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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Channel Tunnel Group Ltd & Anor, R (on the application of) v Secretary Of State For Environment, Transport & Regions [2001] EWCA Civ 1185 (23 July 2001)
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Cite as: [2001] EWCA Civ 1185

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Neutral Citation Number: [2001] EWCA Civ 1185
Case No: QBACF/2000/3675/A3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Dyson J.

Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 23rd July 2001

B e f o r e :

LORD JUSTICE PETER GIBSON
LORD JUSTICE LAWS
and
SIR MARTIN NOURSE

____________________

R - v - SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS
Respondent
Ex parte

THE CHANNEL TUNNEL GROUP LTD. AND FRANCE MANCHE S.A.
Appellants

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr. Jonathan Crow (instructed by The Treasury Solicitor of London for the Respondent)
Mr. Stuart Isaacs Q.C. and Mr. Clive Lewis (instructed by Messrs Brachers of Maidstone for the Appellants)

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    PETER GIBSON L.J.:

  1. The English company Channel Tunnel Group Ltd. and the French company France Manche S.A. ("the Concessionaires") operating together as a consortium built and operate the Channel Tunnel. Together they are known as Eurotunnel. By these proceedings they challenge the validity of two directions issued by the Secretary of State in connection with security at the Channel Tunnel. One direction, Direction 15B/00 ("the X-ray Direction") made on 7 April 2000, required the Concessionaires to install a new X-ray system. The other direction, Direction 4B(2)00 ("the Search Direction") made on 18 April 2000, required the Concessionaires to increase the proportion of vehicles which it had to search, with minimum search levels being laid down for freight and passenger vehicles respectively. The Concessionaires claimed that the Secretary of State had no power to give those directions. On 9 November 2000 they commenced proceedings for judicial review, applying for orders quashing both directions and declaring that each was ultra vires and unenforceable and that the Secretary of State had no power unilaterally to impose requirements for the defence and security of the Channel Tunnel except in the circumstances set out in Article 6 of the Treaty between the United Kingdom and France which was signed on 12 February 1986 ("the Treaty"). That application came before Dyson J. who on 30 November 2000 dismissed it. The Concessionaires now appeal and the Secretary of State seeks to support the judge's order on additional grounds on which they were unsuccessful before the judge.
  2. Under Article 1 (1) of the Treaty the United Kingdom and France agreed to permit the construction and operation by private concessionaires of a "fixed link" in accordance with the terms of the Treaty and of a concession agreement which was entered into by the two countries and by the Concessionaires on 14 March 1986 ("the Concession"). Article 5 of the Treaty provides for defence and security in the following terms (so far as material):
  3. "(1) Defence and security matters relating to the Fixed Link and the implementation of the Treaty shall be the subject of special arrangements between the two Governments .
    (2) Such arrangements will provide for the designation by each Government of the authorities empowered to take any decision necessitated by the defence and security of the Fixed Link. The authorities so designated by the two Governments, or their agents, will so far as possible co-ordinate their activities within the framework of such arrangements.
    (3) The Concessionaires shall submit to the two Governments for their approval any proposed designs, plans or arrangements affecting the defence and security of the Fixed Link and the two Governments shall agree a joint response to any such proposals.
    (4) The Concessionaires shall, if required by the two Governments, take measures necessary for the defence and security of the Fixed Link. Save in exceptional circumstances of the kind envisaged in Article 6, the two Governments shall consult each other before requiring the Concessionaires to take such measures, and shall act jointly."
  4. Article 6 relates to "Exceptional Circumstances". It provides (so far as relevant):
  5. "(1) In the event of any exceptional circumstances, such as natural disasters, acts of terrorism or armed conflict, or the threat thereof, each Government, after consultation with the other if circumstances permit, may take measures derogating from its obligations under the Treaty, its supplementary Protocols and arrangements, or the Concession.
    (2) Such measures may include closure of the Fixed Link, but shall be limited to the extent required by the exigencies of the situation and shall be notified immediately to the other Government and, as appropriate, to the Concessionaires."
  6. Article 10 provides for the establishment of an intergovernmental commission ("the IGC") to supervise, in the name and on behalf of the two Governments, all matters concerning the construction and operation of the Channel Tunnel. By Article 10 (8) each Government was required to take all necessary measures to ensure that regulations applicable to the Fixed Link have the necessary force and effect within their national laws.
  7. By Article 13:
  8. "The Concession will include provisions which give effect to the following principles:
    .
    (2) The Concessionaires shall comply with the provisions of the Concession, with the laws and regulations in force in each of the two States, and with the Community rules applicable to the construction and operation of the Fixed Link".
  9. By Article 18 (b) the two Governments shall consult, at the request of either, (amongst other things) on the consequences of any measures announced or taken which could substantially affect the construction or operation of the Fixed Link.
  10. Article 19 provides for arbitration:
  11. "(1) An arbitral tribunal shall be constituted to settle:
    .
    (b) disputes between the Governments and the Concessionaires relating to the Concession;
    .
    (5) In order to resolve any disputes regarding the Treaty, the tribunal shall have regard to the Treaty and the relevant principles of international law.
    (6) In order to resolve any disputes regarding the Concession, the relevant provisions of the Treaty and the Concession shall be applied. The rules of English law or the rules of French law may, as appropriate, be applied when recourse to these rules is necessary for the implementation of particular obligations under English law or French law. In general recourse may also be had to the relevant principles of international law, and if the parties in dispute agree, to principles of equity."
  12. The Concession has the legal status of a contract. Under cl. 2.1 the Concessionaires are entitled and required to carry out the development, financing, construction and operation of the Fixed Link during the term of the Concession. Under cl. 15.1 the Concessionaires are required to comply with "any requirements which are made by either Principal [i.e. either the British Secretary of State or the French State] or by the [IGC] and which are binding on them under applicable laws and regulations concerning . security . as far as they directly relate to the . operation of the Fixed Link."
  13. By cl. 15 (3):
  14. "The cost of complying with the requirements of each Principal as specified in Clauses 15.1 and 15.2 shall be borne by the Concessionaires or the relevant public authorities according to the respective national practices of the Principal concerned ."
  15. Cl. 23 dealt with defence and security of the Fixed Link. By cl 23.2:
  16. "At the joint request of the Principals or at the request of either Principal in the circumstances contemplated by Article 6 of the Treaty, the Concessionaires shall take such action as may be required of them with respect to the defence and security of the Fixed Link."
  17. Cl. 40 related to the settlement of disputes. It provided (so far as material):
  18. "40.1 Any dispute between the Concessionaires or either of them and the Principals or either of them relating to this Agreement shall be submitted to arbitration in accordance with the provisions of Article 19 of the Treaty at the request of any party."

