Enforcement pyramid

The enforcement pyramid (or regulatory pyramid) is one of the most important ideas associated with the idea of ‘Responsive Regulation’ and is very helpful to the analysis in this chapter.[1] As can be seen in Figure 5.1, the response starts at the base of the pyramid where actions are taken to secure compliance through persuasion. After that, the enforcement is escalated to more stringent responses. If this fails to secure compliance, the enforcement will gradually be escalated upwards through civil and criminal sanctions and finally to the top of the pyramid, when the behaviour of a regulatee is not amenable. This approach deters unwanted behaviours, incentivises desired conduct, and secures compliance by educating regulatees to exhibit the behaviours expected from them. As a result, it becomes rational for regulatees to comply and cooperate in order to avoid the costs of non-compliance. The relevance of the dynamism of the enforcement pyramid is that many problems can be solved through expanding the responsibilities of the regulated actors.-

Although the approach speaks to regulators of business-related activities, ‘regulatory theory’ in general has been applied to corruption prevention. First, the enforcement pyramid has been applied to crime and other public governance activities. Second, regulators and counter-corruption agencies have many commonalities. They may both use similar instruments and tools, both of them aim

Enforcement pyramid as suggested by Ayres and Braithwaite

Figure 5.1 Enforcement pyramid as suggested by Ayres and Braithwaite.

to promote behaviours that comply with specific standards, and both of them have public interest-oriented objectives ‘whether that is public health and safety or public integrity’.[2] Third, while the prospective responses to corruption differ from those proposed in Figure 5.1, the idea behind the pyramid in itself is useful. Ayres and Braithwaite suggest that ‘it is not the content of the enforcement pyramid on which we wish to focus during this discussion, but its form’. Therefore, the logic of the enforcement pyramid can be extended beyond its context. In summary, the application of the enforcement pyramid to corruption implies that before resorting to punishing the regulated actors (here, these are public officials), their engagement in corrupt acts can be prevented by educating them.

Although Kuwait lacks a consistent strategy regarding how and when counter-corruption responses should be applied in a given context, the idea of the enforcement pyramid is helpful in understanding and assessing the various counter-corruption measures available in Kuwaiti law. It is argued here that the enforcement authorities in Kuwait, when responding to corruption, must consider different approaches before resorting to criminal law. They should use an effective mix of strategies to reduce corruption (see Figure 5.2). Minor violations should be dealt with at the bottom of pyramid, serious violations should be dealt with in the middle, and more serious violations should be dealt with at the top.

Despite its applicability in principle, the pyramid approach faces theoretical challenges in Kuwait. These challenges are predictable since Braithwaite accepts that there are some limitations of the enforcement pyramid approach (or the idea of responsive regulation) in developing countries, as it has been designed

Proposed enforcement pyramid in Kuwait

Figure 5.2 Proposed enforcement pyramid in Kuwait.

for countries with developed economies.[3] In Kuwait, the major challenge lies at the base of the pyramid (particularly self-regulation). The dominance of the state regulator and the limited role of the regulators from the private sector have blurred the significance of self-regulation. The involvement of the private sector in corruption-related regulations has been limited, and their current contributions are no more than voluntary initiatives. The absence of the systematic engagement of the private sector to steer itself has some implications for the optimal utilisation of the enforcement pyramid. Thus, one of this chapter’s aims is to argue for more focus on self-regulation in Kuwait.

Taken as a whole, the enforcement pyramid has many merits. First, it provides an opportunity for the respectful option of persuasion and reserves the costly intervention of criminal prosecution for cases where persuasion fails. Second, the enforcement pyramid is not just about the costs of enforcement; it is a ‘democratic ideal’ that is concerned with the legitimacy of laws and increasing the likelihood of compliance with the law. This ‘democratic ideal’ is important for Kuwait where democracy has been adopted as a system of government. Third, the enforcement pyramid approach directs the attention of Kuwaiti policymakers to the importance of non-criminal measures against corruption. In a jurisdiction like Kuwait, the dominance of criminal law in combating corruption may inadvertently overlook, or even downplay, the other means. It is based on this pyramid idea that counter-corruption responses are categorised in the following sections.

  • [1] Ayres and Braithwaite (1995, p. 35). 2 See Ivec and Braithwaite (2015). 3 Braithwaite (2011). 4 Ayres and Braithwaite (1995, p. 35). 5 Graycar and Prenzler (2013, p. 73). 6 Braithwaite (2011).
  • [2] Mills (2008, p. 10). 2 Ayres and Braithwaite (1995, p. 35).
  • [3] See Braithwaite (2006). 2 See below sections 5.3.2.2 and 5.4. 3 See Parker (2013) and the book review of Responsive Regulation by Ian Ayres and John Braithwaite at Harvard Law Review (1993). 4 Braithwaite (2011). 5 Braithwaite (2006, pp. 884-885). 6 Kuwaiti Constitution, art.6. See also chapter 3.2.1.
 
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