in the mean time I hope that the noble Lord, Lord Whitty, withdraws his amendment.

Lord Whitty: My Lords, I thank the Minister and everybody who has taken part in this debate, and I will answer some of their points. The noble Lord, Lord Jenkin, is clearly right that the trigger for setting up the ONR under a new statutory basis was to take it out of the Civil Service, and a large part of the reason behind that was the need to ensure that we have adequate expertise in this field. It is a field that has been allowed to run down; we are probably not without expertise at this point, but they are ageing. Some of them are tempted elsewhere and it is a global market, and therefore it was important for us to ensure that this happened.

Although that may have been the trigger, we have a wider prospect here of a largely comprehensive regulator having its duties set out in a fair amount of detail in this Bill. It would be wrong to say that it is entirely a reflection of the fact that we potentially face a scarcity of resources. Having said that, it is of course important, as the noble Lord, Lord Jenkin, and my noble friend Lord Judd have said, that we address that issue in terms of training provision, investment and our ability to compete for global talent. However, there are wider issues involved here as well.

Objection was made to the reference in the first of these amendments to putting “and environment” in the responsibilities of the ONR. I have no desire—and my previous colleagues at the Environment Agency would no doubt shoot me if I had—to change the boundaries of responsibility between the EA and the ONR. It is important that they are both operating in this area and operating to their own expertise. However, it is also true, if you look at nuclear processes, and some other processes as well, that the hazard involved, the potential risk and the need for minimising that risk is not only to the personnel in the immediate area and those who may be visiting in the immediate population, but also to the environment. If my noble friend Lord Judd lives 12 miles from Sellafield, he will know what I am talking about. If anything were to happen at Sellafield, not only would he and the population in his village be at risk but the totality of the environment of West Cumbria would be at risk as well. It is therefore important that, in approving a particular process or way of dealing with that process, the ONR at least takes cognisance of the fact that there is an environmental dimension. The expertise and regulatory authority may rest with the Environment Agency but the ONR will also have to take that into account. I do not find that confusing; it rounds off what the responsibilities are but does not change the regulatory boundaries.

7 pm

Amendment 78B refers to the ONA acting in conjunction with the Environment Agency, not taking over the role of the EA. In answer to the noble and learned Lord, Lord Mackay, with my reference to approval of design I was not making an absolute distinction between design and construction, but the role of the EA is different in each case. In terms of construction, all sorts of things come into place in

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terms of the effect on the ecology, the flood risk and everything else, but in terms of design, both environmental and safety issues have to be built in by the two bodies acting in conjunction with each other.

To answer the noble Earl, Lord Caithness, it would be interesting if the Government decided that all the designs would be the same, but we are talking about 50 years of new nuclear build. We are already faced with the view of some people that the design at Hinkley Point is out of date. That may be wrong or it may be right, but it would be wrong for us to close our minds and say that we are looking for a single design for all the nuclear power stations in the places that we have designated as potential sites. There are existing designs and there will be more. There will be improvements in the designs that are currently out there and therefore it is important that this is an ongoing issue. We do not want to have a standard design. If I may say so to the noble Earl, it is taking a slightly Stalinist view of these matters to say that we should decide what is fitting now in 2013-14 for the operation of nuclear power stations in the mid-2020s, with a view to that design lasting for the next 25 years. I do not think that that is sensible at all. Therefore, the ONR will have an ongoing responsibility to approve new designs and to look at potential designs, whether or not we proceed with them.

I brought forward the second of these amendments because I regard that as being, in a sense, the central operational responsibility of the ONR. That is why I sought to underline it. As I said, it is also, frankly, the central political role of the ONR in relation to a new station so that it can reassure the kind of people whom the noble Lord, Lord Wigley, referred to and, more widely, address the general concern about moving into a new nuclear era. I think that that objective needs underlining. The noble and learned Lord, Lord Mackay, made it plain that my wording is not entirely clear and there have been other objections to it. However, I hope that the Government will take on board the need to ensure that that is seen as almost the number one priority for the ONR and that it will somehow be reflected in the final version of the Bill that the rest of the ONR’s responsibilities relate to the ongoing operation of nuclear installations but that this is the key one. In my view, it needs a greater emphasis than it currently has in the Bill. However, for now, I beg leave to withdraw the amendment.

Amendment 76A withdrawn.

Amendment 77

Moved by Baroness Verma

77: Clause 60, page 57, line 16, at end insert “their”

Baroness Verma: My Lords, the amendments in this group respond to a number of issues, the majority of which were raised in Committee or by the Delegated Powers and Regulatory Reform Committee. They are intended to add further clarity to the Bill.

Amendments 77 and 78 have been tabled in response to the suggestion of the noble Lord, Lord Whitty, that we define “associated sites” within this part of the Bill.

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I thank him for his contributions to the debate and hope that he finds that the proposed definition adds clarity to Part 3.

Amendments 79 to 82 are made in response to the DPRRC’s recommendations that a parliamentary procedure be applied to the production of approved codes of practice. A procedure akin to the negative procedure will now apply to any issuance or amendment of an ONR code, and the Secretary of State’s approval must be granted for the withdrawal of such a code.

Amendment 83 has been tabled to ensure that the provisions on disclosure of “protected information” in Schedule 9 apply to information shared by HMRC under Clause 89 and an inspector appointed by the ONR under the Health and Safety at Work etc. Act 1974.

Amendment 84 aligns the definition of “relevant provision” in Schedule 10 with the definition in Clause 73.

Amendments 85 to 87 apply the affirmative resolution procedure to the first set of nuclear regulations that the ONR makes under the Bill, any nuclear regulations which amend the Nuclear Installations Act 1965 or the Nuclear Safeguards Act 2000, and any such regulations that create new offences. This is in response to the recommendations made by the DPRRC, for which the Government are very grateful.

Amendments 88 to 90 will allow the Secretary of State to make transitional provision for the ONR to continue to apply certain regulations under the current regulatory regime until specific regulations are made for the ONR. This includes provision for the conduct of inquiries and the current health and safety fees regime for the nuclear industry. These small amendments will allow us to make a smooth transition to the statutory ONR and will also ensure that the ONR is not significantly reliant on grant in aid for the first few years of its existence.

Amendment 91 clarifies that compensation can be paid by the Secretary of State only in respect of property transfers and not in respect of staff transfer schemes.

Finally, Amendment 92 has been added to allow for regulations to be made jointly under the Energy Bill and the Health and Safety at Work etc. Act 1974 where the Energy Bill requires an affirmative resolution procedure to be followed. Where this is the case, we have chosen that the route followed by such regulations should be subject to the subordinate legislation provisions in Clause 104.

I hope that noble Lords are satisfied with my explanation of these amendments and can agree to their inclusion in Part 3 of the Bill. I beg to move.

Lord Whitty: My Lords, I very much welcome these amendments. Obviously, I particularly welcome the ones that relate to my suggestions for the definition of sites. I think that they make a significant improvement and add clarity.

I am sure that were the noble Lord, Lord Roper, here, he would very much appreciate the move in the direction of the Delegated Powers Committee that the Government have taken in introducing a number of these other amendments. It is always right that any Government should not only take note but follow the

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advice of the Delegated Powers Committee’s recommendations, otherwise they would find themselves in serious trouble. The Minister has managed to avoid that, at least in this part of the Bill.

The transitional provisions in Amendments 88 to 90 also seem sensible. I welcome the amendments and hope that the House will accept them.

Amendment 77 agreed.

Amendment 78

Moved by Baroness Verma

78: Clause 60, page 57, line 37, after “site” insert “(its “associated site”)”

Amendment 78 agreed.

