The Regulatory Gift: Politics,regulation and governance

This article introduces the “regulatory gift” as a conceptual framework for understanding a particular form of government‐led deregulation that is presented as central to the public interest. Contra to theories of regulatory capture, government corruption, “insider” personal interest, or profit‐seeking theories of regulation, the regulatory gift describes reform that is overtly designed by government to reduce or reorient regulators’ functions to the advantage of the regulated and in line with market objectives on a potentially macro (rather than industry‐specific) scale. As a conceptual framework, the regulatory gift is intended to be applicable across regulated sectors of democratic states and in this article the empirical sections evidence the practice of regulatory gifting in contemporary United Kingdom (UK) politics. Specifically, this article analyses the 2011 UK Public Bodies Act, affecting some 900 regulatory public bodies and its correlative legislation, the 2014 Regulator's Code, the 2015 Deregulation Act, and the 2016 Enterprise Bill. The article concludes that while in some cases the regulatory gift may be aligned with the public interest – delivering on cost reduction, enhancing efficiency, and stimulating innovation – this will not always be the case. As the case study of the regulatory body, the UK Human Fertilisation and Embryology Authority, demonstrates, despite the explicit claims made by legislators, the regulatory gift has the potential to significantly undermine the public interest.     

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.     

Gorillas in the closet? Public and private actors in the enforcement of transnational private regulation

This paper examines to what extent the background presence of state regulatory capacity – at times referred to as the “regulatory gorilla in the closet” – is a necessary precondition for the effective enforcement of transnational private regulation. By drawing on regulatory regimes in the areas of advertising and food safety, it identifies conditions under which (the potential of) public regulatory intervention can bolster the capacity of private actors to enforce transnational private regulation. These involve the overlap between norms, objectives, and interests of public and private regulation; the institutional design of regulatory enforcement; compliance with due process standards; and information management and data sharing. The paper argues that while public intervention remains important for the effective enforcement of transnational private regulation, governmental actors – both national and international – should create the necessary preconditions to strengthen private regulatory enforcement, as it can also enhance their own regulatory capacity, in particular, in transnational contexts.     

Regulatory dynamism of environmental mobilization in urban China

In China, urban middle class mobilization against potential pollution risk has become increasingly common. This article examines this phenomenon through a detailed case study of a 2009 anti‐waste incinerator campaign in the Panyu District of Guangzhou, which culminated in a sizeable public protest and government U‐turn. This episode revealed tension between the narrow, state‐centered regulatory model fixated on end‐of‐pipe pollution control, and a much broader decentered approach advocated – and practiced – by project opponents, which incorporated public consultation and much greater emphasis on upstream waste reduction and sorting. In the process, the Panyu campaign progressed beyond a case of “regulation by escalation,” whereby beneficial regulations are belatedly enforced following populist pressure. Instead, it transformed into an open dialogue between a plurality of actors, including citizens, journalists, experts, and officials, about what regulation should constitute and who should determine acceptable levels of risk. By focusing on the processes through which regulatory issues emerged and changed during the Panyu campaign, this article highlights the regulatory dynamism of environmental mobilization in a context of regulatory uncertainty, and campaigns against “locally unwanted land uses” more broadly.     

Compliance costs,regulation, and environmental performance: Controlling truck emissions in the US

When explaining regulatory policymaking and the behavior of regulated business firms, scholars have supplemented economic models by emphasizing the role of public‐regarding entrepreneurial politics and of normative pressures on firms. This article explores the limits of such entrepreneurial politics and “social license” pressures by examining regulation of emissions from diesel powered trucks in the US. We find that the economic cost of obtaining the best available control technology – new model lower emissions engines – has: (i) limited the stringency and coerciveness of direct regulation of vehicle owners and operators; (ii) dwarfed the reach and effectiveness of the governmental programs that subsidize the purchase of new less polluting vehicles; and (iii) elevated the importance of each company’s “economic license”– as opposed to its “social license”– in shaping its environmental performance. The prominence of this “regulatory compliance cost” variable in shaping both regulation and firm behavior, we conclude, is likely to recur in highly competitive markets, like trucking, that include many small firms that cannot readily either afford or pass on the cost of best available compliance technologies.     

