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House of Commons Hansard
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General Committees
12 July 2016

Delegated Legislation Committee

Draft Tees Valley Combined Authority (Election of Mayor) Order 2016

The Committee consisted of the following Members:

Chair: Mike Gapes

† Blenkinsop, Tom (Middlesbrough South and East Cleveland) (Lab)

† Campbell, Mr Alan (Tynemouth) (Lab)

† Chapman, Jenny (Darlington) (Lab)

Cunningham, Alex (Stockton North) (Lab)

† Griffiths, Andrew (Burton) (Con)

† Harris, Rebecca (Castle Point) (Con)

Haselhurst, Sir Alan (Saffron Walden) (Con)

† Kennedy, Seema (South Ribble) (Con)

† Mann, Scott (North Cornwall) (Con)

Mitchell, Mr Andrew (Sutton Coldfield) (Con)

† Morris, Grahame M. (Easington) (Lab)

† Scully, Paul (Sutton and Cheam) (Con)

† Smith, Julian (Skipton and Ripon) (Con)

† Tugendhat, Tom (Tonbridge and Malling) (Con)

† Turley, Anna (Redcar) (Lab/Co-op)

† Wharton, James (Parliamentary Under-Secretary of State for Communities and Local Government)

Gail Bartlett, Committee Clerk

† attended the Committee

Third Delegated Legislation Committee

Tuesday 12 July 2016

[Mike Gapes in the Chair]

Draft Tees Valley Combined Authority (Election of Mayor) Order 2016

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I beg to move,

That the Committee has considered the draft Tees Valley Combined Authority (Election of Mayor) Order 2016.

It is a pleasure to serve under your chairmanship for the first time, Mr Gapes. I welcome the new shadow Minister, the hon. Member for Easington, to his place. I often attempted to entice him to contribute to these debates when he was a Whip, but I look forward now to hearing the contribution he has to make. At the outset, I should declare my interest in every sense in the draft statutory instrument, which is an important piece of legislation for the area that I represent and for the Tees Valley as a whole.

The draft order was laid before this House on 13 June 2016. If approved, it will create the position of Mayor for the Tees Valley Combined Authority, with the first election to be held in May 2017. It will also set the first mayoral term for a duration of three years, with the next election in May 2020 and subsequent four-year terms. The Government committed in their manifesto to

“devolve far-reaching powers over economic development, transport and social care to large cities which choose to have elected mayors.”

To give effect to that commitment, Parliament passed the Cities and Local Government Devolution Act earlier this year.

The order is a milestone in the implementation of the devolution deal agreed between Government and local leaders on 23 October 2015. It follows the establishment of the Tees Valley Combined Authority on 1 April 2016. As Lord Heseltine’s independent report stated, the Tees Valley Mayor will provide one voice and one direction for the area, and that enhanced leadership will help to accelerate growth. The order establishes a Mayor and sets the dates of elections and subsequent term lengths. It is laid before Parliament following the statutory process specified in the Local Democracy, Economic Development and Construction Act 2009, as amended by the Cities and Local Government Devolution Act 2016. As required, all of the constituent councils have consented to the order being made, and we now seek Parliament’s approval before making the order.

The order is about delivering devolution and empowering local authorities to set their own policy agendas. It provides enhanced local leadership in the form of a directly elected Mayor with a strong democratic mandate. The Mayor will work closely with local leaders, who will sit on the combined authority board. Together they will drive forward the economic opportunities presented by devolution, with the Mayor acting as chairman of the combined authority and providing a single voice for the area that can be prominent nationally and help to drive the devolution agenda.

If the draft order is approved, it will open the way for full implementation of the devolution deal for the Tees Valley. It is therefore a significant milestone in the devolution journey, leading to greater prosperity, a more balanced economy and economic success. We are committed to that journey because there is a real opportunity for areas to assume powers and budgets, which will help places to achieve their potential and to take control of their growth and, importantly, have a positive impact on the lives of local citizens. The order will provide the Tees Valley with a strong voice and an effective leader who can deliver for the local area and help to rebalance the economy, including building and delivering on the northern powerhouse.

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It is a pleasure to serve under your chairmanship, Mr Gapes. It is an honour to represent the Opposition and the Labour party in this role. I served for 16 years as an elected councillor on Easington District Council. I served in the Whips Office. In a previous capacity, I provided support on communities and local government and on housing. I pay tribute to the valuable work carried out by my colleagues in the previous shadow team, my hon. Friends the Members for Hemsworth (Jon Trickett) and for South Shields (Mrs Lewell-Buck), who led on devolution for the Opposition.

As the Minister indicated, today’s draft order is very narrow in scope, converting the Tees Valley Combined Authority into a mayoral combined authority and setting the date for the election. That is the next step in the process towards the devolution deal. However, I challenge the assertion made by the Prime Minister quite recently that it is “devolution by consent”, and I have some questions to put to the Minister about the imposition of mayors.

Local leaders have not welcomed the imposition of a Mayor for the Tees Valley Combined Authority, but they have accepted it, reluctantly. In evidence to the Select Committee on Communities and Local Government, Councillor Sue Jeffrey, the leader of Redcar and Cleveland Borough Council, said:

“It is a price we are having to have, so we will make it work...We have to take what is on offer and do what we can with it.”

I commend the pragmatic approach adopted by all five councils and their leaders in the Tees Valley area in defence of their communities. The Opposition want it to be clear that we support the principle of devolution, but would do things rather differently, particularly in relation to governance arrangements.

Having been through previous local government reorganisations—I was a member under the old committee system, chaired a number of committees and saw the transition to the executive-scrutiny split—I am concerned that, if the Government adopt a one-size-fits-all, top-down approach, with the imposition of mayors as a prerequisite for the devolution of substantial powers, that will be a detrimental step. We need to look at the evidence from previous reorganisations and impositions of this type.

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My hon. Friend used the phrase “one size fits all”, but I understood that some combined authorities or devolved areas were not having an elected Mayor imposed.

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I am grateful to my hon. Friend for her intervention. I was going to come on to that point in a moment. A number of members of the governing party have expressed concern about imposition as a precondition, and I hope that the Minister will address that. If the Government are making an honest and true attempt to promote economic growth and rebalance the economy, that should not be a precondition. I am sure that the Minister is aware of concern in his party. From my perspective, and in the light of the remarks by my hon. Friend, that is a key point.

The Government’s approach has been rejected by local government leaders negotiating the deals and by a number of leading organisations, including the Local Government Association, the National Audit Office and the Select Committee on Communities and Local Government, to name just a few. I had the opportunity to visit the LGA conference in Bournemouth last week. A number of local authority leaders—not just Labour ones—expressed concerns about the imposition of elected mayors. I hope that hon. Members are aware of the National Audit Office report, “English devolution deals”, which sets out the various packages on offer to different areas. It is clear that there is wide variation, and it seems that the Minister has accepted that the imposition of an elected mayor is not necessarily a requirement before powers can be devolved.

There have been concerns about the creation of a fourth or even fifth tier of local government creating the potential for a complex, over-bureaucratic and costly system of representation that is also potentially unaccountable. The Communities and Local Government Committee has warned the Government that such a system, leading to low turnouts at mayoral elections—as has happened—will have implications for the democratic legitimacy of elected mayors.

In case there should be any confusion, I stress that my party, and I personally, are not opposed to the concept of mayors. In many cases they can provide visible leadership and accountability. However, devolution should mean, if it means anything, that people and communities are free to choose the most appropriate model of governance for their community. The imposition of mayors risks undermining that process and public confidence in it.

I would like to pose a few questions to the Minister. In view of today’s order, I am not anticipating, although I am an eternal optimist, that he will announce any radical changes at this eleventh hour. However, are there any circumstances where he would acknowledge that an elected Mayor might not be the best model of governance? I refer him to examples in the National Audit Office report, where Cornwall and, I believe, Leicestershire have been allowed to proceed without the imposition or precondition of an elected Mayor.

Does he acknowledge that an elected Mayor might not be the best model of governance? If so, although I appreciate there is an eight-week consultation period, will he commit to working with local leaders, at whatever stage they are at, towards a devolution deal, and consider the merits of alternative governance models, where it can be demonstrated that the mayoral system may not be the most suitable, given local geography and circumstances? Unfortunately, without that flexibility, authorities and communities are effectively held hostage, with those opposing elected mayors locked out from accessing substantial devolved powers.

I hope that the Minister is aware of concerns expressed by the Centre for Public Scrutiny. It has warned that

“requiring elected mayors and overview and scrutiny committees may lead to combined authorities approaching governance as a ‘matter of compliance, where no further thought is required’.”

That would be as a sort of tick-box exercise. I believe there should be an opportunity to bring powers and decision making closer to the people. However, the imposition of mayors is a contradiction of the meaning of devolution.

I must also take this opportunity to ask for some assurances from the Minister about the implications of the Brexit vote. A key benefit of the Tees Valley deal was control over EU structural funds. That is absolutely a key issue. Not without justification, the Tees Valley has been a long-term beneficiary of European funding and has secured a commitment of £169.8 million over the current EU funding period.

It is a matter of record that the Minister was a leading advocate for Brexit. During the campaign, the Leave side—

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Order. May I ask the hon. Gentleman to get back to the actual wording of the motion before us today, rather than open up a general debate about Brexit?

