Power without accountability?

Independent regulators are increasingly under fire — so why does their independence matter? How much power should they be granted? And how can they be held accountable?

The spotlight is once again on the role of institutions that exercise power outside direct ministerial control. The Bank of England has been criticised for the pace of its response to rising inflation. The Competition and Markets Authority has been called ‘anti-business’ for blocking mergers it believes are anti-competitive. And the Financial Conduct Authority has been accused of standing in the way of post-Brexit financial deregulation.

Plenty of accusations get levelled at the above authorities individually. But less attention has been paid to some of the common themes across these and similar controversies. When does it make sense to put certain decisions beyond the control of elected politicians? How should the decision-makers in such cases be held accountable? And what is the right course of action if politicians or the wider public disagree with the regulators’ approach?

Over the years I have seen these issues from three different vantage points: the politicians, the regulators and the businesses who are subject to their decisions. I worked in Downing Street as a Special Adviser to Prime Minister Gordon Brown when financial regulation was in the cross-hairs in the aftermath of the financial crisis; in the regulatory world at Ofgem when energy prices were rising and at the CMA when it took on its expanded role post-Brexit; and I have spent nearly a decade advising companies across the UK, Europe and North America.

What makes independent regulators different from governments is not so much that they are unelected. After all, there are other holders of power who are not there because anyone voted for them but who are still subject to a considerable degree of public accountability. Ministers who sit in the House of Lords have not won an election but can still be summoned to answer questions at the dispatch box. During the height of the coronavirus pandemic the UK’s chief medical officer and chief scientific adviser were — thankfully — not elected to their posts but they were still expected to answer questions from the media on a daily basis.

What makes the independent regulators different from these ministers and advisers is the degree to which they are not subject to the same forms of accountability. Unlike Cabinet ministers, the Chairman or Chief Executive of a regulator cannot be dismissed in a reshuffle and they do not need to worry about winning elections or explaining themselves at question time in the House of Commons. And unlike private sector companies, they do not need to worry about whether customers will keep buying their products or investors will keep supporting them.

Instead, as a result of Acts of Parliament, the regulators are given the power to make decisions which have little or no ministerial oversight and — in some cases — limited judicial oversight either. In some areas, their decisions can end up having an effect outside the UK, even if foreign governments, agencies or courts disagree with them.

I point this out not as a criticism. Insulating regulators from certain political pressure is fundamental to their purpose. But the limited nature of their accountability means it is important to define the boundaries of their power carefully. It also imposes certain obligations on the regulators themselves.

The theory behind independent regulation

Let’s start by reminding ourselves why independent regulators were set up in the first place. There are broadly three reasons why it can make sense for elected governments to bind their hands by delegating certain powers to technocratic bodies.

The first relates to the time horizons under which governments operate. Their decision-making is necessarily affected by the knowledge that at some point they are going to have to fight an election. Now, that is not generally a bad thing. The concept that governments should be responsive to the voters is kind of the point of living in a democracy.

However, there are areas in which it can lead to sub-optimal outcomes. One of the main ones is in monetary policy (Tucker 2018). In the long run, we know that most of us will be better off in conditions of macroeconomic stability with low and stable inflation — and this is of course a major policy issue globally at the moment. Achieving low inflation can require increases in interest rates when the economy is overheating, but such rate rises tend to be unpopular in the short term because they raise the cost of borrowing for businesses and homeowners. The theory goes that not only will an independent central bank be more prepared than elected politicians to take unpopular decisions for the long term good, but market participants will build this into their inflation expectations in the first place, so interest rates need to rise by less in order to have the desired effect.

Closely related to this is the ‘time inconsistency’ problem (Kydland and Prescott 1977). Let’s say that ministers want to attract funds to improve the country’s infrastructure. They promise a return to investors but those investors worry — particularly if they are from overseas — that once they have parted with their cash the host government, or perhaps its successor, might put in place new policies that reduce their returns. The delegation of regulation to a body that is beyond political control can reduce this risk, thus attracting more investment and reducing the risk premium that investors require — meaning it also costs less to taxpayers or consumers. At a time when governments want to attract investment and consumers worry about the rising cost of living, this is a powerful argument for independent regulation.

Separately, there is a risk that political decisions could be influenced by small but powerful vested interests (Alesina and Tebellini 2004). If two politically well-connected companies wish to merge, they could mount a well-funded lobbying campaign to persuade ministers to let their deal through. Consumers might end up paying higher prices as a result of the merger, but individually they lack the time, incentive and technical knowledge to put that case effectively to ministers. In a politically dominated merger control regime, this deal could get cleared, while one involving a politically unpopular acquirer might get blocked even if the deal would pose no harm consumers. By contrast, if merger control is delegated to a body insulated from lobbying, decisions can be taken objectively on the evidence and in the interests of consumers.

Notwithstanding the above points, the proponents of independent regulation would generally agree that it is only appropriate if two further conditions are met.

First, the decisions being delegated should be ones requiring mainly technical expertise rather than value judgments (Blinder 1997). Politicians and voters would be wary of giving bureaucrats control over policy on ethically controversial issues such as abortion or euthanasia; or on social policy issues where the principal question is which group should gain or lose, for example on the use of taxation and public expenditure to redistribute income or wealth. In democracies, such politically controversial issues are better decided by elected governments and legislatures.

Second, elected politicians should set clear parameters for the independent agency (Tucker 2018). Parliament would set the objective the agency must pursue and the powers that it can exercise; and ministers might then have a role in appointing its leaders. But once they have done so, the politicians should then let the agency get on with making its decisions independently.

That is the theory. In practice, however, there are three ways in which the governance of independent regulation might not work as intended.

Challenge #1: Interference by government

The first risk to the success of independent regulation is that the political delegation goes wrong. Rather than delegate those decisions that would be socially optimal to delegate, politicians might instead choose those decisions that are politically risky, so they can shift the risk and the blame onto bureaucrats (Alesina and Tebellini 2005). Then, having delegated a decision, politicians might seek to retain some form of oblique control, particularly if there are significant distributional impacts for which they might be held accountable by voters (Tutton 2019).

Here, much of the UK evidence on the delegation of power to independent regulators actually looks quite positive. The first really major UK privatisation was that of British Telecom in the early 1980s. At the time the government’s financial advisers, Kleinworts, argued that without clear distancing of tariff-setting from political control, a successful flotation was unlikely to be achieved (Parker 2009). A methodology for regulation was established with the heavy involvement of academic economists — Stephen Littlechild and Michael Beesley — and a structure for the new regulator — Oftel — was established as a ‘non-ministerial government department’ to ensure the required degree of independence. This is very much in line with the theory of how independent regulation is supposed to work; and a similar picture was followed in the next major privatisations, of gas and electricity.

As well as the creation of the sectoral regulators, the 1980s and 1990s also saw reforms to the competition regime, with a gradual move away from ministerial interventions in merger control on the grounds of the ‘public interest’ and, instead, independent decision-making focused on competition. Prior to the 1984 ‘Tebbit Guidelines’, the ‘public interest’ had been used to justify merger decisions based on grounds ranging from employment considerations to the prevention of foreign takeovers and the integrity of the Scottish economy. Norman Tebbit, as Trade and Industry Secretary, changed that to make clear that his policy would be to make merger references primarily on competition grounds. The Labour government which entered office in 1997 took this further, codifying in statute the move from the ‘public interest’ to competition, and delegating the decision-making to the independent competition authorities. The Blair government at the time saw this as an extension of the model of delegating operational decision-making on monetary policy to the independent Bank of England (Wilks 1999).

Over time this trend to delegation and independence won wide cross-party support but is important to bear in mind that the circumstances in the 1980s and 1990s were particularly propitious for the technocrats. Privatisation took place at the start of a long period of falling energy prices. Bank of England independence was followed by years of falling interest rates. Politicians and regulators were both happy to take credit for these developments and there were few occasions where politics really intervened to create tensions between them.

