The Westminster Model in Comparative Administrative Law: Incentives for Controls on Regulation-Making

Abstract

Comparative administrative law scholars have highlighted the differences between regulation-making processes in Westminster parliamentary systems and the United States’ presidential system. One particular difference focused on in these works is that the United States regulation-making legislation, the Administrative Procedure Act (1946), includes notice and comment provisions while the equivalent legislation in countries with Westminster-based systems either include no such provisions or, as in some jurisdictions in Australia, include unenforceable public consultation provisions. The comparative scholarship highlights that the differences between the United States and Westminster-based systems are due to different incentives operating in the two countries. In particular, they highlight that there are disincentives in parliamentary systems to enact such provisions. While I agree that disincentives help explain the lack of mandatory public consultation provisions in general regulation-making legislation in Westminster parliamentary systems, they do not explain direct control of regulation-making by parliaments or the inclusion of public consultation provisions in sector-specific legislation. When those features are taken into account, a different picture of regulation-making in Westminster parliamentary systems emerges.

Keywords: Comparative Administrative Law, Westminster Parliamentary Systems, United States Presidential System, Regulation-Making, Public Consultation Provisions, Notice and Comment Provisions, Incentives

JEL Classification: K10, K19, K23, K30