QUEEN'S BENCH DIVISION
B e f o r e :
|THE QUEEN ON THE APPLICATION OF GREENPEACE LIMITED||Claimant|
|SECRETARY OF STATE FOR TRADE AND INDUSTRY||Defendant|
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MR RICHARD DRABBLE QC and MR DAVID FORSDICK (instructed by Treasury Solicitor) appeared on behalf of the Defendant
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MR JUSTICE SULLIVAN:
The evolution of energy policy
"Nuclear power offers a zero carbon source of electricity on a scale, which, for each plant, is larger than that of any other option. If existing approaches both to low carbon electricity generation and energy security prove difficult to pursue cheaply, then the case for using nuclear would be strengthened.
Nuclear power seems likely to remain more expensive than fossil fuelled generation, though current development work could produce a new generation of reactors in 15-20 years that are more competitive than those available today. Because nuclear is a mature technology within a well established global industry, there is no current case for further government support. ...
The main focus of public concern about nuclear power is on the unsolved problem of long-term nuclear waste disposal, coupled about perceptions about the vulnerability of nuclear power plants to accidents and attack. Any move by government to advance the use of nuclear power as a means of providing a low carbon and indigenous source of electricity would need to carry widespread public acceptance, which would be more likely if progress could be made in dealing with the problem of waste."
"2.1 We would welcome views and comments on any or all of the following questions. These to a large extent derive from the PIU report and the policy objectives it describes. Links to the relevant sections of the PIU report and other documents are provided at the end of each section. In submitting views, respondents are urged to consider carefully the interactions between economic, environmental, security and social issues including the implications for the costs for consumers of their suggestions. The PIU's view was that it is vital to maintain adequate levels of energy security at all points in time. They also proposed that where energy policy decisions involve trade-offs between environmental and other objectives, then environmental objectives will tend to take preference over economic and social objectives and that this should be reflected in a redefinition of DTI's energy policy objective so that it might become 'the pursuit of secure and competitively priced means of meeting our energy needs, subject to the achievement of an environmentally sustainable energy system'.
2.2 We hope that those responding to these issues will as far as possible seek to reconcile conflicting priorities and cover all relevant crosscutting aspects such as innovation.
2.3 Many of the issues raised also have an international dimension, for example, security of supply and innovation. Respondents are invited to consider these when replying to this document.
2.4 We are primarily concerned about decisions that we need to take over the next few years but these will have to be taken in the context of possible developments up to 2020 and beyond. Respondents are therefore asked to take into account the longer-term context when replying to questions: for example, whether decisions taken in the next few years would affect the UK's capacity to achieve carbon emissions reductions of the scale suggested by the RCEP (which proposed that the Government should adopt a strategy to put the UK on a path to reducing carbon dioxide emissions by some 60% from current levels by about 2050)."
"The PIU recommended keeping the nuclear option open. How confident can we be that other low carbon options will be reliably available, in sufficient time and sufficient quantity, to ensure that we can continue on a path of reducing our carbon emissions as most existing nuclear stations close over the next 20 years? What steps would be necessary to 'keep open the nuclear option' in particular in terms of Research and Development, and sustaining the skills base? (In parallel the Government is consulting about handling the treatment of waste which is referred to in the links overleaf. The DTI will also be publishing a White Paper later in the year on the management of the nuclear legacy.) What minimum lead times should we realistically assume in keeping options open for the future? To what extent should industry's costs be internalised? What regulatory and/or other changes might be desirable to reduce the risk and uncertainty for investors? What would be the costs and the consequent impacts on prices and on carbon?"
Consultees were referred to the paragraphs in the PIU Report, and to other relevant reports.
"The Government's aim is that the consultation process should be as open and inclusive as possible. We believe that it is essential that we have people's views and inputs as we develop our energy policy."
"A large number of respondents commented on nuclear waste. Several considered it to be the key issue affecting new build. Some argued that there should be no new build until the waste issue is resolved. ... A key theme throughout was the need for public and stakeholder confidence in a nuclear waste management solution, and for proper consultation."
"Although nuclear power produces no carbon dioxide, its current economics make new nuclear build an unattractive option and there are important issues of nuclear waste to be resolved. Against this background, we conclude it is right to concentrate our efforts on energy efficiency and renewables. We do not, therefore, propose to support new nuclear build now. But we will keep the option open."
"4.67 As chapter 1 makes clear, our priority is to strengthen the contribution that energy efficiency and renewable energy sources make to meeting our carbon commitment. We believe that such ambitious progress is achievable, but uncertainties remain.
4.68 While nuclear power is currently an important source of carbon free electricity, the current economics of nuclear power make it an unattractive option for new generating capacity and there are also important issues for nuclear waste to be resolved. This white paper does not contain proposals for building new nuclear power stations. However, we do not rule out the possibility that at some point in the future new nuclear build might be necessary if we are to meet our carbon targets. Before any decision to proceed with the building of new nuclear power stations, there would need to be the fullest public consultation and the publication of a white paper setting out the Government's proposals." (emphasis as in the original)
"We are genuinely open-minded and there is no pre-determined outcome of this work. We will, of course, examine the question of civil nuclear power as well as emerging technologies like carbon capture and storage, wave and tidal energy and many other aspects. This is not a nuclear review; it is an energy review. The review will be objective and thorough, and I very much look forward to committed help and advice in securing a long-term and lasting energy sector."
"I can today announce that we have established a review of the UK's progress against the medium and long-term Energy White Paper goals. The Energy Minister Malcolm Wicks will be in the lead, with the aim of publishing a policy statement on energy in the early summer of 2006. It will include specifically the issue of whether we facilitate the development of a new generation of nuclear power stations."
"The Government will review the UK's progress against the medium and long-term Energy White Paper goals and the options for further steps to achieve them. The aim will be to bring forward proposals on energy policy next year. The Review will be informed by analysis and options drawn up by a Review team led by myself. This will be a team of Officials drawn from key relevant Departments and my right hon. Friend the Prime Minister's Strategy Unit. In drawing up the analysis and options, I will undertake extensive public and stake holder consultation. The Review will be taken forward in the context of the Government's commitment to sound public finances and will take account of all short-term, medium-term and long-term costs and liabilities both to the taxpayer and energy user. The Review team will report to my right hon. Friend the Prime Minister and my right hon. Friend the Secretary of State for Trade and Industry in early summer."
