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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 3,  Eu LR 225
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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)
|Royal Courts of Justice|
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
MR JUSTICE MORLAND
The Environment Agency
The Secretary of State for Defence
1st interested party
2nd interested party
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
Crown Copyright ©
Lord Justice Laws:
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.
“… 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.
“[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.
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 contamination;
(c) the fundamental principles governing the health surveillance of workers.
Any Member State in whose territories particularly dangerous experiments are to take place shall take additional health and safety measures, on which it shall first obtain the opinion of the Commission.
The assent of the Commission shall be required where the effects of such experiments are liable to affect the territories of other Member States.
Each Member State shall establish the facilities necessary to carry out continuous monitoring of the level of radioactivity in the air, water and soil and to ensure compliance with the basic standards.
The Commission shall have the right of access to such facilities; it may verify their operation and efficiency.
The appropriate authorities shall periodically communicate information on the checks referred to in Article 35 to the Commission so that it is kept informed of the level of radioactivity to which the public is exposed.
Each Member State shall provide the Commission with such general data relating to any plan for the disposal of radioactive waste in whatever form as will make it possible to determine whether the implementation of such plan is liable to result in the radioactive contamination of the water, soil or airspace of another Member State.
The Commission shall deliver its opinion within six months, after consulting the group of experts referred to in Article 31.
The Commission shall make recommendations to the Member States with regard to the level of radioactivity in the air, water and soil.
In cases of urgency, the Commission shall issue a directive requiring the Member State concerned to take, within a period laid down by the Commission, all necessary measures to prevent infringement of the basic standards and to ensure compliance with regulations.
Should the State in question fail to comply with the Commission directive within the period laid down, the Commission or any Member State concerned may forthwith… bring the matter before the Court of Justice.
The Commission shall set up within the framework of the Joint Nuclear Research Centre, as soon as the latter has been established, a health and safety documentation and study section.
This section shall in particular have the task of collecting the documentation and information referred to in Articles 33, 36 and 37 and of assisting the Commission in carrying out the tasks assigned to it by this Chapter.”
“Article 45 [which is within Chapter V, ‘Joint Undertakings’]
Undertakings which are of fundamental importance to the development of the nuclear industry in the Community may be established as Joint Undertakings within the meaning of this Treaty…
Article 77 [within Chapter VII, ‘Safeguards’]
In accordance with the provisions of this Chapter, the Commission shall satisfy itself that, in the territories of Member States,
(a) ores, source materials and special fissile materials are not diverted from their intended uses as declared by the users;
(b) the provisions relating to supply and any particular safeguarding obligations assumed by the Community under an agreement with a third State or an international organisation are complied with.
Anyone setting up or operating an installation for the production, separation or other use of source materials or special fissile materials or for the processing of irradiated nuclear fuels shall declare to the Commission the basic technical characteristics of the installations, to the extent that knowledge of these characteristics is necessary for the attainment of the objectives set out in Article 77…
Article 84 [also within Chapter VII]
The safeguards may not extend to materials intended to meet defence requirements which are in the course of being specially processed for this purpose or which, after being so processed, are, in accordance with an operational plan, placed or stored in a military establishment.”
“If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.”
I have already indicated that Article 150 is the equivalent of Article 234 of the Treaty of Rome.
“Whereas the protection of the health of workers and the general public requires that any activity involving danger arising from ionising radiation must be made subject to regulation”.
Article 2 (which is within Title II: “Scope, Reporting and Authorization”) provides:
“This Directive shall apply to the production, processing, handling, use, holding, storage, transport and disposal of natural and artificial radioactive substances and to any other activity which involves a hazard arising from ionising radiation.”
Article 3 (also within Title II):
Each Member State shall make the reporting of the activities referred to in Article 2 compulsory. Without prejudice to Article 5 [which deals with authorizations in certain specific cases] and in the light of possible dangers and other relevant considerations, these activities shall be subject to prior authorization in cases decided upon by each Member State.”
