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ABSTRACT
The article aims to bring together different components and perspectives on improving the quality and performance of regulation and legislation, and to set a useful framework for those who look for a broader understanding about policies on regulatory improvement. It departs from the perception that legislative-regulatory policies, focused on the development of legislation, are widespread; however, their components are depicted in an inconvenient manner: there is scarcely any organised, comprehensive and useful toolkit for researchers and legislative counsels. Without going deep into each tool, instrument or modality, the article tries to present a functional matrix of legislative-regulatory elements, considering both traditional and newborn items. Four categories were set: (i) internal aspects of legal quality; (ii) legislative-regulatory mechanics; (iii) methodological aspects stricto sensu; and (iv) constructive and information gathering.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 I use the expression legislative-regulatory policy instead of regulatory policy, although knowing the latter is more commonly used, to avoid a misunderstanding that is remarkable in literature such as the Brazilian literature. In Brazil, there is a common (and narrow) link between ‘regulation’ and ‘regulated sectors’, usually depicted as sectors that are under the ruling of a regulatory agency. This assumption prevents discussing regulatory policy (say, legislative-regulatory policy herein) as applicable to legislation in general, in a negative side-effect.
2 Claudio Radaelli, ‘Whither Better Regulation for the Lisbon Agenda?’ (2007) 14(2) Journal of European Public Policy; Towards Better Research on Better Regulation (2007). Paper delivered to the advanced colloquium on better regulation, Centre for Regulatory Governance. Access <https://ore.exeter.ac.uk/repository/bitstream/handle/10036/23973/RadaelliTowardsBetterResearch.pdf?sequence=1>; ‘Regulating Rulemaking via Impact Assessment’ (2010) 23(1) Governance: An International Journal of Policy, Administration and Institutions.
3 Among the chief authors that identify legislative-regulatory policy as meta-policy, or as a second-ranking policy, even if possibly as other nomenclatures, see Julia Black, ‘Critical Reflections on Regulation’ (2002) 27 Australian Journal of Legal Philosophy; ‘Tensions in the Regulatory State’ (2007) Public Law; Fabrizio de Francesco, Claudio Radaelli and Vera Troeger, ‘Implementing Regulatory Innovations in Europe: The Case of Impact Assessment’ (2012) 19(4) Journal of European Public Policy; Martin Lodge and Wai Wegrich, Managing Regulation: Regulatory Aanalysis, Politics and Policy (Palgrave MacMillan, London 2012). Anne Meuwese, Impact Assessment in EU Lawmaking (EM Meijers Instituut, Leiden 2008). Anne Meuwese and Linda Senden, ‘European Impact Assessment and the Choice of Alternative Regulatory Instruments’ in J. Verschuuren (ed.), The Impact of Legislation: A Critical Analysis of Ex ante Evaluation (Martinus Nijhoff, Leiden – Boston 2009); Claudio Radaelli and Anne Meuwese, ‘Better Regulation in Europe: Between Public Management and Regulatory Reform’ (2009) 87(3) Public Administration; Hard Questions, ‘Hard Solutions: Proceduralisation through Impact Assessment in the EU’ (2010) 33(1) West European Politics.
4 Europe still uses Better Regulation as a central label. <http://ec.europa.eu/smart-regulation/index_en.htm> accessed 7 March 2016.