What happens, though, when the external environment looks less favourable?

An early sign in the UK came when domestic energy bills began rising sharply in 2007 following a spike in global oil and gas prices. By 2008 there was significant public concern about the energy market and the Chairman and Chief Executive of Ofgem were summoned to a meeting with Chancellor Alistair Darling, but Ofgem announced they thought no regulatory intervention was necessary. Just one month later, there was a U-turn. The pressure had become too great and Ofgem said it was in fact going to launch an investigation because of ‘increased public concern’, and the probe later concluded with the introduction of a set of new obligations on suppliers. However, one of Ofgem’s non-executive directors resigned over the matter, fearing the new rules would have unintended consequences for consumers, and indeed some of the rules were subsequently unwound after it appeared they had in fact led to higher prices (Smith 2015).

That was a harbinger of things to come. As energy bills continued to rise, they took up an increasing proportion of household spend and the political risk to the government got correspondingly greater. Ministers became more directly involved, urging Ofgem to cap bills even though the CMA had in 2016 recommended against a wide-ranging price cap. When Ofgem refused, the government brought forward legislation to introduce a cap directly. By 2022, a combination of rising wholesale prices, capped retail prices and inadequately capitalised suppliers led several of them to go bust. The Business, Energy and Industrial Strategy Select Committee blamed Ofgem for its ‘incompetent’ regulation — but it also criticised the government for having ‘overlooked’ Ofgem’s failures and called on it to monitor the regulator more closely.

In the end, when the impact on consumers gets too great, it does not matter what formal delegation exists. They will hold the elected government responsible. And if it wishes to do so, there are several ways in which an elected government can exercise political influence over regulators. In addition to a ‘strategic steer’ setting out ministers’ overall expectation for how a particular regulator should go about its work, Bill Kovacic also points to politicians’ ability to appoint the leaders of agencies; to increase or reduce their funding; to make legislative changes to the agency’s powers or duties; to monitor the agency’s performance or engage third parties to do so; and to set the form of judicial review to which the agency is subject (Kovacic 2014).

Challenge #2: Capture by industry

A second key risk is that the regulator could be captured by major companies in the very industry it is supposed to regulate. As George Stigler put it, ‘as a rule, regulation is acquired by the industry and is designed and operated primarily for its benefit’ (Stigler 1971). Over time the companies can develop close relationships with their regulator, building a degree of mutual understanding, hiring the regulator’s staff in a ‘revolving door’ and ultimately ending up with the regulator treating the industry as its client. Stigler pointed to consequences in the US such as the Civil Aeronautics Board or the Federal Deposit Insurance Corporation where the creation of a regulator was followed by a substantial reduction in new entry in the market as powerful incumbents lobbied successfully for rules which would prevent the emergence of competitors.

Based on this theory, perhaps the most likely candidate for capture in the UK in this period would have been Ofgas. British Gas had been privatised as a monopoly — to the disappointment of the Chancellor, Nigel Lawson, who had wanted a market with multiple competing players — and there was a significant asymmetry between the scale of the mighty British Gas and the small group of around twenty staff at Ofgas who were given the job of regulating it. If Stigler was right, Ofgas had no chance of avoiding capture. Yet within a decade there had been three major investigations, full retail competition was introduced and British Gas was broken up (Helm 2003).

So how does a regulator avoid being captured? In Ofgas’ case, it had the benefit of a clear statutory to duty to promote competition and successive determined leaders who were committed to the mission and who had strong allies at the Monopolies and Mergers Commission. It also enjoyed the support of ministers who were either philosophically inclined to support an agenda of liberalisation, or who could at least pursue a policy of benign neglect given that gas prices were falling in this period.