Article 6 (within Title III: “Limitation of Doses for Controllable Exposures”):
“The limitation of individual and collective doses resulting from controllable exposures shall be based on the following general principles:
(a) [I have already set this out in paragraph 3, and repeat it for convenience] every activity resulting in exposure to ionizing radiation shall be justified by the advantages which it produces;
(b) all exposures shall be kept as low as reasonably achievable;
(c) without prejudice to Article 11 [which deals with what are called ‘planned special exposures’], the sum of the doses and committed doses received shall not exceed the dose limits laid down in this Title for exposed workers, apprentices and students and members of the public.
These three principles are in effect replicated by the ICRP, to which I turn next. As I have foreshadowed in paragraph 3, the respondent drew upon ICRP materials in arriving at its impugned decision.
“(a) [I have already set this out in paragraph 3] 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. (The justification of a practice.)
(b) In relation to any particular source within a practice, the magnitude of individual doses, the number of people exposed, and the likelihood of incurring exposures where these are not certain to be received should all be kept as low as reasonably achievable, economic and social factors being taken into account. This procedure should be constrained by restrictions on the doses to individuals (dose constraints), or the risks to individuals in the case of potential exposures (risk constraints), so as to limit the inequity likely to result from the inherent economic and social judgments. (The optimisation of protection.)
(c) The exposure of individuals resulting from the combination of all the relevant practices should be subject to dose limits, or to some control of risk in the case of potential exposures. These are aimed at ensuring that no individual is exposed to radiation risks that are judged to be unacceptable from these practices in any normal circumstances. Not all sources are susceptible of control by action at the source and it is necessary to specify the sources to be included as relevant before selecting a dose limit. (Individual dose and risk limits.)”
(The emphasis of the summary descriptions at the end of each sub-paragraph is mine.) I have already indicated (paragraph 3) that there is in effect no difference between the formulations of the justification principle ((a) above) respectively given by the ICRP and the Directive. The same is true of the optimisation and dose limits principles ((b) and (c)). For the relationship between the two formulations, the Opinion of Mr Advocate General Jacobs in Re Ionising Radiation Protection  2 CMLR 513 is instructive.
“Some human activities increase the overall exposure to radiation, either by introducing whole new blocks of sources, pathways, and individuals, or by modifying the network of pathways from existing sources to man and thus increasing the exposure of individuals or the number of individuals exposed. The Commission calls these human activities ‘practices’. Other human activities can decrease the overall exposure by influencing the existing form of the network. These activities may remove existing sources, modify pathways, or reduce the number of exposed individuals. The Commission describes all these activities as ‘intervention’.”
In the same context reference was made to ICRP 60 paragraph 5.5.2(189):
“The Commission defines the scope of its dose limits for public exposure by confining it to the doses incurred as the result of practices. Doses incurred in situations where the only available protective action takes the form of intervention are excluded from the scope of the dose limits. Separate attention has to be paid to potential exposures… The intended emission of radionuclides from installations, including the emission of naturally occurring radionuclides from installations such as mines and waste disposal sites, should be treated as practices. The resulting doses should be subject to the dose limits…”
“Decisions concerning the adoption and continuation of any human activity involve a choice between possible options and are often carried out in two stages. The first stage is the examination of each option separately in order to identify those options which can be expected to more good than harm. This provides a ‘short list’ from which the preferred option can then be selected. The second stage, the final selection, will often involve the replacement of one existing practice by another. The net benefit of the change will then be the relevant feature rather than the net benefit of each option separately. The Commission recommends that, when practices involving exposure, or potential exposure, to radiation are being considered, the radiation detriment should be explicitly included in the process of choice. The detriment to be considered is not confined to that associated with the radiation – it includes other detriments and the costs of the practice. Often, the radiation detriment will be a small part of the total. The justification of a practice thus goes far beyond the scope of radiological protection. It is for these reasons that the Commission limits its use of the term justification to the first of the above stages, i.e. it requires only that the net benefit be positive. To search for the best of all the available options is usually a task beyond the responsibility of radiological protection agencies.”