    Cl. 40.4 repeated the provisions of Article 19 (6) of the Treaty.

  19. Cl. 41 dealt with the applicable law. Under cl. 41.1 the relationship between the parties is to be governed by the Treaty, as given effect to by the Concession, and the Concession. Under cl. 41.2:
  20. "The Concessionaires undertake to comply with the laws in force from time to time in each of the two States, including Community law, to comply with those provisions of the Treaty, the supplementary Protocols and arrangements agreed pursuant to the Treaty which are applicable to them and to comply with all rules, regulations, directions and requirements binding on the Concessionaires of all relevant public bodies and authorities and all conditions relating thereto including, without limitation, those relating to . security."
  21. By cl. 41.4:
  22. "The implementation and enforcement of the laws in force from time to time in either State shall be subject to the jurisdiction of the courts of the relevant State or, where so permitted or available under national law, any other relevant forum."
  23. As I have noted, Article 5 of the Treaty contemplated the making of "special arrangements" between the two Governments in relation to security. A bilateral agreement on security was made on 14 February 1989. By cl. 6 it was stated that arrangements were being set up to give effect to the requirement for consultation and joint action under Article 5. Those arrangements consisted of the creation of the Joint Security Group, later replaced by the Joint Security Committee ("the JSC") with effect from 21 May 1992. But as was stated in the first meeting of the JSC on 18 June 1992, the power to take decisions relating to security arrangements remained with the Governments and not the JSC, which was to act in an advisory capacity.
  24. On 15 December 1993 the two Governments signed a document bearing the title "Special Arrangement on Security Matters relating to the Channel Fixed Link". Under Article 1 each Government was to designate the authorities or persons which in its territory were empowered to take any decision necessitated by the security of the Fixed Link. By Article 2 permanent arrangements were to be established for "concertation between the responsible authorities of the two States". They were in particular to include the regular holding of meetings to concert the activities of the authorities responsible for security and coordination with the IGC. By Article 3 (e) the responsible authorities in the two States were to follow up the implementation of decisions of the two Governments relating to security in liaison with the IGC. Under Article 4 the responsible authorities and officials of the two States were, to the fullest possible extent, to cooperate, assist one another and act in a concerted manner in discharging their duties relating to security.
  25. By the Channel Tunnel Act 1987 ("the Act") the United Kingdom implemented its obligations under the Treaty. The Act provided (so far as material):
  26. "1 (1) The primary purpose of this Act is to provide for the construction and operation of a tunnel rail link (together with associated works, facilities and installations) under the English Channel between the United Kingdom and France, in accordance with
    (a) the Treaty .; and
    (b) the Concession .
    .
    11 (1) The appropriate Minister may by order make such provision as appears to him to be necessary or expedient
    (a) for the purpose of implementing the international arrangements, or enabling those arrangements to be implemented;
    .
    (c) in relation to the . operation or use of the tunnel system or any part of the tunnel system, so far as relates to activities carried on, persons employed or engaged in work, things done or omitted or other matters arising anywhere within the system (whether in England or France), including in particular (without prejudice to the generality of the preceding provision) provision with respect to controls in relation to persons or goods within the system;
    .
    (e) with respect to controls in relation to persons or goods
    (i) on trains engaged on international services; or
    (ii) at authorised terminal control points for such services;
    outside the tunnel system (whether in the United Kingdom or elsewhere);
    .
    (g) for the purpose of dealing with any matters arising out of or connected with any provision within the powers conferred by any of paragraphs (a) to (f) above (whether or not those matters arise within the tunnel system, on any such train or at any such control point); or
    (h) otherwise in relation to, or for regulating any matters arising out of or connected with, the tunnel system."
  27. The term "the international arrangements" referred to in para. (a) is defined in s. 49 (1) as meaning the Treaty and the Concession and any other agreements or arrangements between the two Governments which for the time being apply for regulating any matters arising out of or connected with the tunnel system". By s. 34 the power to make an order under s. 11 is exercisable by statutory instrument.
  28. Under s. 15 (1), subject to s. 15 (3)(a), English law is not to apply for the determination of any question with respect to the effect of any concession agreement except to the extent and in the circumstances (if any) provided for or determined under any provision of the international arrangements. By s. 15 (3) and (4) certain provisions of the Arbitration Acts 1950 and 1979 are to apply where any concession agreement provides for the determination of a dispute by the arbitral tribunal. S. 15 (5) provides that (subject to certain exceptions) no court in the United Kingdom is to have jurisdiction to determine any matter over which the arbitration tribunal assumes jurisdiction.
  29. Pursuant to s. 11 (1) the Secretary of State made the Channel Tunnel (Security) Order 1994 ("the Order"). By Article 10 (1) the purposes to which Part III of the Order is expressed to apply include the protection against acts of violence of Channel Tunnel trains and of persons or property on board such trains. Article 16 gives the Secretary of State a general power to issue directions for the purposes to which Part III applies. Such directions include a direction in writing to the Concessionaires requiring them to take such measures for those purposes as are specified in the direction in respect of the tunnel system (Article 16 (1)(b) and (2)(b)). Without prejudice to the generality of para. (2) the measures to be specified in a direction to the Concessionaires include the provision by them of guarding the tunnel system, or persons or property (including trains) in any part of the tunnel system, against acts of violence (Article 16 (3)(b)). A direction may be either of a general or specific character and may require any measures specified in the direction to be taken at such time or within such period as may be so specified (Article 16 (4)). By Article 16 (7)(a) any person who without reasonable excuse fails to comply with a direction given to him commits an offence for which he is liable on conviction to a fine or up to 2 years' imprisonment or both (Article 16 (8)).
  30. Article 20 entitled anyone directed under Article 16 to take measures, which consisted of or included certain specified works and which did not contain a statement that the measures were urgently required and that the direction was to take effect immediately, to object to the direction on the grounds that the measures were unnecessary and should be dispensed with or were excessively onerous or inconvenient and should be modified. On an objection being made the Secretary of State was to consider the objections and if required by the objector to appoint a person to hear the objector. The Secretary of State was then to confirm or modify or withdraw the direction which in the meantime was not to take effect.
