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Regulation and policy


Abstract

This chapter examines various ways in which the word ‘regulation’ has been used and its significance in the context of public governance. It argues that elected legislatures enshrine state policy in the laws they pass. The implementation of the legislation by the executive requires the framing of necessary rules and regulations to take care of all the possibilities that the law may have to deal with. The staff of the executive, which implements these laws and the related rules, are the ‘regulators’. Neither laws nor the rules and regulations relating to them can, despite the best intentions, take all possible situations into account. Hence, the regulator always has discretionary decisions to take on matters that might range from the very major to the very minor depending on the strictness with which the laws and rules for them have been drafted. We call the system of implementation as part of the government department as ‘old-style regulation’. When the whole or a part of the implementation is transferred to an independent regulatory agency, we have ‘new-style regulation’. In such a transfer, the rule-making powers enjoyed earlier by the old-style regulator must be transferred to the newly-formed independent regulator. To the extent that the law is loosely drafted and leaves flexibility in implementation, the new-style regulator must be able to set out the necessary rules and regulations. Of course, the executive could also transfer merely the execution without the rule-making powers. In that event, the very need for such a new agency must be questioned.

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