3 Regulatory instruments and techniques 3.1 Introduction One of the core concerns of the previous chapter involved attempts to explain why regulation emerges. In this chapter, we turn away from considering attempts to explain regulation, towards questions of mechanics, in responding to questions concerning how to regulate. In so doing, we will assume that the collective goals of a regulatory regime have been identified and defer consideration to whether those goals may be regarded as legitimate to the discussion in Chapter 5. By turning our attention to the mechanics of control, the scope of this academic inquiry may seem more concrete and less abstract than the previous chapter’s discussion of theories of regulation. Yet the ground may not be quite as firm as it initially appears, for, as we shall see, the literature in this field is rich and fertile, having been ploughed by scholars from a range of social scientific disciplines and sub- disciplines, including law, economics, public administration, public policy, com- parative government and self-confessed ‘regulationists’. Despite the breadth of its variation, this literature is united by a common enterprise: to understand and explore the instruments and techniques by and through which social behav- iour may be regulated, and the relationship between those techniques and their context. Our discussion begins by exploring the wide array of tools and techniques that are used in regulating social behaviour in order to acquire an understanding of their mechanics. This exploration proceeds by classifying instruments into broad categories, based upon their underlying technique or ‘modality’ of control. It is important to acknowledge, however, that scholars have sought to classify regu- latory instruments in many ways, none of which can claim pre-eminence. No scheme of classification is watertight, including the system adopted here. Accordingly, the classification scheme that follows is intended as a heuristic device, providing a vantage point from which to begin our exploration of the mechanics of regulatory control. As we shall see, many instruments display a hybrid character, drawing upon an amalgam of mechanisms in seeking to elicit behavioural change, and the permeable, overlapping nature of the these categories 79 draws into sharper focus once we consider the law’s contribution to tool mechanics. Having examined the mechanics of regulatory instruments, the discussion then turns to questions of concerning the choice of regulatory instruments. These questions may arise at many different levels. Even if policy-makers can agree upon the class of instrument to use in any given context, further choices must be made concerning the preferred tool within that class and choices may also need to be made amongst different legal forms. In order to assist those involved in the regulatory process to navigate this potentially fraught territory, scholars have sought to illuminate a range of concerns that may bear upon instrument choice. These analyses can be broadly divided into those concerned with issues of tool effectiveness and those focusing on issues of legitimacy, the latter encom- passing a range of non-instrumental matters, including the institutional, cultural and political context in which regulation takes place. As the discussion proceeds, attention is drawn to the law’s relevance and influence both upon tool-mechanics and tool-choice. The concluding discussion draws together the threads of this discussion, seeking to illuminate the breadth and depth of the law’s influence on the efficacy and legitimacy of regulatory instruments. 3.2 Understanding regulatory instruments In exploring regulatory instruments, scholars have organised or classified them in many different ways, utilising a variety of tool dimensions as the basis for classification. Although no classification system has yet emerged from the mul- tiplicity of available schemes as definitive, such pluralism is a source of strength rather than a cause for concern, for it allows for a critical comparison between different instruments, depending upon the particular question and context in which such a comparison arises. The scheme around which this chapter is constructed classifies instruments according to the underlying ‘modality’ through which behaviour is sought to be controlled, identifying five classes: command, competition, consensus, communication and code (or architecture). Although the law’s role within each class is highlighted as the discussion proceeds, it must be borne in mind that, because a variety of classification systems have been adopted within scholarly analyses, the various extracts set out in this chapter may utilise different classification schemes and nomenclature in referring to a particular class or kind of instrument. 3.2.1 Command The typical starting point for understanding regulatory instruments, and the one with which lawyers are most familiar, begins with an examination of command- based mechanisms for regulating behaviour. These mechanisms involve the state promulgation of legal rules prohibiting specified conduct, underpinned by coer- cive sanctions (either civil or criminal in nature) if the prohibition is violated. 