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Policy consultation
Legitimate expectation
Environmental policy
Introduction
This decision is very important in its consideration of how the Court will view commitments given by the Government in policy documents (or indeed any public authority) and in the context of its duties under the Aarhus Convention.
Facts
GreenPeace applied to quash a decision of the Secretary of State to support nuclear new build as part of the United Kingdom's future electricity generating mix. A White Paper on the future of energy production in the UK had been published that addressed the possible use of new nuclear power plants to produce electricity. The White Paper stated that there was to be "the fullest public consultation" before the Government reached any decision to change its policy and indicated that the Government was not minded to support new nuclear build.
Subsequently the Secretary of State announced a review of the White Paper and issued a consultation document for an energy review on the securing of long-term affordable energy in the UK including the use of electricity generated from nuclear power new build. Having had responses to the consultation process the secretary of state published an energy review report in which it was announced that he had decided to support nuclear new build as part of the UK's future electricity generating mix.
GreenPeace challenged the decision on the basis that the consultation paper was flawed in that it did not consult on the principle question of whether new nuclear build should be supported but rather that it sought views on the issues to be addressed before a policy proposal. It was contended there had been an express promise that there would be consultation on the principle question.
Decision
The Court accepted the arguments on behalf of Green Peace and held that the consultation process was procedurally unfair and a breach of a legitimate expectation in so far as it related to nuclear new build that there would be the fullest consultation. Therefore, the statement made by the Secretary of State's statement in support of nuclear new build as part of the UK's future electricity generating mix was declared invalid.
The Court also noted that the development of policy in the environmental field consultation was no longer a privilege to be granted or withheld at will by the executive. The Government was required to provide opportunities for public participation in the preparation of such policies in accordance with the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998 (the Aarhus Convention), to which it was a signatory.
In the circumstances and given the importance of the decision it was difficult to see how a promise of anything less than the "fullest public consultation" would have been consistent with the Government's obligations under the Aarhus Convention.
R (on the application of Greenpeace Ltd) v Secretary of State for Trade & Industry [2007] EWHC 311 (Admin)
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