Taking Action - in the public interest

What just happened there? Why was a decision made, and what scientific or technical information supported that decision?

Providing independent information in matters of science, medicine and technology, particularly those involving genetics has underpinned PSGR’s work for 20 years.

Taking action to be independently informed involves rigorous curiosity - from technology, through to the biological sciences; to toxicology, epidemiology, to chemistry, genetics and epigenetics.

An open-ended approach is necessary. Because the ‘tipping-point’ when a technology or emission trips (or cascades) a human or biological system into ill-health is often, broadly uncertain. How can society best protect health and promote prosperity?

The good news! Democracy is a two-way process - requiring all hands on deck!

Democracy is founded upon a trust-based relationship between society and government. For trust to be sustained, government agencies and officials have to act in such a way that is impartial and fair. This involves making decisions that are transparent and accountable.

But the problem is, our elected officials are under-resourced, and funding for monitoring and assessing risk from technology and pollution is short-term and precarious.

It’s time for the back-up to arrive! How do we do this?

 [1] BE CURIOUS, LOGICAL & PERSISTENT

Unravelling the relationships between policy, law and scientific information can take time. It's important to understand that just because an issue or topic is not discussed in legacy media, or included in television and movie streaming services, this does not mean it is not important. Because there is a lack of information regarding the risk posed by technologies this does not mean that they don't present a risk, particularly to babies, children or young people. 

When we hear the terms 'disinformation' and 'misinformation' it is important to realise this is an opportunity for enquiry. Information can be disinformation or misinformation if it fails to be impartial and trustworthy. Questions that may be asked include: 

• Who provided the information and are there political or financial conflicts of interest that compromise the person or organisation who gathered that information? 

• Does that person talk about risk to children and young people, and long-term risk in a thoughtful and comprehensive way?

• Has the data and scientific and technical information that supports that information been published?

• Is there appropriate risk-regulation involved - have agencies considered the information not only from the industries that are keen on a technology, but the scientists and researchers (expert and lay) who draw attention to important and relevant considerations?

Industry and governments can make agreements and put in place commercial in confidence agreements. However, when they involve important issues that have potential to impact rights (in the short or long-term) and lead to the abuse of power, it is incumbent upon the public to ask reasonable questions about hidden information, and draw attention to inconsistencies and contradictions.

Otherwise claims that governments are impartial and trustworthy - our social compact - starts to break down.

[2] OFFICIAL INFORMATION ACT REQUESTS

If you don’t understand why a government decision is made, or want to understand an evolving process, at local, regional or central government level, or with a government provider, - start making simple Official Information Act (OIA) requests.

As former New Zealand Prime Minister Sir Geoffrey Palmer and constitutional lawyer Andrew Butler have noted:

‘One of the most critical elements in preventing corruption and engaging the citizens in the affairs of the Government lies in the Official Information Act. This Act is the engine of open government, which is such an important value. Public opinion is one of the checks against arbitrary power, but only if the people know what is going on. As a famous American Judge Louis Brandeis once said:

‘Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most important policeman.’ [1]

Government agencies may lack information and so a request may be refused. That can tell you just as much about how environmental and human health policy as it does when they have information!

[3] DIG INTO THE POLICIES AND GUIDELINES THAT SHAPE GOVERNMENT KNOWLEDGE

It can be surprising to understand just how old the scientific and technical information is, or the guidelines are, that underpin and justify current regulations for a technology. Millions may be being put into development of the technology, or release into the environment, while the safety studies and guidelines are decades old and unchanged. It can be a common problem.

Policies and guidelines might exclude or downplay new knowledge that is highly relevant. For example, the potential for chemicals to interfere with and disrupt hormonal processes; for chemicals in the same class to have an additive effect; and for chemical mixtures to exert an additive and cocktail effect; or for telecommunications equipment safety guidelines to exclude non-thermal effects.

Governments globally have scaled up the release of technologies without scaling up monitoring, oversight and research capacity to identify how those technologies might harm. Understanding how a technology is not monitored, how claims of safety fail to be buttressed by local science and research, can help shed light on problems with human and environmental health.

