Written
Evidence to the Nuclear Safeguards Bill scrutiny committee
by
Dr David Lowry
senior research fellow
Institute for Resource and Security
Studies
Cambridge
Massachusetts
USA
UK contact 07740503518
Introduction
I listened with increasing degrees of
disbelief to the ‘evidence’ given in oral sessions to your scrutiny committee
on 31 October.
While it is very difficult to attribute
motivation, I could not decide whether witnesses were deliberately presenting
the committee with disinformation, or, despite their job titles and apparent
experience in the field, were ignorant of the very issues they came before you
to discuss. Either way, the outcome was a series of self-serving sets of
answers, which were in many parts distorted, sometimes by omitting relevant
information linked to the answer, inaccurate, misleading or down right
factually wrong.
Below I have submitted my own evidence on
issues I think the committee needs to discuss in order to appreciate the
subtle, nuanced political, diplomatic and technical implications of this bill, but should you invite me to give oral
testimony, I will endeavour to point out some of the more egregious inaccuracies
contained in the oral replies to which I refer above, along with more accurate answers.
Collectively, it is the worst series of
witnesses’ answers I have ever experienced in over 35 years monitoring many
dozens of select committee hearings.
Official government position
In
the Committee stage deliberations of the Nuclear Safeguards Bill, energy minister
Richard Harrington set out the framework and rationale for the Government policy
position on leaving Euratom and replacing the Euratom safeguarding presence in the
UK, telling MPs on the committee on 2 November:
“We have
emphasised our continued commitment to the IAEA and to international standards
for nuclear safeguards and non-proliferation. Nuclear safeguards are reporting
and verification processes by which states demonstrate to the international
community that civil nuclear material is not diverted into military or weapons
programmes. Under the Euratom treaty, the civil nuclear material and facilities
in member states are subject to nuclear safeguards measures conducted by
Euratom, which also provides reporting on member state’s safeguards to the
IAEA. That three-way link allows global oversight of nuclear safeguards.
It is clear that the existence of a UK nuclear safeguards
regime is a prerequisite for the movement of certain nuclear materials called
special fissile materials in and out of the UK. It underpins our international
commitment to the IAEA and our nuclear co-operation agreements…..Nuclear
safeguards include reporting on civil nuclear material holdings and development
plans, inspection of nuclear facilities by international inspectors, and
monitoring through equipment, such as cameras and recording equipment, placed
in the facilities.”
“… We have already made great progress in our work to secure continuity for
our nuclear industry by establishing long-term arrangements to secure nuclear
safeguards. As my right hon. Friend the
Secretary of State set out in September—this is very important—our intention is
for the new domestic regime
“to exceed…the
standard that the international community would require from the UK”
and is expected
to be
“as comprehensive
and robust as that currently provided by Euratom.”
It will be run by
the ONR, which already has regulatory responsibility for nuclear safety and
nuclear security. Therefore, quite apart from the Euratom/Europe issue, it fits
comfortably under that umbrella, although I accept the former—when I say “quite
apart from,” I am not making any value judgment. If we must have a separate
safeguards regime, as we do, the ONR is the natural body for it to fit within.
“The ONR is in
the process of developing an expanded safeguards function. For example, the ONR
will recruit a tranche of inspectors, with further recruitment to come—I am
sure that will be discussed further, because it was mentioned in the evidence
given both to this Committee on Tuesday and to the Business, Energy and
Industrial Strategy Committee yesterday. The ONR will also build additional
institutional capacity and develop the necessary IT systems. ONR experts have
been in discussions with the IAEA on the technical aspects of the new system.
We will also be agreeing a new voluntary offer agreement and additional
protocol with the IAEA, and those negotiations have already begun. I know that
hon. Members from all parties will agree that having a civil nuclear safeguards
regime for the UK is of paramount importance.”
