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.     

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.     

Intermediary roles in regulatory programs: Toward a role‐based framework

This paper develops a role‐based framework of intermediaries in regulatory programs. In examining the types of roles that organizations adopt in regulation and governance, we argue that roles have important implications for understanding organizational and program level dynamism and outcomes. We use the Regulator–Intermediary–rule‐Taker framework to describe how organizational roles can be adopted through assignment, appropriation, or promotion. We then go deeper into how intermediaries adopt a variety of different roles in key regulatory programs. We examine generic intermediary roles across programs that involve four main groups of activities: creating and/or organizing, coordinating between programs, supporting implementation, and voicing an opinion. All in all, our role‐based framework allows for a novel relational way to understand interorganizational and institutional dynamism in complex, interactive, and ever‐changing regulatory regimes.     

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.     

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.     

Salt,high blood pressure,and performance‐based regulation

Performance‐based regulation is a new approach to public health promotion. The aim of this article is to explain how this idea might be applied to the public health goal of reducing salt consumption as a way of reducing high blood pressure and thereby saving lives. Performance‐based regulation is compared with competing regulatory strategies.     

Enabling global principle‐based regulation: The case of risk analysis in the Codex Alimentarius

This paper deals with the creation of global principle‐based standards. For such standards to be accepted and effective, particular conditions must be fulfilled. One such condition, little explored, is that standard‐makers and ‐takers share knowledge about the meaning of the principles, as well as the practices through which they are likely to be applied. The paper shows that this condition is fulfilled when transnational cultural systems exist, by means of which both types of actors engage in the explication and representation of their practices so that a common, standard understanding emerges of how principles may be interpreted on the ground and informs the negotiations. A transnational cultural system is a crucial governance infrastructure to set global standards, as shown by the long history of creating a risk analysis guideline by the Codex Alimentarius, the inter‐governmental body for food standards.     

Reform of Press Self‐regulation

In July 2011 following the revelations about phone hacking, all three political party leaders called for radical reform of the current system of press self‐regulation. Those within the press itself, including the Daily Mail, also conceded that serious changes were necessary. At the same time both politicians and press stressed the importance of protecting the freedom of the press and preventing undue government interference. Starting with both these pre‐requisites in mind—the creation of a new independent system and the protection of press freedom—this essay suggests four possible models of reform. For each model the essay sketches the basic parameters of reform and then suggests three problems associated with each. It argues against those who claim that anything more than small changes to the status quo would be too costly, would threaten press freedom, or would be technologically impractical.     

Responsive regulation in public‐private partnerships: Between deterrence and persuasion

Design‐Build‐Finance‐Maintain‐Operate (DBFMO) contracts are a particular type of public‐private partnership whereby governments transfer the responsibility for the design, construction, financing, maintenance, and operation of a public infrastructure or utility service building to a multi‐headed private consortium through a long‐term performance contract. These arrangements present a typical principal‐agent problem because they incorporate a “carrot and stick” approach in which the agent (consortium) has to fulfill the expectations of the principal (procurer). This article deals with a neglected aspect in the literature related to the actual use of “the sticks or sanctions” in DBFMOs and assesses to what extent and under which conditions contract managers adopt a deterrence‐based enforcement approach or switch to a persuasion‐based approach, specifically when the contract clauses require the use of (automatic) deterrence. An empirical analysis of four DBFMOs in the Netherlands shows that the continuation of service delivery, the need to build trust, and the lack of agreement on output specifications play a role in the willingness of the procurer to apply a more responsive behavior that uses persuasion, even when deterrence should be automatically applied. © 2016 John Wiley & Sons Australia, Ltd     

The Beecroft Report: Pandering to Popular Perceptions of Over‐regulation

The Coalition government made a commitment to review employment law to ensure flexibility for both parties and enhance business's competitiveness. This led the prime minister to ask venture capitalist Adrian Beecroft to undertake the task of identifying the areas of employment law that presented the greatest burden, and making recommendations for reform. The Beecroft report identifies 16 areas for reform, but the lack of evidence to support his conclusions severely undermines his case. The challenge of increasing employment in a stagnant economy is substantial, and Beecroft's recommendations, if implemented, are unlikely to make a difference. Businesses need to see increased demand and access to finance if they are to take on more workers, but government must also develop a long‐term vision of the UK labour market and address weaknesses that existed before the financial crisis.     

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.     

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.     

When soft regulation is not enough: The integrated pollution prevention and control directive of the European Union

Recent debates regarding the effectiveness of regulatory policymaking in the European Union (EU) focus on the merits of soft, non-binding forms of regulation between public and private actors. The emergence of less coercive forms of regulation is analyzed as a response to powerful functional pressures emanating from the complexity of regulatory issues, as well as the need to secure flexibility and adaptability of regulation to distinctive territorial economic, environmental, administrative, and social conditions. In this article we empirically assess the above normative claims regarding the effectiveness of soft regulation vis-à-vis uniformly binding legislation. We draw on an exploratory investigation of the application of the Integrated Pollution Prevention and Control Directive of the EU in four countries. Our study reveals that effectiveness in the application of soft policy instruments is largely contingent upon strong cognitive, material, and political capacities of both state regulators and industrial actors involved in regulatory policymaking. In the absence of those conditions, the application of soft, legally non-binding regulation may lead to adverse effects, such as non-compliance and the “hollowing out” of the systems of environmental permits to industry. In the medium term, such developments can undermine the normative authority of the EU.     

Religious tides: The time‐variant effect of religion on morality policies

Morality policies evince a much closer relationship to religious doctrines than is the case in other policy areas and hence constitute a most likely case for the observation of religious effects on policymaking and regulatory change. Yet we still lack generally accepted answers to the questions of whether and how religion matters to morality policy. In this paper, we present a theoretical argument that helps to overcome the seemingly contradictory expectations derived from the secularization and religion matters hypotheses. We postulate a bottleneck effect of religious opposition: while religious influence matters most during early stages of the policy process when the problem definition of a moral issue is still in flux, it diminishes during later stages when the issue has made it onto the political agenda. We find evidence of the bottleneck effect in a dataset of policy permissiveness covering 26 countries and spanning 50 years for five morality policies (abortion, euthanasia, homosexuality, pornography, and same‐sex marriage). The data is analyzed via a multilevel model and using Bayesian inference.     

De facto independence after delegation: A fuzzy‐set analysis

The phenomenon of delegating public authority from elected politicians (or ministries headed by elected politicians) to formally independent regulatory agencies (RAs) is becoming increasingly widespread. This paper examines the relation between formal independence, as prescribed in the constitutions of agencies, and de facto independence. Toward this end, it conceptualizes and assesses de facto independence of RAs, and discusses organizational, institutional, and political explanations for divergence from formal independence. The complex relations between de facto and formal independence are examined with a cross‐national, cross‐sectoral comparison of 16 Western European RAs using fuzzy‐set analysis. The results show that formal independence is neither a necessary nor a sufficient condition for explaining variations in the de facto independence of agencies. Other factors, such as the lifecycle of agencies, veto players, and European networks of agencies, have a decisive impact.     

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.     

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.