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by Halsey Meyer Higgins Solicitors
56 BUCKINGHAM GATE
WESTMINSTER LONDON SWIE 6AE
TELEPHONE: 0171 828 8772
DX2381 VICTORIA 1
FAX: 0171 828 8714
from
CellularPhonesMobileAndBaseStationAntennaRadiationAndHumanHealth
Website
1. More than a year ago at Dublin
Castle on 6th March 1998, the Irish Minister of Public
Enterprise, Mrs. Mary O'Rourke, stated this is an issue which
will grow and grow and will not go away. Subsequent events have
proved her correct in that Public concern worldwide is growing
and not diminishing as the Public grows more conversant with
possible effects from mobile phone usage.
2. The issue breaks down into two different parts, firstly the
safety of using mobiles themselves and secondly and perhaps
long-term more importantly, the question of living close to a
ground based Telecommunications Mast and Base Station.
3. On the issue of mobiles themselves, it is of course the users
choice as to whether they have a mobile in the first place and
then secondly how much they choose to use it. However that
choice or consent is entitled to be a properly informed choice
or consent.
Recent disclosures seem to show that
prolonged use of a mobile may not be that safe despite
assurances made by the Industry over the last ten years to that
effect. On 24th May, Dr. George Carlo of the Industry's
established WTR in America stated that the Industry's continuing
statements that there was no conclusive evidence against mobiles
was not a realistic position to take.
4. The main public concern however does not relate to the use of
the mobile phones themselves where there is that choice. The
problem as perceived by large sections of the public and
particularly communities whose privacy has been invaded by the
erection of a Mast and Ground Base Station is whether long-term
chronic exposure to the low intensity
radiation from such
facilities is indeed now safe.
Bearing in mind that the assurances
about the safety of the mobiles themselves when used close to
the brain seem now to be somewhat suspect, the question arises
as to whether similar assurances relating to the safety of
living close to a Ground Based Station and Mast are also
realistic. The problem is that such research as has been carried
out relates to the mobiles themselves. Little or no published
research has been carried out relating to chronic long-term
exposure month after month, year after year to living close to a
Telecoms Mast.
5. The only indicators, which might tend to provide some
evidence relate to other types of masts, i.e. TV Masts,
short-wave radio Masts and radar installations. There the North
Sydney Australia study showed a significant statistical increase
in cancer cases within the triangle of those three Masts in
North Sydney.
Here the Sutton Coldfield BBC Mast
study showed increased radiation levels around the Mast and its
near vicinity. In Switzerland, the Schwarzenberg short-wave Mast
was thought to be having adverse health effects on the local
community for years. When a study was carried out in the mid
1990s by the University of Bern, it was found that the emissions
from that mast did have an effect on the people in the vicinity.
This was discovered because during
the period of the study there was a significant drop in the
symptoms in many people over a three day period within that
prolonged study. It was then discovered, which was not known at
the time, that the transmitter had failed for those three days
and there were no short-wave transmissions.
The Swiss government has now closed
the Mast down. Incidentally, the Swiss health and environmental
officials have proposed strict rules for public exposures from
new sources of radio frequency and microwave radiation. If the
ordinance is adopted, which appears likely, Switzerland will
have the most stringent exposure levels in the world - based on
the precautionary principle - guideline levels much lower than
those recommended by the NRPB.
There is also the evidence of the Soviets irradiation of the US
Embassy in Moscow, which produced serious adverse health
effects.
There is the Skrunda study in Finland with regard to populations
living many kilometers behind the radar installation and those
living a similar distance in front of the radar installation.
There the health conditions of those living in front of that
installation were found to be markedly different, and this has
been put down to the effect of the radar transmissions.
Finally there was recently a study funded by the Bavarian State
Government in Germany following reported adverse health effects
in dairy cattle only after a Telecoms Mast had been erected. It
was discovered after a period that the cause of the significant
drop in the yield of that herd of cattle and Extraordinary
Behavior Disorders in some of the cows related to the microwave
transmissions from that Mast. When the cattle was moved away
from its vicinity after a period the milk yield and the behavior
of that herd was totally restored to normal.
