1 Risk and the Limits of Governance: Exploring varied patterns of risk- based governance across Europe Henry Rothstein King’s College London HowSAFE: How.

1 Risk and the Limits of Governance: Exploring varied patterns of risk- based governance across Europe Henry Rothstein Kings College London HowSAFE: How States Account for Failure in Europe A collaborative project between Kings College London, Sciences-Po, Bielefeld University and Maastricht University funded through the Open Research Area programme for the social sciences jointly funded by the ESRC, DFG, ANR, and NWO. Website: tinyurl.com/HOWSAFE-PROJECT R Original Article: H. Rothstein, O. Borraz and M. Huber (2013) Risk and the limits of governance: Exploring varied patterns of risk-based governance across Europe. Regulation and Governance. DOI: /j x 2 Risk-Based Governance Risk has become central organising principle for governance.Risk has become central organising principle for governance. Premised on simple idea that governance cannot, and should not, aim to eliminate all adverse outcomes.Premised on simple idea that governance cannot, and should not, aim to eliminate all adverse outcomes. Instead, need to pay attention to probability x impact to focus efforts on reducing harm to socially optimal levels.Instead, need to pay attention to probability x impact to focus efforts on reducing harm to socially optimal levels. 3 Risk-Based Governance Organizing governance through risk promises to improve its quality, efficiency and rationality.Organizing governance through risk promises to improve its quality, efficiency and rationality. Information gathering Setting standards Behaviour change activities But how far do ideas of risk-based governance travel across countries?But how far do ideas of risk-based governance travel across countries? 4 Risk discourses have displaced traditional policy discourses of defence, safety and security. In principle, favours: Neo-liberal commitment to economically rationalized Better RegulationNeo-liberal commitment to economically rationalized Better Regulation Legitimates decision-making in face of new accountability and audit cultures;Legitimates decision-making in face of new accountability and audit cultures; Limits blame by defining boundary between acceptable & unacceptable adverse outcomes.Limits blame by defining boundary between acceptable & unacceptable adverse outcomes. UK risk is central to the business of good government Tony Blair (2002) 5 Occupational Health and Safety Tolerability of Risk, UK Health & Safety Executive ALARP As Low As Reasonably Practicable Risk cannot be justified except in extraordinary circumstances Tolerable only if risk reduction is grossly disproportionate to cost Risk broadly acceptable (From Rimington 1993) 6 Criminal Justice Legislative changes and policy initiatives have made risk assessment and risk management core tasks for National Offender Management Service, e.g: - Extended use of custody for 'dangerous' offenders and preventative sentencing on the grounds of risk. - Extended monitoring and surveillance of those offenders presenting a high risk of harm in the community and upon release from prison. 7 National Security 8 Germany Risk central to German political debate, from nuclear power to GMOs.Risk central to German political debate, from nuclear power to GMOs. Federal Institute of Risk Assessment (BfR) provides risk-based scientific advice on consumer issues, from BSE to toys and lipsticks. But risk-based approaches have not penetrated very far into policymaking and enforcement practice because 9 Danger vs. Risk States duty of protection from dangers to life, freedom & property (Schutzpflicht). Constitutional principal thats colonised policy domains from nuclear safety to rented accommodationStates duty of protection from dangers to life, freedom & property (Schutzpflicht). Constitutional principal thats colonised policy domains from nuclear safety to rented accommodation Binary concept: No danger = no state action.Binary concept: No danger = no state action. Juridified German public administration finds it difficult to use probability-x-impact frameworks to define boundary between unacceptable dangers and acceptable risks.Juridified German public administration finds it difficult to use probability-x-impact frameworks to define boundary between unacceptable dangers and acceptable risks. 10 Acceptable Risk? Danger Hard to define acceptable risk levels Residual risk 11 Some administrative courts defined acceptable probability of an accident as /yr, while the federal constitutional court attempted to define it in terms of being practically unimaginable and irrelevant.Some administrative courts defined acceptable probability of an accident as /yr, while the federal constitutional court attempted to define it in terms of being practically unimaginable and irrelevant. Federal constitutional court decides to abstain from decisions on scientific conflicts or disagreements.Federal constitutional court decides to abstain from decisions on scientific conflicts or disagreements. Conflicts over acceptable risk throughout 1970s-80s. Intractable legal conflicts 12 Risk vs Rights Probabilistic boundaries between unacceptable danger and acceptable residual risk are set...Probabilistic boundaries between unacceptable danger and acceptable residual risk are set... But States duty to protect all citizens from dangers hard to reconcile with risk-based interventions. Makes calculations blind to impact.But States duty to protect all citizens from dangers hard to reconcile with risk-based interventions. Makes calculations blind to impact. E.g. State (in principle) protects citizens against floods that occur > 1/100 years by building defences or forbidding development. But is irrespective of whether urban centres or rural areas. 13 Expertised / Corporatist Solutions Solutions sought through corporatist governance traditions and expert committees;Solutions sought through corporatist governance traditions and expert committees; Avoids legal conflicts and spreads responsibility for adverse outcomes.Avoids legal conflicts and spreads responsibility for adverse outcomes. 14 Acceptability of adverse outcomes UnacceptableAcceptable Transparency of, and accountability for, adverse outcomes Low Type-1) Reactive, fire-alarm, responses if, and when, adverse outcomes become manifest Type-2) Business as usual responses to adverse outcomes High Type-3) Responsibility/Blame-sharing strategies for routine disclosure of adverse outcomes Type-4) Ex-ante risk-based approaches for routine disclosure of adverse outcomes France UK Germany Country Variation 15 Acceptability of adverse outcomes UnacceptableAcceptable Transparency of, and accountability for, adverse outcomes Low Type-1) Reactive, fire-alarm, responses if, and when, adverse outcomes become manifest Type-2 ) Business as usual responses to adverse outcomes High Type-3) Blame-deflection strategies for routine disclosure of adverse outcomes Type-4) Ex-ante risk-based approaches for routine disclosure of adverse outcomes UK: Social Care UK: National Security Regime Variation 16 Acceptability of adverse outcomes UnacceptableAcceptable Transparency of, and accountability for, adverse outcomes Low Type-1) Reactive, fire-alarm, responses if, and when, adverse outcomes become manifest Type-2 ) Business as usual responses to adverse outcomes High Type-3) Blame-deflection strategies for routine disclosure of adverse outcomes Type-4) Ex-ante risk-based approaches for routine disclosure of adverse outcomes Food safety inspection Food Safety Act (standard-setting) Pre-BSE food safety policy Variation within Regimes by Function 17 Flooding Food safety Occupational Health & safety Health care Education Criminal Justice HowSAFE Comparative Framework 18 Paper forthcoming in Regulation & Governance. doi: /j x tinyurl.com/HOWSAFE-PROJECT For further information contact: