The role of Parliament in ordinary risk management. A legal analysis in light of the “precautionary principle”

Abstract

The Spanish Parliament seems to play a secondary role in “risk management”, contrary to an overarching and scarcely controlled Executive Power. This trend can be observed in rules regulating emergency powers, but also in ordinary rules related to risk. It can be explained to a great extent by the current interpretation and legal foundation given to the so-called “precautionary principle”, a norm that inspires and gives coherence to ordinary and extraordinary rules regulating uncertain risks. In this paper, we briefly analyze its origins, its implementation in Spain and the most widely accepted definition given by scholars and the Courts to the precautionary principle. We also analyze potential objections to the current version of the principle, which has led to an improper subordination of the Parliament in this field. Considering those objections and the inaccurate legal foundation hitherto given to precautionary norms, we try to reformulate said foundation to make the Parliament regain a leading role in “risk management”, which in fact amounts to much more than just “managing risks” (i.e. risks shall not only be managed, but also “institutionally channeled” or negotiated). The institutional architecture designed by the Spanish Constitution imposes it. We will also derive from it some practical consequences and potential improvements for the Parliament, related to legislative technique in rules regulating uncertain risks and integration of technical and scientific risk assessment into legislative procedures.