5 See Robert Baldwin, Martin Cave and Martin Lodge, The Oxford Handbook of Regulation (Oxford University Press, Oxford 2010); Martin Lodge and Wai Wegrich, Managing Regulation: Regulatory Analysis, Politics and Policy (Palgrave Macmillan, London 2012); Anne Meuwese, Impact Assessment in EU Lawmaking (EM Meijers Instituut, Leiden 2008). Anne Meuwese and Linda Senden, ‘European Impact Assessment and the Choice of Alternative Regulatory Instruments’ in J. Verschuuren (ed.), The Impact of Legislation: A Critical Analysis of Ex ante Evaluation (Martinus Nijhoff, Leiden – Boston 2009); See also Claudio Radaelli (see note 3) and ‘Diffusion Without Convergence: How Political Context Shapes the Adoption of Regulatory Impact Assessment’ (2005) 12(5) Journal of European Public Policy; ‘Measuring Policy Learning: Regulatory Impact Assessment in Europe’ (2009) 16(8) Journal of European Public Policy; ‘Regulatory Management: Training Whom, How and for What Purposes?’ (2009) 50 Cadernos de Ciência da Legislação; Claudio Radaelli and Anne Meuwese, ‘Better Regulation in Europe: Between Public Management and Regulatory Reform’ (2009) 87(3) Public Administration; Hard Questions, ‘Hard Solutions: Proceduralisation Through Impact Assessment in the EU’ (2010) 33(1) West European Politics. See Jonathan Wiener, ‘Better Regulation in Europe’ (2009) 59 Current Legal Problems; ‘The Diffusion of Regulatory Oversight’ in Michael Livermore and Richard Revesz (eds.), The Globalization of Cost-Benefit Analysis in Environmental Policy. Finally, see Helen Xanthaki, ‘European Union Legislative Quality After the Lisbon Treaty: The Challenges of Smart Regulation’ (2013) 35(1) Statute Law Review.
6 The team is linked to the National Science and Technology Council (NSTC). See <https://www.whitehouse.gov/the-press-office/2015/09/15/executive-order-using-behavioural-science-insights-better-serve-american> accessed: 1 October 2015. See also Robert Hahn and Paul Tetlock, ‘Has Economic Analysis Improved Regulatory Decisions?’ (2008) 22(1) The Journal of Economic Perspectives; Cass Sunstein, ‘The Office of Information and Regulatory Affairs: Myths and Realities’ (2013) 126 Harvard Law Review; The Real World of Cost-Benefit Analysis: thirty-six questions (and almost as many answers) (2013). Access <ssrn.com/abstract=2199112>.
7 See Daniel Kahneman, Thinking, Fast and Slow (Farraz, Straus and Giroux, New York 2011); Cass Sunstein, ‘The Office of Information and Regulatory Affairs: Myths and Realities’ (2013) 126 Harvard Law Review; Simpler: The Future of the Government (Simon & Schuster, New York 2013). Richard Thaler and Cass Sunstein, Nudge: Improving Decisions about Health, Wealth and Happiness (Yale University Press, New Haven/London 2008). A choice architect is someone responsible for organising the context in which people make choices. ‘Nudges’ can be conceptualised as ‘any aspect of the choice architecture that alters people’s behaviour in a predictable way without forbidding any options or significantly changing their economic incentives’ (2008, p. 6).
8 For Brazilian legislative policy, see Felipe de Paula, ‘Does Brazil Have a Legislative Policy?’ (2016) 4(3) The Theory and Practice of Legislation. As for recent developments, the federal government, that is making efforts to be accepted as a formal member at OECD, has launched a public consultation related to regulatory impact assessment guidelines.
9 The literature regarding the (in)effectiveness of the central elements of certain legislative policies, like the regulatory impact analysis (IA or RIA), or even one of its main techniques, the cost–benefit analysis, shows that domestic political-institutional factors do matter. They influence decisions about setting and implementing the tool, as well as the assessment of the results. See Robert Hahn and Patrick Dudley, ‘How Well Does the US Government Do Benefit-Cost Analysis?’ (2007) 1(2) Review of Environmental Economics and Policy; Robert Hahn and Paul Tetlock, ‘Has Economic Analysis Improved Regulatory Decisions?’ (2008) 22(1) The Journal of Economic Perspectives; Stuart Shapiro and John Morrall III, ‘The Triumph of Regulatory Politics: Benefit-cost Analysis and Political Salience’ (2012) 6 Regulation & Governance. Likewise, Radaelli argues that other institutional elements are also important for the operation and development of legislative-regulatory tools, like the bureaucratic design (the level of delegation of powers or the autonomy attributed to the agencies), the government’s capacity for dealing with allocative efficiency and (re)distributional problems, as well as the level of domestic political controversies. Moreover, organisations learn and internalise ideas and tools very differently to each other. The ‘diffusion without convergence’ argued by Radaelli at the European level highlights the urgency of understanding the peculiarities of each system. See also Fabrizio de Francesco, ‘Diffusion of Regulatory Impact Analysis Among OECD and EU Member States’ (2012) 45(10) Comparative Political Studies; Paula Coletti and Claudio Radaelli, ‘Economic Rationales, Learning and Regulatory Policy Instruments’ (2013) 91(4) Public Administration; Claudio Radaelli, op cit (notes 3 and 4).
