Case no: CO/2248/2000
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of justice
Strand, London,
wc2a 2ll
Thurday 30th November 2000
THE HONOURABLE MR JUSTICE DYSONS
-------------------
CHANNEL TUNNEL GROUP LTD AND
FRANCE-MANCHE S.A.
Respondent
THE SECREATARY OF STATE FOR THE
ENVIRONMENT TRANSPORT AND THE
REGIONS
Applicant
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
STUART ISAACS QC (only for the Judgment) & CLIVE LEWIS (instructed by Mesrs Brachers, Maidstone, ME16 8JH for the Applicant)
JONATHAN CROW (instructed by the Treasury Solicitor for the Respondent)
____________________
Judgment
As Approved by the Court
Crown Copyright ©
Introduction
1. This is an application by the Channel Tunnel Group and Franche-Manche S A ("Eurotunnel") challenging the validity of two directions issued by the Secretary of State in connection with security at the Channel Tunnel. By Direction 15B/00 ("the X-ray Direction") made on 7 April 2000, Eurotunnel was required to install a new X-ray system. By direction 4B(2)/00 ("the Search Direction") made on 18 April 2000, Eurotunnel was required to increase the proportion of vehicles that were to undergo under-vehicle searches. These directions were purportedly made under The Channel Tunnel (Security) Order 1994 ("the Order"). Eurotunnel contends that the Secretary of State had no power to give such directions on the grounds that (a) directions made pursuant to the Order may not be imposed on Eurotunnel by one government acting unilaterally, and (b) the two directions with which this application is concerned were imposed unilaterally by the government of the United Kingdom.
The legislative framework
The Treaty of February 1986 between the United Kingdom and France
2. The Treaty concerns the construction and operation by concessionaires of the Channel fixed link. So far as material, it provides as follows:
"ARTICLE 5
Defence and Security
(1) Defence and security matters relating to the Fixed Link and the
implementation of the Treaty shall be the subject of special arrangements
between the two Governments. Such arrangements shall include
provisions for the free circulation throughout the Fixed Link of public
officials and other persons, so far as is necessary for the exercise of
their functions in relation to the defence and security of the Fixed Link,
and for the protection and assistance to be accorded to them.
(2) Such arrangements will provide for the designation by each
Government of the authorities empowered to take any decision
necessitated by the defence and security of the Fixed Link. The
authorities so designated by the two Governments, or their agents,
will so far as possible co-ordinate their activities within the frame-
work of such arrangements.
(3) The Concessionaires shall submit to the two Governments for
their approval any proposed designs, plans or arrangements affecting
the defence and security of the Fixed Link and the two Governments
shall agree a joint response to any such proposals.
(4) The Concessionaires shall, if required by the two Governments,
take measures necessary for the defence and security of the Fixed
Link. Save in exceptional circumstances of the kind envisaged in
Article 6, the two Governments shall consult each other before
requiring the Concessionaires to take such measures, and shall
act jointly.
ARTICLE 6
Exceptional Circumstances
(1) In the event of any exceptional circumstances, such as natural
disasters, acts of terrorism or armed conflict, or the threat thereof,
each Government, after consultation with the other if circumstances
permit, may take measures derogating from its obligations under
this Treaty, its supplementary Protocols and arrangements, or the
Concession.
......
ARTICLE 19
Arbitration
(1) An arbitral tribunal shall be constituted to settle:
(a) ....
(b) disputes between the Governments and the Concessionaires
relating to the Concession;
(c) ....
.........
(6) In order to resolve any disputes regarding the Concession, the
relevant provisions of the Treaty and the Concession shall be applied.
The rules of English law or the rules of French law may, as
appropriate, be applied when recourse to these rules is necessary
for the implementation of particular obligations under English
law or French law. In general recourse may also be had to the
relevant principles of international law, and if the parties in
dispute agree, to principles of equity."
The Concession Agreement dated 14 March 1986
3. The Concession Agreement has the legal status of a contract. It is made between the Secretary of State for Transport and Le Ministre de l'Urbanisme, du Logement et des Transports of the one part, and Eurotunnel of the other part. So far as material, it provides:
"Clause 15: Safety, Security and Frontier Controls
15.1 The Concessionaires shall comply with any requirements
which are made by either Principal or by the Intergovernmental
Commission and which are binding on them under applicable
laws and regulations concerning customs, immigration, security,
police, public health, veterinary, phyto-sanitary, transport or
road traffic controls, fire, ambulance or other emergency services,
as far as they directly relate to the construction and operation of
the Fixed Link.
....
