Nuclear Safeguards Bill

Written e vidence submitted by Dr David Lowry , senior research fellow , Institute for Resource and Security Studies , Cambridge , Massachusetts , USA (NSB 06)

Introduction

I listened with increasing degrees of disbelief to the ‘evidence’ given in oral sessions to your scrutiny committee on 31 October.

While it is very difficult to attribute motivation, I could not decide whether witnesses were deliberately presenting the committee with disinformation, or, despite their job titles and apparent experience in the field, were ignorant of the very issues they came before you to discuss. Either way, the outcome was a series of self-serving sets of answers, which were in many parts distorted, sometimes by omitting relevant information linked to the answer, inaccurate, misleading or down right factually wrong.

Below I have submitted my own evidence on issues I think the committee needs to discuss in order to appreciate the subtle, nuanced political, diplomati c and technical implications of this bill , but should you invite me to give oral testimony, I will endeavour to point out some of the more egregious inaccuracies containe d in the oral replies to which I refer above, along with more accurate answer s .

Colle ctively, it is the worst series of witnesses’ answers I have ever experienced in over 35 years monitoring many dozens of select committee hearings.

Official government position

In the Committee stage deliberations of the Nuclear Safeguards Bill, energy minister Richard Harrington set out the framework and rationale for the Government policy position on leaving Euratom and replacing the Euratom safeguarding presence in th e UK, telling MPs on the committee on 2 November:

"We have emphasised our continued commitment to the IAEA and to international standards for nuclear safeguards and non-proliferation. Nuclear safeguards are reporting and verification processes by which states demonstrate to the international community that civil nuclear material is not diverted into military or weapons programmes. Under the Euratom treaty, the civil nuclear material and facilities in member states are subject to nuclear safeguards measures conducted by Euratom, which also provides reporting on member state’s safeguards to the IAEA. That three-way link allows global oversight of nuclear safeguards.

It is clear that the existence of a UK nuclear safeguards regime is a prerequisite for the movement of certain nuclear materials called special fissile materials in and out of the UK. It underpins our international commitment to the IAEA and our nuclear co-operation agreements…..Nuclear safeguards include reporting on civil nuclear material holdings and development plans, inspection of nuclear facilities by international inspectors, and monitoring through equipment, such as cameras and recording equipment, placed in the facilities."

"… We have already made great progress in our work to secure continuity for our nuclear industry by establishing long-term arrangements to secure nuclear safeguards. As my right hon. Friend the Secretary of State set out in September-this is very important-our intention is for the new domestic regime

"to exceed…the standard that the international community would require from the UK"

and is expected to be

"as comprehensive and robust as that currently provided by Euratom."

[ Official Report , 14 September 2017; Vol. 628, c. 25WS.]

It will be run by the ONR, which already has regulatory responsibility for nuclear safety and nuclear security. Therefore, quite apart from the Euratom/Europe issue, it fits comfortably under that umbrella, although I accept the former-when I say "quite apart from," I am not making any value judgment. If we must have a separate safeguards regime, as we do, the ONR is the natural body for it to fit within.

"The ONR is in the process of developing an expanded safeguards function. For example, the ONR will recruit a tranche of inspectors, with further recruitment to come-I am sure that will be discussed further, because it was mentioned in the evidence given both to this Committee on Tuesday and to the Business, Energy and Industrial Strategy Committee yesterday. The ONR will also build additional institutional capacity and develop the necessary IT systems. ONR experts have been in discussions with the IAEA on the technical aspects of the new system. We will also be agreeing a new voluntary offer agreement and additional protocol with the IAEA, and those negotiations have already begun. I know that hon. Members from all parties will agree that having a civil nuclear safeguards regime for the UK is of paramount importance."

"The Bill amends the Energy Act 2013 to replace the ONR’s existing nuclear safeguards purpose, which I have explained, with a new nuclear safeguards purpose definition. The ONR will regulate the new nuclear safeguards regime using its existing functions and powers. However, the Bill creates new powers, so that we can put in place through regulations the detail of the domestic safeguards regime. Some examples of that would be detail about accounting, reporting, control and inspection arrangements.