In this connection Miss Rose also referred to certain passages in a later ICRP publication, ICRP 77 paragraphs 5.1(15), (16). I have had regard to these but need not set them out.
United Kingdom Defence Policy
Introduction, paragraph 8:
“We will retain our nuclear deterrent with fewer warheads to meet our twin challenges of minimum credible deterrence backed by a firm commitment to arms control.”
“60. Deterrence is about preventing war rather than fighting it. All our forces have an important deterrent role but nuclear deterrence raises particularly difficult issues because of the nature of nuclear war. The Government wishes to see a safer world in which there is no place for nuclear weapons. Progress on arms control is therefore an important objective of foreign and defence policy. Nevertheless, while large nuclear arsenals and risks of proliferation remain, our minimum deterrent remains a necessary element of our security.
61. The Strategic Defence Review has conducted a rigorous re-examination of our deterrence requirements… We have concluded that we can safely make further significant reductions from Cold War levels…
62. With the withdrawal of the last RAF WE177 bombs in March 1998, Trident is our only nuclear weapon. We need to ensure that it can remain an effective deterrent for up to 30 years. This is why we need a force of four Trident submarines…
64. … taking into account Trident’s greater accuracy than Polaris, the Review has concluded that we need a stockpile of less than 200 operationally available warheads. This is a reduction of a third from the maximum of 300 announced by the previous government and represents a reduction of more than 70% in the potential explosive power of the deterrent since the end of the Cold War.
70. On nuclear arms control, the Government hopes for further bilateral reductions in US and Russian strategic weapons through the Strategic Arms Reduction Treaty process. We also hope to see progress towards reducing the thousands of Russian shorter range weapons. Our own arsenal, following the further reductions described above, is the minimum necessary to provide for our security for the foreseeable future and very much smaller than those of the major nuclear powers. Considerable further reductions in the latter would be needed before further British reductions could become feasible.”
“The Government’s General Election Manifesto therefore promised to retain Trident as the ultimate guarantee of the United Kingdom’s security while pressing for multilateral negotiations towards mutual, balanced and verifiable reductions in nuclear weapons. When we are satisfied with progress towards our goal of the global elimination of nuclear weapons, we will ensure that British nuclear weapons are included in negotiations.”
Miss Rose placed some emphasis on paragraph 14:
“For as long as Britain has nuclear forces, we will ensure that we have a robust capability at the Atomic Weapons Establishment to underwrite the safety and reliability of our nuclear warheads, without recourse to nuclear testing. There are no current plans for any replacement for Trident, and no decision on any possible successor system would be needed for several years. But we have concluded that it would be premature to abandon a minimum capability to design and produce a successor to Trident should this prove necessary. However, the Government’s aim is to take forward the process of nuclear disarmament to ensure that our security can in future be secured without nuclear weapons.”
The Respondent’s Decision Document
“1.2.1 The Atomic Weapons Establishments at Aldermaston and Burghfield in Berkshire undertake the design, manufacture and servicing of Trident nuclear warheads, conduct research and development into warhead technology and carry out decommissioning of redundant Chevaline nuclear warheads and associated process plants.
1.2.2 Manufacturing and decommissioning operations produce solid, liquid and gaseous radioactive wastes which principally contain tritium, uranium or plutonium. Small quantities of radioactive waste containing cobalt and caesium are also produced from maintenance of AWE Aldermaston’s HERALD nuclear research reactor which is not operational and has been shut down for several years awaiting decommissioning.”
Paragraph 1.3 shows that pursuant to the Atomic Weapons Establishment Act 1991 a Government-Owned Contractor-Operated (“GOCO”) seven-year fixed term contract was let to a company by name Hunting-BRAE Ltd, under which Hunting-BRAE was “responsible for management of all work activities at AWE” (1.3.3). This contract expired on 31st March 2000. Well before then the Secretary of State “decided that the sites would continue to operate in the private sector under GOCO arrangements… and in December 1999… announced that he had selected a new contractor, AWE Management Limited, to operate the sites” (1.4.3). In fact management control of the sites would be in the hands of AWE plc, the second interested party, from 1st April 2000; and it was to AWE plc that the respondent decided to grant the authorisations under s.13 RSA with effect from that date. The shares in AWE plc were to be owned by AWE Management Ltd and the Secretary of State (1.4.5, 1.4.6).
