Nuclear Safeguards Act 2018

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 previously rested with the Health and Safety Executive). The 2013 Act sets out the purposes of the ONR, which defines the five areas of regulatory responsibility: those relating to nuclear safety, nuclear health and safety, nuclear security, nuclear safeguards, and the transportation of radioactive material. In addition, section 74 of the 2013 Act provides for the Secretary of State to make regulations (known as "nuclear regulations") for four of the ONR’s purposes, including for nuclear safeguards purposes.
17. Under section 72 of the 2013 Act the "nuclear safeguards purposes" means the purposes of (a) ensuring the United Kingdom’s compliance with the safeguards obligations and (b) the development of any future safeguards obligations. The "safeguards obligations" are defined in section 93(2) of the 2013 Act as comprising the following:
    1. articles 77 to 85 of the Treaty establishing the European Atomic Energy Community, signed in Rome on 25 March 1957 ("the Euratom Treaty")1;
    2. the agreement made on 6 September 1976 between the United Kingdom, the European Atomic Energy Community and the IAEA for the application of safeguards in the United Kingdom in connection with the Treaty on the Non-Proliferation of Nuclear Weapons ("the Voluntary Offer Agreement")2;
    3. the protocol signed in Vienna on 22 September 1998 additional to the agreement mentioned in paragraph (b) ("the Additional Protocol")3; and
    4. 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 details of most of the United Kingdom’s current safeguards regime is set out in Commission Regulation (Euratom) No. 302/2005 of 8 February 2005 ("the Euratom Regulation")1, 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 nuclear 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 its membership of Euratom). As such, the United Kingdom’s existing nuclear safeguards regime will become ineffective when Euratom arrangements no longer apply to the United Kingdom.
20. This Act confers a regulation-making power which will enable the Secretary of State to put in place the detailed requirements that are necessary for a domestic nuclear safeguards regime, including by imposing obligations on those who hold nuclear materials. The regulation-making power under the Nuclear Safeguards Act may also 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 through regulations.
21. The Nuclear Safeguards Act amends the ONR’s nuclear safeguards purposes 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 UK’s nuclear safeguards regulator.
22. The nature of safeguards regimes is such that the substantive provisions are detailed and technical in nature and this is reflected in the pre-consultation draft regulations published on 19 January 20182. This will be the case for the domestic safeguards regime put in place under the powers in the Nuclear Safeguards Act. The majority of this detail will be laid out in regulations which will, on first use, be subject to the affirmative resolution procedure (and the Nuclear Safeguards Act amends section 113 of the 2013 Act to this effect). These regulations will place obligations on those responsible for "qualifying nuclear material", "qualifying nuclear facilities" and "qualifying nuclear equipment"; the pre-consultation draft provide further detail. Further detail in respect of the scrutiny procedures that apply to the powers under the Nuclear Safeguards Act are set out in the Delegated Powers and Regulatory Reform Committee Memorandum for the Bill3.
23. In addition to the provisions of the 2013 Act, 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 Euratom arrangements no longer apply to the United Kingdom due to their detailed references to provisions of the United Kingdom’s existing safeguards agreements with the IAEA. Section 2 of the Nuclear Safeguards Act therefore also contains the power to make consequential amendments to these pieces of legislation in the light of future agreements between the United Kingdom and the IAEA (which were signed on 7 June 2018 and, at the time of at the time of Royal Assent of the Nuclear Safeguards Act, are pending ratification).