Case No: CO/1274/2000
Neutral Citation Number: [2001] EWHC Admin 267 
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 29th March 2001

B e f o r e :

THE HONOURABLE MR JUSTICE TURNER

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	THE QUEEN		
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	THE ENVIRONMENT AGENCY
ex parte
(1) EMANUELA MARCHIORI
(2) N A G Ltd
MINISTRTY of DEFENCE

AWE plc	Respondent

1st Applicant
2nd Applicant
1st Interested Party
2nd Interested Party	
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(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)
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Dinah ROSE & Nicholas KHAN (instructed by The Environment Agency)
Michael FORDHAM (instructed by Public Interest Lawyers for the Applicants)
Nigel PLEMING QC & Eleanor GREY (instructed by Treasury Solicitor for the 1st Interested Party)
David WOLFE (instructed by Cameron MCKENNA for the 2nd Interested Party)  

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Judgment
As Approved by the Court
Crown Copyright ©

Mr Justice Turner: 

1.	This application is brought by interested parties to quash statutory authorisations granted by the respondents on 1 April 2000 which permit the discharge of radioactive waste by contractors to the Ministry of Defence (MoD) from two nuclear sites situated at Aldermaston and Burghfield.  In addition to the respondents, the MoD and the contractors AWE plc appeared as interested parties.
2.	 It is common ground between all the parties that the only activities carried on at either site were and are military, or defence, related.  The underlying question is how far does the fact that the activities were of such a kind affect the regime of licensing and permissions to which the sites should be subject.  Questions arise under domestic legislation, the Environment Act 1995 and the Radioactive Substances Act 1993 as well as the question whether the Treaty Establishing the European Atomic Energy Community (Euratom) 1957 has any application to the activities on the two sites.  There was no issue of a technical character raised during the proceedings although a basic understanding of the nature of the processes carried out at the sites is necessary.
History
3.	The site at Aldermaston has been a principal centre of the atomic energy industry in the United Kingdom since 1950.  Since that date and until 1973 it remained under the control of the United Kingdom Atomic Energy Authority.  In 1973 the management and control of the site was transferred to the MoD and it became the Atomic Weapons Establishment (AWE).  The site at Burghfield was originally a Royal Ordnance factory but it became part of the AWE in 1987.  For some years the design, manufacture and decommissioning of atomic weapons has been concentrated on the two sites.  The only current activity in relation to the production of atomic weapons is in relation to the Trident Missile.  Other activities on the two sites include decommissioning of redundant weapons, servicing and design of Trident.  The defence policy of the United Kingdom Government is now contained within the Strategic Defence Review (SDR) (Commd 3999) which was announced in 1998.  The document is the sole source of information about Government policy in this field.
4.	The SDR provides information which is important as an aid to understanding some, at least, of the issues which arise in this case.  The following passages (paragraph numbers) are relevant:
Introduction
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. … 
Chapter 4
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 part of our security.
61.  The Strategic Defence Review has conducted a rigorous re-examination of our deterrence requirements.  This does not depend on the size of the nation’s arsenals but on the minimum necessary to deter any threat to our vital interests.  We have concluded that we can safely make further significant reductions from Cold War levels, both in the number of weapons and in our day to day operating posture.  Transparency about nuclear weapons holdings also plays a part in arms control and, although we cannot give precise details of all aspects of our deterrent, we intend to be significantly more open in some areas.
62.  … Trident is our only nuclear weapon. …

ARMS CONTROL
70.  … Our own arsenal, following the further reductions 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.

5.	From 1 April 1993 until 1 April 2000 the sites had been managed under a fixed term contract let by the MoD to Hunting-Brae Limited, a consortium of civilian companies.  It was because of perceived dissatisfaction with the management of this consortium that a competition was held in 1999 to appoint a successor contractor.  Although the former contractor put in a bid for the new contract, it was awarded to a new consortium namely AWE  Management Ltd, a company jointly owned by MoD – which holds a golden share and The Secretary of State for Defence.  It was because of the routine periodic review of the authorisations and the fact that the existing waste disposal authorisations were in the name of the former contractors that fresh authorisations were required.
The authorisations in the Decision Document 
6.	This is dated March 2000.  In the introduction, reference is made to the fact of the applications received by the EA from AWE for authorisations to dispose of waste from the two sites under the Act of 1993.  It describes the processes of consultation into which the EA had entered with the public, leading to the publication of a Consultation Document which formed the core of its consultation process.  In conclusion, the Introduction summarises the responses which it had received and the regulatory principles which it applied in reaching its decisions on the various issues raised.  What the decision document did not do, this was one of the many grounds of complaint advanced in these proceedings, was to question the policy which determined that radioactive wastes should have been created in the first place.  Detailed consideration requires to be given to specific matters which are covered in the decision document itself.  These follow.  The references are to the individual paragraph numbers in the document.
1.2.1 The Atomic Weapons Establishments at Aldermaston and Burghfield … 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.
1.5.1 Prior to contractorisation (sic) the … sites held Crown Immunity and were not subject to independent regulation.  However the Secretary of State for Defence lifted Crown Immunity from AWE in April 1993 and activities undertaken…. became subject to civil regulation by … (… the (Environment) Agency) and also … (MAFF) [now the Food Standards Agency].
1.5.3  … The Agency is now the sole regulator of disposals of radioactive wastes on or from all nuclear sites in England and Wales under statutory powers granted by the Radioactive Substances Act 1993 … and also has responsibility for implementation of Government policy objectives with regard to radioactive wastes.
2.1.1  This ... sets out the main policy and principles laid down by UK Government which the Agency has applied when considering the applications by AWE plc.  In particular it deals with the concept of risk, risks from radiation exposure, the Agency’s principal aim of contributing to sustainable development, UK Government radioactive waste management policy, justification and the ICRP system of radiological protection, optimisation to ensure discharges are minimised, and the degree of protection afforded to members of the public and the environment by constraints and limits on radiation exposure.
2.2.3  … The Agency has the responsibility for ensuring that any risks to members of the public arising from radioactive releases from the site are acceptably low. …
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 9Sv … and so the risk of developing a fatal cancer would be one in two million.
2.5 Radioactive waste management policy
2.5.2 For practices involving the use of radioactive substances, the system of protection recommended by ICRP in publication 60 is based on the following principles:

	(a) no practice involving exposures to radiation should be adopted 	unless it produces sufficient benefit to the exposed individuals or to 	society to offset the radioactive 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 … .  	This procedure should be constrained by restrictions on the doses to 	individuals (dose 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 	relevant practices should be subject to dose limits… .  Not all 	sources are susceptible to control by action at source and it is 	necessary to specify the sources to be included as relevant before 	selecting a dose limit (individual dose and risk limits).
2.5.3 These principles also form the basis of the Basic Safety Standard (BSS) Directive 80/386/EURATOM … under … EURATOM [see below].
3.11.1 Airborne discharge limits are targeted at groups of plants at AWE that pose the greatest threat to the air environment.  The limits are set collectively for several named groups of nuclear plants at AWE in which similar waste-producing practises are carried out.  For example, plant decommissioning work is grouped together and separated from warhead production operations. …
3.11.4 Over 80% of airborne tritium and 55% of airborne plutonium discharges will arise from future decommissioning tasks, although all krypton-85 airborne discharges will arise from Trident production operations for reasons discussed below.
3.11.6 The actual level of discharge from these plants will increase while a ten year decommissioning programme is carried out.  The majority of gaseous discharges will arise from the decommissioning operations in the future. … The agency is satisfied that these increases above the current level of actual discharge are necessary and are the minimum required to accommodate plant decommissioning.
3.11.16 The Agency has decided to authorise discharges of gaseous radioactive wastes to atmosphere from AWE Aldermaston and Burghfield but require an overall reduction of 50% in the current site discharge limits.
4.2.3 In future the actual level of discharge to watercourses from AWE will temporarily increase while site decommissioning is carried out … The majority of the liquid discharges will arise from the decommissioning operations, although some discharge of tritrated water will also take place from the new Trident facility … These discharges to watercourses would be eliminated within 5 years when the evaporation technology is introduced for the management of liquid effluents.
4.2.6 The Agency has decided to reduce the existing maximum annual limits on authorised discharges of plutonium and uranium radioactivity into the River Thames by 60%.  The Agency has also decided to reduce their existing maximum annual limits on authorised discharges or uranium activity into the Silchester sewage treatment works by 60%.  
4.5.6 The Agency is satisfied that the ICRP internationally accepted dose/risk relationships are a sound basis for radiological protection and that the radiation doses predicted from the discharge of radioactivity from AWE at the maximum limits set by the Agency could not result in significant radiation exposure of any member of the public.
4.5.8 On balance the Agency 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.
4.10 Justification of radioactive discharges from AWE
4.10.1 The system of radiation protection recommended by the … (ICRP) recommends that practices giving rise to radiation exposure (such as discharge of radioactive waste into the environment) should be justified; that is to say that the benefits of the practice should outweigh its detriments.
4.10.2 The ICRP principle of justification also forms part of the  … (BSS) Directive [see above] … .  The UK Government considers that the Euratom Treaty does not apply to military activities.  The Government affirmed its commitment to an independent nuclear deterrent in the (SDR) noting that “for as long as Britain has nuclear forces we will ensure that we have a robust capability at the (AWE) to underwrite the safety and reliability of our nuclear warheads”.  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 Agency took the view that in consulting on AWE’s applications for authorisation, it was appropriate under the ICRP system of protection to identify the benefits and detriments of practices at AWE, which were then set out in the Consultation Document.

