The case for a liberal precautionary principle
The argument runs that due to the PP institutions within the EU have become absurdly risk-averse. This, to the point that various bodies are prepared to let many people die of a deadly virus rather than risk a few dying from the unlikely side-effects of some vaccines already proven safe elsewhere. The UK MHRA’s recent behaviour with the AstraZeneca vaccine and the under 30s is another case: it is, in that instance, even more risk-averse than EU bodies (so far).
There is a large grain of truth in all this. The PP is regularly invoked by policy makers and lobby groups to justify terrible ideas like banning vaccine use in the midst of a pandemic. But the issue is less the PP, than the way in which it has been interpreted and implemented.
To explain, let us think about the PP not as a single thing, but as a spectrum for managing unknown risks. At one extreme end, we note the risks of unintended consequences from any action, and are obliged to do nothing about it. Call it the Disinterest Principle. We note an unaccompanied child attempting to cross the street, and just wait and see what happens. Bad things possibly, but hey ho, life is hard, and then you either get hit by a truck before your eighth birthday or learn a valuable lesson about roads if they miss. This may be a strawman (I have yet to meet someone who thinks that way), but it is a popular caricature of ‘a**h*le libertarian’ thinking.
At the other extreme, we want to stop any possibility of any harm anywhere and anytime, regardless of the consequences. This is the Zero Harm Principle. Not only do we intervene to stop the child crossing the road, but we ask what they are doing outside in the first place? Shouldn’t all children be locked up to prevent such tragedies? Perhaps negligent parents should be arrested? This is also not a popular interpretation, although you’d be forgiven for thinking otherwise in this year of lockdowns.
Between these positions are a spectrum of possibilities that amount to what you do when in doubt about the safety of a course of action. One option, the hard PP, is to ban the activity until proven safe. Another is the soft PP, which means to allow the action to continue, while testing the concern, and acting only (if at all) when we are better informed. Liberals tend to favour the latter, authoritarians the former.
On GM crops, the EU took a hard PP approach. Following scare stories about ‘Frankenfood’, the EU introduced a regulatory regime so extreme that it amounted to a ban in practice. Prohibition by regulation does not require a full ban for it to be a ban. For example, a former employer (of mine) took 14 years to get one GM potato approved, and then overturned, within a year, due to errors in the process. They moved all their production and R&D out of the EU.
Much of the rest of the world took a soft PP approach, allowing trials, commercialisation and production to continue, unless harm could be demonstrated. It could not be demonstrated. It is now the case that there have been GM products globally for over 20 years, widely distributed and consumed, without evidence of harm. Yet, the EU is still acting as though GMO science is dangerous dark magic. The hard PP approach in the EU, in this case, has collapsed into a zero-harm principle.
The UK has inherited that regulatory approach: one that further amounts to a chilling effect on innovation by rendering commercialisation unviable. Not just the cost of initial approvals. But the certainty of instant bans after the mildest concern from a pressure group or a bad headline. This is also what has happened to pesticides in reaction to weak claims of harm to bees. It is what may happen to free speech platforms on the Internet from the desire to regulate mean words.
Who is going to invest in products that can be tied up in red tape for years or removed from the market on a whim? It is very hard to measure the damage done from investment that never happened, but that damage is real. It is most evident in the collapse of patents in the most highly regulated industries, and market concentrations. Anti-capitalist green activists perversely campaign against large corporations while simultaneously lobbying for rules so extreme that only large corporations can afford to risk investment.
The hard PP fundamentally is not really about precaution in the face of scientific risks, but managing the political risks being seen to do otherwise. Political incentives are heavily skewed towards punishing failure, more than rewarding a success, particularly success from inaction. For example, the way the Internet was not over-regulated in the 1990s does not look likely to survive the 2020s. These are not decisions rooted in science, but political cowardice, responding to campaigns rooted in hysterical fear of small risks.
Another issue with misinterpreting the PP towards a hard stance is that no account is taken of the harm arising from the intervention itself, let alone the harms arising from substitution effects or unintended consequences. The risk assessments are narrowly focused on the immediate concern. The vaccine crisis within the EU is clearly a case in point. It is all about the risks of the vaccine to individuals, not about the risks of not accelerating vaccine rollout to many more individuals.
Other examples include causing famine by retarding the progress of better farming technology – which can otherwise be thought of as the process of increasing resource efficiency in the production of food. Holding up the development of self-driving cars means more will die from road accidents; the biggest risk in road accidents are human decisions. In the classic case of DDT withdrawal (a pesticide that inspired the environmental movement via the book The Silent Spring), its withdrawal without adequate substitutes caused a malaria crisis that killed a million people.
However, there is hope. Two clear lessons emerge from the vaccine row in the differential outturns for the UK and EU. One is that unintended harm from precaution is on occasion quantifiable. The other is that such an approach is easily overturned with political courage. Which is why the focus on libertarian divisions is important.
The issue with attacks on the whole concept of the PP is that it sounds more like endorsement of the Disinterest Principle than the soft PP. Those making that case do not, in the main, believe that children should learn to cross the road by themselves. Nor do they think that companies should be free to poison people, or that people’s sometimes irrational fear of technology change is unimportant. But that’s exactly what crude attacks on the PP sound like.
The position of critics further is really lighter regulation or industrial self-regulation. Both of which will involve some PP-like method of checks and balances to deal with crises caused by unproven allegations of harm. The opposition to the PP at this point is semantic.
Additionally, applying the principle more widely can help libertarian causes elsewhere. The requirement for the Government, for example, to provide impact assessments on new policies is a form of the PP in action. Some, myself included, argue for an Innovation Principle which would extend such risk assessments into testing the chilling effect of policy on innovation to balance against a tendency towards bans and shutdowns. But we might be able to do better than this outside of the EU, changing the focus of the Innovation Principle from an extra layer of assessments to empowering those impacted by policy proposals to defend the spirit of inspiration and human progress in court. Much as environmental NGOs can current defend the environment for future generations to enjoy.
So those making the ‘scrap the PP’ case are perhaps showing insufficient caution. What they are doing is making regulations rooted in the hard PP position sound much more reasonable in contrast to their own position. Which in turn nudges the debate away from softer interpretations, which can help restrain bad Government decisions. A better approach is to embrace the PP in principle, while changing the narrative about what it means, and how abuse might be constrained through a British Innovation Principle. About which more in the next piece.