Without such a clear animating mission or consistent government support, there is a greater likelihood of industry capture. Perhaps paradoxically, this can be particularly so where a regulator takes its decisions on the basis of technical economic evidence. Although a focus on economics should theoretically lead to more objective decision-making than if it were based on a vague and undefined ‘public interest’ test, a lot depends on who is providing the economic analysis. When interacting with regulators, companies are likely to spend large amounts of money employing economists as ‘guns for hire’ who can make their arguments in the language of growth, incentives, and the danger of innovation-killing interventions (Eisinger and Elliott 2016). The evidence base being considered by the regulator can then become skewed in the companies’ favour (Romer 2020).

This became a worry for the Competition and Markets Authority in recent years. Economic analysis sits at the heart of much of its decision-making and the overwhelming majority of the evidence it receives in mergers and antitrust cases comes from the businesses concerned and their advisers (who may also have been through the revolving door between the agency and private practice). The companies’ advisers often use highly technical analysis to make the case that the conduct or merger in question would not harm competition. Although the merging parties’ competitors might sometimes also make their views known, in most cases nobody presents contrary economic evidence specifically on behalf of the consumer. This can lead to concerns that the system is ‘systematically biased against the consumers whose interests it purports to represent’, and it led the CMA to consider how it can enrich the evidence base on which it relies, for example through greater use of consumer surveys and by obtaining the companies’ internal documents (Coscelli 2021).

In general, cross-economy ex post enforcers have been better able than sector regulators to avoid the impact of industry lobbying because no single interest group is continuously threatened by their work. But once an agency moves from ex post enforcement into ex ante rule-making, this changes. James Q. Wilson wrote that in the 1970s congressional committees wanted an activist Federal Trade Commission and that is what they got, with the FTC issuing rules governing the conduct of entire industries. But those industries subsequently engaged in furious lobbying, after which congressional committees changed their minds, blasting the FTC as a ‘run away’ agency and gutting its budget (Wilson 1989). As the CMA takes on ex ante regulatory responsibilities for the big digital platforms in the Digital Markets Unit, it will face the same risk but in spades and when regulating some of the biggest companies in the world.

It is also important to note that capture need not only come through influencing the agency directly. Industry can also lobby politicians to bring pressure to bear on the regulator through the forms of political influence I mentioned earlier. Some of the more blatant examples of this can be found in the appendix to Arthur Levitt’s memoir of his time as chairman of the US Securities and Exchange Commission in the 1990s, where he includes the various threatening letters he received from Republican chairmen of congressional committees who complained of the excessively onerous supervision which was being imposed on Enron, which shortly afterwards went bankrupt when its apparently strong financial performance was revealed to be based on systematic accounting fraud (Levitt and Dwyer 2003).

Challenge #3: Agency overreach

That takes us to the third concern that is sometimes raised. What if the agency pursues its own agenda or interests, beyond what Parliament intended? There are three factors that might be expected to lead to such an outcome: a bureaucratic power grab, the agency leaders’ personal policy views and the existence of external reputational pressure.

Public choice theorists argue that a bureaucracy will engage in rent-seeking lobbying for further regulation in order to extend its power (Buchanan 2003). It is certainly true that the regulators’ budgets have increased over the past three decades and so have their powers. But that is in large part because successive governments have asked them to take on more — and more politically sensitive — responsibilities (Koop and Lodge 2020). This has included the pursuit of new and broader societal objectives, from environmental sustainability to online safety, leading Jean Tirole to warn that ‘a fuzzy mission may create a lack of accountability’, ‘turf wars and policy coordination failures emerge’ and that ‘no-one is really accountable’ (Tirole 2022). This is a real risk but the impetus for it has often come more from government policies than the regulators themselves.

