It is difficult to quantify how much the ‘Precautionary Principle’ has made a difference to environmental controls. Whilst the ideas have been around for several decades, no singular approach to its application is found in domestic or international law and policy. Here we ask; what is the Precautionary Principle and what role could it play going forward?
The Precautionary Principle is most commonly cited in cases involving new or changing chemicals and pollutants. It concerns itself with the level of precaution we should take when certain substances or activities have unknown consequences because the evidence is not yet available or is still emerging. As it involves unknown consequences it tends to crop up in controversial cases. This is because the adoption of the Principle is done so at the expense of other interests. Some high-profile cases from recent times which have required decision makers to consider the Precautionary Principle include mad cow disease (BSE), phone masts and possible disease and genetically modified crops.
Vorsorgeprinzip, or the Foresight Principle, first emerged in Germany in the 1970s. Foresight itself has been around as long as we have; it’s one of the things that allows us to survive and flourish as a species. Vorsorgeprinzip, however, is thought to be where the principle has its origins in environmental law. The approach began to be favoured in international agreements, including the 1992 UN Convention on Biological Diversity. For each agreement that includes the Principle there is a slightly different interpretation.
The Precautionary Principle can also be found in Article 191(2) of the Treaty on the Functioning of the European Union and the European Commission has published guidelines on its use. Meanwhile, here in the UK, the government first recognised the Principle in a 1990 White Paper, entitled The Common Inheritance. Generally speaking, beyond this it has been no more than a policy consideration. There are no statutory duties in place. Judges have referred to it, either to confirm its status as a policy consideration or to point out that there is a lack of specificity by which it might be ruled on.
The Precautionary Principle is just as the name suggests: a principle. It is not a rule. It is always used within a context and when it does get used it may be interpreted ‘weakly’ or it may be interpreted ‘strongly’. It provides another framework within which a decision could be reached. Decisions concerning uncertain risks with emerging evidence and an evolving knowledge base will always involve some cost to benefit compromises. Those who decide how the compromises are made are the politicians, therefore facts and values invariably intermingle.