Thursday Law Report: Authorisations to Discharge Radioactive Material Were Not Unlawful ; 31 January 2002 Regina (on the Application of Marchiori) V the Environment Agency ([2001] EWCA Civ 03) Court of Appeal, Civil Division (Lord Justice Thorpe, Lord Justice Laws and Mr Justice Morland) 25 January 2002

Article excerpt

A CHALLENGE to authorisations to permit the discharge of radioactive waste from military installations at which nuclear warheads were manufactured, which was made on the basis that they did not accord with the "justification principle", failed because the merits or demerits of government defence policy were not justiciable.

The Court of Appeal dismissed the appeal of Emanuela Marchiori against a decision that certain authorisations granted by the respondent under the Radioactive Substances Act 1993 which permitted the discharge of nuclear waste by contractors to the Ministry of Defence from two nuclear sites, both of which were military installations at which Trident nuclear warheads were manufactured, were not unlawful.

The applicant had a longstanding and deeply held opposition to the manufacture of nuclear weapons and the threat to use them. She contended that the authorisations granted by the respondent would only be lawful if the respondent, in granting them, had decided that "every activity resulting in exposure to ionising radiation [is] justified by the advantages which it produces".

That was the "justification principle" stipulated in article 6(1) of Council Directive (Euratom) 80/836 made under Chapter III of Title 2 of the Euratom Treaty. She maintained that the respondent had wrongly treated the nuclear defence programme as a benefit or advantage for the purposes of the justification principle, whereas in fact it was required to treat it as a detriment, having regard to the humanitarian principles of international law as explained in the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons given on 8 July 1996.

The respondent submitted, inter alia, that the Directive was not engaged, since Chapter III of Title 2 of the Euratom Treaty had no application to military installations, but that it had chosen in any event to apply the same principle as it was articulated by the International Commission on Radiological Protection in ICRP Publication 60 adopted in November 1990; that far from being required to regard the nuclear programme as a detriment, the respondent was bound to treat it as a benefit; and that the merits or demerits of government defence policy were not justiciable in the courts. …