Учебный год 22-23 / The Public Law-Private Law Divide

the judgment of Lord Millett in Reda may prove to be problematic. It is certainly the case that an implied term cannot be inconsistent with an express term of the contract, but there do appear to be cases in which the courts have used an implied term in order to cut down, or qualify, the scope of an express term which appeared to be capable of a wider construction59. This is a difficult issue, the resolution of which is beyond the scope of this essay. It suffices for present purposes to note that, in the case where an express term of the contract purports to confer a broad discretion on a party to the contract, the task of implying a term, the effect of which is to regulate the exercise of the discretion, becomes more difficult and the issue for the court becomes one of interpretation of the express term60 rather than the implication of a term.

VI. – THE SCOPE OF THE IMPLIED TERM

When deciding whether or not to imply a term into a contract, a court will have regard to the scope of the term sought to be implied. The more exacting the term, the more difficult it is likely to be to persuade a court to imply it into the contract. Difficult issues can arise when attempting to formulate the term to be implied into the contract. The term may be capable of expression in different ways, as Paragon Finance demonstrates. In the pleadings before the Recorder, the defendants submitted that there was an implied term that the claimant would determine the rate of interest “in line with interest rates being charged from time to time by mortgage lenders within England and Wales to status borrowers”61 and, alternatively, that there was an implied term that “the interest rate would only vary in accordance with the changes in the interest rate of the Bank of England from time to time”62. The Recorder rejected both of these submissions and the defendants did not appeal against his decision on these issues. Further, the defendants submitted that the claimant was bound to exercise its discretion to vary the interest rate “fairly as between both parties to the contract, and not arbitrarily, capriciously or unreasonably”63. Once again, the Recorder refused to imply such a term and there was no appeal against that finding either. Before the Court of Appeal the defendants pleaded an implied term as follows:

“It was an (or a further) implied term of the contract, to be implied into the clause conferring the discretion to vary interest rates referred to at paragraph 3 above being an obvious qualification or to give business efficacy to or to give effect to the reasonable expectation of the parties that that discretion was a discretion which the claimants were bound to exercise fairly honestly and in good faith as between both parties to the contract, and not arbitrarily,

59See, for example, Johnstone v. Bloomsbury Health Authority [1992] 1 QB 333.

60For example, in the case where the term makes reference to the “sole discretion” or the “absolute

discretion” of a contracting party an issue may arise as to whether or not the term is to be interpreted literally (so that the exercise of the discretion is in fact unfettered) or whether, as a matter of construction, a limit is to be placed on the scope of the clause (for example, that the discretion cannot be exercised dishonestly, arbitrarily or capriciously).

61[2001] EWCA Civ 1466; [2002] 1 WLR 685 at [18].

62Ibid.

63Ibid., at [19].

capriciously or unreasonably; and that in making a decision or decisions under the said power the claimants would give proper consideration to the matter, taking into account all relevant matters and ignoring irrelevant matters.”64

The term that was actually implied by the Court of Appeal was phrased as follows by Dyson L.J.: “rates of interest would not be set dishonestly, for an improper purpose, capriciously or arbitrarily”65. He rejected the implication of a term that the lender would not set unreasonable rates66 but acceded to the implication of a term that “a lender will not exercise his discretion in a way that no reasonable lender, acting reasonably, would do”67. This implied term can thus be broken down into four components, namely (i) the discretion must be exercised honestly, (ii) it must not be exercised for an improper purpose, (iii) it must not be exercised in an arbitrary or capricious manner and (iv) it must not be exercised in a way that no reasonable contracting party, acting reasonably, would do. These components require separate analysis because some may be more readily implied than others.

(a) dishonestly

The proposition that a contractual discretion must be exercised honestly (or that it cannot be exercised dishonestly) has substantial support in the authorities68. In some of the cases a reference to “honesty” is combined with a reference to “good faith” or to bona fides69. The meaning of good faith in this context is not entirely clear. It seems that good faith and bona fides are frequently used simply as a synonym for honesty. Thus in Weinberger v. Inglis70 Lord Buckmaster stated that

“the honesty of the action is not challenged. The Committee acted bona fide in what they believed to be the discharge of their duties, and that is to my mind the complete and sufficient answer to the whole appeal.”71

It would appear that a court will readily imply a term to the effect that a discretion will be exercised honestly. Indeed, it is difficult to envisage a court sanctioning the dishonest exercise of a discretion. Further, a court may refuse to give effect to a term which expressly purports to entitle a party to exercise a discretion dishonestly72.

