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Abstract:
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The late twentieth century witnessed significant shifts in the institutions and processes of governance
in most members states of the OECD, as direct provision (sometimes characterised as welfare state
governance) was, to some degree, displaced by the rise of the regulatory state. Changes in the nature
of state intervention have been accompanied also by fundamental challenges to traditional conceptions
of the centrality of the nation state as regards its dominance of key resources (notably taxation and
capacities for coercion) and for the maintenance of the rule of law and democracy, as transnational and
non-state power have assumed greater significance. In this paper I assess both narrow and broad
versions of the challenge presented to the values of constitutionalism by regulatory governance. The
narrow constitutionalist critique locates the problem of regulatory governance with the delegation of
governmental power to regulatory agencies. A broader constitutionalist critique looks beyond
delegation to other organs of the state, and notes that the de-centring of regulatory governance has
increasingly implicated both non-state and supranational governmental bodies in regulatory tasks
through implicit and explicit delegation and through the assumption of regulatory powers with little or
no state involvement. I suggest that one response to the broad critique is to institutionalise broader
modes of control and accountability which are best able to match the governance powers which are
targeted. |