Parliamentary arbitrage and the case for regulatory policy in parliament

This article argues for the implementation of regulatory policy in parliaments. Regulatory policy is a managerial approach to regulation that is implemented in governments worldwide. Its proponents advocate the use of such tools as regulatory impact assessments (RIA) and urge evidence-based decision-making and procedural constraints for policymaking. This approach has so far been focused on the government, the executive branch, while it neglected parliaments. Thus, the application of regulatory policy in and by parliaments has been partial, at best. We claim that the absence of regulatory policy from parliament has adverse effects on the ability of parliaments to adhere to their democratic commitments. It also undermines the goals of the regulatory policy approach, and in unintended and unacknowledged ways, affects the coproduction of primary and secondary legislation. The article shows that a 'regulatory policy deficit' of parliament may result in unorthodox lawmaking and rulemaking, which we call parliamentary arbitrage, that is, a strategic behaviour that bypasses regulatory policy processes and standards, undermining the regulatory policy approach. In addition, this deficit aggravates existing asymmetries between governments and parliaments in policymaking, constraining the ability of parliament to fulfil its democratic functions: legislation, oversight of government, and public participation in democratic processes. The article concludes by surveying some of the existing regulatory policy tools and explains how their implementation in parliament can help confront some of the above-mentioned problems.