Select Committee on Delegated Powers and Deregulation First Report



Memorandum by the Department of Trade and Industry


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.


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.


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 territories.

4.  Details of the delegated powers are set out in paragraphs 7 to 19 below.


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 legislation;
  • 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 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 Protocol.

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 approval.

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 procedure.

November 1999

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