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Law, science and interests in European policy-making

Final Report Summary - LASI (Law, science and interests in European policy-making)

‘Law, science and interests in European policy-making’ (LASI) is funded by the European Research Council by way of a Consolidator Grant. The Principal Investigator is Stijn Smismans, Professor of European Law at the School of Law and Politics and Director of the Centre for European Law and Governance at Cardiff University. The project team further included two senior researchers (Prof. Elen Stokes (Prof. in law) and Dr. Emanuela Bozzini (Lecturer in sociology)), and four Research Associates (Dr. Rachel Minto (political scientist), Dr. Carlo Petrucci (competition lawyer), Dr. Eleni Kaprou (lawyer), and Dr. Lorenzo Marvulli (sociologist)); as well as two PhD students (Stephanie Theophanidou and Ella Van Rooy).
The project had two main objectives: 1) It studies how European law shapes the use of different types of expertise in European policy-making and assesses whether and to what extent objectives such as ensuring scientific expertise, sound evidence and interest representation overlap or are in tension with each other. 2) It studies how law, which itself constitutes a type of expertise, can regulate and interact with other types of expertise in the policy-making process, such as economic and scientific expertise.

The first part of the project has focused on the horizontal (i.e. cross-sectoral) instruments through which expertise and participation is regulated in EU policy-making. These include general guidelines on expertise and on consultation, use of online consultations, expert groups, impact assessment and evaluations. In this context, our analysis has also included two major developments that have influenced the regulation of expertise and participation in EU governance since the start of the project, namely the Commission’s new Better Regulation package (presented May 2015) and its increased attention for issues of policy evaluation. Text analysis, interviews and the production of new databases (on impact assessments, online consultation, ex post evaluation and mainstreaming) have led to the publication of several
key findings. Hence we have shown how the EU’s approach to the regulation of interest group participation has changed over time putting different focus on issues of transparency and representation; how both academic and policy discourses about participation and expertise have been framed over time (in terms of participation vs. representation, participation vs. expertise, and reflexive governance); and how legal theory and constitutionalism should address the regulation of expertise and participation. We have equally investigated and published on the relationships between the different instruments for expertise and participation; such as on the relationship between participation and impact assessment, on the relationship between ex ante and ex post evaluation, on the Commission’s diverse use of online consultations, advisory committees and impact assessments, and on the use of impact assessments as a coordinating and mainstreaming tool. Finally, we have placed the Commission’s approach to evidence tools in broader developments, such as the politicization of ex post evaluation, and the development of tools such as fitness checks in a context of efforts to reduce regulatory burden. We have equally shown that, unlike what is sometimes explicitly and often implicitly claimed in the literature, the EU is not a driver of risk-based governance; while it provides guidance on aspects of risk regulation, it does not itself apply risk as a generic mechanism that influences its governance across sectors and policy-stages.

Besides the horizontal measures regulating expertise and participation, the project has focused on four sectoral case studies, which are based on very different modes of governance and approaches to expertise and participation. We have analysed two areas of risk regulation, namely, nano-technology regulation and pesticides regulation, and two other policy areas not normally identified as risk regulation, namely employment policy and competition policy. By including the latter two sectors, the project has extended analysis about expertise and evidence in policy-making beyond areas of risk regulation, in which such analysis is more common. The field of nano-technology allowed us investigating questions of expertise and evidence in a recent policy area where evidence is particularly uncertain and the regulatory framework patchy. We have found that the current regulatory framework is thin in terms of its evidence basis, particularly as the use of impact assessments has (strategically) been avoided by the Commission. The strategic framing of nano-technology as incremental rather than radical innovation has been used to avoid that this new technology would be curbed by regulation. The analysis of the pesticides area instead offers insights in a risk regulatory area with a longer tradition. However, it showed particular challenges such as the shift from risk to hazard based regulation and the tension between peer-reviewed and non-peer-reviewed evidence.
In the field of employment policy, the approach to interest group participation and evidence gathering is all together very different than in areas of risk regulation, with less focus on a strict divide between interest representation and ‘neutral expertise’. Particular attention has been paid to the open method of coordination as an alternative policy mode. The analysis has focused on the use of indicators and benchmarks, investigating how such indicators play four different roles: policy learning; analysis; communication; and protecting of jurisdiction.
Competition policy provided a fourth case study, with again very different modes of governance than in the other sectors. The analysis here has focused on tools such as impact assessments and consultation, illustrating how they can play a role at different stages of policy-making, and not only at the start of new regulatory intervention.

The final part of the project has studied the role of legal expertise in the policy-making process, and the interaction between legal and other types of expertise. Analysis of the role of the legal services in EU policy-making allowed identifying the ‘legislative drafting triangle’, namely the collaboration between policy officials, legal advisors, and legal drafters. Equally, our analysis showed the increasing role of non-lawyers in providing benchmarks and controlling the quality of regulation. The empirical findings also contributed to reconceptualising the theoretical framework of ‘policy-capacity’, arguing for the inclusion of ‘legal capacity’ as a separate (fourth) part of policy capacity.