LAW REPORT: Cable cancer risk did not call for new rules

LAW REPORT 20 October 1995

Regina v Secretary of State for Trade and Industry, ex parte Duddridge and others; Court of Appeal (Lord Justice Kennedy, Lord Justice Peter Gibson and Sir Iain Glidewell) 6 October 1995

The unproven possibility that electromagnetic fields (EMFs) from high- voltage cables forming part of the national grid might increase the risk of children in the locality developing leukaemia was not enough to impose on the Secretary of State for Trade and Industry an obligation, either under domestic or European law, to issue regulations limiting such EMFs.

The Court of Appeal refused an application for leave to appeal against the decision of the Queen's Bench Divisional Court, on 3 October 1994, refusing an application for judicial review of the Secretary of State's decision not to issue regulations limiting EMFs from cables laid by National Grid plc or other licence-holders under the Electricity Act 1989.

The application was brought on behalf of three children, Lloyd Duddridge, Danielle Bye and Naomi Holliday, who lived in South Woodford near where National Grid plc were laying a new high-voltage underground cable. It was alleged that the non-ionising radiation emitted from these cables, well in excess of the average domestic level, would expose them to a risk of developing leukaemia.

Section 3(3) of the 1989 Act imposed on the Secretary of State a duty to exercise his functions under the Act in the manner best calculated "(d) to protect the public from dangers arising from the generation, transmission or supply of electricity". Section 29 empowered him to make regulations to this end.

The applicants argued that the Secretary of State should take a "precautionary view" of the risk from EMFs and should lay down regulations to control it.

Michael Beloff QC and Graham Read (Leigh, Day & Co) for the applicants; Stephen Richards and Ian Burnett (Treasury Solicitor) for the Secretary of State; Alan Griffiths (Freshfields) for National Grid plc.

Sir Iain Glidewell said it was clear that if there was a risk of personal injury or damage to property arising from the transmission of electricity through the new cables, the Secretary of State was under a duty to protect the public from that risk by making appropriate regulations. But the expert evidence adduced in the Divisional Court did not establish there was such a risk. The furthest it went was as stated by Dr J. A. Dennis, a former member of the National Radiological Protection Board (NRPB), who said:

The totality of the scientific evidence points to the weak possibility that prolonged exposure to power frequency magnetic fields, while not a direct causal factor in inducing human leukaemias, may enhance the risks of these cancers, especially in young children . . .

The applicants' other expert, Professor Scott Davies, concluded:

I do not believe that a causal relationship has yet been established. Nevertheless . . . that such exposures may increase the risk of childhood leukaemia cannot be dismissed, given the current evidence.

The Secretary of State's case was that this was insufficient to impose on him a duty to act. The applicants argued that he had set the threshold too high, and if there was evidence of a possible risk he was under a duty to use his powers to obviate it. That was the standard adopted as government policy in a white paper of 1990, "This Common Inheritance".

The Secretary of State was said to be under a duty to adopt what was called the "precautionary principle" in order to comply with European Community law. On this point, the applicants also sought to refer the case to the European Court of Justice. They relied on article 130r of the Treaty of Rome, as amended by the Maastricht Treaty, and incorporated into English law by the European Communities Act 1972, as amended by the 1993 Act.

In his Lordship's judgment, the court could resolve the issue without referring it to Europe. Article 130r set out the aims which Community policy on the environment should be designed to achieve; it did not of itself place any obligation on any organ of a national government. The creation of a policy on the environment required a decision by, and action such as the promulgation of a directive by, the organs of the Community. If or when such a measure was adopted, the Secretary of State would be under whatever obligation it imposed; at present he was under no such obligation.

Lord Justice Kennedy and Lord Justice Peter Gibson agreed.