The health emergency linked to Covid-19 brought to the fore the problem of the usefulness and correct application of the precautionary principle.1 In this paper the topic will be analyzed starting from the ‘foundations’ of the precautionary principle, to subsequently see its relevance in action. Particular attention will be paid to the relationship between science and Public Administration,2 to demonstrate how the precautionary approach represents a ‘rule of action’ for the public decision-maker when there is no full scientific certainty.3
In this perspective, the investigation will be conducted also by looking at the ‘answer’ of the Italian legal system to the emergency related to Covid-19.4 This will lead to see if the precaution has been taken seriously by the Italian Administration and,5 subsequently, what characters have taken the measures to fight against the spread of the outbreak. More specifically, in this paper, the general reference to the Public Administration will be used wanting to include in this notion the set of Institutions (Government at a central level and Regions at a local level) that have found themselves to face Covid-19. In this perspective, the reference to the Administration is to be understood as the public decision-maker in the face of the pandemic phenomenon:6 for this reason the analysis will not focus on individual measures, but on a ‘model’ of action that emerges from the reaction to the Coronavirus, to understand if the precautionary principle has been correctly understood and applied.7
2. The basic elements of the precautionary approach: law in the books
The precautionary ‘approach’ has been defined with regard to the environmental and health protection at the International perspective.8 Its prediction was traced back by the 1992 Rio de Janeiro Declaration on environment and development.9 The principle n. 15 of the Declaration states that ‘in order to protect the environment the precautionary approach shall be widely applied by States according to their capabilities.’ It is specified that ‘where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’10
This definition of precaution gives to the interpreter the idea of a principle which is graven ‘in the books’ with reference to some basic elements:1112 risk of a serious and irreversible damage; lack of absolute scientific certainty; need for action; cost-benefit analysis.13 A fact that can no longer be doubted is that the precautionary approach cannot be limited to the environmental ‘problem.’ In a wider perspective, the European jurisprudence has long clarified that the precautionary principle has a general value in the European Community Law:14 it entails an obligation for public Administrations to take adequate measures to deal with health, safety and environmental risks.15
In such a perspective we can say that the precautionary principle has been the subject of particular attention by the European Court of Justice (ECJ) in all cases where it was necessary to deal with a risk situation.16 A common feature of ECJ’s case-law on the precautionary principle is the special attention paid to the conditions for applying precautionary measures. The ‘justification’ of the precautionary action in many cases has been identified in the fact that such a principle has a special value: it provides that where there are uncertainties about the existence or extent of risks to human health, protective measures may be taken without waiting for the actual existence and seriousness of such risks to be fully demonstrated.17 The idea that emerges from ECJ’s jurisprudence is therefore that of the precautionary principle as a ‘principle of action’ addressed to the Public decision-makers in all cases where there is a threat of imminent harm, without scientific certainty.18
The first and basic requisite to refer to precaution is represented, as mentioned, by a risk of a ‘serious’ and ‘irreversible’ damage associated to a particular situation. From this point of view, the logic of the precautionary principle is that which leads to an anticipation of the protection threshold.19 There is an idea which is at the basis of the precautionary principle: the irreversibility of the damage derives from the fact that it cannot be repaired ex post. It is not possible to resort to forms of subsequent correction of the damage once it has occurred. But at the same time it is not possible to proceed with a mitigation of the damage (as it happens in the case of preventive action).20
In other terms, at the basis of the precautionary action there is the awareness of a risk of damage that is not ‘acceptable,’21 and for this reason it must be stopped immediately.22 In conclusion, the precautionary principle ends up determining a paradigm shift: from the ‘wait and see’ model we move to an approach based on the idea of maximum caution expressed by ‘better safe than sorry’.23
It can be said that such a ‘serious and irreversible’ risk has manifested itself with regard to the epidemic of Covid-19:24 its ‘birth’ in China was associated from the beginning with an uncertainty.25 We found ourselves faced with a new and unknown virus, whose lethality soon became visible and its effects manifested themselves in irreversible terms for human health.26 This virus was surrounded by an overall uncertainty that covered several aspects:27 its origin, the way of its transmission, the necessary remedies to fight against it. For this reason it is now necessary to reflect on the second basic element of the precaution, which can be defined as the theme of non-reducible uncertainty.28
3. Non-reducible uncertainty and uncertain science law in the case of Covid-19
The definition of the precautionary approach connects together the risk of a ‘serious’ and ‘irreversible’ damage and a situation of scientific uncertainty. This means that it is impossible, in the face of the scientific data ‘available,’ to clearly demonstrate (absoluteness) the causal relationship between a fact and an event: for this reason it is recognized that in such cases the causal link is, in all or in part, uncertain, doubtful or obscure.29
The health emergency we have experienced with Covid-19 has brought to the fore the problem of the relationship between science, Administration and politics.30 The dramatic situation we have experienced clearly demonstrates the impossibility of science to offer in any case univocal solutions, capable to identify a clear answer for a health problem. The expression that, better than any other, is able to grasp the meaning of this imperfect character of scientific knowledge is that of an ‘uncertain science.’31 But what is meant by this expression? It can be said that it expresses the unstable and changeable character of science, its being subject to changes and adaptations in the sign of the continuous evolution of knowledge.32 This uncertainty can be appreciated both on a subjective and on an objective level.