15.3 The cost of complying with the requirements of each Principal
as specified in Clauses 15.1 and 15.2 shall be borne by the
Concessionaires or the relevant public authorities according to
the respective national practices of the Principal concerned .....
.....
Clause 23: Defence and Security of the Fixed Link
23.1 The Concessionaires shall submit to the Principals for their
approval any proposed designs, plans or arrangements affecting
the defence and security of the Fixed Link.
23.2 At the joint request of the Principals or at the request of
either Principal in the circumstances contemplated by Article 6
of the Treaty, the Concessionaires shall take such action as may
be required of them with respect to the defence and security of
the Fixed Link.
.....
Clause 40: Settlement of Disputes
40.1 Any dispute between the Concessionaires or either of them
and the Principals or either of them relating to this Agreement
shall be submitted to arbitration in accordance with the provisions
of Article 19 of the Treaty at the request of any party.
....
40.4 In accordance with Article 19(6) of the Treaty, in order to
resolve any disputes regarding the application of this Agreement,
the relevant provisions of the Treaty and of this Agreement shall
be applied. The rules of English law or the rules of the French
law may, as appropriate, be applied when recourse to those rules
is necessary for the implementation of particular obligations under
English law or French law. In general, recourse may also be had
to the relevant principles of international law and, if the parties
in dispute agree, to the principles of equity."
Special Arrangements
4. As has been seen, Article 5(1) of the Treaty contemplated that the two governments would make "special arrangements" in relation to security. By clause 6 of the bilateral agreement on security made on 14 February 1989, the two governments confirmed that "arrangements are being set up to give effect to the requirements for consultation and joint action as set out in Article 5 of the Treaty". Those arrangements consisted of the creation of the Joint Security Group, which was later replaced by the Joint Security Committee ("JSC") with effect from 21 May 1992. The terms of reference of the JSC in their most recent form are "to provide for discussions between the Principals and Eurotunnel..... on security". It meets once or twice a year. Its role is to advise the two governments.
5. A formal document entitled "Special Arrangements on Security Matters relating to the Channel Fixed Link" was signed by the two governments on 15 December 1993. So far as material, it provided:
"ARTICLE 1
(1) Each Government will designate the authorities or persons which,
in its territory, are empowered to take any decision necessitated by
the security of the Fixed Link.
....
ARTICLE 2
For the implementation of this Special Arrangement, permanent
arrangements will be established for concertation between the
responsible authorities of the two States, which will in particular
include:
- the regular holding of meetings to concert the activities of the
various authorities in the two States responsible for security,
police and frontier controls relating to the Fixed Link;
- the establishment of co-ordination with the Inter-governmental
Commission and, if necessary, informing and consulting the
Concessionaires and any other interested bodies.
....
ARTICLE 4
Without prejudice to the application of other international
agreements, and in compliance with the applicable national
laws, the responsible authorities and officials of the two
States will, to the fullest possible extent, co-operate, assist
one another and act in a concerted manner in discharging
their duties in relation to the security of the Fixed Link."
The Channel Tunnel Act 1987
6. So far as material, the Channel Tunnel Act ("the Act") provides:
"1 (1) The primary purpose of this Act is to provide for the
construction and operation of a tunnel rail link (together with
associated works, facilities and installations) under the English
Channel between the United Kingdom and France, in accordance
with -
(a) the Treaty .....
(b) the Concession ....
.....
11 (1) The appropriate Minister may by order make such provision
as appears to him to be necessary or expedient -
(a) for the purpose of implementing the international arrangements,
or enabling those arrangements to be implemented;
....
(c) in relation to the construction, operation or use of the tunnel
system or any part of the tunnel system, so far as relates to
activities carried on, persons employed or engaged in work,
things done or omitted or other matters arising anywhere
within the system (whether in England or France), including
in particular (without prejudice to the generality of the
preceding provision) provision with respect to controls in
relation to persons or goods within the system;
....
(e) with respect to controls in relation to persons or goods -
(i) on trains engaged on international services; or
(ii) at authorised terminal control points for such
services;
outside the tunnel system (whether in the United Kingdom
or elsewhere);
....
(g) for the purpose of dealing with any matters arising out
of or connected with any provision within the powers
conferred by any of paragraphs (a) to (f) above (whether
or not those matters arise within the tunnel system, on any
such train or at any such control point); or
(h) otherwise in relation to, or for regulating any matters
arising out of or connected with, the tunnel system."