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I am grateful for your advice, Mr Gapes, but—

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Please.

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Yes. I am seeking assurance, Mr Gapes, that, should we go forward with an elected Mayor, the Minister will give a pledge and cast-iron guarantee that the EU structural funds in particular will be made good. That is key to the deal.

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rose—

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Do you mind, Mr Gapes, if I give way to my hon, Friend?

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That is a matter for you.

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There is an important point here, which is related to the devolution deal. The combined authority was going to control the EU funding. We are seeking assurances, if we are to lose that money, of what that means in the longer term. We want clarification on the instability over inward investment that we are facing at the moment.

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I am grateful to my hon. Friend for her intervention. That is precisely the point I was trying to make in a rather laboured way, for which I apologise. That is key to whether the deal can go forward. The control of EU funding is an essential part of the devolution deal. We seek reassurances from the Minister to the Tees Valley Combined Authority that expected levels of funding, including those expected from the EU, will be maintained, not just in the short term—without second-guessing the Minister’s answer— of the next two years, but in the longer term. We seek assurances that there will be local control of these funds.

In the light of the Brexit vote, there are understandable concerns about the impact on inward investment. Can the Minister offer some comments about how the Government are going to address potential instability and uncertainty on inward investment? That is key to the Tees Valley—as the Minister well knows having a constituency there—given the importance of the chemical industry cluster and the associated manufacturing industry.

I commend the work of the five councils in the Tees Valley Combined Authority and their efforts in seeking to secure the best deal possible for their area and their communities, despite the constraints placed upon them by Government. The £15 million devolution deal—that is £15 million a year over 30 years—can never fully compensate for the devastating cuts to local government. The Tees Valley area has already seen cuts in excess of £240 million per year since 2010: a huge sum of money to lose from local authority budgets. I appreciate the concerns about the Government’s commitment to investment, not only in the light of the referendum, but in view of the gross disparities between infrastructure spending in the capital compared with the regions. I ask the Minister to say a few words about how we are going to address these huge regional disparities.

The commitment to devolving education and transport can ring hollow when considering recent announcements regarding academies and the Bus Services Bill. I know we are not dealing with that here, Mr Gapes, but it is relevant to the package of the powers the elected mayor and the combined authorities will exercise.

I recognise that we are at the start of the devolution process and when the deal is complete, it will only be the first stage. While I am in post, I will support—

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Very good, Grahame.

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Thank you. While I am in post, I commit to supporting local areas in securing the deals that they want, that best suit local circumstances and that will best help them to meet the challenges they face in supporting and sustaining their local communities.

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It is an honour to serve under your chairmanship, Mr Gapes.

My constituents in Darlington are perplexed by all of this. The awareness of the combined authority is starting to grow and there is a growing understanding in my constituency about what is happening. I must say, however, that the idea of an elected Mayor for somewhere called the Tees Valley leaves many scratching their heads, because they know we had a referendum in Darlington on leythe subject of elected mayors and the idea was roundly rejected. They also rejected wholesale the idea of a north-east assembly. Their appetite for this kind of change and an extra layer of democratic accountability—they would say bureaucracy—is not great. When we have a group of local authorities that have proven they are able to work together over a very long period, collaborate and get their combined authority off the ground with minimum fuss and trouble—and they have worked with Governments of all colours—they question why they need this extra supervision above them for a place that, in my constituency, they do not recognise as legitimate.

I challenge the Minister that in the first three or four years of his role as MP for Stockton South, he led the campaign to get rid of the Tees Valley and replace it with Teesside, which does not include Darlington. Now he says we must have a figurehead for the Tees Valley, a place he did not previously think ought to exist at all. I had some sympathy with his campaign back then; maybe he should have stuck with that.

My constituents are also very concerned as they are seeing the decimation of their local services: libraries, sports facilities, children’s centres, support for families with disabled children and advice services. They are asking me—so I ask the Minister—how much is this going to cost? What will this election cost and how much will the salary of the elected Mayor be? They want to know this as sums of £90,000, £100,000 may not seem like very much to the Minister when he looks at this, but that would keep important services in our constituencies going for a very long time. He needs to think about how this is going to look to residents who are seeing their services removed from under their feet, to be replaced by a figurehead they do not want for a place they do not believe exists, and actually, nor does he. The idea of there being a single voice for the Tees Valley is naïve at best. I can see why the Government would like a single voice for the Tees Valley—it makes their lives much easier if they have one person to deal with from the Tees Valley. As he well knows, we are a collection of towns and we have many shared aspirations, but we have things that identify us separately too.

We want to keep having that direct dialogue with the Department for Transport and the Department for Communities and Local Government, because sometimes there are things that we do not always exactly share on every level. It may make life easier for the Government but it will disguise many of those wonderful things that are unique to the identity of different towns within the Tees Valley. It would be a real loss if we pretended that the Tees Valley is a single place with one identity when we all know—and certainly the people who live there know—that that is not the case. They are fed up with being told that the place where they live, grow up and work has a different name, “We’re calling it this now, we’re calling it that now.” They are sick of it. My constituents live in Darlington and they are proud to live there. They do not want to have to elect somebody who is responsible for Hartlepool.

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I will seek to address the questions raised by the shadow Secretary of State. I welcome the tone of his comments, although clearly there are areas of disagreement in terms of policy and the approach that the Government are taking. I have noted down the most salient points that I am to formally address. I will do my best to address them, but I am confident that he will intervene if there is anything that I have missed. The circumstances in which a Mayor might not be the best model—whether a Mayor is appropriate or not—seem to be the focus of much of his comments.

The Government have been quite clear. We have imposed a devolution deal on nobody. The Cities and Local Government Devolution Act 2016 gives the Government no power to impose a devolution deal on anyone. A deal is a two-way process where there are things that the Government want to see and tests and robustness that they want to be assured of, but where local areas are able to ask for the powers that they believe they can best use. That process of discussion takes place in each area, based on geographies determined by that area. This is an issue that I will revisit when speaking on the points made by the hon. Member for Darlington, but it is a bottom-up and bespoke process.

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I have heard the Minister’s comments in response to the first question. I am not suggesting that he has been disingenuous but is not the truth of the matter that, in these discussions, which he has referred to as a bottom-up process, not a top-down process, there has in essence been a precondition that unless the combined authority accepts an elected Mayor it will not go any further? I am aware of discussions and reports of discussions with other combined authorities. We should be clear that it is the Government’s intention—by whatever method—to ensure that there are elected Mayors leading these combined authorities. If that is not the case, perhaps he might make it clear that combined authorities are at liberty to come up with another model and will still be able to have devolved powers, as set out in the order.

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The Government will of course consider any proposal that comes forward from a combined authority, but we have been clear throughout this process that, where areas want a significant package of powers, there is an expectation that that comes with the clear and sharp democratic accountability of an elected Mayor. I will not try to use words to avoid the reality of this—I have been very clear about it. We cannot force any area to accept a deal, and we cannot force any area to accept a Mayor. The Government’s position is that, where areas want significant deals, we expect a Mayor to be part of that package. It may be an issue on which there is disagreement across the Floor of the House, but it is one on which we have been clear throughout this discussion and debate.

The shadow Secretary of State also raised the issue of Brexit, but specifically with reference to European funding. He referred to control over European funding being part of this devolution deal. It has been agreed that intermediate body status will be delivered. That issue was also raised by the hon. Member for Redcar. I give what assurances I can, in that at least for the time being we remain a member of the European Union, so nothing will change until exit is agreed. We of course must see how the process evolves and unfolds.

The truth is that we are a significant net contributor to the European Union and so, on exit, will have the opportunity, taking control of money that Europe currently decides how to spend, to spend it in accordance with the interests of this country and, indeed, under the direction of its people and Government. My intention will be to advocate very strongly indeed the continuation and, indeed, improvement of funding to the regions from within Government, but nothing is going to change in the near future. I encourage local areas to continue to pursue economic growth and to make a positive case for the projects for which they want support. Indeed, I support the Tees Valley in doing that, and in continuing to deliver the letter and the spirit of the deal agreed between its local authority leaders and central Government.

There has been a welcome rise in inward investment across the north of England in the past two years. It is up significantly, and we want to continue to encourage the process. I have no doubt that stability is something that drives decision making, and that those who choose to invest look for it. That is why I welcome the decisions that have been taken in my party to offer the country stability in recent days. I hope that for Her Majesty’s Opposition that process will also be brought swiftly to whatever its conclusion will be.

The Shadow Secretary of State also said—rightly; this is an issue on which we agree—that the process is at its start. Agreeing the devolution deal is not the sum total of what will be done. The Government’s ambition, which I hope is shared by local areas, is for devolution to continue; they want additional powers to be devolved and the areas in question to identify additional opportunities, which, in discussion with the Government, can be delivered into local hands to drive economic growth.

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I appreciate the Minister’s point about the process being an ongoing one, but is not there something odd about the fact that the Committee is here to agree a statutory instrument about a Mayor when we do not really know what powers there will be? There will be a further statutory instrument in the autumn. I know there is a consultation document, but it seems we are putting the cart before the horse in agreeing to a Mayor before we even discuss their powers.