"Q6 Chairman: The 2006 Energy White Paper was a much more extensive process, with lengthy consultation, committees of experts, a much more open and time-consuming process. Why do you think a team of civil servants, for whom I have the highest personal regard of course, working to a much tighter timetable can do as good a job as that last process?
Alan Johnson: Because it is not a 2006 Energy White Paper. It is a review, building on lots of the analysis and the information that guided the 2003 White Paper, lots of analysis which has come since. We are not trying to recreate the 2003 White Paper. Indeed, as I said in my opening statement, we are taking forward the policy which was set out in 2003 and it is useful to have a review to look at that again and, yes, whereas in 2003 we could leave the door ajar on nuclear, I believe that now, as part of this review, we have to decide whether to close it or open it.
Q7 Chairman: What will the output be from this new process? What will you actually do at the end of it?
Alan Johnson: Produce proposals.
Q8 Chairman: In what form?
Alan Johnson: I do not know what form yet. We said in 2003 that if we were to go down the nuclear route, we would publish another White Paper, so if we were going to go down that route, we would need to keep that promise that we made in 2003. If we are not going down that route, then there will not be a need for a White Paper in that context. We should have to see the result of the review and it is a very sensible process to take. Let us see what conclusions emerge, what proposals we shall be making and let us then decide whether that needs to have a White Paper, Green Paper, another form of consultation."
"This consultation seeks views on the medium and long-term energy policy issues to be considered in the Energy Review.
In the 2003 Energy White Paper 'Our energy future creating a low carbon economy' the government set out its goals and long-term framework for energy policy. The Energy Review will assess progress against these goals and the options for further steps to achieve them. The Review has a broad scope and will consider aspects of both energy supply and demand focussing on policy measures for the medium and long term."
"The Review will assess options on both the supply and demand side for energy. It will look at the prospects both for existing and new low carbon technologies, and for more aggressive uptake of energy efficiency measures. It will examine the potential contribution of carbon sequestration to allowing continuing access to the world's coal and other fossil fuel resources. The Review will look at issues relating to innovation and skills in these areas, where required.
In this context the Review will look again at the role of nuclear electricity generation. Nuclear currently provides around 20% of the country's electricity needs, but most of our existing nuclear power stations are scheduled to close over the coming twenty years or so. The 2003 Energy White Paper recognised that replacement nuclear build might be necessary if we are to meet our carbon targets, but concluded that its then current economics made it unattractive and that there were also important issues of nuclear waste to be resolved. The Review will examine whether recent changes in energy prices have changed that assessment and at the other issues that would be raised by building new nuclear power stations. These other issues include all the characteristics of nuclear, including its creation of long-term liabilities such as nuclear waste; and how these liabilities should be managed and paid for.
The government is clear that, in making important decisions about energy policy including nuclear power, there should be the fullest public consultation. This consultation paper is part of that process. The government is not at this stage bringing forward policy proposals."
"This consultation invites comments on the full range of issues it identifies, taking into account all the circumstances surrounding UK energy policy. These circumstances include the need to avoid damaging our competitiveness and prosperity and to take into account the impact of any proposals in terms of costs and contingent liabilities for government.
The key issues on which it may be useful to focus can be summarised as follows:
Q.1. What more could the government do on the demand or supply side for energy to ensure that the UK's long-term goal of reducing carbon emissions is met?
Q.2. With the UK becoming a net energy importer and with big investments to be made over the next twenty years in generating capacity and networks, what further steps, if any, should the government take to develop our market framework for delivering reliable energy supplies? In particular, we invite views on the implications of increased dependence on gas imports.
Q.3. The Energy White Paper left open the option of nuclear new build. Are there particular considerations that should apply to nuclear as the government re-examines the issues bearing on new build, including long-term liabilities and waste management? If so, what are these, and how should the government address them?
Q.4. Are there particular considerations that should apply to carbon abatement and other low-carbon technologies?
Q.5 What further steps should be taken towards meeting the government's goals for ensuring that every home is adequately and affordably heated?
Comments are also invited on the following issues, as described in the text:
i. The long term potential of energy efficiency measures in the transport, residential, business and public sectors, and how best to achieve that potential;
ii. Implications in the medium and long term for the transmission and distribution networks of significant new build in gas and electricity generation infrastructure;
iii. Opportunities for more joint working with other countries on our energy policy goals;
iv. Potential measures to help bring forward technologies to replace fossil fuels in transport and heat generation in the medium and long term."
"In the context of these changing circumstances, it is appropriate to re-visit the policies and programmes put in place to meet the White Paper goals. The White Paper sought to strengthen the contribution of energy efficiency and renewables; the Review will examine what further measures, if any, might be desirable to foster both. Cleaner coal technologies and carbon sequestration may well enable us to continue to access the world's ample coal reserves and the Review will also examine whether and in what ways to encourage them. On nuclear power, the 2003 White Paper recognised that new nuclear build might be necessary if we are to meet our carbon targets, but concluded that its then current economics made it unattractive. The Review will examine the impact of recent energy price rises on the desirability or otherwise of new nuclear build, taking into account all the issues relating to nuclear including long-term costs such as de-commissioning and waste. Separately, the Committee on Radioactive Waste Management is assessing options for long term management of the UK's higher activity radioactive waste so as to be able to recommend the best way forward.
In assessing the UK's progress against the 2003 White Paper goals and the options for further steps to achieve them, the Review will take account of all short-term, medium-term and long-term costs and liabilities both to the taxpayer and to the energy user. The aim will be for the government, once it has assessed the conclusions of the Review, to bring forward proposals on energy policy later this year.
... The Review team will report to the Prime Minister and the Secretary of State for Trade and Industry in the early summer. ...
The Review will take into account the work of a number of related exercises including but not limited to: [a number of reviews are then listed, including]
The Committee on Radioactive Waste Management. In November, 2003 the UK Government set up this independent Committee to oversee the review of options for the long-term management of the UK's higher activity wastes and to recommend a strategy. The Committee is due to report in July 2006."
