Abstract
ABSTRACTBoth at the European and at the Member State level, evidence-based law making is on the rise. So far, the attention has mostly gone to methods of ex ante evaluation used by the legislature. In this article, we argue that more attention should be paid to the role of courts as regulatory watchdogs. The CJEU seems to move in this direction by increasingly conducting a procedural (proportionality) review of legislation. However, the CJEU does not yet scrutinise the underlying data or the scientific evidence on which consultations, impact assessments and other forms of ex ante evaluation rest. This means that when these evaluations are based on poor quality data, this will also affect the CJEU’s judgement. For Dutch courts, the situation is different. They are so far unwilling to include ex ante evaluations or empirical data in a proportionality review of legislation, although the Advisory Division of the Council of State emphasises the principles of subsidiarity and proportionality in its policy-analytical review of draft legislation. This raises the question: why do courts avoid assessing the reliability of (scientific) evidence used by legislators and regulators? Here they might learn something from the US, where the Supreme Court developed its Daubert doctrine in order to guide courts in filtering out ‘junk science’ from the law-making process.
Highlights
Both in the legislative policy of the EU and its member states, evidence-based law- and policy-making are on the rise
Rob van Gestela and Jurgen de Poorterb aTheory and methods of regulation, Tilburg University, Tilburg, Netherlands; bAdministrative law, Tilburg University, Tilburg, Netherlands. Both at the European and at the Member State level, evidence-based law making is on the rise
The attention has mostly gone to methods of ex ante evaluation used by the legislature
Summary
Both in the legislative policy of the EU and its member states, evidence-based law- and policy-making are on the rise. Antokolskaia describes the move towards evidence-based legislation as: ‘the legislator in his choices for legislative interventions takes a rational and focused approach and does not let himself be guided by just political and ideological reasoning, and by relevant results of scientific inquiry assessing the (expected) effectiveness of those interventions.’. Sceptics have argued that one should not overestimate the advantages of an evidence-based approach because policy makers and politicians are not always willing to take scientific insights into account. Putting too much emphasis on the need to underpin legislative drafts with empirical data and scientific evidence could even produce counter-productive effects and turn evidencebased policy-making into policy-based evidence-making.. How relevant and reliable are existing procedures that should make our laws and regulations more evidence-based?
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