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Nuclear Safeguards Act 2018

Contents

Commentary on provisions of Act

Section 1: Nuclear safeguards

Substitution of section 72
  1. Subsection (1) of section 1 provides a new definition of the ONR’s nuclear safeguards purposes (found in section 72 of the Energy Act 2013) to reflect the domestic safeguards regime that will be put in place once Euratom arrangements no longer apply to the United Kingdom. The new nuclear safeguards purposes are:
    1. ensuring compliance with the nuclear safeguards regulations (to be made under the new section 76A, considered below);
    2. ensuring compliance by the United Kingdom with international agreements relating to nuclear safeguards to which the United Kingdom is a party and which may be specified in regulations ("relevant international agreements": see paragraph 42 below); and
    3. the development of any future obligations relating to nuclear safeguards.
New section 76A
  1. Subsection (2) of section 1 inserts a new section 76A to the 2013 Act. Section 76A provides the Secretary of State with new powers to make regulations relating to nuclear safeguards.
  2. Subsection (1) of section 76A states that regulations may be made for the purposes of:
    1. ensuring that qualifying nuclear material, facilities or equipment are only available for use for civil activities (whether in the United Kingdom or elsewhere); or
    2. giving effect to the provisions of a relevant international agreement (see paragraph 41 below).
  3. Subsection (2) of section 76A sets out examples of the obligations that may be imposed through nuclear safeguards regulations. They may, 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.
  1. Subsection (3) of section 76A applies certain provisions of the existing regulation-making powers in sections 74, 75, 76 of, and Schedule 6 to, the 2013 Act, to the power under section 76A(1). These include the provisions which allow obligations imposed by the regulations to be enforced by the creation of a criminal offence or civil liability.
  2. Subsection (4) of section 76A provides an exemption from the nuclear safeguards regulations in relation to anything done in the United Kingdom for defence purposes. Under section 70 of the 2013 Act, "defence purposes" are the purposes of the Secretary of State with responsibility for defence. Separate and distinct regimes apply to nuclear materials required for national security.
  3. Subsection (5) of section 76A provides that the power to make consequential and transitional, etc., provision in section 113(7) of the 2013 Act can be exercised to modify retained EU law (which will have the meaning given in the European Union (Withdrawal) Act 2018). This will allow laws relating to nuclear safeguards that become ineffective when Euratom arrangements no longer apply to the United Kingdom to be repealed and replaced by the new domestic regime.
  4. Subsection (6) of section 76A defines the meaning of "civil activities", "qualifying nuclear equipment", "qualifying nuclear facility" and "qualifying nuclear material" (as used in subsection (1)).
  5. Subsection (7) 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 (6).
  6. Subsection (8) of section 76A sets out a requirement for the Secretary of State to consult the ONR and such other persons as the Secretary of State considers appropriate, before making regulations under section 76A. By virtue of subsection (9), the requirement to consult the ONR does not apply if the regulations concerned give effect to proposals submitted by the ONR under new section 81(1)(ia) without modification (see paragraph 65(a) below).
New section 76B
  1. Section 1 also inserts a new section 76B into the 2013 Act. Subsection (1) of this new section 76B provides the Secretary of State with a regulation-making power to authorise or require the ONR to make payments towards compliance costs. Subsection (2) defines "compliance costs" as the costs of complying with the nuclear safeguards regulations, or specific provisions within those regulations. This power means the ONR could reimburse the costs incurred by persons complying with the nuclear safeguards regulations.
  2. Subsection (3) of new section 76B specifies that regulations may provide that payments by the ONR are only authorised or required to be made under certain circumstances.
Amendments to section 112
  1. Subsection (3) of section 1 amends section 112 of the 2013 Act (interpretation) by inserting five new subsections (1A-1E).
  2. Subsection (1A) of section 112 provides a definition of "relevant international agreement". 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 (under subsection (1B)). 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). Such regulations will always be subject to the affirmative procedure and the Nuclear Safeguards Act amends section 113 of the 2013 Act to this effect.
  3. Under subsection (1C) of section 112, 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 Nuclear Safeguards Act, so long as they are specified in regulations under subsection (1B).
  4. Subsection (1D) of section 112 specifies that before making regulations under subsection (1B), the Secretary of State is required to consult the ONR and such other persons (if any) as the Secretary of State considers appropriate. The Secretary of State is not required to consult the ONR if the regulations reflect proposals submitted by the ONR to the Secretary of State (subsection (1E)) without modification.
Supplementary provisions under section 1
  1. Subsection (4) of section 1 provides that consultation before this Act is passed may satisfy the consultation requirements mentioned above.
  2. Subsection (5) of section 1 introduces the Schedule to this Act.