80 Regulatory instruments and techniques In this way, the law operates in its classical form À through rule-based coercion, and such mechanisms are therefore often referred to as ‘classical’ regulation or ‘command and control’ regulation in policy and academic literature. But although both lawyers and non-lawyers tend to associate regulation with classical command-based mechanisms, they are neither easy nor straightforward to establish. The following extract by Daintith illustrates how command works by presenting its features in critical context, contrasting the costs to central govern- ment associated with relying upon the command of law (which he terms ‘imperium’) with those associated with the government’s deployment of wealth (which he terms ‘dominium’): T. Daintith, ‘The techniques of government’(1994) Policy and its implementation . Central government can seldom solve problems simply by changing its own behaviour. . If there is to be real action À as opposed to a disguised ‘do-nothing’ approach—this must mean that some people at least are led to behave differently from the way they would have behaved in the absence of governmental intervention. .I use the term imperium to describe the government’s use of the command of law in aid of its policy objectives, and the term dominium to describe the employment of the wealth of government for this purpose. The point of choosing a special terminology to mark this distinction is that different constitutional frameworks exist, as we shall see, for the deployment of these two kinds of resources. Imperium and dominimum At their simplest, imperium laws involve setting a standard or rule for the behaviour of the relevant persons and providing sanctions for non-compliance. Examples from 1992 include the Timeshare Act, changing general contract rules to protect incautious purchasers of ‘timeshares’, especially in overseas property; the Competition and Service (Utilities) Act, supplementing the regulation of the privatized telecommuni- cations, gas, water, and electricity industries; and the Seafish (Conservation) Act, making new provisions for the control of sea-fishing. Such legislation, while more sophisticated in drafting, differs little in character from statutes like the Artificers and Apprentices Act of 1562 (fixing rules for apprenticeships and levels of wages), the Act to Regulate the Price and Assize of Bread of 1709 (requiring observance of bread prices fixed by the magistrates) or, indeed, from the distant ancestor of the Seafish (Conservation) Act 1992, the Act for the Better Preservation of Sea Fish of 1605 (which likewise imposed catch restrictions). In earlier centuries, however, regulatory laws, with some rather haphazard enforcement mechanisms, were about the only resource for economic management available to government for influencing private behaviour. Today government has available, in addition to a much greater enforcement capacity, enormous resources of public funds and public property, accumulated through taxation, borrowing, and purchase. The public today tolerates high levels of taxation and government spending; the level of total public expenditure in 1991À2 was 3.2 Understanding regulatory instruments 81 £244bn., representing 42 per cent of gross domestic product. While this represents a decline from its highest-ever share of 49.25 per cent in 1975À6, and while the fastest-growing areas of expenditure are those, like social security, which are in the nature of fixed commitments, government still has plenty of scope for buying compliance with policy by offering such incentives as grants, soft loans, tax conces- sions, free or cheap public services, and like inducements, to those who act consis- tently with its plans. Normally, therefore, the policy-maker can at least consider the use of dominium as a possible solution to all or part of his problem. Financial and compliance costs At first sight, however, simple considerations of cost would seem to militate against a switch from imperium. Economic incentives for compliance with policy may not form a major fraction of public expenditure, but they still cost the State (and hence the taxpayer) money, in a period when there is chronic concern about whether democratic States have reached the limit of their revenue-raising capacity. Moreover, such costs may be hard to control and to measure in advance, for reasons we consider later. Imperium, by contrast, seems to come cheap. While enforcement costs need to be reckoned with, costs of compliance with policy are placed wholly on those whose behaviour is to be affected. Taxing undesired activities may even bring the exchequer a net return, after collection costs, and consequential losses of other forms of revenue such as income tax, are taken into account. Attitudes to compliance costs are however changing. It has long been understood that there is no point in imposing compliance costs on those who simply cannot afford to pay them. If gov- ernment wants to improve the standard of insulation in existing houses, it will do far better to offer grants than to impose a duty to insulate: poorer householders may simply be unable to afford insulation, and imposing fines for breach of the duty will make them poorer still. Thanks to work by American economists, it is now also well understood that even where these costs can be absorbed, they may if excessive significantly diminish national economic welfare. They may involve wholly unpro- ductive activities, such as form-filling; they may also diminish industrial competi- tiveness in international trade. Quantification remains difficult, but consciousness of the issue is clearly manifest in repeated attempts at elimination of unnecessary imperium-type regulations, and in caution about the adoption of new ones. Legislative costs Such caution is likely to be reinforced by the important non-financial costs carried by imperium, chief among which are the political costs of securing the passage of legislation. It is a fundamental principle of our constitutional law, established in the Case of Proclamations, that the government cannot, otherwise than through parliamentary legislation, exercise regulatory power, that is to say, alter the existing legal rights of its subjects. If, therefore, government wants to use the technique of imperium for the achievement of a policy, it must either find existing legislative powers which are suitable for the purpose, or undertake the burden of new legisla- tion. Such a burden will be substantial. The legislation is quite likely to be lengthy and 82 Regulatory instruments and techniques complex. The function, after all, of the constitutional rules requiring parliamentary legislation in such cases in to protect the interests of the individuals whose pre- existent legal rights and freedoms are