learmond criqui sokel

The Rt Hon Oliver Dowden CBE MP LCS Practice Ltd

Solicitors
Secretary of State for Digital, Culture, Media and Sport
Department for Digital, Culture, Media & Sport 14A Redington Road
100 Parliament Street London NW3 7RG
London
SW1A 2BQ www.lawlcs.com

BY EMAIL AND WEB PORTAL –

enquiries@dcms.gov.uk
enquiries@culture.gov.uk jlc@lawlcs.com
DDI +44 (0) 20 7794 5992
and Mobile 07770 231 367

The Rt Hon Robert Jenrick MP

Secretary of State for Housing, Communities and Local
Government
Department for Housing, Communities and Local Government
2 Marsham Street
London
SW1P 4DF

BY EMAIL AND WEB PORTAL -

robert.jenrick@communities.gov.uk

21 August, 2020

Dear Secretaries of State for DCMS and for DHCLG,

Pre-action protocol letter - Proposed claim for judicial review

1 This letter complies with the pre-action protocol.

2 The potential claimants

(1) Brian Stein

(2) Phillip Watts

(3) Jessica Learmond-Criqui

3 The defendants’ reference details

Not presently known.

LCS Practice Ltd is a limited liability company registered in England and Wales with Company Number 10127043. It has
directors who we refer to as “partners”. A list of partners and their professional qualifications is open to inspection at the
registered office, 14A Redington Road, London NW3 7RG. It is authorised and regulated by the Solicitors Regulation Authority
of England and Wales. Our SRA no. is 632856. The trading name of LCS Practice Ltd is learmond criqui sokel.

LCS Practice Ltd does not accept service by email of court proceedings, other processes or formal notices of any kind without
specific prior written agreement.
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4 The details of the claimants’ legal advisers, if any, dealing with this claim

LCS Practice Ltd, 14A Redington Road, London NW3 7RG

5 The details of the matter being challenged

The decision announced on 22 July 2020 in the document titled “Government

response to the consultation on proposed reforms to permitted development rights to
support the deployment of 5G and extend mobile coverage” to change permitted
development rights so as to make it easier for mobile phone companies to install 5G
masts.

6 The details of any Interested Parties

None at present.

7 The issue

1. What is set out below is our present understanding of the factual and legal situation
and is the basis for the potential judicial review here. In order to narrow the issues in
any such claim, if you disagree with any aspect of our characterisation, please clearly
say so in your reply, and explain the basis for the disagreement.

2. Our present understanding may also change in the light of the information and
documents which you provide to us in response to the requests set out in this letter,
below.

The claimants

3. The claimants are all people adversely affected by, and so concerned about the
further expansion of, electromagnetic radiation from the 5G mobile phone network in
the UK.

(1) Brian Stein is a trustee of the charity Radiation Research Trust and also a
trustee of the charity ES-UK and suffers from electrohypersensitivity (EHS).

(2) Phillip Watts is a trustee of ES-UK and also suffers from EHS.

(3) Jessica Learmond-Criqui is a solicitor and author of this letter.

The consultation

4. In August 2019, a document titled “Proposed reforms to permitted development rights

to support the deployment of 5G and extend mobile coverage” (published jointly by
the Ministry of Housing, Communities and Local Government and the Department for
Digital, Culture, Media and Sport) initiated a consultation to “seek views on the
principle of amending permitted development rights for operators with rights under the
Code to support deployment of 5G and extend mobile coverage, and the
circumstances in which it would be appropriate to do so.”
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5. The consultation document did not in any way limit the scope of issues to be
considered; and it specifically invited comment on the environmental impacts and
equality impacts (through the Public Sector Equality Duty (PSED) under section 149
Equality Act 2010) of the proposal.

6. Organisations Radiation Research Trust and ES-UK (among others) responded in

writing to that consultation. Ms Learmond-Criqui also responded to the consultation.

7. Mr Stein and Mr Watts, as trustees of ES-UK, reviewed the response made by ES-UK
before ES-UK’s response was submitted to the consultation. Otherwise, they did not
personally respond, as individuals, in writing to the consultation, despite their obvious
interest in its subject matter, because they were aware that other people and groups
with whom they are in contact and including the groups with which they are involved,
who share their concerns, and who have greater technical expertise and knowledge,
were responding. They were content that their interests would be represented by
those other consultation responses and so did not consider it necessary to respond
personally.

