A Response to Christopher Hodges Regulatory Powers and Enforcement

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Presentation transcript:

A Response to Christopher Hodges Regulatory Powers and Enforcement Colin Scott Principal, UCD College of Social Sciences and Law Professor of EU Regulation and Governance University College Dublin colin.scott@ucd.ie Law Reform Commission Annual Conference November 2016

Response 1. Agree that regulation is tricky because it is about changing behaviours. 2. Agree also that collaborative governance is promising – search for capacity and engage key actors with the social, market and legal pressures which promote compliance. 3. However, collaborative modes require highly skilled regulators, paying attention to all dimensions of a regulatory regime, including availability of higher level penalties. 4. Effective mplementation is technically and culturally challenging and requires learning and iteration. 5. Where collaborative modes are not well overseen/implemented, businesses have opportunities for shirking – see Honohan Report on Financial Crisis 2010. 6. Argues for more flexible toolkit, but also highly skilled regulatory cadre and recognition of wider range of actors in regulatory regimes. 7. Law reform by itself insufficient. Requires oversight of regulatory management and practice and new forms of engagement with firms.

Black’s Conceptualisation ‘regulation is the sustained and focused attempt to alter the behaviour of others according to defined standards or purposes with the intention of producing a broadly identified outcome or outcomes which may involve mechanisms of standard-setting, information-gathering and behaviour-modification.’ (p20)

Regulation Feedback (information gathering) Correction Self-Report Inspection Certification Audit Complaints Whistleblowing Bounties Rules/Principles Primary/Secondary Legislation Hard/Soft Law Associational/Bilateral Contracts Technical Standards Feedback (information gathering) Correction (behaviour modification) Norms (standard-setting) License Revocation Criminal Sanctions Admin Penalties Warnings Advice Education Taxes Private Rights Scoreboards Media

B A C D A – Target of Regulation – Firm, Govt Agency, NGO, Individuals Responsive Regulation Really Responsive Risk –Based Regulation Nudges Meta-Regulation Social/market pressures A C D eg Boycotts Buycotts Social Licence to operate Contract Eg private standards regimes, monitored, enforced through contracts, (individuated and collective (associations)) Gatekeepers, eg insurance, banking, immigration Self- Regulation eg CSR employment contracts A – Target of Regulation – Firm, Govt Agency, NGO, Individuals B – Government (agency and/or department) C – Contracting Party (firm or government), Association (trade, sporting, etc) D – Third parties – eg consumers, NGOs, investors, competitors, employees

Service Providers, Accountants, Lawyers Enforcement Network Network Actions Setting norms a. Legislation b. Compliance Programmes Monitoring Agency oversight Sharing Information/ Experience Whistleblowing and complaints Enforcement Warnings Contract withdrawal Civil Proceedings Administrative Sanctions e. Agency Prosecution f. Cross-Sanctioning Agency Department National Agencies Overseas/Networks European Commission Agency Enforcement Bodies: Garda Síochána DPP Businesses Courts Consumers, Consumer Groups Professional Service Providers, Accountants, Lawyers NGOs, Trade Unions Media