10 There is no importance or chronological ranking among them, although some of them, as a rule, precede others.
11 Although the category is classified as internal aspects, note that some classic approaches consider elements of legislative technique as both internal and external ones. The last group allegedly holds the aspects in connection with the drafting, issue, and publication of acts. See Jose H. Meeham, Teoria y técnicas legislativas (BSA: DePalma, 1976).
12 See L. Mader, ‘Evaluating the Effects – a Contribution to the Quality of Legislation’ (2001) 22(2) Statute Law Review; ‘A Avaliação Legislativa: uma nova abordagem do direito’ (2006) 1 Cadernos de Ciência da Legislação; ‘Avaliação Prospectiva e Análise de Impacto Legislativo Tornam as Leis Melhores?’ (2006) 1 Cadernos de Ciência da Legislação.
13 Martin Lodge and Wai Wegrich, Managing Regulation: Regulatory Analysis, Politics and Policy (Palgrave Macmillan, London 2012). For principles see L. Mader (op cit); Jose H. Meeham (op cit.); Helen Xanthaki, ‘Legislative Drafting: A New Sub-discipline of Law is Born’ (2013) 1(1) IASL Student Law Review. In Portuguese, see Gilmar Ferreira Mendes, ‘Questões Fundamentais de Técnica Legislativa’ (1993) 1 Revista Trimestral de Direito Público; Carlos Blanco de Morais, ‘O “Programa Legislar Melhor”: dois anos depois’ (2009) 50 Cadernos de Ciência da Legislação.
14 See Jeffrey Barnes, ‘The Continuing Debate About “Plain Language” Legislation: A Law Reform Conundrum’ (2013) 27(2) Statute Law Review; Helen Xanthaki, ‘Legislative Drafting: A New Sub-discipline of Law is Born’ (2013) 1(1) IASL Student Law Review.
15
The recent calls for a return of purpose or objectives clauses in legislation, provided that the latter list the factors to be taken into account when tangible and measurable effectiveness is monitored at the pre and post-legislative scrutiny exercises are a wonderful mechanism to express the link between policy choices and legislative expression, and to address regulation as a full circle beginning with policy formulation and ending with the juxtaposition of legislative objectives against the achievement of tangible policy aims. (Helen Xanthaki, cit,, p. 14)
16
The increasing use of explanatory materials in the introduction of legislative drafts in the Commonwealth is attributable to the need for additional clarifications of the policy and text, which are deemed too detailed to be accommodated in the modern, dry, short style of legislation. (Helen Xanthaki, cit,, 2013b, p. 70)
17 ‘Information that is vivid and salient is likely to have a much larger impact on people’s behaviour than information that is statistical and abstract’. See Cass Sunstein, Simpler: The Future of the Government (Simon & Schuster, New York 2013), 86. The author warns that these observations are not valid for all situations. See also Richard Thaler and Cass Sunstein, Nudge: Improving Decisions About Health, Wealth and Happiness (Yale University Press, New Haven/London 2008); Daniel Kahneman, Thinking, Fast and Slow (Farraz, Straus and Giroux, New York 2011); Cass Sunstein, ‘Empirically Informed Regulation’ (2011) 78 The University of Chicago Law Review; ‘The Office of Information and Regulatory Affairs: Myths and Realities’ (2013) 126 Harvard Law Review; Simpler: The Future of the Government (Simon & Schuster, New York 2013).
