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Physical Safety. a mat ter of bal an ci n g re s p o nsibilities. Marjolein B.A. van Asselt, Peter de Goede, V.C. Karin Ammerlaan & Jelle van Aanholt

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T H E N E T H E R L A N D S S C I E N T I F I C C O U N C I L F O R G O V E R N M E N T P O L I C Y Physical Safety a mat ter of bal an ci n g re s p o nsibilities Marjolein B.A. van Asselt, Peter de Goede,
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T H E N E T H E R L A N D S S C I E N T I F I C C O U N C I L F O R G O V E R N M E N T P O L I C Y Physical Safety a mat ter of bal an ci n g re s p o nsibilities Marjolein B.A. van Asselt, Peter de Goede, V.C. Karin Ammerlaan & Jelle van Aanholt A M S T E R D A M U N I V E R S I T Y P R E S S Physical Safety The Netherlands Scientific Council for Government Policy (wrr) was established on a provisional basis in It was given a formal legal basis under the Act of Establishment of June, The present term of office runs up to 31 December According to the Act of Establishment, it is the Council s task to supply, in behalf of government policy, scientifically sound information on developments which may affect society in the long term, and to draw timely attention to likely anomalies and obstacles, to define major policy problems and to indicate policy alternatives. The Council draws up its own programme of work, after consultation with the Prime Minister, who also takes cognisance of the cabinet s view on the proposed programme. Lange Vijverberg 4-5 P.O. Box EA s-gravenhage Tel (0) Fax + 31 (0) Internet: Physical Safety A M a t t e r o f B a l a n c i n g R e s p o n s i b i l i t i e s Marjolein B.A. van Asselt, Peter de Goede, V.C. Karin Ammerlaan & Jelle van Aanholt Amsterdam University Press, Amsterdam 2012 Cover illustration: Alex Emanuel Koch Design and layout: Studio Daniëls bv, The Hague isbn e-isbn (pdf) e-isbn (epub) nur 740 wrr /Amsterdam University Press, The Hague/Amsterdam 2012 All rights reserved. Without limiting the rights under copyright reserved above, no part of this book may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the written permission of both the copyright owner and the author of the book. 5 contents Foreword 7 1 Introduction Responsibility for physical safety Request for reflection Key concepts: incidents, damage, risks and uncertainty Interactions Guide to this publication 15 2 Dealing with incidents Risk-regulation reflex? Perceived reality Lack of evidence Tilting the perspective towards good governance Conclusion 25 3 Risks and uncertainty Fundamental political appraisal Intertwine opportunities and threats Make allowance for the social and psychological properties of danger Utilise risk comparisons Accept uncertainty and the responsibility for uncertainty Organise the way uncertainty is dealt with Incorportation into policy The national risk assessment Amending environment and planning law: the simply better operation Conclusion 46 4 Damage arrangements: a different perspective Damage as the focal point Current practices Reasons for uncompensated damage Damage arrangements as a basis for a balanced allocation of responsibility Businesses taking responsibility for themselves and society The role of citizens The role of government Conclusion 69 6 physical safety 5 Conclusions Difficult questions Key concepts: incidents, damage, risks and uncertainty Beyond reflexes Is a general policy possible? Reference points for dealing with risks and uncertainty Damage arrangements: a different perspective on the allocation of responsibility Top three on the list of priority studies Final remarks 83 Bibliography 85 7 foreword The Netherlands Scientific Council for Government Policy (wrr) is an independent advisory body for the Dutch government. Its position is governed by the Act Establishing a Scientific Council on Government Policy of 30 June 1976 (Instellingswet wrr). The task of the wrr is to advise government on issues of importance for society. Unlike other advisory bodies in The Hague, the wrr is not tied to one policy sector. Rather, its reports go beyond individual sectors; they are concerned with the direction of government policy in the longer term. This report was prepared by an internal wrr project group consisting of Professor Marjolein van Asselt (Council member and project group chairperson), Professor André Knottnerus (Council chairperson) and Dr Peter de Goede (project coordinator). Dr Karin Ammerlaan made a major contribution to the section on damage arrangements. Interns Joris van Egmond and Jelle van Aanholt lent outstanding support to the project group. The project group discussed the topics covered in this report with the members of other advisory boards and with specialists in the fields of public administration, politics, science and scholarship, and business (insurance and law).the original report in Dutch provides a detailed list of the experts consulted. The wrr is grateful that they have been willing to share their knowledge and insights. Many of them also produced valuable comments on earlier drafts of the present document. 