Are economists Kings? Economic evidence and discretionary assessments at the UK utility regulatory agencies

Abstract

Abstract UK sectoral regulatory authorities are hybrid communities of, among others, lawyers and economists. Since the liberalization of essential services, expert economists enjoy broad discretionary powers in advancing the agencies’ broad statutory objectives. Yet, despite the significant societal impact of economic regulation, existing scholarship in the fields of competition law and regulation and public law has, with very few exceptions, disregarded these actors and the very essence of their work. This article aims to address this gap in the literature by blending theoretical with empirical insights deriving from 14 semi-structured elite interviews with regulatory economists in the regulatory agencies for energy (Office for Gas and Electricity Markets), telecoms (Office for Communications), and water (Office of Water Services). It explores the increased reliance on economics in the regulatory decision-making process and the impact this has had on the authorities’ decision-making and discretion, when making complex trade-offs between the various goals of the regulatory enterprise. In doing so, it puts forward a theoretical framework inspired by Craig Parsons’ typology of political action so as to identify and examine the nature and scope of the constraints that inform and shape the influence of economics in the exercise of regulatory discretion. This endeavour is significant in the sense that it is the first of its kind and, in that it provides a normative framework of analysis that can be applied in other areas of regulation heavily infused with and influenced by economic evidence and analysis, such as ‘pure’ competition law enforcement by both sectoral and competition authorities.