Often the committees and peer reviewers that provide oversight and shape end outcomes of policy have long-term interests in that policy outcome. When this happens, (and it does), or when governments rely on the opinion of industry to make a claim (e.g. glyphosate reduces herbicide resistance instead of considering more complex drivers) the government cannot be said to be impartial. Good governance includes taking account of new knowledge.

Recognise that scientists and researchers working in government may face barriers to producing information that contradicts government policy. This might be due to narrow terms of reference in the duties that they undertake, it might be based on long-held beliefs (such as prioritising toxicological risk assessment) and it may be due to a lack of long-term resources. Regulators could conduct reviews of the literature, or fund biomarker research, or track epidemiological science to understand population-level impact, but they don't.

Scientists and researchers outside regulatory environments with fragile funding trajectories are unlikely to conduct long-term research or conduct research that is seen as politically risky. This is because they do not want to compromise future funding opportunities.

Also downplayed, is the extent to which risk can scale as efficiencies improve in the development and release of technologies. The extent to which pollutant mixtures scale up is relatively unknown, because governments have simply not kept up with resourcing to enable scientists and researchers to do the work.

[4] GET TO UNDERSTAND THE OBLIGATIONS OF MINISTERS & THE CROWN

How do governments act to protect democracy and prevent abuse of power? As stated by Professor Philip Joseph (p.309):

A public servant’s duty is to the government in perpetuity, not the political party or parties in power at any time. [2]

Public servants – including government Ministers, are required to take into account matters which are controversial. This does not include just 'managing' controversial issues, but providing information relating to such controversial matters that reflects democratic values

a. Take time slowly to understand how government works, and decision-making processes work. Read books to understand how government works, such as Palmer and Butler’s approachable Towards Democratic Renewal.

b. Check out the 2023 Cabinet Manual.

‘Employees in the public sector act with a spirit of service to the community and must meet high standards of integrity and conduct in everything they do. In particular, officials must be impartial, accountable, trustworthy, respectful, and responsive.'

'All inquiries must act independently, impartially, and fairly.'

c. Perhaps have a look at the Legislation Design and Advisory Committee Legislation Guidelines 2021 Edition, and particularly, read the section on constitution. As it seems to be being updated frequently, it might also be interesting to look at older versions of the Guidelines, to understand how the language has changed over the years.

d. When policy and law is being made, ask who is producing the information, and look at what that information includes. This includes reviewing Regulatory Impact Statements which can include cost-benefit analyses. Who conducted the RIS, how old is it, what data was used, were other jurisdictions with different approaches considered - were relevant considerations that concern the public, or a topical, included?

If you are legally minded, we suggest you hunt down one of Professor Philip Joseph’s books on constitutional and administrative law, which sheds light on the obligations of government employees (public servants). Joseph sheds light on how to understand whether decision-making can or should be challenged. For example:

An error of law is made if a decision maker applies the wrong legal test, reaches a factually insupportable finding, comes to a conclusion that was not reasonably open to it on the evidence, takes into account irrelevant matters, or fails to take into account legally relevant matters. Manifest unreasonableness also supports findings of error of law as does an unreasonable finding of fact, a failure to make a finding of fact on a key issue of a decision, or a failure to provide reasons for decisions that affect citizens’ rights.

[5] LOOK AT PATTERNS OVERSEAS

New Zealand is a small country. An understanding of how technologies are regulated overseas, including what information is used and permitted, and how old or secret their guidelines are can inform society here. Offshore court cases which include discovery processes can draw out technical and scientific information that is worthy, but has not seen the light of day.

New Zealand regulators do not tend to publicly take into account offshore legal decisions, or the information that is unearthed during the discovery process.

[6] THINK ABOUT COMPLEXITY

i. Consider these questions posed by Sir Austin Bradford Hill:

How in the first place do we detect these relationships between sickness, injury and conditions of work? How do we determine what are physical, chemical and psychological hazards of occupation, and in particular those that are rare and not easily recognised?

