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Session 1999-2000
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Nuclear Safeguards Bill [H.L.]


 

These notes refer to the Nuclear Safeguards Bill [H.L.]
as introduced in the House of Lords on 18th November 1999 [HL Bill 5]

Nuclear Safeguards Bill [H.L.]


EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Nuclear Safeguards Bill [H.L.] as introduced in the House of Lords on 18th November 1999. They have been prepared by the Department of Trade and Industry in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND

3.     The purpose of the Bill is to put in place the legal powers and duties needed to enable the United Kingdom to fulfil its obligations under the new Additional Protocol referred to in paragraph 9 below, concerned with nuclear non-proliferation. It does this by overriding legal restrictions which would otherwise prevent or inhibit the disclosure to the Secretary of State of information which the UK will have to give to the International Atomic Energy Agency (IAEA); by enabling the Secretary of State to require people to give him such information; by giving officers authorised by the Secretary of State a right to enter premises to obtain information which has been required but not given; and by giving inspectors from the IAEA rights of access to locations in the UK which the inspectors are entitled to visit under the new Additional Protocol.

4.     It is expected that the information and access for IAEA inspectors will be provided voluntarily by those from whom it is sought. However, to ensure that the UK can comply with its international obligations even where someone does not co-operate, the Bill makes it a criminal offence not to give such information to the Secretary of State when required, or to obstruct officers authorised by the Secretary of State or IAEA inspectors in exercising the rights given to them by the Bill.

5.     The Bill also contains provisions, among other related matters:

    1)     to deal with false statements;

    2)     to ensure that officials only use information obtained under the Bill or new Additional Protocol for relevant purposes; with certain limited exceptions it will be an offence otherwise to disclose any information; and

    3)     to allow, if necessary, extension of the Act by Order in Council to cover the Channel Islands, Isle of Man, and the dependent territories.

6.     The IAEA operates a system of nuclear safeguards designed to ensure that nuclear materials in civil use are not diverted for use in non-nuclear weapon States (NNWS) to develop clandestine nuclear weapons programmes. This system has traditionally focused on nuclear materials accountancy and control and is implemented in States which have concluded legally binding "safeguards agreements" with the IAEA in accordance with their international obligations under the Nuclear Non-Proliferation Treaty of 1968. Although not required to do so by the 1968 Treaty, the UK - like the other nuclear weapon States - has concluded a voluntary Safeguards Agreement with the IAEA.

7.     After the Gulf War, it was found that Iraq had been pursuing a clandestine nuclear weapons programme despite having in force a comprehensive safeguards agreement with the IAEA designed to cover all source and special fissionable material in Iraq. North Korea was later found also to have been developing such a programme. These discoveries drew attention to the fact that the effectiveness of the international nuclear safeguards regime was, to a large extent, dependent upon States acting in good faith in declaring their holdings of nuclear material and related activities.

8.     The IAEA has subsequently developed an improved system of safeguards aimed at strengthening its ability to detect undeclared nuclear activities in NNWS. The basic idea is that the provision of additional information to the IAEA and greater access for IAEA inspectors will enable the IAEA to build up a more complete picture of a State's nuclear-related activities, thereby enabling it to look for inconsistencies or anomalies which could be indicative of clandestine activities. A key feature of the new system is that, for the first time, it gives the IAEA access to information on nuclear fuel cycle-related activities (for example, manufacture of specialised equipment, and research and development) even where nuclear material is not involved. Some features of the improved system require new legal authority beyond that in existing safeguards agreements, so the IAEA has been negotiating with member States new protocols additional to these agreements, providing for the new features. These "additional protocols" are based on a Model Protocol (IAEA document INFCIRC/540) agreed by the IAEA Board of Governors in May 1997.

