Sometimes the most commonplace and uninteresting tools demand close attention because their mundane nature means that their role is misunderstood. The use of computer technology by government – specifically, by environmental regulators – is one such instance. Information and communications technology (ICT) is increasingly deployed in bureaucratic and regulatory processes throughout the developed world; as in commerce and industry, software code and databases are becoming the invisible ‘glue’ that interconnects the various actors in the regulatory system and weaves an invisible web of control between decision-makers, regulated entities and ordinary citizens. Nonetheless, this topic has received only disconnected academic attention, perhaps because there is little that seems intrinsically interesting about a database.
The issues which ICT raises are not always obvious but nonetheless significant if we are to make the best use of these new tools without unwittingly sacrificing important principles. There is now a substantial body of literature on regulation and ICT. However, this focuses on either ‘information’ or ‘communications’, rarely on both together or on the use of ICT for regulation rather than something to be regulated. There are few theoretical or practical perspectives on the role of ICT in environmental regulation. This paper applies both in combination, developing a values-based, analytical and empirically grounded framework in order to contextualise the use of ICT as a regulatory tool.
The ever-increasing deployment of ICT in homes and offices, the built environment and the world at large creates significant opportunities for achieving better environmental outcomes but this new and poorly-understood development also raises questions about the proper operation of the rule of law by an increasingly computerised state. This research explores how the widespread implementation of ICT is altering power relationships in the system of environmental regulation. It asks to what extent this new capability of large-scale information capture leads to more or less control on the part of regulators, whether existing balances and imbalances of power are altered by these new tools (even when they are seen as neutral) and what happens when the ‘glue’ hardens and installed technology makes policy change difficult.
The paper critically reviews the operation of the rule of law in digitised government. It combines theoretical perspectives from sociology, chiefly actor-network theory, with insights from semi-structured interviews with staff in regulatory agencies, non-governmental agencies and regulated entities, to build a thematic network model of how the use of ICT for information-gathering, as a means of control and as a conduit for communications is perceived by practitioners of environmental regulation. It uses this to sketch the contours of a new field of study, ‘e-regulation’, centred around the core values of the
2. Overview
• Background: ICT and environmental regulation
• ICT in Regulation: Rule of Law issues
• Findings from empirical research
• Conclusions and recommendations
3. Benefits of ICT for
ER
New modes of regulation
Improved resource efficiency
Increased effectiveness
4. Applications of ICT
Information gathering
Remote sensing and satellite imaging
Waste management
Land-use change
Fisheries protection
Remote harvest reporting
Vessel monitoring systems
5. Applications of ICT
Analysis and modelling
Support for compliance and enforcement
e.g. MARPOL, Kyoto Protocol
Managing markets for intangible property
e.g. water rights, emissions trading
6. Applications of ICT
Information dissemination and ‘reflexive’ regulation
Envirofacts (http://www.epa.gov/enviro/)
Toxics Release Inventory (http://www.epa.gov/TRI/)
Scorecard (http://scorecard.goodguide.com)
7. Applications of ICT
‘Smart’ goods, services and processes:
Smart logistics
Smart buildings
Smart grids and smart meters
Smart products
8. Law and ICT:
Unpacking the
Relationships
• What are the consequences of the widespread use
of ICT by regulators?
• The computer as an invisible and unstudied tool
• ICT as ‘frozen institutional discourse’
• Example: Tamil Nadu land registry
9. E-Regulation
Cannot simply re-use private sector experiences
New research topic: “The use of ICT within
regulators and those who deal with them, such as
NGOs, as an integral part of the process of
measurement, assessment and feedback which is
central to regulation.”
10. Benefits of E-
Regulation
Benefits: cheaper, more, quicker, better, new
Improvements:
Better informed
More targeted
More iterative
More transparent and democratic
11. Difficulties with
E-Regulation
ICT not neutral or deterministic
Impact on existing imbalances?
Disempowering external actors
Brake on change:
Institutional
Organisational
Procedural
12. ICT and
Legal Processes
Legal processes neither simple nor linear
Not easily modelled by logic or expert systems
Risk of destructive feedback cycle
ICT as embedded and entrenched infrastructure
13. Rule of Law
‘all persons and authorities within the state, whether
public or private, should be bound by and entitled to the
benefit of laws publicly and prospectively promulgated
and publicly administered in the courts’ (Lord Bingham)
Essential elements (Venice Commission):
Legality
Legal certainty
Prohibition of arbitrariness
Access to justice before independent and impartial courts
Respect for human rights
Non-discrimination and equality before the law
14. ICT and the Rule of
Law
Preserving regulatory discretion while ensuring
fairness
‘Ambient Law’
Dangers of digital decision-making
Closed, inflexible, unaccountable systems
Containing assumptions, biases, mistakes
15.
16.
17. Querying the Myths
of E-Government
Formalising practices and knowledge is difficult
ICT can be a brake on reform
People can resist ICT-driven change
Need to ‘Get It Right First Time’
18. “Get It Right First
Time”
Awareness of ICT and power relationships
Design principles:
Flexibility
Rule of law
Human rights
Open, re-usable data
