Law Essays – Radioactive Waste Substances Act

Waste Substances Act

The coursework problem: Under the (fictitious) Radioactive Waste Substances Act (the Act) no person is permitted to dispose of any radioactive waste except in accordance with an authorization granted bt the Minister for the Environment (the Minister) The Act provides that before granting an authorization under the Act “the Minister shall consult such local authorities or other bodies as appear to him to be appropriate”. The Minister also has power under the Act to cause a public inquiry to be held in relation to an application for an authorization”if he thinks” . Pollution Solutions plc (the company) has made an application to the Minister for an authorization to permit the company to dispose of radioactive waste in a disuses mine in Cornwall. Local inhabitants have formed an action group to oppose the application, to be known as No radioactive Waste in Cornwall (NRWIC); they are also campaigning for a public inquiry to be held. The Minister has invited various bodies, both public and private, to submit their views on the application as part of the consultation process. He has, however, indicated to NRWIC that, in exercising his discretion under the Act, he does not consider it appropriate to consult them.

Furthermore, since none of the bodies which the Minister has consulted has requested that a public enquiry be held, the Minister, again exercising his discretion under the Act, is not minded to cause one to be held. At a press conference, announcing his decision to grant the authorization to the Company, the Minister made it clear that he did not consider that self-appointed pressure groups, like NRWIC, should pay any part in the statutory decision making process; he also revealed that he would not, under any circumstances, waste time and money by holding a public inquiry. In desperation the Chairman of NRWIC has come to you for legal advice on whether a claim for judicial review should be made to persuade the court to reverse the Minister’s decision to grant the authorization What legal advice would you offer? This problem question raises two issues for NRWIC the first is the fact that they were not consulted in relation to the proposed dumping of nuclear radioactive waste at the sight of the disused mine and the second that no public enquiry was held. We will deal first with the failure to consult the public and in particular NRWIC. The first thing to consider is the impact that the failure to consult had of the persons who should have been consulted and on the public at large, in light of the purpose which would have been served by consultation. In other words the test is whether the failure to consult has substantially detracted from the purpose which would have been served by consultation. The duty to consult interested organisations is laid down in the Radioactive Waste Substance Act although it is determined as bodes that the minister considers appropriate, supposing for a minute that it can be said that the minister should have considered that NRWIC were appropriate we will look at the effect of this failure to consult. In decided cases on legality of failure to undertake such statutory consultation, the analysis suggested by the courts ha traditionally focused on the classification of such requirements either mandatory or directory. Breach of a mandatory requirement will render the decision or act in question invalid and breach of the directory requirement will not. There appears to be no determinative tests for deciding when the test should be classified mandatory and which directory other than the language used was imperative or permissible. Breach of a requirement seen as a mandatory has led to a finding that the relevant decision was invalid were as breach of a directory requirement as left the act or decision standing, although compliance may be secured by other means, or damages obtained. In general, as Emery and Smythe note where statute imposes on a public body a duty to consult persons likely to be affected by proposed action, the requirement will usually be treated as mandatory. The courts have found in many cases that the use of the words such as the minister may consult or the the minister shall consult those bodies that he considers to be appropriate did not give him open-ended discretion on the matter, certainty remained elusive. The more recent approach when dealing with impact of the failure to consult was identified by Lord Diplock in Council of Civil Service Unions v Minister of the Civil Service, it can denote both failure to observe express procedural requirements and a breach of the common law rules of natural justice.

When dealing with the effects of failure to undertake statutory consultation, the courts have tended to classify such requirements as either mandatory or directory. Therefore the question is this: Has the failure to consult substantially detracted from the purpose served by consultation? Since dumping radioactive waste could have a huge impact on the local community, it can safely be argued that that at least one of the purposes of the consultation requirement is to allow local people to have some imput into the decision to dump radio active waste in their local vicinity. If it can be shown that the NRWIC s genuinely representative of local people, in that its membership is local, and the court considers that it could have provided a useful source of input for the ministers, it may find that refusal to consult with it defeated the purpose of the consultation requirement. The interests of the local people are likely to be seen as particularly significant given that it is radioactive waste that will be dumped in the vicinity and this is more likely to impact the public at large than any one individual. The language of the statue will not greatly assist the NRWIC but, it is submitted, will probably not be decisive: the wording implies a mandatory requirement in using the word shall, however in addition a subjective choice as to the bodies to be consulted seems to be imported by the words as it sees fit. In dealing with such discretionary choices, the courts have taken the view that the choice should be informed by notions of reasonableness and is not, therefore , purely subjective.

