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The Misapplication of the Precautionary Principle and Its Consequences

This article, authored by Leigh-Ann Mulcahy, explores the misapplication or non-application of the precautionary principle in the context of environmental policy and public health. It discusses the requirements for the principle to apply, including the existence of potential risks and scientific uncertainty. The philosophical basis of the principle emphasizes a "better safe than sorry" approach, while also highlighting issues related to risk assessment and management. The piece critiques the current understanding and application of the principle, questioning the balance between regulatory discretion and public safety.

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The Misapplication of the Precautionary Principle and Its Consequences

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  1. FOUR NEW SQUARE LINCOLN’S INN The Misapplication or Non-Application of the Precautionary Principle Leigh-Ann Mulcahy

  2. Requirements for principle to apply • Existence of risks: Potential risks have been identified as resulting from a product or process or action • Scientific uncertainty: Because of insufficiency of information or understanding it is impossible to determine the existence of or to quantify the extent of the risk in question

  3. Philosophy behind principle • Common sense appeal - “better safe than sorry” • Safety/elimination of risk (cf. – public expectation of safety in Product Liability Directive) • Risk assessment/management

  4. Problems of its application • Binding legal norm (EC/international customary law) or a policy guideline? • Scope? Environmental policy Art 174(2) EC Treaty -> consumer protection and human health issues generally • No common understanding of its meaning/ application • Too much discretion left to regulator?

  5. Consequences • Impact on risk to benefit evaluation • Result may be other (greater) risks (e.g. MMR) • Manufacturer - burden of disproving risk • Increased risk of liability/JR of regulator • Non-application – use as ‘sword’? (cf. ex p. Duddridge)

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