legislate for devolved matters, would have beenwelcome ^ the discussion largelyaddresses inter-executive co-operation in this ¢eld. Similarly, it would be usefulto look at the role of Scottish Parliament committees in the legislative process, as asubstitute for a second chamber: how e¡ectively are they able to play the role ofscrutinising policy and revising legislation? In the context of discussing privatebill procedures, the role of theTransport andWorks Act 1992 and its order-mak-ing procedure ought to be noted. And a discussion of the relationship between the1706 Treaty of Union and the Scotland Act 1998 would also be interesting, illu-minating the extent towhich one constitutional settlement for Scotland has beenlaid imperfectly over another, thereby creating a confusion of authority betweenWestminster and Holyrood.

Such a comprehensive and clear book on an important, and developing, topicis to be warmly welcomed. One hopes that this will be the ¢rst of many editions,and that oversights noted here will be addressed. It is a book that deserves a placeon many shelves ^ not just of undergraduate students but of all lawyers (andmany others) interested in Scottish devolution.

AlanTrenchn

Michael Moran,The British Regulatory State: High Modernism and Hyper-Innovation, Oxford: OxfordUniversity Press, 2003, xþ 239pp, hb d42.00.

It is sometimes claimed of legal scholars who focus on regulation that they areattempting to colonise the ¢eld of law, viewing all legal phenomena through aregulatory lens. I do not know what truth there is in that claim, but suggest thatMichaelMoran’sTheBritishRegulatoryState o¡ers a parallel attemptwithin politicalscience to view thewhole of government and governance through the lens of reg-ulation. Moran’s core argument is that the stable patterns of British governmentfor much of the twentieth century were spectacularly disrupted by the displace-ment of a style he characterises (following DavidMarquand) as ‘club government’with amodel of government labelled ‘the new regulatory state’. Aproduct of both¢scal and systems crises originating in the1970s, this ‘hyper-innovation’ in govern-ance has caused the state to take on more than it can manage, to claim a capacityfor control over phenomenawhich are without its reach, and is the root cause of anumber of very signi¢cant failures of government. Attempts at regulating theoperation of the railways and matters of food safety provide key examples.

Moran is not the ¢rst to identify the shift towards a regulatory state model ofgovernance in the UK. However, there are two aspects of the analysis that arenovel and important. First is Moran’s starting point for analysis of the shift. Thepre-regulatory state model has conventionally been conceived as that of the wel-fare or provider state, conceived as being bureaucratic and hierarchical.This char-acterisation has, perhaps, derived from an excessive focus on changing governancein themuch discussed utilities sectors and a neglect of other keydomains. It is alsoa product of an excessive degree of formalism in understanding governmentalarrangements.Working with a much extended horizon that takes in not only

nThe ConstitutionUnit, School of Public Policy, University College London.

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utilities sector reforms, but also regulation of ¢nancial markets and the profes-sions, as well as controls within government itself, Moran persuasively re-focusesthe analysis and suggests that the dominant mode in pre-Thatcher governancewas‘club government’, an oligarchic governance formorganised around tight net-works of mutual monitoring and steering.This claim ¢ts verywell the documen-ted experience of ¢nancial markets regulation before the 1986 ‘Big Bang’, butappears to apply equallywell both to the professions and to the heart ofWhitehall(characterised inHeclo andWildavsky’s studyof theTreasury as a‘village’ commu-nity (ThePrivateGovernment of PublicMoney (1974)). Furthermore, I thinkMoran isright to claim that governance of telecommunications, energy, water and rail sec-tors also had strong elements of the club government model, some of whichwereretained on privatisation and re-regulation. Indeed, in my own research withinthe telecommunications sector we found, more than ten years after privatisation,that relations between the ‘meŁ nage a trois’ of dominant operator, BritishTelecom,the newRegulator OFTEL, and the Department of Trade and Industry, were stilldominated by a search for consensus and bargaining better characterised, I nowlearn from Moran, as club government than hierarchical regulation (Hall, Scottand Hood,Telecommunications Regulation: Culture, Chaos and Interdependence Inside theRegulatory Process (2000)).

