When risk‐based regulation aims low: Approaches and challenges

Risk‐based regulation is becoming a familiar regulatory strategy in a wide range of areas and countries. Regulatory attention tends to focus, at least initially, on high risks but low‐risk regulatees or activities tend to form the bulk of the regulated population. This article asks why regulators need to address low risks and it outlines the potential difficulties that such risks present. It then considers how regulators tend to deal with lower risks in practice. A body of literature and survey‐based research is used to develop a taxonomy of intervention strategies that may be useful in relation to low‐risk activities, and, indeed, more widely. In an article to be published in the subsequent issue of this journal, we will then develop a strategic framework for regulators to employ when choosing intervention strategies and we will assesses whether, and how, such a framework could be used by regulatory agencies in a manner that is operable, dynamic, transparent, and justifiable.     

When experimentalist governance meets science‐based regulations; the case of food safety regulations

This paper examines a central regulatory mechanism that shapes food economies. Food safety regulations in the United States rely on a science‐based transnational regulatory system known as Hazard Analysis and Critical Control Point (HACCP), which bears central features of what Sabel and Zeitlin identified as experimentalist governance: a new form of regulation that is flexible, responsive, and involves stakeholders in iterative and direct democratic deliberation. The core theoretical question the paper examines is what the reliance on science means for the promise of an experimentalist policy regime to enable a new form of democratic politics. Based on a case study of the HACCP system implemented by the US Department of Agriculture's Food Safety and Inspection Service since the late 1990s, HACCP's reliance on food science has acted as an effective divider between producers who were able to take advantage of the system's flexibility and others for whom this was challenging. There is clear evidence that HACCP posed a disproportionate burden on small processors and that some of them were unable to adapt to the requirements of the regulatory system. In so far as the HACCP‐based food safety regulations delineated the kind of producer that thrived in the system and contributed to the demise of another set of producers, the regulatory system shaped market outcomes.     

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.     

Innovation and public space: The developmental possibilities of regulation in the global south

Important product and process innovations are often developed in “public spaces” that promote collaboration and provide shelter from market competition. Given that most collaborative spaces are costly to establish, the possible implications are bleak for economically strapped developing countries. This paper highlights a less conspicuous – if not unknown – source of collaborative space: the regulatory process. Regulators can induce innovation by promoting collaboration across organizational, sectoral, and disciplinary boundaries in the interest of regulatory compliance. This paper documents the innovative consequences of efforts to regulate the use of lead‐based glazes in the Mexican ceramics industry and reconsiders several recent studies of upgrading in other countries that appear to have been driven, at least in part, by the regulatory process. Drawing on these cases, this paper makes four primary points: (i) that innovation in regulatory spaces is more common than previously acknowledged and is producing meaningful improvements in product quality and working conditions in developing economies; (ii) that promoting innovation in these regulatory spaces is an important developmental tool for countries that are “regulation‐takers” and have many low‐tech sectors; (iii) that this dynamic extends current conceptions of regulatory discretion, as well as development literature on state‐society synergies; and (iv) that establishing collaborative public spaces as a common conceptual framework is a critical step toward understanding the consequences of social regulation on upgrading.     

The limits and variety of risk‐based governance: The case of flood management in Germany and England

Risk‐based governance is argued by many to hold the promise of a more rational and efficient state, by making explicit the limitations of state interventions and focusing finite resources on those targets where probable damage is greatest. This paper challenges the assumption that risk‐based governance has the potential for universal and uniform application, by comparing contemporary flood management in Germany and England. On first inspection, flooding appears to be a paradigmatic case of risk colonizing European policy discourses, with the traditional notion of flood defense giving way to flood risk management in the context of climate change, increasingly frequent flood disasters, political and cost pressures on flood protection, and publicly available European‐wide flood assessments. Drawing on in‐depth empirical research, this paper shows how the role, and even the definition, of “risk” is institutionally shaped, and how the respective institutional environments of German and English flood management practices impede and promote risk colonization. In particular, the use and conceptualizations of risk in governance are variously promoted, filtered, or constrained by the administrative procedures, structures, and political expectations embedded within flood management and wider polities of each country. The findings of this research are important for the design and implementation of supranational policies and regulations that endorse risk‐based approaches, such as the recent EU Flood Directive, as well as scholarly debate as to how to legitimately define the limits of governance in the face of uncertainty and accountability pressures.     

