Risk Regulation and Administrative Constitutionalism


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Keywords: precautionary principle, administrative law, public administration, risk evaluation, deliberative-constitutive paradigm, rational-instrumental paradigm, judicial review

Elizabeth Fisher has a long and much respected history of scholarly research on the precautionary principle. In this book, she builds on her previous work and her knowledge of both administrative law and risk assessment to show the links between legal aspects of public administration and the technological issues surrounding risk evaluation. Thai there is a potential, and often actual, mismatch between the factual evidence needed to support legal processes and the ability of scientists to deliver the necessary information is a recognised problem that has been exacerbated by the oft-stated mantra that policy should be based on the best available science. The precautionary principle was, of course, first proposed as a tool to assist dec is ion-making where there was a paucity of scientific evidence but it does not, in itself, provide any clear answers to particular problems. Rather than concentrating on the limitations of science and how to deal with scientific uncertainty and ignorance, however, Fisher draws our attention to another dimension of the problem - the fact that legal disputes over risk evaluation are often disputes over what role law should play in relation to the powers of risk evaluators

The book consists of a long introductory section in which the author fleshes out her arguments followed by five case studies drawn from different legal cultures. Turning to these case studies first, there can be no doubt that Fisher has selected examples that are not only useful in illustrating her ideas but also key controversial issues in environmental law and policy. One bonus of this book is that it brings these together in a single volume for easy future reference. Her first case study is the role of the Southwood Working Party in the BSE crisis in the UK. The Working Party was an expert committee set up by the Government to provide advice on BSE. It is apparent from Fishers analysis that the committee and the Government had different understandings of its role. While the committee made it clear that its conclusions were based on limited data and, if wrong, could lead to serious consequences, the Government chose to accept them at face value as the authoritative statement on the crisis. Fishers explanation for this misunderstanding is that although the UK public administration had traditionally operated under a deliberative-constitutive (DC) paradigm in which expert advice was regarded as one input into a decision-making process, this changed during the course of the Working Party's deliberations so that, by the time it reported, there was a rational-instrumental (RI) paradigm of administrative constitutionalism under which the report was treated as the principal source of authority for action. Fisher describes the RI theory of administrative constitutionalism in the Introduction1 as construing public administration to be an instrument of the legislature whose task is to obey the pre-ordained democratic will as expressed in legislation. The DC model, in contrast, sees public administration as being designed to address factual and normative complexities of risk evaluation by granting administrations substantial and ongoing discretion in relation to problem-solving.2

Her second example is the development of doctrines in relation to judicial review of risk evaluation in the US in the 1970s. Again, she refers to the difficulties of reconciling the regimes for risk evaluation in the context of the opposing DC and RI paradigms. She focuses in particular on two issues. The first, which she calls the 'hard look review', refers to cases in which the judiciary characterised the scope of review as being to ensure that public administration took a hard look at the issues before them. The second concerns the judiciary's attempt to make sense of the apparent legislative mismatch between rule-making processes and the scope of review provisions in the Occupational Safety and Health Act 1970. Fisher concludes that the RI paradigm is now dominant in the US and she highlights some problems resulting from this, such as analytical opportunism whereby any flaw in methodology can be used as a basis for arguing that a decision was arbitrary and capricious.

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