Can the hidden hand of the market be an effective and legitimate regulator? The case of animal welfare under a labeling for consumer choice policy approach

In Australia, labeling for consumer choice, rather than higher government regulation, has become an important strand of the policy approach to addressing food animal welfare. This paper illustrates the usefulness of “regulatory network analysis” to uncover the potentials and limitations of market‐based governance to address contentious yet significant issues like animal welfare. We analyzed the content of newspaper articles from major Australian newspapers and official policy documents between 1990 and 2014 to show how the regulatory network influenced the framing of the regulatory problem, and the capacity and legitimacy of different regulatory actors at three “flashpoints” of decisionmaking about layer hen welfare in egg production. We suggest that the government policy of offering consumers the choice to buy cage free in the market allowed large‐scale industry to continue the egg laying business as usual with incremental innovation and adjustment. These incremental improvements only apply to the 20 percent or so of hens producing “free‐range” eggs. We conclude with a discussion of when and how labeling for consumer choice might create markets and public discourses that make possible more effective and legitimate regulation of issues such as layer hen welfare.     

Institutionalizing fairness in financial markets: Mission impossible?

This article analyzes the institutionalization of process‐oriented regulation, namely: regulatory institutions that allow firms to adapt regulation to their individual circumstances, while holding them to account for the adequacy and efficacy of their internal compliance systems. The article's main focus is on the strategies sought by compliance professionals to attain managers' receptiveness to regulatory expectations. It analyzes British financial firms' responses to a process‐oriented regulatory initiative, which sought to transform the widespread culture of product “mis‐selling” in this industry. Three key arguments and hypotheses are put forward: first, it is suggested that the existing theoretical literature on process‐oriented regulation overly stresses managers' rational, profit‐maximizing motivations for (non‐)compliance, whilst overlooking their emotive motivations. Second, it is proposed that managers' emotive resistance is expected when regulatory expectations challenge firms' “organizational identities” and thereby their individual identities. Third, it is hypothesized that when process‐oriented regulation poses a threat to organizations' identities, its institutionalization will entail delegation of the design and subsequent implementation of compliance systems to managers outside compliance, and reframing of regulatory expectations into existing businesses discourses and methodologies.     

“Capacity‐building” in global Internet governance: The long‐term outcomes of “multistakeholderism”

“Capacity building” is a catch phrase from the UN development discourse. In recent years, it has entered the global Internet governance (IG) arena. At World Summit of the Information Society (WSIS 2003), “capacity building” was identified as a key public policy issue. It is proposed in this study that ‘capacity building’ be defined in a different manner – as the principal outcome of the experimental multistakeholder (MSH) process in global IG. The open and inclusive process of stakeholder deliberation leads to accumulation of intellectual capital, development of relational infrastructure for the domain (epistemic community), and emergence of common global consciousness. When cast as a capacity‐building process, MSH collaboration at global Internet governance arenas exhibits long‐term and large‐scale intangible outcomes. This study contributes to the understanding of the capacity‐building potential of MSH collaboration in IG. By employing concepts from International Relations and Organizational Learning, the author develops a model of tangible and intangible outcomes of MSH collaboration. This unique model can be used for studying the effects in other stakeholder venues of governing global resources and processes.     

Assessing Public Procurement of Innovation as a Cross‐Domain Policy: A Framework and Application to the Chinese Context

Despite the fact that public procurement of innovation (PPI) has become an increasingly popular policy tool, there has been a lack of holistic approaches to assessing policies promoting PPI. This article attempts to address this gap by proposing a framework which links the multiple levels and aspects related to the design and implementation of PPI policies. By adopting a systemic understanding of “public procurement” as well as “innovation policies,” this article positions PPI as a cross‐domain policy which is inherently a mix of procurement and innovation‐related interventions. The article develops an assessment framework using “vertical coherence” and “horizontal coherence” as criteria. It then illustrates the use of the framework by applying it to PPI policies in China. The framework can aid the conduct of ex ante as well as ex post assessment of PPI policies, which can further inform policy design, implementation, and learning.     

Approval regulation and endogenous consumer confidence: Theory and analogies to licensing,safety, and financial regulation

Safety regulation – in the form of pre-market approval, licensure, screening, and product entry limitations – governs numerous market realms, including consumer finance. In this article, we ask whether the effects of safety regulation go beyond safety and affect consumers' beliefs about the distribution of products they can use. We model “approval regulation,” where a government regulator must approve the market entry of a product based upon observable, unbiased, and non-anticipable experiments. We show that even if regulator and firm disagree about only quality standards, the disagreement induces the firm to provide more information about its product than it would in the absence of regulation. Put differently, purely first-order disagreements in regulation generate second-order consequences (more certainty about product quality). These second-order consequences of regulation are sufficient to generate first-order effects among end-users (more consumption of superior products), even when users are risk-neutral. In other words, even if approval regulation produces little or no improvement in safety or quality, it still aggregates information useful to “downstream” product users; these users will exhibit higher consumption and will more readily switch to superior products. In contrast with libertarian analyses of entry regulation and licensure, the model predicts that entry restrictions may be associated with greater product or service utilization (consumption) as well as with greater price sensitivity among consumers. Because contemporary cost–benefit analyses ignore these second-order effects, they are unlikely to capture the possible confidence effects of approval regulation.     