Bradford Hill created a list aspects of an observed association that he proposed should be especially considered before deciding upon a verdict of causation.

ii. Learn about the Precautionary Principle. Read papers (such as this and this and this). Find out whether officials have policy papers or guidance papers to help them take the Precautionary Principle into account.

iii. Think about whether an emission is PBT - persistent, bioaccumulative and/or toxic. How deeply have these factors are taken into account by decision-makers. The 2013 Late lessons from early warnings report provides a good insight on these overlapping factors.

iv. Does the technology and emission present scalability problems? When the technology can be ramped up quickly, so can risk and potential harm.

v. Is uncertainty honestly and pragmatically addressed? Risk and risk governance often involves taking account of complexity, uncertainty and ambiguity. How is this undertaken in the public - or national interest?

vi. Have officials taken into account the Developmental Origins of Health & Disease (DoHaD)? Environmental factors acting early in life (usually in fetal life) have profound effects on vulnerability to disease later in life, often in adulthood. Pregnant mothers, babies and young children are often unwittingly exposed to new technologies and emissions. Has monitoring, research and scientific analyses thoroughly taken account of risks to young brains and bodies?

vii. Do cost-benefit calculations and modelling scenarios take account of new knowledge?

[6] RECOGNISE THAT OFFSHORE AGREEMENTS REQUIRE SUNLIGHT

 Trade ‘agreements’, treaties & ISDS tribunals undermine public interest regulation, threatening health, the environment and democratic sovereignty. Defunding of non-STEM academia have reduced the experts who might look at history, ethics, law and the Treaty of Waitangi to understand and assess the long-term impact of international agreements.

If you look at the backgrounds of many of the public ‘experts’ who appear in media speaking up for global or trade agreements, many have a lobbying background or a narrow field of expertise. The do not extend discussion to concerns and risks in the agreements. While it is fair that representatives of industry groups such as our agricultural produce exporters will often speak up, we lack the public interest voice by experts that may broadly speak to the national interest, human rights and the protection of human and environmental health.

Trade agreements and treaties are increasingly common, and they have been embedded in many of our laws for decades. As Professor Philip Joseph has stated:

'International treaties are increasingly the subject of legislation that makes them a quasi or secondary source of constitutional law.'

In1996 the Law Commission considered that

'approximately one quarter of Parliament's statutes either incorporated international treaty obligations or empower the government to give effect to them'. (p.42) [3]

Over time the ‘power’ or authority of these agreements accrue. But who outside of political government (who are signing the agreements) are tasked to  - or have sufficient latitude to - look broadly at agreements, and question the suitability of these agreements for New Zealand? Do the arrangements in the agreements and treaties slowly erode sovereignty and/or human rights and/or health, even slowly over decades?

All too often politicians return from an overseas trip having signed the latest agreement.

Trade agreements used to be broadly covered in legacy media, but this is no longer the case.

Companies work to build in clauses that prevent or limit taxation, that prevent governments capacity to promote local ownership (such as of mining companies), or that prevent government requiring that downstream refining or manufacturing is carried out domestically. Investor protection mechanisms can then enable the injured industry to sue the domestic government.[4]

Trade agreements no longer solely concern physical product, but have expanded to include services and intellectual property (IP) provisions.

Ratchet clauses can erode the regulations around services including in sectors traditionally operated by governments such as in health care and education. Clauses can prevent requirements that a service is locally managed, and clauses can prevent governments taking back control of service provision in sectors even if the management of the service is sub-optimum.

Trade agreement clauses may also prevent pricing limits on essential services.

IP provisions in medicine and biotech can protect patent monopolies and create barriers to use of generic drugs. IP provisions on seeds can create barriers to local seed saving.

When there are challenges to trade agreements the duelling actors can end up in investor–state dispute settlement (ISDS). ISDS are increasingly common.  Cooper et al (2014) shed light on the risks:

1. ISDS tribunals have rejected requests to defer to government regulations when these have been enacted in good faith with no intent to harm corporate profits.   

2. ISDS tribunals' decisions have historically required scientific “proof”. However regulatory bodies/ governments have a duty of care. Acting in the public interest often requires them to employ the precautionary principle (aka prudent avoidance), a valuable tool in public policy-making.  Confirming associations can be a slow and difficult process and often takes much time and resources. (Many are eventually proven, with scientific certainty, to be carcinogens, endocrine disruptors, mutagens, environmental toxins etc.)     

