Defra to appeal over Downs case
Posted by Wyn Grant on December 19, 2008 in Environment, Farming, Food & health
Defra is to appeal against the judgment of the High Court in the recent case on spraying brought by Georgina Downs. In a debate in the House of Lords earlier this week junior Defra minister Lord Hunt confirmed that Hilary Benn had been given leave to appeal. ‘It is not appropriate for me to go into the details of that appeal,’ he said. ‘But at the end of the day, we all want to see good practice and proportionate regulation.’
A Defra spokesman later said that the High Court’s decision would make it impossible to authorise pesticides for use in the UK. ‘This would have a very serious impact on farming and food production and would put the UK out of line with the rest of Europe.’ The spokesman added that the protection of the health of those who live, work or visit the countryside remained a top government priority.
Goergina Downs expressed her ‘absolute disgust’ at the appeal and accused the government of the ‘utmost complacency.’ ‘Heads should be rolling, following such a landmark High Court judgment, but instead it’s “business as usual” with the government’s relentless attempts to protect the [pesticides] industry as opposed to the health of its citizens.’
As I have tried to argue in earlier postings, any difficult public policy decision involves a balancing of considerations including food security. If fruit and vegetables were less readily available or more expensive, this would have health implications. As I also suggested in an earlier posting, even a non-lawyer could see that the judge was pushing the envelope of what is possible in a judicial review.
There are real public health considerations here, but they would be more effectively resolved through negotiation rather than an adversarial process.
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Comments(0)Georgina Downs v Secretary of State for Environment, Food and Rural Affairs
Posted by Wyn Grant on January 03, 2008 in Food & health
I have now read the decision of the England and Wales High Court (Administrative Court) before Mr Justice Collins. I must emphasise that in commenting on this matter I am not a lawyer. The judgment is a long and complex one, although much of it is taken up with a statement of the facts and a consideration of the relevant law.
The judge notes in relation to the substance of the matter that there are conflicting views on the subject of ‘bystander’ exposure as is evident from the report of the Royal Commission on Environmental Pollution (RCEP) and the response by the Advisory Committee on Pesticides (ACP). He states, ‘I am not qualified to judge between those views nor is it an appropriate exercise for a judge to undertake on judicial review.’ He adds, ‘we are here at the very fringe of what should properly be the subject of a judicial review.’ That being so, it would seem to me as a non-lawyer there might be grounds for an appeal, although in making that decision other considerations have to be weighed apart from the chances of success.
The judge takes the view that ‘the fundamental requirement that human health be not harmed must in my view require that the preacutionary principle is to be applied so that measures to ensure the protection of all who may be affected by the use of the pesticide must be considered.’ He finds that ‘Overall, we believe the PSD approach … is best described as yielding an approximate exposure estimate based on data which happened to be available, rather than a scientific prediction validated systematically by specifically designed experiments.’
The judge finds that ‘The claimant has produced cogent arguments and evidence to indicate that the approach does not adequately protect residents, and so is in breach of the Directive. ’ [91/414/EEC] He continues, ‘There is in my judgment solid evidence produced by the claimant that residents have sufferred harm to their health … or, at the very least, doubts have reasonably been raised as to the safety of pesticides under the regime which presently exists … It is clear that the precautionary principle must apply.’
The judge admits that ‘None of what is produced establishes the causal link: the establishment of such a link scientifically is a very difficult exercise and what may seem obvious tio the victim or the inexpert observer may in reality not be so. It is however to be noted that the medical tests carried out on the Claimant provide very powerful reasons for concluding that there has been the necessary cause and effect.’
‘The result of this judgment is that the defendant must think again and reconsider what needs to be done. It is not for me to specify any particular action he needs to take.’ However, he makes it clear that he favours a compulsory scheme to inform residents of intended spraying and of the composition of pesticides to be used. He also thinks that ‘there is a very strong case for a buffer zone’. Although such zones already exist in relation to watercourses, their extension to field margins near housing or other development would present significant challenges to farmers.