The law

8. It is well established that a decision taken on the basis of a consultation is only lawful
if the decision-maker(s) has/have conscientiously considered what consultees have
said in response as part of formulating their decision.

9. It is also well established that what matters for that purpose is what the actual
decision-maker(s) considered, not what others (such as their advisers or colleagues)
may have known.

10. That common law obligation of conscientious consideration by the decision-makers

themselves must be interpreted and applied in the context of a consultation relating
(at least in part) to environmental matters to give effect to the UK’s obligations under
the Aarhus Convention which include the Article 6(8) obligation to “ensure that in the
decision due account is taken of the outcome of the public participation”.

11. The Aarhus implementation guide explains that (among other things) “the relevant
authority is ultimately responsible for the decision based on all the information
available to it, including all comments received, and should be able to show why a
particular comment was rejected on substantive grounds."

12. The language of “due regard” also echoes that of the PSED itself (which requires that
“due regard” be had to various statutory equality objectives) which the courts have
interpreted as requiring more than mere awareness of any equality issues raised,
instead requiring that to be evaluated on a properly informed basis including “with
rigour”. Those same obligations applied here when it came to the decision-maker(s)’
evaluation of consultation responses.

13. The decision here was also (as the consultation document rightly recognised) to be
based on a discharge of the PSED. To be lawful, that required (among other things)
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that (whether through consideration of an Equality Impact Assessment or in some

other way) the decision-makers properly and lawfully understood and identified the
equality impacts (and thus the protected characteristics of potentially affected
persons) in issue; and then considered not just any particular adverse impacts on
those persons, but also how any adverse impacts might be mitigated.

Consultation responses

14. The Claimants are aware that requests have been made to the Defendants under the
Freedom of Information Act seeking copies of the consultation responses which the
Defendants received. They have seen the responses to those requests (and the
further requests, in each case, for a review of the initial decisions).

15. In each case, the Defendants’ response was, in essence, that the consultation
responses would not be provided because (at that time) they were still being
considered by the Defendants prior to the decision in issue here being reached. The
implication of that was that the responses would be published once this decision was
produced. That has not happened. Nor, as below, does the decision document now
produced fill that gap in any meaningful way since it provides only a very high level
(and very incomplete) overview of those aspects of the responses relating to the
issues of concern to the Claimants.

16. The Claimants have, however, seen consultation responses provided by some other
people and organisations including those who – as above – they (in the case of Brian
Stein and Phillip Watts had treated as representing their interests and concerns in this
matter). So they know what at least some consultees said in response to the
consultation.

17. In the event that this matter proceeds to a judicial review challenge, then we will, of
course, rely on the full content of the responses for the purposes of the claim.

18. For now though, we simply summarise some of what those responses included:

a. Specific and detailed information, supported by expert and technical materials

and references and links to background materials which highlight and
evidence the health concerns and issues, including those relating to loss of
jobs (and therefore, financial security), abandoning homes, etc arising from
5G and the proposal to make its’ further roll-out easier through the proposed
amendment to the permitted development regime.

b. Specific and detailed information, supported by technical materials and

references and links to background materials which explained why the ICNIRP
conclusions cannot be relied on, and certainly not for the purposes of
considering risks to all individuals including those who are particularly
vulnerable to electromagnetic radiation arising from 5G including (but not
limited to):

i. ICNIRP’s failure to consider non-heating effects and impacts;

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ii. The fact that ICNIRP’s conclusions relate to the population as a whole
and not to the position of more vulnerable people within it;

iii. the fact that ICNIRP’s guidelines are for short-term exposure only;

iv. That other studies contradict ICNIRP’s guidelines including for

the reasons above.

c. Specific and detailed information relating to ICNIRP as an organisation

explaining why, including by reference to its lack of independence, its
conclusions cannot anyway be relied on.