Schedule 7: The Office for Nuclear Regulation

Amendment 78A

Moved by Lord Whitty

78A: Schedule 7, page 137, line 17, leave out sub-paragraph (3) and insert—

“(3) At least one non-executive member must have experience of, or expertise in—

(a) matters relevant to nuclear safety management;

(b) representation of employees in health and safety;

(c) matters relevant to the ONR’s nuclear security purposes.”

Lord Whitty: Amendment 78A deals with the governance of the ONR. There is relatively little in all these pages about that governance; the amendment attempts to beef it up, in terms of who should be the independent members, or non-executive members or whatever you like to call them. It relates to two issues, which are separate and can be dealt with separately if the Government so wish, although they need to take both of them on board.

The first relates to the expertise of the members of the governing body, on nuclear safety and nuclear operations in particular. That point has been raised with us by the potential operating companies of nuclear installations. The second relates to expertise in the area of worker representation and attempts to carry over the provision that has always been there under the Health and Safety Executive and the shadow ONR.

The only reference to expertise in this section of Schedule 7 is to a non-executive member who has expertise in,

“matters relevant to the ONR’s nuclear security purposes”.

That is important; some would argue that it is very important. We know that it is different, and has different connotations, from somebody having expertise in the area of nuclear safety and operating systems for nuclear safety. We would be looking out for somebody who has industrial expertise in managing such systems and who was not a member of the ONR staff. That is, the post could not be filled by appointing the chief inspector, who would be, in any case, a member of the governing body. If I were to second-guess—although “second-guess” is probably the wrong expression—we would be looking

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for somebody who can bring expertise to bear from a different perspective from that of somebody directly employed by the ONR.

The Government must have received representations—if I can put this in a subtle way—from those who very soon might be operating such a system. They want to see that those overseeing the ONR have expertise in the operation of the safety system and the general management of such sites, or at least that one of them does so.

Secondly, we have seen that the ONR is, essentially, a spin-off from the Health and Safety Executive. Since 1974, the Health and Safety Executive has operated on a tripartite basis. That has been reflected in its superstructure and, in a slightly informal way, in the oversight structure of the shadow ONR that operates under the HSE’s purposes. It has helped the engagement and co-operation of the workforce and has ensured that the worker side of operating complex plants and sites is fully taken into account. It is my contention that that needs to be reflected explicitly in the new structure. If it is not, a valuable part of the whole HSE experience will be lost; and it is unnecessary to lose it in a structure in which the ONR is responsible not only for nuclear safety but for health and safety generally on nuclear sites. It is important that we retain that structure and oversight.

7.15 pm

It is not just a question of not wanting to rock the boat. Worker engagement on nuclear sites is a particularly important issue. A complicated site such as Sellafield, which has huge potential hazards and where the workforce itself has huge expertise, will have to undergo a number of very difficult changes in the way in which it is operated. The co-operation and expertise of the workforce is vital; that needs to be reflected at the highest levels of the ONR. To provide confidence in the system among the several thousand people who work at Sellafield and the few hundred who work on nuclear sites elsewhere, we ought to retain the essentials of the HSE structure and the provisions of the 1974 Act.

There are two deficiencies, therefore, in the governance structure of the ONR. The first relates to expertise; the second relates to the way in which the workers themselves, or, at least, knowledge of their views, can be represented at the highest level. Unless we address both of those, the management structure underneath may not regard them as a priority to the degree that is essential if we are to make nuclear sites operate both effectively and at the highest levels of safety. I hope that the Government can take up one or both points—even if that is in a way different from the phrasing here—and will at least accept, on both fronts, the principle in these amendments. I beg to move.

Lord Jenkin of Roding: My Lords, the noble Lord’s amendments go too far. We are talking about only five non-executive members who are going to be appointed by the Secretary of State. One must have regard to the main purpose of non-executive directors of a board, which is, broadly, to hold the executive to account. I have been a chairman of a board, although only part-time, in a totally different environment, and found the non-executive members of that board extremely

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useful. They assisted me in holding the executive members of the board to account—not because of their expertise in a particular area in which an executive director would be operating, but because they had wider experience and could look at the activity of the executive in a wider context.

That is obvious in the provision in the Bill for at least one non-executive member to have responsibility for the security aspects of the ONR’s job. I do not know whether this is the Government’s intention but it seems to me that what is wanted is not somebody who is expert in nuclear security, but who has wider experience of the whole of the national security position and can bring that background knowledge and perspective to the particular issues that arise in the nuclear field.

If that is right, it is entirely understandable that the Government should want to see that in the schedule. On the question of safety, however, I do not understand what, exactly, a non-executive member’s role would be. This is essentially a management matter. A non-executive director would want to be sure that the right procedures were being followed, particularly when it is a question of appointing someone who will have some executive responsibility in this. You want somebody with the experience of being able to do it, but to have a specific safety non-executive person would be very difficult. I am not sure where it leaves the professional management. Is it constantly being second-guessed? That is not what you want from a non-executive board. It should not second-guess the management but satisfy itself that the management is approaching the problem in the right way and has made sensible decisions.

To some extent, that is equally true of labour, staff relations and so forth. I would not expect a non-executive director who had come straight from a human resources job to say, “I’m going to tell the human resources director exactly how to do his job”. That is not the way in which non-executive members of the board should be expected to operate.

The amendments mistake the purpose of having non-executive directors. The Bill has the right approach because having someone with a wider experience of national security could be extremely useful, and nuclear security could be looked at in that context. However, I would not want to take it further and I would be very much opposed to the amendments proposed by the noble Lord.

Lord Judd: My Lords, with great respect, I do not follow the arguments of the noble Lord, Lord Jenkin. We are not talking about a chocolate factory or even a motorcar manufacturer: we are talking about highly sophisticated, advanced, cutting-edge science. It has the potential to adversely affect staff and the wider public acutely. It is not either/or; it is a matter of having people with wider experience. The noble Lord is right: that is the purpose of a non-executive director. However, there must be people on the board who know what they are talking about, if they talk about it, when we come to the specific issues of this special, advanced and potentially very dangerous new form of energy generation.

This is not, incidentally, just limited to the nuclear sphere. I remember very vividly many hours toiling home to the north-west finding myself isolated on

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Preston station in the small hours. Railtrack had built up a great record of property development and all the rest, but it was suddenly realised after Hatfield that it had neglected the very special knowledge about how to run the railways and what that is about. It is not just any industry: it is about having the knowledge and background to ask whether management is taking this or that into account. It is not an either/or.

In the case of the railways, with that awful Hatfield incident, we had reached a stage where virtually nobody knew where the danger spots were on the track across the country. If we take those experiences seriously, it is a matter of getting the right combination of knowledge and expertise. I realise that when you use the word “expertise” you are beginning to go down a questionable road, but there has to be enough real knowledge of the special tasks and hazards, together with the wider experience to which the noble Lord rightly referred.

Lord Stoddart of Swindon (Ind Lab): My Lords, I support the amendment, especially subsection (3)(b) dealing with,

“representation of employees in health and safety”.

That is so important. I worked at a power station myself. It was not a nuclear power station, but it was a power station. I was also secretary of the local advisory committee. I therefore have some experience of how essential it is that working people are taken into account regarding management of a plant.

Those advisory committees, incidentally, both at national and local level, were set up under the electricity and gas Acts of, I think, 1949 and 1950. There was a statutory duty to provide opportunities for employees to be consulted, at least, not only on matters of health and safety but on the broader workings of power stations and other installations. Indeed, it is necessary for employees to have those powers because it is helpful to management to ensure that working at ground level is safe. Managers cannot know everything that goes on, but most of the employees do. I support the amendment simply and solely because the question of employee consultation should appear somewhere in the Bill.

Baroness Verma: My Lords, I thank the noble Lord, Lord Whitty, for this amendment to Part 3 of the Bill, and my noble friend Lord Jenkin for his sensible and measured intervention. Noble Lords will recall that we debated the matter of the make-up of the ONR board in Committee. Amendment 78A would introduce a requirement for the ONR board to have at least one member with experience of, or expertise in, nuclear safety management and one member with experience of, or expertise in, employee health and safety representation.

