This paper was presented at the Policy Scotland Public Debate at the University of Glasgow on December 4 by Josef Konvitz, Honorary Professor, University of Glasgow, and Visiting Professor, Cities Group, Geography, King’s College London
This presentation will address what Scotland must do and could do to assume sovereign regulatory responsibilities. This is not only a matter of laws and institutions; if this were the case, we would lose sight of what regulations are for. Regulations are policy instruments to achieve a public purpose. When governments provided most public services directly, they needed few regulations; when international trade was at a low level and grew slowly, governments did not need to pay attention to how other jurisdictions regulated their economies; when people cared less about the environment, about health and safety standards, and risks in general, the regulations could ignore the inter-connections that make modern life so complicated.
An independent Scotland will increase its quantum of regulation – the range of issues and problems over which it will have jurisdiction will be even larger than it already is under devolution. The question therefore is whether independence would improve regulatory outcomes, or what I call the holy grail, the link between the quality of regulation, over which government has considerable control, and overall welfare.
Can Scotland have a better economy and higher levels of social welfare if it had the regulatory responsibility of a sovereign country?
There are two meanings of the word regulation
- One refers to the regulation of a system, to keep it functioning at its best, and avoiding breakdowns. Paradigms for regulation of a system incorporate the ultimate objectives and values of a society and indicate the relative efforts of citizens, firms and governments in pursuit of those ends. The ultimate purpose of regulation at this meta level is to preserve the system itself, hopefully by renewing its capacity to function. An example for illustrative purposes is electricity supply and distribution: supply and demand must always be in balance; there needs to be ways to go around bottlenecks and to increase or decrease load almost instantaneously; most of the system runs on automatic but human rule-based intervention is necessary when certain tolerances are not respected.
- Regulation, together with monetary and fiscal policy, constitute the three levers of power by which states intervene in social and economic affairs to achieve policy objectives. The most important of these is to maintain growth and employment at sustainable levels.
- There are limits to regulatory sovereignty. Whereas monetary and fiscal policy are monopolized by states, sovereign governments are not the only sources of regulation. Intergovernmental bodies, treaties, and international standard-setting authorities (some private) all generate regulations which have domestic applicability; domestic standard-setting authorities, and local and regional authorities, also generate regulation and play a critical role in the enforcement of regulation. In addition, market pressures impinge on the level of regulation and its impact on economic operations in the same way that market pressures impinge on fiscal and monetary policy, narrowing differences.
- Better than tax breaks that favor insiders or special interests, more transparent than subsidies, regulations that have the force of law constrain all players, citizens and firms, alike.
- The narrower meaning of regulation refers to specific rules and rule-making processes by which public and private objectives are translated into legal instruments. There are regulations for security, monetary policy, taxation, labor markets, and product markets. This kind of regulation is the common, everyday meaning of the term, especially when phrased in terms of legally binding or normative statements about what can or cannot be done, by whom, when and where.
- The focus on regulatory burdens deflects attention from the benefits of regulation, and confuses many different things: administrative information requirements, compliance costs, whether there are net welfare benefits for society, and sound, prudent business practices on a level playing field.
- Regulatory policy describes how decisions about rules are taken, how such regulations are enforced, and how they are evaluated throughout a policy cycle that starts with the identification of a problem and consideration of whether there are grounds for public intervention.
- The two meanings of regulation should be brought together politically and institutionally. Specific market regulations need to be reviewed in the light of evidence about current economic performance and future challenges. An integrated and strategic approach to the stock and flow of specific regulations will help make best use of human, social and territorial capital, taking advantage of innovation and trade, allowing competition to function, providing an adequate level of public goods and services.
1. Law, Regulations and Markets
Markets need rules; if there was an ideological debate about this before the regulatory failures of 2008 led to the worst economic crisis since the 1930s, in political and practical terms that debate is now over.
Regulation, in the form of explicit rules for business and civic life and including rules about how rules are to be made and enforced, became accepted in western polities during the long century that began with the codification of laws in Louis XIV’s France in the 1660s and the Revolution of 1688 in England, and concluded on the eve of the French Revolution and the doctrine of written constitutions in pursuit of a system of checks and balances. This decisive phase in the history of western civilization and of capitalism contained within it two tendencies: an interventionist approach, more pronounced on the Continent, grounded in the belief that political and especially economic imbalances which could lead to crises required a direct role by a centralizing, more omniscient regulator who could keep the complex system functioning; and a more liberal approach which became dominant in England and favored outcomes based on self-regulation and on co-operation among interests, and a smaller role for government. Laissez-faire itself does not come about through the absence of rules: it too is constructed on the basis of rules, the substance of which allows laissez-faire to function. In a laissez-faire system, the rules are embedded in the behavior of the economic actors themselves.
The growing interest of economists in institutions is helping to clarify and reclaim “the role of the state” – author and guardian of rules including self-limiting constitutional strictures – in creating markets. Some would say that neo-liberalism is about giving undue power to markets, allowing economic criteria to shape social development; others argue that neo-liberalism is about the proper and effective roles of both states and markets – without necessarily agreeing that the distinctions between their respective roles can be defined in timeless terms. There is of course no pure system, wholly interventionist or liberal; this chapter in political and intellectual history will always remain unfinished. The debate about what neo-liberalism means continues to resemble one of those scholastic debates about whether God, who by definition must be infinite, is within or beyond the universe of measurable space (Audier, 2013).
Having more regulations does not necessarily increase the stock of public goods or achieve social, economic, health or environmental policy objectives; what matters is having the right regulations, regulating what ought to be regulated. To paraphrase Hayek, a government that regulates a lot but concentrating on the right things well is to be preferred to a government that regulates less, but regulates the wrong things.
Taking a functionalist approach, one reason why officials often regulate with a law or rule as the first or preferred option, rather than another instrument such as a tax, is because a regulation is a clear, formal statement by government of how citizens or firms should behave. Regulations are formal in legal terms, and transparent. This formality is also a public good, a contribution to the rule of law which includes the restraint on government from arbitrary action. In a trading system composed of states which have different domestic regulatory systems and have adopted different philosophies about when and why to intervene, another problem arises: how to adopt common rules for international commerce when each state is free to make its own rules.
