Environment, Climate Change and Land Reform Committee

Meeting date: Tuesday, September 25, 2018

Official Report 756KB pdf

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European Union (Withdrawal) Act 2018

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Ionising Radiation (Basic Safety Standards) (Miscellaneous Provisions) (Amendment) (EU Exit) Regulations 2018

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Justification Decision Powers (EU Exit) Regulations 2018

The third item on our agenda is evidence taking on a proposal by the Scottish Government to consent to the UK Government legislating using powers under the European Union (Withdrawal) Act 2018 in relation to UK statutory instrument proposals.

We are joined by Charles Stewart Roper from the Scottish Government and James Hamilton, solicitor for the environmental branch of the Scottish Government’s rural affairs division. I welcome you both.

Good morning, gentlemen. In the event that there is a deal that includes a transition period, will there require to be changes to the provisions in the regulations? What will those changes be and how will they be achieved?

No, the changes will not come into force until exit day, whenever that is. If there is a transition period, all that we will have done is to get the regulations ready early. The changes will still need to be made, but they will not come into force until exit takes place.

Excellent. Could the Scottish Government give more detail about which reserved and devolved responsibilities and/or powers are relevant to the regulations?

There are two sets of regulations. The Ionising Radiation (Basic Safety Standards) (Miscellaneous Provisions) (Amendment) (EU Exit) Regulations 2018—they are very snappily titled—is a set of regulations for environmental protection under the basic safety standards directive that provide for protection of the public and the environment from radiation in the environment. The powers that pertain to us under those regulations are mainly about levels of acceptable contamination and setting standards for clean-up and decontamination.

The powers are both reserved and devolved. Obviously they are devolved to Scotland in terms of the amount of radioactive substance legislation that is devolved to Scotland, such as the contaminated land regulations. The instrument makes no change to the balance or exercise of the powers. It just updates the references so that the regulations stay effective in the event of exit.

The powers in the Justification Decision Powers (EU Exit) Regulations 2018 generally would only be exercised at a reserved level but, in principle, they could also be exercised at a devolved level if somebody wanted to do something with radiation in Scotland only, which is an unlikely eventuality. Again, the changes to the regulations make no change to the balance of reserved and devolved powers; they merely update the way in which they can be exercised to make sure that they are still exercisable after exit.

Are you, as a representative of the Scottish Government, satisfied that the regulations will receive the appropriate level of scrutiny at Westminster?

Yes, I am. As you know, we are the first to bring one of these consent notifications to the committee. My colleagues down south have been working hard to be ahead of the wave of measures that are being introduced by Westminster. These regulations will receive the appropriate level of scrutiny. They have already had quite a lot of revision and checking at official level in Whitehall and, obviously, we have checked them for our interests.

Given that they are designed merely to maintain the status quo of how the regulations work, I think that there will be sufficient interest to ensure that that is the case.

11:15  

Can you confirm my understanding that a special procedure has been introduced for these EU regulations, with a new committee at Westminster, which means that there will be at least that level of scrutiny of the detail of this legislation and other similar regulations under the European Union (Withdrawal) Act 2018?

Yes.

That is fine. Thank you.

I want to focus on the Scottish Environment Protection Agency’s functions. Will the functions of SEPA be impacted by the introduction of the new regulations? If so, has this been discussed with SEPA?

My understanding is that SEPA’s functions will not be impacted. SEPA’s regulation of radioactive substances is under the Environmental Authorisations (Scotland) Regulations 2018. The effect is that before SEPA can authorise a practice involving ionising radiation, it has to be justified. That justification regime will continue to sit alongside the regulations, with all the existing justified practices, so there will be no effect.

The other instrument deals with the parts of the basic safety standards directive which I do not think impact on SEPA. Again, all that we are doing is seeking to maintain the status quo, so there will be no impact on SEPA’s regulatory activities.

Are there any implications for the transportation of any of these materials? If so, what might they be?

Transportation of radioactive substances is a reserved matter. I am not aware of any changes needing to be made to the transportation regulations, but UK Government colleagues will be assessing whether they need to make any changes to them.

Are you aware whether the Scottish Government has received any representations in relation to the regulations and the intention to consent to UK ministers making regulations on behalf of the Scottish Government?

I do not think that it has, because the clear intention is just to maintain the regulatory systems as they currently are. There has been limited consultation on these regulations but that reflects the fact that there is nothing really to consult on. We are merely acting with our UK colleagues to ensure that the current regulations, which work effectively but quite quietly in the background, can continue to work effectively in the future.

Lastly, are there any enforcement functions under the current regulations that require to be transferred to any Scottish or UK body as a result of the EU exit process? I think that I know the answer, but I would like to get it for the record.

