Liability Issues and Legal Duties of the Council


6.01  Council Constitutions generally require all decisions of the Council to be made in accordance with the following principles:

  • taking into account all relevant considerations and ignoring all irrelevant considerations (i.e. the

‘Wednesbury’ principle)

  • compliance with the European Convention on Human Rights (ECHR)
  • The ICNIRP guidelines (2002) require you to make a balanced judgement regarding health effects.

(see 3.3.1)

  • by restricting yourselves to the PHE guidelines you are failing to consult “other sources” and are also failing to consider the best available scientific evidence, contrary to NPPF

6.02  s.11 of The Health & Social Care Act 2012 defines a duty to protect public health, specifically including “(3) Subsection (4,a) the protection of the public from ionising or non-ionising radiation. “

Furthermore, each local authority must take ‘such steps as it considers appropriate for improving the health of the people in its area’.

6.03 The Universal Declaration of Human Rights.  Article 3 embodies a fundamental human right. “… the right to freedom from bodily harm is second only to the right to life and is equally based on the right which all people have a level of basic respect and dignity as human beings,” (Hoffman & Rowe 2010).

6.04 Public Health Act 1936. Nuisance and inevitable injury. In most situations there is no cause for inevitable injury where alternatives are available. Parliament does not permit such infringement and so it must be avoided.

6.05 A local authority also has obligations as an employer to its workers under the health and safety at work legislation, particularly The Control of Electromagnetic Fields at Work Regulations 2016 (CEMFAW).

Council workers work in public places and will be working where there is 5G radiation. This will be particularly likely in town centres and other high footfall locations that will see a higher concentration of small cells on street furniture.

6.06 HSE at Work Act 1974. “places duties on people in control of premises (landlords, tenants etc), both to ensure that people can use the premises without risks to their health or safety and to control exposure to electromagnetic radiation, and any “noxious or offensive substances” from being released into the atmosphere and that a suitable and sufficient risk assessment must be conducted “before you do work which presents a risk of injury or ill health.”

6.07  Although as a radio frequency (RF) emission, 5G radiation is nominally classed as ‘non- ionising’, it has been shown to be indirectly ionising in effect through a separate biochemical pathway. Arguably therefore Directive 2013/59/Euratom would apply as it is not limited to radiation from nuclear sources and explicitly covers ‘non-directly ionising radiation’. The Directive sets limits for occupational exposure including the age limit for occupational exposure being set to 18 years, and the limit for an unborn child is ‘preferably zero’.

6.08  To ignore the needs of EHS (electrosensitivity) sufferers or expectant mothers in the context of 5G would constitute a breach of the public equality duty under s.149 of the Equality Act.

6.09  The use of the Precautionary Principle is enshrined in European law that will continue past Brexit. The European Environment Agency has recommended its use based on past experience, including failure to act on hazards. The Council of Europe, a wider body than the EU, ditto. In the context of 5G technology, this would prescribe a moratorium (halt) on the rollout unless and until it was objectively proven safe.

The PP is defined as follows: “When human activities may lead to morally unacceptable harm that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that harm.”

Appropriate: actions taken now to avoid plausible and potentially more serious threats to health from EMF are likely to be seen as prudent and wise …”  Professor Jacqueline McGlade, Executive Director of the European Environment Agency (2003-2013) (EEA 2007).

Qualification: when using the Precautionary Approach, that the science pertaining to dm, cm and mm microwave radiation is established with cause-and-effect relationship – especially such radiation that is pulse-modulated for data carriage, and particularly where deployed in close proximity to sensitive locations like homes, schools and healthcare facilities; in unending duration and with an extremely high-level complexity of multiple, simultaneously interacting signals; and involuntarily upon the entire population including vulnerable human subgroups, and highly vulnerable nonhuman species.

Appropriate:  to invoke the Prevention Principle which in the same EU Treaty is also in place to deal with known, largely uncontested, scientifically based evidence of harm (e.g. smoking/lung cancer, post 1964). Where the evidence of harm, in this case from EMR, is established by the majority of independent peer reviewed studies (see 5.10), the Prevention Principle must lawfully be applied by minimizing risks including exposure wherever it is possible by using a hardwired system.