  31. I turn next to the facts. In 1999 the Channel Tunnel was used by over 4 million vehicles and their drivers and passengers and by nearly 7 million passengers travelling by rail on Eurostar. Both France and the United Kingdom have experienced acts of terrorism in recent years. The Channel Tunnel, as Mr. Crow for the Secretary of State rightly submitted, presents an obvious target for terrorist attack. Appropriate security measures were recognised by the Concessionaires as necessary.
  32. Three methods are in use for screening vehicles for security purposes: (1) the Euroscan X-ray machine used for screening a percentage of heavy goods vehicles, (2) trace detection to detect traces of explosive material on the surface of vehicles, and (3) under vehicle video ("UVV") surveillance. Numerous directions have been issued under the Order, but none has been challenged by the Concessionaires before the X-ray Direction.
  33. For some time prior to the making of the X-ray Direction both the British and the French Governments had expressed concern about the performance of the Euroscan machine, particularly at the English end of the tunnel. The inadequate performance of the machine was the subject of discussions at JSC meetings since at least 1998. The minutes of a meeting of the JSC on 16 December 1998 record the French Government's representative as saying that he recognised that the situation in the UK was different to that faced on the French side and the need for the UK to take a decision quickly. The French were not experiencing the same difficulties with Euroscan and expected its operation to continue for some time. They therefore did not need to take an immediate decision.
  34. The minutes of that meeting also record that the United Kingdom representatives sought the views of the French delegation on a proposal that for the English end of the tunnel Eurotunnel be asked to install a dog-based screening system together with the existing Euroscan to be replaced in due course by two new generation X-ray systems in parallel. But the French are recorded as seeing no value in Eurotunnel spending money on those systems in parallel and as saying that another option could be presented to their Prime Minister which would avoid any discrepancy appearing between the two screening regimes. The minutes further record that in recognition that there may be a divergence of views on the best way forward given the different prevailing circumstances both delegations agreed to give thought to how best to present the available options and consequences to their respective Ministers.
  35. There was a meeting of the JSC on 22 June 1999. The minutes record the French delegation saying that they would not recommend that their Government ask the Concessionaires to put in a new X-ray system. Para. 15 of the minutes also records that Dr. Gillan advised the JSC that the United Kingdom had decided to place a greater emphasis on UVV as part of the passenger vehicle screening at the English terminal, that Eurotunnel had been directed to put in place a UVV system to replace the current system, and that this should be in place by 1 September 1999. Para. 16 of the minutes records that a French delegate advised that the Douanes were undertaking an internal audit of the passenger screening regime to assess the effectiveness of all methods of screening of which the UVV was a part.
  36. Thus the minutes appear to record what the United Kingdom had already directed the Concessionaires to do. However, Dr. Gillan in para. 60 of his first Witness Statement on behalf of the Secretary of State said: "The French Government had in fact been aware that the Applicant was about to be directed to put in place UVV at the meeting of the JSC on 22 June 1999 (see paragraph 15 of the minutes .)" (my emphasis). That discrepancy was not explained. Dr Gillan continued: "The French did not object to that Direction but simply said (at paragraph 16 of the minutes) that they were undertaking an internal audit of all passenger screening methods which included UVV." From the minutes there appears to have been no more than an exchange of information by each of the two delegations as to what its country was doing about UVV.
  37. There was a further meeting of the JSC on 2 March 2000. The minutes of that meeting together with Dr. Gillan's comments thereon in his first Witness Statement are relied on by the Secretary of State as indicating compliance with Article 5 (4) of the Treaty and cl. 23.2 of the Concession in relation to both directions which he made in April 2000.
  38. Dr. Gillan said in para. 60:
  39. "In relation to the Search Direction, I informed the JSC at its meeting on 2 March 2000 (see minutes of meeting . paragraph 9) that [UVV] was now in place and that the UK required that [a specified percentage] of passenger vehicles be screened in this way. The French response (at paragraph 10) is indicative of the approach adopted by both Governments on matters of detail. The French make a number of comments regarding UVV and certainly raise no objection."
  40. Para. 9 of the minutes records the Dr. Gillan informed the JSC that UVV was now in place at the English terminal and that the United Kingdom required a specified percentage of passenger vehicles to be screened in this way. Para. 10 of the minutes record the French as saying that the Douanes had taken the opportunity to view the UVV at the UK terminal and that the UVV in France would be similar to that used in the UK.
  41. In relation to the X-ray Direction, para. 12 of the minutes records that another representative of the United Kingdom, outlining the current position on freight screening, informed the JSC that the United Kingdom was about to direct, in April, Eurotunnel to put in place a new X-ray together with certain other search facilities, that the new X-ray would be required to be in place by 2001, and that a French delegate informed the JSC what was being done in France. Para. 14 of the minutes records that another French delegate outlined the study that the French would wish to see Eurotunnel carry out and that he recognised that it might not wish to comply for financial reasons and that maintaining a dialogue with Eurotunnel was important. In para. 15 of the minutes Dr. Gillan is recorded as voicing certain concerns about Eurotunnel's commitment to screening. Dr. Gillan said in para. 61 of his Witness Statement by reference to paras. 12 and 14 of the minutes that the French response did not indicate any opposition to the proposed direction.
  42. The X-ray Direction was then made on 7 April 2000 and expressed to come into force on 10 April. This required the Concessionaires to
  43. (1) install and bring into operation a new X-ray system for the screening of freight vehicles by 1 June 2001;
    (2) ensure that the system was acceptable to the Department of the Environment, Transport and the Regions;
    (3) ensure that once the system was operational they had sufficient trained personnel available at all times to operate it;
    (4) produce written security procedures and contingency plans for the operation of the system in advance of operation; and
    (5) put in place effective maintenance arrangements with the suppliers of the system.

