I. Risk regulation: my personal occupational health and safety accident

How did I get into the field of risk regulation? Well, one could describe it as an occupational health and safety accident. When I started my PhD at the European University Institute mid 1990s, risk regulation was hardly on the horizon. Journals like EJRR and Regulation & Governance did not exist, and my initial PhD proposal was inspired by constitutional, international and EU law, focusing on transborder regional cooperation. However, after a year reading around, and clearing my head driving a scooter in the Florentine hills (without a helmet), my thesis topic had changed from territorially defined to functionally defined actors, and was increasingly inspired by political science, and the growing literature on governance in particular. Still, I was in search of a policy area. Being inclined towards market-correcting policies, my initial preference was for either environmental or social policy. At EU level both are decisively regulatory in nature, but social policy also includes tools and actors resulting from a legacy in redistributive policies. So, it was after a long process of changing focus, background literature, and selection of policy area that I finally ended up with… occupational health and safety regulation (OH&S).

As a subsector of social policy, OH&S seems to have it all. At EU level, it operates through all typical regulatory instruments such as comitology and agencies, but it equally has unique elements related to its embeddedness in industrial relations, both in terms of regulatory tools and enforcement mechanisms. In fact (with the exception, maybe, of regulating infectious diseases) OH&S is the area in which risk regulation first really took off. Avoiding accidents and dangerous machinery and substances in the workplace was the start for both the welfare and regulatory state. Yet, despite that legacy, OH&S does not have an extensive research community like other risk regulation areas, such as environmental or food safety regulation. This relative insulation of OH&S meant my research was not particularly led by the key research questions and literatures with which one would inevitably engage when studying risk regulation areas that have a broader research community. Rather, I studied OH&S with a perspective framed more by EU law and governance studies. At the same time, EU lawyers discouraged me from engaging in the study of OH&S as they believed my topic could be analysed independently from any particular policy area and assumingly therefore reach a wider audience. But I had fallen in love with the nerdy dynamics of OH&S and was happy to take the risk. If I had learned anything from scooter driving, it was that I was apparently a bit less risk averse than I had always thought. Anyway, although the choice of OH&S placed me somewhere in between disciplines, it was a much more calculated risk than driving down a Florentine hill without a helmet.

The way in which I got to the field of risk regulation is maybe “typical” in the sense that there are not many “typical ways” to get to risk regulation. Some fields of risk regulation, such as environmental policy or law, have their own journals and research community, and new researchers will definitely familiarise themselves with the associated framework, research questions and methodology. But risk regulation as a discipline is broader and at the same time less defined. This makes risk regulation particularly open to diverse methodologies, research questions and interdisciplinarity. At the same time, it makes it more vulnerable in surviving as a research community or developing into a discipline. The launch of the EJRR and the excellent editorship of Alberto Alemanno during the first seven years of the journal have been an incredible catalyst for the formation of that research community. This special issue on the occasion of EJRR’s move to CUP is an excellent opportunity to reflect on the strengths and challenges of risk regulation both as a societal activity and as a research community. Reflection about the future of risk regulation requires some prior consideration of what we mean by risk regulation, which I will set out in the following section, before addressing what I consider are some inherent risks of risk regulation as a societal activity and research discipline. The last and main section of this contribution argues that risk regulation is at risk from the rise of populism and addresses the challenges ahead.

II. A definition, at my own risk

Both “risk”Footnote ¹ and “regulation”Footnote ² can be defined in many different ways, and this is not the space in which to elaborate extensively on this debate. I will limit myself here to some brief considerations about the relationship between risk and regulation in order to clarify my personal preference in defining risk regulation.Footnote ³ The qualification “risk” in “risk regulation” suggests we are dealing with a sub-area of regulation. From that perspective, the broader one defines risk, the more difficult it becomes to distinguish risk regulation from regulation. The regulation of health, safety and the environment are most commonly accepted as the core of risk regulation. However, since the 2008 financial crisis, there is also an increasing literature that frames financial regulation in terms of risk. Other risks require increasing attention, such as those related to the digital society, or risks of terrorism. Personally, I prefer a conceptualisation of risk regulation that is close to social regulation in the broad sense, i.e. regulatory intervention on policy objectives the market cannot deliver appropriately, as opposed to economic regulation that aims at ensuring a proper functioning of the market. I also prefer a definition in which public intervention is central. This does not exclude the involvement of private actors, but it requires public law intervention as opposed to private law contractual solutions. At the same time, I prefer a broad definition of regulation, which includes both legislative and delegated and implementing regulation, and looks at both the development of the rules and the tools to enforce and evaluate them. From this perspective, I prefer a concept of regulation that is broader than what some consider the core focus of regulation studies, namely delegated and implementing rule-making.Footnote ⁴ Risk regulation may go beyond regulation studies in another way. Regulation studies is more established as a discipline with set research questions and theories. As a younger discipline, risk regulation is wider in its multi-disciplinary scope, and has the potential to reach further in the wider disciplines of sociology and political science. So far, the concept of risk has been driving sociological reflections on risk regulation, but I believe there are other sociological and political science reflections to be made on the reality of “risk regulation” without risk always having to be the key frame of analysis.

