Monitoring Safety and Security
Programme Leader: Prof. dr. R.H.J.M. Staring
Safety and security are central issues in modern society. This programme aims to study various modes of governance of safety and security in financial, social, and economic systems through a broad and multidisciplinary approach. Monitoring, supervision, and enforcement aim to prevent or control unsafety and insecurity. Monitoring may be directed to persons and organisations that put safety and security at risk, but may also aim to safeguard the efficient functioning of markets.
Traditionally, monitoring and enforcement were primarily state tasks; however, the authority and responsibility for monitoring is increasingly being transferred to private actors. Commercial security and auditing firms, citizen-consumers, and self-regulation through internal monitoring are examples of the responsibilisation and privatisation of monitoring. New forms of monitoring have developed outside the traditional national legal framework: namely, partly under the influence of globalisation, supranational and intergovernmental control bodies have emerged. In addition, the role of technology in supervision has gained importance. These developments have given rise to new and important research questions that can only be answered by way of a multidisciplinary approach.
The programme is particularly well equipped to answer these questions because of its composition of scholars from various disciplines. It is composed of legal scholars in the fields of criminal law, administrative law, international law, and financial law and accountancy, as well as technology law, law and society, and law and philosophy, and also includes legal theory scholars. In addition, criminologists, economists, and other social scientists form part of the programme.
Programme design and strategy
Problem formulation, goal, focus, method
The programme aims to study social responses to unsafety and insecurity, and the interplay between various modes of monitoring and safety and security, from a normative legal perspective as well as from a social scientific standpoint. The monitoring of safety and security is studied in the financial and economic systems as well as within the social system.
The programme intends to realise this goal by way of innovative multidisciplinary contributions to the Dutch and international academic debate on questions of safety and security, as well as by disseminating research findings to a broad audience of potential users, such as legislators, policy-makers, corporations, and public and private enforcement agencies.
There is a general tendency in the Western world towards implementing more monitoring and control, identifying problems at an earlier stage, and creating roles for authorities and other organisations not previously involved in the prevention of criminal or other rule-breaking behaviour. This in turn gives rise to new problems, dilemmas, and topics for empirical and normative research: for example, which forms of monitoring and control are the most effective, and are the most effective forms the most desirable from a legal or an ethical perspective? Such questions direct attention to the relationship between differing legal enforcement systems – not only criminal law but also civil law and administrative measures. This raises questions about the exchange of information between these systems. It also necessitates an analysis of the nature of these differing systems: what are the differences in approach between criminal law and other systems involved in law enforcement, and how do they work together in practice?
These questions are of importance not only at a national but also at an international level: for example, within the framework of the European Union. Much of the legislation in recent years dealing with monitoring − for example, the prevention of terrorism or the laundering of money − emanates from international sources, and is then channelled through the EU (‘multi-level governance’). Such trends are not confined to the public sector. In addition to increased direct supervision by the authorities, there is at the same time an increase in co-supervision, self-regulation, and privatisation of supervision: national authorities and inter-governmental organisations such as the OECD, ILO, and the EU have generally adopted the strategy of recruiting private sector actors in monitoring and regulating both themselves and their customers. These trends shade off into self-regulation (privatisation of supervision). The rationales have been that external supervision will be insufficient unless organisations themselves are made to feel responsible (‘responsibilisation’), and that this strategy can be strengthened by society (the media, NGOs/watchdogs, market competitors, citizens) holding organisations accountable for their behaviour and their compliance with rules (‘name and shame’). However, events have cast some doubt on responsibilisation and co-supervision. Consider for example recent revelations about certain banks’ facilitation of money laundering or about conflicts of interest arising in ‘private regulation’ at national and international levels (such as the setting of LIBOR). In other words, whilst co-regulation and self-regulation may have looked like breakthrough approaches ten years ago, the policy agenda today has swung back partially to ‘command and control’, via administrative measures, closer supervision, and criminal law. There are many questions about the cultural causes and behavioural consequences of all these approaches, at local, national, regional, and EU levels, and across all applicable fields of law.
We are obviously not able to answer all these questions in our research programme, but the above-mentioned problem formulation provides us with a framework as well as a source of inspiration. To further delineate the context of the programme, four research themes were formulated in 2009, which up to now have guided the direction of our actual research projects. These themes are:
- Fundamental legal reflection on democratic and constitutional questions around safety and supervision;
- Transformations in modes of supervision: the study of transitions between legal domains or interactions between modes of supervision, such as public and private supervision;
- Legal questions and problems that are raised by these transitions, such as problems of competence between national, supranational, and inter-governmental supervising authorities;
- The interaction between (changes in) modes of supervision and unsafety, including the question of the effects and unintended side-effects of supervision.