Safeguarding Britains Nuclear Non-Proliferation Obligations After Brexit

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Robert J Downes
Commentary,

Britain’s Nuclear Safeguards Bill overcame its first major hurdle last week and will now undergo further parliamentary scrutiny before receiving Royal Assent later this year. Now is a good time to reflect on the Bill’s necessity and the obstacles it will face.

Britain’s departure from the EU in March 2019 will have an impact on safeguards at civil nuclear facilities. To provide the legal basis for a new safeguards system after Brexit the Nuclear Safeguards Bill is currently undergoing parliamentary scrutiny.

The referendum result offered no guidance on the UK’s future relationship with Europe. Prime Minister Theresa May sought to shape events by drawing a line in the sand, saying the UK would take back control of its laws from Brussels, which meant quitting Europe’s highest court, the European Court of Justice (ECJ).

In nuclear terms, there are many implications of this decision. Controversially, triggering Article 50 empowered the government to withdraw from the European Atomic Energy Community – Euratom – which operates under the jurisdiction of the ECJ in March 2019.

Brexit has far-reaching consequences for the UK, particularly its obligations under the Nuclear Non-Proliferation Treaty

This decision has far-reaching consequences for the UK, particularly its obligations under the Nuclear Non-Proliferation Treaty (NPT). Together with the International Atomic Energy Agency (IAEA), Euratom ensures that UK civil nuclear facilities comply with safeguards requirements.

However, the UK will repatriate this role in March 2019. This will require the empowerment of the Office for Nuclear Regulation (ONR) – an existing and independent British statutory body – and the conclusion of a new safeguards agreement with the IAEA.

The Nuclear Safeguards Bill is the legislative vehicle for these new powers; it is therefore instrumental in containing the collateral damage of an unwanted nuclear Brexit.

Under Euratom, mandatory safeguards apply to all civil nuclear materials and facilities in the UK. This will change when the UK withdraws

MPs have repeatedly expressed concern over the potential diminution of safeguards standards attendant upon leaving Euratom. Yet, while there is a grain of truth in this assertion, a lack of nuance clouds debate.

Under Euratom, mandatory safeguards apply to all civil nuclear materials and facilities in the UK. This will change when the UK withdraws.

Non-nuclear weapons states are required to sign Comprehensive Safeguards Agreements (CSA) with the IAEA under the NPT. These allow for peaceful nuclear technology while ensuring there is no development of nuclear weapons.

As a nuclear weapons state, the UK is not required to sign a CSA – it will instead conclude a new Voluntary Offer Agreement (VOA) with the IAEA. Various civil facilities will be ‘voluntarily offered’ by the UK for safeguarding. The IAEA will then safeguard some of these facilities, ensuring civil nuclear materials are used for peaceful purposes.

After Brexit, nuclear safeguards in Britain will be increasingly consensual rather than mandatory

In this narrow sense, Euratom’s standards are stricter than those of the IAEA: after leaving the EU, safeguards in Britain will be increasingly consensual rather than mandatory. This gives some credence to the idea that safeguards standards are being diminished. However, this does not that imply the UK is turning its back on its non-proliferation obligations.

First, nuclear weapons states, including the US, have concluded VOAs with the IAEA. No one is concerned about weaknesses in safeguards – the US meets its NPT obligations satisfactorily.

Second, IAEA and Euratom safeguards are based on different precepts. The IAEA is about non-proliferation. Conversely, Euratom is about economics – safeguards contribute to a level playing field in Europe, ensuring that, say, France and the UK do not benefit economically from their nuclear weapons programmes.

Third, the ONR has not expressed concerns about achieving IAEA standards following Brexit. The UK will seemingly be able to meet its commitments under the NPT.

Expect an increasing focus on the UK’s future relationship with the IAEA and Euratom, and Nuclear Cooperation Agreements with third-party states

This stands in contrast to Euratom standards. While the UK has committed to meeting this higher standard in future – to facilitate cooperation – the pledge is unlikely to be achieved in the short-term. While this is unfortunate, it is IAEA standards that are key from a non-proliferation perspective.

Ultimately, the government has no choice but to get the Bill through Parliament. The UK must have a fully functional domestic safeguards regime following Brexit. In no way is this a ‘contingency measure’ as the opposition Labour Party suggests.

The government could help its cause by being more respectful of parliament – releasing documentation in a timely way, for instance – although delays are dictated partly by the Brexit-driven workload affecting much of Whitehall.

Expect an increasing focus on the UK’s future relationship with the IAEA and Euratom, and Nuclear Cooperation Agreements with third-party states. The latter enable the UK’s civil nuclear sector to function, providing a legal basis for trade and supporting the movement of nuclear specialists from the EU and beyond. This is essential in delivering the UK’s ambitious nuclear ‘new build’ programme.

As a foretaste of things to come, the House of Lords EU Committee concluded in a recent report that ‘[f]ailure to replace [Euratom’s] provisions by the point of withdrawal could result in the UK being unable to import nuclear materials and have severe consequences for the UK's energy security’. The debate is only just starting.

Robert J Downes is a MacArthur Foundation-funded Fellow at the Centre for Science and Security Studies, King’s College London.

Banner image: Workers at Dungeness B nuclear power station in Kent during last year's shut down for maintenance

The views expressed in this Commentary are the author's, and do not necessarily reflect those of RUSI or any other institution.

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