As currently drafted, the legislation allows the Secretary of State to appoint non-executives with skills and experience that best meet the needs of the ONR. This may include experience or expertise in nuclear safety, which I think is what the phrase “nuclear safety management” means, although this is already provided by the chief nuclear inspector, who is an executive member of the board. This experience or expertise may include that of employee health and safety representation. However, that should be a matter for

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the Secretary of State to determine over time and, while the matters identified in the amendment are no doubt of great importance, it should be left to the Secretary of State to determine whether that experience would benefit the ONR.

The ONR also requires flexibility to change its skills-mix over time as it develops as an organisation and as the industry it regulates changes. The amendment significantly restricts the flexibility available to the Secretary of State in setting those appointments to only two non-executives. It would be unwise to restrict the ONR’s flexibility in this way. However, the legislation does make provision for a non-executive with security expertise. This role is required to ensure that the ONR’s security interests are carried out in the context of wider national security policies. It is required to prevent nuclear security matters being developed in isolation from the wider, national security agenda. The current security non-executive, for instance, does not have specific nuclear security experience.

Turning to employee representation on the board, as I have explained, the intention is to have a skills-based board, not one made up of representatives. Therefore, just as it would be inappropriate for the board to include a representative of the nuclear industry, it is also inappropriate to mandate a representative of workers.

It is important to remind noble Lords that the Health and Safety Executive, which will retain overall policy responsibility for wider health and safety in Great Britain, including health and safety on nuclear sites, will have a trades union representative on its board. Thus the interests of employees will continue to be represented in the ONR’s wider work on health and safety on nuclear sites. In addition to this, Schedule 7 makes provision for the Health and Safety Executive to appoint one of its members to the ONR board, should it wish to do so, and for the arrangement to be reciprocal. This will also provide for employee interests to be represented on the ONR board. I hope that noble Lords find my explanation reassuring and I hope the noble Lord will withdraw his amendment.

7.30 pm

Lord Whitty: My Lords, on this occasion I cannot say that I am happy with the Minister’s response. The nature of the board, together with the expertise of the personnel of the ONR, will determine the degree of confidence there is in the ONR. On the issue not of worker representation in the sense of somebody who represents the workers of the nuclear industry on the board but of someone who has knowledge of working concerns, which in HSE terms has normally been a trade union representative, the fact is that the Government are taking out of the HSE an important, high-profile and, in industrial relations and personnel terms, quite a delicate part of its responsibilities. They are abandoning what was the great strength of the HSE, that at the highest level it had tripartite representation which had the confidence of all sides of industry and the Government. Most of the other provisions of these clauses of the Bill reflect procedures and responsibilities which have been directly or indirectly under the aegis of the HSE. It is odd that the one thing removed is the HSE’s governance, which has proved its worth for over 40 years. That is a serious mistake.

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Expertise in nuclear safety management affects the confidence that the management of the industry has in the ONR. One hopes management will have confidence in the inspectorate and the chief inspector, but it has been put to me and I expect it has been put to the Government that the operators of nuclear installations want to think that there is somebody who knows their side of the story in the governance structure. They are worried that that is not prescribed in the Bill. The Minister says the Secretary of State will make a judgment and it is quite possible that he will appoint people with these qualifications or background, but the Government do not want to stipulate that in the Bill. However, sometimes it is the Bill which gives the confidence and the particular appointments are what give confidence. At the moment we are potentially reducing the confidence that workers in the nuclear industry might have in the governance and therefore the direction of the ONR—unnecessarily threatening it, because the rest of the provisions, I think, look after their interests well. We are also threatening the confidence of management of nuclear sites in the overall governance of the ONR.

These may not be big issues in practice but in certain circumstances they could become big issues. It is therefore important that the Government take on board the argument so that, if we cannot stipulate it in the Bill, the Secretary of State will have regard to these two dimensions to make sure that the ONR operates not only in the best traditions of the HSE but in a way that inspires confidence in the industry and the workforce. I fear that, by not accepting this amendment, the Minister may be jeopardising both. It would not be a big thing for either proposal to be included, maybe not in the terms that I have them here but in terms of how the Secretary of State should look at appointments to the governing body.

I am disappointed. I thank my noble friend Lord Stoddart—who I think I can call my noble friend on this occasion—and my noble friend Lord Judd for their support for my position. I regret that the Minister has not been positive. I am slightly surprised that the noble Lord, Lord Jenkin, was not more supportive at least on the first of the propositions, but I understand his position. However I do not fully understand the Government’s position and I hope that they will think again. For the moment, I beg leave to withdraw the amendment.

Amendment 78A withdrawn.

Amendment 78B not moved.

Clause 71: Codes of practice

Amendments 79 to 81

Moved by Baroness Verma

79: Clause 71, page 64, line 20, leave out “with the consent of the Secretary of State” and insert “in accordance with section (Procedure for issue, revision or withdrawal of codes of practice)—

(a) ”

80: Clause 71, page 64, line 23, leave out from beginning to “revise” and insert—

“(b) ”

81: Clause 71, page 64, line 25, leave out subsections (3) to (5)

4 Nov 2013 : Column 76

Amendments 79 to 81 agreed.

Amendment 82

Moved by Baroness Verma

82: After Clause 71, insert the following new Clause—

“Procedure for issue, revision or withdrawal of codes of practice

(1) The ONR may—

(a) issue or revise a code of practice under section 71 only in accordance with subsection (8);

(b) withdraw a code of practice under that section only in accordance with subsection (11).

(2) Before issuing, or revising or withdrawing, a code of practice, the ONR must submit a proposal to the Secretary of State.

(3) Before submitting a proposal to the Secretary of State the ONR must consult—

(a) any government department or other person that the Secretary of State has directed the ONR to consult, and

(b) any other government department or other person that the ONR considers it appropriate to consult,

about the proposal.

(4) A direction under subsection (3)(a) may be general or may relate to a particular code, or codes of a particular kind.

(5) A proposal for issuing or revising a code of practice must include a draft code of practice or, as the case may be, proposed revisions of a code of practice.

(6) Where the ONR submits a proposal for issuing or revising a code of practice to the Secretary of State, the Secretary of State may approve the draft code of practice, or proposed revisions, as the case may be—

(a) without modification, or

(b) with the consent of the ONR, with modifications.

(7) If the Secretary of State approves the draft code or proposed revisions, the Secretary of State must lay before Parliament the draft code or proposed revisions in the form approved.

(8) Where—

(a) the Secretary of State has laid a draft code or proposed revisions of a code before Parliament, and

(b) no negative resolution is made within the 40-day period,

the ONR may issue the code in the form of the draft laid before Parliament or, as the case may be, make the proposed revisions in the form so laid.

(9) For the purpose of subsection (8)—

(a) a “negative resolution”, in relation to a draft code or proposed revisions, means a resolution of either House of Parliament not to approve the draft code or proposed revisions;

(b) the “40-day period”, in relation to a draft of a code or proposed revisions, means the period of 40 days beginning with the day on which the draft is laid before Parliament (or, if it is not laid before each House of Parliament on the same day, the later of the 2 days on which it is laid).

(10) For the purposes of calculating the 40-day period, no account is to be taken of any period during which—

(a) Parliament is dissolved or prorogued, or

(b) both Houses are adjourned for more than 4 days.

(11) Where—

(a) the ONR submits to the Secretary of State a proposal for the withdrawal of a code of practice, and

(b) the Secretary of State approves the proposal,

it may withdraw the code.

(12) The ONR must—

(a) publish any code of practice issued under section 71;

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(b) when it revises such a code, publish—

(i) a notice to that effect, and

(ii) a copy of the revised code;

(c) when it withdraws such a code, publish a notice to that effect.”