“2.3.1 …the approach taken in radiation protection errs on the side of caution by assuming that there is no dose so low that it cannot cause harm and there is no absolutely safe threshold of radiation dose below which the risk may approach zero. In the present state of knowledge, it is appropriate to assume an increasing risk with increasing dose.
2.3.2 … [these assumptions] are accepted by international bodies such as the… ICRP… it is estimated that a radiation dose of 1 millisievert… results in a one in twenty thousand risk of contracting a fatal cancer, and that the dose from one microsievert… results in a one in twenty million risk.
2.3.3 For comparison the maximum radiation dose which could be received by a member of the public caused by radioactive discharges from AWE is 9 [microsieverts]… and so the risk of developing a fatal cancer would be one in two million.” (DD’s emphasis)
“These principles also form the basis of the… Directive… adopted under [the EURATOM Treaty].”
I may go next to 4.5.6:
“The [respondent] is satisfied that the ICRP internationally accepted dose/risk relationships are a sound basis for radiological protection and that the radiation doses predicted from discharges of radioactivity from AWE at the maximum limits set by the [respondent] could not result in significant radiation exposure of any member of the public…”
“On balance the [respondent] considers that the limitations on discharges in the authorisation certificates will effectively protect human health, the safety of the food chain and the environment generally…” (cf. 4.6.8, which I need not set out)
“The UK Government considers that the EURATOM treaty does not apply to military activities. Government Defence policy relies on having nuclear weapons. The Government affirmed its commitment to an independent nuclear deterrent in the Strategic Defence Review (1998)… [there follows a quotation from paragraph 14 of the Fifth Supporting Essay, which I have already set out above at paragraph 12. Then:] The practice of designing, constructing, maintaining and dismantling nuclear warheads at AWE is a key part of the UK’s defence capability.
4.10.3 The [respondent] took the view that in consulting on AWE’s application for authorisation, it was appropriate under the ICRP system of protection to identify the benefits and detriments of practices at AWE…
4.10.4 The principal benefits associated with the operation of AWE are:-
- delivery of a UK defence requirement for an independent nuclear deterrent”.
Five further bullet points identify other “principal benefits”. Then paragraph 4.10.5 gives five bullet points showing “[t]he main detriments associated with the operation of AWE”. I do not need to set out any of these, since (as I have foreshadowed in paragraph 3) Mr Fordham’s argument engages only the respondent’s treatment of the Trident programme as a benefit within the context of the justification principle.
“ … The [respondent]… has concluded that the practice of designing, constructing, maintaining and dismantling nuclear warheads at AWE is justified in the light of the Government’s defence policy.”
So it is clear that the respondent treated these activities as a single practice for the purposes of applying the justification principle. Then 4.10.8:
“… In the next 10 years the majority of discharges of radioactivity will not arise from warhead production but from the decommissioning of both nuclear plants and nuclear weapons; over 80% of tritium discharges and 55% of plutonium discharges will arise from such decommissioning work. This legacy of radioactive waste would remain, irrespective of the status of Trident production operations…”
“The [respondent] considers that these responses are beyond the scope of determining AWE’s applications for disposal of radioactive wastes under RSA… and has instead passed the responses to both the Secretary of State for the Environment and also the Minister for Agriculture, Fisheries and Food.”
“The [respondent] did not consider that there was an obligation on the [respondent] (or indeed that the [respondent] had the power) to weigh the benefits and detriments of the UK having an independent nuclear deterrent.”