7. The "international arrangements" referred to in section 11(1)(a) are defined in section 49 as meaning "(a) the Treaty and the Concession", and (b) any other agreements or arrangements between [the two governments] which for the time being apply for regulating any matters arising out of or connected with the tunnel system"
The Order
8. Part III of the Order deals with (among other things) the protection against acts of violence on Channel Tunnel trains, and on persons and property aboard such trains. Article 14 confers on the Secretary of State the power to require Eurotunnel to promote searches in the tunnel system. Article 16 confers on the Secretary of State a general power to issue directions for the purposes of Part III of the Order, i.e. security
9. By virtue of article 16(1)(b) and (2)(b), the Secretary of State may give a "direction in writing" to Eurotunnel "in respect of the tunnel system". Without prejudice to the generality of article 16(2), article 16(3) provides that a direction under article 16 may specify measures to be taken by Eurotunnel in relation to guarding the tunnel system, or persons or property (including trains) in any part of the tunnel system against acts of violence. Under article 16(4), a direction may be of a general or specific character, and may require any measures specified in the direction to be taken at such time or within such period as may be specified.
The Facts
10. Three methods of screening of vehicles are in use for security purposes. These are (a) the Euroscan X-ray machine, (b) trace detection and (c) under-vehicle video ("UVV") surveillance. A direction was issued requiring a certain percentage of freight and passenger vehicles to be screened. The precise percentage varied according to the perceived level of security risk.
11. In recent years, both governments have stated their concerns about the performance of the Euroscan X-ray machine. There has been much discussion within the JSC about both the Euroscan facility and what the minimum screening levels should be. It is unnecessary to go into the details. These concerns have heightened since 1998.
12. At a meeting of the JSC on 16 December 1998, the UK government said that it considered that a new X-ray would provide an acceptable solution. The representative of the French government said that he:
" recognised that the situation in the UK was different to that faced
on the French side and the need for the UK to take a decision
quickly. The French were not experiencing the same difficulties
with Euroscan and expected its operation to continue for some
time. They therefore did not need to take an immediate decision.
The French use Euroscan as part of its screening package which
also included the use of dogs."
13. The topic was revisited at the meeting on 22 June 1999. Again, the French Delegation said that they could not recommend that their government ask Eurotunnel to put in a new X-ray system. The crucial meeting of the JSC for present purposes was that held on 2 March 2000. At this meeting, Dr Gillan, who was representing the Secretary of State, told the committee that the UVV was now in place at the UK terminal, and that the UK required a percentage of passenger vehicles (which he specified) to be screened in this way in future. The French response was to make a number of comments about the UVV, but they raised no objection to this UK requirement. So far as freight screening was concerned, the French Government were informed that:
"because of [Eurotunnel's] slow progress and the serious situation
with the condition of the present equipment, the UK was about to
Direct (in April) Eurotunnel to put in place a new X-ray with the
support of RASCO...The new X-ray will be required to be in place
by 2001. Ionscan would continue to be used for trace detection in
the interim. M Francois informed the committee that in France they
were using dogs as a backup to Euroscan."
Dr Gillan says in his statement that the French response did not indicate any opposition to the proposed Direction.
14. Thus it was that the two Directions were issued in April 2000. On 10 May, Eurotunnel served an objection under article 20 of the Treaty in respect of the X-ray Direction. On 28 June, and before the objection had been determined, Eurotunnel wrote to the United Kingdom government, stating that, if the date for compliance with the direction was postponed until 30 November 2001 (as had been suggested by Dr Gillan), it would be willing to withdraw the objection. On the same day, Dr Gillan replied saying that he had arranged for a Variation Direction to be issued. On 14 July, a determination was issued upholding the X-ray Direction, subject to the agreed modification of the date for its implementation. Despite this outcome, however, Eurotunnel still wishes to challenge the lawfulness of the two Directions, since it wishes the court to determine the point of principle that arises.
The issue
15. The issue for me is whether, as Eurotunnel contend, the two Directions were ultra vires section 11 of the Act. This issue gives rise to a number of questions that have been raised before me. They may conveniently be classified under the following heads:
(a) does the Secretary of State have the power to issue Directions in relation to the security of the tunnel otherwise than for the purpose of implementing, or enabling the implementation of, the "international arrangements" as defined by section 49 of the Act? If yes, then this application must fail. If no, then
(b) Should I nevertheless, in the exercise of my discretion, refuse to grant relief to Eurotunnel, on the grounds that it is inappropriate for me to decide questions as to the proper interpretation of the Treaty and the Concession?
(c) If I decide to determine the issues of interpretation raised, were the Directions issued by the Secretary of State made for the purpose of implementing, or enabling the implementation, of the international arrangements?