However when the cattle were returned to the mast environs their
symptoms returned. This was not an isolated incident - see
Loscher and Kas of Universities of Hannover Veterinary School
and University of the German Army in Munich 1998.
6. None of these situations appears to relate to thermal heating
of any kind. These effects could not be ascribed to thermal
heating because the distances involved are far too great.
However, they may relate to biological effects from low
intensity microwave radiation over prolonged periods.
However, the research has not
been carried out into cumulative effects.
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It is necessary to
ask why?
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Perhaps in the light of the
Industry's approach over the years to the mobiles
themselves, the answer may be fairly obvious?
In the absence of conclusive
evidence that mobiles themselves and mobile networks are safe -
something the scientists agreed they can not prove without
substantial additional properly structured research - it is
necessary now to use common sense and prudent avoidance. The
European Treaties relating to the Environment described common
sense as the
Precautionary Principle and preventative action -
see Article 130r.
7. What does prudent avoidance, preventative action,
precautionary approach mean in practice? No-one wants to prevent
the advance of telecommunications. It is a great new boon to
living when used sensibly. However, common sense needs to
prevail over the economics of the Industry's proliferation.
There is no need these days to place
Telecommunications Masts and Base Stations too close to
permanently occupied residences and children's schools. The only
reason that Masts are placed too close, i.e. the near side
rather than the far side of a farmers field is because it is
cheaper. Cheaper because it is nearer the electricity supply,
cheaper because it is easier for maintenance and access from an
adjoining road or track.
However, the requirements are not that spot specific and there
is absolutely no reason why a properly erected and located Mast
should be closer than a minimum of 200 to 250 meters from any
inhabited property, using a ground based Mast and Ground Based
Station. Unfortunately the Industry ignores the obvious because
it is easier and cheaper, and usually regrettably there is
no-one to take them on or to challenge their planning
application with the Planning Authorities.
8. Recently groups all over the United Kingdom, including
Scotland and Northern Ireland have been successful in showing
planning authorities that there is a better way to interpret the
outmoded Telecommunications Legislation (1984) the outmoded
planning circulars and the general ignorance of the fact that
European Union Treaties advocated the
Precautionary Principle
(1993 Maastricht) to safeguard the public's health.
Governments are there to be wise and
knowledgeable. Governments are not there to be led by the
Industry in pursuit of progress and financial gain at the
expense of the public at large. Governments are there to be able
to interpret properly scientific guidance or advice.
This proliferation of' Network Masts may turn out to be the next
BSE for ignoring the warnings and acting without any common
sense or prudent avoidance.
9. Reverting to the mobiles themselves, it is not common sense
to put a mobile against your head for four or five hours a day
at the incidence of your employer. In law, almost certainly that
Employer is not providing a safe system of work.
Equally, under the Consumer
Protection Act it seems probable now that the manufacturers
ought to display some form of health warning on their products
to protect themselves from product liability claims - and of
course the users to whom then sell the huge number of phones
from internal danger to enable such consumers to make an
informed choice or consent.
Possibly (update
2000), in due course, it will be
shown scientifically that living in too
close proximity to a
Mast is damaging to health, and possibly then there will under
provisions of the Human Rights Act 1998 be legal remedies
available, which allow people to seek compensation from the
mobile phone network providers, and also against those who allow
the Masts to be on their land.
This may include eventually even some Local Education
Authorities who seem to be prepared to allow Masts to be erected
regardless of possible risks to the children on school property
for whom they are in loco parentis in return for an
annual rental.
This aspect is currently now under
investigation by the Secretary of the State for Education
following the meeting of the House of Commons Select Committee
in June 1999 with Representatives of
NRPB as mentioned below.
