I would like to draw readers’ attention to an extremely interesting discussion of the Wegman Report and the IPCC at the Global Administrative Law Blog on Apr 29, 2008, considering some of the issues from the perspective of administrative law. The author is Euan Macdonald of the Institute for International Law and Justice of New York University.
Macdonald first characterizes the IPCC in administrative law terms, with a comment on the Wegman report (the “independent analysis”) as follows:
It is thus a public body, whose output is intended, indeed expected, to have a significant impact on legislative and policy choices taken at the national, regional and global levels. It is not, therefore, much of a stretch to characterise its activity as fundamentally public/administrative in character. The independent analysis, which focuses largely on the standards that should apply when a public body relies on academic scientific research, makes a number of interesting administrative law-type recommendations:
Macdonald then comments on several findings of the Wegman Report first commenting on transparency, noting with surprise that an author upon whose work the IPCC had relied on heavily had viewed “the code that he developed as his own intellectual property that he was no under obligation to disclose to peers”:
The independent analysis found that in many cases in which scientific papers are used as a basis for highly controversial policy documents, “the supplementary material [such as code and data] for academic work is often poorly documented and archived and is not sufficiently robust to withstand intense public debate”; and, moreover, that “[s]haring of research materials, data, and results is haphazard and often grudgingly done”, noting in particular that one of the leading academics in the field, upon whose work the IPCC relied heavily, viewed the code that he developed as his own intellectual property, that he was under no obligation to disclose to peers.
The independent analysis recommended that, where academic work is to be used for controversial policy papers, it must be subjected to a much more intense level of scrutiny, involving, inter alia, more disclosure of codes, data, and funding sources.
The author in question is, of course, Michael Mann. (In passing, Macdonald did not contest the issue of whether Mann was entitled to assert ownership of source code that he developed while in the employ of the Universities of Massachusetts (and perhaps Virginia) under federal funding. I’ve observed elsewhere that, legally, unless Mann had some peculiar term in his contracts, the code would be the property of the University of Massachusetts and that Mann’s assertion of title to the code inconsistent with the title of the true owner would therefore be an act of conversion. I do not have information on Mann’s employment terms and therefore express this only as a hypothetical.)
A point on transparency that Macdonald didn’t mention, but perhaps relevant, is that Procedures governing IPCC adopted by its constituent governments in the relevant assembly require it to be “open and transparent” and impose explicit archiving requirements, which IPCC and IPCC authors have not complied with. (Hence the FOI attempts.)
Macdonald noted the strong criticism in the Wegman report of the lack of statistical professionalism in studies relied upon by IPCC.
One of the central criticisms of the independent analysis is that the academic work upon which the conclusions of the IPCC were based, although relying heavily upon statistical analyses, did not interact with the mainstream statistical community in order to test and validate those analyses. It recommends that, where bodies such as the IPCC are reveiwing academic work with a view to basing their conclusions thereupon, they should ensure the participations of specialist, expert statisticians in that process. Clearly, this kind of participatory requirement is intended to increase the “output legitimacy” (i.e. the quality of the results) of the administrative process in question (in this case, the production of the IPCC’s report and findings).
The usual reaction of climate scientists to this particular criticism was to sneer – without fully understanding that people in administrative law using scientific reports are used to the idea that there is a difference between someone who is statistically qualified and someone who isn’t. And that this has implications in administrative law that may well differ from the implications for publishing an article in an academic journal.
Under the heading “review” (what I usually call “due diligence”), Macdonald construes Wegman as advocating that IPCC itself carry out some form of due diligence, the absence of which is something that surprised me:
Lastly, and perhaps most tenuously, the independent analysis raised issues that can perhaps be read as a form of accountability: recommendations for strengthening the ex post review process. In this case, however, it is not the review of the administrative activity of global body (the IPCC) itself that is in question, but rather a requirement that it act as a reviewer of the academic work upon which it will base its findings. In this regard, the analysis notes simply that “[e]specially when massive amounts of public monies and human lives are at stake”, standard peer review mechanisms are likely to be inadequate; therefore, where it is to be used in service of a political goal, “academic work should have a more intense level of scrutiny and review”. Indeed, the previous two issues, relating to transparency and participation, are in many ways simply complementary to this basic strengthening of ex post review. The report suggests, at least implicitly, that where the global body in question fails to discharge this more intensive review function, its own administrative output (the publication of findings and recommendations intended to influence legislative and policy programmes on climate change) should itself be regarded as lacking legitimacy.
There are many large questions here, most of which have been touched on here from time to time. And I do not know of exact solutions though I have some suggestions.
What intrigued me about the post was the concept of “global administrative law” itself, something that I’d not thought about as such with a proximate interest arising out of the varied and interesting responses of different organizations to our FOI requests.
In legal terms, the IPCC itself, in international law terms, would clearly appear to be an “international organization” under the U.S. International Organizations Immunities Act and similar legislation in other countries with the same immunities as a foreign sovereign nation. So when we face IPCC non-compliance with their explicit obligation to archive all written expert comments, an obligation that is part of a more general requirement that they be “open and transparent”, there is no obvious avenue for redress against IPCC itself other than public criticism, which inevitably escalates when they stonewall. An FOI action against the IPCC itself under U.S. or U.K. law would fail immediately.
However relatively little of IPCC’s work is done by its employees; most is done by cadres of scientists working in institutions that are not exempt from national FOI legislation. This raises interesting questions about exactly what hat an IPCC cadre is wearing when he is working on IPCC business while employed by a national institution. We’ve received varied answers from different national institutions in respect to FOI requests. There is a consensus on only one thing – that no information be disclosed. But each institution so far has had a different reason – each refusal based on a different theory of how one of their employees spends part of his work day doing work on behalf of an international organization not subject to national law. An interesting puzzle that I’ll discuss in another post.