Marchiori v Environment Agency & Anor

Government decisions on national defence policy are not subject to merits review. The courts may nevertheless ensure that public powers are lawfully conferred and exercised, including in cases of bad faith or where legislation or the Human Rights Act 1998 requires review. A statutory regulator applying a radiological justification principle need not determine the merits or legality of the Government’s defence policy where Parliament has not imposed that function. The regulator may treat an established defence policy as a benefit while still weighing the other relevant benefits and detriments. The EURATOM Treaty’s Chapter III does not extend to military uses. Failure to notify the Commission under Article 37 does not itself invalidate an authorisation, and the notification duty rests on the Member State.

The appellant sought judicial review of authorisations granted by the Environment Agency under section 13(1) of the Radioactive Substances Act 1993 for radioactive waste discharges from the Aldermaston and Burghfield Atomic Weapons Establishment sites. The authorisations concerned sites involved in the manufacture, maintenance and decommissioning of Trident nuclear warheads.

Turner J dismissed the claim in the Administrative Court. The appellant argued that the Agency had unlawfully treated the Trident programme as a benefit under the radiological justification principle, that international humanitarian law required it to be treated as a detriment, and that the authorisations were unlawful because Article 37 of the EURATOM Treaty had not been complied with. The appeal raised the related question whether Chapter III of Title 2 of the Treaty applied to military installations.

1. Appeal dismissed. The Environment Agency had acted lawfully in granting the authorisations under section 13(1) of the Radioactive Substances Act 1993.
2. The merits of an honest Government decision on national defence policy are not justiciable. The courts remain responsible for ensuring that public power stays within constitutional and statutory limits. Review remains available for actual bad faith, and legislation, including the Human Rights Act 1998, may require review in an area traditionally regarded as non-justiciable.
3. Nothing in the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion established that the United Kingdom’s Trident policy was contrary to humanitarian principles of international law. The policy’s legality therefore did not require examination by the Agency.
4. The Agency’s statutory function did not require it to assess the merits of national defence policy. It was entitled to regard the Government’s commitment to an independent nuclear deterrent as a benefit for the justification exercise. That did not mean that the Agency abandoned its obligation to weigh the remaining benefits and detriments.
5. The ICRP material did not define “practice” precisely. The Agency was entitled to identify the relevant practice, including production, maintenance and decommissioning, subject to conventional judicial review grounds.
6. Article 37 required prior notification by the Member State to the Commission, but the Court of Justice decision in Saarland [1988] ECR 5013 did not establish that an authorisation granted without notification was invalid. The notification obligation rested on the State, not the Agency. The appellant also lacked standing to advance the point, particularly where the primary challenge was without substance and the Commission had made no complaint.
7. The majority view was that Chapter III of Title 2 of the EURATOM Treaty did not apply to military uses. Its purpose and structure were directed to civilian and commercial nuclear uses, and an application to military installations would have required clearer language given its implications for sovereign defence powers. Morland J agreed with the result but considered personally that Chapter III covered military uses; Thorpe LJ was less certain on that subsidiary issue but agreed with the dismissal and Laws LJ’s reasons.

• Court of Appeal (Civil Division) [2002] EWCA Civ 3 : appeal dismissed.
• Administrative Court, Queen’s Bench Division: Turner J dismissed the judicial review claim on 29 March 2001; the decision is reported at [2001] Env LR 840.