RECENT DEVELOPMENTS
Scotland
10. Currently parallel with the separate establishment of the
Scottish Parliament in Edinburgh which now has responsibility
for the majority of issues affecting people living in Scotland
over one third of all Scottish Local Planning Authorities have
now adopted or publicly committed themselves to adopting
Precautionary Policies as a direct result of what they perceive
to be inadequate official advice from Government Departments.
11. Local Authorities in Scotland have decided that there are
too many unanswered questions to risk exposing the Public
needlessly to levels of microwave radiation which could or may
in time prove to be harmful to their health.
By choosing to keep transmitter
masts away from schools and residential areas local authorities
are not doing anything radical, but merely following the
Precautionary Approach advocated in the European Treaties,
accepted by the UK Government in 1993 at Maastricht.
England and Wales
12. Similarly the influential Local Government Association (LGA)
has now advised its member local authorities to adopt the
Precautionary Approach on the basis that the decision making
process of the Governments Advisory Body the NRPB, based upon
waiting for 'conclusive scientific evidence' before acting, is
potentially flawed. On 12th August 1999 the Local Government
Association accused the Government of `dithering' over the
potential danger of cancer and radiation from mobile phone
masts.
The LGA Planning Executive Chairman Stated,
"The Government must stop
dithering and give councils some clear guidance to the
threat posed by Radiation and the planning powers to keep
the Public Safe -- especially vulnerable children and the
elderly rather than wait two or three years until the
research is finished".
These statements were made in August
1999 after the Government issued on 23rd July 1999 letters to
the LGA and Members of Parliament which failed to help
authorities make the right planning decisions or offer them
guidance on where masts can be safely erected.
13. All this has come about after the senior representatives of
the
NRPB gave their evidence to the House of Commons Select
Committee in June 1999 explaining firstly that the
NRPB under
its statutory legislation could only base its guidance and
advice on 'conclusive scientific evidence' as required by its
Act of Parliament, and that accordingly until essential research
had been carried out in their opinion the only "conclusive
scientific proof" related to the properties of thermal heating
on which their 1993 Safety Guidelines remained solely based.
Secondly however the representatives of the
NRPB made it clear
that until the freshly commissioned research produced some
'conclusive scientific proof' that there were other effects
apart from thermal heating, it was up to Politicians and
Planners to exercise their 'own' judgment.
14. On 1st September 1999 Belfast City Council ratified the
18th August 1999 Decision of its Development Committee that 'no
Transmitter Masts should be permitted on any Council Property',
due firstly to the unknown risks from such masts and secondly
because of 'substantial public concern.'
Similarly Wyre Borough Council in Lancashire recently decided
that the proposed site for a mast and base station was
unsuitable given its proximity to a nearby primary school and
houses which were 190 meters and 40 meters away respectively.
This refusal was based on public
fears about possible health risks posed by microwave radiation.
This follows the 1998 Court of Appeal decision finding that
'genuine public fear and concern is a material planning
consideration, even if that fear is irrational and not based
upon evidence -- see Newport BC v Secretary of State for Wales
(1998) JPL 377.
Conclusion
The answer for the time being is Prudent Avoidance and Common Sense,
at least until properly structured research has been concluded, and
then independently assessed.
The answer is not to listen only to the
Industry, who have tended to ensure that the Industry Commissioned
research proves their point on safety. Currently prudence advocates
that reliance on the
NRPB Guidelines is no longer
sufficient.
Many independent University researchers who have produced adverse
results have had their research funds curtailed, or taken away which
stifles further investigation of adverse effects shown by earlier
research. Governments are elected to be aware of what is going on,
and to protect the public at large when uncertainties exist, and
prudent avoidance should currently prevail over commercial interests
until the further essential research has been completed and
"independently" assessed.
HALSEY MEYER HIGGINS
Revised 10th September 1999
Mobile Phones and
Mobile Phone Networks Potential Litigation or Law Suits
by Mr. Alan Meyer
Gothenburg, September, 1999
Revised 17th February 2000
At this juncture the legal position is akin to a minefield and
therefore it is wise to tread extremely carefully.
