Regulatory inspection and the changing legitimacy of health and safety

The regulation of conduct via law is a key mechanism through which broader social meanings are negotiated and expressed. The use of regulatory tools to bring about desired outcomes reflects existing social and political understandings of institutional legitimacy, the meanings attached to regulation, and the values it seeks to advance. But these contextual understandings are not static, and their evolution poses challenges for regulators, particularly when they reflect political framing processes. This paper shows how inspection has been reshaped as a tool within the United Kingdom's health and safety system by changes in the meanings attached to the concept of “risk‐based regulation.” While rates of inspection have fallen dramatically in recent years, the nature and quality of inspection have also been fundamentally reshaped via an increasingly procedural and economically rational “risk‐based” policy context. This has had consequences for the transformative and symbolic value of inspection as a tool of regulatory practice.     

Accountability in the EU's para-regulatory state: The case of the Economic and Monetary Union

This article revisits Majone's famous argument about accountability in the regulatory state in reference to the European Union's (EU) Economic and Monetary Union. We show that the EU has entered the stage of a “para-regulatory state” marked by increasing EU regulation in areas linked to core state powers. Despite the redistributive and politicized nature of these policy areas, the EU's “para-regulatory state” has continued to rely on its regulatory model of accountability, focused on decisionmaking processes, and interest mediation. In line with Majone, we describe the model as procedural and contrast it to substantive accountability – which is necessary when regulation has clear redistributive implications. Using two case studies from fiscal policy and monetary affairs, we illustrate the predominance of procedural accountability as exercised by the European Parliament and EU Courts. We complement the empirical analysis with a normative discussion of how substantive accountability could potentially be rendered in both fields.     

Regulatory capabilities: A normative framework for assessing the distributional effects of regulation

This paper develops the normative concept of “regulatory capabilities.” It asserts that nobody – individuals, groups, or entities – should be subjected to a regulatory regime without some freedom to determine its nature. Self‐determination in this context means the ability to accept or reject a regulatory regime imposed by others or to develop viable alternative approaches. We use the term “regulatory capabilities” to capture the importance of enabling conditions for regulatory self‐determination. This is particularly important in the transnational context where private, hybrid public–private, and public actors compete for influence, shape domestic regulation, and, in doing so, limit the scope for democratic self‐governance. In short, this paper seeks to contribute to the general debate on the normative foundations of and the requisite conditions for transnational regulation and governance.     

Not again! Public perception,regulation, and nanotechnology

It is often argued that immediate government action regarding nanotechnology is needed to ensure that public opinion does not mistakenly view nanotechnology as dangerous, to restore public trust in government, and to increase the legitimacy of government action through increased public participation. This article questions whether governments can achieve these goals. As the world lurches toward regulation of nanotechnology, we should ask Why the rush? Can anticipatory action, perceived as the government doing something, fulfill the competing hopes to “restore trust,”“pave the way” for nanotechnology, “increase awareness,” and “satisfy democratic notions of accountability”? Or is government action more likely to increase existing divisions over nanotechnology's future?     

Regulatory regimes and accountability

This research considers accountability issues for new forms of regulation that shift the emphasis from prescribing actions to regulating systems or regulating for results. Shortfalls at various levels of accountability are identified from experiences with these regimes in the regulation of building and fire safety, food safety and nuclear power plant safety. These experiences illustrate how accountability shortfalls can undermine regulatory performance and introduce a potential for subtle forms of regulatory capture. These concerns underscore the importance of finding the right fit between regulatory circumstances and the design of regulatory regimes.     

Holding Global Regulators Accountable: The Case of Credit Rating Agencies

Credit Rating Agencies (CRAs) are private nonmajoritarian regulators (NMRs) of international capital markets. Ratings of creditworthiness are ubiquitous in financial markets, and in this way they exercise considerable control over the flow of credit. CRAs entail a puzzle for the question of the legitimacy of global regulation. As profit seeking firms, they lack a formal element of coercion. Yet, CRAs are often criticized for wielding illegitimate power. Furthermore, the broad demand for accountability has not had a great effect on how CRAs operate. Thus, there is a persistent mismatch between demand and supply of accountability, an "accountability gap." By analyzing the accountability gap, this article seeks to enhance the understanding of the nature and the scope of the legitimacy problems of global NMRs. CRAs suggest that the legitimacy problems of global governance extend beyond formal NMRs to informal NMRs and that solutions sometimes are elusive.     