Horses for courses: China's accommodative approach to food standard‐setting in response to the internationalization of regulation

This paper examines the evolution of China's food standard‐setting procedures from both domestic and international perspectives, particularly in the context of the internationalization of regulation. After the reform and opening‐up in 1978, state actors and leading enterprises monopolized the process of national food standard setting. With further participation in the global economy in the 21st century, China has become familiar with the international standard‐setting procedures and has modeled its domestic policymaking on these practices. This has resulted in a more transparent, inclusive, scientific, pluralized, and consensus‐based form of decisionmaking. By contrast, the standards of the strategic industries have been harmonized to the standards of international counterparts through a top‐down and authoritarian approach. This paper argues that China uses an accommodative approach, trichotomizing suitable standards and decisionmaking procedures in terms of inclusiveness and transparency, which suits the developmental needs of the domestic market, food export markets, and strategic industries.     

Missing links between regulatory resources and risk concerns: Evidence from the case of food safety in China

Do resources available to regulatory agencies matter for public perceptions of social risks? In this paper we use the case of food safety in China to empirically examine the relationship between regulatory resources and risk concerns. The multilevel model estimates suggest that neither regulatory revenue nor personnel is significantly related to public concerns over food safety. There is also no significant interaction effect between regulatory resources and food scandals. Despite the fact that sufficient fiscal revenue and manpower are the prerequisites of effective food safety regulation, they do not elicit more favorable public perceptions. These are the two missing links leading to the insignificant effect of regulatory resource inputs. First, ineffective distribution and deployment of resources and the lack of external participation retard the growth of regulatory capacity. Second, underinvestment in risk communication and the amplification effect of risks undermine regulatory legitimacy. We discuss the theoretical and policy implications of the results, and conclude with research limitations and suggestions for future research.     

Limits to non‐state market regulation: A qualitative comparative analysis of the international sport footwear industry and the Fair Labor Association

Non‐state market regulation has become a central focus and continues to receive scholarly attention. The present paper provides an assessment of the conditions under which multinational firms join a multi‐stakeholder certification initiative. The cases of the Fair labor Association and 17 international sport footwear companies have been selected for this purpose. A Qualitative Comparative Analysis of the 17 cases is performed. The paper argues that the combination of sustained NGO pressure and public ownership of a firm is a necessary precondition for firms joining a multi‐stakeholder certification initiative. The theoretical and policy implications of this result are discussed.     

Japanese civil society in global governance: the case of 2015 UN World Conference on disaster risk reduction

In 2015, the Hyogo Framework for Action on disaster risk reduction (DRR) expired, necessitating the introduction of a new international agreement. This article investigates the activities and achievements of the Japan civil society organization coalition for the 2015 UN World Conference on DRR (JCC2015) from the point of view of its involvement in the shaping of the new Sendai Framework for DRR. Although JCC2015 contributed to agenda setting and policy development processes and managed to secure recognition for its position on nuclear risk at a regional level, its participation did not translate into impact on the Sendai Framework to the extent it wished to achieve. The article’s findings testify to the on-going and active inclusion of non-governmental stakeholders in the UN-led global policy-making processes concerning reducing disaster risk, but they also illustrate difficulties that actors who aim to introduce new elements into the agenda need to tackle.     

