Risk, Opportunity and Society British Prime Minister Tony Blair
Institute of Public Policy Research, May 26, 2005 In a speech to the Institute of Public Policy Research, British Prime Minister Tony Blair discussed the role of risk in policy making, echoing Common Good's arguments that no positive action is without risks and that the attempt to avoid risk entirely leads to absurd results.
"[S]omething is seriously awry when teachers feel unable to take children on school trips, for fear of being sued," Blair said. "We cannot respond to every accident by trying to guarantee ever more tiny margins of safety. We cannot eliminate risk."
Common Good chair Philip K. Howard has written extensively on the topic of risk in society. In a recent Legal Times op-ed, Howard discussed a lawsuit that arose after a baseball game:
Last summer, John Knowles of Garden City, N.Y., was released from three years of litigation hell when a jury finally decided that he should not be ruined financially with a multimillion-dollar verdict. His sin? When playing in the Garden City Slow Pitch Softball League in 2001, he slid into home plate. The catcher, Michael Licitra, fell, broke his kneecap, and decided to sue Knowles for the nice round number of $2 million.
Not long ago, this accident would have been considered, well, an accident. Baseball, like all other physical activities, carries certain risks. Every year there are about 15,000 fractures from recreational baseball and softball--not bad considering that 43 million Americans participate. You can't play the game without taking that chance. Risk and opportunity are the flip sides of the same coin.
But many Americans don't see it that way anymore. Something--anything--goes wrong, and it's assumed that somebody should pay. Like a switchblade, legal fangs replace the nice smile. The legal system--which should be the foundation of our freedom--fosters almost primitive feelings of fear and exploitation.
Blair's speech repeatedly emphasized the point that risk and opportunity go hand-in-hand:
[T]here needs to be a proper and proportionate way of assessing risk and the response to it. Government cannot eliminate all risk. A risk-averse scientific community is no scientific community at all. A risk-averse business culture is no business culture at all. A risk-averse public sector will stifle creativity and deny to many the opportunities to be creative while supplying a few with compensation payments.
There is usually a seductive logic to any new regulation. There is almost always a case that can be made for each specific instrument. The problem is cumulative. All these good intentions can add up to a large expense, with suffocating effects.
It is the cumulative effect of mostly reasonable regulations that is undermining our public schools, as Common Good has said:
Intractable problems usually have a silent partner, some assumption that everyone takes for granted. In education, the practice of reformers has been to identify a worthy goal--say, safety or fairness--and then to create a detailed legal structure to make sure it happens. Taken alone, each legal requirement seems reasonable. Together, they present an insurmountable legal barrier, blocking even the simplest choices. (From "You Can't Buy Your Way out of a Bureaucracy," by Philip K. Howard, The New York Times, December 3, 2004)
Government must encourage positive and cooperative social behavior. This requires establishing a known standard of what constitutes reasonable risk. Blair said:
[Britain must] clarify the existing common law on negligence to make clear that there is no liability in negligence for untoward incidents that could not be avoided by taking reasonable care or exercising reasonable skill. Simple guidelines should be issued. Compliance should avoid legal action. This will send a strong signal and it will also reduce risk-averse behaviour by providing reassurance to those who may be concerned about possible litigation, such as volunteers, teachers and local authorities.
In the United States, it is up to judges and legislatures to set the boundaries of reasonable disputes and draw the line on who can sue for what.
Click to read the full speech.
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