Counting on codes: An examination of transnational codes as a regulatory governance mechanism for nanotechnologies

This article examines the rise of nanotechnology‐specific codes of conduct (nano‐codes) as a private governance mechanism to manage potential risks and promote the technology. It examines their effectiveness as well as their legitimacy as regulatory instruments in the public domain. The study first maps the rise of voluntary nano‐codes and the roles played by different actors. Focusing on five specific nano‐codes, the article then discusses their adequacy in terms of scientific uncertainty, gaps in existing regulatory regimes, and broader societal concerns. It concludes that these voluntary nano‐codes have weaknesses including a lack of explicit standards on which to base independent monitoring, as well as no sanctions for poor compliance. At the same time it also highlights the potential power of these governance mechanisms under conditions of uncertainty and co‐regulation with government. It is likely that nano‐codes will become the “first cut” of a new governance regime for nanotechnologies.     

The Transformation of Higher Education in Israel since the 1990s: The Role of Ideas and Policy Paradigms

This article examines the transformation of Israel's higher education system since the 1990s. During that period, the system underwent expansion, diversification, privatization, and internationalization in a series of pathbreaking reforms. The main argument is that while external factors—such as demographic trends—exerted pressure for change, the trajectory and policy options preferred were shaped by ideational factors. Policy entrepreneurs played a crucial role in advancing pathbreaking institutional change when they reframed policies through linking cognitive ideas of “what has to be done” with the normative ideas that granted legitimacy to the proposals for reform.     

Reversing delegation? Politicization,de-delegation,and non-majoritarian institutions

Elected governments and states have delegated extensive powers to non-majoritarian institutions (NMIs) such as independent central banks and regulatory agencies, courts, and international trade and investment organizations, which have become central actors in governance. But, far from having resolved the balance between political control and governing competence or removed certain issues from political debate, NMIs have faced challenges to their legitimacy by elected officials and sometimes attempts to reverse delegation through “de-delegation”. Our special issue studies the politicization of NMIs, and then whether, why and how it leads to de-delegation through reducing the formal powers of NMIs or increasing controls over them. In this article, we examine how to analyze de-delegation, how politicization of NMIs has developed, and how it has affected de-delegation. We underline not only institutional rules that constrain elected officials but also the actions of NMIs themselves and their relationships with other NMIs as part of multi-level governance systems. We find that politicization has varied, but even when strong, elected officials have not introduced widespread and long-lasting de-delegation; on the contrary, they have frequently widened the powers of NMIs. Insofar as elected politicians have sought to curb NMIs, they have often preferred to use existing controls and non-compliance. Finally, we consider the wider implications of the combination of politicization and lack of de-delegation for broader issues of governance such as the division of powers between the elected and unelected and democratic accountability.     

Regulation lite: The rise of emissions trading

Emissions trading is the governmentally promoted hope for a sustainable world. In different contexts, trading regimes display varying potential – both in absolute terms and in comparison with other regulatory instruments. Emissions trading, however, is a device that raises urgent issues regarding its objectives, cost‐effectiveness, fairness, transparency, and legitimacy. Its use places emphasis on its “acceptability” and the virtues of regulation that is “lite” because it is non‐threatening to the most powerful interests. Emissions trading is resonant with assumptions that are highly contentious – notably that it is acceptable because it involves no losers, or because, in desperate global circumstances, we have no choice but to use it. There is a need to confront the difficult issues presented by emissions trading and to face the challenges of combining “market” and “democratic” systems of legitimization. It is also necessary to avoid taking refuge in all too comfortable beliefs in cumulative checks and balances.     

Democratic Order,Autonomy, and Accountability

Accountability is a principle for organizing relations between rulers and ruled, and making public officials accountable is a democratic achievement. There are, however, competing claims about what is involved in demanding, rendering, assessing, and responding to accounts; what are effective accountability institutions; and how accountability regimes emerge and change. This article provides a frame for thinking about institutional aspects of accountability regimes and their cognitive, normative, and power foundations. A distinction is made between accountability within an established regime with stable power relations and role expectations and accountability as (re)structuring processes in less institutionalized contexts and in transformation periods. A huge literature is concerned with the first issue. There is less attention to accountability as (re)structuring processes. The article, therefore, calls attention to how democracies search for, and struggle over, what are legitimate accountability regimes and political orders.     