"DTI will publish revised emissions projections for the UK shortly together with updated assumptions for future fossil fuel prices (see Annex B for a summary). Comments will be invited on these projections and assumptions, which have been used to inform this consultation document."
"Nuclear fission plants have contributed to electricity generation in the UK for the last 50 years. In 2004, nuclear plants generated 80 TWh of electricity, or 19% of the UK total. This is forecast to fall to 7% by 2020 as existing plants are retired. The world's most intensive user of nuclear electricity is France, where more than 70% of electricity is nuclear-generated. Other major users include Ukraine (45%), South Korea (36%) and Japan (27%). Sweden (46%) and Germany (29%) are currently committed to phasing out nuclear power
Increases in projected UK nuclear capacity could come from extensions to the current lifetimes of existing plant or from new build. British Energy recently announced a planned ten year extension to the life of its Dungeness B plant. It is uncertain whether it will be economically attractive or technically possible for British Energy to extend the lifetimes of its other reactors. It will not be possible to extend significantly the lifetimes of older Magnox reactors now owned by the Nuclear Decommissioning Authority.
After a general global slowdown over the last 15 years, many countries are considering new nuclear build. Over 20 new plants are under construction globally, primarily in Japan, China, India and South Korea. A new plant is under construction in Finland. The last nuclear fission plant built in the UK was Sizewell B, which became operational in 1995. Planning permission was first sought in 1981. Like all UK nuclear plants, it was built by the public sector. We would expect any future plant to be built and run by the private sector, within the regulatory framework set by the government.
Among the considerations bearing on the issue of new nuclear build in the UK are:
Carbon profile. Nuclear power plants emit almost zero carbon, and could therefore contribute to the government's goal of reducing emissions. However the mining, refining and enriching of uranium, and plant construction and decommissioning, are carbon-intensive processes, especially when low quality uranium ore is being processed.
Reliable access to fuel. Uranium is typically refined in source countries but enrichment is conducted at Capenhurst, near Chester. The UK has no commercial uranium resource but it could draw on its stockpile of separated plutonium to supply Mixed Oxide (MOX) fuel, enough for the lifetimes of two large reactors. The world's major exporters of uranium ore are Australia and Canada, and deposits are known to exist elsewhere. Known recoverable uranium reserves would last around 50 years at current levels of demand and a further 30 years is available from decommissioned plants and weapons. A global expansion of nuclear power stations would reduce this, but there has been little exploration for uranium since the mid-1980s and it is likely that further deposits exist. Today, mine expansions and new mines are planned in Australia, Canada, Kazakhstan, Russia, Brazil and Namibia.
Flexibility. Nuclear power provides a significant share of the UK's base-load generating capacity. But it has the disadvantage that it cannot easily follow peaks and troughs in energy demand. Were it to provide more than around 30% of the UK's electricity, issues of overcapacity may arise at periods of low demand. The UK has only one electricity connection to Europe and so (unlike France) has very low scope to export surplus electricity in periods of low demand.
Safety and security. An independent safety regulator, the Nuclear Installations Inspectorate, has the authority to shut down a nuclear power station if it is not completely satisfied with standards of safety. However the potential consequences of a significant release of radiation, or of the theft of nuclear material, make the security of nuclear plants a very high priority. The security regulator, the Office for Civil Nuclear Security, is responsible for approving security arrangements within the industry and enforcing compliance. Before the construction of any new nuclear plant could start, the independent safety and security regulators would need to be completely satisfied that any proposed nuclear plant was safe
Proliferation risk. Current nuclear designs, operated within an effective security and safeguards framework such as the UK's, should create very little risk of proliferation. Safeguards are applied to civil nuclear material and activities in the UK according to the Treaty establishing the European Atomic Energy Community (Euratom), the UK's safeguards agreement with Euratom and the International Atomic Energy Agency (IAEA), and the Additional Protocol to that agreement. Such arrangements are put in place to provide assurance that any diversion from the UK's civil programme would be detected.
Waste. The Committee on Radioactive Waste Management (CORWM) has been set up to examine options for the long-term storage of radioactive waste. The UK has a historic legacy from its military and civil nuclear programmes; the government has created the Nuclear Decommissioning Authority as the body with responsibility for dealing with this legacy safely and efficiently. CORWM has confirmed that waste from a new build programme could be technically accommodated by the options it is considering. The issue of waste will be one of the important considerations relating to nuclear power in this Review.
Cost. Market investors would make their own calculations about the viability of new nuclear investment. As the analysis shows in Annex B, cost estimates for new nuclear build vary significantly. One reason for this is that, because of the large capital investment required, a change in the discount rate can have a significant impact on the total cost of construction. Further uncertainty is created by the planning and licensing process, which can take five years or more. Subsequent reactors are likely to cost less than the first of a kind in a series.
Decommissioning and long-term waste management. Taken together these can add up to around 15% of the lifetime cost of a nuclear plant. Decommissioning and long-term waste management are also significant issues for the public. A report on the latter by the Committee on Radioactive Waste Management, is expected in July 2006.
Skills. The Government has established a Sector Skills Council to represent the needs of the nuclear industry. Cogent Sector Skills Council was launched on 2nd March 2004 and is taking a strategic view of the nuclear sector to ensure that the education and training base can meet current and future employment needs in the nuclear industry."
"The Government does not endorse the conclusions of studies published by other organisations. The studies all show a wide range of numbers from different sources and there is also some overlap between the ranges for different technologies. It is impossible to say unequivocally that one technology is cheaper than another because different assumptions about capital costs, fossil fuel prices and carbon prices all affect the relative competitiveness of different generating technologies."
"The UK faces significant challenges in the way we source, produce and use energy in the medium and long term. Over the next few months, we are conducting a review of the options facing us.
As part of this review we are launching a formal consultation. We want to give members of the public an opportunity to voice their views. This leaflet has been designed to set out the main facts and challenges and to explain how you can have your say."
"More information, including a detailed consultation document,is available on our website [reference given] and you will also find links to other useful sources from this site.
Over the next few months, we will be amassing evidence and listening to businesses, NGOs (Non Governmental Organisations) and other experts to help inform whether we need to take further action to meet our goals and if so, what those further actions could be.
