Trident nuclear missiles and environment law

On 29th March 2001 the Hon. Mr Justice Turner dismissed, in very forthright terms, an application by anti-nuclear protestors relating to the legality of the production and maintenance of the UK's Trident nuclear missiles. This was the first judgment of its kind.

The action was by way of judicial review. It was brought by two anti-nuclear protestors. The first was an individual, Ms Emanuela Marchiori, an Italian national living in Reading. She was legally aided. The second protestor was a newly incorporated company called NAG Limited (formerly the Nuclear Awareness Group).

The action was brought against the Environment Agency following its issue in March 2000 of authorisations under the Radioactive Substances Act 1993 for the disposal of radioactive wastes from the Atomic Weapons Establishments at Aldermaston and Burghfield. These sites undertake the design, manufacture and servicing of Trident nuclear warheads, research into nuclear warheads and the decommissioning of redundant nuclear warheads, plant and equipment.

At the commencement of the proceedings the court ordered that the papers be served upon AWE plc which is the operator of the Atomic Weapons Establishment. AWE plc joined the proceedings as an interested party. CMS Cameron McKenna acted for AWE plc.

Another interested party to the proceedings was the Ministry of Defence. Clearly the Government was keenly interested in the proceedings because one of the fundamental objectives of the anti-nuclear protestors was to obtain a judicial declaration that the manufacturer and maintenance of nuclear missiles was unlawful. In its Strategic Defence Review in 1998 the Government endorsed the maintenance of the UK's nuclear deterrent. A judgment that that deterrent was unlawful would obviously have caused immense political repercussions.

It is important to note that this legal challenge did not relate to safety issues at the Atomic Weapons Establishment nor did it relate to any scientific dispute about the radioactive emission limits. Indeed the unchallenged evidence in the proceedings was that emission limits in the new authorisations issued in March 2000 were generally lower (by a significant margin) than the previous authorisations. It is also to be noted that the protestors made no challenge in relation to the issue of the authorisations to the extent that the authorisations applied to the decommissioning of redundant nuclear warheads, plant and equipment and the remediation of radioactively contaminated land.

The day to day operations of the Atomic Weapons Establishment are conducted by the private sector through the process of contractorisation. Prior to this contractorisation there was Crown Immunity and the Atomic Weapons Establishment was not then subject to independent regulation. A distinct threat arising from this challenge was that if successful the Government might be forced to put the Atomic Weapons Establishment back into public control and reinstate Crown Immunity. The consequential loss of the benefits of civil regulation was a matter which few people wanted to happen.

A principal issue in this case was what is known as the "justification" test. This was a recommendation of the International Commission on Radiological Protection. Essentially what it means is that practices giving rise to radiation exposure (such as the discharge of radioactive waste into the environment) should be justified; that is to say that the benefits outweigh the detriment. Justification is certainly a requirement in relation to the civil use of atomic energy. Whether it applied to military uses of atomic energy was in dispute. The judge had to resolve this dispute by looking at many aspects of the Euratom Treaty and the Directives made under it. Indeed the judge was invited to refer the matter to the European Court of Justice if he had any doubt as to the applicability of Euratom to military sites. The judge did not entertain any such doubt. Following a lengthy, but forthright analysis of the applicability of Euratom to military sites he stated that "... it is not in any sensible manner properly to be accepted that Euratom applies to the military use of nuclear power". His conclusion therefore was that the justification test had no application in law to military activities and none, therefore, to the Atomic Weapons Establishment.

As a matter of transparency and policy the Environment Agency had in fact applied a test of justification before issuing its authorisations. The protestors strongly criticised how the Environment Agency had gone about its application of the justification test. The Environment Agency was criticised in particular on two grounds. The first was that in describing the benefits associated with the operation of the AWE sites, the Environment Agency listed as a benefit the "delivery of a UK defence requirement for an independent nuclear deterrent". The Agency said that this was justified in the light of the Government's defence policy. In effect the Environment Agency had taken the Government's defence policy as a "given". The second criticism was that the Agency had looked at the design, construction, maintenance and dismantling of nuclear warheads as a whole. The protestors argued that the Agency should have looked behind that but moreover should have looked at each of the individual "activities" at the sites and justified each and every one of those activities. The judge concluded that the Agency had properly conducted itself in its application of the justification test. With regard to the criticism concerning the Agency's acceptance of the Government's policy on the maintenance of a nuclear deterrent, he stated that it was "...no part of the Agency's function to embark on a consideration which would have thrown into question matters which were out with their own functions and powers and which, for the same reasons are not "justiciable". With regard to looking at each of the different activities at the AWE sites, the overwhelming evidence was that the activities were all interlinked and could not be separated as the protestors had suggested. So, for instance, very often the same management teams, buildings and plant would be used both for dismantling nuclear warheads and for the maintenance and production of new warheads. So again the judge dismissed this aspect of the case.