d. Specific and detailed information explaining why PHE’s consideration of the

ICNIRP and other materials could not be relied on as the basis for conclusions
about the health impacts of 5G or these proposals, generally or for people who
are particularly vulnerable to their impacts.

e. Points explaining the way in which particular sensitivity to electromagnetic

radiation arising from 5G amounts to a disability for some people (called EHS
by some people) through its impairment on their ability to perform normal tasks
and live normal lives, and the way in which that is engaged by the PSED and
that the proposals will discriminate against such persons.

f. Points explaining that, even if changes were to be made to the permitted

development rights regime to make roll-out of 5G easier, then that should be
subject to restrictions in relation to particularly sensitive locations and types of
location to mitigate the risk to, and impact on, people and groups who are
particularly sensitive (including, therefore, within the context of the PSED, as
above).

g. Specific and detailed information of the government’s failure to comply with

ICNIRP’s requirement in 2002 to protect people who are vulnerable at levels
below its own ICNIRP short-term heating guidelines, by enacting long-term
non-thermal guidelines which would make the rolling out of 5G under these
proposals exacerbate this failure.

h. Specific and detailed information that international agreements are

being violated by proposals such as these including the Nuremburg
Code as experiments on 5G are being conducted on the public
without their consent.

i. Specific and detailed information supported by links on the impact on bees of

EMR and on birds and trees.

j. Specific concerns that COMARE is not yet adequately discharging its remit for
addressing biological and medical (non-thermal) effects of RF radiation on
behalf of the DHSC/PHE, despite having owning it for 2+ years.
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k. Specific concerns that the AGNIR 2012 report on which PHE relies is deeply
flawed.

l. Information that these proposals are a breach of human rights.

The decision-document

19. The decision document was published on 22 July 2020.

20. It refers, in overall terms, to what consultees said and the decision-makers’ response
to that, including decisions to the effect that (subject to a further technical consultation
on detailed matters in the context of draft regulations, something not material here),
the Government proposes to proceed with changing the permitted development
regime to make roll-out of 5G easier for the mobile phone companies.

21. The document is framed as a decision by “the Government” while being labelled as
coming from the Ministry and Department (respectively) of the two Defendants as
above.

22. The document does not identify who, within “the Government” and/or within the
Ministry and/or Department actually made the decisions it sets out. We infer from the
fact that the document is not presented in the name or names of any Secretaries of
State or Ministers, that the decision was taken by one or more officials.

23. For the reasons introduced above, the identity (though not necessarily the name(s))
of those officials (or whoever else was the decision maker(s)) matters here.

24. As set out below, this letter asks you to identify them and to provide copies of exactly
what documents and information they considered for the purposes of the decision in
question. To be clear, we are not concerned with what others, including other officials,
considered unless and to the extent that was communicated to the decision-maker(s),
in which case we will need to see how it was communicated.

25. Anyway, for now, we proceed from the only published information, namely the
decision document itself.

26. Paragraphs 18-27 (with some repetition and reference back later in the document)
refer to concerns about the public health impacts of the proposal. There is nothing in
those paragraphs (just as there was nothing in the consultation document itself, as
above), to indicate that such concerns were not within the scope of the consultation
or the matters to be considered. Accordingly, as above, there is nothing to displace
the legal requirements as to the way in which the decision maker(s) dealt with
consultation responses on those points, including those outlined above.

27. We need not set out in full the content of those paragraphs but simply note the
following elements.

28. Paragraph 20 says this:

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“PHE is familiar with the evidence submitted to the consultation about possible
risks to public health and considers that its advice, as set out below, remains
unchanged.”

29. Paragraph 21 quotes from PHE’s summary conclusion to the effect that:

“… the overall exposure is expected to remain low relative to guidelines and,

as such, there should be no consequences for public health.” [underlining
added]

30. Paragraph 23 explains that, central to PHE’s advice is that exposure should remain
within ICNIRP guidelines.

31. Paragraph 24 says that:

“ICNIRP is an independent organisation which is formally recognised by the

World Health Organization. It issues guidelines on human exposure to EMF,
based upon the consensus view of a large amount of research carried out over
many years. This includes the frequencies used by 5G and all other mobile /
wireless technologies. Over the last two decades there have been over 100
expert reports on EMF and health published internationally7 with well over
3,000 studies informing these reviews and the existing scientific exposure
guidelines.”

