Legal challenge and its implications

Appleby, Thomas

Abstract

Law and science view the decision making process very differently.

Scientists seek to test data to see if this leads to a trend which can inform the decision maker. Scientific certainty therefore has certain drawbacks. It is incredibly data hungry and is much better at assessing quantitative data than qualitative data. If there is not enough data science tends to shy away from the issue altogether.

The law takes a very different view to certainty. It recognises that decisions often have to be taken without all the information to hand. Most of the reasons for judicially reviewing a decision turn on the process; the substance of a decision is normally only challenged if it is irrational (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation).

Changes to a management regime often bring out the lawyers, particularly as the lobbying industry has been increasingly colonised by the legal profession. Legal challenges begin behind the scenes in the consultation and management process itself with threats of legal action and end in the courts. So cases tend to the tip of the iceberg. The increasing complexity of regulation and the law itself have hedged in the political discretion of decision makers. Thus we see action by Client Earth and the Marine Conservation Society to bring teeth to the Habitats Directive and action by the United Kingdom Association of Fish Producer Organisations to shore up their members’ interest in quota.

The key lesson to be drawn from these cases is that government have traditionally been shy of legal threats, but the increased presence of such actions can be a sign of active management, that is not necessarily bad news. The law tends to protect things which need protecting.

The trick for the decision maker is to weigh the extent of the threat and hold their nerve, or if there are real issues raised deal with them, as they won’t necessarily go away.

• Presentation Conference Type: Conference Paper (unpublished)
• Conference Name: Evidence Trends issues and Solutions : Communications and Management for Sustainability
• Start Date: Jul 2, 2013
• End Date: Jul 2, 2013
• Publicly Available Date: Jun 7, 2019
• Peer Reviewed: Not Peer Reviewed
• Keywords: proof, science, decision, challenge, law, judicial review, evidence
• Public URL: https://uwe-repository.worktribe.com/output/930074
• Publisher URL: http://www.coastms.co.uk/conferences/474
• Additional Information: Title of Conference or Conference Proceedings : Evidence: Trends issues and solutions