Meta-regulation: the rules that govern the rules
Whilst there is a growing body of research on regulation as an instrument of health policy, much less attention has been paid to meta-regulation. Socio-legal scholar Bronwen Morgan defines meta-regulation as “a set of institutions and processes that embed regulatory review mechanisms into the every-day routines of governmental policymaking”. In other words, meta-regulations are the rules that govern the rules; they are the procedures and guidelines which dictate how regulations – across areas including, but not limited to, health – should be made, updated, and unmade. As such, they are crucial to understanding the process and substance of policy-making. Our recent article sought to shed light on these frameworks and explore the pathways via which they affect health policy, using the European Union’s (EU) Better Regulation agenda as an illustrative example. In the article, we argue that paying attention not only to the actions of individuals and organisations, but also to the rules that shape the political ‘game’ in which they engage, has the potential to help us better understand policy-making.
Such rules may appear highly technical and value-neutral, but they have the potential to shape the substance of decisions. They do this by, for instance, stipulating what we measure when we assess how well an existing policy has worked or what impacts a proposed intervention may have, or by determining who needs to be consulted at which points during policy development. In what follows, we illustrate the role of impact assessment drafting and oversight requirements – an example of meta-regulation – in the development of rules on the advertising of alcohol in the EU.
The EU Better Regulation agenda
The importance of meta-regulation can be illustrated by looking at the EU’s Better Regulation agenda. The primary ownership of Better Regulation lies with the European Commission, the EU’s executive. Although it is not enshrined in law, the Better Regulation guidelines and toolbox dictate how EU civil servants develop, evaluate, and implement policy across all areas, including health. In practice, Better Regulation consists of five main tools: evaluation, impact assessment, consultation, quality control, and regulatory stock management.
Evaluations or fitness checks are tools to retrospectively assess how well a policy, or set of policies, respectively, has worked. Under Better Regulation, all legislation must be evaluated before it is changed, exploring not only whether it is doing what it was intended to do, but also whether there is scope to make it simpler, less costly, or more efficient.
Impact assessment, a forward-looking analysis of the anticipated impacts of a policy option, is required as a basis for all significant proposals. In practice, this means that the European Commission – a ‘non-political’ body – can only propose or amend legislation with a corresponding impact assessment to support its choices.
A third pillar of Better Regulation is stakeholder consultation. These rules determine who should be consulted, how, at what points in the process, and for how long. In a standard case, consultation will take place prior to, during and after policy development, and will combine open, public-facing online questionnaires, with more targeted surveys and closed meetings or workshops for relevant interest groups.
A quality control function is fulfilled by the Regulatory Scrutiny Board, a quasi-independent oversight body. The Board reviews all impact assessments and significant evaluations, in addition to advising on Better Regulation more generally. Lastly, rules aimed at managing the ‘stock and flow’ of regulation determine when and why legislation can be reopened, changed, or repealed.
Better Regulation and health policy-making
Meta-regulation shapes how actors can exert influence, but it is also (and consequently) shaped by actors. From the perspective of a commercial actor seeking to influence health policy-making, for instance, it is far more efficient to secure a rule that requires stakeholders to be consulted on all new initiatives (a meta-regulation) than it is to secure consultation on each new initiative individually. This practice of lobbying ‘one level up’ – targeting not specific policies but meta-regulatory rules themselves – was employed in the creation of the EU’s Better Regulation agenda, which was advocated for by a coalition of industry and government actors. For tobacco giant British American Tobacco, promoting a cost-oriented model of impact assessment served the aim of making it easier to contest future EU health regulations.
Once in place, actors engage with the ‘opportunity structures’ that Better Regulation provides, and can use its constituent parts strategically, to achieve their desired policy outcome. Instruments such as impact assessments and evaluations can be replicated by external actors to advance an alternative conclusion. McDonald’s, for instance, published a study titled No Silver Bullet, positioned as an ‘impact assessment’ but at odds with the Commission’s own assessment and proposal, in concluding that the revised packaging and waste directive should not emphasise reuse. Similarly, environmental NGOs conducted their own ‘fitness check’ of the EU Common Agricultural Policy, arguing that reform is required to achieve sustainability goals. Crucially, stakeholder groups differ in their ability to engage with the opportunities that Better Regulation provides; feeding into impact assessment and evaluation processes, or commenting on policy options and proposals requires substantial time and resources. As a result, more well-resourced groups such as industry associations may de facto have more access. In our article we illustrate the pervasiveness of this imbalance across both specific consultations and lobbying of Better Regulation itself.
Looking beyond specific instruments, the Better Regulation agenda is underpinned by three norms: burden reduction, evidence-based policymaking, and participation. These can be invoked to present certain proposals or decisions as (non)compliant and thus (il)legitimate; this is illustrated, for instance, in arguments that self- and co-regulatory approaches are more aligned with the Better Regulation agenda than regulatory policies.
In sum, although the Commission distances itself from the deregulatory roots of Better Regulation, the continued centrality of burden reduction and associated tools, like cost-benefit analysis, retains the potential to produce a ‘chilling effect’ on health and environmental regulation.
Meta-regulation matters for health policy
By introducing meta-regulation as a relevant concept for those working to improve public health, and illustrating several relevant pathways, we hope not to shift attention away from actors and their actions, but to broaden it. Greater understanding of the ways in which programmes like Better Regulation shape decision-making and, as such, policy outcomes, has the potential to inform better advocacy and policy-making. We hope to contribute to this with our ongoing research.
Written by Dr Kathrin Lauber, Research Fellow, and Dr Eleanor Brooks, Lecturer, at the Global Health Policy Unit, School of Social and Political Science, University of Edinburgh.
All IAS Blogposts are published with the permission of the author. The views expressed are solely the author’s own and do not necessarily represent the views of the Institute of Alcohol Studies.