A group of four peace activists met with Bruce Crawford at Scottish Parliament yesterday to hand in submissions from TP, Nukewatch and other groups in response to the Scottish governments response to the report of the Working Group on a Future of Scotland without Nuclear Weapons.
Bruce Crawford, MSP since 1999
The delegation (David McKenzie, Jane Tallents Brian Larkin and Janet Fenton) met with Bruce Crawford, Minister for Parliamentary Business in the Scottish Government, at the Scottish Parliament to hand in an open letter (below) to the First Minister as a follow-up to the Scottish Government’s response to the Report from the Working Group on Scotland Without Nuclear Weapons.
This was compiled by the Edinburgh Peace & Justice Centre, The Faslane Weekly Vigil, Greenpeace, Helensburgh CND,The Institute for Law and Peace, Nukewatch, Trident Ploughshares, and The World Court Project and is an expression of the wide concern throughout Scotland to see concrete action on nuclear weapons taken by the Scottish Government following the Summit on Scotland Without Nuclear Weapons and the Working Group’s report.
The meeting was productive. Bruce Crawford was quick to acknowledge that the steps so far taken had not been communicated to campaigners, but assured us that actions have taken place: letters have been written to the MOD regarding transport, and also to check the number of Trident-related workers at Faslane and Coulport, and also to the UK Government regarding improvements to the regulations. While he indicated that the responses were disappointing, he assured us that he will write to us with greater detail at an early stage.
A substantive issue in the meeting was discussion about the failure of the report or the response to address the issue of legality, and in particular the suggestion that the Lord Advocates Reference (LAR) is binding and provides a final authority. The submission argues that Trident is illegal, the LAR requires review and we were pleased that Bruce Crawford asked what government action we thought could take place if such a review found that it was illegal. He also spoke about the obligation of the government to comply with the Scotland Act, while assuring us of his total commitment to nuclear disarmament.
Bruce Crawford agreed that we would be informed very shortly of the detail of the steps already taken on the recommendations and assured us that he would examine the submitted material carefully and discuss it with the First Minister before responding to us as soon as possible.
We pointed out the wide range of individuals and organisations who have expectations of the Government following election promises, the summit, and working group. Bruce Crawford recognised that a signal in the form of concrete action is required at this stage.
OPEN LETTER TO THE SCOTTISH GOVERNMENT
from Edinburgh Peace & Justice Centre, Faslane Weekly Vigil, Greenpeace, Helensburgh CND, Institute for Law and Peace, Nukewatch, Trident Ploughshares, and The World Court Project.
December 2010
Dear First Minister,
We are a number of UK based civil society groups and are writing to you in response to the Scotland Without Nuclear Weapons Working Group Report and your Response to that Report. We have also included, as 4 separate attached papers, more detailed responses provided by Nukewatch UK on the planning and regulatory aspects, by the World Court Project, INLAP and Trident Ploughshares on the legal aspects plus comments and suggestions from the Faslane Weekly Vigil and Edinburgh Peace and Justice Centre, for you to seriously consider. We hope that you will find our arguments persuasive and look forward to your response to our recommendations as soon as possible.
We would like first to acknowledge the significance of the Scotland Without Nuclear Weapons Working Group and the value of the work it undertook. At long last the crucial question of the deployment and possession of nuclear weapons and of Trident in particular, and the real possibility of their elimination from Scotland is being discussed in depth at government level. That this is being done in response to a clear majority of Scottish public opinion adds even more weight to the discussion.
It is to be hoped that a clear message can be sent to the UK Government that the Scottish people are serious about cancelling Trident. We welcome the paper and await positive outcomes. The Working Group Report to the Scottish Government begins with a resoundingly clear indictment of nuclear weapons and highlights the imperative of global nuclear disarmament. Nicola Sturgeon’s statement cannot be more unequivocal and summarises eloquently the whole raison d’etre of the Working Group :- “There are few more important issues in the world than nuclear weapons. And the position of the Scottish Government is clear – we are opposed to the replacement of the Trident system and the deployment of weapons of mass destruction on Scottish soil……..That position is shared by a majority of MSPs, a majority of MPs and a majority of the Scottish public. The fact that defence issues are currently reserved to Westminster does not make such opposition irrelevant – rather it forces all of us to consider how best to convey that strong feeling of opposition to the UK Government.” This sense of urgency is lost by the end of the Report though and we feel it is important that the Scottish Government maintains momentum in its work to create a Scotland without nuclear weapons.
Another strong assertion made is the right of the Scottish Government to debate Trident and nuclear weapons, even though defence matters are reserved to Westminster. This was particularly well endorsed by Judge Weeramantry :- “The health of the Scottish population is the concern of Scotland. The welfare of future generations of its population is the concern of Scotland. The purity of the seas and the ocean life around Scotland are the concern of Scotland.”
The Report begins well but we feel that it could be bolder in developing the themes outlined by the Working Group into firm conclusions and commitments. It is essential that the inalienable right of the Scottish people to discuss their own future is boldly claimed. This conviction must be conveyed not only to the UK Government, but also internationally. The example of New Zealand’s stance, which had a profound effect on the world stage, could well be followed by Scotland, and many of us were inspired by Marian Hobbs input to the Scotland’s for Peace event focussed on how Scotland could contribute to the global campaign to Abolish Nuclear Weapons. As the former New Zealand Disarmament Minister she was able to identify a range of similarities between Scotland and New Zealand which could help us to find ways forward.
The Non-Proliferation Treaty Review Conference in May of this year and work arising from it create a crucial window of opportunity. The First Minister’s message to the NPT Review Conference, delivered by Bill Kidd, was well received by the international community and welcomed by the NGO’s session at the Conference and resonated with Ban Ki Moon’s calling the model Nuclear Weapons Convention drafted by civil society “a good point of departure” for negotiations in the final session.
There are other avenues of influence which would enable Scotland to participate constructively in international debate on nuclear weapons, including support from the Government and through Parliament for a nuclear weapons convention, along with an expression of hope that the Westminster Government should enter negotiations to secure this, and Bill Kidd’s work to establish Scotland as an aspirational Nuclear Weapon Free Zone deserves full government support. We hope these opportunities and others will be followed up vigorously.
We believe that the Working Group’s analysis of Britain’s obligations under the Nuclear Non- Proliferation Treaty, and of International Humanitarian Law is thorough as far as it goes. However, there is little attempt to expose the weaknesses and flaws of the UK Government’s position on these issues. As a result, the paper’s legal conclusions and summary of options are not only over-cautious but fail to give the Scottish Government the strong arguments it needs to rid Scotland of Trident.