32. Accordingly, while the decision-maker(s) relied in part on PHE’s published guidance,
they also specifically formed their own view on ICNIRP and the application and utility
of its guidelines.

33. In various places, the document then set out the decision-maker(s)’ summary of what
they had considered. That included repeated reference to respondents who had
“stated their opposition to the proposals due to their general opposition to the
deployment of 5G, in particular on public health grounds”. But no more detail is
provided.

34. What is notable about that summary is it completely fails even to acknowledge, let
alone give due consideration to the fact that, as summarised above, concerns were
not merely “general opposition”, they were in fact specific, detailed and supported by
technical and expert information; likewise that the points made were not just about
“general opposition to the deployment of 5G” but also included very specific points
about this proposal including ways in which, even if permitted rights were to be
changed, specific protections need to remain for certain types of location.

35. The document makes no mention of any consideration of the issues outlined at
paragraph 18 above, as to why ICNIRP’s guidelines should not be followed and/or are
not applicable here or at least not to all situations and locations; nor to why PHE’s
considerations of those matters could not be relied on generally, or in relation to its
consideration of the situation of all affected individuals (including those who are
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particularly vulnerable) rather than just the overall population impacts; nor therefore
why the proposal should not proceed, or not in the way proposed.

36. Reliance on PHE’s position must now also of course be seen in the context of the fact
that, within days of this decision being made, the Government has announced its
intention to disband PHE because of its lack of confidence in PHE.

37. Under the heading “Government Response to Question 6”, the document referred to
the PSED. As far we are aware, there is no separate Equality Impact Assessment
Document. Certainly, the decision document does not refer to one.

38. Accordingly, paragraphs 69-77 are the materials evidencing any consideration of the
PSED. In that regard, paragraph 72 says (so far as is relevant to the concerns we
raise here) that:

“The respondents to Question 6 identified two broad areas of concern in

relation to potential negative impacts on individuals with protected
characteristics:

● Public health concerns due to 5G deployment – concerns that people with

protected characteristics are disproportionately vulnerable to radiation, and as
a result, are more susceptible to the effects of constant exposure to 5G, which
could adversely affect their standard of living; and

…”

39. Paragraph 73 responded to that simply by saying:

“Concerns raised in relation to public health grounds are referred to above at

paragraph 18.”

40. Accordingly:

(1) Nothing was said to show whether the decision-maker(s) accepted the points
being made (as summarised in paragraph 72), or if not, then why not (which
matters given that the ICNIRP/PHE conclusions mentioned in paragraph 18
and following relate to overall population exposures and effects); and

(2) Nor was there any focus by the decision-maker(s) on people who for whom –
as above – sensitivity to electromagnetic radiation from 5G specifically
amounts to a disability for the purposes of the PSED (or, alternatively, any
explanation of why the decision-makers did not accept that or took some
alternative view).

41. Paragraph 74 explained that:

“We have considered the concerns raised in relation to the potential

proliferation of mobile equipment on public walkways and in other public areas.
….” [underlining added]
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42. However, there was no mention let alone evaluation of the position in relation to the
impacts for people in other areas, let alone of how those impacts could be avoided or
mitigated in the amendment to permitted development rights.

The effect of all that

(1) Decision vitiated by unlawful consultation

43. Working, therefore, from the material presently available to us, what emerges is that
the decision-maker(s) did not seemingly even consider, let alone conscientiously
consider or give due regard to (as above) consultation responses raising points such
as those outlined above, let alone the detailed and specific information supporting
them or the technical and other information to which they referred.

44. Certainly, the decision-makers have not referred to those points or said anything about
them which reveals why they disagreed with those points (even if, which is not evident)
they were even aware of them.

45. Nor is that answered by the reference (as above) to PHE’s view on those matters
given that, as above, consultees had explained why PHE’s consideration could not be
relied on (and the decision-maker(s)) have not engaged with that explanation at all;
and, in any event, the decision-maker(s) themselves directly relied on ICNIRP’s
position, without in any way considering or engaging with (let alone explaining their
conclusions on) matters made by consultees as to why ICNIRP’s conclusions could
not be relied on or were not applicable to the matters in consideration here.