The First Question
16. It is common ground that the Directions were issued pursuant to the powers conferred on the Secretary of State by section 11 of the Act. As a matter of form, they were issued pursuant to the Order, but the Order itself was made under the powers given by section 11.
17. Mr Crow submits that, section 1(1) of the Act states that the "primary purpose" of the Act is to provide for the construction and operation of the tunnel "in accordance with the Treaty and the Concession". It does not say that this is its only purpose. He draws attention to the other paragraphs of section 11(1), some of which I have already set out. The exercise of those other powers is not circumscribed by the provisions of the Treaty or the Concession. Under those provisions, the Secretary of State is at liberty to make orders under section 11 connected with the tunnel, whether or not they involve the implementation of the Treaty or the Concession. Mr Crow refers to R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696, 747E-748F, and submits that, since the Treaty has not been incorporated into domestic law, it cannot give rise to any enforceable rights under domestic law. The Secretary of State, therefore, has a discretion whether or not to exercise the power conferred by section 11 in accordance with the Treaty. If he chooses not to exercise it in accordance with the Treaty, that is something that he may lawfully do.
18. I cannot accept Mr Crow's argument. In the passage in ex parte Brind that is relied on by Mr Crow, Lord Bridge said the following at page 748C:
"When confronted with a simple choice between two possible
interpretations of some specific statutory provision, the presumption
whereby the courts prefer that which avoids conflict between our domestic
legislation and our international treaty obligations is a mere
canon of construction which involves no importation of international
law into the domestic field. But where Parliament has conferred
on the executive an administrative discretion without indicating the
precise limits within which it must be exercised, to presume that
it must be exercised within Convention limits would be to go far
beyond the resolution of an ambiguity. It would be to impute to
Parliament an intention not only that the executive should exercise
the discretion in conformity with the Convention, but also that the
domestic courts should enforce that conformity by the importation
into domestic administrative law of the text of the Convention
and the jurisprudence of the European Court of Human Rights
in the interpretation and application of it" (emphasis added).
19. In my view, the Act clearly does indicate the limits within which the discretion should be exercised in relation to matters which are dealt with by the international arrangements. The discretion must be exercised so as to achieve the implementation of those arrangements. I accept the submission of Mr Isaacs QC that, where the Treaty or the Concession have made express provisions in relation to security, then the power conferred by section 11(1) of the Act to make the Order, and to issue directions pursuant to the Order in relation to security, cannot be exercised inconsistently with the provisions of the Treaty or the Concession.
20. If the Act had made no reference to the "international arrangements", then the situation would be comparable to that in ex parte Brind, and the Secretary of State would have been entirely free to exercise the powers conferred by section 11 in whatever way he thought necessary or expedient, subject only to a possible challenge on grounds of perversity. But that is not this case. It is quite clear that the implementation of the Treaty and the Concession was uppermost in the mind of Parliament when the Act was passed: see section 1(1) and 11(1)(a). In the opening section of the Act, there is the clearest statement that its primary purpose is to provide for the construction and operation of the tunnel "in accordance with" the Treaty and the Concession. In those circumstances, it is not surprising that when we reach section 11, we find that the first of the purposes for which an order may be made is the implementation of the international arrangements. It is true that there then follows a list of purposes which are not circumscribed by reference to the international arrangements. It is not surprising that Parliament decided to give the Secretary of State power to give directions in relation to matters pertaining to the construction or operation of the tunnel which were not covered by the international arrangements. It is likely that not all the elements of the construction or operation of the tunnel would be covered by those arrangements. But in my view, in relation to matters which were dealt with by those arrangements, Parliament did not intend to empower the Secretary of State to give directions which would undermine or conflict with them.
The second question: discretion
21. In his skeleton argument, Mr Crow advances a number of reasons why, regardless of the merits of the arguments, I should refuse to exercise my discretion to grant relief to Eurotunnel. In the course of his oral argument, he concentrated on one, and it is convenient that I should deal with it at this stage. He points out that article 19(1) of the Treaty is an arbitration clause which governs the resolution of disputes between the Governments and Eurotunnel: see clause 40 of the Concession. Article 19(6) provides that the rules of English or French law "may, as appropriate, be applied when recourse to these rules is necessary"; but recourse may also be had to the relevant principles of international law, and, if the parties agree, to "principles of equity". Mr Crow submits that it is inappropriate for an English court to resolve disputes as to the meaning of the Treaty and the Concession. An English court is not the correct forum to apply the principles of law specified in Article 19(6), which are replicated in clause 40.4 of the Concession. Moreover, Mr Crow contends that, even without the arbitration clause, it would be inappropriate for me to resolve an issue as to the interpretation of an international agreement in these proceedings. Since the French government is also a party to the Treaty and the Concession, it is inappropriate for the rights and liabilities of the parties to be resolved in public law proceedings to which the French government is not a party. Mr Crow submits that the correct way for Eurotunnel to raise the issues of interpretation that it wishes to raise is by reference to arbitration.