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I do not agree. There is a deal document that is very clear about the powers that the Mayor will have. I am saying that there will be an opportunity for the local area and leaders to ask for further rounds of powers, if they want to. The measure is about establishing the framework through which they can be delivered, and about a process that is taking place—and has taken place—in all the areas that have agreed to such deals. This week, as I have done in previous weeks, I will be dealing with other statutory instruments of this type. If we do not put the mechanism in place, there will be nothing to which to devolve further powers. We know what is in the deal now. We know that there is ambition to go further, and I welcome those discussions. We know the agreed mechanism by which that can be done. That is entirely the right approach.

The hon. Member for Darlington asked about the Tees Valley and she is right; I would tend to use the term “Teesside”. But of course that does not include Darlington, as I know she is aware, and we are talking about a devolution area which was proposed by local authority leaders, not Government, and which does include Darlington. Therefore, the label that applies is Tees Valley, whether people like it or not. However, I want to make it clear to her that I maintain the view that the local airport should be named Teesside airport rather than Durham Tees Valley. It is a campaign with which I had rather limited success; however, I should welcome her support for that if she were minded to offer it.

The hon. Lady also asked about the Mayor’s salary and the mechanism for it. The Mayor’s remuneration would be a matter to be devolved locally. The local combined authority would take advice, of course, from the independent body on those matters, as happens for councillors’ allowances, but that would be for local determination. It will, I have no doubt—although I do not want to prejudge what it might be—be significantly less than the £15 million a year that will be brought to the area as a result of the deal, and if it were not I would join her in protesting about the proposed level of remuneration. I think it is unlikely to be of such a scale, or anywhere near it.

The hon. Lady also raised concerns about a single voice for different areas, and I do not think there is great disagreement between us on that, at least as far as recognising that many different communities and identities are contained in the area described as the Tees Valley. What we are doing is not about overriding or diluting those identities; it is about recognising that there are some things that are better done at a broader level, looking at the local economy and economic factors as a whole. The Tees Valley is a sensible economic area and was determined by local authority leaders. When the Government examined it, it stacked up and made sense, and met the criteria that we would expect, to be suitable for devolution. That in no way undermines or replaces pre-existing local identities, whether towns, villages, boroughs or other levels in the communities that make up the area.

What we are considering is an important step for the Tees Valley. It is a significant opportunity to transfer powers to local people to determine their economic future. I welcome it. We have had a helpful and broad-ranging discussion about the order’s implications and I hope that the Committee will support it.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Tees Valley Combined Authority (Election of Mayor) Order 2016.

Committee rose.

draft Telecommunications Restriction Orders (Custodial Institutions) (england and wales) regulations 2016

The Committee consisted of the following Members:

Chair: Albert Owen

† Allen, Heidi (South Cambridgeshire) (Con)

† Burns, Sir Simon (Chelmsford) (Con)

† Burrowes, Mr David (Enfield, Southgate) (Con)

Creasy, Stella (Walthamstow) (Lab/Co-op)

† Elphicke, Charlie (Lord Commissioner of Her Majesty's Treasury)

† Ghani, Nusrat (Wealden) (Con)

† Harris, Carolyn (Swansea East) (Lab)

† Hayes, Mr John (Minister for Security)

Holloway, Mr Adam (Gravesham) (Con)

† Hunt, Tristram (Stoke-on-Trent Central) (Lab)

† Lefroy, Jeremy (Stafford) (Con)

Robinson, Mr Geoffrey (Coventry North West) (Lab)

Shuker, Mr Gavin (Luton South) (Lab/Co-op)

† Smith, Jeff (Manchester, Withington) (Lab)

† Stephenson, Andrew (Pendle) (Con)

† Vickers, Martin (Cleethorpes) (Con)

Glenn McKee, Committee Clerk

† attended the Committee

Second Delegated Legislation Committee

Tuesday 12 July 2016

[Albert Owen in the Chair]

Draft Telecommunications Restriction Orders (Custodial Institutions) (England and Wales) Regulations 2016

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I beg to move,

That the Committee has considered the draft Telecommunications Restriction Orders (Custodial Institutions) (England and Wales) Regulations 2016.

It is a pleasure to serve under your chairmanship again, Mr Owen, following the time we spent together on the Investigatory Powers Bill.

The regulations were laid before the House on 24 May, and I am satisfied that they are fully compatible with our obligations under the European convention on human rights. It is important to say just one or two things about the context. You will know, Mr Owen, that the ownership and use of mobile phones in prison is already illegal. Unfortunately, notwithstanding that, the evidence suggests that some prisoners continue to use mobile phones while behind bars and, more than that, they continue to be engaged in criminal enterprises, including offending, by means of modern communications.

There have been a number of recent convictions where prisoners have used mobile phones to commit a wide range of very serious crimes, such as importing automatic firearms and drugs. Indeed, in 2015 a prisoner received a 19-year sentence for using a mobile phone to orchestrate the supply of class A drugs. Mobile phones are also used for planning and plotting violent crimes. There are examples of their being used for intimidation and harassment. In essence, it is clear to the Government, as I think it will be to the Committee, that we need to take further steps.

As I said, the possession and use of a mobile phone in prison is already a criminal offence. The National Offender Management Service already uses a range of measures to prevent mobile phones from getting into prisons and to seize them when they do. To give hon. Members some feeling for the scale of the problem, in 2013 NOMS recovered more than 7,400 handsets and SIM cards from its estate. In 2014 the number of devices seized increased by 30% to 9,745. That is the equivalent of one seizure for every hour of the year, which it is fair to say is a truly remarkable figure.

We need to do more to ensure that we can prevent the use of mobile phones by prisoners without taking possession of the phone. A new, cost-effective approach is also needed to augment and strengthen the existing measures.

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My right hon. Friend is making a compelling case for the need for the regulations, and he is absolutely right that they must be effective. Can he share with the Committee how he plans to measure their effectiveness once implemented, so that they do what they are designed to achieve?

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I asked the same question. My right hon. Friend is an immensely experienced parliamentarian with an eagle eye for these things. He will know that it is all very well to pass regulations, but unless we know that they will work, that does not mean a lot. Of course, there is the contextual point, and no doubt the hon. Member for Swansea East, in what I think is her first encounter of this kind, will want to ask questions on this as well. The problem is that if I am right about the context—the figures suggest that I am—and the problem is growing and the number rising, how do we chart what difference these measures make against that backdrop?

The answer, I think, is that we need to put in place— I am happy to commit to this now—a review of the effect of the regulations that involves prisoners themselves, through prison governors. We should involve the National Crime Agency, which of course will be associated with this, and the police, and I think that we should have the engagement of the prisoner community itself. By a variety of means we should conduct a review. On the basis of that review, we should consider the effectiveness of the regulations, and clearly that would mean that if we felt that they had not had an effect or we needed to do more, we would do more. I am more than happy to commit to that now, in the course of this Committee. As I have said, I have no doubt that the hon. Lady will want to question me further on that.

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Presumably the Minister will be able to tell the Committee how far the range will extend when these blockers are installed in prisons. Will that affect local communities around prisons?

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That in itself is an interesting point. The hon. Lady is absolutely right that that is one of the challenges technologically. We have been engaged with mobile phone operators on this, and I held a roundtable event at the Ministry of Justice with my right hon. Friend the Minister for Prisons very recently. One of the challenges is finding a technological solution that does not have unintended consequences of the kind the hon. Lady describes. Part of that review was to look at the changing character of technology, which of course is by its nature dynamic, to ensure[Interruption.]

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Order. We will have one person speaking at a time.

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I will come back to my hon. Friend the Member for Enfield, Southgate, who I think might be indicating that he is going to intervene, but first I want to finish answering the question from the hon. Lady, as my hon. Friend would expect me to do as a matter of courtesy, chivalry and parliamentary practice.

The review will also need to engage the service providers, who will have to give us a view on whether the measures that they are being asked to put in place—for that is what this order does; it asks them to put measures in place—are fit for purpose, and whether technological changes necessitate a fresh approach. The hon. Lady is absolutely right that that must be part of the review, and I committed to that in my answer to my right hon. Friend the Member for Chelmsford.

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I serve as a criminal defence solicitor and see clients who will be affected by these regulations, which I welcome. I am particularly concerned about the prevalence of drugs in institutions. I want to focus on the types of institutions that will be subject to the regulations. Can the Minister confirm whether they will extend to other institutions where there are detainees, such as mental health hospitals? In those institutions people are also under an order and subject to detention, and mobile phones are particularly prevalent, so there will be an impact. Can the Minister also confirm that this will not extend to the immigration detention estate?

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I asked those questions too when preparing for this short debate. In the course of my remarks, I will happily make clear the answers to those pertinent inquiries. The issue is of course most acute in the prison estate itself. The alarming thing—I think it is fair to be absolutely open with the Committee—is how apparently easy it is to smuggle those kinds of goods into prison. Of course, a SIM card is a tiny thing. There are even examples of devices being thrown over prison walls, and smuggling a very large number of very small SIM cards into and out of prisons has become something of a specialism for certain people. I am baring my soul to the Committee, but that is the way a Minister should behave among colleagues, because it is important that they know what I have asked of my officials.

My other question was whether it is possible to find a straightforward way of doing this merely by prison staff searching prisoners, dealing with visitors more effectively, checking cells and so on. However, given the sort of numbers I have mentioned, the logistics of that would of course make it extremely difficult. The business of switching SIM cards between phones, and indeed switching phones between prisoners, means that no prisoner is using the same SIM card on any consecutive days. Essentially, the trading of phones between prisoners, the movement of SIM cards and the business of bringing them into and out of the prison are such that simply putting in place a series of protocols, measures or disciplines in the prison would be insufficient to deal with this. We need to find a technological solution that is more comprehensive in its effect, which is precisely what these regulations do.

I turn now to the draft regulations, as I do not want to detain the Committee unduly, even though we are having this interesting and useful discussion. The draft regulations allow NOMS and other law enforcement bodies to apply to the county court for a telecommunications restriction order. If the court is satisfied, on the balance of probabilities, that the handsets and SIM cards specified in the application are in use and inside a prison, they will make a telecommunications restriction order. The terms of the order will require the mobile network operators to take whatever action the order specifies to prevent or restrict the use of those handsets and SIM cards. In practice, the operators will blacklist the handsets, which will prevent the handset from connecting to the mobile network, irrespective of the SIM card inside that handset, and disconnect the SIM cards that are identified in the application from the mobile network.

The blacklisting of handsets and disconnection of SIM cards found to be operating without authority inside prisons will therefore allow us to take much more decisive, comprehensive and effective action against the use of mobiles that are doing the damage I described earlier.

The emphasis on asking the providers to engage in this process will rightly prompt members of the Committee to ask what view the providers take. I assure the Committee that this order has been brought to the House after extensive discussions with providers to ensure that they are satisfied that the measures contained herein will do the job that they are supposed to.

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For obvious reasons, I have had this discussion with several prison governors, and some see it as a much larger problem than others. For example, a women’s prison I visited recently said that there was no problem with mobile phones. In fact, only one had been confiscated in the last year. Will the cost of this be borne right across the Prison Service? Will prisons be expected to cut other budgets in order to pay for this technology?

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The hon. Lady makes a valid point. Let me be clear about the priority here, which is those institutions where we know there is a profound, serious, compelling problem. I have mentioned some figures, but I cannot give the latest data, given that it is not yet publicly available. I assure the hon. Lady that this is a growing problem. We know that, year on year, the use of mobile phones is growing—despite all the good practice of prison governors, by the way; this is by no means an indictment of their management. We know, too, as I have already described, that phones are being used to facilitate a large number of very serious crimes. The hon. Lady is right that that will vary to some extent from place to place. Of course, the nature of the order is that a TRO will be applied for only when we know there is good reason to do so. In that sense, it is specific to the problems she sets out. If an order is necessary it will be brought forward, and the judge must be satisfied that it is proportionate and, on the balance of probabilities, the right thing to do. There is due process associated with this: it is not a question simply of applying the regulations without consideration of where they are needed and why.

On the funding issue she raised, NOMS has secured funding centrally to operate the measure, so there will be additional money.

On the issue that my hon. Friend the Member for Enfield, Southgate raised, the regulations apply only to custodial institutions. I take my hon. Friend’s point that there may be a good case to look more widely, if we can find evidence that mobile phones are being used for malevolent purposes elsewhere. As I said to the hon. Lady, this is about application based on need. Nevertheless, I would not want to ignore the implications of my hon. Friend’s remarks, and I will go away and look at that. It is not contained in this order, but he makes a valid point. If we find, on analysis, that there is a need to look at the issue more closely, we certainly will.

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I actually want a proportionate approach. I certainly do not want the measure to be extended to the immigration removal centre for those who are not convicted prisoners, and I am concerned that there would be an extension. It needs to be dealt with proportionately. Having said that, in my local hospital, there is a forensic wing for convicted prisoners who are subject to a hospital order, and that could be a good case in which access to mobile phones should be prevented.

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I am little surprised by what my hon. Friend said. He makes a reasonable point. All of this could be tested against the actuality of the problem. The regulations are not blanket provisions; they are provisions based on need. My hon. Friend makes a valid point, and I am happy to build that into our further consideration.

I have set out the importance of the regulations, but it is right, too, that there are safeguards. We need to be able to disapply the order if mistakes are made and if anyone is affected in error. That is another point on which I am sure the hon. Member for Swansea East wants to be assured. We want to ensure that if someone is wrongly affected by a telecommunications restriction order, it can be disapplied quickly and they can be reconnected to the network. I want to put in place an additional safeguard to ensure that there is independent and transparent scrutiny of the measures, so I have provided that the use of the regulations will be overseen by the proposed Investigatory Powers Commissioner when the Investigatory Powers Bill receives Royal Assent.

With that introductory explanation of why we are doing what we are doing, I happily commend the regulations to the Committee.

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It is a pleasure to serve under your chairmanship, Mr Owen. If hon. Members will forgive me, this may be a very short-lived appointment so I am going to make the most of it and actually speak out.

Mobile phones are brought into prisons primarily to carry out illegal activity. At a recent inspection of Her Majesty’s Prison Lindholme in Doncaster, 67 mobile phones, 145 SIM cards and a kilo of psychoactive substances were confiscated in just one month. Mobile phones in prison are a major concern and facilitate the introduction of illegal contraband, such as Spice, into the prison system. I recently visited several prisons, where I spoke to staff who informed me that the prevalence of contraband for smoking hung so heavy in the air on some wings that they could actually taste the atmosphere. They added that the use of mobile phones was primarily the cause of the stuff getting into the prison system.

The Government’s argument is absolutely correct. If we could make mobile phones in prison an impossibility, the effectiveness of contraband smuggling would diminish. I have alluded to the fact that not all prisons are affected by the problem and I am satisfied with the Minister’s reasoning on that. However, for prisons that do experience the problem, it is an epidemic and a serious problem.

As we learnt from the recent inspection at Her Majesty’s Prison Lindholme, the smuggling of technology is creative, and the result can be quite prolific. This week, the Daily Mirror reported that a prisoner in Her Majesty’s Prison Wandsworth used a mobile phone to post videos of his cell on Snapchat, and boasted about the availability of drugs and weapons inside. His cellmate was found to be posting selfies online from inside his cell. We have to look at the blockers as essential for some prisons, but should tailor our reactions accordingly, and I am sure that applying to courts for a restriction order will adequately provide for that.

Over the past few months, one thing I have noted when visiting prisons—especially women’s prisons—is that there is a problem with the cost of phone calls. Perhaps the Minister could share those concerns with his colleagues in the Ministry of Justice. Things are especially hard for women who have to keep in touch with their families, or control them with a long arm. They tell me that they have to put as much as £40 a week on the cards because the call charges from prison are so much more expensive than a phone contract would be. Although smuggling of phones was not an issue in the female prison I visited, I fear it may become one because women need to keep in touch with their families.

The majority of mobile phones smuggled into prisons are brought in to organise deliveries of contraband. Their presence is facilitating illegal activities, but it also makes a mockery of the custodial system if prisoners are using mobile phones to advertise their accommodation and activity to the outside world. That must be remedied as a matter of urgency.

A major concern is that technology advances so rapidly, so we need assurances that blockers are reviewed regularly. Everything should be done to ensure that is done annually, rather than over any longer period. By the time network signal blocking devices are installed in prisons, somebody will have found a way around the obstacle. They will undoubtedly find a loophole.

Another area of concern is BlackBerry Messenger, which I understand does not need a wi-fi or phone signal to transfer messages. It works via Bluetooth, so perhaps the next step should be to look into blocking the Bluetooth network. I am led to believe that prisoners have been able to get messages to the outside world using BlackBerry Messenger.

As long as we have assurances that the system will be effective and will be monitored in as fireproof a way as possible, the Opposition will not oppose the orders.

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I will be brief. I am grateful to the hon. Lady for her contribution, particularly as this is her first performance, if I can put it that way, in a statutory instrument Committee—

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Her first intervention.

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I like to think of these things in theatrical terms, as you know, Mr Owen. I am grateful for the tone and spirit of what she said, as well as for the inquiries she made. Let me be clear: she is right that the issue is not only about crime. It is about crime, as she said, but it is also about the system being made a mockery of. Prisoners are using Twitter and Facebook in a way that makes prison authorities look foolish. It can be worse than that. They can send all kinds of messages over those media of a most unpleasant nature—I mentioned harassment and so on earlier.

The hon. Lady is right that, as I said in answer to my right hon. Friend the Member for Chelmsford, we need to be open-minded about how the system develops and how the technology changes. In the form in which it has been introduced to the Committee and the House, the instrument is a means by which we can cut off handsets and SIMs, but I take the hon. Lady’s point that we will need to review that over time, which is precisely why I committed to do what my right hon. Friend asked me to do.

I shall now give some detail on that commitment. My officials will not like this, but that is not a problem because the Ministers make the decisions. I suggest that we complete the review by the end of 2017, and that I, or whoever is Minister then, write to the House with the details of that review. The review should encompass all that I described, including the National Crime Agency, the police, the prison authorities—NOMS will clearly be closely involved—and the telecommunications operators, who Members from both sides of the House suggested will need to be involved. It will be based on an analysis of whether we need to go further both technologically and in terms of the prison estate, as my hon. Friend the Member for Enfield, Southgate said.