Paragraph 3 of Mr Jackson’s second statement contains some remarks relevant to the question whether the production of Trident warheads could sensibly be regarded as a distinct practice for the purposes of the justification principle. It is to be borne in mind (as I have made clear) that the appellant has no complaint of any decommissioning activity; she objects only to the manufacture and maintenance of current nuclear weapons. This is what Mr Jackson said:
“In my [first] statement I stated at paragraph 68 that operations at AWE are more properly viewed as a single practice, namely the maintenance of a UK nuclear deterrent. I pointed out that both warhead decommissioning and Trident production operations are conducted in the same facilities and often by the same teams of workers. In fact the production and decommissioning of nuclear warheads are closely related and part of a single continuous cycle. The process of manufacture of a nuclear weapon involves the melting of plutonium returned from redundant warheads, the casting and machining of a new warhead, assembly into a weapon, disassembly from a weapon, and return of the plutonium for re-melting and casting into a new weapon. Each step is linked to the next in a continuous production cycle in pursuit of a single purpose, namely the maintenance of a nuclear deterrent, and in my opinion was properly considered as a single practice by the [respondent].”
The Principal Issue in the Case Formulated
Preliminary (1) - the Applicability of the EURATOM Treaty to AWE
Preliminary (2) - the Appellant’s Argument Petrifies the Justification Principle
“2.5.8 [After referring to the SDR] “In the [respondent]’s view, the balancing of benefits and detriments is already taken into account in the Government’s policy and so it does not propose to repeat this balancing exercise for AWE sites specifically.”
However this approach is not replicated in the DD (see paragraphs 4.10.3, 4.10.4, 4.10.5 and 4.10.7 to which I have already referred). Certainly, it is clear that the respondent took the Trident programme to be a given benefit whose moral or legal merits lay beyond its remit to determine (see 4.11.2). But the material passages in the DD do not suggest that the respondent went the further mile, so as to abandon any duty of judgment as regards justification. Nor is the observation in the consultation document mirrored in Mr Jackson’s evidence about the decision-making process. At paragraph 49 of his first statement Mr Jackson said:
“… in making the decisions under challenge in this application, the [respondent] addressed the principle of justification, and sought to identify the benefits and detriments associated with the operation of the AWE.”
“For the reason set out above the [respondent] considered that it was entitled to rely on the Government’s commitment to an independent nuclear deterrent as a principal benefit. The [respondent] was also convinced that it had captured the principal benefits and main detriments of the practice. There were no further benefits or detriments raised in the consultation that I thought I should include. I therefore did not alter the balance of benefits and detriments…”
In light of all these considerations, Mr Fordham’s argument on this aspect is in my judgment mistaken to this extent: it does not follow from the respondent’s acceptance of Trident’s benefit as an axiom that the issue of justification was concluded in favour of the authorisations. But Mr Fordham’s acknowledgement of the converse position possesses much greater force: if Trident (that is, its production and maintenance) is condemned at the bar of international law, and the respondent is obliged to treat it as a detriment accordingly, then it is difficult to see how the respondent, as a body subject to the rule of law, could sanction an activity which it was required to treat as unlawful; and in that case, presumably it would be bound to conclude that the justification principle was not satisfied.
Preliminary (3) - the Respondent’s Own Judgment
Preliminary (4) - “Practice”
The Principal Issue (1) – National Defence and Justiciability
“It is in my opinion clear that the disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown and that no one can seek a legal remedy on the ground that such discretion has been wrongly exercised. I need only refer to the numerous authorities gathered together in China Navigation Co. Ltd. v. Attorney-General [ 2 KB 197]. Anyone is entitled, in or out of Parliament, to urge that policy regarding the armed forces should be changed; but until it is changed, on a change of Government or otherwise, no one is entitled to challenge it in court.”