III. The risks of risk regulation

There are some inherent risks to risk regulation, both as a societal activity and as a research community. I elaborate here on three: namely the risk to consider government’s role as exhausted by risk regulation; a too narrow definition of risk regulation in an attempt to craft itself a space as a discipline; and a risk of capture by political interests that results from such a narrow definition.

One of the key risks is that “risk” becomes the predominant frame and objective of government intervention, as if by addressing risks the state has exhausted its function. Put differently, the state is increasingly a regulatory state, which abstains from other ways of public intervention. From that perspective, an ever broader definition of risk might turn out to be the problem rather than the solution. The increased attention to risks in the financial and economic sectors post-financial crisis, for instance, might suggest regulatory intervention is becoming more comprehensive and the regulatory state is ever more encompassing. Yet, the risk discourse has not engaged in a similar way with other societal problems that could be framed in terms of risk, such as the risks of inequality, poverty and unemployment. Hence, if one believes the task of government is exhausted by regulating risk, some societal problems will be ignored as they are (deliberately) not framed in these terms. Moreover, framing societal problems in terms of risk is only one potential way of framing them, which comes with its own problem definition, methodology and proposed solutions. However, the same reality can be framed from a very different perspective, with very different outcomes. Issues of redistribution, inequality, race, gender and class are not properly addressed if only looked at from a risk perspective. For instance, state intervention primarily based on the calculation of future risks is very different from state intervention that takes rights protection as its main starting point. Both risk regulation as a societal activity and as a research community should therefore take into account that risk regulation cannot exhaust the role of government, and that one should link problem framing in terms of risk with other types of problem framing such as inequality and rights protection.

As an academic discipline too, risk regulation should make extra efforts to engage with other ways of problem framing than risk. In an attempt to define itself as a research community or even discipline, risk regulation needs to interact with the broader disciplines of sociology, political science, public administration, and law. Risk regulation as a discipline should not end up simply providing the specialist knowledge on the minutiae of risk analysis and the tools of the risk regulatory sectors, but should also address the broader political and sociological questions involved. Sociology and political science lack the insight of the technical areas and awareness of the institutional and regulatory regimes to address properly the broader sociological and political issues at stake. But risk regulation can only do this by engaging with these broader disciplines and questions and should be vigilant in not limiting itself to an assessment of regulatory tools and improving their effectiveness. By doing this, risk regulation also avoids being captured as a discipline by political agendas. As risk regulation can easily provide tools to policy-makers and is strongly linked with a practitioner community it is more prone to be at risk of political capture than other disciplines such as sociology or political science. The challenge here for risk regulation is similar to that of regulation studies. An analysis of 119 regulation articles from the period 2009 to 2015 concluded that most regulatory studies are concerned with the empirical assessment of regulatory tools, institutions and doctrines, with only about 10% dealing with explaining the adoption and development of such institutions and instruments, and less than 3% addressing normative questions.Footnote ⁵ One would need further investigation of whether risk regulation shows a very similar distribution to regulation studies regarding research concerning assessment of tools, explaining background, and addressing normative questions. If that is the case, both regulation and risk regulation studies will have to reflect more profoundly on the broader sociological and political questions affecting their research field, in particular, as I will argue below, at a time when the political institutions and governance mechanisms on which regulation is assumingly based are steadily losing their legitimacy. As an even younger research community than regulation studies, risk regulation may have an edge here. It is less set by established theories than regulation studies, and also has a broader basis in sociology rather than economics.