Amendment 82 agreed.

Schedule 9: Disclosure of information

Amendment 83

Moved by Baroness Verma

83: Schedule 9, page 157, line 9, leave out “or an” and insert “, an inspector or a health and safety”

Amendment 83 agreed.

Schedule 10: Provisions relating to offences

Amendment 84

Moved by Baroness Verma

84: Schedule 10, page 164, line 27, leave out “or under”

Amendment 84 agreed.

Clause 104: Subordinate legislation under Part 3

Amendments 85 to 87

Moved by Baroness Verma

85: Clause 104, page 83, line 39, after “containing” insert “(whether alone or with other provision)”

86: Clause 104, page 83, line 40, leave out from “regulations” to “or” in line 42 and insert “which fall within subsection (2A)”

87: Clause 104, page 83, line 45, at end insert—

“(2A) Nuclear regulations fall within this subsection if—

(a) they are the first nuclear regulations to be made,

(b) they include provision amending or repealing any provision of—

(i) the Nuclear Installations Act 1965, or

(ii) the Nuclear Safeguards Act 2000, or

(c) they include provision creating a new offence by virtue of section 67;

and for this purpose nuclear regulations which revoke and re-enact an offence are not to be regarded as creating a new offence.”

Amendments 85 to 87 agreed.

Clause 105: Transitional provision etc

Amendments 88 to 90

Moved by Baroness Verma

88: Clause 105, page 84, line 30, after “as” insert “—

(i) ”

89: Clause 105, page 84, line 32, at end insert—

“(ii) regulations under section 76, or

(iii) regulations under section 92.”

90: Clause 105, page 84, line 43, leave out “section 15 of the 1974” and insert “section 14 of the 1974 Act (power to direct investigations and inquiries);

(ba) section 15 of that”

Amendments 88 to 90 agreed.

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Schedule 11: Transfers to the Office for Nuclear Regulation

Amendment 91

Moved by Baroness Verma

91: Schedule 11, page 172, line 9, after “A” insert “property transfer”

Amendment 91 agreed.

Schedule 12: Minor and consequential amendments relating to Part 3

Amendment 92

Moved by Baroness Verma

92: Schedule 12, page 177, line 47, at end insert—

“(1) Section 82 (general provisions as to interpretation and regulations) is amended as follows.

(2) In subsection (3)(b), after “subsection” insert “(3A) or”.

(3) After subsection (3) insert—

“(3A) In the case of a statutory instrument which also contains regulations under section 66 of the Energy Act 2013 (nuclear regulations), subsection (3) is subject to section 104 of that Act (subordinate legislation).””

Amendment 92 agreed.

Consideration on Report adjourned.

EU: Eurojust (EUC Report)

Motion to Agree

7.38 pm

Moved by Baroness Corston

That this House agrees to the recommendation of the European Union Committee that Her Majesty’s Government should exercise their right, in accordance with the Protocol on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, to take part in the adoption and application of the Proposal for a Regulation on the European Union Agency for Criminal Justice Cooperation (Eurojust) (document 12566/13) (4th Report, HL Paper 66).

Baroness Corston (Lab): My Lords, I move the Motion in my capacity as chair of the European Union Committee’s Sub-Committee E on Justice, Institutions and Consumer Protection, which prepared the report now before the House for endorsement. The Motion invites the House to agree with the committee’s recommendation that the Government should opt in to the negotiation of the proposed regulation reforming the European Union Agency for Criminal Justice Co-operation—the agency which is more commonly known as Eurojust. The proposal falls within the area of justice and home affairs which will apply to the United Kingdom only if the Government exercise their right under EU treaties to participate in its negotiation, adoption and implementation or, in other words, to opt in to this. The Government have to do this within three months of the proposal being presented to the Council, which in this case means before 21 November.

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On the same day in July as the Commission brought forward the Eurojust regulation, it also published an accompanying proposal creating the European Public Prosecutor’s Office, the EPPO. The Government have already made clear in the coalition agreement their intention not to participate in the proposed EPPO and on Monday last week this House approved a reasoned opinion challenging the EPPO on subsidiarity grounds. The reasoned opinion was also prepared by the EU sub-committee that I chair.

Unfortunately, as the proposed Eurojust regulation was published just before the House rose for the Summer Recess, it was not possible to publish this report and schedule a debate in the House within the usual eight-week window that would have been afforded to the committee. However, there is fortunately sufficient time for a report from the EU sub-committee considering the opt-in and for this debate to be held in the House today before the Government’s deadline to decide expires.

The Government have already given a clue as to their intentions regarding the opt-in, in a letter dated 21 October from the Security Minister, James Brokenshire MP, a copy of which appears in the appendix to the report. In it, he says that:

“Pending the views of Parliament”,

the Government will not be opting in to the negotiations for the proposed regulation. For reasons that I will turn to in a moment, the Government have concluded that the regulation,

“would have significant implications for the UK’s systems of law”.

The letter also makes clear the Government’s intention to revisit their decision once an agreed text emerges from the negotiations.

I fear that this decision by the Government not to opt in to these negotiations from the outset could be construed by our fellow member states in the EU as representing a lack of commitment by the UK to a very important crime-fighting agency. The UK is one of the agency’s main users and, after the terrorist attacks in the US in September 2001, has played a key role in the agency. For example, for seven years of its 11-year history, the elected president of Eurojust has been the UK member. I note that the Minister says that the Government’s decision not to opt in has been taken pending Parliament’s view, but it seems that their intention is clear: the UK will not be opting in. In this context, it is difficult to foresee the position of president of Eurojust being bestowed on the current UK member. Although the committee acknowledges the validity of the Government’s concerns for the UK’s criminal justice system, the Government must also accept that the simple example of the Eurojust presidency illustrates that there is a price to be paid, perhaps in relation to our influence, when the UK chooses not to opt in to EU legislation.

Essentially, the regulation retains Eurojust’s core functions but includes new provisions reforming the agency’s governance and management structure. Notably, this includes Eurojust’s interaction with the proposed EPPO, the UK’s participation with which has been ruled out by the coalition agreement. The proposed regulation also includes provisions augmenting the

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existing powers of Eurojust’s members and new arrangements governing Eurojust’s accountability to the European Parliament and to national parliaments.

The Government have some concerns. In their Explanatory Memorandum, the Government praised the current legislation governing Eurojust and, in the context of the Government’s 2014 block opt-out decision—into which my committee has undertaken two recent inquiries, along with Sub-Committee F, chaired by the noble Lord, Lord Hannay of Chiswick—communicated their intention to opt back in to the current legislation. On the other hand, the Government also raised a number of concerns with the proposed regulation on Eurojust, including its potential ramifications for fundamental rights. However, in light of the Minister’s letter of 21 October, it now appears that there are two key concerns which have convinced the Government that it is not in the UK’s interests to opt in to this proposal. Both concerns are discussed in our report.

The first of those concerns relates to the aspects of the proposal which change Eurojust’s governance and management structure, including in respect of Eurojust’s interaction with the proposed EPPO. Once the Commission followed the treaty requirement that the EPPO be created out of Eurojust, it was inevitable, given the Government’s clear policy of non-participation, that this issue was always going to be difficult for the Government. However, the report argues that the issue is not enough to rule out the Government’s participation in the negotiations about the Eurojust regulation. Indeed, the committee believes it strengthens the arguments in favour of opting in.

The second of the Government’s key concerns relates to the requirement in the proposed regulation that the powers conferred on members of Eurojust by their member states are mandatory rather than discretionary, as is the case under the current legislation. The Minister says in his letter that mandatory powers of the type envisaged by the proposal,

“would cut across the separation of powers between police and prosecutors in England, Wales and Northern Ireland”.