“The Bill amends
the Energy Act 2013 to replace the ONR’s existing nuclear safeguards purpose,
which I have explained, with a new nuclear safeguards purpose definition. The
ONR will regulate the new nuclear safeguards regime using its existing
functions and powers. However, the Bill creates new powers, so that we can put
in place through regulations the detail of the domestic safeguards regime. Some
examples of that would be detail about accounting, reporting, control and
inspection arrangements.
“Finally, the
Bill creates a new but limited power to create regulations to amend the Nuclear
Safeguards and Electricity (Finance) Act 1978, and the Nuclear Safeguards Act
2000 and the Nuclear Safeguards (Notification) Regulations 2004. That power
allows the references in all that legislation to international agreements,
which have been mentioned before, to be updated once new international
agreements have been reached.
“I look forward
to considering all these measures in depth with hon. Members over the next two
weeks. I want to make it clear again that although we are leaving Euratom, we
support Euratom and we will want to see continuity of co-operation and
standards, because we have had a successful relationship with the Euratom
community for more than 40 years and we want to maintain that successful civil
nuclear co-operation.”
In response, Labour front bench
energy spokesperson, Dr alan Whitehead commented and asked:
“I thank the
Minister for his comprehensive, though not entirely conclusive, explanation of
where we are, so far as international agreements and parliamentary scrutiny are
concerned. I would appreciate it if he could give a brief thought to the
question of the point at which the IAEA will conclude that we have transposed
the Euratom responsibilities to the ONR. Will that be when we have passed the
enabling legislation, or when the process is completed and can therefore be
presented in a box, as it were, to the IAEA saying all is done? That itself is
likely to slow up the negotiation process with the IAEA, which I appreciate the
Minister said he considers will be complete by exit day.”
To which the
minister replied:
“I thank the hon.
Gentleman for that valid point, which requires both a simple and a complex
answer. The simple answer is that there is a sequence, and the agreements have
to be ready but will not come into force until after we leave Euratom. The IAEA
has a ratification procedure, which I intend to come to. The agreements have to
be ratified by its board. The bilateral agreements referred to have to be
ratified by the Parliaments of each country involved. I am not led to believe
that that will be a problem, because I am pleased to say that these
negotiations are more in the form of constructive discussions than one side
wanting one thing and another side wanting another. What I am about to say will
hopefully answer the hon. Gentleman’s questions. If not, I am sure that he will
say so, and I am happy to meet him any time to discuss that.
“I understand
that hon. Members are concerned to ensure that there is parliamentary scrutiny.
I have covered that, but I must stress that the measures in the amendment would
be a significant departure from the usual position on the ratification of
treaties, and I do not consider it appropriate in the context of the Bill. As
Members will be aware, the UK Government are responsible for negotiating and
signing international treaties involving the UK and always have been. The
ratification of international treaties is covered in legislation, as the
Constitutional Reform and Governance Act 2010 provides a ratification process
that requires treaties to be laid before Parliament prior to ratification,
except in exceptional circumstances—I do not know what the exceptional
circumstances are, but I imagine they would be a war or something like that.
“The Government
have the power to conclude international treaties under their prerogative
powers. Of course, that cannot automatically change domestic law or rights and
cannot make major changes to the UK’s constitutional arrangements without
parliamentary authority. That remains the case for international agreements
relating to safeguards that are currently under negotiation—for example, the
nuclear co-operation agreements currently being negotiated with the US, Canada,
Japan and Australia, and the new safeguards agreements with the IAEA.
Parliament will therefore have the opportunity to consider those agreements
before they come into force.
We have been open
and honest with Parliament about ongoing negotiations and will continue to do
so. The intention is for those agreements to be presented to Parliament before
ratification, ahead of the UK’s withdrawal from Euratom, and they will come
into force immediately upon our exit.”
He later added,
apparently by way of further elaboration I and explanation, in an incredibly
convoluted passage:
“…let us say
there was a Secretary of State who was misguided or mad enough to say,
“Actually, I am not going to do this because I do not want a nuclear safeguards
regime. I want this country to be like North Korea”—or wherever. I think North
Korea is the only country without a nuclear safeguards regime. If the Secretary
of State desired to take that approach, there would be a lot more tools
available for not having a nuclear safeguards regime than the interpretation of
“may” or “must”. I am not making light of the point—it is dead serious.
