NUCLEAR SAFEGUARDS BILL [HL]
Memorandum by the Department of Trade
1. This memorandum gives an account of the delegated
powers proposed to be taken in the Nuclear Safeguards Bill which
was introduced in the House of Lords on 18 November 1999.
OUTLINE AND SCOPE OF THE NUCLEAR SAFEGUARDS BILL
2. The Nuclear Safeguards Bill will enable the
United Kingdom to fulfil its commitment to adopt and implement
a strengthened nuclear safeguards system by bringing into effect
in the United Kingdom an Additional Protocol to our existing Safeguards
Agreement with the International Atomic Energy Agency (IAEA) and
the European Atomic Energy Community (Euratom). This agreement
forms part of an international effort to strengthen nuclear safeguards,
and is a key non-proliferation measure.
PROPOSALS FOR SUBORDINATE LEGISLATION
3. There are five powers in the Bill to make
regulations or orders by statutory instrument (including one to
make Orders in Council). The first enables the Secretary of State
to make regulations requiring persons to inform him if they carry
out certain types of activity or have certain types of information
he may need. There are two powers enabling the Secretary of State
to specify in orders (a) activities which may be agreed under
the Additional Protocol for IAEA inspectors to carry out in the
UK in addition to those already listed in the Protocol; and (b)
procedural arrangements for certain environmental sampling by
such inspectors. The last two powers deal with commencement of
the Act and its extension to apply to the Islands and overseas
4. Details of the delegated powers are set out
in paragraphs 7 to 19 below.
CLASSIFICATION OF SUBORDINATE LEGISLATION
5. In deciding whether subordinate legislation
was appropriate in any particular case, the Department had in
mind in particular the following criteria, based on those set
out in paragraph 4.4 of the Government's Memorandum to the Committee
(January 1993) appended to the Committee's First Report:
- to ensure flexibility in responding to changing
circumstances, and provide a measure of ability to make changes
quickly in the light of experience without the need for primary
- to allow detailed administrative arrangements
to be set up and kept up-to-date within the basic structures and
principles set out in the primary legislation.
6. The power to make regulations under clause
3 will be subject to negative resolution procedure. No Parliamentary
procedure is provided for the other powers.
CLAUSE BY CLAUSE ANALYSIS OF DELEGATED POWERS
Clause 3(1) - Identifying persons who have information
7. Clause 3(1) enables the Secretary
of State to make regulations requiring persons to inform him,
and give certain details about themselves, if they fit descriptions
set out in the regulations. This power is ancillary to the provisions
in clause 2, under which the Secretary of State may serve notices
on people requiring them to give him certain information. The
power in clause 3 is necessary as, whilst the Secretary of State
will already know the great majority of people from whom he will
need information, there may be others of whom he is initially
unaware. Responses to the Regulations should enable him to identify
all those from whom he may need to request information.
8. The information the Secretary of State can
require under clause 2 must be information which he has reasonable
cause to believe he needs or will need in order for the UK to
comply with its obligations under the Additional Protocol to provide
information to the IAEA. Clause 3(2) makes it clear that regulations
made under clause 3(1) may only specify descriptions of persons
who are likely to have such information, or about whose activities
the UK must provide information to the IAEA under the Additional
9. The power to require persons to identify themselves
to the Secretary of State requires the flexibility of subordinate
legislation so that the requirement can be applied only to those
categories of person who are likely to have information which
would not be available to the Secretary of State by other means.
These categories may change from time to time.
10. The power to make regulations will be subject
to negative resolution procedure because, while
it is considered appropriate for Parliament to be able to scrutinise
any such regulations, they are not likely to be controversial
and will not contain provisions of general or major significance.
Clause 5(3)(a) and (b) - Rights of access etc.
for Agency inspectors
11. Clause 5(2)(b) of the Bill enables IAEA inspectors
to carry out, at locations described in Article 5 of the Additional
Protocol, various activities listed in Article 6. However, Article
6 also allows additional activities to be approved, either by
the IAEA Board after consultation with the UK and Euratom, or
by agreement of all three. Clause 5(3)(a) has the effect that
such additional activities can only be carried out once they have
been specified in an order made by the Secretary of State by statutory
instrument. This provision is designed for the benefit of persons
on whose land the IAEA inspectors will carry out their activities.
It will ensure that all the activities which IAEA inspectors can
carry out will be listed in the public domain - either in the
Additional Protocol itself, or in such an order. It was considered
inappropriate for persons to have to allow inspectors to carry
out on their land activities which were only identified in a document
to which they would not easily have access, such as an IAEA document
or an agreement between the IAEA, Euratom and the UK Government.
12. Clause 5(2) also provides that IAEA inspectors'
powers to carry out wide-area environmental sampling, under Article
9 of the Additional Protocol, are subject to procedural arrangements
for such sampling approved under that Article. Such arrangements
have to be approved by the IAEA Board after consulting the UK
and Euratom. Again, it was considered that any arrangements of
this sort should be placed in the public domain so that affected
landowners can find out what the arrangements are
to which IAEA inspectors are subject. Therefore, clause 5(3)(b)
enables the Secretary of State to specify such arrangements in
an order made by statutory instrument, if in future the IAEA approves
the use of such sampling under Article 9 of the Additional Protocol.
13. The first criterion cited in paragraph 5
above is particularly relevant to both of these powers as the
exact nature of the additional activities which may be agreed
for IAEA inspectors, and of the procedural arrangements for wide-area
environmental sampling, may well change over time. The second
criterion is particularly relevant to the power in clause 5(3)(b).
14. No Parliamentary procedure is provided for
orders under either of these powers, as they will merely place
in the public domain details of activities or arrangements already
settled pursuant to the Additional Protocol.
Clause 12(2) - Commencement
15. Clause 12(2) enables the Secretary of State
to commence provisions of the Bill (other than clause
12 itself which comes into force on the passing of the Bill) on
such days as he may appoint. Different days may be appointed for
different purposes. This approach to commencement is considered
appropriate on two grounds.
16. First, it is not desired to bring the legislation
into force until the Additional Protocol itself comes into effect.
There is an informal agreement among EU Member States to bring
their respective Additional Protocols into force at the same time,
but no date has yet been settled for this. The power in this subsection
will enable the Act to come into force at the same time as the
UK Additional Protocol and to co-ordinate the timing of this with
other EU Member States. Secondly, it is not intended to bring
the provisions relating to wide-area environmental sampling into
force unless and until the IAEA Board approves the use of such
sampling under Article 9 of the Additional Protocol. It is not
yet known whether or when that will happen. The power in this
subsection enables commencement of these provisions to await such
17. As is standard practice, this power is not
subject to any Parliamentary procedure.
Clause 12(4) - Territorial application
18. Clause 12(4) enables Her Majesty to extend
the Bill (and the Nuclear Safeguards and Electricity (Finance)
Act 1978 Act implementing the 1976 Safeguards Agreement), by Order
in Council, with appropriate modifications, to the Channel Islands,
the Isle of Man and any overseas territory of the United Kingdom.
Such Orders may be necessary if any activity within the scope
of the Additional Protocol (or the original Safeguards Agreement)
starts to be carried on in any of these territories. Some of the
Dependent Territories have indicated in correspondence that they
may prefer to introduce such legislation themselves in any event.
19. It is standard practice for such powers to
be exercisable by Order in Council, not subject to any Parliamentary