    The wording of the direction was not shown to the French Government.

  44. The Search Direction was made on 18 April 2000 and expressed to come into force on 21 April. This required the Concessionaires to arrange for such searches to be carried out as were appropriate to meet the requirements set out in detailed risk assessment tables, specifying minimum percentages of vehicles of particular categories to be searched. The wording of this direction was also not shown to the French Government.
  45. On 10 May 2000 the Concessionaires served an objection under Article 20 of the Order in respect of the X-ray Direction. Before that objection had been determined, on 28 June the Concessionaires' director of public affairs, Mr. Noulton, wrote to Dr. Gillan to say that if the date for compliance with that direction was postponed to 30 November 2001 the Concessionaires would be willing to withdraw their objection. Dr Gillan wrote back, agreeing with that proposal. The Concessionaires nevertheless proceeded with judicial review. However, as there is no procedure for allowing an objection to be withdrawn and the effect of an objection is to suspend the operation of a direction, the objection was considered and the direction upheld on 14 July 2000, subject to the question, left for the judicial review proceedings, whether the Secretary of State had power to make the direction without there being joint action or a joint request with the French Government. The Concessionaires wanted that question determined, as they feared that they will be subjected to more directions without what they consider to be the necessary preconditions being satisfied.
  46. Dyson J. in his judgment stated the issue as being whether the X-ray Direction and the Search Direction were ultra vires s. 11 of the Act. He identified three questions to which that issue gave rise.
  47. The first was whether the Secretary of State had the power to issue directions in relation to the security of the Channel Tunnel otherwise than for the purpose of implementing, or enabling the implementation of, the international arrangements as defined by s. 49 of the Act. An argument on behalf of the Secretary of State that he had a discretion whether or not to exercise the power conferred by s. 11 in accordance with the Treaty was rejected by the judge, and it is not pursued in this court.
  48. The second was whether the court should in the exercise of its discretion refuse to grant relief to the Concessionaires on the ground that it was inappropriate for the court to decide questions as to the proper interpretation of the Treaty and the Concession. Mr. Crow argued for the Secretary of State that because Article 19 (1) was an arbitration clause governing the resolution of disputes between the two Governments and the Concessionaires, the correct way for the Concessionaires to raise the issues of interpretation was by reference to arbitration and that it was inappropriate for an English court to resolve disputes as to the meaning of the Treaty and the Concession. The judge rejected that argument too, holding that it was a question of domestic law whether the two directions were ultra vires the Act, which is part of English law, even though it involved the true interpretation of international instruments. The Secretary of State by a Respondent's Notice argues before this court that the judge was wrong on that question.
  49. The third question was whether the two directions were made for the purpose of implementing, or enabling the implementation of, the international arrangements. Mr. Crow argued that, on the true construction of the Treaty and the Concession, they did not require any positive agreement between the two Governments but merely a degree of consultation and cooperation between them. The judge did not accept this, and again that is a subject of the Respondent's Notice. But the judge held that it was sufficient that a Government which is consulted about a proposed direction does not object to what is proposed by the Government making the proposal. He held that because the French authorities had the opportunity to object to the proposed directions but did not take that opportunity, that was a sufficient indication of consent to what the United Kingdom proposed to constitute the directions joint acts within the meaning of Article 5 (4) of the Treaty and cl. 23 (2) of the Concession. He therefore concluded that the two directions were not ultra vires, and dismissed the Concessionaires' application.
  50. The first question to which this appeal gives rise is, in logic, the question whether by reason of the provision for arbitration the court should have entertained the judicial review proceedings. Mr. Crow accepts that as a matter of form the issue in this case is concerned with the capacity of the Secretary of State as a matter of domestic law to issue the two directions. But he submits that in substance the real issue concerns the true interpretation of the Treaty and the Concession.
  51. Mr. Crow argued that as there is a mechanism provided under the Treaty and the Concession for the resolution of disputes between the Governments and the Concessionaires and where that mechanism is available, the English court should not have attempted to reach its own interpretation of the Treaty and the Concession. He further criticised the judge's reasoning on this point. The judge took into account the fact that this court in R v Secretary of State for the Home Department, ex p. Adan [1999] 3 WLR 1274 thought it appropriate for an English court to decide a question of interpretation of the Geneva Convention relating to the Status of Refugees on which question there was a difference of views between signatories to the Convention. As Mr. Crow pointed out, in Adan there was no machinery such as arbitration available for the resolution of disputes, the dispute in that case was not between parties to the Convention but between an asylum-seeker and the Secretary of State, and the domestic court had no choice but to apply its own interpretation (a view with which the House of Lords on the appeal from this court agreed: [2001] 2 WLR 143). The judge further said: "But the decision of an arbitral panel appointed to determine a particular dispute on an ad hoc basis can hardly be said to be analogous to, or as authoritative as, that of a supranational court, such as, for example, the European Court of Justice or the European Court of Human Rights." Mr. Crow rightly submitted that the authority of those courts is derived entirely from the consent of the signatories to the convention or treaty under which the courts were established, those states passing legislation to recognise the authority of those courts. In the present case the United Kingdom and France have entered into the Treaty and by the Concession they and the Concessionaires have given effect to the Treaty in a way which binds them contractually. The arbitral tribunal therefore has an authority of a kind similar to that of the international court.