Some markets would not function without regulations: think of standardized weights and measures in the marketplace, or the licensing of airlines and the certification of airplanes. Indeed, the market economy, in which buyers and sellers meet and set prices, depends on a larger framework of rules to assure access and a level playing field. Examples of this kind emphasize regulation as a means to an end. When regulation serves a policy objective, such as consumer protection, or banking supervision, or reducing deaths and injuries in car accidents or in workplaces, or improving air quality, or preventing the pollution of waterways, it should generate net welfare benefits, meaning that the costs of attaining compliance are lower than the benefits to society.
This is where problems start because there is no clean slate: all governments already have a stock of regulations, some of which are obsolete, some ineffective or inefficient, many overly-complex. Some jurisdictions – Ireland, for example, have had to cope with regulations dating from the Middle Ages to the present; others – Israel – have a regulatory stock that includes British, Turkish and Israeli sources. Any country that has undergone a revolution – Mexico or France – has to revise its regulations, usually through codification.
To the stock of existing regulations, there is a flow of new ones annually. Some regulations are required to be in compliance with an international treaty or agreement. When governments provided many services directly, fewer regulations were necessary. Deregulation and privatization in the 1990s actually generated a need for more regulation. In addition the complexity of modern economies and societies and the continual addition of new goods and services generate the demand for new regulations.
Good regulation can become bad over time. It is however rarely possible to simply abolish all regulations and start from scratch: to try to do so is to enlarge the degree of regulatory uncertainty which leaves citizens and firms in limbo, not knowing what will be in force in the future. Even in those countries – Sweden or Korea come to mind – where a wholesale culling (scrap-and-build) of the regulatory stock has been undertaken, where generalized reviews of sectors have been carried out, where a sunset clause has kicked in (cancelling a regulation after a fixed number of years unless a formal step is taken justifying its retention) or a guillotine has been applied (abolishing regulations unless they can be justified), the size of the stock of regulations soon grows again. Whatever method is applied, the results often fall short of expectations: too many key sectors or issues are exempted from review, the regulations that are abolished were not being enforced anyway, reform fatigue set in early. This problem of “regulatory inflation” is what the public rails about the most, little understanding what its root causes are.
So much for why regulations and attitudes toward regulation differ among countries at similar levels of economic development, and with comparably sophisticated, democratic and open systems of government. In the late 20th and early 21st centuries, competitiveness considerations pushed countries to pay more attention to gross differences in their levels of taxation. At the same time, the general economic climate and practice of central banks meant that countries no longer competed on monetary policy either. Governments have more flexibility to use differences in regulatory settings to distinguish themselves one from the other, sometimes to attain a higher score in the annual World Bank Doing Business report, or in the competitiveness rankings of the World Economic Forum. Open markets however mean that large trading blocks can use regulatory requirements to set standards on goods and services which are imported. As a result, the scope for a country which trades alot to deviate from the standards of its major trading partners is much diminished. And in the contest between the United States and the European Union to see which can have more influence worldwide, the EU appears to have the clearer strategy, applied with greater consistency.
What? Why? When?
What should regulatory reform reform? This is the sharp point of the neo-liberals’ arguments. Regulatory reform is usually a key to structural reform, opening markets to competition, increasing trade and the take-up of innovations, reducing or eliminating licenses, fees and other measures which tend to protect incumbents. It has dynamic effects: markets which have undergone significant regulatory reform are not the same as they were, demonstrating higher growth and productivity, greater choice for consumers, more competition, fewer barriers to entrepreneurship or foreign entry, and faster diffusion of innovation.
Better regulation policies are not sufficient by themselves to achieve better cross-sectoral co-ordination, especially in governments where the “silos” of sectoral ministries are embedded in legal and political structures. A regulatory policy unit has only so much leverage over line ministries, and few conflictual issues ever reach the presidential office or the cabinet. A comprehensive ex-ante analysis of impacts, including on specific groups (SMEs, the elderly, women) or factors such as job creation, investment and competition – important as they are – needs to be complemented by ex post studies which show the effects over time, which may turn out to be quite different. Almost all OECD countries carry out ex-ante analyses; comparatively few undertake ex-post evaluations.
The choice of what to reform may reflect the pressure of interests which would benefit from, for example, the distribution and sale of generic drugs or imported medical devices when these are blocked by regulatory procedures, or public outrage following, say, a major industrial accident of power blackout. Knowledge about what to reform however should be grounded in broad studies of economic performance, and comparative benchmarkings of the level of regulation in similar sectors in different countries (such as the OECD’s product market regulation index and annual Going for Growth reports).
Does regulatory quality make a difference? We do not know for sure, but there is plenty of indirect evidence involving many variables to suggest that better regulation and the kind of flexibility needed in the modern economy go together. The correlation between sound reform programmes and outcomes is difficult to establish beyond case studies. In many countries reform has led to an improvement in the systems which modern cities need, – and cities remain the motors of the economy, but some countries such as the UK which have gone far along the road of regulatory reform have not achieved such good results. The counter-example of a developed country with superior economic performance but without deep regulatory reform does not exist.
The analytical difficulties to demonstrate the impact of good regulatory policies and practices on social and economic outcomes are considerable: isolating the regulatory variable, indirect versus direct effects, unwarranted assumptions, the lack of good data, etc. Among OECD countries, Mexico, Israel and Turkey remain much more restrictive in their regulations of product markets than the OECD average, but they have also enjoyed above-average growth during these years as well. But no one would conclude that there is a cause and effect relationship; the argument instead is that with better regulations, growth would be more sustainable, and deliver more benefits to firms and consumers. And these countries are under pressure to cope with significant changes in market structures.
The problem is that regulations must adapt as markets change, as technology advances, as societal standards and values evolve. Regulations can inhibit innovation by constraining people and businesses to perform certain tasks in certain ways, but history shows that in every field where there is innovation outside a pre-existing regulatory framework, soon regulations are introduced to lock in and standardize new products, techniques and services – often to the advantage of firms in that sector.
How well our economies and societies adapt to change is a major issue – even if there is no index of adaptability. Several studies find correlations between a better regulatory system and regulations that support market openness, innovation, investment and competition on the one hand, and higher growth and productivity levels, better resource allocation, technology spillovers, job creation, new business start-ups, consumer benefits and incomes. But note – what matters is not the regulation of this or that in food production, for example, or freight haulage, but the overall regulatory framework affecting the entry or exit of firms, the importation of innovation, etc. OECD indicators of regulatory management have been collected in 1998, 2003 and 2008 (and again in 2013), and are now being reinforced by studies of perception because the public does not always recognize the progress that has been made, for example, the administrative burdens that have been reduced. [OECD, 2009].
