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13 Dec 1999 : Column CWH1

Nuclear Safeguards Bill [H.L.]

Monday, 13th December 1999.

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]

The Deputy Chairman of Committees (Lord Ampthill): We begin our proceedings today with the Nuclear Safeguards Bill. Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard. The one difference is that the House has agreed that there shall be no Divisions in the Grand Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.

I should explain what will happen if there is a Division in the Chamber while we are sitting. The Committee will adjourn as soon as the Division bells ring and will resume after 10 minutes.

Title postponed.

Clauses 1 and 2 agreed to.

Clause 3 [Identifying persons who have information]:

Lord Mackay of Ardbrecknish moved Amendment No. 1:

    Page 3, leave out lines 9 to 11 and insert ("have a duty to publish a statement of the fact that they have been made in such manner as will bring them to the attention of persons affected by them").

The noble Lord said: I beg to move Amendment No. 1 and speak also to Amendment No. 2. Those two amendments effectively try to flesh out subsections (5) and (6) of this clause. Basically, given the seriousness of these issues and indeed, the punishment for infringing them--about which I do not complain because they are serious issues; people could be fined or imprisoned--it seems that we should go a little further in relation to the Secretary of State's duty to publish. We should do more than merely,

    "arrange for a statement of the fact that they [the regulations] have been made to be published in such manner,"

and so on.

I suggest that we should be a good deal firmer than that and provide that there should be a duty to publish a statement of the fact that the regulations have been made, and to bring them to the attention of the persons affected by them.

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Secondly, if a person is charged, a reasonable defence for him to offer would be that the Secretary of State had failed in his duty. Will the Minister explain how the Government envisage that those regulations would be made known to the people who are interested in them? Will it be through advertisements in the press or trade journals? How will it be done? We should spend a few moments just ensuring that any regulations produced by the Government are known to the people who are affected by them.

As the Bill is currently drafted, to "arrange for a statement" seems rather weak and it would be far better to impose a duty on the Secretary of State. I beg to move.

Lord McIntosh of Haringey: The rationale behind Clause 3(5) is to ensure that if any regulations are made under this clause, they are publicised in such a way that the persons to whom they apply will know about them. I shall answer immediately the question raised by the noble Lord about how they are publicised. By analogy, I am taking the Chemical Weapons Act 1996, which will be important for a reason that the noble Lord will recognise shortly.

The regulations which have been made under that provision are publicised by giving notice of their existence without full text in The Times, Daily Telegraph, the Financial Times, and the London Gazette. Individual copies of the regulations are sent to all relevant trade associations and we envisage that we shall do very much the same thing under the regulations under Clause 3 of the Bill.

The important point I want to make is that the wording is exactly the same as the corresponding provision in Section 23(3) of the Chemical Weapons Act 1996. When the noble and learned Lord, Lord Fraser of Carmyllie, introduced his measure in 1996--I am sorry that he is not in his place in the Chamber--he will recall that he said at col. 1368 on 30th January 1996,

    "I therefore make no apology for the inclusion in this Bill of the new powers and regulations necessary to enable the Government to honour the United Kingdom's obligations under the covenant".--[Official Report, 30/1/96; col. 1368.]

Exactly the same argument applies in this case. The whole purpose of regulations under this clause is to get persons in the categories specified in the regulations to identify themselves to the Department of Trade and Industry Safeguards Office. This would not be achieved if the regulations were not widely known about, so in that sense the noble Lord is pushing at an open door. However, the reason for having such regulations in the first place is so that the Safeguards Office can find out about persons, whether individuals, companies or other bodies, who would not otherwise be known to the office. The Safeguards Office knows which category of people it needs to know about but it will not necessarily know the identity of each person in the category, and it is to them that the regulations are directed. Let me say that I see no distinction in the wording between "duty" and "shall arrange"; they both have the same effect.

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It follows that as such regulations would be aimed at persons about whom the Secretary of State does not know, he could also not know where they are or exactly what forms of publicity are certain to come to their notice. The first amendment would place on the Secretary of State a duty which it will be impossible for him to be sure of fulfilling, and would require him to ensure that the regulations will come to the attention of everyone affected by them. However, as he will not know who will be affected by the regulations, the most he can do is work out what methods of publicity are likely to come to the attention of persons, which is what the Bill says. He cannot realistically be obliged to ensure that everyone affected by the regulation knows about them.

