Presentation by Tony Prosser, Professor of Public Law, University of Bristol, United Kingdom, at the 7th Expert Meeting on Measuring Regulatory Performance: Embedding Regulatory Policy in Law and Practice, Session on Options to embed regulatory policy in law - an academic perspective, Reykjavik, 18-19 June 2015. Further information is available at http://www.oecd.org/gov/regulatory-policy/measuring-regulatory-performance.htm

1. Options for Embedding Regulatory Policy in
Law
An Academic Perspective
Tony Prosser, Professor of Public Law, University of Bristol,
UK
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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…
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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
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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
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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’.
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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
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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
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8. Parliament (limitations)
• Weakness of legislative scrutiny
• Lack of expertise
• Inevitable (and desirable) politicisation
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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
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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
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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
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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
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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
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