Bridging the Gap – Non‐state Actors and the Challenges of Regulating New Technology
| Author | Carolyn Abbot |
| Published date | 01 September 2012 |
| DOI | http://doi.org/10.1111/j.1467-6478.2012.00588.x |
| Date | 01 September 2012 |
JOURNAL OF LAW AND SOCIETY
VOLUME 39, NUMBER 3, SEPTEMBER 2012
ISSN: 0263-323X, pp. 329±58
Bridging the Gap ± Non-state Actors and the Challenges
of Regulating New Technology
Carolyn Abbot*
Designing a system of regulation that will deliver defined policy
objectives is not easy. This is particularly so when regulating new
technologies, where challenges relating to uncertainty and risk,
resource asymmetry, and regulatory disconnection are especially
significant. By adopting a pluralistic, decentred approach to
regulation that utilizes a range of soft-law regulatory techniques,
non-state actors can contribute in a variety of ways to these special
challenges. However, using non-state resources in this way (either
formally or informally) is not a panacea. Public trust and confidence in
the regulation of risk is crucial in ensuring the viability of the control
framework. Yet, it is difficult to maintain, not least because regulatory
pluralism often envisages state and industry cooperation. Nevertheless,
the involvement of non-state actors, including industry, is important if
the regulatory framework is not to hamper technological development
or expose the public to unacceptable risks.
I. INTRODUCTION
Advances in technology, from deep-water drilling in the Gulf of Mexico to
the genetic modification of food and the development of nanomaterials for
use in sun creams, have the potential to deliver great benefits. Yet they also
pose uncertain, potentially unknowable, and possibly serious risks to the
329
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* School of Law, University of Manchester, Williamson Building,
Manchester M13 9PL, England
carolyn.abbot@manchester.ac.uk
I am grateful for the feedback I received from participants at a Centre for Law and
Environment (UCL) and BRASS (Cardiff) seminar on `Regulating Risk in New
Technologies' (November 2010). I would also like to thank colleagues at Manchester for
their feedback. Last, but by no means least, a very special thanks to Professor Maria Lee
for all her advice and support.
environment and human health.
1
Views as to these potential risks remain
highly polarized and, of course, concerns over the development of new
technology may extend far beyond risk in this technical sense.
2
The
scientific communities' understanding of these risks also remains in its
infancy and evidence is often inconclusive.
3
The presence of such uncertainties presents an interesting dilemma for
government. On the one hand, the development of new technology is of
strategic importance in the drive towards a high-tech knowledge economy
and is crucial in remaining competitive in the global market. Governments
are therefore keen to facilitate technological progress. On the other hand, in
light of the uncertainty as to potential risks (and indeed benefits), govern-
ments must be confident in the way such developments are controlled.
Where technology (or its application) poses seemingly unacceptable risks,
then further advancement can and has been halted.
4
However, in many cases,
this is deemed neither desirable nor appropriate and regulatory schemes are
established with a view to controlling that development within acceptable
bounds.
With this in mind, an effective regulatory strategy that targets new
technology must respond to these concerns by promoting an understanding
of risk and uncertainty and by reacting quickly and appropriately where new
information comes to light. In addition to uncertainty and risk, regulating
technological development poses two other important challenges, the first of
which is resource asymmetry. Much of the information and expertise on new
technology is held by private enterprises rather than the state, meaning that a
state-centred regulatory approach can be ineffective in delivering desirable
outcomes. For this reason, `soft-law' mechanisms designed to facilitate the
sharing of information with government and other interested parties are
likely to form a crucial component of any regulatory strategy. Secondly, the
development (and application) of technology can be rapid. There is therefore
a real possibility that any regulatory system will become `disconnected' from
the technology itself, to the extent that regulatory controls may no longer be
appropriately applied to the new development in question. Existing controls
must therefore be able to respond quickly to such changes.
330
1 For example, in relation to GMOs, see, generally, M. Lee, EU Regulation of GMOs:
Law and Decision-Making for a New Technology (2008) 22±39 for discussion of the
potential risks and benefits of GM technology.
2 For a discussion of the non-technical risks of GMOs see id. and section II(1) below.
For further discussion, see Nuffield Council on Bioethics, Genetically Modified
Crops: The Ethical and Social Issues (1999).
3 Take nanotechnology as an example. Although something (albeit not much) is
known about the impact of nanomaterials on humans, even less is understood about
the possible environmental consequences. See Royal Commission on Environmental
Pollution (RCEP), Novel Materials in the Environment: The case of nanotechnology
(2008; Cm. 7468) ch. 3.
4 See, for example, the moratorium on the authorization of GMOs in the EU. See Lee,
op. cit., n. 1, pp. 3±6, 11.
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School
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