Let us commit to that on the basis of what has been discussed in this brief debate. So that right hon. and hon. Members can go about their daily business, I draw my remarks to a close.

Question put and agreed to.

9.19 am

Committee rose.

Draft Nuclear Industries Security (Amendment) Regulations 2016

The Committee consisted of the following Members:

Chair: Mr Andrew Turner

† Allen, Mr Graham (Nottingham North) (Lab)

† Bruce, Fiona (Congleton) (Con)

† Davies, Byron (Gower) (Con)

† Gardiner, Barry (Brent North) (Lab)

† Garnier, Mark (Wyre Forest) (Con)

† Gibson, Patricia (North Ayrshire and Arran) (SNP)

† Green, Chris (Bolton West) (Con)

† Jenkyns, Andrea (Morley and Outwood) (Con)

† Jones, Mr Kevan (North Durham) (Lab)

† Leadsom, Andrea (Minister of State, Department of Energy and Climate Change)

† Lee, Dr Phillip (Bracknell) (Con)

† Lynch, Holly (Halifax) (Lab)

† McDonagh, Siobhain (Mitcham and Morden) (Lab)

† Murray, Mrs Sheryll (South East Cornwall) (Con)

† Pickles, Sir Eric (Brentwood and Ongar) (Con)

† Smith, Julian (Skipton and Ripon) (Con)

† Thompson, Owen (Midlothian) (SNP)

† Timms, Stephen (East Ham) (Lab)

Glenn McKee, Committee Clerk

† attended the Committee

Fourth Delegated Legislation Committee

Tuesday 12 July 2016

[Mr Andrew Turner in the Chair]

Draft Nuclear Industries Security (Amendment) Regulations 2016

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I beg to move,

That the Committee has considered the draft Nuclear Industries Security (Amendment) Regulations 2016.

It is a great pleasure to serve under your chairmanship, Mr Turner.

The UK is highly regarded by the International Atomic Energy Agency and other key international partners in civil nuclear security. We take our international role in this field very seriously, including with regards to regulation. The draft regulations before the Committee will update the Nuclear Industries Security Regulations 2003. Specifically, regulation 2(1), in the definition of transport, removes sub-paragraph (i) and adds references to air transport to regulation 3(5)(b).

The effect of these amendments is to bring the transport of civil nuclear material by air within the same stringent regulatory framework for security that applies to the transport of such material by land or sea. That means that the independent Office for Nuclear Regulation will have the same oversight and approval function in relation to the security of civil nuclear material transported by air as it has in relation to the transport of such material by land or sea.

There are two main reasons for making these amendments to the regulations. The first is that the UK is a party to an international treaty, the convention on the physical protection of nuclear material, which came into force in 1991 and was amended in 2005. The convention requires signatories to have in place a legislative and regulatory regime to ensure the security of civil nuclear materials stored or transported in that state.

The Nuclear Industries Security Regulations 2003 are the primary means by which the UK has implemented that obligation under the convention. When those regulations were first written, the transportation of nuclear material by air was not considered to be an option, so air transport was excluded from the scope of the regulations. As our work on decommissioning has gathered pace, we revisited our legislative and regulatory regime for ensuring the security of civil nuclear materials, and determined that the regime should apply to all potential forms of transport. Making these amendments to the regulations, to extend the regulatory regime that exists in the 2003 regulations to cover the transport of nuclear materials by air, will help to ensure that the UK gives full effect to the convention.

That brings me to the second reason for making these changes: our domestic considerations. Amending the regulations will allow us to consider all credible options when planning moves of nuclear material to ensure that we make the right operational decision with regards to both safety and security. Nuclear material can be safely and securely transported by air and it is right that our regulatory framework facilitates that. Air transport of nuclear material is already an established method of transport internationally. These amendments simply mean that civil nuclear material transported by air from or within the UK will now be subject to the same regulatory regime in relation to security as such transports by land or sea within the UK.

These regulations will also ensure that the independent Office for Nuclear Regulation will be involved with, and will oversee, the security arrangements for any air movements that take place. As such, the regulations will make the transportation of civil nuclear materials more secure. In practice, this means that the Office for Nuclear Regulation will be responsible for approving transport security statements and transport security plans for all carriers of civil nuclear material by air, as it does for carriers involved in the movement of civil nuclear material by road or rail that currently takes place. In drafting the regulations we have consulted the Office for Nuclear Regulation and it is content with them.

On a practical level, the regulations will let us better address the current challenges. In late 2015, we began a programme of moves to remove nuclear material from the Dounreay nuclear site in northern Scotland. The programme is of great importance and will help to ensure the long-term safe and secure management and treatment of that nuclear material, by storing it in the most appropriate place. As part of the programme, the Prime Minister announced earlier this year that the UK Government had reached a landmark agreement with the United States and the European Union on a multilateral swap of nuclear material. Under the terms of the agreement, the UK will transfer almost 700 kg of excess highly enriched uranium from Dounreay to the United States. In return, the US will send nuclear material to the European Atomic Energy Community, which will be used in the production of medical isotopes, for use in Britain and other European countries.

That agreement is groundbreaking. It will see nuclear material that we no longer need being exchanged for material that could save many lives. In order to complete the operation in the safest and most secure way, we need to be able to consider all transport options seriously. Without an appropriate regulatory regime, air transport may not be a legitimate option. While we cannot disclose timings or methods of transport that will be used in any future moves of civil nuclear material, the amendments made by these regulations will allow us to consider all potential options. I sincerely hope that the regulations will be approved, as they will help to ensure that any movement of nuclear material by air is regulated appropriately and carried out securely. I therefore commend the regulations to the Committee.

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As always, Mr Turner, it is a great pleasure to serve under your chairmanship. The statutory instrument does exactly what the hon. Lady has said it does. A number of questions are raised by her comments, and I move to those straightaway.

The threshold for bringing the amendment to the CPPNM into force was reached on 8 April 2016. The amendment to the convention was secured on that date. It is now 12 July. Will the hon. Lady confirm that we are in breach, and what the effect of that might be?

Since 2003, the Nuclear Industries Security Regulations, which this statutory instrument seeks to amend, have been the primary means under which we have kept to our obligations. The 2003 regulations should of course be updated to include transport by air. I am grateful for the hon. Lady’s explanation that, in 2003, it was not envisaged that transport would be made by air and so the 2003 regulations did not include that provision—despite the fact that the convention, which we adopted in 1980 and which entered into force in 1987, did require security to be guaranteed for international transport, including air travel.

It is of concern that, since 8 May—when the amendment to the CPPNM took effect—we have been in breach of our duties to ensure a competent authority has fully implemented our obligations under the CPPNM. If we were legislating on a purely academic basis, to cover all the bases, that would be one thing, but I am even more concerned to read in the explanatory memorandum that the transport of civil nuclear material by air is “uncommon”. That means that it has actually happened.

The Department says that it cannot reveal—the hon. Lady was clear in her remarks—the timings or details of future moves of the transportation of civil nuclear material. I am glad that she put in the word “future”, because the question that I wish to ask her is whether such movements have taken place by air in the past. I do not need to know the specific details, but I ask whether they have already taken place and whether the UK was therefore in breach of its obligations. I ask in particular about a possible breach of article 4(1) of the CPPNMN, which states:

“Each State Party shall not export or authorise the export of nuclear material unless the State Party has received assurances that such material will be protected during the international nuclear transport at the levels described in Annex I”.

It is deeply troubling that it appears that this statutory instrument is being used to close the door after the horse has bolted. Of course, the exchange of materials to which the hon. Lady alluded will have value and import and be worth while. I do not think that any of us would wish to resile from that. However, none of us would wish to entertain those exchanges being carried out, whether by air or not, without the appropriate regulatory oversight, which this statutory instrument would appear now to be trying to put in place.

Many communities will be deeply troubled if the implications of the Minister’s words and of my own surmise are in fact the case, and these transportations by air have taken place without the appropriate regulation and safeguards being in place. The hon. Lady said that security obligations are taken “very seriously”. I wrote it down; she said it. If my surmise is correct, it would appear that that statement is actually far from the truth.

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It is a great pleasure to serve under your chairmanship, Mr Turner. It does of course give you the opportunity to repay some of the generosity and the leeway that you received from the Chair of the Political and Constitutional Reform Committee for many years, of which you took full advantage. I will certainly attempt to do the same. It is also a great pleasure to see the Minister back in her place. Conservative polity’s loss is, I hope, early intervention’s gain. I am of course very pleased to see my Whip in place, and thank her for giving me the honour of serving on this Committee. That is clearly because the Whips Office felt that it was important that established Members could make a serious contribution to this Committee, and I hope that we will do that. There are plenty of years’ service on the Back Benches here.

My main concern as a layman, not knowing much about this technically, is public safety. The Minister has touched on that. Why would that be a particular concern in respect of aircraft movements rather than the other forms of transport? That is pretty obvious. It is because an accident involving an aircraft could be catastrophic in a way that one involving a road vehicle or even a sea container might not be. I quote one of the experts whom I dug out, a Mr John Large, who is an independent nuclear engineer. He said that an air crash could

“contaminate large tracts of land with potential radiological consequences for unprotected members of the public”.