7.	At paragraphs 4.10.4 and .5 the document then set out what the Agency perceived the benefits and detriments to be.  It is the fact that a number of consultees had expressed the view that the Government’s attitude to the applicability of Euratom and any derived legislation was incompatible with the true legal position.  It continues:

4.10.7 With regard to the regulation of radioactive wastes the Agency’s function is to secure the best possible protection of the environment whilst working within the statutory framework of UK law.  The Agency has carefully considered each of the consultee’s view upon the Agency’s approach to justification and has concluded that the practice of designing, constructing and dismantling nuclear warheads at AWE is justified in the light of the Government’s defence policy.
4.10.8 The Agency’s decisions set out within this document are intended to provide a pragmatic and workable approach to improving the environmental management of radioactive wastes at AWE.  Much of this waste has been created during the past 50 years of operations at Aldermaston.  In the next 10 years the majority of discharges of radioactivity will not arise from warhead production but from  decommissioning of both nuclear plants and nuclear weapons; … .  This legacy of radioactive waste would remain, irrespective of the status of Trident production operations.  The Agency considers that it …. should ensure that the radioactive wastes from both the production and the decommissioning are minimised and that improvements to regulatory control are delivered as quickly as possible.

4.11 Deployment of Trident missiles

4.11.1 The Agency received a number of submissions upon the wider issue of the deployment and strategic use of the UK Government’s Trident nuclear system: [The detail of these will be reviewed later and need not be here set out, it concluded]
4.11.2 The Agency considers that these responses are beyond the scope of determining AWE’s applications for disposal of radioactive wastes under RSA93 and has instead passed on the responses to both the Secretary of State for the Environment and also the Minister for (MAFF).
The Statutory regime
Domestic
8.	The Radioactive Substances Act 1993.  By section 13 (1) of this Act, it is provided that
Subject to section 15, 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 …. 
	By section 16 it is provided that
In this section … “authorisation” means an authorisation granted under section 13  … the power to grant authorisations shall be exercisable by [the appropriate Agency].…

…
(4A) Without prejudice to subsection (5), on any application for an authorisation under section 13(1) in respect of the disposal of radioactive waste on or from any premises situated on a nuclear site … the appropriate agency-

	(a) shall consult the relevant Minister and the Health and Safety 	Executive before    deciding whether to grant an authorisation on 	that application and, if so, subject to what limitations or conditions, 	and
	(b) shall consult the relevant Minister concerning the terms of the 	authorisation,  for which purpose that Agency shall, before granting 	any authorisation on that application, send the Minister a copy of 	any authorisation which it proposes so to grant.

	By section 23 it is provided that 
(1)  The Secretary of State may, if he thinks fit in relation to-
	
	(a) … 
	(b)an application for authorisation under section 13 …
	(c) …
give directions to the [appropriate Agency] requiring it to take any of the steps which are mentioned in the following subsections in accordance with the directions
(2)  A direction under subsection (1) may require the appropriate Agency so to exercise its powers under this Act as-
	
	(a) to refuse an application for … authorisation, 
	(b) to … grant … (an) authorisation, attaching such limitations or 	conditions (if any) as may be specified in the direction, or
	(c)  to vary … (an) authorisation, as may be specified, or 
	(d)  to cancel or revoke  (or not to cancel or revoke) … (an) 	authorisation.

	By section 24(1) it is provided that
The Secretary of State may- 

	(a)  … 
	(b) give directions to the [appropriate Agency] in respect of any 	particular application requiring [it] to refer the application to the 	Secretary of State  for his determination.

	Finally, and importantly, section 42 provides that
(1)  Subject to the following provisions of this section, the provisions of this Act shall bind the Crown.
(2)Subsection (1) does not apply in relation to premises-
	(a) occupied on behalf of the Crown for naval, military or air force 	purposes or for the purposes of the department of the Secretary of 	State having responsibility for defence..
9.	The Environment Act 1995: it was under section 1 of this Act that the respondent authority was established.  A number of disparate functions were transferred to the EA on the transfer date. Included among those functions was that of the Chief Inspector of Pollution for England and Wales whose appointment had derived from the section 4(2)(a) of the Act of 1993; see section 2(1)(e) and section 120(1), (3) and schedule 22 of the 1995 Act.  By section 4(12) of the Act of 1995 it was provided that
It shall be the principal aim of the Agency (subject to and in accordance with the provisions of this Act …) in discharging its functions so to protect or enhance the environment, taken as a whole, as to make the contribution towards attaining the objective of achieving sustainable development mentioned in subsection (3) below.
10.	Subsection (2) makes provision for Ministers to give guidance with respect to appropriate objectives and by subsection (3) the contribution which the Agency was expected to make towards the goal of achieving sustainable development.  Section 5(1) provides for the EA’s pollution control powers to be exercisable for the purpose of preventing, minimising, remedying or mitigating the effects of pollution.  Section 6 imposes a specific duty on the EA in respect of water.  Section 40 of the Act gives the relevant Minister power to give directions “with respect to the carrying out of its functions”.
International
11.	Euratom:  The Recitals.  Having identified the signatory States, which included The Republic of France, but not the United Kingdom, these proceed
[1] 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,
[2] CONVINCED that only a joint effort undertaken without delay can offer the prospect of achievements commensurate with the creative capacities of their countries,
[3] RESOLVED to create 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,
[4] ANXIOUS to create the conditions of safety necessary to eliminate the hazards to the life and health of the public,
[5] DESIRING to associate with other countries with their work and to co-operate with international organisations concerned with the peaceful development of atomic energy. 
HAVE DECIDED …

TITLE 1

TASKS OF THE COMMUNITY

Article 1
….
It shall be the task of the Community 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

In order to perform its task, the Community shall as provided in this Treaty:
promote research [chap.1] and ensure the dissemination of technical information [chap.2];
establish uniform safety standards to protect the health of workers and of the general public and ensure they are applied [chap.3];
facilitate investment [chap.4] and ensure, particularly by encouraging ventures [chap.5] on the part of undertakings, the establishment of the basic installations necessary for the development of  nuclear energy in the Community;
ensure all users in the Community receive a regular and equitable supply of ores and nuclear fuels [chap.6];
make certain, by appropriate supervision, that nuclear materials are not diverted to purposes other than those for which they are intended [chap.7];
exercise the right of ownership conferred upon it with respect to special fissile materials chap.8];
ensure wide commercial outlets and access to the best technical facilities by the creation of a common market [chap.9] in specialised materials and equipment, by the free movement of capital  for investment in the field of nuclear energy and by freedom of employment for specialists within the Community;
establish with other countries and international organisations such relations as will foster progress in the peaceful uses of nuclear energy [chap.10].  

(Chapter numbers added.)

TITLE 2

	PROVISIONS FOR THE ENCOURGEMENT OF PROGRESS IN THE FIELD OF NUCLEAR ENERGY

CHAPTER I -  PROMOTION OF RESEARCH

Article 4

The Commission shall be responsible for promoting and facilitating nuclear research in the Member States and for complementing it by carrying out a Community research and training programme.
The activity of the Commission in this respect shall be carried out within the fields listed in Annex I to this Treaty.

CHAPTER II – DISSEMINATION OF INFORMATION

	Section III – Security provisions

Article 24

	Information which the Community acquires as a result of carrying out its research programme, and the disclosure of which is liable to harm the defence interests of one or more Member States, shall be subject to a security system in accordance with the following provisions:
1. The Council shall, acting on a proposal from the Commission, adopt security regulations which, account being taken of the provisions of this Article, lay down the various security gradings to be applied and the security measures appropriate to each grading.
2. Where the Commission considers that the disclosure of certain information is liable to harm the defence interests of one or more Member States, it shall provisionally apply to that information the security grading required in that case by the security regulations.
  It shall communicate such information forthwith to the Member States, which shall provisionally ensure its security in the same manner.
  Member States shall inform the Commission within three months whether they wish to maintain the grading provisionally applied, substitute another or declassify the information.
Upon the expiry of this period, the highest grading of those requested shall be applied.  The Commission shall notify the Member States accordingly.
 At the request of the Commission or of a Member State, the Council may, acting unanimously, at any time apply another grading or declassify the information.  The Council shall obtain the opinion of the Commission before taking any action on a request from a Member State.

	CHAPTER III – HEALTH AND SAFETY 

Article 30

Basic standards shall be laid down in 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:

maximum permissible doses compatible with adequate safety;
maximum permissible levels of exposure and contamination;
the fundamental principles governing the health of surveillance workers.

Article 31

The basic standards shall be worked out by the Commission after it has obtained the opinion of a group of persons appointed by the Scientific and Technical Committee from among scientific experts, and in particular public health experts, in the Member States.  The Commission shall obtain the opinion of the Economic and Social Committee on these basic standards.
After consulting the Assembly the Council shall, on a proposal from the Commission, which shall forward to it the opinions obtained from these Committees, establish the basic standards; the Council shall act by a qualified majority.

Article 32

At the request of the Commission or of a Member State, the basic standards may be revised or supplemented in accordance with the procedure laid down in Article 31.
The Commission shall examine any request made by a Member State.

Article 33

Each Member State shall lay down the appropriate provisions, whether by legislation, regulation or administrative action, to ensure compliance with the basic standards which have been established and shall take the necessary measures with regard to teaching, education and vocational training.
The Commission shall make appropriate recommendations for harmonising the provisions applicable in this field in the Member States.
To this end, the Member States shall communicate to the Commission the provisions applicable at the date of entry into force of this Treaty and any subsequent draft provisions of the same kind.
Any recommendations the Commission may wish to issue with regard to such draft provisions shall be made within three months of the date on which such draft provisions are communicated.

Article 34

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.

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.

Article 36

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.

Article 37

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.

Article 38

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, by way of derogation from Articles 141 and 142, bring the matter before the Court of Justice.