affected. While Parliament regularly delegates to ministers the power to make detailed regulations, it tends to spell out in the statute itself both the general scope of the regulations and the precise sanctions or other effects that may attach to them To secure the passage of such legislation, even if it is politically uncontroversial, requires heavy investments of scarce governmental resources. Government must draw on its stores of influence (over its own back-benchers and perhaps other Members of Parliament) and of time (within an always crowded parliamentary cal- endar). Even greater efforts may be required to pass legislation which divides Parliament deeply along party or (perhaps worse) other lines. Government may be ready to pay such costs for a variety of reasons. They may produce an immediate political dividend, as where the restriction of the rights of a particular group operates to enlarge the opportunities of a larger constituency À of consumers as against manufacturers, for example, or of tenants as against private landlords. They may be necessary in order to comply with international obligations already entered into. They may be seen as the only way of quickly awakening the public to what govern- ment regards as an emergency situation: the short-term price- and wage-freezes contained in the Prices and Incomes Act 1966 and the Counter-Inflation Act 1972 perhaps served this function. In some cases, however, these legislative costs can be cut by switching to domin- ium, whose legitimate exercise may involve much lower political costs. The reason is that while the spending of funds by central government, no less than the exercise of force, requires legislative authorization, that requirement rests not on the idea that individuals need protection against the oppressive use of funds, but that the public collective interest in the proper disposition of those funds should be safe- guarded. The distinction is reflected both in the juridical nature of the requirement and the nature of the legislation that results from it. Whereas the requirement of legislative authorization for regulatory measures was pronounced in clear terms by a court on the basis of the common law, that of legislative approval for, and appropriation of, public spending (as opposed to the raising of revenue by taxation) developed gradually over time, as the system of legislative appropriation of public funds developed from being partial and occasional to being regular and comprehensive. Enforcement of legislative control over spending has been very largely a matter for the Public Accounts Committee of the House of Commons (aided by the Comptroller and Auditor-General), rather than for the courts. In consequence, authoritative judicial statements of principle are lacking, and it remains unclear to what extent, as a matter of law, government remains free to spend public funds in advance of, or independently of, their appropriation. As a practical matter, the need to obtain an appropriation in due form can rarely be avoided for long, but it should be noted that the form of the annual Appropriation Act imposes few constraints on the way in which government spends the sums granted by reference to the areas of 3.2 Understanding regulatory instruments 83 departmental activity listed in the Act. As long as the expenditure falls within the functional description and the amount mentioned in the Act, government may apply that expenditure in pursuance of whatever policy it thinks fit. Systematic exploitation of this freedom, especially by way of attaching conditions to eligibility for, and terms and conditions of, government contracts, has in the past enabled governments to enforce policies which have not received legislative sanction. Examples are the minimum-wage policies pursued consistently for a hundred years before 1983 (which were sanctioned by a series of ‘Fair Wages Resolutions’ of the House of Commons), and the pay-restraint policy operated from 1977À8, whose only link with Parliament was a White Paper presented to À but never expressly approved by À the House of Commons. Despite the latitude it affords for such collateral, non-statutory policies, this form of legislative authorization for spending is the only one required, as a matter of law, by our constitution. As a matter of convention, however, government is expected to seek from Parliament continuing authority, in the form of a specific statute, for programmes of expenditure which may be expected to extend over a number of years. The convention remains vague, and exceptions are admitted: the current system of government funding of the universities, initiated in 1919, continued on an ‘Appropriation Act only’ basis until 1988. Till then it was thought that the demands of academic freedom warranted this exceptional treatment. The Criminal Injuries Compensation Scheme, initiated in 1964 on an ‘experimental’ basis, was not placed on a statutory footing until 1988. Even where, as is normal, specific legislation is procured, the process may be less burdensome and constricting for government than is the case with imperium legis- lation. With the major exception of social-security legislation, where the clear defi- nition of individual rights to receive benefit is of paramount importance, dominium legislation pays little attention to the position of the recipient, or would-be recipient, of the public funds dispensed. Its concern is rather with establishing substantive criteria for expenditure and mechanisms for ensuring that they are respected and the aims of the expenditure achieved. Often this can be done through fairly skeletal provisions which leave a very broad discretion to ministers and other funding agencies, even to the point of choosing which industries are to receive financial support and under what conditions. Procedures for the protection of individual interests, such as rights to make representations or to appeal against unfavourable decisions, are rare. Dominium statutes thus tend to be shorter and