When it comes to international humanitarian law responsibility goes down the devolutionary ladder as far as there is any freedom to operate. The devolutionary principle enshrined in Nuremberg means that anyone with relevant freedom to operate has to take their own view of the relationship between the activity planned (e.g. the digging of mass graves, the rounding up of ethnic groups, etc., etc.) and international law, and then act appropriately. How can Trident be compatible with international law when it threatens mass murder and environmental disaster? The decision of the High Court in the 2000/2001 Lord Advocate’s Reference needs to be re-examined and the Scottish government has a clear duty to institute such a review. This is discussed in the response from the Edinburgh Peace and Justice Centre.
Another reason to discuss Trident now is the escalating cost of Trident renewal against a background of serious economic crisis. In spite of their inability to obtain accurate MOD figures, the Working Group made a clear case for the cancellation of Trident, and now is the time to emphasise and make plain to the Scottish public the negative effects on the whole Scottish economy of Trident renewal. The issues around Trident-related employment are widely misunderstood and misrepresented and tend not to be set in the context of the wider social and economic implications. The Working Group points out that it is not ’if’ but ’when’ Trident is phased out, and that there is need for research into defence diversification to begin now. This is to be commended, but it will be useful to develop some concrete examples of what can be done and what has been done in other countries, with a specific timetable given for starting this work. There is plenty of expertise in Scotland, both in industry and in the Trade Unions, including current and past employees at HMNB Clyde, and Scotland should get on with the job and present its findings to the UK Government. The Response by Helensburgh CND, Trident Ploughshares and the Wednesday Weekly Vigil Group looks at other options for Faslane post-Trident.
A particularly important section of the Working Group Report was the chapter on the regulatory framework governing the safety and monitoring of nuclear weapons. Considering that the UK’s entire nuclear arsenal is based in Scotland and that warheads are regularly transported on Scottish roads, we feel that it is important that action is taken urgently to deal with regulatory and safety shortfalls that expose Scotland to unnecessary risks from nuclear weapons. A report in the Sunday Herald (’Revealed: the catalogue of chronic safety blunders at Scotland’s nuclear navy bases’, 16 May 2010) highlighted a long-standing legacy of safety shortfalls at Faslane and Coulport which place both the public and the environment at risk. The effects of a nuclear disaster of any kind would be catastrophic and beyond imagination. Ultimately, the only possible way to ensure safety is by getting rid of Trident altogether and this should be said loud and clearly by the Scottish Government. The issues raised in the Response by Nukewatch, which is attached, will be of interest here. In a more recent article The Ministry of Defence (MoD) has been accused of a “catalogue of blunders” after it admitted there had been 16 crashes involving British nuclear-powered submarines since 1998. (MoD admits to 16 nuclear submarine crashes from Sunday Herald, 07 November 2010).
If one of the reasons for having a nuclear capability is to enhance international prestige, then Chapter 4 of the Report addresses the alternatives for a small country very well. It is good to envisage Scotland becoming renowned in the world of international peacemaking, and there is certainly plenty of talent and expertise available. Many initiatives have already begun in addition to the Edinburgh Conversations, and many failed because of lack of adequate funding, focus and international standing. It would be well worth exploring and ’mapping’ these initiatives. Linking government and civil society to develop high-profile international links would be an excellent way forward. There is no reason why this work cannot start immediately to build up a whole context of peace against which Trident would be seen to be a dangerous anomaly.
The Working Group Report and Scottish Government Response outline some excellent ideas and intentions. In order to translate these ideas and intentions into the kind of political change that is needed to create a Scotland Without Nuclear Weapons, we feel it is essential to develop concrete plans and a timetable that will deliver action.
What Scotland is facing is the possibility of nuclear annihilation and the potential for being implicated in preparations for war crimes. Scotland should be much bolder in its actions. The hard work of the Working Group must not be allowed to remain as a pious hope or historical document. It must be acted upon. We therefore hope that our recommendations will help in this process.
Yours sincerely,
Edinburgh Peace and Justice Centre, Faslane Weekly Vigil, Greenpeace UK, Helensburgh CND, Institute for Law and Peace, Nukewatch, Trident Ploughshares, and World Court Project UK. Janet Fenton Edinburgh Peace and Justice Centre, St John’s, Princes Street, Edinburgh EH2 4BJ
Attachments:-
1. Response from the Faslane Weekly Vigil, Trident Ploughshares and Helensburgh CND to Chapter 1 – Economic and Social Issues – of the Scotland without Nuclear Weapons Working Group Report and the Scottish Government Response;
2. Reply from Nukewatch to the Scottish Government Response to the Scotland Without Nuclear Weapons Working Group Report;
3. The Edinburgh Peace and Justice Centre Reply to the Scottish Government Response to the Scotland Without Nuclear Weapons Working Group Report;
4. Response from Trident Ploughshares, World Court Project and Institute for Law and Peace to the Legal Conclusions of the Scotland Without Nuclear Weapons Working Group Report.
Response from the Faslane Weekly Vigil, Trident Ploughshares and Helensburgh CND to Chapter 1 – Economic and Social Issues – of the Scotland without Nuclear Weapons Working Group Report and the Scottish Government Response
When a democratic society decides that it needs to change what it does for the overall good of the community, both local and global, then it has to go ahead with confidence and celebrate the positive outcomes and mitigate the negative ones. Almost every change in Government policy has the potential to affect peoples’ employment and yet policies are changed on a daily basis. When people from all over the globe are calling out for the abolition of nuclear weapons to argue for their retention just to keep some people in a job is short-sighted and parochial. At the same time we recognise that for the individuals who stand to lose an income the prospect of redundancies at the Clyde bases are not welcome but we believe that with proper planning the impact can be minimised.
We welcome the work started on tackling the employment issue by the Working Group and believe that the options put to the Scottish Government reasonably lay out the next steps to be taken. We also welcome the Scottish Government’s continuing opposition to the possession and use of nuclear weapons but find the Response to the Working Groups Report on the chapter on the economic impact is disappointingly vague. What is needed now is a commitment to actually carry these ideas forward – with or without the cooperation of the UK Government – and a timetable for doing that.
Whatever figures are used for the number of jobs which will be lost with the removal of nuclear weapons from Scotland we have to face the reality that if we don’t want these appalling weapons of mass destruction any more then the people who work on them will need in the medium or long term alternative employment opportunities. It is perfectly within the competence of a progressive Scottish Government to manage that inevitable transition with commitment, imagination and appropriate additional resources, rather than follow the destructive patterns of the past in which whole communities had the heart ripped from them by callous and ill-judged policies.