9 1 introduction 1.1 responsibilit y for physical safet y Physical safety is a basic requirement for personal development and lays the foundation for prosperity and wellbeing. Thanks to many decades of government intervention, the Netherlands has become a relatively safe country. As the outgoing Government made clear in the most recent Coalition Agreement (2010): Safety is a central task of government. In addition, government is obliged by the Dutch Constitution and international conventions 1 to guarantee a certain level of safety and risk coverage. It is hence neither surprising nor unreasonable for the public to hold government responsible for real or potential threats to and actual violations of physical safety. The public is justified in expecting a certain level of protection, and government legitimacy may be threatened if it fails to live up to that expectation. It is possible, however, for the public to expect too much of government. Government obviously cannot guarantee absolute safety, nor can it be held responsible and accountable for every violation of physical safety. Physical safety results from the actions of many different parties, each one acting in accordance with its own logic and interests. They operate in complex chains and networks, often international ones, that are beyond the national government s control. Government must depend on experts to size up threats, although it cannot trust their expertise blindly. Its ability to act is defined by such dependencies. Any discussion about government s responsibility for physical safety must take this into account (wrr 2008). In addition, the democratic rule of law limits government s ability to guarantee our physical safety. After all, the rule of law must never succumb to the pressures that arise when attempting to guarantee safety: The rule of law implies a subtle combination: state power is restricted on the one hand while power is exercised on the other, in order to safeguard individual freedoms and ensure that they have real meaning (wrr 2002: 79). 1.2 request for reflection The Minister of the Interior and Kingdom Relations 2 has requested that the wrr should reflect on the topic of risks and responsibilities. His request should be seen in the light of an undertaking (made by his predecessor to the Dutch House of Representatives) to develop a strategic agenda for government s role in matters of risk. In 2011, the Organisation and Personnel Policy 10 physical safety Department for National Government, part of the Interior Ministry, launched the Risks and Responsibilities programme in that connection. This programme focuses on physical safety, a wide-ranging issue that touches on many different areas of policy and ministries, with major differences but also similarities between them. 3 Physical safety is at issue when material and immaterial assets regarded as valuable by society are threatened by activities, trends, accidents and events that can be attributed primarily to natural or technological causes. These include epidemics, natural disasters, floods, hazardous substances, threats to food safety, transport accidents, major fires in public areas, accidents caused by construction flaws, and risks associated with new or existing technologies, such as nuclear energy, CO 2 storage and nanotechnology. 4 The request for reflection refers to a broadly supported problem definition: In recent decades, government has been held increasingly responsible for protecting the public and trade and industry against all manner of risk. When a new risk is exposed or after a serious accident, it is almost routine for the public and politicians to call for strict government measures to rule out that risk in future. Government often anticipates such responses and in doing so, inadvertently contributes to the idea that it is in fact society s main safety net. That expectation then frequently ends in disappointment when government seemingly fails to live up to it. In many areas, the risk-regulation reflex furthermore results in imbalances in public safety policy, with towering costs, inefficient use of government resources, a low return on the investment in safety, the violation of civil rights and other values, confusion as to responsibilities, and the obstruction of technological innovation and economic prosperity. According to this request for reflection, the risk-regulation reflex is a persistent phenomenon that occupies a prominent place in our society. The impression left by the request is one of a government that feels overstretched, overburdened and overly sensitive. Specifically, the Interior Minister asked the wrr to reflect on two questions: 1. How can government develop a general risk policy in which it plays a smaller role in avoiding and compensating for risks? 