Author: Colin Scott

Colin Scott is Principal, UCD College of Social Sciences and Law and Professor of EU Regulation and Governance at UCD. He is a Co-Editor of Legal Studies (Wiley-Blackwell).

Irish Governance in Crisis

In a piece in yesterday’s Sunday Business Post my colleague Dr Niamh Hardiman  makes a plea for better understanding of the roots of our current crisis in weaknesses in governance institutions. Such an understanding is a precondition for effective reform. She addresses weaknesses in parliamentary scrutiny, the capacity of the civil service for appropriate engagement over policy making, and the effectiveness of the public service itself. She highlights institutional explanations for tendencies for public policy to favour sectional interests, but argues that understanding the institutional weaknesses is the key to addressing them. The article is behind a paywall, but a fuller, multi-author examination of the issues is available in a book arising from a UCD project on governance, Irish Governance in Crisis, edited by Niamh Hardiman (Manchester University Press, 2012).

Failure to Regulate Regulation Could Prove Costly

My opinion piece in today’s Irish Times points out that the disbanding of the Better Regulation Unit in the Department of the Taoiseach risks reducing the capacity for effective oversight of regulatory institutions and strategies and for learning about and acting on regulatory successes and failures elsewhere in the OECD member states. A fuller policy brief on the topic, “W(h)ither Better Regulation?” is available here.

I hope there is no problem about my linking to the article I wrote.

Regulating the Legal Profession Conference

As has already been noted the Government is in the process of implementing a commitment in the EU/IMF aid package to re-regulate aspects of the legal profession in Ireland with a view to enhancing competitiveness in the sector. The Legal Services Regulation Bill has been controversial in some of its aspects and UCD School of Law is hosting a conference, drawing in a variety of overseas and local experts, with a view to locating debates within a wider international context.The keynote speaker will be Lynn Mather, Professor of Law & Political Science, Buffalo University. Other speakers include Isolde Goggin, Chair of the Competition Authority, Julian Webb, Professor of Legal Education, University of Warwick and Ferdinand von Prondzynski, Principal of Robert Gordon University, Aberdeen. A full programme and online booking facilities are available at http://www.ucd.ie/reggov/.

Legal Services Regulation Bill

The Department of Justice has published a press release indicating that the Legal Services Regulation Bill is to be published within the next few days, having received the approval of cabinet.

Regulatory reform in respect of legal services is a key commitment in theEU/IMF Programme for Financial Support for Ireland. A blueprint for reform, indicated in the financial support programme, was provided by the Competition Authority’s 2006 report on the legal professions. The detailed indications of the content of the Bill in the press release suggest the government has rejected some aspects of the Competition Authority report. Notably the proposal that a new regulator would oversee professional self-regulation (as occurs in England and Wales through the Legal Services Board established in 2009) appears to have given way to a new regulatory body which will have direct responsibility for oversight of the professions.

In addition to the Legal Services Regulatory Authority, two further new public bodies are to be established: an Office of the Legal Costs Adjudicator (who will take on regulatory functions over costs currently administered by the Taxing Master) and a Legal Professions Disciplinary Tribunal which will take over responsibility for addressing complaints of professional misconduct, currently administered by the Bar Council and the Law Society of Ireland.

The central rationale stated for the reforms is the promotion of a more competitive environment for provision of legal services, and this is reflected in proposals to allocate tasks concerning entry to the profession and the education of lawyers to the new Legal Services Regulatory Authority so as to liberalize certain aspects of professional education and end the situation under which the profession is both provider and regulator of legal education.

The establishment of three distinct agencies may be controversial and raises the question whether the variety of functions could be undertaken by a single agency. The press release indicates that the industry will be levied to pay for the new regulatory bodies (as occurs with a number of existing regulatory bodies such as the Broadcasting Authority of Ireland). Comments in the press suggest that the professions are concerned that the power of the minister to appoint members of the Legal Services Regulatory Authority will compromise the professional independence of lawyers. It is actually not unusual to find ministers exercising such powers of appointment (appointments to the Legal Services Board in England and Wales are made by a government minister, the Lord Chancellor). Clearly board members must be appointed by someone and ministers are accountable to parliament for their actions. Even the most independent of actors within the legal system, judges, are appointed by ministers (though this is not uncontroversial).