We believe that it is virtually impossible for the Trident nuclear weapons system to be moved anywhere else in the UK. It took eight years and a huge amount of money to prepare the Clyde bases for the arrival of the first Trident submarine. The combination of deep water with a large area of land free for development reasonably remote from large populations will be hard to find elsewhere in the UK. So a Scotland without nuclear weapons would most likely mean a UK without nuclear weapons and it is our hope that this comes as part of the progress to a nuclear free world. Instead of mourning the loss of this particular industry let us celebrate its removal loudly and invest in the people who worked within it so that everyone has something to celebrate. The Working Group report says that
“it is not a matter of whether nuclear weapons are removed from HMNB Clyde but when”.
Even if that decision was to be taken tomorrow it would take some considerable time before most of the jobs associated with it would no longer need to be done. The first step would be to bring the submarines back to Faslane and then send them in turn to unload the warheads at RNAD Coulport and return the missiles to Kings Bay, Georgia USA. The submarines would then need to be maintained as the reactors are powered down. In fact at this point, with three Trident submarines alongside at Faslane, there would probably be more work to do than usual. The warheads in Coulport would need to be monitored and prepared for transit to AWE Burghfield for dismantling. Security would need to be maintained both at Faslane and Coulport. After that, depending on what decisions are made in regard to decommissioning the Vanguard class submarines and what the future plans are for the various facilities at Faslane and Coulport, there could be quite a long period where lots of tasks still had to be undertaken. The decommissioning and safe removal of the Trident specific facilities would take many years.
Option 1 calls on the Scottish Government to seek to engage with the UK Government and key partners to “develop an action plan and route map to the date of decision taken to remove nuclear weapons from Scotland” and then identify and to support personnel, communities and businesses that would lose out from that decision.
Option 3 likewise calls on engagement around arrangements for decommissioning. A clear picture must be developed of the process for getting from where we are now to the Scotland Without Nuclear weapons that we all envisage. If the UK Government and other agencies refuse to co-operate with this there are other people with a degree of knowledge that could begin to put together a “decommissioning plan”. People who work or have worked within the Trident system who want to volunteer their expertise to this should be given protection from prosecution under the Official Secrets Act in the same way that whistle-blowers are. Having an understanding of how long the variety of relevant skills would be required from the date of the decision to disarm would lead to understanding of what alternative employment needs have to be met.
As the report points out, a great deal of money has been invested in Faslane including £300 million in the past 2 years. The Working Group considers that HMNB can have a continuing role as a strategic naval facility for conventionally-armed forces but we think that the options are wider than that and would like to put forward the following possibilities: 1. A major conventional naval facility for the Royal Navy to continue the UK’s present policy of foreign intervention. The Astute nuclear powered hunter-killer submarines would be based there as well as surface ships including the new Royal Navy aircraft carriers. 2. A naval base for defence only with a much smaller number of surface vessels for protecting our coastline and resources such as fishing and oil rigs. 3. A complete decommissioning of the military bases on the Clyde as part of Scotland becoming a de-militarised zone.
As both the majority of the people of Scotland and the Scottish Government are opposed to nuclear power the presence of nuclear powered submarines in Scottish waters, even if they are not carrying nuclear weapons, needs to be challenged. Although the Working Group’s remit is to look at a Scotland without nuclear weapons, to envisage a future for Faslane which includes another class of submarine which is in opposition to Scottish Government policy seems to be leaving yet another job for another Working Group. Apart from its propulsion system other facts about the Astute class of SSN (Ship Submersible Nuclear) cause concern. The Royal Navy’s website says: “Astute is the first of a new Class of submarine that will be the largest and most powerful nuclear attack submarines ever built for the Royal Navy. Astute’s capacity for sustained high speed combined with almost unlimited endurance enables a truly global reach. Deployed SSNs are inherently at high readiness, they can move over 500 miles in a day, allowing them to redeploy to any theatre in the world within 14 days. The SSN’s stealth is a key attribute, allowing it to operate covertly, with little risk of counter-detection, this provides strategic and operational flexibility. The Astute design extends the current SSN capacity to fully exploit the underwater environment, including littoral waters, allowing it to integrate even more closely with other joint forces to deliver a range of effects, some far inshore. The submarine will be able to sit off coasts undetected listening in to mobile phone conversations and has the ability to insert Special Forces by mini submersibles into enemy territory where they can direct the boat’s Tomahawk cruise missiles with a range of 1,400 miles.” This is clearly not just a tool for “defence” or even just for attacking any “enemy invader” but designed to “deliver a range of effects, some far inshore” -which means bomb people in other countries. This use of Faslane is not consistent with the Working Groups vision of “international efforts to build peace and security without nuclear weapons”.
The possibility of Scotland becoming a de-militarised zone may be a very long way from where we are now but just consider that the unemployment rate in West Dunbartonshire is 7.5% whereas in the Åland Islands (a de-militarised autonomous island off Finland) it is only 2.2%. Many of the people of Scotland who are opposed to nuclear weapons are opposed to waging war. While Scotland has very strong military traditions there is also a long proud history of opposition to war and the many benefits of becoming de-militarised should not be overlooked. Likewise there are a number of options for development of the surrounding area with the potential to create jobs to offset the indirect jobs lost through downsizing the Clyde bases. In April 2010, at a meeting of the Helensburgh and Lomond Chamber of Commerce Craig Lockhart, managing director of Babcock, said “In comparison to most places Helensburgh ‘has got it all’ in terms of its waterfront, rail, road and ferry access, panoramic views, its promenade, its situation at the edge of a national park, its town square and vibrant sailing community with marina access”. Sadly he saw the way forward for Helensburgh was for it to capitalise on being the “home of the submarine fleet”. All the assets that Helensburgh has makes it ideal as a holiday and tourist town which is much more sustainable than relying on a military base on its doorstep.
