The Democratic Challenges of Effective Private Regulation and Enforcement

Effective private regulation and enforcement presents a challenge to a view of democratic states and governance that the state, by virtue of electoral politics, should have a monopoly over coercive power. However, there is nothing new in the observation of the importance of private power to regulate others. Private regulation clearly belongs in the catalogue of significant regulatory power and in this chapter I suggest how practices of private regulation and enforcement might be accommodated within democratic theory and practice. I suggest in this chapter that if we take the idea of decentring seriously and recognise the emergence of a decentralised nodal governance over many economic and social activities, then we can see the role of governance nodes away from central government not simply as monitoring or scrutinising, but also as originating and performing in respect of key governance activities. This observation transforms the democratic challenge. Instead of trying to pull decentred power back towards traditional representative democracy, we may instead ask how these decentralised governance nodes themselves seek to manage and develop their democratic legitimacy. The management of legitimacy occurs through the setting of norms and adoption of practices relating to how those exercising power in governance nodes undertake their actions. These norms and practices are concerned with a range of issues: who participates in setting agendas?; how decisions on setting norms are made?; how monitoring and enforcement is executed in a manner that is referrable to the decisions of the demos associated with the governance regime?; and how such regimes review, revise and reflect on their activities, to understand their own sources both of legitimacy and effectiveness, but also their relationship of interdependence to others within a decentred governance model? The last main section of the chapter looks at five stages in the regulatory policy cycle to evaluate the evidence of the emergence of novel ways of democratising both public and private nodes of regulatory governance.