Section 2: Power to amend legislation relating to nuclear safeguards

  1. Section 2 provides a 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"), in consequence of any "relevant safeguards agreement".
  2. Subsection (2) specifies that a "relevant safeguards agreement" means an agreement, whether or not ratified, relating to nuclear safeguards between the UK and the IAEA.
  3. Subsection (3) states that the power to make regulations under this section includes the power to make consequential, supplementary or incidental provision or transitional, transitory or saving provision.
  4. Subsection (5) specifies that regulations made under this section are subject to the affirmative resolution procedure.
  5. Subsection (6) is a 'sunset' provision which specifies that the power under section 2 will expire after a period of 5 years from the day on which the section comes into force.
  6. This section enables the Secretary of State to amend the 1978 Act, the 2000 Act and the 2004 Regulations in such a way as to prevent them becoming ineffective when the UK’s new safeguards agreements with the IAEA, the Voluntary Offer Agreement and Additional Protocol, come into force. The power allows the legislation to be amended as a consequence of those new agreements with the IAEA. This section does not confer discretion on the Secretary of State to change the substance of what is permitted by the 1978 Act, 2000 Act or the 2004 Regulations.

Section 3: Report on nuclear safeguards

  1. Section 3 requires the Secretary of State to prepare a report for Parliament containing information about nuclear safeguards for each three month period in the year after the Act is passed. Each report must be laid before Parliament after the three month period to which it relates.
  2. Subsection (2) provides that information about nuclear safeguards includes information about international arrangements and domestic arrangements in the United Kingdom. For example, reports could include information on the development of the domestic operational arrangements required for the new domestic safeguards regime, such as those being put in place by the Office for Nuclear Regulation.
  3. Subsection (3) provides that the reports may also include information on future arrangements with Euratom including on nuclear research and development and the import and export of qualifying nuclear material.

Section 4: Request for continuation of existing agreements

  1. Section 4 requires the Secretary of State to make a relevant request (as defined in subsection (4)) to the European Council if neither of two conditions is met at the beginning of the period of 28 days ending with exit day (as defined in the European Union (Withdrawal) Act 2018.
  2. Subsection (2) sets out the first condition (Condition 1), namely that all of the principal international agreements (as defined in subsection 5) have been signed. This includes bilateral agreements with the IAEA that relate to nuclear safeguards, as well as agreements relating to nuclear safeguards between the UK and, respectively, the governments of Australia, Canada, Japan and the United States of America.
  3. Subsection (3) sets out the second condition (Condition 2), namely that for any principal international agreements that have not been signed, arrangements for the corresponding Euratom arrangements (as defined in subsection (6)) to continue to have effect in relation to the UK have been made or will be made before exit day.
  4. Subsection (4) sets out the detail of the relevant request to the European Council which the Secretary of State is required to make if neither of Conditions 1 and 2 is met. Specifically, the request is, in respect of any principal international agreements for which Conditions 1 and 2 are not satisfied, for the corresponding Euratom arrangements to continue to have effect in relation to the UK after exit day until one of the conditions specified in subsection (4) is satisfied.
  5. Subsection (7) defines the meaning of "exit day" (as used in subsection (1)), "the Safeguards Agreement" and "the Additional Protocol" (as used in subsection (6)), and "signed" (as used in subsection (2)).

Section 5: Extent

  1. The Nuclear Safeguards Act extends to England and Wales, Scotland and Northern Ireland, and amendments made by this Act to the 2013 Act have the same extent within the United Kingdom as the provision they have amended. More information about the extent of the Nuclear Safeguards Act can be found in paragraphs 24 to 28 above.

Section 6: Commencement

  1. Section 6 provides for sections 3, 5, 6 and 7 to commence on Royal Assent. The main provisions of the nuclear Safeguards Act, under sections 1, 2, 4 and the Schedule, will be commenced on such day or days appointed by the Secretary of State in regulations. The Secretary of State may appoint different days for different purposes and the regulations may include transitional, transitory or saving provision (subsection (3)) and specify a particular time of day (subsection (4)).

Section 7: Short title

  1. Section 7 is self-explanatory.

Schedule: Minor and consequential amendments

  1. The Schedule contains minor and consequential amendments to ensure that the United Kingdom’s new domestic civil nuclear safeguards regime will be able to operate properly.
  2. All of the amendments contained in the Schedule, apart from the last amendment, relate to the 2013 Act. They include:
    1. allowing the ONR to make proposals to the Secretary of State about regulations under section 76A (paragraph 3);
    2. ensuring that the ONR must make adequate arrangements for the enforcement of nuclear safeguards regulations (paragraph 4);
    3. adding nuclear safeguards regulations to the definition of "relevant statutory provisions" in section 82(2) (also paragraph 4);
    4. removing the duty of the ONR in relation to nuclear safeguards contained in section 93 because the effect of the duty is replicated by section 72(b) and section 78 (paragraph 6);
    5. extending the duty of employers at work to help persons subject to obligations under nuclear safeguards regulations to comply with them (the amendments to sections 102 and 104 in paragraphs 7 and 8);
    6. setting out the parliamentary scrutiny procedures that will govern regulation-making powers inserted by the Act (paragraph 9);
    7. extending the review period for Part 3 of the 2013 Act from 5 years to 7 years - without this change the duty to review Part 3 would arise shortly before the United Kingdom withdrew from Euratom and before the changes made by the Act would come into force (paragraph 10);
    8. extending the power for inspectors appointed by the ONR to issue improvement notices to non-compliance in relation to nuclear safeguards (paragraph 11);
    9. updating the information sharing gateway that applies in relation to nuclear safeguards as a consequence of the changes made by the Act (paragraph 12); and
    10. changing the reference in the 2000 Act from "colony" to "British overseas territory" (paragraph 13).

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