My post last week on Smart Regulation drew out a number of responses which argued, in essence, that there are too many regulatory agencies in Ireland. For some the proliferation of regulatory agencies is taken as an indicator that there is too much regulation. I do not think it is possible to draw inferences about the quantity or intensity of regulation from the numbers of agencies.
What is perhaps more interesting than the bare numbers of regulatory agencies is their growth. It is noted in the Government report Bodies in Ireland with Regulatory Powers (2007) that since the White Paper on Regulating Better declared a virtual moratorium on the creation of new regulatory agencies in 2004 (‘The Government will create new sectoral regulators only if the case for a new regulator can be clearly demonstrated in light of existing structures’) ten new agencies had been created and a further nine were planned. The admitted failure of government to follow its own self-denying ordinance raises the questions what has happened to regulatory agency numbers, how can the pattern be explained, and what does it mean?
Bodies in Ireland with Regulatory Powers concluded that of the 213 bodies with statutory regulatory powers eight of these were non-state bodies, 114 were local authorities, nine were regional fisheries boards, and 15 were government departments. This leaves 67 central state agencies with regulatory powers, but not all of these are primarily regulators, and some are not regulators of business. The Labour Court, for example, is chiefly an adjudicatory body and the Higher Education Authority is chiefly a transfer agency (although the handing out of cash clearly is used for regulatory purposes), and the Revenue Commissioner are mainly concerned with collecting taxes.
New UCD Geary Institute Research suggests that numbers of agencies for which the primary function is regulatory held fairly steady at just under twenty between 1950 and 1990 but that the number increased by 50 per cent in the 1990s and had more than doubled from the higher base to 68 by 2008 (Source: Mapping the Irish State project database (funded by IRCHSS)).
How can this growth be explained and what does it mean? Some of the agencies established since 1990 were created to meet European Community obligations to regulated independently both of dominant incumbent firms and of government departments with stakes in the industries concerned – notably communications and energy. In other instances there was a concern to establish the credibility of a regulatory function previously exercised in a government department – the Food Safety Authority of Ireland provides a key example. In some instances there has been a sense that government departments will struggle to develop and sustain the expertise and focus necessary for a regulatory task. In other instances the establishment of new agencies can more readily be explained by a combination of fashion (regulatory agencies have become a stock solution to all manner of public policy problems) and political need to demonstrate symbolically a commitment to sorting out some high-profile problem. The Health Information and Quality Authority springs to mind as an example of this. Politics may also play a role government sees the potential to shift the blame when things go wrong with regulatory regimes – examples are legion so I shall not name names.
Does the growth in regulatory agencies demonstrate that there is too much regulation? Actually it tells us little about the quantity and intensity of regulation. It is perfectly possible to have masses of regulation with few or no regulatory agencies (Japan is a case in point). One might argue that all these agencies are very costly, but typically they have relatively small budgets and their financial significance in most cases is likely to lie more in the negative or positive effects they have on economic and social activity more generally (their impact rather than their direct costs).
The growth of regulatory agencies tells us more about the changing style of government in Ireland. There has been a trend away from direct provision of services in the network sectors towards regulated oversight of private provision ( and this common to many European countries) and, distinctly, a shift towards external oversight with a greater degree of transparency at arms-length both from government and from industry. Ireland provides a core example of a regulatory state. Indeed, the limited direct state provision of welfare services historically supports an argument that in some ways Ireland was a regulatory state avant la lettre.
As I hinted in my previous post the challenge of enhancing the efficiency and effectiveness of regulatory governance is unlikely to be met through an exclusive focus on cutting or merging regulatory bodies (as Brian Lenihan proposed in the October budget), but rather through developing a better understanding of where the capacity to develop and deliver on regulatory objectives lies, and finding ways to harness that capacity (whether it lies with state agencies, firms or civil society organisations or more typically a mixture) through the varied processes of meta-regulation.