Evaluating regulatory legitimacy: A study of policy and rule-making in the regulation of independent local radio by the independent broadcasting authority

Abstract

This thesis presents a' detailed study of the regulation of Independent Local Radio by the Independent Broadcasting Authority. The I.B.A. is an independent regulatory agency established to decide questions affecting both public and private rights. Two key functions performed by regulatory agencies are identified: law-elaboration and law-application. Law-elaboration is a quasi-legislative power which involves both the making of policy and the subsequent articulation of that policy through rule-making. Law-application entails the application of those rules in individual decisions.

It is argued that the exercise of such powers can usefully be analysed in terms of legitimacy. What can validate the exercise of legislative powers by an unelected and largely unaccountable agency? In addressing this question, use is made of four ideal-type models of regulatory legitimacy: (1) legislative; (2) accountability; (3) due process; and (4) expertise.

The general conclusion drawn is that it would be problematical for the I.B.A. to claim legitimacy for its policies and rules on the basis of its legislative mandate, its accountability, its respect for due process or its expertise. In particular, it is argued that there is little direct correlation between the I.B.A.'s activities and its legislative mandate. This is stated to be a problem inherent in the nature of the relationship between the legislature and a regulatory agency.

It is argued that the present system of regulating I.L.R. is in need of reform if it is to make out a more convincing case for its legitimacy. The two main approaches to reform are deregulation and procedural innovation. Administrative lawyers have tended to focus on the latter type of reform. It is argued that administrative lawyers should widen their horizons beyond the procedural and become concerned with the outcome of the regulatory process: the concern should be with substantive as well as procedural legitimacy.