The planning for a Scotland without nuclear weapons must start straight away. Practical steps for decommissioning Trident must be established and positive options for developing the area widely discussed and projects for revitalising the area actually set in motion. As well as the various “key partners” that are mentioned in option 1 such as Local Authorities and PACE there should be a pathway for workers who do not hold official positions within the unions and local people who have long been associated with the base to feed in their ideas. During the Faslane 365 yearlong blockade of Faslane there were several meetings held with local people, some of whom worked in Faslane. They had a very low opinion of Alternative Employment studies and felt that the proposals were unrealistic. In spite of this being raised by us at the summit the Working Group has recommended that an expert group of the relevant agencies be set up. We would like the inclusion of a route for ordinary workers and local people to get involved in a meaningful way with this planning. Already a number of ideas have been put forward in the Faslane area, such as a water sports facility, a centre of excellence for engineering innovation developing such things as wave- powered electricity generation and a nautical college. There is the potential for the process undertaken here in Scotland to serve as a model for other nuclear powers and so the work must be done in as open and accountable way as possible with clear documentation. The most vital thing is that something has to be done and seen to be done to carry forward the work of the Scotland without Nuclear Weapons Working Group. To lose the momentum on this important start would be a very big missed opportunity to carry out the wishes of the people of Scotland within the devolved Scotland setting.
Reply from Nukewatch to the Scottish Government Response to the Scotland Without Nuclear Weapons Working Group Report
In November 2009 the Scottish Government published its response to the report of its working group on Scotland Without Nuclear Weapons. As one of the organisations that was represented at the initial Scotland Without Nuclear Weapons summit hosted by the Scottish Government in 2007, Nukewatch welcomes the working group’s report and the Scottish Government’s response, and would like to congratulate and thank the Scottish Government for carrying out this piece of work.
We welcome the reassertion of Scotland’s opposition to nuclear weapons and to plans to replace the Trident nuclear weapons system, and also the steps which the Government proposes to take to address issues arising from the report.
In the response to the working group’s report the Scottish Government has made a number of commitments to build on the work that has already been done by the group. Nukewatch would like to make a number of suggestions aimed at helping the Scottish Government to deliver on these commitments. We would like to offer Nukewatch’s assistance to the Scottish Government in taking the necessary actions forward.
Non-Proliferation Treaty and verification of nuclear weapons In section 19 of its response, the Scottish Government states it will review the role Scotland may play in the Non Proliferation Treaty (NPT) Review Conference and in engaging with NPT signatories.
Another way in which Scotland might be able to contribute to non-proliferation initiatives is to participate in the UK government’s efforts to establish a ’disarmament laboratory’, first proposed by Margaret Beckett in a speech to the Carnegie Endowment in June 2007. As part of this initiative, the government is undertaking technical research at the Atomic Weapons Establishment (AWE) on verification issues relating to nuclear disarmament. Steps to verify that states are not in breach of their obligations under the NPT – and any future Nuclear Weapons Convention aimed at abolishing nuclear weapons – will be crucial in building trust between governments and allowing disarmament to take place. As part of any verification process, it will be important to reliably track and monitor the movement of nuclear weapons. This can be done by technical means and also by ’citizen verification’, where members of the public, non- government organisations (NGOs), and industry whistle-blowers provide independent information about nuclear weapons programmes and the movements of nuclear weapons. Nukewatch has for many years been operating as a citizen verification movement.
At the present time, independent citizen verification plays a role in validating the UK government’s own statements on its nuclear stockpile, and also provides information which helps to monitor whether the government is in compliance with its international obligations under the Nuclear Non- Proliferation Treaty. Working in collaboration with NGOs, the Scottish Government could take certain steps which might support initiatives aimed at verifying details of the UK nuclear weapons programme. These could include the use of traffic control technology to track movements of nuclear warhead convoys, and logging of movements of submarines from HM Naval Base Clyde.
Such information could then be collated and used to provide authoritative information on the status of the UK’s nuclear stockpile. An annual summary report on warhead movements could be prepared using this information and passed on to the International Atomic Energy Authority and the wider international community. Such a report would have the authority of government behind it and would act as a good example to other nations in promoting transparency by disclosing information about the deployment of nuclear weapons. Information could be shared and disseminated using a website, accepting that there would be certain information that it would not be appropriate to disclose via the internet.
Planning and regulatory issues In sections 27 and 29 of its response to the working group the Scottish Government promises to explore further what actions might be taken in relation to regulatory issues. Experience from England, and in particular with planning applications submitted at AWE sites, shows that the planning process can potentially play an important role in addressing concerns and providing an opportunity for public consultation at defence nuclear sites. However, since crown immunity for the Ministry of Defence (MoD) from planning law has only recently lifted, it is our view that the MoD is still learning in this area and has not yet adopted best practice. We suggest that the Scottish Government supports local authorities in handling planning applications at defence nuclear sites, and emphasises the importance of the following matters:
• The need for the MoD to provide adequate information about proposed developments. Security is sometimes given as a reason for providing limited information, although it is not always clear how security interests would be compromised if further detail about the development was released to the public. If necessary, mechanisms exist to allow the scrutiny of sensitive information by special advocates in camera at a public inquiry.
• The importance of consultation on proposed developments. As local communities will experience both the potential benefits and risks of any development at a defence nuclear establishment, it is important that they are given the opportunity to have their say and make informed comment.
• The importance of following due process. If short-cuts are taken with the aim of speeding up the processing of a planning application, it will result in increased suspicion of the motives and professionalism of the MoD, as the developer.
• Ministers should be willing to call in applications for future large scale development at HMNB Clyde where there are good legal reasons for doing so, and should consult the public before coming to a decision on an application.
• Local planning authorities should make full use of planning conditions and other mitigation measures to reduce the impacts of development at defence nuclear establishments, and also use section 75 agreements to ensure that the costs of external infrastructure required to support the development are carried by the MoD rather than the local authority.
• Environmental Impact Assessments should be conducted for major developments at defence nuclear sites and the precautionary principle should be applied to development, and planning permission withheld if the environmental risks are sufficiently uncertain.
