Ciara O’Dwyer (Collegio Carlo Alberto)

“Unilateral consensus? Regulatory Negotiation in the Nursing Home Sector”

abstract

Over the last fifteen years, “regulatory negotiation”, whereby regulated firms and other stakeholders participate in the rule-making process, has gained popularity as part of the Better Regulation movement. Proponents argue that the process increases compliance rates and helps to ensure that the rules are written in the public interest by empowering the intended beneficiaries (i.e. consumers). Others have expressed scepticism about the purported benefits, arguing that the very principle on which regulatory negotiation is based hinders rules from being written in the public interest. Yet, in spite of its popularity, research on the process is limited. This paper uses the development of new minimum standards for the nursing home sector in Ireland to ascertain whether regulatory negotiation furthers the public interest; if the regulatory negotiated process can demonstrate that it can empower older people living in residential care, a particularly disempowered group, it would help to show that regulatory negotiation had a significant advantage over more traditional forms of rulemaking.

The study adopted a governance framework and a qualitative, process-tracing approach, using documentary data, in-depth interviews with members of the Working Group who wrote the standards and other relevant stakeholders. Findings showed that decisions were reached on the basis of compromise and strategic argumentation, and the voice of older people was broadly sidelined. More strikingly, the findings indicated that the government subsequently sidelined the interests of nursing home residents further by failing to give the Standards adequate legislative backing, replacing the partnership approach with a unilateral decision, largely for financial reasons.

Not only do these findings cast further doubt on the ability of regulatory negotiation to act in the public interest and thus point to the need for a re-conceptualisation of the public interest, they also show that regulatory negotiation is a tool of governance which facilitates the promotion of self-interest through the rhetoric of partnership.