22. At first sight, I was tempted to accept these submissions. But on reflection, I consider that it would be wrong to do so. As Mr Isaacs points out, the question that is raised in these proceedings is whether the two Directions were issued ultra vires the Act, which is part of English law. That question is one of domestic law, although it involves considering an issue of the true interpretation of international instruments. The question whether the Directions were ultra vires obviously cannot be referred to arbitration under Article 19 of the Treaty.
23. Mr Isaacs drew my attention to R v Secretary of State for the Home Department, ex parte Adan [1999] 3 WLR 1274. That case concerned a provision in domestic legislation (the Asylum and Immigration Act 1996) which provided that the Secretary of State could issue certificates authorising the return of asylum-seekers to "safe" third countries where their claims would be determined "in accordance with the [Geneva] Convention". The issue for the court was whether the practice of the third country in question (Germany) was consistent with the Convention's "true or international" interpretation. The Court of Appeal considered whether it was appropriate for an English court to decide the question of interpretation. At page 1295H, the court said:
"....In Iyadurai's case [1998] Imm.A.R. 470,473 Lord Woolf M.R.
(in a passage we have already set out), citing Kerrouche's case
[1997] Imm AR 610, referred to "the absence of some supranational
court which is capable of giving authoritive interpretations to the
provisions of the Convention and Protocol which are binding on
the signatory countries." That being the position, if the Secretary
of State gives a certificate in any case where the scope of article
1A(2) is in question, the courts of this country have no choice but
to arrive at an authoritative interpretation themselves. If they did
not do so, they would abrogate their elementary responsibility to
supervise the Secretary of State's decisions for error of law: their
duty here is the same as where the Secretary of State's appreciation
of purely municipal provisions is in question. It is true that article
38 of the Convention provides for references to be made to the
International Court of Justice at the Hague. We understand that
no such reference has ever been made. In any event it seems clear
that (in contrast to the position under article 234, formerly 177
of the E.C. Treaty (O.J. 1992 C.224, p.6) in relation to the law
of the European Union) the court has no power itself to refer,
whether at the request of a party or of its own motion. In these
circumstances our courts are bound to find the true interpretation
of article 1A(2) for themselves, and to apply it in the exercise of
their supervisory jurisdiction of decisions arrived at by the Secretary
of State touching section 2(2)(c) of the Act of 1996."
24. Mr Crow points out that the court appears to have been influenced by the fact that there was no supranational court capable of giving authoritative interpretations, whereas in the present case, there is provision for arbitration. But the decision of an arbitral panel appointed to determine a particular dispute on an ad hoc basis can hardly be said to be analogous to, or as authoritative as, that of a supranational court, such as, for example, the European Court of Justice or the European Court of Human Rights. The significance of ex parte Adan for present purposes is that it is an example of an English court deciding for itself the true meaning of an international instrument. What is particularly striking about that case is that there were two schools of thought as to the interpretation of the Convention in relation to persecution by non-state agents. Some signatories to the Convention applied one interpretation, and others applied a different approach. The court decided for itself the true meaning of the relevant provision in the Convention.
25. In my judgment, it would be wrong to refuse to decide the questions of interpretation of the Treaty and the Concession that have been raised. As Mr Isaacs points out, failure to comply with the Directions has potentially serious consequences for Eurotunnel. Article 16(7) of the Order provides that failure to comply with a direction without reasonable cause is a criminal offence. Thus if Eurotunnel failed without reasonable cause to comply with either of the two Directions that were issued in April, it could be prosecuted. In criminal proceedings, it would be open to Eurotunnel to raise the ultra vires point as a defence: see Boddington v British Transport Police [1999] 2 AC 143. There can be no doubt that, if that were to occur, the criminal court (almost certainly a magistrates' court) would have to determine the point, and that would involve deciding the very disputed question as to the proper meaning of the Treaty and the Concession that Mr Crow submits that I should refuse to decide.