There are no functions that require to be transferred; there is no impact on the existing functions of Scottish regulators.

That is helpful—thank you.

To follow on from that, can you explain how the enforcement functions that exist at the moment in the Euratom treaty under article 106a will be replicated with these regulations on exit?

Sorry—can you ask me that again?

How will the enforcement functions that are currently within the Euratom treaty be replicated on exit from the EU?

I will have to respond to that question in writing, I am afraid.

If you mean the enforcement functions of the treaty—

In relation to environmental protection.

The directly applicable law, which is in regulations, will become either UK law or Scottish law, as relevant, and will be fixed of any deficiencies. Where we are talking about enforcement under the treaty—the requirement that we comply with the treaty—once the UK leaves the treaty, we no longer have that degree of enforcement.

As I am sure you are aware, there is a much wider discussion about how we will provide that sort of underpinning environmental law in the UK and Scotland in future. My colleagues are thinking about that much wider issue, which is to do with the future assurance that environmental laws in general are up to scratch. That assurance is currently given by our membership of the EU and Euratom, and there are on-going discussions about how that should be done in future.

So there is no clarity at the moment about who will carry forward all the aspects of the enforcement function. Is that right? SEPA has a role but—

Sorry, maybe I have confused you. That is entirely clear in relation to the enforcement of the individual sets of regulations. In Scotland, it is SEPA for the radioactive substances regulations and, for transport, it is the Office for Nuclear Regulation. There is no doubt about the enforcement of our domestic regulations. The only point on which there is still discussion relates to the fact that, at the moment, our regulations have to comply with the Euratom treaty, in the same way as other environmental regulations have to comply with relevant directives under the EU treaties. There is still a discussion about that wider issue of assurance of environmental law in future, but there is no doubt about the continued enforceability of all our domestic systems of regulation.

In effect, that is the wider question about who watches the watchers.

Yes.

That is the bit that still has not been decided on.

Yes—it is still under discussion.

Good morning, gentlemen. The Ionising Radiation (Basic Safety Standards) (Miscellaneous Provisions) Regulations 2018 are described as containing “definitional references”. It is proposed that the regulations will be corrected by replacing definitions that refer to a directive with the text of the definitions. Which definitions in the regulations require to be changed and what will the definitions be once amended?

The definition that requires to be changed is the definition of “orphan source”, which currently refers to the definition of “orphan source” in the basic safety standards directive, which itself relies on other terms that are defined in the basic safety standards directive, including “licence” and “authorisation”. Those terms themselves rely on the definition of “competent authority”, as a licence or authorisation has to be granted by a competent authority, and the competent authority has to be in an EU member state. That has the effect of undermining the definition of “orphan source”. A new definition of “orphan source” will be added, and some other definitions will be added to support that.

The other impact is that, instead of a reference to article 102 of the directive, we are introducing the principles in that article in a schedule to the regulations. To support that schedule, BEIS—the Department for Business, Energy and Industrial Strategy—has had to introduce two new definitions: a definition of “protective measures” and a definition of “remedial measures”, which are equivalent to the definitions that currently exist in the basic safety standards directive.

Why will the remainder of the definitions in the regulations continue to be operable post-Brexit? Where the 2018 regulations refer to lists of acceptable materials, is it the intention to remove all references to the directive and its supporting annexes so that if, for example, the directive is amended or superseded, the new regulations will be completely delinked?

It is not the intention to remove all references to the directive. BEIS will have carried out an exercise to identify references to the directive that will create deficiencies, which include things such as references to things happening in member states. Where there are other references to the directive that do not create those sorts of deficiencies, the view is that those can still work effectively.

With regard to the future, references to directives in domestic legislation will take effect at the date when the regulations come into force. Alternatively, in the case of ambulatory references, the effect of the European Union (Withdrawal) Act 2018 is to freeze the ambulatory reference at the exit date. Changes to the regulations after the exit date obviously will not refer to directives, but there are mechanisms in place to address those concerns.

Depending on when that exit day is, is it the intention to transfer the annexes fully into UK law or Scottish law?

I am not sure that there is a straightforward answer to that question. There are various places in domestic law where we already refer to the annexes for those requirements. To that extent, they already form part of domestic law. The change that will happen on exit day is that such changes to address deficiencies will take effect. I gave the example of ensuring that “orphan source” does not become a deficiency and that the reference will continue to work effectively after exit day. There will still be some references afterwards. We are looking to fix the issues to make sure that things still work effectively from exit day.

My question refers to the Justification of Practices Involving Ionising Radiation Regulations 2004, which draws upon the European Communities Act 1972, which gives the UK and Scottish ministers the powers to make specific regulations. What is the process under the 2004 regulations for approval of practices involving ionising radiation? What is the Scottish ministers’ role in that and how will the process change after the amendments are made?

