R Walker (Claimant) Secretary of State for Energy and Climate Change The Nuclear Industry Association (Defendant Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice McCombe,MR JUSTICE McCOMBE |
| Judgment Date | 12 May 2011 |
| Neutral Citation | [2011] EWHC 2048 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 May 2011 |
| Docket Number | Case No: CO / 1875 / 2011 |
[2011] EWHC 2048 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
Mr Justice Mccombe
Case No: CO / 1875 / 2011
Mr Nardell QC appeared on behalf of the Claimant.
Mr Swift QC appeared on behalf of the Defendant.
Mr Tromans QC appeared on behalf of the Interested Party.
(As Approved)
I have before me a renewed application for permission to apply for judicial review made by Mr Rory Walker, as claimant, against the Secretary of State for Energy and Climate Change, whom I will call "the Secretary of State", with the Nuclear Industry Association joined as an interested party.
The decision sought to be challenged is reflected by two sets of regulations made on 29 November last year, entitled respectively the Justification Decision (Generation of Electricity by the EPR Nuclear Reactor Regulations) 2010 and a similar justification decision in respect of the AP 1000 Nuclear Reactor Regulations of the same year.
The regulations were made pursuant to the provisions of earlier regulations: the Justification of Practices Involving Ionising Radiation Regulations made pursuant to powers contained in the European Community Act of 1972.
The challenge that is made is essentially made on two grounds, the first ground being that the Secretary of State had incorrectly applied the provisions of the underlying European Council directive, being Council Directive 96/29/ EURATOM of the 13 May 1996. Pursuant to that Directive member states of the union are required pursuant to Article 6.1 to ensure that:
"all new classes or types of practice resulting in exposure to ionizing radiation are justified in advance of being first adopted or first approved by their economic, social or other benefits in relation to the health detriment they may cause."
Health detriment is defined in the directive as being:
"…an estimate of the risk of reduction in length and quality of life occurring in a population following exposure to ionizing radiations. This includes loss arising from somatic effects, cancer and severe genetic disorder."
Mr Nardell QC for the claimant helpfully, at the beginning of the proceedings, pointed out what his client claim was not concerned with. It is important for interested parties to recall this, that the court is not asked to rule on whether government policy in relation to nuclear power is or is not desirable. Secondly, it is not being asked to decide between different opinions as to questions of nuclear policy or the like.
The claim is simply about the lawfulness of the two sets of regulations which I have mentioned, and the legality of them pursuant to the domestic regulations and the underlying European Directive.
This is, as I say, a renewed application for permission to apply. The arguments that have been raised are that essentially the Secretary of State has misapplied the question that he had to answer pursuant to Directive and the Regulations in the articles that I have quoted. It is also said that because of government policy being in favour of an expanded use of nuclear power in this country, it was impossible, within the law of apparent bias and the provisions of the International Convention (the IACA Convention on Nuclear Safety), for the Secretary of State to be both the justifying authority and to be someone who is actively promoting nuclear power as a source of energy.
Those are the two grounds.
The material in support of those grounds and in opposition to them is based upon an extensive argument set out in the grounds annexed to the claim form in this case in the usual way, and equally extensively opposed in summary grounds of defence served by the Secretary of State and by the interested party. As is the practice in permission decisions, it is not necessary in a short judgment of this character to rehearse the arguments extensively, but simply to decide the question, having read those papers thoroughly, whether the claimant has demonstrated that the claim is arguable on either of the two proposed grounds.
Permission to apply was refused by Langstaff J when he considered the case on the papers. He gave a full decision setting out his own views as to why the permission should not be granted. In essence, I take entirely the same view that Langstaff J did. It was based upon his acceptance of the arguments raised principally by the Secretary of State in his summary grounds of defence. In my...
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