We need to refer across from the civil, which this is about, to the military, where there have been many aircraft movements transporting military grade plutonium, tritium and enriched uranium. There have of course been exercises to see what might happen should something go wrong. I understand that in 2011 and 2012, “Astral Bend”, the code name for the exercise, imagined a leak of enriched uranium and plutonium spreading up to five kilometres across South Wales. Under questioning, a previous Minister of Defence revealed that 23 flights had carried defence nuclear materials in the last five years. My hon. Friend the Member for Brent North made an astute point about this, referring to the possibility of civil movements that may have already taken place and to civil uses of uranium. I urge him to press the Minister on that again, unless she can come up with an answer as to what has happened in respect of civil nuclear material transportation, because that is alarming. I have not found references to that happening before. If it does happen now—even in small numbers—it will be helpful for the Committee to know that before we make a decision on whether or not we note this statutory instrument.

Also, a stronger case needs to be made for the benefits of taking this extra risk. It was not envisaged when the regulations were first promulgated, so why now? Why do we need to have this extra risk by having the material flying around at high speeds above our heads and over built-up areas? Surely there is a greater risk carrying it in a plane. Is that not one of the reasons why there was no need for safeguards—it was regarded as unnecessary to transport such material by plane? The Government need to be clear with us on that.

My other concern is about the use of private companies to transport any nuclear materials by air. One assumes that that will be done under very tight regulations and that the flights will be strictly controlled by Government. Were we to see someone coming along and saying, “I can do this way cheaper than the Government aircraft, or possibly even military aircraft” because of some cost cutting or other, there would be an immense temptation in this era of austerity for people to have a bit of a punt, as they have done in a number of other areas, be it prisons or other sectors, where occasionally people do have lapses because they want to pursue the profit motive rather than 100% focusing on the public sector. I give way to my hon. Friend, who has far more expertise in this area.

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Does my hon. Friend know that there is a grey area? The Ministry of Defence now routinely charters aircraft, especially for heavy lift capability, because there are some cargoes that cannot be transported even with the suite of aircraft that the MOD has. Does he think that, if the MOD were subcontracting or hiring in a transport aircraft, that could also be a concern or need clarifying?

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My hon. Friend has hit the nail on the head. We need to have these matters clarified and I hope that the Minister can tell us or find inspiration to tell us that that is in fact the case.

The Ministry of Defence itself, when talking about military grade nuclear materials being transported, actually said—and we have to listen to these words carefully:

“in over 50 years of transporting defence nuclear materials in the UK, there has never been an incident that has posed any radiation hazard to the public or to the environment.”

One is forced to ask, “What were the non-radiation hazard incidents that took place?” It is common knowledge that a US plane lost a couple of nuclear devices in Spain, or near the coast of Spain. We need to be reassured when we are looking at issues as important as this about what the real facts are. I think we could then relax a little bit more and understand the safety regime, rather than being anxious about things that may not yet be in the public domain. Transparency is one of the most important things that the Minister can bring today. To finish on the joint question from my hon. Friend the Member for North Durham and myself about the use of private firms, if private firms get engaged in this, is that the prelude to a further possible privatisation? If that is a possibility, it is important the Government come back here to explain the regime they wish to use—whether a private charter or a private company—to transport these materials. That way, the whole House can understand how that may happen.

No impact assessment has been carried out, as far as I can tell, on the use of private firms or on the transport of civil nuclear material. I feel the Government may have missed an opportunity to future-proof their legislation by not having an impact assessment in place. I urge the Minister to ask officials whether that can be done even at this point, without delaying the statutory instrument, so that there can be a clear impact assessment. That may yet still be assisted if the consultation goes wider than the ONR and the Civil Aviation Authority. Many other interested bodies would like to say their piece on the matter. A wider consultation would reassure the public that everything possible has been done to ensure that the essential movement of nuclear material has to be carried out with public safety as 100%, rather than 95%, of that driver.

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My contribution will be relatively brief.

I share a number of the concerns of colleagues about safety. The regulations relate to civil materials, but a lot of comparisons can be drawn with the movement of military materials. For that reason, we should be looking at this from a different perspective and there should be a larger review of the issues. That is why I will not be able to support the regulations today.

We are looking at this issue from the wrong perspective. The Scottish Government have a policy for storing nuclear materials on site or as near to site as possible and to do whatever is possible to minimise their movement, given the concerns regarding safety and security when this sort of material is moved.

We hear of some instances when there are accidents. Thankfully, none has led to fatalities, but is that just good fortune? The consequences of something going wrong in the movement of the sort of materials we are discussing are so grave that we cannot afford to take any chances and must do whatever we can to ensure the safety and security of our populations. The Government need to go back and look at the regulations as a whole regarding the movement of both civil and military nuclear materials, take these things off the roads and make sure our populations are safe. For those reasons, I cannot support this—

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Of course, these days, sadly, we have to factor in—God forbid—an act of terrorism. So far, we have been talking about accidents. We have heard of road vehicles spinning on black ice and so on. Accidents can also happen in the air, but releasing a dirty cargo over an urban area would be a terrorist’s dream. Will the hon. Gentleman also underline our anxieties, particularly if private firms get involved, about the catastrophic consequences of such an act?

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I absolutely agree. It is no secret where this type of material comes from. It would not take a genius to sit outside and wait if they wanted to do so, to work out exactly when it was being moved. The best planning in the world can be put in place to maximise security around that, but anyone who wanted to could find a way of working out when this material was being moved. For those reasons, we need to take a completely new look at this and have an absolutely fresh start in how we move, monitor and deal with nuclear material.

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May I begin by saying what a pleasure it is to serve under your chairmanship, Mr Turner?

I broadly welcome the regulations, because it is a fact of life that nuclear material is transported by air. Anything that provides independent oversight has to be welcome. However, some questions need to be asked.

In her opening statement, the Minister referred to nuclear material from Dounreay, which is material that has been decommissioned from the nuclear process. Then she referred to the transportation of isotopes. From my previous life working with the nuclear industry, I know that there is a big difference between radioactive isotopes used for medical purposes and, for example, fuel rods and other things that are the by-products of the nuclear power industry. In her reply, will she give some definition of what type of material the regulations cover? Do they cover everything in terms of nuclear, from radioactive isotopes used for medical purposes right up to parts that have been decommissioned from Dounreay and other nuclear power stations? If she could give us the broad range of what the regulations cover, that would be helpful.

On the question raised by my hon. Friend the Member for Nottingham North, the explanatory notes state that most of this material would be transported by the Ministry of Defence. Paragraph 10.1 states:

“There is no expected impact on business, charities or voluntary bodies as the Department anticipates that only government assets and not those of private firms will be used to transport nuclear material by air.”

I know from my previous life in the Ministry of Defence that there is military assistance for civil powers for the transportation not just of nuclear material, but other things, by military assets. The costs are then recovered back from the Departments that incur them. Is it a fact that only Ministry of Defence assets will be used? I am not aware of any other Department that has air assets that are able to transport this type of material. Is it just Ministry of Defence aircraft that will be used for the transportation of this material? It would be helpful to have clarity on that.

On the point I raised with my hon. Friend the Member for Nottingham North, there is the issue of how we define what is a military aircraft. We have some very capable aircraft, thanks to the last Labour Government, who purchased the C-17, Voyager and other aircraft after many years of neglect in the Ministry of Defence’s investment in transport capability. However, the Ministry of Defence routinely leases aircraft from third parties, some of which are based in a variety of countries. For example, the main suppliers of heavy lift aircraft are Ukraine and some of the other former Soviet republics, because they have the Antonov and other aircraft, which are capable of carrying these large loads. If those are used, they do not have military pilots, navigators or crew. Do they come under the definition of a Ministry of Defence flight? What would happen in respect of the regulation covering those companies, which are hired on a case-by-case basis, and what would be their role? I may be wrong, and somebody may correct me, but I am not aware of any companies in this country that possess those large aircraft. They are mainly foreign companies, so it would be interesting to know what the relationship will be.

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I imagine that aircraft undertaking this particular task would have to be of a pretty high specification or possibly even purpose-built; this material cannot just be strapped into a passenger seat in a jumbo jet. Since there are relatively few movements of that nature, the financial temptation could be to have a private contractor that services many nations to keep such an item of kit airborne and to offer a competitive price, rather than each nation having its own military capability that would be barely or infrequently used. Is that not another reason to be careful, because privately owned aircraft, whether it is UPS or somebody else, could tailor-make a vehicle specifically for that purpose and trade it on a marked down price?

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That is a possibility. On the nature of the material that is going to be transported, I think my hon. Friend is right. I do not think we can strap things into seats in the back of commercial airliners; that is not the way it is done. From what I know, some of the flasks that are needed to protect this material from the impact of a crash need quite a large aircraft. Of the aircraft currently available to the Ministry of Defence, the only one that could possibly fit that would be the C-17, but I do not know whether even that could take it.