On a subjective level, this character derives from the non-neutrality of science and its operators, from its being strongly permeated by a plurality of instances that correspond to different ‘values.’33 On an objective level, scientific uncertainty is closely connected to a set of factors that contribute to determine its extremely relative and changing nature.34 We can qualify these factors referring to two general paradigms: complexity and non-uniqueness: the reference to these two factors leads us to define the unitary concept of ‘irreducible ignorance.’35
First of all, the growing complexity must refer to the factual context, especially with regard to the non-homogeneity of the concrete situations to be faced.36 The idea, proposed by the most modern sociology, of a ‘risk society’ demonstrates how the same concept of risk is connected with contexts characterized by complexity.37 Complexity brings with it an inevitable risk factor: this risk generates insecurity (and sometimes fear)38 and from all this premises arises a need for adequate forms of control.
Second, the paradigm of non-uniqueness, which can be assessed on two levels: in relation to the origin of certain phenomena (‘upstream’) and with regard to the connection between these and the ‘downstream’ effects. In many cases this character of uncertainty is welded with the lack of data or, in any case, with their insufficiency: from this premise ‘divergent or indeterminate scientific propositions’ are developed.39 The Covid-19 case seems to demonstrate all this with evidence. In this global pandemic situation, uncertainty assumed a primary role and manifested itself in a progressive form:40 it involved the origin of the virus and its spread; from here emerged the most diverse theses regarding contrast therapies. In this ‘groping in the dark’ each thesis was first advanced and then subjected to the principle of ‘falsifiability,’ which strengthened its character as a component of every scientific discourse.41
A unitary framework can therefore be delineated, where uncertainty is considered as a component of what could be defined in the more general terms of an ‘irreducible unknown.’42 This concept expresses a particular situation in which the absence of knowledge (in terms of ‘ignorance’) is qualified on the basis that it is not possible to identify predefined schemes to deal with an event. The irreducible uncertainty, as it has been pointed out, ‘affects the future’ and is linked to ‘crisis’ situations:43 these are qualified by the fact of placing an element of rupture with respect to a model based on safety, classification, regulation and predictability. Irreducibility means ‘non-reduction’ of a phenomenon and its developments to the logic of preventive action: such a logic allows the measurement, with sufficient certainty, of the type of impact that may arise from it.44
This relative and imperfect nature of the scientific knowledge creates a further problem concerning the legal ‘answer’ to such a situation.45 How is it possible to qualify the legal answer to situations like that one of Covid-19? It is at this point that we can speak about ‘a law of uncertain science.’46 This expression indicates a two-way correspondence: the uncertainty of science generates a correlative uncertainty regarding ‘how’ law regulates these complex cases.47
The best model appears that of an ‘adaptive’ public decision, which is related to the concrete case and ‘follows’ its evolutions.48 In any case, the ‘answer’ of law to these situations is not given in abstract, but must be sought concretely, in the perspective of a decision that does not precede but ‘follows’ events, and is based on the logic of the so-called ‘muddling-through.’49 The justification for the intervention by the Public Administration lies in the urgency. Urgency, as in the case of Covid-19, does not allow to wait, but asks for an immediate and effective intervention to deal with the spread of the virus.50
In these cases the Administration must decide without the complete ‘coverage’ of science. There are no clear and indisputable scientific studies, but only many thesis, often divergent, and all subjected to a general principle of ‘changeability’ in a short time.51 This is what happened, for example, in the Italian case. The Government had to adopt very restrictive measures within a few days (so-called lock-down), based on the assessments of a technical-scientific Committee set up for the emergency.52 These measures – as pointed out by some Scholars – have been adopted without a ‘minimum recall’ to an ‘evident’ scientific risk assessment.53 A problem of evidence in the scientific foundation for public decisions against Covid-19 has been also posed in the French legal system with the establishment of an ad hoc ‘committee’: the Research and Expert Analysis Committee (CARE).54 However, there was no lack of criticism, especially regarding the legal basis of this body and the fact that it expresses only a part of the scientific community.55
All of this poses a problem about precaution in action. The idea of an effective and adaptive emergency decision brings reflection to the operational framework within which the precautionary action is placed. Only after having clarified the operational framework of the precaution (and the connected adaptive logic) it will be possible to reflect on the problem of the timeliness of the action.56
4. Some indications about precaution in action and the risk assessment in the Italian case
Referring to the particular kind of approach which is at the basis of precaution, the problem is how to define the concrete rules of the precautionary action. The issue was posed and addressed by the Communication of the European Commission of February 2nd 2000, specifically dedicated to the precautionary principle.57
The Communication refers to a real precautionary ‘dilemma,’ which has given rise to contradictory views.58 This dilemma stems from the fact that decision-makers have to balance the freedom and rights of individuals, industry and organizations with the ‘need to reduce the risk of adverse effects to the environment, human, animal or plant health,’59 On this basis, there are some principles that have to guide public decisions taken under the ‘umbrella’ of precaution. In this perspective, we may wonder how much these counter-limits to precautionary action have found application in the case of Covid-19.
