In Theresa May’s January 2017 Lancaster House speech it emerged for the first time that the government’s plan for Brexit included leaving Euratom, and this was confirmed in the Article 50 notification letter. This prompted a flurry of media interest in this hitherto rarely discussed issue. Most of that interest has since died down. But the subject remains of pressing importance. So what’s been happening?
Euratom is the European body which regulates the production, storage and distribution of nuclear materials, including waste and medical isotopes. It is closely intertwined with, but not legally part of, the European Union hence Switzerland has associate membership without being in the EU. However, even associate membership entails acceptance of European Court of Justice jurisdiction, a red line for the British government. Hence the decision to leave.
In recent months, the government has made progress—which it self-assesses as “substantial”—with the exit arrangements, which need to be in place by the end of the transition period in December 2020. Thus a Nuclear Safeguards Bill is proceeding through parliament; Britain has notified the International Atomic Energy Agency (IAEA) of its plans; and the Office for Nuclear Regulation (ONR), which will undertake for the UK the work hitherto done for it by Euratom, has recruited half of the staff it will need.
But the government may be too complacent: there is a great deal still to be done according to Tom Greatrex, CEO of the Nuclear Industry Association. This includes completing agreements with the IAEA as well as reaching new agreements with the USA, Canada, Japan and Australia with whom Euratom has co-operation agreements. The timeframe for this is unpredictable as the process, as with much to do with Brexit, is unprecedented. Additional issues include arrangements for continued participation in, and presumably payments to, Euratom’s R&D programme of which Britain is a leading member. There are also further negotiations to complete with the EU: in the draft Withdrawal Agreement several aspects are shown as not yet agreed, and likely to be contentious (notably, the ownership and use of special fissile materials).
“This could entail a ‘cliff edge’ considerably more serious even than a general business cliff edge"In addition to the specific arrangements to exit Euratom, medical isotopes will be affected by the outcome of the wider Brexit negotiations. This is because their efficacy is time-limited. So any delays at the border would be a significant problem, since some 80 per cent are imported from EU countries. This could affect the treatment of potentially life-threatening conditions. The fact that the government has ruled out any equivalent treaty to the existing customs union means that delays seem inevitable since frictionless trade without such a treaty (and, actually, significant parts of single market membership) is unrealistic.
If adequate arrangements are not in place in time, this would entail a “cliff edge” which, given the gravity of nuclear issues, could be considerably more serious even than a general business cliff edge. For this reason, in March of this year the House of Lords defeated the government in a vote on the Nuclear Safeguards Bill, insisting that if arrangements were not in place in time then membership of Euratom should continue as a fall back arrangement. It is not clear, of course, that the EU would agree to this but in any case the Lords’ amendment is likely to be over-ruled when the Bill returns to the Commons. Moreover, even if the amendment were to stand, this fall back option would not address the problem of transportation delays for medical isotopes.
It is unclear why the government should be so opposed to the fall back provision, since it would only apply if the necessary negotiations had not been completed in time, which the government insist they will be. But, then, it’s really not clear why withdrawing from Euratom is being undertaken at all. It was barely, if at all, mentioned during the Referendum campaign and even Dominic Cummings, the Campaign Director of Vote Leave, describes doing so as “unacceptable bullshit.” Moreover, a survey conducted last October showed that only 10 per cent of the public support leaving Euratom.
The sole reason is that of ECJ oversight. But the ECJ has made very few judgments relating to Euratom and it’s hard to imagine even the most doctrinaire Brexiter regarding Euratom membership as entailing any meaningful loss of sovereignty. In any case, Theresa May has already intimated in her Munich Speech of February 2017 that as regards security the ECJ will continue to have a role. So that red line has already been pinkened. Nor is there any suggestion whatsoever that Britain intends to diverge from the provisions of Euratom, or would have any interest in doing so in the future. Every government statement has spelled out that the aim is to replicate the existing provisions as closely as possible and it’s all but certain Britain would track any future changes including anything arising from an ECJ judgment.
So there is no discernible gain here—simply the costs, as yet unknown, of replicating the status quo. This has a wider implication, since it is very similar to the government’s approach to Brexit as a whole, as has been clear since the publication of the Brexit White Paper. This is most evident in relation to trade, where it is unlikely to succeed because it will fall foul of the EU’s position on “cherrypicking.” But in relation to the numerous regulatory agencies it may well succeed. After all, why should the EU object to us recreating at our own considerable cost all of the arrangements we are exiting, with de facto ECJ jurisdiction via the back door? The more difficult question is why Britain would want to do so.