Are we going to allow private companies to hire in that type of aircraft, or is it—this might be a possibility—that we have a nation-to-nation agreement with, for example, the United States? It has things like the C-5 Galaxy, which can take larger loads than the C-17. It is a question of what that relationship would be. What discussions have there been with the Ministry of Defence about how the regulations will impact on its regulations in respect of carrying out this type of work? Those are areas that need to be explored.

Paragraph 10.3 of the explanatory notes states:

“The impact on the public sector is expected to be very limited.”

It is quite clear that, for security reasons, those aircraft will sometimes fly in and out of military bases that have security around them. On other occasions they will—and I know that they do—fly into civilian airports that are not run by the Ministry of Defence. For example, Newcastle airport, which I know well, is partly owned by the local authority in the area and partly by a private sector company. What effect will the regulations have on that airport in terms of how it handles the material once it lands? That is important. The explanatory notes say that there will be a “very limited” impact, but what discussions have taken place with civilian airports such as Newcastle if the material is going to be transported in and out of them? I personally see no reason why it should not be, but I would be interested to know what the impact on those airports will be in terms of knowing how to handle the material and how to handle the regulations.

The other issue, which is also in the explanatory notes, is the scope of the regulations. Clearly they cover Scotland, Northern Ireland, England and Wales. What discussions took place between the Government and the organisations that are responsible for environmental issues, such as the Scottish Environment Protection Agency and its equivalent in Wales, before the regulations were laid? Do they have concerns or are they content with the proposals? It would be interesting to know. If, heaven forbid, the situation that my hon. Friend the Member for Nottingham North raised did occur, the local response in Scotland would come from SEPA. I am sure that the Scottish Government would have an opinion on this issue, so what discussions have taken place with the Scottish Government? Are they content with the regulations? Clearly, with the decommissioning at Dounreay, there is a good chance that some of these flights will take off from Scottish soil, so again, what type of discussions have taken place and have any concerns been raised?

Finally, the regulations cover the home countries, but if we are talking about international travel, what is the position of our overseas territories? There may be the possibility of an emergency landing in Gibraltar or one of our other overseas territories—for example, the Isle of Man, especially given its close proximity to Sellafield, where some of this material will no doubt be coming in and going out of. What is the position of the regulations regarding other jurisdictions that are part of the United Kingdom but are not specifically laid out in the regulations? It would be interesting to know whether they cover those areas as well. I assume they do, but I would appreciate it if the Minister addressed that point.

In summary, I have no problem with the regulations. They are a sensible move forward, but my hon. Friend the Member for Brent North raises an interesting point in asking why they have not been introduced before. If the public are going to have confidence in the regulations, it is important that any concerns that are raised not just today, but in future, are dealt with publicly. I am aware of the steps that are taken when military nuclear material is transported, and I can say to my hon. Friend the Member for Nottingham North that it is not simply a case of putting it in a bucket or cardboard container and putting it on an aeroplane; measures are taken so that even if there is a crash, things are in place to ensure that there is not a leak of material, but I understand people’s concerns. When we are doing this, we have to reassure not just our constituents, but the wider public. We do not want to breach security and the Minister is right not to go into that area, but I think some broader reassurance is needed.

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The public are deeply concerned about the transportation of nuclear material through residential streets by vehicles. We hear that and we understand it. How do we imagine the public would react to nuclear materials criss-crossing the skies over their towns and cities? I think we can all imagine that the public reaction would be one of great fear and alarm, quite understandably and justifiably.

The hon. Member for Brent North made an excellent point earlier. There is a question about the wording of the document. Perhaps it is just semantics and the way the document has been written, but there is a concern about whether this has already happened. If it has, why are we hearing about it now? Is there some national security reason why we cannot hear about it? I doubt that very much.

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That is the point I was making, in terms of where the regulations meet, for example, the Ministry of Defence’s responsibilities. I do not think it is a great secret that the Ministry of Defence already transports nuclear material. The interface between the two will be important in knowing what the crossover is, and what the new future is. Who actually has supremacy regarding the regulations that govern that, whether it is civilian nuclear material or military nuclear material?

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If this stuff is going to be transported by air—I will say more about that in a minute—I think the public really have a right to know. They will be quite justifiably angry and will feel let down if this has been going on and they were not party to that information. We are talking about potentially extremely serious consequences if things go wrong. Sod’s law is that eventually, no matter what regulations are put in place, things can go wrong, and quite often, they are not the things that are expected to go wrong.

I want to draw attention to a point my hon. Friend the Member for Midlothian made earlier. The Scottish Government’s policy on the transportation of nuclear waste is that it should be near surface and near site, storage and/or disposal facilities, where the waste can be monitored and retrieved if required, and the need for transportation over long distances can be minimised.

I would imagine, although I do not know for sure, that if nuclear materials are transported by air, it will, by definition, be a long distance, otherwise they would not be transported that way. I am concerned about the length of these distances and why we are moving from the current system to try and include air travel, which is fraught with danger.

I also ask the Minister to what extent, if at all, the Scottish Government have been consulted on these points. Have they simply been notified or have they not been notified? What input have we had from SEPA? I would like answers to these questions, because we are talking about public safety, which is really important. The transportation of nuclear materials is already a cause of alarm among the public. This will do nothing to allay those fears; in fact, it can only increase them.

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I am grateful to all colleagues for their contributions. As they have all rightly pointed out, this is a matter of the utmost importance. Reassuring members of the public is absolutely vital, and I take this incredibly seriously.

It has been suggested—and rebutted—a number of times that nuclear materials would be strapped into a passenger seat. Can I reassure anybody listening that that could not be further from the truth? This is one of the most serious aspects of governance and security. The greatest precautions are taken.

All hon. Members were right to raise their concerns and I will try to whistle through the answers to all their questions. I think I have them all here and obviously I am happy to answer any further questions. Specifically, I can tell the hon. Member for Brent North that we brought forward the regulations as soon as we became aware not that there was a gap in what we were doing, but that there was the potential for a gap in the regulatory regime. There are no specific consequences set out in the convention for failing to comply fully by having these regulations, but we are committed to being in full compliance.

A number of Members asked whether we have ever moved civil nuclear material by air before. It has been moved once by air in the UK in 2010. Although there was no specific regulatory regime in place, the air movement in 2010 was conducted under the auspices of the Office for Nuclear Regulation, with all the appropriate safety and emergency response arrangements implemented. We recognise that a formal regulatory structure is necessary and that is exactly what we are legislating for.

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The hon. Lady has explained that this took place in 2010, and I am grateful for that clarification. The obvious question that follows is this: why has it taken five and a half years, given that she said the Government wanted to plug that gap as soon as they found out they were in breach? They must have known five and a half years ago that they were in breach. Again, the reassurances that the hon. Lady is giving us do not necessarily match up with the facts that she is telling us.

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It was not understood at the time that a specific regulation—the actual writing of the rules—was required. Today’s debate is a further look at the rules. My Department has looked again at the legislation and concluded that, for completeness, the regulatory environment should be extended to include air transportation. However, I want to be very clear that the actual carrying out of the one movement in 2010 was done absolutely in accordance with all our regulatory and safety and security principles and supervised by the Office for Nuclear Regulation.

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Surely the point is that this statutory instrument, if passed, will give the authority the regulatory powers. The hon. Lady gives us a partial reassurance that it supervised what happened, but the point remains that it did not have regulatory powers at that stage, because that is what is being granted here today—if it is. Therefore, I am indeed surprised that it has taken five and a half years for the Government to wake up to the fact that they conducted this transportation of civil nuclear material and were known to have done so by an authority, but not by a competent authority. In knowing that it was not a competent authority, why were those regulations not then put in place?

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Just to be very clear for the hon. Gentleman, at that time it was not believed that this regulation was identified as necessary. It is from a more recent look at the regulation that the Department has decided that this regulation should be put in place in order to be completely in line with the convention. It is not that there was some sweeping under the carpet or whatever; it was only identified more recently that this regulation should be put in place. That is what the Department has done: to act as quickly as possible to put that in place. At no time was there any sense, in reality or otherwise, that the one air movement was not carried out under the auspices, guidance and absolute control of the Office for Nuclear Regulation. The hon. Gentleman is talking about the interpretation of whether the regulations needed to be updated then, and the understanding was that they did not, but a more recent look has suggested that in fact it would be appropriate for the regulations to be updated.

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rose

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I will give way one final time. I think I have answered the hon. Gentleman.

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It is indeed the case that the convention, when it entered into force in 1987, stipulated that it required security to be guaranteed for international transport, including air travel. Therefore, will the hon. Lady do two things? Will she enlighten us as to whether the movement that took place in 2010 was international travel and will she tell us—I think she owes us this at least—the date upon which it was realised that these regulations needed to be updated in this way? That is so that the Committee can make a judgment for itself as to whether the Government acted in a timely fashion.

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In answer to the hon. Gentleman’s first point, I am afraid I will not give him the answer he seeks about where material was transported to, because that would not—

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I did not ask that. I asked whether it was—

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I will not answer the hon. Gentleman, because the fact is that we keep all issues of specific operations absolutely confidential.