Chapter IV – INVESTMENT

Article 40

In order to stimulate action by persons and undertakings and to facilitate co-ordinated development of their investment in the nuclear field, the Commission shall publish illustrative programmes … required for their attainment.
The Committee shall obtain the opinion of the Economic and Social Committee on such programmes before their publication.

Article 41

[Notice to Commission of new investment projects]

Article 43

[Commission to discuss investment projects with undertakings]

Chapter V – JOINT UNDERTAKINGS

Article 45

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, in accordance with the following Articles.

Article 84

In the application of the safeguards, no discrimination shall be made on grounds of the use for which ores, source materials and special fissile materials are intended.
The scope of and procedure for the safeguards and the powers and the bodies responsible for their application shall be confined to the attainment of the objectives set out in this Chapter.
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.  [emphasis supplied]

CHAPTER VIII - PROPERTY OWNERSHIP

Article 86

Special fissile materials shall be the property of the Community.
The Community’s right of ownership shall extend to all fissile materials which are produced or imported by a Member State, a person or an undertaking and are subject to the safeguards provided for in Chapter VIII.

ANNEX I

FIELDS OF RESEARCH CONCERNING NUCLEAR ENERGY REFFERED TO IN ARTICLE 4 OF THIS TREATY

I – Raw materials

II – Physics applied to nuclear energy

III – Physical chemistry of reactors

IV – Processing of radioactive material

V – Applications of radioisotopes

Application of radioisotopes as active elements or tracers in:
  
	(a) industry and science;
	(b) medicine and biology;
	(c) agriculture.

VI – Study of the harmful effects of radiation on living organisms

VII – Equipment

VIII – Economic aspects of energy production

ANNEX II

INDUSTRIAL ACTIVITIES REFERRED TO IN ARTICLE 41 OF THIS TREATY

Nuclear reactors of all types and for all purposes.

12.	  THE EC TREATY OF ACCESSION

Article 296 (ex Article 223)  1.  The provisions of this Treaty shall not preclude the application of the following rules:

	(a) no Member State shall be obliged to supply information the 	disclosure of which it considers contrary to the essential interests of 	its security;    
	(b) any Member State may take such measures as it considers 	necessary for the protection of the essential interests of its security 	which are connected with the trade in arms, munitions and war 	material; such measures shall not adversely affect the conditions of 	competition in the common market regarding products which are 	not intended for specifically military purposes.
	
13.	                              COUNCIL DIRECTIVE of 15 July 1980
(80/836/Euratom)

THE COUNCIL OF THE EUROPEAN COMMUNITIES

Whereas the protection of the health of workers and the general public requires that any activity involving danger arising from ionizing radiation must be made subject to regulation; ……..

Article 2

This Directive shall apply to the production, processing, handling, storage, transport and disposal of natural and artificial radioactive substances and to any other activity which involves a hazard arising from ionizing radiation.

Article 3

Each Member State shall make the reporting of the activities referred to in Article 2 compulsory. ….. these activities shall be subject to prior authorisation in cases decided upon by each Member State.

Article 6
(As amended by Council Directive 84/467/Euratom of 3 September 1984)
 
The limitation of individual and collective doses resulting from controllable exposures shall be based on the following general principles:

	(a) the various types of activity resulting in an exposure to ionising 	radiation shall have been justified in advance by the advantages 	which they produce (1);
	(b)  all exposures shall be kept as low as reasonably achievable;
	(c)  … 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.

Article 13
Exposure of the population as a whole
1.  Each Member State shall ensure that the contribution to the exposure of the population as a whole from each activity is kept to the minimum amount necessitated by that activity, taking account of the principles set out in Article 6 (a) and (b).
2.  The total of all such contributions shall be kept under review …
3.  Member States shall transmit the results of these reviews to the Commission.

The Challenges

14.	In the grounds for the present application two questions are identified.  By the time that skeleton submissions were formulated these had been expanded into four principal issues.  It is convenient to set these out at this stage:

1A  The justification test.  It will be recalled that the origins of this test are to be found in ICRP as reproduced in the Decision document at paragraph 4.10 (above). The question is whether the test applies to military activities and, hence, to the activities at the AWE sites.

1B  If the test does apply to such activities, the question is, then, whether the EA properly applied it before arriving at their decision to grant the authorisations.

2   The question, as formulated was whether Trident’s compatibility with international law was relevant (to the decision which the EA had to take).  The applicants contended that Trident contravened international law, and therefore, the EA had to give consideration to that proposition when determining whether to grant any authorisation at all.

3A  It was accepted on behalf of the EA that it had not re-consulted MAFF, or the Food Standards Agency, as the relevant department of it had become by 1 April, as required by section 16(4A)(b) of the Act of 1995.  The question in those circumstances is whether its decision to grant the authorisations was lawful and, if not what was the effect of this failure.

3B  The applicants contended that on the proper construction of section 24(1)(b) of the Act of 1995 it was a condition precedent to the grant of authorisations that the EA had obtained an express decision not to call in the proposed authorisations for a public enquiry, from the relevant Department or Ministry.  

3C  The EA did not consult the Commission under the terms of Article 37 (above).  The question was as to the effect of this failure.

4  On the assumption that the EA had acted unlawfully in one or more of the respects identified, the question of the appropriate form of relief would have to be considered.

The responses (outline)

15.	The defendants

1.  If, which is uncertain, Euratom applied so that the EA was required to consider justification (as understood by ICRP), the question was academic because the EA did in fact, as it had said it would, apply the justification test and did so properly.
2.  It was for the EA alone to determine whether it should regard the construction, maintenance and decommissioning of warheads as a single practice and whether or not such was justified.
3.  In weighing the benefits and detriments of the practice followed at AWE, it was appropriate to attach considerable weight to the fact that it was stated Government policy (Cmd 3999) to maintain an independent nuclear deterrent.  
4.  The decision (¶ 4.11.2, above) that the international ramifications of the legality of the use or threat of use of Trident was indeed outside the scope of its functions.
5.  The EA was under no obligation to consult the Commission under Article 37 of Euratom before granting the authorisations since, if the Treaty applied, that was an obligation of central government.
6.  By sending a copy of its draft authorisation to MAFF on 3 February 2000, the EA satisfied the requirement of s 16(4A)(b) of the Act of 1993.  In the alternative, the failure to comply was technical only and should give no ground for the grant of any remedy.
7.  The applicants’ construction of s24 (1)(b) of the same Act was wrong.
16.	  The Ministry of Defence
1.  The EA is a regulatory body charged with the duty of protecting and enhancing the environment as well as promoting the aims of sustainable development (s4 (12) of the Act of 1995).  It performs its statutory functions within a framework of guidance (policy) given to it by Ministers.  It would be surprising if a regulatory agency had any obligation to consider the legality of government policy in defence matters, let alone take decisions which might affect the implementation of government policy whether in the domestic field or in international law.
2.   In any event, the investigation of matters of defence policy could not properly be the object of adjudication in the courts. 
3.  De-segregation of the processes of designing, constructing, maintaining and decommissioning of warheads was, on the evidence, neither practicable nor sensible.
4.  Contrary to the EA’s position, there was no obligation to consider the issue of justification under Articles 6 and 13 of the Directive because the Treaty was only concerned with civilian, and not military, uses of atomic energy.  The recommendations of ICRP have no application to the United Kingdom’s production of nuclear warheads or the radioactive discharges which result therefrom.   If this matter is in doubt, then this question should be referred to the European Court of Justice for determination.
5.  If, contrary to these submissions, and justification is required, the EA was neither obliged nor empowered to evaluate the merits, or otherwise, of government policy on nuclear weapons either in the domestic or international context.
17.	  AWE plc
1.  Operational wastes as defined in the authorisations applies to wastes whatever the source, whether arising from Trident manufacture or decommissioning of warheads, but not decommissioning of buildings.  It is not practicable to make the distinctions which the applicants seek.
2.  The great majority of discharges arise from the decommissioning of buildings and facilities and the historic contamination of both sites.  Trident’s contribution to the production of radioactivity is small.
3.  Properly analysed, the Applicants’ challenge is to the production, or continued, production of nuclear weapons and not to the wastes which result from the other activities on the two sites.  
4.  It raises no concerns with regard to the now open consultation and regulation as occurred in the present process which led to the grant of the authorisations.
Discussion
18.	Central to the applicants’ submissions was the applicability and meaning of the ICRP recommendations to the operations which were the subject matter of the EA’s decisions.  This topic requires separate consideration of the questions in relation to the applicability of Euratom to military activities on the one hand and ascertaining the true meaning and import of the ICRP recommendations on the other.  It was submitted on behalf of the applicants that if it were to be held that the position in relation to the applicability of Euratom was not clear, consideration should be given to referring the case to the ECJ.  These two questions must be considered in turn.
19.	Euratom.  The words of Article 30 (contained in Chapter III – Health and Safety) are quite general and are clearly apt to protect the health both of workers and the general public.  So it is that Articles 6 and 13 of the Directive 80/836 require, as has been seen above, that
the various types of activity resulting in an exposure to ionising radiations shall have been justified in advance by the advantages which they produce.
20.	 If Euratom and the Directive do apply to military operations at the sites, it is plainly the position that justification is a mandatory exercise which the EA is obliged to perform.  The submission was that it is nowhere to be found in the Treaty that there is any exemption for military purposes.  Indeed, such would be incompatible with the intention behind the Treaty and the Directive which are, in this respect, concerned with issues of public safety in their broadest sense.  If military activities did not fall under the umbrella of the Treaty and the Directive a significant amount of harmful material generated by those activities would be uncontrolled.  It was submitted that in R v. Secretary of State for the Environment ex parte Greenpeace [1994] 4 AllER 429 Potts J had decided that section 13 and 16 of the Act of 1993 should be construed so as to be consistent with Articles 6 and 13 of the Directive and in that way it could be seen that the principle of justification was incorporated into United Kingdom domestic law.  Secondly it was submitted that there was jurisprudence from the ECJ which has treated justification as being of general, that is both civilian as well as military, application.  The case is Re Ionising Radiation Protection [1993] 2 CMLR 513 in which the Advocate General said that the aims and objects of the Directive were identifiable from the ICRP on which it had been based.
21.	It was also submitted that the terms in which the Treaty was cast did not of themselves exclude its application to defence matters.  Thus, the promotion of industrial uses of nuclear energy was a concept which was not necessarily inconsistent with its application to defence matters.  That there may have been an emphasis on peaceful development of nuclear energy did not, of necessity, exclude military purposes.  Equally, and in contrast to the EEC Treaty, there is no general military exclusion whereas there are specific military exclusions; see Article 24 in Chapter II, which is concerned with the dissemination of information and Article 84, in Chapter VII, which is concerned with safeguards.  If the MoD argument was to be accepted, there would have been no necessity for these express provisions for exclusion.  Reference was made to an article by Deimann and Betlem (1995) NLJ 1236 in which the authors commented
During the drafting and negotiation process of the Euratom Treaty, this provision emerged as a compromise between states who sought a total exclusion of military use and those who advocated inclusion; Article 84 purports to enable France – the only nuclear power of the framers of Euratom – to continue its ‘force de frappe’ despite certain control by the newly established community.

