Non-statutory Rulemaking and the Rule of Law : towards a ‘ Law of Rules ’ ? Inspiration from private actors and autonomous public bodies

In various European legal systems, autonomous public bodies and private actors are increasingly invested with rulemaking powers. The phenomenon is usually assessed through the looking glass of the democracy principle, because these actors have a weaker electoral connection to the People than other (non-statutory) rule makers such as e.g. the Government and its ministers. What is still largely missing from legal scholarship is an analysis of how the rule of law, and more specifically legal certainty, is safeguarded when private actors and autonomous public bodies receive rulemaking powers. This contribution reveals that the rules and practices applied by these actors sometimes lead to higher degrees of legal certainty than those in place for central administrations. Hence, these ‘non-politically-accountable actors’ offer inspiration for the development of an overarching Law of Rules that can further the Rule of Law for all non-statutory rulemaking.


I. Introduction
Constitutions typically contain detailed provisions on how statutory rules should be adopted, proclaimed and made public. 1This is often not the case, however, for non-statutory, i.e. non-legislative or non-parliamentary rulemaking.We define a rule as any legal act that enacts, accepts or establishes abstract, general and obligatory norms that have the purpose and effect of altering legal rights, duties and relations of persons. 2 Non-statutory rules can emanate from a variety of actors, many of which hold a political mandate, such as the Government (the political executive), individual ministers, local government, etc.This definition is based on among others Dumon's definition of 'law' in his 1978 opening address of the legal year for the Belgian courts and on CJ Burger's majority opinion of SCOTUS in INS v Chadha: F. Dumon 'De motivering van de vonnissen en arresten en de bewijskracht van de akten ' [1978-1979] Arr.Cass. 1, 23; INS v.  Chadha 462 U.S. 952 (1983); See as well: Arnand Haquet, Le pouvoir réglementaire des autorités administratives indépendantes.Réflexions sur son objet et sa légitimité [2008] Revue du droit public, 395.bodies (APBs).These actors lack (direct) political accountability. 3They are establishing themselves as rule makers in various European legal systems at a quick pace. 4As a result, the rule of law faces several uncharted challenges.The Venice Commission endorses the following definition of the 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 made, taking effect (generally) in the future and publicly administered in the courts'. 5It further distinguishes benchmarks for the rule of law such as legal certainty, hierarchy of norms, legality, access to justice, prevention of abuse of powers and equality before the law. 6In this contribution, we focus on one aspect of the rule of law specifically: legal certainty. 7Legal certainty consists of the no-____________________________ 3 For a more precise description and definition of private actors and autonomous public bodies, see II below.4   See for private actors (defined in an even broader sense than this contribution does): Fabrizio Cafaggi 'The many features of transnational private rule-making: unexplored relationships between custom, jura mercatorum and global private regulation ' [2015]  At first sight, private actors and APBs share the lack of a constitutional or legislative framework that embeds their powers in a set of guarantees or requirements on e.g.transparency.After closer scrutiny, however, one could wonder whether their rulemaking does not sometimes offer more rule of law guarantees than rulemaking by other executive or administrative bodies.APBs may apply procedures and offer levels of transparency that most politically accountable actors that make rules do not.This contribution addresses the rule of law challenges for rulemaking by private actors and APBs.Moreover, it tests the water for the hypothesis that these modern rule makers could offer inspiration for the development of a theoretical framework on the guarantees that should govern all nonstatutory rulemaking from a rule of law perspective, irrespective of who makes the rules.This theoretical framework could be referred to as a 'law of rules'.
Private and APB rulemaking is discernible in various European countries.This contribution takes the Belgian case as a starting point, but also compares with other national legal systems and even touches on EU law.We begin by defining the type of actors that fall within the scope of this contribution (II).Subsequently, we look at the law and practice governing rulemaking by private actors and APBs before scrutinizing the challenges that this practice entails.same time, we find inspiration in the reply of private actors and APBs to these challenges for a more general theory on non-statutory rulemaking and the rule of law (III).Finally, we conclude and formulate some tentative recommendations (IV).