  52. It is unnecessary to go through the other points taken by Mr. Crow on this issue, which seem to me to have less force, because of a point taken by Mr. Isaacs Q.C. for the Concessionaires, adopting remarks put by this court to Mr. Crow in the course of the argument. That point turns on the concluding words of cl. 40.1 of the Concession which provide for the submission of a dispute to arbitration "at the request of any party". Mr. Crow conceded, as he had to, that arbitration was not thereby made compulsory on the arising of a dispute, but only if a party chose to make a request. In the present case, there has been no request that the dispute be submitted to arbitration. It is accepted by Mr. Crow that in any event the court had a discretion whether to allow the judicial review proceedings to continue. In the absence of a request, which the Secretary of State or the Concessionaires could have made but which has not yet been made, it is hard to see that the court exceeded the proper ambit of its discretion in deciding to allow the judicial review proceedings to go ahead and to determine the question of construction of the Treaty and the Concession in the course of deciding the validity of the directions. Thus even though for the reasons given in para. 39 above the judge's exercise of discretion is in my opinion vulnerable to the criticism that he took into account irrelevant matters, I am clearly of the view that the judge's decision on the arbitration point should be upheld.
  53. I come now to the central issue between the parties, the true meaning of Article 5 (4) of the Treaty and cl. 23.2 of the Concession. Mr. Isaacs submits that, save in the exceptional circumstances to which Article 6 of the Treaty applies, the United Kingdom Government is only entitled to require the Concessionaires to take action with respect to the security of the Channel Tunnel if it has consulted the French Government and the two Governments have agreed on the action to be taken. He does not contend that the joint action envisaged by Article 5 (4) and the joint request contemplated by cl. 23.2 require both Governments to make the direction to the Concessionaires: the Order plainly does not allow this. But he submits that the direction may not be made unless there has been prior consultation on the agreement as to the subject-matter of the direction, such agreement to be manifested by some positive act.
  54. The Secretary of State would be content if this court were to uphold the judge's interpretation that no overt expression of consent was required and that it was sufficient if the consulted Government does not object to a proposal made by the other. But Mr. Crow goes further. He submits that it is sufficient if the relevant authorities of each country consult and cooperate with each other in relation to security matters and seek to coordinate their efforts in that regard. He says that it is in the very nature of an international agreement of this kind that the obligation should be no more precise than that.
  55. I am unable to accept that submission, essentially for the reasons given by the judge. The validity of a direction given under Article 16 of the Order and directly affecting the Concessionaires to whom it was given depends on the Act which makes plain by s. 1 (1) that its primary purpose includes to provide for the operation of the tunnel rail link in accordance with the Treaty and the Concession, by which the Concessionaires as well as the two Governments are contractually bound and which gives effect to the provisions of the Treaty. It is idle to point, as Mr. Crow does, to general provisions such as those in Article 5 (2) of the Treaty providing for the coordination, so far as possible, of the activities of the authorities designated as empowered to take security decisions or those in the Special Arrangement providing for the establishment of permanent arrangements for "concertation" (Article 2) and for cooperation, assistance and action in a concerted manner in discharging duties in relation to security to the fullest possible extent (Article 4), when there are specific provisions in the Treaty and the Concession governing the right of Governments to require action to be taken by the Concessionaires on security. The Concessionaires are entitled to see that the specific conditions for such requirement are satisfied. The key condition is that the action by the Governments and the request to the Concessionaires must be joint (except in the circumstances of Article 6 of the Treaty allowing unilateral action). Unless the effect of the provisions to which Mr. Crow refers is to cause "act jointly" in Article 5 (4) and "joint request" in cl. 23.2 to have a special meaning, it seems plain to me that the joint action and joint request, when taken or made by one of the two Governments, must be taken or made on behalf of them both. Thus the agreement of both Governments is necessary.
  56. I should add that after the hearing of the appeal we have been shown the French text of Article 5 (4) and of cl. 23.2. This reinforces the view which I have formed from the English text. The French equivalent of "shall act jointly" is "agissent d'un commun accord" which expressly indicates that the action must be by common agreement. The French equivalent of "At the joint request of the Principals" is "A la demande des deux Gouvernements agissant conjointement", which again makes clear that the two Governments must be acting jointly when making the request. The French text is by the Treaty equally authoritative with the English text.
  57. I cannot see that the general provisions on which Mr. Crow relied require a different meaning to be given to the specific provisions. Mr. Crow placed heavy reliance on cl. 15.1 of the Concession that the Concessionaires are required to comply with any requirements which are made by either Principal. But he thereby overlooks the second relative clause which qualifies the requirements to be complied with, viz. "and which are binding on them under applicable laws and regulations concerning . security." I agree with the judge that this does not permit either Government to do something not authorised by Article 5 (4) or cl. 23.2. If, for example, the United Kingdom Government gave a direction on security without consulting the French Government, it cannot be said that cl. 15.1 imposed an obligation on the Concessionaires to comply with it. For similar reasons I cannot accept a further argument of Mr. Crow that the Concessionaires are bound as a matter of contract to comply with directions given by the United Kingdom Government and cannot rely on the Concession or the Treaty to impugn the validity of the directions. I return again to cl. 41.1 providing as it does that the relationship between the Principal and the Concessionaires is to be governed by the provisions of the Treaty as given effect to by the Concession, and by the provisions of the Concession. The specific provisions of Article 5 (4) as given effect by cl. 23.2 must be complied with by the two Governments when requiring security action to be taken by the Concessionaires, and if the United Kingdom Government fails to do what is required by cl. 23.2 when purporting to give a direction I cannot see anything in the general words of Article 13 (2) of the Treaty or cl. 15.1 or cl. 41.2 to require the Concessionaires to comply with a direction improperly made and so not binding on them.
  58. The judge, in my opinion, rightly accepted that there had to be agreement between the two Governments for a direction made pursuant thereto to be valid. That is the ordinary connotation of a joint action or request. But he held that there was no requirement for an overt expression of consent. Mr. Crow in support of that view asked why should there be a need for a manifestation of agreement. The short answer to that was provided by Sir Martin Nourse in the course of the argument before us: if there is no outward expression, how do you know that you have agreement?
