Committee for Agriculture, Environment and Rural Affairs
Committee Position Paper on the Radioactive Substances Common Framework
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Neither the report nor its contents should be disclosed to any person unless such disclosure is authorised by the Committee.
- Powers and Membership
- Common Frameworks: Background
- Common Framework Timeline
- Radioactive Substances Provisional Common Framework
- Committee Consideration and Recommendations
1. Powers and Membership
1. The Committee for Agriculture, Environment and Rural Affairs is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of Strand One of the Belfast Agreement 1998 and under Assembly Standing Order 48.
2. The Committee has a scrutiny, policy development and consultation role with respect to the Department for Agriculture, Environment and Rural Affairs and has a role in the initiation of legislation.
3. The Committee has power to:
- consider and advise on Departmental budgets and annual plans in the context of the overall budget allocation;
- consider subordinate legislation and take the Committee Stage of primary legislation;
- call for persons and papers;
- initiate inquiries and make reports; and
- consider and advise on matters brought to the Committee by the Minister of Agriculture, Environment and Rural Affairs
4. The Committee has nine members, including a Chairperson and Deputy Chairperson,and a quorum of five. The membership of the Committee is:
Mr Declan McAleer MLA (Chairperson)
Mr Philip McGuigan MLA (Deputy Chairperson)
Ms Clare Bailey MLA
Mrs Rosemary Barton MLA
Mr John Blair MLA
Mr Tom Buchanan MLA
Mr Harry Harvey MLA
Mr William Irwin MLA
Mr Patsy McGlone MLA
5. This paper outlines the considerations of the Assembly’s Committee for Agriculture, Environment and Rural Affairs (AERA) in respect of the Radioactive Substances Provisional Common Framework that was published in December 2021.
6. The Committee undertook scrutiny of the Framework in January and February 2022 in advance of the nationally agreed deadline that jurisdictions across the United Kingdom should aim to have completed parliamentary scrutiny of all Common Frameworks by the end of March 2022.
7. It outlines:
- A brief background to the development of Common Frameworks generally
- A timeline of the provision of information to the Committee relating to the Common Framework and actions taken by the Committee
- A summary of the core aspects of the Framework
- The Committee’s observations and recommendations
3. Common Frameworks: Background
8. Prior to the Brexit referendum in June 2016 a significant number of policies and regulatory frameworks which applied across the United Kingdom (UK) were derived from legislation passed through the European Union (EU) parliament, even if these areas fell within the ostensible authority of devolved administrations. Following the UK’s decision to leave the EU, many of these regulations were automatically transposed into UK law in order to ensure stability and maintenance of a common approach through the transition period.
9. In 2017 the UK Government and devolved administrations in Scotland, Wales and Northern Ireland (NI) commenced a process to evaluate how they would interact in areas of devolved competence where EU legislation had previously had primacy, and how to manage future policy development on these matters.
10. All jurisdictions concluded that maintaining a common approach was desirable and have developed Common Frameworks across a number of policy areas in order to establish a governance structure to facilitate inter-jurisdiction discussion on policy alignment, management of issues of contention and resolution of disputes.
11. The following principles, which have been endorsed by the devolved administrations, underpin Common Frameworks:
- Common Frameworks will be established where necessary in order to enable functioning of the UK internal market, ensure compliance with international obligations, negotiation and implementation of new trade agreements, manage common resources and safeguard security
- Frameworks will respect devolution settlements and the democratic accountability of devolved legislatures – established conventions and practices will be maintained and the competence of devolved institutions will not normally be adjusted without their consent. Devolved administrations will be given equivalent flexibility as afforded under EU regulations and may have a significant increase in decision-making powers
- Frameworks will recognise the economic and social linkages between NI and Ireland and that NI is the only part of the UK which shares a land border with the EU
12. Common Framework development has been led by the Cabinet Office through a five- phase process encompassing stakeholder consultation and engagement of officials across administrations.
13. The particular issues arising from the establishment of the Northern Ireland/Ireland Protocol (the Protocol) which means that some areas of EU legislation continue to apply in NI have been considered in the design of Framework governance structures.
14. This paper contributes to “Phase 4” of the development process by facilitating parliamentary scrutiny and recommendations.