II. Definition of 'non-politicallyaccountable actors' (NPAAs)
Private actors and autonomous public bodies may seem to be two wholly different categories.Still, given the growing awareness that the public/private divide has lost much of its explanatory power 9 , we discern an important communality.
Private actors and APBs are usually subject to content-oriented accountability mechanisms 10 and may trigger the accountability of a traditional rulemaking actor (typically an elected assembly) that outsourced its powers.(for APBs) 12 derive their personal-organizational legitimacy from being part of the democratic legitimacy chain (Legitimationskette) 13 , running from the people, to the constitution, the legislature, the executive and the administration.We can therefore coin APBs and private actors: non-politically-accountable actors.

Non-institutionalized private actors
Private actors are increasingly involved in the development of generally binding norms.The post-welfare state has reached its limits of state intervention and therefore resorts to additional resources. 14These resources can either be found outside or within the state apparatus.
One category of private involvement is omnipresent in the exercise of governmental power, namely when the legislature or the executive merely consult professionals outside of the formal regulatory framework.Advisory opinions, consultations, impact-assessments and even the first drafts of legislation are often out-____________________________ sourced to private actors. 15However, as long as this aid is not institutionalized, this category of private involvement hardly ever seems problematic for three reasons. 16rst, these private enactments do not amount to the status of 'rules'.They lack any binding nature.Moreover, they are not directed to the people as abstract or general norms.They merely support the rulemaking activities of the legislature and the executive.
Second, the legislature and the executive adopt this preparatory work of private actors and cover it with their legitimacy. 17Admittedly though, when a law firm prepares draft legislation, it may have an inordinate impact on the final outcome.
Third, the rule of law, as a constitutional principle that limits the possibility to outsource governmental power, remains respected.Safeguards that are constitutionally required from the traditional, politically accountable actors still fulfil their ordinary function.If a private, advisory document eventually turns into a statute, it will still be debated in multiple committees -possibly even Houses -of Parliament.This does not merely increase the democratic legitimacy of the rule, but it also ensures the quality of the rule as an aspect of the rule of law

Institutionalized private actors
As a second category of private involvement in rulemaking, national legislatures and executives increasingly outsource (a part of) their rulemaking power to private actors.From the outset, the role of the private actor is elementary in the creation of binding rules.These rules can be categorized in three overarching types ranked according to an increasing degree of independence of the private rule maker: (1) First, the extension of private rules to third parties (2) second, the dynamic referral to private documents and (3) third, the outward delegation of rulemaking power.The latter technique of outward delegation is equally used to transfer rulemaking powers to APBs (infra).
In first instance, the extension of private contracts occurs when these contracts are given all the hallmarks of rules due to the prior or subsequent intervention of governmental power.fore, although these employees were in no way parties to the CLA, its rights and obligations apply to them.Moreover, the extension of the private contract is possible through an explicit action of the executive.Through an executive act, the CLAs become rules, binding every employer -and therefore also every employee -within the 'industrial or territorial scope' of the agreement. 19ere are also other examples of rulemaking through extension in Europe: agreements among practitioners of free professions, such as attorneys and notaries, have regularly experienced a comparable extension by the executive.A deontology code that binds clients or commercial partners of attorneys already hinges towards 'private' rulemaking. 20et, Belgium even created a framework through which the executive can recognize codes of free profession associations and extend their binding power beyond the original drafter of the code.

Autonomous public bodies (APBs)
APBs are actors, established by or embedded in the state that enjoy a degree of autonomy vis-à-vis the politically responsible institutions of the state. 26The rulemaking powers of such 'independent agencies', 'QUANGOs' or 'arm's length bodies' and the like through the delegation technique have been the subject of many academic contributions.Most of these have, however, approached the subject from the viewpoint of the socalled 'democratic deficit' that such a delegation is believed to entail. 27Much less attention has been paid to the compatibility with the rule of law.