  59. The substantive point in issue is whether in the context of the Treaty and the Concession it suffices for action or a request to be joint that it is the product of one Government indicating what it proposes and the other Government not objecting. To a contract lawyer it would be surprising if that silence amounted to acceptance of the proposal so as to constitute an agreement. There may be all sorts of reasons why a Government chooses not to object, yet does not want to associate itself with the requirement for actions proposed by the other Government. Take, for example, some controversial measure which will be extremely expensive for the Concessionaires to implement but on which the United Kingdom wishes to give a direction for a reason connected only with the English end of the Tunnel. The French Government may well not wish to incur the odium of itself joining in forcing that measure on the Concessionaires, but would not be prepared to go so far as to veto the proposal by the United Kingdom. So it refrains from objecting. If the United Kingdom proceeds to give a direction, that can on no ordinary use of language be said to be joint action or a joint request, or the two Governments acting "d'un commun accord" or a request of the two Governments "agissant conjointement."
  60. For my part therefore I would respectfully disagree with the judge when he suggests that there is in substance no difference between the French Government (a) positively agreeing to the issue of the Directions and (b) not objecting when it is consulted and has the opportunity to object. I confess that I am also troubled by the use made by the judge of Dr. Gillan's evidence. He quoted Dr. Gillan as saying that "the precise format and detail of UK Directions (and French arrangements for security of the Tunnel), as opposed to the security principles behind them, were not regarded as matters for joint agreement between the two Governments." That appears to be cited in support of some suggestion that the way in which the two Governments after the Treaty and the Concession were made chose to behave in relation to each other could affect the rights of the Concessionaires by causing Article 5 (4) and cl. 23.2 to mean what otherwise they would not mean. I am very doubtful whether that can be right. Mr. Crow drew our attention to Article 31 of the Vienna Convention on the Interpretation of Treaties, though he did not suggest that this was directly applicable. He relied in particular on the provisions of Article 31 (3)(b) requiring to be taken into account any subsequent practice in the application of a treaty which establishes the agreement of the parties regarding its interpretation. But I find it impossible to say on the evidence that the practice of the two Governments establishes their agreement regarding its interpretation. In any event the primary rule in Article 31 (1) is that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the Treaty in their context and in the light of its object and purpose.
  61. The quotation by the judge from Dr. Gillan's evidence is taken from para. 29 of his first Witness Statement where Dr Gillan is stating what he considers to be "clear from minutes of discussions between the two Governments under the special arrangements set up to deal with security matters". In other words it is his inference from the minutes of the JSC. But when one looks at those minutes themselves, I would suggest that the position is a good deal less certain. It should be borne in mind that a meeting of the JSC is not a meeting of the two Governments but of those officials who were advising Governments. Sometimes the view of a Government would be expressed at a meeting. But when a proposal was made for the first time at a meeting so that the delegates had not had time to advise Ministers what the Government's attitude should be, the reaction of the other delegation to that proposal could hardly be taken to be the view of its Government, still less could the absence of an objection at that meeting be taken to be the agreement of that Government.
  62. Further, when an intended direction was mentioned by the United Kingdom delegation it was not put forward as a proposal on which the French Government was invited to give its consent. Take what Dr. Gillan tells us in para. 60 of his first Witness Statement is an intended direction on UVV which was discussed at the meeting on 22 June 1999. As I have already commented in para. 29 above, the actual minutes record that Eurotunnel had already been directed to put the UVV system in place. More pertinently to the present case the statement by Dr. Gillan on UVV at the meeting on 2 March 2000 appears from the minutes (referred to in para. 29 above) not to have been a proposal for the Search Direction to the making of which the French were invited to agree, but a statement of what the United Kingdom had required. To infer from the brief response recorded in para. 10 of the minutes that the French delegation had understood that consent to the direction is what was being asked of them and that they had agreed by not objecting and by that silence indicated the French Government's agreement to the direction, which it never saw and the detailed terms of which do not appear even to have been described to the French delegates, seems to me to be far-fetched.
  63. In relation to the X-ray Direction, the French delegation was informed, as the minutes show, that the United Kingdom was about to direct Eurotunnel in April to put in place a new X-ray system by 2001. But again it does not appear that the French Government was being asked to give its consent. Again the minutes appear to show that the United Kingdom had taken a decision on which the French were simply being informed. Again I have difficulty in inferring from the French response in those circumstances that the agreement of the French Government to the direction, which it never saw, was obtained.
  64. Certain it is that the actual agreement of the French Government to the X-ray Direction and the Search Direction was never obtained. Indeed there is evidence from Mr. Noulton that, on 21 June 2000 or in the early hours of the next morning after a dinner attended by him and Dr. Gillan, the latter told him that if he had to seek French agreement to the directions he would not be able to get it. Dr. Gillan in his second Witness Statement does not deny saying that; he cannot recall the exact words used. But he seeks to explain them away by saying that "the sense of what I was saying was that, since the French do not themselves rely on directions or anything comparable, it would baffle them if I were to request their consent on this occasion." That confirms the impression which I have received from the JSC minutes that the consultation prior to a direction consisted of no more than informing the French delegation of the fact that the United Kingdom had taken a decision. To my mind that evidence reinforces the conclusion that it is quite impossible to say that the directions were the product of joint action or joint requests.
  65. The French, as Dr. Gillan explains, do not give directions because if security measures need to be taken they carry those measures out themselves. They may well have shown some indifference to the United Kingdom's use of directions in the circumstances, and that may have led to the sloppy practice of ignoring the strict requirements of Article 5 (4) and cl. 23.2 and of not seeking to obtain the consent of the French Government. But, for the reasons which I have given, in my judgment that practice contravenes those requirements, and as the French Government did not consent to the two directions, they are invalid.
  66. I should record Mr. Isaacs' assurance that the Concessionaires fully accept the importance of security at the Channel Tunnel and their willingness to comply with valid directions.
  67. I would allow the appeal and quash the X-ray Direction and the Search Direction.
  68. LAWS L.J.:

