Really Responsive Regulation
| Date | 01 January 2008 |
| Published date | 01 January 2008 |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00681.x |
Real ly Re s ponsive Regu l atio n
Robert Baldwin and Julia Black
n
Really Responsive Regulation seeks to add to current theories of enforcement by stressing the
case for regulators tobe responsive not only to the attitude of the regulated ¢rm but also to the
operating and cognitive frameworks of ¢rms; the institutional environment and performance of
the regulatory regime; the di¡erent logics of regulatory tools and strategies; and to changes in
each of these elements. The approach pervades all the di¡erent tasks of enforcement activity:
detecting undesirable or non-compliant behaviour; developing tools and strategies for respond-
ing to that behaviour; enforcing those tools and strategies; assessing their success or failure; and
modifying them accordingly.The value of the approachis s hownby outlining its potential appli-
cation toUK environmental and ¢sheries controls. Putting the system into e¡ect is itself challe n-
ging but failing to regulate really responsivelycan constitute a n expensive process of shooting
in the dark.
INTRODUCTION
An important test of a regulatory theory is whether it o¡ers assistance in addres-
sing the challe nges that regulators face in practice. In the area of enforcement,
those challenges are numerous and severe. Resources are often thinly spread and
errant behaviour is di⁄cult to detect. Regulatory objectives are not always clear
and legal powers may be limited. Enforcement functions are often distributed
across numbers of regulators who struggle to co-ordinate their activities.Fur ther,
it is often extremely hard to measure the success or failure of regulation. Even if
such measurement is possible, it may be very di⁄cult to improve the regulatory
system by adjusting enforcement strategies and legal powers.
Let us consider, for instance, the challenges faced in enforcing ¢sheries laws in
order to protect ¢sh stocks. Sea ¢shing is peripatetic and the geographical areas
over which a regulator has to monitor ¢shingactivities are extensive. Regulatees
are highly mobile and there are a large number of landing sites around the coast.
Inspection at sea is very resource intensive, there are many ways to avoid detec-
tion
1
and fundinglevels allowonly a verysmall proportion ofvessels and landings
to be inspected.
2
The nature of the industry is such that the number of undetected
infringements is ‘impossible to determine’.
3
Problems of monitoring compliance
and enforcement are exacerbated by the organisational context. Monitoring
and enforcement involve a number of organisations whose jurisdictions and
n
Law Department,London School of Economics and Political Science.We are gratefulto all those at
the Department of Environment, Food and Rural A¡airs (Defra) who cooperated with our research
into their enforcement activities in 2005.Weare also grateful to Christine Parker for her commentso n
an earlier draft of this paper.A note on methodology is given below,n 15.
1 See National Audit O⁄ce (NAO), Fisheries Enforcement in England HC 563 Session 2002^2003
(April 2003) (NAO Report)19^20.
2ibid.
3ibid 2, 15.
r2008 The Authors.Journal Compilation r20 08The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(1) 59^94
responsibilities overlap, and often the enforcers have no clear set of priorities and
outcome objectives to work from.
4
As a result, the quot a control system rel ies
heavily on the self-reporting of catches and there is extensive under-reporting
and mis-declaration of ¢sh landed.
5
Lack of clear enforcement objectives and the impossibility of discovering the
extent of ‘o¡ the radar’non-compliance means that it is almostimpossible to mea-
sure the e¡ectiveness of the detection systems in place, or indeed of the compli-
ance and enforcement processes. A report by the National Audit O⁄ce on
¢sheries enforcement in 2003
6
concludedthat Defra andthe relevant inspectorates
were unable accurately to judge the need to develop and apply new regulatory
strategies for detection, enforcement or assessment.
7
The Department, moreover,
was foundto operate in£exibly in its deployment of resources and sta¡, reducing
its capacity to adjust its inspection activities.
8
What do the current theories on regulatory enforcement have to o¡er regula-
tors who are faced with these challenges? We know an increasing amount about
how regulated ¢rms themselves respond to regulation.
9
There are extensive stu-
dies on how, once inspectors have arrived on site, they tryto negotiatecompliance
with regulatees, and how theydecide what types of enforcement action to take.
10
There is also more prescriptive writing on what enforcers should do, ranging
from the well known‘regulatory pyramid’ and ‘tit for tat’ approach of Ayres and
Braithwaite’s responsive regulation, through the target-analytic approach of
responding to the organisation’s reasons for non-compliance,
11
to the relative
new-comer, ‘risk based regulation’.
12
Finally, authors such as Sparrow have
4ibid 39.The ¢rst recommendation of the subseque nt report from the Prime Minister’s Strategy
Unit, NetBene¢ts (March 2004) (Net Bene¢ts) wasthat clear hierarchies of ¢sherie s management
objectives should be developed (ibid,11). Defra responded with a statement of overarching aim,
supported by more detailed objectives ^ see Defra, Securingthe Bene¢ts (London: Defra, 2005) 3
(Securing the Bene¢ts).
5 See NAO report n 1 above,16.
6ibid.
7ibid 24.
8ibid 4 and 35.
9 C. Parker,The Open Corporation:E¡ective Self Regulationa ndDemocracy (Cambridge: CUP, 2002);
N.Gunni ngham, R.Kagan and D.Thornton,‘Social License andEnvironmental Protection:Why
Businesses Go Beyond Compliance’ (2004) 29 Lawa nd Social Inquiry 307; N. Gun ningham and
R. A. Kagan (eds), (2005) 27 Law and Policy Special Issue: Regulation and Business Behaviour;
D.Thornton N.Gun ningham and R.Kagan,‘General Deterrence and Corporate Environmental
Behavior’(2005) 27 Law and Policy 262; R. Fairman and C.Yapp, ‘Enforced Self Regulation,Pre-
scription and Conceptions of Compliance within Small Businesses:The Impact of Enforcement’
(2005) 27 Law and Policy 491.