III. How private actors and APBs achieve legal certainty when they make rules
A series of problems that were traditionally associated with the decision-making ____________________________ against publications of NPAAs' rules on the Internet. 32 The implementation of the publication principle for APBs in Belgium has been subject to different interpretations.In some cases, the legislation that empowered the APB to enact the rules would contain (detailed or minimalistic) rules on publication.In other cases, however, the legislation would remain silent, implying that it was left to the APB to determine how it would publish its rules. 33milarly, concerns have been raised in the Netherlands about the lack of publicity of the decisions made by APBs in general and the rules that they enact in particular.A 2002 study addressed the rulemaking powers of so-called ZBOs (zelfstandige bestuursorganen).ZBOs are APBs that are not under the full, hierarchical scrutiny of a responsible government minister.The study's most pressing recommendation on the level of formal quality of rules was that the need for an effective publication of ZBO rules had to be taken more seriously.The researchers were worried that publication did not always take place via appropriate media, so that it could not be ensured that all stakeholders had effective access and would hence be able to take note of the rules' contents.This includes ZBOs at central government level. 35In Belgium, such a uniform requirement is still lacking.However, Belgium has also seen increasing attention to the transparency of APB decisionmaking in the last decade.The statutory legislation that invests APBs with rulemaking powers will now often contain specific instructions on how the rules have to be published.Remarkably, these instructions often entail stricter or more detailed requirements than those that apply to the central state institutions.
Both the Belgian federal and the Flemish energy regulatory authority, for instance, are not only under an obligation to publish their respective tariff methodologies on their websites.They also have to add all documents with regard to the participation and consultation procedures that preceded the enactment as well as 'all other documents that are deemed useful' to give reasons for the contents of their tariff methodologies.Comparative research has revealed that, because independent regulators have to 'earn' their own legitimacy, they moreover often take initiatives themselves to upgrade their transparency, for instance by publishing as much information on their websites as possible in the light of confidentiality requirements.This can also be a 'branding' strategy: it makes their work more visible. 37In that sense, APBs -and especially the most independent ones, such as independent regulatory authorities -may now actually be closer to accomplishing transparency and publicity than most traditional state actors are.
A comparable evolution seems to have taken place for private actors that make rules.Article 10 of WADA's revised statutes and article 23.5.2012 on a draft executive decree of the Flemish government regarding the exercise of the legislative decree of 25 May 2012 regarding the prevention and fight against doping in sport, 9.However, these norms might not be so easily accessible within the sports organizations or international sports federations.cent Prohibited List. 39Such guarantees would appear exceptional for more traditional non-statutory norms.

Foreseeability
Publication and accessibility do not suffice to ensure legal certainty: rules also have to be foreseeable.Non-statutory norms typically pose challenges in terms of foreseeability.It appears to be in their nature that they can be easily adapted, or at least more so than statutory norms.In legal systems that have been inspired by the French tradition, the principle of adaptabilité or mutabilité (one of the so called 'lois du service public') enshrines the executive's power to change the rules whenever this is necessary in the public interest.Because private actors and APBs combine this capacity to easily change rules with a decreased amount of political supervision, their rules are assumed to be less foreseeable.
Nevertheless, delegation to APBs and especially independent supervisors is often precisely inspired by considerations of predictability and foreseeability. 40

Intelligibility
Proper rulemaking also means intelligible rulemaking.The explanatory notes preceding the enactment of statutory legislation are usually available to the public.These are not part of the actual statutory act, but they provide guidance on the interpretation of the rules.Often, no similar documents are available for administrative rulemaking, since this tends to be technical and detailed.This entails specific challenges in terms of intelligibility.
It may very well be, however, that APBs, because of the procedural guarantees that they are obliged to offer, achieve greater levels of intelligibility for their target audiences than central government institutions.First, APBs increasingly apply a 'noticeand-comment' approach to rulemaking. 43hroughout this consultation process, regulatory bodies and their stakeholders enter into a dialogue concerning the contents of the rules.Stakeholders have the opportunity of formulating suggestions as to the contents of the rules, but also of demanding clarity on (proposed) rules that may be unclear or open to interpretation.Hence, participatory procedures do not only lead to increased democratic legitimacy, but can also lead to rules that are more comprehensible and offer more legal certainty.The Dutch ACM (Autoriteit Consument en Markt), being the unified independent network regulator for the Netherlands, for instance, organizes consultations regarding the policy rules that it issues.Sometimes, stakeholders are invited to submit comments on the regulator's websites.In other cases, however, the ACM has been known to organize roundtables that allow for a genuine debate. 44cond, APBs often give reasons for the normative documents that they adopt. 45__________________________ 43 For central government departments and agencies, such consultation procedures are often not compulsory.See e.g. for the UK: Paul Craig, Administrative Law (Routledge 2012) 440-442. 44J.G. Vegter and P.I.W.R. Maandag, 'Regelgeving en beleid door onafhankelijke toezichthouders: de praktijk van ACM ' [2015] RegelMaat (special issue on the rulemaking powers of ZBOs) 201, 214. 45Even though they may do this in different ways: some just publish the documents that have inspired their decision (e.g.advisory opinions or reports of consultations) along with the actual normative act.Others use a preamble model and/or dedicate a separate title to the reasons behind the rules in the actual normative act.An example of the latter is found in the practice of Belgian federal energy regulator CREG: its tariff methodology contains a section outlining the general starting points that have inspired the regulation and a section with explanatory notes per article.Most national European systems do not submit administrative rules to a duty to give reasons, but limit the duty to give reasons to individual acts.Nowadays, the duty to give reasons is increasingly approached as an instrument that supports administrative accountability. 46Traditionally, though, it was regarded as mainly an accessory of the right to access to the courts, a purpose which it still serves and that has been endorsed by the European Court of Human Rights 47 and the European Court of Justice 48 .Thus, the duty to give reasons has informative value; it assists affected parties in deciding whether seeking judicial redress is worthwhile.
The statement of reasons contributes to a proper understanding of the rules.
But why not extend such obligations to all non-statutory rules?This is for instance the case in EU law.It is often presumed that the guarantees provided by the rule of law are reduced once decisionmaking power is transferred beyond the state. 49Just like private actors and APBs, however, the EU depends on powers being outsourced by national political institutions and is often criticized for not possessing sufficient democratic legitimacy.This may be the very reason why the EU sometimes offers more guarantees from a rule of law perspective than many national legal systems For the identified techniques of private rulemaking, the pendulum may also swing from an apparent decreased guarantee of intelligible rules to an effective increased guarantee of intelligible rules.
For the extension technique, for example, if a minister asks for an advisory opinion of the Council of State, this opinion will also be divulged together with the extension regulation from 2017 onwards. 54As far as the dynamic referral technique is concerned, the World Anti-Doping Agency publishes comments underneath most provisions of its Code, elucidating the interpretation of the anti-doping rules.