We welcome the commitment in the report to write to the UK Government to seek the removal of the defence related exemptions from the Radioactive Substances Act 1993 and to request that the Health and Safety Executive should be responsible for regulating defence establishments in Scotland under the Nuclear Installations Act 1965 (section 32), as we consider that crown immunity in these areas has resulted in practices which do not represent good practice and would not be considered acceptable elsewhere. For example, a report in the Sunday Herald (’Revealed: the catalogue of chronic safety blunders at Scotland’s nuclear navy bases’, 16th May 2010) describes how Faslane and Coulport have experienced a catalogue of nuclear accidents, radioactive contamination incidents, and fires over the last two years. The problems at the bases include unspecified “shortfalls” in the safe management of nuclear bombs and non-compliance with legislation aimed at protecting the public from the risks of asbestos and Legionnaires’ disease. The reports which revealed this information were only released in response to a request made under the Freedom of Information Act. Nukewatch takes the view that standards of regulation at Faslane and Coulport applied by the MoD’s internal nuclear regulator, the Defence Nuclear Safety Regulator (DNSR), have been inadequate. A legacy of safety shortfalls has built up at the bases under the regulator’s supervision, and DNSR appears reluctant to take action to ensure compliance with its own standards. A similar situation existed at the Atomic Weapons Establishment sites in Berkshire at the beginning of the 1990s, and in response the sites were brought under the civil nuclear regulatory regime and overseen by the Health and Safety Executive. The result was a dramatic improvement in safety standards.The Royal Navy’s newest nuclear submarine, HMS Astute, was sent for repair to Faslane naval base on the Clyde after it ran aground for ten hours near the Skye Bridge on 22 October. One of the boat’s fins was damaged in a collision with a tug trying to rescue it. (information revealed in response to Angus Robertson’s parliamentary question) We therefore consider it important that the Scottish Government insists that the Clyde nuclear bases are brought under the control of the civil nuclear regulator. Proposed changes to the legal status of the Health and Safety Executive’s Nuclear Directorate also provide an opportunity to request that the transport of nuclear weapons is brought under the control of a civilian regulator.
As a number of functions at HM Naval Base Clyde are now conducted by private contractors, the Scottish Government should ask SEPA, the Health and Safety Executive, and other appropriate agencies to review licenses and consents relating to HMNB Clyde to establish whether these should be granted to contractors operating on behalf of MoD rather than the Ministry itself.
Nuclear safety and transportation In section 30 of its response the Scottish Government commits to asking MoD to consider informing local authorities of the transportation of nuclear warheads through their regions, and in section 31 it promises to share relevant information with responder organisations. A major concern in this area is the limited information available about the risks of an accident during the transport of nuclear weapons. The Scottish Government should acquire and share certain specific information – as far as possible working with the MoD – to help in understanding these risks and assessing the adequacy of contingency arrangements for responding to an accident involving a nuclear weapon whilst in transit:
• The Scottish Government should request the MoD to pass on details of risk assessments which have been undertaken for convoy routes in Scotland, or to undertake risk assessments if no such assessments have been prepared to date and advise the MoD .
• The Scottish Government should commission an independent technical assessment of whether the Local Authority and Emergency Services Information (LAESI) guidelines, which provide advice on contingency arrangements for dealing with an accident during the transport of a nuclear warhead, are fit for purpose, and if not, identify the nature of the detailed information required to bring them up to an adequate standard.
Given that the road transport of nuclear weapons is a visible and controversial part of the nuclear weapons cycle, Nukewatch considers that the Scottish Government should commission a public inquiry on this topic – as recommended by the Scotland Without Nuclear Weapons working group – to help develop a broader view of the issues and risks associated with the transport of nuclear weapons. Such an inquiry could help develop momentum for the type of ‘citizen verification’ monitoring initiative which we propose above. It would also build constructively upon the very useful survey work on nuclear emergency planning issues which was conducted by the Scotland Without Nuclear Weapons working group – which has since been duplicated in England by the Nuclear Free Local Authorities.
A community-based inquiry of this nature was organised by Reading Borough Council in 1993 and chaired by Helena Kennedy QC to investigate local concerns about impacts from the Atomic Weapons Establishment at Aldermaston. The inquiry heard evidence from AWE itself, as well as local authorities, non-government organisations, and local community groups, and resulted in benefits such as increased public engagement from the management at AWE; the release of new information about operations at the site; and the establishment of a local liaison committee for the site. An inquiry into the transport of nuclear weapons through Scotland could hear evidence from similar witnesses and should investigate risks, safety arrangements, and emergency plans relating to convoy movements. The MoD should be invited to give evidence at the enquiry.
Process issues In order to deliver on the commitments that it has made in its response to the Scotland Without Nuclear Weapons working group, we suggest that the Scottish Government:
• Draws up a clear action plan outlining the precise steps which will be taken to meet these commitments, with target dates for completion.
• Reconvenes the Scotland Without Nuclear Weapons working group to monitor progress in achieving the action plan, provide further technical advice, and assist in feeding back to and engaging with stakeholders.
• Works hard to engage the MoD (which may, understandably, have reservations on the Scotland Without Nuclear Weapons project) in constructive dialogue as a partner, rather than a potential adversary, in delivering these commitments, many of which address issues where there is a common interest.
Conclusion The Scottish Government’s working group has made a good start in tackling some of the issues which will be needed to build a Scotland without nuclear weapons. In its report, the working group stated that it “encourages the UK Government to be bolder in carrying through its commitments and to consult with the Scottish Government and others in preparation for ending the deployment of British nuclear weapons.” Although we understand there are legal and political considerations which constrain the actions of a devolved Scottish Government and appreciate the reasons why the Government may wish to be cautious, we feel that the Scottish Government, too, should be bolder in taking forward some of the recommendations made by its working group. Concluding its response to the working group’s report, the Government states that it “remains opposed to the possession and use of nuclear weapons, and is committed to playing a leading role in this matter where this is possible within the current devolution arrangements”.
Without leadership and bold action this statement will count for little, and nuclear weapons will remain in Scotland indefinitely. Over the months ahead we look forward to bold action from the Scottish Government to create a Scotland without nuclear weapons, and look forward to assisting in this mission
The Edinburgh Peace and Justice Centre Reply to the Scottish Government Response to the Scotland Without Nuclear Weapons Working Group Report
The Edinburgh Peace and Justice Centre thanks the Scottish Government for setting up the working group to consider Scotland Without Nuclear Weapons – a vision that the Centre has hoped for since its foundation in 1980, and has campaigned for vigorously, providing a base for Edinburgh CND in addition to political lobbying and working with others on the legal implications of nuclear weapons over many years. We were delighted to be invited to participate in the initial Scotland Without Nuclear Weapons summit in 2007 and have considered the Report and the Government’s response with interest and hope.
Throughout its existence the Centre has sought to foster understanding of ways in which a peaceful and sustainable world order can be established. That world order is incompatible with nuclear weapons. As Lord Louis Mountbatten said in May 1979, shortly before his death, nuclear weapons have no military purpose. ‘They only add to our perils because of the illusions which they have generated.’
Beyond the incompatibility between nuclear weapons and the desire for a peaceful and sustainable world order, the Centre believes that the UK government cannot bind the Scottish people to a weapons system which they and their parliamentary representatives consider to be basically immoral, and which many consider the very possession of to be criminal. Our participation in the 2007 Summit was particularly to address the legal implications of nuclear weapons being deployed in Scotland; as in all the aspects discussed, time restraints allowed no more than the identification of some areas that could be explored, but it was a start. We had hoped that the Working Group would have been able to make strong proposals and that the Government’s Response would have included commitment to action to question the legality of the weapons on Scotland’s soil.