In addition to the regulations is a memorandum of understanding between the Administrations that defines the way that consultation works under the regulations. There is full and close consultation on any proposal that comes forward to ensure that, when something is being agreed at the UK level, the devolved Administrations are fully involved in that decision. That carries forward the memorandum of understanding and the whole system carries forward as it currently functions, and it functions satisfactorily. In fact, these decisions are quite rare. The recent examples have been about reactor technologies for a generation plant. Such decisions do not come up often but a full administrative process is in place in support of the regulations to ensure that, before any regulation is made by UK ministers, there is thorough consultation with us and the other devolved Administrations.

What is the scope of the new power that will replace that in the 1972 act? Will it have any limitations?

The new power is essentially equivalent to the existing power. It is limited in its scope by the 2004 regulations. In essence, it is to document a decision of the justifying authority that a practice is to be justified.

The most recent draft of the statutory instrument that we have seen includes some limitations on that, essentially to make it clear that the power can be used only for the purposes of making a justification decision. The scope is therefore exactly the same.

You might have answered my next question. What parliamentary procedures will be exercised in the UK and the Scottish Parliament?

I would have to double check that. I am almost sure that it would be the negative procedure but I would have to double check.

I have a question about the situation post-Brexit. Has the Scottish Government considered the possibility of standards diverging from those under the directive, such as when new evidence becomes available? How might the UK and Scottish Governments participate in Euratom research past that point?

To take your first question first, you are essentially asking if standards evolve at the Euratom level, will we follow? Generally international standards for radiological protection are set at the higher level of the International Atomic Energy Agency, which is a United Nations body, and are then reflected in EU directives. Our intention and that of the UK Government is to keep an eye on developments at IAEA level and to move with changes to the international standards, at least as fast as the EU does. That should not open up over time a divergence in standards between us and the Euratom structures because the intention is that, in the post-exit world, we will both be following the lead of the IAEA.

On future participation in research, the UK Government’s white paper said that it wanted to seek a very close working relationship with Euratom, including on research. That will be a matter for negotiation—and like all negotiations, it awaits its place in the list of importance—but there is a very clear intention on the part of the UK Government to try to negotiate continued involvement in Euratom’s research activities.

11:30  

As a follow-up to the earlier discussion about enforcement and wider governance, does the IAEA have any governance function with regard to states?

There is a looser reporting obligation. We report on our national programme for radioactive waste and, as far as our participation at a UK level is concerned, we are consulted on matters, and Scottish policies and practices feed into that. The IAEA also does periodic regulatory reviews—indeed, one is due in the next year—in which experts from other IAEA countries are recruited as a team to test our regulatory systems for effectiveness.

That is an external review. It does not quite have the teeth of a Euratom review, because there is no risk of infraction, but it is hard to conceive of any situation in which we or the UK Government would not respond to a recommendation from an IAEA review. It fills many of the roles with regard to external checks on our practices and the quality of our regulatory systems.

Has the Scottish Government had discussions with the UK Government about whether it intends to ensure that the principles of the basic safety standards directive are brought into UK law?

The existing regulations reflect BSSD standards, and the recent transposition exercise ensured that UK regulations were all up to date with the more recent directive. They are now in UK law, and there is no intention on the part of the UK Government to immediately change it. Its stated intention is to maintain the standards as they are, and we have no indication that it wishes to diverge from that.

So that means—

It means that the BSSD standards will roll forward into UK law. Indeed, they are already in UK law, and they will not be taken out of it. What the UK Government is doing is fixing references in our law to ensure that the standards are still effective once we exit and that we have regulations that work in a free-standing way but which have the same standards as those in the BSSD.

Has the Government identified a package of measures that might be required to arrest deficiencies in legal instruments that transpose the BSSD? Can we expect to see more notifications in that package? If so, any information that you can provide—for example, on scope and timescales—would be helpful.

I do not anticipate any more notifications of UK deficiencies, including those involving devolved competences, in the radioactive substances regulations. I think that what has been identified is it.

We might need to make a few changes to deficiencies in our radioactive contaminated land regulations, which we will do on the longer timescale of what we still expect to be the transition period. However, they will likely come forward in a wider wrap-up instrument that will fix minor deficiencies across a range of regulations rather than in a free-standing instrument.

As members have no more questions, I thank the officials for coming along today.

At our next meeting on 2 October, the committee will take evidence from the keeper of the registers of Scotland on the regulations to establish a register of persons holding a controlled interest in land. We will also consider our work programme and a report on the 2019-20 budget.

As agreed earlier, the committee will now move into private session. I request that the public gallery be cleared as the meeting is now closed to the public.

11:34 Meeting continued in private until 12:51.