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Jane Kelsey

‘Regulatory Responsibility’: Embedded Neoliberalism and its Contradictions

The proposed Regulatory Responsibility Bill is part of the of this kind of design’ (Scott, 2008). unfinished business of regime change (Wade, 2008) from This article examines the prospects for ‘regulatory responsibility’ as an instrument Keynesian welfarism to neoliberalism between 1984 and for embedded neoliberalism and concludes that the necessary conditions 1994. The imposition of far-reaching pro-market disciplines are either not there or not sustainable. It on domestic regulation is intended to complement the argues that political consensus is eroding. Faith in markets to regulate has been codification of monetarism and fiscal austerity through the severely damaged in New Zealand and internationally. New Zealand’s track re- Reserve Bank Act 1989 and Fiscal Responsibility Act 1994 cord contradicts the article of faith that less (since absorbed into the Public Finance Act). Although these regulation holds the key to international competitiveness. Threats of investor disciplines are inscribed in ordinary legislation they are backlash if governments re-regulate attributed a ‘constitutional’ standing that their proponents markets and redistribute wealth generate a sterile spectator democracy which cannot hope will embed them in perpetuity. deal effectively with crises. Moves to lock governments into a neoliberal paradigm The strategy aims to prevent New Zealand deliberately constrain the generation and governments from making monetary, pursuit of necessary alternatives. fiscal and regulatory decisions that erode wealth, by removing such decisions from If at First You Don’t Succeed Jane Kelsey is a Professor of Law at the cyclical politics. Former Treasury secretary The neoliberal regulatory regime has University of Auckland, and is one of New Zealand’s best-known critical commentators on Graham Scott encapsulated this ideal proved more difficult to enact than its issues of globalisation, structural adjustment and shortly before the 2008 election when he monetary and fiscal counterparts, so far decolonisation. She is the author of numerous called for action to ‘address the agenda spanning 15 years. In 1994 the Finance books and articles on the neoliberal restructuring of quasi-constitutional issues that might, and Expenditure Committee on the of New Zealand since 1984, including the best- selling The New Zealand Experiment. A World either in specific areas or perhaps more Fiscal Responsibility Bill, chaired by Ruth Model for Structural Adjustment?’. Her latest generally, address openly the clash between Richardson, called for work to address book on globalisation, Serving Whose Interests? short-term political incentives and long- ‘the adequacy of existing regulatory The Political Economy of Trade in Services Agreements, was published by Routledge in term wealth creation.’ The Reserve Bank processes to produce quality regulation’. In 2008. Act offered the ‘prime example of success November 1997 the Cabinet Committee on

Page 36 – Policy Quarterly – Volume 6, Issue 2 – May 2010 Strategy and Priorities agreed in principle An annual Regulatory A higher burden of proof applies to to a proposal by National’s commerce regulatory proposals that are likely to: minister John Luxton for a Regulatory Reform Bill, • impose additional costs on business Responsibility Act modeled on the Fiscal during the current economic Responsibility Act (CSP(97)M42/9). presumably of an recession; When the momentum stalled, the omnibus kind, will • impair private property rights, market New Zealand Business Roundtable competition or the incentives on hosted a workshop, Towards a Regulatory ‘make it quicker and businesses to innovate and invest; or Constitution, which featured Richard • override fundamental common law Epstein (Epstein, 2000). With other easier to remove or principles (as referenced in chapter 3 business groups it commissioned simplify unnecessary, of the Legislation Advisory Committee Bryce Wilkinson’s report Constraining guidelines). Government Regulation (Wilkinson, 2001), ineffective or Cabinet imposed a raft of ex ante and which expanded the Luxton proposal into ex post requirements on ministers and a draft bill with a long list of profoundly excessively costly officials. The ex ante measures involve ideological regulatory principles. A more rigorous market-focused audit slightly reworked version was introduced requirements in mechanisms, open-ended advice from as ACT MP Rodney Hide’s Regulatory primary legislation’. officials on regulatory options, stricter Responsibility Bill 2006. In May 2008 the surveillance by the Treasury-based Commerce Committee recommended Regulatory Impact Assessment Team that the Hide bill not be passed and that (RIAT) and certification of consistency by a high-level expert task force should The centrepiece is the statement ministers and officials. examine various options to improve from the ministers of finance and Departments must prepare an regulatory review and decision making. regulatory reform, ‘Better Regulation, annual regulatory plan of all known and Given this history, it was obvious that Less Regulation’, with which ministers anticipated proposals to introduce, amend, the incoming National-led government and officials must now comply. New repeal or review legislation or regulation, would come under strong pressure to regulation will be introduced only where to the extent possible. Regulatory impact pass the legislation. A key plank in the it is ‘required, reasonable and robust’, statements (RIS) become government confidence and supply agreement between while existing regulation will be reviewed documents that advise Cabinet on problem National and ACT was the establishment ‘to identify and remove requirements that definition, objectives, identification of a taskforce to carry forward work are unnecessary, ineffective or excessively and analysis for the full range of on the Hide bill. Hide became the costly’. Specifically, the government will practical options, without necessarily minister for regulatory reform. Roger not take a regulatory decision without recommending a preferred policy. Agency Douglas became responsible for the bill. considering ‘the evidence, advice and certification of the RIS must disclose Graham Scott was appointed to chair the feedback from consultation’, and being any gaps, assumptions, deficiencies or Regulatory Taskforce, which reported with fully satisfied that: uncertainties in the analysis and indicate a refined version of the Hide legislation in • the problem cannot be adequately policy options whose effects are not likely September 2009. addressed through private arrange- to align to the government statement. ments and a regulatory solution is Independent quality assurance of RIS will ‘Better Regulation, Less Regulation’ required in the public interest; be provided by the RIAT where regulation For reasons discussed below, the legislative • all practical options for addressing the has significant effects on economic passage of the Regulatory Responsibility problem have been considered; growth, and otherwise by a person in Bill is not guaranteed. Perhaps in • the benefits of the preferred option not the sponsoring agency independent of anticipation of this, a month before the only exceed the costs (taking account the authors. Ministers must certify that release of the taskforce report Cabinet of all relevant considerations) but will they have carefully considered whether endorsed a ministerial statement entitled deliver the highest level of net benefit the proposals to Cabinet are consistent ‘Better Regulation, Less Regulation’ (CAB of the practical regulatory options with the expectations in the government Min (09) 27/11). The August 2009 package available; statement. serves two functions: it strengthens the • the proposed obligations or entitle- The ex post measures require a post- existing regulatory impact assessment ments are clear, easily understood and implementation review of ‘significant’ mechanisms and reorients them towards conform as far as possible to established regulations that Cabinet may agree risk-tolerant deregulation which aims to legislative principles and best practice to despite non-compliance with the accept or manage rather than eliminate formulations; and government statement. Such reviews risk (Dodds, 2006, p.527); and it provides • implementation issues, costs and must be signed off by the responsible a fall-back position in case the bill is risks have been fully assessed and minister and the ministers of finance and defeated. addressed. regulatory reform. All departments must

Policy Quarterly – Volume 6, Issue 2 – May 2010 – Page 37 ‘Regulatory Responsibility’: Embedded Neoliberalism and its Contradictions

develop systems for regulatory scans that Various of its proposals would unsettle strategy is likely to succeed as an identify all primary, secondary and where the traditional distribution of formal instrument for embedded neoliberalism. It possible tertiary regulation under their constitutional responsibilities between considers and rejects claims to legitimacy responsibility that is or may be unnecessary, the executive, parliament and judiciary. based on its quasi-constitutional status, ineffective or excessively costly. The initial Its recommendations aim to empower preferring to describe the legislation as scan must be completed by 30 June 2010, corporations and investors to pressure ‘meta-regulation’. It then argues that with subsequent six-monthly reports. governments to advance their vested the