9.     The Additional Protocol to the UK's Safeguards Agreement takes account of the United Kingdom's status as a Nuclear Weapon State and, like the additional protocols applicable to other Member States of the European Union, has three Parties: the European Atomic Energy Community as well as the UK and the IAEA. It was agreed by the Council of Ministers on 8 June 1998 and approved by the Board of Governors of the IAEA on 11 June. The Additional Protocol was signed in Vienna on 22 September 1998. The text of the Additional Protocol was presented to Parliament earlier this year in a Command Paper (Cmnd 4282).

COMMENTARY ON CLAUSES

Clause 1: Interpretation

10.     Subsection (1) identifies the Additional Protocol and defines terms used in the Bill.

11.     Subsection (3) provides that the text of the Additional Protocol relevant for the purposes of the Bill is that signed in September 1998, but including any amendments to two of its Annexes made by the Board of the IAEA in accordance with provisions in Article 16.b. of the Additional Protocol. These Annexes identify nuclear fuel cycle-related activities, equipment and non-nuclear material on which information has to be provided to the IAEA under the Additional Protocol.

Clause 2: Information and records for purposes of the Additional Protocol

12.     This clause enables the Secretary of State to obtain the information (defined in Clause 1(1) as "Additional Protocol information") needed for the UK to meet its reporting obligations under the Additional Protocol. These obligations are in Articles 2.a.(i), (ii), (iii), (vii), (viii), and (ix), 2.b. and 2.c. of, and Annex III to, the Additional Protocol.

13.     Subsections (1) and (6) override any obligation of secrecy or other restriction (for example, in a statute or under contract) which would otherwise prevent a person from giving the Secretary of State Additional Protocol information. Subsection (1) covers voluntary disclosure, where a person has reasonable cause to believe that he has information which is Additional Protocol information. Subsection (6) covers information requested in a notice served by the Secretary of State under subsection (2).

14.     Subsection (2) enables the Secretary of State to serve a notice on a person requiring that person to give information to the Secretary of State, in a form and within a period or at times specified in the notice. Subsection (3) provides that such a notice can only require information which the Secretary of State has reasonable cause to believe is Additional Protocol information, though this can relate to a time before the Bill or the Additional Protocol comes into force. Under subsection (5) it will be a criminal offence not to comply with such a notice unless there is a reasonable excuse for not doing so. This will enable someone to be prosecuted who fails to provide the information when the notice requires or in the form specified in the notice; if anyone refuses outright to comply with a notice, it will be possible to prosecute them without having to wait until the end of the period or time specified in the notice.

15.     In practice, it is anticipated that the great majority of the information required by the IAEA from the UK will be given to the Government voluntarily by those who have it, and formal notices under this clause will rarely be needed. The Safeguards Office of the Department of Trade and Industry will issue detailed Guidelines to everyone known to the Department from whom information may be required for the purposes of the Additional Protocol. The Guidelines will say what information is required, and in what form. The Safeguards Office plans to send a copy of the Guidelines to a person not later than the first time that person is asked to give information for the purposes of the Additional Protocol, whether by a formal notice under the Bill or not; and to send out revised versions of the Guidelines every time they are updated. Further copies will be readily available from the Safeguards Office without charge.

16.     It is anticipated that the Secretary of State will not normally need to ask for information not covered by the Guidelines, except where the UK and IAEA agree under Article 2.a.(ii) of the Additional Protocol that additional information should be provided. Any notices which are served will therefore normally correspond with the Guidelines. If a notice has to be used to obtain extra information agreed by the UK and the IAEA under Article 2.a.(ii) of the Additional Protocol, subsection (4) requires the notice to set out what has been agreed.

17.     Subsection (7) imposes on anyone on whom a notice under subsection (2) is served a requirement to keep from then on whatever records may be necessary to enable them to comply with the notice (and to retain any relevant existing records they may already have). If someone who fails to keep adequate records after a notice has been served does not give the information required by the notice, and is then prosecuted under subsection (5), the failure to keep records will be taken into account in the proceedings in deciding whether the person had a "reasonable excuse" for not giving the information.