The Minister also warns of the potential ramifications of mandatory powers for the role of the Lord Advocate in Scotland. I note the Government’s concern in this regard and take the opportunity to ask the Minister about the extent of the Government’s consultation with the devolved Administrations before deciding whether or not to opt in to this proposal, particularly in light of the clear evidence given to my committee by the Lord Advocate during the recent Protocol 36 inquiry of the benefits of Eurojust to the Scottish Government and his concern that the UK should not leave the agency. That may well be a message for both Front Benches.

The report itself suggests that the Government opt in to the Eurojust regulation, drawing on much of the evidence given to the two recent inquires on Protocol 36 and Sub-Committee E’s own recent inquiry focusing on fraud in the EU’s budget. The overwhelming weight of the evidence taken during these inquiries, which is reproduced in the report, highlights the importance of Eurojust’s work to member states. The report argues that the Government’s participation in these negotiations is all the more important given, first, the provisions in this proposal introducing significant interweaving of

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Eurojust with the proposed EPPO and, secondly, the Government’s clear stance of non-participation with the EPPO. It is my committee’s view that the UK Government will not be alone in their opposition to the EPPO—indeed the treaty anticipates this eventuality by including specific enhanced co-operation provisions for agreement. Furthermore, last week saw sufficient reasoned opinions issued by national parliaments, including one from this House and one from the other place, to force the Commission to review the proposed EPPO.

Our report therefore suggests that the UK ought to be a full participant at the table for the important discussions addressing the position of those states that wish to work together in Eurojust but do not want to participate in the proposed EPPO. These negotiations will shape Eurojust’s future and, although the committee acknowledges the validity of the Government’s concerns, the committee would not want to see the Government pursue a course of action which would diminish our influence on these important negotiations.

Finally, although the Government have decided, under the Protocol 36 decision, to opt back into the current legislation governing Eurojust, my committee cannot foresee a situation whereby the UK would be allowed to remain a full participating member of Eurojust under legislation superseded by this proposal. In this context, we fear that there is a clear danger that in deciding to opt out of these negotiations the Government could be taking the first step on the road to the UK’s non-participation in Eurojust, which we would all come to regret. My committee would strongly caution against such a course of action.

7.49 pm

Lord Hodgson of Astley Abbotts (Con): My Lords, I am a member of Sub-Committee E and support the proposal ably moved by our chairman, the noble Baroness, Lady Corston. We return tonight to the issue of European co-operation in judicial and criminal investigative matters. The topic is of course a veritable Rubik’s cube of interwoven advantages and disadvantages, and trying to establish the pattern that will best suit this country is very difficult, especially for a non-lawyer such as myself.

As the noble Baroness has pointed out, the pattern of the Rubik’s cube has changed in the past week with the decision of this House and the other place to issue a reasoned opinion on the grounds of subsidiarity against participation in the European Public Prosecutor’s Office. I spoke in the debate in favour of that decision on theoretical, legal and operational grounds. We heard in that debate from the noble Lord, Lord Rowlands, who introduced the subject, of growing concern among other states about the proposal. As I understand it, from what the noble Baroness has said and from what the noble Lord, Lord Rowlands, told us in our committee meeting earlier this week, since then concerns have been found to be even more widespread and substantial than was originally thought—indeed, so substantial that it appears that the EPPO proposal in its present form is now effectively dead in the water. The Minister might like to confirm whether this is the case and the Government so assess it when he comes to wind up.

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If so, this removes one of the Government’s major objections to the Eurojust proposal—that it implicitly provides a stalking horse for the development of the EPPO, the interweaving of the organisation which we describe in paragraph 40 of our report. We say:

“As we have noted, the proposed Eurojust Regulation includes significant provisions which interweave the two institutions both corporately and operationally. Viewed in the context of the Government's policy of non-participation, this might point towards the UK electing not to participate in the negotiation of the Eurojust Regulation”

The next question really is whether the Government have some other principled objection to Eurojust in any form. It would appear that they cannot and do not. First, because this country has been part of the Eurojust set up ab initio, as the noble Baroness pointed out, and secondly, because although the Eurojust regulations fell within the subjects covered by the opt-out afforded to us by the treaty of Lisbon, having exercised that opt-out, the Government have already announced that they propose to opt back in to those parts that cover Eurojust.

As to the operational need for a co-ordinating mechanism such as Eurojust, one only has to reflect on the increasingly global nature of crime and, in particular, what one might call the new crimes such as cybercrime which flit from country to country, indeed from continent to continent, and require a very highly co-ordinated international response.

I have had the honour to serve on one or more of the EU Sub-Committees of your Lordships’ House for several years. An abiding feature of inquiries focused on activities to combat EU cross-border crime has been the value ascribed to what they call joint investigation teams or JITs which are, of course, established under and by Eurojust. It would be a shame for this country not to be in a position to aid their further development by not participating in the negotiations on these future regulations.

That leaves two final issues which could underpin the Government’s apparent plan not to opt in to this proposal. First, there is the proposed change to the structure and governance of Eurojust. I find it hard to believe that this country should not opt in to a body on the sole grounds that an executive board should replace a management board with a director. It seems to me to be arguing about a distinction without a difference. Secondly, there is the different nature of our legal system compared with those of most of our fellow EU members—in short, the adversarial as opposed to the investigative approach. I recognise this challenge and I see why the Government have drawn our attention to it in their explanatory memorandum. However, since the UK has been involved in Eurojust for some 10 or so years, these do not appear to have been insuperable problems in the past and I see no reason why they should be so in the future.

I am forced to conclude that Eurojust is an organisation which has proved its value in the past, evidenced by the Government’s decision to opt in again to the existing regulations. The major threat implicit in the regulation we are discussing tonight was the introduction of the EPPO, but that is not now going to happen. In my view the Government ought to take advantage of this changed mood among our fellow EU members to opt in and to ensure that this regulation is fashioned to

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the advantage of this country. Otherwise, having avoided participating in the negotiations, we may find ourselves having to accept a directive that has not been fashioned in the manner most advantageous to this country. It is also hard to understand how we are going to be able to opt in to old Eurojust—that is, the existing regulations—and not participate in the new Eurojust that will result from the proposals now under consideration.

When John Maynard Keynes was once asked about why he changed his mind, he famously said when circumstances change I change my mind, what do you do? Circumstances here have changed dramatically with the EPPO and since the Government reached their preliminary conclusion, I hope that my noble friend will persuade Mr James Brokenshire that this was a mistaken approach and we ought now to participate and ensure that these regulations are taken forward to the best advantage of this country.

7.55 pm

Baroness O'Loan (CB): My Lords, I support the noble Baroness, Lady Corston. I have the privilege to serve on the European Union Sub-Committee on Justice, Institutions and Consumer Protection, which is chaired excellently by the noble Baroness.

The Government have made it quite clear that the current legislation on Eurojust represents a,

“positive model of cross-border co-operation”.

The Government have stated that it is their intention to seek to opt back in to the existing legislation on Eurojust following the decision to exercise the 2014 opt-out of 130 EU police and criminal justice measures adopted before the treaty of Lisbon entered into force in 2009.

When the sub-committees were considering the general issue of the opt-out, Eurojust was one of the measures on which there was a high level of consensus in favour. Eurojust provides judicial co-ordination meetings, judicial co-operation agreements with third countries, office facilities, the facilitation of mutual legal assistance agreements, the acceleration and execution of European arrest warrants and the funding of joint investigation teams with the accompanying translation costs. As the Government have recognised, all of these are of considerable value to the United Kingdom. In these circumstances it is very clear why the Government wish to opt back in to the existing arrangements.

