Commentary on provisions of Bill
Clause 1: Nuclear safeguards
29 Clause 1(1) provides a new definition of the Office of Nuclear Regulation’s (ONR) nuclear safeguards purposes (found in section 72 of the Energy Act 2013) to reflect the domestic regime that will be put in place following Euratom withdrawal. The new nuclear safeguards purposes are:
a. ensuring compliance with nuclear safeguards regulations (to be made under the new 76A section, considered below);
b. ensuring compliance by the United Kingdom with international agreements relating to nuclear safeguards to which the United Kingdom is a party and which are specified in regulations (called "relevant international agreements" in the Bill: see the discussion of clause 1(3) below);
c. the development of any future obligations relating to nuclear safeguards.
30 Clause 1(2) inserts a new section 76A to the Energy Act 2013. Section 76A provides the Secretary of State with new regulation-making powers relating to nuclear safeguards.
31 The power may be exercised to make provision for the purpose of:
a. ensuring that qualifying nuclear material, facilities or equipment are only available for use for civil activities (whether in the United Kingdom or elsewhere), or
b. giving effect to the provisions of a relevant international agreement (see below).
32 Subsection (2) sets out examples of the safeguards obligations that can be imposed through nuclear safeguards regulations. They can, for example, make provision relating to: record-keeping or accounting, the provision or publication of information, inspection or monitoring, imports or exports, the design of qualifying nuclear facilities or equipment, and the production, processing, use, handling, storage or disposal of qualifying nuclear material or equipment.
33 Subsection (3) applies certain provisions of the existing regulation-making power in sections 74, 75, 76 of, and Schedule 6 to, the Energy Act 2013, to section 76A safeguards regulations. These include the provisions which allow obligations imposed by the regulations to be enforced by creating criminal offences or civil liability.
34 Subsection (4) provides an exemption in relation to United Kingdom defence purposes, which are the purposes of the Secretary of State with responsibility for defence. Separate and distinct regimes apply to nuclear materials required for national security.
35 As noted above, subsection (1) of section 76A refers to the concept of "civil activities". Subsection (5) provides the Secretary of State with a regulation-making power to specify activities that are, or are not, to be treated as civil activities.
36 Subsection (6) provides that the power to make consequential and transitional, etc., provision in section 113(7) of the Energy Act 2013 can be exercised to modify retained EU law (which will have the meaning given in the European Union (Withdrawal) Bill), including the Euratom Regulation. This will allow law relating to nuclear safeguards which has become ineffective on the United Kingdom’s withdrawal from the Euratom (such as the Euratom Regulation mentioned above) to be repealed in consequence of the new regime that will be put in nuclear safeguards regulations.
37 Subsection (7) defines the meaning of "qualifying nuclear equipment", "qualifying nuclear facility" and "qualifying nuclear material" (as used in subsection (1)). Subsection (8) provides the Secretary of State with a regulation-making power to specify fissionable material for the purposes of the definition of "qualifying nuclear material" in subsection (7).
38 Subsection (9) sets out a requirement for the Secretary of State to consult the ONR and such other persons as the Secretary of State considers appropriate to consult, before making regulations under section 76A. By virtue of subsection (10), the requirement to consult the ONR does not apply if the regulations concerned give effect to proposals submitted by the ONR under section 81(1)(a)(ia) without modification.
39 Clause 1(2) also inserts a new section 76B to the Energy Act 2013. Section 76B(1) provides the Secretary of State with a regulation-making power to authorise or require the ONR to reimburse costs incurred by persons complying with certain provisions of nuclear safeguards regulations.
40 Clause 1(3) makes amendments to section 112 of the Energy Act 2013 (interpretation), including by inserting a definition of "relevant international agreement". This definition is relevant, amongst other things, to the ONR’s nuclear safeguards purposes (in section 72(b) as amended) and the regulation making power in section 76A(1)(b). Relevant international agreements are those to which the United Kingdom is a party, which relate to nuclear safeguards and which are specified in regulations made by the Secretary of State. Such regulations will always be subject to the affirmative procedure. The Secretary of State is required to consult the ONR and such other persons (if any) as the Secretary of State considers appropriate to consult, before specifying relevant international agreements. Undertakings given by the United Kingdom to the IAEA in respect of guidance (or any other document) issued by the IAEA are treated as "relevant international agreements" for the purposes of the Bill, again when specified in regulations subject to the affirmative procedure.
41 Clause 1(4) provides that consultation before the Bill is passed may satisfy the consultation requirements mentioned above.
Clause 2: Power to amend legislation relating to nuclear safeguards
42 Clause 2 provides a limited power for the Secretary of State to amend, by regulations, the Nuclear Safeguards and Electricity (Finance) Act 1978 ("the 1978 Act), the Nuclear Safeguards Act 2000 ("the 2000 Act") and the Nuclear Safeguards (Notification) Regulations 2004 (S.I. 2004/1255) ("the 2004 Regulations"), which would otherwise become ineffective on withdrawal from Euratom.
43 This legislation refers to provisions of existing agreements between the United Kingdom and the IAEA. The power allows the legislation to be amended in consequence of the new agreements to be agreed with the IAEA, which will replace the existing agreements. This clause does not confer a wide discretion on the Secretary of State to change the substance of what the 1978 Act, 2000 Act and 2004 Regulations permit.
Clause 3: Extent
44 Clause 3 contains technical provisions on extent. The extent of the Bill has been considered above.
Clause 4: Commencement
45 The main provisions of the Bill will be commenced on a day or days appointed by the Secretary of State in regulations. A particular time of day can be appointed as well (subsection (4)).
Schedule 1: Minor and consequential amendments
46 The Schedule contains minor and consequential amendments to ensure that the United Kingdom’s new domestic safeguards regime will be able to operate properly.
47 All of the amendments, apart from the last, relate to the 2013 Act. They include:
a. allowing the ONR to make proposals to the Secretary of State about regulations under section 76A (paragraph 3);
b. ensuring that the ONR must make adequate arrangements for the enforcement of nuclear safeguards regulations (paragraph 4);
c. adding nuclear safeguards regulations to the definition of "relevant statutory provisions" in section 82(2) of the Energy Act 2013 (many of the ONR’s powers relate to giving effect to the relevant statutory provisions) (also paragraph 4);
d. removing the duty of the ONR in relation to nuclear safeguards contained in section 93 of the Energy Act 2013 (the effect of the duty is replicated by section 72(b) and section 78) (paragraph 6);
e. extending the duty of employers at work to help persons subject to obligations under nuclear safeguards regulations comply with them (the amendments to sections 102 and 104 in paragraphs 7 and 8);
f. setting out the parliamentary scrutiny procedures that will govern regulation-making powers inserted by the Bill (paragraph 9);
g. extending the review period for Part 3 of the 2013 Act from 5 years to 7 years, as otherwise the duty to review Part 3 would arise shortly before the United Kingdom withdraws from Euratom and the changes made by the Bill as regards nuclear safeguards come into force (paragraph 10);
h. extending the power for inspectors appointed by the ONR to issue improvement notices to non-compliance in relation to nuclear safeguards (paragraph 11)
i. updating the information sharing gateway that applies in relation to nuclear safeguards in consequence of the changes made by the Bill (paragraph 12);
j. changing the reference in the 2000 Act from "colony" to "British overseas territory" (paragraph 13).