Brunel University London Institute of Environment, Health and Societies More Timely Action on Fewer Hazards? The Links between Precaution and Innovation

Understanding the Precautionary Principle: Legal And Administrative Perspectives Prof Liz Fisher, Faculty of Law and Corpus Christi College, University of Oxford

Outline An Overview of the Principle and Its Legal Development Discussion of Why It is So Controversial A Recent Example of It in a Case

A general definition ‘Where a serious or irreversible environmental or human health threat exists, lack of full scientific certainty should not be used as a reason for not taking measures to respond to that threat’. A principle - not a rule or a magic wand Focused on reason (particularly administrative) ‘always debated’ (Callon and others 2009) and the problems of polemic mixed in with genuine debate Nothing new

A Brief History….. First appearance as an explicit principle in 1970s West German policy Deployment in international law treaties (mostly in preambles and soft law instruments) – Rio Declaration (1992) Principle 15 EU – Article 191(2) TFEU, Communication on the Precautionary Principle (2000) Widespread deployment in other jurisdictions and regimes (Australia, India) Development of pockets of application (legislation, case law)

Examples of Current Legal ‘Pockets’ of Application in UK/EU EU health and consumer law Food safety and chemical safety – T13/99 Pfizer, C-343/09 Afton, Dominance of risk assessment/risk management distinction (Communication) Influence of perceptions of WTO law Habitats Directive Art 6(3) and when to do an appropriate assessment –’Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects’ C-127/02 Waddenzee Flood Risk - old PPS 25 (replaced with NPPF)

But Why ‘Always-Debated’? Debates Primarily About the Role of the State – External – binding states and allowing them to derogate – Internal – the legitimate operation of administrative discretion Scientific Uncertainty Disrupting Frames of ‘Clear-Cut Choice’ (Callon and others 2009) – Needing to develop other ‘measures’ frames for action

Scientific Uncertainty and the Limits of Linear Decision-Making Risk Assessment Risk Management Risk Communication

An Example

Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174 Planning permission for 65 houses accompanied with ecological report suggesting little impact on HD protected areas (main issue recreation) local planning authority (LPA) thought otherwise and alerted Natural England (NE) NE objected to the application "until the impacts under the [Habitats Regulations] have been mitigated and compensated against". LPA and others commissioned ecological reports (Footprints)– focus on interrelationship between the big picture and individual developments – role of the precautionary principle

Appropriate assessment – need for further mitigation measures including a financial contribution and conditions on quality of open space (NE agreed) Planning permission rejected for other reasoning – planning inquiry – developer brought in expert witness Planning permission granted by the inspector subject to conservation contribution and condition about open space.

Judgment of Court of Appeal Two issues Is it legally valid to take into account mitigation measures Was it legally valid to do so in this case? Things To Note A case involving different scales of scientific uncertainty and normative disagreement Decision embedded in English planning law and process Needing to consider nature of Art 6 as a legal obligation Questions about the standard of judicial review Questions about the role of expert evidence in the inquiry – is this ‘objective’?

Is it legally valid to take into account mitigation measures? YES Analysis of EU authorities that emphasise – ‘The importance of applying a precautionary approach under Article 6(3), [62] Art 6 to be read as a whole in light of its objectives (relevance of compensatory measures under Art 6(4)) ‘in my judgment it is clear that preventive safeguarding measures which have the effect of eliminating completely or mitigating to some degree possible harmful effects of a plan or project on a protected site (in the sense that they prevent such effects from arising at all or to some degree) may be taken into account under Article 6(3)’ [65]

Was the Inspector’s Decision Legally Valid? YES! -Strict precautionary approach was taken (and was highlighted in the Footprints report and by expert evidence) -Inspector had more evidence than the LPA -The impact from this development was de mininmis and there was a framework for taking into account future impacts (‘uncertainties adequately catered for’ [101])

Conclusion The precautionary principle is not a ‘magic wand’ nor it is ‘the greatest risk of all’ (Brunton) It forces us to think about the difficulties of decision-making under scientific uncertainty Embedded in legal and administrative processes A study of it requires a study of detail and of ‘measured action’

Brunel University London Institute of Environment, Health and Societies More Timely Action on Fewer Hazards? The Links between Precaution and Innovation