18 B. Morgan and K. Yeung, An Introduction to Law and Regulation (Cambridge University Press, Cambridge 2007); Martin Lodge and Wai Wegrich, Managing Regulation: Regulatory Analysis, Politics and Policy (Palgrave Macmillan, London 2012).
19 The results of regulatory mechanics will also depend on the quality of the enforcement designs and the existing compliance level. It is stated only that the elements that entail the definition of these mechanics may be gathered into one sole analytical category.
20 For a comprehensive list of alternatives, see B. Morgan and K. Yeung, An Introduction to Law and Regulation (Cambridge University Press, Cambridge 2007).
21 N. Gunningham, P. Grabosky and D. Sinclair, Smart Regulation: Designing Environmental Policy (Clarendon Press, Oxford 1998); L. Aires and J. Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press, New York 1992).
22 For a debate about the nomenclature, which evaluates proposals such as ‘law and psychology’, ‘behavioural analysis of law’, ‘behavioural economics’ or ‘law and emotions’, see Anne-Lise Sibony and Alberto Alemanno, ‘The Emergence of Behavioural Policy-Making: A European Perspective’ (2015). HEC Paris Research Paper No. LAW-2015-1084.
23
Economicus respond primarily to incentives. If the government taxes candy, they will buy less candy, but they are not influenced by such ‘irrelevant’ factors as the order in which options are displayed. Humans respond to incentives too, but they are also influenced by nudges. By properly deploying both incentives and nudges, we can improve our ability to improve people’s lives, and help solve many of society’s major problems. And we can do so while still insisting on everyone’s freedom to choose. (Richard Thaler and Cass Sunstein, Nudge: Improving Decisions about Health, Wealth and Happiness, New Haven/London: Yale University Press, 2008, p. 8)
For other criticisms to the rationality assumed by traditional economic theories, see Cass Sunstein, Simpler: The Future of the Government (Simon & Schuster, New York 2013).
24 There may be prior guidance, such as for example the application of the standard cost model (SCM) as the basis for measuring the administrative burdens on the private sector.
25 For the advancement of the adoptions, see <http://www.oecd.org/gov/regulatory-policy/ria.htm> accessed 13 November 2015.
26 A. Ogus, ‘Análise do Impacto Legislativo: a dimensão política’ (2006) 42/43 Cadernos de Ciência da Legislação.
27 According to Meuwese, Impact Assessment in EU Lawmaking (EM Meijers Instituut, Leiden 2008), one can find the following RIA models:
speaking the truth to power – the tool is strongly based on the synoptic-rational ideal: net benefits are evaluated, alternatives are compared and the best possible option is presented. The model has the political decision replaced by the technical assessment. This is its main asset and, also, its greatest risk. It assumes the technical-economic criterion as the decisional criterion.
giving reasons for legislative decisions – the tool does not define, but generates information for politicians. A model best adapted to government contingencies, but criticised, since it allegedly adds little to the current activities for previously justifying the decision. It may also be used as a symbol, to legitimate pre-conceived political decisions.
providing a forum for stakeholder input – the tool allows the public to participate in the analyses, which, in theory, is quite positive. However, the model could be used to channel political options, provide power to lobbies with more access to resources and, to a certain extent, go against the ideal of objectiveness and use of evidence.
highlighting trade-offs – the tool plays the role of a lighter version against the ‘speaking the truth to power’ model, and questions the cost–benefit analyses as an ultimate purpose; the decision-maker, ultimately, can go against the results of the analyses, becoming liable for this. On the one hand, the model may curb the instrument’s potential, the purpose of which is allegedly to bring about more objective choices and to guarantee qualified decisions; on the other hand, there is no obstacle to requiring justifications from the decision-makers if they choose to go against RIA's findings.
structuring the discourse – the tool is useful to structure the preparatory discussion, addressing the quality of the arguments. The model helps to create government procedures; however, again it misses some objectivity, with little influence on the content of the studies.