A more important point in respect of the regulators’ own behaviour is that their bosses are not purely technical administrators. They may have their own views on the agenda that their organisation should pursue. For example, in the years after privatisation, the energy regulators pursued a vigorous liberalising agenda influenced by unashamedly free-market economists. Under successive leaders, Ofgem’s view was that liberalised wholesale and generation markets would provide the incentives to ensure security of supply; and that competition between suppliers in the retail market would protect consumers. Their view was that deregulation would facilitate entry and innovation; and ‘if [customers] are unhappy with the price or service they are being offered they can switch to another supply company’ (Ofgem 2007). This led to widespread price discrimination in which ‘savvy’ switchers were offered cheap, sometimes loss-making deals which were subsidised by higher prices charged to ‘sticky’ customers, including many on lower incomes who failed to switch and remained on their incumbent suppliers’ most expensive tariffs. This represented a significant distributional impact. According to the conditions set out Blinder, it should have been a matter for elected politicians but in fact it was a policy pursued by independent regulators.

Even if agency leaders are not pursuing their own ideological agenda, this does not mean they are just straightforwardly implementing specific tasks set out by Parliament. They will also be confronted with important and sometimes unexpected policy choices on which Parliament has given them no clear instruction. For example, Brexit resulted in the CMA having a much bigger role in international mergers, while economic changes such as the cost of living crisis and the rise of the gig economy have forced it to make important choices about which cases to prioritise (CMA 2023). These were important developments but, until this year at any rate, they took place with little substantive parliamentary scrutiny. For example, the chief executives of regulators (unlike their chairmen) are not subject to pre-appointment hearings by the relevant select committees and so legislators are not able to test them in advance on their likely agenda. And once they are in post, hearings can be few and far between, given the limited bandwidth of busy committees. After Andrew Tyrie and Andrea Coscelli gave evidence to the Business Select Committee on the work of the CMA in June 2019, the next equivalent session took place nearly four years later, in May 2023.

Another potential influence on a regulator is concern for its reputation. It has sometimes been argued that agencies will over-regulate in order to avoid being accused of failing to stop some harmful practice (Friedman 1980). Certainly in my experience there can often be more plaudits to be gained for visible ‘tough’ action against an alleged abuse than for a mealy-mouthed explanation of why action is actually not possible or not warranted. So what happens when the regulator’s statutory toolkit does not contain the powers to deal with the problem at hand? Should they make their views known anyway in order to effect a change in business behaviour, exercising what the regulator might call its ‘soft power’ and what others might call its ‘bully pulpit’?

This is a live issue at the moment as regulators come under pressure from the government to play their part in tackling the rising cost of living. In July 2023 the FCA briefed the media that it was summoning bank chief executives to a meeting because ‘we are not happy with some of the lower savings rates we see’ and that it wanted to agree a ‘savings charter’ with them. Meanwhile the chief executive of Ofgem wrote to energy suppliers warning them to ‘behave responsibly’ and to put financial resilience ahead of paying out dividends. He wrote, ‘I expect no return to paying out dividends before a supplier has met those essential capital requirements.’

Many would agree with the sentiments being expressed by the FCA and Ofgem here but what is striking is that they were not seeking to enforce pre-existing legal obligations on the companies involved. Nor were they following their standard processes to create a new such obligation. Instead, they were applying reputational pressure to stop companies doing something that might have been within the rules but which the regulator believed was harmful.

From a regulator’s perspective, this kind of action can be a faster, cheaper and more effective way to achieve results on behalf of consumers than through rule-making and enforcement, particularly given the ability of deep-pocketed companies to exploit statutory processes and judicial reviews to delay or water down any action. But from a company’s perspective, it can feel like arbitrary intervention which evades their procedural rights and undermines regulatory predictability. The relative lack of accountability of the regulators therefore makes it even more important that Parliament provides effective scrutiny of such activity.

Lessons for policymakers and regulators

To sum up, we have seen three factors which could lead a regulator to behave in ways other than those intended by Parliament:

· Ministers could interfere with the regulator’s decision-making if they think they will pay a political price because of the regulator’s actions.

· Industry will make concerted efforts to capture the regulator given the material difference that its decisions can make to the companies’ profits.

· The regulator could exercise substantial discretion to pursue its own policy agenda, especially if it faces limited parliamentary and judicial scrutiny.