22.	A key purpose of the Treaty was safety; see the recital quoted above and Article 2(b).  The provisions contained in Chapter III are all safety related and form a “coherent whole”; see ¶11 of the judgment in Saarland v. Minister for Industry [1988] ECR 5013.  There is no military exception in this Chapter.  Recitals 3 and 4 of Euratom were equally applicable to military and civilian activities.  Consequently, protection of the public is an imperative which can be deduced from the Treaty itself.  The ICRP recommendations which are to be applied in compliance with the provisions of Chapter III are also in terms that are of wide applicability.  The applicants pointed out that it was part of the case made on behalf of the MoD that its safety standards were already high.  It had also been stated by the then Parliamentary Under Secretary for defence during the Committee Stage of the Atomic Weapons Establishment Bill that the Ministry of Defence policy is based upon the following three principles recommended by the (ICRP); first, all radiation exposure must by justified; secondly, radioactive discharges must be as low as reasonably practicable; and, thirdly, dose limits must be applied to all radiation workers.

23.	It was observed that in its evidence in the present case the MoD had not provided any reasons why it would be embarrassed either by complying with the recommendations of the ICRP or by providing any information to the Commission under Chapter III which would compromise national security.
24.	In a note prepared for the Directorate General for Environment, Consumer Protection and Nuclear Safety, the Legal Service of the Commission, dated 12 September 1988, it is stated that
Unlike Chapter VII which provides that “safeguards may not extend to materials intended to meet defence requirements …” (see Article 84(3)), Chapter III does apply to military activities.  The protection of health and safety in the field of radiological protection is an indivisible objective and extends to all “dangers arising from ionising radiation” (Article 30), irrespective of their source.

25.	In a statement made on 20 October 1995, the Director General of Legal Service said
There should be no distinction between civil or military purposes.

26.	On 24 October 1995, the President of the Parliament (Mr Santer) said, to the European Parliament in relation to nuclear testing by France
The Commission starts first of all on the principle that Article 34, like the rest of Chapter III of Euratom, applies to civil as well as military experiments.

27.	Finally, on 15 July 2000, the Head of Radiation Protection Unit of the Commission stated that
It is our view and that of the Legal Services … that Chapter III of the Treaty applies to military activities.  The radiation protection of workers should as a result be enshrined in national law so as to protect workers in the defence sector as much as civilian establishments and all other aspects of Chapter III should apply to radiation whatever their source.  This is a view that the Commission is defending vigorously.
These statements, it was submitted, lend strength to the applicants’ submissions generally on this topic.
28.	The EA did not directly address the issue of the applicability of Euratom.  That it did not do so is, perhaps, a reflection of the fact, which has already been noted, that it accepted that it should comply with the recommendations of the ICRP.  Its contention in this respect was that it had properly understood and applied those recommendations when considering the grant of the authorisations.  
29.	The MoD submitted that neither Euratom, nor therefore the Directives made under it, any more than ICRP, had any application to its operations on the sites.  All defence activities, it was submitted, involved the exercise of Sovereign power by the State.  There would thus be a presumption against the provisions of any treaty encroaching on the freedom of states to exercise it free of international control, save to the extent that there were international treaties expressly dealing with matters of defence.  The starting point for the argument was that Euratom can only have acquired such competence or authority as it had as had been attributed to it by its Treaty signatories.  In order to ascertain the meaning of its text, it is necessary to consider the historical context in which it came into existence.  In this instance, the Treaty was originally signed by Belgium, the Federal Republic of Germany, France, Italy, Luxembourg and the Netherlands in 1957.  When Britain joined the EEC, in 1973, it also acceded to Euratom.  It is of note that the origins of the European Coal and Steel Community (the forerunner of the EC) lay in an initiative developed by the then Minister of Foreign Affairs in Belgium who was responsible for the production of a memorandum which stated
In consideration of previous experience, pointed to areas less exposed to fateful national memories than military matters and, therefore, more likely to be responsive to common control and development.  The civil use of atomic energy was named as a field in which the joint efforts of the six nations might be promising.
30.	As a matter of history that view was adopted by the six states concerned.  This in turn led to the establishment of a group of experts who prepared a paper, later known as the Spaak Report, which was concerned with co-operation with respect to the peaceful utilisation of atomic energy.  It was this paper which formed the basis of the negotiations for the preparation of the Treaty which was to become Euratom; see Euratom; the Conception of an International Personality (1958) 71 Harvard Law Review.
31.	When the Treaty was under negotiation, France was in the process of developing its own nuclear deterrent.  Germany had renounced the use of nuclear arms.  When Britain acceded to the Treaty it was already in possession of nuclear weapons.  It has been said that
Euratom was to have ownership of all fissile materials other than natural uranium, ie plutonium and all grades of enriched uranium.  However, should such material be needed for fabrication of a military device, this (purely theoretical) ownership was to cease at the entrance to the military establishment concerned.  The Euratom security control also stopped at this point.
See Goldschmidt The Atomic Complex: A Worldwide Political History of Nuclear Energy (1982) p296.  Article 52 of Euratom makes it impermissible for the Agency, which was established to control the supply policy of ores, source materials and fissile material, from being able to discriminate between users on the grounds of the intended use of the material, provided always that such use was not illegal.  Yet, as has been seen,  the fact that the Treaty does recognise that nuclear materials may reach the point at which Chapter III ceases to apply to them is consistent with the intention that this was to preserve freedom of action by States for defence purposes.
32.	When the Treaty itself is examined, it is noteworthy that the recitals to it (above) are strongly suggestive that its scope was restricted to the civil and commercial aspects of nuclear energy.  The Tasks of the Treaty, which include “raising the standard of living in the Member States” and “the development of relations with the other countries” do not sit easily with the notion that it is a Treaty concerned at all with defence matters.  The arrangement of the Chapters and their subject matters, again, are incompatible with anything other than civil and commercial activities.  Apart from Articles 24 and 84, the Treaty was entirely silent about defence matters.  Where references were to be found to such matters, these were at the boundary between the civil and military activities.  The recitals to the Treaty refer exclusively to peaceful uses of nuclear energy and its structure  was incompatible with there being any distinction between civil and military uses.  There was no basis upon which it would be proper to separate Chapter III of Title II and give it a life independent from the remainder of the Treaty so that it, and it alone, should apply to both civil and military uses.  Moreover, it was to be noticed that health and safety is only one of the Treaty’s areas of application.
33.	When specific attention is paid to Article 24, as part of Chapter II concerned with the dissemination of information, it makes perfect sense that there should be an exclusion in favour of information which would otherwise be disclosable and which would harm the defence interests of one of the Member States.  It has also to be kept in mind that France was the only original signatory which had a nuclear weapons’ capability and it was inconceivable, whatever might have been said later, that it would have signed up to the Treaty without providing for derogations, exemptions and safeguards if it had been intended to cover both civil and military nuclear activities.  Article 296 (new) to the EC Treaty of Accession provides a most striking contrast to the position in  both Euratom and the Directive where a specific exclusion is made in respect of information it considers contrary to its security interests and for protecting security interests connected with the production or trade in arms, munitions or the materials of war.  In the context of this discussion, it is the fact that the United Kingdom is in a special Treaty relationship with the United States which might be imperilled if the construction for which the applicants contended was to be accepted.  
34.	The italicised phrase in Article 84 (above) draws attention to what, it was submitted, was a gateway from the civil to military uses of nuclear energy.  So also was it significant that Article 4, which provides for the Commission to be responsible for promoting and facilitating nuclear research within the fields listed in Annex I to the Treaty, only lists applications of isotopes in the fields of (a) industry and science, (b) medicine and biology and (c) agriculture.  The remaining provisions of the Annex are only sensibly referable to civilian uses.
35.	As to the Directives identified above, the simple proposition was that if the Treaty did not apply to defence activities, then as the Directives had to be interpreted in the light of the basic purposes of the Treaty they cannot be read otherwise.  It should be noted that if the applicants’ arguments were correct an uneasy tension would be set up between the provisions of Euratom and Directive 85/337 on the assessment of the effects of certain public and private projects on the environment as amended by 97/11.  The former Directive specifically excluded  “projects serving national defence purposes,” while the latter makes specific provision for certain projects, as listed and of a non-military kind to be made the subject of assessment in accordance with the earlier Directive.  If Euratom applied to military activities the exclusion from the above Directives of such matters would plainly lead to conflicts between those Directives and to some of the provisions in the Treaty.
36.	More generally, it was submitted that there is a proposition of international law which conditions the proper approach to the interpretation of any treaty.  The principle in play is that which regards the maintenance of independent sovereignty as a feature which is not to be removed unless the purpose and effect of a treaty demonstrate that such was the treaty intention.  Thus
If the meaning of a term is ambiguous, that meaning is to be preferred which is less onerous to the party assuming the obligation, or which interferes less with the territorial and personal supremacy of the party, or involves less general restrictions upon the parties