The current acceptance of the legality of the UK’s nuclear weapons is based on the Lord Advocate’s Reference (2000). This needs to be revisited, for the British Government has since committed itself to replacing the Trident nuclear weapons system, putting itself even more obviously in breach of the Non-Proliferation Treaty, and in rejection of the unanimous Opinion of the International Court of Justice (1996) Other key changes have occurred since the Lord Advocate’s Reference was given, and the request for this must come from the Scottish Government; devolution his given us a Scottish Government with responsibility for justice. The UK Government’s decision to go to war and to threaten the use of nuclear weapons in that war (Geoff Hoon’s 2002 statement that if Iraq used weapons of mass destruction on British troops chemical weapons presumably, there could be nuclear retaliation) is material to the legality of their possession.
The International Court of Justice gave its ground-breaking opinion on the illegality of nuclear weapons as a consequence of the determined actions of concerned individuals and groups. We are aware that good and fair laws are established by governments when the best efforts of such groups and individuals are taken up by their elected representatives and that process is at the heart of government.
We thank Bruce Crawford and the Government for: “ A summit with key stakeholders to agree a joint position against Trident and get the best ideas and proposals from an alliance of people from throughout Scottish life who oppose the son of Trident. We will stand up for our beliefs and do all that we can to represent Scottish opinion on these vital matters.” International humanitarian law has come about through consistent international acceptance of the principle that inhumane acts done against any civilian population are crimes against humanity. The distillation of laws created in this way, examined by the best legal minds in the most impartial of settings lies behind international law. In the words of HE Judge Weeramantry: “It cannot be stressed too strongly that there cannot be a more authoritative statement of international law than a unanimous Opinion of the international community’s highest judicial tribunal.”
The Scottish Government and Scotland’s distinct legal system has a specific accountability and responsibility under the Nuremberg principles. These principles exist for the benefit not only of Scotland, but of all humanity. We wish you well in all the important work you are called upon to do for all of us.
Response from Trident Ploughshares, World Court Project and Institute for Law and Peace to the Legal Conclusions of the Scotland Without Nuclear Weapons Working Group Report.
Outline of Argument Our argument is that the Working Group’s analysis of Britain’s obligations under the Nuclear Non- Proliferation Treaty (NPT), and of International Humanitarian Law (IHL) is thorough as far as it goes. However, there is little attempt to expose the weaknesses and flaws of the UK Government’s position on these issues. As a result the paper’s legal conclusions and Summary of Options are not only over-cautious but fail to give the Scottish Government the strong arguments it needs to rid Scotland of Trident. We recommend much stronger action on the legal issues. Implications of the NPT.
The Report makes full reference to Article VI of the NPT, the 1995 Principles and Objectives for Nuclear Non-Proliferation and Disarmament, and the consensus adoption of the 2000 NPT final document. The Report rightly invokes the Vienna Convention on the Law of Treaties to show that the Principles and Objectives are legally enforceable and we would ague that the same applies to the 2000 Final Document. The 1996 Advisory Opinion of the International Court of Justice (ICJ) on Legality of the Threat or Use of Nuclear Weapons found that: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control”. (para 105F). This conclusion is closely linked with the “general” illegality of nuclear weapons and their threat or use. A binding global framework for a nuclear weapon-free world would put nuclear weapons beyond the bounds of legality once and for all. It builds on Article VI of the NPT in which the parties undertook: “to pursue negotiations in good faith on effective measures relating to the cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.” The Working Group’s report does not pay sufficient attention to important aspects of these statements. Starting Negotiations on the Elimination of Nuclear Weapons Every year since 1996, the UN General Assembly has adopted a resolution following up on the Advisory Opinion which, “Calls once again upon all States immediately to fulfil that obligation by commencing multilateral negotiations leading to an early conclusion of a nuclear weapons convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their elimination.” The obligation to “bring to a conclusion” negotiations to eliminate nuclear weapons is placed on all states to act in concert. The UK is not in a position to do this unilaterally. However, individual states, and especially the Nuclear Weapon States signatory to the NPT, have a special obligation to exert themselves to bring about the commencement of negotiations. There is no evidence that the UK Government is willing to do this. For several years letters to concerned citizens from the Ministry of Defence and the Foreign Office consistently refer to minimal intermediate steps. For example, a letter from The Ministry of Defence to Trident Ploughshares of 22 June 2009 states: “We have ratified the Comprehensive Test Ban Treaty and call regularly on all states that have not yet done so to do the same (particularly those whose ratification is required before the Treaty can enter into force). We are also working hard for the start of negotiation without pre-conditions on a Fissile Material Cut-Off treaty in the Conference on Disarmament in Geneva.” There is no reference to the start of negotiations for nuclear disarmament or a nuclear weapons convention, nor is there in the Government’s December 2006 White Paper on The Future of the United Kingdom’s Nuclear Deterrent.