3. Investor rights can trump public interest rights. A trade agreement may contain provisions that appear to ensure a government’s ability to protect the environment and public health, may be trumped by other agreement provisions that protect investor rights.

4. ISDS Tribunals undermine democracy, public discussion and dissent:

a.      Early settlement may avoid a big payouts but may result in undemocratic regulation. Settlement prior to ISDS arbitration may still result in environmental or health based settlement decisions or ‘agreed principles’ that, with due consultation in the public sphere, may have not been taken.

b.      The tribunals may choose if public can participate or contribute. Public participation in ISDS disputes are decided by a panel of 3 lawyers (only 1 of whom is independent). 

c.       Trade agreements may create environments hostile to journalists and whistleblowers and may compromise internet freedom. Online action targeting corporate wrongdoing may be prohibited. 

5. ISDS claims frequently target environmental and health policy measures. Analysts noted that “the provisions designed to ensure security and predictability for the investors have now created uncertainty and unpredictability for environmental (and other) regulators.”

6. It’s simply not democratic. Our judicial system looks after us better. ISDS arbitration mechanisms can undermine domestic public interest regulation - providing the public with greatly limited ability to engage in these disputes. The secrecy and barriers to participation lack key aspects of basic procedural fairness. This compares to the sophisticated procedural tools available to the public within the modern judicial system. Here, specific regulatory by-laws can be developed and become the subject of legal challenges - due process is provided under more transparent legislative and judicial systems.

7.      Agreements can be based on estimated future profits – and predominantly multinational corporations engage. ISDS arbitration is only for multinational, and not domestic corporations.

8. Corporate lawyers lack public policy experience. Tribunal members appointed to adjudicate disputes frequently have a commercial law background. Arbitrators may lack the necessary expertise to consider broader public policy implications.

9. Local government regulations and by-laws are vulnerable. Local regulations may regulate to benefit local health & local economies. However they can be overridden by a government anxious to reach a less costly settlement.

10. Tribunals are not bound by rules of precedent. This creates even more uncertainty over ISDS outcomes and a “chilling effect” on government regulation.

Offshore agreements and the chilling effect imposed by the ISDS process can result in human rights being threatened or eroded. One way which has been suggested is for Four Key Human Rights Tests – Trade agreements should:

Contain enforceable human rights conditions.

Be subject to an independent human rights and environmental impact assessment.

Contain enforceable human rights obligations on businesses and investors.

Exclude the investor-state dispute settlement mechanism.

But who in New Zealand could speak to such issues and gain media traction for debate?

However, who doesn’t speak up is just as important – these are the people who might explain what we are agreeing to that might benefit the partner country more than New Zealand. These people are commonly not published in the media.

A final word to Professor Joseph:

The market reforms have reduced the role of government but intensified the need for accountability. … Abuse of dominant position is an abuse, whether it is perpetuated by a publicly owned or a privately owned entity. (p.947)

 REFERENCES

[1] Palmer G & Butler A. (2018) Towards Democratic Renewal. Victoria University Press. 

[2] Joseph, P. (2021). Joseph on Constitutional and Administrative Law, 5th Ed. Thomson Reuters 

[3] Law Commission (1996). Report 34 A New Zealand Guide to International Law and its Sources. Wellington, New Zealand. https://www.lawcom.govt.nz/assets/Publications/Reports/NZLC-R34.pdf

[4] RCEP [2018] A secret deal Trade talks fail the transparency and public participation test. Friends of the Earth International.

[5] Kathleen Cooper, Kyra Bell-Pasht, Ramani Nadarajah, and Theresa McClenaghan, Seeking a Regulatory Chill in Canada: The Dow Agrosciences NAFTA Chapter 11 Challenge to the Quebec Pesticides Management Code, 7 Golden Gate U. Envtl. L.J. 5 (2014).

[6] Samples TR. (2019) Winning and Losing in Investor–State Dispute Settlement. American Business Law Journal 56,1:115-175. DOI 10.1111/ablj.12136

[7] Schill SW. (2017) Reforming Investor–State Dispute Settlement: A (Comparative and International) Constitutional Law Framework, Journal of International Economic Law, 20;3:649–672, DOI 10.1093/jiel/jgx023