Reflexive questions about regulatory impact assessment Claudio M. Radaelli Professor of Politics, Exeter (UK) Presentation delivered to the WORKSHOP on: Better regulation in the smart economy UCD School of Law, Dublin, 24 April 2009

Trends and questions There is a trend towards Better Regulation (BR) and RIA in Europe But this trend raises a number of questions about implementation In turn, implementation questions raise issues about governance, the role of procedural controls, types of RIA, role of measurement More detailed analysis in Desperately Seeking Regulatory Impact Assessments, Evaluation 15(1), January 2009, 31-48

What the paper does Talks about some of these issues revolving around implementation of RIA or IA in Europe Draws some lessons It uses IA and RIA inter-changeably although in Europe we should really talk IA and reflect more on the differences with Canadian and US RIAs

Caveat I am still learning about reflexive governance and regulation so pls tell me when I am wrong

One definition, several types….. Types of RIA One definition, several types….. Unit of analysis: not the country, but the types of RIA. A country can have more than one type of impact assessment, and there may be two or three RIA procedures RIA and standard cost model: there are appraisal activities in the area of administrative burdens based on the standard cost model. SCM is scientifically, politically and economically very different from the appraisal activities that we normally associate to the OECD or NAO ‘RIA best practice’ Ireland does more OECD-type RIA than SCM

Frustration with implementation of RIA in Europe Comparatively good results from the European Commission (with several caveats), but problems even in Denmark, the UK, Sweden and the Netherlands. See article in Evaluation. More daunting implementation problems in Southern Europe and Eastern Europe. We should start our reflection on implementation by appreciating the Difference between the politics of adoption and the politics of implementation The fact that better regulation is a popular discourse in Europe does not help, it contributes to de-coupling between talk and action

Any lesson? What do governments get out of RIA? Approaches Anchoring and targeting Administrative capacity Theories of the policy process Incentives, incentives, incentives…..

Lesson 1: Why impact assessment? The question is for governments: what do they want impact assessment for? What do they want regulatory quality for? And what does regulatory quality help to achieve? The theory suggests different rationales or explanations of impact assessment

Rationales Learning and evidence-based policy Emulation and symbolic politics Administrative procedure as political control of bureaucracy Reflexive governance And…. Fifth rationale? Sometimes ‘new procedures’ are chosen because there is disagreement on hard questions about law-making, substantive goals and power in the policy process. Similarity between OMC and RIA

Key points Mechanisms: how does it work? Micro-foundations: why would an organization engage with this? Use of knowledge: how is knowledge used?

Policy learning and evidence-based RIA rationale Mechanism Micro-foundations Use of knowledge Policy learning and evidence-based Evidence about policy – What seems to work. This mechanism works via up-dating subjective probability assessments when the information set available to actors changes Organisation under pressure to deliver  focus on analysis in order to improve on policy performance  trying to draw lessons from abroad   Instrumental Emulation What seems to provide legitimacy. The mechanism works via fora for facilitated coordination (OECD, EU) and/or bilateral exchange and/or informal networking (e.g., standard cost model network) Dense, institutional international environment (e.g., EU)  the organisation seeks legitimacy Symbolic

Rationale Mechanism Micro-foundations Use of knowledge Political control Evidence and conjectures about the agent to be controlled by the principal Politically competitive environment  three possible micro-foundations: 1  to increase the core executive control 2 to support a specific policy paradigm or trajectory (de-regulation) 3 to increase popularity 1 Strategic 2 To create ammunition for a specific regulatory policy paradigm Reflexive social learning Interactive network-type governance Legitimacy crisis of the regulatory system? Frame reflection? Strategic? – in the sense of gaining broad social legitimacy

Lesson 2: Approaches to RIA Predictive: we use the RIA to make probabilistic calculations about future events. Kind of “speaking the truth to power” approach Review and planning: we use impact assessment as the major tool to plan and review regulation Reflexive governance: RIA to foster new patterns of participation and collective inquiry about policy

Predictive, planning, and reflexive “Predictive” RIAs chime with economic theories of optimal regulation. Problem is that regulation is always an incomplete contract – we do not know much about the regulatees will respond to new rules, enforcement, how the Courts will react “Review and planning” chimes with responsive regulation (Baldwin, 2005, Baldwin and Black on ‘really responsive regulation’) “Reflexive” approaches are suitable both for ‘prediction’ purposes or as participatory components of the ‘review and planning’ RIAs

Lesson 3: Anchoring RIA Think of how RIA can be usefully anchored to other fundamental components of governance Design of the process - a general provision that identifies rule-making and sets the rules that govern it Established notions and requirements of giving reasons and showing evidence Rules on transparency and access to the rule-making process (Freedom of information acts, notice and comment) Judicial review of rule-making and hard look of the Courts at RIA Consultation procedures, styles, and mandatory rules on participation and engagement with civil-society organizations, acts disciplining scientific advice on risk regulation

Anchoring processes and Reflexivity Up until now we have cast the discussion of RIA in terms of a hyper-rationalistic discourse If we wish to anchor RIA to important components of governance and law-making, we can usefully turn to the discourse on reflexivity. This is not to deny rationality, but to make RIA more robust under conditions of bounded rationality and the search for more social legitimacy of laws and regulations

Lesson 4: Administrative capacity Consider the statements: “RIA is not implemented because administrative capacity is poor” “RIA is the perfect tool to generate administrative capacity” …. Discuss…..

Lesson 5: Theories of the policy process Bracketing politics out? Can we really create a legitimate space for evidence-based reasoning, and if so how do we protect it from politics? Alternative approach is: Working on the politics-administration continuum, using the system of incentives and the theory of reflexive governance

Lesson 6: RIA as system of incentives Political incentives Administrative incentives Professional incentives More in Radaelli and Meuwese, The Political Economy of Better Regulation, 2009

Comments to C.Radaelli@ex.ac.uk Thanks Research papers on better regulation: http://www.centres.ex.ac.uk/ceg/research/riacp/index.php This presentation arises out of research for the project Regulatory Impact Assessment in Comparative Perspective, funded by the Economic and Social Research Council of the UK Comments to C.Radaelli@ex.ac.uk