If regulatory reform has such impressive and far-reaching benefits, why is it often so difficult to launch and sustain a regulatory quality programme? Those who stand to lose in the short term are usually the most vocal and best organized, whereas those who stand to benefit, including the public at large, are usually less aware of what is at stake. Properly carried out, regulatory reform is not very costly to administer and can deliver large savings for the government, as well as stimulate a recovery which will alleviate fiscal pressures restore opportunities to millions of unemployed, especially young adults (OECD 2010a, p. 44). Behind the successes and failures, there are stories of administrative battles, attacks on government from civil society and business interests, parliamentary debates, independent audits and reports – the whole machinery of politics to get the wheels of government to move without grinding gears.
If regulatory quality tools and policies are so good, why are there so many regulations still being introduced that are below the mark? Often the people drafting regulations in sectoral ministries take the quality of their work for granted, uninformed though it may be by professional training; officials pursuing a sectoral policy agenda do not wish to have their work checked, and possibly blocked, by regulatory experts who may be attached to a more powerful ministry such as Economy, Finance or Justice, or to a regulatory oversight body attached to the Presidency or Prime Ministry. Perhaps officials consulted those who could be affected by a regulation, but they may have been under no obligation to do so. Perhaps they carried out a regulatory impact analysis, but perfunctorily, without training or access to a database. Perhaps they considered the administrative burden (inspections, reporting) that would be required by the new regulation, but without making best use of burden-reduction techniques or of electronic tools (e-government). And when a programme to reduce administrative burdens is undertaken, governments need to realize that by itself, cutting red tape only prepares the way for a comprehensive regulatory review and reform programme, but by itself cannot take the place of such a programme
What about regulatory burdens and targets to cut red tape? People tend to emphasize the constraining impact of regulations on behavior at the expense of their benefits. This comes out all the time in contemporary discussions of so-called “red tape”, the administrative burdens that can be both frustrating and time-consuming, and thus costly. Why does this form need to be completed every 3 months when an annual filing would suffice? Why must the same information be given to different agencies when a single data set could meet their common needs? Why are citizens or firms which comply fully with the requirements subject to the same scrutiny as those which have a record of past violations? Viewed this way, the need of government to obtain information and assure compliance tends to be eclipsed by the legitimate concerns of citizens and businessmen who question how often information should be given and to how many different agencies.
Regulations that are inefficient simply cost too much given their benefits; the same policy objective could be achieved differently. Some of the attacks on regulatory burdens however are veiled attacks on the policy objectives of governments and legislatures, using simplistic arguments about how much can be saved for business (rarely for consumers) to lobby the authorities. Efforts to reduce administrative burdens refer to one dimension of compliance costs, the cost of keeping and reporting information. Simplification to reduce these costs often involves expensive back-office IT work in government and changes in administrative practices within government as well as changes in reporting requirements – there is no free lunch here. When regulatory burdens are seen to be excessive, the level may be a symptom of other problems, ranging from public sector productivity to flaws in the policies which govern how regulations are drafted, enforced and evaluated. Reductions in burdens ex-post should be part of an overall effort to evaluate the regulatory stock in relation – and this is the tricky part – to a country’s output gaps, that is, the things that need to be done to lift productivity and output. And sometimes these barriers to growth are not linked to regulatory burdens at all! Several European countries with higher levels of regulation in labour and social affairs than the UK with its opt-out have consistently higher levels of growth and lower levels of unemployment than the UK.
The pace of reform was faster between 1998 and 2003, during the initial phase of the OECD’s regulatory reform programme, than between 2003 and 2008; still the record is on balance positive. Things would be worse today if the movement for regulatory quality had not gained strength these past years, although admittedly this is a counter-factual, and one would not want to run a real-world experiment in too many countries. Indeed, the global economy as we know it reflects the enormous progress made to bring the level of regulation down, and to boost the degree of regulatory convergence among trading partners. By the same token, however, globalization also highlights regulatory barriers, especially non-tariff barriers to trade, laws and regulations affecting foreign investment and competition, technical standards and the like, which need to be tackled. Many emerging economies do not yet have the policies and institutions needed – which hampers inward investment and trade in both directions.
2. The OECD and Regulatory Reform: from 1995 to 2012
Given the importance of regulations on competition, innovation, trade, key sectors such as energy, telecommunications and transport that have pan-economic influence, it is not surprising that regulatory policy and reform is the only horizontal programme in the OECD, cutting across all the other substantive directorates.
OECD countries recognize a common set of principles and guidelines for how regulations should be designed, enforced, and evaluated. Based on recognized good practices, economic theory, and knowledge of how institutions function, member countries, working with the Secretariat, design, debate and adopt “soft law” instruments which should be demanding enough of even the most advanced countries so that they too feel stretched, to move forward. These instruments are public; they become points of reference in civil society and even in non-member countries, some of which strive to make progress in reference to them. Further, they are used in the OECD as the template for benchmarking, indicators and national reviews, and candidate countries in an accession process must be assessed according to these instruments which form the OECD “acquis”. (Few such instruments are compulsory and must be incorporated into national law because they become obligations that come with being a member country; the rest, in legal terms, have moral force. The aspirational quality of such instruments should not be under-emphasised).
In 1995 the OECD launched a programme on regulatory reform that cut across all the domestic policy sectors except environment; the ongoing reviews of environmental policy however continue to include regulatory instruments in their asssessments.
Most OECD countries adopted regulatory quality standards and policies only in the 1990s, meaning that there has been a steep learning curve in the past two decades. The OECD Checklist of Regulatory Decision-Making of 1995 (appended to the Recommendation of the Council of the OECD on Improving the Quality of Government Regulation) is part of the OECD acquis, making it part of the formal assessment of how like-minded to OECD practice any candidate or accession country is. The 2005 Guiding Principles of Regulatory Quality and Performance, the APEC-OECD Integrated Checklist of Regulatory Reform remain relevant. These core documents rest on a unique series of country reviews, beginning with the United States in 1999: by 2012, this series had covered all but two countries (Iceland and New Zealand) belonging to the Organisation by 2010 at least once, and in some cases, as many as three times. Given the number of initiatives in member countries and in the European Union in recent years, however, and given the greater importance of regulatory quality in all sectors, including finance, the OECD generated the 2012 Recommendation on Regulatory Policy and Governance, which is now the basis for assessing countries wishing to join the OECD. Recommendations also rest on thematic studies of impact analysis, administrative simplification, risk and regulation and other issues, as well as stocktaking exercises that summarize progress achieved and propose an agenda for the future. [See OECD 2002 and 2011].