4. Common Framework Timeline
15.A A brief timeline of the AERA Committee’s engagement on the Radioactive Substances Common Framework is provided below:
- 1 September 2020: The Department notified the Committee that the provisional content of the Framework had been agreed by the Minister and a summary of the provisions and proposals was sent to the Committee
- 2 December 2020: The Department provided an update to the Committee on Framework development covering inter-administration co-ordination and indicative timelines for completion
- In June 2021 the Committee wrote to the House of Lords Common Framework Scrutiny Committee to seek an update in respect of Framework progress
- 6 July 2021: The Department informed the Committee that it anticipated Common Frameworks to have Ministerial clearance by mid-October 2021, thereafter enabling Committee scrutiny. The Committee subsequently sought clarity on whether the Department had requested legal advice on some of the draft frameworks and why there was a delay in issuing them for parliamentary scrutiny
- 17 September 2021: the Committee received an update from the Assembly’s EU Affairs team indicating that some Frameworks may be released for scrutiny by the end of September 2021
- 20 October 2021: the Department advised that several cross-cutting issues were preventing clearance of Frameworks and that it would likely be the end of November 2021 before the Committee would have sight of the documents. The Committee sought clarity on what the outstanding cross-cutting issues were
- 8 November 2021: the Department informed the Committee that work was on- going to resolve the issues with a cross-jurisdictional meeting scheduled for mid- November
- 13 December 2021: the Department wrote to the Committee advising that Framework development had moved forward and cross-administration processes had commenced with a view to release of Frameworks early in 2022 for Committee evaluation
- 16 December 2021: Radioactive Substances Provisional Common Framework published
- The Committee sought DAERA’s view on the Common Framework and specifically if there are any specific issues pertaining to its structure and function. The Department replied to the Committee on 22 January 2022
16. The Framework sets out a governance structure for administrations to discuss policy alignment, legislation and regulatory oversight pertaining to the use of radioactive substances including, but not limited to, the following:
- Licencing for the use of radioactive sources
- Security and transport considerations
- Waste management and environmental issues
- The Radioactive Waste Inventory
- Radioactive contaminated land
- Nuclear and non-nuclear waste disposal policies, including risk management
17. Nationally, the UK has signed a co-operation agreement with Eurotam to maintain and continuously improve safety standards in this field and ensure compliance with relevant regulations – this will continue going forward and will be of relevance to the Common Framework.
18. The overarching aim of the Framework is to provide a mechanism for administrations to discuss radioactive substance policy and strategies with a view to:
- Maintaining and improving standards which will not be regressed
- Facilitating multilateral policy development
- Deliver commonality of policy approach where possible and appropriate
- Ensuring consistent application of standards
- Embedding appropriate regulatory frameworks
- Managing policy divergence
19. Proposed changes to policy made by “one or more of UK Government, the Scottish Government or the Welsh Government…. in a way that has policy or regulatory implications for the rest of the UK”, or rule changes brought about in NI due to compliance with the Protocol, will be discussed, considered and managed under the provisions of the Common Framework.
20. The Framework expressly states that “As rules evolve to meet the emerging regulatory needs of the UK, Scottish and Welsh Governments, this Framework will ensure the full participation of Northern Ireland in discussions such that the views of the relevant Northern Ireland Executive Minister(s) are taken into account in reaching any policy or regulatory decisions by the UK, Scottish or Welsh Governments.”
21. The Framework will be delivered within a three-tiered governance structure:
- The Radioactive Substances Delivery Board (RSDB) will be the primary discussion and decision-making forum comprising policy officials from all jurisdictions. It has the authority to make recommendations, with the agreement of all parties, to Ministers and the RSPB (more senior tier) in respect of policy decisions.
The RSDB will liaise with stakeholders as necessary to identify emerging issues, consideration of policy modernisation and where change(s) may be needed. The Department for Business, Energy and Industrial Strategy will chair the group which will meet at least three times a year, making recommendations to the RSPB as required.
The RSDB will be advised by the Radioactive Substances Policy Group (RSPG) that will comprise representatives from government Departments, Environment Agencies and the Office of Nuclear Regulation and Nuclear Decommissioning Authority. The RSPG will develop annual workplans to engage in policy considerations and highlight relevant issues to the RSDB.
- The Radioactive Substances Programme Board (RSPB) will comprise senior officials from Departments and will act as the senior-decision maker and arbiter in the case of disputes. The group will only meet to discuss significant strategic or financial issues or to facilitate dispute resolution.
- Portfolio Ministers have ultimate responsibility for making policy decisions based on the recommendations received, resolving contentious issues and for engaging to resolve disputes where resolution has not been achievable at lower levels
22. The Framework states that Radioactive Substance policy is generally a non- contentious area and it is not envisaged that there will be significant points of difference across jurisdictions. Further, there is currently policy divergence between Scotland and other regions in respect of the management of high-activity waste which does not preclude collaboration and close-working on other matters of policy.
23. However, the Framework’s dispute resolution procedure is designed to facilitate a structured mechanism for the management of issues arising due to a lack of agreement on a policy proposal, a genuine impact on the interests of another party, if a parameter of the governance framework has been breached or a Common Framework principle has not been respected.
24. The RSDB will have primary responsibility for resolving disputes and issues will be raised to this forum in the first instance. Members of the RSDB are obligated to work through potential solutions and seek to resolve issues that arise without the need for escalation.
25. However, if the RSDB is unable to achieve resolution, the matter can be referred to the RSPB at the triggering party’s request and further to portfolio Ministers as a last resort for resolution of only the most contentious issues, and following exhaustion of all other options.