2. Are there reference points for dismantling existing mechanisms and breaking through barriers associated with both the risk-regulation reflex and the reflex in which the responsibility is laid squarely at the feet of government? The first question concerns policy principles and therefore considers what basic principles, rules, mechanisms and institutions are desirable. How can government promote a balanced allocation of responsibility when it comes to physical safety? The second question is more concerned with the behavioural mecha- introduction 11 nisms and political phenomena behind the assumed reflexes. Both questions refer to a difficult process in which government must weigh up different factors, for example between its own responsibility and solidarity, between fairness and reasonableness, or between safety and the freedom to act. There are no easy answers. The responsibility for physical safety is a balancing act. 1.3 key concepts: incidents, damage, risks and uncertaint y The answers to the Minister s questions call for conceptual clarity. When concepts such as risk and incident are mentioned in the same breath, it becomes difficult to assess the nature and scale of the problem or the reference points for policy. In this document, we make a distinction between incidents, damage, risks and uncertainty. In other words, we differentiate between action leading to an actual violation of physical safety (incidents 5 ), how the consequences of that action (damage) are dealt with, and how relatively known and undisputed threats to safety (risks) are handled, as well as the safety issues arising from faulty knowledge and/or conflicting values, for which we use the collective term uncertainty. 6 Incidents An incident is the actual violation of physical safety. We use this term as an overall concept to describe acute or rising emergencies within the realm of physical safety. They may be emergencies that, prior to their advent, were considered more or less likely or unlikely to occur. However, the instant they do occur, the probability calculation becomes irrelevant. Until the eve of its occurrence, an incident can be referred to in terms of risk; after it takes place, it helps us to estimate the likeliness of similar incidents in future; while it is happening, however, the danger is very real. The emphasis is therefore on how politicians and public administrators deal with actual physical unsafety and the damage that it causes. At its most basic, risk in fact involves the question of when, where and to what extent unopportunities possibilities (see textbox 1.1) will become reality. If there is uncertainty in these respects, then a further question is whether the threats will become reality at all. During an incident, the point is to combat the actual violation of physical safety. In cases of risk and uncertainty, the point is to weigh up the opportunities and threats. The aim of risk and uncertainty management is to prevent or limit incidents and damage or to anticipate them. 7 When an incident or damage cannot be prevented, the aim is to remedy physical unsafety. 12 physical safety Textbox 1.1: Opportunities and threats This document uses the terms opportunities and threats as referred to in the wrr report Uncertain Safety (2008). This is a free translation of goede en kwade kansen, a concept that is difficult to translate literally. Here, it refers to potential advantages and disadvantages, i.e. to the effects that may arise. It is used in the everyday sense, i.e. as the chance that something will have a favourable or unfavourable impact, and not as a statistically calculable likelihood. The term opportunities and threats (i.e. goede en kwade kansen) is also used in a report by the National Institute for Public Health and the Environment (rivm) entitled Nuchter omgaan met risico s [Dealing pragmatically with risks] (2003). 8 Both reports refer to the archetypal proposition advanced by Wildavsky (1988) that innovation is never risk-free: the potential advantages and disadvantages must be viewed in relation to one another. Although Wildavsky does not use the terms opportunities and threats, Stallen (2002), 9 who builds on Wildavsky s ideas, does (goede en kwade kansen). The vocabulary of opportunities and threats is more common beyond the specific literature on risk. It is a familiar term in the field of bodily injury and liability, however. It can be traced back to the Dutch Civil Code, which contains the following passage: The Court may wholly or partly postpone the assessment of damage which has not yet occurred or, after an evaluation of the opportunities and threats, make an anticipatory assessment (italics added). 