Subsection (5) as drafted, therefore, goes as far as it is realistic to go. It places a duty on the Secretary of State to ensure that the regulations are likely to be known about by anyone affected by them. Amendment No. 2 goes further and it would mean that no one could be convicted of failing to comply with regulations under the clause unless the regulations had been publicised by subsection (5). However, if subsection (5) is amended as Amendment No. 1 provides, it would have the effect that no one would have to comply with the regulations unless they had been brought to the attention of everyone affected by them. That would entirely undermine the regulations. Even a person who was aware of them could not be convicted if they had not come to the notice of someone else, however hard the Secretary of State had tried to give them wide publicity among the types of persons concerned. Therefore, I am afraid that I am unable to accept the amendments.

Lord Mackay of Ardbrecknish: I thank the Minister and, although he has not accepted the amendments--not to my surprise I may say--at least he has fleshed out what the Government see as their obligations under subsection (5). I am interested that "shall arrange" and "duty" are the same and I may store that away in my mind for the future. I should have thought that "shall arrange" is a little less weighty than "duty". However, I am pleased to hear how the Government will advertise the existence of these regulations. That is certainly worth putting on record. Perhaps I should also say that I am grateful to the Minister for publishing the draft regulations, as he did on the day of Second Reading. Thus he managed to shoot at least one of my foxes, quite adequately I thought. He will be pleased to hear that I shall not be doing a great deal of changing to the regulations, because they are quite technical and complicated as, indeed, is this field. I am, therefore, satisfied that this probe has established from the Minister how he intends to publicise these matters and they seem perfectly satisfactory to me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Amendment No. 2 not moved.]

Clause 3 agreed to.

Clause 4 agreed to.

Clause 5 [Rights of access etc. for Agency inspectors]

Lord Mackay of Ardbrecknish moved Amendment No. 3:

    Page 5, line 6, leave out ("An Agency inspector may,") and insert ("If a justice of the peace is satisfied, on information on oath, that it is reasonable and necessary in accordance with the Additional Protocol for an Agency inspector to do so, he may issue a warrant authorising an Agency inspector to,").

The noble Lord said: With this amendment I will speak to Amendments Nos. 4, 8 and 11. I raised this matter at Second Reading. The Government answered it, and I understood the answer. I am also grateful to the noble Lord, Lord McIntosh of Haringey, for his letter in explanation. However, I am still a little concerned and I have therefore put down this amendment in order to further explore the matter. I will come to what I suspect will be the Minister's answer shortly.

In this country we are keen, and no one in opposition was keener than the noble Lord, Lord McIntosh of Haringey, to ensure that officialdom cannot go charging around, entering premises and entering homes, without some form of legal authorisation. Indeed, in Clause 4 of this Bill, as I said at Second Reading, officials of the Department of Trade and Industry may search premises for documents, including entering somebody's home. Increasingly, with e-commerce and the Internet, and material of this nature, some of which will be intellectual property and not actually bits of gear, I can see that the home may well be the place where the information exists, perhaps on a computer. Therefore, entering someone's home may well be the way to make sure that the Bill, as it stands, is actually obeyed.

Under Clause 4, however, before our own "home grown" officials can do so they must go to a justice of the peace, who they must satisfy on oath that they have a good case for entering premises, including houses, and searching for documents. That is a fundamental protection which is built into most of our legal position in this country.

However, in Clause 5 the officers of the international agency can go where they like without any regard to having to go to a justice of the peace to obtain a warrant. Indeed, it seems to me that if the Secretary of State's representative does not want to bother going to a JP, all he has to do is to persuade the agency's man or woman to go with him to take the lead. He can then enter the premises without having to bother a justice of the peace.

