16 - Regulatory connection II: disconnection and sustainability

Summary

Introduction

Recommendation 16 of the House of Lords Science and Technology Committee’s report Nanotechnologies and Food reads as follows:

Given the pace at which novel technologies develop we recommend that, in addition to its on-going monitoring of the state of the science, the Food Standards Agency should formally review the suitability of legislation every three years to ensure that regulatory oversight and risk assessment keeps pace with the development of these technologies.

While this shows an admirable awareness of the challenge, we might wonder whether regular review and revision is the best that we can do to maintain connection. Is there no better way?

Ideally, we want regulation to bind to the technology and to evolve with it. In pursuit of this ideal, regulators (at any rate, regulators in first-generation environments) seem to face a choice between taking a traditional hard law approach or leaving it to self-regulation and, concomitantly, a softer form of law. Where the former approach is taken, the hard edges of the law can be softened in various ways – for example, by adopting a ‘technology neutral’ drafting style, by delegating regulatory powers to the relevant minister and by encouraging a culture of purposive interpretation in the courts. Conversely, where self-regulation and softer law is preferred, the regime can be hardened up by moving towards a form of co-regulatory strategy. However, no matter which approach is adopted, there is no guarantee that it will be effective and the details of the regulatory regime will always reflect a tension between the need for flexibility (if regulation is to move with the technology) and the demand for predictability and consistency (if regulatees are to know where they stand).