who looks after the public interest ? June 18, 2009
Posted by Bradley in : governance , comments closedGovernmental (and quasi-governmental) statements and actions with respect to regulation are a bit confusing these days. Today, the Commission, in a communication about internet governance, makes the following statement:
It is also important to recognise that public attitudes have changed towards the concept of self-regulation in the wake of the financial crisis. When critical resources are concerned, whether they are banking systems or Internet infrastructure and services, there is now a higher and understandable expectation that governments will be more proactive than they may have been in the past in defending the public interest.
But of course, the public may be disappointed – many of those in charge are the same people who have been (and still are in some contexts) spreading the better regulation gospel.
departmental deck chairs June 8, 2009
Posted by Bradley in : governance , comments closedThe UK’s Department of Business, Enterprise and Regulatory Reform is merging with the Department for Innovation Universities and Skills to create a new department for Business Innovation and Skills (BIS). It’s not obvious what the point of this rebranding is. BERR isn’t even two years old – it replaced the old DTI in 2007. The reaction at science business isn’t exactly a ringing endorsement:
The announcement of the new department does not say if the remit of DBIS includes rearranging the canvas covered collapsible seating on the decks of large ‘unsinkable’ ocean-going liners at risk of hitting an iceberg.
real world social responsibility June 2, 2009
Posted by Bradley in : governance , comments closedI just got back to Miami from the Law and Society conference in Denver, where I talked about my paper on credit rating agencies and heard about a lot of interesting work on regulation and governance in general and the financial crisis in particular. At the hotel where I stayed, part of a large chain, they had one of those environmental programmes which invited guests to re-use towels and sheets. These programmes don’t seem to me to work perfectly – even if you hang up the towels they sometimes seem to get replaced, and the rooms aren’t always adapted well to the need to hang up a used wash cloth, for example. I don’t mean that such programmes aren’t genuinely intended to be environmentally friendly, but the PR may be more splashy than any real impact. So this makes me wonder (and not for the first time) how real much corporate social responsibility is.
(dis)trust in institutions May 28, 2009
Posted by Bradley in : governance , comments closedThe stories about MPs having designated one of their homes as a main residence for tax purposes and a different home as their main residence for the purposes of their parliamentary expense claims, about married MPs each claiming different homes as a second residence to maximise expense claims, second homes (which should be related to representation of constituents in some way, surely) miles from constituencies, and rent and salary payments to family members do seem to be in some ways a distraction from the real issues facing the country. But I think they do raise some very real questions about trust in institutions. How can people who seem to be very preoccupied with making sure they can manipulate the rules to their own best advantage be trusted to make sure that financial regulation works properly? It’s not clear how some of the possible reactions to the expenses scandals really respond to this underlying issue. How do fixed terms for MPs necessarily do much other than encouraging them to think about making sure they have profitable jobs after they leave?
Joan Smith complained this week in the Guardian that this was all really unfair to hardworking MPs. But a large number of commentators disagreed (some quite vehemently). Like it or not, MPs present themselves as representatives of their constituents’ interests and it doesn’t look good if they are able to maintain servants’ quarters and duck islands at taxpayer expense when the taxpayers worry about whether they will be able to keep up payments on a mortgage or feed their families.
considering retrospectivity May 20, 2009
Posted by Bradley in : governance , comments closedIn the same week that the Select Committee on the Constitution published a report critical of provisions for retrospective legislation in the Banking Act 2009 (the statute allows for orders with retrospective effect where the Treasury considers it desirable), the House of Lords wrote about retrospectivity. The case involved a doctor with Nigerian qualifications who went to the UK for a clinical attachment and then applied for leave to remain as a postgraduate doctor. After she made the application, but before a decision on the application was taken, the immigration rules were changed to provide that persons with foreign medical qualifications were not eligible for permanent leave to remain in the UK. The immigration rules are rules which can create legal rights but as executive statements they are not subject to the same sort of presumption against retrospectivity that applies to statutes. The House of Lords held that changes in the immigration rules took effect when they said they took effect and new rules could be applied to applications pending at the time they came into effect.
The Law Lords were very critical of the fact that the Home Office declined to refund the application fee in these circumstances. Lord Hope of Craighead stated:
Fair dealing, which is the standard which any civilised country should aspire to, calls out for the fee to be repaid.
Lord Scott of Foscote:
So what benefit did the appellant receive for her £335? The answer is ‘None’. She paid her money on what turned out to be a false and misleading prospectus. The least that the Secretary of State can be expected to do is to return her fee.
