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Impact of Precautionary Principle

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To what extent did the precautionary principle assume significance in UK environmental law?

In the last few decades the Precautionary Principle has gained significance within the realm of modern environmentalism. It appears, although not always explicitly, in national legislation, international statements of policy, treaties etc. Despite its development, there is no commonly agreed definition of the Precautionary Principle nor is there any guidance on how to implement it. Its central role is to guide administrators and regulators who make decisions or develop policy in circumstances where there is no conclusive scientific proof of a clear link between the relevant action or substance and the harm“on the grounds that it is better to be roughly right in due time, bearing in mind the consequences of being very wrong, than to be precisely right too late.”
The first detailed reference to the Precautionary Principle in the UK was featured in the government's White Paper on the Environment, entitled "This Common Inheritance”. It put forward a weaker formulation of the Precautionary principle on the basis that you have to ensure that you balance the costs and benefits in order to dismiss any lack of scientific certainty when taking action against significant risks. It was weakened further in a sub-section of the White paper where it was made clear that all decisions relating to the environment had to “…look at all the facts and likely consequences of actions of the basis of the best scientific evidence available.” Following this, it is clear that there is a privileging of science over other forms of knowledge as it is assumed that science can soundly arrive at predictions and policy judgements and should be the basis of all precautionary measures. This suggests that the Precautionary Principle has a very limited role in the UK and its actual philosophy is more likened to the Preventive Principle; the aim of which is to prevent damage to the environment once the damage is known.
Conversely, there have been cases in the UK courts in which it has been discussed such as in R v Leicester City Council where the court acknowledged that the principle could have some doctrinal effect in UK law. However, Richards J was critical of this, arguing that it could not be simply argued as a “rigid principle that can only furnish one result.” In other words, it could only be viewed as a consideration. In Duddridge, Smith J effectively held that the principle did not have direct effect. From this we could understand Smith J to be saying that the principle is non-justiciable. In R v Derbyshire County Council, Maurice K J “it may in some fields of regulation be relevant to take into account the precautionary principle” but added that its limitations were more important.

Although the principle has proven to not be directly effective in domestic courts, domestic law has involved aspects of it, suggesting it is significant to an extent. For example, the Water Resources Act 1991 s.92 gives the Secretary of State power to make regulations in order to take precautions against water pollution. Section 161 of the Act also involves an aspect of the Precautionary Principle as it includes the powers to serve works notices to prevent water pollution. However, in general terms, there is no explicit reference to the principle and like in R v Secretary of State for Environment, it is clear that the lack of any settled mechanism of risk assessment means that most arguments in UK courts for the principle will fail.
Its significance in the UK can be compared to the way it has been adopted into Environmental Policy in the EU. An important case to illustrate this is Pfizer v EC which involved the prohibition of the use of antibiotics in food for health reasons. The ECJ accepted the precautionary principle as an argument in the case despite the lack of proof that it would cause a resistance in human beings to antibiotics. However, the case did not offer much guidance as to the application of the principle; it stated that the measure should be proportional to the desired level of protection but what is proportionate? At what point would uncertainty demand a precautionary response? There are advantages of this, such as it not being restricting but flexible so that Member States can adapt it according to their environmental law issues and circumstances. On the other hand, the uncertainty goes against one of the Unions main aims of uniformity across all member states. Clearly, there are competing principles in play here; taking precautions to protect the environment, which could lead to restricting trade verses the concept of a single market/free movement of goods. Nonetheless, Article 191(2) TFEU now has this principle enshrined.
Regarding International Law, the principle made an appearance in the Rio Declaration which stated that the principle applies where there are ‘threats of serious or irreversible environmental damage’ and where there is scientific uncertainty over those threats. In a case challenging the right of France to carry out Nuclear Tests in the South Pacific, although no substantive decisions were taken, dissenting opinions suggested that the role of the precautionary principle may be of increasing importance in the future. Judge Laing in New Zealand v Japan distinguished between the principle and a precautionary approach as he believed the latter would offer more flexibility. So although the court held that there was an obligation to act with prudence when it comes to doing research with natural resources it was cautious with the wording. Evidently, international law cases present an inconsistent application of the Precautionary Principle, however, again it can be argued that this is inevitable because a principle is in its nature just a general guide to action.
The lack of debate in Parliament shows that the Precautionary Principle is not as significant in the UK as it is on the EU and International scale. Nevertheless, although it has been limited, it still has had an effect on domestic law and has not been completely denied in the courts as an existing principle. It is a principle, not a rule, so the fact that it is rarely explicitly mentioned in domestic law and is sometimes uncertain or incoherent does not insinuate that its significance is non-existent.

Bell S, McGillivray D, Pedersen O.W, Environmental Law (8th edn, OUP 2013)
Wes Jackson, Protecting Public Health and the Environment: Implementing The Precautionary Principle (Island Press 1999)
Case T-13/99 Pfizer v European Commission [2002] ECR II-3305
R v Derbyshire County Council, ex parte Murray [2001] Env
R v Leicester City Council and others, ex part Blackfordby and Boothhorpe Action Group Ltd, [2001] Env

Elizabeth Fisher, “Is the Precautionary Principle Justiciable?” J Environmental Law (2001)
James Cameron & Juli Abouchar, “The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment” [1991] 14 Boston College International and Comparative Law Review 1
The Common Inheritance, 'Fact not fantasy: best evidence', (White Paper, HM Govt, 1990)

[ 1 ]. Stuart Bell, Donald McGillivray, Ole W. Pedersen, Environmental Law (8th edn, OUP 2013)68
[ 2 ]. Wes Jackson, Protecting Public Health and the Environment: Implementing The Precautionary Principle (Island Press 1999)27
[ 3 ]. The Common Inheritance,'Fact not fantasy: best evidence',(White Paper, HM Govt, 1990, 11)
[ 4 ]. Bell(n 1)75
[ 5 ]. Cameron & Abouchar, “The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment”[1991]9
[ 6 ]. R v Leicester City Council and others, ex part Blackfordby and Boothhorpe Action Group Ltd, [2001] EnvLR2
[ 7 ]. R v Derbyshire County Council, ex parte Murray [2001] Env LR26
[ 8 ]. Bell (n 1)74
[ 9 ]. Bell (n 1)70…...

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