BSE and the Regulation of Risk
| DOI | http://doi.org/10.1111/1468-2230.00348 |
| Date | 01 September 2001 |
| Author | Gavin Little |
| Published date | 01 September 2001 |
REPORTS
BSE and the Regulation of Risk
Gavin Little*
The pressure on government in connection with the regulation of risk has grown in
significance in recent years. In the United Kingdom (UK), it has also become
highly controversial following the establishment in 1996 of the transmission,
through the consumption of contaminated beef, of Bovine Spongiform
Encephalopathy (BSE) to humans as variant Creutzfeld-Jakob Disease (vCJD), a
fatal and incurable brain infection. Governments, regulatory agencies and courts
have, of course, been evaluating the risks posed by scientific, industrial and
technological advances in one form or another since before the industrial
revolution.1Increasingly, however, the current commercially driven developments
in areas such as the agricultural and food industries involve issues which are at the
frontiers of scientific understanding. Both the developments themselves and the
regulatory responses to them can be viewed as symptomatic of what Beck has
termed an emerging ‘risk society’, in which ‘[e]veryone is caught up in defensive
battles of various types, anticipating the hostile substances in one’s manner of
living and eating.’2Whether the recent intensification of concern about risk is
because modern society generates a greater number of more serious risks,3or, as
Giddens contends, because those living in late industrial societies are culturally
more attuned to perceiving risks than their predecessors,4it is at least clear that the
debate surrounding the regulation of risks posed by new technologies is extremely
complex.
In the particular context of UK food safety controls, there is now widespread
public concern that the pursuit of profit by industry is creating serious risks, and
that government regulators have given insufficient weight to consumer protection,
public health and the environment. At a more conceptual level, the quality of
government decision taking on the basis of scientific risk assessment has also
emerged as a major cause for concern. Due in large measure to the failure of
regulators to protect public health from the risks posed by BSE, there have been
considerable developments in key areas of UK food safety regulation since 1996.
The Food Standards Agency (FSA) was established under the Food Standards Act
1999 in an effort to rebuild confidence in food safety controls,5and more recently,
the BSE Inquiry, which was chaired by Lord Phillips, produced its report on 26
ßThe Modern Law Review Limited 2001 (MLR 64:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.730
* Senior Lecturer in Law, University of Stirling.
I am grateful to my colleague Doug Vick for his helpful comments. Any errors are, of course, mine.
1 See generally A. Ogus, ‘Regulatory Law: Some Lessons from the Past’ (1992) 12 Legal Studies 1.
2 Asquoted in D. Lupton, Risk (London: Routledge, 1999) 59. For a discussion of key themes in Beck’s
writing see ibid 59–72.
3ibid.
4ibid 81. Giddens’s perspectives on risk are discussed at 72–80.
5 The FSA assumed its responsibilities on 3 April 2000. As discussed below, its primary function is to
protect public health in relation to food, and to regulate the food production and supply chain in the
interests of consumers: see Food Standards Act 1999 s1(2).
October 2000. The inquiry and production of the report were enormous
undertakings, and took over two years to complete.6More than 560 witnesses
submitted written evidence and over 320 gave oral evidence,7while the report
itself runs to sixteen volumes. The object of the inquiry was to evaluate why BSE
and vCJD emerged, and the adequacy of the Government’s response up to 20
March 1996, which was the date on which it was announced by Ministers that there
was a likely connection between BSE and vCJD.
The findings of the inquiry, whilst always balanced, constitute a strongly critical
analysis of the approach taken by the UK Government to regulating food safety
risks. It concluded that whilst most individuals responsible for responding to BSE
were blameless,8there were shortcomings in the way that the government machine
operated. Accordingly, as is discussed in more detail below, whilst the Government
was felt to be acting in good faith in its attempts to deal with the hazards posed by
BSE, its efforts were compromised by inter alia a basic lack of belief amongst
decision takers that the disease could pose a threat to humans, an insufficiently
critical approach to flawed advice from scientific advisers, a lack of rigour in the
implementation of policy, bureaucratic delay, and a pre-occupation with
preventing what was felt to be an alarmist over-reaction which could damage a
vital industry.9
The significance of the BSE Inquiry Report is therefore very much more than
merely historical and, given the relatively short length of this paper, it would be
foolhardy to attempt a detailed, point-by-point analysis of its full findings and
conclusions. Accordingly, it is proposed to pursue a rather more limited objective
by taking an inter-disciplinary approach, which focuses on the evaluation of the
central themes to emerge from the inquiry in relation to the regulation of risk. First,
a number of theoretical perspectives on risk which are of particular relevance to the
regulation of complex hazards such as BSE are considered. Secondly, the key
events in the emergence of BSE as a food safety risk are summarised in order to
provide a context for subsequent discussion. Thirdly, the implications of BSE for
the regulation of risk are analysed. Particular attention is given to the effect that
defects in the organisational design of the regulatory framework had on risk
assessment, and the extent to which ineffective rule making contributed to
regulatory failure. The main points are then summarised in a short conclusion.
Whilst acknowledging the conceptual problems inherent in controlling risk, it is
argued that complex and potentially serious problems such as BSE, which involve
balancing inconclusive scientific evidence with strong political and commercial
interests, place particular emphasis on ensuring the effective design of regulatory
frameworks. BSE also demonstrates that the conventional reliance on wide
ministerial discretion in UK decision-taking processes has the potential to
contribute to regulatory failure. There is accordingly strong justification for
arguing that, when devising organisational objectives and general principles to
direct the assessment of complex risks such as BSE, primary legislation may
provide the most appropriate form of rule.
6 The BSE Inquiry was announced by Dr Jack Cunningham, the former Minister of Agriculture,
Fisheries and Food, and Frank Dobson, former Secretary of State for Health, on 22 December 1997.
The official start date for the inquiry was 12 January 1998. The BSE Inquiry Report can be accessed at
7 The evidence presented to the BSE Inquiry can be accessed at .
8 See BSE Inquiry, n 6 above, vol 1 para 1259: ‘we suggest that any who have come to our Report
hoping to find villains or scapegoats, should go away disappointed.’
9 See generally ibid ch 13.
September 2001] BSE and the Regulation of Risk
ßThe Modern Law Review Limited 2001 731
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