64Ibid., at [20].

65Ibid., at [36].

66Ibid., at [41].

67Ibid.

68See, for example, Weinberger v. Inglis [1919] AC 606, 617, 621, 624, 637, 641; Abu Dhabi

National Tanker Co v. Product Star Shipping Co Ltd (The Product Star) [1993] 1 Lloyd’s Rep 397, 404, Ludgate Insurance Co Ltd v. Citibank NA [1998] LRLR 221 at [35]; Paragon Finance plc v. Nash and Staunton [2001] EWCA Civ 1466; [2002] 1 WLR 685, at [36] and Mallone v. L. BPB Industries plc [2002] EWCA Civ 126; [2002] ICR 1045.

69 See, for example, Weinberger v. Inglis [1919] AC 606, 617, 621, 624, 637, 641 and Abu Dhabi National Tanker Co v. Product Star Shipping Co Ltd (The Product Star) [1993] 1 Lloyd’s Rep 397, 404.

70[1919] AC 606.

71Ibid., at p. 621.

72In this respect it may be possible to draw an analogy with cases concerned with the exclusion of liability for fraud where the courts have refused to conclude that a contract term has the effect of

An issue may also arise in this context as to the meaning of the word “dishonestly”. A straightforward case is one in which the discretion is exercised in pursuit of a purpose which is unlawful (for example, in order to discriminate against a person on grounds of their race or sex). A more difficult case is, perhaps, the case in which a false reason is given for the exercise of a contractual discretion. Take a variation of Paragon Finance. Interest rates were higher than the norm because the lender was in a difficult financial position. But suppose that the lender decided to increase the interest rate payable and put forward a false reason for doing so. Would this constitute “dishonesty”? There is an obvious argument that it is dishonest: the lender has knowingly given a false reason for increasing the interest rates. On the other hand, there is no general contractual duty to give reasons and, in the absence of such a duty, it may be argued that a lender does not commit a wrong in giving an incorrect reason for the exercise of its discretion. But the fact that the lender is not subject to a duty to give reasons should not provide it with a defence when it chooses to give reasons but does so falsely.

(b) for an improper purpose

The proposition that the discretion must be exercised for the purpose for which it was given can be stated in a positive or a negative form: either the discretion must be exercised for the purpose for which it was given or the discretion must not be exercised for an improper purpose. This proposition, in its positive or its negative form, enjoys some support in the authorities73. In Paragon Finance Dyson L.J. gave as an example of an “improper reason” a case “where the lender decided that the borrower was a nuisance (but had not been in breach of the terms of the agreement) and, wishing to get rid of him, raised the rate of interest to a level that it knew he could not afford to pay”74. The willingness of the court to imply such a term into a contract will depend, in part, upon the meaning to be ascribed to “improper”. Where the “improper purpose” is also “arbitrary or capricious” the implication is likely to be relatively straightforward on the basis that people generally enter into contracts “on the understanding that the other party will act … rationally … rather than arbitrarily or capriciously”75. More difficult is the case where the “impropriety” is alleged to assume a form which is neither arbitrary nor capricious. Provided that it is recognised that a party who acts in pursuit of his own interest does not act for an “improper purpose”76, and

excluding liability for a party’s fraud: see generally HIH Casualty and General Insurance Ltd v. Chase Manhattan Bank [2003] UKHL 6 [2003] 2 Lloyd’s Rep 61.

73See, for example, Equitable Life Assurance Society v. Hyman [2002] 1 AC 408, 460; Paragon Finance plc v. Nash and Staunton [2001] EWCA Civ 1466; [2002] 1 WLR 685 at [36] and Ludgate Insurance Co Ltd v. Citibank NA [1998] LRLR 221 at [35].

74[2001] EWCA Civ 1466; [2002] 1 WLR 685 at [31].

75Esso Petroleum v. Addison [2003] EWHC 1730 (Comm) at [136]: see note 44 above.

