1. 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

2. 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

3. 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

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

5. 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

6. 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

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

8. 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

9. 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

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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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…..

18. 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

19. 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

20. Comments to C.Radaelli@ex.ac.uk
Thanks
Research papers on better regulation:
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
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