10 Risks and uncertainty In our conceptual framework, risk is defined as a calculable safety problem calculable because the nature and scale of the potential danger, the probability of its occurring and its impacts are sufficiently known and undisputed. Risk can be expressed as the function of chance (probability) and consequence (impacts). The questions that public administrators and politicians face concern whether a risk is acceptable in the light of the associated opportunities, how the risk can be managed, and what role government should play in that scenario. There are also safety issues related to faulty knowledge and conflicting values. As a result: there is a flawed understanding of the relationship between cause and effect (complex); threats are conceivable but not indisputable (uncertain); the effects are debatable and opinions vary as to what is and is not acceptable in normative terms (controversial 11 ). introduction 13 We use the collective term uncertainty to refer to such threats to physical safety. It is important, then, to distinguish between uncertainty and unlikelihood (or improbability): complex, conceivable but unproved or disputed threats are not, by definition, unlikely. Indeed, faulty knowledge makes it impossible to say anything definite about likelihood. Those who see the two terms as equivalent have failed to take faulty knowledge and conflicting values seriously enough. In situations of uncertainty, then, danger must be understood in the most fundamental sense of the word: the threat to physical safety, incidents and harmful impacts are conceivable but not indisputable. Examples include new technologies, new infectious diseases, natural disasters caused by climate change, unprecedented problems within the context of food safety, and accidents involving hazardous substances. In cases of uncertainty, there is a fundamental basis of doubt regarding the need for policy, the reference points for that policy, and the policy framework. Uncertainty requires reflection, investigation, and an indepth dialogue with various parties about the opportunities and threats and, as a result, about the normative principles (wrr 2008). These are required before anything sensible can be said concerning the allocation of responsibilities and the policy to be pursued. Uncertainty therefore requires public administrators and politicians to consider how faulty knowledge and conflicting values should be handled. Figure 1.1 Risk-uncertainty continuum faulty knowledge complex risk uncertain uncertainty sufficiently known + undisputed = calculable conficting values controversial The difference between calculable and incalculable threats is of vital significance, but it is a gradual distinction and the dividing lines are blurred (see Figure 1.1). Controversy can easily arise as to whether the danger in question is sufficiently known and undisputed (risk), or whether it is uncertain, complex and/or controversial (uncertainty). We are therefore dealing with a conceptual distinction that draws explicit attention to faulty knowledge and conflicting values, and therefore to the normative and socio-psychological dimension of safety issues (see also Chapter 3). 14 physical safety By making active use of investigation, dialogue, experience, and cumulative insight, we can transform uncertainty into calculable risks. Risks can therefore also be thought of as exceptional cases within the group of potential threats to physical safety (De Vries et al. 2011). But what may at first appear to be a calculable risk can also evolve into an uncertainty, for example because new parties that adhere to other values or have other insights join in the public debate. We must therefore accept that uncertainty is often an enduring factor in decisionmaking. Damage The term damage refers not to the moment (or momentum) of physical unsafety (the incident), but to the negative consequences of natural and technological activities, developments, accidents and events, both in the shorter and longer term. Damage may be material and immaterial; people, surroundings, and private and public property can suffer damage in all sorts of ways. Damage is the physical manifestation for citizens, businesses and government of a violation of physical safety. The main challenge for public administrators and politicians is how to deal with damage (i.e. clearing up, settling claims, repairing, compensating). We regard damage as the focus of all responsibility-related questions. Issues concerning prevention, risk management and dealing with uncertainty can be linked to the urgent questions that arise in the case of incidents and damage. We have introduced the term damage arrangements to refer to the full spectrum of measures and mechanisms intended to prevent, limit and cover damage. This perspective gives us a basis for building a coherent view concerning the allocation of responsibility. It gives us a way of considering, retrospectively, how responsibility should be allocated in advance. In our view, the allocation of responsibilities is balanced if all the relevant parties are encouraged to prevent or at least to limit damage as much as possible, and if the necessary financial resources are made available to expedite damage control and management. 1.4 interactions Lumping incidents, damage, risk and uncertainty into a single category clouds our view of the various challenges facing politicians and public administrators and the appropriate reference points for re-evaluating the allocation of responsibility. The various ways in which we handle incidents, damage, risks and uncertainty do influence one another, however. Incidents can ma
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