The effectiveness of NGO self‐regulation: theory and evidence from Africa

Non‐governmental organizations (NGOs) play an increasingly important role in public service provision and policy making in sub‐Saharan Africa, stimulating demand for new forms of regulatory oversight. In response, a number of initiatives in NGO self‐regulation have emerged. Using cross‐national data on 20 African countries, the article shows that self‐regulation in Africa falls into three types: national‐level guilds, NGO‐led clubs and voluntary codes of conduct. Each displays significant weaknesses from a regulatory policy perspective. National guilds have a broad scope, but require high administrative oversight capacity on the part of NGOs. Voluntary clubs have stronger standards but typically have much weaker coverage. Voluntary codes are the most common form of self‐regulation, but have the weakest regulatory strength. This article argues that the weakness of current attempts to improve the accountability and regulatory environment of NGOs stems in part from a mismatch between the goals of regulation and the institutional incentives embedded in the structure of most self‐regulatory regimes. The article uses the logic of collective action to illustrate the nature of this mismatch and the tradeoffs between the potential breadth and strength of various forms of NGO self‐regulation using three detailed case studies. Copyright © 2008 John Wiley & Sons, Ltd.     

When doctors shape policy: The impact of self‐regulation on governing human biotechnology

This paper investigates the development and adoption of governance modes in the field of human biotechnology. As the field of human biotechnology is relatively new, voluntary professional self‐regulation constituted the initial governing mode. In the meantime, with the exception of Ireland, all Western European countries have moved toward greater state intervention. Nevertheless, they have done so in contrasting ways and the resulting governance modes for assisted reproductive technology and embryonic stem‐cell research vary greatly. Instead of imposing their steering capacity in a “top‐down” fashion, governments have taken pre‐existing self‐regulatory arrangements in the field into account and built up governance mechanisms in conjunction with private actors and pre‐existing modes of private governance. Our analysis demonstrates that the form and content of the initial self‐regulation explain why the self‐steering capacity of the medical profession was largely or at least partially preserved through hybrid governance systems in Britain and Germany, while in France the self‐regulation was entirely replaced by governmental intervention.     

Understanding “corruption” in regulatory agencies: The case of food inspection in Saudi Arabia

Corruption is a relatively neglected topic in studies of regulatory agencies. The label is applied to a wide range of deviations from behavioral standards ultimately derived from Weber's account of the ideals of Prussian bureaucracy. This paper draws on a study of the work of Saudi Food Inspectors to argue that it is unhelpful to reduce a complex phenomenon to simple allegations of malpractice that can be managed by disciplinary sanctions. Our data show that irregular behavior by street‐level agents may be deeply embedded in the expectations that members of a society have of one another. It is less a matter of personal gain than of maintaining one's recognition as a fellow citizen. Such behavior is not easily changed through sanctions directed at individual inspectors. Our study does not exclude the possibility that irregular behavior can be motivated by personal gain, and properly managed by criminal or similar penalties. However, it does propose that research should be more sensitive to the contexts within which irregular behavior occurs rather than treating “corruption” as a uniform and homogenous phenomenon.     

From disguised protectionism to rewarding regulation: The impact of trade‐related labor standards in the Dominican Republic

Policymakers in the Dominican Republic have responded to foreign pressure by rewriting their labor laws and revitalizing their labor ministry. What are the likely consequences? Is aggressive labor law enforcement more likely to protect vulnerable workers from abuse and exploitation or to undermine their ability to compete for labor‐intensive employment in an unforgiving world economy? And what are the broader implications of the answer? I address these questions by analyzing qualitative as well as quantitative data on workplace regulators empowered by the Dominican Republic in response to trade‐related labor standards imposed by the United States and find that they reconcile social protection with economic adjustment by simultaneously discouraging “low road” employment practices like informality, union‐busting, and the exploitation of child labor, and encouraging “high road” alternatives that link firms, farms, and families, on the one hand, to public educational, training, and financial institutions, on the other. The result is a potentially inclusive alternative to the repressive industrial relations regime that fueled export‐led development – and the East Asian “miracle” in particular – in the late twentieth century.     