No one has
suggested any possibility that we should not have a nuclear safeguards regime,
and wrong interpretation of the “may” or “must” point would mean that someone—a
Secretary of State or a Government—had decided to do that. If a Government had
decided to do that—I know it would not be the Opposition or anyone in any
normal form of politics—such a change of policy would not just rely on an
interpretation of “may” or “must”.”
However, in practice, that is
exactly what is being proposed: an un-safeguards regime, just like North Korea,
that, in the spirit of Alice Through the
Looking Glass, masquerades as a “safeguards” regime: as Humpty Dumpty put
it scornfully, but appositely:
“When I use a word it means just what I choose it to mean — neither
more nor less.”
The international community is
certain to come to a very different interpretation. I explain why below.
The Humpty Dumpty strategy- Safeguards outside Euratom: who will watch the
watchers?
“….It is clear that we need continuity and
must avoid any break in our safeguards regime. The UK meets our safeguards standards
through our membership of Euratom. The Government’s aim is clear: we want to
maintain our mutually successful civil nuclear co-operation with Euratom. We
can do so while establishing our own nuclear safeguards regime, using the body
that already regulates nuclear security and safety: the Office for Nuclear
Regulation. To do that, we need primary legislation.
That is why the
Queen’s Speech on 21 June included our intention to take powers to set up a
domestic nuclear safeguards regime, in partnership with the Office for Nuclear
Regulation, to enable us to continue to meet international safeguards and
nuclear non-proliferation obligations.
The Government’s
primary aim throughout these negotiations will be to maintain our mutually
successful civil nuclear co-operation with Euratom and the rest of the world.
We are strong supporters of Euratom and that is not going to change. “has the power
it needs for a domestic safeguards regime…. We are preparing a domestic nuclear
safeguards Bill; we are opening negotiations with the EU; we are talking to
third countries about bilateral agreements; finally, of course, we are talking
to the International Atomic Energy Agency. My officials have met with IAEA
officials in Vienna and had constructive conversations about a new voluntary
offer agreement, to replace the current one that we have by virtue of our
Euratom membership.”
“Secondly, we are
keen to ensure that there is minimal disruption to civil nuclear trade and
co-operation with non-European partners. To this end, the Government are
negotiating with the United States, Canada, Australia and Japan so that the UK
has appropriate nuclear co-operation agreements in place. Government officials
have met with the Canadian Government and the Canadian regulators; we have also
written to them at ministerial level. Canada is as keen as we are to reach a
new agreement on bilateral terms. That is equally true of the USA, Japan and
Australia, with all of whom we have started constructive discussions.”
(http://hansard.parliament.uk/lords/2017-07-20/debates/02A1B589-EBE5-4E7B-8991-81562A57AFFA/Euratom)
On July 13 this year, the UK Government position paper on “Nuclear materials and safeguards issues,” included the key
proposal that the UK will:
“take responsibility for meeting the UK’s safeguards
obligations, as agree with IAEA (International Atomic Energy Agency).”
The
UK’s chief Brexit negotiator, David Davis MP, commented on the future relations
with Euratom in an interview with BBC an
"arbitration arrangement" would have to be agreed. (“Brexit: UK could be
'associate' of EU nuclear body,” BBC on line, 13 July; http://www.bbc.co.uk/news/uk-politics-40593588) asserting
Mr Davis told the BBC's political editor Laura
Kuenssberg:
"Whether we have an association agreement with the European Union
or we have something independent under the International Atomic Energy
Authority (sic) , we'll provide the sorts of safeguards that we have today at
least."
Mr Davis stressed such an
agreement would not be governed by the European Court of Justice but by an
arrangement to be agreed between the UK and the EU. It remains to be seen if such a proposal is acceptable to
EU v chief negotiator, Commissioner Michael Barnier.
As well as the nuclear question,
it was also "quite likely" that a new "arbitration
arrangement" would be needed to govern the UK's trading relationship with
the EU after Brexit, he said.