The current Guidelines are set by ICNIRP (International
Commission on Non-Ionizing Radiation Protection) and NRPB
(National Radiological Protection Board) in the United
Kingdom.
Generally such guidelines are based on Thermal Heating
because it is argued that there is no conclusive evidence currently
scientifically that there are any other effects beyond the known
Thermal Heating Factors. ...
In the United Kingdom those NRPB Guidelines were issued as long ago
as 1993. In the development of Mobile phones and Networks that is a
very long time ago - to my thinking as lawyer in 1999 and
approaching the new Millennium that is too long ago.
My current understanding is that many eminent scientists and
scientific researchers believe that low intensity radiation
does have scientifically provable biological effects. This
contradicts the long stated position of the Industry that Mobiles
have no effect at all.
That, however, does not mean either that necessarily mobiles or
mobile networks have proven health hazard effects. All it shows is
that there is now a situation of some uncertainty, which
calls for properly structured and properly independent research.
There is some evidence that until very recently the research has not
been firstly properly structured, and secondly that possible adverse
results have not then been either followed up, or followed up in a
proper manner designed to ascertain whether that research might have
found something unexpected and contrary to the industry's own
research and expectations.
Looking from a possible litigation viewpoint there are now parallel
situations in both Tobacco and BSE/CJD from which some
conclusions or inferences may be drawn now - without awaiting the
necessary long time scale for this further research to come through
with its results one way or another.
For decades the Tobacco Industry has fought off claims that
smoking and nicotine have adverse health effects. Now that stance is
crumbling both politically and legally with attendant huge costs....
Mobile Phones themselves
These operate from a Thermal Heating Standpoint well within
the current ICNIRP/NRPB guidelines on safety levels. However the
Question needs now to be asked are such Guidelines sufficiently
comprehensive and therefore still correct?
But then why do some people appear to experience some problems after
use of mobiles:
There are many reported instances -
usually dismissed as anecdotal - of people suffering as a result of
use or in many cases overuse of mobiles. In some instances legal
claims have been compromised, but with binding confidentiality
clauses to prevent wider dissemination of such information.
Using but one example, is it usual for a 26/7 year old male who used
a mobile 5 or 6 hours a day for months on end to find that he has a
cancerous tumor in his neck/lower head in proximity to where his
mobile was held? You cant prove legally at present from a single
case, what many people might believe was an obvious conclusion.
However, a batch of similar cases might well be considered quite
differently judicially in a Court of Law.
There is enough concern now within the industry itself relating to
hands off-shields - headsets industry patent applications to reduce
health risk - to begin to suspect it may all be reminiscent to the
tobacco debate, and more recently to the BSE disaster.
Consequences - Mobile Phones
(1) Product Liability
Should it become clear that the digital pulsed
modulation signal does have adverse biological effects -
which may act as triggers to adverse health conditions, - then
manufacturers could face massive legal claims for failing to
provide any or adequate health warnings to mobile phones users.
Lloyds of London has I understand refused to issue product
liability cover for manufacturers and sellers of mobiles.
However other Insurers do provide cover.
(2) Employers Liability
Employers are usually required to provide a safe system of work.
A number of employers expect their employees to carry out their
duties and responsibilities using mobile phones for hours at a
time.
It could well turn out to be a non-safe system of work for which
substantial damages may be awarded as a result of adverse health
conditions.
A number of cases have already been
settled out of court but again subject to confidentiality clauses.
Mobile Phone Telecommunication Masts
and Base Stations
From a thermal heating viewpoint they will only affect
someone exposed directly close to the antennae and dishes - a
matter of a few meters probably. However these guidelines only cover
the adverse effect of thermal heating. Presently it is not
known whether it is safe to expose people to long term cumulative
biological Effects at distances within 200/250 meters of
transmission Masts.
There is no direct proof yet that the low intensity radiation from
the antennae and dishes or masts can have a biological effect. Yet
is the operative word here. Why?
Because no one so far has carried
out prolonged tests over a matter of years to ascertain whether
masts can produce biological effects in human beings, who are exposed to chronically to such radiation for months and years.