26. It should be noted that whilst desirable, achieving consensus across jurisdictions is not mandated, and there may be scenarios whereby different administrations “agree to disagree” on aspects of policy, leading to divergence across localities.
Monitoring and Enforcement
27. The Framework’s Review and Amendment Mechanism requires members of the RSDB to review its Terms of Reference and the effectiveness of the Framework on an annual basis.
28. Further, a review of activities can be undertaken at any time at the request of a participating party.
31. There are aspects of EU law in this policy area that will continue to apply to NI in future years under the provisions of the Protocol. Specifically Council Directive 2006/117/Euratom of 20 November 2006 on the supervision and control of shipments of radioactive waste and spent fuel, as per Annex 2, Section 25 of the Protocol.
32. The Common Framework enables administrations in England, Wales and Scotland to consider any rule or policy changes brought about by future revision of these regulations in NI and to determine any requisite action that may be desirable.
33. In addition, the Framework specifically states that a relevant NI Executive Minister will have the ability to trigger a review under the dispute resolution procedure in respect of any concerns they may have in respect of GB-only proposals.
6. Committee Considerations and Recommendations
34. The Committee considered the Common Framework for Radioactive Substances in early 2022 and, in the context of the time available for scrutiny before the mandated deadline of March 2022, has not identified any immediately apparent concerns with regards to the proposed structure or operation of the Common Framework.
35. However, the Committee has made a number of observations and recommendations below which should be considered in terms of finalising the Common Framework.
36. DAERA informed the Committee that it considers the Framework to be non- contentious because it builds upon pre-existing structures for engagement between jurisdictions and there is limited prospect of policy divergence and/or disagreement given that all administrations will continue to align with the same international standards.
37. Further, the extent of activity in NI in terms of the use and transit of radioactive substances is relatively small and there are no nuclear facilities in situ locally. In terms of the Protocol-related EU legislation, this will apply only to radioactive waste shipped from NI to GB which happens once or twice per annum. In this context, DAERA does not envisage there to be any contention in terms of significant divergence with other jurisdictions.
38. The Committee wrote to the House of Lords Common Framework Scrutiny Committee in December 2021 to seek its view on any specific issues that it should be aware of: the House of Lords Committee did not draw attention to any aspect of the Common Framework on Radioactive Substances.
39. The Committee makes the following observations in respect of the Common Framework:
- There is a lack of detail regarding the Dispute Resolution process in terms of the criteria for determining whether an issue is significantly contentious to warrant escalation
- The document states that the Framework will provide a mechanism to discuss and manage proposed policy changes “Where one or more of UK Government, the Scottish Government or the Welsh Government proposes to change rules in a way that has policy or regulatory implications for the rest of the UK, or where rules in Northern Ireland change in alignment with the EU” – this suggests that NI may be prohibited from proposing policy changes under the auspices of the Framework which are unconnected to its obligations under retained EU law
- The Common Framework as drafted outlines that should Portfolio Ministers fail to reach agreement on a dispute that the matter can be referred to Intergovernmental Relations (IGR) Ministers for review. Clarity should be provided as to how such an issue would be managed at IGR level and if the Dispute Resolution process as outlined in the Review of Intergovernmental Relations (January 2022) would apply
- There is no reference to continued parliamentary engagement in terms of the review, effectiveness and operation of the Common Framework
- It is unclear to which forum issues should be highlighted in the event that NI is precluded from aligning to policy changes made in Great Britain as a result of compliance with Protocol-related EU legislation, and whom would represent NI’s interests at such a forum
- There is significant duplication in the document across the Common Framework and Concordat sections
40. It is recommended that:
- DAERA should forward the Committee’s observations and recommendations to the Department for Levelling Up, Housing and Communities as part of the Common Framework Scrutiny Process
- DAERA should confirm if NI will have the ability to propose policy changes to other jurisdictions in Great Britain which are independent of its obligations to maintain parity with EU legislation
- DAERA should provide a short annual update to the Committee in respect of the functioning and effectiveness of the Common Framework, to coincide with the planned annual review as per the Review and Amendment Mechanism
- DAERA should notify the Committee on an on-going basis of any changes which are agreed to the Terms of Reference of the groups established under the Common Framework and/or the concordat which outlines how jurisdictions will engage with each other
- The Committee should be informed of any substantive policy disputes that are managed under the auspices of the Framework pertaining to NI activities
- DAERA should clarify the appropriate forum for consideration of issues in the scenario whereby NI is compelled to maintain parity with EU legislation in Radioactive Substances policy and other jurisdictions in the UK do not follow suit, leading to divergence, and whether this would be addressed at the Specialised Committee on the Ireland/Northern Ireland Protocol (or a different governance structure)
- DAERA should clarify if the Secretary of State will assume responsibility for representing NI’s interests in the functioning of the Common Framework, should the local Executive collapse
- DAERA should confirm that is assured that it is satisfied that the RSPG has sufficient independence both in terms of representation and ability to communicate/raise issues with an entity other than the RSDB, if required