Marchiori v Environment Agency
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Mr Justice Morland,Lord Justice Thorpe |
| Judgment Date | 25 January 2002 |
| Neutral Citation | [2002] EWCA Civ 3 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 January 2002 |
| Docket Number | Case No:C/2001/0828 |
[2002] EWCA Civ 3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION) ADMINISTRATIVE COURT
(The Hon Mr Justice Turner)
Lord Justice Thorpe
Lord Justice Laws and
Mr Justice Morland
Case No:C/2001/0828
Michael Fordham (instructed by Public Interest Lawyers for the Appellant)
Dinah Rose and Nicholas Khan (instructed by The Environment Agency for the Respondent)
Nigel Pleming QC and Eleanor Grey (instructed by The Treasury Solicitors for the first interested party)
David Wolfe (instructed by CSM Cameron McKenna for the second interested party
Introductory
This is an appeal against the decision of Turner J, given in the Administrative Court on 29 March 2001, when he dismissed the appellant's application for judicial review in respect of certain authorisations granted by the respondent on 1 st April 2000 which permit the discharge of radioactive waste by contractors to the Ministry of Defence from two nuclear sites respectively situated at Aldermaston and Burghfield. Permission to appeal was granted by Buxton LJ on 22 June 2001. The Secretary of State for Defence and the contractors AWE plc have appeared before us by counsel as interested parties, as they did before Turner J. Turner J's judgment is now reported at [2001] Env LR 840.
Both sites are military installations at which Trident nuclear warheads are manufactured (and other activities carried on). Together they constitute part of the United Kingdom's Atomic Weapons Establishment ("AWE"). The appellant's interest in the authorisations in question springs from her "longstanding and deeply held opposition to the manufacture of nuclear weapons, and the threat to use them. If ever used they would kill thousands of ordinary people indiscriminately and cause an ecological disaster of unimaginable proportions" (witness statement 10 th April 2000, paragraph 5). Unsurprisingly she has no objection to the de-commissioning of nuclear weapons, which is also carried on at AWE. She has no objection to the process as such of discharging nuclear waste; obviously nuclear waste has to be dealt with. She has no objection to the approach taken by the respondent, in granting the authorisations, to considerations of safety. The proceedings are a vehicle to give effect to her objection to nuclear weapons. It is submitted by Mr Fordham on her behalf that the manufacture and maintenance of Trident nuclear warheads is contrary to international law. Save as regards a discrete
and subsidiary part of the case, neither the respondent nor the interested parties have suggested, here or below, that the appellant should be denied standing.
Mr Fordham's primary case is that the authorisations would only be lawful if the respondent, in granting them, decided on legally permissible grounds that "every activity resulting in exposure to ionizing radiation [is] justified by the advantages which it produces": this is the "justification principle" stipulated in Article 6(a) of Council Directive 80/836/Euratom ("the Directive") made under Chapter III of Title 2 of the EURATOM Treaty. He says that the respondent wrongly treated the nuclear defence programme as a benefit or advantage for the purposes of the justification principle (indeed, they held themselves bound to treat it as such); whereas in fact they were required to treat it as a detriment, having regard to the "humanitarian" principles of international law as explained in the Advisory Opinion of the International Court of Justice ("ICJ") on the Legality of the Threat or Use of Nuclear Weapons given on 8 th July 1996 ("the Advisory Opinion"). The respondent and the interested parties submit that the Directive is not engaged, since Chapter III of Title 2 of the EURATOM Treaty has no application to military installations. However, the respondent chose in any event to apply the justification principle as it was articulated by the International Commission on Radiological Protection ("ICRP") in ICRP Publication 60 adopted in November 1990 ("ICRP 60"): "no practice involving exposures to radiation should be adopted unless it produces sufficient benefit to the exposed individuals or to society to offset the radiation detriment it causes". It is common ground that there is no difference between the two formulations of the justification principle. Thus, says the respondent, the scope of Chapter III of Title 2 of the EURATOM Treaty is neither here nor there, though Mr Pleming QC for the Secretary of State was at pains to persuade us that in truth it has no application to military establishments. Then it is said against the appellant, in summary, that far from being required to regard the nuclear defence programme as a detriment, the respondent was bound to treat it as a benefit; the merits or demerits of government defence policy are not justiciable in the courts; in any event the Advisory Opinion is not authority for the propositions which Mr Fordham seeks to found upon it. The subsidiary issue in the case (as regards which there is a question as to the appellant's standing) is whether, because the Commission had not earlier been notified of general data relating to the proposed authorisations pursuant to Article 37 of Chapter III of Title 2 of the EURATOM Treaty, the authorisations as given are unlawful. In reply Mr Fordham submitted that we should refer the question of the scope of Chapter III of Title 2 of the EURATOM Treaty to the Court of Justice – presumably under Article 150 of the EURATOM Treaty itself, which is in the same terms as Article 234 (ex-177) of the Treaty of Rome.