IV. Conclusion and tentative suggestions
Non-statutory rulemaking still finds itself in a constitutional twilight zone.Administrative rulemaking in general lags behind statutory rulemaking when it comes to attention for the quality of the rules.This article has developed the idea that private actors and APBs often reach or surpass the threshold for compliance with the rule of law, set by politically accountable actors, especially on the level of legal certainty.In designing a 'law of rules', the relevant actors (the constitutional framer, the legislature, the courts, public advisory bodies etc.) could find inspiration in the best practices of private actors and APBs.We derive from our research three conclusions and suggestions that could benefit all actors with rulemaking powers.
First of all, non-statutory rules should be published systematically and promptly, ____________________________ 55 Albeit backed by members of the executive.These concerns may be weaker in some jurisdictions such as the UK and its famous voluntary tradition.Third, APBs often give reasons for the rules that they enact, either in the act itself or by making available the preparatory documents that preceded the enactment.This contributes to the intelligibility of the rules, since these documents offer guidance on the correct interpretation.Why not introduce a 'duty to give reasons' for all non-statutory rules in order to enhance their intelligibility?The 'preamble' model, used by the EU institutions, could serve as an inspiration here.
Preferably, the statement of reasons is part of the actual act that anchors the rules and should serve as a basis for an authoritative interpretation.
Legal certainty is an important, but not the only guarantee that shapes the rule of law.This brief contribution did not yet grant us the opportunity to flesh out the entire content of a 'law of rules'.Respect for the hierarchy of norms, for example, is a further concretization of the rule of law.This latter guarantee implies that subordinate legislation complies with the statutory legislation in which it finds its basis for existence.The most obvious way of ensuring this is to make non-statutory rules subject to judicial review.Those who wish to challenge the rules made by APBs may face particular challenges.Academic studies reveal that judicial deference vis-à-vis the decisions made by independent administrative authorities with regulatory powers is high. 56This reality is not limited to APBs; it also extends to private norm makers. 57 gian Council of State Administrative Section has no authority to annul them.In this respect, the rulemaking powers of private actors appear to lag behind those of the political executive.Sometimes, however, it is not NPAAs, but central government actors that show more deficits when it comes to legal protection via the courts.In the Netherlands, for instance, the courts are not competent to review subordinate legislation directly as a matter of principle. 58An exception has been made for some administrative regulations.Two of the most important normative powers entrusted to the ACM, i.e. the unified independent network regulator, are explicitly named in the General Administrative Law Act as subject to judicial review. 59This is again an example of how rulemaking by APBs and especially by those with a substantial degree of independence goes hand in hand with guarantees that most rulemaking by central state actors does not offer.
The rule of law extends to all types of rulemaking.We believe that a fullfledged theory on the desirable contents of a 'law of rules' could be developed bottom-up, drawing inspiration from the combined best practices of both the political executive and of NPAAs.
____________________________ 58 Article 8:3(1) of the General Administrative Law Act. 59Article 4 of the second addendum to the General Administrative Law Act.Other powers of the ACM that have been qualified by the administrative court as being normative in nature are not explicitly mentioned, however.Hence, the court has declined jurisdiction for these powers (College van Beroep voor het bedrijfsleven 5 March 2014, no.12/1037).

