Guidance
Precautionary Principle
This controversial premise is in the mind of some the essential guide to dealing with highly technical and globalized risks that challenge traditional expertise and jurisdiction boundaries. It is the safe and responsible attitude to scientific doubt. For others, though, the ambiguity of the principle makes it a Trojan horse for clandestine undermining of trading treaties, and the assertion of national priorities in sensitive areas. It’s based on a science of endless regression through layered shades of grey that can ultimately only be satisfied with arrival at a zero tolerance of risk.
In essence, the precautionary principle advocates that if there is no firm scientific basis for choosing between different models or options, then the safest or most conservative choice is preferred. As fundamental as this may sound, one eminent legal expert is said to have found eleven different meanings of the principle in German policy discussions. *
The precautionary principle promises to be an important discussion point in regulatory scholarship for years to come. Whether some consensus on just what it can be taken to mean will be a fruit of such discussion remains to be seen.
E. Rehbinder, Das Vorsorge Prinzip im internationalen Vergleich (Baden-Baden: Nomos, 1991).
Vanerzwaag, David L., et al. "Canada and the Precautionary Principle/Approach in ocean and coast management: Wading and wandering in tricky currents," Ottawa Law Review, 34(1) April 2003, 117-158
The authors examine Canadian initiatives and efforts to implement the precautionary principle in ocean and coastal management. They find that Canada’s overall approach is characterized by timid steps toward implementation. While strongly embracing precaution in the area of ocean dumping, generally Canada has tended toward general and weak versions of the principle.
Ladeur, Karl-Heinz, "The introduction of the Precautionary Principle into EU law: A pyrrhic victory for environmental and public health law? Decision-making under conditions of complexity in multi-level political systems", Common Market Law Review,40 2003, 1455-1479
Majone, Giandomenico, "What price safety? The Precautionary Principle and its policy implications," Journal of Common Market Studies, 40(1) 2002, 89-109
The author argues against the European Commission’s promotion of the precautionary principle in Community policy and international law. While the principle has a legitimate though limited role to play in risk management, he argues its general use for risk regulation is likely to fail or to produce unanticipated and undesired consequences. He claims it lacks a sound logical foundation; it may distort regulatory priorities; it can be misused to justify protectionist measures; it undermines international regulatory co-operation; and it may have undesirable distributive consequences. Finally, as interpreted by the Commission, it favours a double standard for international and intra-Community relations.
Guy, Paul , "Throwing caution to the wind: The precautionary principle, NAFTA and environmental protection in Canada," Dalhousie Journal of Legal Studies, 13 2004, 187-209
The author considers the potential impact of the precautionary principle as it has spread through international and Canadian law, in the face of Canada’s NAFTA (North American Free Trade Agreement) commitments. He concludes that despite its spread in popularity, Canada’s NAFTA commitments undermine the potential impact of the precautionary principle.
Brim, Danelle , "The role of precaution and political accountability in the regulation of polybrominated diphenyl ethers," Vanderbilt Journal of Transnational Law, 38(3) May 2005, 791-824
The author claims that neither the European Union’s ban of polybrominated diphenyl ethers (PBDE), nor the U.S.’s lack of such restrictions, is inherently correct or misguided, because deciding acceptable risk is a policy decision. Consequently, the ‘right’ decision is the one that reflects the will of the people who will benefit or suffer from acting now versus waiting until later. The author argues, however, that the U.S. should align its policy with that of the international community by taking a more precautionary approach because PBDE used in the U.S. cause harm beyond its borders.
Feintuck, Mike, "Precautionary maybe, but what's the principle? The precautionary principle, the regulation of risk, and the public domain," Journal of Law and Society, 32(3) September 2005, 371-398
The “precautionary principle,” originating in the field of environmental protection, but now widely applied, is a major point for discussion in the regulation of risk. Though promising proactive and pre-emptive intervention to prevent potentially irreversible harm, its precise meaning remains somewhat unclear. Legal systems tend to view it as procedural rather than substantive, and debates abound regarding its “stronger” or “weaker” versions and, indeed, the very concept of “risk.” It is also necessary to address how the principle operates in varying administrative and constitutional contexts, but the key task is to clarify the principle’s fundamental value base. If its essentially collective orientation is highlighted, it may better ensure that democratic and non-pecuniary interests are given due prominence in regulatory contexts otherwise dominated by economic interest and technical imperatives, and it may then play an important role in reasserting the values of the public domain in the face of powerful private interests.
Risk-based regulation
Building upon, rather than displacing, the New Public Management and the tendency to the “hollowing out” or “decentring” of the state, the New Public Risk Management is overlaid upon these established tendencies, and in important ways extends them. This idea includes both the growth of internal risk management systems – in which private sector standards of risk management are imported into the public sector – and the development of risk-based approaches to regulation. This latter, the relevant strand for this toolkit, is also connected to the emergence of meta-regulation. Risk-based regulation has two distinct though often conflated meanings.
First, it refers to the regulation of risk to society: risks to health, safety, the environment, or financial well-being. The second refers to regulatory or institutional risk: risks to the agency itself that involves the development of decision-making frameworks and procedures to prioritize regulatory activities and the deployment of resources, principally inspection and enforcement activities, organized around an assessment of the risks that regulated firms pose to the regulator’s objectives. This approach has important implications for accountability, not so much in terms of the mechanisms of accountability but a “politics of accountability.” In risk-based regulation, regulators make choices about the utilization of resources and thereby open up serious moral questions about those choices – especially from those members of the public who suffer from the consequences of those choices when they prove to be misguided.
Black, Julia, "The emergence of risk-based regulation and the new public risk mangement in the United Kingdom", Public Law, Autumn 2005
Black, Julia, "Managing regulatory risks and defining the parameters of blame: A focus on the Australian prudential regulation authority," Law & Policy, 28(1) January 2006
Risk-based regulation is a new arrival in the lexicon of risk and regulation. Regulators in Australia, Canada, and the U.K. have begun developing systems and processes to address the probability and impact of compliance failure by regulated firms, and to adjust their relationship with firms accordingly. The author explores the motivations for, and key elements of, the risk-based frameworks of one of those regulators, the Australian Prudential Regulation Authority (APRA). She broadens out from this case study to argue first, that risk-based regulation goes hand in hand with the technique of “meta” regulation, the regulation of the firm’s own internal self regulation, and will both fuel and be fueled by any trend towards the latter. Second, she argues that risk-based frameworks are not risk-free: whilst they seek to manage risks they inevitably introduce their own. Third, risk-based regulatory frameworks have the potential both to expose and obscure key socio-political and socioeconomic choices as to the amount or types of regulatory failures that an agency will tolerate, and which in effect it is requiring society to tolerate. “Risk based frameworks” are attempts to define what are acceptable “failures” and what are not, and thus to define the parameters of blame.
Rothstein, Henry, "Escaping the regulatory net: Why regulatory reform can fail consumers," Law & Policy, 27(4) October 2005
The authors consider the impact of recent reforms to the U.K. food safety regime and consider whether those reforms have been able to deliver their promised benefits and if not, why not. Empirically, they examine the U.K. Food Standards Agency’s (FSA) reforms to the regime managing food allergen risks, and the extent to which those reforms have reflected the FSA’s guiding principle of “putting consumers first.” They find that the operationalization of that guiding principle was mitigated by a number of factors, including: interpretative flexibility in representing consumer interests; the institutional structure and character of the regime; the political and cultural environment in which the regime operated; and normative uncertainties about the allocation of right and responsibilities in managing risks. They conclude that risk regulation reforms are likely to fail in prioritizing consumer interests unless such factors are taken into account.
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