Then Lord Radcliffe at 798:
“The appellants' counsel said that he wanted to call evidence on such matters as the devastating effects and consequences of nuclear discharge, the dangers of accidental explosions, the technical difficulty of distinguishing approaching nuclear missiles from other harmless objects in the sky, the possibility and likelihood of retaliation to this country if we set ourselves up with nuclear armament. Now some of these arguments or considerations do, no doubt, rest on a basis of fact or expert knowledge and properly qualified persons could give evidence before a jury as to their views or opinions based on such facts or knowledge: some, on the other hand, are intrinsically no more than matters of political decision or judgment. But, even if all these matters were to be investigated in court, they would still constitute only various points of consideration on the ultimate general issue, is it prejudicial to the interests of the State to include nuclear armament in its apparatus of defence? I do not think that a court of law can try that issue or, accordingly, can admit evidence upon it. It is not debarred from doing so merely because the issue is what is ordinarily known as ‘political’. Such issues may present themselves in courts of law if they take a triable form. Nor, certainly, is it because Ministers of the State have any inherent general authority to prescribe to the courts what is or is not prejudicial to the interests of the State. But here we are dealing with a matter of the defence of the realm and with an Act designed to protect State secrets and the instruments of the State's defence. If the methods of arming the defence forces and the disposition of those forces are at the decision of Her Majesty's Ministers for the time being, as we know that they are, it is not within the competence of a court of law to try the issue whether it would be better for the country that that armament or those dispositions should be different. The disposition and equipment of the forces and the facilities afforded to allied forces for defence purposes constitute a given fact and it cannot be a matter of proof or finding that the decisions of policy on which they rest are or are not in the country's best interests. I may add that I can think of few issues which present themselves in less triable form… The more one looks at it, the plainer it becomes, I think, that the question whether it is in the true interests of this country to acquire, retain or house nuclear armaments depends upon an infinity of considerations, military and diplomatic, technical, psychological and moral, and of decisions, tentative or final, which are themselves part assessments of fact and part expectations and hopes. I do not think that there is anything amiss with a legal ruling that does not make this issue a matter for judge or jury.”
“There will be some questions of ‘high policy’ such as the making of treaties, the defence of the realm, the dissolution of Parliament and the appointment of Ministers where the courts as a matter of discretion do not intervene, because the matters are simply not justiciable.”
“Wilson J discussed Chandler at some length, putting a gloss on Lord Radcliffe’s observations at several points. However, she does not appear to have been referred to the CCSU case. Her observations on Chandler are in our opinion incompatible with the consistent view in the United Kingdom that the disposition of the armed forces is non-justiciable.”
The reference to Wilson J’s observations must I think be taken to cast back to her discussion of Lord Devlin’s speech in Chandler, in which she picks up (470) his statement that “[i]t is the duty of the courts to be as alert now as they have always been to prevent abuse of the prerogative”, and comments (471) “[i]t seem to me that the point being made by Lord Devlin… is that the courts should not be too eager to relinquish their judicial review function simply because they are called upon to exercise it in relation to weighty matters of state.”
“Accordingly it seems to me that the Commission is not entitled to differ from the opinion of the Secretary of State on the question of whether, for example, the promotion of terrorism in a foreign country by a United Kingdom resident would be contrary to the interest of national security.”
In paragraph 54, however, Lord Hoffmann went on to explain that this “does not mean that the whole decision on whether deportation would be in the interests of national security is surrendered to the Home Secretary”. In particular,
“an appeal to the Commission may turn upon issues which at no point lie within the exclusive province of the executive. A good example is the question, which arose in Chahal itself, as to whether deporting someone would infringe his rights under article 3 of the Convention because there was a substantial risk that he would suffer torture or inhuman or degrading treatment. The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under article 3.”
In addition Mr Fordham pointed to the observation of Lord Steyn at paragraph 31 where he said:
“… not all the observations in Chandler can be regarded as authoritative in respect of the new statutory system” [viz. the regime of the Human Rights Act 1998, which had come into force before delivery of their Lordships’ speeches in Rehman, but after the relevant events in the case].
The Principal Issue (2) - The Advisory Opinion and the Humanitarian Rule
“78… States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets…
If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law.
79… these fundamental rules… constitute intransgressible principles of international customary law.”
Mr Fordham sought also to build on earlier passages (paragraphs 47 – 48) as tending to show that the maintenance of nuclear weapons as a deterrent may amount to a threat to use them, and so fall to be condemned as contrary to the humanitarian rule. In my judgment these passages cannot be read in that way; but in any event it is clear that the ICJ itself took the view that no rule could be derived from these earlier sections of the judgment. Its consideration of the humanitarian rule begins at paragraph 74. At paragraph 95 it is made clear that the court cannot determine “the validity of the view that the recourse to nuclear weapons would be illegal in any circumstances…” Then this follows:
“96. Furthermore, the Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defence… when its survival is at stake.