Collaborative Procurement: A Relational View of Buyer–Buyer Relationships

Collaborative procurement is increasingly on the policy agenda in many countries, yet problems with collaboration occur. This article adopts a relational theory perspective to explore the enablers of and barriers to collaboration in purchasing, helping identify success factors. The authors adopted a mixed qualitative/quantitative methodology and interviewed 51 senior staffers in the United Kingdom. They found that collaborative public procurement is hindered by local politics and differing priorities, supplier resistance, reliance on suppliers for data, and a lack of common coding systems. Enabling factors for collaborating with local governments include dealing with local issues and buying from small and medium‐sized enterprises. For health care providers, important themes are product innovation and ensuring supply. The authors develop a list of enabling factors and show their effect on collaboration success. This may assist policy makers in identifying areas of guidance and help practitioners prevent problems in collaboration.     

When risk‐based regulation aims low: A strategic framework

This article develops a strategic framework for regulators to employ when choosing intervention strategies for dealing with low risks and reviewing performance, building on the analysis by the same authors in the previous edition of this journal. The framework occupies the operational “middle ground” between risk analysis and formal enforcement action. At its core is a matrix, the Good Regulatory Intervention Design (GRID), which provides a framework to categorize sites or activities on the basis of two factors: the nature of the risk and the nature of the regulatee. Using GRID, regulators can select which intervention tools to use, and determine the overall level of regulatory intensity that should apply. GRID is accompanied by the Good Regulatory Assessment Framework (GRAF) for agencies to use in reviewing their performance and provides a step‐by‐step process for enabling “double loop learning.” The article also argues that the process of developing such a framework highlighted the extent to which “low risk” and “high risk” regulation are distinct. “Low risk” means “low priority.” Justifying why certain risks should not receive much regulatory attention requires a particular type of engagement, and has a bearing on the regulatory strategies that are adopted.     

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.     

Infinitely repeated contests: How strategic interaction affects the efficiency of governance

Contests over the scope and strength of regulation and governance are commonplace – and commonly repeated. The same players vie for the same government prize year after year: for example, environmental standards, government contracts, research grants, and public good provision. The open question is whether more rents are dissipated in repeated regulatory contests than onetime competitions. This question matters for regulation and governance because societies should design policies to waste the fewest scarce resources. According to some, the answer is “no”, but others say “yes”– more resources are wasted when people compete repeatedly for the same government prize. Herein, we use two game theoretic equilibrium concepts to help untangle the answer. Our results suggest non‐myopic contestants are more likely to behave as partners than rivals – provided the context is relatively sterile. Several common complications help break up the tacit partnership, including a disparity in relative ability, a shrinking prize, and additional players.     

The regulatory style of environmental governance in China: the case of EIA regulation in Shanghai*

The body of literature that examines how institutional contexts affect environmental governance in advanced industrial countries finds that style of environmental regulation is country‐specific. In the pluralist form of democracy like the United States, environmental policy formulation involves bargaining and compromises among interest groups and regulation enforcement through relatively formal and legalistic means. In the corporatist form of democracy like Sweden and Great Britain, in contrast, environmental policies are more accommodating to divergent societal interests and tend to be less formal in their enforcement. These variations in regulatory style have been attributed to differences in basic constitutional structures, regime types and cultures. How do institutional contexts affect the style of environmental regulation in China, which is both a non‐democratic and developing country? This article examines China's regulatory style by focusing on environmental impact assessment (EIA) regulation in Shanghai. The Shanghai EIA system is analyzed in terms of policy ideology, policy content, regulatory process, public participation and policy consequences. It is shown that China's being a single‐party regime with a ‘rule of persons’ tradition has heavily shaped its environmental governance. Based on Shanghai experience, China's style can be characterized as formal in requirement, agency‐dominated in the regulatory process, legalistic in enforcement, and informal politics as the substance of regulation. Copyright © 2000 John Wiley & Sons, Ltd.     

