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Aug 21, 2023 951 likes •1.03k views

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

SLIDE 1

An Coláiste Ollscoile, Baile Átha Cliath University College Dublin

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

SLIDE 2

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.

SLIDE 3

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

utcomes which may involve mechanisms of

standard-setting, information-gathering and behaviour-modification.’ (p20)

SLIDE 4

Regulation

Feedback (information gathering) Correction (behaviour modification) Norms (standard- setting)

Rules/Principles
Primary/Secondary Legislation
Hard/Soft Law
Associational/Bilateral Contracts
Technical Standards
Self-Report
Inspection
Certification
Audit
Complaints
Whistleblowing
Bounties
License Revocation
Criminal Sanctions
Admin Penalties
Warnings
Advice
Education
Taxes
Private Rights
Scoreboards
Media

SLIDE 5

Responsive Regulation Really Responsive Risk –Based Regulation Nudges Meta-Regulation

C

Self- Regulation eg CSR employment contracts

D

Social/market pressures eg Boycotts Buycotts Social Licence to operate

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

A

Contract Eg private standards regimes, monitored, enforced through contracts, (individuated and collective (associations)) Gatekeepers, eg insurance, banking, immigration

B

SLIDE 6

Enforcement Network

Agency Department European Commission Agency Enforcement Bodies: Garda Síochána DPP Courts Businesses Consumers, Consumer Groups NGOs, Trade Unions

Network Actions 1. Setting norms

a. Legislation
b. Compliance

Programmes 2. Monitoring a. Agency oversight b. Sharing Information/ Experience c. Whistleblowing and complaints 3. Enforcement a. Warnings b. Contract withdrawal c. Civil Proceedings d. Administrative Sanctions e. Agency Prosecution f. Cross-Sanctioning