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A State of Recklessness - Part 3

Martin Hensman
11th February 2009



In this part I will direct your attention to the 20th century origins of the precautionary principle and also explain how it has been used to undermine one area of our common law. The origins of the precautionary principle The principle is based is on a German environmental concept first developed in the early 1970s called Vorsorgeprinzip. The precautionary principle has been used widely in Europe to guide policy makers’ decisions regarding environmental and health issues, and it serves as the foundation of the EU’s environmental policy. Does everyone agree with its use? Not everyone is in agreement with the application of the precautionary principle or it’s effects. For example Bill Durodié,Senior Research Fellow, King’s College, London says:
‘Not having evidence is not a justification for not taking action’,a phrase that may now be familiar to many from the fiasco over the weapons of mass destruction argument in support of the recent war in Iraq. As you know, two negatives make a positive, so if I remove two of the negatives from that statement, it should mean the same thing, and we are left with: ‘Action without evidence is justified’.
Now isn’t this what we find with the smoking ban and the measures to stop global warming where policy makers make the legislation publicly acceptable by 'talking up risk of harm to others'? The science behind global warming In relation to the science behind global warming I have noted that at December's U.N. Global Warming conference in Poznan,Poland, 650 of the world's top climatologists stood up and said man-made global warming is a media generated myth without basis. Said climatologist Dr. David Gee, Chairman of the International Geological Congress:
"For how many years must the planet cool before we begin to understand that the planet is not warming?"
See also The current alarm over carbon dioxide is mistaken’, Britain’s David Bellamy has been out of the limelight for more than 10 years, shunned by bosses at the BBC. His crime? . Bellamy says he doesn’t believe in man-made global warming The science behind the smoking ban In relation to the ban on smoking in public places the Lords Economic Health Committee concluded, when considering the evidence presented in support of the Health Bill, that:
THE ban on smoking in pubs was an over-reaction to the threat posed by passive smoking and symptomatic of MPs failure to understand the concept of risk.
The Lords Economic Affairs Committee accused the Government of:
kneejerk reactions to scare stories about health…… Ministers placed insufficient weight on available scientific evidence and relied instead on unsubstantiated reports when formulating policy.
The influence of the precautionary principle in current UK Government decision making. The precautionary principle enables Government to circumvent one of the fundamental principles of British common law. The case of Donoghue v Stevenson, established that the manufacturer of a product intended for consumption owed a duty to the ultimate consumer of the product to take reasonable care that the consumer should not suffer harm by reason of any at or omission on the part of the manufacturer which he should reasonably foresee as being liable to cause such damage. Breach of this duty is negligence, so that the manufacturer becomes liable in reparation to the consumer for any harm caused by it. This is, however, only the starting point. While the decision in Donoghue v Stevenson was of fundamental importance in establishing that a duty of care may be owed by a manufacturer to a consumer, and indeed owed in many other relationships, it did not establish the content of the duty beyond stating that it is to take reasonable care. The Court has previously stated:
The policy of the law in a society such as ours seems to me to be entirely clear. Adults of full age and not suffering from legal incapacity are equal in the eyes of the law. They have equal rights and duties, freedoms and responsibilities. Each of them is presumed to be reasonable, and to have the responsibility of making reasonable choices, not least in matters affecting his or her safety, health and welfare. This approach is fundamental to the workings of our society. It is reflected, for example, in the equality of individuals as members of the electorate, and in the approach of the criminal law, which is to treat all individuals as having full criminal responsibility in the absence of special circumstances (Galbraith v HM Advocate (No.2) Individuals are assumed to be reasonably well informed and reasonably responsible members of society.
The individualist philosophy of the common law This was described by Lord Hoffmann in Tomlinson v Congleton Borough Council, As he said:
people of full age and sound understanding must look after themselves and take responsibility for their actions. There is no duty to save people from themselves. If they are, or may reasonably be supposed to be, in possession of information about harm which they may suffer if they choose to follow a particular course of action, the responsibility is theirs alone. They have the right of self determination which was recognised in Law Hospital NHS Trust v Lord Advocate.
The substitution of the negligence principle by the precautionary principle therefore has the effect of stripping away the freedoms and responsibilities of adults to make their own lifestyle choices and vests the power over those decisions in the State. The individual right to self-determination has been over-ridden without either public knowledge or consent. This is certainly true in the EU where a February 2, 2000 European Commission Communication on the Precautionary Principle notes that: "The precautionary principle applies where scientific evidence is insufficient, inconclusive or uncertain and preliminary scientific evaluation indicates that there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the high level of protection chosen by the EU". (The Precautionary Principle: risk, regulation and politics) A far more sinister side-effect of policies driven by the precautionary principle is that not only does Government strip away the individual’s right of self determination but it also leads to erosions of the rights to free speech and lawful assembly should the public dare to speak out against those policies. This was recently evidenced at the heart of Europe where a gathering of concerned individuals meeting under the global umbrella of the International Coalition against Prohibition was banned from taking place in the EU Parliament buildings. This followed:
a mass lobbying campaign by Smoke Free Europe and the European Public Health Alliance, two bodies largely funded by taxpayer handouts and big pharmaceutical firms (who wish to sell "quit smoking" products), the Bureau of the Parliament in closed session decided to ban the conference.
UKIP MEP defies plan to stop conference The EU Reporter hastily spun the suppression of free speech and lawful public assembly into an attack on Libertarianism. It’s report on the event cancellation included the comments that:
Regular ….readers…. know that pro-smoking campaigners and anti-global warming theorists often turn out to be the same people. There should be no immediately logical reason for this connection, beyond those who are life’s natural flat-earth contrarians......On flat earth, it may be cussed libertarianism which pits the issues of smoking and global warming together, but backIn the real world, it is hard-nosed commercialism.
And I submit to readers that it is hard-nosed commercialism that stokes public health fears in the absence of compelling scientific evidence and that one of the tools that they have employed to do so is the ‘precautionary principle’. In Part 1 I provided the example of how those who overfill their bins were to be fined more than shoplifters. Additionally, I referred to the report that Liverpool Council had collected close to £100,000 in fines in just eight months from citizens dropping cigarette butts on City streets. An observer of recent events recently wrote: the aim of the law was in the first place to protect against persecution and discrimination, it has clearly been turned upside down: the default position now is that you can persecute anyone you want unless they are protected by law. I am finding it increasing difficult to disagree with that view. In relation to the prospect of global warming you are invited to watch the attached video if you haven’t already made up your own mind. In Part 4 I will show you how elements of the anti-smoking lobby enlisted help from the environmental movement prior to the introduction of global regulation of tobacco use. In part 5 I will move on to examine some of the hidden costs of pursuing these unpopular policies and demonstrate how ammedment / repeal of the legislation could provide a useful spring board towards global economic recovery. Link to video>>> The Great Global Warming Swindle Martin R. Hensman M.Inst.L.Ex, LLB (Hons)
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