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

FOUR NEW SQUARE LINCOLN’S INN 2 Requirements for principle to apply (1) Existence of risks: Potential risks have been identified as resulting from a product or process or action (2) 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

FOUR NEW SQUARE LINCOLN’S INN 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

FOUR NEW SQUARE LINCOLN’S INN 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?

FOUR NEW SQUARE LINCOLN’S INN 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)