We will welcome views not just from industry and specialists, but from members of the public and non-energy businesses too. The kind of questions the consultation document poses include:
Q.1 What more could the Government do to influence the way we produce or use our energy to ensure we meet our goal of reducing the carbon dioxide emissions that contribute to climate change?
Q.2 What further steps should the Government take, if any, to help ensure companies continue to deliver reliable energy supplies in the long term?
Q.3 Are there any particular questions the Government should consider when it re-examines the issues relating to possible nuclear new build?
Q.4 Are there any particular issues that should apply to the different types of technology that can help reduce the carbon dioxide emissions from the energy we use?
Q.5 What further steps should be taken towards meeting the Government's goal for ensuring that every home is adequately and affordably heated?"
"The review will explore the further options open to us, within our prudent approach to public finances and taking account of costs to business and consumers."
"Nuclear power is currently an important source of low carbon electricity in the UK. The existing fleet of nuclear power stations will close in the years ahead. Our assessment is that higher projected fossil fuel prices and the introduction of a carbon price to place a value on CO2 have improved the economics of nuclear as a source of low carbon generation.
We have concluded that new nuclear power stations would make a significant contribution to meeting our energy policy goals. For illustrative purposes, if existing capacity were replaced, then by 2030 our carbon emissions would be around 8 MtC lower equivalent to total emissions from twenty two 500MW (Mega Watt) gas-fired power stations than otherwise, and our gas consumption some 13% lower.
It will be for the private sector to initiate, fund, construct and operate new nuclear plants and to cover the full cost of decommissioning and their full share of long-term waste management costs. But in view of the potential benefits for our public policy goals, the Government proposes to address potential barriers to new nuclear build.
By early next year, the Health and Safety Executive will develop guidance for potential promoters of new nuclear power stations. This will explain how they can obtain assessment of possible reactor designs before committing significant sums to planning and construction.
On nuclear waste, the report of the Committee on Radioactive Waste Management, due later this month, following its interim report published in April, will provide the basis for a decision on the long-term management of waste by the Government and the Devolved Administrations.
We are also setting out a proposed framework for considering the relevant issues and context in which planning inquiries should be held. This would be set out in the Energy White Paper to be published around the turn of the year. To support preparation of this White Paper, we are consulting on the proposals outlined in annex A of this document.
For nuclear new build, considerations of safety and security will be paramount, as they are with the regulation of our existing nuclear plant."
"Given the long-term nature of investments in electricity generation, policy uncertainty creates a barrier to new investment. Policy uncertainty affects the economics of all new power stations, by raising the cost of the capital companies need to borrow to make new investments. It can disproportionately affect technologies that require higher levels of upfront capital investment, such as low carbon technologies. Submissions to the Energy Review consultation particularly emphasised the need for clarity on the Government's future policy direction on renewables and on nuclear. Therefore, in the following sections of this report, we will
Confirm and strengthen our commitment to the Renewables Obligation; and
Clarify our position on new nuclear build."
"5.93 Nuclear power is a source of low carbon generation which contributes to the diversity of our energy supplies. Under likely scenarios for gas and carbon prices, new nuclear power stations would yield economic benefits in terms of carbon reduction and security of supply. Government believes that nuclear has a role to play in the future UK generating mix alongside other low carbon generating options. Evidence gathered during the Energy Review consultation supports this view.
5.94 Consultation evidence highlighted regulatory barriers which are faced by many energy projects, including nuclear. In response to this, the Government is setting out a proposed framework for the consideration of the relevant issues and the context in which planning inquiries should be held. This framework would be set out in a White Paper to be published around the turn of the year. To support preparation of this White Paper, Government is consulting on the proposals outlined in Annex A of this document. Under this framework, Government will assess planning applications on their merits, taking into account the policy set out in the previous paragraph. ...
5.96 Any new nuclear power stations would be proposed, developed,constructed and operated by the private sector, who would also meet full decommissioning costs and their full share of long-term waste management costs. The Government does not take a view on the future relative costs of different generating technologies. It is for the private sector to make these judgements, within the market framework established by Government. The actual costs and economics of new nuclear will depend on, amongst other things, the contracts into which developers enter, and their cost of capital for financing the project.
5.97 However, for the purposes of this report, the Government has carried out a cost-benefit analysis of nuclear new build in order to inform its conclusions on the potential role of nuclear power and whether the Government should take facilitative measures to enable new build to come forward as a generating option. This analysis is based on a number of gas prices, carbon prices and nuclear costs, rather than a single projection."
A footnote refers to a summary of the cost-benefit analysis, together with other background information, being available on the DTI web site.
"5.98 The economics of new nuclear build depend on expectations about future gas and carbon prices, as well as expected costs of building, operating, decommissioning and dealing with the waste of a new nuclear plant. Based on a range of plausible scenarios, the economics of nuclear now look more positive than at the time of the 2003 Energy White Paper. However, it will be for the private sector to make commercial decisions on investment in nuclear."
"5.113 The 2003 Energy White Paper noted that there are 'important issues for nuclear waste to be resolved'. Work is underway to tackle the legacy of nuclear waste. The Nuclear Decommissioning Authority (NDA) is setting a UK-wide strategy for more effective decommissioning and clean up of its sites. The Committee on Radioactive Waste Management (CoRWM) was established in the second half of 2003 to make recommendations on the best options for the long-term management of the UK's higher activity radioactive waste. It has evaluated the options in an open and inclusive manner and Government believes the approach they have taken will provide a sound basis for building future consensus.
5.114 CoRWM produced interim recommendations in April. In these, CoRWM concluded that deep geological disposal in a repository is the best available approach for the long-term management of waste, and that a programme of interim storage (already planned by the NDA as part of its strategy) is required. While CoRWM has no position on the desirability or otherwise of nuclear new build, CoRWM has however said that 'in principle' new build wastes could be incorporated within in their options, although this would raise practical issues about the size, number and location of facilities, which would need to be properly assessed. CoRWM's final report will be published at the end of July. The Government will respond in a formal statement to parliament as will the Devolved Administrations, setting out how work to manage long-term waste will be taken forward.
