RESUMEN, CONCLUSIONES Y RECOMENDACIONES

As section one showed the initial model for a single equality duty drew on models of responsive regulation, and the PSED itself was later analysed as a form of both responsive and reflexive regulation. Both responsive and reflexive regulation can be seen as part of a shift from a command and control system of government to a process of ‘governance’ described above where the state acts as a co-ordinator, or facilitator in a process involving a variety of actors. These shifts required new systems of regulation; both responsive and reflexive regulation provided models for how regulation might work in an era of governance.

2.4.2 Responsive law

The concept of ‘responsive law’ was developed by Nonet and Selznick (1978/2001) as part of a model of three different legal approaches, which they described as repressive, autonomous and responsive. Repressive law is defined as a system where the law is subordinate to the interests of those with political power, legal institutions serve the state, authority is shielded from challenge or criticism, privilege is

consolidated and the interests of the governed are disregarded or denied legitimacy. Autonomous law aims to ‘tame repression’ (Nonet and Selznick 2001 p53).

Governments make the law but it is interpreted and applied without political

interference, the independence of the judiciary is emphasised and there is a focus on rules and procedures in order to elevate the law above politics. The outcome is ‘regularity and fairness, not substantive justice’ (Nonet and Selznick 2001 p54). Responsive law in contrast aims at substantive justice and involves a process of negotiation and dialogue about how best to achieve this. Rather than focussing on specific rules it aims to uncover the principles and purpose behind the law

encouraging the questioning of the authority of the rules themselves. The law is open to challenge and based on participation, with external social pressures perceived ‘as sources of knowledge and opportunities for self-correction’ (Nonet and Selznick 2001 p77). In this way responsive law encourages a ‘problem centred and socially integrated approach’ which is better able to deal with crisis of public order (Nonet and Selznick 2001 p 92). Crucially the focus of responsive law is not on individual redress in specific cases through following legal rules but on rectifying or avoiding

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injustice through ‘diagnosing institutional problems and redesigning institutional arrangements’ (Nonet and Selznick 2001 p106). This focus on redesigning

institutional arrangements would be compatible with a mainstreaming approach to equality while the emphasis on participation would suggest participatory form of mainstreaming. Nonet and Selznick acknowledge that responsive law is a high risk strategy, which requires openness and political resilience in order to adapt to changing circumstances and social needs.

2.4.3 Responsive regulation

The ideas behind Ayres and Braithwaite’s model of responsive regulation ‘bear many of the marks of Nonet and Selznick’s “responsive law” concept, flexibility, a purposive focus on competence, participatory citizenship, negotiation’ (Ayres and Braithwaite 1992 p5). Again this would appear compatible with participatory forms of mainstreaming. However, while Nonet and Selznick’s model addressed broad questions of the relationship between law, politics and wider society, Ayres and Braithwaite focussed on the specific question of regulation of the market. Rather than ‘grand theoretical aspirations’ their work aimed ‘to transcend the intellectual stalemate between those who would favour strong state regulation and those who advocate deregulation’ (Ayres and Braithwaite 1992 p3). They argued ‘all corporate actors [business and other private sector organisations] are bundles of contradictory commitments to values about economic rationality, law abidingness and business responsibility’; a regulatory strategy based on punishment would undermine goodwill among those motivated by responsibility while a strategy based on persuasion and self-regulation would be exploited by those motived by economic rationality (Ayres and Braithwaite 1992 p19). In place of either approach Ayres and Braithwaite drew on game theory to propose a form of regulation that was not only ‘attuned to the differing motivations of regulated actors’ but responsive to their conduct; ‘the very behaviour of the industry or the firms therein should channel the regulatory strategy to greater or lesser degrees of government intervention’ (Ayres and Braithwaite 1992 p4). They argued for an enforcement pyramid from self- regulation at the bottom, through enforced self-regulation to command regulation with discretionary punishment and finally command regulation with non-

discretionary punishment at the top (1992 p39). The aim was to change the

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firms so that the majority of firms were persuaded to self-regulate. Inherent in this approach was a danger of regulatory capture or corruption where the regulator comes to associate too closely with the interests of the regulated firms. In response to this danger Ayres and Braithwaite suggest a form of ‘tripartitism’ empowering civil society (which they describe as public interest groups) to participate in negotiations between the regulator and regulated bodies ensuring all sides are held to account. This gives a critical role to ‘deliberative, participatory processes as a means of securing regulatory objectives’ (Yeung 2004, p171).

2.4.4 Reflexive regulation

Teubner’s concept of ‘reflexive regulation’ both drew on and critiqued the model of responsive regulation developed by Nonet and Selznick (Teubner 1983). Teubner distinguishes between three types of law: formal, substantive and reflexive. Formal law aims at individualism and autonomy, establishing ‘spheres for autonomous activity and fixed boundaries for the actions of private actors’ (Teubner 1983 p252/3). Substantive law is based on achieving substantive outcomes and is

associated with increasing state regulation. Reflexive law aims at neither autonomy nor collective regulation of behaviour but searches for ‘regulated autonomy’, seeking to ‘design self-regulating social systems through norms of organisation and

procedure’ (Teubner 1983 p254/5). Teubner argues that Nonet and Selznick’s model of responsive regulation contained both substantive and reflexive legal rationality but did not sufficiently distinguish between them. This distinction was important

because reflexive and substantive law require different ‘institutional legal structures, cognitive models of reality and normative characteristics’ (Teubner 1983 p256). Teubner characterises the law as one of a series of autonomous social systems which are self-referential and obey their own developmental logic meaning that ‘external changes are neither ignored nor directly reflected according to a stimulus-response’ scheme (Teubner 1983 p249). This makes the form of state regulation required by substantive law difficult to achieve. Teubner argues instead for reflexive law, the aim of which is to ‘structure and re-structure semi-autonomous social systems […] by shaping their process of internal discourse and their methods of coordination with other social systems’ (Teubner 1983 p255).

