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Justification Decision Power (Amendment) (EU Exit) Regulations 2018

Volume 795: debated on Tuesday 22 January 2019

Motion to Approve

Moved by

My Lords, the Justification of Practices Involving Ionising Radiation Regulations 2004, which I will refer to from now on as the justification regulations, provide a framework in which justification decisions regarding ionising radiation are made. Justification decisions are an important part of our regulatory regime surrounding ionising radiation, as they determine whether a practice involving ionising radiation is justified in advance of being first adopted or approved. In addition, it may be determined that a class or type of practice is no longer justified as a result of a review.

The power to make these decisions is currently provided by Section 2(2) of the European Communities Act 1972. Following the United Kingdom’s exit from the European Union and Euratom, and repeal of the 1972 Act, the justifying authority will no longer retain the power to make justification decisions regarding practices involving ionising radiation. This instrument will correct this inoperability by providing the justifying authority with a replacement power to make such justification decisions. The powers to make this secondary legislation are found in the European Union (Withdrawal) Act 2018.

Before I explain the changes in more detail, it may be helpful to provide background information on the Government’s position in relation to the justification of practices involving ionising radiation. The UK is committed to maintaining an up-to-date and internationally concurrent justification regime, in order to remain a world leader in radiological safety, as well as maintaining our international reputation and status as a trusted partner with whom to trade nuclear skills, services and materials.

The justification regulations are the first step towards regulatory approval for a new class or type of practice involving ionising radiation, including medical treatments and new nuclear reactor designs. These regulations provide a framework setting out how government determines whether the practice is justified. “Justified” here means that the individual or societal benefit of the practice involving ionising radiation outweighs its potential detriment to health. These decisions are taken by the justifying authority. This can be the Secretary of State of the relevant department or, in some cases, the devolved Administrations, in the form of regulations.

The justifying regulations cover activities which fall within both reserved and devolved subject matters. To ensure consistency in how the process for making justification decisions is dealt with across the UK and different reserved and devolved subject matters, the devolved Administrations have to date been content for the UK Government to establish and make changes to the justification regime, using UK-wide regulations. This instrument will allow the UK Government to make UK justification decisions in reserved areas using UK-wide regulations. It will also allow the devolved Administrations to make justification decisions using regulations covering their own geographic areas for activities falling within devolved subject matters. We have received letters of consent from each of the devolved Administrations agreeing that they are happy to proceed with this instrument.

I will now briefly expand on the amendment itself. On 29 March 2017, the Prime Minister triggered Article 50 and started the UK’s exit from the European Union. To give effect to the UK’s exit in domestic law, the European Union (Withdrawal) Act 2018 will repeal, as I said earlier, the 1972 Act at the moment of exit. However, to ensure continuity for the UK, the withdrawal Act will preserve EU-derived domestic legislation so that it continues to have effect in domestic law. This will leave our statute book with several EU-related inoperabilities, the power to make justification decisions being one example of this.

The purpose of this instrument is therefore to provide the justifying authority with a replacement power to make justification decisions under the justification regulations, once the current power ceases to be available as a result of the repeal of the 1972 Act. Such a power will be created by this instrument using the powers in Section 8 of the European Union (Withdrawal) Act 2018. It is important to note that this instrument does not allow the Secretary of State or devolved Administrations to make decisions in any other way, or with any greater freedoms than they currently do with respect to the justification regulations. Unlike the wide power under Section 2(2) of the 1972 Act, this replacement power is a narrow one that is limited to making justification decisions for the purposes of the justification regulations. It should also be mentioned that future justification decisions which determine that a new class or type of practice is justified will be made by affirmative regulations and therefore will be subject to debate in the House as usual.

Looking forward, my department is currently aware of several potential justification applications that may require a decision by the Secretary of State in the future. These applications will require a functioning justification regime to ensure that they are subject to the appropriate scrutiny procedures. For example, the HPR1000 reactor, intended for use at Bradwell, is a new nuclear reactor design which would require a justification decision before it could be deployed.