____________________________41
Articles 47 and 48 of the Communications Act 2003. 42Irene Mazzoni, Osquel Barroso and Olivier Rabin, 'The List of Prohibited Substances and Methods in Sport: Structure and Review Process by the World Anti-Doping Agency' [2011] Journal of Analyical Toxicology, 609.
will then refer to the World Anti-Doping Code in their statutory legislation through sentences like: 'in accordance with article …. of the Code', 'pursuant to article … of the Code', 'in compliance with article … of the Code', etc. Regulatees thus first have to consult the (latest version of the) privately made code in order to establish the full extent and interpretation of the rules that bind them.
21 ____________________________ 19 Idem; See for the Belgian implementation: Article 19 of the Statute regarding Collective Labour Agreements; Patrick Humblet, Marc Rigaux, Ria Janvier, Wilfried Rauw and Anne Van Regenmortel, 'Collectief arbeidsrecht' in Patrick Humblet and Marc Rigaux (eds.),Synopsisvan het Belgische arbeidsrecht (Intersentia 2009) 446-447. 20ee e.g. in Germany Facharzt-case BVerfG 33, 125, § 126: 'Die Kammergesetze der Länder enthalten keine Vorschriften über Fachärzte; sie ermächtigen die Ärztekammern lediglich, Berufsordnungen zu erlassen, die u. a. auch Bestimmungen über die ärztlichen Berufspflichten treffen können.Auf dieser Grundlage regeln die Facharztordnungen das gesamte Facharztwesen.' Freely translated as: 'The substate statutes on professional organizations do not contain any precise rules on specialist physicians; they merely authorize the physicians' chambers to adopt codes of practice, which may also contain provisions on the duties of a medical professional.On this basis, the rules drafted by specialist physicians regulate the entire profession of medical specialists.' 21rticle 15, §1 Belgian Royal Decree no.79 concerning the order of physicians, 10 November 6, 9°, art.9/1, lid 2, art.19,a), c), d), e), l) and art.19/1Legislative Decree French Community 20 October 2011 regarding the fight against doping.See more broadly Cedric Jenart, 'Zelfregulering en de bescherming van grondrechten: de casus van doping in de elitesport' [2016] TBP 281.tures Article VI.121 Code Economic Law. 31After the Belgian Council of State Administrative Section had annulled the adoption of the World Anti Doping Code by the Secretary General of Sports as an unbridled delegation of normative power in the Sporta case, this code is no longer declaratorily published in the Belgian Official Journal.This had been the case for the Regulation of the Flemish Government of 20 June 2008 regarding the execution of the statute of 13 July 2007 on medically responsible practice of sports.
parative Law; Dorit Rubinstein Reiss, 'Administrative agencies as creators of administrative law norms: evidence from the UK, France and Sweden' in Susan Rose-Ackerman and Peter Lindseth (eds.),Comparative Administrative Law (Elgar 2010) 373.
More fundamentally, article 26 of the Belgian Statute on Collective Labour Agreements states that collective labour agreements that were made by joint committees may not even be considered to be unilateral executive regulations.Therefore, the Bel-____________________________ 56 See e.g.Catherine Donnelly, 'Participation and expertise: judicial attitudes in comparative perspective' in Susan Rose-Ackerman and Peter Lindseth (eds.),Comparative Administrative Law (Elgar 2010) 357; Carol Harlow and Richard Rawlings, Law and Administration (7 th edn., Cambridge University Press 2009) 311; Tony Prosser, 'The Powers and Accountability of Agencies and Regulators' in David Feldman (ed.), English Public Law (Oxford University Press 2011) 241, 250. 57See for a parallel reasoning on the deference of national courts towards disciplinary anti-doping bodies: Cedric Jenart, 'Zelfregulering en de bescherming van grondrechten: de casus van doping in de elitesport' [2016] TBP 290-291.