Abstract
AbstractThis article is concerned with how statutory duties structure regulatory decisions. Rather than focusing on the role of the courts, we explore statutory interpretation by a regulator as a quasi‐autonomous exercise, with external influences and internal norms and customs. To investigate this further, we conducted a series of semi‐structured elite interviews with senior members of the energy ‘regulatory community’, past and present. Energy regulation has been selected as a case study due to the controversies in recent years over the legitimate limits of economic regulation, as successive governments have imposed broader public interest goals on the regulator, resulting in a proliferation of statutory objectives. This increased complexity has arguably obscured the appropriate contours and rationales of economic regulation. Nevertheless, it is unrealistic to completely separate regulatory policy and politics.
Highlights
This article is concerned with one core question: how do statutory duties structure agency decision making? We follow the approach of Mashaw, viewing an agency’s interpretation as ‘a legal practice
While judicial interpretation necessarily influences regulatory decision making,[2] in substantive terms, this governs the outer bounds of agency autonomy; there remains a discretionary sphere for a regulator, where the duties require competing interests to be prioritized and often trade-offs between them to be made
Another participant was of the view that imposing costs on consumers in order to deal with policy objectives gives rise to questions of both principle and pragmatism; there comes a point at which ‘the redistributional aspect is so significant that this goes beyond the regulatory authority and it becomes a matter for government’, historically there have been differing views between regulators on where to draw this line.[240]
Summary
This article is concerned with one core question: how do statutory duties structure agency decision making? We follow the approach of Mashaw, viewing an agency’s interpretation as ‘a legal practice. Since the privatization of the United Kingdom (UK) gas and electricity industries in the mid- to late 1980s, there have been frequent revisions of the regulator’s statutory mandate, leading to questions over the ‘credibility’ of the regulator (and the regulatory regime).[6] across all sectors, and in this one in particular, criticisms have been levelled at governments for the imposition of complex, prolix, and contradictory objectives, often requiring regulators to make choices of an essentially political character, leading ‘agencies into high policy by the backdoor’.7 To address these issues, and the challenges that they pose for regulators, we conducted a number of interviews with senior members of the energy ‘regulatory community’, past and present.
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