The second novel and important aspect of Moran’s study is his willingness tosquare up to the seeming paradox of the growth in a hierarchical style of regula-tory governance at the same time as we are told of a process of ‘hollowing out ofthe state’ as more functions and capacities are di¡used beyond the centre of gov-ernment. One way to address this paradox is to suggest that regulation is as muchabout steering as it is about hierarchy and to see hierarchical governance as but oneaspect of a wider array of steering mechanisms some of which re£ect the movetowards softer forms of governance.Moran recognises this, characterising the riseof regulatory agencies as being part of a process of di¡usion of governing capacity,but suggests that governance scholars arewrong to characterise the contemporarymove to regulation as a‘renunciation of command’. He notes that a key reason thatdi¡usion of governance in British government has been accompanied by newemphasis on formalism and hierarchy has been membership of the EuropeanUnion, with legislative requirements that make club government over such issuesas state aid and public procurement unacceptable.Taking the regulatory version ofthe argument, the movement has not been, he suggests, from hierarchical regula-tion towards greater emphasis on self-regulation and governing at a distance, butrather the other way around. SoMoran detects a growth in centralised hierarchi-cal regulation and attributes to this development signi¢cant regulatory failures. I¢nd these normative conclusions persuasive and in tune with socio-legal scholar-ship on regulation which, from a variety of perspectives, has long questioned theability of state bureaucracies to exercise regulatory control over the minutiae ofsocial and economic activities.

Where I take issuewithMoran is on the interpretation he places on the empiri-cal data. Clearly the recent history of some governance domains is characterisedby a growth in hierarchical control, more formalisation in norms and enforce-ment, and a separation between operational and regulatory functions. However,there are also important domains where non-state governance has remained or

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become central. Inmany instancesmarket pressures make it rational for businessesto contribute to or at least take the outputs of non-state regulatory regimes. Acentral example is provided by standardisation which substantially lacks the hall-marks of hierarchy, either within its own operation, or in terms of any state super-visory role. In other instances the state is present as meta-regulator attempting tosteer the self-regulatory capacity of medical and legal professions, and the mediaindustry (notably the press and advertising). It is in domains where internationalgovernance is of growing importance that the tendency towards non-hierarchicaland non-state forms appears most pronounced. Such phenomena a¡ect the Brit-ish case but are not of it. Yet I would suggest that their inclusion would signi¢-cantly modify the empirical picture.

One might argue that the non-state governance examples, though signi¢cant,are fairly marginal to the overall analysis. Perhaps more central to Moran’s analysisis empirical researchwhich questions whether state regulatory regimes really oper-ate in the hierarchical fashion anticipated by the regulatory state model. Moranpoints out that numerous socio-legal studies of regulatory enforcement have foundthatmanyand perhapsmost agencies prefer to educate and advise those responsiblefor infractions, rather than bring to bear on them the full force of legal rules.Thisregulatory behaviour is more reminiscent of club government than of the regula-tory state. It provides a partial explanation for the failure of regulatory regimeswhich depend on stringent hierarchical enforcement within the British system.For Moran much contemporary British public policy exhibits over-con¢denceand excessive faith in the capacities of rational and hierarchical government, amen-tality characterised (borrowing James C. Scott’s term) as ‘high modernism’.

Moran has provided us with a sophisticated account of contemporary regula-tory developments in Britain, drawing on historical, empirical and comparativematerial to build an elegantly argued thesis. His overall conclusion is that the shiftto a regulatory model of governance has left no one in control, has failed to deli-ver on an agenda for a smart form of regulation more attuned to the limits ofoverall control, and has caused chaos in many social and economic domains. Ashe puts it,‘the British regulatory state, far frombeing smart, is. . .often remarkablystupid’ (p 26).Thoughwell-versed in both economic and socio-legal literatures onregulation, his starting point for the argument is the preoccupation in politicalscience with governance.Thus Moran’s chief purpose is to show us how the gov-ernance community have got it wrong. The socio-legal folk have got it wrongtoo, in particular because their aspiration to smarter forms of regulation is notrealisable. Moran invites us to pay more attention to the institutional details andpractices that generate regulatory chaos and to ¢nd better ways to reconcile thelingering culture of oligarchic club government with contemporary require-ments of transparency and formality more suited to modern democratic govern-ment. Some might think the analysis too gloomy, while others might concludethat regulatory regimes which are touted as successful are only contingently so,and are in fact failures waiting to happen.

Colin Scottn

nLondon School of Economics and Political Science.

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