Clause 3: Identifying persons who have information

18.     The power in clause 2 to require people to provide information will be of limited value if the Secretary of State does not know whom to ask. Whilst the Secretary of State is likely to know the great majority of people from whom he will need information, there may be others of whom he is initially unaware. Therefore, subsection (1) of this clause empowers 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. Under subsection (2), these descriptions must relate to categories of persons about whose activities the UK must provide information to the IAEA under the Additional Protocol, or who are otherwise likely to have information which the Secretary of State has reasonable cause to believe he will need in order for the UK to comply with its reporting obligations under the Additional Protocol. Any such regulations will take the form of a statutory instrument subject to negative resolution procedure (subsection (4)).

19.     It is anticipated that regulations are likely to be made requiring people to indicate if they are carrying out those activities covered by the Additional Protocol about which the Government would not necessarily otherwise know (this could include, for example, manufacturing anything listed in Annex I to the Additional Protocol, carrying out certain nuclear fuel cycle-related research and development activities relevant to a NNWS, or transferring from the UK to a NNWS within the European Community anything listed in Annex II), and to give similar details to those required by the regulations which have been made under a corresponding provision in section 23 of the Chemical Weapons Act 1996: their name and address; and the address of any locations at which they carry out relevant activities.

20.     If any such regulations are made, subsection (5) requires the Secretary of State to publicise this in a way likely to bring the regulations to the attention of those to whom they apply. Under subsection (6) it will be a criminal offence not to comply with such regulations unless there is a reasonable excuse for not doing so.

Clause 4: Power of entry to obtain information

21.     This clause empowers an officer authorised by the Secretary of State to apply for a warrant to enter any premises in the UK in order to search for information needed by the Secretary of State in order to comply with the Additional Protocol.

22.     Subsection (1) covers the case where a person served with a notice under clause 2 has refused to give all the information specified in the notice, or has failed to do so when the notice required. Subsection (2) covers the case where it appears that any document or other thing containing information needed by the Secretary of State, or from which such information can be obtained, is likely to be altered, destroyed or disposed of without the information being given to the Secretary of State. In both cases the powers only apply if the Secretary of State has not obtained the information by other means.

23.     It is thought unlikely in practice that these powers will have to be used, as it is expected that all information required for the purposes of the Additional Protocol will be given voluntarily. However, the powers are needed so as to ensure that the Secretary of State can fulfil the UK's obligations under the Additional Protocol even if information were withheld despite a notice being served, or if a risk arose of something containing Additional Protocol information being tampered with so that the information could not be given to the Secretary of State.

24.     The powers apply to any premises (which in an extreme case could include domestic premises) where there are reasonable grounds for believing that a document or other thing containing the information in question, or from which that information can be obtained, is to be found. The powers can only be exercised at a reasonable time, and only if a police constable is present if that is what the warrant says.

25.     Subsection (5) defines specific acts which an authorised officer can do in the course of exercising a power of entry. Subsection (6) enables a police constable, who enters premises under the powers in this clause, to assist the authorised officer, including searching anyone on the premises who the constable has reasonable cause to believe may be in possession of any document or other thing containing Additional Protocol information or from which such information may be obtained.

26.     Under subsection (9) it will be a criminal offence wilfully to obstruct an authorised officer exercising any of these powers or not to comply with a reasonable request made by an authorised officer or a police constable (unless there is a reasonable excuse for not doing so).

Clause 5: Rights of access etc. for Agency inspectors.

27.     The Additional Protocol requires the UK to provide the IAEA with certain rights of access to premises, and rights to carry out certain activities there. This clause confers on IAEA inspectors the powers necessary to achieve this.

28.     Subsections (1), (2) and (4) empower IAEA inspectors and officers authorised by the Secretary of State to enter premises as provided for in Articles 4, 5 and 9 of the Additional Protocol and give the inspectors a right to carry out there the activities provided for in Articles 6 and 9 respectively.

