Georgina Downs v Secretary of State for Environment, Food and Rural Affairs
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.
Wyn Grant has been somewhat selective in what he/she has picked out from the Judgment. The Judgment is long and was ruled in my favour for the simple fact that the evidence and “cogent arguments” I produced in a 149 page Witness Statement were “scientifically justified” and that I produced “solid evidence” that residents have suffered harm to their health. In the absence of seeing the evidence I produced, which is not yet in the public domain, I really do not think any one should be commenting on this case at all and I would request that others refrain from doing so.
The judgment itself is in the public domain and available online: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC /Admin/2008/2006.htm I therefore do not see why there cannot be comment on it. Indeed, there has been extensive comment on it in the press already. Whilst I am not a lawyer, I do not see that it is sub judice. The judgment is a long one, but I tried to extract the most pertinent points and provide a digestible and balanced account. I am not a protagonist in this matter, but it is a landmark decision that raises important issues of agriculture, environmental and health policy that deserve the widest possible debate. As I said in my first posting, this is a matter that requires careful reflection by ministers in order to arrive at a balanced decision. BTW, I know that Welsh given names do cause confusion about gender, but that could easily be checked by looking at the ‘about’ section of this website.
I think the correct web link is http://www.bailii.org/cgi-bin/markup.cgi?doc=ew/cases/EWHC/Admin/2008/2666.htm
The post was necessarily selective because I was trying to make a long document digestible, but I do not accept the implication that it was biased. For example, I made it clear that there are shortcomings in the correct procedures. Of course no one can comment on the material that is not in the public domain, but that should not be used as a mechanism for suppressing discussion on the wider issues. As to whether I understand the basis of the law relating to pesticides and EU policy more generally, I am an acknowledged expert on EU agricultural and environmental policy and on pesticides in particular. Indeed, in that capacity I was giving evidence to the Agriculture and Rural Development Committee of the European Parliament on Monday. It is unfortunate that these issues are often portrayed as a conflict between producers and consumers/citizens. If large numbers of plant protection products are withdrawn, the price of fresh fruit and vegetables among other items will inevitably go up and it is the least well off consumers who will be most disadvantaged as a consequence. I think that it is also unfortunate that the public health issues that arise in this area are approached in an adversarial fashion that may actually reduce the chances of a relatively speedy resolution of the issues.
I did not use the word “bias”; I did not say that the discussion on wider issues should be surpressed, just that quite rightly a) people should get their facts right when reporting on the Judgment and b) should not comment on the evidence that was provided for the case if they have not seen it. Having knowledge of the legal aspects of pesticide legislation is actually critical to understanding the basis of European and UK equivalent legislation, as you are still missing the point in your post, as in a legal framework such as this, a balancing of interests is not permitted and public health protection must be paramount. All I have done in my campaign and legal case is continue to present accurate facts and evidence correctly that a) led to a Royal Commission on Environmental Pollution agreeing with my case that the UK Government’s policy is inadequate to protect public health, particularly residents, and b) a High Court Judge ruling that the UK Government’s policy is failing to protect public health, particularly residents and is not complying with EU law regarding the protection of human health. The industry and its apologists are the ones who continue to issue incorrect information, use propaganda and scaremongering techniques to try and protect ultimately the industries profits. I reiterate again that is not what pesticide policy and legislation is supposed to be based on. Perhaps you should read Article 4 of the existing Directive 91/414 as well as Recitals 9 and 10 a little bit closer. Also speedy resolution, isn’t it the industry et al who are the ones trying to delay the ongoing negotiations by insisting on an EU impact assessment regarding the effects on agricultural production…………
My previous post was related to comments such as “…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.” I reiterate again that you are NOT in a position to make such a comment about grounds for an appeal in the absence of seeing the actual evidence that won me my case. This evidence is largely contained in a 149 page Witness Statement that I produced and which you have not seen. Therefore I absolutely stand by the previous post in that a) you were somewhat selective in what you picked out from the Judgment and b) you are not in a position to comment about an appeal when you have not seen the relevant evidence in the case. Incidentally you do not seem to understand the basis of EU and UK equivalent law when it comes to pesticides (obviously I note the fact that you pointed out that you are not a lawyer). The primary purpose of pesticides policy and legislation is supposed to be the protection of public health. This means that there is not supposed to be a ‘balancing’ approach in relation to harm (or the risk of harm) to human health with the supposed benefits of pesticides, such as cost or economic benefits for farmers and the chemical industry. Therefore, when responding to a High Court ruling about the UK Government’s fundamental failure to protect public health from pesticides, Ministers are not supposed to arrive at a “balanced” decision (as you put it), as in a legal framework such as this, a balancing of interests is not permitted and public health protection must be paramount.