less complex, with much important detail being relegated to delegated legislation or, increasingly often, to wholly informal ‘schemes’ for the distribution of funds. In all these questions of style there is a clear contrast with imperium legislation. Other things being equal, therefore, the less onerous legislative requirements attaching to dominium may cer- tainly weigh with the policy-maker in his choice of implementing mechanisms. Dominium can thus offer great flexibility, which may be sufficient to accommodate even major changes in policy or its implementation. . A further advantage of dominium is the possibility of running a policy on a short-term, experimental basis, without the need for special legislative authority, until its effectiveness has 84 Regulatory instruments and techniques been demonstrated, an option which the formal and unilateral employment of imperium, such as I have already described, simply does not admit. The problem of uncertainty This idea of experimentation in policy responds to a problem of executive govern- ment which goes far to explain the often disappointing or even perverse results of policy initiatives. This is the problem of uncertainty, or more precisely, of the lack of reliable information. To operate efficient policies which seek to change people’s behaviour, government needs adequate information first about how they should behave À that is, what standard or target it should set; secondly, about how they are behaving now, and why; and thirdly, about what sanctions or incentives will align their behaviour with the desired standard or target. None of this information is easy to come by, but getting any of these answers wrong is liable to vitiate the policy. Consider the third question, with an example from the field of dominium. Suppose government decides that one answer to part of the unemployment problem is to offer grants to encourage people to retrain for different jobs. If the grants are too low, hardly anyone retrains, and the policy does not work. If the grants are too high, far more people may opt for retraining than was expected, which may strain government budgets; and they may retrain out of useful and employable occupations, so that the government ends up paying public funds to create a shortage of skills. The problem is one of knowing how very large numbers of individuals will react to financial incen- tives. The same is true of reactions to taxes and, less obviously, to regulatory mea- sures, even those with criminal penalties. Not everyone obeys. People will calculate the costs and benefits of compliance or non-compliance with regulations much as they calculate the incidence of taxes: such factors as rigour of enforcement, stigma of conviction, and severity of penalties may all play a role. . Overcoming these infor- mation difficulties thus remains vital to effective government, whatever its dominant ideology. Information requirements furnish a valuable key to the understanding of government choices among instruments available for the implementation of its policies. 3.2.2 Competition The drawbacks associated with using command-based techniques are often claimed to be so extensive that, at least in terms of policy rhetoric if not in political practice, such mechanisms appear to have fallen out of favour. These shortcomings, elaborated on below in the following extract by Ogus, help to explain the turn towards regulatory tools that harness the competitive forces arising from rivalry between competing units as a means for regulating social behaviour. A wide variety of such tools are available, often referred to as economic instruments, including charges, taxes, subsidies (which Daintith refers to in the preceding extract as a form of ‘dominium’ intervention), tradeable emission/property rights and changes in liability rules. These tools are briefly described and explained in the following two extracts. 3.2 Understanding regulatory instruments 85 A. Ogus, ‘Regulation’(1994) The general disenchantment with .traditional regulatory forms which has emerged in the last two decades has led to pressure not only to deregulate but also to exper- iment with other regulatory forms which encourage the desired behaviour by finan- cial incentives rather than by legal compulsion. Such incentives can be either negative (conduct is legally unconstrained but if a firm chooses to act in an undesired way it must pay a charge) or positive (if a firm chooses to act in a desired way it is awarded a subsidy). Although the idea has recently gained considerable currency as a method of dealing with externalities, particularly those arising from environmental pollution, it is far from new. Governments have sometimes sought to finance and determine the supply of public goods (for example, highways and public broadcasting services) by imposing charges on users. As regards negative externalities, economists have long recognized that the misallocation of resources can be corrected by imposing a tax on the firms responsible, thereby ensuring that the external cost of a product or service is ‘internalized’ in its price. Those advocating the use of economic instruments (EIs) have argued that they overcome many of the perceived deficiencies of traditional ‘command-and-control’ regulation (CAC). First, while CAC often gives rise to a complex and detailed set of centrally formulated standards, EIs can function on the basis of broad target goals, with a reduction of information and administrative costs for both the regulators and the firms. Secondly, the greater freedom conferred by EIs on firms creates incentives for technological development. Thirdly, whereas the enforcement of CAC is subject to considerable uncertainty as regards apprehension, prosecution and the level of sanctions, EIs entail the certain payment of specific sums. Fourthly, negative EIs (i.e. charges) generate funds which can be used to compensate the victims of exter- nalities; CAC regimes rarely allow victims to be compensated 2. Forms of economic