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Teubner went on to develop the idea of law as one of a series of sub systems, utilising theories of autopoeises (self-reproduction) to argue that some systems, including the law, are self-reproductive, producing ‘their own elements, structures, processes and boundaries constructing their own environment and defining their own identity’ (Teubner 1993 p69). Each sub system will process messages from outside (for example regulation or legislation) according to its own norms and structures. Simply imposing law or regulation on systems with different language norms and logic can lead to what has been called the ‘regulatory trilemma’ (Teubner 1987) where legal intervention may be ignored, may damage the ability of the system to reproduce itself or may lead to a crisis in legitimacy for a law which is perceived as ineffective.

2.4.5 Commonalities between responsive and reflexive regulation

Both models of responsive law and theories of reflexive regulation share elements in common. Rather than mandating a series of specific actions they all emphasise an openness to different approaches. McCrudden describes the benefits of a

reflexive/responsive approach as being that ‘it encourages each organisation to engage in its own assessment of the problem, but to deliberate with others in reconsidering whether this is adequate and how far its assessment needs to be reconstructed in the light of that deliberation’. In this way the law avoids both the traps of command and control regulation based on detailed and proscriptive controls and sanctions and of de-regulation which removes controls altogether (McCrudden 2007 p259). These forms of regulation aim to work with the ‘inner logic’ of social systems, steering them to develop solutions rather than imposing them from the outside. Under these approaches ‘the cause of regulatory failure in the past is attributed to a failure to appreciate the limited role that the law can play in bringing about change directly in other sub systems because of the limited openness of these other sub systems to external normative interventions’ (McCrudden 2007 p259). Fredman describes the approach as one which would ‘aim to harness the energy and problem solving expertise of those who are in the best position to bring about change, rather than imposing proscribed solutions, which are likely to encounter resistance or token compliance’ (Fredman 2011 p272). In this way organisations are encouraged to ‘own’ solutions that they devise themselves through a process of deliberation (McCrudden 2007 p260).

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2.4.6 Differences between responsive and reflexive regulation

Although the terms responsive and reflexive regulation are sometimes used

interchangeably (see McCrudden 2007, Hepple 2011, Deakin et al 2012, Conley and Wright 2015), there appear to be a number of significant differences between them. Reflexive regulation identifies problems of communication between systems as a primary cause of regulatory failure. As McCrudden argues this is one of the potential problems with a reflexive approach; organisations or individuals with power may actively resist attempts to regulate, not because of a failure of communication and understanding, but because of ‘well understood resistance to the aims the

Government wants to see adopted’ (McCrudden 2007 p262). Assuming that the issue is primarily one of communication can ignore issues of power; organisations with power may resist regulation because they can rather than because of a failure of communication. In contrast responsive regulation as described by Ayres and Braithwaite is specifically designed to address self-interested resistance to the aims of regulation. The issue here is not a problem of communication between systems but the different priorities and values within regulated bodies. Another potential problem with reflexive regulation identified by McCrudden is that by positioning law as only one system among many reflexive regulation may underestimate the role of the law in articulating shared values which society regards as fundamental rather than debatable; the ‘enthusiasm for open-ended deliberation among stakeholders may encourage more debate on core values than the Government actually desires’ (McCrudden 2007 p262). Deliberation may not be limited to how to implement but on whether to implement at all. In contrast Nonet and Selznick’s model of responsive law emphasises uncovering the principles and purpose behind the law, the specific details of how to achieve these are to be identified through a process of dialogue but there appears to be an assumption that the role of the law is to define what these values are. In Ayres and Braithwaite’s model there is space for regulated bodies to develop their own solutions, but a clearly defined pyramid of enforcement if those solutions do not meet the objectives that regulation is designed to achieve; there is no space for deliberation about whether to take any action at all. Conley (2015) identifies another significant difference between reflexive and responsive regulation, distinguishing between the emphasis on civil society participation in Nonet and Selznick and Teubner’s focus on behaviour change processes in legal and

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organisational structures. While reflexive regulation concentrates on internal

deliberation and communication within systems and organisations and between these systems and organisations and legal systems, theories of responsive regulation place more emphasis on processes of deliberation that include the participation of a wider community of interest groups.

The fact that the terms reflexive and responsive regulation are used interchangeably can obscure these differences. In particular it hides the tension between allowing organisations to develop their own approaches to equality and ensuring the

participation of affected groups in the decision making process. If organisations are likely to resist solutions imposed upon them from outside are they not equally likely to resist obligations to involve external groups in their internal deliberations? Which is more important, to work with the grain of the priorities of the regulated body, or to ensure that that body engages with civil society groups, even if this is not one of its priorities? Clearly the two alternatives may lead to different approaches to

mainstreaming. Working with the grain of the priorities of the regulated body might support an ‘integrationist’ form of mainstreaming, but not necessarily one that is participatory. Ensuring the participation of affected groups in the decision making process could encourage a democratic/participatory approach to mainstreaming. The next section explores the literature to date on which of these alternatives the PSED represents.