26. I have no doubt that I should decide the point. The issues of construction have been fully argued before me. Neither counsel has suggested that there are, or may be, principles of French or international law which are relevant to the construction points at issue. Both counsel have approached the question of construction on the same basis. Mr Crow has not suggested that an arbitral panel would be likely to have skills and experience that would make it peculiarly well placed to resolve the issues of interpretation. I was at one stage concerned about the fact that the French government is not a party to these proceedings, and will, therefore not be bound by the decision. But I am told that they are aware of these proceedings. The French government, knowing of the proceedings, did not apply to be joined as a party, or to have the proceedings stayed pending arbitration. In these circumstances, I do not consider that the absence of the French government from the proceedings is a reason for not deciding the issue of construction that arises. It is to that issue that I now turn.
The question of construction
27. At the heart of the dispute between the parties is the true meaning of Article 5(4) of the Treaty and clause 23(2) of the Concession. Mr Isaacs submits that, save in the exceptional circumstances to which Article 6 refers, the United Kingdom government may only require Eurotunnel to take security and defence measures if it has consulted the French government and the measures have been agreed between them. He does not contend that the instructions issued to Eurotunnel must be jointly issued by the two governments. But he argues that instructions may not be issued unless there has been prior consultation and agreement of the content of the subject matter of the instructions. The agreement need not take any particular form, but there must be some evidence of a "positive" act to indicate some outward expression of agreement: mere acquiescence by one government in response to a proposal by the other will not suffice.
28. Mr Crow accepts that the Treaty and the Concession require that, unless Article 6 applies, there must be prior consultation between the governments before instructions are issued. He submits that the governments are required to co-operate and co-ordinate their security measures, but there is no obligation to agree the measures as a precondition to the issuing of instructions to Eurotunnel.
29. I think that it is not disputed that, in order to determine the true meaning of Article 5(4) of the Treaty and clause 23(2) of the Concession, it is permissible to look at other provisions of those instruments, and at the Special Arrangements which the Governments made, as contemplated by Article 5(1) of the Treaty.
30. If consideration were confined to Article 5(4) and Clause 23(2), there would be much to be said for the argument that the instructions must themselves be joint instructions. The natural interpretation of the words in Clause 23(2) "at the joint request of the Principals or at the request of either Principal in the circumstances contemplated by Article 6 of the Treaty" is that instructions must be the joint instructions of the two governments unless Article 6 applies. The words "if required by the two Governments" in Article 5(4) are more equivocal, since they could be disjunctive: i.e. "if required by [either of] the two Governments". But Mr Isaacs does not contend that the instructions must be joint. He submits that they may be issued by either government acting alone, provided that it has previously consulted with and obtained the prior agreement of the other government.
31. In order to give effect to the requirement for consultation and joint action stated in Article 5(4) of the Treaty, a number of steps were taken by the two governments. The bi-lateral agreement of February 1989 stated (paragraph 6): "The two governments confirm that arrangements are being set up to give effect to the requirements of consultation and joint action as set out in Article 5 of the Treaty". Dr Gillan explains in his statement that these "arrangements" were given concrete expression by the creation of the JSC. It is this body through which the requirement of consultation and joint action in relation to security and defence is met. As we have seen, the terms of reference of the JSC are to provide for discussions between the governments and Eurotunnel on security. At the first meeting of the newly constituted JSC on 18 June 1992, it was stated that the committee "would act in an advisory capacity only, and would have no power to take decisions on security arrangements; such decisions remained for the two governments....the committee would provide a useful forum for mutual exchange of information".
32. I have already referred to the Special Arrangements document that was signed on 15 December 1993. The requirement in Article 2 of that document for "permanent arrangements...for concertation...including the regular holding of meetings.." was met by continuing and formalising the structure of the JSC.
33. Dr Gillan summarises the way in which the question of consultation and joint action has in fact been worked out by the two governments as follows:
"28. It can be seen by reference to the legislative framework and the
relevant bi-national agreements and documentary evidence outlined
above that it was always the intention of the two governments to
ensure that measures on both sides of the Tunnel were comparable
and provided for equivalent levels of security - hence the provision
for joint action and joint agreement in the Treaty - but that the
operational implementation and enforcement of the joint arrangements
made pursuant to the Treaty were matters for the two governments
separately, in accordance with their established security practices.
This included the manner in which security requirements were enacted:
thus in the UK, where the government specifies security and the industry
provides it, provision was made in the 1994 Order for legally binding
Directions to be served on the Channel Tunnel businesses. In France,
where the state provides security, there was no need to put in place
any such legislation.
29. It is equally clear from minutes of discussions between the two
governments under the special arrangements set up to deal with
security matters that the precise format and detail of UK Directions
(and French arrangements for security of the Tunnel), as opposed to
the security principles behind them, were not regarded as matters for
joint agreement between the two governments. Nonetheless, each
government has always notified the other of measures taken to meet
its Treaty and other obligations.