  69. Initially I felt that there was a good deal in the respondent's case on this appeal, essentially for two reasons. First, the distinction between agreement and non-objection is or at least in some situations may be fragile, perhaps fragile to the point of disappearance. Secondly, the arrangements made de facto between the Governments seemed from the evidence to be working well, to the satisfaction of all parties at any rate until the present dispute arose. This court could not foresee the consequences of any significant disturbance to those arrangements which it might generate by insisting on positive agreement between the States. Against that background, if the respondent's proffered construction of Art. 5(4) of the Treaty and clause 23(2) of the Concession or at least the modified approach of the judge below was a reasonable one which could be conformed to the instruments' language, we should accept it rather than push out a boat into waters unknown to us, and in which we would certainly be in no position to set its course.
  70. This would have been a wrong approach. The correct construction of Art. 5(4) and clause 23(2) is (of course) a matter of law. Modern learning in the field of contract shows that the court is by no means strictly limited to the words of such instruments, but may in some circumstances consider evidence throwing light on what the parties intended to achieve and what they intended to avoid: what is sometimes inelegantly referred to as the "factual matrix". But there is nothing in this case to show that a special, somewhat bloodless, meaning was intended to be attached to "act jointly" or "joint request". It seems to me, therefore, that we should construe the provisions in which these expressions appear according to their ordinary and natural meaning. That being so, I agree with the conclusions arrived at by my Lords on the issues of interpretation. I would in particular express my agreement with the view that the French texts offer significant support for the view that positive assent is required.
  71. My initial view was, I think, wrongly influenced by the principles which our courts apply to review of the exercise of a discretion. The case is a salutary reminder of the truth, obvious on reflection, that the rule of law in relation to public bodies depends as well on the proper construction of accords and instruments by which the public body binds itself as it does on the reasonableness or fairness of any action which the public body takes.
  72. Like my Lords, and for the reasons which they have given, I would allow the appeal and quash the two Directions.
  73. SIR MARTIN NOURSE:

