Management company of nuclear sites applying for authorisations to dispose of radioactive waste – Activities at sites of military nature – Environment Agency granting authorisations – Whether “justification” test applicable to military activities – Whether agency’s decision unlawful – Euratom Treaty – Articles 6 and 13 of Council Directive 80/836/Euratom – Radioactive Substances Act 1993 – Application dismissed
AWE Management Ltd (AWE) managed atomic weapons establishments at two nuclear sites. Activities undertaken at the sites were subject to regulation by the respondent Environment Agency (EA). The only activities carried on at the sites were military or defence related, and the only current activity was in relation to the Trident missile. AWE applied to the EA under the Radioactive Substances Act 1993 for authorisations to dispose of radioactive waste from the two sites. The International Commission on Radiological Protection (ICRP) recommended, inter alia, that “no practice involving exposures to radiation should be adopted unless it produces sufficient benefit… to offset the detriment it causes” (the justification principle). That requirement was reflected in Articles 6 and 13 of the Council Directive 80/836/Euratom, adopted pursuant to the Treaty Establishing the European Atomic Energy Community (Euratom). Article 6 provides that “the various types of activity resulting in an exposure to ionising radiations shall have been justified in advance”.
In its decision, the EA considered justification of radioactive discharges from the sites. It stated that “the UK Government considers that the Euratom Treaty does not apply to military activities”. However, it conceded that “it was appropriate under the ICRP system of protection to identify the benefits and detriments of practices” at the sites. The EA also considered deployment of Trident missiles and concluded that the issue of whether the Trident programme was illegal, according to international law, was beyond the scope of its determination of AWE’s application. It granted the authorisations sought. The applicants sought to quash that decision.
The principal issues raised were: (i) Whether the justification test applied to military activities and therefore to the operations at the sites. If the Euratom Treaty and directive did apply, the justification test was a mandatory exercise, which the EA was obliged to perform before reaching its decision; (ii) Whether Trident’s compatibility with international law was relevant to the EA’s decision. The applicants contended that Trident contravened international law, therefore, the EA should have considered that proposition when determining whether to grant an authorisation; (iii) Whether the EA’s admitted failure to consult the relevant minister, as it was required to do under section 16(4A)(b) of the 1993 Act, meant that its decision was unlawful; and (iv) Whether, on the proper construction of section 24(1)(b) of the 1993 Act, the EA was required to obtain an express decision not to call in the proposed authorisations for a public inquiry from the relevant department or minister prior to granting the authorisations.
Held: The application was dismissed.
The Euratom Treaty was concerned only to regulate the conduct of member states in the field of civilian uses of nuclear energy. Given that nuclear weapons were in general terms available to a limited number of nuclear powers at the date of the signing of the treaty, the manner in which the treaty is laid out was striking. The absence of any reference to nuclear weapons in the recitals and tasks of the Community was a strong indicator of the limitation on its scope. Draft Convention on the Physical Protection of Nuclear Materials, Facilities and Transports (Opinion 1/78), Re [1978] ECR 2151 made it clear that the real concern of Euratom was to provide for a nuclear common market which had nothing to do with military uses of nuclear power. The justification test had no application in law to activities of a military nature and none, therefore, to the sites in question.
The EA’s functions were solely concerned with the conditions under which radioactive discharge should be permitted. Its decision that the international ramifications of the legality or use of Trident was outside the scope of its functions was entirely correct. Even if it had been permissible or appropriate for the EA to consider that issue, it would have inevitably reached the conclusion that the programme was not illegal.
Although the EA had failed to fully comply with the requirements of the 1993 Act, the public interest had been protected. The relevant government departments were cognisant of the nature and progress of the consultation at all material times and had been appraised of the EA’s proposals. Had there been concerns about any aspect of the process, it could be asserted that they would have found expression. Therefore, in the instant case, it was inappropriate to grant any relief upon that basis.
There was no support for the applicants’ proposition that a positive exercise of the discretion conferred upon the minister under section 24 of the Act was a condition precedent to the grant of authorisation.
Michael Fordham (instructed by the Public Interest Lawyers, of Birmingham) appeared for the applicants, Marchiori and the Nuclear Awareness Group Ltd; Nicholas Khan and Dinah Rose (instructed by the solicitor to the Environment Agency) appeared for the respondent; Nigel Pleming QC and Eleanor Grey (instructed by the Treasury Solicitor) and David Wolfe (instructed by Cameron McKenna) appeared for the interested parties, the Ministry of Defence and AWE plc.
Sarah Addenbrooke, barrister