The UK government had earlier explained they intend UK nuclear security
regulator, the Office for Nuclear Regulation (ONR) to take over from the
independent safeguards inspectors from Euratom, to ‘self-police’ the
British nuclear industry against military misuse.
This is a highly contendable and certainly contentious proposal: just
imagine if Iran or North Korea proposed to do that!
It should also be noted that even under the Euratom safeguards regime
the UK has withdrawn fissile nuclear
materials, including plutonium, from safeguards on at least 600 occasions since
the U.K’s trilateral safeguards treaty with Euratom and IAEA came into force in
1978 (http://www.hse.gov.uk/nuclear/safeguards/withdrawals.htm & http://www.onr.org.uk/safeguards/withdrawals.htm)
The European Commission’s own Position paper transmitted to EU27 on nuclear materials and safeguard equipment (Euratom) released on 23 June 2017 (https://ec.europa.eu/commission/publications/position-paper-transmitted-eu27-nuclear-materials-and-safeguard-equipment-euratom_en) states the European commission position on post-Brexit safeguards application in the UK as follows:
“The United Kingdom
is a member of the International Atomic Energy Agency ("IAEA") and
bound by international conventions to which it is a party in its own right.
From the withdrawal date, the United Kingdom will have sole responsibility for
ensuring its compliance with international obligations arising therefrom.
Given that the Treaty
will cease to apply in the United Kingdom, it appears appropriate that the
Withdrawal Agreement set out arrangements for the transfer of the ownership of
special fissile materials and Community property located in the United Kingdom
used for the purposes of providing safeguards to the United Kingdom, respecting
the Community's obligations under international agreements.
The Withdrawal
Agreement should also provide that the United Kingdom assume all rights and
obligations associated with the ownership of materials or property transferred
and should regulate other questions related to material and property under the
Treaty, in particular safeguards obligation.”
Conclusion
In
my view, the witness for the Office for Nuclear Regulation, Dr Golshan,
should have addressed the implications of the “withdrawal” clause 14 in the extant trilateral involuntary “voluntary” nuclear safeguards agreement between the UK-
IAEA and Euratom when deliberating the mechanics of replacing this agreement
with a new one, under the self-policing of the ONR.
The UK nuclear regulator is going to be
given unprecedented responsibility for policing a diplomatically contentious
new arrangement, which will increase suspicion among member states of the 1968
Nuclear Non Proliferation Treaty ( for which the UK , as a co-drafter of the
treaty text, is one of three depositary states)
– which ministers pray-in-aid whenever they discuss the rationale for a
UK nuclear safeguards system. However, ministers routinely cherry-pick those
parts of the NPT that suite their purposes: but the NPT is an integrated
diplomatic agreement, with its articles all relevant and related.
Cherry-picking is both diplomatically unwise, as it normalises abrogation for
other signatory nations, and undermines
the very treaty for which the UK is supposed to act as a protective depositary
state!
The UK is already in very bad diplomatic
odour with many dozen NPT member states – the treaty has 191 signatories - for
its fifty-year abject failure to abide by the NPT article 6 requirement to:
“pursue
negotiations in good faith on effective measures relating to cessation of the
nuclear arms race at an early date and to nuclear disarmament.”
The proposed arrangements for a new
self-policed “safeguards” regime for the UK will undoubtedly add to the bad image
of the UK in the wider international community as a state that abrogate its
international treaty commitments.
This diplomatic dimension has been totally
overlooked by the ONR and utterly ignored by ministerial evidence to this
committee: the consequences further down the road will be predictably dire.
There
is time to avoid this outcome; but minister must be prevailed upon to change
their currently untenable negotiating stance. ONR has a key, proactive and
robust role to play in doing so. I hope for the future credibility of British
diplomatic reputation- which has suffered serious damage in recent weeks due to
the multiple failures of the Foreign
Secretary - ONR steps up to the plate
and intervenes.
Dr David Lowry
Stoneleigh, Surrey
13 November 2017
