The development and status of the precautionary principle in the United Kingdom

Introduction

In Sweden the precautionary principle has, in one way or another, been a basic element of environmental and health protection for more than thirty years. It is firmly embedded in legislation and has been fleshed out, to a considerable degree, in preparatory works, case law and guidance documents. In the UK the story is very different. Even though precautionary decisions have, historically, been taken in various policy sectors in the UK, a more consistent approach, spanning all policy areas, was not considered until the early 1990s. Lacking reference in statutory instruments, the precautionary principle has been dealt with in documents of a policy nature. Following this development, the precautionary principle has tentatively been relied on before the UK courts. Since the precautionary principle has not been included in UK legislation, the sources for this chapter mainly include policy documents and relevant judgments of UK courts.

In this chapter the background, development and status of the precautionary principle in the UK will be analysed and discussed. As in the previous chapters, constituent elements of the precautionary principle, such as risk assessment and management, the role of scientific evidence and cost–benefit analysis are discussed separately.

Background and development

Where the precautionary principle in Sweden can be traced back to at least the late 1960s, a general precautionary mechanism in the UK is a much more recent concept.

The aim of this book is to discuss the role played by the precautionary principle when deciding on regulatory action in relation to risks posed to modern society, and the effects that such action may have for European and international trade. Primarily, this discussion aims to address the issue of how the European Union (EU) currently makes use of the principle, and what lessons the EU institutions and Member States should draw from the use of precautionary considerations in a number of national and international regulatory regimes.

The last 30 years have brought a new awareness of the hidden costs of industrialisation and the welfare state. Suddenly, societies experience the realisation of risks which they did not know that they had created. Such risks include the highly publicised and potentially catastrophic, such as climate change, but also more hidden risks, such as the long-term effects of exposure to chemicals and low-frequency radiation from, for example, mobile phones and electricity networks. Other potential risks are possibly created through the development of new technologies such as gene modification. At the same time, the emergence of highly integrated regional and global markets for trade in goods and services has limited the possibilities for individual states to successfully enact national risk regulatory strategies.

What connects many of the risks that societies are faced with today is the uncertainty which surrounds them. In many cases, the link between an activity and a risk has not been scientifically established.

Introduction

The development and status of the precautionary principle in international environmental law has been chronicled in detail by a number of scholars. The purpose of this chapter is not to reiterate their findings in detail, but merely to highlight a number of the most important and influential international instruments and cases which have shaped the modern application of the precautionary principle. More specifically, the focus of this chapter is on how states can use precautionary considerations to justify trade restrictive measures. In this regard the WTO Agreements are of primary importance.

The role of the precautionary principle under the WTO A greements has been a highly contested issue over the last ten years, and it has been the subject of a number of disputes before the WTO dispute settlement bodies. Generally, the European Union and its Member States have emerged as champions of a precautionary approach which functions as an instrument to justify national or regional regulation in the face of scientific uncertainty and controversy. On the other hand, the United States and other countries have positioned themselves as advocates of a more ‘science-based’ approach. The stakes involved have often been high and the rhetoric heated.

Like the other chapters of this book, this one aims to go beyond the political statements and the various definitions of the ‘precautionary principle’, and derivates thereof, to investigate in detail how WTO Panels and the Appellate Body (AB) have come to describe how and when Members of the WTO can act ‘precautionary’.

Introduction

That the European Union is an outspoken champion of the application of a precautionary principle with clear legal implications in the international arena was shown in the previous chapter. Originally developed in Germany, the principle has matured at European level only in the last ten to fifteen years. The original German vorsorgeprinzip has been interpreted as a highly ideological policy instrument with a wider and more complex scope than the precautionary principle generally discussed in today's literature and international trade conflicts. The purpose of the original concept answered to unease in German society with regard to the risks inherent in modern society, and was part of a wider ideology that was sometimes called ‘ecological modernisation’. Some commentators hold that Germany, fearing that its own industries would be disadvantaged by its strict environmental policies, pushed through the precautionary principle at the European level in order to create a least common denominator of environmental protection in its most important export market. Others see the development as a natural response to the growing awareness of the risks inherent in modernisation. During the 1990s the appeal of the precautionary principle increased dramatically among European citizens as well as among their elected politicians and policy-makers. Especially tangible is the rise of the use of the principle in health and consumer protection. Several explanations have been proposed to explain this newfound fondness for the precautionary principle in Europe, ranging from theories of political cycles in regulation, to the assertion that European legal systems are more suited to the principle as such.

The development and status of the precautionary principle in the United States

Introduction

That the US view of the precautionary principle differs significantly from the view advocated by the EU is apparent from recent international trade conflicts, as well as from the official rhetoric from both sides of the Atlantic. The American authorities tend to argue that the EU version of the precautionary principle slows down scientific and technological development and hinders international trade. Where the EU is seen as risk averse, the USA appears to require firm scientific evidence of harm before recognising the need for regulation. Babich has held that the American mentality is not predisposed to precautionary considerations:

In the same vein, the New York Times held in 2003 that ‘precaution is for Europeans’.

However, the facts do not seem to match the rhetoric. In fact, historically, the USA has acted in as precautionary a manner as the EU, if not more so. US environmental legislation of the 1970s went a long way to establishing a form of the precautionary principle in many areas. Agencies and courts have interpreted statutes in order to afford precautionary considerations even greater weight. Applegate has held that:

Introduction

Financial services have become increasingly important in the EU. While such services are essential for the everyday life of EU citizens and for the EU economy at large, some of them entail very high risks which may particularly affect the vulnerable in financial transactions. Thus, for example, the provision of investment services by the bank may lead to huge financial losses beyond the client's ability to pay. By the same token, the provision of a business loan for one family member on the condition that another family member stand as a surety for the whole debt may result in financial ruin for the latter. The inequality of bargaining power and information asymmetry between the parties, coupled with huge risks involved in many financial transactions, give rise to the question of how and to what extent the vulnerable in such transactions must be protected.

Private laws of all European legal systems have developed concepts which aim to protect the weaker party against unconscionable bargains. Concepts such as good morals (gute Sitten) in German law, good faith (redelijkheid en billijkheid) and mistake (dwaling) in Dutch law or undue influence and unconscionability in English law may in certain circumstances relieve the weaker party from his or her onerous contractual obligations. There is a general agreement that the vulnerable should be protected against unconscionable transactions in private law.

Introduction

French law does not have a general doctrine of unconscionability per se, i.e. as it exists in the American Uniform Commercial Code. Yet, if one considers the concept as an expression of contractual unfairness, then, it is clearly present in French law, not only through various mechanisms in the civil code, but, also through the way the courts have used loyalty as a device to re-establish some balance between the parties. The aim of this chapter is therefore to consider such measures and explore loyalty, as a facet of the wider notion of good faith in order to see how it has developed as a tool to combat contractual unfairness and whether it is still effective in doing so. This will be done in three parts: in the first part, we will consider some of the measures in place in French law which arguably deal with contractual unfairness i.e. la lésion, la cause and the legislation on consumer contracts.

The second part will concentrate on one specific area, that of pre-contractual fraud, la réticence dolosive. The focus on this notion is motivated by the fact that it is an area where the efforts of the courts to use loyalty as a tool to combat unfairness appear to be at their most obvious and therefore the similarities with that aspect of unconscionability at their strongest. Yet, we will also show how this tendency appears to be in retreat in recent judicial developments.