6.10  Danish attorney-at-law Christian F. Jensen has reviewed aspects of compliance with environmental and human rights law. The European Convention on Human Rights, as given force by the UK Human Rights Act, upholds the right to respect for private and family life

There are dozens of key studies in this report showing damage to the ecosystem that is caused by EMF.  If you ignore those and proceed with 5G then you will damage the ecosystem and thus break both the Environmental Protection Laws and NPPF guidance to use the best available science.

6.11 The council should check its liability cover as insurance companies will not insure against harm caused by electromagnetic fields (EMFs). The ICNIRP and PHE guidelines do not provide safety assurances which can be relied upon for liability purposes.

Swiss Re in their Emerging Risks Report (May 2019)

“To allow for a functional network coverage and increased capacity overall, more antennas will be needed, including acceptance of higher levels of electromagnetic radiation. In some jurisdictions, the rise of threshold values will require legal adaptation. Existing concerns regarding potential negative health effects from electromagnetic fields (EMFs) are only likely to increase. An uptick in liability claims could be a potential long-term consequence… Other concerns are focused on cyber exposures, which increase with the wider scope of 5G wireless attack surfaces. Traditionally IoT devices have poor security features. Moreover, hackers can also exploit 5G speed and volume, meaning that more data can be stolen much quicker.”

6.12 Nuremberg Code: to carry out compulsory mass exposure to pulsed microwave radiation without the fully informed consent of the people affected is in contravention of the Nuremberg code.  Former ICNIRP Chairman Eric Van Rongen is on record admitting that the continuous exposure of the population to ever increasing levels of RF radiation without relevant safety standards could indeed be called an experiment on humanity.  Where there is known harm to a vulnerable group of people then to proceed regardless with exposing them 24/7 to the harmful agent is in breach of this Code of ethics.

6.13 ISO compliance:  A Non Compliance Report may be issued against ISO Standards: ISO 9001 (Quality) or the equivalent TL 9000, ISO 14001 (Environment) and ISO 18001 (Health and Safety) where these standards are named in any contract the Council has with companies supplying wireless equipment.

  • The NCR can request an examination of the evidence for harmful effects of EMR, as outlined in the Appendices, and a report on risk analysis and mitigation could then be secured from suppliers of wireless and 5G equipment.
  • The NCR is issued to ensure that EMR emitting equipment, installations and services are used only after the Precautionary Principle has been applied to ensure that all risks to human health and environmental impacts of EMR emitting technologies are addressed during ‘test-to-pilot’ stages and prior to subsequent deployments.
  • Due to predictable harm, these risks warrant the adoption of the precautionary principle, and its application to risk assessments re: human health, the health of other living organisms, and to the wider environment, to assure the suitability of all EMR emitting equipment before use.
  • Service providers are contractually obliged to comply with ISO standards. This is a way Councils Liability and Duty of Care responsibilities can be addressed.
  • The NCR, if issued, raises vital questions concerning the functionality of ICNIRP guidelines used by Public Health England (PHE) to avert the risks that EMR emitting equipment poses to human health and welfare.

6.14 You must not proliferate statutory nuisances in breach of the Environmental Protection Act 1990 by virtue of s. 79(d) and (e)

  1. 79(d) identifies a pollutant at “any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;”.  Section 79(e) identifies it as “any accumulation or deposit which is prejudicial to health or a nuisance”.

Electromagnetic frequencies used by 5G are an “effluvia” and an “accumulation” and so caught by these words, are a nuisance and so caught by the Act.  Your failure to prevent this environmental pollution has endangered the population in breach of this Act.

6.15  You are bound by your Public Sector Equality Duty under s. 149 of the Equality Act. 

Equality Impact Assessments must be undertaken before permitting the installation of infrastructure.  You cannot rely solely on the ICNIRP’s exposure guidelines, which are not safe for persons who are electro-hypersensitive or who have become disabled because of such radiation.