R The Secretary of State for Trade and Industry and Another Next Friend Philip John Duddridge and Another Next Friend Martin Bye and Another Next Friend Greg Holliday

JurisdictionEngland & Wales
JudgeLORD JUSTICE FARQUHARSON
Judgment Date03 October 1994
Judgment citation (vLex)[1994] EWHC J1003-1
Date03 October 1994
CourtQueen's Bench Division (Administrative Court)
Docket NumberCECO 827/94

[1994] EWHC J1003-1

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

Before: Lord Justice Farquharson and Mrs Justice Smith

CECO 827/94

Regina
and
The Secretary of State for Trade and Industry
Ex Parte (1) Lloyd Duddridge (infant) by his Father
and
Next Friend Philip John Duddridge
(2) Danielle Bye (Infant) By Her Father
and
Next Friend Martin Bye
(3) Naomi Holliday (Infant) By Her Father
and
Next Friend Greg Holliday

MR M BELOFF QC and MR G READ, assisted by MR R CAMERON (Instructed by Messrs. Leigh, Day & Co., London WC1X 8PP) appeared on behalf of the Applicant.

MR S RICHARDS and MR IAN BURNETT (Instructed by Treasury Solicitors, London SW1H 9JS) appeared on behalf of the 1st Respondent.

MR G NEWMAN QC and MR A GRIFFITHS (Instructed by the Freshfields, London EC4Y 1HS) appeared on behalf of the 2nd Respondent.

1

Monday, 3rd October 1994

2

THE HON. MRS JUSTICE SMITH: This is an application for

3

judicial review of the decision of the Secretary of State for Trade and Industry whereby he declined to issue regulations to the National Grid Company plc and/or other licence holders under the Electricity Act 1989 so as to restrict the electromagnetic fields from electric cables which are being laid or are to be laid as part of the national grid. The application is brought on behalf of 3 children who live in South Woodford, an area of North East London where the National Grid Company is presently laying a new high voltage underground cable between Tottenham and Redbridge. The applicants allege that the non-ionising radiation which will be emitted from these new cables when commissioned, which will enter their homes and schools, will be of such a level as will or might expose them to a risk of developing leukaemia. They say that the Secretary of State should issue regulations which would remove any such risk.

4

By their application they seek an order to compel him to issue regulations, guidelines or some other directive to licence holders so as to ensure that the electromagnetic fields from electric cables to be laid as part of the national grid do not exceed (i) 0.2 micro-teslas at the nearest point of houses adjoining the cables; or (ii) some other level at which on current research, there is no evidence to suggest or otherwise hypothesise any possible risk to the health of those exposed to such fields. Alternatively, they seek an order of mandamus to oblige the Secretary of State to advise the Crown to issue such regulations, guidelines of other form of directive. In the further alternative, they seek a declaration that, in refusing to issue such regulations, guidelines or directives, the Secretary of State has failed to comply with his duty under section 3 of the Electricity Act 1989.

5

Leave to move for judicial review was granted by Schiemann J who also made an order for expedition. Also before the Court is the National Grid Company plc, who appear as a Party Directly Affected.

6

Behind this application lies the concern of residents of South Woodford, particularly those who are the parents of young children, who saw a BBC Panorama television programme transmitted on 31st January 1994. The programme discussed a number of epidemiological studies which examine the possible connection between exposure to high levels of non-ionising radiation in the electromagnetic fields (EMFs) created by high voltage electric cables and the incidence of childhood leukaemia. To the non-expert, some of these studies might appear to suggest that children who have substantial exposure to EMFs from high voltage cables passing near their homes face a three to fourfold (or even possibly sixfold) increased risk of developing leukaemia. However, as has been readily accepted by counsel appearing for the applicants, the study of the effects of EMFs by epidemiology is fraught with difficulty and the results of these studies, when expertly evaluated, do not allow, let alone require, any such positive or alarming conclusions to be drawn.