First, proportionality. It indicates the adequate level of a decision, compared to the desired level of protection, also in consideration of the type of impact on individual interests.60 A proportional precautionary decision is characterized by the fact that it is ‘tailored’ both to the situation to be addressed and to the interests that come into play. If it is evident that risk ‘can rarely be reduced to zero,’ it is at the same time important to underline that ‘a total ban may not be a proportional response to a potential risk in all cases:” however, in certain cases, it is the sole possible response to a given risk.’61 The Italian answer to Covid-19 can be framed in this type of approach: the so-called lock-down has been considered the sole possible answer to the spread of the virus. It was an extreme measure, which was reached gradually and which allowed personal movements only for reasons of extreme urgency (for example, health reasons, urgent needs for assistance to relatives or people with disabilities).62
Second, non-discrimination. It means that the level of protection chosen to face an extraordinary event must not lead to treat equal situations differently. The precautionary choice is characterized by a strong rate of discretion on the part of the decision-maker: this discretion cannot lead to arbitrary solutions.
Third, consistency. The precautionary measures should be consistent ‘with the measures already adopted in similar circumstances or using similar approaches.’63 It is necessary to look at the measures that have been adopted in the past to deal with emergency situations similar to the one to be addressed. The Covid-19 case demonstrates the impossibility of applying this type of approach to address the present health emergency. The declarations of the political exponents in the days of the greatest spread of the virus referred to an unprecedented health crisis.64 For the first time since the end of the second world war, it was necessary to limit some fundamental freedoms guaranteed at the constitutional level.65
Fourth, cost-benefit analysis and connected examination of scientific developments.66 In this case, it is important to consider the profile of the effectiveness and socio-economic impact of the various options.67 The cost-benefit analysis must be related to the level of scientific knowledge at a given moment. Each subsequent evolution of scientific knowledge requires the need for a new cost-benefit assessment: this new analysis is followed by new measures that are adapted to the changed context. This means that measures based on the precautionary approach ‘shall be re-examined and if necessary, modified depending on the results of the scientific research and the follow up of their impact.’68 It is at this point that we can still refer to an ‘adaptive’ model in governing the precautionary action of public bodies.69
In this perspective, some Scholars, refer to a ‘reflexive Administration.’70 a model which is characterized by flexibility in the forms of public action. This means that a change in the factual situation requires a parallel adjustment of public decisions referred to that new context. The idea is that one of a dynamic Administration. Such Administration is capable of relating to concrete facts and, if necessary, of retracing its steps.71 The tools available to achieve this result are the review and revision of previous decisions, based on the development of scientific research and the possession of more complete data.