It runs in the family: Meta-regulation and its siblings

Regulators in different countries and domains experiment with regulatory tools that allow organizations to adapt regulation to their individual circumstances, while holding them accountable for their self-regulation systems. Several labels have been coined for this type of regulation, including systems-based regulation, enforced self-regulation, management-based regulation, principles-based regulation, and meta-regulation. In this article, these forms of regulatory governance are classified as belonging to one family of “process-oriented regulation.” Based on a review of diverse empirical and theoretical research, it is suggested that the family of process-oriented regulation tends to have a positive, albeit varied, impact on organizations' performance, and the factors that shape this inconsistent effect are analyzed. Building on aspects of Parker's normative construct of “meta-regulation,” the article explores the extent to which her innovative notion of a learning-oriented approach to regulation might overcome some of the weaknesses of prevalent process-oriented approaches. It is proposed that under conditions of regulatory uncertainty or entrenched and prevalent non-compliance or both, meta-regulation is likely to have many advantages over other forms of process-oriented regulation. Yet realizing these advantages requires a rare combination of high regulatory capacity, a stable regulatory agenda, and a supportive political environment.     

The Priority of Legitimacy in Times of Political Transition

This paper interprets the relation between justice and legitimacy found in John Rawls's Political Liberalism and then applies it to the field of transitional justice. The author argues that transitional mechanisms can be better defended in terms of “legitimacy” than in “justice,” because the circumstances of transitional justice admit of reasonable disagreement over “just” public policy. In such circumstances, policy recommendations can always be construed as falling short of justice, thus raising plausible concerns over their normative justification. This paper attempts to answer such concerns by justifying transitional mechanisms as morally appropriate yet less than fully just. The author explains how the concept of legitimacy facilitates such a justification and how such a justification can secure the normative grounds that are ironically threatened by investigations relying on a concept of justice.     

The challenge of accountability in complex regulatory networks: The case of the Deepwater Horizon oil spill

A puzzle that faces public administrators within regulatory governance networks is how to balance the need for democratic accountability while increasingly facing demands from elected officials to optimize oversight of industry by utilizing the expertise of the private sector in developing risk‐based standards for compliance. The shift from traditional command and control oversight to process oriented regulatory regimes has been most pronounced in highly complex industries, such as aviation and deepwater oil drilling, where the intricate and technical nature of operations necessitates risk‐based regulatory networks based largely on voluntary compliance with mutually agreed upon standards. The question addressed in this paper is how the shift to process oriented regimes affects the trade‐offs between democratic, market, and administrative accountability frames, and what factors determine the dominant accountability frame within the network. Using post‐incident document analysis, this paper provides a case study of regulatory oversight of the deepwater oil drilling industry prior to the explosion of the Deepwater Horizon rig in the Gulf of Mexico, to explore how the shift to a more networked risk‐based regulatory regime affects the trade‐offs and dominant accountability frames within the network. The results of this study indicate that a reliance on market‐based accountability mechanisms, along with the lack of a fully implemented process‐oriented regulatory regime, led to the largest oil spill in US history.     

Accountability Mechanisms in Public Services: Activating New Dynamics in a Prison System

ABSTRACT

This qualitative study analyzes the activation of accountability mechanisms in public services and the changing dynamics between relevant actors. It remains unclear how accountability relationships emerge, when they are introduced, and under which circumstances administrative values are challenged over the course of administrative reforms. Our analysis of a Brazilian state prison system elucidates some of these elements by investigating a case in which an institutional crisis resulted in administrative reforms and new accountability dynamics. Our findings suggest that initiating accountability reforms before some services reach the level of severe crisis may be particularly difficult. We demonstrate that the development of accountability relationships is largely influenced by prominent actors capable of strategizing their actions in a collaborative fashion with other stakeholders. Additional layers of external regulation are also crucial to reduce the risks of political and regulatory capture, engage previously absent stakeholders, activate accountability mechanisms, and make reforms possible.     

Pedagogy of regulation: Strategies and instruments to supervise learning from adverse events

Diverse scholars have argued that standards and performance measurements are “instruments of control” that have a profound influence on the day‐to‐day lives of individuals and organizations, causing constitutive effects. Regulatory bodies increasingly use standards to oversee and monitor the regulated. This paper discusses the Dutch Health and Youth Care Inspectorate's use of both standards and a performance measurement system introduced to monitor how Dutch hospitals investigate and learn from serious adverse events. Rather than focusing on how standards affect regulated practices and organizations, our study examines how the use of these instruments affects the standard maker, that is, the Inspectorate. We explore how the Inspectorate's work practices, standards, and coupled performance measurement system influence its regulatory pedagogy, reviewing practices, and decisionmaking. We conclude that standards and performance measurement systems are not by definition “instruments of control” as their constitutive effects are (under)determined by the relationships in which they are enacted.     