Community‐based environmental management in Vietnam: the challenge of sharing power in a politically guided society

The article presents the challenges of introducing a ‘shared‐power’ community‐based management approach in the socialist society of Vietnam. The Portland State University (PSU)'s Oregon Environmental Management Alliance partnered with Vietnamese organisations in a shared‐power pilot project aimed at strengthening stakeholder participation in environmental improvements in two communities along the Tan Hoa‐Lo Gom (THLG) canal in Ho Chi Minh City (HCMC). The Oregon Solutions model, a community‐based environmental management (CBEM) approach, was adapted for the shared‐power project. This article analyses three core ingredients of the shared‐power CBEM approach: multiple stakeholder structure, dispersed authority arrangements and diverse policy instruments. Critical reflections are offered on the meaning and appropriateness of these shared‐power ingredients when they are reinvented in Vietnam's politically guided governance system. Copyright © 2007 John Wiley & Sons, Ltd.     

Mobilising evidence in public policy: The contribution of the evidence provider

This article contributes to the conceptualisation of evidence‐based policy through providing a framework of the key factors that influence research utilisation, including those that shape the quality of evidence provided. We apply this framework to an analysis of public policy to regulate the remuneration of freight truck drivers to improve workplace safety in their industry. Recent policymaking concerning the regulation of truck drivers’ remuneration in Australia provides an opportunity to examine the quality and utilisation of research evidence by external evidence providers in opposing political contexts. This article suggests the need for informed and vigilant scrutiny of the contributions of evidence providers to government policymaking, particularly in the case of wicked policy problems about which there are sustained ideological differences that underpin problematisation, research interpretation, and conceivable policy solutions.     

The politics of de‐delegation: Regulatory (in)dependence in Turkey

This essay explores the rise and decline of regulatory independence in Turkey. Framing the ongoing process of limiting independence of these agencies as the politics of de‐delegation, it raises the question of why Turkish regulatory agencies have become subject to increasing political intervention. Contending that institutional legacies and mounting illiberal predispositions of the Turkish state facilitate the politics of de‐delegation, the essay focuses on centralization, executive discretion, and politicization of bureaucracy as the major institutional legacies. Then it briefly discusses formal and informal mechanisms of political intervention, which have impaired the independence of the regulatory agencies.     

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.     

The many uses of regulatory impact assessment: A meta‐analysis of EU and UK cases

Research on regulation has crossed paths with the literature on policy instruments, showing that regulatory policy instruments contain cognitive and normative beliefs about policy. Thus, their usage stacks the deck in favor of one type of actor or one type of regulatory solution. In this article, we challenge the assumption that there is a predetermined relationship between ideas, regulatory policy instruments, and outcomes. We argue that different combinations of conditions lead to different outcomes, depending on how actors use the instrument. Empirically, we analyze 31 EU and UK case studies of regulatory impact assessment (RIA) – a regulatory policy instrument that has been pivotal in the so‐called better regulation movement. We distinguish four main usages of RIA, that is, political, instrumental, communicative, and perfunctory. We find that in our sample instrumental usage is not so rare and that the contrast between communicative and political usages is less stark than is commonly thought. In terms of policy recommendations, our analysis suggests that there may be different paths to desirable outcomes. Policymakers should therefore explore different combinations of conditions leading to the usages they deem desirable rather than arguing for a fixed menu of variables.     

The regulatory state and the UK Labour Government's re‐regulation of provision in the English National Health Service

Following its election in 1997, the UK Labour Government embarked upon a 10 year program of reform of the National Health Service (NHS). By 2005, Labour had doubled the NHS budget and dramatically transformed the shape of the Service. In England, a basic characteristic of the NHS is the organizational split between provider and commissioning agencies. In this article I argue that Labour's re‐regulation of NHS provision is a coherent representation of the influence of the “regulatory state” in restructuring arrangements between government, market, and society. The article offers an account of the regulatory state based on a discussion of five key theses: The Audit Society, Regulation Inside Government, The New Regulatory State, The British Regulatory State, and Regulatory Capitalism. The article unfolds Labour's program of reform across themes common to these accounts: the division of labor between state and society, the division of labor within the state, the formalization of previously informal controls, and the development of meta‐regulatory techniques of enforced self‐regulation. It concludes that the key themes of the regulatory state are at work in Labour's transformation of NHS provision and it offers a discussion of the implications for both scholars of regulation and the UK and European health policy literature.