Just how smart is “smart regulation”: evolving architectures in the governance of regulation?

Government endorses the idea of “smart regulation”, seeing it as an attractive wrapper for a business-friendly approach to regulation that could make savings to the public purse whilst offering improvements in consumer protection. The result is to bring the regulation of commercial providers of goods and services closer to previously privileged concepts of professional self-regulation on the basis that it offers “cost-free” regulation. This paper examines whether smart regulation is just another manifestation of a “fictional commodity” enabling producers to cloak their activities in a favourable light. Alternatively, smart regulation could result in greater transparency, giving legitimacy to the providers of goods and services and better protection for consumers. The drama of smart regulation in disarray in the financial sector since the 2008 “crunch” provides one perspective, but the authors argue that now is the time to formulate a theory of regulation and governance that better captures recent developments. Having published separately on disparate issues of regulation (including food law, statutory nuisance, professions, service charge management and financial accounting), the authors draw these together here. Our model is based on Gunningham’s (2009) concept of regulatory “architecture”. This has been developed into a “Triptych” of regulatory processes that better describes the relations between regulator and the regulated