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A Response to Christopher Hodges Regulatory Powers and Enforcement

This response paper discusses the challenges and opportunities in regulatory powers and enforcement, emphasizing the importance of collaborative governance and skilled regulators. It highlights the need for oversight, new forms of engagement, and a flexible regulatory toolkit to effectively alter behavior and achieve desired outcomes.

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A Response to Christopher Hodges Regulatory Powers and Enforcement

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  1. A Response toChristopher HodgesRegulatory 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

  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 mplementationis 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.

  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 outcomes which may involve mechanisms of standard-setting, information-gathering and behaviour-modification.’ (p20)

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

  5. B Responsive Regulation Really Responsive Risk –Based Regulation Nudges Meta-Regulation Social/market pressures A C D Contract Egprivate standards regimes, monitored, enforced through contracts, (individuated and collective (associations)) Gatekeepers, eg insurance, banking, immigration egBoycotts Buycotts Social Licence to operate 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

  6. 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

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