The DPP, in evidence, to the committee said that Eurojust costs the UK just £360,000 per annum and costs would be much greater were these arrangements to be the subject of individual bilateral liaison between magistrates in each country. Those of us who were involved in the process of criminal investigation prior to 2002 are aware of how very much longer all these things took prior to the establishment of Eurojust. We know that sometimes things took so long and became so complex that criminals were able to avoid justice. We must also bear it in mind that even if criminals are ultimately apprehended, the ancient maxim that justice delayed is justice denied still applies.

The committee in its 23rd report of the 2003-04 Session, stated that Eurojust was,

“a model of how to make progress in an area where the differences between national jurisdictions are so great that it would be

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unrealistic to aim for harmonisation. It is also an example of the sort of effective practical co-operation that an EU agency can provide”.

The Government’s concerns have been articulated very clearly by the noble Baroness, Lady Corston. They are threefold: ramifications for fundamental rights; concerns in relation to the governance and management structures of Eurojust; and the nature of the extended powers to be given to national members. The decision is imminent and the sub-committee to which I belong has recommended that we should opt in. The real problem with Eurojust is well recognised. It is the extent to which the new proposal interacts the European Public Prosecutors Office proposal with Eurojust. I understand the reservations in relation to the EPPO. They are shared by a significant number of other states. As we say in our report, the UK will not be alone in opposing the EPPO.

The UK needs to be at the table to participate in these fundamentally important negotiations in the Council. We need to ensure that our voice is heard in these debates, particularly in support of those other members who wish to support less radical change to Eurojust, as the UK does. These will be complex and important arrangements. Ultimately it is likely that the current Eurojust arrangements will change. If we are not part of the negotiations, we will not be able to influence the outcome as effectively as if we were at the table. It is not impossible, as we say in the report, that if the UK fails to take its place at these negotiations, they will proceed. Eurojust will change, and the UK will find itself unable to opt back in to the existing arrangements, leaving us at a significant disadvantage in the fight against crime. The existing Eurojust will disappear, and we will not have brought to bear our very considerable influence on the creation of the new Eurojust. This can only leave the UK at a disadvantage.

As we contemplate the fight against crime and terrorism across borders, we have good cause to ensure that co-operative arrangements are as comprehensive as possible, while still retaining and maintaining our national independence. In Ireland last night, a massive bomb was intercepted by the Irish police. It was destined for the north. It would have caused carnage. We have increasing levels of evidence of more militant views in many communities, with the creation of many murals glorifying what they called the armed struggle. We have to consider the concerns we know exist in Northern Ireland about the possible effects of the current opt-out proposals on the protection of security in these islands. We have also to consider the ramifications of the interdependence between organised crime and terrorism in the context of this proposal. For example, we have two individuals who are subject to TPIMs currently on the run. They are subject to TPIMs because they were regarded by a judge as a threat to national security.

We cannot revert to the times when we were dependent on bilateral arrangements and individual processes took months, if not years. If we opt out of Eurojust under the protocol 36 arrangements and find ourselves unable to opt back in because things have moved on, that may well threaten the coherence of the whole package which the United Kingdom will present to

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the Commission when it seeks to opt back in to the various measures. European arrest warrants, the other 34 measures and, indeed, the other measures which have been recommended for inclusion in the package are interdependent. The Government stated in their response to the 13th report:

“Europol currently provides support in over 280 operations involving UK law enforcement”.

If we opt in, we can negotiate so as to secure the removal of the powers to direct national law enforcement agencies to initiate investigations or share data. We can influence other states to achieve an outcome acceptable to the UK. We will definitely do so more effectively if we are sitting at the table than if we are on the sidelines watching, seeking ultimately to rejoin a Eurojust on terms for which we have not argued and which ultimately we may even be unable to accept.

We put our whole protocol 36 situation at risk if we do not opt in. Eurojust represents great value to us. We must ensure that we have a voice in the ongoing debates, and I ask the Minister to consider again the decision the Government have made.

Lord Rowlands (Lab): My Lords, if only I could improve upon the powerful and compelling case that the noble Baronesses, Lady O’Loan and Lady Corston, and the noble Lord, Lord Hodgson, have made on our committee’s report. This time last week, we had a consensus on our report on the EPPO. As I understand it, we have a consensus of a rather different kind tonight: a consensus of two Front Benches opposing our report. I find that all the more puzzling given the events of the past week or two.

As the noble Lord, Lord Hodgson, said, since we wrote this report, the context has changed. We have seen a very significant and “important”—in inverted commas—rebellion across a number of European Parliaments to the draft proposal on the EPPO. It was our case that if the Government joined in the debate and discussion on Eurojust, they would find enough allies to change and alter that report effectively. Surely the evidence of the past week or two has been that there are such allies and that if one engaged in an active and proactive way on this measure, one would find enough allies to change or transform the report itself. Our case has been strengthened by the events of the past week or two, and therefore I am puzzled if both Front Benches for some reason oppose the conclusions of our report.

We all accept the value of Eurojust. The Government accept the value of Eurojust. They want to opt back in to Eurojust under the opt-in proposals. We all support that opt-in to the system. I certainly share the Government’s concerns about the existing draft proposal. Almost all those concerns are about the interrelationship between it and the proposed draft for the EPPO. If those fall—if, in fact, the Commission is going to have to withdraw or revise its proposal—surely there will be a consequential fallout in the draft Eurojust proposal. Will the Minister bring us up to date on what has happened since last Monday, when there were enough reasoned opinions across Europe to mean that the Commission will have to review it? What has the Commission intimated? It has suggested that it is going to do so, and it accepts and understands the voices of concern. If it does that, does

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it not also have to review and almost withdraw this proposal because they are totally interlinked? A portion of the Eurojust draft is related to the proposed public prosecutor’s office. Will the Minister tell us whether, if the Commission has to review the EPPO, it will also probably have to undertake some kind of review of this draft?

In this case, we have a compelling case for joining in the negotiation because we now have a good clear view that we could affect those negotiations in a very positive way. As other members of the committee have said, one of the things that swung me in favour of our report—and I was sceptical at the beginning because I understood and appreciated the Government’s concerns—was that we could influence this because we sensed there would be a lot of other supporters. The other reason why I supported it was that I looked down the road and thought that a bizarre situation could happen in which the Government opt in to the existing measure and then find that this measure has been revised and it belongs to an existing measure which down the road may well be of a different kind, and they have opted out of that. I think that would cause a very puzzling and bizarre situation in the relationship between the United Kingdom and the Eurojust system.

There is one thing on which we surely have consensus: we are in favour of Eurojust and we are in favour of the United Kingdom’s participation in it. Therefore, I beg the Minister to tell us what has happened since last Monday and whether the impact of what happened in the past week or two means that the Government should rethink their position on this issue and should at least keep an open mind on the question of opting in, negotiating and influencing what I think is a very important organisation.

Lord Elystan-Morgan (CB): My Lords, the matter before the House concerns only Eurojust, but it is clear that Eurojust and the EPPO have a very close nexus one to another. There are two ways of looking at that nexus: one is positive and the other is negative. It seems to me that the Government, and the Opposition for that matter—one is in the luxurious position on the Cross Benches of being able to say, “A mild plague on both your houses”—are approaching the matter from an utterly negative point of view. The Government have asked the question: is Eurojust in any way tainted by association with the EPPO? They answered yes; ergo, it must be rejected.

I argue that there is a forceful and utterly convincing case to the contrary. I am proud to say that I, too, am a member of Sub-Committee E. We have heard a great deal of evidence over the months with regard to European fraud. The official figure for fraud was €440 million or something of that nature. I do not think that anybody applied their minds to it properly, as the evidence was very different, appearing to range somewhere between €3 billion and €5 billion, possibly even in excess of that latter figure. Nobody was charged with overarching responsibility. That is where the case for the EPPO comes in. There is a saying in Welsh: “Everybody’s concern is nobody’s responsibility”. That is the situation here. Unless there is a body that is charged with the particular commission of looking at

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European fraud in a serious way, as has never happened before, I think that the whole system will be jeopardised to its very roots.