10 See eg K. Hawkins, Law as Last Resort (Oxford: OUP, 2001);K. Hawkins, Environmentand Enforce-
ment (Oxford: OUP, 1984); B. Hutter, Compliance (Oxford: Oxford University Press, 1997);
J. Braithwaite and J. Walker et al, ‘An Enforcement Taxonomy of Regulatory Agencies’ (1987) 9
Lawand Policy323^351.
11 R. Kagan and J. Scholz, ‘The‘‘Criminology of the Corporation’’ and Regulatory Enforcement
Strategies’ in K. Hawkins and J. M. Thomas (eds), Enforcing Regulation (Boston, Mass: Kluwer-
Nijho¡,1984); R.Baldwin, Rules and Government (Oxford:OUP,1995)and further below n 22.
12 J.Black,‘The Emergenceof Risk Based Regulationand the New Public Risk Management in the
UK’ (2005) PL 512; H. Rothstein M. Huber and G. Gaskell, ‘A Theory of Risk Colonisation’
(2006) 35 Economy and Society 91.More generally on the implications of the ‘risk turn’ in adminis-
trativelaw see E. Fisher,‘The Rise of the Risk Commonwealth and the Challenge for Adminis-
trativeLaw’ [2003] PL455.
Really Responsive Regulation
60 r2008 The Authors.Journal Compilation r20 08The Modern Law Review Limited.
(2008) 71(1) 59^94
prescribed extensive systems of performance assessment within regulatory pro-
cesses, as have central governments.
13
Such approaches, however, are unlikely to o¡er complete satisfactionto a reg-
ulator who is faced with the sort of challenges discussed above.They say much
about how the de¢nition of non-compliance is arrived at but less about how to
design inspection strategies, or how to detect non-compliance. Neither respon-
sive regulation nor the target-analytic approach, or even risk based regulation,
say a great deal about how a regulator should deal with resource constraints, con-
£icting institutionalpressures, unclear objectives, changes in the regulatory envir-
onment, or indeed how particular enforcement strategies might impact on other
aspects of regulatoryactivity, including information gathering, and how regula-
tors can or should assess the e¡ectiveness of their particular strategieswhen any of
these circumstances obtain.
This article seeks to address these issues. It focuses both on how regulators in
practice deal withthese issues, and seeks to build on existing in£uentialtheories to
suggest how they should do so. It proposes a strategy that constitutes, to coin a
phrase,real ly responsive regulation.In other words,a strategy which is evenmore
responsive than ‘responsive regulation’ ^ the highly in£uential approach devel-
oped by Ian Ayres and John Braithwaite.’
14
We argue that to be real ly responsive,
regulators have to be responsive not only to the compliance performance of the
regulatee, but in ¢ve further ways: to the ¢rms’ own operating and cognitive fra-
meworks (their ‘attitudinal settings’); to the broader institutional environment of
the regulatory regime; tothe di¡erent logics of regulatory tools and strategies; to
the regime’s ownperformance; and ¢nally to changes in each of these elements.
Such a really responsive approach, we contend further, must be applied right
across the range ofactivities that make up the regulatoryprocess. In presenting our
argument, accordingly, we analyse the full range of tasks involved in regulatory
enforcement processes (including detection and assessment) and use recent
empirical work carried out for the UK Department for the Environment, Food
and Rural A¡airs(Defra) to illustrate the challenges involved in discharging these
various tasks.
15
We suggest that regulation should be sensitive to the interactions
13 See M. K. Sparrow,The Regulatory Craft(Washington, DC: Brookings,2003) ch 19. UK Govern-
ment policy since June 2001 has required departments to review the impact of major pieces of
regulation within three years of implementation (see: OECD, UK Challenges at the Cutting Edge
(Paris: OECD, 2002) 34).The Better RegulationTask Force(BRTF) recommended the routinisa-
tion of post implementation performance reviewsi n April 2000 (BRTF, Helping Small Firms Cope
withRegulation (London:The Cabinet O⁄ce, 2000) and the Better RegulationExecutive’s revised
Impact Assessment Guidance of 2007, http://bre.berr.gov.uk/regulation/documents/ia/iag.pdf (last
visited 14 October 2007), calls for use of Post Implementation Reviews to establish whether
implemented regulations are having the intended e¡ect and whether they are implementing pol-
icy objectives e⁄ciently.
14 I. Ayres and J.Braithwaite, ResponsiveRegulation (Oxford:OUP,1992).
15 The research was conducted at Defra’s request between August ^ November 2005. It looked at
enforcement in seven Defra areas:Environmental Impact Assessments (UncultivatedLand); Cat-
tle Identi¢cation Scheme;Horticulture (classi¢cation of imported fru it and vegetables); Pesticides
Safety;Waste Management (Fly-Tipping); Fisheries and Ozone. Its aim was toa nalysethe us e of
di¡erent enforcementtools a nd tosuggest ways of improvinge nforcemente¡ectiveness by mov-
ing towardsbest practice methods across Defra. Fifty structured and unstructured interviews were
conducted with Defrasta¡ across the above seven areas of activity^ interviewees included policy-
RobertBaldwin and Julia Black
61
r2008 The Authors.Journal Compilation r20 08The Modern Law Review Limited.
(2008) 71(1) 59^94
To continue reading
Request your trial