Lobbying in developing countries: The Peruvian case

In the transparent exercise of democracy, there is a technique of persuasion called lobbying. The technique involves applying persuasion by representing one's own interests or the interests of third parties. In literature, lobbying is therefore related to interest groups and pressure groups. It is considered a key tool to guarantee equal conditions in the decision‐making process that promotes democracy and citizen control is transparency. Lobbying, also called interest management, is a legitimate activity that in Latin America has a bad press and consequently a bad reputation. However, it is a very important input into the democratic process. According to the NGO Legislative Directory: “It allows the general public to engage in the public decision‐making process, and it has the potential to improve the quality of public decisions by opening channels for diverse opinions and thematic experts.” It is an activity that is put into practice in all countries of the world and that has a regulatory background in most countries of the northern hemisphere and in some South American countries such as Peru and Chile. The general spirit of these norms is to “transform a suspected irregular activity into a deliberation and democratic game,” justify the Legislative Directory.     

Process choice

Regulation scholars have long searched for the best tools to use to achieve public policy goals, generating an extensive body of research on what has become known as instrument choice. By contrast, analysis of options for structuring how officials make regulatory decisions – process choice – remains in relative infancy. Notwithstanding the emphasis legal scholars and political economists have placed on administrative procedures, surprisingly little research has investigated why regulators choose among different process options or what value they and the public receive from different choices. In their book, Regulation by Litigation, Andrew Morriss, Bruce Yandle, and Andrew Dorchak make a significant contribution by empirically and normatively examining regulators' choices between notice‐and‐comment rulemaking, negotiated rulemaking, and what they call “regulation by litigation.” This review article considers three central questions about regulation by litigation. First, how if at all does regulation by litigation differ from other uses of litigation to achieve policy goals? Second, why do regulators choose litigation over other process options? Third, is regulation by litigation as bad as Morriss, Yandle, and Dorchak say it is? By addressing these conceptual, empirical, and normative questions, this review article not only reveals the specific strengths and limitations of the book, Regulation by Litigation, but also highlights more general opportunities and challenges for future research on process choice.     

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.     

Understanding the rise of the regulatory state of the South*

This paper, and the special issue it introduces, explores whether, and how, the rise of the regulatory state of the South, and its implications for processes of governance, are distinct from cases in the North. With the exception of a small but growing body of work on Latin America, most work on the regulatory state deals with the US or Europe, or takes a relatively undifferentiated “legal transplant” approach to the developing world. We use the term “the South” to invoke shared histories of many countries, rather than as a geographic delimiter, even while acknowledging continued and growing diversity among these countries, particularly in their engagement with globalization. We suggest that three aspects of this common context are important in characterizing the rise of the regulatory state of the South. The first contextual element is the presence of powerful external pressures, especially from international financial institutions, to adopt the institutional innovation of regulatory agencies in infrastructure sectors. The result is often an incomplete engagement with and insufficient embedding of regulatory agencies within local political and institutional context. A second is the greater intensity of redistributive politics in settings where infrastructure services are of extremely poor quality and often non‐existent. The resultant politics of distribution draws in other actors, such as the courts and civil society; regulation is too important to be left to the regulators. The third theme is that of limited state capacity, which we suggest has both “thin” and “thick” dimensions. Thin state capacity issues include prosaic concerns of budget, personnel and training; thick issues address the growing pressures on the state to manage multiple forms of engagement with diverse stakeholders in order to balance competing concerns of growth, efficiency and redistribution. These three themes provide a framework for this special issue, and for the case studies that follow. We focus on regulatory agencies in infrastructure sectors (water, electricity and telecoms) as a particular expression of the regulatory state, though we acknowledge that the two are by no means synonymous. The case studies are drawn from India, Colombia, Brazil, and the Philippines, and engage with one or more of these contextual elements. The intent is to draw out common themes that characterize a “regulatory state of the South,” while remaining sensitive to the variations in level of economic development and political institutional contexts within “the South.”     

The political economy of Australian regulatory reform

The problem of regulatory accumulation has increasingly been recognised as a policy problem in its own right. Governments have then devised and implemented regulatory reform policies that directly seek to ameliorate the burdens of regulatory accumulation (e.g. red tape reduction targets). In this paper we examine regulatory reform approaches in Australia through the lens of policy innovation. Our contributions are twofold. We first examine the evolutionary discovery process of regulatory reform policies in Australia (at the federal, intergovernmental, and state levels). This demonstrates a process of policy innovation in regulatory mechanisms and measurements. We then analyse a new measurement of regulatory burden based on text analytics, RegData: Australia. RegData: Australia uses textual analysis to count ‘restrictiveness clauses' in regulation – such as ‘must’, ‘cannot’ and ‘shall’ – thereby developing a new database (RDAU1.0). We place this ‘restrictiveness clauses’ measurement within the context of regulatory policy innovation, and examine the potential for further innovation in regulatory reform mechanisms.