5.115 The UK has a historic legacy of nuclear waste that it is estimated will total 475,000m3 (high and intermediate level). Similar to France, the UK's legacy nuclear wastes include a complex mix of waste forms from both the civil and military programmes which increases the technical challenges in conditioning them for ultimate disposal. Through the NDA, and the nature of the ownership of the current civil nuclear industry, the public sector is ultimately responsible for delivering and paying for a long term waste management solution. The private sector would pay its full share of the costs of long term waste management arising from any new nuclear build.
5.116 Modern nuclear plants produce significantly less waste than early generations of nuclear reactors by volume. CoRWM's inventory study suggests that if the current level of nuclear capacity were replaced with new build, existing waste stocks would increase by about 10% by volume."
A footnote refers to CoRWM's draft recommendations.
"5.136 In addition, Government is setting out a proposed framework for the consideration of the issues relevant to new nuclear build and the context in which public inquiries, as part of the planning process, should be held. This framework would be set out in a White Paper to be published around the turn of the year. To support preparation of this White Paper, Government is consulting on the proposals outlined in annex A of this publication.
5.137 We are seeking views on a policy framework in which national strategic and regulatory issues are most appropriately discussed through processes other than the public inquiry. The inquiry should focus on the relationship between the proposal, the local plans and local environmental impacts. The inquiry should weigh up these issues against the national strategic or regulatory material considerations, which will have already been established. The inquiry should also examine the local benefits of the development and how specific local impacts of the construction and operation of the plant can be minimised."
"Satisfactory arrangements will need to be established for dealing with the costs of decommissioning and waste from nuclear new build."
" Delivering and paying for a long term waste management solution for legacy waste is a responsibility that falls to the public sector. Any long-term waste management solution developed by Government will factor in waste from new build.
There will be an assessment of how new build affects the cost of delivering the national waste management solution."
" The Government believes that nuclear has a role to play in the future UK generating mix alongside other low carbon generation options.
Any new nuclear power station would be proposed, developed, constructed and operated by the private sector who would also meet decommissioning and their full share of long-term waste management costs.
We will undertake further assessment which will help developers in identifying the most suitable sites. It will be up to the potential participants of new build to discuss with the owners appropriate access to suitable sites. Government will monitor whether an appropriate market in suitable sites is developing.
Government has asked HSE to take forward proposals to introduce a pre-licensing, design authorisation procedure, and the Environment Agency to introduce a similar system of pre-authorisation.
Government is setting out a proposed framework for the consideration of the issues relevant to new nuclear build and the context in which planning inquiries should be held. This framework would be set out in a White Paper to be published around the turn of the year. To support preparation of this White Paper, Government is consulting on the proposals outlined in annex A of this publication.
We are seeking views on a policy framework in which national strategic and regulatory issues are most appropriately discussed through processes other than the public inquiry. The inquiry should focus on the relationship between the proposal, the local plans and local environmental impacts. The inquiry should weigh up these issues against the national strategic or regulatory material considerations, which will have already been established. The inquiry should also examine the local benefits of the development and how specific local impacts of the construction and operation of the plant can be minimised. ..."
"The Government has considered the role of nuclear generation. The consultation document 'Our Energy Challenge: securing clean, affordable energy for the long-term' set out information about nuclear power amongst other issues and asked whether there were any particular considerations that should apply to nuclear as the Government re-examines the issues bearing on new build, including long term liabilities and waste management, and if so how the Government should address them.
After a period of public consultation and analysis, the Government has concluded that:
'Nuclear power is a source of low carbon generation which contributes to the diversity of our energy supplies. Under likely scenarios for gas and carbon prices, new nuclear power stations would yield economic benefits in terms of carbon reduction and security of supply. The Government believes that nuclear has a role to play in the future UK generating mix alongside other low carbon generating options. Evidence gathered during the Energy Review consultation supports this view.'
However, it will be for the private sector to take decisions on proposing new power stations, based on commercial considerations.
Having reached the position that nuclear has a future role, this document sets out how the Government intends to create a policy framework under which developers will be able to make proposals for new nuclear build, that will be published in a forthcoming Energy White Paper. This White Paper will set out the Government's policy on new nuclear build."
"A policy framework for new nuclear build should be developed. It would include a nuclear 'Statement of Need' and set out that national strategic and regulatory issues are most appropriately discussed through processes other than the planning inquiry. ..."
"This document includes material that it is envisaged would be incorporated within the policy framework and the statement of need. In the light of the views received, the policy framework will be formalised in a White Paper and form a material consideration for future planning inquires into new nuclear build proposals. In finalising the text of the statement of need, the Government will, of course, take into account comments received during the consultation."
"The Government believes that nuclear has to play a role in the future UK generating mix because of its contribution to increased diversity of energy supplies and its role as a source of low carbon generation. The Government believes that the evidence gathered during the Energy Review and the associated public consultation supports such a view."
"Under this framework, the Government would assess planning applications on their merits, taking into account the policy framework set out above. We would welcome views on this approach. It is important to note that any new nuclear power stations would be proposed, constructed and operated by the private sector.
The policy framework, including a Statement of Need, and formalised in a White Paper, would form a material consideration in future nuclear power station planning inquiries. The expectation is that planning inquiries should not consider whether there is a need for nuclear power. Any planning inquiry should then proceed on the basis that there has been public consultation on the relevant strategic issues and the outcome has been formalised in the White Paper. Planning inspectors would therefore have the ability to decide not to allow discussions of these issues at the inquiry, as they would have already taken place elsewhere.
An inspector would still be able to open up such issues if they felt that there were specific aspects of these issues that had not been considered, but the presumption would be that there should not be detailed oral evidence on these issues presented to the inquiry."
The grounds of challenge
(1) It either was or appeared to be in the nature of an issues paper, seeking consultees' views as to which issues should be examined by Government (and the manner in which they should be examined) when deciding whether or not the new nuclear build option, which had been left open, should now be taken up; rather than the consultation paper on the substantive issue itself: should the new nuclear build option be taken up? The decision in July 2006 "leapfrogged the stage of carrying out proper consultation on the substantive issue".