Nor can it ignore the practice referred to as ‘policy of deterrence’, to which an appreciable section of the international community adhered for many years…
97. Accordingly, in view of the present state of international law viewed as a whole… the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake.”
Earlier the court had said at paragraph 67:
“The Court does not intend to pronounce here upon the practice known as the ‘policy of deterrence’. It notes that it is a fact that a number of States adhered to that practice during the greater part of the Cold War and continue to adhere to it. Furthermore, the members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past 50 years constitutes the expression of an opinio juris. Under these circumstances the Court does not consider itself able to find that there is such an opinio juris.”
The High Court of Justiciary, in the Lord Advocate’s Reference case, referring to paragraph 67 of the Advisory Opinion, stated at 324B: “We find that passage unequivocal”.
The Principal Issue (3) – the Respondent’s Function
The Subsidiary Issue – Article 37
The Scope of Chapter III of Title 2 of the EURATOM Treaty
“ANXIOUS to create the conditions of safety necessary to eliminate hazards to the life and health of the public”.
In my judgment this goes little distance on its own; but it foreshadows Mr Fordham’s more substantial argument, which is that central provisions contained within Chapter III could not work sensibly and effectively unless radioactive emissions from military installations are included within their scope. The critical measure for the purpose of this argument is Article 35:
“Each Member State shall establish the facilities necessary to carry out continuous monitoring of the level of radioactivity in the air, water and soil and to ensure compliance with the basic standards.
The Commission shall have the right of access to such facilities; it may verify their operation and efficiency.”
Mr Fordham says that no viable distinction can be drawn between levels of radioactivity generated by civilian and military uses, and as a matter of common sense, as well as language, the Article plainly applies to both.
“Les dispositions de l’article 34 s’appliquent a toutes les experiences particulierement dangereuses, civiles ou militaries.”
Mr Fordham says also that in 1960 the French government notified military nuclear tests in the Sahara under Article 34. As for the Commission, there are statements of 12th September 1988 (the Directorate General for Environment, Consumer Protection and Nuclear Safety), 20th October 1995 (the Director General of Legal Service), 24th October 1995 (the President of the Parliament), 15th July 2000 (the Head of Radiation Protection Unit), and most recently 3rd September 2001 (in answer to a written question in the European Parliament) to the effect that it is the Commission’s view that Chapter III applies to activities in the military as well as the civilian sphere.
“For its part, the French Government submitted at the hearing that the provisions of Chapter 3 of the [EURATOM] Treaty do not apply to nuclear activities in the military sphere.”
Mr Pleming also submits that passages in the Draft Convention of the International Atomic Energy Agency case  3 ECR 2151, cited by the learned judge below at paragraph 12 of his judgment (which with respect I will not set out), assist the Secretary of State.
58. While I acknowledge that the operation of Chapter III, in particular Article 35, is partial rather than overall if military uses are excluded, it seems to me very difficult indeed to suppose that if the legislator had intended to apply Chapter III to military uses, that would not have been plain by express words. Such an application would have clear implications for the Member State’s sovereign power in defence matters, not least by force of the Commission’s functions allotted in Articles 34, 35, 36, 37 and 38. Mr Pleming referred (as did the judge: paragraph 36) to the principle of Treaty interpretation summarised in the Latin phrase in dubio mitius: where a Treaty provision is ambiguous, the interpretation which is less onerous to the State owing the Treaty obligation is to be preferred. In my judgment that applies here. Chapter III has no application to military uses.
I would dismiss the appeal.
Mr Justice Morland:
Lord Justice Thorpe:
61. I have had the advantage of reading in draft the judgment of my lord, Laws LJ. I also agree that the appeal be dismissed and for the reasons he gives. However, I am less certain than he in the conclusion that Chapter III has no application to military uses.