IV. Risk regulation at risk. The populist challenge

The field of risk regulation is often reluctant to engage with the hard and dirty side of politics. Studying tools of risk regulation is often set aside from party politics, political bargaining, contestation and the irrational drivers of politics. When the irrational enters into the perspective of risk regulation studies it is mainly to point to situations where the wider public fails to grasp science and, driven by irrational fear, pushes regulators to adopt “overprotective” regulatory measures, as has been argued in the case of some food safety areas like GMO. On other occasions, private interests may try to undermine scientific arguments and influence public debate with non-fact-based and false information in attempts to avoid regulatory intervention, such as in the debate on climate change. However, on both occasions, risk regulation as a discipline seems to assume that “the irrational” does not undermine the basic rules of the game. Highly politicised and interest-based debate may be at loggerheads with science-based arguments on certain policy issues, but the main political institutions are not seen as under threat. It is assumed that the rule of law is respected, and although policy actors operate in pursuit of certain interests, they are assumed to do so in a rational manner.

However, today we cannot take this for granted. Risk regulation has mainly been conceptualised within the context of Western liberal democracy, but today the foundations of Western liberal democracy themselves are put to the test. We have witnessed in 2016 a wave of populism and populist nationalism hitting both Europe and the US and putting at risk the foundations of liberal democracy. The trend was already set earlier in Central and Eastern Europe (CEE), where Hungary and Poland have proudly defined themselves as “illiberal democracies”,Footnote ⁶ openly admiring authoritarian regimes such as Putin’s Russia and Erdogan’s Turkey. Hungary and Poland are the frontrunners, followed by other countries in CEE, such as Slovakia and Croatia, in a process of democratic regression that has brought an end to the post-1989 period that saw the EU as the leverage for liberal democracy and free market out of communism. As Jacques Rupnik puts it:

Moreover, today these illiberal democracies even proudly see themselves as the avant-garde of what is to come in the traditional Western democracies. If illiberal regimes have already settled in CEE, similar populist and populist-nationalist movements are increasingly gaining ground in the rest of Europe. Extreme right-wing parties are on the rise nearly everywhere on the continent. Austria nearly elected an extreme right president. Meanwhile Europe is looking with worry at France, where the extreme right presidential candidate is expected at least to reach the second round of the elections. In the UK, the Brexit referendum is taking the country out of the EU, following a largely populist campaign, increasingly driven by anti-migration and nationalist rhetoric. The British press was keen to interpret the success of the Italian populist Five Star Movement as the next nail in the coffin of the EU, although its success in tackling the Renzi government needs some nuanced reading and cannot simply be seen in anti-EU and nationalist terms. Populist movements come in different shapes, and cannot always be clearly pictured on a traditional left-right political spectrum. While right-wing populism is conquering Northern and Central Europe, left-wing populism has surged in the South of Europe. In Greece and Spain, movements and parties on the left, such as Syriza and Podemos, have embraced Ernesto Laclau’sFootnote ⁸ and Chantal Mouffe’sFootnote ⁹ argument that populism is a desirable feature of politics in ensuring a radical turn to the left and changing the unfairness of the established political order. While Europe has seen a strong surge of populist movements, “the biggest political earthquake of our times”Footnote ¹⁰ has hit on the other side of the Atlantic with the election of Donald Trump; a victory which Trump himself described as a “Brexit, plus plus plus”, a “vote against the establishment” based on a campaign that in terms of divisive populist rhetoric can indeed only be described as a class higher than Brexit, and in terms of consequences will not only put to the test the resilience of US democracy but will reverberate in many aspects of the global political and economic order.

It is in this context now we have to reflect on the future of risk regulation. The foundations of liberal democracy and the political and economic global order that one has assumed (too complacently) as underpinning risk regulation, can no longer be taken for granted. It is, therefore, worth having a closer look at the typical features of populism and how they may undermine the established order in which risk regulation has mainly been developed and which risk regulation studies have taken for granted. One obviously has to be careful not to paint all populist movements with the same brush, and one should be particularly cautious in suggesting comparability between populists on the right and left. However, for sake of simplicity I will set out some general features characterising most populist regimes, and will place some of the features in context as far as is needed for our analysis of risk regulation.