(2) If it was not simply an issues paper, but was intended to be a consultation paper on the substantive issue, it was inadequate, and the overall consultation process was unfair because:
(a) consultees were not told in clear terms what the proposal was to which they were being invited to respond;
(b) consultees were not provided with enough information to enable them to make an intelligent response; and
(c) on many issues, including in particular the critical issues of the economics of new nuclear power and waste disposal, consultees were deprived of the opportunity to make any meaningful response because the relevant information on which the Government relied in making the decision that "nuclear has a role" was published after the consultation period had concluded.
The defendant's response
Discussion and conclusions
"Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so." (see per Laws LJ at paragraph 68 of R (Nadarajah and Abdi) v Secretary of State for the Home Department  EWCA Civ 1363)
"Recognizing that adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself,
Recognizing also that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations,
Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights,
Recognizing that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns
Aiming thereby to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment, ..."
"To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment."
"108. It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168."
"It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."
"It was not a part of the proposal and not necessary to explain the proposal. The risk an authority takes by not disclosing such documents is not that the consultation process will be insufficient but that it may turn out to have taken into account incorrect or irrelevant matters which, had there been an opportunity to comment, could have been corrected. That, however, is not this case." (paragraph 115)
"It is an aspect of what is 'proper' - the word used in Coughlan (para 108). ... it is axiomatic that consultation, whether it is a matter of obligation or undertaken voluntarily, requires fairness." (paragraph 28)
"103. In general, in a statutory decision-making process, once public consultation has taken place, the rules of natural justice do not, for the reasons given by Lord Diplock in Bushell, require a decision-maker to disclose its own thought processes for criticism before reaching its decision. However, if, as in United States Tobacco (see per Taylor LJ, as he then was, at 370-371, and at 376, per Morland J), and in Interbrew (see per Moses J at pp 33-35 of the transcript), a decision-maker, in the course of decision-making, becomes aware of some internal material or a factor of potential significance to the decision to be made, fairness may demand that the party or parties concerned should be given an opportunity to deal with it. See also the remarks of Schiemann J in R v Shropshire Health Authority, ex p Duffus  1 Med LR 119, at 223 as to the changing scene that a consultation process may engender and the consideration by Silber J in R (Smith) v East Kent Hospital NHS Trust  EWHC 2640, at 39-44, of the possible need, depending on the circumstances, for further consultation on matters and issues that the initial consultation may have thrown up."
" It is an accepted general principle of administrative law that a public body undertaking consultation must do so fairly as required by the circumstances of the case" see per Auld LJ at paragraph 90 of Edwards. (emphasis added)
(1) The consultation period of 12 weeks was the minimum period suggested for written consultation in the Cabinet Office "Code of Practice on Consultation", published with a foreword by the Prime Minister in January 2004. The explanation for the 3-month consultation period is contained in a witness statement of Mr McIntyre, the Head of the Energy Review Team in the Department of Trade and Industry ("DTI"), filed on behalf of the defendant. Ministers had asked for the review to report by early summer of 2006, around six months after the Prime Minister's announcement in November 2005. The review was not "starting from a blank page". In the context of new nuclear build it was considering whether the option left open in 2003 should be taken up. There was also a desire to minimise uncertainty for business and to minimise the risk of investment delays. While this reasoning is readily understandable, the public had been promised not merely consultation but the "fullest public consultation" in respect of the new nuclear build issue. As a matter of first impression, adopting the minimum recommended period for a very wide-ranging consultation of which the new nuclear power issue was but a part, would be more consistent with the 2006 Consultation Document being an issues paper rather than the substantive Consultation Paper itself. On its own, the short period of consultation is not conclusive, but it is part of the overall picture that was presented to consultees.
(2) The express purpose of the document, "This consultation seeks views on the medium and long-term energy policy issues to be considered in the Energy Review" (para 14 above), is entirely consistent with the document being an issues paper.
(3) The "key questions" on which consultees were invited to comment, when read in the context of the explanatory material in the remainder of the document, are also consistent with the document being an issues paper. The defendant emphasised the breadth of the question 1, but that question is so broad that it would not focus consultees' minds on the question whether the nuclear option should now be taken up, particularly bearing in mind question 3 which was the only question that specifically dealt with nuclear power.
All the key questions are set out above (para 16). For convenience, question 3 is repeated below:
"The Energy White Paper left open the option of nuclear new build. Are there particular considerations that should apply to nuclear as the government re-examines the issues bearing on new build, including long-term liabilities and waste management? If so, what are these, and how should the government address them?"
On its face, this question asks consultees to identify the issues ("particular considerations") that should be considered when the issues relating to nuclear new build are re-examined by the Government. It also asks how the identified issues should be addressed. The question is wholly consistent with the role of the 2006 Consultation Document being that of an issues paper. That impression is reinforced by the text immediately preceding the key questions, which tells consultees that:
"The Review will examine whether recent changes in energy prices have changed ... [the assessment in the 2000 White Paper that current economics made it unattractive] and at the other issues that would be raised by building new nuclear power stations. These other issues include all the characteristics of nuclear, including its creation of long-term liabilities such as nuclear waste; and how these liabilities should be managed and paid for." (emphasis added)
In that context, question 3 is plainly asking consultees to identify the "other issues" which should be re-examined in the review.
(4) The passage in the text referring to "other issues" (above) is immediately followed by this statement:
"The government is clear that, in making important decisions about energy policy including nuclear power, there should be the fullest public consultation. This consultation paper is part of that process. The government is not at this stage bringing forward policy proposals." (emphasis added)
This statement is entirely consistent with the 2006 Consultation Document being an issues paper (part of the consultation process) to be followed by "policy proposals", on which there would be further consultation (the remaining part of the consultation process). Mr Drabble submitted that "the proposal" on which consultees were being invited to comment was clear. I do not accept that submission. There were no proposals in relation to nuclear power in the 2006 Consultation Document. On the contrary, consultees were told in terms that proposals would be brought forward in due course.
I realise that there were also stakeholder seminars and round-table meetings, and it could therefore be said that the 2006 Consultation Document as the (one and only) Consultation Paper was nevertheless part of the consultation process. However, a straightforward reading of the explanation given in the document itself as to the role of the 2006 Consultation Document would leave consultees with the impression that since there were no proposals in the document, it was not the last word: in the remaining part of the consultation process they would be consulted on policy proposals.