See Oppenheim International Law ¶633(3).The principle is enshrined in the phrase in dubio mitius.     Other writers have reached conclusions on the question whether the Treaty applies to defence related activities which are broadly in line with the case made on behalf of MoD; see Hahn Euratom: the conception of international personality, Y Chaser EURATOM : The Treaty Establishing the European Atomic energy Community vol 1, Encyclopedia of European Law, vol 1p2-0005.
37.	One of the applicants’ arguments was that the health and safety provisions contained in Chapter III must be applicable to nuclear discharges arising from military activities for, unless they did, there would be significant discharges which were subject to no control.  This was a consequence which cannot have been intended. In response it was submitted that this submission ignored the fact that Chapter III was to be found within Title II, which by its introduction was concerned with a purpose which was demonstrably civilian in character, that is “provisions for the encouragement of progress in the field of nuclear energy”, which, as has already been noted, relates to the use of nuclear power.
38.	Chapter VII, which contains the provisions for safeguards to ensure that nuclear materials remain available only to those who are responsible, is intended to ensure that the Community will eliminate, so far as it can, hazards to the life and health of its people but they are expressly excluded from application in the military field by the provisions of Article 84.  In the same vein, are the provisions of  COMMISION REGULATION EURATOM No 3227/76 (concerned with the application of the provisions on Euratom safeguards) which specifically excludes  installations assigned to meet defence requirements and nuclear materials, similarly assigned, from its application.  It is also the fact that if the Treaty had been intended to cover the military use of nuclear energy, given the sensitivities of States towards matters of defence, it is relevant to observe that no such exemption as is to be found in Article 296 (new) is contained in the Treaty provisions.	
39.	The applicants were unable to point to any decision of the European Court of Justice which is consistent with the claim that Euratom extends to military uses of atomic energy.  However, some assistance is to be gained from the decision of the Court of Justice in Saarland (above).  That was a case in which administrative orders had authorised the disposal of radioactive waste from buildings at the Cattenom nuclear power station in France.  At issue was the applicability of Article 37 of Euratom which is intended to forestall the possibility of radioactive contamination from such discharges.  In paragraph 13 of the judgment, the Court held that in the light of the purpose of that Article, the guidance which the Commission can give to Member States is of importance having regard to 
the Commission’s unique overview of developments in the nuclear power industry  throughout the territory of the Community.
The submission was that there was no hint of any recognition that the sphere of interest of the Commission was other than for the peaceful uses of atomic energy.  In an earlier ruling of the Court in Draft Convention of the International Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports [1978] 3 ECR 2151 a number of passages in the judgment were relied upon to support the same proposition.  
40.	The Government of France, it was submitted had taken a fairly consistent line that its nuclear weapons were not caught by the provisions of Euratom.  The statement of Mr Santer (above) upon which the applicants founded was subject to the important limitation that France had always considered that Euratom was inapplicable, a position which the Commission had not previously challenged.
 Conclusion on the applicability of Euratom
41.	Before announcing the conclusion, it is necessary to recall that it was accepted at the Bar that if the court was in any doubt, this was a matter which should be referred to the ECJ.  As I entertain no such doubt, a reference will not be required.  From the historical papers to which reference has been made in the course of submissions on behalf of the MoD, from the content of Euratom itself and such jurisprudence as is available to the court, there can, in my judgment, only be one answer to the question of its applicability in the field of defence.  That is that the Treaty is concerned to regulate, and only to regulate, the conduct of Member States in the field of the civilian uses of nuclear energy.  The reasons, which fall broadly into three categories, can be identified as follows:
Considerations external to the Treaty
1.  There must be an inherent presumption against any sovereign State ceding to other States control of or access to military activities.  In case of doubt, the decision should be resolved by application of the principle in dubio mitius. 
2.  When the Treaty was negotiated, only one of the original signatories was a military user of nuclear energy.  It was inherently implausible that State (France) would have been willing to apply the consequences of the Treaty to such a sensitive area.  History indicates that France has always jealously preserved its independence in the field of military power, but particularly is this true in the nuclear aspects of its defence policy.
3.  When the United Kingdom acceded to the Treaty, there is no history of discord with the United States with which the United Kingdom has a number of nuclear treaties.  These would surely have been called into question if Euratom covered defence related activities.
4.   There would be not just an uneasy tension between Article 296 (new) of the EC Treaty, but a direct conflict between its provisions and Euratom if the applicants’ submissions on this point were correct.  Little weight should be given to the casual statements upon which the applicants relied which amount to little more than political rhetoric. 
Internal construction of the Treaty
5.    Given the knowledge that nuclear weapons were, in general terms, available to a limited number of nuclear powers at the date of the signing of Euratom and the obvious possibility that they might become more readily available in the future, the manner in which the Treaty is laid out is striking.  The absence of any reference to nuclear weapons in the recitals and tasks of the Community is, in my judgment, a strong indicator of the limitation on its scope.
6.  It is, accordingly, impossible to ignore the limited task set for the Community in Article 1, that is “raising the standard of living of Member States and to the development of relations with other countries”.  That would have been the point at which a reference to defence could reasonably have been expected.  It is in my judgment nothing to the point that by taking some of the Treaty provisions out of context it is possible to make them fit a defence context.
7.  The construction suggested by the applicants for Articles 24 and 84 has to be rejected.  The provision of Article 24 which is concerned with “harm (to) the defence interests of one or more Member States” by the disclosure of information derived from research, contemplates that such interests will not be uniform within the Community.  The Treaty is concerned to provide a regime which is uniform throughout the Community.  The defence derogation would be inconsistent with the achievement of that purpose.  To the like effect are the provisions of Article 296 (new) of the EC Treaty.  It is significant that, under the section (III) of the Treaty which is concerned with Security Provisions, Article 24 catches information derived from civilian activities which may have military implications.  If the argument for the applicants was correct, that would have been information which was already within the military arena.
8.  Article 35 also presents the applicants with a difficulty.  The Commission is empowered to access facilities necessary to carry out the monitoring of the operation and efficiency of facilities for continuous monitoring of radioactivity in its various forms.  Given the obvious requirement for respect for the defence interests of Member States, it is not easy to reconcile these provisions.
9.  The argument in relation to Article 84 is the same.  Article 86, which is concerned with Community ownership of all special fissile materials presents equal difficulties.
10.  Article 98 is  wholly inappropriate if the Treaty applies to military uses of nuclear power.  The idea that insurance cover could ever be procured against the possible use or misuse of nuclear weapons on a Community scale would also lead to some strange consequences.
11.  These examples highlight but a few of the problems of interpretation of Euratom which would arise if the applicants’ suggested interpretation was to be accepted.
The jurisprudence
12.  Saarland (above), is of no assistance to the applicants since it is a case which was only concerned with the civilian use of nuclear energy and new, as opposed to the continuation of previous, discharges.
13.   In the decision in the Draft Convention of the International Atomic Energy Agency  case (above),  a number of passages from the judgment provide strong support for the position of the MoD.  The following paragraphs and statements are relevant :
7.  The aim of the convention is, in the terms of its preamble, to deal with the risk of theft and misuse of nuclear materials put to civil uses.
8.  … Article 2 serves to limit the field of application of the convention by excluding from it installations, materials or transport used for military purposes.
12.  … materials and facilities for military purposes are excluded from the scope of the Convention as well as from the Treaty (Article 2 of the Convention and Articles 84 and 86 of (Euratom).  It may therefore be stated that the Convention concerns materials and facilities to which, within their own ambit, the provisions of (Euratom) are fully applicable.
14.  … Article 52 … Article 60 in conjunction with Article 65 … Article 73 … .  These provisions, amongst others, show the care taken in the Treaty to define in a precise and binding manner the exclusive right exercised by the Community in the field of nuclear supply in both internal and external relations.
15.  … Like the EEC Treaty (Euratom) seeks to set up, with regard to the matters covered by it, a homogeneous economic area; it is within this area from which barriers have been removed that the Commission and the Supply Agency are called upon to exercise their exclusive rights in the name of the Community.
23.  The result of the foregoing is that the exclusion of the Community from the draft Convention would have the effect not only of hindering, in certain respects, the functioning of the safeguards laid as down by Chapter VII of the Treaty and the implementing measures based thereon, but it would also compromise the subsequent development of that system to its full scope implied by the very concept of “safeguards”.  From this aspect the power of the Community to participate in the proposed convention would consequently also appear to be undeniable.
The case, thus makes clear that the real concern of Euratom is to provide for a nuclear common market which has nothing to do with military uses of nuclear power.
42.	In conclusion on this aspect of the case and for the three  broad reasons developed above, it is not in any sensible manner properly to be accepted that Euratom applies to the military use of nuclear power.
 