  74. I agree. I add some observations of my own on the meaning of Article 5(4) of the Treaty and clause 23(2) of the Concession.
  75. In the English text Article 5(4) provides:
  76. "The Concessionaires shall, if required by the two Governments, take measures necessary for the defence and security of the Fixed Link. Save in exceptional circumstances of the kind envisaged in Article 6, the two Governments shall consult each other before requiring the Concessionaires to take such measures, and shall act jointly."

    In the English text clause 23(2) provides:

    "At the joint request of the Principals or at the request of either Principal in the circumstances contemplated by Article 6 of the Treaty, the Concessionaires shall take such action as may be required of them with respect to the defence and security of the Fixed Link."
  77. On the wording of these provisions, the decisive question is whether it is necessary for the government to which action is proposed to signify its agreement to the proposer or whether it is enough for it not to object. The essence of Mr Justice Dyson's reasons for preferring the latter alternative appears from two passages in paragraphs 40 and 41 of his judgment:
  78. "[40] In my view, in the context of this Treaty and the Concession as they have been worked out by the two governments, it is sufficient for the purposes of Article 5(4) and Clause 23(2) that the consultee government does not object to what is proposed by the government that is making the proposal.
    [41] In substance, there is no difference between the French government (a) positively agreeing to the issue of the Directions, and (b) not objecting when it is consulted and has the opportunity to object. There are some contexts in which the difference between positive assent and non-objection is important. But the present context is not one of them. This is particularly so because, as Dr Gillan says, 'the precise format and detail of UK Directions (and French arrangements for security of the Tunnel), as opposed to the security principles behind them, were not regarded as matters for joint agreement between the two governments'. The two governments did not consider that they had to adopt the same security measures, although they did consider it necessary to seek to achieve the same level of security."
  79. While I entirely sympathise with the judge's view that the provisions of the Treaty and the Concession should, so far as possible, be construed in conformity with the two governments' practical application of them, I am unable to agree with him that the present context is not one in which the difference between positive assent and non-objection is important. As Lord Justice Peter Gibson has pointed out, there may be all sorts of reasons why one government will choose not to object, yet does not wish to associate itself positively with the proposal of the other. So what we have to do is to construe the two provisions in order to see whether, on their natural meaning, non-objection is enough.
  80. I start with Article 5(4), where the material words are "the two Governments shall consult each other before requiring the Concessionaires to take such measures, and shall act jointly". During the argument it occurred to me that the requirement that the two governments "shall act jointly" might be satisfied by consultation, an act involving both parties, followed by the action of only one of them. But that possibility has disappeared with the sight we now have of the French text, which renders those words "et agissent d'un commun accord". Thus it is clearly shown that the action must be the sequel to an agreement between the two governments. In ordinary legal parlance an agreement is not constituted by the proposal of one party and the non-objection of the other. The other party must assent to the proposal. And because an uncommunicated assent is indistinguishable from non-objection it must be signified to the proposer.
  81. The material words in clause 23(2) are "At the joint request of the Principals". Here I was never in any doubt that the government to which the proposal is made must assent to it. A request is of its nature a positive act and a joint request cannot be made where one of the two parties does no more than not object to its being made. The French text, sc. "A la demande des deux Gouvernements agissant conjointement", is conclusively to the same effect.
  82. For these reasons I am of the opinion that under both Article 5(4) of the Treaty and clause 23(2) of the Concession it is necessary for the government to which action is proposed to signify its agreement to the proposer. On the other questions, I do not wish to add to the reasoning of Lord Justice Peter Gibson. I too would allow the appeal and quash both Directions.
  83. ORDER: Appeal allowed, order of the judge set aside and the two directions quashed. The appellant to have costs here and below. Two further orders as set out at page 37 of the bundle. Permission to appeal to the House of Lords refused.
    (Order does not form part of approved Judgment)


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