UK Government's Nuclear New Build Decision is in Contempt of Court

In 2007, the High Court determined that the Government’s earlier public consultation in 2006 on whether or not to replace existing civil nuclear power stations in the UK was unlawful.

This, the Court declared, was because the consultation breached the Government’s duty to hold a full and effective public consultation under the Aarhus Convention 2003. The Court described the consultation exercise as one which was “very seriously flawed”, “manifestly inadequate”, “seriously misleading” and “wholly insufficient to enable [respondents] to make ‘an intelligent response’”. These enormous failings were held by the Court to have frustrated the public’s legitimate expectation to participate fully and effectively in a decision with potentially very serious environmental and safety implications.

Following this ruling, which it did not contest, the Government decided to hold a new consultation in 2007. However, it failed once again to consult the public fully and effectively.

Instead, some one thousand persons were offered questionnaires on UK civil nuclear power replacement which many recipients considered “not [to be] of appropriate quality”. Among the criticisms made of the exercise were that “positive messages” for nuclear power “were presented as statements of fact” and respondents “were not able to answer the questions in a way that reflected the view they wanted to express” but “were led towards a particular answer” (see ‘Harrison Grant questions nuclear consultation for Greenpeace’, The Lawyer, 21 September 2007 and ‘Scientists take on Brown over nuclear plan’, The Guardian, 4 January 2008).

Following the exercise, a formal complaint was submitted to the UK polling regulator (the Market Research Standards Council).

We therefore petition the Attorney-General to consider whether the Government’s decision in early 2008 to ‘go ahead’ with the replacement of civil nuclear power stations, having assumed that the 2007 constitution has produced a ‘public mandate’ for new build (Guardian, op cit.) may constitute contempt of court.*

If she considers that the Government should be held in contempt, then we petition the Attorney-General to take appropriate subsequent legal action.

*Where contempt includes (a) failure to obey superior courts of record which prescribe certain conduct on one party to a civil action – including the executive since for it to assume itself immune to contempt of court would, as Templeman LJ ruled, be for it “to obey the law as a matter of grace not of necessity” (M v Home Office [1994] 1 AC 377) – and (b) from which it is no defence to claim that what would otherwise constitute contempt of court was committed in the discharge or purported discharge of official duties (M v Home Office; R v City of London Magistrates’ Court, ex p Green [1997] 3 All ER 551))