On return shipment to Australia issue, I don’t think substitution makes any
difference – the substituted material seems to be treated in the same way as the
original under Euratom law. The current law (the Transfrontier Shipment Regulations
2008, which are UK-wide) requires SEPA as competent authority to authorise the
shipment, acting in accordance with Article 15 of the Euratom Shipments Directive
2006/117/Euratom, i.e. obtaining consents from the country of destination and any
countries of transit. By Article 16 it must not allow shipment unless it is satisfied that
Australia has the administrative and technical capacity to manage the waste safely,
taking due account of any relevant information from other member states and the
criteria established by the Commission.
These criteria are in Commission Recommendation 2008/956/Euratom and broadly
include compliance with IAEA requirements, the existence of relevant safety and
liability regimes, etc. However, it is expressly stated that other considerations, for
example ethical, social and political may be taken into account in deciding whether
to authorise shipment (Article 2(3)).
These requirements, as they are already in place, will become part of UK law under
the Withdrawal Act when in force and will have to continue to be complied with.
In addition, SEPA will have to comply with the Directive on a Community Framework
for management of spent fuel and radioactive waste 2011/70/Euratom. It will have
to take reasonable measures to be assured that Australia has management and
disposal programmes with objectives representing a high level of safety equivalent
to those established by the Directive and that the disposal facility in Australia is
authorised, operating, and managed in accordance with Australian law.
Regulation 7 of the UK regulations prohibits export to a third country that does not
have the administrative and technical capacity and regulatory structure to manage
the radioactive waste or spent fuel safely, as stated in the Joint Convention on the
Safety of Spent Fuel Management and on the Safety of Radioactive Waste
Management.
The upshot seems therefore to be that SEPA must refuse authorisation if there are
safety issues, or if there is doubt that the disposal facility complies with Australian
law. It may also however refuse authorisation on social, ethical, human rights
grounds. Whether it does so is a matter for SEPA, or for Scottish Ministers if there is
an appeal against its decision. I have not looked into it fully at this point, but
arguably it might be said that SEPA is obliged to address human rights issues under
the Human Rights Act 1998 if the rights of indigenous peoples are being infringed,
even outside Scotland.