76There may, however, be a limit to the extent to which one party can prefer his interests to the interests of the other party to the contract. Thus in Esso Petroleum v. Addison [2003] EWHC 1730

(Comm) Moore-Bick J recognised (at [149]) the existence of an implied term that “Esso….was not entitled to make adjustments the combined effect of which was to render the operation of the service station commercially impossible”. It will be no easy task to prove the breach of such a term but it does at least put outer limit on the ability of a party to give priority to its own commercial interests.

due respect is accorded to the express terms of the contract77, it may not be unduly difficult to persuade a court to imply such a term into the contract.

(c) arbitrary or capricious exercise

The proposition that the exercise of a discretion must not be arbitrary or capricious also finds support in the case law78. An example of a “capricious” reason was given by Dyson L.J. in Paragon Finance in the following terms: a case “where the lender decided to raise the rate of interest because its manager did not like the colour of the borrower’s hair”79. In Clark v. Nomura International plc80 Burton J stated that “capriciousness … is not very easy to define” but added that it “can carry with it aspects of arbitrariness or domineeringness, or whimsicality or abstractedness”81. As was the case with the implied term to the effect that a contractual discretion cannot be exercised dishonestly, a court should generally be willing to imply a term into the contract to the effect that a discretion cannot be exercised arbitrarily or capriciously.

(d) unreasonableness

Much more difficult is the proposition that the discretion must not be exercised in an unreasonable manner or in a manner that is so unreasonable that no reasonable person, acting reasonably, would exercise the discretion in such a way. The courts are clearly more reluctant to imply a term of this nature into a contract. But the cases do not speak with one voice. In some cases judges have stipulated that a discretion must be exercised reasonably82, while in other cases the courts have been more hesitant. The balance of authority supports a cautious approach; while the courts will not generally imply a term into the contract to the effect that a discretion must be exercised reasonably, they are more likely to imply a term that a discretion must not be exercised in a way in which no reasonable person, acting reasonably, would do. The inspiration for the latter term is clearly to be found in administrative law, in particular the decision of the Court of Appeal in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation83 where it was held that a court was entitled to interfere with the exercise of a discretion conferred by statute upon a local authority where the

77For example, the use of words such as “sole” and “absolute” in the term which confers the discretion upon a contracting party.

78See, for example, Mallone v. BPB Industries plc [2002] EWCA Civ 126; [2002] ICR 1045, Paragon Finance plc v. Nash and Staunton [2001] EWCA Civ 1466; [2002] 1 WLR 685 at [36],

Clark v. Nomura International plc [2000] IRLR 766, Ludgate Insurance Co Ltd v. Citibank NA

[1998] LRLR 221 para [35] and Abu Dhabi National Tanker Co v. Product Star Shipping Co Ltd (The Product Star) [1993] 1 Lloyd’s Rep 397, 404.

79[2001] EWCA Civ 1466; [2002] 1 WLR 685 at [31].

80[2000] IRLR 766.

81Ibid.,at [40].

82See, for example, Leggatt J, in Abu Dhabi National Tanker Co v. Product Star Shipping Co Ltd

(The Product Star) [1993] 1 Lloyd’s Rep 397, 404 (the discretion “must not be exercised arbitrarily, capriciously or unreasonably”) and Lord Steyn in Skidmore v. Dartford & Gravesham NHS Trust [2003] UKHL 27; [2003] 3 All ER 292 at [16] (“restricted to a decision taken in good faith and on reasonable grounds”).

83 [1948] 1 KB 223.

decision of the local authority was so unreasonable that no reasonable authority could ever have come to it.

The weight of authority supports the implication of a term based on Wednesbury unreasonableness rather than unreasonableness per se. In Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd (No 2)84 Mance L.J. considered a number of cases in which an implication based on reasonableness appears to have been implied into the contract. He concluded that

“In all of them, it seems to me that what was proscribed was unreasonableness in the sense of conduct or a decision to which no reasonable person having the relevant discretion could have subscribed.”85

A similar conclusion was reached by Dyson L.J. in Paragon Finance. He stated that prior judicial reference to unreasonableness “must be understood in a sense analogous to unreasonably in the Wednesbury sense”86. While he accepted that “the scope of an implied term will depend on the circumstances of the particular contract”87 he rejected the submission that a term should be implied into the contract to the effect that rates of interest should not be set unreasonably. However he accepted that a term should be implied to the effect that it should not be set unreasonably in a Wednesbury sense. Thus he concluded:

“It is one thing to imply a term that a lender will not exercise his discretion in a way that no reasonable lender, acting reasonably, would do. It is unlikely that a lender who was acting in that way would not also be acting dishonestly, for an improper purpose, capriciously or arbitrarily. It is quite another matter to imply a term that the lender would not impose unreasonable rates.”88

What factors are likely to persuade a court to imply a Wednesbury unreasonableness term into a contract? It is very difficult to provide a clear answer to this question. The short answer is that the courts will imply such a term where to do so will give effect to the intention of the parties. When will such a term give effect to their intention? This very much depends upon the standard of review applied by the courts. If the standard is a low one (linked to impropriety, capriciousness or arbitrariness, as suggested by Dyson L.J. in Paragon Finance) then the implication is likely to be relatively common, but the higher the standard of the review, the less likely will be the implication (on the basis that it is less likely that both parties would in fact agree to the term). It may also be the case that a court will be more willing to imply a term based on

84[2001] 2 All ER (Comm) 299.

85Ibid., at [64].

86[2001] EWCA Civ 1466; [2002] 1 WLR 685 at [38].

87Ibid., at [41].

88Ibid., See to similar effect the judgment of Moore-Bick J. in Esso Petroleum v. Addison [2003]

EWHC 1730 (Comm) at [135]. In the view of Moore-Bick J, Dyson LJ’s reference to “unreasonableness” should be understood in the “limited sense” that the lender “would not base its decision on considerations wholly extraneous to the commercial circumstances in which it came to be made”. This view comes close to equating unreasonableness with an irrational decision or one that has not been made in good faith. Further support for the equation of unreasonableness with irrationality or perversity can be found in the judgment of Burton J. in Clark v. Nomura International plc [2000] IRLR 766 at [40].

212 The British vision/approches britanniques

Wednesbury unreasonableness where one party is entirely dependent upon the other and in the case where the value of the right which hinges upon the exercise of the discretion is particularly high.

The cases suggest that the standard of review imposed by a Wednesbury unreasonableness test is not in fact exacting89 and, in particular, that it does not prevent a party from having regard to his own interest when exercising the discretion90. The latter proposition is illustrated by the facts of Paragon Finance. The reason for the interest rates being set at a higher rate by the lender was that the lender had to have regard to its own financial interests. It had run into financial difficulty as a result of a high level of borrower default and it was necessary for it to raise its interest rates in order to recoup the losses that it had sustained. Dyson L.J. stated that

“If a lender is in financial difficulty, for example, because it is obliged to pay higher rates on interest to the money market, then it is likely to have to pass those increased costs on to its borrowers. If in such circumstances the rate of interest charged to a borrower is increased, it is impossible to say that the discretion to set the rate of interest is being exercised for an improper purpose, capriciously, arbitrarily or in a way in which no reasonable lender would reasonably do.”91

He continued that there was no evidence to suggest that the decision to increase the interest rates in comparison with other lenders “was motivated by other than purely commercial considerations”92. The latter sentence is an important one because it suggests that a contracting party who acts in pursuit of its own commercial interests will have little to fear from a Wednesbury unreasonable implied term. However, as has been pointed out, this relatively low standard of review may in fact lead to greater use of the term by the courts on the basis that it will more easily pass the test for the implication of a term into the contract.

VII. – THE INFILTRATION OF PUBLIC LAW VALUES

INTO PRIVATE LAW?

Does Paragon Finance, together with the cluster of recent cases concerned with the limits placed by the courts on the exercise of a contractual discretion93, provide evidence of the infiltration of public law values into private law? Not necessarily. In so far as a term is implied to the effect that a discretion cannot be

89 The low standard of review can also be seen in administrative law which, as has been noted, is the origin of the test. In R (Daly) v. Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 Lord Cooke of Thorndon suggested (at [32]) that in his opinion “the day will come when it will be more widely recognised that Associated Provincial Picture Houses Ltd v. Wednesbury Corpn [1948] 1 KB 223 was an unfortunately regressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation”.

90Subject to the limit recognised by Moore-Bick J. in Esso Petroleum v. Addison [2003] EWHC 1730 (Comm), discussed at note 76 above.

91Ibid., at [46].

92Ibid., at [47] (emphasis added).

