Law Report: No duty to issue electric cable guidelines: Regina v Secretary of State for Trade and Industry, Ex parte Duddridge and others - Queen's Bench Divisional Court (Lord Justice Farquharson and Mrs Justice Smith), 3 October 1994

The Secretary of State, when considering whether to issue regulations to protect the public from dangers or risks of personal injury arising from the supply of electricity, is not required to apply 'the precautionary principle' and take action where a possible risk of harm to the environment or human health exists, but is entitled to apply, as the threshold for action, a policy to act if a significant risk of damage arises.

The Divisional Court dismissed an application, brought on behalf of three children who live in South Woodford, for judicial review of the Secretary of State's decision not to issue regulations to restrict the electromagnetic fields from electric cables being laid as part of the national grid. The National Grid Co is presently laying a new high voltage underground cable between Tottenham and Redbridge. The applicants allege that the non-ionising radiation in the electromagnetic fields emitted will or might expose them to risk of developing childhood leukaemia.

The Secretary of State decided that it was not necessary or appropriate to take measures to limit non- ionising radiation.

The applicants applied for judicial review of the decision on the grounds that under article 130r of the EC Treaty which deals with Community policy on the environment or under the policy of the Government's White Paper, This Common Inheritance, the Secretary of State was obliged to take precautionary action if there existed the mere possibility of a risk of serious harm to the environment or human health.

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

MRS JUSTICE SMITH said that the applicants' experts concluded that there was an increased risk of developing cancer from exposure to EMFs, but did not suggest that a causal link had been established between EMFs and cancer. Experts advising the Secretary of State accepted there was a possibility of a connection between EMFs and childhood leukaemia but saw the need for further research. Unless the Secretary of State was bound to apply the precautionary principle, his decision could not be impugned by judicial review.

The policy in the 1990 White Paper, which was a statement of Britain's environmental strategy, set the threshold for action where a significant risk of damage arose. The Secretary of State considered the need for regulations in the light of that policy and his conclusion could not be impugned as unreasonably or perverse.

Article 130r, when examined in its context, laid down principles on which Community policy on the environment would be based. It did not impose any immediate obligation on member states to act in a particular way. In accepting article 130r a member state had done no more than indicate in advance its consent in principle to the formulation of a policy governed by the objectives there stated and to the introduction of measures to implement the policy. The status of the precautionary principle was no more than one of the principles which would underlie the policy when it was formulated.

Article 130r did not create any obligation on the Secretary of State to apply the precautionary principle to his consideration of his duties under the 1989 Act. The application was dismissed.

Lord Justice Farquharson agreed.