"Finally, the Bill creates a new but limited power to create regulations to amend the Nuclear Safeguards and Electricity (Finance) Act 1978, and the Nuclear ​Safeguards Act 2000 and the Nuclear Safeguards (Notification) Regulations 2004. That power allows the references in all that legislation to international agreements, which have been mentioned before, to be updated once new international agreements have been reached.

"I look forward to considering all these measures in depth with hon. Members over the next two weeks. I want to make it clear again that although we are leaving Euratom, we support Euratom and we will want to see continuity of co-operation and standards, because we have had a successful relationship with the Euratom community for more than 40 years and we want to maintain that successful civil nuclear co-operation."

In response, Labour front bench energy spokesperson, Dr alan Whitehead commented and asked:

"I thank the Minister for his comprehensive, though not entirely conclusive, explanation of where we are, so far as international agreements and parliamentary scrutiny are concerned. I would appreciate it if he could give a brief thought to the question of the point at which the IAEA will conclude that we have transposed the Euratom responsibilities to the ONR. Will that be when we have passed the enabling legislation, or when the process is completed and can therefore be presented in a box, as it were, to the IAEA saying all is done? That itself is likely to slow up the negotiation process with the IAEA, which I appreciate the Minister said he considers will be complete by exit day."

To which the minister replied:

"I thank the hon. Gentleman for that valid point, which requires both a simple and a complex answer. The simple answer is that there is a sequence, and the agreements have to be ready but will not come into force until after we leave Euratom. The IAEA has a ratification procedure, which I intend to come to. The agreements have to be ratified by its board. The bilateral agreements referred to have to be ratified by the Parliaments of each country involved. I am not led to believe that that will be a problem, because I am pleased to say that these negotiations are more in the form of constructive discussions than one side wanting one thing and another side wanting another. What I am about to say will hopefully answer the hon. Gentleman’s questions. If not, I am sure that he will say so, and I am happy to meet him any time to discuss that.

"I understand that hon. Members are concerned to ensure that there is parliamentary scrutiny. I have covered that, but I must stress that the measures in the amendment would be a significant departure from the usual position on the ratification of treaties, and I do not consider it appropriate in the context of the Bill. As Members will be aware, the UK Government are responsible for negotiating and signing international treaties involving the UK and always have been. The ratification of international treaties is covered in legislation, as the Constitutional Reform and Governance Act 2010 provides a ratification process that requires treaties to be laid before Parliament prior to ratification, except in exceptional circumstances-I do not know what the exceptional circumstances are, but I imagine they would be a war or something like that.

"The Government have the power to conclude international treaties under their prerogative powers. Of course, that cannot automatically change domestic law or rights and cannot make major changes to the UK’s constitutional arrangements without parliamentary authority. That remains the case for international ​agreements relating to safeguards that are currently under negotiation-for example, the nuclear co-operation agreements currently being negotiated with the US, Canada, Japan and Australia, and the new safeguards agreements with the IAEA. Parliament will therefore have the opportunity to consider those agreements before they come into force.

We have been open and honest with Parliament about ongoing negotiations and will continue to do so. The intention is for those agreements to be presented to Parliament before ratification, ahead of the UK’s withdrawal from Euratom, and they will come into force immediately upon our exit."

He later added, apparently by way of further elaboration I and explanation, in an incredibly convoluted passage:

"…let us say there was a Secretary of State who was misguided or mad enough to say, "Actually, I am not going to do this because I do not want a nuclear safeguards regime. I want this country to be like North Korea"-or wherever. I think North Korea is the only country without a nuclear safeguards regime. If the Secretary of State desired to take that approach, there would be a lot more tools available for not having a nuclear safeguards regime than the interpretation of "may" or "must". I am not making light of the point-it is dead serious.

