Options for Embedding Regulatory Policy in Law: An Academic Perspective
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The document discusses the integration of regulatory policy into law by examining definitions, international obligations, legislation, parliamentary roles, executive actions, and the courts' influence. It highlights the complexity of regulatory governance, noting limitations like compromise in legislation, lack of scrutiny, and the potential for incoherence in the regulatory framework. The conclusion emphasizes the need for clarity among institutional roles and the importance of a regulatory culture and due process.
Options for Embedding Regulatory Policy in Law: An Academic Perspective
- 1. Options for Embedding Regulatory Policy in Law An Academic Perspective Tony Prosser, Professor of Public Law, University of Bristol, UK 1
- 2. Definitions • Regulatory policy; ‘the process by which government, when identifying a policy objective, decides whether to use regulation as a policy instrument…’ Strongly normative; concerned with good or better regulation; policy for regulatory quality • Regulatory governance; institutional design, transparency, responsiveness… 2
- 3. Definitions (cont) • Law; wide definition including statute, principles developed by the courts, administrative rules, ‘soft law’ • Thus concern with normative rules and institutional design with some sort of backing, but can be different types of enforcement mechanisms 3
- 4. International Obligations • EU; requirements for regulatory independence, eg in network industries – may constrain modes of implementation • Trade treaties; eg GATS disciplines on domestic regulation; Transatlantic Trade and Investment Partnership negotiations; these raise both substantive and procedural issues, especially on ISDS • OECD recommendations 4
- 5. Legislation • Importance of statute as a means of creating procedural principles • The US Administrative Procedure Act 1946; hearings and ‘notice and comment’ rulemaking • Basic administrative standards; eg Ofcom duty to have regard to principles that regulation should be transparent, accountable, proportionate, consistent and targeted and ‘any other principles appearing to Ofcom to represent the best regulatory practice’. 5
- 6. Legislation (limitations) • Likely to be the result of compromise so will not result in unambiguous regulatory duties; eg ‘citizen’ and ‘consumer’ duties; especially given importance of sustainability • ‘Credible commitment’ unrealistic in a democracy; regulatory discretion inevitable (and desirable) • Difficult to change • Executive dominance; eg power to repeal statute by ministerial order to remove burdens, including obstacles to efficiency, productivity or profitability 6
- 7. Parliament • Major role in ex post facto scrutiny • Role of committees; eg House of Lords Constitution Committee The Regulatory State: Ensuring its Accountability (2004) • Audit and value for money; the role of the National Audit Office and Public Accounts Committee • Concern with ‘economy, efficiency and effectiveness’ eg review of use of regulatory impact assessments 7
- 8. Parliament (limitations) • Weakness of legislative scrutiny • Lack of expertise • Inevitable (and desirable) politicisation 8
- 9. The Executive • Strong financial and political incentives to see better regulation, especially under austerity • ‘Executive self-regulation’ • Executive pluralism; role of Treasury, Better Regulation Executive, independent commissions… • Development of regulatory impact analysis, further elaboration of regulatory principles etc 9
- 10. The Executive (limitations) • But danger of lack of coherence; compare the ‘whole of government’ approach • Also danger of lack of transparency of internal rules, but reduced by availability on WWW • Easy removal of inconvenient procedural requirements, eg UK Code of Practice on Consultation 10
- 11. The Courts • Increasing role in policing legislation which affects rights, eg freedom of expression, peaceful enjoyment of possessions • Blurring of distinction between legality and merits appeal • Important role of EU requirements • Public process 11
- 12. The Courts (limitations) • May not be user friendly; delay, cost • Not enough expertise in public administration to go beyond general standards of good administration, and lack of economic expertise • Danger of gaming by those regulated, eg to delay implementation 12
- 13. Conclusion • ‘360⁰ Accountability’ • But danger of incoherence • Most important task to clarify roles of different institutional actors • Importance of shaping regulatory culture, not merely incentives • Importance of due process in making and application of rules 13