93Referred to in note 1 above.

exercised dishonestly, arbitrarily or capriciously, there is no need to look to public law for the source of this implication. It can, in all probability, be located in the intention of the parties, objectively ascertained. The inference that contracting parties enter into contracts on the assumption that the other party is acting rationally and not arbitrarily or capriciously seems an entirely reasonable one. Greater support for the influence of public law values or principles can be found in the implication of a term based on Wednesbury unreasonableness. But it would be going too far to see Paragon Finance as some kind of triumph of public law values over private law principles. It is suggested that it is more accurate to conceive of Paragon Finance and similar cases as an example of private law “borrowing” from public law in order to fill a gap in the armoury of private law. In other words, the courts, lacking a secure legal basis for the regulation of the exercise of a contractual discretion, turned for a solution to public law, which has developed a substantial jurisprudence on the regulation of the exercise of discretionary powers.

This borrowing has not been unthinking. On the contrary, Dyson L.J. in Paragon Finance was careful to have regard to the particular transactional context of the case when deciding whether or not it was appropriate to imply into the contract a term based on Wednesbury unreasonableness. Thus he examined whether or not the implication of such a term was necessary to give effect to the reasonable expectations of the parties to the contract. In concluding that it was necessary to give effect to their reasonable expectations he paid close attention to the commercial objectives of the parties to the contract and concluded that the term was in fact consistent with these objectives. It is clear that the experience of public law has played a critical role in the formulation of this implied term. But it is unlikely that the implication can be attributed solely to public law. The term is consistent with a judicial concern for the fairness of the contract concluded by the parties and reflects a judicial perception that it is unlikely that the parties to a contract intended to place one party entirely at the mercy of the other in relation to the exercise of a contractual discretion. Some limit must be placed on the exercise of a contractual discretion and the vital question now relates to the extent of that limit rather than its existence.

Paragon Finance cannot be dismissed as an isolated case. There have been a number of cases recently in which the issue before the court has related to the exercise of a contractual discretion by a contracting party. The issue has given rise to some concern in modern commercial practice in that there is now a degree of uncertainty as to the best approach to take when drafting a clause that confers upon one party to a contract a discretion. Given that the courts are likely to place some limits on the exercise of a discretion, should the draftsman follow the lead given by the courts and attempt to structure the discretion by stating explicitly that the discretion must not be exercised dishonestly, arbitrarily or capriciously? Or should he continue to draft as broadly as possible (through the use of words such as “sole discretion” and “absolute discretion”) in the hope that this will suffice to exclude subsequent regulation of the contractual discretion by a court? The difficulty with the latter approach is that “absolute” probably does not mean absolute in that a court is likely to conclude that, notwithstanding the use of a broad word such as “absolute”, the discretion must nevertheless not be exercised

dishonestly (and, possibly, that it must not be exercised arbitrarily or capriciously94). It is therefore probably necessary to advise a client that “absolute” does not mean absolute in that it will not suffice to shut out the possibility of subsequent review by a court95. This being the case, the safer approach may be for contracting parties to take greater steps to structure the exercise of a discretion in the contract itself, by spelling out for themselves the factors that are to be taken into account in the exercise of a contractual discretion. A term which purports to structure the exercise of a contractual discretion should largely shut out the possibility of the implication of a wider term, given that the courts will not imply into a contract a term which is inconsistent with an express term of the contract. In so far as Paragon Finance, and its associated case-law, has caused commercial practitioners to re-consider the limits within which a contractual discretion may be exercised, it has performed a useful function.

94 It would be possible for a court to conclude that the use of “absolute” was intended to exclude the possibility of review on the basis of “reasonableness” or “Wednesbury unreasonableness” but that it was not intended to entitle one party to exercise a discretion in an arbitrary or capricious manner on the basis that both parties assumed that the parties would act in a rational, albeit self-interested manner in the performance of the contract. On the other hand, a court could conclude that, provided the discretion was not exercised dishonestly, the use of the word “absolute” or “sole” was intended to exclude the possibility of subsequent judicial review, including review based on “arbitrariness” or “capriciousness”.

95 See, for example, Mallone v. BPB Industries plc [2002] EWCA Civ 126; [2002] ICR 1045 where the fact that the discretion was declared to be “absolute” did not prevent the implication of a term, the effect of which was to circumscribe the exercise of the discretion.