political, normative, economic, An annual Regulatory Reform Bill, interests through a range of judicial, reputational and institutional conditions presumably of an omnibus kind, will ‘make parliamentary and ‘expert’ mechanisms. that are necessary for its enactment, it quicker and easier to remove or simplify And it has an ideological agenda that effective implementation and long-term unnecessary, ineffective or excessively builds on previous proposals that are sustainability do not exist. costly requirements in primary legislation’. linked directly or indirectly to ACT and A raft of existing reviews of regulatory the Business Roundtable. Constitutionalism regimes will continue, particularly those By comparison, cabinet’s August Successfully ascribing ‘constitutional’ considered to have a significant impact on package has come in under the radar. Like status to a piece of ordinary legislation productivity. These requirements are to the taskforce report, it sets out to reorder bolsters its credibility and durability. be fully operational by mid-2010. the priorities, activities and resources of Advocates of a Regulatory Responsibility Adoption of the taskforce’s government agencies to privilege market Bill have consistently talked up its recommendations would add six further interests and mechanisms. Its more constitutional pedigree. A prime example elements to the regime. First, the proposed rigorous mechanisms will strengthen is the Business Roundtable’s workshop Regulatory Responsibility Act sets out Treasury’s surveillance role over all other Towards a Regulatory Constitution. principles categorised under ‘Rule of state agencies, and presumably will be Keynote speaker Richard Epstein argued Law’, ‘Liberties’, Taking of Property’, ‘Taxes reinforced through performance indicators for protection against regulatory takings and Charges’, ‘Role of Courts’ and ‘Good and purchasing contracts. The requirement that violated constitutional guarantees Lawmaking’, and compliance obligations that these new obligations are met from of private property, with other aspects of including certification. Second, ministerial within existing departmental budgets will ‘government intrusion’ to be addressed guidelines would be issued pursuant to divert resources from substantive policy through ‘either a major regulatory the act. Third, private actors could seek and regulatory initiatives and subordinate constitution or some other means of judicial declarations of incompatibility pro-social interventions. imposing constitutional restraint on stating that proposed legislation is government’ (Epstein, 2000, p.5). incompatible with the principles in the Embedded neoliberalism? That discourse draws on the act, extending to existing legislation after This section of the article examines ‘constitutional economics’ of James ten years. Fourth, judges would have to whether the ‘responsible regulation’ Buchanan, leader of the public choice adopt a statutory interpretation that is school with its deeply cynical view of consistent with the principles, where electoral politics and state bureaucracy. possible. Fifth, a permanent external Buchanan’s fiscal and monetary Statutory Advisory Council would be The segue from the constitutionalism centres on protecting mandated to review the general body wealth and removing the constraints of legislation, and specific proposed or public-law meaning on accumulation that were imposed existing legislation, against the principles during the 20th century. His ideal of in the act and ministerial guidelines, of ‘constitutional’ ‘constitutional politics’ provides a set of and consult with public entities where as supreme law quasi-permanent rules that define the appropriate. Lastly, the parliamentary parameters for ‘ordinary politics’ and Regulations Review Committee would be which distributes law making and impose disciplines that empowered to consider submissions that require governments to make ‘choices proposed or existing legislation departs sovereign power within constraints’ (Buchanan, 1991, from the principles. within a state to the pp.4-5). There is obvious overlap between The segue from the public-law the criteria in the government statement ‘constitutional’ status meaning of ‘constitutional’ as supreme and the taskforce principles, especially law which distributes sovereign power on regulatory ‘takings’, and in various of ordinary legislation within a state to the ‘constitutional’ status procedures, such as ministerial certification is seductive and of ordinary legislation is seductive and and regular reviews of existing legislation misleading. The Buchanan and Epstein for compatibility with the principles. misleading. theories of economic constitutionalism It is understandable that most rely on a narrow 17th-century version debate has focused on the taskforce. of the rule of law and the presence of