There are however some studies which now suggest that prolonged
exposure may well be a factor in inducing ill health in people.
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The 1996 University of Bern
Schwarzenberg study on short wave masts is a possible example of
what may be a problem for people living close to a transmission
mast.
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The 1998 Loscher & Kas study into
the Extraordinary Behaviour Disorders in Cows in proximity to
transmission Stations ought to be sounding warning bells
throughout this enormous industry.
Why?
Because if it is subsequently found that
these warnings - coupled with the European Treaties Environmental
Advisory Article 130r - are or have been completely ignored when
notice should have been taken, the legal dangers will become far
more substantial and costly to the Industry.
Consequences - who will be at risk from
legal claims?
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The mobile phone network
operators who usually own and erect their own, or share
masts for the antennae and dishes.
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The landowner, private or
public, who leases or sells the land to enable the masts and
base stations to be erected by the network operator in
exchange for an annual rental or sometimes a sale price.
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The Authority, who perhaps
sanctioned the Landowner to allow the Mast to be erected on
its land or buildings i.e., Schools, Police and Fire Brigade
Authorities together with Health Authorities responsible for
Hospital Land and Buildings.
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The Insurers of all such people
and bodies.
Why Masts could be found to have adverse
health consequences with legal implications?
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Because of network operators
insistence for economic and access reasons to place them too
close to permanently inhabited buildings such as Homes,
Children's Schools and Hospitals.
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Because no long term research
has been carried out to ascertain whether low intensity
radiation for this new source may have biological effects on
some people and
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If it is so found that radiation
from Masts can indeed change cell structures and the
production of Nocturnal Melatonin (an Inhibitor) and
the enzyme ODC (a Promoter) often found in cancer
tumours
Then Mobile phone network operators,
manufacturers and Landowners may all find themselves, or their
Insurers, at substantial risk of health effect claims.
It is as yet a minefield - but the existence of this minefield and
the possible consequences are now known. The warning voices have
expressed concern. The scientific proof has yet to come through one
way or another. It may take many more years before the health
outcome is known.
Conclusion
What needs to be done now to cover the period of yeas during which
the fresh, independent, properly directed research is carried out to
ascertain whether the biological effects of low intensity radiation
do indeed lead to establishing adverse health effects in some
people?
1. Mobile Phones
The makers and distributors should be required to issue to
purchasers health warning information particularly addressing
the issue of prolonged use of the phones each day as a regular
pattern of use.
In addition it should also be pointed out that unless a mobile
phone is switched off it is in permanent use, and may adversely
affect a persons body if carried in clothing or attached to a
belt.
Together such additional information might constitute a better
informed consent on the part of a purchaser of a mobile phone
who would be in a position to consider and judge the possible
health risks.
2. Telecommunication Masts and Base Stations
Governments should require their Planning Authorities to ensure
that these are located well away from permanently occupied
buildings such as children's schools in particular, peoples
homes, hospitals and old peoples homes.
In Europe the
Precautionary Principle and Preventative
Action as advised in Article 130r of the European
Treaties should be both followed and adopted into National Law,
and then enforced. In many countries this is already happening,
and minimum distances away from permanently inhabited buildings
are being required.
No one currently knows what may be the correct minimum distance
due to lack of the essential research on cumulative biological
effects. However in many instances distances between minimum of
250 meters to 500 meters are being required.
An important practical side issue which concerns the public at
large is that when masts are placed too close to permanently
inhabited buildings it causes prolonged stress and anxiety,
which can medically bring about adverse health conditions.
That too may lead to expensive
litigation against Network Operators, who continue to choose to
ignore the EU Precautionary Principle - which probably is only
common sense anyway?
In addition, the European Convention on Human Rights, when
introduced next year into English Law, may also produce new causes
of action for Communities of people who find Masts being erected
unnecessarily too close to their homes where their privacy is
invaded, without their consent, and too often, without any prior
notification or warning.
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