7

Understandably, the programme caused anxiety in the minds of the residents and parents of South Woodford. Some of them formed an action group and on 15th February 1994 wrote to the National Grid Company seeking information, inter alia, about the levels of radiation which would be emitted from the cables then being laid near their homes, when those cables were energised. On 27th February, the National Grid Company provided the information requested from which the action group perceived that their children would indeed be exposed to levels of non-ionising radiation well in excess of the average domestic level. The action group took the view that their children might be at risk of leukaemia if the cables were commissioned in the manner intended.

8

The action group had by this time taken legal advice and on 15th March 1994 their solicitor wrote to the Secretary of State asking him to lay down regulations to cover the alleged danger to health arising from the installation of these cables. They urged him to take 'a precautionary view' of the risk of damage to health. They warned him that, if he refused, they would commence an application for judicial review. On the same day their solicitor wrote to the National Grid Company, asking it to take voluntary measures to reduce the levels of EMF exposure or alternatively to stop work until the issue had been resolved. No reply was received from the company. On 28th April, the Secretary of State replied to his letter saying that he had never regarded it as necessary or appropriate to take specific measures to limit EMFs to protect the public from the possibility of a very small risk of cancer. He had reconsidered the matter in the light of the group's recent letter and application for judicial review. He adhered to his previous opinion and would oppose the application.

9

Hence this application comes before the court. However, it is important to make clear at the outset that it is not the function of this court to decide whether there is in fact an increased risk of leukaemia from exposure to high levels of EMFs. Still less is it for the Court to decide whether these applicants will be at any such increased risk. This court appreciates that the parents of these children are deeply concerned about these issues and it is not through any lack of sympathy with that concern that the court must decline to decide them. The only issue before the court is whether the Secretary of State, in declining to take specific measures to limit the level of EMFs, has acted unlawfully.

10

Before summarising the arguments advanced by the parties, it is necessary to set out the statutory framework in order to examine the Secretary of State's duty and the extent of his discretion.

11

Section 3(3) of the Electricity Act 1989 ('the 1989 Act') provides that:

"Subject to subsections (1) and (2) above, the Secretary of State …. shall … have a duty to exercise the functions assigned to him by this Part in the manner in which he considers is best calculated

…..

(d)to protect the public from dangers arising from the generation, transmission or supply of electricity."

12

One of the functions assigned to the Secretary of State is the power to make regulations relating to supply and safety under section 29 of the 1989 Act. Section 29(1) provides that:

"The Secretary of State may make such regulations as he thinks fit for the purpose of—

…..

(b)protecting the public from dangers arising from the generation, transmission or supply of electricity, from the use of electricity supplied or from the installation, maintenance or use of any electric line or electrical plant; and

(c)without prejudice to the generality of (b) above, eliminating or reducing the risks of personal injury, or damage to property or interference with its use, arising as mentioned in that paragraph."

13

The Electricity Supply Regulations 1988 (as amended in 1990, 1992 and 1994) were made under prior legislation but, by virtue of paragraph 3 of Schedule 17 to the 1989 Act, take effect as if made under section 29 of that Act. The 1988 Regulations as amended do not contain specific measures to limit EMFs.

14

It is clear that the statutory scheme requires the Secretary of State to judge whether there exist any 'dangers' or risks of personal injury and whether he ought to exercise his power to make regulations under section 29. The provisions confer a wide discretion upon him. In order to make that judgment, he must of necessity rely upon advice given to him by experts.

15

The applicants argue that, in considering the issue whether there exist any dangers or risks of personal injury from EMFs, the Secretary of State has approached the matter in the wrong way. They submit that he has asked himself whether there is evidence that exposure to EMFs does in fact give rise to a risk of childhood leukaemia. Because, as we shall see, the scientific evidence does not establish that is such a risk, he has concluded that he need not use his power under section 29 of the 1989 Act to regulate exposure to EMFs. They say the proper approach would be to ask himself whether there is any evidence of a possible risk even though the scientific evidence is presently unclear and does not prove the causal connection. They submit that if he had asked the question in that way, pitching the threshold for action at a lower level of scientific proof, the answer would have been 'yes' and he would then have been obliged to make regulations. They say that he is required to apply that lower threshold either as an obligation of European Community law or under the policy of the present Government, as set out in a White Paper of...

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