I hope that we can reach an agreement that these amendments are necessary to ensure a functioning statute book on exit day regardless of the outcomes of the negotiations. I therefore commend these regulations to the House.

I am intervening on the Minister before he sits down. Will the organisation called the justifying authority, which I understand is the organisation which takes these decisions, be affected in any way by the regulations, or will it continue in the same way after a no-deal withdrawal as before? This is a very technical area with which I am not familiar, but my reading of the regulations is that there is an organisation called the justifying authority whose decisions at present depend on EU law and the Government are investing those decision-making powers in the same authority but through UK law. Can the Minister confirm that that is the case and that I have understood it properly?

My Lords, it is complex and technical. There is no one body called the justifying authority; there are a number of different authorities. On certain occasions, it will by my right honourable friend the Secretary of State for Business; on other occasions, if it was a matter relating to health, it could be the Secretary of State for Health. As I made clear earlier, where it was a devolved matter, it could be the devolved Administrations.

Let me give an example to illustrate how a whole range of things are covered—I am thinking of something that has been in the news recently. If prisons wanted to install a new system for examining or scanning prisoners and others as they came through—I believe that that has already been justified—that involves ionising radiation. I shall now add a further complication: one might presume that the Ministry of Justice would be the justifying authority in that matter, but on this occasion it would be the Home Office. In other words, it would have to look at what the risks to people using these things might be and whether the societal benefits that I referred to earlier were greater such that we wanted to install the technology, hence the need for a justifying authority. There are a number of justifying authorities.

Unlike some other regulations that the noble Lord and I have debated, these are both what we could call deal and no-deal regulations. We are just trying to make sure that the right order is in place so that life can continue as before, with the appropriate justifying authority making the appropriate decision.

My Lords, perhaps I should put the question and then the debate can commence. The question is that this Motion be agreed to.

I have two questions for the Minister. When were these regulations published, and has there been any public consultation on their content?

My Lords, I am tempted to ask a number of questions to get them out of the way, because most of these regulations follow the same guidelines. My noble kinsman the Minister has already said that they will not come into effect if we remain in the European Union for whatever reason. Can he confirm that that is the case for all the regulations, and then I will not have to ask again?

I have only one question on this regulation, which concerns transparency. The noble Lords, Lord Adonis and Lord Pannick, have already talked about the justifying authority, and reading the SI it is clear that it could be any Secretary of State, but as we are dealing with detriment to health and ionising radiation can the Minister say at what point discussions by the justifying authority would be made public? Under what forum would people be able to find out about the decision-making process?

My Lords, I had not intended to intervene on this set of regulations, but remarks that the Minister made in answering the noble Lord, Lord Adonis, sparked a thought in my mind, given some of the other discussions we have had on no-deal regulations. The Minister said that these justifying authorities, and presumably these regulations, could be just as relevant if there was a deal as they are for no deal. I thought they were being presented to the House as no-deal regulations. If there is a deal, will these no-deal regulations be abolished and will we start again? Or will they carry on on the statute book if there is a deal and be used as though there were no deal?

My Lords, the Minister is correct to portray the order before the House today as merely a technical replacement justification power, where “justified” means that the benefit resulting from the practice outweighs the risk and potential health detriment it may cause, under the ionising radiations regulations or the directive. These regulations are a first step towards regulatory approval for any new class or type of practice involving ionising radiation, such as a medical treatment or new nuclear reactor design. These activities are important, and it is important that they are regulated properly. To my mind, they are as needed in any situation as they are needed for exit from the EU. To me it is a straight transposition from an EU-derived power to a UK power to give effect to the UK’s exit in domestic law. There should be no issues with this order.

This is the latest type of Brexit—I am calling it a continuity Brexit—to allow EU-derived legislation to continue to have effect in domestic law, and this order is merely a replica of previous ones. I approve the order today.

