Channel Tunnel Group Ltd & Anor v Secretary Of State For Environment, Transport & Regions

Where a treaty and concession require two governments to act jointly before imposing security measures on concessionaires, positive agreement is required. Mere consultation, silence or failure to object is insufficient. The court must give specific provisions their ordinary and natural meaning, notwithstanding broader provisions requiring co-operation or co-ordination. General contractual obligations to comply with laws, regulations or directions cannot validate a direction made outside the specific statutory and treaty conditions. An optional arbitration clause does not prevent judicial review where no party has requested arbitration and the issue concerns the domestic lawfulness of the public authority’s action.

The Channel Tunnel concessionaires challenged two security directions issued by the Secretary of State under the Channel Tunnel (Security) Order 1994. The directions required a new X-ray system and increased vehicle searches.

Dyson J dismissed the judicial review claim, holding that the directions were within the Secretary of State’s statutory power and that French non-objection was sufficient to constitute joint action. The appeal concerned the effect of the arbitration provisions, the construction of the Treaty and Concession, and whether the directions had been jointly authorised.

1. Appeal allowed. The order of Dyson J was set aside and both directions were quashed. The appellants received their costs in both courts.
2. The court could entertain the judicial review proceedings. The arbitration clause required a party’s request before arbitration became operative. No such request had been made, and the court had not exceeded its discretion by determining whether the Secretary of State had domestic statutory power to issue the directions.
3. Article 5(4) of the Treaty and clause 23.2 of the Concession required the two Governments to act jointly, or to make a joint request, before requiring security measures from the Concessionaires, except in the exceptional circumstances covered by Article 6. Joint action meant action on behalf of both Governments, founded on their agreement.
4. Positive assent had to be communicated. Consultation followed by silence or non-objection did not amount to agreement. The French text, equally authoritative, reinforced that construction by referring to action by common agreement and Governments acting jointly.
5. General provisions concerning co-ordination, concertation, compliance with requirements made by either Principal, and compliance with laws and directions could not override the specific conditions in Article 5(4) and clause 23.2. The directions were therefore not binding on the Concessionaires.
6. The evidence showed that the French Government had been informed of intended United Kingdom action but had not been asked to consent to the detailed directions. The subsequent practice did not establish an agreed treaty interpretation and could not displace the ordinary meaning of the specific provisions.

• High Court, Administrative Court: Dyson J dismissed the concessionaires’ judicial review application on 30 November 2000.
• Court of Appeal (Civil Division): The appeal was allowed. The order below was set aside and both security directions were quashed. Permission to appeal to the House of Lords was refused.