International law
43.	This aspect of the case raised two issues.  The first is whether or not it was of proper concern to the EA that it should enquire as to the lawfulness of Trident as a nuclear weapon, in international law.  The second question is whether the premise upon which this first issue was based was accurate or not.  I propose to consider the underlying issue first.  
44.	The foundation of the applicants’ submission on this issue was the Advisory Opinion of the International Court of Justice in Legality of the Threat or Use of Nuclear Weapons, 1996.  It is difficult to comprehend upon what exact basis the applicants found upon this case in support of their submission.  By way of justification for this observation, it is only necessary to quote from a few discrete passages in the Opinion and the answers to the specific questions which the Court was requested to answer by the United Nations General Assembly.  Thus
33.  The Court thus finds that while the existing international law relating to the protection and safeguarding of the environment does not specifically prohibit the use of nuclear weapons, it indicates important environmental factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict. 
*
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 whether non-recourse to nuclear weapons over the past 50 years consitutes 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.
*
74.  The Court not having found a conventional rule of general scope nor a customary rule specifically proscribing the threat or use of nuclear weapons per se, it will now deal with the question whether recourse to nuclear weapons must be considered as illegal in the light of the principles and rules of humanitarian law applicable in armed conflict and the law of neutrality.
45.	Having discussed the historical position in relation to the principles and rules of humanitarian law, the Court went on to consider how they should be applied to the principles of neutrality and nuclear weapons; (Paragraph 90).  It continues
94.  The Court would observe that none of the States advocating the legality of the use of nuclear weapons under certain circumstances, including the “clean” use of smaller, low yield, tactical nuclear weapons has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use: nor whether such limited use would not tend to escalate into the all-out use of high yield nuclear weapons.  This being so, the Court does not consider that it has sufficient basis for a determination on the validity of this view.
*
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 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.
*
105. (1) …
(2) …
	A ....
	B  There is in neither customary nor conventional 		international law any comprehensive and universal prohibition of 	the threat or use of nuclear weapons as such:
	C  The threat or use of force by means of nuclear weapons that is 	contrary to ‘Article 2 … of the … Charter and that fails to meet all 	the requirements of  Article 51, is unlawful;
	D  A threat or use of nuclear weapons should also be compatible 	with the requirements of the international law applicable in armed 	conflict, particularly those of the principles and rules of 	international humanitarian law, as well as with the specific 	obligations under treaties and other undertakings which expressly 	deal with nuclear weapons:
	E  It follows from the above mentioned requirements that the threat 	or use of nuclear weapons would generally be contrary to the rules 	of international law applicable in armed conflict, and in particular 	the principles and rules of humanitarian law:
		However, in view of the current state of international law, 			and of the elements of fact at its disposal, the Court cannot 			conclude definitively whether the threat or use of nuclear 			weapons would be unlawful in an extreme circumstance of 			self defence, in which the very survival of the State would 			be at stake.

46.	It may be observed that the Court had ample opportunity to declare that in all circumstances the threat or use of nuclear weapons would be illegal.  It did not do so.  It is certainly not for this court to step in and make the declaration which the applicants would have wished.  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 EA would plainly have been wrong, in my judgment, to have expressed any opinion on the question, let alone to have concluded, that the advisory opinion reached a concluded view that the use and deployment of Trident was contrary to international law.  This conclusion is consistent with the decision of the Divisional Court in Hutchinson v. Newbury Magistrates’ Court (Transcript 9th October 2000, CO/663/00).
47.	The decision of the EA that the submissions made in this respect were “beyond the scope of determining AWE’s applications for disposal of radioactive wastes” was, in my judgment entirely correct.  It should not be overlooked that the EA was, in this instance, acting merely as the regulatory authority charged with determining whether, and if so upon what terms, radioactive wastes should be permitted to be discharged from the two sites.  It is material to note that despite a detailed skeleton argument submitted on the applicants’ behalf, the juridical basis of this supposed duty (to consider the legality of the use and deployment of Trident) was never identified.  As a matter of common sense, the duty to consider such a matter would, in ordinary circumstances, be that of the of the body which was responsible for the decision to use and deploy the weapon in question, that is to say the MoD, if not the Government itself.  It will not have been overlooked that the EA had no powers, nor yet did it purport to exercise any, in respect of the production of Trident, its storage or the accumulation of radioactive material.  Its functions were solely concerned with the conditions under which radioactive waste discharges should be permitted.  It is also notable that the decision with which this litigation is concerned neither authorised the design and manufacture nor the decommissioning of Trident. Its sole purpose was to authorise the release of radioactive wastes some small part of which only, on the evidence,  were attributable to the manufacturing process of Trident.  On that evidence, the bulk of the radioactive discharges were derived from the historical activities which had been carried out at the sites.  
48.	What has been written above is wholly consistent with the proposition that the statement of Government policy adumbrated in the SDR, namely that the Government is committed to a policy of deterrence and multilateral disarmament and that it has assessed what is the minimum number of Trident warheads necessary to maintain the deterrent credibly, was no more susceptible to challenge or decision by the EA, than it is to this court.  Quite simply, the EA had no means at its disposal to embark on any form of adjudication of those issues.  Similarly, this court cannot entertain any such challenge and, even if it did, there is no means available to it to proceed to a judgment on any of those matters; see Chandler v. Director of Public Prosecutions [1964] AC 763.  In giving the leading speech, Lord Reid said at p790
Who , then, is to determine what is and what is not prejudicial to the safety and interests of the State?  The question more frequently arises as to what is or is not in the public interest.  I do not subscribe to the view that the Government or a Minister must always or even as a general rule have the last word about that.
But here we are dealing with a very special matter – interfering with a prohibited place which Wethersfield was.  The definition in section 3 [of the Official Secrets Act 1911] shows that it must either be  closely connected with the armed forces or be a place such that information regarding it or damage to it or interference with it would be useful to the enemy.  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 Ltd v. Attorney-General [1932] 2 KB 197.  Anyone is entitled, in or out of Parliament, to urge that policy regarding the armed force should be changed; but until it is changed, on a change of Government or otherwise, no one is entitled to challenge it in court.

	Lord Radcliffe, in the same case at p798 said
If the methods or 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 the court to try the issue whether it would be better for the country that that armament or those dispositions should be different.

49.	It is well put in de Smith, Woolf & Jowell Judicial Review of Administrative Action (5th Edition), where at paragraph 6-045 it is said
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.

50.	Accordingly, even were it permissible or appropriate for the EA to have considered whether or not the Trident programme was illegal, according to international law, it would inevitably have reached the conclusion the programme was not illegal.
Justification
51.	As by now will have become readily apparent, the foundation for the applicants’ submissions was to be found in the provisions of the recommendations of the ICRP insofar as they are concerned to require justification of practices.  It was obviously the case that the applicants placed the reliance that they did on the applicability of Euratom which provides, see Article 6 of the Directive (above), that the types of activity which result in exposure to radiation shall have been justified in advance.  It will be recalled that the EA conceded, not just in argument in the present case, but in their consultation and decision documents which are in issue in the proceedings that it was appropriate “under the ICRP system of protection to identify the benefits and detriments of practices at AWE”, which were set out in the Decision document at ¶4.10.3.  In so concluding, the EA was following what it had understood to be its position following the decision of Potts J in R v. Secretary of State for the Environment and Lancashire County Council ex parte Greenpeace [1994] 4 AllER 352 (see consultation document ¶2.5.4), which was that
when the regulatory authorities (now the Environment Agency) are determining an authorisation under the Radioactive Substances Act they must consider whether the practice giving rise to the release is justified.  This means that the Agency must come to a view about whether or not the benefits of the practice exceed the detriments it causes.
In so advising itself, the EA was clearly following the passage at p367-8 of the judgment of Potts J.  While nothing which is said hereafter is to be taken as questioning the decision reached by Potts J, I am constrained to say that in so doing the EA, as a matter of strict law, misdirected itself, albeit in a sense which may have been of advantage to the applicants.  The reason is straightforward.  The Greenpeace Case arose out of the decision by the civil nuclear authorities (NFL) to construct a thermal oxide reprocessing plant (Thorp) at Sellafield.  The question for decision was whether or not 
justification must be considered in the exercise of the powers under ss13 and 16 of the 1993 Act.  The Act is silent on how these powers are to be exercised.
See judgment p364. There was and could be no question but that the Directive (above) applied to the civil uses of nuclear power.  Accordingly, it was but a short step for the learned judge to decide that the recommendations in ICRP 60 applied to the activity of Thorp insofar as it consisted of a human activity and that sections 13 and 16 should be construed so as to accord with the Directive in accordance with the principles set out in the Marleasing Case; see judgment p368d.                                       
52.	In their skeleton, the applicants’ position on this issue was baldly stated to be that in Greenpeace, the domestic court had ruled that in accordance with the principle in Marleasing, statutory authorisations under the Act of 1993 were subject to the requirement of justification imposed by Article 6 of the Directive and that there was no military exemption.  Furthermore, they contended that the words of the relevant ICRP recommendation were wide enough on their own to cover military uses of nuclear energy and, presumably should be governed by it.  This argument introduces the same fallacy that the argument had in relation to the applicability of Euratom to military purposes.  It must suffer the same fate, and for the same reasons.
53.	Since, however, the EA accepted that it should be governed by the provisions of the ICRP recommendation, it is necessary to consider whether it directed itself properly when it concluded that it could be satisfied on this issue.  The applicants’ submission was that the processes of designing, production and decommissioning were separate processes each of which required justification.  It was expressed thus
The principle of justification applies to any “practice” and interrelated practices do not lose their separate identities.  ICRP 60 paragraph 112(a) … refers to an individual practice.