Dynamics of NGO legitimacy: how organising betrays core missions of INGOs

International non‐governmental organisations (INGOs) are prominent actors in the international arena, aiming to improve the life of disadvantaged people. However, INGOs often do not succeed in doing this. Consequently, INGO legitimacy is regularly questioned. Increased transparency and tightened accountability mechanisms are often‐mentioned solutions to this problem. Based on an analysis of four dimensions of INGO legitimacy—normative, regulatory, cognitive and output legitimacy—we argue that this is not necessarily adequate. We conclude that INGO mission statements create a normative source of legitimacy, but that this, in itself, is not enough to ground INGO legitimacy: it also needs to be institutionalised and organised. However, as a result of power relations and resulting pressures for accountability and transparency, as defined by their external stakeholders, INGOs experience a permanent struggle to reconcile their mission with the requirements for regulatory, cognitive and output legitimacy. The more these stakeholders press for increased organisation of INGO work, the more the pursuit of the core objectives of INGOs is obstructed. We illustrate this argument with the case of the post‐Tsunami humanitarian intervention (2004/2005). Copyright © 2008 John Wiley & Sons, Ltd.     

Risk and the limits of governance: Exploring varied patterns of risk‐based governance across Europe

Risk‐based approaches to governance are widely promoted as universally applicable foundations for improving the quality, efficiency, and rationality of governance across policy domains. Premised on the idea that governance cannot eliminate all adverse outcomes, these approaches provide a method for establishing priorities and allocating scarce resources, and, in so doing, rationalise the limits of what governance interventions can, and should, achieve. Yet cursory observation suggests that risk‐based approaches have spread unevenly across countries. Based on a comparison of the UK, France, and Germany, this article explores the ways in which, and why, such approaches have “colonised” governance regimes in the UK, but have had much more limited application in France and Germany. We argue that the institutionally patterned adoption of risk‐based governance across these three countries is related to how entrenched governance norms and accountability structures within their national polities handle both the identification and acceptance of adverse governance outcomes.     

Capital united? Business unity in regulatory politics and the special place of finance

While organized business is a key actor in regulatory politics, its influence is often conditional on the level of unity or conflict occurring within the business community at any given time. Most contemporary regulatory policy interventions put pressure on the normal mechanisms of business unity, as they are highly targeted and sector‐specific. This raises the question of how business unity operates across a highly variegated economic terrain in which costs are asymmetric and free‐riding incentives are high. In this paper, we empirically assess patterns of business unity within regulatory policymaking across different regulated sectors. Our analysis utilizes data from hundreds of regulatory policy proposals and business community reactions to them in the telecommunications, energy, agriculture, pharmaceutical, and financial sectors over a variety of institutional contexts. We find considerable empirical support for the “finance capital unity” hypothesis – the notion that the financial sector enjoys more business unity than other regulated sectors of the economy. When the financial sector is faced with new regulations, business groups from other sectors frequently come to its aid.     

Revisiting the governance of privacy: Contemporary policy instruments in global perspective

The repertoire of policy instruments within a particular policy sector varies by jurisdiction; some “tools of government” are associated with particular administrative and regulatory traditions and political cultures. It is less clear how the instruments associated with a particular policy sector may change over time, as economic, social, and technological conditions evolve. In the early 2000s, we surveyed and analyzed the global repertoire of policy instruments deployed to protect personal data. In this article, we explore how those instruments have changed as a result of 15 years of social, economic and technological transformations, during which the issue has assumed a far higher global profile, as one of the central policy questions associated with modern networked communications. We review the contemporary range of transnational, regulatory, self‐regulatory, and technical instruments according to the same framework, and conclude that the types of policy instrument have remained relatively stable, even though they are now deployed on a global scale. While the labels remain the same, however, the conceptual foundations for their legitimation and justification are shifting as greater emphases on accountability, risk, ethics, and the social/political value of privacy have gained purchase. Our analysis demonstrates both continuity and change within the governance of privacy, and displays how we would have tackled the same research project today. As a broader case study of regulation, it highlights the importance of going beyond technical and instrumental labels. Change or stability of policy instruments does not take place in isolation from the wider conceptualizations that shape their meaning, purpose, and effect.