instruments (a) Charges and taxes The most widely used EI form involves the imposition of a charge or tax on indivi- duals or firms. To correct misallocations arising from externalities, the amount set should be equal to the marginal damage which the individual or firm inflicts on others. Because the external cost of the activity is thereby borne by the actor, this should, if the activity takes place within a competitive market, ensure an allocatively efficient level of production and consumption. From an economic perspective, the principal function of the fiscal instrument is thus to induce a behavioural response. But, of course, taxes are more frequently used simply to produce revenue for general governmental purposes and in such contexts the amounts levied tend to be determined by distributional criteria, notably the ability to pay, rather than by reference to allocational considerations. In consequence, there are difficulties in locating ‘genuine’ EIs within the mass of fiscal provisions: some instruments may have been intended as revenue taxes, or charges to cover administrative expenditure, but have important incentive effects; others may have 86 Regulatory instruments and techniques been intended as EIs but in practice are dominated by revenue or administrative considerations. Subject to these difficulties, we may identify three main categories of charges or taxes which have, or may have, important incentive functions, and thus be treated as EIs. They represent interventions at different points in the causal relationship between a given activity and the external costs which it generates The first is imposed on the use of a product which gives rise to an external cost . [T]he relationship between use of a product and its external cost is inevitably impre- cise, and the amount levied may be arbitrary relative to the harm actually caused. This is particularly likely where, as in the case of pollution, the harm varies over time and in relation to the impact of other causes . . The second category . attaches to the quality and/or quantity of harmful substances emanating from a given activity; hence, in relation to pollution, it is often called an ‘effluent charge’. While evaluation of the external costs may remain highly problematic, the scaling of the payments to the harmfulness of the discharge as it enters the environment allows for a greater focus on the marginal impact of an activity Under the third category . the amount payable is directly related to the harm caused. Clearly, this approach is feasible only where there is a definite and immediate causal relationship between the activity and the harm and where the latter is easily quantifiable. In practice, therefore, it has been adopted predominantly in situations where specific measures have been taken to eliminate the harm and the tax represents the cost of those measures. Reimbursement of the costs incurred by public authorities in the disposal of waste constitutes a frequently adopted example. (b) Subsidies Subsidies represent the symmetrical opposite of charges and taxes: payments are made to individuals or firms to induce them to reduce undesirable activity. Economically, they can have the same effect as charges and taxes: if the payment reflects the marginal cost of eliminating the externality, an efficient allocation of resources should ensue. However, a subsidy may encourage output to grow to a larger size than that which would prevail under a perfect-internalising charge and in the long run may therefore generate inefficiency. And, of course, the distributional consequences are profoundly different. A tax on a firm increases its costs of produc- tion and also generates revenue which can be used to compensate those adversely affected, while the burden of a subsidy scheme falls on general taxpayers. Moreover, such a scheme may create perverse incentives, for example, by inducing firms to increase externalities in order to attract further subsidies. For these, as well as political-ideological reasons, there has been a decline in the use of subsidies, most notably in the field of environmental protection, where the ‘polluter-pays-principle’ has become accepted dogma. Even when subsidies were more generally available, there was a problem, as with taxes, in distinguishing those which were intended to operate as EIs from those designed primarily for redistributional purposes, hence to increase the wealth or income of specific groups of industries or households. 3.2 Understanding regulatory instruments 87 Nevertheless, examples can be given of current subsidies used for EI purposes. They may take the form of a grant (or an interest-free loan) to assist in the purchase of a particular product or equipment À e.g. home thermal insulation grants to limit energy consumption À or the preservation of some public good À e.g. wildlife habitats. Compensation may be offered for a loss of profits resulting from a voluntary restriction on the use of harmful products or processes. Finally, subsidies may operate indirectly through a reduction of tax liability; for example, an accelerated depreciation allowance may be granted for capital expenditure on pollution abate- ment equipment. (c) Tradeable emission rights An EI much discussed in the context of environmental protection is based on the idea that allocative efficiency can be achieved by allowing pollution rights to be traded. Under a ‘pure’ form of such a system, a public agency would set an absolute limit to the amounts to be discharged into a given airshed or watershed, derived from its perception of optimal ambient quality, and through an auction process sell rights to emit portions of that total to the firms which bid the highest price for them. Once acquired, the rights would be freely tradeable between firms, so that eventually they would be owned by the firms which would value them the most, because they have the highest costs of pollution abatement. Allocative efficiency will be achieved since the lower-cost abaters will find it