Conceptualization and Measuring Regulatory Discretion: Text Analysis of 120 Years of British Legislation

Regulatory discretion is a central concept in the study of the regulatory state and the regulatory explosion of our generation. Yet little attention has been paid to the origins of regulatory discretion, and how it varies across polities, policy areas, and over time. This paper presents a conceptualization of regulatory discretion that draws on three dimensions: the discretion in choosing whether to regulate, the discretion in determining the regulatory content, and the discretion in controlling the regulatory process vis-à-vis other actors. It argues that to measure regulatory discretion in legislation, we need, first, to identify provisions delegating regulatory powers and then examine the three dimensions. Using Natural Language Processing (NLP) techniques, the paper presents descriptive findings of the dynamics of regulatory discretion in the United Kingdom between 1900 and 2020. The findings show changes in the discretion in determining the regulatory content, involving an increase in permissive provisions alongside delegations and the use of less loose parts of speech. In doing so, the article portrays how discretion has been formalized over the years, making the arbitrary use of powers less likely. This illustrates the collapse of ‘club government’ and the rise of the new British regulatory state.