The Good Faith Obligation Both the ICJ and the NPT lay emphasis on the concept of Good Faith. This has meaning in everyday life but it also has legal force. The principle of good faith was said by the ICJ to be one of the basic principles governing the creation and performance of legal obligations (Nuclear Tests Cases (Australia v France; New Zealand v France). Speaking in Edinburgh in 2009 Judge Christopher Weeramantry, former Vice-President of the International Court of Justice from 1997 to 2000, said: “Nobody aware of that evidence could be left in the slightest doubt that every step that can be taken legally towards the abolition of this weapon of brutality needs to be taken and that those steps should be taken not nominally but effectively, not leisurely but urgently, not hesitantly but decisively. Good faith should pervade the whole operation, for good faith is an essential element in every aspect of the application and observance of international law.” Essentially, “Good Faith” means negotiating sincerely and flexibly to achieve the desired result – global nuclear disarmament. This objective should be pursued consistently with real political will. The conclusion should be reached within a reasonable time and the parties must avoid policies which contradict the very purpose of the negotiations. At its heart is trust that the parties to negotiations mean what they say and will carry out their promises. Good Faith must be shown in the quest for a Nuclear Weapons Convention. The Scottish government should compare the energy the UK Government is devoting to escalating diplomatic pressure on Iran to comply with its obligations under the NPT, whilst at the same time doing nothing to pursue its own obligations under Art VI. Although the Report pays attention to the view that Trident Replacement is not compliant with the obligation to eliminate nuclear weapons, it fails to use the arguments to make a strong condemnation of Trident Replacement on international law grounds and thus fails to recommend that Scotland refuse compliance with basing any such replacement in Scotland. The report also fails to explore thoroughly that ’Good Faith’ also impacts on the current Trident system in Scotland as the continuing active deployment of Trident for the ’foreseeable’ future in the context of current UK policies undermine good faith negotiations for disarmament. International Humanitarian Law (IHL) Here again the Report gives a fairly comprehensive consideration to the legality of Trident and its proposed successor. However, it draws back from making the robust recommendations which should arise from this analysis. One significant indicator of this is the very limited attention given to UK Government’s position on legality. It comprises one paragraph: “UK Governments have publicly taken the position in relation to international humanitarian law that the 1996 ICJ Advisory Opinion advised that the use, or threat of use, of nuclear weapons was subject to the laws of armed conflict, but rejected that their use was necessarily unlawful. It argues such weapons would only be used in self-defence in extreme circumstances subject to the law of armed conflict, and that it recognises the applicability of the rules of proportionality, discrimination, moderation, and civilian immunity.” This is not surprising. The Government itself has contributed little to the discussion on legality. Concerned citizens, confused by the contrast between the laws of armed conflict and what the British State is actually doing, regularly write to the Government. Official replies are often evasive and irrelevant and usually claim, with no supporting argument, that Britain would never use nuclear weapons unlawfully. This is assertion, not argument. This approach is also shown in the December 2006 White Paper. The sum total of what it has to say on the UK’s obligations regarding nuclear weapons under international humanitarian law is: (Para 2-11). “In 1996 the International Court of Justice delivered an Advisory Opinion which confirmed that the use, or threat of use, of nuclear weapons is subject to the laws of armed conflict, and rejected the argument that such use would necessarily be unlawful. The threshold for the legitimate use of nuclear weapons is clearly a high one. We would only consider using nuclear weapons in self-defence (including the defence of our NATO allies), and even then only in extreme circumstances. The legality of any such use would depend upon the circumstances and the application of the general rules of international law, including those regulating the use of force and the conduct of hostilities.” (Para 2-11). This pre-empts discussion of the issues by stating that the legality of use could only be assessed in an actual situation when they might be used. It follows that legal considerations can be dismissed as “hypothetical”. We can glean a little more about Government thinking from the UK written and oral pleadings before the ICJ in 1995-96. It is unlikely that there has been much new analysis since then. The UK argued before the Court that if nuclear weapons were used the intention would be to destroy military targets through their heat and blast. Radiation, said the UK, is only a side effect. There would therefore be no actual intention to “poison” the enemy through radiation (UK oral pleading 1995 para 3.60). However, nuclear weapons are “explosive devices whose energy results from the fusion or fission of the atom.” (ICJ 1996 Advisory Opinion, para 35). Radiation is therefore of the essence. The UK might believe that consequences which are inevitable and necessary, but unintended, are not relevant to the legal argument but this is not our view and should be argued, not merely asserted. The UK pleadings emphasised the accuracy of small nuclear weapons detonated in isolated areas. These may not violate the IHL principle of discrimination. This, it is argued, would depend on the circumstances prevalent at the time. We accept that targeting may well be accurate. However, the likely effects of a weapon must also be taken into account when assessing discrimination. No one could reliably forecast the complex atmospheric conditions and the direction of the wind at any given moment. The effects would be so unpredictable that accurate targeting would be irrelevant. No nuclear launch could be made with any assurance that its effects would fall within the bounds of legality. Weapons like the 100 kiloton Trident warhead are designed to detonate as air bursts to cause the maximum damage. Smaller 1-5 kiloton weapons would be exploded on the ground in order to destroy precise targets. They would throw up enormous quantities of radioactive dust which would be sucked into the stratosphere and come down anywhere – even thousands of miles away. This would irradiate unpredictablenumbers of people then and well into the future. Both the UK and the US have consistently asserted that those arguing for illegality claim that all nuclear weapons have certain “inherent” characteristics which inevitably make their threat or use incompatible with international humanitarian law. “Many of the submissions made to the Court have displayed a similar tendency to assume that, as a matter of course, any use of a nuclear weapon will inevitably violate the principles of the laws of war designed to protect the civilian population.” (UK oral pleading page 40). However, the ICJ stated that because of the “unique characteristics of nuclear weapons … the use of such weapons in fact seems scarcely reconcilable with respect for [theprinciples and rules of law applicable in armed conflict].” (Opinion, para 95). Although nothing can be predicted with certainty we do not have toprove that any threat or use would be inherently illegal under any circumstance. We only need to argue that the probability of lawful use in any plausible scenario is reduced to vanishing point. This conclusion is not invalidated by results of the Lord Advocate’s Reference in the Trident Ploughshares case which the Report refers to. Its main conclusion was that: “the United Kingdom’s deployment, within and outwith Scotland, of Trident nuclear warheads and the Governments current defence policy do not in our opinion include any threat to use such warheads in the sense in which a threat is equiparated to use, so as to be illegal as a matter of customary international law or international humanitarian law.” This is essentially about the deployment of Trident, not its use. The Working Group notes the ICJ’s ruling that “it is unlawful to threaten to do that which it is unlawful to do”. However, the Lord Advocate’s Reference turned on the definition of “threat” and the ambiguity of the ICJ’s unwillingness to pronounce on the legality of the threat or use of nuclear weapons “in an extreme circumstance of self-defence, in which the very survival of a State would be at stake” The Report accepts that these legal points are open to argument but fails to provide substantial commentary on them. Firstly there is the issue of whether Trident could be used lawfully to defend a country from attack. Trident is not an anti-ballistic system and therefore could not destroy incoming missiles. If it were used as a first-strike