A list of shortcomings published in 2002 highlighted important gaps in the coverage of policy, and in particular the financial sector and sub-national regulation; fragmented responsibility to support the policy, making resistance easier; and insufficient focus on monitoring, evaluation and reporting progress due in part to a lack of resources. Some of these are more easily corrected than others. Political leadership is needed to ensure that better consideration is given to alternatives to regulation and to the insights of regulatory impact analysis early in the decision-making process. There will always be problems with statistical and analytical methods; few countries use impact analysis consistently for lower-level or subordinate regulations; compliance and enforcement practices are uneven, and national or international studies of them have rarely been undertaken. When poor quality regulations can be adopted either by political decision, or as a result of legislative compromise or inattention, the consumer and businessman pays the price, not the elected official or public servant.
The record of the past two decades shows that success may come after more than one reform effort has failed, and that without sustained and repeated efforts over more than one economic and electoral cycle the benefits of reform will be eroded. This was certainly the case for the Netherlands when in 2003 it launched its successful effort to cut administrative burdens by 25%. OECD studies of Korea and Mexico showed that after they had undertaken comprehensive regulatory reforms, their economies recovered from future crises more quickly and sustainably. Working together toward similar objectives, several governments can make more progress more rapidly. Another way to get traction has been in response to a crisis (the Nordics in the 1990s, Korea in 1997 and 2008, etc.), the exceptions being Canada and Australia which launched major regulatory reform programmes in the 1990s in the absence of a crisis, but with significant concerns about deficit reduction, productivity and competitiveness in a more open, global economy.
Crisis of 2008 and after: it really is different this time
Crises are usually a shock because they are unexpected – even when we know they will happen. The crisis of 2008 hit the West which was unprepared; it exposed significant regulatory oversight gaps within countries; and it raised questions about how the financial sector should be regulated internationally. Five years later, what reform has taken place internationally has been slow, incremental, and largely along two axes: to limit tax fraud and evasion; and to extend national regulatory power extra-territorially. Within countries such as the UK, Ireland and the United States where the financial sector had been largely exempt from regulatory quality practices which are uniform for product markets, the financial sector has been re-regulated without adequate ex ante analysis, and without sufficient attention to overall regulatory coherence. Furthermore, the links between housing, property, construction, taxation and lending practices which contributed to the crisis remain largely unreformed. Well-performing countries with historical experience of crisis have nonetheless undertaken further reforms of product markets since 2009, achieving a rate of growth which is the envy of most other developed nations: Sweden, Korea, Mexico, Israel. In each case there has been strong leadership to make regulatory reform a high priority.
In their meetings after the collapse of Lehman Brothers in 2008, the senior regulatory officials of the OECD reaffirmed the importance of evidence-based decision- making, and warned against the risk that governments would re-regulate, or deregulate, in haste. But little has been done. Why is the overall record of the past five years so bad? Political immobilisme, undue attention to the financial sector at the expense of structural reforms, and insufficient time or energy to do anything else between mini-crises. Meanwhile, governments, reluctant to increase taxes or create new exemptions, or to fund new programmes, may be tempted to substitute regulations for direct expenditures or subsidies, thus transferring costs onto citizens and the private sector.
This time is really different: in regulatory policy we seem to have reached a plateau. Regulatory reform movements follow two cycles. One cycle is shaped by a pattern of exogenous factors, usually on the front pages of the press: significant innovations (mobile telephony), global developments (spikes in oil prices, competition for natural resources), financial crises (Asia in 1997). Crisis is often a lever for change because it inspires people to correct long-standing domestic shortcomings to spur a recovery and reduce the impact of future shocks. The other cycle responds to the incremental development of better regulatory tools and instruments reflecting a subtle mix of economic and political theory and the lessons of experience, trial and error. More technical in nature, these developments are scarcely visible to the general public.
We happen to be at a historic moment – and not because of the referendum. The crisis that began in 2008, in contrast to previous crises, has had little effect on regulatory reforms linked to structural reform, for growth. Only Portugal and Greece have made substantial progress; Italy and Spain have only made modest progress. The liberalization of product markets has slowed over the past five years. The OECD has found that there is still room to remove barriers in network sectors and services, go improve the governance of state-owned enterprises, and to reduce administrative burdens. Governments however appear reticent to tackle vested interests.
And second, these mid-years of the 2nd decade of the 21st century are seeing more fine-tuning to improve the regulatory tools that exist and to broaden their coverage rather than any major innovation in the regulatory field. We all have heard that a crisis is a terrible opportunity to waste; this crisis however is being wasted, leaving us with less time to prepare for the future, and less wealth to cope. The world in which we live is throwing up new challenges especially in relation to the environment and climate change, ageing and the impact of austerity and low growth on public services which will shift regulatory priorities in years to come, when new methods and institutions will be needed.
To summarize, critical areas affected by regulation which needed attention before 2008 need even more attention now. These include SMEs, land use and housing. Meanwhile countries have to get read for the challenges of the post-2018 era: energy, water, non-tariff barriers to innovation including its adoption, and the three big government services, education, health, and risk reduction.
The post-2008 crisis is having a damaging effect on the ability of governments to maintain and improve their regulatory systems due to a combination of internal pressures as public sector resources are reduced, affecting budgets, staffing and objectives. Governments also face pressures to meet pressing needs at a time when essential services cannot be cut. Public debate about the proper sphere of the state may be necessary to resolve the contradictions between these two sets of pressures, but it is unlikely to take place as it should when public opinion is highly polarized, governments rule in coalitions, and the “street” is restless.
The transition to the next phase in regulatory policy will be difficult. The crisis has made the public even more risk-averse than it had been before. Distrust of government keeps rising. But perversely, this also correlates with demands on government to generate more regulations, usually to try to control some unwanted behavior or event, be it immigration, corruption, or the effects of monetary policy in other countries. Trust and confidence are necessary pre-conditions for regulatory reform.