(5) The matter can be tested in this way. If the Department of Trade and Industry had wanted consultees to answer the "in principle" question:
"The Energy White Paper left open the option of nuclear new build, is it now appropriate in the light of changed circumstances to take up that option?"
"In the light of changed circumstances does new nuclear build now have a role to play?"
why was such a question not asked? Mr McIntyre explains in his witness statement (paragraph 67) that the earlier parts of the question made it clear that the Government did not want to elicit "yes/no" answers, but wanted to know what issues consultees felt were important when considering the nuclear option. But these two objectives need not be mutually exclusive, as demonstrated by the "Nuclear" questions in paragraph 2.11 of the 2002 Consultation Paper (para 4 above). Those questions clearly invited consultees to comment on the PIU's recommendation that the nuclear option should be left open, and to give their reasoning in respect of a number of specific issues relevant to that recommendation.
(6) The 2006 Consultation Document must be read together with the Summary Document. The latter document refers members of the general public who seek more information to the former. It will be remembered that question 3 in the Summary Document asked members of the public:
"Are there any particular questions the Government should consider when it re-examines the issues relating to possible nuclear new build?"
That is a fair paraphrase of question 3 in the 2006 Consultation Document, and it is a question appropriate for an issues paper, not a final consultation paper.
(7) The amount of information provided in the 2006 Consultation Document, and in particular the level of detail, is consistent with the document being an issues paper, a preliminary stage in the consultation process. There is, effectively, no discussion of the "particular considerations that should apply to nuclear" in the main body of the document. The full text of Annex A to the 2006 Consultation Document is set out above (para 20). After three introductory paragraphs a non-exhaustive list of "the considerations bearing on the issue of new nuclear build in the United Kingdom" is provided on two pages of text. As a description of the issues already identified by the Government as requiring re-examination, the list contains sufficient information to enable consultees to answer the questions: are these issues being adequately addressed, are there any other issues that should be considered and, if so, how should they be addressed?
"Instead of hurtling along to a pre-judged conclusion (which many fear the Government is doing) we must look at the evidence."
"We are seeking early confirmation that
further public consultation on detailed proposals in relation to nuclear power would be undertaken, if the Review were to recommend new nuclear build,
engagement with the public and stakeholders in the Review at this stage will adopt all those methods employed in the most recent consultation for the previous White Paper and the current consultation on the back-end of the nuclear cycle conducted by the Committee on Radioactive Waste Management (CoRWM)."
"We assume from this that the consultation document will confine itself, as quoted, to the current evidence on the White Paper goals and will therefore not consult on detailed opinions, proposals or strong recommendations across the entire range of its subject matter. For the same reasons we assume that the consultation document will not include any specific detailed proposal or option on the narrower issue of whether to proceed with nuclear new build or any proposals whereby Government might facilitate such a proposal or option.
This view is, it appears, strengthened by the terms of reference [which are then set out]."
The final sentence which is emphasised is as follows:
"In drawing up the analysis and options, the Energy Minister will undertake extensive public and stakeholder consultation."
The letter continued:
"We seek clarification that options will only be drawn up after the fullest consultation."
The final paragraph of the letter said:
"We would be grateful for your assurance that the government's plans for engagement with the public and stakeholders for the review will include all those that have been employed in the most recent consultation for the previous White Paper and the current consultation on the back-end of the nuclear cycle conducted by CoRWM."
"As you will be aware, the Minister recently launched a 12-week consultation period on the Energy Review. I am sure you will wish to participate in the consultation, which you can do at the following web site ...
The purpose of this consultation is to engage with stakeholders and the public and to encourage an informed debate. Energy policy is a complex and inter-related issue; there are no simple answers. As the Minister has made clear since the Review was announced, the outcome of the Review is not a foregone conclusion; the Government is keen to engage with people who are ready to have a serious debate around the facts and evidence. The consultation is wide ranging and views from the organisations you are representing would be most welcome, as would the views from industry, the public and all others with an interest or stake in the future of UK energy.
Turning to your question relating to further consultation specifically on new nuclear build, I would like to assure you that the commitment given in the 2003 Energy White Paper that 'Before any decision to proceed with the building of new nuclear power plants, there would need to be the fullest public consultation and the publication of a white paper setting out the Government's proposals' is still applicable.
Detailed arrangements for any future consultation exercise are not yet determined. Such detailed arrangements would obviously depend on the outcome of the Review, and at this stage we cannot pre-judge what this might be. However, we have noted your suggestions for using best practice and lessons learnt from other consultations."
As an exercise in avoiding giving the claimant the clarification it had sought, the reply could not be improved upon.
"10. The nature of the current Energy Review is unclear whether it is specifically fulfilling the Prime Minister's desire to make a decision on nuclear, whether it is a review of electricity generating policy, whether it is a wider review of progress against the Energy White Paper, or whether it is reopening the broad policy debate which the White Paper itself encompassed. We are also concerned that it does not appear to have resulted from a due process of monitoring and accountability, and that the process by which it is being conducted appears far less structured and transparent than the process by which the White Paper itself was reached.
11. If the Energy Review is focussed mainly on electricity generation and, in particular, a decision on nuclear, then it is unclear what the nature of such a decision could be and the Secretary of State himself was unable to explain this. ...
12. If, on the other hand, the Energy Review is a wider ranging review of policy it will fail to command the support of stakeholders, the public and politicians if what emerges is significantly different from the course that was charted in the Energy White Paper without a proper explanation of how circumstances have altered sufficiently to justify such a change and without further wide-ranging consultation on the nature of the change. ..."
"Finally, and for the avoidance of any doubt, we do not agree [with] the Secretary of State's assertion (described in your grounds) that the decision to support nuclear new build was a foreseeable and foreseen outcome of the consultation. The only question dealing with the issue of nuclear was Question 3 which simply asked for information as to the issues to be considered before such a decision could be made. Friends of the Earth's very brief response to that question within the consultation process indicates that we, at least, did not consider that the decision to support nuclear new build would be a foreseeable result of that consultation."