I understand that the Government Whips’ Office in the other place has a new sweetie box as a reward system, whereby Ministers are rewarded for each successful continuity order passed before exit day. I trust that the Minister will be rewarded with a bonus issue for this order.

On that last point, I have had an assurance from my noble friend Lady Vere that a reward will be on offer—but let us wait until we have got through all four of these before I rely on the generosity of her offer: she might change her mind later.

Let me deal with the points that have been raised. The noble Lord, Lord Pannick, asked when these were published. I can assure him that they were published on 23 November last year. The instrument makes absolutely no changes to policy: it is just a technical amendment to ensure the continued operability of the justification regulations, and therefore a public consultation was considered unnecessary and inappropriate. Subsequent regulations made using the power contained in this instrument will continue to be subject to the consultation requirements, where the justification regulations impose on the making of justification decisions.

Can the Minister then give an undertaking that those exit regulations brought before the House that do make policy changes will be the subject of public consultation?

My Lords, where appropriate, that will happen. I can speak only for regulations that I will bring before this House relating to my department—but the noble Lord will no doubt be in his place to listen to other Ministers and other regulations as they come through. I repeat that, when we come to make further decisions under these regulations, at that moment—because there might be a change in policy—those decisions will be subject to the consultation process that I spoke about. If the noble Lord will bear with me, I will give way on this.

I am very grateful for the noble Lord’s patience. Is he then giving that undertaking in relation to regulations brought forward by his department—that if they are exit regulations that make a change of policy, they will be the subject of public consultation before they are brought before the House?

That is not what I said. I said that, where appropriate, we will consult if it is possible. Most regulations we are bringing forward deal with the eventuality of a no deal. Obviously, there will be constraints on the full consultation process that the noble Lord is seeking. That was clear in other regulations with which I dealt in the Moses Room on another occasion. As with these, we went into extensive consultations with the devolved Administrations—because they are the relevant bodies—and we have consulted within government, because a lot of different justification authorities abound. Where appropriate, we will consult: I can say no more than that.

The noble Lords, Lord Redesdale and Lord Warner, wanted to know in effect how the justifying authority worked. I think that the noble Lord, Lord Warner, wanted to know whether they were simply no-deal regulations. What I was trying to say was that these are both deal and no-deal regulations—even if there were a deal, we would still need these regulations. They would not become defunct in the event of a deal. We want to make sure that this is right whatever happens, and I hope that will be the case.

Perhaps I may come back on this, because there is a matter of principle here, particularly following up on what was said by the noble Lord, Lord Pannick. The Minister will recall that we had some fruitful, if somewhat lengthy, discussions in Grand Committee on some of these regulations. We were debating the idea that these were no-deal exit regulations, and there was often a dispute over whether the regulations did or did not change policy. The Government’s view on some regulations was not necessarily shared by other Members of this House, but I think we were inclined to be tolerant on the basis that these were no-deal regulations, rather than regulations that would continue into the future. So is it going to be a pattern now that we will get these regulations, in a number of areas, presented as no-deal regulations, but then find that—lo and behold—there has been a change in policy that has slipped through, with no consultation, and that the regulations will continue into the future? The Minister might want to say that I am showing my customary paranoia on this issue, but it is a serious point that we in this House need to be clear on when we deal with these regulations. Our attitude will be very much conditioned by whether they are no-deal regulations or whether they will carry on into the future.

To make life easier for the noble Lord, I can assure him that the other three regulations—to which I will be speaking later—are purely no-deal regulations. I do not think the noble Lord is paranoid about this—he is quite right to explore these matters. But I want to make clear to him that there is no change of policy in these regulations; we are just trying to make sure that things are okay on 29 March. That is the case, deal or no deal.

I think that that deals with his point and the point made by the noble Lord, Lord Redesdale. I believe therefore that I have answered the questions put before me. I am grateful again to the noble Lord, Lord Grantchester, for his comments.

Motion agreed.