3. Scotland in the context of the UK
How well is the UK performing as a regulator? Findings of the EU 15 Country Reviews
The OECD carried out assessments of the 15 pre-expansion EU member countries in 2009-11, updating previous country reviews some of which date from 1999-2000. On a one-by-one basis, an in depth country review takes between 12 and 16 months to execute. Assuming a maximum of 4 per year, a rhythm difficult to sustain without added resources, it would take several years to carry out a survey of countries which belong to both the EU and the OECD. By compressing the scope of an assessment into a few months, it became possible to accelerate the sweep, to cover 5 or 6 countries in a year. The rate of change in the policy field had been such that only a snapshot would yield a qualitative overview of the progress achieved, the gaps – particularly important in light of the crash of 2008 – and the challenges ahead. These assessments, complemented by additional reviews of Australia, helped shape the 2012 OECD Principles for Regulatory Policy and Governance.
A word about process is in order. On the basis of the sweeping set of reviews of the 15 EU members, additional country reviews, indicator sets and thematic studies, Secretariat prepared a draft set of principles, supported by explanatory texts. This draft was then discussed and revised by the delegates to the Regulatory Policy Committee and its Bureau (executive group) in two iterations. At this stage intensive screening was necessary in national capitals. Once approved by the RPC, the text went to the Council of the OECD. The Executive Committee had to approve the text before the full Council could adopt it. Again, further consultations in national governments took place before the Executive Committee discussions. In other words, this is anything but a pro-forma process: the document in its final form truly does represent an OECD consensus.
It is worth listing the 12 main principles which would apply to Scotland as an independent state before proceeding to summarize the assessment of the UK in the context of other EU member countries, and to look at what Scotland should do in this field. Some of the following points will be familiar to anyone who has followed the argument this far.
The OECD countries drafted and adopted a new set of Principles for Regulatory Policy and Governance (2012), including a separate section on risk and regulation in place of a simple sentence in 2005. The operative term, “governance”, refers to the entire dynamic and continuous policy cycle, to strengthen the functions of regulatory institutions and their ability to work together for the public interest. The challenge therefore is co-ordination of regulatory actions, “from the design and development of regulations, to their implementation and enforcement, closing the loop with monitoring and evaluation which informs the development of new regulations and the adjustment of existing regulations” (OECD 2011, p. 74).
This focus on governance is addressed primarily to improve the workings of the public administration itself, and only secondarily to address the more complex question of how to regulate when responsibilities are shared between the state (including its multitude of agencies, and across its different levels of government), the private sector, and citizens.
- Commit at the highest political level to an explicit whole-of-government policy for regulatory quality. The policy should have clear objectives and frameworks for implement to ensure that, if regulation is used, the economic, social and environmental benefits justify the costs, the distributional effects are considered and the net benefits are maximized.
- Adhere to principles of open government, including transparency and participation in the regulatory process to ensure that regulation serves the public interest and is informed by the legitimate needs of those interested in and affected by regulation….Governments should ensure that regulations are comprehensible and clear and that parties can easily understand their rights and obligations.
- Establish mechanisms and institutions to actively provide oversight of regulatory policy…
- Integrate Regulatory Impact Assessment (RIA) into the early stages of the policy process…Consider means other than regulation and identify the tradeoffs….
- Conduct systematic programme reviews of the stock of significant regulation…
- Regularly publish reports on the performance of regulatory policy and reform programmes…
- Develop a consistent policy covering the roles and functions of regulatory agencies…
- Ensure the effectiveness of systems for the review of the legality and procedural fairness of regulations…
- As appropriate apply risk assessment, risk management and risk communication strategies to the design and implementation of regulations to ensure that regulation is targeted and effective.
- Where appropriate promote regulatory coherence through co-ordination mechanisms between the supranational, the nation and sub-national levels of government…
- Foster the development of regulatory management capacity and performance at sub-national levels of government.
- In developing regulatory measures, give consideration to all relevant international standards and frameworks for co-operation in the same field, and where appropriate, their likely effects on parties outside the jurisdiction.
Let me dwell on just a couple of these principles which took the OECD corpus on regulation since 1995 into new areas: the focus on multi-level co-ordination and coherence, the role of legislatures, risk regulation management, and central government.
The starting point, the adoption at the highest political level of a specific policy about regulation, is often where resistance to better regulation begins. From this perspective it is easy to appreciate how great a change in political and administrative culture a coherent and comprehensive regulatory policy is. In other words, regulatory policy provides a single, comprehensive point of reference for the entire administration about how regulations should be drafted, enforced and revised as an example of evidence-based decision-making that is open to consultation and public scrutiny. These steps can be adjusted such that those regulations which are likely to have the most significant impacts benefit from the most intense scrutiny. The time needed to carry out a sound process to assure regulatory quality should add only a few weeks to a decision-making process. Regulatory impact assessment is now standard in OECD countries, almost all of which have created a dedicated body with responsibility for promoting regulatory policy and monitoring on regulatory reform.
Central government has limited influence over institutional dynamics. Regulations are generated by all levels of government, and the sub-national level may also have responsibility for implementing national regulations. The first government office that a citizen or businessman visits is likely to be the town hall. Low capacity at the local and regional levels, aggravated by low levels of political interest, help to explain why so many regulatory burdens are related to areas which are usually delegated: land use and construction permits, access to utilities, permits to open a business, inspections, etc. With leadership, capacity can be strengthened into a competitive asset for development, contributing to an overall better national outcome. Multi-level regulatory governance calls for co-ordinated efforts and investment.
National legislatures also affect the regulatory environment. In some countries measures introduced by parliamentarians are not subject to the same regulatory quality standards and oversight as those generated by the executive. Some legislatures receive an annual report on regulation; others do not. The establishment of a parliamentary regulation office, similar to a parliamentary budget office with analytical capacity, would be a step forward.
Risk reduction may well call for changes in existing ways of doing things, at the risk of public opposition. The assumption that a disaster may occur leads government to prepare measures which will allow for prompt intervention. But these usually do not take account of what needs to be done when there is a disaster to prepare for recovery. Disaster preparedness measures depend heavily on assumptions about what may happen based upon the historical record. That record is probably out of date in the sense that future disasters may occur more frequently, cost more, and involve different factors.
There has been progress, and there will be more progress both at the sub-national level, and in the practice of legislatures. Most OECD countries have made a specific minister accountable for promoting government-wide progress on regulatory reform; fifteen OECD countries require a ministerial report to Parliament on regulatory reform progress, but 19 countries do not have such a requirement.