54.	It now becomes necessary to refer to the provisions in the ICRP 60 which are at issue in these proceedings.  Having identified the general principles of the recommended radiological protection as being [a] The justification of a practice  [b] The optimisation of protection  [c] Individual dose and risk limits, the recommendations continues at paragraph 4.3.1
The Commission recommends that, when practices involving 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 this reason that the Commission limits its use of the term justification to the first of the above stages ([a]), i.e. it requires only that the net benefit be positive.  To search for the best available options is usually a task beyond the responsibility of radiological protection agencies.
The Recommendations do not themselves offer a precise definition of what is meant by the word “practices”.  The closest point they reach in assisting an understanding of what that word means is to be found in paragraph 106, which says
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 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”.
The applicants submitted that the test for determining whether or not what was happening was an activity was to be decided by identifying whether there were different human activities which increased the overall exposure to radiation.  It was further submitted that the EA ought not to have taken into account the building in which all the relevant activities took place, nor yet of the fact that it was the same management which was responsible for  the design, production and decommissioning of the warheads.  It was said that the notion that the production of new warheads was the same as the decommissioning of redundant warheads was wrong.  Manifestly they were different human activities.
55.	On this point the EA’s position was that it had not erred in treating the three interrelated activities as constituting one practice and that it was entitled to consider whether the practice as a whole was justified.  The point was made in oral submission that the EA was powerless to stop the production of Trident, to regulate the storage or accumulation of radioactive wastes, indeed, its only power, in the context of this case, was in respect of the regulation of the disposal of those wastes.  It is worthwhile to look at the evidence upon which the EA relied on this aspect of their response.  The official whose responsibility it was to regulate the disposal of radioactive wastes is one Jackson.  He it was who performed the technical evaluation of AWE’s application and managed the process of consultation to which reference has already been made.  He drew attention to the statutory obligation of the Agency to take into account when deciding whether, and if so how, to exercise any power, what the likely costs and benefits of the exercise or non-exercise of it would be.  He also explained that the Atomic Weapons Act 1991 provided for private sector operators at AWE sites.  It was, of course, this change which meant that activities conducted at AWE sites came within the provisions of the Radioactive Substances Act 1993.
56.	Mr Jackson explained that the main source of radioactive discharges from the site at Aldermaston arise from decommissioning from the legacy of operations at that site during the period of the cold war.  There are a number of redundant nuclear plants at that site which are heavily radioactively contaminated which he say “are the most significant contributors to the overall discharges of liquid and gaseous activity … into the environment”.
57.	Mr Jackson also stated that for the purposes of the Decision Document, the principles of justification according to ICRP 60 and 77 were applied as, indeed, the document itself declared.  It has already been observed that the EA took into account, and without question, the fact that the principal benefit of the operation was the delivery of a UK based independent nuclear deterrent. Mr Jackson makes the point that the Agency neither considered that it had the obligation, nor yet the power, to enter into any debate on what was, in effect a “given”.  In my judgment, he was plainly correct in this.  It was no part of the Agency’s function to embark on a consideration which would have thrown into question matters which were outwith their own functions and powers and which, for the same reasons are not justiciable; see Chandler (above).
58.	It will be recalled that one of the points which has been made by the applicants is that the EA had not properly understood, or had wrongly approached what was involved in the actual process of justification.  This was for the reason that it aggregated all the practices at the site and merely applied the justification test on the resulting totality.  It is Mr Jackson’s view that any such approach was unworkable and wrong.  Thus, he says
… due to the interrelated nature of the practices set out, in the view of the Agency justification can only sensibly be considered in relation to the operation as a whole.  Both warhead decommissioning and Trident production operations are conducted in the same facilities and often by the same groups of workers.  For example at AWE Burgfield, Chevaline nuclear warheads are decommissioned within the same nuclear plant in which Trident nuclear warheads are assembled.  The same management team is responsible for the control of these operations.  Similarly at AWE Aldermaston, WE177 warheads are decommissioned and stored within the same nuclear plant in which components for Trident nuclear warheads are manufactured, again with common management arrangements.  Operations at AWE are accordingly more properly viewed as a single practice, namely, the maintenance of a UK nuclear deterrent.
In a later statement, Mr Jackson added
In fact the production and decommissioning of nuclear warheads are closely related and part of a 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, dissassembly from a weapon, and return of 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 Environment Agency.
59.	Insofar as Mr Jackson was detailing matters of fact in this quotation, his evidence of course stands unchallenged.  His conclusions, as it seems to me, appear to be equally unassailable. This view is fortified by consideration of what may be thought to be the underlying principle for the introduction of the concept of justification.  The submission made on behalf of the EA on this issue was that justification is required for the protection of human health against the hazards of radiation.  The justification principle recognises that in major decisions which have to be taken in relation to nuclear energy there will be many factors which go beyond radiological protection with which such protection has no concern.  All that is required, when applying the justification test was, it was submitted, that there should be a net benefit after the radiation detriment had been brought into account and set against the given policy on defence.  Thus paragraph 4.3.1 in the ICRP 1990
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 do more good than harm.  This produces a “short list” from which the preferred option can 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 expressly 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 the available options is usually a task beyond the responsibility of radiological protection agencies.
The consequence, it was submitted, of a proper understanding of this passage is that justification is only to be applied in providing the list of options rather than selection of the option itself.
60.	In a later publication of the ICRP entitled History, policies, procedures the Commission says
(29) The Commission has found it useful to differentiate between two situations which it call practices and interventions.  Practices are human activities that are undertaken as a matter of choice despite the fact that they increase the overall exposure.  The increase can be avoided by refraining from undertaking the practice, and thereby forgoing the benefit, or controlled by taking precautions.  Sometimes, however, exposures result from situations that already exist.  If any action is needed to reduce the exposures or to remove the sources, the action is called intervention.  Diagnostic radiology and the generation of electricity from nuclear sources are examples of practices.  Modifying existing dwellings to reduce the concentration of radon is an example of intervention.  [Emphasis added.]
In this passage, the two examples of practices which are provided can readily be understood as each embracing a number of, what can reasonably be described as, ‘sub-activities’.  In my judgment, the conclusions which Mr Jackson sought to draw, see paragraph 56 above, are comfortably within the contemplation of paragraph (29) of the ICRP publication.
61.	Finally with reference to ICRP publications the contents of paragraph 5.1 of ICRP 77 are worthy of attention.  This states at paragraph (15)
Waste management and disposal operations are part of the practice generating the waste.  It is wrong to regard them as a free standing practice, needing its own justification.
62.	From all of the above, it was submitted that ICRP had deliberately left the issue of justification in broad terms so that the application of the test in any given case was left to the decision of the Regulator.  In terms of the municipal law of judicial review, the decision of the Regulator in these circumstances could only be successfully impugned on well know public law principles.  The applicants were not in a position to, nor could they, demonstrate that the EA had erred by way of omission or inclusion of any matter which was irrelevant any more than it could be shown that its decision was irrational.
63.	As a footnote to the above, it should not be thought that the EA is not mindful of the necessity to reduce radioactive emissions to the minimum.  In a statement made by the Manager of Waste Management, one Wall, in the employment of AWE, he explains how the two sites are regulated under the provisions of the Acts of 1993 and 1965 respectively.  It is relevant to notice that radioactive discharges have been made from both sites for a number of years and have been subject to strict limits.  Of the effects of the new authorisations, he said that in general there has been a reduction in discharge limits of 50 per cent to all major airborne waste streams and of 60 per cent to major liquid waste streams and with a smaller reduction to solid waste streams.  In a few cases there have been increases, but these have been only as necessitated for decommissioning of facilities, remediation of contaminated land and where work has been transferred from one site to the other.  In relation to the actual discharges from  the sites Mr Wall provided the following information on liquid discharges:
	Period		Type			Amount
	1950’s               Alpha-emitting              8,000 MBq
   1960’s                                                      4,000 MBq
   1970’s                                                      3,000 MBq
   1980’s                                                         200 MBq
   1995 on                                                    < 30   Mbq