No one has suggested any possibility that we should not have a nuclear safeguards regime, and wrong interpretation of the "may" or "must" point would mean that someone-a Secretary of State or a Government-had decided to do that. If a Government had decided to do that-I know it would not be the Opposition or anyone in any normal form of politics-such a change of policy would not just rely on an interpretation of "may" or "must"."

( https://hansard.parliament.uk/commons/2017-11-02/debates/ce28e17e-5e4b-4e1a-ad12-216401e74e4f/NuclearSafeguardsBill(ThirdSitting)

However, in practice, that is exactly what is being proposed: an un-safeguards regime, just like North Korea, that, in the spirit of Alice Through the Looking Glass, masquerades as a "safeguards" regime: as Humpty Dumpty put it scornfully, but appositely:

"When I use a word it means just what I choose it to mean - neither more nor less."

The international community is certain to come to a very different interpretation. I explain why below.

The Humpty Dumpty strategy- Safeguards outside Euratom: who will watch the watchers?

Government minister Lord Prior of Brampton told peers in the Euratom debate on 20 July 2017:

"….It is clear that we need continuity and must avoid any break in our safeguards regime. The UK meets our safeguards standards through our membership of Euratom. The Government’s aim is clear: we want to maintain our mutually successful civil nuclear co-operation with Euratom. We can do so while establishing our own nuclear safeguards regime, using the body that already regulates nuclear security and safety: the Office for Nuclear Regulation. To do that, we need primary legislation.

That is why the Queen’s Speech on 21 June included our intention to take powers to set up a domestic nuclear safeguards regime, in partnership with the Office for Nuclear Regulation, to enable us to continue to meet international safeguards and nuclear non-proliferation obligations.

The Government’s primary aim throughout these negotiations will be to maintain our mutually successful civil nuclear co-operation with Euratom and the rest of the world. We are strong supporters of Euratom and that is not going to change. "has the power it needs for a domestic safeguards regime…. We are preparing a domestic nuclear safeguards Bill; we are opening negotiations with the EU; we are talking to third countries about bilateral agreements; finally, of course, we are talking to the International Atomic Energy Agency. My officials have met with IAEA officials in Vienna and had constructive conversations about a new voluntary offer agreement, to replace the current one that we have by virtue of our Euratom membership."

"Secondly, we are keen to ensure that there is minimal disruption to civil nuclear trade and co-operation with non-European partners. To this end, the Government are negotiating with the United States, Canada, Australia and Japan so that the UK has appropriate nuclear co-operation agreements in place. Government officials have met with the Canadian Government and the Canadian regulators; we have also written to them at ministerial level. Canada is as keen as we are to reach a new agreement on bilateral terms. That is equally true of the USA, Japan and Australia, with all of whom we have started constructive discussions."

( http://hansard.parliament.uk/lords/2017-07-20/debates/02A1B589-EBE5-4E7B-8991-81562A57AFFA/Euratom )

 

On July 13 this year, the UK Government position paper on " Nuclear materials and safeguards i ssues,"   included the key proposal that the UK will:

"take responsibility for meeting the UK’s safeguards obligations, as agree with IAEA (International Atomic Energy Agency)."

  ( https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/627909/FINAL_OFF_SEN_Position_Paper_HMG_Nuclear_materials_and_safeguards_issues_Position_Paper_FINAL_120717__3_.pdf )

The UK’s chief Brexit negotiator, David Davis MP, commented on the future relations with Euratom in an interview with BBC an "arbitration arrangement" would have to be agreed. ("Brexit: UK could be 'associate' of EU nuclear body," BBC on line, 13 July; http://www.bbc.co.uk/news/uk-politics-40593588) asserting

Mr Davis told the BBC's political editor Laura Kuenssberg:

"Whether we have an association agreement with the European Union or we have something independent under the International Atomic Energy Authority (sic) , we'll provide the sorts of safeguards that we have today at least."

Mr Davis stressed such an agreement would not be governed by the European Court of Justice but by an arrangement to be agreed between the UK and the EU. It remains to be seen if such a proposal is acceptable to EU v chief negotiator, Commissioner Michael Barnier.

