Regulation, Public Law, and Better Regulation

Abstract

In response to concerns about regulatory growth and anxieties about the efficiency and effectiveness of regulatory policies, most industrialized countries have, with the blessing of the Organization for Economic Cooperation and Development (OECD), developed policies on Better Regulation (BR). The technical nature of these policies has engendered a degree of dissonance between policy practices, on the one hand, and research on regulatory regimes in Europe from the perspectives of public law and regulation, on the other hand. A core conception of BR as being concerned with impact assessment of regulatory rules has emerged notwithstanding the fact that many official documents at both national and supranational levels give considerable prominence to consideration of alternatives to regulation alongside impact assessment in rolling out BR programmes. The squeezing out of alternatives to regulation by a technical focus on Regulatory Impact Assessment (RIA) has driven BR policies into a silo, substantially isolated from the main research concerns of regulation and public law scholarship. We suggest that both the scholarly and policy fields would benefit from a degree of reintegration. Such a reorientation should speak to the central concerns of scholarship both in regulation and public law. For the former, it raises the prospect of working better with the grain of social and economic activity and actors in regulated fields, a central theme of contemporary regulation scholarship. For the latter, it offers the promise of enhanced oversight over rule-making processes and a more democratic form of decision-making over the development and adoption of regulatory norms, rooted in theories of reflexive law, albeit linked to participatory rather than parliamentary democracy. As a slogan, BR invites neither contradiction nor even debate. Who would promote Worse Regulation?