Identifying Hybrid Regulation: development of an index for regulatee discretion based on legislative design techniques

Over the past few decades, there has been a growing call for regulatory innovation. Practitioners and academics have been calling for more flexibility, less complexity, less regulatory burden, and more freedom and room for innovation for regulatees. One of the tools that is seen as potentially responding to these needs, is goal-based regulation (GBR). While GBR has already received quite some scholarly attention over the last few years, much research on GBR only discusses ‘goal-based regulation’ as if it were a homogeneous phenomenon. In reality, however, there are many ways to design and implement GBR. One important point of distinction is the ‘degree’ of GBR. Indeed, we can observe that most regulation is not purely goal-based or rule-based, but rather falls somewhere in between. This raises the question of whether and how we can determine where on the spectrum between RBR and GBR a specific piece of regulation can be located. The determining factor in this is the amount of discretion (or freedom of choice) granted to the regulatees with regard to how they should achieve the regulatory goals. Hence, the main question that this article aims to answer is: How can we measure the discretion that norms grant to regulatees, in a way that allows us to identify various degrees of GBR? The paper will present a literature study on how different types of discretion in regulation are measured (managerial, administrative …), and an examination of Flemish welfare and environmental regulation. The latter will serve to determine how Flemish rule-makers employ GBR and related techniques and the ways in which they limit and expand regulatees’ discretion. This will provide novel insights into the various ways to implement regulatee discretion in rule design and how this corresponds with different degrees of goal-based regulation.