Healthy Crops or Healthy People? Balancing the Needs for Pest Control Against the Effect of Pesticides on Bystanders
Secretary of State for Environment Food and Rural Affairs v Georgina Downs (Court of Appeal (Civil Division)) [2009] EWCA Civ 664
*Emeritus Professor of Environmental Law, Aberystwyth University (lmwarren{at}btopenworld.com).The author is currently a member of the Royal Commission on Environmental Pollution but preparation of the Report on Crop Spraying pre-dated her membership.
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Abstract |
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Georgina Downs, a pesticide campaigner with personal experience of exposure to pesticides in crop sprays, sought review of the Government’s approach to the assessment of harm to residents and bystanders in its process of authorisation of pesticides. Collins J allowed the application and ordered the Secretary of State to reconsider and amend his policy as necessary. He found that she had justified her allegation that the risk model was inadequate and was supported in this respect by the report of Royal Commission on Environmental Pollution. Furthermore, the Secretary of State’s policy was in breach of the Plant Protection Products (Pesticides) Directive because compliance with Annex VI, which sets out uniform principles for evaluation, could only be achieved if the policy adequately protected residents, which it did not. On appeal, the Secretary of State contended that the judge had erred in (i) rejecting Defra’s submission that compliance with the uniform principles set out in Annex VI of the Directive was sufficient to ensure compliance with the requirements of Article 4.1(b); and (ii) substituting his own evaluation of the scientific evidence for that of the Secretary of State. The appeal was allowed. As to the first claim, compliance with the uniform principles in Annex VI was a sufficient test of the harmful effects of a pesticide on human health. If no harmful effects were found by applying these principles, authorisation would be in compliance with Article 4.1. The uniform principles were designed to provide a comprehensive code for all Member States to apply. The purpose of the Directive was to harmonise authorisation procedures and it would frustrate this purpose if Member States were able to introduce their own principles or policies for the purpose of establishing whether a pesticide had harmful effects on health. The Secretary of State had applied the uniform principles and Defra’s crop spraying authorisation policy was therefore compliant with the Directive. As to the second claim, the Court found that Collins J had substituted his own evaluation for that of the Secretary of State. It was for the Secretary of State, having considered the Report of the RCEP and the advice of the ACP, to decide whether the evidence raised real doubts as to the safety of the pesticides or whether it amounted only to a possible link that had not been scientifically confirmed. While the Secretary of State’s decision was not immune from review, the hurdle for establishing review was high and required a demonstration of ‘manifest error’. The disagreement between the RCEP and the ACP was evidence to there not being such a manifest error. The Secretary of State’s decision was not therefore erroneous in law.
Key Words: Pesticides • harm to residents • Plant Protection Products (Pesticides) Directive • harmonisation • evidence base • challenge to discretionary judgment