Page 38 – Policy Quarterly – Volume 6, Issue 2 – May 2010 constitution-like characteristics, notably suggests a desire to downplay their pre-established criteria and processes ... a series of high- partisan positions: Don Turkington was that aim to depoliticise decisions of profile regulatory described blandly as a ‘company director’, elected governments and pre-commit rather than the director of the Centre governments to a set of general principles, failures, from leaky for Independent Studies in Sydney. norms or outcomes. The state is relegated Confirming its ideological predilections, to a self-limiting role vis-à-vis capital. buildings and the foreword to the report gives special State actors are required to regulate in the finance companies thanks to Richard Epstein. interests of wealth accumulation, while Indeed, the bill may not even secure non-market and pro-social objectives are to electricity and consensus support from the governing constrained. coalition, especially in election year. The international literature has telecommunications, Ministers might justifiably fear that developed a number of alternative terms has generated populist legislation like ACT’s three that depict the neoliberal regulatory strikes law or National’s emissions regime more accurately and with less scepticism that trading regime would fail any rigorous hyperbole. Cass Sunstein described cost-benefit analysis, including the the Reaganite Republicans’ proposed markets and corporate proposed bill. A pre-election audit of Contract with America (Gingrich and interests can National, ACT, Future NZ and Mäori Armey, 1994) and alternative regulatory Party manifestos against the bill’s charters as ‘supermandates’ whose deliver ‘responsible’ principles could prove embarrassing. An requirements, if implemented, would attack by Labour and the Greens which have cut across all regulatory statutes regulation. cites examples of popular moderate laws (Sunstein, 1996, p.270). He distinguished that could be struck down by the return between ‘substantive supermandates’ bipartisan consensus on the monetary of neoliberal extremism would generate that enact new decisional criteria that policy targets and tools of the Reserve real political traction. agencies must follow, such as a general Bank (Goff, 2009). It seems untenable Even if the legislation were to be passed requirement for cost-benefit balancing, that Labour would embrace a better under National, there is no guarantee it and ‘procedural supermandates’ that drafted but in some ways more extreme would survive a change of government dictate processes. In the European context version of the Hide bill, when the need in one or four years time. The Cabinet Claudio Radaelli has described the for the legislation is commonly blamed regime that was implemented without regulatory impact assessment as a ‘meta- on Labour’s preference for central plan- the need for any parliamentary scrutiny is policy’ that sets rules on the process of ning and redistribution (Scott, 2008). an even less secure vehicle for embedding rule formation (Radaelli, 2007, p.196). The troubled history of the neoliberalism. Bronwen Morgan, writing of Australian Regulatory Responsibility Bill shows that competition policy, applies the term there never was a bipartisan consensus, Normative conditions meta-regulation to describe ‘a set of despite the assertion in the taskforce’s The principles and objectives of meta- institutions and processes that embed terms of reference that it was ‘carrying regulation also need some normative regulatory review mechanisms into the forward the Commerce Committee’s grounding. At the most superficial every-day routines of governmental work’ on the Hide bill in the Labour era. level, slogans like ‘better regulation’ and policy-making’ (Morgan, 1999, p.50). The implication of seamless continuity ‘regulatory responsibility’ have positive is disingenuous. The select committee connotations that marginalise critics: Political conditions proposed a high-level taskforce to who wants to defend worse regulation Because meta-regulation assumes the consider options for improving regulatory or regulatory irresponsibility? The power to constrain the government’s op- review and decision making, including principles of ‘responsible regulation’ are tions, it still requires legitimation. The through legislation and standing orders, also equated to the national interest. Regulatory Responsibility Bill draws but not limited to the options that were According to the explanatory note to heavily on analogies with the Reserve placed before it. The National/ACT Hide’s bill: ‘Regardless of differences Bank Act 1989 and the Fiscal Responsi- taskforce was required to recommend a over policy, Acts and regulations will be bility Act 1994, which until recently have draft bill. constitutionally sound and in the public been treated as qualitatively superior to Moreover, the select committee said interest if they respect such principles.’ ordinary statutes. But the political cli- the chair should be an expert who has But light-handed pro-market regu- mate has turned. There was cross-party not been involved in advocating for or lation can no longer claim to be uncon- consensus when the Reserve Bank Act against any of the options. Graham Scott tested orthodoxy. A generation of New and Fiscal Responsibility Act were in- was a strong advocate of a Hide-style bill, Zealanders rejected its economic funda- troduced. That no longer exists. In No- as were many of the committee members. mentalism in the 1990s. More recently, a vember 2009 Labour formally ended the The announcement of its membership series of high-profile regulatory failures,

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from leaky buildings and finance com- paradox that New Zealand was at the While the August 2009 ministerial panies to electricity and telecommunica- forefront in adopting purportedly high- statement both stacks the deck and tions, has generated scepticism that mar- growth policies, but still ranks toward the installs the fire alarms, the taskforce goes kets and corporate interests can deliver bottom end of the OECD’s productivity much further. It creates opportunities for ‘responsible’ regulation. league. ‘Better Regulation, Less Regulation’ business interests to intervene at select Similar shifts are evident and the Regulatory Responsibility Bill are committees, through judicial processes, internationally. The Reserve Bank and seeking to embed that strategy. seeking reviews by the Regulation Review fiscal responsibility legislation drew on Committee or by participating in the the ascendant international orthodoxy Reputational conditions ‘independent oversight’ of regulation. of monetarism and fiscal austerity, When political, normative and economic The paradox of public choice comes encapsulated in the Washington conditions turn sour, the most reliable to the fore: the rent-seeking business Consensus. The regulatory responsibility bulwark against regime change is to create community becomes the guardian of the regime rests its claim to orthodoxy on fear of reputational damage to politicians public interest while elected politicians are the adoption by most OECD countries of and the country from a crisis of business pincered between threats of investor flight regulatory management regimes that use confidence. In a return to pre-democratic and credit downgrades and an electoral regulatory impact assessments and cost- 17th-century politics, the propertied backlash against corporate dominance, benefit analysis (Malyshev, 2006) and become privileged political actors who are failure to deliver on manifesto promises the guidelines and checklists for ‘quality empowered to promote and protect their or impotence in the face of crises. regulation’ developed by the OECD and individual and class interests. Positive APEC (OECD, 1995; APEC/OECD, 2005). political economists colourfully describe Institutional conditions Again, ‘orthodoxy’ overstates the case. the support mechanisms as ‘stacking the The sustainability of the proposed regime Many of the New Zealand proposals, deck’ and setting up the ‘fire alarms’. also depends on its impact on effective such as declarations of incompatibility Radaelli argues that regulatory impact public administration and the regulatory and compensation for ‘takings’, are at assessments do not exist to ensure ‘quality’ interventions that people expect from the extreme end of the OECD spectrum. for its own sake (Radaelli, 2008, p.6). their governments. Both the Cabinet They are closest to the United Kingdom Principles, such as ‘the benefits must package and the proposed bill impose approach, where the flagship financial exceed the costs’, and hurdles, such as ‘no contested, complex and costly obligations services regime failed so dramatically in new rules unless a market failure is proven on diverse public agencies in the guise of the post-2007 financial crisis. beyond doubt’, ‘stack the deck’ to ensure improving quality through rational and the broad political trajectories of policies objective procedures and criteria. The Economic conditions are maintained, even if majorities change. methodology of ‘cost-benefit analysis’ The economic rationale for a neoliberal Fire alarms, such as published regulatory is imbued with scientific qualities of regulatory regime is that over-regulation impact analyses, alert the business certainty, precision and objectivity. But is damaging New Zealand’s international constituency when something ‘dangerous’ these assessments are not conducted in an competitiveness. The Cabinet paper in is