Legal background
16 The Energy Act 2013 established the ONR as the United Kingdom’s independent nuclear regulatory body in 2014 (with certain functions having rested with the Health and Safety Executive). The Energy Act 2013 sets out the purposes of the ONR, which define the five areas of regulatory responsibility: those relating to nuclear safety, nuclear health and safety, nuclear security, nuclear safeguards, and transport of radioactive material. In addition to this section 74 of the Energy Act 2013 provides for the Secretary of State to make regulations (known as "nuclear regulations") for four of the ONR’s purposes, including the nuclear safeguards purposes.
17 Under section 72 of the Energy Act 2013 the "nuclear safeguards purposes" means the purposes of (a) ensuring compliance by the United Kingdom with the safeguards obligations and (b) the development of any future safeguards obligations. "The safeguards obligations" is then defined by section 93(2) of the Energy Act 2013 as comprising the following:
a. articles 77 to 85 of the Treaty establishing the European Atomic Energy Community, signed at Rome on 25 March 1957 ("the Euratom Treaty");
b. the agreement made on 6 September 1976 between the United Kingdom, the European Atomic Energy Community and the International Atomic Energy Agency for the application of safeguards in the United Kingdom in connection with the Treaty on the Non-Proliferation of Nuclear Weapons;
c. the protocol signed at Vienna on 22 September 1998 additional to the agreement mentioned in paragraph (b); and
d. such other obligations, agreements or arrangements relating to nuclear safeguards as may be specified in a notice given to the ONR by the Secretary of State.
18 The detail of the safeguards regime is set out in Commission Regulation (Euratom) No. 302/2005 of 8 February 2005 on the application of Euratom safeguards ("the Euratom Regulation"), made under the Euratom Treaty. The Euratom Regulation imposes the detailed technical requirements on those holding civil nuclear material and takes effect automatically in United Kingdom law by virtue of the European Communities Act 1972 (without specific domestic implementing legislation).
19 As a result, the United Kingdom’s safeguards regime generally, and the ONR’s nuclear safeguards purposes specifically, are fundamentally underpinned by the United Kingdom’s membership of Euratom. Euratom is a party to the United Kingdom’s two main agreements with the IAEA (and many of the United Kingdom’s obligations to the IAEA are discharged by virtue of membership of Euratom). As such, the United Kingdom existing nuclear safeguards regime will become ineffective on the United Kingdom’s withdrawal from the Euratom Treaty.
20 This Bill confers a regulation-making power which will enable the Secretary of State to put in place the detailed requirements that are necessary for a nuclear safeguards regime, including by imposing obligations on those who hold nuclear materials. The regulation-making power can be used to implement the new international agreements the United Kingdom envisages concluding (for example, with the IAEA). The power can also be used to impose domestic standards.
21 The ONR’s nuclear safeguards purposes are amended to reflect the fact that the obligations it will be responsible for ensuring compliance with will be contained within domestic regulations and new international agreements (rather than the Euratom Regulation). The ONR, rather than the European Commission, will become the regulator.
22 The nature of safeguards regimes is such that the substantive provisions are detailed and technical in nature. This will be the case for the domestic safeguards regime put in place under the powers in the Bill. The majority of this detail will be laid out in regulations which will, on first use, be subject to the affirmative resolution procedure. These regulations will place obligations on those responsible for "qualifying nuclear material", "qualifying nuclear facilities" and "qualifying nuclear equipment", including in respect of: record-keeping and accounting, the provision of information, inspection and monitoring, imports and exports, the design of qualifying nuclear facilities or equipment and the production, processing, use, handling , storage or disposal of qualifying nuclear material or equipment.
23
In addition to the provisions of the Energy Act 2013 there are additional pieces of legislation (i.e. the Nuclear Safeguards and Electricity (Finance) Act 1978, the Nuclear Safeguards Act 2000 and the Nuclear Safeguards (Notification) Regulations 2004) that implement the United Kingdom’s existing nuclear safeguards obligations. These will not operate properly after the United Kingdom’s withdrawal from Euratom due to their detailed references to provisions of the United Kingdom’s existing nuclear safeguards agreements with the IAEA. The consequential amendments necessary to these pieces of legislation will depend on new safeguards agreements between the United Kingdom and the IAEA that are currently being negotiated; as such the United Kingdom will need to maintain flexibility to ensure these future agreements can be implemented in domestic legislation. A power to allow this legislation to be amended in this way is taken in clause 2 of the Bill.