What did we learn about the UK?
The UK scores very high on most OECD indicators of regulatory quality, looking at policies, tools and institutions. This includes the adoption of a formal policy (in 2005), a formal comprehensive RIA process, provision of justification for regulatory actions, measures for clarity and due process in rule-making, and formal consultation processes. But we all know that formal procedures and well-designed institutions are no guarantee that the desired effects will be realized. A more nuanced qualitative assessment still commends the UK – the OECD praised “the vigor, breadth and ambition of the United Kingdom’s Better Regulation policies” while pointing out where more could be done. A number of the recommendations call attention to a gap between principles – of good consultation, for example – and processes as experienced by stakeholders in practice. In one sense the UK is a model for others: its RIA system is as good as it is because it has been the subject of continual improvement over many years, even without the pressure of a crisis to spur reform. Countries looking to regulatory reform for a quick fix should learn from this example that regulatory is not a “one-off” solution to an immediate problem.
A preliminary OECD assessment of product market regulations in 2013 bears out this analysis. Based on a questionnaire of 1400 questions and set against previous assessments in 1998, 2003 and 2008, the score of the UK in 2013 shows little change in five years, a pattern consistent with most countries. The UK is in a category of “least restrictive” together with the Netherlands, Germany, New Zealand, Austria, Australia and Denmark – an interesting mix of countries when considering legal systems, electoral volatility, and trading and market structures. The UK is in the middle of the pack on barriers to entrepreneurship, and does well on having low barriers to trade and investment, but on a level about equal to France and not as good as the Netherlands, Switzerland or Germany. Clearly if economic performance is the measure, there is no inherent superiority of an Anglo or Anglo-American pattern as against a Continental pattern.
Some specific points emerge from the OECD assessment of UK regulatory policy carried out in 2010:
- Not surprisingly, the OECD noted that in the UK as in most countries, communications strategies are usually deficient. There is a perception gap in any case between the efforts being made by governments to improve regulation, and the weight of regulatory burdens felt by business and citizens.
- Missing has been an overall evaluation of the Better Regulation agenda. Regulatory policies cover more aspects of the economy; consultation processes and forward planning have improved; but some aspects of the economy (eg., the financial sector) are exempt from RIA.
- A rapid succession of initiatives – a particular UK phenomenon – may compromise regulatory certainty, and even add to regulatory complexity. This generates communication challenges. And it raises questions about how to manage the regulatory stock better, consolidating and/or simplifying it.
- The proliferation of initiatives in turn calls attention to the lack of an integrated strategic vision of better regulation policy. The government should embed its initiatives in a more comprehensive overview of how regulatory policy is expected to contribute to public policy goals, and where it is headed in the longer term. Government needs to explain how the different policies reinforce each other.
- A single, central regulatory management unit can make progress toward a whole-of-government approach, but even within the executive tensions between the centre and the ministries may limit the scope of a central unit. It thus becomes critical to educate people in all parts of government to take regulation more seriously and to respect common practices and principles. Legislatures may benefit from regulatory committees and consistent efforts to improve law drating; they may also exercise a challenge function when it comes to regulations initiated by the executive.
- Local authorities can be encouraged to contribute more to the burden reduction efforts; equally, more attention could be paid by central government to the complex regulatory and performance demands made on local authorities.
- Policy is unduly business-oriented, and could be better balanced by looking “more directly at the needs and perspectives of citizens, employees, consumers and public sector workers”.
Many of these recommendations can be clustered under the heading of policy coherence. Notwithstanding all the talk about “joined up government”, three things get in the way: the sectoral organization of government, the lack of breadth and experience on the part of civil servants, and good old politics. The extent to which these factors apply in Scotland is not for me to say.
As policies become more complex and interrelated, like the economy and society, policies need to be assessed at an increasingly aggregate level. This level however may be much larger than any individual nation-state. A few years ago, we thought it might be possible to compare how two or more jurisdictions regulated the same economic activity, to see whether one regulation was inherently better than another. We looked at regulating truck drivers for cross-border freight travel in Europe, and we looked at the issuance of permits to certify trucks as meeting regulatory requirements. After a year, the exercise defeated us: we concluded that the differences among regulations on such seemingly simple exercises, which are repeated thousands of times per year, defied analytical reduction.
Regulations are often subordinate to multiple and sometimes conflicting policy objectives. If someone in government asked how policy coherence could be improved, the OECD would recommend governments to:
- Adopt high-level policy goals in government programmes;
- Give more detailed effect to these goals in ministries;
- Ensure that policy proposals are weighed up and discussed collectively by the government, including consideration of costs, benefits, trade-offs and consequences;
- Put a mechanism in place at the centre of government for reaching a decision as to whether a policy proposal should go ahead, or not, or should be adjusted; and
- Apply the doctrine of collective responsibility, that is, binding all the government members to a decision once it has been reached collectively.
In my experience, it is this last point which is the most important and the most difficult.
Goals for Scotland:
What could Scotland regulate differently, and better? With a solid institutional base and a culture of integrity, more could be done to lift the levels of productivity and of exports – these are general problems in the UK and its constituent parts. The main challenge is not so much regulatory governance as it is economic performance. In other words, the starting point for Scotland will be its potential to improve productivity, economic performance and social well-being, not its juridical and institutional structures. What would Scotland regulate differently as an independent nation-state? To what extent would Scotland follow English regulations in certain sectors in order to have access to English markets? Could a joint Scotland-England regulatory council, on the looser model of regulatory co-operation between the United States, Canada and Mexico, or on the tighter model of co-operation between Australia and New Zealand, be established? Given the degree of devolved regulatory responsibility which Scotland already enjoys, were Scotland to remain part of the United Kingdom, how can it improve its regulatory governance and performance?
Would an independent Scotland be too small to be well-regulated? Too remote? Small size can translate into cozy relationships between firms and sectors on the one hand and regulators on the other; at its worst, this can reduce how open an economy is. There are however examples of small open economies and larger, less open ones. Distance from markets can increase costs, as it does for Australia and New Zealand, but it can also force connectedness and collaboration, to compensate. Again, geography is a factor but one that can be coped with through intelligent policy and a favorable public culture.