weapon to destroy missiles on site this would be illegal under the UN Charter Article 51 definition of self-defence. Use of Trident’s 100kt after a nuclear attack on one’s own country could not be justified under the rules of retaliation or reprisal. This would violate the principles of discrimination and proportionality. The incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment would be clearly excessive in relation to the concrete and direct overall military advantage anticipated, and this is the very definition of a particular kind of “war crime” under Art.8 of the 1998 Statute for the International Criminal Court, which applies also in Scotland under Schd 1 Art 8 (War Crimes) Para2(b)(iv) of and to the ICC (Scotland) Act 2001. This brings us to the question of threat. Nuclear deterrence is based on the perceived intention by a state to retaliate to a nuclear strike by a nuclear response. But as such retaliation would be illegal, so would the intention to carry it out also be illegal. This is true even if the UK has secretly decided never to carry out such an action. The postulation of vacuous threats has always been rejected by the law on the basis that the criminality of the threatening act lies in the mind of the victim or threatened party who must be presumed not to know definitively whether or not the threat is vacuous. In fact, the UK Government has always refused to divulge the circumstances in which it would use nuclear weapons on the basis that uncertainty strengthens the deterrence effect. Scottish Law provides an important insight on what qualifies as an illegal act complicit in the making of even merely a “deterrent” threat. The provisions of ss.2(1) & 7(c) of that same statute of 2001 provides that it is an offence in Scotland for a UK resident not only to commit a war crime anywhere in the world, but moreover merely to agree with or plan with one or more others to do so in future, i.e. to conspire to commit such a war crime. This is true even if the intention is only conditional in the sense that they would only be put into action under certain circumstances – in this case a hostile nuclear strike. In any case, we are still left with the situation that even if the actual deployment of Trident in Scotland has been endorsed on legal grounds, it could hardly be used lawfully; and the Government has never provided convincing reasons to suppose otherwise. The arguments above are in any case irrelevant if the present Trident system could never be used in accordance with international law. Many of the legal arguments aired in the Lord Advocate’s Reference hinged on an understanding of the ’loophole’ that the nuclear weapon states inserted into the 1996 Advisory Opinion proceedings where they argued that there could be a nuclear weapon that was small and precise enough (even though not yet invented) that could be used in accordance with international law. This theoretical ’loophole’ ensured that not only did the ICJ find no circumstances in which they could be used legally but also failed to pronounce on the illegality of nuclear threat or use in all circumstances. However, the present Scottish Report that we are discussing is not arguing in abstract but is considering the present Trident system and the replacement to Trident. A recent statement (see paragraph below) from Judge Bedjaoui (who was the President of the International Court of Justice during the 1996 Advisory Opinion) clarifies the position and makes it crystal clear that if Scotland wishes to be in full compliance with international law then it must insist that Trident is taken away from Scotland. Judge Bedjaoui made a statement on 26th May 2009 “… for the use of all those in Scotland wishing to ensure full compliance with international humanitarian law, I would like to stress that the International Court of Justice in its Advisory Opinion of July 8, 1996, did not have at its disposal adequate elements of fact to permit concluding with certainty whether a specific nuclear weapon system would be contrary to the principles and rules of the law applicable in armed conflict. The Court was asked to rule on a general question of use and threat of use of nuclear weapons. If the Court had been asked to rule on the legality of a specific nuclear weapons system or doctrine the conclusion we arrived at might well have been much clearer. I have been asked to give a personal opinion on the legality of a nuclear weapons system that deploys over 100 nuclear warheads with an approximate yield of 100 kt per warhead. Bearing in mind that warheads of this size constitute around eight times the explosive power of the bomb that flattened Hiroshima in 1945 and killed over 100,000 civilians, it follows that the use of even a single such warhead in any circumstance, whether a first or second use and whether intended to be targeted against civilian populations or military objectives, would inevitably violate the prohibitions on the infliction of unnecessary suffering and indiscriminate harm as well as the rule of proportionality including with respect to the environment. In my opinion, such a system deployed and ready for action would be unlawful. In accordance with evidence heard by the Court, it is clear that an explosion caused by the detonation of just one 100 kt warhead would release powerful and prolonged ionising radiation, which could not be contained in space or time, and which would harmfully affect civilians as well as combatants, neutral as well as belligerent states, and future generations as well as people targeted in the present time. In view of these extraordinarily powerful characteristics and effects, any use of such a warhead would contravene international and humanitarian laws and precepts. In other words, even in an extreme circumstance of self-defence, in which the very survival of a State would be at stake, the use of a 100 kt nuclear warhead – regardless of whether it was targeted to land accurately on or above a military target — would always fail the tests of controllability, discrimination, civilian immunity, and neutral rights and would thus be unlawful. In my opinion, any state that aids and abets another country, in the deployment and maintenance of nuclear warheads of 100 kt or comparable explosive power would also be acting unlawfully. The modernisation, updating or renewal of such a nuclear weapon system would also be a material breach of NPT obligations, particularly the unequivocal undertaking by the nuclear weapon states to “accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament” and the fundamental Article 6 obligation to negotiate in good faith on cessation of the arms race and on nuclear disarmament, with the understanding that these negotiations must be pursued in good faith and brought to conclusion in a timely manner.”
Conclusion and Recommendations Most of the Report’s Summary of Options is concerned with recommendations for the Scottish Government to take a more prominent place in the NPT regime. However, it does not address some of the fundamental issues of UK compliance with the Good Faith obligation to achieve the elimination of nuclear weapons at an early date. The Report also “encourages the UK Government to be bolder in carrying through its commitments and to consult with the Scottish Government and others in preparation for ending the deployment of British nuclear weapons.” The Summary refers to the need to “Explore the various international opinions that exist on the legality of nuclear weapons so far as relevant to matters within the devolved competence of the Scottish Government”. However, the “various opinions” do not include a detailed or convincing account by the UK Government on how Trident could ever be used lawfully. We know that even senior members of the Armed Forces are very concerned about the legality of what they are ordered to do. In the light of Judge Bedjaoui’s statement of 26th May 2009, the Scottish Government has a right to ensure that it does not continue to aid and abet ’the deployment and maintenance of nuclear warheads of 100 kt’ We therefore recommend more robust action from the Scottish Government.
• In the light of Judge Bedjaoui’s statement the Scottish Government should refuse to be complicit in aiding and abetting the UK in the deployment and maintenance of nuclear warheads of 100 kt and thus demand the withdrawal of Trident from Scotland. The full force of legal argument should be used.
• The Scottish Government should require the UK Government to show ’good faith’ in its basic compliance with NPT Article VI and the ICJ ruling on the obligation to begin negotiations, at an early date, on the elimination of nuclear weapons. This should consist of a radical re-phrasing of the UK’s defence policies such that they no longer rely on nuclear weapons in any way. It should also consist of full support for a Nuclear Weapons Convention (a comprehensive, verifiable, irreversible, phased treaty to outlaw and abolish all nuclear weapons) to be commenced by 2015 and concluded by 2020.
• It should carry out a re-assessment of the Lord Advocate’s Reference, especially as it relates to the issue of the conditional threat to use nuclear weapons as a vital element of the policy of deterrence.