Private regulation of the public sector: a neglected facet of contemporary governance

Abstract

The centrality of regulation among the tools deployed by governments is well established in the social science literature. Regulation of public sector bodies by non-state organizations is an important but neglected aspect of contemporary governance arrangements. Some private regulators derive both authority and power from a legal mandate for their activities. Statutory powers are exercised by private regulators where they are delegated or contracted out. Contractual powers take collective (for example, self-regulatory) and individuated forms. But a further important group of private regulators, operating both nationally and internationally, lack a legal mandate and yet have the capacity to exercise considerable power in constraining governments and public agencies. In a number of cases private regulators operate more complete regulatory regimes (in the sense of controlling standard setting, monitoring, and enforcement elements) than is true of public regulators. While private regulators may enhance the scrutiny given to public bodies (and thus enhance regimes of control and accountability), their existence suggests a need to identify the conditions under which such private power is legitimately held and used. One such condition is the existence of appropriate mechanisms for controlling or checking power. Such controls may take the classic form of public oversight, but may equally be identified in the checks exercised by participation in communities or markets