"Greenpeace is concerned that if the consultation process is intended as the basis for a new policy proposal on nuclear power, then in our view it is wholly inadequate, hasty, uninformed and its outcome apparently prejudged (Annex 15)." (emphasis added)
"In Greenpeace's view, insofar as this consultation is intended to be part of [the] process of public consultation and participation on the future of nuclear power, it is wholly inadequate.
Before there is any change in policy in relation to new nuclear power stations, the building and operation of which will create such a significant and long term environmental hazard, there should be full public consultation on and participation in the decision. ...
We are very concerned that the consultation period is only 12 weeks - the minimum considered acceptable by government for any consultation. This is clearly not enough for full consultation and participation on a weighty policy decision about the future of nuclear power.
The process for the decision-making should be clear, transparent and fair and be accompanied by the information necessary for full public consultation and participation. Proper consultation on [the] future of nuclear power would include, for example providing full information to the public on alternatives, costs, safety, the extent and routes of the transport by road, rail or sea, of nuclear materials and nuclear wastes, plans for dealing with nuclear waste, vulnerability to terrorist attack, legal and other measures for nuclear emergencies and the implications for nuclear proliferation. There should be sufficient time for consultees to respond and comment on the information and on other evidence.
This consultation clearly falls short of these requirements. We note, for example, that the consultation period closes before there is any recommendation for how to deal with nuclear waste. In the circumstances, the process cannot possibly serve as part of a genuine consultation process on the future of nuclear power.
Finally, it is widely believed and reported that the government decision to sanction or plan new nuclear power stations has already been made. We note, for example, Mr Blair's reported comments in Australia where he said
'Clean coal technology, carbon sequestration, renewable energy, the new generation of nuclear power, all of these things I think are going to be part of the mix that we use for our future energy requirements.'
No meaningful consultation process can be carried out and no good decision can be made if the issue has been pre-judged. On the basis of this hastily conducted and inadequate consultation process the government will not be in a position to form a view that nuclear power is necessary or desirable: to do so would confirm suspicions that the decision has already been made."
"4.1 Acting on the assumption that the current Review (Our Energy Challenge) is indeed a genuinely impartial process, dispassionately reviewing the evidence available to Ministers (including our own research) rather than rationalising a pre-determined decision with a tokenistic consultation exercise thrown in for good measure, we strongly recommend that one of the principal outcomes of the Review, as regards nuclear power, should be to formulate distinctive positions (broadly along the lines of the Commission's positions outlined above), and then to indicate which of those positions the Government is minded to pursue in due course.
4.2 Given the critical importance of this decision, and regardless of which position the Government declares it is minded to pursue, systematic engagement with the general public should be seen as a precondition of transparent and effective policymaking in this area. The history of the nuclear industry is littered with hasty, partisan and secretive studies leading to expensive mistakes and public hostility.
4.3 Once the Review has been published, outlining the Government's broad intentions, at least nine months should then be set aside for a range of much more substantive consultative and engagement processes, carefully planned in advance and presided over by independent experts and advisors. Any attempt to force top-down solutions on the British public at this stage, with a process fixed by Government to fit pre-determined outcomes, will lead in all probability to widespread mistrust and hostility. ...
4.8 In conclusion, a proper transparent process is all-important. There are many siren voices urging Ministers to pursue a fast-track approach to this decision, dispensing with proper consultation, and short-circuiting a proper Parliamentary process. This would be extremely foolish, and would inevitably (and justifiably) result in a backlash against whatever the Government eventually decides is the right way forward for the UK at this critical time."
"... that, quite apart from how Greenpeace responded to the question set out in the consultation, one cannot predict how others might have responded had the question been framed differently or, perhaps more importantly, whether there were others who might not have responded at all given the terms in which the question was framed and the inference that they reasonably could have drawn that this was only an initial question-setting stage of the Government's review of its policy on nuclear new build, rather than the last chance they would have to comment on the substantive issue of whether or not the Government should support nuclear new build."
(1) was the information contained in the 2006 document enough to enable them to make an intelligent response on the issue of principle?
and, closely related to question (1):
(2) was it unfair for the defendant to take into account new information, which emerged after the consultation period had ended, without giving consultees an opportunity to comment upon it before the "in principle" decision was taken in the Energy Review?
"The Government published a substantial evidence base alongside the Energy Review."
"CORWM has confirmed that waste from a new build programme could be technically accommodated by the options it is considering."
"CoRWM has no position on the desirability or otherwise of nuclear new build.
We believe that future decisions on new build should be subject to their own assessment process, including consideration of waste.
As we have noted before, the prospect of a new nuclear programme might undermine support for CoRWM from some stakeholders and citizens."
"CoRWM has no position on the desirability or otherwise of nuclear new build. Our primary task is to recommend the best option, or combination of options, for long-term management of wastes which now exist, or which will inevitably be created, for example as a result of decommissioning. As our terms of reference require us to, we have carried out work to establish the waste implications of new build decisions as part of a wide-ranging scenario exercise to establish whether or not our options could accommodate new build wastes. The results of this investigation published at para. 18 of our Phase 2 report (document 1210) are that solutions for existing and unavoidable future wastes would also be robust in the light of all reasonably foreseeable developments in nuclear energy and waste management practices.
We believe that future Government decisions on new build should be subject to their own public assessment process, including consideration of waste, because such decisions raise different political and ethical issues when compared with the consideration of wastes which already exist. We have noted before that the prospect of a new nuclear programme might undermine support for CoRWM from some stakeholders and citizens and make it more difficult to achieve public confidence."
" We do not intend to give a positive or negative signal to new build in making our recommendations. New build wastes could in principle be accommodated within our options, but significant practical issues would arise, including the size, number and location of waste management facilities.
The public assessment process that should apply to any future new build proposals should build on the CoRWM process, and will need to consider a range of issues including the social, political and ethical issues (for example the creation of further burdens on future generations) of a deliberate decision to create new nuclear wastes."
"CoRWM takes no position on the desirability or otherwise of nuclear new build. We believe that future decisions on new build should be subject to their own assessment process, including consideration of waste. The public assessment process that should apply to any future new build proposals should build on the CoRWM process, and will need to consider a range of issues including the social, political and ethical issues of a deliberate decision to create new nuclear wastes."