If one accepts that there should be an EPPO—and the noble Lord, Lord Hodgson, has pointed out that the objections are sere thin, casuistic and have no merit whatever—it seems to be the case that the Eurojust situation very much fits into that picture. It seems to me that the whole situation is tainted by the prejudices that have become so prevalent in the last few months in relation to Third Pillar matters. We have heard abundant evidence to show that it does not matter a row of beans what we do about 90 to 95 of those 130 measures, as most of them have virtually no effect upon our situation. One or two are of peripheral significance. Yet somehow or other the Government have managed to taint the whole situation by pretending that this is a massive battle for British sovereignty. In doing so, they are jeopardising something like 30 to 35 matters that are of crucial significance in so many different fields, and doing so cynically in order to pretend that we are somehow winning a great victory in relation to the 95 matters that never mattered at all.

I therefore very respectfully ask the Minister, whom I believe to be one of the most reasonable Ministers in government, to consider yet again whether he may be wrong in this particular matter.

Lord Hope of Craighead (CB): My Lords, perhaps it is appropriate that someone who was not a member of this sub-committee should say a word or two about this issue. I come to this against the background of having been chairman of Sub-Committee E more than a decade ago, when Eurojust was just appearing on the horizon.

It is fair to say that initially there was a certain amount of suspicion as to whether it would be right for the United Kingdom to have any part to play at all, for reasons that are easy to understand: we have our own system for the administration of justice, our own prosecutors and prosecution system, which is so very different from that in the countries on the continent. However, I have kept an eye on this from a distance, and everything that has happened since then has supported the points that have just been made: Eurojust is beneficial and indeed essential to the battle against cross-border crime that we all must face up to. The only way to deal effectively with cross-border crime is cross-border co-ordination. The report says that pan-European co-ordination is required. Indeed, it is global co-ordination that is required.

From my position, based in Scotland, I would attach considerable importance to the evidence that was given by the Lord Advocate. I know that the Lord Advocate and his team have been closely involved in matters that lie at the heart of the Eurojust project. I will not mention names, but various issues have arisen where they have been hands-on in dealing with cross-border matters and the co-operation that is available through Eurojust has been absolutely crucial to the way in which they have been able to carry out their work. I do not think that anyone in

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the justice system in this country would have any doubt that Eurojust is beneficial and something that we should continue to support and be part of.

8.15 pm

That brings us to two questions. Given that in Article 41 we see participation with the EPPO being proposed and all the things that might follow from that, does that make a difference? If it does, what do we do? Of course it makes a difference, for reasons that everyone understands. The answer to the second question—what do we do about it?—is, I would suggest, made very clear near the end of paragraph 41 of the report: it concerns the importance of being at the table. This is all about negotiation. This is not going to the final decision-taking stage. As I remember from Sub-Committee E, the essential point is to take part in the negotiation process as documents that come from Brussels are talked through. It would be an enormous mistake for us to be absent from the table.

This is a short report to which respectfully I pay great tribute. It is short but the issue is extremely important. We should be very grateful to the noble Baroness and all members of her sub-committee for the clarity and brevity with which they put their points. I support entirely all that the previous speakers have said and I hope very much that the Government will pay very close attention to the points made so far.

Lord Stoneham of Droxford (LD): As a member of the sub-committee that produced this report, I support what has been said tonight, the report itself and the words of the noble Baroness, Lady Corston.

A lot of the arguments have already been made so I will not repeat them. However, I will say three things that I believe are important. Everyone knows that Eurojust aims to,

“improve the coordination of investigations and prosecutions among the competent judicial authorities of the European Union Member States”.

That is its purpose. It is inevitable, in a competitive single market, that just as capital, labour and goods will move between borders, criminals recognise no borders either. They will use whatever weaknesses there are in domestic legal and police systems to ply their trade and to seek protection. It makes no sense, as the Government have recognised, that we should pull out of Europol, Eurojust or the European arrest warrant. They all complement each other. The Government have agreed this, and last week we also agreed that the further proposal for a linked European prosecutor was a step too far, and the coalition is opposed to that.

However, now we have proposals for a new regulation for Eurojust which will look at its structure, its new provisions for governance and management structure, new provisions for its accountability to the European and national Parliaments—including the fact that the Eurojust president will have to appear before Parliament—the setting up of an executive board, and the removal of individual member states’ discretion.

The Government have concerns about all of those and have pointed them out. They are concerned about the ramifications for fundamental rights, the change

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to Eurojust’s existing governance and management and the whole nature of the extended powers given to national members. However, as we have heard, it makes no sense at all and it is silly that we are not prepared to get involved in the negotiation of these new proposals, and will mean that in Europe we will be seen as petulant and awkward.

Surely the great danger to us is that if we opt out of these negotiations things will emerge that we are not happy with. We know that there are many countries in Europe that agree with us on the whole issue of whether or not to have a European prosecutor and on getting further accountability of Eurojust. It is too important a body to us for us to ignore the process of reforming it. Finally, on this question we should send in the openers to bat, not rely on the tail end to pick up the pieces.

Baroness Hamwee (LD): My Lords, my point is a general one. I apologise to your Lordships if it is trite—it probably is—but to me it is blindingly obvious that you cannot play the ball if you have taken your bat home. Every noble Lord will have had experiences of negotiation in some context, if only the domestic, and we know that if you choose to walk away you have to pick your moment. You have to be clear what the deal breaker is and know what your own compromise would be. However, until then you have to remain part of the story, not least because you risk losing respect if you are not prepared to get stuck in and stay stuck in to the project. You certainly risk losing influence. My noble friend’s phrase that you are “looked on as petulant” was absolutely spot on. You risk not being regarded as a serious player if and when negotiations resume. Indeed, you risk being thought of as having disqualified yourself from further negotiations in a serious way if you have distanced yourself.

Lord Rosser (Lab): My Lords, I thank my noble friend Lady Corston for her introduction to the report from her committee and for the clarity of the committee’s case made in its report for the recommendation that the UK opt in to the negotiations on the proposed Eurojust regulation.

As has already been said, the European Union Agency for Criminal Justice Co-operation—Eurojust—was established just over 10 years ago. Provisions in the 2009 Lisbon treaty agreed by the member states included provisions that required the EU’s institutions to pass legislation in the form of regulations to determine Eurojust’s structure, operation, field of action and tasks. The proposed Eurojust regulation seeks to fulfil the member states’ aims.

Eurojust is involved in major crimes such as drug trafficking, human trafficking, terrorism and financial crimes, which cross borders and require co-operation between different jurisdictions if they are to be successfully investigated and prosecuted. Since 2003 there have been just under 1,500 requests from EU member states for co-operation with Britain through Eurojust. The objective of Eurojust is to support member states in conducting investigations, and we are very supportive of the value of the work that it undertakes.

As has already been said, the proposed Eurojust regulation will apply to the United Kingdom only if the Government indicate a decision to opt in by

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21 November. The Government’s position in the House of Commons when it was debated there, I think last week, was that we should not opt in to the new Eurojust proposals at the outset of negotiations but should conduct a thorough review of the final agreed text to inform active consideration of opting in to the Eurojust regulation post-adoption, in consultation with Parliament. If the Government decide to opt in to the negotiation of the proposed Eurojust regulation, which seeks to replace two existing Council decisions, the legislation currently governing Eurojust will no longer fall within the scope of the Government’s 2014 opt-out decision, under which the Government are seeking to rejoin the current Eurojust arrangements as part of their 2014 opt-out decision.