under contemplation. antiseptic laboratory: August 2009 argued that New Zealand Law making is not a de-contextualised needs a ‘better’ regulatory environment exercise in rational policy analysis, and than its OECD peers to boost its tools like the standard cost model or international competitiveness. In support Lessons can and cost benefit analysis are operated in a it cited the OECD’s opinion that ‘mediocre process that is contingent on specific policies will not be enough to overcome should be learned institutional settings, history, and the economic disadvantages of New from the historical purposeful political action. (Radaelli, Zealand’s small size and geographical 2007, p.7) isolation’, and the fact that other OECD compromise of the countries often struggled to maintain ‘Better Regulation, Less Regulation’ regulatory discipline. 20th century, where requires officials and ministers to apply There is no logical nexus. As Chye- the state was forced pro-market criteria for ‘quality regulation’ Ching Huang points out, New Zealand that are highly subjective and operate already has a relatively high international to step in to absorb, as closed reference points that exclude ranking for core economic regulation: ‘competing visions for the good society, second in the world in the World Bank’s collectivise and different regulatory motivations and Ease of Doing Business rankings, and concerns about political and public fifth in the Heritage Foundation and Wall redistribute risks legitimacy’ (Haines and Gurney, 2003, Street Journal Economic Freedom Index arising from a barely- p.354). Ministries and communities (Huang, 2010, p.95). Moreover, the OECD’s of interest that have non-commercial 2009 Economic Survey highlighted the regulated market. responsibilities and appeal to different

Page 40 – Policy Quarterly – Volume 6, Issue 2 – May 2010 ideological premises, values, priorities and made it clear that there was no new fund- embedding neoliberalism. The dogmatic constituencies will need to reconstruct ing. Presumably, resources would be re- pursuit of that project is profoundly their rationale in market terms if they are allocated to the deregulation project from irresponsible. to be heard at all. regulatory activities that are likely to fall It exemplifies what John Toye called The primacy of economic analysis over foul of the ministers’ statement and Trea- the ‘Empowering Myth’, which freezes political bargains places the responsibility sury surveillance. or concretises ideas, ‘losing sight of the for ‘quality regulation’ on professional Far from improving the quality fact that they are always in flux, always economists ahead of sector-specific policy of government, Sunstein suggests embedded in critical debate’ (Toye, 1994, experts. Scott presaged this reordering in that onerous, complex and subjective p.39). Dominant paradigms are not set in his speech to the New Zealand Institute obligations are likely to have the reverse stone. History shows that they are fluid of Economic Research in 2008, when he effect: and contested. Lessons can and should be recommended putting Treasury ‘back learned from the historical compromise A system in which agencies decide into high level regulatory policy from an of the 20th century, where the state was what is to be done only after economic development perspective’ after forced to step in to absorb, collectivise considering all costs and benefits is some of its functions were transferred ‘to and redistribute risks arising from a likely to be time-consuming and will organisations that are less concerned with barely-regulated market. The turmoil inevitably produce large-scale errors. economic analysis and more in tune with of successive financial crises raises the Such a system imposes enormous data the central planning and coordination spectre of history repeating itself. collection requirements on agencies methods that have replaced it’ (Scott, Tragically, the obsession with paradigm and forces them to make difficult and 2008). maintenance prevents the exploration unscientific judgments about basic Finally, government agencies must of viable alternatives. Truly responsible values. (Sunstein, 1996, p.301) be able to function. The August Cabinet regulation would actively stimulate new paper acknowledged that some depart- ideas to meet the imminent challenges of ments had concerns that ongoing regu- Contradictions global financial instability, energy scarcity, latory scans would divert resources from This article has argued that the necessary food shortages, global warming and the other priorities and that implementation conditions do not exist for the ‘regulatory obscene imbalance of wealth and poverty. timeframes were unreasonable. Cabinet responsibility’ regime to advance its goal of

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