cheaper to abate than to acquire the pollution rights. No jurisdiction has yet adopted tradeable emission rights in this form. The nearest to it can be located in the American regime for sulphur dioxide emissions which was introduced in 1990. Firms making such emissions are granted allowances which they may trade among themselves. No provision is, however, made for the auctioning of the allowances. The absence of such provision has been criticized both because efficiency is impaired, the transaction costs of ordinary trading being higher than those of auction-trading, and on the distributional basis that the system will not generate resources to compensate pollution victims. The economic instruments referred to by Ogus in the preceding extract all rely on some kind of direct payment, either to or from the regulated entity, depending on the form of instrument in question. Such instruments are intended to bring about the desired behavioural change through the operation of the competitive forces of the market. In this respect, attempts to shape social behaviour by alter- ing the legal liability associated with particular conduct can be seen as ultimately based on the competitive force of markets, discussed by Breyer in the following extract. S. Breyer, ‘Regulation and its reform’(1982) Changes in liability rules Scholars have sometimes advocated reliance upon (or changing) the law of torts to mitigate the harm caused by several market defects. For many years, the only effective course of action open to pollution victims was to sue the polluter for 88 Regulatory instruments and techniques [...]... behaviour of both suppliers and purchasers In other words, identifying the character of mandatory disclosure regimes serves to highlight the need to approach rigid typologies of regulatory tools and techniques with care, illustrating how particular facets of so-called conventional regulatory techniques of command and control may be creatively combined with market-based techniques to form a potentially... evaluation of product and price information, but that they are capable of accurately understanding and evaluating the information 97 98 Regulatory instruments and techniques provided Various empirical studies indicate that the impact of information on individual behaviour is highly context sensitive For example, in relation to the regulation of financial and investment products, where mandatory disclosure... accounting, finance, economics and (to a lesser extent) corporate law 3.2.3 Consensus The law’s facilitative role also underpins a third class of regulatory instruments: those reliant upon consensus and co-operation as the means through which behaviour is regulated This class spans an exceptionally broad spectrum of regulatory arrangements It may include regulatory tools and techniques typically referred... If regulatory rule-making remains with the legislature or an independent agency, groups representing such firms have the task of exerting influence on those institutions and diverting them away from public interest goals or other, competing, private 93 94 Regulatory instruments and techniques interest claims Of course, delegation of the regulatory powers to SRAs relieves the groups of this task and. .. technology is deployed to monitor compliance and/ or to enforce the regulatory standard, design is functioning in some regulatory dimensions but this falls short of ideal-typical techno-regulation With techno-regulation, design operates alone in the three regulatory dimensions [i.e cybernetic division of regulatory tasks into standard setting, information gathering and behaviour modification] Moreover, it... automobiles than on those already on the road, and by requiring pollution control technology to be installed in new plants, controls not demanded of old ones Theoretically, enforced self-regulation makes possible nonuniform optimal standards that would give greater protection than any (stricter or more lenient) uniform 107 108 Regulatory instruments and techniques standard There are a number of ways that a... various tools and techniques that may be deployed to regulate behaviour, we now turn our attention to questions of tool choice How are policy-makers to choose between the broad array of instruments available to them in pursuing their chosen regulatory objectives? The following extract from Ogus compares the relative advantages and disadvantages of commandbased techniques with competition-based techniques. .. public regulation? First, since self -regulatory agencies (hereafter SRAs) can normally command a greater degree of expertise and technical knowledge of practices and innovatory possibilities within the relevant area than independent agencies, information costs for the formulation and interpretation of standards are lower Secondly, for the same reasons, monitoring and enforcement costs are also reduced,... these frameworks, social order is a matter of aligning and integrating the diverse social routines and institutions that compose modern society 103 104 Regulatory instruments and techniques It is a problem of ensuring co-ordination À getting the trains to run on time À not of building normative consensus In the paragraph, immediately following this, Garland continues: ‘The criminologies of everyday life... necessary and, in some circumstances, providing a mechanism for dispute resolution 105 106 Regulatory instruments and techniques Hybridity in tool mechanics is particularly prevalent in relation to various forms of self-regulation Even within classical self-regulation, which ultimately relies upon agreement between members of the regulated community, the promulgation and enforcement of norms by the regulatory . breadth and depth of the law’s influence on the efficacy and legitimacy of regulatory instruments. 3.2 Understanding regulatory instruments In exploring regulatory. explore the instruments and techniques by and through which social behav- iour may be regulated, and the relationship between those techniques and their