The Regulator's Dilemma: Caught between the Need for Flexibility and the Demands of Foreseeability. Reassessing the Lex Certa Principle

Abstract

In the risk society of the twenty-first century, regulators must balance risk, and the potential harm to human health and the environment, against the demand of citizens for new technologies and the benefits that they bring; and they must do so in a context of high levels of uncertainty and in which the pace of technological developments can quickly outstrip regulatory efforts. In this volatile regulatory environment, one of the key challenges that regulators face is that of regulatory connection i.e. of creating a connection with the object of regulatory intervention, whether a particular technology or product process, and maintaining that connection as the technology develops and spreads. The demand upon regulators to create and ensure regulatory connection has led to an increasing use of open or flexible regulation. What this means in practice is an increasing turn to the use of vaguely worded standards in regulatory instruments in place of specific rules laid down in legislation. At the same time, the desire for effective enforcement of these instruments has led to a trend towards the use of criminal sanctions in place of administrative or civil law remedies. What we suggest in this paper is that these two trends – towards standards and towards criminal sanctions – when combined raise serious concerns in relation to the principle of lex certa, or legal certainty. These concerns touch both upon the legitimacy of such regulatory efforts as well as the effectiveness of such regulation. This presents regulators with a dilemma: in order for regulation to maintain regulatory connection in the context described above, it must remain flexible. However, if regulatees are to know that they are bound and modify their behaviour accordingly, the fact that they are bound and the requirements placed upon them need to be foreseeable. Moreover, where regulatees face criminal sanctions for breach of these standards, the principle of legal certainty – so central to our idea of what law is and to our acceptance of being bound by it –, made precise in criminal law under the principle of nullem crimen, nulla poena sine praevia lege poenali, demands that individuals can readily foresee the consequences of their actions. This paper explores the challenge faced by the regulator in seeking to balance the need for flexibility with the demands of foreseeability in the context of enforcing risk regulation with criminal sanctions. We argue that the current balance is too heavily weighted in favour of flexibility and suggest the use of the notion of development risk liability, in combination with prospective overruling, as a means for seeking a better equilibrium between the goals of flexibility and the protection provided by foreseeability.