28 The presentation is not extremely precise. There are external elements that are considered in other categories of elements of the legislative-regulatory policy, as in the assembly of regulatory strategies that require information on an intensive basis, as well as internal aspects entailed in the gathering of information (planning, definition of experimental designs, treatment of results, etc.).
29 According to information from the General Secretariat of the Presidency of the Republic, from 2003 to 2013, 97 conferences were held about 43 distinct issues, with the attendance of more than 9 million people in their several stages. For the debate about the relation between resolutions in participative spaces and legislative proposal see, as an example, Thamy Pogrebinschi (coord.), Entre Representação e Participação: As conferências nacionais e o experimentalismo democrático brasileiro (Ministério da Justiça/UNDP, Brasilia 2010) – Série Pensando o Direito, n. 27.
30 Guilherme Almeida de Almeida, ‘Marco Civil da Internet: antecedentes, formulação colaborativa e resultados alcançados’ in Gustavo Artese (org), Marco Civil da Internet: análise jurídica sob uma perspectiva empresarial (Quartier Latin, São Paulo 2015).
31 The Brazilian Civil Rights Framework for the Internet (Law 12965, of 23 April 2014), that sets forth principles and guarantees, rights and duties for using the web in Brazil, was drafted from successive public inquiries fostered by the federal administration, under the leadership of the Secretariat for Legislative Matters of the Ministry of Justice and with the support of the Ministry of Culture, and the Technology and Society Center of the Getulio Vargas Foundation. Citizens could give suggestions both about the basic text and the legal proposal, with the possibility of debates per sub-topics started by the own users. The dynamic model is seen with several benefits: (i) equalisation of participants who, at least in theory, are on equal terms – an internet user from the country’s boondocks contributes in the same way that the large audiovisual corporation does; (ii) the agglutination of information which may not be available at all times from the legislator-regulator – new positions, new data etc.; (iii) the active and flexible work of non-governmental participants, which trigger public benefits – in the case of the Brazilian Civil Rights Framework for the Internet, data were organised by non-government players which helped with the channelling of the discussion; (iv) the fostering of active publicity of documents – the delivery of political-economic positions was encouraged, but the received documents were invariably made available on the web; (v) the test of arguments and of the mood of the sector, both from the expected impact side and the political side; (vi) the addition of legitimacy to the process.
32 ‘Sunset Clauses and Experimental Regulations: Blessing or Curse for Legal Certainty’ (2015) 36(1) Statute Law Review.
33
Experimental legislation is a first step towards lasting legislation: new rules are enacted on an experimental basis, their effects and side-effects are evaluated, and should these rules prove to be effective, they can be adapted and converted into permanent laws.
34 OITO ensures that for each new regulatory rule a former one will be withdrawn or, more precisely, the newly created administrative costs will be offset by withdrawing a former one. See <https://www.gov.uk/government/collections/one-in-two-out-statement-of-new-regulation.> accessed 13 November 2015. For Better Regulation in the United Kingdom, see <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/468831/bis-13-1038-Better-regulation-framework-manual.pdf> accessed 13 November 2015.
35 For an example, see the 2015 legislative guide drafted by the Parliamentary Business and Legislation (PBL) Secretariat jointly with its peers in the legislative process. See <www.gov.uk/government/uploads/system/uploads/attachment_data/file/450239/Guide_to_Making_Legislation.pdf> accessed 13 November 2015.
36 For European programmes, starting in 2005, see <http://ec.europa.eu/atwork/key-documents/index_en.htm> accessed 13 November 2015. For other domestic experiments, see Wim Voermans and H. Napel, Legislative Processes in Transition: Comparative Study of the Legislative Processes in Finland, Slovenia and the United Kingdom as a Source of Inspiration for Enhancing the Efficiency of the Dutch Legislative Process (WODC Ministry of Security and Justice/Universiteit Leiden, Leiden/The Hague 2012).
37 The inclusion of a certain topic in the legislative plans may also result from unexpected occurrences or legal obligations.