The Minister--and I understand this--in his defence both in the House and in the letter he sent to the noble Lord, Lord Wallace, and to me, pointed out that similar provisions were made under two previous Acts. I have no doubt that we shall hear about that, and I have no doubt that the words of my noble and learned friend, Lord Fraser of Carmyllie, will be quoted back to me. These words come from Section 25

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of the Chemical Weapons Act 1996, for inspections under the Chemical Weapons Convention. No doubt the Minister will also tell me, as he did in the letter, that under Section 13 of the Landmines Act 1998, under the Ottawa Convention, such inspections can equally be done without a warrant.

It seems to me that we now have three international treaties, and agents of these international bodies--three in number--will be allowed to enter premises, search and do these other things, without having to go to a justice of the peace. I wonder how many more international agencies will come along, with objectives with which we all agree, who will want exactly the same powers in our country. I begin to be rather worried. I wonder whether, when we passed the Chemical Weapons Act 1996, and agreed to this to begin with, we would have been quite so happy. Would my noble and learned friend have been quite so happy if he had realised that, within four years, there would have been three such Acts on the statute book, and three such international bodies able to do things inside this country, to citizens of this country, which we do not allow our own people to do, for the same objectives? It seems to me that it is at least worth pausing in the Committee, and not just accepting the Minister's well-argued letter at its face value, and asking ourselves, are we quite sure? I know precedent is one of the great factors in the law and in Parliament, but sometimes we have to say: "Wait a minute, when we started on this road did we realise we would end up with so many cases of this nature?". That is the first thing we must ask ourselves.

This is the third Act to give an agency powers, as I said, to do things which officials of our own Government would not be able to do. The Minister said in his letter--and also in the House--that to accept the insertion of the words I want and to require a justice of the peace to sign a warrant, would be a breach of the protocol we have already agreed.

The Minister said in his letter that,

    "Agency inspectors must have a right of complementary access to confirm the completeness and accuracy of the information provided, subject only to the conditions provided for in the Additional Protocol itself".

If "complementary access" means anything, is it not the complementary access we already have? And is not that access dependent on obtaining a justice's warrant? I do not see the problem, if it comes to it, of giving them complementary access.

The Minister goes on in the letter:

    "There is no scope under the Protocol for further limits or conditions to be imposed on such access, so the UK is bound to ensure in its implementation of the Protocol that Agency inspectors' rights of access are subject to no further conditions or limits. A requirement to obtain a warrant would be a further condition, and so would appear in itself to amount to a breach of the Additional Protocol."

I did notice the words,

    "it would appear in itself to amount to a breach".

Perhaps the Minister would like to think a little about this one before he answers in exactly the same vein.

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Many of the countries which signed the treaty do not have the same respect for civil liberties as we do in this country, and if I am being a little pernickety about this, I think we have a long tradition of being pernickety. When the Minister was the Opposition spokesman on Home Office matters he was, quite rightly, somewhat pernickety about civil liberties. I hope he is not going to say that I did not previously respect them nearly as much as I do now, in Opposition.

We all have a duty to be mindful and, if that is the best assurance the noble Lord can give me, it would at least help me, the next time we have an international treaty of this kind, if we say to some of our friends that we have a little problem in our country; that we need a justice of the peace warrant before our own people can enter premises and so forth and therefore feel that we ought to have a justice of the peace warrant for people from their agency before they enter our premises.

I know it sounds as though I am somehow not happy with the objectives of this Act. But that is not the case at all. I understand why we need it; I understand why it is important; but, equally, the rule of law in our own country is important. I therefore ask the Government to contemplate what they will say the fourth, fifth or sixth time we come across a Bill like this. Will it be, "precedent, precedent, precedent"?

We may end up with a whole army of international inspectors who are able to do things in this country which we would never allow officials of our Government to do. I respect the officials of our Government every bit as much as I respect the international agency's people. One cannot be described as "slightly suspect" and the other "above reproach". All officials are slightly suspect and ought to go through the same hoops.

If we are to have much more of this, we shall have to consider the way in which we agree to these protocols in this country. Some of the fundamental laws which affect all of us as citizens must not be ignored for what, though it may well be a greater good, is not a greater good that should ignore our laws and the way in which we proceed inside our country. I beg to move.

3.45 p.m.

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