The reaction of the Italian institutions to Covid-19 was, from this point of view, uncertain. The problem arises thinking about the scientific assessment that was the basis for the first measures taken by the Italian government. The first precautionary measures – as already mentioned – were taken without an ‘evident’ scientific foundation. The public choice must be the point of arrival of a clear and ‘visible’ risk assessment process for the citizen. In the Italian ‘answer’ to Covid-19 there was a real paradox:72 a mismatch between the abstract dimension and the concrete dimension. In other terms, the political reference to the central role of science in tackling the health emergency has not been followed up in the procedure that led to the precautionary measures.73 These measures were adopted without the necessary transparency and objectivity in the risk analysis. The precautionary decisions adopted by the Italian government referred to assessments conducted by a technical-scientific committee, but the results of these assessments have not been shared and brought to the attention of citizens.74
With regard to the Italian case, the question related to the involvement of the technical-scientific committee in the decision-making process aimed at facing the emergency can be better specified. The activity of such a committee has been framed referring to a form of support with respect to Italian Government action, following the aim of conferring greater rationality (in terms of ‘justification’ anchored to technical parameters) with regard to the procedures linked to the health emergency.75 The Italian legislator provided that the committee has to be heard before adopting measures to combat the spread of Covid-19. The committee must issue an opinion on the technical-scientific aspects and on the assessments of the adequacy and proportionality of these measures. This last reference has caused discussion, precisely because it also affects profiles other than the technical one and which are an expression of pure discretion. Such a broad assessment (which concerns adequacy and proportionality) should have been supported by greater guarantees in terms of ‘visibility’ and transparency, in particular on the risk analysis profiles. This consideration is not secondary, because of the fact that a greater visibility in the risk assessment process would have helped to ensure greater procedural rationality of the emergency measures.76 Moreover, when it is not possible to appeal to the resolving authority of a univocal and neutral scientific knowledge, the containment of fear and its treatment is inevitably linked to cooperation between experts, policy makers and representative groups. From this derives the identification of specific mechanisms that facilitate the formation of consensus between bearers of different instances, thus ensuring visibility and rationality to the entire decision-making process (these elements do not seem to have emerged in the risk assessment conducted by the technical-scientific committee).77
Even the Italian Administrative judge, with particular regard to the question of access to the minutes of the committee, qualified the Administration’s behavior as illogical and contradictory: if the legal system recognizes the importance of the right of access with respect to individual measures that have a much lower social impact, the same argument must apply to acts (such as the minutes of the committee) that have a strong social impact on territories and communities.78 To this, we must add the fact that, after the establishment of the technical-scientific committee, another committee of experts in economic and social matters was set up with the function of monitoring the subsequent phases of the pandemic emergency. Such a committee, which is the expression of a ‘task force’ of experts in support of government action, was created with a proactive and ‘planning’ function of the gradual resumption of economic-productive and social activities.79 Also in this case, many critics have been advanced, with particular regard to the unconditioned trust in a technical-specialist knowledge and on the correlative lack of representativeness of the new committee. The result of this ‘proliferation’ in terms of comitology was pointed out referring to the creation of a ‘parallel’ and extraordinary emergency administrative organization:80 it is a ‘competing’ (and ‘alternative’) emergency organization which arises next to ordinary administration: it determines structural changes justified by the urgency to provide and suggests at the end a certain ‘trend to adhocracy.’81
But we cannot stop here, because another critical profile linked to the Italian precautionary action in the case of Covid-19 is represented by the ‘time’ of the reaction to the pandemic risk.82
5. The problem of the timeliness of the action: the Italian ‘reaction’ to Covid-19
The principle n. 15 of the Rio de Janeiro Declaration contains a methodological indication with regard to the time.’ Scientific uncertainty cannot represent a ‘pretext’ to post-pone the adoption of ‘adequate and effective measures.’83 It has been observed that the timeliness of the action, in a broader perspective that looks towards the scenarios of a future reconstruction, is essential to help recovery, without forgetting its contribution to insure the legitimacy of the public power.84 The idea is that timeliness becomes an essential component in strengthening the Administration’s ‘credibility:’ a condition to re-create citizens trust in public Institutions. It can be said that there is a direct proportionality relationship between timeliness and good administration.85
How timely and immediate was the precautionary action of the Italian Government in contrasting the spread of Covid-19? The idea that can be drawn from the consideration of the measures adopted by the Italian Government since 31st January 2020 is that of a substantial uncertainty in the choice of the ‘tools’ to be put in place.86 The resolution of the Council of Ministries of January 31st 2020 contained the declaration of the State of emergency as a consequence of the health risk ‘associated with diseases deriving from transmissible viral agents.’ In order to contain the health risk, the Head of the Civil Protection Department was legitimated to adopt extraordinary measures in derogation ‘of all current provisions,’ with compliance with the limits set for extra-ordinem powers.87
The declaration of January 31st 2020 represented the logical starting point to outline a model of public intervention in a ‘scalar’ form, divided into three steps.88 The first corresponding to the civil protection orders. The second represented by the ordinances of the Ministry of Health (for the definition of the so-called red areas). The third characterized by the use of the instrument of the Law-Decree and the subsequent Decrees of the Prime Minister.89 The result was that of an action strategy that hides behind itself an uncertainty of a public power still unprepared to face a pandemic crisis never experienced.90 This uncertainty led to a delay in contrasting the spread of Covid-19.