These risks are interconnected in that, when attempting to mitigate any one of them, policymakers or regulators are likely to increase at least one of the others. It is easier for a regulator to avoid political interference if it has a clear mission or strong industry support — but these will make overreach or capture more likely. It can be easier for a regulator to avoid industry capture if it builds strong legislative support — but the process of doing so can make political interference more likely, and the legislators themselves might have been captured by industry. And it can be easier for elected politicians to avoid the risk of agency overreach if they exercise closer scrutiny — but this can also make political interference more likely. Regulators and policymakers are therefore caught in an unavoidable balancing act between these three risks.

I don’t pretend to have all the answers but here are five suggestions that I think could help get the balance right.

First, to avoid the risks of illegitimate political interference, there should be a clearer delineation between those decisions that regulators should take independently and those where it is appropriate for elected politicians to express a view. For example, individual price control decisions by sector regulators and merger decisions by the CMA seem to fall squarely into the category at the start of this paper where independence is warranted. But when a regulator is making decisions that have significant distributional impacts or where the CMA is deciding whether to conduct a market study into an issue of major consumer concern, it seems sensible that elected politicians should contribute. It would be better to be clear and open about that instead of the current approach, whereby ministers are expected to stay silent on a regulator’s work, aside from issuing a vague strategic steer once every few years without foresight of the issues that will develop in the years ahead or an idea of how they would make the trade-offs involved.

Second, to avoid agency overreach, Parliament should put in place more effective and dedicated scrutiny of the work of the regulators. In the House of Commons, this scrutiny is conducted mainly by departmental select committees whose remits are wide and whose attention is naturally drawn to issues that are already in the public eye or where there is an opportunity to influence government legislation, rather than looking at the longer term governance of the regulators. The House of Lords has been able to provide more focused attention, for example through the Industry and Regulators Committee. A permanent select committee on regulators, drawn jointly from the House of Commons and the House of Lords, would be well-placed to entrench this kind of scrutiny of longer-term and cross-cutting issues (and its cross-cutting focus would also help insulate it from lobbying by specific industries). Furthermore, pre-appointment hearings should be extended to include the nominees for chief executives of regulators as well as their chairmen, given the extent to which chief executives are able to influence the direction that an agency takes.

Third, the flipside of the regulators’ independence (and the consequent restrictions on their accountability) is they should communicate more frequently and transparently about the actions they are taking, their reasons for doing so, and the representations they have received from politicians and from industry. Regulators should actively seek to engage with the media and parliamentary committees about these choices; and those lobbying the regulator should know that what they say will be made public.

Fourth, regulators should be wary of pushing the boundaries of the authority that Parliament has given them. They should be more ambitious in doing so on decisions that are subject to ‘merits’ review by the courts, than on decisions that the courts can only review on more narrow ‘judicial review’ grounds i.e. where the court cannot consider whether the agency got the decision right or wrong but can only consider ask itself whether the agency behaved illegally, irrationally or was procedurally unfair.

Fifth, where a regulator does decide to take an innovative approach to a policy issue, especially where it involves making trade-offs between multiple policy objectives, it should follow the model of the CMA in its developing approach to environmental sustainability. The chairman was open about his views on this issue in his pre-appointment hearing with the relevant select committee; the chief executive set out her thinking publicly in a keynote speech; the agency published draft guidance on which it undertook a public consultation; the implications for its prioritisation of cases featured in a separate consultation on the CMA’s annual plan; and the CMA has also set out the extent and limits of its powers on this issue in public advice to the UK government.

Conclusion

Economists have shown that independent regulation can be an effective way of resolving a ‘time inconsistency’ problem. But the regulatory ecosystem consists of human beings who do not inhabit an economic model. Politicians, businesspeople and the regulators themselves each have their own incentives and beliefs which, if unchecked, could prevent the system from working as intended. It is important to be honest about that fact and put in place mechanisms for transparency and accountability that can help maintain a delicate equilibrium.

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