For example in Secretary of State for Education and Sceience v Tameside, a minister was given statutory power to take certain action against a local authority if satisfied it was acting unreasonably. The court held that he could only take action if he had grounds on which he could properly be so satisfied. On balance therefore it is submitted that the NRWIC could reasonably hope for a finding that there were no good grounds for the refusal to consult and it could therefore mean that the radioactive waste cannot be dumped in the disused mine. On the second point that is the decision not to hold a public inquiry. It is clear that judicial review is the appropriate mode of challenge to such decisions: as the applicants here will have no private law rights as against the government or indeed not any that could be vindicated in an ordinary civil action; moreover, r 54.2 of the CPR has now clarified that judicial review must be used where the applicant is seeking either a quashing order or mandatory order, which of course will be the remedy sought by NRWIC as they will require a mandatory order to enforce the issue of holding a public enquiry. Under r 54.4 of the CPR applications must initially seek the courts’ permission to apply for judicial review; this must be done promptly, and in any event not later than three months after the grounds to make the claim arose It will be assumed that the potential claimant here is within this time limit. NRWIC must show that they have a sufficient interest in the matter to which the application relations. NRWIC will be seeking an mandatory order to compel a public inquiry to be held. The standing required for this remedy was equated in the case of IRC ex parte National Federation of Self-Employed. In this case the House of Lords held that the National Federation did not have sufficient interest to challenge the legality of the IRC decision to grant amnesty to casual labourers over previous tax avoidance.

The fact that it had not personal interest in the IRC decision was decisive. However Lord Wilberforce seems to have been much influenced in his judgement b the fact that the affairs of an individual tax payer are strictly confidential; he considered that individuals would breach that principle of confidentiality. In the instance case this is not the case as there will be no breach of confidentiality and it may be therefore that the case of National Federation is not of strict application here. It can be further argued that the dumping of toxic waste is a matter for public concern and scrutiny. One difficulty here is the decision in Rose Theatre Trust Co in which it was held that the pressure groups whose only interest in a decision is concern about the issues involved will not in general have locus standi to challenge the decision. However, since the Rose Theatre decision, the courts have begun to take a more flexible and accommodating approach to the question of standing when a sufficiently important issues is raised by the application, such that the case is now generally regarded as being out of line with the general thrust of judicial policy. Thus, in Secretary of State for Foreign and Commonwealth Affairs ex perte Rees-Mogg, it was found that the applicant had standing because of his sincere concern for constitutional issue. In Secretary of State for Foreign Affairs ex parte the World Development Movement the world development movement were granted locus standi on the basis of a number of factors, including the importance of the issue raised the possibly illegal use of the government’s overseas aid budget), the absence of any other challenger and the prominence and expertise of the applicant pressure group in relation to the issues raised by the case. In other cases, the courts have stressed the importance of pressure groups representing people living in the area affected by the contested decision. Thus, in Inspectorate of Pollution ex parte Greenpeace, the judge stressed the fact that 2,500 supporters of Greenpeace lived in the local area, the health of whom might be affected by emissions from a nuclear plant; the court therefore found that members of the group had a personal interest in a matter of substantial concern – public health.

This would certainly be based on very similar facts to the present situation and it is submitted that on this basis NWRIC will have locus standi and in support of this is the case of Secretary of State for the Environment ex parte Friends of the Earth, in which Friends of the Earth and its director were granted leave to challenge a decision relating to the quality of drinking water in certain specified area, the fact that the director lived in one of those areas and hence had a personal local interest in the matter was stressed as significant. The expertise of the respective pressure groups as a factor in their favour was also emphasised in both cases. Thus, in cases involving decisions with a particular impact on one region or area of the county, the courts seem to stress the importance of pressure groups having a genuine interest in that area, via their membership. The pure public interest approach appears so far as to have been saved for cases where the decisions were of general national importance with no local interest. Applying these criteria to NWRIC, it would seem that there claim for standing is fairly strong as there challenge is mainly one of local interest, so the pure public interest approach is not really applicable the courts will therefore enquire whether the chairman and other members of the group have a local interest in the area. Furthermore the pressure group have expertise in the area of government waste and this would count in their favour. In conclusion it would seem that NWRIC and its chairman will be in a suitable position to challenge both the failure to consult and the decision not to hold a public enquiry and it is likely that they will succeed on both basis. Bibliography Cases Council of Civil Service Unions v Minister of the Civil Service [1984] 3 ALL ER 935 IRC ex parte National Federation of Self-Employed [1982] AC 617 Inspectorate of Pollution ex parte Greenpeace [1994] 4 ALL ER 329 Lambeth London Borough Council ex p Sharp (1986) 55 P & CR 232 O Reily v Mackman [1983] 2 AC 237 Secretary of State for Education and Sceience v Tameside [1977] AC 1014 Secretary of State for the Environment ex parte Friends of the Earth [1994] 2 CMLR 760 Secretary of State for the Environment ex parte Rose Theatre Trust Co [1990] 1 ALL ER 754 Secretary of State for Foreign Affairs ex parte the World Development Movement [1995] 1 ALL ER 611 Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg [1994] 1 ALL ER 457 Legislation Civil Procedure Rules 1988 Supreme Court Act 1981 Books Allen, M. and B. Thompson (2002) Cases and Materials on constitutional and Administrative Law. Oxford: Oxford University Press, seventh edition Barnet, H (2005) Constitutional and Administrative Law London: Cavendish, 2002 Fifth edition Craig, P.P. (2003), Administrative Law. London: Sweet & Maxwell, fifth edition Fordham, Michael (2001), Judicial Review Handbook Oxford: Hart third edition Loveland, I (2003) Constitutional Law, Administrative Law and Human Rights London: Butterworths third edition

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