A set of goals for regulation in an independent Scotland should aim to:
- Achieve a higher rate of productivity;
- Lift investment in infrastructure, transport and energy;
- Adopt regulatory policies and support regulatory institutions that provide a higher level of regulatory certainty;
- Maintain the highest standards of integrity and strategic planning capacity;
- Encourage innovation and its adoption by tackling non-tariff barriers, adopting a regulatory framework that helps SMEs and facilitates the transfer of knowledge from universities to commercial practice;
- Assure the Scottish people that the risks Scotland faces are identified, and applied to the assessment of regulations.
1. Scotland should initiate an independent, internationally comparative regulatory policy review covering all the domains which are currently regulated by the Scottish Executive and Parliament. This review – which is desirable whatever the outcome of the referendum – should cover:
- the institutional capacities for better regulation,
- how new regulations are developed and existing regulations are evaluated,
- mechanisms for administrative burden reduction and simplification,
- trends in compliance and enforcement,
- standards for and practices of consultation and communication for transparency, regulation inside government,
- risk management,
- the interface between Scotland and the European Union, between national and subnational levels of government, and between Scotland and England.
This assessment should take account of the relation between regulation and other factors of growth and productivity, including education, to scope the potential for Scotland to achieve a higher level of welfare by adopting best regulatory practice, and applying better regulation to key sectors where the opportunities of growth are likely to be highest.
2. Task forces should draw private and public sectors together, to evaluate current UK regulations in areas where Scotland would take responsibility – recommend what to keep, what to drop, what to change. These should be organized by thematic clusters, e.g., tourism and natural and historic protection, trade in farm and fishery products, energy.
2a. Look at the relationship between banking and housing finance and at the relative importance of the financial sector in the Scottish and international economy;
3. Set goal of state-of-the-art for RIA – early enough, integrated across sectors, draw on consultation – and for ex-post evaluation. Develop robust guidance on when to prefer alternatives to regulation, and check that consideration to alternatives is given systematically in the RIA phase.
4. Measure a base line for burden reduction and use e-government.; include RIG and burden reduction for the administration. Avoid however a facile race to achieve a specific level against that of England, or any other jurisdiction.
5. EU-Scotland – Assess how Scotland copes with EU regulation and what can be learned from Norwegian and Swiss practice; transposing EU regulations will be critical and must be done without undue delay. Assuming Scotland remains in the EU, it will need capacity to evaluate draft regulations emanating from EU institutions. Scotland should also consider the implications of its relations with England. (Other examples of small cross-border regulatory co-operation include Sar-Lor-Lux (the Saar in Germany, Lorraine in France, and Luxembourg), the border region between Germany and the Netherlands, and the Denmark-Sweden border between Malmo and Copenhagen).
6. Allocate adequate resources for staffing and especially for training;
7. Establish network regulators with sufficient powers and autonomy to regulate with credibility in key sectors (power, water, telecoms).
8. Include local governments in a strategy for best regulatory practice.
9. Establish a task force or commission to consider regulatory compliance costs related to security issues and how transparency can be achieved in this domain.
4. Transparency, trust and the two security economies
The new limits to regulatory sovereignty are related to the security economy, driven by domestic and foreign pressures. There were two new economies since 1990: the global economy of traded goods and services is familiar to everybody; the security economy, which has also expanded greatly, is invisible to many on a daily basis. Security has increased public expenditure and imposed significant compliance costs on business and consumers. But we have not yet caught up with this reality when thinking about regulation. We are regulating the economy of the 2010s with the mindset of the 1990s, a world indifferent to terrorism and ignorant of climate change which had not yet adjusted to the increased frequency and intensity of natural disasters or to the exposure of large cities to lethal epidemics.
In what has been presented so far, the discussion has been entirely focused on product markets, that is, formally traded goods and services. (The informal economy is not a major issue in the UK). This commercial economy sits alongside a government-controlled and protected economy based around security priorities. The two have always co-existed: military and defense production and procurement, for example, criminal justice, supply of power, and public health issues related to contagious diseases, to mention four examples, have always been under the direct control of the state. But the classic set of state responsibilities has exploded in recent years, and in the absence of a rational discussion about the cost and benefits of the new security agenda, or about the risks that a free economy and society must come to terms with.
The growth of the security economy as defined by the state in recent years is unprecedented in peacetime. This growth has taken two forms: first is in absolute terms of public and private expenditure, apparent when we see massive increases in funding for surveillance, for example, even when defense budgets are stable or declining; the increase in the number of prisons is another example. The second form of growth has come from the penetration of the security economy into the formal commercial economy, sometimes by obtaining data or monitoring private financial transactions, and also by directing businesses how to conduct their operations, as is the case in the handling of containers in shipping and logistics, or banks when opening a customer account. I want to conclude this presentation therefore by highlighting the tensions between these two economies, the commercial and the security economy.
Whether as part of the UK or as an independent country, Scotland will remain inter-connected with other economies and polities, and exposed to risks from beyond its borders. How well it copes with these risks will be a central challenge to its governance. And this challenge calls for a degree of openness and sophistication in communication which go against traditions of deference, respect for hierarchy, and simplistic trust that the civil service and elected politicians will always put the public interest first.
Regulatory reform, with possibility of regulatory capture not only by special interests but also by risk-averse bureaucrats, is at the heart of discussions about the democratic deficit. Transparency (OECD 2002, p. 65), which means different things to different people, goes far beyond openness: “Among all the governance reforms now underway, an increase in transparency may be the most fundamental and far-reaching in changing relationships [between state, market and society, which is to say the organization of how the state projects its power]…. [T]ransparency is the capacity of regulated entities to identify, understand and express views on their obligations under the rule of law….Transparency’s importance to the regulatory policy agenda springs from the fact that it can address many of the causes of regulatory failures, such as regulatory capture and bias toward concentrated benefits, inadequate information in the public sector, rigidity, market uncertainty and inability to understand policy risk, and lack of accountability. Transparency of the regulatory process itself, as well as its institutions, tools and process, is equally important for its success.”
Applying transparency in risk assessment and management is especially difficult. There may be reasons why governments do not want the public to be aware of certain risks, either for state security reasons, or to prevent precipitous reactions as when people try to relocate away from an area believed to be prone to floods or earthquakes. There are risks which are difficult to present in clear, non-technical language, and risks which are easily mis-interpreted, such as the relationship between certain crimes and the age, race or ethnicity of either criminals or victims. Basic tools for regulatory decision-making such as impact analysis were designed for command-and-control regulations, which are often the preferred option when governments want to address security risks. But for that very reason, such regulations in many jurisdictions, including the United States, are exempt from impact analysis and cost-benefit calculations. When the political will to regulate is strong, will due consideration be given to regulatory alternatives, or to performance-based regulations?