As well as the nuclear question, it was also "quite likely" that a new "arbitration arrangement" would be needed to govern the UK's trading relationship with the EU after Brexit, he said.

The UK government had earlier explained they intend UK nuclear security regulator, the Office for Nuclear Regulation (ONR) to take over from the independent  safeguards inspectors from Euratom , to ‘self-police’ the British nuclear industry against military misuse.

This is a highly contendable and certainly contentious proposal: just imagine if Iran or North Korea proposed to do that!

It should also be noted that even under the Euratom safeguards regime the UK has withdrawn fissile nuclear materials, including plutonium, from safeguards on at least 600 occasions since the U.K’s trilateral safeguards treaty with Euratom and IAEA came into force in 1978 ( http://www.hse.gov.uk/nuclear/safeguards/withdrawals.htm & http://www.onr.org.uk/safeguards/withdrawals.htm )


The European Commission’s own Position paper transmitted to EU27 on nuclear materials and safeguard equipment (Euratom) released on 23 June 2017 ( https://ec.europa.eu/commission/publications/position-paper-transmitted-eu27-nuclear-materials-and-safeguard-equipment-euratom_en ) states the European commission position on post-Brexit safeguards application in the UK as follows:

"The United Kingdom is a member of the International Atomic Energy Agency ("IAEA") and bound by international conventions to which it is a party in its own right. From the withdrawal date, the United Kingdom will have sole responsibility for ensuring its compliance with international obligations arising therefrom.

Given that the Treaty will cease to apply in the United Kingdom, it appears appropriate that the Withdrawal Agreement set out arrangements for the transfer of the ownership of special fissile materials and Community property located in the United Kingdom used for the purposes of providing safeguards to the United Kingdom, respecting the Community's obligations under international agreements.

The Withdrawal Agreement should also provide that the United Kingdom assume all rights and obligations associated with the ownership of materials or property transferred and should regulate other questions related to material and property under the Treaty, in particular safeguards obligation."

Conclusion

In my view, the witness for the Office for Nuclear Regulation, Dr Golshan , should have addressed the implications of the "withdrawal" clause 14 in the extant trilateral involuntary "voluntary" nuclear safeguards agreement between the UK- IAEA and Euratom when deliberating the mechanics of replacing this agreement with a new one, under the self-policing of the ONR.

The UK nuclear regulator is going to be given unprecedented responsibility for policing a diplomatically contentious new arrangement, which will increase suspicion among member states of the 1968 Nuclear Non Proliferation Treaty ( for which the UK , as a co-drafter of the treaty text, is one of three depositary states) – which ministers pray-in-aid whenever they discuss the rationale for a UK nuclear safeguards system. However, ministers routinely cherry-pick those parts of the NPT that suite their purposes: but the NPT is an integrated diplomatic agreement, with its articles all relevant and related. Cherry-picking is both diplomatically unwise, as it normalises abrogation for other signatory nations, and undermines the very treaty for which the UK is supposed to act as a protective depositary state!

The UK is already in very bad diplomatic odour with many dozen NPT member states – the treaty has 191 signatories - for its fifty-year abject failure to abide by the NPT article 6 requirement to:

"pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament."

The proposed arrangements for a new self-policed "safeguards" regime for the UK will undoubtedly add to the bad image of the UK in the wider international community as a state that abrogate its international treaty commitments.

This diplomatic dimension has been totally overlooked by the ONR and utterly ignored by ministerial evidence to this committee: the consequences further down the road will be predictably dire.

There is time to avoid this outcome; but minister must be prevailed upon to change their currently untenable negotiating stance. ONR has a key, proactive and robust role to play in doing so. I hope for the future credibility of British diplomatic reputation- which has suffered serious damage in recent weeks due to the multiple failures of the Foreign Secretary - ONR steps up to the plate and intervenes.

13 November 2017

 

Prepared 14th November 2017