The Legislation
First, s.13(1) of the Radioactive Substances Act 1993 ("RSA"):
"… no person shall, except in accordance with an authorisation granted in that behalf under this subsection, dispose of any radioactive waste on or from any premises which are used for the purposes of any undertaking carried on by him, or cause or permit any radioactive waste to be so disposed of, if (in any such case) he knows or has reasonable grounds for believing it to be radioactive waste."
By force of s.32 RSA, it is a criminal offence to contravene s.13(1). By s.16(2) RSA the power to grant authorisations under s.13(1) is now vested in the respondent, which was established by s.1 of the Environment Act 1995. S.23 RSA empowers the Secretary of State to give directions to the respondent, in effect, as to how to decide any application for an authorisation under s.13( 1). S.24 enables the Secretary of State to call in applications. S.42 deals with the extent to which RSA binds the Crown. I need not set out its terms. RSA bites on the circumstances of this case because the contract for the management of these two sites has gone to the second interested party, AWE plc (as I shall explain in a little more detail in paragraph 13), rather than simply being retained within the Ministry of Defence.
I should next set out those provisions of the EURATOM Treaty which are material to the argument. Here is the preamble:
"[The Contracting Parties]
RECOGNISING that nuclear energy represents an essential resource for the development and invigoration of industry and will permit the advancement of the cause of peace,
CONVINCED that only a joint effort undertaken without delay can offer the prospect of achievements commensurate with the creative capacities of their countries,
RESOLVED to create the conditions necessary for the development of a powerful nuclear industry which will provide extensive energy resources, lead to the modernisation of technical processes and contribute, through its many other applications, to the prosperity of their peoples,
ANXIOUS to create the conditions of safety necessary to eliminate hazards to the life and health of the public,
DESIRING to associate other countries with their work and to co-operate with international organisations concerned with the peaceful development of atomic energy…"
Title 1 is headed "The Tasks of the Community". Article 1 establishes the European Atomic Energy Community (EURATOM), whose task is "to contribute to the raising of the standard of living in the Member States and to the development of relations with other countries by creating the conditions necessary for the speedy establishment and growth of nuclear industries." Article 2 lists seven modes by which EURATOM's task is to be performed. These cross-refer to the Treaty's detailed provisions which follow. Thus Article 2(a) requires EURATOM to "promote research and ensure the dissemination of technical information". Title 2, Chapter I is headed "Promotion of Research" and contains (Articles 4 – 11) detailed provisions which promote that end. Likewise Chapter II, "Dissemination of Information", sets out measures to advance that purpose. Article 2(b) is particularly relevant to the present debate. It enjoins EURATOM to "establish uniform safety standards to protect the health of workers and of the general public and ensure that they are applied". Here the cross-reference is Title 2 Chapter III: "Health and Safety". I must set out a number of the Chapter's provisions, as follows.
"Article 30
Basic standards shall be laid down within the Community for the protection of the health of workers and the general public against the dangers arising from ionising radiations.
The expression 'basic standards' means:
(a) maximum permissible doses compatible with adequate safety;
(b) maximum permissible levels of exposure and...
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