Another principal claim by the protestors was that the maintenance and production of Trident was incompatible with international law and that that incompatibility was a matter which the Environment Agency ought to have, but had not, taken into consideration when determining whether to grant the authorisations. The protestors submissions in this regard were founded on an Advisory Opinion of the International Court of Justice delivered in 1996 and entitled "Legality of the Threat or Use of Nuclear Weapons". The Environment Agency had taken the view that in deciding upon the applications for the authorisations it was not for the Agency to take a view on the legality of nuclear weapons. The judge considered the Advisory Opinion (which is much discussed in academic circles). He rejected the protestors' argument in forceful terms. He stated "The argument in support of their case was based on selective passages of the Judgment of the International Court which when set in the context in which they were pronounced did not begin to justify the attempt which was made to have the Trident programme declared to be illegal according to international law. The Environment Agency would plainly have been wrong on my judgment, to have expressed any opinion on the question, let alone to have concluded that, the advisory opinion reached a concluded view, the use and deployment of trident was contrary to international law".

The protestors also raised a number of procedural points. The first of these arose under section 16 (4A)(b) of the Radioactive Substances Act 1993 which in this instance required re-consultation with MAFF (in the future the Food Standards Agency) following amendments to the draft authorisations made after the original consultation. The Environment Agency accepted that it had not complied with this legal requirement but argued that in the circumstances no relief should be granted to the protestors. The evidence was that whilst the statutory requirement had not been complied with, nonetheless there had been close administrative contact between the Environment Agency, DETR and MAFF throughout the consultation period and that the re-consultation related simply to minor and inconsequential matters. Whilst the judge concluded that the Environment Agency had erred at law in this regard he also concluded that the public interest had effectively been protected and that "If the authorisations had not been granted as they were, it is manifest that the public interest would have been less well served, in that the sites would have reverted to the control of the MoD and the open nature of the controls which had been considered in the course of this judgment would have ceased to exist. With confidence, it can be said that the applicants would not have been content with such a result. It must follow that it would be wholly inappropriate to grant relief in respect of the failure of the Environment Agency to comply fully with the provisions of section 16(4A)(b) of the Act 1993". Another procedural point related to the relevant Minister's right to call-in any application for an authorisation. Such a power exists under section 24(1)(b) of the Radioactive Substances Act 1993. The protestors claimed that if (which was the case in this instance) a request had been made to the relevant Minister to exercise his call-in powers, then it was a condition precedent to the grant of an authorisation that the Environment Agency first obtain an express decision from the Minister not to call-in the proposed authorisations. The judge rejected the protestors' case stating that section 24 of the 1993 Act did not require an express negative use by the Minister of his power before the grant of an authorisation.

The final procedural point related to Article 37 of the Euratom Treaty which provided that each Member State shall provide the Commission with data relating to any plan for the disposal of radioactive waste as would make it possible to determine whether the implementation of such plan would be liable to result in the radioactive contamination of the water, soil or air space of another Member State. The judge described this aspect of the protestors' case as a "truly hopeless point". He said that there were two responses to this which were cumulative and found in the text of the article itself. The Judge said "the first is that it expressly provides that it is for the State rather than the regulatory body to provide the requisite data". Secondly there was not even the slightest suggestion in the evidence or by way of submissions that the authorisations were liable to result in radioactive contamination of the water, soil or air space of another Member State."

The maintenance and production of nuclear weapons is clearly a politically charged issue. The judgment of the Hon. Mr Justice Turner addresses many points which were previously untested in any European courts of law. The judgment is likely to generate political and academic debate and study for years to come. That debate is likely to centre not only on the discrete legal issues raised in this case but also on the merits of using legal proceedings to determine what in essence is a political issue.

The protestors applied for permission to appeal to the Court of Appeal. The Hon. Mr Justice Turner rejected that application. At the time of writing this article Ms Marchiori had secured legal aid to lodge the necessary papers with the Court of Appeal for permission to appeal.

For further information please contact Paul Sheridan, at [email protected] or on +44 (0)20 7367 2186.