30. It has never been the understanding of either Government that the
same measures have to be adopted at both ends of the tunnel in order
to comply with the requirement of joint action. Where at paragraph 5
of the Bilateral Agreement on Security it is stated that it is indispensable
to maintain the same level of security in both countries, this refers to
the overall quality and level of security afforded by sometimes different
measures adopted at both ends of the tunnel.
31. The JSC has on a number of occasions affirmed this to be the position.
In its meeting on 16 December 1998, the Committee agreed (at paragraph
2 of the minutes) that:
[O]n the question of a joint recommendation to respective
Ministers [in relation to HGV screening] this did not nec-
essarily have to provide the same solution but needed to
be acceptable to both Governments.
32. This also of course illustrates the practice of joint action referred to
above. In relation to the concerns about HGV screening the need to adopt
different measures is accepted (see paragraph 6 of the minutes of 16
December 1998 minutes). In the most recent meeting of the JSC, on
2 March 2000, where the 2 Directions under challenge were discussed,
the ability of both Governments to act separately was again affirmed
where the French representative said (at paragraph 20 of the minutes)
that:
the only real need was for both Governments to work in
a similar way but this did not necessarily mean applying
exactly the same measures."
34. I now return to Article 5(4) of the Treaty and Clause 23(2) of the Concession. It is clear that, save in exceptional circumstances and where consultation is not possible, the governments are required to consult with each other before a request for security measures may be made to Eurotunnel. That, I believe, is common ground. In my view, they are also required to do something more than merely consult with each other. It seems to me that the natural meaning of Article 5(4) is that it provides for two stages. Stage one requires the governments to consult with each other over the proposal to require Eurotunnel to take the security measures. Stage two is the stage at which those measures are "required" to be taken. It is the two governments that are empowered to require the measures to be taken: "the two governments shall consult with each other before requiring the Concessionaires to take such measures". The words "and shall act jointly" come at the end of Article 5(4) i.e. after reference has been made to both stages. In requiring the measures to be taken under Article 5(4), the two governments are acting jointly. The language of Article 5(4) itself makes it clear that the requiring of the measures to be taken is something different from the consultation that precedes it. In any event, Article 5(4) apart, consultation is different from requiring something to be done. If A consults B on a proposed course of action, and B disagrees with what A has proposed, there has been a consultation. But if A goes ahead with his proposal despite B's disagreement, it is impossible to say that it is a joint proposal, or joint action, or that both A and B have required the measures proposed by A to be taken.
35. The contrast between Articles 5(4) and 6 also makes it clear that "joint action" is something different from consultation. Article 5(4) speaks of "joint action". But where the circumstances are exceptional, "each" government may act on its own and take measures derogating from its Treaty and other relevant obligations after consultation if circumstances permit. Thus, when Article 6 applies, each government may act unilaterally, and there is no joint action. Article 5(4) is dealing with the two governments jointly requiring measures to be taken after consultation. Article 6 is dealing with one government acting on its own to require measures to be taken, and (if circumstances permit), after consulting the other.
36. This interpretation of Article 5(4) is supported by Clause 23(2) of the Concession. Here the contrast between the joint action referred to in Article 5(4) and the unilateral action referred to in Article 6 is reflected respectively by "joint request" and "at the request of either Principal". Here too, if all that was required of one government was that it should consult with the other, I think that different language would have been used.
37. At this stage, I need to mention Mr Crow's arguments. He relies on Clause 15.1 of the Concession, which provides that Eurotunnel is required to comply inter alia with security requirements made by either government or the Intergovernmental Commission under applicable laws and regulations. He submits that there is no question of this obligation being conditional on the requirements being made jointly by the two governments. I do not think that Clause 15.1 (or Article 13(2), its counterpart in the Treaty) sheds any light on the true meaning of Clause 23.(2) of the Concession or Article 5(4) of the Treaty. In my view, Clause 15.1 and Article 13(2) do not entitle either government to make a request of Eurotunnel which is not authorised by Article 5(4) or Clause 23(2) respectively. The question, therefore, remains whether a particular requirement is or is not authorised by those provisions. The answer to that question lies in an examination of those provisions, and not in an examination of the general language of Clause 15.1.
38. Next, Mr Crow refers to Article 5(2) of the Treaty and points out that this contemplates decisions being taken by each government, and requires nothing more than the co-ordination of their activities "so far as possible". Article 5(2) is dealing with the special arrangements. It is true that this provision imposes an obligation on the two governments to co-ordinate their activities "within the framework" of the special arrangements. As we have seen, the special arrangements imposed obligations of co-operation, concertation etc, and Mr Crow also relies on these in support of his argument. But that is not to say that these were the only obligations. There is nothing in Article 5(2) that is inconsistent with interpreting Article 5(4) as providing that security measures must be the subject of joint requirement by the two governments.