6

UNPACKING THE TOOLBOX:

OR WHY THE PUBLIC / PRIVATE DIVIDE IS IMPORTANT IN EC ENVIRONMENTAL LAW

Elizabeth Fisher*

In the last decade there has been an explicit policy to promote a greater range of regulatory strategies in European Community (EC) environmental law1. A dominant feature of these “new” instruments has been a significant role for market-based mechanisms, private actors and private law2. EC environmental law, while once a near empty toolbox containing a few blunt tools, is quickly becoming jam packed full of well-calibrated instruments that are designed to achieve the seemingly non-controversial goal of environmental protection in the most efficient and effective way as possible. This imagery of instrumentality unconstrained by the public/private divide or national sovereignty seems particularly apt and profoundly progressive in a jurisdiction in which governance structures bear little relationship to traditional understandings of the liberal democratic state3. Moreover, it also provides a solution to the “implementation deficit” that has beleaguered EC environmental law4. Past failures, it would

* I would like to thank the attendees at the Oxford-Paris Colloquium and a seminar at Florida State University College of Law for comments on previous drafts of this paper. Any errors or omissions remain my own. The law described is as it was in August 2001.

1 E.g. Commission of the European Communities (CEC), Towards Sustainability: A European Community Programme of Policy and Action in Relation to the Environment and Sustainable Development, COM(92) 23 final and CEC, Environment 2010: Our Future, Our Choice: The Sixth Action Programme Proposal, COM (2001) 31 final. Note here that for obvious reasons the discussion is directed at the EC not the EU context.

2For a discussion of the new range of instruments see J Golub (ed), New Instruments for Environmental Policy in the EU, Routledge, London, 1998.

3For discussion of this see E Erikson & J Fossum (eds), Democracy in the European Union, Routledge,

London, 2001.

4 CEC, Implementing Community Law: Communication to the Council of the European Union and the European Parliament, COM (96) 500 final at paras 5-6 and CEC, Second Annual Survey on the Implementation and Enforcement of Community Environmental Law Jan 1998-Dec 1999, Office for Official Publications of the European Communities, Luxembourg, 2000. Also see C. Demmke, “Towards

seem, are attributable to poor design and thus solutions can be found through better design.

This chapter is concerned with “unpacking” this toolbox to highlight that while its simplicity and focus on regulatory design are both deeply appealing they are largely based on flawed assumptions about the nature of environmental problems and EC environmental law. The structure of this chapter is as follows. First, there is an overview of the different public and private actors involved in EC environmental law. These play a role at all levels of governance and interact with each other in a variety of ways. Second, there is a discussion of the “new” approach to EC environmental law and policy5. It has been the basis for reform over the last decade and has given a central role to private actors as well as emphasising regulatory diversity. This “new” approach is grounded on a certain vision of environmental problems and environmental law that characterises EC environmental law as a regulatory toolbox – the regulatory instruments in it addressing static and uncontroversial environmental problems.

The third to fifth sections “unpack” different aspects of this toolbox and in so doing emphasise the inappropriateness of such instrumental imagery. In the third section the different socio-political forces that have led to the promotion of private actors in regulation are discussed. Those forces are diverse, overlapping and contradictory. An increased role for private actors is promoted because it addresses existing implementation problems, corresponds to a variety of management policies, and is consistent with a range of legal and political theories. In the fourth section, the complexity and conflict of environmental problems is examined, both of which are highlighted by the litigation brought before the ECJ and national courts. Following on from that, the fifth section shows how the primary question in EC environmental law is not regulatory design but rather questions of governance, and in particular administrative legitimacy. EC environmental law is thus first and foremost about public law. The final section proposes a new paradigm for EC environmental law, one that recognises that much of EC environmental law is concerned with the role that law plays in constituting and limiting administrative power, or in other words, administrative constitutionalism.

A number of points should be made before starting. First, nothing here should be taken as discounting the importance of private actors in EC environmental regulation. The question is thus not whether they should be involved in environmental regulation but rather how as lawyers and legal commentators we should make sense of, and accommodate that involvement. Nor, on similar grounds, is this chapter an argument against regulatory diversity or flexibility. Both are to be encouraged but what matters is that both are understood in a primarily public law context. Finally, it should be stressed that this chapter is concerned with public and private actors rather than public and private law as it has been the embracement of “private” actors that has been the central tenet of

Effective Environmental Regulation: Innovative Approaches in Implementing and Enforcing European Environmental Law and Policy”, (2001), Jean Monnet Program Working Papers 5.

5 Golub, supra.