In the new authorisations, the limit has been set at 100 MBq, whereas under the previously existing limit it had been set at 250 MBq.  In relation to airborne discharges, the corresponding figures were 200, <100 and for the last five years <0.2.  During the last period the limit had been set at 0.9 MBq per year and has now been set at just half of that figure.
64.	Equally impressive reductions in radiological risks from the discharges have also been obtained.  On a conservative basis of assumption, Mr Wall calculated the maximum radiation dose for the Aldermaston site to be 9 microsieverts (s) to those most exposed.  From Burghfield, the calculation throws up an equivalent figure of 0.017 ms.  These figures are to be compared with the recommended maximum annual dose limit (ICRP) of 1,000 s; compare the figure given at ¶2.3.3 of the Decision Document (above).  By way of comparison the average annual background radiation does in the Berkshire/Hampshire are is about 1800 s, in Cornwall the comparable figure is about 7,000, due to radiations from the granite.
65.	Mr Wall also confirmed the evidence from Mr Jackson in regard to the impossibility of making any distinction between wastes produced as the result of production of Trident and decommissioning redundant weapons.  He also stated that it was only a small part of the total wastes arising which are attributable to the actual process of manufacture of Trident warheads.
The procedural points
66.	There are here two points.  As to the first of these, it will be recalled that the gist of the complaint is that the EA did not consult the relevant Minister concerning the terms of the authorisation which it was minded to grant, contrary to the express provisions of section 16(4A)(b) of the Act of 1993.  In consequence, the authorisations were unlawful; see paragraph 69, below.  As to the second, the case which the applicants make is that under the provisions of section 24(1)(b) of the Act of 1993, the EA has no power to grant any authorisation until the Secretary of State has determined whether or not he will call in the application.  It is simply a question of legality; see paragraph 77, below.
67.	The first point.   The applicants rely on the frank admission by Mr Jackson that the Agency failed to re-consult MAFF or, as the responsible Government department as it had by then become, the Department of Health, by providing it with a copy of the proposed authorisation before they had granted it.  The reason which Mr Jackson gave for this apparent failure was that due to the pressure of time available to enable it to make its decision, there was insufficient, in consequence, to pass the draft authorisations to the relevant Minister for him to consider and respond before the cut-off date of 1st April.  The time was required to enable him to decide whether to call the application in or not. It is necessary to understand the background to this issue, which was that if no authorisation was granted by the due date, there could, for operational reasons, be no question of the discharges being allowed to cease.  The result would have been that, if there were to have been no authorisations, both sites would have had to revert to MoD control, the consequence of which would be that the EA would lose regulatory control.  
68.	The formal response of the EA to this complaint was, in effect, that it had at all material times complied with the non-statutory guidance contained in the Document Radioactive Substances Act 1993: Call-in of Applications, Gudance to the Environment Agency (1996) .  Paragraph 5 of this document requires the EA to notify the Head of the Radiological Safety Division of MAFF of all applications for authorisations for the discharge of radioactive wastes and also when it initiates the public consultation exercise.  It is also advised not to grant authorisations unless the DETR and MAFF have confirmed in writing that the Secretary of State does not wish to call the application in.  By letter dated 2 April 1998, the EA notified the Head of Division of the Radioactive Substances Division of the Department of the Environment Transport and the Regions that it would
not determine the applications until matters of call-in have been resolved in accordance with the Department’s guidance, and will advise Department of the Environment Transport and the Regions of its decisions before it makes them public.
On 19 May the Head of Department informed the EA that the Department had received two requests for call-in and that these meant 
That the Agency must not grant a decision until the Department and MAFF have confirmed in writing that the Secretary of State and the Minister of Agriculture … do not wish to call in the applications.
69.	On 9 March 2000, the Chairman of the Agency wrote to the Minister for the Environment informing him that the EA did not intend to comply with the non-statutory guidance [and its assurances, see above] for a number of identified reasons.  These were that
1.  The Agency … is satisfied that authorisations should be granted … on the terms and for the reasons set out in the … Decision Document;
2.  … its decisions will enhance its ability to control the AWE’s Operator through a number of improved conditions … within the authorisations;
… If authorisations are not granted by (the 1st April) then the site will revert to Ministry of Defence control and will cease to be independently regulated in a transparent manner under RSA 1993;
4  In the absence of authorisations issued to an independent contractor, the Agency would lose its ability to take enforcement action … and to prosecute an Operator for breaches of RSA 1993;
5.  This situation has arisen due to a change in contractors … ;
6.  The Ministers have not intervened in the determinations to date and are not prejudiced as they retain full powers at a later stage to direct the Agency under section 23(1)(c), (2) [of] RSA1993 to vary or revoke the authorisations … The Ministers also retain the powers to call a public enquiry at any time into the AWEs; and
7.  The Agency needed to issue the authorisations in good time before the change in contractor to ensure a safe transition of control of the AWEs to the new operator.
The letter was also copied to the Minister of Agriculture. On 6 April, the Minister for the Environment wrote to the Minister of State for Health, the Minister who had by then become responsible for the Food Standards Agency, stating that he had already discussed the issues raised in this correspondence with the Head of the EA on 16 February and that he had indicated his agreement in principle with what was proposed.  The Minister explained that the unusual procedure had been discussed with legal advisers because of the necessity for the EA to complete its work before 1 April.  What passed between that date and 10 January, shortly before the start of the hearing of the present application is not apparent to me.  But on this later date there is a joint letter from the two heads of Department at the Department of the Environment Transport and the Regions and Department of Health confirming that their respective Ministers had decided not to intervene in the EA’s determination of the applications which are in issue in this case. 
70.	As the above account demonstrates there had been close administrative contact between the Agency, the Department of the Environment Transport and the Regions and MAFF throughout the consultation period.  Specifically, it is to be noted that the draft authorisations were communicated to MAFF on 3 February 2000 whose responses thereto were incorporated into the Decision Document.  Some minor and inconsequential further amendments were incorporated into the Decision before publication.  So it was submitted on the part of the EA that the provisions of section 16(4A)(b) were satisfied.
71.	I disagree.  The statutory framework does not admit of the possibility that near compliance, or “as good as”, can satisfy the provisions of the section.  I am equally satisfied that there were good and powerful reasons why, in this particular case the relevant provisions were not met and why it would not be in the public interest that the sites should have returned to MoD control.  The reasons have been discussed in the correspondence quoted in paragraph 70 above.  
72.	What should the consequences of these findings be?  The answer is to be found in the analysis of the Court of Appeal in the case, albeit in a different field of law.  In Regina v. London Borough of Lambeth, ex parte Sharp 55 P &CR 232, the Court of Appeal was considering the consequences which should follow when there had not been compliance with the terms of a Regulation which was held to be important to the matter under review.  Stephen Brown LJ stated that it was material to consider what was  the nature of the breach, that is in terms of its gravity and relevance.  Woolf LJ (as he then was) said, at p239
(T)he breach of the requirements cannot be considered alone.  It has to be considered  in the context of the particular circumstances in relation to which the matter comes before the court.  I would respectfully adopt the approach of Parker LJ basing himself upon a speech of Lord Hailsham, in Main v. Swansea City Council and Others (1985) 49 P& CR 26:

	In our judgment, the most significant observation in Lord 	Hailsham’s speech, indeed the whole of the Clydesdale case, is that 	the court must consider the consequences in the light of a concrete 	state of facts and a continuing chain of events.  This recognises that 	the court looks not only at the nature of the failure but also at such 	matters as the identity of the applicant for relief, the lapse of time, 	the effect on other parties and on the public and so on.

In adopting that approach to the circumstances of this case, I would come to the same conclusion … .  I appreciate that it may be said that this approach introduces an element of uncertainty as to what will be the consequences of a breach of regulations of this nature … .
It does not seem to me that there is any valid distinction between a breach of regulations and a failure to comply with the provisions of a statute.  In my judgment, consistent with the rationale in the Swansea City case, a broad purposive approach to the question whether, and if so in what form, relief should be granted when there has been a failure to comply with a statutory obligation.  Matters to be considered will include the nature of the mischief at which the statutory provision is aimed, the consequences to the applicants and members of the public of the failure to comply and the extent to which there may be other statutory mechanisms which exclude or limit the damage or mischief which the statutory provision in question was intended to obviate.
73.	Applying these principles to the facts of the present case presents no difficulty in finding the obvious solution.  It is clearly the case that both the Department of the Environment Transport and the Regions and MAFF were at all times cognisant of the nature and progress of the process of consultation and had been apprised of the EA’s draft proposals.  At no stage did either body seek to intervene in the process, except to the extent already noted.  That fact by itself may be taken as some indication of their actual approval to the process of consultation and the proposed result.  Had there been concerns about any aspect of the process it can confidently be asserted that they would have found expression.  In the light of after events, including the letter signed on behalf of both Ministers whose Departments were involved, there can be added comfort in this respect.  On this analysis, it can be seen that the public interest has effectively been protected.  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 control by the MoD and the open nature of the controls which have 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 EA to comply fully with the provisions of section 16(4A)(b) of the Act of 1993.
74.	The second point under section 24 of the Act of 1993.  The gist of this was that the section is the means by which opposition to the grant of authorisations can be and be seen to have been properly considered by the relevant Minister.  The purpose of the call-in procedure is to enable the public to register and give vent to objections to the proposed scheme.  It will not have been overlooked that the non-statutory guidance concerning call-in (above) is just that.  It would have been the easiest step for Parliament to have taken to insert into the section words which would have had the effect which the applicants submit is there by necessary implication.  Not only are those words not to be found, but also the existence of the non-statutory guidance provides some confirmation that the argument of the applicants is wrong.  Unlike in the Greenpeace case (above) there has been no challenge to the Minister’s failure to have called in the application, nor yet have they invoked any of their powers under section 23 of the Act.  I must reject the argument that the positive exercise of the discretion conferred on the Minister under section 24 of the Act is a condition precedent to the grant of authorisation under the provisions of section 16 of the same Act.
75.	The final point arises from the fact, I eschew the word failure, that the EA did not consult the Commission in the terms of Article 37, above.  There are two responses to this which are cumulative in nature and which are to be found in the text of the Article itself.  The first is that it expressly provides that it is for the State, rather than any regulatory body, to provide the Commission with the requisite data.  For this purpose, there is no reason to treat the EA as the emanation of the State.  Secondly, there is not the slightest suggestion in the evidence or by way of submissions that the authorisations were liable to result in the radioactive contamination of the water, soil or airspace of another Member State.  This is a truly hopeless point.
SUMMARY OF CONCLUSIONS (see paragraph 14 above).
76.	1A & B.  The justification test has no application in law to activities of a military nature and none, therefore, to AWE sites.  In the name of transparency of Government administrative decision making, a policy has been adopted by the EA of applying the test of justification, the full tenor of which it met in the analysis performed in section 4 of the Authorisations’ Document.
2.  The legality according to international law of defensive nuclear weapons was outside the remit of the EA to consider.  Even had it been for it to determine, the EA could have arrived at no other conclusion than that the maintenance of such weapons as a deterrent (the only basis upon which the SDR formulated its policy conclusions) was not contrary to international law.
3A. The EA should have re-consulted the MAFF/Food Standards Agency before granting the Authorisations if it was to comply with its statutory obligations.  In the circumstances discussed at paragraphs 72 and 76 above no basis for the grant of relief can be demonstrated.
3B.  On no sensible reading of section 24(1)(b) of the Act of 1995 is the prior decision of the Department of the Environment Transport and the Regions or MAFF/Food Standards Agency not to call-in the applications a condition precedent to the lawful grant of authorisations under the Act.
3C.  The fact that the EA did not consult the Commission in accordance with Article 37  is of no effect insofar as the legality of the authorisations is concerned.  The consultation or notification, if such were needed, was a matter for Central Government and not for the regulatory body to perform.
4.  No relief is appropriate for the reasons adumbrated in paragraph 3A above.
77.	Accordingly this application fails and must be dismissed.