46. To be clear, as above, consideration of those matters by others, including other

officials, is no answer in relation to what the actual decision-maker(s) did or did not
do, and therefore the legality of their decision.

47. Overall, therefore the decision was not based on compliance with the requirements of
a lawful consultation and so was unlawful.

(2) Decision vitiated by failure to discharge the PSED

48. As outlined above there is nothing to suggest, let alone show, that the decision-
maker(s) even engaged with the fact that particular sensitivity to electromagnetic
radiation, including from 5G in particular, amounts to a disability (EHS) for the
purposes of the PSED, let alone that they discharged the PSED on that basis,
including in considering whether to proceed with the proposal as framed or on a basis
which mitigated those impacts including by reference to both public and private areas.

49. Overall, therefore the decision was not based on compliance with the requirements of
the PSED and so was unlawful.
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8 The details of the action that the defendant is expected to take

The Defendants are asked to confirm with 14 days that they will set aside the
decision(s) set out in the 22 July 2020 document and consider matters freshly and
lawfully.

If the Defendants fail to do that without any lawful or satisfactory conclusion, then we
are instructed to commence judicial review proceedings without further notice. In those
proceedings we will ask the court to declare that the decision was unlawful and quash
it to allow a fresh lawful decision to be taken.

9 ADR proposals

We cannot see obvious ADR mechanism to resolve the points here (other than
through the action set out in section 8 above). But if you want to suggest something,
we are happy to consider it.

10 The details of any information sought

(1) Please identify by job title (we do not need names) the person or people who
actually took the decisions set out in the document of 22 July 2020. We
envisage that will be one person within each of the Ministry and Department.

(2) Please identify exactly what information they (not anyone else) considered for
the purposes of those decisions as provided by consultees or relating to
information provided by consultees.

(3) Please identify exactly what information they (not anyone else) considered for
the purposes of those decisions relating to ICNIRP and its guidelines.

(4) In particular, (in the context of (3) above) please identify exactly the information
relied on to show their (not anyone else’s) consideration of the points made as
to why ICNIRP’s overall conclusions could not be relied on overall and when it
comes to the position of vulnerable groups.

(5) Please identify exactly what information they (not anyone else) considered for
the purposes of those decisions relating to PHE’s consideration of the health
issues relating to 5G and ICNIRP and its guidelines.

(6) In particular (in the context of (5) above) please identify exactly the information
relied on to support the contention set out in paragraph 20 of the decision
document, including as to (a) the decision-makers’ (not anyone else’s)
awareness and consideration of PHE’s knowledge of the matters in question
(by reference to what consultees had said in response to the consultation and
the matters to which they referred) and PHE’s consideration of those matters,
and (b) their consideration of the points made as to why PHE’s assessment
could not be relied upon at all or to give a full or sufficient picture in the context
of this consultation and the issues raised by consultees.
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(7) Please identify any information they (not anyone else) considered in relation
to the discharge of the PSED in the context of the disability concerns outlined
above.

(8) Please identify any other information or matters you rely on to show that this
decision was taken by those people on the basis of (a) a lawful consultation,
and (b) discharge of the PSED.

11 Aarhus Convention claim

We consider that the claim would be an Aarhus Convention claim for the purposes of
the CPR. If you disagree and/or if you think that the standard costs limits for such a
claim should be varied, please say so, and say why.

12 The details of any documents that are considered relevant and necessary

Please provide copies of all documents evidencing or comprising the information set
out in section 10 above including consultee responses or summaries of them, briefing
documents, and other information.

As part of that, please ensure that you provide copies of all documents evidencing
dialogue between PHE and the Defendants relating to the consultation, and
documents evidencing how those matters were in turn communicated to the decision-
maker(s).

13 The address for reply and service of court documents

LCS Practice Ltd, 14A Redington Road, London NW3 7RG

14 Proposed reply date

Please reply within 14 days of this letter.

Yours sincerely

JLearmond-Criqui

Jessica Learmond-Criqui
Partner