Certain of the more controversial aspects of potential reform, such as fusing the barristers’ and solicitors’ professions and introducing multi-disciplinary partnerships have been assigned to the new Regulatory Authority for research and consideration rather than be provided for directly in the Bill, according to the press release.

Renewing the Regulatory State?

The recently issued Programme for Government of the Fine Gael/Labour coalition gives some hints as to the extent to which regulation will be maintained and developed as a mode of governance over the next few years. The transformation of governance modes from welfare state to regulatory state models in Europe has been observed over the last twenty years and characterised by tendencies towards separation of policy making from operations, displacement of bureaucratic discretion with greater reliance on rules and the use of arms-length (semi-)independent regulatory agencies to monitor and enforce compliance with regulatory regimes. As a governance mode regulation is attractive, particularly in hard times, as it is offers relatively inexpensive (to government) mechanisms to symbolise policy commitments in areas such as financial markets, consumer protection and the environment. The Programme for Government makes extensive use of regulatory proposals, not only affecting business regulation but also regulation of the public sector and self-regulation.

In respect of regulation of business the central themes of the programme for government include a degree of rationalization, notably seeking to bring together the various organisations concerned with the regulation of financial markets, and a new emphasis on enforcement, represented by a proposal to merge enforcement activities of the Health and Safety Authority and the National Consumer Agency. A reader might wonder why these two enforcement agencies were singled out and other enforcement organisations such as Health Information and Quality Agency, the Food Safety Authority of Ireland (which received separate attention in the document) and the Environmental Protection Agency were not included in plans for a more ambitious enforcement agency. However it is done in organisational terms there is clearly great scope for the diffuse agencies involved in enforcing social regulation (broadly defined) to learn from one another, a central theme of a recent NESC report Re-finding Success in Europe: The Challenge for Irish Institutions and Policy ( and in particular its discussion of the network built around the Office of Environmental Enforcement, pp136-141). A distinct set of proposals for sale of state assets, to be guided by a report by Colm McCarthy to be published imminently, will reduce the capacity for the state for control through ownership thus continuing the shift from welfare state to regulatory state modes.

The renewal of the regulatory state is perhaps more strongly represented in coalition plans for operation and oversight of public sector activities. This emphasis implies an analysis that Ireland’s problems lie as much with public sector as with private sector activity. The stringency of regulation of public sector organisations and representatives is targeted by proposals:

  • to reinforce freedom of information legislation
  • to extend the ambit of the public sector ombudsman
  • to introduce whistleblowers legislation
  • to more tightly regulate political party finances
  • to revise legislation governing the relationship between ministers and their civil servants
  • to establish an Investigations, Oversight and Petitions Committee in the Oireachtas linked to a proposed referendum to permit Oireachstas committees to undertake full inquiries (reversing the Abbeylara decision)
  • to require the publication of Regulatory Impact Analyses prior to the taking of government decisions
  • to introduce greater ‘choice and voice’ for users of public services such as schools and hospitals
  • to put the Inspector of Prisons on a statutory basis

At first glance the proposed abolition of the HSE would shift us back towards a classic welfare state mode of governance with direct ministerial control and, we might presume, a greater degree of bureaucratic discretion. Proposals to progressively introduce primary health care services which are free at point of use also shift Ireland closer to the welfare state model of healthcare. However these measures are balanced by the proposal to free hospitals from direct governmental control and, presumably, establish a contractual basis for both the procurement and regulation of healthcare provision. Accordingly the Department of Health may be substantially restricted to policy rather than operational matters in healthcare.

A third trend identified with the shift towards the regulatory state is a reduced emphasis on self-regulation as the state seeks to take on a greater oversight role. Such a trend is found in the document in the commitment to establish in independent regulator for the legal profession, which will to some extent displace professional self-regulation. This reproduces a commitment already found in the EU/IMF aid package and which follows from the Competition Authority’s 2006 report on the legal profession.