The Government's decision to build a new generation of nuclear power stations was last month declared unlawful by a High Court judge because of a "seriously flawed" public consultation process. The environmental body, Greenpeace successfully argued that the Government had failed to present clear proposals and information on key issues surrounding a new generation of nuclear power stations, such as disposal of radioactive waste and the financial costs of new build. The judgment, subject to any appeal, is expected to result in a fresh public consultation. R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin).

The Background

The Government outlined in the 2003 Energy White Paper a commitment to carrying out a full public consultation before reaching a decision on the future of nuclear power. This was followed by a report published in July 2006, in which the government listed conclusions it had drawn from the Energy Review and stated a need for new nuclear power stations. This announcement caused considerable controversy, particularly in light of the government's earlier promise to carry out a full public consultation before making a decision on the future of nuclear power.

Greenpeace's legal battle started in October 2007, when the group lodged legal papers arguing that the government had failed to carry out the 'full public consultation' it had committed itself to before making a decision to build new nuclear power stations. The Energy Review, according to Greenpeace, failed as a 'full public consultation' because it did not resolve key issues surrounding a new generation of nuclear power stations, such as dealing with radioactive waste, financial costs and the design of the reactors.

The Decision

Mr Justice Sullivan began his legal analysis by confirming the extent of the court's jurisdiction to review the procedural propriety of any consultation exercise: this permitted an examination of the following factors (articulated by the Court of Appeal in its Coughlan ruling of 2001): (a) consultation must be undertaken at a time when proposals are still at a formative stage; (b) it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; (c) adequate time must be given for this purpose; and (d) the product of consultation must be conscientiously taken into account when the ultimate decision is taken.

Nonetheless, he emphasised the hurdle facing any challenger to a consultation exercise in a case such as this:-

"A consultation exercise which is flawed in one, or even in a number of respects, is not necessarily so procedurally unfair as to be unlawful. With the benefit of hindsight it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. That is most emphatically not the test. It must also be recognised that a decision-maker will usually have a broad discretion as to how a consultation exercise should be carried out. This applies with particular force to a consultation with the whole of the adult population of the United Kingdom. The defendant had a very broad discretion as to how best to carry out such a far-reaching consultation exercise. […] In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went "clearly and radically" wrong" (internal quotation marks omitted).

However, having carefully reviewed the commitments made by the Government to undertake the fullest public consultation before deciding on the role of nuclear power in the UK's energy mix, Sullivan J largely agreed with Greenpeace, labelling the purported consultation document an "issues paper", containing no actual proposals. In addition, the information given to consultees was, in his view, wholly insufficient for them to make an intelligent response. On the whole, he concluded that the consultation exercise had been very seriously flawed and in breach of a legitimate expectation of comprehensive public consultation.

The Department of Trade and Industry has since declined the opportunity to appeal against the High Court's decision and has proposed a new round of public consultations on its nuclear proposals. It is unclear whether publication of the new Energy White Paper is likely to be delayed as a result. The Energy White Paper was expected to be published at the end of March 2007, but is now unlikely to appear until May.

The Future

While the case may have closed, the debate powers on. The principal issues remain – climate change, security of supply and decommissioning, which all point to an urgent need for serious action. The UK is already a net importer of coal and will soon also become a net importer of oil and gas. Moreover, 20% of the UK's electricity is generated by nuclear power stations, most of which will have ceased production by 2020.

What are the options? Renewable energy and increased energy efficiency are popular choices but are unlikely to suffice alone. "Clean coal technologies" are being investigated but are in the very early stages of development. Finally, new nuclear power stations remain at the forefront of the government energy agenda.

While the UK hesitates, several other countries are already taking action. Finland has commissioned a new European pressurised water (EPR) reactor at Olkiluoto, while France, Taiwan and China are either planning or building new stations. In Europe, the focus has been primarily on closure, decommissioning and nuclear alternatives. However, a review of the Euratom Treaty is presently underway with calls for a role for the European Parliament in legislating on Europe's nuclear industry highlighting the scope for increased industry regulation by the EU.

Whatever the route, extent or means of implementation, nuclear power looks set to continue to have a role to play in the long-term provision of Britain’s energy. It now remains to be seen whether the government can obtain the relevant stakeholder and public approval to put these plans fully into action.