39. In short, Mr Crow submits that all that Article 5(4) and Clause 23(2) require is that the relevant authorities should consult with each other in relation to security matters (as they do through the JSC), and act in co-operation with each other in determining security issues. For the reasons that I have attempted to give, I consider that Article 5(4) of the Treaty and Clause 23(2) of the Concession require more than mere consultation and co-ordination. Unless there are exceptional circumstances such as those mentioned in Article 6, the measures that Eurotunnel is required to take must be agreed by both governments. I do not find it surprising that the governments should have made such an agreement. They do, after all, have a joint interest in the security of the tunnel. I note that Dr Gillan states that each government has always notified the other of measures taken to meet its Treaty and other obligations. The substance of the two directions with which I am concerned was communicated by the UK government to the French government for comment. That was required pursuant to the duty to consult. No doubt, the French authorities would not positively object to the proposals unless for good reason. In that event, unless Article 6 of the Treaty could be invoked, and in the absence of agreement, the dispute would have to be referred to arbitration. So far as I am aware, this has never happened, doubtless because (as they are required to do by the Special Arrangements) the parties have co-operated with each other to find solutions to any problems that have arisen.
40. I now need to determine what is sufficient to amount to a joint requirement or agreed measures within the meaning of Article 5(4) and Clause 23(2). Mr Isaacs contends that there must be some overt act evidencing "positive" agreement between the two governments. Mere non-objection is not enough. I do not agree. In my view, in the context of this Treaty and the Concession as they have been worked out by the two governments, it is sufficient for the purposes of Article 5(4) and Clause 23(2) that the consultee government does not object to what is proposed by the government that is making the proposal. The international arrangements do not stipulate what form of consent is required, and it would have been remarkable if they had done so. The purpose of the consultation is to enable one government to propose to the other what measures it wishes Eurotunnel to be instructed to take. Take the instant case. The UK government consulted the French government in relation to its proposal to require Eurotunnel to take the measures that ultimately became the Search Direction and the X-ray Direction. It is not in dispute that the French government did not object to Eurotunnel being requested to take those measures by the UK government. But it did not positively agree to the request being made. Mr Isaacs contends that without some positive act evidencing the agreement, there cannot be a joint act, and Article 5(4) and Clause 23(2) require a joint act. If the French government had stated in terms that it agreed that the UK government could or should request Eurotunnel to take the security measures, then, as I understand it, Mr Isaacs would accept that the Directions would have been lawful.
41. Unless compelled to do so, I would be most reluctant to decide the ultra vires issue on a point which depends on such a fine distinction. In substance, there is no difference between the French government (a) positively agreeing to the issue of the Directions, and (b) not objecting when it is consulted and has the opportunity to object. There are some contexts in which the difference between positive assent and non-objection is important. But the present context is not one of them. This is particularly so because, as Dr Gillan says, "the precise format and detail of UK Directions (and French arrangements for security of the Tunnel), as opposed to the security principles behind them, were not regarded as matters for joint agreement between the two governments". The two governments did not consider that they had to adopt the same security measures, although they did consider it necessary to seek to achieve the same level of security.
42. The joint act is the request to Eurotunnel that it takes the security measures. It is joint because it is an agreed act. That act must, of course, be something positive. But I see no reason why the agreement by the consultee government to the act needs to be communicated to the consulting government in any particular way.
Were the Directions ultra vires?
43. I can now answer this question very shortly. It is true that the French government did not see the text of the proposed directions, but they were told about their content. Mr Noulton says that Dr Gillan told him that, "if he had to seek French agreement to the Directions, he would not be able to get it". In his second statement, Dr Gillan says that he does not recall the exact words that he used, but the sense of what he was saying was that:
"...since the French do not themselves rely on directions or
anything comparable, it would baffle them if I were to seek
their consent on this occasion. The French have always taken
the view that directions are a purely UK matter, and they have
no mechanism for considering or consenting to the content
of any such directions".
44. I have already mentioned the crucial meeting of 2 March 2000. The French authorities had the opportunity to object to the proposed Directions, but did not do so. In my judgment, for the reasons that I have given earlier, that was a sufficient indication of consent to what the UK government proposed to constitute the Directions that were issued as a joint act within the meaning of Article 5(4) of the Treaty and Clause 23(2) of the Concession.
45. It follows that the Directions were not ultra vires the Order, and this application must be dismissed.