Nuclear Information Service v Secretaries of State for Defence and Foreign Affairs

Public Interest Laywers, on behalf of their client the Nuclear Information Service (NIS), have issued an application for permission to apply for judicial review of the decision of the Secretary of State for Defence and the Secretary of State for Foreign and Commonwealth Affairs to maintain the UK’s current nuclear weapons system (“Trident”) by replacing its Vanguard-class submarines and participating in the Trident D5 missile life extension program and their failure to hold a public consultation.

The Government’s White Paper, ‘The Future of the United Kingdom’s Nuclear Deterrent’ was published on 4 December 2006.

An Opinion by Michael Fordham QC and Naina Patel argues that:

(1) The Government is incorrect in law in considering that “the UK’s retention of a nuclear deterrent is fully consistent with our international legal obligations” (paragraph 2-9 of the White Paper), by reference to the Nuclear Non-Proliferation Treaty ("NPT) and customary international law, and viewed through the Advisory Opinion of the International Court of Justice on The Legality of the Threat and Use of Nuclear Weapons.

(2) The Government’s failure to consult upon the proposed replacement of Trident is itself unlawful in the circumstances.

Trident has three components:

(1) The platform: currently there are four Vanguard-class nuclear-powered submarines, each with 16 missile tubes. One of these four submarines is on patrol at any given time, at several days “notice to fire”, forming the Continuous-at-Sea Deterrent Cycle.

(2) The missile: each submarine carries Trident II D5 submarine-launched ballistic missiles, each of which can carry up to 12 warheads. Since the Government’s 1998 Strategic Review, however, each submarine is limited to 48 warheads, implying a maximum of three warheads per missile.

(3) The warhead: although public information is limited, the warheads are thought to be closely related to the American W76 thermonuclear warhead, which has an explosive yield of approximately 100 kilotons. However, it seems that Trident is capable of being fired at varying yields: a maximum yield of approximately 100 kilotons from thermonuclear firing, a mid-range yield of approximately 10 kilotons, using a warhead’s boosted fission trigger, and a low yield of 1 kiloton or less, with an unboosted fission trigger.

The damage capability of the Trident system as a whole is enormous. A 100 kiloton explosion from a single warhead is likely to kill all those within 5km, or within an area of 74.2km², as a result of immediate blast, heat and radiation – but excluding the effects of residual radiation; and even a 1 kiloton explosion is likely to kill all those within 2.9km² as a result of immediate blast, heat and radiation – again excluding the effects of residual radiation. As for the effects of residual radiation, although these depend on wind speed and direction, even from an explosion of this size, one estimate is as follows:

“Assuming a 24km per hour wind, ionising radiation levels from radioactive fallout within an area of about 15km² would be high enough to cause radiation sickness in the short term to those exposed in the open, and in some cases to those in buildings. This area would extend to some ten kilometres downwind and would have a maximum width of about 2km. Furthermore, radiation levels in an area of about 400km² would be such that certain counter-measures would have to be taken to protect people from the long-term effects of exposure to radiation – for example fatal cancers. This area would extend to some 80km downwind.”

The potential harmful effects of this radioactive fallout are even more alarming. The radiation sickness that may result has three main levels of acuteness, depending on level of exposure:

(1) High doses of radiation give rise to a neurological syndrome of coma or prostration and are rapidly fatal;

(2) Lower doses of radiation give rise to a gastrointestinal syndrome of severe vomiting, intestinal ulceration and copious diarrhoea, and have a very high mortality rate;

(3) The lowest doses of radiation give rise to harmful effects on bone marrow, leading to a lowering of the white blood-cell count and blood-clotting agents. This can be fatal itself, can predispose the victim to infections and can prejudice his/her body’s ability to heal other injuries sustained in a nuclear explosion. These latter effects can mean that injuries that would otherwise have been survivable, end in fatality.

Further, those who survive or do not suffer any of the acute symptoms of radiation sickness described above remain at increased risk of leukaemia and several other forms of cancer for many years.

NIS argues that the decision to replace Trident is is incompatible with the UK’s obligations under international law, namely the NPT and the customary international law of the jus ad bellum and the jus in bello.

NIS is calling upon the Secretaries of State for Defence and Foreign and Commonwealth Affairs respectively to confirm on behalf of the Government that:

(1) the decision to replace Trident, as set out in the White Paper, is based on a misdirection in law; and

(2) it is and remains unlawful for the Defendants not to have undertaken a public consultation on this most anxious and important question.