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rose

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No, I am sorry, I will not give way to the hon. Gentleman again. I have answered his questions absolutely openly and transparently. What I am saying to him is that it is not a matter of realising we were in breach; it is a matter of a more recent look that has decided that, for completeness, these regulations should be updated. He is trying to suggest that there has been some sort of coming to the game late, and that is not the case. This is a case of a more recent review of the regulations suggesting that this should be carried out for completeness. That is the end. That is all I am prepared to say on the matter. I will now move on to the other questions.

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Will the hon. Lady give way on that point?

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No, I am sorry. I have completely answered the question.

The hon. Member for Nottingham North asked about the safety of moving nuclear material by air. The Office for Nuclear Regulation would always need to be assured of the robustness of not just the packaging, but all safety arrangements, before any movement by air could take place. All these amendments do is change the regulation of security. The existing safety framework remains completely unchanged. Nothing is changing other than the regulation of security.

The hon. Member for Nottingham North also raised the question of the Ministry of Defence moving material by air, and asked how that differs and whether it has been breaking the international convention. What I can say is that the transportation of nuclear materials for the purposes of the Ministry of Defence is not covered by the convention on the physical protection of nuclear material or the nuclear industry’s security regulations; it is an entirely separate matter, and outside the remit of this piece of legislation.

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If the Minister does not know the answer to this question, perhaps she can write to us afterwards. At Dounreay, for example, where there is plutonium, there is a difficulty in determining whether it is a by-product of the civilian nuclear process or whether it will go down the other stream and into our nuclear weapons programme. Is the Minister saying that if this material is deemed to be military it would therefore fall under one regulation, but for this purpose it would go down the other route if it was for civilian use? That would affect what she just told us about the regulations on the transportation of this material. It could be the same material but possibly have different owners.

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The hon. Gentleman’s interpretation is correct. First of all, material is identified as being under the auspices of either the MOD or the civil nuclear programme, and the regulation is dealt with accordingly. As I have said, the Ministry of Defence is not covered by either the convention or the Nuclear Industries Security Regulations 2003—it has its own regime—so the definition of which material comes under which regime is something that needs to be identified.

The hon. Member for Nottingham North also asked who moves the material. The amendments to the regulations bring the transport of civil nuclear materials by air clearly under the regulation of the Office for Nuclear Regulation. They do not state what specific organisations will move material. As I say, for security reasons we do not comment on operational decisions made for the specific transport of material, but any organisation carrying out the transportation of nuclear material to, from or within UK airspace would need to be approved as a carrier by the Office for Nuclear Regulation and regulated accordingly.

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Will the hon. Lady give way?

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No, I am going to answer the question about who transports nuclear material, and then the hon. Gentleman may intervene. The hon. Member for Nottingham North asked whether civilian airlines could transport nuclear material. The Office for Nuclear Regulation would be entirely responsible for approving the transport security statement and plans, so no one would be able to fly material without the approval of the Office for Nuclear Regulation. We do not believe that there are any commercial carriers that are capable of securely carrying civil nuclear material, or that currently do so.

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I am a bit perplexed by that, because the explanatory memorandum states that:

“There is no expected impact on business, charities or voluntary bodies as the Department anticipates that only government assets and not those of private firms will be used to transport nuclear material by air”.

Is the Minister saying that the only people who will transport nuclear material will be the Ministry of Defence? I am not aware that her Department, or anyone else, has the transport assets to do that. Perhaps the Minister will come on to this, but could she also answer the point I raised about the MOD subcontracting to private firms?

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As I have already mentioned a couple of times, for security reasons we cannot comment or speculate on different methods of transport, other than to say that the Office for Nuclear Regulation is entirely responsible for the transport plans. As I have already made clear, we do not believe that any commercial transportation group is capable of transferring civil nuclear material, but it is for the Office for Nuclear Regulation to determine all those plans, including the regulation of those who are authorised to carry out the transportation. That includes the vetting of the individuals, the security of the personnel, the security of the vehicles used and the training regimes that are in place.

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I thank the Minister for her answers to my questions. Of course, right now there will not be a civil aviation market for transporting this material, because this has not been going on very much. If air traffic increases, not least because of these regulations, it may start to be an attractive proposition to some people in the civil aviation market. My question becomes relevant at that point. Are we absolutely confident that those people will be held to account and regulated in such a way that in the worst possible case they will as far as possible be terrorist-proof against people who might want to explode one of these things? That is why we have not done this before; it is an enormous risk. Are we absolutely certain that the risk will be minimised as much as humanly possible if civil airlines undertake this traffic?

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Again, I absolutely respect the hon. Gentleman’s concern and I absolutely share it. First, this is not something that would happen every day. Having looked as a Minister at some of these transportations, I know that the amount of planning is vast, as can be imagined. It is extremely carefully and rigorously carried out by the Office for Nuclear Regulation, which exists to regulate nuclear matters—nothing else. I can absolutely assure him that the safety of the public, the transportation, the staff involved and so on would be completely uppermost in its thoughts.

The hon. Member for North Durham asked exactly what categories of material would be transported. The regulations will apply to a broad range of nuclear materials, as set out in regulation 3 of the 2003 regulations and the schedule to it. Quite a broad range of possible waste is being transported.

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Would that include, for example, medical isotopes? They are perhaps not as great a concern as large radioactive materials from Dounreay and elsewhere, but are isotopes for medical use covered by the regulations?

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Yes, civil nuclear products, which could include a wide range as set out in the 2003 regulations, would potentially all be included. Likewise, the hon. Member for Nottingham North raised the matter of terrorist risk. Again, for security reasons we do not comment on operational security issues, but very robust safety and security measures are in place for all movements of nuclear materials. That is absolutely key.

One hon. Member, possibly the hon. Member for North Durham, asked whether the regulations extend to overseas territories. The answer is no. If there was an operational need, we would discuss putting appropriate regulations in place with the overseas territory.

The hon. Member for Midlothian asked about safety and what happens if there is an accident. Appropriate emergency response arrangements exist at nuclear sites and for all civil nuclear transports across the country. All relevant parties are made aware in advance of any movements and are of course ready to respond in the case of an emergency.

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On that point, are the relevant agencies police, fire and local authorities? When it comes to nuclear weapons, I know that it is not the case that the fire and rescue services are routinely informed in the local area. The police are not always told locally and the local authority is certainly not told. When the Minister says that all the relevant authorities are told, can she be clear about who they are?

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The hon. Gentleman will appreciate that there is always a balance between telling everyone what is going on, precisely because of the importance of security, and ensuring that the most robust steps are taken to ensure the safety of the public and those involved with transportation.

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I may be wrong, but I understand that gold command in an area is usually informed of those types of transportation.

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Again, I will not comment on specific operational measures. All Members will appreciate that there is a balance between telling everybody and making sure robust steps are in place. The latter is absolutely the case. Clear and careful steps are always taken, just in case, but for security reasons we do not disclose them.

As the hon. Member for North Ayrshire and Arran mentioned, in the event of a movement by air, routes will be carefully planned. Obviously they would not be discussed in advance with members of the public, but the overflight would be carefully considered to minimise any impact on the population. I can also assure her that all appropriate Governments are aware of the proposed changes to the regulations and will be kept involved in discussions of any planned movements; indeed, that is the case today.

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On that point, I heard the Minister say earlier that the planning for such operations would be a vast, complicated and security-minded procedure. She also suggested that it would be a commonplace occurrence, or words to that effect. In light of that, I am still not clear. That said, can she enlighten us as to why the change is considered necessary?

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I think that I have been clear about that. The change is merely to ensure that any air movements, rare though they may be, come under the same official regulatory regime as road and rail transport. It is not a change; it is merely an update to ensure that the regulation is complete for all potential modes of transport. It is not changing any policy.

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Will the Minister give way?

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I have given way a lot. I would like to move on to my conclusion now.

Finally, the hon. Member for North Ayrshire and Arran asked why we move radioactive waste over long distances. I reassure her that the swap announced by the Prime Minister in March 2016 is not a movement of radioactive waste; it is a movement of high-value nuclear material, as I explained in my opening remarks, in exchange for medical isotopes, which are important right across Europe for use in things such as scanners and so on. We are not moving radioactive waste long distances.

In closing, it has been a useful discussion. I absolutely understand and endorse the concerns of all Members. They are quite right to raise questions about safety and so on. It is absolutely vital. As I said in my opening remarks, the effect of the amendment is to bring the transport of civil nuclear material by air within the same stringent regulatory framework for security as the transport of such material by land or sea. This means that the independent Office for Nuclear Regulation will have the same oversight and approval function in relation to the security of civil nuclear material transported by air as it has in relation to the transport of such material by land or sea.

The regulations will help ensure that the UK gives full effect to the convention on the physical protection of nuclear material, and they will allow us to consider all credible options when planning moves of nuclear material to ensure that we make the right decision in terms of safety and security. Nuclear material can be safely and securely transported by air, and it is right that our regulatory framework facilitates that. Any future movement of civil nuclear material by air will be subject to regulation and oversight by the independent nuclear regulator, the Office for Nuclear Regulation. I therefore commend the regulations to the Committee.

Question put.

Division 1

12 July 2016

The Committee divided:

Ayes: 11
Noes: 6

Question accordingly agreed to.

View Details

Resolved,

That the Committee has considered the draft Nuclear Industries Security (Amendment) Regulations 2016.

Committee rose.