29.     Subsection (2) makes clear that these rights are subject to the constraints laid down in relation to them by the Additional Protocol, and by the provisions of the Safeguards Agreement so far as applicable. These constraints include conditions in Article 4 of the Additional Protocol to which the rights of access under Articles 4 and 5 are subject and limits in Article 4 on the purposes for which, circumstances in which, or extent to which those rights may be exercised. All the access rights are also subject to any arrangements for "managed access" made under Article 7: this means access subject to special conditions at the request of the Secretary of State or a person concerned in order to protect sensitive items or information - for example on grounds of commercial or proliferation sensitivity. Article 6 limits the range of activities which can be carried out at each type of location. If the UK and the IAEA agree under Article 13 on any "subsidiary arrangements" about how measures in the Additional Protocol are to be applied, it will only be permissible to exercise the rights given by this clause in accordance with those arrangements.

30.     Article 6 of the Additional Protocol allows further activities to be defined by the IAEA in future, after consulting the UK, which inspectors will then also be entitled to carry out. So that anyone whose land may be visited by an inspector can know what any such further activities are, subsection (3)(a) enables the Secretary of State to specify these activities in an order made by statutory instrument. An inspector will have no right to carry out these activities until they have been so specified. Subsection (3)(b) enables the Secretary of State to specify in such an order the procedural arrangements for carrying out wide-area environmental sampling, if in future the IAEA approves the use of such sampling under Article 9 of the Additional Protocol.

31.     Subsection (5) provides for a police constable to give assistance requested by an IAEA inspector or an authorised officer accompanying an inspector, including using reasonable force if necessary.

32.     Subsection (6) enables the Secretary of State to certify conclusively any facts relevant to whether a person was an IAEA inspector while purporting to exercise powers under this clause, if that is ever in doubt in court proceedings.

33.     Under paragraph (a) of subsection (7) it will be a criminal offence wilfully to obstruct an inspector or authorised officer exercising these powers; under paragraphs (b) and (c), it will be an offence to interfere with anything placed on land by an inspector, or not to comply with a reasonable request made by an inspector, authorised officer or police constable to facilitate exercise of the powers conferred by this clause, unless there is a reasonable excuse.

Clause 6: Restriction on disclosure

34.     This clause protects information obtained under or in connection with anything done under the Bill or the Additional Protocol if it relates to a particular business or other activity. Subject to certain exceptions set out in paragraphs (a) to (f) of subsection (2) and in subsection (4), it will be an offence to disclose any such information. The persons to whom this clause applies include civil servants who obtain information in the course of carrying out functions under the Bill or the Additional Protocol.

Clause 7: Giving false or misleading information

35.     Under this clause, it is an offence knowingly or recklessly to make a false or misleading statement when giving any information for the purposes of the Bill or the Additional Protocol, or in response to a requirement in regulations made under clause 3, or during a visit by an Agency inspector, whether the information is given voluntarily or not.

Clause 8: Power to search and obtain evidence

36.     This clause provides officers authorised by the Secretary of State with the power to search premises for evidence of the commission of an offence under the Bill. The power can only be exercised if a warrant has been obtained from a magistrate, and only if a police constable is present if that is what the warrant says.

37.     Subsection (1) defines the circumstances in which such a warrant may be issued. Subsection (2) lists specific powers available to an officer authorised by such a warrant while on the premises.

38.     Subsection (3) enables a police constable, who enters premises under the powers in this clause, to assist the authorised officer, including searching anyone on the premises who the constable has reasonable cause to believe may be in possession of any document or other thing which may be required as evidence of an offence under the Bill.

39.     Under subsection (6), it is a criminal offence wilfully to obstruct an authorised officer carrying out a power conferred by a warrant under this clause, or not to comply with a reasonable request made by such an officer or a police constable (unless there is a reasonable excuse for not doing so).