In particular, the non-timeliness of the Italian Government’s action can be associated with two considerations. The first is non-legal and concerns the underestimation of the risk associated with Covid-19.91 At the beginning of the outbreak, the virus was described as ‘non-dangerous:’ the first Government statements referred to a situation ‘under-control.’92 The second concerns the legal model that was followed to set up the Covid-19 law enforcement strategy. The strategy followed at the beginning was that of ex post tools to fight against the spread of the virus. This choice was the subject of a strong criticism, for the fact that it would have been necessary to use preventive contrast tools (ex ante), and not the instrument of the civil protection ordinances which represent a subsequent instrument.93
Civil protection ordinances are based on the assumption of situations, events or disasters already occurred;94 a not insignificant element when there is a need to prevent ex ante and manage the spread of an outbreak ‘in itinere.’ The conclusion of this reasoning leads to believe that in the Italian case there has been a setting error that can be assessed on a methodological level.95
Among the different ‘lessons’ that can be drawn from the Covid-19 case, it is possible to refer to three aspects concerning how the precautionary principle was implemented in the Italian case.
First, the precautionary method was only partially taken seriously.96 This aspect can be understood by looking at the problem of the scientific basis of the precautionary decisions. In the concrete application of the precautionary principle, there was a ‘logical jump’ between the lack of full scientific certainty and the choice to act on the basis of data and assessment not disclosed to the public.97
Second, it is possible to highlight that the precautionary action was not timely. The Italian experience shows that there has been no immediate continuity between the abstract and the concrete dimension. After the national health emergency declaration (end of January), the first operative measures to contrast Covid-19 arrived only at the beginning of March.98 Once again, there was a problem with switching from a precaution ‘in the books’ and a precaution ‘in action.’
Last, the Italian ‘answer’ to Covid-19 demonstrates how a fundamental element that underlies the precautionary approach is represented by flexibility and gradualism in decisions. The idea of gradualism can be traced back to the identification of some ‘phases’ of the national emergency: each of these phases corresponds to specific decisions.99
The so-called ‘Phase 1’ was the most critical one, in which the Government had to take the most restrictive measures. In this case, a progressive method was followed, starting from the measures of ‘social distancing,’ to arrive at the most extreme measure of the ban on movement.
The ‘Phase 2’ coincides with what could ideally be called the ‘descending branch’ of the parabola. Also in this case, a progressive method was followed, overcoming the most restrictive measures and planning a gradual ‘re-opening’ of the various activities. The ban on moving has been overcome, even if the social distancing measures have been maintained.
The third phase is the one that characterized the period from June to September 2020, which has just closed. The key word of this phase, in continuity with the second phase, has been that of monitoring. In this case, there was a comeback to soft regulation measures, such as, for example, the recommendations to maintain a certain behavior, without any provision for penalties. This phase did not last very long, because the resumption of the infections imposed a new phase.
The most recent history shows that, unfortunately, there is also a ‘fourth phase’ in the Covid-19-related emergency. This phase shows that there is a kind of ‘circularity’ in the way the risk manifested itself. The significance of this circular logic in the Coronavirus can be grasped if we look at what is happening in Italy, as in all the other European and world countries in the last weeks. Covid-19, after a brief period of attenuation coinciding with the range June-August, has resumed its spread on a large scale. Once again, the Italian Government has been forced to adopt new measures to fight against the spread of the second wave of the pandemic. Unfortunately, the method has not changed, as if to show that there is still much to learn about how to implement precautionary measures. There is a need for greater coordination between the central level (State-Government) and the local level (represented by the Regions and, in general, by local self-governments); and we also need greater ‘awareness’ of the type of measures to be taken to get to the root of the problem of the spread of the pandemic. This kind of situation ends up putting uncertainty over other uncertainty. The first uncertainty is that which arises from science and its responses in the face of a virus yet to be explored. The second uncertainty is that which comes from the institutions called upon to take appropriate and not disconnected actions.100 The two elements, represented by the linking and the effectiveness of precautionary measures, can avoid the paradox of a precautionary principle that risks to be applied according to the model of ‘variable geometries,’ with disproportionate solutions from level to level.
In conclusion, the Italian case confirms how the precautionary approach – if correctly understood and applied – represents a solution for an emergency health situation. We could refer to a ‘flex-security principle’ for exceptional situations,101 which in the absence of typical intervention measures appears to be the most effective way to make decisions in times of crisis. History repeats itself, now as then. In front of Covid-19, as in the case of Dr. Jon Snow in 1854 in London during the cholera epidemic, the public decision-maker had to run across a ‘last mile’:102 in the absence of the ‘umbrella’ of science the responsibility of public Institutions has returned to have a leading role.