The state can’t fail!
Accounting for the limited diffusion of
risk-based approaches in France
Olivier Borraz
CNRS research professor
The problem
• Limited diffusion of risk-based instruments in
French political and administrative institutions.
• In contrast with:
• Anglo-Saxon countries where risk-based approaches are
applied across policy domains;
• international norms of “good governance” and “better
regulation” that promote risk-based regulation as a rational
and objective method of policymaking.
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Hypothesis
• The adoption of new ideas in policymaking implies some
form of compliance with entrenched ideas of what is a
legitimate or just decision.
• Hypothesis: A set of institutional, legal, ideological and
political features of the French state work against the
adoption of risk-based instruments by blocking them, by
ignoring them or by imposing adjustments that limit their
impact:
1. The promise of (total) protection.
2. The priority given to maintaining “public order”.
3. The embodiment of the “general interest” by top civil
servants.
4. The Republican principle of “equal treatment” by the
law.
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The role of the state … and its limits.
• All 4 features embody strong conceptions of the role of the state.
• In particular the notion that the state is distinct from society and has:
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the authority and legitimacy to impose decisions in the general interest of the nation;
the obligation to protect society from any danger;
the mission to uphold the principle of equality.
• Is there a limit to the role of the state?
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Judges decide when the equilibrium between the general interest and individual
liberties tilts too far in the direction of the former (rule of proportionality).
But their decision ultimately rests on an appraisal that is inherently value-based.
• HowSAFE is premised on the idea that the adoption of risk-based
instruments makes (or seeks to make) these limits both visible and
legitimate, thus making accountability for failure more acceptable.
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In Anglo-Saxon countries, risk-based approaches comply with the idea that the state
should have a limited role and that the general will is nothing more than the sum of
individual liberties.
In France, to suggest that there are limits to the role of the state and, more importantly,
that the state can in some circumstances fail, is simply unacceptable.
11/12/12
The state can't fail!
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1. The promise to protect
• Safety is a regalian function of the state.
• A renewed interest in this function in 1980s.
• During this period, a series of crises and scandals were
blamed on the state for failing to prevent negative events
from occurring, or mismanaging their occurrence:
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Tainted blood scandal (1991-1999)
Chernobyl cloud in 1986
BSE (1996 / 2000)
GM controversy (1996-)
Asbestos (1994-)
Heat wave (2003)
Mediator (2010-)
Etc.
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Major health crises and scandals
• Other countries underwent similar crises, but in
France this led to a renewed emphasis on the role of
the state (and the state alone) in preventing such
events.
 State is systemically blamed for failing to act appropriately.
 This leads to reforms that reinforce the capacity of the state to
protect its population against a wide range of hazards.
 Safety is presented as non-negotiable.
 These reforms inevitably lead to failures.
 Further reforms are necessary.
• The objective of these reforms is to maintain the
centrality of the state as an agent of regulation and
control.
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Examples
• Why was the 2003 heatwave a political crisis?
• Comparable numbers of people died throughout Europe.
• The 15 000 deaths were attributed to a failure by the state
to warn the population, due to a lack of information.
• Other causes of deaths were overlooked.
 The state had once again failed, even as it had just
finished reforming its health safety system.
• H5N1 preparedness plans are organized around
the role of the state, with very little room for the
intervention of other civil society actors.
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Risk vs. the promise to protect
• Risk-based instruments present a challenge: they
suggest the possibility of failure.
• Risk-based instruments were introduced in domains
destabilized by crises and scandals.
• to comply with international standards;
• to demonstrate a transformation in policymaking procedures
towards more objectivity, robustness and transparency.
• But they were limited to risk assessment and did not
extend to risk management (rule setting,
enforcement and control).
• They were not applied to other policy domains, in
which the possibility of failure is still denied.
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2. Public order
• Public order (p.o.) has no legal or constitutional
backing, yet constitutes a priority for civil servants.
• For administrative and constitutional courts, p.o.
refers to:
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“good order”,
safety (vs. disorders),
security (vs. accidents),
public hygiene (vs. health hazards)
public tranquillity (vs. nuisances).
• Laws and their implementation must preserve p.o.
• Civil servants bestowed with powers of administrative
police have the responsibility to avoid disturbances to
p.o. when implementing public regulations.
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Example
• Food safety inspections must, according to the EU
hygiene package, rely on a risk-based method in order to
determine which firms or farms should be inspected (and
how many times). Their results should be made public.
• This presents two threats.
• Local inspectorates would need to follow an objective method limiting
their capacity to decide who to control.
• The results could reveal cases of non-compliance with regulation.
• Risk-based instruments were thus adopted and then
immediately adjusted:
• to offer local state services the possibility to introduce “fudge factors”
in the official formula to account for local specificities in determining
who (and who not) to control and with what frequency;
• their results remained confined within their administration, and
neither made public nor transferred to risk-assessment agencies.
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Risk vs. public order
• Maintaining p.o. rests on discretion and striking a
balance between competing interests in the
implementation and control of regulation: this is
not immediately compatible with a more
formalized approach.
