Counsel’s 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 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 circumstance.

The Ministry of Defence denies the claims, but NIS lawyers are confident that Des. Browne the defence secretary, and David Milliband the foreign secretary have erred in law and cannot claim to be above the law.

As recently as last month, the United Kingdom provided clarifications and explanations on their efforts to achieve nuclear disarmament and calls were made for the re-evaluation of the strategic utility of nuclear weapons and their role in national security policies in the post Cold War context at the NPT meeting in Geneva2.




Di McDonald, for the Nuclear Information Service comments:

“The government admits that the Non-Proliferation Treaty (NPT) commits it to disarmament, but still needs to admit that renewing Trident would undermine that commitment.”

“Public Consultation3 is a well understood process, and the government has not followed its own six-point guidelines in carrying out the promised consultation on Trident. In fact, the White Paper on Nuclear Weapons Policy had already been published without waiting for the results of a consultation.”

Notes to Editors
1.Peace Rights is an NGO established to promote peaceful conflict resolution, challenge threats to peace and to develop educational and research initiatives for those concerned with peace and justice in the world. See  http://www.peacerights.org/

2. Chair's Report, NPT Preparatory Committee for the 2010 Review Conference of the Parties to the Treaty on the Non- Proliferation of Nuclear Weapons Second Session Geneva, 28 April-9 May 2008.

3.In general, government departments are expected to abide by the principles on consultation contained in the Governments Code on Consultation.
The six consultation criteria are as follows:

1.Consult widely throughout the process, allowing a minimum of 12 weeks for written consultation at least once during the development of the policy.

2.Be clear about what your proposals are, who may be affected, what questions are being asked and the time scale for responses.

3.Ensure that your consultation is clear, concise and widely accessible.

4.Give feedback regarding the responses received and how the consultation process I influenced the policy.

5.Monitor your department ’s effectiveness at consultation, including through the use of a designated consultation co-ordinator.

6.Ensure your consultation follows better regulation best practice, including carrying out a Regulatory Impact Assessment if appropriate.

You can find this on the Cabinet Office website at  http://www.cabinetoffice.gov.uk/regulation/consultation/