Lord Neuberger of Abbotsbury also said that it was not “fair dealing” for the fee to be retained. The language of fair dealing and misleading prospectus has some resonance in these days of financial turmoil. This week, one can’t help reading them without thinking of the parliamentary expenses scandal and Gordon Brown’s announcement that he proposes to do away with self-regulation by the parliamentary gentleman’s club. Brown’s use of the gentleman’s club term is a bit ironic here (I think unintentionally so), as fair dealing is supposed to be one of the things gentlemen believe in.
ethics in government May 19, 2009
Posted by Bradley in : governance , comments closedThe UK expenses scandal has forced the resignation of the speaker of the House of Commons, Michael Martin. Meanwhile, Helena Kennedy argues forcefully for some real, rather than cosmetic, changes to British governance:
The temptation for the parties will be to sack a few people and redesign the allowance system but if public trust is to be restored there has to be a much more radical rethink. There has to be root-and-branch reform of parliament, both the Lords and the Commons, a written constitution, proportional representation, proper funding of political parties, a real curb on commercial lobbying, extended powers for select committees and fewer powers for the whips, a proper pay structure for MPs, more participative democracy and a re-ignition of local government to create new avenues for people to enter the world of politics. Any and all reforms must be guided by the knowledge that what people most want is an ethical political system. It is a moment to be seized and if the government is courageous enough it could even change its fortunes.
experimental formatting of equality bill April 29, 2009
Posted by Bradley in : governance , comments closedThis week the UK government published a huge Equality Bill and did so in a new format: if you use the pdf version you can see the explanatory notes and bill text on facing pages, rather than having to read the two documents separately. There’s an html version which is easier to read: setting the pdf reader to to see two pages side by side means the text is tiny on my monitor, and in trying to align the bill text and explanations they had to include a lot of empty space in the printed text. But the cost of the html version is you have to click around a lot – it is divided up into small chunks- and this is a bit irritating. Even though I ‘m pretty wedded to pdf format documents as a general rule, I think it is easiest to read the “interwoven” html version. But the drafting is very, very complicated – it’s not particularly user friendly in that respect.
self-regulation May 24, 2008
Posted by Bradley in : governance , comments closedThe last few weeks I have been spending a lot of time in meetings, participating in law school/university self-regulation. Meanwhile I have been working on a paper with the title Reconfigured Selves in Self-Regulation, which I am going to talk about at the Law and Society Association conference next week in Montreal. The aim of the paper is to look at who the selves are in financial self-regulation and to argue that they are much more complicated than we typically think they are.
regulators and politics April 18, 2008
Posted by Bradley in : governance , comments closedInteresting article by Tom Winsor in today’s FT, commenting on the applicability of the decision in Corner House Research and Campaign Against Arms Trade v Director of the SFO to economic regulators:
Despite the policy perils, and the outright illegality, of submitting to improper political threats, regulators now too often bend the knee. Some blur the distinction between the will of parliament and the will of ministers, insisting that appointed regulators lack the democratic legitimacy of elected politicians. When challenged that his legitimacy comes from the highest democratic authority – parliament and the rule of law – one economic regulator recently said to me that he regarded the supremacy of the rule of law as a “scary concept”. Such a fundamental error may suit control-obsessive ministers, but it does great harm. This decision of the High Court should fortify regulators when next they face interfering ministers. Their eager supplications should end.
Commentary at OurKingdom suggests that the article is “astonishingly muddled”, but I don’t see it in quite the same way. Winsor clearly says that:
Regulators can lose their independence or jurisdiction in two ways. Either parliament legislates, or the regulators, by their behaviour, show that they will give way to improper pressure to act contrary to their statutory duties.
lobbying and experts in the eu March 25, 2008
Posted by Bradley in : governance , comments closedALTER-EU, the Alliance for Lobbying Transparency and Ethics Regulation in the European Union, has published a very critical report on the EU’s use of expert groups.
The report makes the following recommendations:
The European Commission ought to reform the mechanisms by which it accesses expertise. It should ensure such mechanisms are both transparent and operate fairly. For the latter to be the case, different points of view must be balanced against one another where impartial scientific advice is sought in an atmosphere immune from corporate capture. Taking the following steps in relation to the Expert Groups would be a long overdue move in this direction:
1.Disclosure of Expert Group membership and key documents;
2.Full transparency around the launch of new Expert Groups;
3.Open and fair processes around the application for and selection of membership;
4.Strong safeguards against privileged access and unbalanced composition of these groups;
5.Dissolution of all Expert Groups controlled by industry (or any other special interests);
6.A broad review on the composition of all Expert Groups by the Commission’s Secretariat General.