Initial legislative drafting

Having reviewed the assessment results and any preliminary stakeholder input, the responsible party (whether a governmental body, a legislative committee or an independent panel of experts) will be in a position to prepare an initial draft of legislation. An important issue at the outset is whether the legislation will cover all aspects of nuclear energy, or whether it will cover different aspects in a number of separate laws. Other fields of law are bound to be affected by comprehensive regulation.

There is no uniform approach to this issue. Some States opt for a comprehensive Nuclear Energy Act, complemented by a set of regulations. Other States prefer to enact separate laws for the various fields to be covered, which also need to be complemented by regulations.

When considering this issue, legislators need to take into account national legal traditions. In States with a tradition of comprehensive regulation, for example, legislators may prefer to incorporate the nuclear legislation into, for example, the existing environmental protection legislation.

The manner in which States organize their nuclear legislation is not of overriding importance. What is important, however, is that the legislation be transparent, and clearly understandable, with easy access to relevant provisions both for stakeholders and the general public. This argues against the piecemeal addition of provisions to laws and regulations covering related fields. If, for example, the licensing procedures for nuclear power plants, for research reactors and for other nuclear facilities are set out as amendments to different laws, the objectives of transparency, clarity and easy access cannot be achieved. Given these considerations, many States have found it convenient to adopt a single comprehensive nuclear law covering all the subjects addressed in this handbook.

The comprehensive law approach does not mean that certain nuclear related matters not central to nuclear safety may not be handled in separate legislation. If certain subjects (e.g. worker protection or waste disposal) are effectively and consistently treated under separate legislation, it would not be either necessary or efficient to include these matters in specific nuclear legislation. Special regulations on taxation should be inserted into a general tax law, criminal law provisions should be part of a criminal code and mining regulations should be part of a general mining law.

A number of States split the areas to be covered by nuclear legislation into two major parts, the first dealing with the prevention of accidents and incidents through, for example, licensing and control mechanisms, and the second dealing with nuclear liability. This two part approach is certainly

reasonable, although there is the minor drawback that the two parts may lose their mutual consistency if they are amended at different times.

Safeguards and export and import control provisions may also warrant special legislation for insertion into foreign trade legislation, as they differ substantially from the safety and liability provisions of nuclear legislation.

Later chapters in this handbook describe the fundamental elements that should be considered for inclusion in national legislation regulating various nuclear related activities. However, one structure for a comprehensive nuclear law that may provide useful guidance is:

(a) Title of law. (b) Table of contents:

I: Objectives of the law; II: Scope of the law; III: Definitions of key terms;

IV: The regulatory authority;

V: Authorizations (licences, permits, etc.); VI: Responsibilities of licensees, operators, users; VII: Inspection;

VIII: Enforcement.

(c) Section IX to X: specific requirements (for each subject area, for example radiation protection, radioactive material and radiation sources, the safety of nuclear installations, emergency preparedness and response, mining and milling, transport, radioactive waste and spent fuel, nuclear liability and coverage, safeguards, export and import controls, and physical protection).

(d) Section X: final clauses (amendment, repeals of earlier laws, etc.). The drafters of an initial legislative proposal should:

(a) Identify the key terms that require precise definition in a separate section;

(b) Clearly assign institutional responsibility for each regulated activity, in order to avoid confusion;

(c) Ensure that the legislative language is sufficiently clear about which activities are covered and which procedures must be followed in order to comply with the law;

(d) Ensure that the legislation contains clear provisions for dealing with disagreements and with violations of regulations (e.g. conflicts of jurisdiction between agencies, appeals by operators against regulatory decisions and the punishment of wilful violators of regulations);

(e) Ensure that the legislation makes it clear how the financial costs of various activities will be met (e.g. through general tax revenues, licence fees or financial penalties for violations);

(f) Ensure that the legislation provides for adequate involvement in the regulatory process of stakeholders (including local communities and, where transboundary issues may arise, neighbouring States);

(g) Ensure that the legislation contains provisions giving regulators the flexibility necessary in order to adjust to technological, social and economic changes;

(h) Ensure that the legislation contains provisions for the orderly implementation of new or revised arrangements (e.g. a delay period before entry into force or phasing in over an extended period);

(i) Ensure that the legislation contains provisions for the treatment of activities being carried out and facilities being operated in accordance with earlier standards (e.g. the exemption of certain activities and facilities from certain requirements (grandfathering)).

There may be other equally important things that the drafters of an initial legislation proposal should do, but a general handbook like this one cannot mention them all. However, the Secretariat of the IAEA is prepared, upon request, to conduct reviews of the draft nuclear legislation of Member States and to make suggestions for improving it (on a confidential basis, if so desired). Such reviews focus on whether the draft is consistent with relevant international legal instruments and with international best practice, as reflected in relevant IAEA safety standards. The IAEA’s Secretariat is also ready to provide samples that have been adopted in various States and which provide an adequate legal framework for the regulation of nuclear energy.