In the House of Commons debate last week, the Minister referred to government concerns about the proposed connections between Eurojust and the proposed and strongly opposed European Public Prosecutor’s Office. The Minister also expressed government concern about the proposed new Eurojust regulation creating mandatory powers for national members. These powers, said the Minister, would allow a requirement for coercive measures at a national level with the ability to insist that national authorities take investigative measures in some circumstances, which could cut across the division of responsibilities and separation of powers between police and prosecutors in England, Wales and Northern Ireland, and the sole ultimate responsibility of the Lord Advocate in Scotland for determining investigative action in Scotland.

Unusually for this Government in regard to a European Union agency, they publicly rather value Eurojust. Their stance indicates they would prefer to stay in rather than find themselves outside because they do not like the look of the new regulation once it has been adopted following the deliberations of all those member states participating in the negotiations. In this regard it would at least clarify the Government’s position if the Minister could indicate whether, if the European Public Prosecutor’s Office proposal does not proceed, and with it the references to the link up with Eurojust, the Government will still not opt in to the proposed Eurojust regulation unless other significant changes are made to the proposed regulation. In other words, is it the connection with the EPPO proposal that is the showstopper for the Government or are there other aspects of the proposed Eurojust regulation that the Government also regard as a showstopper as far as opting in to the regulation is concerned?

The Government should be able to answer that question in general terms since they are not disclosing their negotiating position on what significant changes would be required as, under their stance in the House of Commons, they do not intend to opt in to negotiations anyway on the proposed Eurojust regulation. What the question does—if the Minister will give a straight answer—is indicate whether the Government’s relative enthusiasm for Eurojust is greater than their dislike of the proposed new regulation as it stands minus any interweave between Eurojust and the EPPO, or whether the Government’s dislike of the proposed new Eurojust regulations minus the interaction with the European Public Prosecutor’s Office is still such that if there is no significant change in the

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regulation in line with their position, they are prepared to accept no longer being a full participating member of Eurojust.

The view of your Lordships’ European Union Committee is that were it not for the provisions governing Eurojust’s interaction with the EPPO, the argument in favour of the UK opting into the negotiations would be clear and the committee would have no hesitation in recommending that the UK opt in. The committee’s view is that the Government’s key issues with the text could be dealt with during the proposal’s negotiation, but they recognise that the Eurojust proposal has not been brought forward in a vacuum but is closely associated with the Government’s policy towards the EPPO proposal. However, as has already been said, there will be changes in relation to the EPPO proposals since those proposals have been given what I think is known as a yellow card as a result of decisions by a not inconsiderable number of member states’ national Parliaments, which means that the Commission is now required to review its position.

The European Union Committee considers that the non-participation in the EPPO by other member states in addition to the UK, will inevitably mean that the contentious aspects of the proposal dealing with the reform of Eurojust will be subject to negotiations in the Council, and that the United Kingdom ought not to miss out on such negotiations. The committee takes the view that if the UK Government decide not to opt in to this regulation they will not be at the table for the important discussions addressing the position of those states wishing to co-operate within Eurojust but who choose not to participate in the EPPO. The committee says that it could not advocate such a course of action.

Referring to the Government’s position that they value the work of Eurojust, the committee says that it cannot foresee a situation whereby in practical terms the UK would be allowed to remain a full participating member of Eurojust operating under defunct or superseded legislation that they have decided to opt back in to, while the other participating member states co-operate under the new proposal once it is agreed. The European Union Committee has therefore recommended that the UK opt in to the negotiations on the proposed Eurojust regulations. Its report points out that the Director of Public Prosecutions said that the UK’s involvement in Eurojust provides many benefits and in his view represents good value for money, and that the Lord Advocate said that he would be concerned if the UK left Eurojust.

In his letter to the chairman of the European Union Committee, the Minister in the other place said that the Government would take an active part in the negotiations to protect the national interest, and also on the EPPO. The Government, he said, would also continue to challenge the Commission’s evidence base and justification for bringing forward the Eurojust proposals at this time. In addition, the Minister said that the Government would oppose any changes that would reduce the influence of member state representatives over the functioning of Eurojust, and seek confirmation that the opinions of Eurojust acting as a college are non-binding on member states.

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If the Government do not intend to opt in to the negotiations on the proposed Eurojust regulations, with whom will these approaches or discussions referred to in the letter that I have just mentioned be conducted? Is it the Government’s view that, in reality, they expect to achieve as much, or as little, through approaches and discussions through channels outside the structure of the negotiations on the Eurojust regulations as they would have done had they opted in to the negotiations? I hope that the Minister will address those questions when he responds to the debate.

The Minister’s reference in his letter to the chairman of the EU Committee that the Government would “continue” to challenge the Commission’s justification for bringing forward the Eurojust proposals at this time indicates that the Government have already been in discussions of some sort over the proposed Eurojust regulations. It would be helpful if the Minister could say what points the Government have been making about the proposed regulations, to whom and through what channels, over what period of time, and what changes, if any, they have secured that have already been reflected in the proposed Eurojust regulations as they now stand. We did not oppose the Government’s position on the Eurojust regulations when it was debated in the House of Commons last week, and it is not our intention to do so tonight.

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, I thank the noble Baroness, Lady Corston, and the European Union Committee, many of whose members have spoken in this debate, for bringing forward this Motion and for their work on this report. As noble Lords have said, we were here a week ago to debate the issue of the European Public Prosecutor’s Office when the House concluded that it should issue a reasoned opinion against that proposal as it breached the principle of subsidiarity. Today, we have turned to the related matter of the opt-in decision triggered by the European Commission’s parallel proposal for a Eurojust regulation. We have had a full debate and I have listened to it with great interest.

The Government’s view is that the UK should not opt in to the draft regulation on Eurojust at this time and we should conduct a thorough review of the final agreed text to inform active consideration of opting in to it, post adoption, in consultation with Parliament. I am pleased to say that a Motion to that effect was agreed in the other place last week. It has been very good to have the support of the noble Lord, Lord Rosser, expressing the Opposition’s view that this presented the right approach in the interests of Parliament and of Government.

The Government have said clearly that we value the current Eurojust arrangements, which is why we are seeking to rejoin them as part of the 2014 opt-out decision. I can only agree with the noble and learned Lord, Lord Hope of Craighead, and all other noble Lords who have pointed out the merits of the current Eurojust arrangements. Moreover, prior to the publication of the new Eurojust proposal, we said consistently that there was no need to reform Eurojust at this time;

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indeed, the Security Minister in the other place, James Brokenshire, made that case clearly at the 10th anniversary of Eurojust last year.

Current legislation is still undergoing a peer evaluation, which will not be complete until next year, and the Commission has not put forward a convincing case as to why the new proposal is needed. However, regrettably, it has come forward with a new Eurojust proposal that contains a number of substantial concerns. In particular, as the European Union Committee’s report elegantly describes, the Eurojust proposal is interwoven with the EPPO proposal. The reforms proposed to Eurojust would see deep connections made to the EPPO with operational, management and administrative links between the two bodies. At this time we cannot be certain either about the shape of the EPPO proposal itself—not least given the subsidiarity yellow card that has been issued, as we know, as a result of our debate and debates in other parliaments—or how the relationship between the EPPO and Eurojust might ultimately be defined.

I say to the noble Lord, Lord Elystan-Morgan, that our concerns articulated in this House last week have not gone away. To update the noble Lord, Lord Rowlands, who asked where we were now as a result of last Monday, the number of votes from national parliaments on the EPPO means that the Commission must now review its proposal. Officials speaking on behalf of Commissioner Reding, however, have interpreted this as being the majority of national parliaments not opposing the proposal. It would be a huge mistake no longer to consider the EPPO presenting a risk for the new Eurojust proposal. That is our view of the situation at the present time. The Government therefore believe that it would be extremely and unnecessarily risky to bind ourselves to the European Public Prosecutor’s Office through our participation in the new Eurojust proposal at the start of negotiations. This would be a needless risk when we can review our place in Eurojust upon its adoption.