• Introducing risk-based instruments would:
• make the compromises visible, thus weakening the position
of civil servants and causing potential disturbances for p.o.;
• or trigger reactions from private actors protesting against
measures that are not adapted to their situation, one again
threatening to disturb p.o.
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3. General interest
• General interest (g.i.) suggests the existence of a general will, distinct
and separate from the sum of particular interests.
• The legislative process guarantees that laws are voted by a
sovereign assembly acting on behalf of the Nation.
• Administrative and constitutional courts refer to g.i. when judging
decisions impinging on individual rights.
• All civil servants are expected to act on behalf of g.i.
• But in a country in which power lies in the hands of the executive
branch, top civil servants are expected to embody and defend the g.i.
• S. Breyer suggested that due to their training and ethical values, this
technocratic elite provided all the guarantees for decisions based on
sound evidence and a sense of g.i., shielded from political
intervention and particular interests.
• Hence they should be expected to adopt risk-based instruments that
provide robust evidence to make the best decisions.
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Example
• In the discussions leading to the 1998 law on health safety and
the creation of agencies, two sides were opposed:
• proponents of an “American-style” regulation regime pushed for
independent agencies in charge of risk assessment (RA) and risk
management (RM);
• ministries of agriculture and finance invoked the NRC “red book” to justify
delegating RA to agencies, while RM should remain in their hands.
• Risk-based instruments were introduced in the agencies to
provide robust and objective evidence, but did not extend to
decision-making, which requires balancing other elements and
considerations to arrive to a decision in the g.i.
• Ministries monitor the border between RA and RM and refuse
any formalization of RM within the decision-making process, as
this would infringe on their capacity to determine the g.i.
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Risk vs. general interest
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Risk-based instruments, like any method of quantification, entail a shift from individual
judgment (based on personal training, experience and ethics), to a procedural
approach (in which the validity of the evidence produced derives from compliance with
rules and protocols).
In the past, instruments of quantification were used to prepare decisions:
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CBA in the construction of roads, dams and bridges;
Health economics to rationalize health expenditures.
But in these cases, formal instruments were destined to reduce political interferences
in infrastructure decisions or the influence of the medical profession in health policies.
They were introduced by civil servants in a dominated position who saw in the
introduction of an “objective” method of quantification a way to gain a dominant
position in the decision-making process.
Hence one could expect risk-based instruments to be introduced in policy domains in
which civil servants are confronted with powerful actors or perceive threats or
challenges to their authority.
But in all most cases, they will oppose the introduction of instruments that could
weaken their capacity to determine the g.i.: by constraining their judgment; by
introducing openness and transparency, or by replacing informal expertise by
formalized procedures.
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4. Equal treatment
• The principle that all citizens must be treated equally
by the law is enshrined in the constitution.
• This principle is not absolute, exceptions are
possible, for instance in the name of the g.i.
• But it remains a key value of French civil servants
and is present throughout the policymaking process.
• Equal treatment implies that individuals or groups
should not be treated differently on account of their
ethnic origins, religion, gender, social status ...
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Examples
• In the 1980s during the Aids epidemic, health policies
consistently refused to single out specific groups at risk
and diffused only general messages of prevention.
• During the 2010 H1N1 pandemic, the minister of health
had to decide on a vaccination campaign:
• she could have limited vaccination to a fraction of the population,
sufficient to provide herd immunity;
• instead she opted for a general campaign, on the argument that this
was “an ethical and republican decision”: she had grounds neither to
determine which part of the population should be vaccinated, nor to
refuse to all those who asked for protection the benefit of the
vaccine.
• A later parliamentary report stated that this was the only possible
solution, since “the French people, deeply attached to the principle of
equality, could only agree with the decision” to offer everyone the
possibility of getting vaccinated.
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Risk vs. equal rights
• Risk-based instruments can contribute to the
identification of groups that are either “at risk” or “risk
factors” – thus requiring special measures.
• This is not possible in France, as it could lead to
unequal treatment or involve a risk of stigmatization.
• Often, it is not even feasible given the lack the data due to
restrictions on census and quantitative surveys.
• When unequal treatment does in fact exist, it is not
publicly acknowledged and remains hidden.
• The only “acceptable” exceptions are justified by age
or gender.
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5. Accounting for failure
• Given the limited adoption of risk-based
instruments, how are the inevitable limits of
governance dealt with in these circumstances?
• Strong reliance on secrecy and opacity.
• Holding individual state officials accountable for
failures that have become visible.
• Installing early warning systems.
• Investing in crisis management.
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Concluding remarks
• The adoption of risk-based instruments is a
marker of how states account for the limits of
their action (in terms of capacity).
• The French state has difficulties acknowledging the
possibility of failure, as this would hurt its legitimacy.
• It also provides an indication as to where they set
the limits (boundaries) of their action.
• The limits of the French state are not always clear and
there is no intention to make those limits clearer: this would
imply acknowledging that civil society actors have an
autonomous capacity to organize and regulate their
activities.
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