Clause 9: Penalty for offences, and offences by bodies corporate

40.     Subsections (1) and (2) define the penalties for committing the offences created by the Bill. Disclosure of information contrary to clause 6, and knowingly or recklessly giving false or misleading information contrary to clause 7, are punishable in a magistrates' court by a fine up to the statutory maximum (currently £5,000), or after a jury trial by an unlimited fine or up to two years' imprisonment (or both). The maximum penalties for all the other offences are a fine up to the statutory maximum in a magistrates' court, or an unlimited fine after a jury trial.

41.     The remainder of this clause deals with cases where a corporate body or a Scottish partnership commits an offence under the Bill. Subsections (3) and (5) render officers of a corporate body or partners in a Scottish partnership liable for the offence committed by the body or partnership if it can be proved that the offence was committed with their consent or connivance or was attributable to their neglect. Subsection (4) extends the definition of "director" to cover a member of a corporate body where the corporate body's members manage its affairs.

Clause 10: Service of notices

42.     This clause sets out how a notice under the Bill may be served. Subsections (2) and (3) make special provision for service on a corporate body, a partnership, or an unincorporated association other than a partnership.

Clause 11: Minor and consequential amendments

43.     Subsections (1) and (2) ensure that persons designated as IAEA inspectors under the new procedure in Article 11 of the Additional Protocol, like those designated under the original procedure in the Safeguards Agreement of 1976, can exercise in respect of premises and sites covered by the Atomic Energy Authority Act 1954 and the Nuclear Installations Act 1965 the powers of entry in the Bill and in the 1978 Act implementing the Safeguards Agreement.

44.     Subsection (3) provides for amendments to the 1978 Act implementing the Safeguards Agreement. Paragraph (a) allows functions under the 1978 Act to be carried out by IAEA inspectors designated under Article 11 of the Additional Protocol, as well as those designated under the Safeguards Agreement. Paragraph (b) brings the maximum penalties for breach of the 1978 Act into line with those under this Bill. Paragraph (c) enables the Secretary of State to certify conclusively any facts relevant to whether a person was an IAEA inspector while purporting to exercise powers under the 1978 Act, if that is ever in doubt in court proceedings.

Clause 12: Short title etc.

45.     This clause deals with the short title, commencement and territorial extent of the Bill. Also, subsection (3) makes clear that the new powers given by this Bill do not affect any powers in other legislation, such as the power to obtain information and the power of entry given by sections 4 and 5 respectively of the Atomic Energy Act 1946. Subsection (4) enables the Bill (and the 1978 Act implementing the 1976 Safeguards Agreement) to be applied by Order in Council, with appropriate modifications, to the Channel Islands, the Isle of Man and any colony. Such Orders may be necessary if any activity within the scope of the Safeguards Agreement or the Additional Protocol starts to be carried on in any of these territories.

FINANCIAL EFFECTS OF THE BILL

46.     The increase in public expenditure attributable to implementing the measures in the Bill will be minimal.

EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER

47.     The Bill will not require any increase in the number of permanent staff in the public service.

REGULATORY IMPACT ASSESSMENT

48.     There will be a small additional cost to industry in implementing the Bill's provisions. The total cost to industry is estimated to be no more than £150,000 for the first year of implementation and £100,000 annually after that.

49.     A Regulatory Impact Assessment on the Bill has been prepared.

COMMENCEMENT

50.     The Bill is to come into force in accordance with one or more commencement orders made by the Secretary of State. This will be done to coincide with ratification of the Additional Protocol, which will not become binding until it is ratified. It is anticipated that all the Member States of the European Atomic Energy Community will ratify the additional protocols applicable to them at the same time. All European Union Member States are committed to rapid implementation of their additional protocols and are aiming to bring them into force by the time of the Review Conference on the Treaty on the Non-Proliferation of Nuclear Weapons in 2000.

EUROPEAN CONVENTION ON HUMAN RIGHTS

51.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). Lord McIntosh of Haringey has made the following statement:

    In my view the provisions of the Nuclear Safeguards Bill [H.L.] are compatible with the Convention rights.

 
 
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