Getting the balance right between the threats to the economy and the threats to the state is probably impossible; there always will be an imbalance in one direction or the other. Problems, as Jane Jacobs wisely observed in Systems of Survival (1992), arise when political means are used to achieve commercial ends (what is called regulatory capture) or when commercial means are subordinated to political ends (or to coin a phrase, exchange capture, as may happen when a government nationalizes a sector to preserve jobs). The interdependence of state and commerce, she argued, must respect their separate roles, while generating fruitful, symbiotic collaboration, often the source of innovations.
Statesmanship is called for to adjust the balance between risk and regulation. The line separating compulsory measures for the collective good and individual freedom and initiative runs like a thread through political philosophy in the West linking the Renaisance to the present. Risk-related regulations are the most difficult to modify or remove: we are still living with regulations introduced in both world wars; post-2001 regulations will be with us for a long time. Have these brought us peace, or peace of mind? Why is the level of uncertainty increasing, threatening paralysis in the public realm?
This is why the emergence of a security economy in developed societies where there has been a healthy and vibrant capitalist, entrepreneurial market is so worrying: not only does government expand by satisfying public demand to take more “protectionist” measures against terrorism and crime, epidemics, or natural disasters; the regulations which are adopted under the blanket label of “security” are automatically exempt from the regulatory policy and quality tools such as impact analysis and ex-post review which apply to regulations imposed on the commercial economy. The growing importance of the security economy – defined by the state, not the private sector – threatens to compromise much that has been gained through regulatory reform. Regulations driven by security concerns tend to take the form of “command and control”, eliminating discretion on the part of those who must comply. Such regulations are often exempt from all the procedures to be followed to assure regulatory quality, including ex ante and ex post evaluation, consultation procedures with those affected, reporting to the legislature, and access to the courts for adjudication.
The private sector has genuine security concerns about terrorism, but also about the quality of environment and the future supply of water and power, about the level of education in society and job skills, about the impact of socio-economic disparities on demand and confidence, about long-term health issues and their impact on worker productivity and on public finances, about disruptions in investment and trade due to policy failures and mismanagement of public goods. One could say that this constitutes a second security economy. But these concerns of the private sector do not weigh as heavily on the state as the agenda linked to sudden and spectacular emergencies such as terrorist attacks, lethal epidemics, violent storms, cyber-warfare, etc., which could have direct political consequences. Growing concerns about resilience as a fundamental variable in how well societies cope with sudden shocks and structural change take us back to basic questions about productivity, human capital and social capital.
As commentators of the American scene have observed, the real threat to the ability of a nation to project its power and protect its interests may lie in underlying economic weaknesses that limit both its capacity and its independence. Low growth will translate sooner or later into geo-political terms. But often, as the histories of imperial Spain and Rome, and indeed of 20th century England show, the problems of low growth are partly self-inflicted. Budgets never lie: the allocation of resources for national security in the classic sense tell us a lot about how short-term priorities and political risks gain ground at the expense of long-term investments in human and social capital.
The bundle of activities wrapped in the cloth of state security will have an impact on how well the economy grows in the future, making comparisons with past recoveries which took place in decades when the state security economy was more clearly aligned with direct military expenditure than it is now, more difficult. How to manage this dual regulatory system is a challenge for which no one, as far as I know, has answers other than a kind of pragmatic drift based more on the limits of power than on strategic direction.
Regulatory policy cannot ignore what is happening when two decades of theory and practice about how to build sound and robust regulatory governance systems are thrown aside as soon as the security label is stamped on a policy or a dossier. Government demands transparency of citizens, whose privacy is eroded by the collection and transmission of data about travel, financial transactions, purchases, etc., but may not share with citizens what it knows about them. Transparency should not be a one-way mirror. Perversely, when trust in government falls – and it has been falling in OECD countries for more than two decades – demand for more regulation increases. This is a vicious circle; how can it be broken?
As a final comment, the risk-regulation agenda is about interdependence. High walls and secure gates do not protect as well as open borders and flows of information, but old habits and values die hard. Interdependence is the new collective security. This refers to the way to manage the risks that others pose to Scotland, but also those that Scotland poses to others. Being part of the United Kingdom is one solution but one which subsumes Scotland’s interests into those of the Union as a whole. The historical experience of the Cold War has shown that the alliances of the United Kingdom have given it protection but also limited its freedom of action. Scotland independent would not be an isolated Scotland; neutrality, as we are reminded as the centenary of the First World War approaches, saved no nation from misery, hunger and moral dilemmas. Scotland will have to determine what its interests are, how regulation can serve those interests best, where it must follow, and where it can lead.
Scotland has nothing to fear by embracing the regulatory governance and quality agenda. This agenda should be deeply rooted in its philosophical and political culture. After all it is about evidence-based decision-making, inherently an open and public exercise. The Enlightenment project to test principles against experience, to achieve important social and economic objectives through better laws, and to establish evidence-based decision-making remains fundamental to the pursuit of regulatory quality. And we remember how much the Enlightenment owes to Scotland, and what Scotland owes to the Enlightenment.
- Audier, Serge (2013), Neo-liberalisme(s), Grasset.
- Brummer, Chris (2012), Soft Law and the Global Financial System: Rule Making in the 21st Century, Cambridge University Press.
- Jane Jacobs, Systems of Survival: A Dialogue on the Moral Foundations of Comerce and Politics, New York: Random House, 1992.
- OECD (2002), Regulatory Policies in OECD Countries: From Interventionism to Regulatory Governance;
- OECD (2009), Indicators of Regulatory Management Systems: 2009 Report;
- OECD (2010), Better Regulation in Europe: United Kingdom;
- OECD (2010), Better Regulation in Europe: Highlights. Contains extensive background information and analyses of regulatory reform institutions, policies and tools in the 15 original member states of the European Union; the individual country reports, including specific recommendations for remedial measures, can be accessed at www.oecd.org.
- OECD (2011) Regulatory Policy and Governance: Supporting Economic Growth and Serving the Public Interest.
The author was head of the OECD programme on regulatory policy from 2003 until his retirement in 2011. The opinions expressed in this paper are his own, and do not reflect those of the OECD or of its member countries.