Angell and Others v SSHSC and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Stacey |
| Judgment Date | 08 March 2023 |
| Neutral Citation | [2023] EWHC 495 (Admin) |
| Docket Number | Case No: CO/1111/2021 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 495 (Admin)
THE HONOURABLE Mrs Justice Stacey
Case No: CO/1111/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Michael Mansfield KC and Mr Philip Rule (instructed by Hackett and Dabbs LLP) for the Claimants
Mr Jack Anderson (instructed by Government Legal Department) for the Defendants
Hearing dates: 6–7 February 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 8 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HONOURABLE Mrs Justice Stacey
This case concerns the claimants' perceptions of the public health risks associated with 5G wireless technology (“5G”). A claim for judicial review was lodged in March 2021 which, in general terms, alleged that the defendants had both failed to investigate and consider the nature and extent of the risks to the safety of individuals and human health from 5G; had failed to implement safeguards to the exposure of non-consenting children and adults to the risk of harm from 5G; and, nor had they provided adequate or effective information about the risks to the public. Wide ranging grounds were relied on: breach of s.6 Human Rights Act 1998 (“ HRA 1998”) by reference to articles 2, 3 and 8 European Convention of Human Rights (ECHR); failure to consider the best interests of children; breach of the public sector equality duty pursuant to s.149 Equality Act 2010 (“PSED”); breach of a statutory duty under s.2a of the National Health Service Act 2006; failure to have regard to a relevant consideration; failure to provide adequate and sufficient reasons and/or transparency; and irrationality and/or irrational failure to make sufficient enquiry.
One of the claimants and several witnesses in the claim have developed medical symptoms which they attribute to being in the vicinity of 5G. The first defendant is the Secretary of State for the Department of Health and Social Care, (“DHSC”) and is responsible for the advisory Committee on Medical Aspects of Radiation in the Environment, (“COMARE”). Public Health England (“PHE”) was an executive agency of the DHSC whose functions, in so far as are relevant to the issues in this case, have been transferred to the United Kingdom Health Security Agency (“UKHSA”). The second defendant is the Secretary of State for the Environment, Food and Rural Affairs, (“DEFRA”). The third defendant is the Secretary of State for Digital Culture Media and Sport, (“DCMS”) and is responsible for the roll-out of 5G and for the operation of Ofcom (a regulatory body created by the Communications Act 2003) and is empowered to introduce requirements for Ofcom to adhere to in licensing 5G technology and mast installations.
Permission was initially refused and the claim was ruled out of time by Foster J on the papers and then by Lang J following an oral renewal hearing. The substantive reasons for both judge's decisions were similar:
“2. There is no arguable issue of law here nor is it arguable that there is some failure of rationality, logic or fairness. The decisions made are as the Defendants submit, quintessentially for Government and they were made on the basis of recognised materials and expertise: the technical advice to Government does not support the Claimants' concerns.
3. The case law cited at paragraph 55 of the Defendants' SGD supports the proposition there advanced: that this Court is in any event very slow to interfere with matters of technical scientific judgement and in particular in the public health sphere. The existence of differing views is not without more, evidence of a public law error in preferring one approach to another.
4. The Defendants have set out their (rational, scientifically based) view that there is nothing fundamentally different about the physical characteristics of the radio signals produced by 5G…..
5. Compared to those produced by 3G and 4G. The question whether non-ionising radiation has an impact on health is one that the defendants say has long been studied and a substantial international consensus exists to the effect that the roll out of 5G is safe.
6. In R (Watts) v Secretary of State for Digital, Culture, Media and Sport and Secretary of State for Housing, Communities and Local Government CO/3668/2020, the High Court rejected a challenge to the government's response to the consultation on proposed reforms to permitted development rights to support the development of 5G. This had been brought by a person claiming to suffer as some of these Claimants allege. This application is rejected not on account of that decision, but the case is illustrative of the effect of the Defendants' evidence namely, that the decision-making is based upon cogent technical information and unassailable in pubic (sic) law terms.” (Foster J)
And
“12. As to the merits, I consider that each of the grounds of challenge face an insuperable obstacle, namely, that the defendants have obtained and considered extensive scientific evidence and advice on the potential health risks posed by RFR and 5G wireless technology, and have concluded that there is no risk to health, provided levels remain within recommended limits. Furthermore, the specific evidence provided by these claimants has been referred to Public Health England, which has advised the defendants that no further action is warranted.
13 The fact that the claimants and others disagree, and that there are genuine differences of professional opinion on these issues, is not a sufficient basis for a judicial review. The defendants' conclusions do not disclose any arguable error of law and the Court will not substitute its views for those of the defendants and its scientific advisers. For those reasons, permission is refused.
14 Finally, I observe that the individual complaints of adverse health effects may give rise to private law claims for personal injury if those concerned are able to obtain the necessary medical and scientific evidence on causation, and identify appropriate defendants. This may be a more appropriate route than a judicial review and human rights claim, but, of course, that is a matter on which the claimants should seek their own legal advice.” (Lang J)
On appeal to the Court of Appeal, on 25th of May 2022, permission to apply for judicial review was granted on the following grounds only by Lewison LJ:
1. Failure to provide adequate or effective information to the public about the risks and how, if it be possible, it might be possible for individuals to avoid or minimise the risks from 5G technology
2. Failure to provide adequate and sufficient reasons for not establishing a process to investigate and establish the adverse health effects and risks of adverse health effects from 5G technology and/or for discounting the risks presented by the evidence available; and
3. Failure to meet the requirements of transparency and openness required of a public body.
Each of which was framed as a breach of articles 2, 3 and/or 8 ECHR.
None of the other grounds were found to be reasonably arguable. On time limits the Court of Appeal considered that whilst the letter of 20 December 2020 sought to be relied on by the claimants for time limit purposes was plainly not a decision capable of challenge by judicial review, it was arguable that if the substantive grounds were made out, there was a continuing state of affairs in some respects, such as to permit a challenge by way of a declaration or mandatory order. In granting permission, Lewison LJ reminded the claimants that judicial review is not an appropriate vehicle for the determination of contested scientific matters. He noted that most of the contents of the statement of facts and grounds dealt with assertions about the safety (or otherwise) of 5G technology, which are not properly the subject of an application for judicial review.
“3. It is plain from the grounds of resistance that HMG have taken advice on the safety of 5G from a variety of reputable bodies including ICNIRP, the Chief Medical Officer, PHE and COMARE. The extent of advice that a public body is required to take is a matter for the public body concerned. It is not arguable that taking advice from those bodies is susceptible to challenge on public law grounds.
……..
“6. Grounds (2)(i)(d) and (2)(vi) assert a duty to give reasons. The appellants do not point to any domestic authority requiring the giving of reasons in a case like this. The appellants rely on Giacomelli v Italy at [83]. But that case does not [do] more than require public access to the studies on which the public authority has relied. It does not hold that there is a positive duty to give reasons. Nevertheless in Guerra v Italy (1996) EHHR 357 at [60] the ECtHR does appear to have accepted a positive duty to communicate information on environmental matters. This ground does in my judgement pass the relatively low threshold required for permission to apply for JR.”
The Court of Appeal referred the grounds on which permission had been granted back to the administrative court for directions, including for the claimants “to excise from the JR claim form the contested scientific evidence”, and a hearing.
In directions ordered by Bennathan J the claimants were ordered to file and serve amended grounds addressing the ground for which permission had been granted. In his observations and reasons the judge again reminded the parties that a judicial review is not an appropriate vehicle for...
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